HR-86-001-RL
7-1700-109-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS
Linda C. Johnson, Commissioner,
Department of Human Rights, State of
Minnesota, Complainant, FINDINGS OF FACT,
CONCLUSIONS OF LAW,
V. AND ORDER
GX Corporation, d/b/a Great Expectations
Precision Hair Styling, Respondent.
The above-entitled matter came on for hearing before Administrative Law
Judge Richard C. Luis on August 7 and 8, 1986, at the Office of Administrative
Hearings in Minneapolis. The record in this matter closed on September 30,
1986.
Elizabeth V. Cutter, Special Assistant Attorney General, 1100 Bremer
Tower, St. Paul, Minnesota 55101, appeared on behalf of the Complainant.
Robert F. Collins, Suite 906, 2925 Dean Parkway, Minneapolis, Minnesota 55416,
appeared on behalf of the Respondent ("Employer" or "GX").
NOTICE
Pursuant to Minn. Stat. 363.071, subd. 2, this Order is the final
decision in this case and under Minn. Stat. 363.072, the Commissioner of the
Department of Human Rights or any other person aggrieved by this decision may
seek judicial review pursuant to Minn. Stat. 14.63 through 14.69.
STATEMENT OF ISSUE
Whether the Respondent illegally discriminated against the Charging Party,
Tammy Englund, on the basis of pregnancy or disability in violation of Minn.
Stat. 363.03, subds. (5) or (6) when it placed her on an unrequested medical
leave of absence on October 28, 1983.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. Tammy Englund was employed as a full-time hair stylist for the
Respondent at its salon in the Southdale Shopping Center, Edina, Minnesota,
from March 1982 to October 28, 1983.
2. Tammy Englund was an excellent employee. As a hair stylist, her basic
duties included giving haircuts and permanents.
3. During September of 1983, Ms. Englund began to experience headaches
whenever she administered a permanent wave to a customer. She attributed the
headaches to her close exposure, while giving permanents, to fumes from
permanent wave solution.
4. On or about October 14, 1983, Tammy Englund learned that she was
pregnant.
5. On or about October 21, 1983, Tammy Englund asked Gloria Anderson,
manager of the Southdale salon, to be relieved from giving permanents because
she was experiencing headaches whenever she gave one. Ms. Anderson called
Gerald Brennan, the Respondent's president and owner, regarding Englund's
request. Brennan told Anderson to tell Tammy to get a note from her doctor.
6. Within a day or two of Brennan's request that she produce a doctor's
note, Ms. Englund presented Gloria Anderson with a note from Robert H. Kaplan,
M.D., an obstetrician at the St. Louis Park Medical Center. The note, dated
October 21, 1983, reads:
"Tammy Englund is pregnant. At the present time she is
advised to discontinue giving permanents because of
headaches."
7. After October 21, 1983, Ms. Englund continued to work for the
Respondent as a hair stylist without doing permanents. She remained active on
the job performing haircuts. She experienced no headaches when not performing
permanents.
B. Sometime between October 21 and October 28, 1983, Mr. Brennan received
a telephone call from Mark Englund, Tammy's husband. Mr. Englund sounded
upset to Brennan, spoke to him in an agitated manner, and cursed several
times. Englund complained of Brennan's making his wife get a doctor's note
and accused him of not believing Tammy. During the course ofthe
conversation, permanent fumes and potential damage to Tammy's fetus were
mentioned, and Mark Englund told Brennan that he was especially concerned
about birth defects because he had a sister who was born with a cleft palate.
9. October 28, 1983 was the date set for performance reviews of employees
at the Respondent's Southdale salon. Tammy Englund's review was done by Mr.
Brennan, in the presence of Gloria Anderson and Joy Meyers, the salon's
assistant manager. A few minutes prior to Englund's review, Anderson gave
Brennan the note reported at Finding 6. Brennan had not seen the note before
then.
10. During the course of the performance review for the Charging Party,
Brennan told Tammy that he was placing her on medical leave because of
unresolved questions regarding her health and the health of her fetus. He
said he was concerned because she would still be exposed to permanent solution
fumes in the shop, even if she was not performing permanents, and that if the
fumes gave her headaches, continued exposure to them could cause complications
in her pregnancy. Ms. Englund requested to be allowed to continue working
through the seventh month of her pregnancy, as she had planned. She asked to
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be allowed to.perform haircuts only, without administering permanents, and
Brennan told her to get a (second) note or letter from her doctor saying it
was safe for her to return to work.
11. Upon learning that she was being placed on leave, Tammy Englund
became upset and started to cry. After rejecting Anderson's suggestion that
Tammy act as the salon's receptionist (because of continued exposure to
permanent fumes), Brennan told Tammy he might have a job for her in his office
and asked if she could type. Tammy said she could not. He then said that he
may have something else for her, or that he may be able to find a place for
her working for one of his friends. Ms. Englund rejected those overtures and
told Brennan that she could check with her father-in-law, "who may be able to
get me a job at Target".
12. Before concluding Tammy Englund's performance review, Mr. Brennan
also told her that she was an excellent employee and that he wanted her back.
He told her that he would not contest the claim if she were to file for
unemployment benefits and promised to pay her two weeks of vacation pay, which
she had not yet earned. Tammy said that she would not go on unemployment.
13. Brennan followed up the conversation detailed in the preceding three
Findings with a letter to Ms. Englund. It reads:
Dear Tammy,
Based on the letter from your doctor regarding
your headaches, pregnancy and perms, we are placing you
on a medical leave of absence.
When he writes that it is safe for you to return
to work as a full-time hair stylist, we will be happy
to reinstate you.
14. Brennan and his managers thought that he had made it clear to Ms.
Englund that she could return to work if her doctor approved her working in an
environment where permanent solution fumes were prevalent. It was their
intention that, if Tammy's doctor approved, she could be employed at GX
without te actually having to perform permanents until she went on
maternity leave.
Tammy understood differently. She interpreted Brennan's directive to come
back to work after her doctor wrote that it was safe to return as a "full-time
hair stylist" to mean that she could not work at Great Expectations until she
could again perform permanents without problems from the fumes.
15. The Respondent's "Salon Employee Handbook", at page 3, describes the
"duties" of a "stylist". In relevant part, the description reads:
"The main duties of the stylists are to perform in a
professional manner the hair care services offered by
the salon i.e., hair cutting and styling, permanent
waving, coloring, bleaching, tinting, and any other
hair related service."
16. On October 31, 1983 Tammy Englund filed for unemployment benefits.
The Respondent never protested the claim, and Tammy received benefits with no
penalty. She had to wait two weeks before receiving benefits because the
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Respondent did give her two weeks of vacation pay. In connection with the
unemployment claim, the employer filled out a Wage and Separation Information
Form, which form gave GX the opportunity to explain or comment if the
separation from work was for reasons other than a lack of work. Mr. Brennan
completed the wage information and made no further comment on the form.
17. Tammy Englund never presented the employer with a "second" note from
her doctor regarding her ability to work. She carried her pregnancy to term,
and delivered a healthy baby boy with no birth defects.
18. Between 1981 and the time of the hearing, the GX Corporation (which
has approximately 100 employees) has had approximately 40 women in its employ
who went on maternity leave and returned to work after giving birth. Many of
the women worked as full-time stylists up to the day before delivery. Tammy
Englund was the only pregnant employee in the company's history to complain of
headaches caused by permanent wave solution fumes.
19. From time to time, it has been necessary for the employer to relieve,
temporarily, full-time hair stylists from the -duty of performing permanents
because they had cuts or other sores on their hands which prevented them from
immersing their hands in permanent solution, which is caustic. These stylists
were excused from performing permanents until their hands healed to the point
where dipping them into the solution was not painful.
One other stylist was excused from doing permanents on a temporary basis
after she developed a skin rash. After one week without touching permanent
solution, the rash remained. The stylist then experimented with using a
different brand of shampoo, and the rash still remained. She then resumed
giving permanents and the rash eventually cleared up.
The above-noted situations are the only instances in the company's history
where full-time hair stylists were excused from performing permanents as a
term and condition of employment.
20. Administration of a permanent wave to a customer takes an average of
two to two-and-one-half hours. As part of this process, the permanent
solution, a strong-smelling chemical that curls the hair, is applied to a
customer's hair for approximately 20 minutes. During that time, the stylist
stands directly over the customer's head and is in close proximity to the
fumes generated by the solution.
21. During Tammy Englund's term of employment at the Southdale salon,
Great Expectations stylists performed approximately 30 to 40 permanents per
week. There were seven full-time stylists, who took permanent customers on a
rotating basis, unless the customer's "regular" stylist was available. After
October 21, 1983, Tammy Englund was dropped from the rotation and concentrated
on performing haircuts.
22. At all times relevant to this case, Tammy Englund's work station was
the second closest to the salon's door, which opened out onto the Southdale
Mall. The two "permanent-only" stations were located in the back of the shop,
approximately 25 to 35 feet from Englund's area. If both permanent stations
were occupied when another customer wanted a permanent given, the stylist
assigned to the customer performed the permanent at the stylist's regular
station.
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Although the fumes from permanent wave solution were generally weaker the
closer a stylist was to the door (and therefore farther from the
"permanent-only" stations), the presence of permanent fumes in the air of the
salon was generally evident throughout a stylist's work shift. If the stylist
positioned next to Ms Englund was not able to service a permanent customer at
one of the "permanent-only" stations, then the work would have been performed
in very close proximity to her.
23. Occasions arose during the course of Ms. Englund's employment at
Great Expectations when as many as four to six permanents were being performed
at once. On some of these occasions, the 20-minute application period when
fumes from permanent solution are transmitted into the air of the salon
occurred simultaneously at more than one work station.
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Administrative Law Judge has jurisdiction over this matter
pursuant to Minn. Stat. 14.50 363.071. All relevant substantive and
procedural requirements of statute or rule have been complied with by the
Department of Human Rights.
2. The Respondent is an employer as defined in Minn. Stat. 363.01,
subd. 15.
3. The Respondent did not discriminate against Tammy Englund by placing
her on a medical leave of absence on October 28, 1983.
Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
ORDER
IT IS HEREBY ORDERED that the Complaint herein is DISMISSED.
Dated this day of October, 1986.
RICHARD C. LUIS
Administrative Law Judge
Reported: Taped
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MEMORANDUM
Minn. Stat. 363.03, subds. 1(5) and (6) read, in relevant parts:
Subdivision 1. Employment. Except when based on a
bona fide occupational qualification, it is an
unfair employment practice:
(5) For an employer, ...not to treat women affected
by pregnancy, childbirth, or disabilities related to
pregnancy or childbirth, the same as other persons
who are not so affected but who are similar in their
ability or inability to work.
(6) For an employer with 50 or more permanent,
full-time employees,...not to make reasonable
accommodation to the known disability of a qualified
disabled person unless the employer .... can
demonstrate that the accommodation would impose an
undue hardship on the business..."Reasonable
accommodation" means steps which must be taken to
accommodate the known physical or mental limitations
of a qualified disabled person.
Subdivision 1(6) goes on to list "job restructuring" as a type of
reasonable accommodation that an employer must make to the known disability of
a qualified disabled person. The statute also defines "undue hardship", but
the question of whether an employer would suffer an undue hardship by making
an accommodation for an employee does not arise unless that employee is a
qualified disabled person whose disability is known.
Minn. Stat. 363.01, subds. 25 and 25a. define "disability" and
qualified disabled person". A "disability" is any condition or
characteristic that renders a person a disabled person. A disabled person is
any person who (1) has a physical or mental impairment which substantially
limits one or more major life activities; (2) has a record of such an
impairment; or (3) is regarded as having such an impairment.
A "qualified disabled person" is defined as a disabled person who, with
reasonable accommodation, can perform the essential functions required of all
applicants for the job in question.
After analyzing the above-mentioned statutes, taken as a whole, the
Administrative Law Judge is unable to find discrimination against Tammy
Englund on the part of the Respondent.
Considering first the pregnancy anti-discrimination statute [subd. 1(5)],
the Judge is unable to conclude that the Employer treated Tammy Englund
differently than non-pregnant employees who were similar in their ability or
inability to work. The evidence establishes that GX's policy on pregnant
employees is uniform and consistent pregnant employees are allowed to work
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as long as they are able and can come back to work as soon as they are able.
Nothing in this record shows an inconsistency on the part of the employer in
enforcing that policy with respect to Tammy Englund. That is, close proximity
to permanent wave solution caused the employee to experience headaches. The
note received from Dr. Kaplan implied that such a problem would persist
through the term of her pregnancy. The employee's husband was afraid of
possible birth defects. The employee was unable to perform permanents, an
essential job function, and the effect of remaining in an atmosphere where
permanent fumes were prevalent (even if the employee stopped giving permanents
herself) was unknown. Under such circumstances, the employer was reasonable
in placing Tammy on leave until she could work again. In that respect, GX
treated the Charging Party no differently than any other employee (pregnant or
non-pregnant) who could no longer work.
The Complainant argues that the focus for analyzing a potential violation
of subdivision 1(5) should be on the fact that the employer allowed other
employees who could not perform permanents to be relieved of such duty and
concentrate on haircuts until they could return to performance of permanent
wave assignments. That argument depends on acceptance by the fact finder that
those other employees, who were unable to perform permanents because of rashes
or cuts on their hands that prevented them from dipping their hands in the
caustic permanent wave solution, were similar to the Charging Party in their
ability or inability to work. The Judge is unable to reach that conclusion.
The employees excused from performing permanents could not perform them
because of temporary, transitory physical problems affecting their hands. In
those cases, it was obvious that the problems experienced by the affected
employees would be relieved, or more properly diagnosed, if they were given
duties that avoided exposure of their hands to direct contact with the
offensive liquid. Tammy Englund had an entirely different problem. Permanent
wave solution gave her headaches. Although not performing permanents seemed
to help in preventing the headaches, the fumes that caused the headaches still
permeated the shop. Until it could be established that Tammy would avoid
headaches and/or jeopardizing of her fetus by not performing permanents, even
though the headache-causing fumes permeated her work area, the Employer was
reasonable in concluding that Tammy should be out of the environment. Her
situation is different from that of the employees who could not give
permanents because of cuts or rashes on their hands. Those persons could
avoid the problem that permanent solution caused them by not putting their
hands in the solution, but it was never shown that Tammy could avoid headaches
and/or jeopardizing the health of her fetus simply by no longer giving
permanents. Because of that significant difference, it has not been shown (as
required by statute) that Tammy Englund was similar in her ability or
inability to work as compared to the stylists who were excused from permanents
and allowed to concentrate on haircuts until their hands healed.
The problems with proving discrimination against Tammy Englund under
subdivision 1(6), the disability anti-discrimination statute, arise because
the extent of Tammy's disability, if any, was never "known" and there is no
proof on the record that she was a "qualified disabled person" under the Human
Rights Act.
The threshold inquiry in analyzing potential violation of subdivision
1(6) is whether Tammy Englund was a "disabled person" under the Human Rights
Act. The Administrative Law Judge concludes that the evidence in this case
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establishes that she was, because her physical impairment (headaches)
"substantially limited" (prevented her from performing permanents) a "major
life activity" (performance of her job as a hair stylist). Moreover, the
Employer regarded Tammy as suffering from such an impairment.
It is concluded, however, that Tammy Englund was not a "qualified disabled
person". If accommodation was made to her condition by relieving her from her
permanent waving duties, the very act of making the accommodation would take
her out of the class of "qualified" disabled persons because she would not be
able to perform permanents, an essential function required on her job. The
Employer's Salon Employee Handbook (Exhibit 9) lists performance of "permanent
waving" as a "main duty" of a stylist, and Tammy Englund's own action
reinforces that view. She testified that she interpreted Mr. Brennan's
directive to produce a doctor's note allowing her to return to work as a
"full-time hair stylist" to mean that she could come back whenever the doctor
said it was safe for her to perform permanents. It is, therefore, apparent
that both the Charging Party and the Respondent regarded permanent waving as
an "essential function" of Ms. Englund's job. Therefore, the record fails to
show that she was a "qualified disabled person" who could be discriminated
against.
Another element of establishing a cause of action for disability
discrimination under the Act is that the disability be "known". While it is
true that the Employer regarded Ms. Englund as disabled in that she had a
physical impairment that prevented her from performing permanents, the extent
of that disability and how to properly "accommodate" to it were never
ascertained. All that was known was that Tammy got headaches when she gave
permanents. The fact that she had not gotten a headache while in the shop
performing other duties is not enough, standing alone, to establish that she
would experience no further problems during the term of her pregnancy if she
continued working in an area where she could smell the offending,
headache-inducing fumes. It is concluded that before the Employer had to
"accommodate" to Tammy's problem of headaches while performing permanents, it
had to know more about the extent to which it would be safe for the Charging
Party to stay in the area of exposure to permanent fumes. Mr. Brennan and his
managers testified that, had they learned that Dr. Kaplan specifically
authorized Tammy to keep working without administering permanents, that she
could have come back to work and concentrated on giving haircuts. Such an
assignment (a job restructuring) would have been a "reasonable accommodation"
under the Act, but the Employer is not responsible for making an adjustment if
the extent of the disability has not been made known to it.
GX was never informed by anyone that it was safe for Tammy Englund to work
in the presence of permanent fumes, so long as she avoided giving permanents
herself. While Tammy testified that she obtained a note from Dr. Kaplan
authorizing her to return to work without having to perform permanents, she
further testified that she did not present that note to Mr. Brennan or any
other representative of her Employer. Ms. Englund's testimony to the effect
that she produced the note for the Minnesota Department of Economic Security
in connection with perfection of her unemployment benefits claim, concluding
that Brennan would see the note because (she presumed) he had asked for it,
fails to prove that GX was ever informed of the existence of such a note. Nor
does it establish that any representative of the corporation ever actually saw
such a writing. In the absence of any proof that Mr. Brennan or any of his
managers saw a doctor's authorization specifically allowing Tammy to continue
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working without performing permanents, it is concluded that the Charging Party
never presented such a note to her Employer. It was only prudent on the part
of the Respondent to require Tammy to produce a writing from a doctor to
authorize her to work while still exposed to permanent fumes. Such prudence
reflects concern for the health of Tammy and her fetus and a proper concern
for avoidance of potential liability problems. It was a careful, correct
business decision which does not violate the Human Rights Act because the
extent of the Charging Party's disability, if any, was (and still is)
unknown. Absent that knowledge, there was no way for the Employer to assess
what should be done to accommodate the disability reasonably. In such a
circumstance, there was no violation of subdivision 1(6).
The Employer's position in this case is further strengthened by the fact
that Mr. Brennan made it clear to Tammy Englund during the course of her
October 28, 1983 performance review that he wanted her to remain in his
employ. Although he would not permit Tammy to work around permanent fumes
until her doctor said it would be safe to do so, he offered her employment in
his office or "leads" to possible openings with other companies. The
alternative employment offer within the company is viewed as an effort to make
a reasonable accommodation to Tammy's physical impairment within the meaning
and intent of the Human Rights Act.
The Complainant argues that GX should be held liable for discrimination
herein because it has not proven it relied on "competent medical advice" that
the presence of permanent fumes presented a "reasonable probable risk of
serious harm". See Lewis v. Remmele Engineering, Inc., 314 N.W.2d 1, 4 (Minn.
1981). She further argues that GX was required to establish that its decision
was supported by substantial evidence supporting the medical opinion. State
v. Metropolitan Airport Comm'n., 358 N.W.2d 432, 434 (Minn. App. 1984). The
above decisions set out elements of proof for establishing the "serious
threat" defense found at Minn. Stat. 363.02, subd. 5, which reads, in
relevant part:
"Subd. 5. Disability ... It is a defense to a complaint or
action brought under this chapter that the person
bringing the complaint or action has a disability which
in the circumstances and even with reasonable
accommodation ... poses a serious threat to the health or
safety of the disabled person or others. The burden of
proving this defense is upon the respondent."
The Administrative Law Judge concludes that the Complainant's argument
regarding the Respondent's failure to prove up a "serious threat" defense is
misplaced. Remmele and Metropolitan Airport Comm'n. both involved situations
where the employers screened out job applicants with pre-employment
physicals. In this case, the "disability" issue was raised by an existing
employee who had headaches and brought in a doctor's note excusing her from
performing permanents, an essential job function.
When an employer requires an employee to have a pre-employment physical,
the courts have held that it is the employer's duty to assure competence on
the part of the employer's doctor and that the medical advice generated by the
physical is reliable.
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Here, however, an employee in a post-employment situation brought a note
from her doctor which the employer relied upon and sought further
clarification. Where the employee takes it upon herself to provide a medical
opinion from the doctor of her choice, and when that opinion raises the
possibility of a serious threat to the employee's health or safety, the
employer is perfectly reasonable in seeking further clarification of the
medical situation from the employee's own source. Under the facts of this
case, GX did all it could to secure "competent medical advice" about what
should be done regarding Tammy Englund's employment. It was not the
Respondent's failure but rather Ms. Englund's own neglect in following through
with the Employer's reasonable, prudent request to get a "second" note from
Dr. Kaplan that prevented the Respondent from receiving sufficient evidence
upon which to base a final decision. Under such circumstances, GX should not
be held liable for discrimination.
R.C.L.
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