Many employers have had more than their fair share of discrimination allegations. Continental Airlines was accused of race, color, national origin, religious, and disability discrimination in one lawsuit. Let’s take a look at how it did more than its fair share of trying to work with the employee before eventually terminating him.
Losing Control
Meet Alfred Toronka, a black airline employee from Sierra Leone and a Seventh-day Adventist who also expressed a belief in voodoo. He was hired by Continental Airlines in 1997 to work as a material specialist in its technical operations department; driving was one of his essential job functions. He was terminated in 2008.
In October 2007, Toronka crashed a van into the avionics department of George Bush Intercontinental Airport. Several witnesses noted that he was driving the van at high speed and grazed an aircraft tug before crashing through the wall of the avionics department. Five employees were injured, and three, including Toronka, were taken to the hospital by ambulance. Toronka was issued a speeding ticket by local police.
Toronka claimed that the van’s gas pedal had gotten stuck, but an inspection of the vehicle indicated there was no mechanical failure. He also claimed that the accident was inevitable because of a dream his wife had. Continental determined that he was at fault and that the accident was serious enough to warrant termination. Nevertheless, the company gave him an opportunity to keep his job after a two-week suspension and a mandatory referral to its employee assistance program (EAP).
In addition to containing disciplinary procedures, Continental’s employment manual provides for an EAP evaluation to assess an employee’s mental health and monitor employees who experience personal or mental health problems. As part of the EAP process, Toronka was evaluated by a psychiatrist, a psychologist, and a neurologist. The neurologist recommended that he not drive because his cognitive function was severely impaired.
Continental informed Toronka that he could no longer work as a material specialist because he wasn’t fit for safety-sensitive tasks. Hissupervisors met with him three times to discuss other possible positions, but he didn’t express interest in or pursue any of their suggestions. Of the 584 job openings that were available from January 2008 to June 2009, he applied for none.
After he was terminated, Toronka sued Continental in the federal trial court in Houston, alleging that he was terminated because of race, color, national origin, and religious discrimination. He also alleged that Continental failed to accommodate him because it refused to place him in a first-shift material specialist position that involved inventory but not driving.
To prove discrimination based on race, color, national origin, or religion, Toronka had to show:
- he is a member of a protected class;
- he was qualified for his position;
- he was subjected to an adverse employment action (termination); and
- he was treated less favorably than a similarly situated employee outside the protected class.
He couldn’t establish the final element ― that he was treated less favorably than a similarly situated employee outside his protected class.
Toronka pointed to three other employees who had been involved in vehicular accidents, but each of their accidents was minor and caused only property damage. They were a far cry from crashing through a wall at high speed, injuring five people and sending three to the hospital. Because the coworkers’ accidents were not nearly identical in severity to Toronka’s accident, the trial court dismissed his claims, and he appealed.
Reasonable Accommodation Doesn’t Mean Free Ticket to First Class
Toronka argued that Continental failed to accommodate his disability because it didn’t place him in the first-shift material specialist position that didn’t require driving. However, according to Continental’s written policy, workers were assigned to the first shift by seniority, and at any rate, that shift was already filled. An employer isn’t required to undermine an established seniority system, eliminate essential job functions, modify job duties, or reassign existing employees to accommodate a disabled individual.
The appeals court agreed that it wasn’t Continental’s responsibility to fashion a new job for Toronka. Reassignment is a reasonable accommodation only if a vacant position already exists. Continental engaged in the interactive process by meeting with Toronka three times to discuss other possibilities for work, and he failed to apply for any available jobs. The appeals court also held that the “comparators” cited by Toronka had not engaged in “nearly identical” conduct, and thus, lesser discipline to the comparators did not show discrimination.
ADA Accommodation Compliance: Mastering the Interactive Process
Preparing for Landing
When Toronka crashed the van and injured several employees, Continental noted that the accident was severe enough to terminate him, yet it didn’t ― it decided to suspend him instead. Had the company landed in front of a jury (which thankfully didn’t happen), it would have been portrayed as a sympathetic employer that had done all it could to accommodate one of its long-time employees. The company acted wisely by not making any hasty decisions. Rather, it followed its policy to a “T” and gave Toronka every benefit of the doubt. Remember: Judge slowly.
When Continental determined that Toronka couldn’t perform the essential functions of his job, it tried to help him find other positions that didn’t require driving instead of merely referring him to a job bank. His supervisors met with him three times to discuss open positions for which he was qualified. It was Toronka who failed to apply for any of those positions. Again, Continental went beyond the call of duty in trying to keep him employed while maintaining workplace safety. Toronka v. Continental Airlines, Inc., U.S. Court of Appeals, Fifth Circuit, 2011 WL 493101.
Bottom Line
When you are faced with a tough employment decision, consider asking yourself a few questions. Have you done all you can to help the employee succeed and make good decisions about his future? Does the decision have to be made immediately, or can it undergo some scrutiny by others within the company? How will the decision be viewed by those outside your company? Don’t make a quick decision unless you have to, or you might just land yourself in court.