San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 This issue arises every so often.  An employee has a serious illness and is warned by her doctor that stress at work worsens the illness.  Is that a disability?  Not according to caselaw under the old (ie, pre-amendment) Americans with Disabilities Act.  In one case, the client was warned that her hypertension would worsen if her stress was not ameliorated.  She could suffer a severe heart attack, the note warned.  The stress was largely from work.  So, the doctor gave her a note to give to her employer with suggestions on how to reduce stress at work.  The employer ignored the note.  The employee filed suit and lost on summary judgment.  Caselaw interpreting the old ADA simply does not provide protection for a potential disability.  

A severe heart attack, said the judge, was a not a disability, yet.  Hypertension did not yet affect her daily life, said the court.   So far, the employee functions normally, other than loss of sleep.  So, she lost her lawsuit.

Another employee suffers from a rare genetic defect causing her spinal issues.  She has herniations in her neck and spine.  She has to stay home every so often and take medication.  She misses work, apparently without warning and her employer complains.  They start referring to her as the "absent" employee.  The stress causes her spine to worsen, causing even more time off.  Under the new ADA, that condition might constitute a disability.  

We had a saying when I served in Iraq, "nothing is easy in Iraq."  Well, nothing is easy in employment law. 

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 A recent Third Circuit Court of Appeals decision finds that a change in shifts is indeed an accommodation which an employer may have to provide in certain circumstances.  In Colwell v. Rite Aid, the employee had no vision in one eye due to glaucoma.  So, she could not drive at night.  She asked to change shifts from the night shift to the day shift.  Rite Aid refused, because "it would not be fair to other employees."  A doctor provided a note also stating that she should not work at night.  But, it was to no avail.  Rite Aid refused.  The employee relied on family members to pick her up from work after 5:00 pm.  But, after a year of frustration and being treated by managers and co-workers as a pariah, she quit.

On appeal, the employer argued that it was not responsible for how an employee arrives to work, only for what occurs once the employee does arrive.  The federal Third Circuit rejected that argument.  The court found that the employer should have allowed the shift change.  The Americans with Disabilities Act expressly provides that one possible accommodation is "job restructuring, part-time or modified work schedules."  

As the Third Circuit noted, there are many cases finding that an employer is indeed not responsible for how an employee gets to work.  But, this requested accommodation was different.  This requested accommodation concerned more the conditions of employment once the employee was actually at work.  The employer did indeed control whether the employee would work at night or during the day.  

The employer must engage in an "interactive process" to arrive at a solution to the accommodation request.  Rite Aid had "flatly" rejected Colwell's requests for an accommodation.  And, later, Colwell resigned before any further meetings could occur.  Under the facts here, the jury could conclude that Colwell or Rite Aid failed to engage sincerely in the interactive process.  But, that decision was a fact question.  Facts questions should be decided by the jury, not a judge.  

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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 City of San Antonio is spending $3 million to  make the Riverwalk accessible to wheel chairs.  Title II of the ADA requires that public places be accessible to persons with disabilities.  The Department of Justice supposedly enforces Title II.  The EEOC enforces a separate part of the ADA.  It is long past overdue that the Riverwalk be fully accessible.  But, most sidewalks in the older parts of all US cities are still not accessible.  See DOJ summary.   

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 The Ninth Circuit joins the Seventh Circuit in finding that an employee suing for retaliation under the Americans with Disabilities Act is not entitled to compensatory damages or punitive damages.  Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. 12/11/09).  The court also ruled that a jury is not available.  See brief discussion.  Mike Maslanka agrees with the result.  

In fact, the Southern District of Texas reached the same result in a different case at about the same time: Miles-Hickman v. David Powers Homes, 613 F.Supp. 872 (S.D.Tex. 2009).  

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 The local newspaper comments on the new ADA as if they just joined the debate.  The regs will make changes, to be sure, but, the floodgates will not open.  The new regs will correct decisions like the 1999 US Supreme Court decision, Sutton v. United Airlines.  We need to remember that when Sutton was decided, there was substantial debate about what Congress intended with the passage of the ADA in 1990.  Did Congress intend to include all persons with disabilities?  Or, did Congress merely intend to cover the most severely disabled?  Both sides tossed around statistics to make their case.  Both sides even toyed with the statistics used in 1990 by Congress when they passd the ADA.  Well, now Congress has responded to the 1999 decision and expressed its will. 

But, even with these new regs and the new ADA Restoration Act, a person with a disability will still have to show that his/her disability affects her job performance.  The new amendment and regs will move the debate away from whether a person has a disability and over to whether the employee sincerely attempted to accommodate the disability, a place where the debate should have been from the get-go.  

The SA Express-News quoted one local defense lawyers  as saying these regs will mean that "almost everyone" has a disability.   That is an exaggeration.  The attorney then recommends "training, training, training" for local supervisors.   I am sure she hopes local employers will contact her for that training. 

In the meantime, unemployment for persons with disabilities continues to rise.  It is over 16% now.  Applications for Social Security Disability Income benefits also continues to rise.  It increased 23% in 2009 over the same time period last year.  The application for SSDI probably reflects the great many employees who find they are unable to perform their work, according to one study.  Speaking as a lawyer for a few of those recent SSDI applicants, I can attest that these employees often find the employer unwilling to accommodate their disabilities.  So, they sometimes simply give up and apply for benefits.  They have to support themselves, somehow. 

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 This is why employees need lawyers and why employers get sued.  A fellow blogger, Evil HR Lady, reports that some hospital has told its medical staff they must stay away from work when they are ill with the H1N1 flu and such illnesses will count as Unexcused Absences.  Such time will count as an "occurrence."  As HR lady points out, unexcused absences will presumably be used for discipline.  I do not think you can ask for a more clear example of a violation of the Family Medical Leave Act or, possibly, the Americans with Disabilities Act.  You make them stay home and then penalize them for staying home.  Any discipline for a genuine illness very likely violates the FMLA or the ADA.  That is a shame. 

To her credit, HR Lady points out the need for HR personnel to demonstrate leadership on such issues.  If more HR ladies and gentlemen did so, there would be much less need for lawyers like myself.  A tip of the hat to Not So Evil HR Lady for taking the high road.....

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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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 Employers do the craziest things.  One employer in Tennessee, according to this report, tested employees for using *lawful* prescription drugs.  Yes, the employer was testing for prescription drugs. They apparently rook action against employees who refused to stop taking some prescription drugs.  The EEOC filed suit, saying these tests amounted to unlawful medical inquiries.  Unlawful medical inquiries would violate the Americans with Disabilities Act.  Those crazy employers......

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 The Fifth Circuit Court of Appeals issued a good decision on reasonable accommodation recently.  EEOC v. Chevron Phillips Chemical Co., LLP.   One of the few decisions to plumb the depths of acommodation and how the interactive process should work.  The lower court granted summary judgment in favor of the employer.  That is, the court found that the plaintiff had no case.  A summary judgment is a term of art meaning quick judgment, one without the need for a trial.  The lower court found that the initial request for accommodation, a simple release note from the doctor was *not* a request for accommodation.  Because, the release note did not offer a possible accommodation.  

But, the Fifth Circuit reversed this finding.  The law does not require magic words, said the higher court, when asking for an accommodation.  The employer was already aware of the employee's disability.   So, that knowledge plus this release note is enough to indicate the need for accommodation.  The employer was, in effect, on notice regarding the need for acommodation. 

An employee seeking accommodation is not required to come up with the solution on her own.  So, yes, the release note from the doctor was enough in this case to serve as a request for accommodation.    Once the employee presents a request for an accommodation, then the employer *must* engage in an interactive process to arrive at a solution.  Here, the employer simply said, no, "this isn't going to work."  Such a statement shows the employer was refusing to engage in the interactive process, said the higher court.   That refusal violates the Americans with Disabilities Act.  Both the employee and employer must talk about the requested accommodation and arrive at a solution together.  

 So, for these reasons, the higher court found that summary judgment was not appropriate and the plaintiff should have a trial on these issues.  As Mike Maslanka has said, the future issues in ADA cases will probably lie in the accommodation process, or lack of such a process.  

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 State workers have it rough.  Yea, they have more job security than many private employees.  But, if they are not paid in accordance with the Fair Labor Standards Act, they cannot file suit against their employer.   That was the result of the 1999 decision in Alden v. Maine.  They also cannot sue their employer under the Americans with Disabilities Act or the Age Discrimination in Employment Act.  

The Texas equivalent of the ADA and the ADEA provide comparable protections.  But, the state version of the Fair Labor Standards Act has no teeth.  Most states have a law comparable to the FLSA.  A handful of states, including Texas, do not.  So, at least regarding wage violations, state workers have little or no recourse. 

The 1999 Alden decision was a 5-4 decision by the US Supreme Court.  That decision overturned decades of earlier decisions by lower courts.  So, yes, presidential appointments to the Supreme Court do matter.  

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 The decision in Gross is not grounded in reality.  Gross v. FBL Financial Services does not reflect how discrimination and bias actually work.  Gross is the US Supreme Court's recent decision on age discrimination.  For various reasons, it will probably also apply to discrimination under the Americans with Disabilities Act, also.   Harold Goldner discusses its many errors in detail.  Discrimination is never simple.  It is never clear cut.  It is often a jumble of emotions wrapped around one issue, someone's minority background.

A manager can genuinely believe s/he is not biased.  Yet, that very same manager can look at someone and wonder why he is late so often, why he does not speak as well, etc.  But, the manager applies that extra scrutiny only to the minority person.  And, then when the manager fires the minority person, s/he can claim to have been motivated by job issues.  Under the Gross decision, the manager can claim s/he was motivated primarily by tardies, not by race.  The manager wins, but the victim loses.  

That is the problem with decisions like Gross.  Bias is not simple.  There will often be more than one motivating factor.  To require that a plaintiff show that "but for" the tardies, the employee would not have been fired is asking for more than reality will allow. 

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 In a recent decision, the 5th Circuit Court of Appeals found in favor of an employee (plaintiff).  EEOC v. Chevron Phillips Chemical Co. LLP.  For the 5th Circuit to find for a plaintiff employee is very rare. For example, in a study completed a few years ago, the researchers, found that discrimination case plaintiffs were the second least likely to survive on appeal in federal courts.  The only plaintiffs who fared worse are prisoner cases, notoriously weak claims. 

In discrimination cases on federal appeal, plaintiff employees win 5.8%.  Other plaintiffs win 12% of the time.  When you compare plaintiff employees to defendant employers, plaintiffs win 4.65% while defendants win 53.85% of the time.  The federal courts of appeals are tough on employees, the 5th Circuit is even tougher.  The 5th Circuit covers Texas, Mississippi and Louisiana.  

So, the Chevron decision is all the more remarkable.  The 5th Circuit found sleeping to be a major life activity.  The employee suffered from Chronic Fatigue Syndrome for 7 months, long enough to qualify as a disability under the older version of the Americans with Disabilities Act.  The fact that Plaintiff said she could work during her outbreak of CFS did not mean she did not suffer from a disability, wrote the court.  

A welcome win, but one all too rare.....

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 Judge Sam Kent was denied his request to be certified as having a disability which affected his ability to perform his duties.  The 5th Circuit Court of Appeals denied his request.  Judge Kent was and still is a United States District Judge.  He heard many discrimination cases in his 15 years plus on the federal bench in Galveston.  He denied relief to a great many plaintiffs in discrimination cases, including sex harassment cases.

It turns out he was harassing his own female employees.  He was indicted last year for harassment and obstruction of justice.  He will now very likely be impeached.  If the 5th Circuit had found him to be disabled, then he would have continued to receive his federal judge's pension. 

Its one thing to harass and then deny other female victims the right to sue for harassment.  But, to then claim disability when he has denied disability protections to so many other persons with disabilities.  He claims diabetes and alcoholism.  Alcoholism seems the stronger argument.  But, under the Americans with Disabilities Act (prior to being amended in 2009), alcoholism did not qualify as a disability unless the victim was undergoing treatment.  

Its easy to look at his claim for disability with skepticism.  I hope it was sincere.  If it was, he probably better understands the position of many of my clients when they have been turned down for protection they deserved. 

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