Federal Court Says Employee Work Attendance Is Essential

The opinion came after a packaging mechanic at GlaxoSmithKline, James Schierhoff claimed his employer fired him after missing work too often. Between June of 2000 and March 2002, he had “excused” absences for 172 workdays, which tallied to about 40% of his work time.   

The court said in its ruling that Schierhoff was unable to demonstrate that he could perform the essential functions of his job, stating that “an employee who cannot attend work cannot perform the essential functions of his job. This is true even when the absences are with the employer’s permission.”

Schierhoff was terminated in April 2002 in a memo that read:   “The Company has made numerous efforts to accommodate your personal absences. However, such absenteeism can no longer be tolerated. Your absences have impaired the operation of the Department and diminished your effectiveness to the Company. As a result, a decision has been made to terminate your employment . . . .”  

Schierhoff did not dispute the high frequency of his absences, but sued GSK claiming age and disability discrimination.  

He based the suit on a comment from his supervisor that acknowledged the Schierhoff’s frequent absences and disability. Schierhoff also argued that because his leaves were taken with GSK’s permission, they could not be used as a basis for employment termination.

The lower court granted summary judgment in favor of GSK. On appeal, the 8th Circuit found that Schierhoff was unable to establish a case of age discrimination because he could not prove he was performing his job to a legitimate expectation – he was only there about 60% of the time.

The appeals court said the fact that the absences were for legitimate medical and personal reasons was not relevant in this case. The court did not find Schiertoff’s evidence substantial enough to show a specific link between the alleged discrimination and, in this case, Schierhoff’s termination.