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Judge Montalvo issued a decision for the Western District of Texas regarding the Americans with Disabilities act.  In Molina v. DSI Renal Inc., 2012 WL 29348 (W.D.Tex. 1/4/12) the court deneid the employer's motion for summary judgment.  The case was filed under the Texas Commission on Human Rights act, but the court interpreted based on the ADA Amendments Act.  Ms. Molina had suffered from back problems for years.  Her employer, however, suddenly decided it could no longer accommodate her.   The employer would not honor her lifting restrictions, saying they would no longer allow anyone to work unless they were fully released by their doctor.  On summary judgment, the employer argued that her back impairment was not a disability.  

But, the judge correctly stated that under the ADA amendments, to determine whether someone is "substantially limited," he must look not to the outcomes that the person can achieve.  Since, an impairment need not restrict or significantly restrict the individual from performing a major life activity in order to be considered "substantially limited."  Instead, as the EEOC guidance points out, the court should "compare the condition under which the individual performs the major life activity" or "the manner in which the individual performs the major life activity" as compared to the general population.  This comparison, said the court, could include the pain with which the individual performs the major life activity.  

As the court noted, the employee learned to work through her pain.  She was able to perform many of the same tasks after her back injury as she did before the injury.  The court noted that she was without pain mostly because she took pain medication.  She still suffered from a disability, concluded the court. 

Under the old ADA, Ms. Molina would have lost with this evidence.  It is the ADAAA's requirement that a judge look at her disability without the benefit of medication that made a substantial difference in her outcome.  The court found that a 20 lb lifting restriction was a substantial limitation on a major life activity of lifting.  He rejected pre-ADAAA decisions which had specifically found that a 20 lb lifting restriction was not a substantial limitation. See additional comments at Disability Blog. 

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The ADA was amended substantially in 2009.  See prior discussion here.  With the new ADA in place, disability cases will be more about the accommodation process and less about whether a person is disabled.  Workplace Prof discusses a case that sheds some light on the accommodation process.  An employee seeking accommodation must present his/her concerns to the employer.  The employer is then required to respond by either providing the accommodation or offering alternatives.  This is known as the "interactive process."  

Some employees, inspired by some limited knowledge of the law, then argue with the employer and essentially refuse particular accommodations.  The employer is not required to provide the requested accommodation.  It is only required to provide an accommodation that meets the employee's need.  In Gratzi v. Office of Chief Judges, 601 F.3d 674 (7th Cir. 2010), the employee was a court reporter who had an incontinence problem.  She needed a nearby bathroom as an accommodation. She needed to get to a restroom on a moment's notice.  But, her position was reorganized into a pool position in which she no longer was assigned to a particular worksite.  There was no reason to believe this reorganization was motivated by discriminatory intent. 

The employer suggested a number of possible accommodations, all of which were rejected by Mr. Gratzi.  She insisted on reinstatement to her previous position.  Reinstatement to her previous position meant she would be assigned to one particular worksite.  The court reporter did not seek her doctor's advice regarding some of these proposed and then rejected accommodations.  She simply rejected them outright.  The appellate court found in favor of the employer.  The plaintiff, did not, said the court, explain why the offered suggestions would not work.  She did not explain why these alternatives would not allow her to get to a restroom within five minutes, as she needed.  

Some of the alternatives would have required Ms. Gratzi to raise her hand for a break.  She argued that this would cause her embarrassment, possible resentment by other court reporters who would have to cover for her, and would disrupt court proceedings.  But, as the 7th Circuit said, this was a detriment more to her employer than to the employee.  The court felt she did not do enough to reach an accommodation.   A few employees have come to see me lately expressing their resentment at the employer's apparent unwillingness to provide the requested accommodation.  But, the law does not require the employer to provide you the accommodation you want.  It only requires the employer to provide an accommodation that meets your medical needs.  

As Workplace Prof points out, the employee's outright rejection of several alternatives made her an unsympathetic plaintiff.  Sympathy does count in litigation.  That five minutes of feeling good when you tell the manager "no" can cause long term pain and regret.  It would serve any employee much better if they articulate some objective reason why an alternative will not work.  Even better, check with your doctor before responding to the employer's offer. 

Note that the employer in Gratzi was allowed to reorganize in ways that added to the employee's difficulties, so long as the reorganization was done without discriminatory intent.  

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 Under the Americans with Disabilities Act, it is unlawful to inquire unreasonably into a person's medical background.  Under the ADA prior to the 2009 amendments, a person whose disability was controlled by treatment was not considered disabled.  So, what happens when a person with controlled epilepsy is asked about his medications and then is rejected?  Well, in Harrison v. Benchmark Electronics Huntsville, Inc., the court found that the applicant was entitled to file suit even though, under the pre-amendment ADA, the person was not considered disabled.  

In this decision, the 11th Circuit joined several other circuits (not including the 5th) in finding a private right to sue.  The applicant was a temporray worker for the employer.  The employer frequently hired temp workers permanently.  The employer routinely asked for a drug test as part of the application procedure.  Mr. Harrison tested positive for barbituates, which he took for epilepsy.  The applicant explained the nature of his medication.  The company's medical review officer confirmed the medical requirement of the medicine.  But, without explanation, the employer rejected Mr. Harrison's application.  

Under the old ADA, the EEOC rejected Mr. Harrison's charge, saying he was not disabled.  His epilepsy was controlled by medication.  The employee filed suit.  On appeal, the 11th Circuit Court of Appeals found that a private right to sue was available to persons who are not disabled due to improper medical inquiries.  As Law Professor points out, the utility of this finding may wane as we get further down the road from the 2009 amendments.  This ruling specifically applies to non-disabled persons.  So, the effect could be opposite.  Improper medical inquiries to persons without a disability, controlled or otherwise, may actually continue.  As Law Professor points out, the ruling would apply whenever a person is required to undergo a medical test not related to job skills that would not otherwise be required.  

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 The new regulations for the Americans with Disabilities Act have been proposed.  The EEOC promulgates those regs and seeks public comment before making them final.  You can view the new regs at this website.  These regs are based on the ADA Amendments Act which was passed last year.  Among other changes, they list new impairments that will be considered to be a disability.  Many of these new disabilities are impairments that might be in remission or episodic.  They make it clear that working is now a major life activity, which had been in doubt.  And, of course, as required by the amendment, the regs state that an impairment will be looked at in its non-treated form or without mitigation.  See the good folks at Workplace Prof for more discussion.  

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