Is attendance always an essential function of the job?

When the ADA first was enacted back in 1990 and went into effect in 1992, the Internet was just getting started. Back then, it was pretty obvious to everyone that an essential function of the job must mean showing up for it. Since then, technology has evolved quite a bit so now many people can do their work from just about anywhere. Therefore, whether attendance is an essential function of the job is now a case-by-case decision. How does one go about figuring out whether attendance is an essential function of the job? In my opinion, the leading case on this issue is the case of Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012). In this case, a neonatal nurse had fibromyalgia (a rather hard condition for physicians and patients to get a handle on and one that can limit effective sleep and which has as one of its components chronic pain/nerve pain throughout the body). As a result of her fibromyalgia and how it affected her, Samper was unable to regularly come to work in accordance with the employer’s attendance policy. Eventually, she was discharged for several reasons, including having seven absences in the 12 month period as well as a general problems with attendance. She then filed suit alleging violation of the ADA.

In affirming summary judgment for the employer, the Ninth Circuit held that regular attendance is an essential function of the job where the job requires attendance. The court goes on to give some great preventive law tips as to how you could know when that job requires attendance. A job requires attendance according to Samper, where the employee must work as part of the team, the job requires face-to-face interaction with clients and other employees, or the job requires the employee to work with items and equipment that are on site. With respect to Samper, the Ninth Circuit said that all these requirements were satisfied considering the nature of being a neonatal nurse and the stakes involved for the hospital’s patients when the hospital is not staffed adequately.

A recent case that follows Samper is Mecca v. Florida Health Services Center, Inc., 2014 WL 408431 (M.D. Fla. February 3, 2014). In this case, the plaintiff was employed as a peripherally inserted central catheter nurse. Such a nurse inserts a peripherally inserted central catheter line into patients, which is an intravenous catheter that is typically inserted through a large vein generally in a patient’s upper arm and then threaded into the patient until it rests in the body directly next to the patient’s heart. It is a job that requires adherence to proper procedures and strict sterile techniques in order to avoid high risks of infection. Mecca’s disability involved panic attacks and anxiety. The accommodation he sought was in the form of leave. With respect to his particular symptoms, they included nervousness, anxiety, incontinence, and sleeplessness, among other things. After several consecutive weeks on FMLA leave, he brought a medical note from the doctor releasing him to work three days a week for 8 to 12 hours a day. However, on his first day at work back from leave, he did not respond to any request for consults, which are requests to assess a patient to insert a line. He also left for the day prior to the end of his shift. After numerous communications with the human resources department indicating that he would be subject to discipline, including termination, for failing to respond to consults, he submitted his resignation. He subsequently applied for Social Security disability benefits claiming he was unable to work as of May 8, 2010 and he was successful in that application.

In finding for the hospital, the Middle District of Florida found Samper persuasive. It also found that the role of the nurse that did what he did was very similar to one of a neonatal nurse. Accordingly, the court found that attendance at work was an essential job function of his job. The court also found that the plaintiff by filing for Social Security Disability Income was judicially estopped from pursuing his ADA case since he did not give an explanation sufficient to warrant a reasonable juror to conclude that he could perform the essential functions of the job with or without reasonable accommodation notwithstanding the representations made in the application for Social Security Disability Income.


1. When trying to figure out whether an essential function of the job includes attendance, the first step should be to look at the Samper criteria.

2. Keep in mind that even a job that satisfies all these criteria upon initial review may not be a job where attendance is an essential function of the job. For example, the Fifth Circuit in Carmona v. Southwest Airlines Company, 604 F.3d 848 (5th Cir. 2010), held that a flight attendant for Southwest Airlines may not have been in a job where attendance was an essential function in light of the airlines extremely lenient attendance policy, which thereby created a question of fact for the jury to decide.

3. It would behoove the employer to have data to back up its contention with actual practice that attendance is an essential element of the job regardless of whether the particular job at issue meets the Samper criteria.

4. On the plaintiff’s side, if the plaintiff is taking on an ADA case, the plaintiff’s attorney needs to explain the risk of filing for Social Security Disability Income should the client be suggesting that that is something he or she wants to do. If the attorney is an SSDI attorney, that attorneys should make it a part of a routine part of his or her practice to explain how the filing of an SSDI claim may compromise a future ADA claim. Failure on the part of the plaintiff’s attorney or the SSDI attorney to make that explanation may lead to a legal malpractice claim. For a blog entry of mine discussing judicial estoppel, take a look at this particular blog entry. With respect to legal malpractice, I wrote an article on it for the DuPage County Bar Association Journal, The Brief. I expand on that article on pages 142-143 of my book. On the defense side, whenever a person sues for discrimination on the basis of disability in employment, it needs to be a discovery item as to whether that person filed an SSDI claim.

What Kennedy Giveth Scalia Taketh Away?

I want to wish all those celebrating Passover, which started yesterday, and Easter, which is Sunday, a happy holiday.

This blog entry is divided into separate categories, but unlike my usual system, the categories are little bit different. Here we have: introductory comments, the case that is the subject of this blog entry (Burrage v. United States), whether a certain aspect of the court’s reasoning in that case (I call it reason 9), will become controlling as it might apply to ADA matters, and takeaways.

Introductory Comments

One of my most popular blog entries every day involves the United States Supreme Court decision in University of Texas Southwestern Medical Center v. Nasser where the United States Supreme Court in a 5-4 ruling, with Justice Kennedy being the swing vote, held that mixed motive is dead with respect to retaliation claims under title VII of the Civil Rights Act. As mentioned in that blog entry, the reasoning in that opinion is such that this decision most certainly means mixed motive is dead with respect to retaliation claims under the ADA; thereby, giving a huge victory to ADA defense lawyers. On the other hand, the reasoning of the majority is such, that mixed motive is now in play under title I of the ADA; thereby, giving a huge victory to ADA plaintiff employment lawyers. In a second blog entry, I discussed a case out of the District Court in Oregon holding that mixed motive is in play for employment discrimination claims under the ADA.

As anybody knows who has taken an introduction to law class, lower courts are bound by decisions of higher courts. Thus, if Nassar was the last word on mixed motive, there is, as I mentioned in my blog entries above, little doubt that mixed motive would apply to title I claims. However, what if the United States Supreme Court sends confusing messages, then what are the lower courts to do?

It is curious as to how I found out about the particular case that is the subject of this blog entry. My office is not far from the Emory Law school and I have had the privilege of benching various moot court teams as they prepare for their competitions. This year, I benched the criminal procedure team as they prepared for their competition. Their problem set was based upon two cases that were before the United States Supreme Court, which decisions came down before the regional competitions occurred.

The Case That Is the Subject of This Blog Entry (Burrage v. United States)

One of the cases that the problem set was based on was the case of Burrage v. United States.

Burrage is a criminal procedure case and therefore, would seem to have nothing to do with the ADA. However, that case is a causation case and that is where it becomes relevant for our purposes. In this case, a longtime drug user died following an extended binge that included using heroin purchased from Burrage. The purchase of the heroin from the defendant was a contributing cause to Burrage’s death but could not be said to be a but for cause. The controlled substances act imposes a 20 year mandatory minimum sentence on a defendant who unlawfully distributes a schedule one or two drug when death or serious bodily injury results from the use of such substance. Thus, the issue the U.S. Supreme Court was faced with was whether this statutory provision has any causation element to it. If so, what is that causation standard? Assuming a causation standard, the U.S. Supreme Court could have gone any of three ways. First, they could have applied a contributing factor test, which what was the grant of cert seemed to assume. Second, they could have applied a substantial factor test along the lines of what is commonly seen in tort law. Finally, they could have applied a but for causation test.

Scalia in coming to the conclusion that but for causation was the way to go and therefore reversing the Eighth Circuit’s imposition of the mandatory sentence reasoned as follows:

1. Because the enhancement increases the minimum and maximum sentences for a defendant, whether “death resulted,” is an element that has to be submitted to the jury and found beyond a reasonable doubt. Accordingly, the statutory phrase “resulting from,” must mean “death caused by.”

2. When the law speaks of causation, it speaks of both actual cause and legal cause.

3. Citing to the New Shorter Oxford English dictionary, Scalia says a fair interpretation of “results from,” is but for causation.

4. The Model Penal Code also says that conduct is the cause of a result if it is an antecedent but for which the result in question would not have occurred.

5. You can still use but for causation even where there is multiple causes so long as the other causes alone would not have produced a different result.

6. Scalia analogizes it to a baseball game where a team wins one to nothing and he goes on to say that every person competent in the English language and familiar with baseball would agree that the victory resulted from the home run and that it is besides the point that the victory also resulted from a host of other necessary causes, such as skillful pitching and the like. Therefore, it makes little sense to say that an event resulted from the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event.

7. He cites to Nassar when he notes that they held that retaliation requires but for causation.

8. Scalia rejects the argument that contributing factor, which he equates with substantial factor, should be the rule because “results from,” requires that to result from use of the unlawfully distribute drug, not from a combination of factors to which drug use merely contributed. If Congress did not intend but for causation they could have specified as much and they didn’t. He also goes on to note that contributing factor, or substantial factor, is not a test that is easily applied.

What I find interesting about the court’s reasoning with respect to the rejection of contributing factor/substantial factor is that the court seems to assume that the two tests are the same. It doesn’t have to be that way. Contributing factor could conceivably refer to any factor while substantial factor could require a higher standard along the lines of tort law. In fact, Scalia mentions that very point in his opinion, when he says- citing to Prosser and Keeton’s Law of Torts- that even in tort law excepting the situation where two causes are independently effective-, no cases has been found where the act was a substantial factor when the event would have occurred without it. This isn’t quite the way I learned it back in law school and one wonders whether a scholarly analysis of tort law cases applying the substantial factor test would reach the conclusion that substantial factor and but for causation are really the same test.

9. Reasoning numbers 1-8 could be dealt with easily enough. However, Scalia also mentions in his opinion while discussing Nassar that but for causation is not limited to statutes using the term, “because of.” For example, the Supreme Court has held that “based on,” indicated but for causal relationship. They have also held that “by reason of,” requires at least a showing of but for causation.

More on Reasoning 9

If reason 9 become controlling, it could have a huge impact on ADA matters. First, both title I and title III of the ADA contain on the basis language. Second, title II of the ADA contains by reason of language. Are there arguments against reason 9 becoming controlling with respect to title I and title III ADA matters? In my opinion, there are and those arguments would be as follows:

1. Reason 9 is arguably dicta as this reason wasn’t necessary to the decision in Burrage

2. The reasoning of Justice Kennedy in Nassar suggests that reason 9 could not become controlling with respect to title I and, for that matter, title III matters. In particular in Nassar:

A. Justice Kennedy and the majority make a distinction between status-based claims and retaliation claims. Status-based claims are subject to a mixed motive analysis as a result of the Price Waterhouse v. Hopkins decision, which he discusses in some detail. He also discusses how the Civil Rights Act was amended in 1991 so as to allow for limited recovery for mixed motive situations.

B. Justice Kennedy spends some time talking about Gross v. FBL Financial Services and that but for causation is required for claims under the Age Discrimination in Employment Act. He notes that title VII is very comprehensive, and therefore, its specific structure needs to be taken as it is laid out. In particular, the structure of title VII of the Civil Rights Act makes clear that status discrimination gets treated in one way and that there is no indication that retaliation should be treated in the same way. What is critical here for our purposes is that disability discrimination is status discrimination. That is, the plaintiff is alleging that an employer has discriminated against him based upon his or her status, i.e. having a disability.

C. Justice Kennedy said that if Congress wanted mixed motive to apply to retaliation claims, “it could have inserted the motivating factor provision as part of the section applying to all such claims, such as 42 U.S.C. §2000e-5, which establishes the rules and remedies for all title VII enforcement actions.” (emphasis added). With respect to the ADA, this language is a virtual slam dunk that mixed motive is in play with respect to title I claims because the ADA specifically references 42 U.S.C. § 2000e-5 as the remedies available to a plaintiff alleging discrimination under title I of the ADA. See 42 U.S.C. § 12117(a). I should point out here that further support of the argument that the ADA’s reference to § 2000e-5 in title I means that Congress intended to include mixed motive is the legislative history of why “qualified individual with a disability,” was kept in. In particular, Congress wanted to make clear that the indirect burden of proof, which presumes a motivating factor, was still in play. H.R. Rep. 110-730(I) at discussion of, “Discrimination on the Basis of Disability.” Further, that same legislative intent also says that the reason why Congress went from “because,” from the original ADA to “on the basis,” in the amendments act was to make the ADA more like title VII so that the emphasis would be placed on the critical inquiry of whether a qualified person with a disability have been discriminated against on the basis of disability and not on the question of whether a particular person was even a person with a disability in the first place. Id.

D. Justice Kennedy specifically cites to the ADA. In particular, he notes that the ADA is also a comprehensive statutory scheme and that Congress in the ADA clearly spoke to retaliation separate and apart from status-based claims.

3. As mentioned by the Oregon District Court decision in a blog entry mentioned above, there is this:

A. The amendments act to the ADA dropped “because,” in favor of “on the basis of disability,” as the causation standard.

B. The amendments act to the ADA was done specifically for the purpose of broadening the scope of the ADA after the Supreme Court had interpreted the ADA narrowly.

C. The court referred to the legislative history regarding “on the basis of,” which, as we have talked about before, says that the ADA is meant to mirror the structure of nondiscrimination protection found in title VII of the Civil Rights Act. That legislative history, as we have mentioned before, also talks about how indirect evidence and mixed motive cases should be permitted under the ADA discrimination causes of action.

D. The court also noted plaintiff’s argument stating that under Nassar motivating factor applies to status-based claims, which a title I ADA suit most certainly is.

E. The court concluded that the ADA discrimination provision is substantially more similar to title VII status-based discrimination than to the retaliation provision, and accordingly, existing precedent in the Ninth Circuit, which uses motivating factor, had to be respected.


1. I am very glad that I benched (since I know that this term also applies to what members of the Jewish faith, particularly those tracing their ancestry to Europe – Ashkenazics- call grace after meals, I always do a double take when I hear the term in the moot moot court context), the Emory Law school criminal procedure moot court competition because this particular case has a definite impact on the world of ADA jurisprudence. In particular, it most likely means that mixed motive causation under title II of the ADA is dead because that title uses “by reason of,” language. Prior to this decision, I think an argument could have been made that the difference between “solely by reason of,” and “by reason of,” meant that the omission of the word solely in title II of the ADA was significant, particularly in light of the changes to title I and title III of the ADA with respect to getting rid of the “because of,” language in favor of, “on the basis language.” Therefore, title II arguably could get a mixed motive jury instruction but the Rehabilitation Act could not. I am not sure that this argument will work anymore in light of reason 9. I suppose a counter argument would be that title II still involves status-based discrimination. However, it’s remedies are tied into the Rehabilitation Act and the causation standard in title II of the ADA was not changed by the amendments. All of that when combined with reason 9 would make it very difficult, in my opinion, for this counter argument to succeed.

2. Will reason 9 become controlling with respect to title I and title III of the ADA? I don’t think so because of Justice Kennedy’s opinion in Nassar, which the Oregon District Court based their decision upon. Also, the nature of title III being what it is, mixed motive rarely comes up in title III matters. Even so, this decision now give defense attorneys permission to argue that Nassar notwithstanding, but for causation is the rule for title I claims. Again, as mentioned above, it is hard to believe that such an argument would succeed because it would mean doing away with the reasoning of Justice Kennedy in Nassar. That said, reason 9 arguably makes such an attempt no longer frivolous.

3. One wonders if this decision will have a huge impact on tort law with respect to cases involving substantial factor when it comes to causation. Will state courts revisit substantial factor cases using Scalia’s reasoning in this case? If so, will they get different results from what they currently do if they apply Scalia’s test of whether the multiple causes play an essential contributing role in producing the event. If so, is “essential contributing role,” the same as, “but for?”

Professional licensing authorities and sovereign immunity

Recently, I talked about a decision from the 11th circuit which displayed a very good understanding of disability, in that case deafness, in a way that you do not often see in judicial decisions. Oftentimes when you are reading a case, you wonder whether a judge gets “disability,” so to speak. This particular blog entry is about one of those cases where you do wonder. In particular, consider the following statement: “the district court properly found that legitimate public safety concerns could provide a rational basis for Kansas to restrict the license of a nurse who has to take the licensing exam with accommodations in order to pass it.” Such a statement seems to suggest that a person with a disability who receives accommodations is receiving an unfair advantage by getting the accommodations. Such is not the case, as I have mentioned in my book over the years, a reasonable accommodation is anything that gets the person with a disability to the same starting line and is not about giving a person with a disability an unfair advantage.

In case you were wondering where the quote above came from, it comes from the case of Turner v. Council of State Boards of Nursing, Inc., 2014 WL 1303366 (10th Cir. April 2, 2014-an unpublished decision). As usual, the entry will be divided into four sections: facts, issues, court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections.


Turner is a person with dyslexia and one of the common side effects of dyslexia is test taking anxiety. As a result of his dyslexia, Turner was given accommodations when taking exams in school, which included extra time, a private room, and someone to read the questions to him when necessary. Once he received his college nursing degree, he contacted the board to find out if he could take the licensing exam with those accommodations. He spoke to an individual who said that his request would be taken care of if he provided proof with school records that he suffered from dyslexia, confirmed that his college had given him the same accommodations he was seeking, and furnished a letter stating the specific accommodation requested. He then later applied to take the licensing exam, but the application did not provide a place to indicate the need of or for requesting accommodations. He contacted the individual at the board that he’d been talking to and was told that if he took the exam with accommodations and passed it, he would receive a restricted unlimited license. A month later when he tried to contact the individual again, he was told that the individual he had been talking to no longer worked at the board. Importantly, the plaintiff never alleged that he ever submitted to the board materials that the former employee of the board told him was necessary to obtain accommodations for the exam. Nevertheless, he took the the exam without accommodation and failed it. Also, he never alleged that dyslexia or resulting test taking anxiety either caused or contributed to his failure, but rather there was a problem with the administration of the specific test. After failing the exam, he then contacted both the board and the entity administering the test to see if he could appeal his test with both of them telling him that there was no point in appealing because no test result was ever changed. He then sued the board for damages alleging violations of title II of the ADA. He also sued the Council, which administers the test, alleging violation of title III of the ADA.


1. Did Congress validly abrogate the state’s sovereign immunity under title II of the ADA with respect to claims involving professional licensing examinations?

2. Can he proceed under Ex Parte Young?

3. Did the plaintiff allege enough facts to allow the case against the Council, which administers the exam, to go forward?

Court’s Reasoning

Issue 1

1. The court relied heavily on the case of Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012), a case involving a physician whose medical license was revoked based on his mental condition.

2. As we have discussed previously, sovereign immunity cases, come down to what equal protection tier a person with a disability falls into. We know with respect to employment, that persons with disabilities fall into a rational basis class as a result of Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001). We also know that persons with disabilities fall into a higher class with respect to the fundamental right of access to the courts as a result of Tennessee v. Lane, 541 U.S. 509 (2004). Finally, we also know that sovereign immunity is waived if the allegations reach a level of a violation of the constitutional right, such as equal protection, under U.S. v. Georgia, 546 U.S. 151 (2006). The court relying on Guttman reiterated the view they expressed there that: the constitutional right plaintiff was asserting was of a person with a disability’s right to practice in their chosen profession, which does not merit heightened scrutiny; Congress did not identify a history of irrational discrimination in professional licensing when enacting title II of the ADA; and with respect to the class of cases involving disability discrimination in professional licensing, the title II remedy was not congruent and proportional to the harm being redressed. In plain language, once a person with a disability is put in the rational basis class, everything else follows. That is, the title II scheme is simply too comprehensive to remedy harms of a person in the rational basis class, and accordingly, the defense of sovereign immunity prevails.

Also, I don’t know if it is dispositive that Congress did not identify a history of irrational discrimination in professional licensing when enacting title II of the ADA. It simply could have been that it never occurred to Congress to explore that. We do know from our own blog, such as the blog entry dealing with the Louisiana State Bar, that some states have engaged in what is arguably irrational discrimination in professional licensing.

3. Legitimate public safety concerns could provide a rational basis for Kansas to restrict the license of a nurse who has to take the licensing exam with accommodations in order to pass it.

As mentioned above, this statement fundamentally misunderstands what a reasonable accommodation is. That is, a reasonable accommodation is something that gets a person with a disability to the same starting line. It is not something that gives a person with a disability an unfair advantage. The court’s statement by itself would seem to suggest that either nobody should be allowed to take an exam with accommodations or that anybody who does take an exam with an accommodation gets an automatic license restriction. Again, that’s not right. The issue should be can the person perform the essential functions of the job of that the license grants him or her to do with or without reasonable accommodations. That is, in this case, could the person perform the essential functions of being a nurse with or without reasonable accommodations. That would mean knowing the essential functions of the job of being a nurse. It also means knowing whether any accommodations would either constitute an undue hardship/undue burden either in the financial or logistical sense. Finally, it would also mean knowing whether the person is a direct threat to himself or others.

Issue 2

1. The Ex Parte Young doctrine is an exception to 11th amendment immunity that permits suit against state officials seeking to enjoin alleged ongoing violations of federal law. It is based on the idea that when a federal court commands a state officials to do nothing more than refrain from violating federal law, he or she is not the state for sovereign immunity purposes.

2. An Ex Parte Young complaint must allege an ongoing violation of federal law and seek relief that is prospective.

3. Plaintiff did not allege any ongoing policy or conduct by the state defendants that violated the ADA, rather the allegations related solely to past conduct. Plaintiff did not ask for prospective relief, such as an order directing the defendant to admit him to retake the examination with accommodations. In fact, his counsel told the magistrate judge in an email following a scheduling conference that the plaintiff did not wish to take the exam again.

4. The amended complaint did not specify what declaratory and/or injunctive relief was being sought. Even if the plaintiff sought an injunction requiring the state defendant to allow them to appeal his failing test score, that relief would have not been prospective rather it would only have remedied the past alleged wrong and not prevented a future violation. Therefore, it would not fall within Ex Parte Young.

Issue 3

The court dismissed the claim against the Council as well because the plaintiff could not show that the discrimination he suffered was caused by his disability.



1. If professional licensing matters fall within the rational basis class with respect to persons with disabilities, that means that the person with a disability that suffers discrimination in violation of title II of the ADA is going to be restricted to claims for prospective injunctive relief, and it must be clear from the complaint what prospective relief is being sought.

2. There are cases out there that say the receipt of federal funds waives sovereign immunity for purposes of the Rehabilitation Act. However, pursuing a Rehabilitation Act claim means that the person with a disability would have to show that they were discriminated against solely by reason of the disability, rather than by reason of disability (the ADA standard under title II, which may or may not be the same thing as the Rehabilitation Act standard). That may be a very tough road to go on because when it comes to licensing matters the disability may play just a part in the ultimate decision of the licensing authority.

3. Since the relief requested must be for prospective injunctive relief, a plaintiff is going to be much better off filing suit earlier than later. That is, once a plaintiff realizes that there may be an automatic restriction because of taking the test with an accommodation or realizes where the professional licensing process is headed by reason of/or on the basis of his or her disability, it may make sense to bring a title II/Rehabilitation Act/Ex Parte Young claim for injunctive relief sooner than later so that the court can be convinced that the relief is prospective and not reaching back into the past. On a policy level, one wonders about forcing a plaintiff into this kind of mode because it means that the chances for completing the matter internally in a collaborative way goes down rather than increases.

4. The portion of Turner talking about how a rational basis exists to impose restrictions whenever a person takes a test with accommodations is extremely problematic if there is an interest in diversifying a group of professionals to include persons with disabilities. It also may be a view that the Department of Justice would not agree with if their reaction to the State Bar of Louisiana is any indication. Thus, if a licensing authority does have a practice of imposing restrictions whenever a person takes a test with accommodations they may want to go very slow with respect to that practice and probably even reconsider it despite what this opinion seems to suggest.

5. In dealing with an ADA/Rehabilitation Act case, you always have to be cognizant of causation. Keep in mind, that causation between title III of the ADA and title II of the ADA are arguably not the same. Also, causation with respect to title II of the ADA and the Rehabilitation Act may or may not be the same (an argument on that can be made either way).

6. This decision is unpublished and so you have to check your rules as to the precedential value of the decision. That said, the decision does rely heavily on a published decision of the 10th circuit, Guttman, 669 F.3d 1101 (10th Cir. 2012).

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