The ADA Amendments Act was passed in 2008 and became effective in 2009. Only now are we seeing cases interpreting those important changes. One significant change concerns the “regarded as” claim. The old ADA protected persons who were fired because they were “regarded as” disabled. But, the old ADA also required that to merit that protection, the person had to suffer from an actual impairment. That ruling meant many persons in the early stages of an illness or impairment were not protected. Their disability simply had not progressed far enough. So, the ADA Amendments Act broadened the requirement of “regarded as” to also include persons who were simply perceived as impaired. The ADAAA removed the requirement that a person suffer from an actual impairment that limits a major life activity.

In Mesa v. City of San Antonio, No. SA-17-CV-654 (W.D. Tex. 8/16/2018), the Court addressed a critical component of this new “regarded as” claim. How serious does the impairment have to be before the impairment can become the subject of a “regarded as” claim? In Mesa, the worker suffered from a shoulder injury. He recovered from that shoulder injury within eight days. In moving for summary judgment, the employer argued that the condition was “transitory and minor.” The ADAAA provides that the protections of the “regarded as” claim do not extend to conditions which are transitory and minor. The court in Mesa first addressed the question regarding who must show that an impairment is transitory and minor. The court reviewed the pertinent regulations and found this status to be a defense, so the burden lay with the defendant to show a condition was transitory or minor. So, in moving for summary judgment, the employer must show no genuine issue of material fact regarding the status of transitory and minor.

The Act defines an impairment as one which lasts six months or longer. Mr. Mesa’s condition apparently lasted less than six months. But, what is “minor”? The court noted that the employer focused on the wrong analysis in its motion for summary judgment. The employer argued in its motion for summary judgment that there was no evidence that any person at CPS Energy, the employer, viewed Mr. Mesa’s impairment as anything but transitory and minor. That was the wrong inquiry, said the Court.

The proper question was whether the employer believed the employee had an impairment which objectively could be viewed as transitory and minor. That is, was the employer aware of an impairment, which objectively could constitute a brief illness or injury? The court was saying that the employee must show not that the employer viewed the health condition as transitory and minor, but must instead show 1) that the employer viewed the impairment as a particular diagnosis, 2) which objectively may last longer than six months or is otherwise not minor.

The court engaged in detailed review of the facts and noted that CPS Energy took actions which did show they believed the employee had a shoulder injury which persisted, even after apparent treatment. They required him to take a fitness-for-duty examination, for example, even after receiving a medical report. Management also considered requiring the employee to undergo an MRI. Management took several steps even after initial assurances of his recovery. And, as the court noted, the employee was removed from work via an ambulance when the injury first occurred. All those facts suggest an impairment which was something more than minor.So, even though the condition may have lasted less than six months, it was something more than minor.

The court then noted that shoulder injuries as a matter of course, are unpredictable. It found that the plaintiff had presented adequate evidence to show genuine issue of fact whether the injury was not “minor” and whether he had been placed on unpaid leave due to his perceived injury. See the decision here.

Obesity is sometimes referred to as a growing epidemic. There is more obesity today. But, obesity in itself does not rise to the level of a disability, according to a recent Eighth Circuit Court of Appeals decision. In Morriss v. BNSF Railway Company, No. 14-3858 (8th Cir. 4/5/2016), the plaintiff was 5’10” and weighed 285 pounds. He was at one time “pre-diabetic,” but as of the time when he applied for a job with BNSF, he suffered from no particular diagnosis. Mr. Morriss had a body mass index of 40.9 for one physical exam and 40.4 at another physical exam. BNSF had a policy against hiring anyone for a safety position with a BMI greater than 40. The plaintiff lost on summary judgment at the district court level.

The plaintiff appealed on the grounds that he was regarded as having a disability. The Eighth Circuit disagreed. It said to qualify as a disability under the ADA, there must be a physical impairment that falls outside the normal range and that impairment occurs as a result of a physiological disorder. The plaintiff cited more recent cases based on the ADA Amendments Act that found there need be a physiological disorder only when the weight falls within the normal range. But, said the court, Congress did not change the definition of physical impairment when it amended the ADA. It did change the legal standard, but did not change the definition of physical impairment. And, that definition requires there be some underlying physiological disorder.

The court then found that the employer did not regard Plaintiff as having a disability. Instead, it regarded him as having physical characteristic. So, yes the employer could regard him as having a physical characteristic that could lead to future medical problems. See decision here. The Eighth Circuit joins the Second and Sixth Circuit in finding that obesity alone does not qualify as a disability under the ADA.

Regardless of this decision, as the population becomes heavier, I expect we will see more litigation over this issue.

The Fifth Circuit reversed a summary judgment, but the district court ruling was by Judge Lynn Hughes in Houston. So, perhaps that is not so surprising, after all. I have written about Judge Hughes before here and here. In the case of Cannon v. Jacobs Field Services North America, Inc., No. 15-20127 (5th Cir. 1/13/2016), Michael A. Cannon was an engineer. He applied for a job as a field engineer with Jacobs Field Services. He was offered a job, at which point, the company sent him for a pre-employment physical exam. Mr. Cannon told the company doctor about his inoperable form rotator cuff. The injury prevented him from lifting his right arm above his head. He was given a drug test which he passed. he had taken the pain killer, Tramadol in the past but not recently. The doctor cleared Mr. Cannon for the job, so long as he did not drive any company vehicles, did not lift or push anything heavier than 10 pounds, and he did not work with his hands above shoulder level.

Jacobs did not accept these limitations. Instead, it decided that he was not physically capable of performing the duties of the position. HR contacted the work site, where the technical services manager said Mr. Cannon could not perform the functions of the job. Yet, at the same time, HR also notified Mr. Cannon that Jacobs only had concerns that he could not raise his right hand above his head. He would have difficulty climbing ladders, he was told. Mr. Cannon contacted OSHA to see if there might be a problem. He also made a video showing him climbing a ladder with three point contact. He also provided medical information about his condition.

No one at Jacobs contacted his doctors to ask for clarification. Instead, the company rescinded the job offer. Mr. Cannon filed suit. He alleged he was fired for disability based discrimination and because he was regarded as impaired. The employer moved for summary judgment. Judge Hughes granted the motion. Judge Hughes, however, relied on pre-Amercans with Disabilities Amendment Act decisions to find he was not regarded as disabled. As the Fifth Circuit pointed out, the new standard is not whether a person is regarded as having a major life activity which is impaired, but whether he is is simply regarded as having a physical impairment. The new standard sets a lower bar. The ADAAA has been in effect since September, 2009. It is surprising indeed that Judge Hughes would not catch this error.

The lower court construed Mr. Cannon’s testimony that he compensates for his weak right arm with greater use of his left arm to mean that the engineer was not impaired at all. The court rightly noted that is an extreme interpretation of his testimony and not in keeping with summary judgment analysis.

The lower court also said Mr. Cannon did not suffer from a disability. Yet, there was substantial evidence that he could not lift heavy objects. Lifting and reaching are major life activities, said the court. The plaintiff was clearly impaired in those areas. As the court noted, this was not even disputed.

The lower court even disregarded the fact that he passed the drug test with the observation that he passed the test “this time.” Noted the court, there was no evidence that 1) he was still using the pain killer, and 2) that even if he used it, that he used it conjunction with work or on a work site. The district court assumed facts in favor of the movant, not against the movant.

Judge Hughes found that driving was an essential function of the job. He ruled that Mr. Cannon could not perform this essential function. The work sites were spread out over the countryside. But, Mr. Cannon disputed that driving was an essential function.  Even so, there was adequate evidence that he could indeed drive.

There was a factual dispute about whether Mr. Cannon could climb a ladder with accommodation. But, said the court, since the company ended the interactive process early, there was a “thin”record regarding his ability to do so or not.

Regarding the issue of pretext, the court noted that Jacobs offered no nondiscriminatory reason for withdrawing the job offer. It never claimed, for example, that it had to reduce its work force or that income had decreased. The simple timing suggests the job offer was withdrawn due to concerns about his impairment.

And, so Judge Hughes is again reversed.

The ADA Amendments Act was passed in 2009. Since then, courts have addressed more fundamental questions about disability claims, such as what are the essential functions of a job and how can they be accommodated? On one such case, Perez v. Sprint/United Management Co., 2013 WL 6970898, No. 12-CV-3161 (N.D. Ga 12/19/2013), the court denied summary judgment and found that there was factual dispute regarding whether the employee could perform the essential functions of the job. Gilbert Perez was a systems engineer in charge of setting up presentations for other workers. He was diagnosed with bilateral ankle degenerative joint disease. As it worsened, the pain increased. He started using a cane and was then fired.

The court accepted the employer’s claims regarding what the essential functions of the job included. So, the question remaining was whether the plaintiff could perform those functions. The plaintiff argued that he could perform those essential functions without accommodation. The employer argued he could not perform those functions with or without accommodation.

The court found there was a genuine factual dispute based on the plaintiff’s own testimony, and on the lack of any write-ups on the plaintiff regarding his job performance. The court also noted that co-workers testified that Mr. Perez could perform the functions of his job without change. He could still, climb ladders, for example. The plaintiff was helped occasionally, but said one co-worker, it was common for workers to help each other.

The court also noted that when Mr. Perez applied for short term disability benefits, the policy management group denied his claim, saying his disability was not serious enough. The jury, said the court, was entitled to conclude from this finding that his disability was not serious.

The employer did not adequately investigate Mr. Perez’ medical condition, said the court. So, the employer did not perform an individualized assessment of his request for accommodations.

The court also found direct evidence of discrimination. A supervisor had wanted to say that Mr. Perez would be fired because he was medically unable to do his job. HR recommended different language, but the intent was still apparent. The court also found there were sufficient facts indicating this statement was pretext. That is, the plaintiff could actually do his job, but the employer was fabricating. Since, there were no write-ups regarding his performance. It was also possible that the doctor’s explanation was not that Mr. Perez could not perform the job, but that the doctor was simply suggesting possible accommodations. And, noted the court, HR advised the supervisor in an email that she remove any references to the plaintiff’s medical condition from Mr. Perez’ file.

Later, at trial, Mr. Perez was awarded $125,250 by a jury. Still pending is a request for front pay, and attorney’s fees.

Note that the court accepted the Plaintiff’s version of the need for accommodations, as it should. The court found fault with the employer for not having documented any perceived performance problems and for not looking into his medical documentation. The employer could have asked for more information if it did not understand the doctor’s notes. And, it is almost always a sure loser to claim after-the-fact performance issues.

Note also that a few co-workers testified for Mr. Perez. It is rare to have that sort of support at trial or summary judgment. The presence of co-workers implicitly risking their own jobs to testify for a co-worker has a powerful effect.

 

Is attendance at one’s job an "essential function" of the job? That is a critical issue if a worker encounters illnesses and treatment that require time away from work. If everyday attendance is required for every job, then an injured worker who needs time off would not be protected by the ADA. Because, that injured person could not attend work everyday. It is a catch-22. The person needs time off to get better. But s/he would not be entitled to time off, because s/he needs time off. 

Under the amended version of the ADA, we will see more and more accommodation issues. There already is substantial pred]cedent finding that everyday attendance may not be a required function of every job. I previously wrote about some of those cases here

The Sixth Circuit Court of Appeals reversed summary judgment for the employer in one such case, finding that attendance is not always required. In EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 4/22/14), the district court found that the worker was not a qualified individual with a disability, because of her excessive absenteeism. The lower court then declined to look behind the employer’s claim that everyday attendance was a required function of the job. The lower court would not second-guess the employer’s "business judgment."

The worker, Ms. Harris, had asked to telecommute, that is, to work from home. The higher court rejected an automatic assumption that every job would require daily attendance. The appellate court found that with today’s technology, many workers can be just as productive working from home. The real question, said the higher court, was whether physical presence was truly required at the Ford facility. Physical presence is very much a fact question. Ford argued that Ms. Harris’ physical presence was essential for the group dynamic of the resale buyer team. Teamwork was important, said the employer. 

The Sixth Circuit acknowledged that courts are limited in their ability to judge business needs. But, neither should the court abdicate its responsibility to personnel boards. The courts should not blindly accept the plaintiff’s story. But, the employer’s business judgment is just one more factor in the inquiry. 

The EEOC presented substantial evidence that face-to-face interactions were not always essential. Ms. Harris’ own testimony was that much work was done via teleconferences. Ms. Harris would need to conduct occasional site visits, but Ford’s evidence did not indicate she could not do so from home. And, it appeared that Ford had allowed telecommuting in the past for resale buyers, although for a shorter time frame that requested by Ms. Harris. This would be enough evidence, said the Sixth Circuit, to find genuine issue of factual. If the facts are in dispute, then summary judgment is not proper. The court reversed the summary judgment previously granted by the lower court. See decision here

In a recent opinion, the Fourth Circuit Court of Appeals has found that a sufficiently severe temporary impairment may constitute a disability under the Americans with Disabilities Act, as amended.  Carl Summers hurt himself on the job.  He was carrying a large bag and injured both legs.  With a torn meniscus and a leg fracture, the employee suggested to the employer that he take some time off, work part-time and then return with an accommodation.  Altogether, this plan would take about a year.  But, the employer decided they would simply terminate Mr. Summers.  The employer chose not to engage in the interactive process to arrive at a mutually agreeable accommodation, perhaps because the employer believed Mr. Summers was not covered by the ADA.  As a temporary impairment, he would normally not be covered by the ADA. 

In the resulting lawsuit, the court granted the employer’s motion to dismiss on the grounds that a temporary impairment, even for as long as one year, does not fall within the ambit of the ADA.  But, on appeal, the Fourth Circuit found that Mr. Summers would not be able to walk for seven months.  Without surgery, pain medication, and physical therapy, he would not be able to walk for a far longer period than seven months. Under the broadened coverage of the ADA Amendments Act, this was sufficient to make a claim of impairment.  The court explained that the ADAAA was passed specifically to overrule the strict holding in Toyota Motor Manufacturing, Kentucky, Inc.v. Williams, 534 U.S. 184, 199 (2002), and its progeny.  

The Toyota decision suggested that a temporary disability could never be protected by the ADA.  The ADA Amendments Act did not provide one way or the other whether a temporary impairment would be protected, noted the Fourth Circuit.  But, the regulations drafted by the EEOC do provide coverage for temporary disabilities that are "severe." 

The EEOC regulations do not state that an "injury" cannot also be an impairment.  Indeed, under the new ADAAA, an impairment of the "muscoskeletal" system can be a disability.  And, the regulations use the terms "injury" and "impairment" interchangeably, said the court.  See Summers v. Altarum Institute Corp., No. 13-1645 (4th Cir. 1/23/2014) opinion.  

The court reversed the dismissal.  This is the first appellate decision to address the temporary injury issue under the ADAAA.  It will surely lead to additional temporary injury claims. 

For more comments, see Robin Shea’s post at Employment and Labor Insider blog and Jon Hyman’s post at Ohio Employer’s Law Blog post

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

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.  

 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.  

 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.