The Double Whammy of Pregnancy and Disability after Young v. UPS: EEOC Steps in

This is an update to the blog entry that I previously posted. I am revising it because upon further review, it is NFL season after all (Go Falcons!; Go Cubs too!), I realized that confusion was created over when the amendments to the ADA went into effect versus when the final regulations of the ADA went into effect and what that all means. So, what appears below is a revised blog entry taking into account all of that. I have divided the blog entry into categories: introduction; initial thoughts on the complaint; let’s have some fun; moving away from the hypothetical, confusion still exists; other thoughts; and concluding thoughts. I am not sure how the reader of this blog entry could only read certain categories and not the whole thing (excepting III maybe), but the reader may find the categories helpful for understanding the structure of the entry.


Previously, I had commented upon the EEOC regulations dealing with accommodating pregnancy. After that blog entry, the United States Supreme Court weighed in on that with Young v. UPS . You can find that blog entry as well as a mention of Young v. UPS in the comments section associated with that blog entry here. I then came across this case, which Robin Shea then wrote a great blog entry on, which can be found here (I sent a blurb about the case along to Robin, but the complaint itself I got from Robin’s blog entry). Robin’s blog entry is great as usual, but I thought I would share some of my own thoughts as well (especially since Robin convinced me that people might be interested in me doing so). So here goes.

Initial Thoughts on the Complaint

1. According to the complaint, Landis Communities and Landis Homes Retirement Community are an integrated enterprise maintaining interrelated operations, common management, centralized control of labor relations, as well as common ownership and financial control. They are an organization that manages three senior housing communities and provide eldercare services in Lancaster County Pennsylvania.

2. The occurrences occurred in April 2010 and in March 2011. This seems strange for a couple of reasons (Robin also thought it strange). First, before someone can go to court to file a claim for disability discrimination in employment, they have to exhaust administrative remedies first. That means, they have to file a claim with the EEOC or an equivalent state agency. If there is no equivalent state agency, the claims have to be filed within 180 days of the occurrence. If there is an equivalent state agency (which Pennsylvania apparently is), the deadline gets extended to considerably longer, 300 days. In either event, the right to sue letter was issued by the EEOC in 2015. As Robin points out, something is off here.

Let’s have some fun. If this incident had occurred over the time period of 2008 and 2009, then you would have some very interesting legal issues:

1. If the incidents had occurred in 2008 and 2009, the analysis would go like this: First, the ADAAA didn’t go into effect until January 2009. Second, Young v. UPS is a recent case. So, the first question is with respect to a hypothetical occurrence in 2008, would the plaintiff have a disability? Since our hypothetical occurrence occurred in 2008, the rules would be analyzed under the rules in effect prior to the ADAAA. That would mean analyzing whether the plaintiff has a physical or mental impairment that substantially limits a major life activity as it was then analyzed. That in turn, means analyzing whether the plaintiff was prevented or severely restricted from performing a major life activity per Toyota Motor Manufacturing Kentucky v. Williams. It also means asking per that same case whether the major life activity was of central importance to most people’s daily lives. In this particular case, the plaintiff had an incompetent cervix (Robin has an excellent link to what that condition is in her blog entry, which I am posting here for reference).

2. We know from Bragdon v. Abbott, which can be found here, that reproduction is a major life activity. From reading a description of incompetent cervix, it is pretty clear that without surgical intervention, such a condition would prevent or severely restrict a person from becoming pregnant. So, prior to January 2009, a good argument exists that the plaintiff with a hypothetical occurrence in 2008 had a disability under the ADA as it was defined prior to the amendments. But here’s the thing: she requested the accommodation after she had surgery relating to repairing the incompetent cervix. Prior to the amendments to the ADA, the Supreme Court had said in Sutton v. United Airlines , here,that mitigating measures must be factored into the analysis as to whether a person had a disability. So, with respect to a hypothetical occurrence in 2008, the question would become whether she was severely prevented or restricted from reproducing after the surgery? Sutton also talks about how temporary disabilities are not protected by the ADA. In short, with respect to a claim involving the occurrence before January 2009, whether a plaintiff on these facts had a disability is a bit of a nightmare. It means asking whether she was prevented or severely restricted from performing a major life activity (assuming that is the standard that would apply since Toyota explicitly focused on manual tasks. Even so, most courts were extending this definition across disabilities), in this case reproduction, after the surgery since there appeared to be no issue prior to the surgery. It also means asking whether the lifting restriction she requested was for a temporary disability as it was then defined.

Moving Away from the Hypothetical, Confusion Still Exists

1. Even though the ADA, the amendment to the ADA went into effect January 2009, the facts of this case still have plenty of confusion to deal with. The reason being that the EEOC took over two years to publish the final regulations implementing the amendments to the ADA. Those regulations were published on March 25, 2011 and effective May 24, 2011.

2. If you look at the time frame of the occurrences in the complaint, the first occurrence occurred on April 26, 2010, a little more than one full year before the final regulations were published. The second and third occurrences (the advice of the termination already having happened and the date she was actually terminated), occurred on April 12, 2011, and on March 31, 2011, respectively. The 2011 dates dates are after the final regulations were published, but before they became effective. That means, for all of the dates, you are still left with the question of just how the definitional terms would be defined because the final regulations were either not published or not in effect. Absolutely, you have to start with the amendment to the ADA itself but since the regulations were either not published or not in effect, you arguably would only have the statute to go by. That means you would know that mitigating measures are not factored in. You would also know that reproduction would be a major life activity. However, you would not know what it means to be substantially limited in a major life activity. You also would not know how temporary disabilities might be handled. Therefore, because of the timing of the federal regulation, it is possible that the defense could argue that the EEOC final regulations do not apply in this case and that a court would have to look at the statute itself with respect to determining what the definitional terms mean.

Other Thoughts

1. The complaint does say that the defendant had a policy or practice of accommodating lifting restrictions of non-pregnant employees similar in their ability or inability to work. However, this policy was in effect long before the decision came down from the Supremes in Young v. UPS. Hard for me to believe that Young would be retroactive.

2. If the final regulations issued by the EEOC do not apply to this case because of the timing of the occurrences, an argument can be made that the plaintiff did not have a disability as defined by the ADA as amended, however, she doesn’t need a disability if she is alleging that she was retaliated against for asserting rights under the ADA. The complaint alleges that the employer placed the plaintiff on an unpaid, indefinite leave of absence on the same day that she submitted her reasonable accommodation request. If that is true, it certainly opens up the employer to a retaliation claim regardless of whether the plaintiff had a disability. Of course, assuming a retaliation claim, whether the plaintiff is able to get compensatory and punitive damages is a completely different question as we discussed in this blog entry.

3. The complaint alleges that starting in April 2010, the plaintiff attempted to engage in the interactive process with the defendants regarding her ability to continue working with reasonable accommodations, but the defendants rebuffed those efforts and failed to offer any reasonable, effective alternative that would allow her to continue working. This also opens up the employer to a failure to engage in an interactive process claim, which depending upon the Circuit a person is in can be a separate cause of action. Regardless of whether such a separate cause of action exists, it also opens up the employer to a claim of terminating the interactive process and subjecting them to liability that way as well. That is, the employer has the obligation to engage in the interactive process once the person with a disability makes that request. The general rule is that the party stopping the interactive process bears the consequences.

4. In April 2010, the complaint alleges that the defendant told the plaintiff to reapply for her old positions after she gave birth and was able to return to work without restrictions. If this allegation is true, the employer has a problem because 100% return to work policies are not kosher. For that matter, that was my view prior to the amendment to the ADA as well (many editions of my book, Understanding the ADA, prior to the amendments act stated as much. Also, readers may want to check out this blog entry on 100% return to work policies).

5. The complaint alleges that in March 2011, the plaintiff applied for a staff nurse and a nurse supervisor position. One month later, the defendants advised her that she had been terminated effective March 31, 2011. Furthermore, she was told by the defendant that they would not consider her for the for the positions which she applied because defendants had no notice that the previous lifting restrictions had ended.

6. The employer told the plaintiff that she was terminated effective March 31, 2011, but she was being given that information on April 12, 2011, that the employer would not reconsider her for position for which she applied because they had no notice that the lifting restrictions had ended. The key here is that she was terminated and now because she was terminated and she has an application in after her termination, she is no longer an employee of the company. That means, the argument is created, which is an argument being made by the EEOC in this complaint, that the employer is making a prohibited pre-employment medical/disability related inquiry. If she had not been terminated, the employer might have been able to argue that the inquiry was job-related and consistent with business necessity, concepts we discussed in this blog entry, but the termination preceded being told the information about the lifting restrictions not being lifted and that such lifting was a necessity prior to being considered for any job that she had applied for. Another item raised by this is whether every job that the plaintiff was applying for had as their essential functions lifting more than 25 pounds, and whether if so, whether that particular essential function could be done with or without reasonable accommodations.

Concluding Thoughts

1. In short, the length of time between when the occurrence happened and when the EEOC is stepping in is a bit problematic.

2. Also, even assuming no issue there with respect to the filing of the EEOC charge, the fact that the adverse employment actions occurred before the final regulations of the EEOC were either published or went into effect makes things a bit of a nightmare as that means the meaning of the definitional terms with respect to this case is uncertain.

3. A retaliation claim would seem to be a distinct possibility as is a claim dealing with prohibited pre-employment disability related inquiries.

3. Finally, this case becomes incredibly complex as befitting the complicated law that the ADA is. There would seem to be good reasons, based upon what we have discussed in this blog entry, why both sides would want to settle this case. It will be interesting to follow developments.

ADA and the “Sports Association.”

For years, I refereed and umpired basketball and softball. The entity for managing the referees and umpires were associations whose sole purpose was to deal with the referee side of things. Referees and umpires were ostensibly independent contractors (whether they are would be the subject of a separate blog entry and will not be the focus of this one). Also, many youths and athletic programs are run by associations as well. Today’s case deals with the question of what happens when such an association discriminates on the basis of disability. Can they be sued under title I, title III?

Today’s case is Nathanson v. Spring Lake Park Panther Youth Football Association, which can be found here. As is my usual practice, I have divided the blog entries into categories: facts; court’s reasoning the kids; court’s reasoning the parents; and takeaways. The reader is free to focus on any or all of the categories.


Prior to 2014, the Blaine/Spring Lake Park Athletic Association organized youth football programs in the Spring Lake Park area (Minnesota). The Blaine Athletics Association grew so much that a separate football Association, Spring Lake Park Panther Youth Football Association was created for youth residing in Spring Lake Park or attending school in the Spring Lake Park school district. In 2011 and then in 2013, two deaf kids, brothers, joined the Blaine Athletic Association. In 2011 and 2012, Blaine Athletic Association arranged and paid for ASL interpreters for games and practices. In 2012, the Blaine Athletic Association permitted the use of a sideline drum that was struck upon the snap of the football on each play. The purpose of that drum was to signal when each play started. Beginning in August 2013, the Fridley school district, where both kids attended school, provided ASL interpreters for football practices, game, and meeting under the boys IEP. However, Fridley in 2014, determined that because the football Association was not a Fridley public school sponsored event, it would no longer provide interpretation services for the kids. The plaintiff then requested the football Association to provide interpreter services for games and practices but the football Association denied that. The football Association did not provide interpreter services for the fall 2014 football games or practices and they also discontinued use of the drum. Accordingly, the two deaf kids struggled to identify when the play started.

Before moving on, it should be noted that the use of the interpreter and the drums is an accommodation that has already worked with respect to deaf people playing football. It is the way Gallaudet University fields its football team.

The parents of these kids also ran into trouble with the football Association. In particular, their father was an assistant coach for the team of the child who started with the Athletic Association in 2011. In May 2014, the father applied for a head or assistant coach position with the football Association. The football Association refused to provide him with an ASL interpreter for the mandatory prospective coaches meeting. Therefore, he provided his own interpreter and completed all the paperwork required to apply for the position. However, he was not offered the coaching position despite a shortage of coaches. Also, the football Association did not secure an ASL interpreter for either him or his wife at a mandatory parent meeting held on August 11, 2014. No ASL interpreter was provided by the football Association for September 21, 2014 board meeting. Finally, the football Association did not provide an interpreter for the kids mother at the mandatory, “tackle football mom’s clinic,” in August 2014, plaintiffs brought suit alleging that the football Association violated both title III of the ADA and the Minnesota Human Rights Act (while we will not discuss the Minnesota Human Rights Act in this blog entry, the court did find that the football Association was a place of public accommodation under that law). The football Association defended on the grounds that they were not a place of public accommodation and that with respect to the parents, they lacked standing to bring a title III claim as the parents complaint on their own behalf was alleging employment matters subject to title I and not title III.

Court’s Reasoning Kids and Title III

The court disagreed with the defense’s arguments and reasoned as followed:

1. The categories of 42 U.S.C. § 12181(7)(A-F) must be construed liberally in order to afford individuals with disabilities equal access to the establishments available to those without disabilities.

2. Regulations implementing title III of the ADA define a place of public accommodation as a facility operated by a private entity whose operation affects commerce.

3. To make a prima facie case for title III of the ADA, a plaintiff has to show: 1) that he is a person with a disability as defined by the ADA; defendant is a private entity owning, leasing, or operating a place of public accommodation; and 3) the defendant failed to make reasonable modifications that do not fundamentally alter the nature of the public accommodation.

With respect to 3 of subparagraph three, this section of the ADA is very confusing even to those who deal with the area all the time. The way this thing theoretically works is that if you are talking about modifying policies, practices, and procedures, the standard is fundamental alteration. However, if you are talking about are auxiliary aids and services, the standard is fundamental alteration or undue burden. The distinction is theoretical in all probability and not practical. Since undue burden can be both logistical and financial. Undue burden in the logistical sense is frequently equated with fundamental alteration, and I personally think that is the best approach.

4. An entity not directly connected with a physical place can meet the definition of a place of public accommodation, particularly when it comes to sports associations. After all, the football Association operates a youth football Association that host football practices, games, and social event for registered participants. Such conduct satisfies the definition of what the plain and ordinary meaning of the term operate would mean (put or keep in operation, control or direct the function of, or to conduct the affairs of, or manage). Further, the football Association uses the football fields as the primary location for its activities, and the football field would be places of recreation subject to title III of the ADA. Since the football Association’s games and practices are presumably scheduled in advance, it follows that the football Association probably has an arrangement with the City of Spring Lake Park allowing access and control to the fields.

Parents and Title III

The court disagreed with the defense arguments that the parents lack standing to bring a title III claim for the discrimination they faced and reasoned as follows:

1. If the matter was strictly limited to the parents ability to volunteer, then this court believed the claim would be more appropriate for title I than title III. However, the parents complaint was not limited to their inability to volunteer. In particular, the mother was unable to fully participate in mandatory meetings because the football Association failed to provide ASL interpreters. The father was denied the ability to participate in mandatory meetings because of his disability. The inability to participate in mandatory meetings is a closer fit to being a client or customer rather than being an employee and therefore, the title III claims of the parents can proceed.


1. It is a strange choice that the football Association made with respect to fighting the suit. The ADA and their implementing regulations make it quite clear that title II and title III entities have the duty to engage in effective communications, which we have discussed numerous times before in this blog, including here, with persons with disabilities. Also, use of the drums is something that is used all the time with respect to the deaf playing football. Since these accommodations are happening all the time without event, showing a fundamental alteration would seem to be impossible. That said, in this particular case, the football Association did submit financial records in an effort to demonstrate that providing ASL interpreters would be an undue burden on the football Association, but the court refused to convert the motion to dismiss into a motion for summary judgment. Even so, as we have mentioned previously in this blog, it would seem to be a very difficult proposition for the football Association to show that providing interpreters would be an undue financial burden, especially if all the resources of the Association are taken into account (the requirement set forth by the implementing regulations). Further, the cost of such accommodations would certainly not be more expensive than the cost of litigation. Finally, the predecessor football Association was providing these accommodations. Again, interesting choice of strategy.

2. What about the claim pertaining to the inability of the parents to volunteer for the Association. In particular, the inability of the father to be a coach despite being qualified, as the ADA would define the term, to be a coach. After all, he had already been an assistant coach and he had played football. Where does he turn to pursue the claim? He might start by reading this blog entry, which focuses on how § 504 of the Rehabilitation Act might be an avenue in such a situation if the entity takes federal funds. Having been a member of such associations in the past as a referee, showing that the Association takes federal funds may not be a simple proposition. The other option is to pursue a claim under title III alleging that the inability to volunteer denied them the privileges and benefits of the place of public accommodation, which was the argument that proved successful in this case, but one this court did not seem inclined to agree with.

3. The problem that exists with respect to a court not taking the approach of utilizing the Rehabilitation Act or the Menkowitz decision with respect to “independent contractors,” is that title I of the ADA only applies to employees. Therefore, if a volunteer (coaches and referees are always putatively independent contractors), suffered discrimination by the Association, such an individual with respect to “employment” would have no remedy at all. Of course, that assumes, that the referee or coach is truly an independent contractor, which may not be the case if my experience with these type of associations is indicative.

4. Considering the Supreme Court case of PGA Tour v. Martin, there was little choice for this court to hold that the football Association was a place of public accommodation with respect to the claims of the kids and with respect to the claims of the parents inability to effectively attend meetings. As mentioned above, harder call with respect to the “employment,” claims of the father.

5. If this case shows anything, it shows the need for training and the need to look backwards. We see this all the time in employment matters where a new manager comes in and undoes everything that had been working before to the employer’s detriment. The same thing happened here. Thus, training is always important. Oftentimes, I say so is consulting with knowledgeable counsel about the ADA. However, here it seems the football Association made a strategic decision to contest this case. One thing that oftentimes doesn’t get mentioned is that you can have knowledgeable ADA legal counsel, but ultimately how the client chooses to proceed is the choice of the client.

Alcoholism, Associational Discrimination, Retaliation, and Magic Words

For my Jewish brethren, I hope everyone survived the gauntlet of the Jewish High Holidays, which ended last night. Again, wishing everyone and their families a happy and healthy new year.

Today’s case comes from the United States District Court’s Southern Division in South Dakota and it takes on issues of alcoholism as a disability, associational discrimination, retaliation, and whether magic words are necessary when requesting a reasonable accommodation. The case, which appears to be an unpublished decision, is Adams v. Persona, Inc., 2015 U.S. Dist. LEXIS 110764 (D. South Dakota, August 21, 2015). As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning regarding retaliation; court’s reasoning regarding associational discrimination; and takeaways. The reader is free to focus on any or all of the categories.


The plaintiff suffered from alcoholism. In August 2012, after he was notified of possible alcohol related misconduct at the workplace, several people from his employer met with him. At the meeting, the plaintiff was told that his employer, Persona, was engaging in a “fact-finding mission,” and he was asked about his alcohol consumption. In response, the plaintiff admitted to his alcohol dependency. The president of human resources then advised him to enter treatment and that the employer would allow him 10 weeks leave. Plaintiff was suspended from work and his employment status set to be reevaluated in 30 days. Several days after the fact-finding meeting, the plaintiff spoke with the president of human resources and was informed of his suspension. The president of human resources told him that she would attempt to find a new position for him upon his return but that it may not be in Madison. Furthermore, he was informed by the president of human resources that the 10 weeks of leave would be covered through his accumulated vacation pay and that he would have four weeks of accumulated vacation pay remaining. He entered a 30 day treatment facility on the same day he spoke with the president of human resources. He completed the treatment on September 12, 2012, and, on September 28, again met with various people from his employer including: the CEO; the company’s production manager; the president of human resources; and the employer’s president. At that meeting the plaintiff detailed his struggle with alcoholism and expressed a commitment to his job, his recovery, and sobriety. Further, he stated his wish to return to his old position as plant manager. Adams was again told that the employer was engaging in a “fact-finding mission,” and that it was, “not prepared to make a decision” after his employment. On October 10, 2012, just 12 days later, the plaintiff again met with the president, production manager, the CEO, and the president of human resources. At that time he was told that his employer was terminating him as of that day.

From there, it only gets worse with respect to the fact pattern for the employer. It turns out that the plaintiff’s daughter suffers from an autoimmune disease requiring transfusion treatments every 6 to 8 weeks. The health insurance for his daughter was provided through plaintiff’s insurance plan with his employer. In November 2011, the president of human resources held a company meeting where she stated that health insurance premiums were to be increased to 22.51%. She also stated that two of Persona’s employees were causing the premium hike. More specifically, the complaint alleged that the president of human resources implicitly named the plaintiff as one of the two employees because she stated, “that one reason the insurance premium rates were going to be higher was because one employee’s daughter needed treatments every 6 to 8 weeks and the treatments were expensive.” On August 14, 2012, a day after the plaintiff entered treatment, the plaintiff’s wife spoke to the chairman of the employer and to the chairman of the board for the employer regarding the president of human resources November 2011 comments about her daughter’s treatments. The chairman of the employer stated that they run a report every so often to see which employees have the highest payout of insurance benefits and that the report indicated that the plaintiff was an employee with one of the highest amounts. In February 2013, the plaintiff filed a claim with the EEOC and after receiving a notice of right to sue filed suit. The complaint contained several counts, of which only two of them the employer sought to dismiss (retaliation and associational discrimination).

Court’s Reasoning Retaliation

In denying the employer’s motion to dismiss the retaliation claims, the court reasoned as followed:

A. Retaliation

1. In a footnote, the court noted that neither party contested whether the plaintiff’s alcoholism qualified as a disability under the ADA, and therefore, the court proceeded under the assumption that the plaintiff was a person with a disability under the ADA. The court also noted that the ADA prohibits retaliation against a good faith request for accommodation even if the alleged disability turns out to be uncovered by the ADA.

2. To make out a prima facie case for retaliation in violation of the ADA, plaintiff has to show: 1) he was engaged in a protected activity; 2) he suffered an adverse employment action; and 3) there was a causal connection between the first two elements.

3. A request from the employee suffering from alcoholism to be granted a leave of absence to attend to inpatient recovery is the kind of request protected from retaliation. The court in their discussion cited to another case that noted that treatment would seem to be essential to any accommodation for alcoholism.

4. The court also noted that other decisions have held that a plaintiff is not required to speak any magic words when making a request for reasonable accommodation. In fact, the employee does not need to mention the ADA or even the term accommodation, and nothing in the ADA prescribes how the accommodation is requested. Therefore, a request for leave to attend rehabilitation for alcohol dependency qualifies for ADA protection as a request for accommodation.

5. One way an employer becomes aware of the need for an accommodation is being informed of an employee’s disability by the employee himself. Here, the plaintiff admitted to alcohol dependency and such admission may be construed as his request for accommodation since the plaintiff was not required to explicitly request accommodation in order for the employer’s duty to accommodate to be triggered. That is, the admission by the plaintiff himself was also the request for reasonable accommodation.

6. No specific language needs to be uttered by an employee before the employer has a duty of reasonable accommodation and therefore, the request for an accommodation itself requires no precise language. The confirmation of his alcohol dependency was the act necessary to put his employer on notice and trigger its duty to accommodate. While it is true that no explicit request for accommodation was made by the plaintiff, a reasonable juror could conclude that the employer retaliated against the admission of dependency itself as it was that admission that triggered the employer’s duty to accommodate.

7. In another footnote, the court noted that retaliation might also be of the anticipatory variety. That is, action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact. That is, an employer is equally prohibited from anticipating an employee’s request for an accommodation by preemptively suggesting its own so as to cancel out the employee’s protected activity, and then terminating his employment.

8. In short, the retaliation claim survived because: 1) plaintiff was confronted about his alcohol consumption; 2) he admitted to struggling with alcohol dependency; 3) the employer granted him leave to get treatment and he did attend treatment; 4) he was subsequently terminated from employment; 5) he was granted 10 weeks of leave to pursue treatment; 6) pay for those 10 weeks with to be drawn from his accumulated vacation pay; and 7) instead of allowing the full 10 weeks to elapse, his employer reevaluated his employment 30 days after leave was granted and terminated the employment short of the full 10 weeks.

Court’s Reasoning Associational Discrimination

1. Properly stating a claim of associational discrimination means showing: 1) a person was qualified for the position; 2) person was subject to adverse employment action; 3) the person was known to be associated with a disabled individual; and 4) the discharge occurred under circumstances raising a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. There also must be a causal connection between knowledge of the association a person has with a person with a disability and the adverse employment action.

2. All four of the factors are satisfied because: 1) the plaintiff was qualified for the position. In fact, from starting at his employer, he was eventually promoted to plant manager; 2) the plaintiff was terminated and termination is an adverse action; 3) the employer was aware that the plaintiff’s daughter was a person with a disability and required treatment. In fact, the employer admitted as such through its November 2011 meeting where the president of human resources mentioned that the plaintiff’s daughter was causing insurance premiums to rise due to her necessary medical treatments. Further, an official of the employer told the plaintiff’s wife that her husband was one of two employees with the highest insurance payouts.

3. Causation is satisfied because of numerous circumstantial pieces of evidence including: 1) the employer knew that plaintiff’s daughter was a person with a disability and required treatment; 2) the statements that the plaintiff was one of two employees causing insurance premiums to rise; and 3) the chairman’s statement to the plaintiff’s wife regarding the running of the insurance reports. Of course, there are the facts mentioned above as well.


1. I find it interesting that the employer didn’t argue that the plaintiff was not protected under the ADA because they were “currently engaged with alcohol,” per this blog entry of mine.

2. Employers, governmental entities, and businesses should stop looking for magic words when it comes to request for reasonable accommodations. Employer should consider having persons with disabilities in their human resources department whose responsibilities include reviewing reasonable accommodation requests or requests that might be considered reasonable accommodations. Request for reasonable accommodations may very well be viewed differently depending upon whether the individual viewing the request is a person with a disability or not. Even so, if it is uncertain whether a request is a request for reasonable accommodation, preventive law would demand that the benefit of the doubt be in favor of finding such a request is being made. Once the decision is made that a request for reasonable accommodations has occurred, don’t forget to engage in the interactive process.

3. Employers need to be careful about disclosing to others any information that may tip off people as to the the specific condition of a person with a disability. Keep in mind, that the ADA requires that the employer keep disability related information confidential (see this blog entry of mine).

4. If an employer believes that by offering the accommodation without being specifically asked by an employee gives them the ability to claim that the reasonable accommodation request was never made and therefore there was no retaliation, such a practice may well be frowned upon by the courts as it was by this court.

5. For a person to claim retaliation, it is not necessary that the person is later found to have a disability under the ADA.

6. Very interesting about what the court says is the prima facie case for showing associational discrimination. In particular, element 4 stating that circumstances might be such so as to raise a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. So, what does the ADA itself say about causation with respect to associational discrimination. If one looks at 42 U.S.C. § 12112(b)(4), the term used is, “because of the association.” Now, that brings us back to what “because,” might mean. For that, you might want to check out this blog entry and this blog entry. The term used by this court is “determining factor.” The plain meaning of that term is not sole cause, but rather more akin to “substantial factor,” as discussed in this blog entry. Nevertheless, it remains an open question as to what “because,” means in the context of associational discrimination. I would look for a lot of litigation to be coming on that point. Keep in mind, you do not see a lot of associational discrimination cases in the first place. Even so, when you do see it, I would certainly expect litigation over whether a mixed motive jury instruction has a place in associational discrimination case.

7. I find it curious that there is no mention of any of the corporate actors consulting legal counsel. One wonders if ADA knowledgeable legal counsel would have been consulted, things would have reached this point especially given these facts. Human resources, and for that matter, top management always need to have a direct line to legal counsel.