General Practice, Solo & Small Firm DivisionMagazine
Volume 15, Number 3
Making an Employment Case under the ADA
Appellate Court rulings Shed Some Light
BY ANN F. KIERNAN
Recent federal appellate court rulings have addressed the tricky questions of when an impairment is a disability, when an applicant or employee with an impairment is qualified1 for the position, and when an accommodation is reasonable.
Under the Americans with Disabilities Act (ADA), employers are prohibited from discriminating "against a qualified individual with a disability because of the disability of such individual...."2 Discrimination under the ADA is different from discrimination under Title VII because the ADA not only encompasses adverse action motivated by prejudice or fear of disabilities but also includes the employer’s failure to make reasonable accommodations of disabilities. The employer’s obligation to make reasonable accommodations stops when the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business."3
Whether you are representing an individual or an employer, in evaluating an ADA employment case you must first determine whether the person in question is disabled within the meaning of the statute.4 Since the federal appellate courts have rendered a panoply of often conflicting opinions on the question of whether an individual with a physical or mental impairment fits the statutory definition, this task is not as easy as it might appear at first blush.
Physical or Mental Impairment
While the ADA does not define what it means by impairment, the EEOC’s implementing regulations do. The EEOC says an impairment is:
(1) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.5
Determining whether an individual has a medical condition that is an impairment within the meaning of the regulations is a job for medical professionals.
As ADA jurisprudence has developed, a trend has emerged among the appellate courts initially to agree or assume that the plaintiff has an impairment. But that does not automatically mean that the plaintiff has a disability. The next level of analysis is whether the impairment "substantially limits" a "major life activity." The regulations define major life activities as "functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."6
This has lead to some odd results. For instance, wouldn’t you assume that having breast cancer meets the statutory definition of having a disability? Not necessarily, as in Ellison v. Software Spectrum, Inc., 7 where a female employee being treated for breast cancer—certainly a physical impairment within the meaning of the regulations—was nevertheless held not to be disabled within the meaning of the law, since she was able to continue working during her treatment and was not substantially limited in any major life function.
In Katz v. City Metal Co.,8 the plaintiff claimed to have become disabled because of a heart attack. He got no sympathy from the district court judge, who had suffered a similar problem:
The only evidence is that he has a blocked artery that was opened up by balloon angioplasty. That does not show that he has a permanent disability or heart disease. I know. I’ve been there. I had a heart attack.
People recover from heart attacks and go on with life’s functions. I know, I’ve done it, and I had an artery that was completely blocked and not reopened. Because I went through a rehab program where I developed the collateral arteries to take over the function of that artery, now I can perform.
I’m playing tennis. I’m doing aerobic exercises every other day. I can perform fully in my life’s functions as a Judge, where there’s a lot more stress than some other vocations. So I have personal experience in this. Now a judge can’t put aside his personal experiences in life in deciding cases.
I have decided it as a matter of law. I have decided the Plaintiff failed to prove that he had a permanent disability resulting from his heart attack.
In reversing and remanding, the First Circuit noted that it was "unwise for the district court to invoke its own medical experience in explaining its determination that Katz’s evidence was inadequate, since the determination of whether an impairment substantially limits a major activity must be made on an individual basis."
A comprehensive list of all physical and mental impairments that have been declared either to be a disability or not is beyond the scope of this article. However, practitioners should be aware that judicial decisions may be in conflict over whether a particular condition meets the statutory definition. In addition to cancer and cardiac ailments, decisions go both ways on conditions such as asthma, carpal tunnel syndrome, depression, diabetes, obesity, and even monocular (one-eyed) vision. The bottom line? Each plaintiff’s medical condition and any resulting impairment must be considered individually.
In a variety of cases, employees who have physical or mental impairments that substantially impact one or more life activities nevertheless have been held not to be "disabled" under the ADA because their disability makes them incapable of performing one or more of the essential functions of their jobs. Look at Martinson v. Kenny Shoe Corp.,9 for example. Mr. Martinson was a shoe salesman. He was also an epileptic who suffered occasional seizures in the workplace. Testimony at trial revealed that except for Mr. Martinson’s seizures, he was a reliable and capable salesman. However, Mr. Martinson could not perform the essential function of providing store security during his seizures. Over a six-month period, Mr. Martinson suffered 16 seizures at work, each of which lasted five to ten minutes and required him to recuperate for 20 to 45 minutes following. While the court found that Mr. Martinson had been discharged because of his epilepsy, it went on to explain that that discharge did not violate the ADA because Mr. Martinson was not qualified. He could not provide the required store security and no accommodation could have enabled Mr. Martinson to provide uninterrupted security during his seizures.
Similarly, in Mathews v. Trilogy Communication,10 the plaintiff was an insulin-dependent diabetic. While reviewing the driving records of Trilogy’s employees, its insurance carrier discovered that Mathews’ driver’s license had been suspended in the past for driving under the influence of alcohol. The insurance company informed Trilogy that it would continue to monitor the driving records of Mathews and others who had problem records, and that employees with additional violations would be excluded from insurance coverage. Shortly afterward, Mathews had another diabetic attack at home, which resulted in medical bills of $15,000.
Not long after, Trilogy’s insurer discovered that Mr. Mathews had received a speeding ticket and, as it had told Trilogy it would, it excluded Mathews from coverage. As a result, Trilogy further reviewed Mathews’ prior license suspension, and concluded that he had been driving a company car without a valid license during the suspension period. Trilogy asked Mathews to provide any information that would prove the driving record to be inaccurate. When Mathews was unable to refute the investigation of Trilogy and its insurer, his employment was terminated. The court found that because of his motor vehicle record, Mr. Mathews no longer possessed the qualifications to do his job, and that Mr. Mathews’ undisputed medical problems had nothing to do with his termination. His termination was upheld.
Then there is Smith v. Chrysler Corp.,11 where an employee had an unspecified sleep disorder, believed to be a variant of narcolepsy. During pre-employment medical tests and in other employment documents, Smith asserted that he did not have unusual tiredness or fatigue and that he did not have narcolepsy. Smith went to a sleep disorder clinic for treatment, and the clinic advised him that he would need to change his working hours from the night shift to daytime, so that the clinic could perform various sleep tests. The clinic physician sent a request to the company asking that Smith’s hours be changed. A follow-up letter was sent indicating that Smith was under treatment for narcolepsy.
Chrysler did not provide the accommodation. Instead, it began an investigation of Smith’s employment files, which culminated in Smith’s termination. Chrysler claimed it fired Smith because he lied on the medical history form and the driver’s license form by stating that he did not suffer from unusual tiredness and that he did not have narcolepsy. Considering Smith’s claim, the court upheld Chrysler’s termination of Smith for misrepresentations on his employment documents and found that Chrysler had honestly relied on Smith’s statements.
Being Decided as You Read This
Mitigating measures. One of the issues that has divided the courts is whether mitigating measures (medication, prosthetic devices, eye glasses, etc.) should be considered when evaluating a claimed disability. The EEOC’s position is that candidates should be evaluated without regard to mitigating measures.12 While the Supreme Court has stated that the EEOC’s interpretation of its own regulations must be given controlling weight unless it is plainly erroneous,13 some courts have disagreed and held that disabilities should be evaluated based on their mitigated state, while others follow the EEOC’s position.14
The confusion in this area should be resolved by the summer, since the Supreme Court has granted certiorari in three cases addressing this issue,15 and heard arguments in those cases on April 27 and 28, 1999.
Judicial estoppel. Plaintiffs who have applied for Social Security or other disability benefits, and have certified their disability as a condition of receiving those benefits, have been held in a variety of courts to be unqualified plaintiffs under the ADA, based on a theory of judicial estoppel.16 Other courts, noting the differing definitions of disability under the Social Security Act and the Americans With Disabilities Act, have held that disability benefit recipients are not necessarily estopped from asserting ADA rights.17 The Supreme Court has granted certiorari on this issue, too, and should have it resolved this term as well.
Reasonable Accommodation and Undue Hardship
The ADA requires an employer to make reasonable accommodations to the known physical or mental limitations of a qualified disabled individual with a disability, unless the employer can demonstrate that the accommodation would pose an undue hardship. The cases suggest that physical reasonable accommodations, such as adjusting desks or workstations to accommodate wheelchairs, and providing telephone amplifiers, large monitors, and other assistive devices, are rarely the issue any more. An emerging issue in reasonable accommodation is whether attendance at the job is an essential function and whether extra or even unlimited leave is a reasonable accommodation.
In a refreshing instance of clarity in this area of the law, the appellate courts generally agree that attendance is an essential function of a job.18 Requests for indefinite leave have been uniformly rejected as unreasonable, since the purpose of an accommodation under the ADA is to assist a disabled person in performing essential function of the job rather than to hold a job for someone who cannot perform the essential job duties. Further, unlimited leave causes an employer undue hardship.19 If a company has a neutral one-year leave of absence policy, and an employee is unable to return to work after exhausting that period, he has been held to be not qualified.20 However, providing leave within the terms of the company policy is not an undue hardship.21
A rather extreme example is found in Walders v. Garrett.22 The plaintiff argued that the employer was required to accommodate her frequent absences by eliminating its leave restrictions, allowing her to take donated leave, granting her additional leave without pay, permitting her to take unscheduled leave as needed, letting her use compensatory time before she earned it, and having her make up absences before or after they occurred. The court refused, reasoning that allowing the plaintiff to work basically whenever she felt up to it was not a reasonable accommodation.
The courts have split on the question of whether employers must allow telecommuting as a reasonable accommodation. For instance, in Langon v. Department of Health and Human Services,23 a computer programmer with multiple sclerosis was allowed to telecommute, even though the agency contended that it was an undue hardship. The agency’s claimed hardship was substantially undercut by the fact that it had offered telecommuting to other employees. The same issue arose in Anzalone v. Allstate Insurance Co.,24 where the employer denied a claims adjuster’s requested accommodation of working at home, even though it had permitted other claims adjusters to do so.
Several circuits have ruled that even though a particular plaintiff’s job duties were inconsistent with working from a remote location, nevertheless telecommuting could be a reasonable accommodation in other appropriate circumstances.25 Other courts have declined to require telecommuting, particularly if there was evidence that the plaintiff’s work might suffer from lack of supervision.26
While stress is a rapidly growing problem in today’s workplace, the few appellate courts that have considered the question have uniformly found that a transfer to a stress-free job is not a reasonable accommodation.27 Similarly, it appears that requiring an employer to provide an allergen-free workplace is not a reasonable accommodation.28
An employer’s obligation to reasonably accommodate disability does not extend to eliminating essential job functions. In Barnett v. US Air, Inc.,29 Mr. Barnett worked as a customer service agent for US Air. As a result of a back injury, he requested and received a transfer from the cargo area to the mailroom. But as a result of seniority and a bidding process, Mr. Barnett’s employment opportunities again became limited to the cargo area. He could no longer perform cargo duties due to his medical condition. Mr. Barnett asked that an exception be made from the seniority system to allow him to continue working in the mailroom job. US Air rejected that request and also rejected a request that the cargo position be modified to eliminate all lifting. The appeals court found that lifting cargo was an essential function of the job and that US Air had no obligation to eliminate an essential function. The court further stated that US Air was not required to exempt Mr. Barnett from its seniority system.30
Similarly, in Jacques v. Clean-Up Group, Inc.,31 an epileptic employee asked that his employer either provide transportation to and from work or change his start time from 8:00 a.m. to 10:30 a.m. so that the employee could use public transportation. The court held that the employer was not required to provide transportation, and that the 8:00 a.m. start time was an essential function of the job, which the employer had no obligation to alter. A similar result was reported in Jones v. Kerrville State Hospital,32 where the court upheld an employer that refused to exempt an employee from required physical training meant to ensure that employees in a facility for the mentally ill were able to subdue patients with the least risk of harm to the employee or patient.
In rare circumstances, no reasonable accommodation is possible because the employee presents a direct threat to himself or others.33 To protect individuals from discrimination based on prejudice, stereotypes, or unfounded fear, the Supreme Court has required an individual, direct threat inquiry that relies on the best medical or objective evidence.34 In LaChance v. Duffy’s Draft House, Inc.,35 a man with epilepsy was hired as a line cook in a restaurant. During the first night of work Mr. LaChance had two seizures, during one of which he walked into a wall. On the second night of work Mr. LaChance had another seizure. After three months, his supervisor suggested he take two weeks off from work in order to stabilize on his new medication. When Mr. LaChance attempted to return to work, he was told that he was terminated.
The restaurant argued that Mr. LaChance was not a qualified individual because he could not perform his cook’s job safely. The supervisor stated that Mr. LaChance was required to cook on a gas grill, use a deep fryer, and use slicing machines. Even Mr. LaChance’s physician testified that someone like Mr. LaChance should be restricted from working with grills, hot ovens, and the like. The court ruled that Mr. LaChance was not a qualified individual because he could not perform the essential functions without the threat of harm to himself or others. It held that there was no way to accommodate Mr. LaChance in any way that would have allowed him to perform as a line cook.
In Nunes v. Wal-Mart Stores,36 an employee had a fainting disorder that resulted in at least one instance where she required stitches to her eyebrow. While the manager had what the court termed "a legitimate fear" that Ms. Nunes was a direct threat to herself and to others, Wal-Mart did not meet its affirmative obligation of proving that Ms. Nunes was dangerous.
An HIV-positive surgical technician was held to pose a direct threat to the patient health and safety, and no reasonable accommodation could be provided by his hospital employer. The court specifically found in Mauro v. Borgess Medical Center37 that there was no way to eliminate a direct and significant threat to patient health and safety, since Mr. Mauro was sometimes required to put his hands into body cavities near sharp implements. In addition, Mr. Mauro himself testified that sometimes he held incisions open for surgeons and admitted to twice cutting his hands with a needle and a knife blade. No accommodation was possible to eliminate this threat.
Issues on the Horizon
In addition to the questions of whether a disability should be considered with or without mitigating measures and whether a benefit recipient’s statements about disability prevents her from an ADA claim, another issue for which there is no clear guidance is whether the ADA creates a cause of action for a hostile work environment. Many courts have proceeded on the assumption that such a cause of action exists but have avoided a definitive ruling.38 Further, the courts disagree about whether the burdens of production and persuasion on the issues of reasonable accommodation and undue hardship are properly placed on the plaintiff or the defendant, or somehow should be divided between them.39 CL
1. A "qualified individual with a disability" under the ADA is a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
2. 42 U.S.C. § 12112(a).
3. 42 U.S.C. § 12112(b)(5)(A). According to the most recently available statistics, the ADA violation most often cited to the EEOC is discharge (51 percent), followed by failure to provide reasonable accommodation (31 percent). See www.eeoc.gov/stat/ada.html.
4. "Disability" is "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
5. 29 C.F.R. § 1630.2(h).
6. 29 C.F.R. § 1630.2(i). Working is a disfavored major life activity. 29 C.F.R. §1630.2(j)(3). Plaintiff’s counsel considering taking an ADA case where the plaintiff’s only affected major life activity is working would be well advised to reconsider the case. See Annotation, "What Constitutes Substantial Limitation On Major Life Activity Of Working For Purposes Of Americans With Disabilities Act," 141 ALR Fed. 603 (1998).
7. 85 F.3d 187 (5th Cir. 1996).
8. 87 F.3d 26 (1st Cir 1996).
9. 104 F.3d 683 (4th Cir. 1997).
10. 143 F.3d 1160 (8th Cir. 1998).
11. 155 F.3d 799 (6th Cir. 1998).
12. 29 C.F.R. § 1630.2(j).
13. Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386 (1994).
14. See Sutton v. United Airlines, 130 F.3d 893 (10th Cir. 1997), cert. granted, 119 S.Ct. 190 (Jan. 8, 1999); Kirkingburg v. Albertsons, Inc., 143 F.3d 1228 (9th Cir. 1998), cert. granted, 119 S.Ct. 191 (Jan. 8, 1999).
15. In addition to the two cited above, Murphy v. United Parcel Service, 141 F.3d 1185 (10th Cir. 1998), cert. granted, 119 S.Ct. 190 (Jan. 8, 1999).
16. See, e.g., Cleveland v. Policy Management Systems Corp., 120 F.3d 513 (5th Cir. 1997), cert. granted, 119 S.Ct. 39 (Oct. 5, 1998); McNemar v. The Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996), cert. den., 117 S.Ct. 958 (1997). A subsequent panel of the Third Circuit limited McNemar to its facts, stating that "courts should not assume that McNemar always bars an individual’s ADA claims merely because prior representations or determinations of disability exist in the record." Krouse v. America Sterilizer Company, 126 F.3d 494, 503 nn. 3 to 5 (3d Cir. 1997).
17. Blanton v. Inco Alloys International, Inc., 108 F.3d 104, 109-110, supplemented on rehearing, 123 F.3d 916 (6th Cir. 1997); Aldrich v. Boeing Company, 146 F.3d 1265 (10th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461 (2d Cir. 1997); Rascon v. U.S. West Communications, 143 F.3d 1324 (10th Cir. 1998); Johnson v. Oregon, 141 F.3d 1361 (9th Cir. 1998); Moore v. Payless Shoe Source, 139 F.3d 1210 (8th Cir. 1998); Swanks v. Washington Metro Area Transit Authority, 116 F.3d 582 (D.C. Cir. 1997).
18. Waggoner v. Olin Corp., 169 F.3d 481, 483 (7th Cir. 1999); Nesser v. Transworld Airlines, 160 F.3d 442 (8th Cir. 1998); Hypes v. First Commerce Corp., 134 F.3d 721 (5th Cir. 1998); Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996); Tyndall v. National Education Centers, 31 F.3d 209, 213 (4th Cir. 1994); Jackson v. Veterans Administration, 22 F.3d 277 (11th Cir. 1994).
19. Walton v. Mental Health Association of Southeastern Pennsylvania, 168 F.3d 661 (3d Cir. 1999); Johnson v. Foulds, Inc., 113 F.3d 133, full opinion at 1997 U.S.App. LEXIS 3386, *7 (7th Cir. 1997); Monette v. Electronic Data Systems, 90 F.3d 1173, 1178 (6th Cir. 1996); Hudson v. MCI, 87 F.3d 867 (10th Cir. 1996); Myers v. Rose, 50 F.3d 278 (4th Cir. 1995).
20. Gantt v. Wilson Sporting Goods Company, 143 F.3d 1042 (6th Cir. 1998).
21. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998).
22. 765 F.Supp. 303 (E.D.Va. 1994), aff’d mem., 956 F.2d 1163 (4th Cir. 1995).
23. 959 F.2d 1053 (D.C.Cir. 1992)
24. 74 F.3d 1236 (5th Cir. 1995)
25. Misek-Falkoff v. IBM, 854 F. Supp. 215, 228 (S.D.N.Y. 1994), aff’d mem., 60 F.3d 811(2d Cir.), cert. den., 116 S.Ct. 522 (1995); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994).
26. Vande Zande v. State of Wisconsin, 44 F.3d 538, 544 (7th Cir. 1995); Whilock v. Delta Air Lines, Inc. 926 F.Supp. 1555, 1556 (M.D. Ga. 1995), aff’d mem., 86 F.3d 1171 (11th Cir. 1996) (relying on Vande Zande).
27. Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 581 (3d Cir. 1998); Gonzagowski v. Widnall, 115 F.3d 744, 747-8 (10th Cir. 1997); Weiler v. Household Finance Corp., 101 F.3d 519 (7th Cir. 1996); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996); Carozza v. Howard County, 847 F.Supp. 365 (D.Md. 1994), aff’d mem., 45 F.3d 425 (4th Cir. 1995); Marino v. United States Postal Service, 25 F.3d 1037, 1039 (1st Cir. 1994);. Petersfield v. Tennessee Valley Authority, 941 F.2d 437 (6th Cir. 1991).
28. Cassidy v. Detroit Edison Company, 138 F.3d 629 (6th Cir. 1998).
29. 157 F.3d 744 (9th Cir. 1998).
30. In Willis v. Pacific Maritime Association, 162 F.3d 561 (9th Cir. 1998), the Ninth Circuit joined the Third, Fifth, Seventh, Eighth, and Tenth Circuits in holding an employee’s proposed accommodation unreasonable if it conflicts with the collective bargaining agreement between the employer and the union.
31. 96 F.3d 506 (1st Cir. 1996).
32. 142 F.3d 263 (5th Cir. 1998).
33. 42 U.S.C. §12113(b); 29 C.F.R. §1630.2(r).
34. Bragdon v. Abbott, 118 S.Ct. 2196, 2210 (1998).
35. 146 F.3d 832 (11th Cir. 1998).
36. 164 F.3d 1243 (9th Cir. 1999).
37. 137 F.3d 398 (6th Cir.), cert. den., 119 S.Ct. 51(1998). See also Doe v. Univ. of Maryland, 40 F.3d 1261 (4th Cir. 1995) (surgical resident with HIV could not be accommodated). In a case decided under pre-ADA state law, an HIV-positive surgeon was required to notify his patients of his condition as part of their informed consent to surgery. Estate of Behringer v. Princeton Medical Center, 249 N.J. Super. 597 (Law Div. 1991).
38. See, e.g., Walton v. Mental Health Ass’n of Southeastern Pennsylvania, 168 F.3d 661 (3d Cir. 1999); Wallin v. Minnesota Department of Corrections, 153 F.3d 681 (8th Cir. 1998); McConatathy v. Dr. Pepper/7UP Corp., 131 F.3d 558, 563 (5th Cir. 1998); Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir.), cert. den., 119 S.Ct. 407 (1998). On January 19, 1999, a federal jury in Trenton, New Jersey, awarded $227,000 to a mentally disabled employee in one of the first plaintiff’s verdicts in an ADA hostile environment case. Lanni v. New Jersey, Civ. No. 96-3116 (D.N.J.), noted in Smith, "Cruel, Costly Comments," ABA Journal, May 1999, p. 24.
39. See Borkowski v. Valley Central School Dist., 63 F.3d 131, 136-7 (2d Cir. 1995) (noting the various approaches and charting a middle course).
Ann F. Kiernan is a sole practitioner in New Brunswick, New Jersey. Her practice focuses on preventative employment law for employers. She is chair of the ABA Labor and Employment Section’s Technology Subcommittee. She can be reached at firstname.lastname@example.org m.