Earlier this year, a three-judge panel of the Eighth Circuit Court of Appeals narrowly decided an appeal in a way that complicates an employer’s ability to regulate and address workplace conduct without fear of litigation.
The case—Huber v. Westar Foods—involved an employer who fired a diabetic restaurant manager who had violated an attendance policy multiple times in one year and who had been written up for such violations each time they occurred. On the last occasion, the employee missed work, went to her doctor’s office, and called multiple individuals on her way to the doctor’s office, but not her employer. The employee then missed another day of work without notifying her employer. The employer subsequently fired her.
The employee, however, claimed she was fired because of her disability (diabetes). The Eighth Circuit began its analysis by observing the typical “rule in discrimination cases is that if an employer honestly believes that an employee is terminated for misconduct, but it turns out later that the employer was mistaken about whether the employee violated a workplace rule, the employer cannot be liable for discrimination.”
Though acknowledging the above rule, the Eighth Circuit went on to reason that an employer’s honest belief will not suffice to avoid a jury trial when—in the court’s view—the alleged disability is not “sufficiently independent from” the reasons for firing.
Questions arise, which may explain why the case is now under en banc review by the court: What does “sufficiently independent” mean? What are the limits on when a disability is or is not “sufficiently independent” from an adverse action? How is an employer, as a practical matter, supposed to make such a determination?
The dissenting judge noted that the above are major questions raised by the case. Noting at the outset that the majority “takes a wrong turn in this case,” the dissent delved into Eighth Circuit (and other circuits’) precedent to reason and conclude that “[t]he court’s new intertwinement rule will make a mess. It is also wrong. As a unanimous Seventh Circuit panel put it over 25 years ago, an ‘employer who fires a worker because [she] is a diabetic violates the Act; but if [the employer] fires [her] because [s]he is unable to do [the] job, there is no violation, even though the diabetes is the cause.’ [internal citation omitted]. That statement rings as true today as it did then.”
As mentioned above, after the majority’s decision, the Eighth Circuit agreed to re-hear the appeal en banc—meaning, before a full panel of judges from the Eighth Circuit, not just the previous three. Oral argument was held before the full panel at the end of October.
Many reports coming out of the oral argument suggest the Court continues to be divided over the issue. A decision on the merits should be forthcoming soon. Stay tuned for more developments.
