Is intern’s lip ring a reasonable accommodation? Manager’s mistake sends ADA case to trial

A manager’s mistake during discussions about an intern’s lip ring doomed an employer’s chance to nip an ADA case in the bud. Here’s what went wrong:  

In January 2017, an Arizona school district hired Addam Brown – a doctoral candidate at a nearby university – as a volunteer school psychologist intern.

After Brown’s internship was approved, he signed a volunteer agreement that stated his internship was voluntary and unpaid. It also stated Brown was eligible to receive an incentive package – a laptop and a $100 professional development stipend – “upon completion of the internship if funding permits.”

Brown reported to the special education director, meeting with him in one-on-one sessions for two hours each week. Brown also provided counseling to students.

Is lip ring a reasonable accommodation?

On Feb. 13, Brown spoke to his manager, the special education director, about potential accommodations for his lip ring, explaining that it helped with his sensory needs. The manager discouraged Brown from wearing the lip ring, saying it was against school policy.

Afterward, Brown attempted to chew gum as an alternate accommodation, but it made his jaw hurt. Brown explained the problem to the manager, who allegedly said it wasn’t a problem and “the lip ring was a reasonable accommodation in this instance.”

Fired for wearing lip ring

On April 11, Brown received a “Termination of Internship” letter from the manager because he had continued to wear the lip ring despite his manager “informing him that that the piercing violated school policy.”

Brown filed an ADA suit, asserting claims of discrimination and retaliation. Specifically, he alleged the district discriminated against him when it failed to provide a reasonable accommodation and retaliated against him for requesting an accommodation related to his disability.

The district filed a motion for summary judgment, arguing that Brown was not an employee so he could not bring employment claims under the ADA.

Court examines preliminary issue

First things first: The court noted that the district had a point – an individual has to be an employee to bring employment discrimination and retaliation claims.

Here, Brown was a volunteer intern. Did that count as an employee?

The Ninth Circuit – followed by this Arizona federal court – has adopted six factors to help determine whether a “non-traditional worker is an employee,” the court explained. They are whether:

1. the organization can hire and fire or set work rules for the individual
2. the organization supervises the individual’s work, and if so, the extent of that supervision
3. the individual reports to someone in the organization
4. the individual has the ability to influence the organization
5. the parties intended for the individual to be an employee, as expressed in written agreements or contracts, and
6. the individual shares in profits, losses and liabilities of the organization.

The list is not exhaustive, and courts must consider “all incidents of the relationship.”

Here, the court said the first four factors clearly favored viewing Brown as an employee, as:

• The district hired, fired and set rules for him.
• Brown was supervised by and reported to his manager, the special education director, and
• Brown’s job duties (providing counseling to students) indicated that he “exerted a considerable degree of influence to the psychological services” the school offered.

Only the fifth and sixth factors supported a finding that Brown was not an employee, the court determined. And the fifth factor was a really close call, the court explained. Why? While the agreement said Brown wasn’t an employee, it also said he was eligible for an incentive package. That undermined the district’s argument that Brown wasn’t an employee, the court said.

Nail in the coffin: Discussion about accommodations

Plus, the court gave significant weight to the discussions about potential accommodations.

The manager met with Brown to discuss potential accommodations and noted that their conversation involved “accommodations for ring: gum and/or other chewable items.” Moreover, Brown was terminated because he didn’t comply with the accommodations the district granted him, the court said.

In the court’s view, if Brown was a volunteer and not an employee, then his manager  “would have informed him that the district was not required to provide him accommodations under the ADA.” But the “opposite occurred here,” the court stressed.

Ultimately, the court decided Brown was an employee and could bring ADA claims against the district. The court denied the district’s motion for summary judgment, so the case will proceed.

Though this case is in the early stages, it’s definitely one to watch. We’ll keep you posted. In the meantime, if you missed it, check out Tattoos at work: What’s OK and what’s not.

Brown v. Riverside Elem. Sch. Dist. No. 2, No. CV-21-01569-PHX-DJH, 2023 U.S. Dist. LEXIS 139128 (D. Ariz. 8/9/23).