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ADA Case Law Update
Joyce Walker-Jones
Senior Attorney Advisor
EEOC
September 2016
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Prong 1: Substantially Limited
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Back/Leg Impairments
· Green v. Teddie Kossof’s Salon & Day Spa, 2015 WL 5675463 (N.D. Ill. Sept. 24, 2015). Massage therapist alleged spa failed to reasonably accommodate a chronic condition that causes episodic back pain. When condition flares, pain radiates across hip and down legs, causing numbness that makes it difficult for her to walk, stand, or sit for long periods of time, or to sleep.
· Note: could have argued substantial limitation in musculoskeletal function.
· Citing the ADAAA (impairments that are “episodic or in remission” are substantially limiting if they would be when active), the court held that plaintiff meets the definition of an individual with a disability.
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Depression
· Aptaker v. Bucks Cty. Intermediate, 2015 WL 5179183 (E.D. Pa. Sept. 3, 2015). Plaintiff had been treated for more than one year for generalized anxiety and depression. Court rejected employer’s argument based on pre-ADAAA case law that condition was “a temporary, non-chronic impairment of short duration.”
· Held: ADAAA “expressly rejects the practice of looking at the duration.” Duration can be a relevant fact, but no bright line. Nothing in the ADA distinguishes “chronic from non-chronic impairments” and “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.”
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Diabetes
· Bernadotte v. New York Hosp. Med. Ctr. of Queens, 2016 WL 792399 (E.D.N.Y. Feb. 26, 2016). Plaintiff alleged her diabetes causes impaired vision, chronic head pain, and difficulty standing and walking for extended periods of time.
· Note: could have argued diabetes substantially limited endocrine function.
· Held: Reasonable jury could find that the plaintiff has a disability because the leg pain caused by her diabetes makes it difficult for her to stand.
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Obesity
· Morris v. BNSF Ry. Co., 817 F. 3d 1104 (8th Cir. 2016). Plaintiff alleged BNSF unlawfully withdrew job offer. On a post-offer medical questionnaire, he indicated that he was 5”10 tall, weighed 270 lbs., considered his overall health as “good,” and had once been diagnosed as “pre-diabetic” (but wasn’t diabetic).
· District court found that because plaintiff did not have any medical condition caused by or associated with his obesity, he did not have a disability.
· Held: Obesity is not a disability unless it results from an underlying physiological condition
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PTSD
· Rodgers v. Gary Cmty. Sch. Corp., 2016 WL 795890 (N.D. Ind. Mar. 1, 2016). Plaintiff alleged PTSD resulting from a sexual assault at work substantially limits her sleeping, thinking, concentrating, interacting with people, and communicating.
· Court cited EEOC’s ADA regulations stating PTSD “should easily be concluded” to substantially limit brain function, but noted neither of the parties brought the regulations to the court’s attention.
· Held: Based on the plaintiff’s testimony (her medication makes it “hard to kind of think” and concentrate; everything needs to be written down; if she is thrown off, she “walks in circles” and has to regroup; her relationship with husband has changed; she is “not good” with people standing behind her), there was sufficient evidence to permit a reasonable jury to find she was substantially limited in the MLAs she alleged.
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Pregnancy-Related Complications
· Verone v. Great Wolf Lodge, 2016 WL 1393393 (M.D. Pa. Apr. 8, 2016). A massage therapist alleged that because her job required her to stand for long periods of time, she experienced cramping and pain throughout her stomach and chest, which limited her ability to lift, walk, think, bend, care for herself.
· Held: Plaintiff’s allegations were sufficient to state a claim under the ADA compared to the plaintiff in Oliver v. Scranton Materials, Inc., 2015 WL 1003981 (M.D. Pa. Mar. 5, 2015), who made vague references to pregnancy-related complications.
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Vision Impairments
· Leone v. Alliance Foods, Inc., 2015 WL 4879406 (M.D. Fla. Aug. 15, 2015). Plaintiff alleged that he was terminated after missing work because of an eye injury that resulted in a staph infection and corneal infiltration.
· Held: Because the plaintiff’s eye had improved 16 days after the injury, he failed to show that his impairment, which was “undisputed short-term in duration,” substantially limited his ability to see.
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Qualified: Essential Functions
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Driving a Bus
· Shell v. Smith, 789 F.3d 715 (7th Cir. 2015). Mechanic’s helper was told by new city transit system general manager that he would be terminated unless he obtained a Commercial Driver’s License (CDL). Because of his hearing and vision impairments, he could not get a CDL, and he was fired.
· Summary judgment on ADA claim reversed. Although job description stated incumbent “may occasionally” drive buses to field locations, plaintiff had worked for 12 years without driving a bus.
· Held: Absent proof that driving a city bus was an essential function of the mechanic’s helper job, Plaintiff’s failure to meet the CDL requirement was not a legitimate basis for his termination.
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Limited Number of Employees
· Jacobs v. N.C. Admin. Office of the Courts, 780 F. 3d 562 (4th Cir. 2015). Deputy clerk who began experiencing extreme stress and panic attacks asked to be reassigned from front counter duties. Employer denied request on grounds that working at front counter was an essential function of her job.
· Held: “Ample evidence” for a reasonable jury to conclude that providing customer service at front desk was not an EF since 29 other clerks were potentially available to perform this job duty.
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Attendance and Work Schedules
· EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc). A resale buyer who worked as an intermediary between steel and parts suppliers asked to telework for up to four days per week on an ad hoc schedule to accommodate her irritable bowel syndrome.
· Held: “Regularly attending work on-site is essential to most jobs, especially the interactive ones.” An employee’s personal viewpoint and experience, alone, are not sufficient to determine what is an essential function.
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Ability to Handle Stress
· Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015). Plaintiff, who had major depressive disorder and had threatened to kill his supervisor and other coworkers on at least five occasions, was terminated after he took two months of leave and was cleared by his psychologist to return to work.
· Held: An essential function of almost every job is the ability to appropriately handle stress and interact with others. Court noted that while an employee might be qualified despite adverse reactions to stress, this is not the case where stress led to multiple threats to kill in “chilling detail.” Court also rejected plaintiff’s argument that he would have been qualified with a new supervisor.
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Interacting with Others
· Osborne v. Baxter Healthcare Corp., 798 F.3d 1260 (10th Cir. 2015). Plaintiff, who is deaf, received a conditional offer to work as a plasma center technician. HR withdrew offer on the grounds that she would not be able hear alarms on machines used to extract blood.
· Held: Genuine issues of material fact whether plaintiff could perform essential function of verbal communication when defendant’s expert did not meet plaintiff or test her abilities; nor did he visit the workplace or have any familiarity with its daily operations.
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Working Well with Others
· Walz v. Ameriprise Fin., Inc., 779 F.3d 842 (8th Cir. 2015). Plaintiff, who had bipolar disorder, received a warning after behaving erratically (e.g., scribbling illegible notes on the whiteboard during meetings, talking very rapidly in a way that did not make sense, being excitable and easily agitated, insulting supervisors, being “manic,” and doing other things that were “disturbing” to coworkers.
· Held: Plaintiff’s behavior rendered her unqualified to perform the essential function of “working well with others.”
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Reasonable Accommodation
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Notice of Need
· Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899 (8th Cir. 2015). Mgr., who was demoted for making a racist comment and claimed his medical condition contributed to his poor choice of words, admitted that he never requested an accommodation and did not provide employer with details about his alleged disability prior to the incident.
· Held: An employee who engages in misconduct and then learns he may be subject to disciplinary action cannot avoid punishment by informing the employer of a disability that allegedly caused the misconduct and then requesting accommodation.
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Interactive Process
· Aptaker v. Bucks Cty. Intermediate Unit No. 22, No. 2:14-2255, 2015 U.S. Dist. LEXIS 118212 (E.D. Pa. Sept. 3, 2015). Following a transfer to a new school and position, plaintiff began to experience depression. She eventually revealed her condition and requested a temporary reassignment. Defendant denied her request and subsequently recommended her for termination based on alleged performance issues.
· Held: Plaintiff’s disclosure of her condition and request for a temporary reassignment was sufficient to put defendant on notice that she had a disability and was requesting a reasonable accommodation, even though she did not use those specific words. Defendant failed to engage in the interactive process by following up with plaintiff or her doctors about her symptoms or limitations.
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Job Restructuring
· Minnihan v. Mediacom Commc’ns Corp., 779 F.3d 803 (8th Cir. 2015). State law made it illegal for a technician operations supervisor to drive for six months following a seizure.
· Held: Company did not have to eliminate driving because it was an essential function. Court also noted that an employer does not have to provide an accommodation that would cause other workers to work longer and harder, which plaintiff conceded was the result when the company temporarily relieved him of his driving functions.
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Working from Home
· EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc). A resale buyer who worked as an intermediary between steel and parts suppliers requested that she be allowed to telework on an ad hoc basis because of irritable bowel syndrome.
· Held: Affirming summary judgment for the employer, the court held that an employee’s request to telecommute up to four days per week was not reasonable because it would have removed at least one essential function of her job – regular and predictable on-site job attendance. Court also noted that the defendant had allowed the employee to telecommute on an ad hoc basis three times, each time for a period of one to two months, but she had never been able to establish regular and consistent work hours, and she had failed to perform the core objectives of the job.
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Leave
Basic Rules:
· Employer may have to modify maximum leave policy when employee needs more leave as a reasonable accommodation.
· Employer policies requiring employees returning to work from leave to be “100% healed” may violate the duty of reasonable accommodation.
· Reassignment must be considered as an option for employees who cannot return from leave to their current jobs.
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Reassignment
· Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422 (4th Cir. 2015). After an incident with a student, an asst. principal requested to be reassigned to a less stressful school environment. Plaintiff claimed that he was not reassigned until four months after he made request and his salary was reduced when the CBA dictated that employees at schools with fewer students have lower salaries.
· Held: The fact that a less stressful job might result in lower pay did not mean that defendant violated the ADA.
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Undue Hardship
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Accessible Software
· Reyazuddin v. Montgomery Cty., 789 F.3d 407 (4th Cir. 2015). New county call center had technology that was not accessible to blind Information and Referral Aide. Instead of moving her to new call center, county reassigned her to “comparable employment” of 4 to 5 hours of “make work” a day. Plaintiff estimated that the cost of making the technology accessible was $129,000.
· Held: Reversing summary judgment, the Fourth Circuit concluded that the district court improperly weighed conflicting evidence on undue hardship and improperly relied on the county’s small reasonable accommodation budget rather than its overall budget.
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ASL Interpreter
· Searls v. Johns Hopkins Hospital, 2016 WL 245229 (D. Md. Jan. 21, 2016). Plaintiff, who is deaf, applied for a position as a nurse clinician. After accepting the offer, she requested an ASL interpreter. Citing cost, the hospital denied her request for accommodation and rescinded the job offer.
· HELD: The employer failed to prove that the projected $120,000 annual cost of an ASL interpreter was an undue hardship. Rejecting Hopkins’ focus on the budgets of the department and unit into which plaintiff was hired, the court found that the cost of an interpreter was 0.007 % of the hospital’s $1.7 billion operational budget.
· The court also rejected Hopkins’ direct threat defense, finding that the hospital conducted no individualized assessment of the threat plaintiff may have posed.
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Drugs and Alcohol
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Alcoholism
· Jarvela v. Crete Carrier Corp., 776 F.3d 822 (11th Cir. 2015). Plaintiff sought reinstatement to his motor vehicle driver position after being released without restrictions from an alcohol treatment program. Discharge papers listed his diagnosis as “alcohol dependence” and described its probable duration as “chronic.”
· Held: DOT examiner decision to clear plaintiff to work did not show that he met all DOT medical standards because examiner never explicitly stated that plaintiff did not have a “current clinical diagnosis of alcoholism.”
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Direct Threat
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Belief Justified
· Michael v. City of Troy Police Dep’t, 808 F.3d 304 (6th Cir. 2015). Patrol officer, who had a brain tumor, was suspended after dept. learned he had empty steroid vials with labels in foreign languages and labels that stated “for veterinary use only,” secretly recorded his wife during counseling sessions, and was reported to have accompanied a cocaine dealer to several drug deals.