What I m Going to Discuss . . . 2 Coverage under Prongs 1 (actual) - - PDF document

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JOYCE WALKER-JONES SENIOR ATTORNEY ADVISOR OFFICE OF LEGAL COUNSEL SEPTEMBER 17, 2014

EEOC: Case Law Update: ADA Amendments Act (ADAAA) at Five

What I’m Going to Discuss . . .

2  Coverage under Prongs 1 (actual) and 3 (regarded as)  Qualified  Reasonable Accommodation  Drugs and Alcohol  Exams and Inquiries

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Purpose of the ADAAA

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Everything starts with Congress: “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their

• bligations and whether discrimination occurred, not

whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.” 29 C.F.R. §1630.1 (c)(4)

Recent Case Law: General Observations

4  Courts generally agree that Congress greatly broadened the

definition of disability and more plaintiffs are prevailing in showing disability (although many lose on other grounds)

 With a few exceptions, district courts have recognized and applied

changes to the “major life activities” element of the definition of disability – addition of “major bodily functions” seems to be accomplishing much of what it was intended to do

 EEOC’s non-exhaustive list of conditions that are virtually always

disabilities generally has been embraced by the courts

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General Observations (cont.)

5  Turnaround in case law especially notable with respect to: cancer,

HIV, multiple sclerosis, diabetes, and psychiatric conditions

 Expanded definition of disability has increased types of

accommodations employers must offer, particularly requests to telework or for flexible schedules

General Observations (cont.)

6  ADAAA statutory revision regarding consideration of mitigating

measures is unequivocal and courts generally have had little trouble reincorporating the pre-Sutton principle that mitigating measures should not be considered in determining disability

 Courts generally appear to be grasping the ADAAA provision that an

impairment that is episodic or in remission constitutes a disability if it would substantially limit a major life activity when active

 Courts seem to be having no trouble applying the ADAAA’s more

straightforward analysis for determining whether an individual was “regarded as” having a disability … However,

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General Observations (cont.)

7  With respect to the “transitory and minor” concept, a worrisome

line of cases has developed in which the courts have looked only to the duration (i.e., whether an impairment lasted or is expected to last six months or less) and have failed to analyze whether the impairment is “minor”

 The exception to “regarded as” coverage applies only where the

employer’s action was based on an impairment that both lasts fewer than six months and is minor

Anxiety & Depression

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Coverage: Prong 1

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Huiner v. Arlington School District, 2013 WL 542496(D.S.D.

• Sept. 23, 2013)

An art teacher alleged that she was discriminated based on her

anxiety and panic attacks when school district failed to accommodate her

Relying on plaintiff’s testimony and medical records that her anxiety

caused her to lose 30 lbs in eight months, care for her children, and sleep, court concluded that her anxiety constituted a disability

Coverage: Prong 1

Palacios v. Continental Airlines, 2013 WL 499866 (S.D. Tex. Feb. 11, 2013)

 Plaintiff, who received treatment and medication for depression

• ver a period of years, testified that his condition affected his ability

to sleep or eat – he either slept too much or could not sleep or eat; he just sat in his living room and did nothing; he didn’t care about going to work, losing his house, or making car payments

 Court held that the self-described severity of plaintiff’s depression

and its adverse effects on his working, sleeping, eating, and attention to ordinary care was sufficient to raise an issue that he had a disability

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Back, Legs & Knees

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Coverage: Prong 1

Mazzeo v. Color Resolutions Int’l, LLC, 746 F. 3d 1264 (11th Cir. 2014)

 Court held that plaintiff’s herniated disc and resulting pain –

which had lasted for years and was serious enough to require surgery – substantially limited his ability to walk, bend, sleep, and lift more than 10 lbs

 Relevant factors in determining whether impairment is

substantially limiting include: difficulty, effort, or time required to perform the activity; pain experienced while performing it; length of time, or extent to which, it can be performed; effect

• n the operation of a major bodily function, etc.

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Coverage: Prong 1

Summers v. Altarum, 740 F. 3d 325 (4th Cir. 2014).

 Plaintiff fell and fractured his left leg, tore a tendon in his left knee,

fractured his right ankle, and ruptured a tendon in his left leg. Following two surgeries, doctors restricted him from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for at least seven months.

 Relying on EEOC regulations that state that “effects of an

impairment lasting or expected to last fewer than six months can be substantially limiting,” 4th Cir. reversed the district court’s holding that a “temporary injury” cannot be a disability

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Coverage: Prong 1

Rocco v. Gordon Food Serv., 2014 WL 546726 (W.D. Pa. Feb. 10, 2014)

 A delivery driver alleged that he was denied a reasonable

accommodation and terminated based on a knee injury, which initially caused pain requiring prescription meds and limited his ability to walk or lift

 Court held that because the plaintiff’s alleged limitations, including

his inability to concentrate or sleep (caused by the pain meds), had resolved by the time of the employment action, he failed to establish that he had a disability

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Diabetes & Hypertension

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Coverage: Prong 1

Willoughby v. Connecticut Container Corp., 2013 WL 6198210 (D.

• Conn. Nov. 27, 2013)

 Plaintiff with Type II diabetes and high BP experienced an episode

• f low blood sugar and dehydration at work, which caused him to

pass out. Despite evidence that the incident was likely diabetes- related, he was terminated allegedly for sleeping on the job

 Court held that because the plaintiff experienced symptoms due to

diabetes, which is a disease that affects the functioning of the endocrine system, and EEOC regulations list diabetes as an impairment that easily should be concluded to be a disability, a jury could easily conclude that he had an impairment that substantially limited one or more of his major life activities

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Coverage: Prong 1

Gogos v. AMS Mech. Sys., 737 F.3d 1170 (7th Cir. 2013)

 A welder sought leave for medical treatment of his high blood

pressure, which “spiked to very high” and caused intermittent vision loss, sometimes for a few minutes at a time

 Reversing the district court, the 7th Cir. held the relevant issue was

not how long Gogos’s episodes of higher-than-normal blood pressure and vision loss lasted but, rather, whether they substantially limited a major life activity when they occurred

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Pregnancy-Related Impairments

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Coverage: Prong 1

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Price v. UTI United States, Inc., 2013 WL 798014 (E.D. March 5, 2013)

 Defendant terminated employee three weeks after she gave birth via

cesarean section

 Court held that although pregnancy is not a physical impairment

under the ADA, plaintiff introduced evidence of pregnancy- related physiological disorders affecting her reproductive system sufficient to raise a genuine issue of material fact as to whether she meets the definition of a person with a disability

Coverage: Prong 1

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Wonasue v. U of Md Alumni, 2013 WL 6158375 (D.Md. Nov. 22, 2013)

While pregnancy-related complications may rise to the level of an

ADA disability, plaintiff’s single instance of more severe than typical morning sickness did not because there were no subsequent medical restrictions

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Prong 3: “Regarded as”

21  Terms “substantially limit” and “major life activity” are not

• relevant. Regarded as coverage no longer requires a showing that

an employer believed the impairment substantially limited a major life activity

 Only two elements:

 Employer took employment action  Because of an individual’s actual or perceived

impairment that was not both transitory (lasting or expected to last six months or less) and minor

Impairment was “Transitory & Minor”

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Reynolds v. Ocean Bio Chem., 2014 WL 495354 (M.D. Ala.

• Feb. 5, 2014)

 Court concluded that plaintiff’s fractured ankle that occurred

in February and was expected to limited her ability to stand or walk until early June was transitory and minor Bush v. Donahoe, 964 F. Supp. 2d 401 (W.D. Pa. 2013).

 An ankle/foot injury requiring a walking cast/boot for five

months, but no other treatment, was held to be transitory and minor

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“Regarded as” Coverage Satisfied

Stahly v. South Bend Transp., 2013 WL 55830 (N.D. Ind. Jan. 3, 2013)

 Management knew that the plaintiff was taking medication and had

an anxiety attack for which she was admitted to an emergency room, took FMLA leave, and was referred by EAP to a stress recovery center Lafata v. Dearborn Heights, 2013 WL 6500068 (E.D. Mich. Dec. 11, 2013)

 Decision to rescind a conditional job offer based on post-offer medical

• pinion that plaintiff should not lift more than 40 lbs showed that

employer regarded applicant as individual with a disability

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Qualified Individual With a Disability

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Demyanovich v. Cadon Plating, 747 F.3d 419 (6th Cir. 2014)

 Court noted that the job description did not identify lifting or any

• ther physical fitness requirements for a machine operator, thus

suggesting that they were not essential functions Henschel v. Clare Cnty., 737 F.3d 1017 (6th Cir. 2013)

 As a result of an above-the-knee amputation, plaintiff was no longer

able to haul an excavator using a truck with manual transmission. Court held there was a genuine issue of fact whether hauling an excavator was an essential function

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Qualified Individual with a Disability

Majors v. General Electric, 714 F. 3d 527 (7th Cir. 2013)

 As a result of a work injury, plaintiff was unable to lift more than 20

lbs and could not raise her right arm above shoulder level

 Job description noted that the position required “intermittent

movement of heavy objects”

 Court held that the ability to lift objects weighing more than

20 lbs was an essential function

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Reasonable Accommodation: Notice

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Cloe v. City of Indianapolis, 712 F. 3d 1171 (7th Cir. 2013)

 Court held that plaintiff did not request a reasonable accommodation

when she initially informed her employer that she had difficulty walking from her assigned parking space to her office but did request

• ne for her MS more than two months later when she submitted a

list of medical restrictions from her doctor, including one asking for “specified parking . . . if possible.”

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Interactive Process

EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. Apr. 22, 2014)

 Rather than rejecting employee’s request to telework as needed,

employer should have engaged in interactive process to explore reasonable alternatives

 Spurling v. C&M Fine Pack, 739 F.3d 1055 (7th Cir. 2014).  Court held that employer violated the ADA by abruptly ending the

interactive process and terminating plaintiff when further discussion would have identified a reasonable accommodation

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Types of Accommodations: Leave

Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4th Cir. 2013)

 Employer provided plaintiff, who was blind in one eye and who

developed a serious inflammatory condition in remaining eye, six weeks leave for treatment. When condition worsened, plaintiff asked for two more days but was fired.

 Court found the fact that plaintiff was able to look for work within 10

days of his termination was evidence that he could have returned to work if he had been given additional days of leave as requested

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Working from home or from remote location

EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014)

 As a result of IBS, plaintiff asked to telework as needed. Employer

• ffered several alternatives that plaintiff declined.

 Court acknowledged case law that held that telework is rarely an

effective reasonable accommodation but observed that cases in which an employee can fill all requirements on the job while working remotely has expanded as a result of technological developments

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So, what does a bag of chips have to do with reasonable accommodation?

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EEOC v. Walgreen Co., 2014 WL 1410311 (N.D. Cal. Apr. 11, 2014)

 Employee with Type II diabetes who had an hypoglycemic attack

was fired for opening and eating a bag of chips without paying

 Court held that there were factual issues as to whether the employer

failed to accommodate her rather than terminating her allegedly for violating the store’s anti-grazing policy

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Drug and Alcohol Use

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Shirley v. Precision Carparts, 726 F. 3d 675 (5th Cir. 2013)

 After overdosing on Vicodin, plaintiff entered an in-patient

treatment program that required him to abstain from opioid use before returning to his position. Employer terminated plaintiff after he prematurely checked out of treatment program a second time

 Plaintiff argued that employer’s decision was not on the basis of his

illegal drug use but, rather, was on the basis of his failure to complete drug treatment plan

 Court rejected this argument because the requirement to

complete treatment was based on his illegal drug use

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Exams & Inquiries

Owusu-Ansah v. Coca-Cola, 715 F. 3d 1306 (11th Cir.), cert. denied, 134

• S. Ct. 655 (2013)

 During a meeting with his supervisor about alleged mistreatment,

plaintiff became agitated and banged his hand on the table and said that someone was “going to pay for this”

 Concerned that plaintiff had made a threatening statement,

employer requested that he meet with a psychologist who specialized in crisis management and threat assessment

 Court found that medical exam was job-related and

consistent with business necessity

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Unresolved/Evolving Issues

 What type and amount of evidence is sufficient to establish disability?  How do new rules apply to pregnancy-related impairments?  Does the regarded as prong apply to claims where employer had

no knowledge of impairment at issue?

 Will the law’s expansion of major life activities to include thinking

and concentrating increase charges alleging discrimination based on intellectual and other mental disabilities?

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Best Practices

 Assume – except in extraordinary cases – that the

applicant or employee has a disability.

 Focus on whether the person is qualified – whether he

can perform the essential functions of the job with or without reasonable accommodation.

 Make sure that written job descriptions accurately

capture the essential functions of the jobs and the skills and abilities needed to perform those essential functions

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Best Practices (cont.)

 Adopt or revise internal reasonable

accommodation procedures to conform to ADAAA’s broadened definition of disability

 Engage in the interactive process in good faith to

determine whether a reasonable accommodation can be provided

 Avoid making assumptions or generalizations based

• n diagnoses or past medical history about an

individual’s current ability to do the job

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Best Practices (cont.)

 Review how you screen employees for promotion to

assess whether the screening process could adversely affect individuals with disabilities

 Make sure decision makers are aware of the range of

possible accommodations, including: new equipment or devices or modification of existing equipment and devices; policy modifications; job restructuring; leave; telework

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For More Information

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 For links to the ADAAA, the final regulations, and Question

& Answer documents on disability issues, please see EEOC’s website www.eeoc.gov

 Or, contact:

Joyce Walker-Jones Senior Attorney Advisor Joyce.Walker-Jones@eeoc.gov (202) 663-7031