I first found out about this case- Weaving v. City of Hillsboro, a published decision from the Ninth Circuit decided August 15, 2014- from reading Jon Hyman’s excellent blog entry on it, which can be found here.
Jon does an excellent job of describing the facts of the case and I quote from his blog entry on this:
“Matthew Weaving was diagnosed with ADHD as a child. As an adult, he pursued a career as a police officer, and later a police detective. He joined the Hillsboro, Oregon, Police Department in 2006. His performance record at the HPD was spotty. His co-workers complained that he was often sarcastic, patronizing, and demeaning. After a 2009 complaint by a subordinate about Weaving’s bullying, the HPD placed him on paid administrative leave. While on leave, Weaving sought a mental-health evaluation, which concluded that some of his interpersonal difficulties had been caused by his continuing ADHD. Shortly thereafter, the HPD finished its investigation, finding that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” As a result, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis. The 9th Circuit reversed a jury verdict of more than $500,000. Surprisingly, it did so based on a finding that Weaving’s inability to get along with others as a result of his difficult personality did not qualify as an ADA-protected disability.”
Jon was not the only one surprised. I will go even further than that. I believe that the Ninth Circuit majority and dissenting opinions both got it wrong and here is why:
1. The majority opinion says that the plaintiff’s mental impairment, ADHD, did not substantially limit a major life activity of interacting with others because it simply was not severe enough.
2. The dissenting opinion says there was plenty of evidence to indicate that the major life activity of interacting with others was plenty severe and that it was up to the jury to decide that issue as a question of fact, which they did in the plaintiff’s favor.
3. Both the majority opinion and the dissenting opinion are, in my opinion, wrong for the reasons that follow in the following paragraphs.
4. In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court of the United States held that for a person to be substantially limited in the major life activity of performing manual tasks, that person has to be severely restricted or prevented from performing that major life activity. This severely restricted or prevented principal was then adopted by the courts across a whole range of major life activities. The result of which was to severely limit the number of people covered by the ADA.
5. The severe curtailment of the scope of the ADA led to the passage of the Americans With Disabilities Act Amendments Act signed by George W. Bush, which went into effect January 1, 2009.
6. The amendments to the ADA specifically state that the previous standard used by the EEOC to define what is a substantial limitation on a major life activity (“significantly restricted”), was too high of a standard. Further, the amendments to the ADA also specifically state that it is rejecting the Toyota Motor standard with respect to what it means to be substantially limited in a major life activity.
7. The amendments to the ADA also specifically state that regulatory bodies have the authority to implement definitional terms.
8. The EEOC took advantage of its authority to implement definitional terms by adding the major life activity of interacting with others to what would be considered a major life activity (the Department of Justice has taken the same approach with respect to its proposed regulations implementing titles II and title III of the ADA).
9. The EEOC defines substantial limitation as being whether a person is substantially limited in a major life activity as compared to most people in the general population.
11. What paragraphs 4-10 mean is that under the ADA as amended whether a physical or mental impairment is severe to some degree is not the issue. Rather, the issue is whether the individual is substantially limited in a major life activity as compared to most people in the general population. To say otherwise, means that you are either not giving the EEOC regulation the deference that it is due or you are bringing back the Toyota Motor standard, which was specifically overruled by the amendments to the ADA, neither of which makes any sense. Alternatively, I suppose you can make an argument that for EEOC added disabilities, the standard for what is a substantial limitation could be higher than the standard for disabilities specifically mentioned in the ADA. However, even that argument doesn’t fly because the EEOC was given the authority under the amendments to the ADA to implement definitional terms and the implementation of that authority is entitled to deference.
Okay, so now we know that the Ninth Circuit majority and dissenting opinions in this case, again in my opinion, got on the wrong highway. What would be next under this analysis?
11. In order to be protected under the ADA, you must have a disability and you must be qualified. Under title I of the ADA, a person with a disabling condition is qualified if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. (29 C.F.R. § 1630.2(m)).
12. Was interacting with others an essential function of this person’s job? I don’t see how you could claim otherwise. After all, this person was a police officer which meant interacting with his peers, supervisors, and members of the public in order to do his job. Could he do the essential functions of the job with or without reasonable accommodations? On that, the dissent thought it was possible.
13. It is the jury that gets to decide what are the essential functions of the job and that determination is entitled to a high degree of deference. See Barber v. Nabors Drilling USA, Inc., 130 F.3d 702, 708 (5th Cir. 1997).
14. Accordingly, absent evidence that no reasonable juror could have found in the plaintiff’s favor, the jury verdict should have been allowed to stand if the proper analysis was used.
1. I agree with Jon that even with Weaving, employers should not hold out much hope that they will be able to win many ADA cases on an argument that an employee’s medical condition is not an ADA disability. I also agree with John that in the right case, faced with the right employee, the right performance issues, and the right claimed medical condition, an employer might be able to prevail with arguing the employee’s medical condition does not rise to the level of a substantial limitation on a major life activity and therefore, is not a person with a disability.
2. However, Takeaway 1 leads to the question of who gets to frame the issues before the judge. Is it the parties or is it the judge. To confirm my own experience, I actually asked that question to a seasoned litigator, my friend and colleague Robin Shea who also has a blog in my blogroll. She told me that it is often the parties that get to frame the issues, but there are judges that will step in and direct the parties to go in a different direction. Therefore, if I am a plaintiff attorney and the defense is trying to frame the issue to argue that the plaintiff’s physical or mental impairment does not rise to the level of a disability using the Weaving construct, I would counter that argument with the approach in this blog entry. It should be an extraordinarily unusual case where the defense would be successful in successfully arguing that the medical condition does not rise to the level of a substantial limitation.
3. I do agree with John that the better (safer?) course of action, is to assume the medical condition is an ADA-protected disability, and instead argue the employer cannot offer any reasonable accommodation enabling the employee to perform the essential functions of one job.
4. I agree with John that you can get to the same place using the proper ADA analysis rather than the Weaving construct, BUT not always so. This case may be, and is in my opinion, one of those cases where the Weaving construct, which brings back Toyota Motor from the dead, and the proper ADA analysis, which would take you into essential functions of the job, do lead to different conclusions.
5. Finally, this blog entry may point out the need for judges to get training on the ADA so that they don’t get taken down the wrong highway by the parties.