In this week's Alabama Law Weekly Update, we report on two cases from the Eleventh Circuit Court of Appeals. The first case discusses the reasonable accommodation requirement under the Americans with Disabilities Act and the second case discusses the severe and pervasive standard for sexual harassment claims asserted under Title VII.

Michaelene Tetteh v. WAFF Television, Raycom Media, Inc., 2016 WL 624393 (11th Cir. Feb. 17, 2016).

Michaelene Tetteh (“Tetteh”) was employed by WAFF Television and Raycom Media, Inc. (collectively “WAFF”) as a sports anchor, reporter, and photographer. In that capacity, Tetteh attended sports events, served as an on-air personality, and shot footage using a camera that WAFF provided. In February 2009, Tetteh suffered an injury which prevented her from lifting the camera provided by WAFF. WAFF told Tetteh that she could not return to work until she was able to carry the camera it provided. When Tetteh eventually returned to work, WAFF informed her that she had been replaced and that no other positions were available. Tetteh filed a lawsuit against WAFF, alleging disability discrimination in violation of the Americans with Disabilities Act (the “ADA”). The trial court dismissed Tetteh's lawsuit because Tetteh failed to show that she could perform the essential functions of her job with or without a reasonable accommodation. Tetteh appealed.

The ADA prohibits employers from discriminating against “qualified individuals” on the basis of disability. A person is a “qualified individual” when she is able to perform the “essential functions” of her job with or without a “reasonable accommodation.” “Essential functions” are the fundamental job duties of the employment position. A “reasonable accommodation” is an accommodation that enables an individual with a disability to perform the essential functions of that position.

The Eleventh Circuit first determined that video photography was an essential function of Tetteh's job. Tetteh argued that WAFF should have accommodated her disability by providing a lighter camera. However, Tetteh failed to present evidence of a lighter camera that was compatible with WAFF's broadcasting requirements. Under the ADA, an employee is not entitled to the accommodation of her choice, but only to a reasonable accommodation. The Eleventh Circuit upheld the dismissal of Tettah's lawsuit.

Sabrina C. Jackson v. State of Alabama Department of Corrections, et al., 2016 WL 696998 (11th Cir. Feb. 22, 2016).

Sabrina Jackson (“Jackson”) was employed by the Alabama Department of Corrections (“the Department”) at the Tutwiler Prison for Women. Leon Forniss (“Forniss”) was the warden at the Tutwiler Prison for Women during Jackson's employment. During the course of her employment, Jackson claimed she was subjected to sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended. As the basis for her sexual harassment claim, Jackson identified several instances of alleged harassment that occurred over a three month period while she worked with Forniss. Jackson claimed that (1) on three or four occasions, Forniss ordered her to sit near him after tightening his pants around his crotch; (2) on two occasions, Forniss stood close enough behind her while she was sitting at the computer that she could feel his breath on the back of her neck; and, (3) on about four occasions, he told her she looked good or smelled good. Jackson filed a lawsuit against the Department and Forniss. Jackson claimed that Forniss's conduct created a hostile work environment in violation of Title VII. The trial court found that Forniss's alleged conduct did not violate Title VII and dismissed Jackson's lawsuit. Jackson appealed.

In general, there are two types of sexual harassment claims. The first type of sexual harassment claim may arise through a tangible employment action, such as a pay decrease, demotion or termination. The second type of sexual harassment claim may arise through the creation of a hostile work environment caused by sexual harassment that is sufficiently severe and pervasive to alter the conditions of employment. Among other things, an employee pursuing a claim of sexual harassment resulting in a hostile work environment must show that the harassment was sufficiently severe and pervasive to alter the terms or conditions of employment and create a discriminatorily abusive work environment.  The employee must show that the harassment was both subjectively and objectively severe and pervasive.  Harassment is subjectively severe and pervasive if the complaining employee perceives the harassment as severe and pervasive. Harassment is objectively severe and pervasive if a reasonable person in the employee's position would judge the harassment severe and pervasive.

In evaluating whether harassment is objectively severe and pervasive, courts consider the following: its frequency; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with employee's work performance. The Eleventh Circuit concluded that Jackson failed to produce sufficient evidence for a reasonable jury to conclude that Forniss's alleged conduct was severe and pervasive. The Eleventh Circuit upheld the trial court's dismissal of Jackson's sexual harassment claim.