This page contains entries under the topic: "Disability - Definition" | Main

September 03, 2005

Does "regarded as" disabled employee get accommodation?

If an employee is not actually disabled, but is "regarded as" disabled, the ADA defines that employee as disabled. And the big question is whether such an employee has a right to a reasonable accommodation.

Circuit courts are split on this fundamental question under the Americans with Disabilities Act (ADA).

• Holding no right to an accommodation: 5th, 6th, 8th, and 9th Circuits.
• Holding there is a right to an accommodation: 3rd, 10th, 11th, and (perhaps) 1st.

Two recent cases that have answered "Yes" are worth reading:

• D'Angelo v. Conagra Foods (11th Cir 08/30/2005)


• Kelly v. Metallics West (10th Cir 06/07/2005)

My view: I used to think it was odd that a court would require an employer to reasonably accommodate an employee who was not in fact disabled. But the recent cases have got me persuaded for two reasons.

• The text of the ADA does not support treating "regarded as" disabled employees differently than actually disabled employees.
• An employer that has stereotypical views of an employee's abilities is placing artificial limitations on the employee, and should be prepared to accommodate those limitations.



Posted September 03, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

August 13, 2005

Substantial limitation on walking

The EEOC beat back the argument that the Toyota case heightened the standard for determining whether an individual is "disabled" under the ADA.

Employee Keane claimed she had a substantial limitation of her major life activity of walking. After Toyota Motor Manufacturing, Kentucky v. Williams, 534 US 184 (2002), the question was whether the Supreme Court had raised the standard of proof for plaintiffs.

Here were the choices:

• She must prove an impairment that "prevents or severely restricts" walking.
• She must prove a "substantial limitation compared to the walking most people do daily."

Keane was a department store sales associate who suffered leg numbness brought on by neuropathy (nerve damage). The EEOC's evidence was that Keane was unable to walk the equivalent of one city block without her right leg and feet becoming numb, and when leaving the store she would hold onto the wall for support.

In EEOC v. Sears, Roebuck & Co (7th Cir 08/10/2005) the 7th Circuit held:

• When the Supreme Court used the phrase "prevents or severely restricts," it was referring only to the major life activity of "performing manual tasks." Keane's case involves the major life activity of "walking," and she need not meet a "severely restricts" standard. A reasonable jury could find that Keane's difficulty was "a substantial limitation compared to the walking most people do daily."
• A reasonable jury could conclude that the employer's accommodations were not reasonable. Keane was allowed to park in the disabled zone, but that did not reduce the distance she had to walk. She was allowed to eat lunch in a stockroom, and allowed to use another stockroom as a shortcut. However, these accommodations were either rescinded or Keane faced a reprimand when she tried to use them.
• A reasonable jury could find that the employer was aware of Keane's disability. She gave the employer notes from two doctors, and told three levels of supervisors that she wanted to use a shortcut. That obligated the employer to engage in an interactive process. Although Keane quit her job, a reasonable jury could find that the employer caused the interactive process to break down. An employer cannot reject a request for one accommodation without offering another suggestion or offering to continue discussions.

My view: Correct on all three points.


Posted August 13, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 30, 2005

Diabetic was a direct threat to safety

An employer can refuse to hire a disabled person who poses a direct threat to safety. A diabetic who had a history of not taking care of his disease fit that description.

Brent Darnell was a Type I insulin-dependent diabetic who worked for Thermafiber as a temp for 10 months without a problem. Then he left, and returned and applied for full-time work. The company offer him a job contingent on passing a physical.

A doctor's exam consisted of a urine glucose test and an interview. From that the doctor decided Darnell's diabetes was not under control, and that he could not perform the physical aspects of the job. The doctor did not review Darnell's medical chart or conduct any other tests.

Is that enough of a medical exam for an employer to conclude that a person is a direct threat? Yes, says the 7th Circuit. Darnell v. Thermafiber (7th Cir 07/29/2005).

Darnell thought the medical exam was not an adequate "individualized assessment" required by the Americans with Disabilities Act (ADA). (See Chevron USA v. Echazabal, 535 US 73 (2002).

But the interview established that Darnell had a history of poor compliance and failure to seek medical attention, that his blood sugar levels were too high, that he hadn't checked in with a doctor in several months, and that he was disinterested in regulating his condition.

Based on that information, it was not necessary to conduct more tests or look into his prior medical history. Neither of these items would refute the fact that Darnell was not motivated to control his diabetes.

My view: The conclusion that Darnell was a direct threat was based on very little medical investigation. But, as the court pointed out, further medical investigation that might be necessary in many other cases was not needed here because of Darnell's noncompliance.


Posted July 30, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 11, 2005

ADA - Medical evidence not needed at summary judgment stage

You would think an ADA plaintiff would need to have some medical evidence. In the 9th Circuit it's not needed at the summary judgment stage. Head v. Glacier Northwest (9th Cir 07/06/2005).

Matthew Head sued his former employer under the Americans with Disabilities Act (ADA). The court came out with three items:

• Medical evidence is not needed at the summary judgment stage. The court held that "Ninth Circuit precedent does not require comparative or medical evidence to establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage." The court noted that "our precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact." The court also noted, however, that "[w]e hasten to add that our holding in no way impugns our longstanding precedent that conclusory declarations are insufficient to raise a question of material fact .... an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment."
• Reading is a major life activity. Noting that the 9th Circuit had not previously addressed the issue, the court held that "reading is a major life activity." Noting additionally that the 2nd Circuit has come to the same conclusion, the court reasoned "[t]he ability to read is necessary in many instances to perform major life activities such as caring for oneself, learning, and working."
• "Motivating factor" adopted. The court held that the appropriate standard for establishing causation in ADA cases is provided by the "motivating factor" standard. Agreeing with seven other circuits, the court concluded that the "sole cause" standard is inapplicable under the ADA. The court reasoned that "a 'motivating factor' standard is most consistent with the plain language of the statute and the purposes of the ADA."

My view:

• Going to court without medical evidence seems minimalist, if not dangerous. I would want to have some, especially at the trial stage where the jury will want to have something more tangible than the plaintiff's testimony.
• Of course reading is a major life activity.
• "Motivating factor" rather than sole cause is the right standard.



Posted July 11, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

February 14, 2005

Employer regarded alcoholic as being disabled

If 10 percent of the population is alcoholic, that's enough to populate the nation's top 15 cities. And a lot of these folks are in the work force.

Are alcoholics "disabled" under the ADA? Some are and some are not. It's an individual thing. To be disabled, the individual must (1) have a physical or mental impairment that (2) substantially limits (3) one or more of the major life activities of that individual. Under that definition, a huge number of alcoholics are not disabled. They may have an impairment, but that impairment does not substantially limit a major life activity. They can walk, see, hear, work, and so on. Maybe not perfectly, and maybe not all the time, but enough so they are not "substantially limited."

It is noteworthy that the ADA protects not only those who are actually disabled, but also those who are "regarded as" being disabled. That means the employer regarded the employee as fitting all three of the numbered items above.

That was one of the issues in Moorer v. Baptist Memorial Health Care System [Full text pdf] (6th Cir 02/11/2005), involving the discharge of a hospital administrator. Did the employer regard William Moorer as being disabled? After a bench trial, the trial court answered "yes," and the 6th Circuit affirmed. The court's answer to that question is quite revealing both as to the employer's thought process and the trial judge's thought process.

First, Moorer's supervisor clearly believed Moorer was an alcoholic. The bigger question was whether the supervisor perceived Moorer as being substantially limited in his ability to work, that is, unable to work in a broad class of jobs or a broad class of jobs (not just the specific job he had).

Second, the trial court found that the supervisor believed that alcoholism was the root cause of Moorer's inability to perform his current job - hospital administrator. Of course that established only a belief that there was an inability to perform one job.

Third, the court used interesting logic to reach the conclusion that the employer regarded Moorer as unable to perform a broad range of jobs. The trial court found substantial evidence that the employer "concocted pretextual justifications" for firing Moorer. The supervisor testified that she relied on a written report from a fire marshal plus a written report from another government agency, reports written after the discharge took place. The supervisor testified that she relied on a letter from the chief of the medical staff at one of Moorer's hospitals, but Moorer's name was not mentioned in the letter, and the author testified that he did not intend the letter to be critical of Moorer's administration of the hospital.

So there was pretext, but there was one more step in the logic. The trial judge decided that by showing that the employer perceived Moorer as being unable to perform managerial work for the employer, that indicated that the employer perceived him as unable to perform a broad class of work. As the 6th Circuit put it, the fact that the employer "believed Moorer's alcoholism made him unable to perform his hospital administrator job, which required a broad range of managerial skills, permits the reasonable inference that [the employer] believed that Moorer's alcoholism rendered him incapable of performing a substantial number of managerial jobs."

This case shows that there is plenty of room for education about alcoholism and other disabilities.

Posted February 14, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

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