This page contains entries under the topic: "Discrimination - Disability" | Main
Medical marijuana law gives no protection from the boss
January 24, 2008 by Ross Runkel at LawMemo
Gary Ross got fired because his drug test was positive for marijuana. He was using marijuana to treat chronic back pain, doing so on the advice of his doctor.
Ross sued his former employer claiming disability discrimination and claiming wrongful discharge in violation of public policy.
He relied on California's Compassionate Use Act of 1996, which gives an individual some protections from criminal prosecution when using marijuana for medical purposes on the recommendation of a physician.
Only one problem, according to the California Supreme Court. The Compassionate Use Act was not designed to have any impact on employment law. The whole idea of the statute was to protect certain users from criminal prosecution. So Ross lost, and the boss won.
The case: Ross v. Ragingwire Telecommunications (California Supreme Court 01/24/2008).
Early blog comments:
California Supreme Court: No Accommodation for Medical Marijuana from What's New in Employment Law?
CA Supreme Court: Ragingwire affirmed from Storm's California Employment Law.
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ADA accommodation case taken off Supreme Court docket
January 15, 2008 by Ross Runkel at LawMemo
Huber v. Wal-Mart Stores, Inc. has been settled by the parties, and removed from the list of cases that the Supreme Court will decide this year.
It raised an interesting issue: Whether the ADA requires an employer to reassign a disabled employee to a vacant position for which she is qualified, or merely permits the employee to apply and compete with other applicants for the vacant position.
Here is how the issue was stated in Huber's petition for certiorari:
Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. (ADA), requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). The statute expressly lists "reassignment to a vacant position" as a "reasonable accommodation." Id. § 12111(9)(B). The Equal Employment Opportunity Commission (EEOC) has issued regulations implementing that definition, 29 C.F.R. § 1630.2(o)(2)(ii), and it has interpreted those regulations to provide that "[t]he employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment." The questions presented are:1. If a disability prevents an employee from performing the essential functions of his or her current position, does the ADA require:
(a) that the employer reassign the employee to a vacant, equivalent position for which he or she is qualified, as the Tenth and District of Columbia Circuits have held; or(b) that the employer merely permit the employee to apply and compete with other applicants for the vacant, equivalent position for which he or she is qualified, as the Seventh and Eighth Circuits have held?
The facts:
Pam Huber had worked as an order-filler until she became disabled. She sought, as a reasonable accommodation, reassignment to a router position which was vacant and for which she was qualified. The employer did not automatically reassign her to the router position, but required her to apply and compete with other applicants. The employer filled the router position with a non-disabled person who was the most qualified applicant, and placed Huber in a less desirable janitorial position.
Huber sued under the Americans with Disabilities Act (ADA); the trial court granted summary judgment for Huber; the 8th Circuit reversed; the US Supreme Court granted certiorari to review the 8th Circuit judgment. Now the case has been dismissed.
Huber's position was that the employer should have automatically reassigned her to the router position without requiring her to compete with other applicants. The employer's position was that it has a nondiscriminatory policy of hiring the most qualified applicant, and that giving the router position to the most qualified applicant does not violate the ADA.
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No BFOQ in ADA cases
January 02, 2008 by Ross Runkel at LawMemo
The 9th Circuit, in an en banc opinion, has rejected application of Title VII and ADEA bona fide occupational qualifications (BFOQ) in ADA cases.
Bates v. UPS (9th Cir 12/28/2007) (en banc) (3-2)
Bates sued the employer for violation of the Americans with Disabilities Act (ADA) alleging unlawful exclusion from driving vehicles of 10,000 pounds or less if hearing impaired. The trial court found in favor of Bates. The 9th Circuit reversed.
The employer imposed the Department of Transportation (DOT) hearing standard for vehicles in excess of 10,000 pounds to vehicles of 10,000 pounds or less. The court considered the claim that an employer's safety qualification standard discriminated against otherwise qualified persons with disabilities, and the showing required of an employer to successfully assert the business necessity defense to the use of such a qualification.
Because the employer linked hearing with safe driving, the court concluded that the employer bore the burden to prove that nexus as part of its defense to the use of the hearing qualification standard; however, Bates bore the ultimate burden to show he was qualified to perform the essential function of safely driving a vehicle of 10,000 pounds or less. The court remanded for Bates to prove he was a qualified individual.
The court rejected the adaptation of the Title VII and the Age Discrimination in Employment Act (ADEA) bona fide occupational qualifications (BF0Q) safety standard requirement into the ADA context, where there was no BFOQ defense as such in the ADA (overruling Morton v. United Parcel Service, Inc., 272 F3d 1249 (2001)). Relying on statutory provisions of the ADA's version of the business necessity defense, the court stated the employer must show:
(1) "job-relatedness" by demonstrating that the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job;(2) "consistent with business necessity" by demonstrating that the disputed qualification standard substantially promotes the business's needs; and
(3) "performance cannot be accomplished by reasonable accommodation" by demonstrating either that no reasonable accommodation currently available would cure the performance deficiency or that such reasonable accommodation poses an undue hardship on the employer.
The DISSENT would require the employer bear the burden of showing, if it desired to adopt as a threshold requirement a minimum hearing level such as the DOT standard, that it can establish under the business necessity test that deaf applicants as a group who do not meet that requirement cannot drive vehicles of 10,000 pounds or less safely.
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Supreme Court will decide ADA accommodation case
December 08, 2007 by Ross Runkel at LawMemo
Huber v. Wal-Mart Stores, Inc (certiorari granted 12/07/2007) [Details, briefs]
Decision below: Huber v. Wal-Mart Stores, Inc (8th Cir 05/30/2007)
Pam Huber had worked as an order-filler until she became disabled. She sought, as a reasonable accommodation, reassignment to a router position which was vacant and for which she was qualified. The employer did not automatically reassign her to the router position, but required her to apply and compete with other applicants. The employer filled the router position with a non-disabled person who was the most qualified applicant, and placed Huber in a less desirable janitorial position.
Huber sued under the Americans with Disabilities Act (ADA); the trail court granted summary judgment for Huber; the 8th Circuit reversed; the US Supreme Court granted certiorari to review the 8th Circuit judgment. Oral argument probably will be scheduled for March 2008.
Huber's position is that the employer should have automatically reassigned her to the router position without requiring her to compete with other applicants.
The employer's position is that it has a nondiscriminatory policy of hiring the most qualified applicant, and that giving the router position to the most qualified applicant does not violate the ADA.
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ADA: Qualifications trumps reassignment right
June 01, 2007 by Ross Runkel at LawMemo
Does the ADA require reassignment to a vacant position when another employee is more qualified?
Or, as the 8th Circuit stated the issue: "whether an employer who has an established policy to fill vacant job positions with the most qualified applicant is required to reassign a qualified disabled employee to a vacant position, even though the disabled employee is not the most qualified applicant for the position."
Circuit courts are split on this issue, and the 8th Circuit is now in the "No" column. Huber v. Wal-Mart (8th Cir 05/30/2007)
In the 10th Circuit, the reassigned disabled employee is automatically awarded the position regardless of whether other better qualified applicants are available - and regardless of an employer's policy to hire the best applicant.
In the 7th Circuit, the ADA does not require an employer to reassign a qualified disabled employee to a job for which there is a more qualified applicant, when the employer has a policy to hire the most qualified applicant.
The 8th Circuit opted for the 7th Circuit's approach, saying that the ADA "is not an affirmative action statute." The 8th Circuit also reasoned that its decision was "bolstered" by US Airways v. Barnett, 535 US 391 (U S Supreme Court 2002), which held that an employer is not ordinarily required to give a disabled employee a higher seniority status to enable the employee to retain his or her job, when another qualified employee is entitled to that position pursuant to the employer's seniority system.
My view: The decision is correct. The ADA seeks to level the playing field, not to give an advantage to disabled employees.
However, there is a stupid rule being followed in many circuits that could make "level playing field" a hollow slogan. At the pretext stage, many courts require the plaintiff to prove that his or her qualifications were so much greater than the other person's that no reasonable employer would have promoted the other employee. That rule reverses the normal burden at the summary judgment stage. I'd like to see the Supreme Court fix that one because it is so clearly wrong.
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Multiple medical leave claims
May 11, 2007 by Ross Runkel at LawMemo
Michael Faust filed multiple claims against his former employer, all arising out of his back pain, and a note from his chiropractor:
- discharge in violation of his right to medical leave under the California Family Rights Act (CFRA) (a part of the California Fair Employment and Housing Act (FEHA))
- retaliation
- wrongful discharge
- disability discrimination
The trial court granted summary judgment for the employer,but the California Court of Appeal reversed as to most of Faust's claims. Faust v. California Portland Cement (California Ct App 05/10/2007)
Faust was experiencing severe back pain. His treating chiropractor provided a note recommending treatment and stating that he was "unable to perform regular job duties" for a month. Faust gave the note to his employer. In an exchange of voicemails the employer requested to speak to him about the chiropractor's report. Faust stated that the employer could speak to his wife, chiropractor, or workers compensation attorney, but the employer did not. Faust did not reply to a letter detailing perceived defects in the chiropractor's report. Later the employer discharged Faust, stating that his paperwork was "insufficient to sustain an approved absence."
The California Court of Appeal held:
- There was a triable issue on Faust's CFRA claims because the employer did not post notice or give notice to Faust of his CFRA rights, Faust provided notice of his need for CFRA leave, and Faust's chiropractor's report stated the reason for CFRA leave. Although the employer claimed that Faust unreasonably failed to respond to inquiries about his health, another possible inference is that the employer unreasonably refused to communicate with his designated representatives. The court rejected the employer's assertion that Faust's chiropractor was not a qualified health care provider.
- There was a triable issue on Faust's claim of retaliation for exercising CFRA rights because he presented a prima facie case, and the employer's assertion that it discharged him for insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
- There was a triable issue on Faust's claim of wrongful termination in violation of public policy. Because he has viable claims for violation of the CFRA, "it necessarily follows" that he has a triable issue for wrongful termination in violation of public policy.
- There was a triable issue on Faust's claim of disability discrimination. There was evidence that the employer was aware of his orthopedic condition, that the employer rejected the chiropractor's recommendation of a leave, and that the employer discharged Faust. The asserted insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
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No accommodation for hearing impaired firefighter
December 12, 2006 by Ross Runkel at LawMemo
Christopher Carlton, a hearing impaired applicant for a firefighter position, sued the employer for failure to hire. He alleged handicap discrimination in violation of state law and the Massachusetts Constitution. The trial court granted summary judgment in favor of the employer. The Massachusetts Supreme Judicial Court affirmed.
Carleton v. Commonwealth (Massachusetts 12/07/2006)
The court found that where the hearing acuity standard was an essential qualification for a firefighter and the accommodation sought (the use of hearing aids) was not a reasonable one as determined by the Legislature, Carleton had no reasonable expectation of proving that he was a qualified handicapped person.
The court concluded that, for purposes of Article 114 of the Amendments to the Massachusetts Constitution, an "otherwise qualified handicapped individual" in the employment context was one "capable of performing the essential functions of a particular job, or who would be capable of performing the essential of a particular job with a reasonable accommodation to his handicap," and that the constitutional claim failed.
My view:
This is a limited decision, limited to the state of Massachusetts, and limited to public safety personnel who are covered by the Massachusetts statute.
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Deafness and Hearing Impairments and the Americans with Disabilities Act
July 26, 2006 by Ross Runkel at LawMemo
The EEOC has a new question-and-answer fact sheet on hearing impairments and the ADA.
Well written, and useful.
Here are some of the items covered:
- when a hearing impairment is a disability under the ADA;
- when an employer may ask an applicant or employee about a hearing impairment;
- how employers can ensure the confidentiality of applicants’ and employees’ medical information;
- what types of reasonable accommodations an individual with a hearing disability may need;
- to what extent an employer must provide a reasonable accommodation to an individual with a hearing disability;
- how an employer should handle safety concerns and harassment issues; and,
- how an individual with a hearing impairment can file a claim against an employer under the ADA or the Rehabilitation Act.
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4 rules of employment litigation
July 18, 2006 by Ross Runkel at LawMemo
I had to laugh at this one.
Suits in the Workplace, an employment law blog out of California, tells about Alberigi v. Sonoma County, Cal. Super. Ct., No. SCV-233788 (06/20/2006): No Good Deed Goes Unpunished.
It's the story of an employee with agoraphobia and panic disorder who applied for a job involving face-to-face interviewing. I'm not sure how this all landed in court, but a jury awarded him $6,000,000. The judge reduced that to $2,500,000.
Oh yes, the lawyer fee award was almost $900,000.
It's an interesting story, told with an immense sense of humor. Read it here: No Good Deed Goes Unpunished.
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Conservative judge issues seriously pro-employee decision
July 08, 2006 by Ross Runkel at LawMemo
When a conservative judge issues a seriously pro-employee decision, I take notice.
The judge: Diarmuid O'Scannlain, 9th Circuit.
The case: Dark v. Curry County (9th Cir 07/06/2006).
Robert Dark, an epileptic, drove heavy equipment for the County. After having a seizure while driving, the County fired him.
Dark sued under the Americans with Disabilities Act (ADA) and the Oregon counterpart. The trial court threw it out, and the 9th Circuit reversed, writing a roadmap for lawyers dealing with disability discrimination.
Bottom line: There were genuine issues of material fact that need to be decided by a jury.
Fact One: Did the County demonstrate a legitimate, non-discriminatory reason for discharging Dark?
The employer gave two reasons for the discharge. The initial letter of discharge said that his "condition ... prevents you from performing your duties." Later, the County Board issued an order saying that Dark acted irresponsibly and recklessly. Even the second reason would not fly because "conduct resulting from a disability is considered to be part of the disability." Plus, Dark filed an affidavit saying that six other employees were not disciplined when they had accidents.
Fact Two: Pretext. Was "misconduct" just a pretext?
The record was "replete with evidence suggesting 'misconduct' was a pretext" for disability discrimination. Instead of being fired immediately, he was sent for a medical exam. Documentation showed the County was more worried about Dark's general condition than the single incident, and worried about his future ability to perform. Other workers were not disciplined for similar accidents.
Fact Three: Was Dark qualified?
The County did not engage in an interactive process to see whether any of the following accommodations were reasonable and available: (1) Temporary change of duties; (2) Reassignment to a new position; (3) Use of accumulated sick leave or medical leave without pay.
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Redefining "disability"
July 07, 2006 by Ross Runkel at LawMemo
It was a long road. Among cries of judicial legislation, the Washington Supreme Court adopted a new definition of "disability" - the same definition used by the federal Americans with Disabilities Act (ADA). The court split 5-4.
The past:
Washington courts have struggled to define "disability" under the Washington Law Against Discrimination (WLAD). The Washington State Human Rights Commission provided a definition in Washington Administrative Code (WAC) 162-22-020, which defines "disability" as "the presence of any sensory, mental, or physical disability .... " Under WAC 162-22-020, "[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question ... or [was] discriminated against .... "
A circular and confusing definition.
In Doe v. Boeing Co., 846 P.2d 531 (1993), the court noted that this definition is circular because it requires a factual finding that the employee was discriminated against "because of the condition in order to determine whether the condition is a [disability]." Similarly, the court has noted that "WAC 162-22-020 ... conflicts with much of our antidiscrimination jurisprudence because the regulation would require a disability discrimination plaintiff to prove that he has been discriminated against because of his condition to prove that he is 'disabled' in the first place."
The court sees the light. McClarty v. Totem Electric (Washington 07/06/2006) (5-4).
The court adopted a new definition of "disability" under WLAD, stating
"We adopt the definition of disability set forth in the federal ADA [(Americans with Disabilities Act )]."
"We hold that a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment."
The dissent sees darkness.
In a DISSENTING opinion Judge Alexander accused the majority of "legislating from the bench," and noted that the majority adopted a definition of "disability" not advocated by either party.
In a separate DISSENTING opinion Judge Owens leveled similar criticisms, observing "[r]ather than answering the narrow question before us, the majority has usurped the authority of the legislature and enacted a new law...."
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Reasonable Accommodations For Attorneys With Disabilities
May 23, 2006 by Ross Runkel at LawMemo
The EEOC has published a lengthy and detailed fact sheet [Reasonable Accommodations For Attorneys With Disabilities] addressing the application of the reasonable accommodation obligation under the Americans with Disabilities Act (ADA) to attorneys with disabilities and their employers.
This fact sheet is full of examples and legal citations, and should be enormously useful.
The bulk of the principles discussed in this fact sheet can be applied equally to any workplace - not just lawyers.
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State's definition of "disability" does not require a substantial limitation on a major life activity
April 13, 2006 by Ross Runkel at LawMemo
States often adopt definitions of basic concepts that are different from the federal definitions. "Disability" is one.
The federal Americans with Disabilities Act (ADA) says that to be "disabled" one must show that an impairment results in a substantial limitation on a major life activity.
The State of Maine is different. Maine did not adopt the federal standard, so a substantial limitation on a major life activity is not something that has to be demonstrated.
True, even though the Maine Human Rights Commission adopted a regulation that tracked the federal standard. That regulation was invalid.
Not that the Maine Supreme Judicial Court was unanimous. They split 4-3.
Whitney v. Wal-Mart (Maine 04/11/2006).
| Employment Law Memo notified its readers about this case on 04/14/2006. |
So the message is clear. Always check out the local laws. Sometimes the definitions are different, often more employee-friendly. Sometime the remedies are different. Sometimes the statutes apply to smaller employers than the federal statutes reach.
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States' best practices regarding individuals with disabilities
October 31, 2005 by Ross Runkel at LawMemo
The EEOC has issued a report detailing what it considers best practices that promote the hiring, retention, and advancement of individuals with disabilities in state government jobs. The focus is on nine states: Florida, Maryland, Vermont, Washington, Kansas, Missouri, New Hampshire, New Mexico, and Utah.
Final Report on Best Practices For the Employment of People with Disabilities In State Government
A goldmine of useful information and ideas.
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EEOC discusses blindness and visual impairments
October 26, 2005 by Ross Runkel at LawMemo
Application of the Americans with Disabilities Act (ADA) to persons who are blind or have visual impairments is the subject of a new EEOC publication: Questions and Answers About Blindness and Vision Impairments in the Workplace and the Americans with Disabilities Act.
This document covers:
- when a vision impairment is a disability under the ADA;
- under what circumstances an employer may ask an applicant or employee questions about a vision impairment;
- what types of reasonable accommodations employees with visual disabilities may need;
- how an employer can prevent harassment of employees with visual disabilities or any other disability.
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Associating with disabled individuals
October 19, 2005 by Ross Runkel at LawMemo
A lesser-known provision of the Americans with Disabilities Act (ADA) is the one that forbids discrimination based on one's association with or relationship to a an individual with a disability.
The EEOC has published Questions and Answers About the Association Provision of the Americans with Disabilities Act.
Examples of unlawful discrimination:
- refusing to hire someone because of an unfounded fear that the individual will be excessively absent or unproductive because of the need to care for a child with a disability.
- firing or refusing to hire someone based on concerns that the individual will acquire a condition from a family member or other individual with whom he has a relationship.
- refusing to provide health insurance for an employee's family member with a disability when the employer generally provides health insurance for employee dependents.
- harassing someone based on the individual's association with a person with a disability.
- providing lesser benefits to someone who has a relationship or association with an individual with a disability than it provides to all other employees.
- firing, refusing to hire, or denying any benefit or privilege of employment to someone because of concern that the employer's image will be negatively affected by an applicant's or employee's association with individuals with disabilities - for example, discriminating against an employee who provides volunteer services for people with HIV/AIDS or psychiatric disabilities is prohibited.
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Monocular vision was a disability
September 25, 2005 by Ross Runkel at LawMemo
Employees with monocular vision were denied driving positions with UPS because the employer's "vision protocol" required some central vision and some peripheral vision in each eye.
The 9th Circuit decided that (1) the employees were disabled under California's Fair Employment and Housing Act (FEHA) [although not under the federal ADA], but (2) the employer satisfied the FEHA's safety-of-others defense. EEOC v. United Parcel Service (9th Cir 09/15/2005).
The court noted that while the ADA required that the employee's condition substantially limit a major life activity, the FEHA required only that the employee's condition limit a major life activity.
(1) With respect to the major life activity of seeing, the court found that the trial court erred by comparing monocular vision employees with farsighted employees. Under the FEHA the court found that a limitation in vision was sufficient. With respect to the major life activity of working, the court pointed out that the FEHA expressly recognized working as a major life activity and further provided that this was so regardless of whether the actual or perceived working limitation implicated a particular employment or a class or broad range of employments. The court found the employees demonstrated that they were limited in working as commercial delivery drivers, not only because they were excluded from working as full-time package car drivers for the employer, but also because they were excluded from any commercial driving position that required Department of Transportation (DOT) or state certification.
(2) The court was persuaded that the employer prevailed on its safety-of-others defense (Cal Gov't Code Section 12940(a)(1)) because the employer's vision protocol rested on objective and statistical evidence that monocular drivers were involved in somewhat more accidents than binocular drivers, because the risk of harm to others was high, because the employer's standard did not categorically exclude monocular individuals from working as full-time package car drivers, and because the application of the vision protocol was individualized to each employee and applicant.
My view: A reminder that --
- State statutes often have more expansive definitions of "disability" than the federal ADA.
- Employers who do their homework can successfully defend on the ground that a disabled person presents a threat to the safety of others.
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Does "regarded as" disabled employee get accommodation?
September 03, 2005 by Ross Runkel at LawMemo
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.
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Substantial limitation on walking
August 13, 2005 by Ross Runkel at LawMemo
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.
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Diabetic was a direct threat to safety
July 30, 2005 by Ross Runkel at LawMemo
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.
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ADA - Medical evidence not needed at summary judgment stage
July 11, 2005 by Ross Runkel at LawMemo
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.
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Employer regarded alcoholic as being disabled
February 14, 2005 by Ross Runkel at LawMemo
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.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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