Disability Discrimination Law Is a Mess in More Than Ohio

Jon Hyman, at Ohio Employer's Law Blog who does a great job of keeping up with developments in the Buckeye state and beyond, has an interesting post about the differences of the definition of disability under the ADA and the Ohio state version. Because of that difference, it's hard not to agree with his conclusion, Disability discrimination law in Ohio is a mess.

While true, it raises the bigger problem with disability discrimination laws at all levels. Unlike race, age, gender, color and national origin which are immutable and known characteristics, whether one is disabled or not, is a legal determination.

Employers must make that determination, and make it correctly at the outset, when faced with dealing with an employee. The fact that it is not always clear cut needs no more evidence than all the cases that have been decided by different courts, often where an appellate court has reversed a district judge. If after full development and briefing, it remains a hard decision for judges, where's the fairness of requiring that employers get it right, or be in violation of the law?

Of course the default position is to treat every possible disability as a disability. While that is a potential solution, is it really effective? And even if it is, is the net gain to society worth the costs that go with it? 

The real problem is that in an effort to ensure that people with non-obvious disabilities are protected, as well as those with a condition which no one would dispute is a disability, we have created this rather odd situation, where we toss out a complex legal definition, subject to many variables and interpretations, and require that employers who have hundreds of personnel decisions a week, get it right or else.

It is ironic that we have a much clearer means of identifying who is entitled to utilize parking spaces reserved for the disabled, you either have a government or company issued permit or you don't, than we do making the potentially costly deteremination of whether an individual is disabled under the ADA or one of the state versions.

We are not going to change (the Fox rule of employment law -- Congress does not roll back rights it has given employees) -- but it would be nice if everyone at least realized this unique aspect of this area of law. Particularly as they see how much in the way of judicial and employer resources it is going to consume over the next decade and the ones that follow.

ADA Cases Are No Longer Unwelcome in Plaintiff Counsel's Offices

Lynne Seabrook was working as an assistant registrar for Upper Iowa University focusing on its Malaysia campus when she was terminated in February 2009. She felt that the termination was because she had been diagnosed with depression, post-traumatic stress disorder and anxiety.

Based on several conversations I have had in the last few months with attorneys who regularly represent employees, the most significant aspect of that scenario was that she was not terminated two months earlier. If she had been terminated in December, 2008, before the broad amendments to the Americans with Disabilites Act became effective, she might never have been the happy beneficiary of this headline from last week's WCF Courier,  Former UIU employee awarded $1.1M by civil jury.

Many of those attorneys I have talked with said while they formerly turned away ADA cases because they were such summary judgment targets, they were now giving them a much closer look.

Headlines and jury awards like this, will do nothing to discourage that view.

Cautionary Comments as the ADA Nears Adulthood

Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success. 

So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy 15th13th Birthday to the ADA).

Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.

Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.

To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences. 

The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.

Think about the law works.

The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability).  To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.

But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.

In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately

With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.

But are they disabled? As defined under the ADA, not nearly as easy.

And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.

And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.

There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles --  that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.

I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.

Medical Marijuana: Accomodation Required? Which Way Do You Think Oregon Went?

Probably depends on how liberal you view Oregon. Since I have spent little time there (which will hopefully be somewhat ameliorated by a vacation week there in a couple of months) my guess is based more on perception than actual knowledge. If pushed, I would have guessed for a pro-employee outcome.

But I would have been wrong. In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries (Oregon 4/14/10), the Oregon Supreme Court dealt with it succinctly:

The Oregon Medical Marijuana Act authorizes persons holding a registry identification card to use marijuana for medical purposes. ORS 475.306(1). It also exempts those persons from state criminal liability for manufacturing, delivering, and possessing marijuana, provided that certain conditions are met. ORS 475.309(1). The Federal Controlled Substances Act, 21 USC § 801 et seq., prohibits the manufacture, distribution, dispensation, and possession of marijuana even when state law authorizes its use to treat medical conditions. Gonzales v. Raich, 545 US 1, 29, 125 S Ct 2195, 162 L Ed 2d 1 (2005); see United States v. Oakland Cannabis Buyers' Cooperative, 532 US 483, 486, 121 S Ct 1711, 149 L Ed 2d 722 (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana).

The question that this case poses is how those state and federal laws intersect in the context of an employment discrimination claim; specifically, employer argues that, because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee's use of marijuana to treat a disabling medical condition. ...We also hold that, under Oregon's employment discrimination laws, employer was not required to accommodate employee's use of medical marijuana. (emphasis added)(all interior cites removed)

It will be a long time before that question ever arises in Texas, but I have been surprised how many times it has come up for the employers that our firm represent in those states where some form of medical marijuana use is legal.

Given that legalization is on the ballot in California in November, see a summary of the proposal and get the actual text here,  this could become an even bigger issue.

Hat tip to the locals who called this to my attention, the folks at Stoel, Rives who not only posted about the result, Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana, but filed an amicus brief on behalf of the Pacific Legal Foundation and the National Federation of Independent Business, and to  Ross Runkel, Professor of Law Emeritus at Willamette University College of Law (Salem, Oregon).

Well I Would Hope So

This is the description of the 4th Circuit's decision lifted entirely from today's Daily Labor Report ($):

A medical intern who misdiagnosed patients, prescribed wrong medications, and identified a living patient as deceased could not show he was a qualified individual with a disability under the ADA.

Shin v. University of Maryland Medical System (4th Cir.)(3/11/10) [pdf].

Employees in Limbo Land - EEOC Challenges the Solution

One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees. My term for them: "lost in limbo land."

In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.

But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .

The key paragraph from the Complaint:

Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)and (b)(5)(A).

Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:

This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.

With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."

Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.

Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.

Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.

5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case

In a lengthy opinion, the 5th Circuit today reversed summary judgment for the employer where the district court found plaintiff's chronic fatigue syndrome was not a disability under the ADA. EEOC v. Chevron (5th Cir. 6/5/09) [pdf].

The Court also reversed the alternative holding that plaintiff's completion of the medical questionnaire without mentioning her previous diagnosis of CFS 15 years earlier justified her termination.

Although this was not based on the new amendments to the ADA, my guess is that it is a harbinger of things to come -- fewer summary judgments in ADA cases.

Compromise on Capitol Hill -- Coming Soon

When you see these names listed together, what do you think?


American Association of People with Disabilities
American Diabetes Association
Bazelon Center for Mental Health Law
Epilepsy Foundation
HR Policy Association
International Franchise Association
Leadership Conference on Civil Rights
National Association of Manufacturers
National Disability Rights Network
National Council on Independent Living
National Restaurant Association
Society for Human Resource Management
U.S Chamber of Commerce


When attached to a letter to Congressional leaders it means that a compromise on the ADA Restoration Bill is getting much closer.


Thanks to Shopfloor, the blog for the National Association of Manufacturers for the link to the letter and their update on this compromise.


Depending on what happens in the national elections, this could be the harbinger of things to come.

Hurting by Helping? The Law of Unintended Consequences

If the Democratic party gains control of the federal government -- the White House, the House and a veto proof Senate (60 votes), many in the employment and labor law community anticipate a bevy of new laws. For a preview as reported by the good professors at the Workplace Prof Blog, check out House Discusses ADA Restoration Act and the Civil Rights Act of 2008.

Clearly the intent of the authors of those and similar bills is to help either employees in general or at least certain groups of employees. But good intentions don't always mean good results. That's the point of the article in the Freakonomics column in last week's NYT, Red-Cockaded Woodpecker - Endangered Species.

The employment law example was the Americans with Disabilities Act:

The economists Daron Acemoglu and Joshua Angrist once asked a similar question: How did the A.D.A. affect employment among the disabled?

Acemoglu and Angrist found that when the A.D.A. was enacted in 1992, it led to a sharp drop in the employment of disabled workers.

Clearly not what was intended. The reason -- "employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place. " For more you can check out their paper, Consequences of Employment Protection? the case of the Americans with Disabilities Act.

Obviously, you can argue that such actions were also illegal, but it doesn't change the impact.

Rarely are things as simple as they seem.

A hat tip to Will Schendel at the Alaska Employment Law Blog.

Update (12.27.08): For a new article suggesting that the above problem may be a result of the statistics themselves see, The Employment Rate of People With Disabilities at BeSpacific.

ADA Standard in 5th Cir is "Motivating" Not "Sole" Factor

Deciding a question, that probably few thought was in real doubt, a panel of the 5th Circuit last week joined seven other circuits in setting the proper causation standard for Americans with Disabilities cases. Pinkerton v. Paige (5th Cir. 11/13/07).

According to the Court:

Under a plain reading of the statute, and in accord with the position of other circuits, we conclude that the “sole causation” standard is not the appropriate standard for ADA claims. We hold that under a straightforward reading of the statute, the “motivating factor” test should be applied to ADA claims. This is consistent with the law of most other circuits,33 and it is in line with the causation standard we have applied to similar anti-discrimination statutes.

If there was any surprise in the decision for me it was that it had not been decided before.

Another interesting issue was how the Court came to decide it. The case is brought by an employee of the Department of Education under both §501 and §504 of the Rehabilitation Act. The question was whether the "sole" causation standard of §504 or the "motivating factor" standard of §501 was applicable.

Rather than just deciding that specific question, the Court first held that the §501 standard was the same as the ADA, and then resolved the previously undecided issue in the 5th Circuit. Such a departure from the conservative principle of only deciding the question before you may be what caused Judge Jones to concur only in the judgment.

It was also a good reminder to me that even though I don't do public sector work, I shouldn't ignore or read those decisions too hastily as they often have hidden gems applicable to the private sector when you would hardly expect it. Pinkerton is a case in point.

Employer's Burden to Show "Direct Threat" in 8th Circuit

The 8th Circuit today reversed a summary judgment for Wal-mart in an ADA case. EEOC v. Wal-mart Stores (8th Cir. 2/13/07) [pdf]. Most of the disability aspect of the opinion deals with a factual dispute over whether or not an applicant with cerebral palsy could be accommodated as a greeter or a cashier. In a battle of dueling experts, the Court not surprisingly concluded — fact issue, remand for trial.

The Court also held that there was sufficient evidence of pretext to justify trial, given that the hiring manager's explanation that she knew of several short time jobs that he had failed to list as one of the reasons he was not hired, were all things that occurred after he had been turned down.

Before sending it back to the trial court, it also decided a case of first impression in the 8th Circuit, holding that on the issue of "direct threat" the burden lies with the employer as it is an affirmative defense.

6th Circuit Limits ADA Claim in Weighty Decision

Denying a 405 pound dock worker's disability claim, the 6th Circuit holds that morbid obesity (“body weight more than 100% over the norm”), not caused by a physiological disorder, is not an impairment under the ADA. Since it is not an impairment, it can not be relied on to establish a "perceived as" claim. EEOC v. Watkins Motor Lines (6th Cir. 9/12/06) [pdf].

In a concurring opinion, Judge Julia Smith Gibbons finds the holding in part mandated by an errant comma when the EEOC adopted a prior regulation under the Rehabilitation Act:

The difference between the two regulations is slight but important. As noted above, § 1630.2 has a comma separating disorder and condition, whereas § 104.3 does not. This means that under the definition the agency intended to adopt, “physiological” modifies both “disorder” and “condition” rather than just “disorder.” In addition to this statement that the EEOC was adopting the definition of § 104.3, the actual definition given by the agency in the Federal Register does not contain the extraneous comma. See 56 Fed. Reg. at 35740-41. Finally, the definition of physical impairment for the Rehabilitation Act, 29 U.S.C. § 794, which is often interpreted coextensively with the ADA, likewise does not contain the extra comma. See 45 C.F.R. § 84.3(j) (2). Thus, the best reading of § 1630.2 is that the comma following “disorder” is scrivener’s error, meaning that the statute requires a “physiological disorder or condition” in order for a “physical impairment” to exist under the ADA.

Judge Gibbons also notes that it is possible that:

morbid obesity is a disorder that by its very nature has a physiological cause. This would preclude the need for a plaintiff to put forth evidence that his individual case was caused physiologically. No court or agency has ever adopted this position, however, and the EEOC has put forth no evidence, medical or otherwise, to support such a sweeping conclusion.

Bottom line, if you are attempting to make a disability claim based on morbid obesity -- it is critical it be tied to a physiological cause, at least in the 6th Circuit.

2nd Circuit Dodges Questions on Leave as Reasonable Accommodation -- And a Bigger Problem

While hinting at the potential problems with requests for leaves of absence as reasonable accommodations under the Americans with Disabilities Act, the 2nd Circuit avoided most of those issues when it reversed an employer's summary judgment on that issue. Instead it held the district court drew an improper inference that the employee had requested an indefinite leave of absence -- in its view of the appropriate inferences, a jury could conclude the employee asked for a two week leave of absence to see a specialist. The Court could not say such request was for an unreasonable accommodation, given that the employer improperly failed to consider it. Graves v. Finch Pruyn & Company, Inc. (2nd Cir. 7/12/06) [pdf].


But in a footnote discussing the question of leaves of absence as accommodations, the Court commented:

We note, however, that the idea of unpaid leave of absence as a reasonable accommodation presents Â?a troublesome problem, partly because of the oxymoronic anomaly it harborsÂ? Â? the idea that allowing a disabled employee to leave a job allows him to perform that jobÂ?s functions Â? Â?but also because of the daunting challenge of line-drawing it presents.Â?

The Court also wanted to make sure it did not foreclose a second shot at summary judgment by the employer, noting:

On remand, Finch Pruyn should be allowed to move for summary judgment based upon insufficient assurance of GravesÂ?s successful return to work. At this stage, we decline to consider this argument without benefit of the district courtÂ?s analysis.

Some might see this as a little bit of passing the buck back to the district court, perhaps to do its "dirty work" for it. However, I think it may be more a symptom of how difficult it is for courts (not to mention employers) to deal with the ADA -- trying to balance the apparent breadth of the law, with a desire not to allow it to overwhelm both employers and the courts.

The problem lies in one of the fundamental aspects of the ADA -- whether an employee is disabled -- is an after the fact determination. As our ten plus years of history now makes clear, it is frequently not until the appellate court weighs in, that we know the answer to that basic question. However, the obligations of the employer under the ADA depend on it - if the employee is not disabled, no obligation; if the employee is disabled, then the employer had obligations. Finding out five years after the employment decision was made is hardly helpful. (Nor does it seem quite fair that an employer has to make that decision in a short period of time, whereas the courts have difficulty making it after years of litigation and with as much time as they choose to take.)

Is there any solutiondilemmat dilemna short of treating every close case as a disability? If not, is that really what Congress intended?

M.D. Not An Employee for ADA Purposes

A bi-polar physician who retained his hospital privileges only after agreeing to the following restrictions:

meet periodically with a monitoring physician; meet with [certain medical officers] upon demand....take mandatory vacations; limit the time he was on call; participate in therapy; take prescribed medications and refrain from taking unprescribed medications; consume no more than three glasses of wine per week; submit to random biological fluid collection; submit to . . . mental, physical or medical competency examinations demanded of him; limit traveling; release all medical or other personal information relevant to his impairment; submit to review of 100% of his surgical cases for a period of six months from the date of reinstatement; and submit a formal proctorship of his clinic and hospital practice.

was still not an employee for purposes of his ADA and Rehabilitation Act claims. Wojewski v. Rapid City Regional Hospital, Inc. (8th Cir. 6/9/06) [pdf].

Sex v. Sexual Reproduction and the ADA - A View from the Midwest

Although inching closer to the line, the 7th Circuit does not yet agree with the 9th Circuit that the ability to engage in sex, as opposed to the ability to engage in sex for the purposes of sexual reproduction, is a major life activity. Scheerer v. Potter (7th Cir. 4/10/06) [pdf]. That's just one nugget from the case in which the postmaster in a one person station was not able to convince either the district or appellate court that his diabetes rendered him disabled under the Rehab Act (or by analogy, the ADA).

With respect to the distinction between sex and sexual reproduction, the Court noted:

Scheerer’s evidence pertaining to a substantial limitation in sexual reproduction is insufficient. Scheerer complains of reduced sexual drive and difficulty in obtaining erections; he must rely on injections to sustain an erection. His complaint is limited reduced sexual activity, untethered to impairments in sexual reproduction. This alone may be fatal to his claim because this court has not recognized lowered sexual drive or impotence as the types of disruptions than can amount to a disability under the ADA or the Rehabilitation Act.

Two quick thoughts -- one other place the distinction between sex and sex for purposes of reproduction is made (with advance apologies for perhaps not getting the theological niceties down) is the Catholic church's rationale for the ban on birth control. Secondly, it still doesn't answer the question posed by the dissent in the 9th Circuit's recognition of engaging in sexual relations as a major life activity:

I fail to see any causal connection whatsoever with McAlindin's alleged sexual disfunction and the job he wants, the job he has, or the adverse employment actions he alleges he suffered. Is the employer supposed to accommodate his impotence?

Judge Trott, concurring in part and dissenting in part in McAlindin v. County of San Diego, No. 97-56787 (9th Cir. 1999).

And a last thought, it is hard to read the facts of this case and not be sympathetic with the plaintiff, as in fact the Court clearly was; but also not be sympathetic with the courts (in a very different way) for being handed a law with a notable and worthwhile purpose, but very difficult to make work in the real world to protect those in the need of protection without swamping the courts with claims that are not truly what most believe the statute was designed to do. By clamping down hard at the initial stage -- the definition of disability -- the courts have to date kept the statute in check, albeit at a cost to those it was designed to protect, and probably also to the development of the law under the ADA.

I am not sure that approach will hold forever. It would be nice if there were an opportunity for some common sense revision of the statute, but since that would inveitably be seen as a "takeaway" -- that will not happen. In the meantime we will limp along.

"Uncontrolled" Diabetes - And Summary Judgment for the Employee in the 5th Circuit

For some time now lawyers representing both employers and employees have seen "actual disability" cases under the ADA as difficult to make. But just as nature abhors a vacuum so does the law, and more cases are being brought under the "perceived disability" prong. That trend will only quicken following last week's decision in Rodriguez v. Conagra (5th Cir. 11/14/05) [pdf]. The 5th Circuit, not known as pro-employee, not only reverses summary judgment for the employer, but finds the plaintiff was entitled to liability as a matter of law.

Rodriguez worked as a manual labor for Conagra through a staffing agency. Based on his productivity, he was offered a permanent job subject to passing a physical. At the physical, based on a urine sample that showed a high sugar level and his failure to recall the name of his doctor or the medication he took to control his diabetes, the examing doctor termed his diabetes "uncontrolled." Based on that information, the company declined to hire him.

Judge Weiner, in a spirited opinion, relied heavily on the fact that the case was a perceived disability claim which, in his view, completely eliminated the employer's argument that it based its decision on the belief that his diabetes was "uncontrolled." In Judge Weiner's view -- since there was no actual disability, there was nothing that could have been "controlled."

Although many strong supporters of the ADA have decried its effectiveness, this case does show one aspect that works well. The requirement that physical examinations occur only after a job offer has been made, designed to shine a spotlight on any decision that turns on a medical condition - certainly did so here.

A hat tip to the Disability Law blog, which had it right, if perhaps understated, Good Fifth Circuit Diabetes Case, when it reported the case early last week. Rodriguez was not alone in this case as amicus briefs were filed by a group of amicus, AARP, Advocacy, Inc., American Diabetes Association and Coallition of Texans with Disabilities, see their brief here; and a brief by the EEOC. The link to the briefs are collected on the Employment Discrimination page of the website of American Diabetes Association, along with information on other diabetes related cases the Association is following.

Statistics and the ADA - Not a Winner for Plaintiff

Re-emphasizing the Supreme Court's standard that establishing disability under the ADA must meet an "exacting standard," the 4th Circuit holds an employee who needed to lift 75 pounds to do his job, and had a 30 pound lifting restriction following a back injury, was not disabled as that term is defined in the Americans with Disabilities Act.

The plaintiff had tried using a statistical finding by a vocational counselor to show he had a substantial impairment in the major life of activity of working:

The vocational consultant estimated that Taylor’s work experience and educational background qualified him for 3,281 job titles out of the 12,741 job titles listed in the Department of Labor’s Dictionary of Occupational Titles. According to the consultant, Taylor’s injury excluded him from 1,871 job titles, or 57 percent of the job titles for which he would have been qualified absent his injury. These figures translate into disqualification from 370,000 jobs in the Baltimore-Washington metropolitan area. Despite his impairment, Taylor remained able to perform the work involved in 1,410 job titles, or over 130,000 jobs in the region.

The Court assumed without deciding that working is a major life activity, but found the district court's grant of summary judgment for the employer in light of these statistics plus evidence that the plaintiff could engage in a "range of daily activities requiring endurance, flexibility, and some strength" was not wrong. Taylor v. Federal Express Corp. (4th Cir. 11/16/05) [pdf].

Responding specifically to the argument that the district court had not given appropriate deference to the consultant's finding, the Court instead held:

Taylor admittedly retains the ability to engage in a wide range of daily activity and to work in over 100,000 jobs in his geographic region, a reasonable juror could not find that his impairment substantially limits his ability to work.

Happy 15th13th Birthday to the ADA

Actually, in light of all the reports on this being the 15th birthday of the Americans with Disabilities Act, what I should have said to be more accurate was Happy 13th Effective Birthday to the ADA. Those already toiling in the labor and employment law vineyards in 1990 will remember that there was an unusual lead time between the date that the first President Bush signed the legislation on July 26, 1990 and the effective date of Title I that dealt with employment on July 26, 1992. Initially only employers with more than 25 employees were covered. It was another two years, July 26, 1994 before the threshold for coverage was lowered to the current fifteen employees. For the effective date of the various sections, see Americans with Disabilities Act, A Summary.

No telling how many forests were sacrificed to all the writing about the ADA in that two year period (not to mention the moaning and gnashing of teeth). It was primarily, although not exclusively, done by those of us on the management side, never willing to let an opportunity to "excite the troops" go by. As it turns out the ADA has ended up being interpreted in vastly different ways than at least some had predicted. What seemed the common wisdom at the time, "that any lawyer who could not prove anyone was disabled should turn in his bar card," turned out to be oh so wrong. Fortunately for some of us, blogs did not then exist so our predictions are at least not preserved for the whole world to see.

Update: Thanks to the commenter for catching that my dates were off by a decade. I have updated to the correct dates.

"Perceived As Disabled" Entitled To Reasonable Accommodation - 10th Circuit Says

In Kelly v. Metallics, West (10th Cir. 6/7/05) the 10th Circuit wades into a problem that is dividing the circuits - is an employee who is not actually disabled (as defined under the ADA), but is "perceived as disabled", entitled to a reasonable accommodation? The question arose where Beverly Kelly could have accomplished all of the essential functions of her office job, if she had been allowed to use a portable oxygen device. Because with the oxygen device she could perform all of "life's major activities" she was not disabled under Sutton v. United Air Lines.

Her employer was less than enthusiastic, first telling her "no oxygen would be allowed on the premises," and later writing her a letter which included the following:

It appears that your health situation the past few months has not improved. You have lost considerable time and your words to me this morning is that you and your doctor have not found the answer and you would either report to work with an oxygen bottle or lose more time. Either condition does not make for a stable employee. Based on this information, management in a meeting this morning, voted to hire a new replacement for your job.

The challenge arose over the jury instructions, which the company argued allowed it to be found liable if it had failed to reasonably accommodate Kelly. The employee and the district court argued that was not the case, but the appellate court found the instructions did have the effect that the company alleged. Unfortunately for the company, that victory was short lived as the the Court went on to find that it was permissible. Adopting the words from a sister circuit, the Court held:

As the Third Circuit expressed it, the real danger is not that an employee will fail to educate an employer concerning her abilities, but that "[t]he employee whose limitations are perceived accurately gets to work, while [the employee regarded as disabled] is sent home unpaid." Williams v. Philadelphia Housing Auth. Police Dep't, 380 F.3d 751, 773-76 (3d Cir. 2004). That is to say, an employer who is unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employee's abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions.

Based on the Court's analysis of the various circuit courts which have addresssed whether there is an obligation to provide a reasonable accommodation for an individual only "perceived as disabled", the split is 3 for (1st, 3rd and 10th), and 3 against (5th, 6th and 9th). Sounds like a future Supreme Court issue to me, although as the Disability Law blog points out in its post that alerted me to yesterday's decision in Kelly, the Supreme Court has passed on this issue so far, as recently as this past term when it did not take the Williams case from the 3rd Circuit. Just from the opinion, this case doesn't sound like the most favorable fact pattern for those who would oppose such a duty.

The employer had another interesting legal argument on the companion retaliation claim, that in the ADA version of retalation there is no entitlement to compensatory damages. That is the view of the 7th Circuit, see my earlier post, Drafting Error? - 7th Cir. No Compensatory or Punitive Damages for ADA Retaliation Claim. Unfortunately in this case, that argument was not raised with the trial court abd thus was waived so we must wait another day to see if that argument will be accepted by other courts.

Who Should Be More Scared -- Employers or Federal Judges?

On the newly discovered (by me) Disability Law blog, is this post, Travis on the Transformative Potential of Employment Discrimination Law, taken from a recently published law review article in the Washington and Lee Law Review, Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 Wash. & Lee L. Rev. 3 (2005).

What caught my attention was this quote from the article pointing out (in the author's view) a problem with the interpretation of the ADA by the judiciary:

One of the reasons for this disappointing result is that judges have interpreted the ADA and Title VII through the lens of "workplace essentialism." For either the ADA or Title VII to restructure the workplace successfully, judges first must envision an alternative. To do so, judges must be able--and willing--to parse out the malleable ways that job tasks are organized from the actual tasks that comprise the essence of the job itself. Judges repeatedly have demonstrated an inability--or simply an unwillingness--to take this step. Instead, judges have assumed that jobs are defined at least in part by the default organizational structures that make up the full-time face-time norm, thereby placing those structures beyond the reach of antidiscrimination law and undermining the law's transformative potential.

In short, in order to give the ADA the transforming effect that was intended, judges should decide how to re-order work in a much more significant manner than they have so far been willing to do. There are things that we should not task our judges with, and trying to decide how best to redesign the nature of work is probably one of them. I am fairly certain it is a task that not many federal judges would look forward to.