Is pregnancy a disability? The true false version

Three of my colleagues, Robin Shea, Eric Meyer, and Jon Hyman have written excellent blog entries on the latest EEOC guidance dealing with pregnancy discrimination. There is also a section of that guidance dealing with how pregnancy may also constitute disability discrimination under certain circumstances. I thought it would be informative if I did a bit of a different take from my colleagues on this by focusing on the disability discrimination aspects of the enforcement guidance in a true false format. So here goes:

1. Pregnancy is a disability

Answer: False

Pregnancy by itself is not a disability. However, if a pregnancy involves a physical or mental impairment that substantially limits one or more major life activities, then it is. You don’t think of pregnancy as being a physical or mental impairment. However, depending upon the pregnancy, it certainly can lead to a physical or mental impairment. The next question is whether a substantial limitation on one or more of life’s major activities is involved. This raises two other questions. First, what does it mean to be substantially limited? The EEOC in their final regulations defined substantially limits as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. Also, keep in mind that under the amendments to the ADA an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active. Second, what is a major life activity? Under the amendments to the ADA, 42 U.S.C. § 12102(2), major life activities can include many different things (this list is not exhaustive): 1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and 2) including the operation of major bodily functions, such as but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions (the EEOC in its final regulations at 29 C.F.R. § 1630.2(I)(i),(ii) added the major life activities of sitting, reaching, and interacting with others). The EEOC in their guidance gives some examples of pregnancy related impairments that may substantially limit major life activities, such as but most certainly not limited to: pelvic inflammation, which may substantially limit the ability to walk; pregnancy related carpal tunnel syndrome, which may substantially limit the ability to lift or to perform manual tasks; disorders of the uterus or cervix necessitating certain physical restrictions to enable a full term pregnancy or resulting limitation following childbirth; pregnancy related sciatica, which may substantially limit musculoskeletal functions; gestational diabetes, which may substantially limit endocrine functions; and preeclampsia, which may substantially limit cardiovascular and circulatory functions.

In short, while pregnancy itself is not a disability, it is quite conceivable that pregnancy, the nature of it being what it is, will lead to a physical or mental impairment that substantially limits one or more major life activities.

2. There is no requirement under the ADA as amended that an impairment must last a particular length of time to be considered substantially limiting.

Answer: True

It is absolutely true that a temporary disability can be a disability under the ADA as I discussed in this blog entry. But you say, a disability has to last at least six months before it is considered a disability. That is not correct. The six-month provision only applies to allegations of being regarded as having a disability and in that situation the disability has to be both transitory and minor for the six-month rule to apply. If the disability does not satisfy both criteria, then the six-month rule, assuming allegations of regarded as, would not apply. If a person is alleging an actual disability, then the six-month rule doesn’t apply at all.

So what is an employer to do? Good question. First, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified, i.e. capable of performing the essential functions of the job with or without reasonable accommodations, so that needs to be factored in as well.
3. How a person became impaired is irrelevant to the determination of whether an impairment is a disability.

Answer: True

People get disabilities for all kinds of reasons. Some are born with them and others get them later. The only question under the ADA is not how they got the disability, but rather whether they have a physical or mental impairment that substantially limits one or more major life activities. The EEOC and Department of Justice regulations specifically state this as well.

4. A reasonable accommodation is having someone perform an aspect of the employee’s essential job functions.

Answer: False

In this respect, I have to take issue with example 22 of the EEOC enforcement guidance. In particular, the example they give is this one:

“A warehouse manager who developed pregnancy related carpal tunnel syndrome was advised by her physician that she should avoid working at a computer keyboard. She is responsible for maintaining the inventory records at the site and completing a weekly summary report. The regional manager approved a plan whereby at the end of the week, the employee’s assistants input the data required for the summary report into the computer based on the employee’s dictated notes, with the employee ensuring that the entries are accurate.”

The critical question here is whether inputting the data required for the summary report into the computer is an essential function of the job. If it is not, then having someone else complete the task is not a problem. However, if it is, the employer is under no obligation to have someone else do that job for the employee. That said, under the ADA that person has to be a able to do the job with or without reasonable accommodations. If this is an essential function of the job, then the employer has to consider if there is a reasonable accommodation available. One that comes to mind, is voice dictation, particularly since the reference to carpal tunnel implies a problem with typing. What other reasonable accommodations might work would involve getting more information pertaining to why did the doctors say she should avoid working at a computer keyboard. Was it because she couldn’t type, which is what the examples seem to imply, or was it because of the sitting, or something else?

5. An employer is required to waive a workplace policy if a person with a disability cannot satisfy it.

Answer: False

It should be pointed out that there is a contradiction between the questions and answers about the EEOC’s enforcement guidance on pregnancy discrimination related issues and the actual enforcement guidance. That is, the question-and-answer in example 25 suggests that an employer has to allow a water bottle at a workstation even where water bottles at workstations are prohibited by company policy for good reasons. On the other hand, in one of the examples in 22 of the enforcement guidance, it says that the employer arranged for a person who needed regular intake of water because of a pregnancy related kidney condition to have a table placed just outside the file room where the employee could easily access water. The former, assuming following the policy is an essential function of the job, would not be a reasonable accommodation while the latter would be.

6. Granting leave in addition to what an employer would normally provide under a sick leave policy for reasons related to disability is a reasonable accommodation.

Answer: Maybe. Wait a minute, I can’t answer a true or false question with maybe can I? Okay, then I guess I have to say probably false. There I go again. Okay, I am going to say false because it would depend on the circumstances. Whew…….

We know that the family medical leave act grants 12 weeks of leave to care for a serious medical health condition. We also know that leave beyond that amount of time may also be a reasonable accommodation providing a person can give a definite date of when they will return to work. We also know that one court has said that anything more than six months of leave total is unreasonable as a matter of law. The thing about family medical leave is that there are requirements before a person is eligible to take that leave. For one thing, they have to work a certain number of hours in a calendar year. For another, the employer has to have at least 50 employees within a certain radius. So, the EEOC is saying that if a person does not have FMLA coverage or does not have sufficient sick leave coverage, it is a reasonable accommodation to grant leave, which may be unpaid, to deal with the pregnancy related disability. I don’t think the answer is so simple (see the link in this paragraph above). This will definitely depend upon the facts and circumstances of the situation.

7. It is a reasonable accommodation to temporarily assign an employee with a disability to light duty.

Answer: True

However, that assumes that the employer has a light-duty system. They are under no obligation to create such a system if they don’t have one. Also, it assumes that the person cannot do the essential functions of his or her job with or without reasonable accommodations. Finally, it assumes that the person can do the essential functions of the light-duty position with or without reasonable accommodations. One last thing, the employer may want to consider reassigning that person to a job where she can do the essential functions of the position with or without reasonable accommodation rather than a light-duty position (see the discussion of this blog entry).

BUT Don’T FORGET ABOUT THE PREGNANCY DISCRIMINATION ACT

The EEOC says in their enforcement guidance that if a pregnant employee needs light-duty (temporary work less physically demanding than her normal duties), the employer is required under the Pregnancy Discrimination Act to provide it because an employer cannot treat pregnant workers differently from employees were similar in their ability or inability to work based on the cause of their limitations. This I find terribly problematic. What this arguably says is that if you have a pregnant employee who does not have a disability, light-duty may still be demanded under the Pregnancy Discrimination Act because light-duty might be required in that situation if the person has a disability. If this is the reasoning, this is very bizarre. It is possible that this is not what is intended at all because the example that the EEOC mentions is that an employer may not deny light-duty to a pregnant employee based on a policy limiting light-duty to employees with on-the-job injuries. If the example is what the EEOC is trying to address by the confusing language, then I see no problem with it. Since the ADA does not care a hoot about how a person got a disability, I never understood policies that treat people differently depending upon how they got the disability and the same should go for pregnancy. Unfortunately, the literal reading of the language seem to suggest something else. At a minimum, this language creates a very confusing distinction between pregnancies and disabilities (I recognize that considering how broadly disability is defined under the amendment to the ADA the distinction may be more theoretical than practical. That said, the language is terribly confusing).

9. The EEOC enforcement guidance on pregnancy discrimination related issues is likely to be adopted by the courts.

Answer: Probably False

I believe the answer is false for several reasons, though I am hedging with probably since you never know what courts are going to do. First, when it comes to enforcement guidances, they have not gone through the proper rulemaking process. As a result, the courts are free to use them or not and many times they choose not to (for example, the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), specifically rejected EEOC enforcement guidances in reaching their decision. True, the amendments to the ADA specifically overruled this decision, but the point remains that when it comes to EEOC enforcement guidances, a court is free to accept or reject them as they wish because they have not gone through the proper rulemaking process. Second, some of the things in the guidances are problematic, as discussed here and by my colleagues mentioned above, and that may give courts pause. Third, this enforcement guidance was not adopted unanimously. In fact, it was only on a narrow 3-2 decision that it was adopted. Finally, the Supreme Court of the United States recently granted certiorari on a case where disability discrimination in the context of pregnancy could very well could come up.

In summary, I never liked guidances, with one exception. Guidances to my mind are often a crutch for attorneys and prevent deeper level reasoning. They also can make things unnecessarily confusing and promote even more litigation. With respect to what was discussed in this blog entry, I would expect both to become true. At any rate, dealing with pregnancy just got a lot more complicated.

Is a person with a disability entitled to an attorney in a civil matter as a reasonable accommodation under title II of the ADA or under state law?

One of my more popular blog entries is the blog entry that discusses suing a state court system for disability discrimination. I also have a second blog entry following up on that blog entry.

This blog entry explores a related topic. Let’s say a person with a disability finds themselves in the court system in a civil matter. The person with a disability because of their disability simply cannot access the court system properly without an attorney. Does the ADA or, for that matter, a state antidiscrimination law, mandate that an attorney be appointed for that person with a disability much in the same way as an attorney is appointed for someone who cannot afford an attorney in a criminal matter? A case that doesn’t specifically address this question, but raises this issue is, Weems v. Bd. of Indus. Ins. Appeals, 2014 Wash. App. LEXIS 1659 (Wash. Ct. App. July 8, 2014).

As is my usual practice, I have the blog entry divided into sections. These sections for this blog entry are: facts, court’s holding, what the court wanted to know more about, and takeaways. The reader is free to focus on any or all of the categories of this blog entry.

I
Facts

In 1973, the plaintiff suffered an on-the-job injury where he was struck in the head by a cable, broke cartilage in his nose, and bruised his nose and face. Over the years, the plaintiff suffered other injuries as well, including falling 75 feet off a water tower and having his face strike a wall at home in 1997. In 2007, the plaintiff applied to reopen his claim due to the worsening of injuries caused by the 1973 accident. From here, the facts get a little complicated. Suffice to say, what happened is at the trial level, the workers compensation system in the State of Washington made clear that he should have an attorney, but that it would have to be at his own expense. His wife tried to assist through the process, but was clearly uncomfortable and made it clear that the plaintiff did not have the ability to understand and participate in the proceedings the way he needed to without legal counsel. She expressed quite a bit of unhappiness that counsel would not be appointed for them. The plaintiff himself did not seem to want legal counsel, but on this point, the facts were murky. At any rate, what happened is once the lower-level decision was appealed, counsel was appointed for the plaintiff, but that obligation ended once the case got sent back down to the lower levels. This happened twice in the same way. After the second time, an appeal was taken into the state court system where the plaintiff claimed that the Superior Court erred because the Board discriminated against the plaintiff in violation of the ADA and the Washington Law against Discrimination.

II
Court’s Holding

The court said that they could not review the claim because the record lacked findings of facts on material issues.

III
What the Court Wanted to Know More About

The court wanted to know the following things:

1. Was the plaintiff a person with a disability as defined by the ADA as amended and under the Washington Law Against Discrimination?

2. Did the plaintiff requests that the Board appoint him counsel as an accommodation for his disability? If not, was the plaintiff’s need for accommodation obvious to the Board?

3. The Superior Court needed to figure out whether the Board’s alternative to the appointment of counsel at public expense (such as plaintiff’s ability to hire an attorney on a contingency fee basis, the plaintiff’s wife assistance as a lay representative, and the industrial appeals Judge’s questioning of witnesses), either: A. failed to provide the plaintiff with the level of service comparable to that enjoyed by nondisabled claimants; or B. deliberately failed to accommodate plaintiff’s disability so as to discriminate against him.

4. Would appointment of counsel at public expense unduly burden the Board?

IV
Takeaways:

1. If you are running a state court system or even a federal court system, make sure you have an ADA compliance manual that informs everyone what their obligations are. The Illinois Attorney General has developed an excellent one in this area, though it is not perfect. Regardless of the compliance manual that you use, it is worthwhile to have that compliance manual reviewed by an attorney with expertise in the ADA so that any gaps in the compliance manual can be filled in.

2. If a person has a disability and is involved in the state court system, judges and court personnel need to be on the lookout to decide whether that person’s disability is something in need of accommodation. If so, the court system should initiate the interactive process.

3. Keep in mind, that a court system failing to engage a person with a disability in order to make sure that they can access the court system, runs the real risk of not only violating title II of the ADA but also violating the equal protection clause of the 14th amendment because when it comes to accessing the courts, persons with disabilities are at least in the intermediate scrutiny or higher class for equal protection jurisprudence per Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). In English, this means a state court system violating title II of the ADA also probably violates a person with a disability’s equal protection rights as well.

Be careful about taking accommodations that are working away

I know I generally blog on Mondays, but this has been a strange week between client matters and an unusual family schedule.

Also, it isn’t unusual for those who blog to wind up blogging on things that some other blogger has covered. I don’t mind doing that so long as we have different perspectives that we can offer. This particular case is one of those things that I did see in the blogosphere/Internet, though the specific place I saw it escapes me at the moment. As is typical with my blog entries, I have divided this blog entry into categories. In this case: facts, issue, the court’s reasoning, and takeaways. Of course, the reader is free to concentrate on any or all of the sections of the entry.

I
Facts:

The case is Isbell v. John Crane, Inc., 2014 U.S. Dist. Lexis 37182 (N.D. ILL. March 21, 2014). In this case, you had a chemical engineer with ADD and bipolar disorder who was on a number of medications all of which made it difficult for her to function in the early morning because they did not kick in until several hours after she awoke. Her first supervisor informally had no problems with her arriving late as she was getting the work done and regularly showing up to work. Another supervisor subsequently took over, and he acquiesced to her request that she could continue to arrive at work at 10 AM so long as she completed her projects on time, which she did. She also furnished a doctor’s note to her second supervisor supporting the request to show up for work late. Subsequently, she suffered an injury and was given medication, which also did not help with being able to get going in the early morning. Of course, a different supervisor eventually comes in, and the supervisor has a problem with the late start since a late start was not typical for everybody else. When the early start was in force, the plaintiff of course had trouble meeting the early start and started racking up the penalty points. The reasonable accommodation process did not reach a satisfactory end and eventually plaintiff was terminated. Plaintiff then sued alleging disability discrimination. She also sued for retaliation and sex discrimination as well.

II
Issue

Can you have disability discrimination where an employer takes away a reasonable accommodation that is working?

III
Court’s Reasoning

Yes (on this issue, the PLAINTIFF’S motion for summary judgment was granted), and here is why:

1. Absent evidence that an existing accommodation places an undue hardship (the court uses, “undue burden” interestingly enough even though this is a title I case and the proper term would be “undue hardship”), on the employer, it is not reasonable for an employer to withdraw an existing accommodation;

2. If the existing accommodation is creating problems for the employer, it is the employer’s obligation under the ADA to work with the employee to adjust the existing accommodation in an attempt to correct those problems and not simply alter the accommodation unilaterally to the plaintiff’s detriment;

3. Before the management change, the employer had already made a reasonable accommodation to enable the plaintiff to do her job for some 2 1/2 years by allowing her to start later. Further, the employer offered no real reason as to why the new management, who had no prior knowledge of the special arrangement or of the plaintiff’s need that prompted it, should be entitled to start subjecting her to a one-size-fits-all timing regimen. In fact, the ADA precisely rejects uniformity of treatment absent an individual analysis of a person with a disability’s situation and their essential job functions.

4. This was not a situation where the employee was absent routinely, and therefore raised the question of whether attendance was an essential function of the job, rather, this employee regularly showed up to work and did her job, albeit starting at a later time.

5. The employer’s sudden replacement of a start time that was working with the more onerous schedule without considering the plaintiff’s known disability constituted an unreasonable failure to continue to accommodate that disability under the ADA.

As an aside, the court did wind up granting summary judgment to the employer on the retaliation and on the sex discrimination claims.

IV
Takeaways:

1. I can’t tell you how often I see in the case law a situation where something is working with one supervisor and then everything goes crazy when a new supervisor comes in. The employer needs to have a system in place so that supervisors that are coming into a situation are briefed on the situation and are trained in how to deal with them. Every new supervisor should have training on the applicable laws and regulations, including but not limited to the ADA.

2. Employers need to focus on whether an individual is living up to their capabilities with or without reasonable accommodations for their disabilities. If they are and such an accommodation does not constitute an undue hardship, either logistically or financially, leave well enough alone. After all, what the employer should want is a productive employee and not a situation where a policy is slavishly followed at the expense of the individual employee and the ultimate expense of the employer. As the court says in this case, imposing uniformity without doing an individual analysis of the situation the person with a disability finds themselves in with respect to their disability and the essential functions of their job, is something that the ADA specifically rejects.

3. If an accommodation is working, don’t change it unless you can back up that the current accommodation is constituting a logistical or financial undue hardship. Even if you can back it up, engage in the interactive process with an employee first instead of making a unilateral change.

4. An employer should not encourage slavish devotion to policy.