A firefighter with PTSD asks to bring his dog to work as a reasonable accommodation. The dog helps calm him. His psychologist supports the request.

Does the ADA require the employer to say yes?

Not necessarily.

In Fisher v. City of Lansing, a firefighter claimed that the city violated the ADA when it refused to let him bring his dog, Chet, to the fire station. Fisher had PTSD, and his psychologist recommended an emotional support animal to help manage his symptoms at work.

The court sided with the city.

The problem wasn't whether Fisher had a disability. It was whether the dog was necessary as a reasonable accommodation. To prevail on an ADA failure-to-accommodate claim, an employee must show that the requested accommodation is both reasonable and necessary — that it addresses an obstacle preventing the employee from performing an essential job function.

Fisher couldn't make that showing.

He admitted that he could perform his job without the dog. "Not well," as he put it, but he could perform it. His psychologist likewise couldn't identify any particular job duty Fisher could not perform without the animal. Instead, the doctor testified that the dog had a calming effect on him.

That's where the distinction between a service animal and an emotional support animal becomes important.

Under the ADA regulations governing public entities and public accommodations, a service animal is a dog individually trained to perform work or tasks directly related to someone's disability. Emotional support, comfort, companionship, and a calming presence, standing alone, don't qualify.

But employers need to be careful with that distinction.

Those definitions come from Titles II and III of the ADA. Title I (the part of the ADA governing employment) doesn't contain the same service-animal definition or automatically exclude emotional-support animals from consideration. The Job Accommodation Network therefore recommends that employers treat requests for both service animals and ESAs like other reasonable-accommodation requests: engage in the interactive process and determine whether the animal is needed because of the employee's disability.

In other words: "It's an ESA, not a service dog" should not end the conversation.

For employers, the better approach is:

1. Start the interactive process. Don't get hung up on labels.

2. Ask what limitation the animal addresses and how it helps the employee perform the job or access an equal workplace benefit.

3. Request appropriate medical documentation when the disability or need isn't obvious.

4. Focus on necessity, not preference. "This helps me" isn't necessarily the same as "I need this because of my disability."

5. Consider the actual workplace. Safety, sanitation, allergies, disruption, animal control, and essential job duties all matter.

6. Document the analysis. A categorical "no animals" rule is much harder to defend than an individualized ADA assessment.

The ADA doesn't require employers to turn every workplace into a dog- or peacock-friendly office.

But it does require them to treat "Can I bring my dog to work?" as an accommodation question, not merely a pet-policy question. 

Nineteen years in, I repainted the walls. Your handbook needs the same.

Your brain is built to notice what's new. That's not a flaw. It's a feature.

Novelty grabs attention and makes people curious. Wharton researchers Hengchen Dai, Katherine Milkman, and Jason Riis describe a "fresh start effect": people are more motivated to act after a clean break, like a new year, a birthday, or a Monday.

The Ohio Employer Law Blog is 19 years old. I built this website in 2007, and it looked like it.

This week, it got a new look. Same content and same opinions, just easier to navigate with better mobile responsiveness. 

Your handbook has the same problem. It hasn't been refreshed in years. Nobody notices it anymore. It's faded paint. Your employees walk past it every day without seeing it. And that faded paint has a cost.

1. Employees stop reading it. A policy no one reads is a policy no one follows.

2. Managers stop enforcing it. The handbook says one thing. The practice says another. A policy you don't follow can become evidence of pretext. Plaintiffs' lawyers love that gap. It's their Exhibit A.

3. The law moves on without it. Remote work. The Pregnant Workers Fairness Act. AI. If your handbook still reads like 2015, it's missing today's rules and today's risks.

4. Patching piles up contradictions. Add-on memos and one-off updates collide with each other. A clean rewrite lets you cut what you don't follow and clarify what you do.

Pick a policy at random.

Can your managers explain it without opening the handbook?
Does your team follow it exactly as written?
Is it current with the law?

If you hesitated on any of them, you have your answer.

A rewrite is a fresh start. Use it. Retrain your workforce. Coach your managers on enforcement. Get new acknowledgments signed. Apply a fresh coat of paint.

If you're ready to repaint your handbook, email me, or contact the Employment & Labor team at Wickens Herzer Panza.

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Here's what I read this week that you should read, too.

Wouldn't It Be Nice — via The Norah and Dad Show Podcast

Why Your Employees Override AI — via Harvard Business Review 

When Employees Fear AI Losing Control, HR Needs a Better Answer  — via EntertainHR

Meta employees ordered 'attorney/client privilege' hats while fighting child safety disclosures — via The Verge

Off the Clock, Beyond the Test: Cannabis Use and Workplace Impairment in New York — via The L•E•Jer

AI, And Experts, And Hallucinations, Oh My! — via Above the Law

The Most Dangerous Thing a New Manager Can Say Is 'I'll Fix This' — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Ways to remove barriers to hiring people with disabilities — via TLNT

The cup meltdown, the "Lost" finale, and other tantrums you've witnessed at work — via Ask a Manager

NLRB Restores Employer-Friendly Standard for Workplace Outbursts During Protected Activity — via Employment Law Letter

'I felt shame': former BA worker locked in legal battle after losing job of 30 years — via The Guardian

"Not Crazy About White People" Allegedly Appeared in an HR Report. What Could Possibly Go Wrong? — via Eric Meyer's Employer Handbook Blog

A New Era of Health Care Noncompetes: Emerging Models and the Future of Labor Mobility — via Trading Secrets

The doctor's note is vague. What should the employer do next? — via HR Dive

Peter Gabriel Reveals Full Details, Release Date for New Album o/i — via Consequence

That's the 6th Circuit, in a retaliation case that started with a groping complaint and ended with a pornographic slideshow.

Gertrude Crisp, an EMT at the Scioto Ambulance District, had her own take on the place. "[T]he inmates run[] the insane asylum."

Crisp met co-worker Joshua Gullett in 2012, when both worked at the Portsmouth Ambulance Department. She says he commented constantly on her body, asked to see her breasts, and "jokingly" touched her even after she said no. Same for any woman who gave him attention.

Around then, another EMT showed Crisp and others naked photos of Gullett, allegedly from an adult website called Fetlife.

Both Crisp and Gullett later landed at Scioto. In December 2018, Crisp says that while on shift together, Gullett talked about her body, tipped over the recliner she was sitting in, and tried to stuff her into a trash can. She also claimed that he told her they were alone and nobody would hear her scream as he touched her breasts.

That same night, Crisp reported Gullett's actions to her supervisor. In response, the employer made sure the two never worked the same shift. Gullett faced no other consequences. Crisp figured complaining more was futile. She filed no legal claim. She did tell anyone who would listen that he was "a predator."

Four(!) years later, Crisp sat down at work with two new EMTs to talk about "EMS culture." She warned them about predatory men in EMS. Then she showed them nude images of Gullett and his wife, who by then was also a Scioto EMT.

Scioto's board investigated and unanimously fired Crisp for showing nude pictures of a co-worker to other employees while on duty. The board member who led the investigation called it "way over the top." The pictures weren't necessary to warn anyone about Gullett, he said, and they could have made everyone uncomfortable.

Crisp sued for retaliation under Title VII. She lost.

Warning co-workers about harassment is protected activity. So may be sharing explicit material with HR when it's necessary to support a harassment claim. The court acknowledged as much. But in this case, the photos weren't necessary to make her point, and the wife had nothing to do with the alleged workplace misconduct. An employee who mixes protected and unprotected conduct can't use the first as a shield for the second.

Crisp's complaint was protected. Her misconduct in showing the photos wasn't. Your job as an employer is to understand the difference before you fire or otherwise take an adverse action against anyone.

Bostock says what it says. LGBTQ+ discrimination is sex discrimination under Title VII. Period.

A federal judge in Atlanta, however, just read it to say something else.

Tara Kulwicki is a lesbian who wants a child. Her employer's health plan covers female infertility treatment. But to get it, a woman has to prove infertility—by having procreative sex for months without conceiving, or by paying for failed rounds of artificial insemination.

Straight women get the free option. Kulwicki has to pay.

So she sued her employers, Cobb Hospital and Wellstar Health System, claiming it's sex discrimination to make her pay out of pocket to qualify for the same fertility benefits straight women can reach by having sex with men. The court dismissed her claim, and had to do some mental gymnastics with Title VII and Bostock to get there.

Let's start with what the court got right. Bostock didn't make sexual orientation a protected trait separate from sex. It gets "swept in" through the but-for test applied to sex. In other words, change the gay woman's sex and she becomes a straight man whose attraction to women the employer tolerates. If the employer treats the gay woman differently, it's because of sex.

The court even concedes the point in a footnote. Flip Kulwicki's sex while holding her attraction to women constant, and she switches from homosexual to heterosexual. A "nominal quirk" of the Bostock test, the court wrote.

Except it's not a quirk. It's the whole point of the Bostock holding.

The court tried to use that same logic to dismiss Kulwicki's claim. Flip her sex, and a male Kulwicki gets no infertility coverage at all, because the plan only covers women. Give him a wife but keep him unable to conceive through intercourse, and he pays for insemination just like she does. Her problem, the court said, is a trait "not unique to women or lesbians."

But her inability isn't a bad knee. It exists because she's a woman attracted to women, so the plan's free option—sex with a man—isn't open to her. That's exactly the discrimination Bostock forbids.

If discrimination against LGBTQ+ employees is sex discrimination, this case was wrongly decided. Not partly. Entirely. Bostock says what it says. It doesn't come with an asterisk, and the Kulwicki court should not have applied one.

There are 35 things your workplace does not want to have in common with the Premier League's investigation of Manchester City.

That's how many of the 115 Premier League charges against Man City have nothing to do with the club's finances. They're for failing to cooperate with the league's investigation.

According to multiple reports, an independent commission has found City guilty of 114 of those 115 charges. Eighty involve breaches of financial rules from 2009 to 2018. The other 35 cover how City behaved once the league started asking questions. Sanctions haven't been set, and City is expected to appeal. But points deductions, even expulsion, are both on the table and deserved.

Nearly a third of the case isn't about what City did. It's about how City responded.

Employers make the same mistake all the time. And the Supreme Court has already told juries what to do about it. In Reeves v. Sanderson Plumbing, the Court held that a jury can infer from a false explanation "that the employer is dissembling to cover up a discriminatory purpose." Lie about why you fired someone, and the lie becomes evidence of the very thing you're denying.

Juries take it from there.

For example, Luri v. Republic Services. Ron Luri refused to fire three employees because of their age. Republic fired him instead. His supervisors then fabricated evidence and backdated documents to build a sham paper trail justifying the termination. A Cleveland jury awarded $46.6 million, $43.1 million of it punitive, the largest retaliatory discharge verdict in Ohio history. Ohio's tort-reform cap later cut the punitives to $7 million. Still.

Or Zubulake v. UBS Warburg. UBS failed to preserve emails in a sex discrimination case, even after its own lawyers warned it to. The jury got an adverse inference instruction and returned $29.3 million, more than $20 million of it punitive. According to Zubulake, jurors were already convinced of the discrimination. The punitive number was about the emails.

And Boyle v. Wayfair. In April, a Boston jury rejected Mary Boyle's age discrimination claim. But it heard evidence that after she complained, management solicited negative feedback from her subordinates. Eight days after she returned from medical leave, she was on a PIP. The jury found retaliation and awarded $4.75 million, $4 million of it punitive.

In each case, what the employer did after the complaint cost more than the complaint itself.

City will fight the 80 on the merits. The 35, however, were self-inflicted. Don't hand a jury your own 35.

Harassment prevention can't stop at the boardroom WIRTW #811 (the 'uni' edition) Can HR listen in on an employee's doctor's appointment? Catching the thief red-handed isn't enough to win a trade secrets case Your shift supervisors can't have it both ways with tipped wages