Regular, Reliable Attendance Essential Part of Job

According to a recent 8th Circuit Court of Appeals decision, regular attendance is an essential function of a job, even when the employee’s absences are for legitimate medical and personal reasons.

James Schierhoff worked for GlaxoSmithKline (GSK) as a packaging mechanic until April of 2002, when his employment was terminated for excessive absenteeism.  Prior to that, Schierhoff had been absent from work for various medical and personal reasons, including FMLA leave during both 2000 and 2001, as well as additional personal time off in each year.

Between June of 2000 and March of 2002, Schierhoff had “excused” absences during a total of 172 workdays, which equated to about 40 percent of work time in that period.  In or around April 2002, Schierhoff received a termination memo, stating that his absences “have impaired the operation of the department and diminished [his] effectiveness to the company.”

Schierhoff sued GSK, alleging both age and disability discrimination.  Although he did not dispute the company’s assertion that he had often been absent, Schierhoff claimed that he was terminated for other reasons.

He based that assertion on comments by his immediate supervisor.  According to Schierhoff, in the fall of 2001, his immediate supervisor, Edward Rohowetz, commented to him, “[y]ou know, I bet you got something hurting all over your body all the time, you’ve had a rough life…  You know as old and worn out as you are, why don’t you just quit?  You don’t need the money anyway.”  Schierhoff understood this comment to mean that Rohowetz regarded him as “generally disabled and unable to perform [his] job,” and he asserts that the comment, coupled with Rohowetz’s role in his termination, demonstrates that the termination was undertaken because of Schierhoff’s age or disability.  In further support of this claim, Schierhoff points to positive performance evaluations and the lack of any warning of his upcoming termination.  According to Schierhoff, GSK’s policies for handling attendance problems necessitated a warning or progressive discipline rather than termination.  He also notes that his absences were due to recovery from a scheduled surgery and other injuries, and argues that because the leave was taken with GSK’s permission, it cannot be the reason for his termination

The 8th Circuit found that Schierhoff was unable to establish a case of age discrimination because he failed to present sufficient evidence that he was performing his job at the level of GSK’s legitimate expectation, as he was not present for over 40 percent of workdays.

The fact that the absences were for legitimate medical and personal reasons did not affect the court’s analysis.  As the court noted, the ability to perform one’s job is an element of both age and disability discrimination claims.  To prove age discrimination Schierhoff must demonstrate that he is able to perform his job “at a level that meets his employer’s legitimate expectations.”  To prove disability discrimination, he must show that he can perform his job either “with or without reasonable accommodation.”  “Regular and reliable attendance is a necessary element of most jobs,” and an employee who cannot attend work cannot perform the essential functions of his job.  This is true even when the absences are with the employer’s permission, the court said.

In this case, there was undisputed evidence that Rohowetz was not involved in the decision-making process that led to Schierhoff’s discharge, and had acted only as a “messenger” for the HR manager in communicating the termination decision.  Based on that evidence, the 8th Circuit found that Rohowetz’s remarks were “stray remarks in the workplace” that did not directly indicate that a discriminatory attitude more likely than not was a motivating factor in the ultimate decision to fire Schierhoff.  Schierhoff v. GlaxoSmithKline Consumer Healthcare LP, 8th Cir., (April 14, 2006).

Employer Advice

Although the employer successfully defended this case, it should be noted that the entire claim rested upon the age- and disability-related remarks made by Schierhoff’s supervisor.  Without those remarks, Schierhoff would have had no evidence—direct or indirect—of alleged discrimination.  Litigation, even when you win, is expensive and time consuming.  Knowledgeable employers should ensure that supervisors are trained to act appropriately and professionally in order to avoid making any unthinking statements upon which legal claims may be based.

For additional information on this topic or needs for any policy, please contact David L. Hansen at HR-OneSource (515) 221-1718 or hansend@hr-onesource.com.