42 U.S.C. §12102

Failure to Accommodate, Direct Evidence, and Adverse Action

December 10, 2019 by William Goren Leave a Comment

Today’s blog entry is going to be my last substantive blog entry of the year. My daughter is on break the last two weeks of December, and just about everybody takes the Christmas season off anyway. The very last blog entry of the calendar year is when I traditionally do my top 10 Understanding the ADA blog entries of the year. I have not been following what is the top 10 from month to month. So, I am really curious to see how that is going to work out.

Today’s blog entry is actually on a case that my fellow bloggers have blogged on before. This particular case involves blogging on a case that my colleague Jon Hyman blogged on previously here. The case is Morrissey v. Laurel Healthcare Company, a published decision from the Sixth Circuit decided on December 3, 2019. Jon did an excellent summary of the facts and his takeaways are excellent as well. I thought I could bring a different spin to his blog entry and so here goes. As usual, the blog entry is divided into categories and they are: court’s reasoning; and thought/takeaways. I am going to dispense with the facts except as far as they are part of the court’s reasoning because Jon already covered them in brief in his blog entry.

Court’s Reasoning

The McDonnell Douglas test is not necessary where there is direct evidence because defendant has already admitted the wrongdoing. Where direct evidence exists, the factfinder is not required to draw any inferences to conclude that disability was at least a motivating factor.
Since not making reasonable accommodations is listed in the ADA’s definition of disability discrimination, claims premised upon an employer’s failure to offer reasonable accommodation necessarily (emphasis mine), involve direct evidence.
Under the direct evidence framework, a plaintiff has the burden of establishing: 1) he or she is a person with a disability; and 2) that he or she is qualified/otherwise qualified for the position despite his or her disability: A) without accommodation from the employer; B) with an alleged essential job requirement eliminated; or C) with a proposed reasonable accommodation.
With respect to this case, plaintiff alleged a failure to accommodate and a constructive discharge claim under the direct method and a retaliation claim under the indirect method.
The District Court erred in requiring plaintiff to prove she suffered an adverse employment action to pursue a claim for failure to accommodate. Under the direct evidence test, a plaintiff need not prove he or she suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee. In other words, failing to make a reasonable accommodation falls within the ADA’s definition of discrimination and that necessarily means an employer’s failure to offer a reasonable accommodation involves an adverse action.
Of course, to establish a claim for failure to accommodate, a plaintiff has to show that he or she has a disability first.
A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment. 42 U.S.C. §12102(1)(A)-(C).
The amendments to the ADA defined major life activities in very broad terms. 42 U.S.C. §12102(2).
The amendments to the ADA also makes clear that the definition of a person with a disability in the definition of substantially limited are to be construed broadly in favor of expansive coverage. 29 U.S.C. §12102(4)(A),(B); 29 C.F.R. §1630.2(j)(1)(i).
Under 29 C.F.R. §1630.2(j)(1)(ii), determining substantial limitation mean comparing the person with a disability to most people in the general population. That is not a demanding standard and in general, a plaintiff does not need to submit scientific, medical, or statistical proof to establish such a limitation.
The amendments to the ADA overruled the Toyota Motor standard that an impairment had to prevent or significantly or severely restrict a major life activity to be substantially limiting.
The EEOC removed from the text of its regulations a discussion of the major life activity of working because Congress intended for courts to analyze whether plaintiff can perform certain jobs only when a plaintiff claims she is substantially limited from working but not for other major life activities. Also, no other major life activity received special attention in the EEOC regulations and with the expanded definition of major life activity in the ADA, the major life activity of working would only be used in very targeted situations.
Pre-2008 cases are not good law when it comes to determining whether a plaintiff is a person with a disability.
Numerous facts exists that plaintiff has a disability as defined by the ADA as amended, including: 1) plaintiff asserted she was substantially limited in her ability to walk, stand, bend, and lift repetitively due to scoliosis, bulging disc, Ehlers- Danlos syndrome, Buschkes-Ollendorf syndrome; 2) plaintiff never argued that she had a disability because of an inability to work and such an allegation is not necessary to her claim; 3) plaintiff did not have to tell her employer about her specific diagnosis; 4) plaintiff did tell her employer that she could not work more than 12 hours per shift because she suffered a disability as defined by the ADA as amended.
For an employer’s obligation to activate the duty to accommodate, the employee does not need to use the word “disabled,” rather the employer must know enough information about the employee’s condition to conclude that he or she is a person with a disability. Information that could help figure out whether a person has a disability under the ADA could include such things as a diagnosis, treatment plan, (severe symptoms,) and physician imposed work restrictions.
Medical records establish that the plaintiff suffered from disc disease.
Plaintiff submitted plenty of evidence to show that she was substantially limited in her ability to walk, stand, lift, or bend. In particular, after an 8 to 12 hour shift: 1) plaintiff had difficulty walking, standing, lifting, and bending; 2) plaintiff was in pain constantly and her nursing shifts made the pain worse; 3) plaintiff had severe pain in her buttocks and right leg and numbness and tingling in her feet; 4) plaintiff had so much trouble bending over that it was difficult for her to put on her underwear; 5) plaintiff’s daughter submitted an affidavit stating that plaintiff did not walk at all or walked with a slight hunch and a pained expression after completing a day of work; 6) plaintiff’s daughter also stated that plaintiff could not complete household chores requiring lifting, bending, or stooping after working.
Factual issues exist as to whether defendant regarded plaintiff as having a disability.
Defendant had a policy where it would not accommodate an individual with a disability unless the injury was job-related.
Plaintiff alleged that she requested moving to a unit that required nurses to work only eight hour shifts and that she requested to be moved to a casual status. If granted, she would not have had to work in excess of 12 hours. Plaintiff alleged that the defendant denied both requests.
Plaintiff’s personnel file had medical notes supporting her restrictions. She also repeatedly told her employer that she was under restrictions. For a time, the employer even honored the restrictions. So, plaintiff brought forth enough evidence to claim that she has a record of a disability under the ADA.
In short, plaintiff brought forth enough evidence to show that: 1) her employer had a blanket policy of denying accommodation for all non-work-related disabilities; 2) her employer knew that the plaintiff was under a 12 hour work restriction; 3) (employer knew that plaintiff had requested an accommodation); 4) her employer forced plaintiff to work beyond the restrictions on January 31, 2016, and attempted again to have her do so five days later.
Plaintiff asked her employer for an accommodation due to a disability, and her employer did not accommodate her. So, plaintiff was not required to establish anything more for her claim to be viable.
Defendant makes no argument that plaintiff’s proposed accommodation would impose an undue hardship.
The de minimis employment action defense does not apply to a failure to accommodate situation. Application of such a rule would not only be cruel, but it would contravene previous precedent from the Sixth Circuit as well as the ADA.
The constructive discharge claim moves forward because a disputed question of material fact exists over whether the plaintiff had a disability (see above paragraph). The constructive discharge claim also moves forward because a complete failure to accommodate in the face of repeated requests can suffice as evidence to show constructive discharge.
The employer cannot escape liability by arguing a blanket policy of denying accommodation for all non-work-related disabilities is ostensibly neutral. The court uses an interesting example of a school lacking an elevator for a teacher with mobility impairments to explain what it means. It then concludes that a defendant cannot refuse to provide a plaintiff with a reasonable accommodation and then argue the plaintiff did not qualify for her position because she cannot meet her job’s requirements without an accommodation.
The retaliation claim gets analyzed under the indirect evidence test. To establish retaliation the plaintiff has to show: 1) plaintiff engaged in activity protected under the ADA; 2) the employer knew of that activity; 3) the employer took an adverse action against plaintiff; and 4) a causal connection existed between the protected activity and the adverse action.
Constructive discharge qualifies as an adverse employment action and the record supports a finding that plaintiff was constructively discharged.

Thoughts/Takeaways

It doesn’t matter how a person becomes a person with a disability. I have seen employers think that it does. The very nature of the ADA makes it obvious that how a person becomes a person with the disability is absolutely irrelevant. It is great to see a court saying as much. Interesting that the court looked at it from the view of essential functions. It just as easily could have flat out said it doesn’t matter how a person becomes a person with a disability. Regardless, you get to the same place either way.
Under the court’s reasoning, failure to accommodate claims are analyzed under the direct evidence test, which means that it could be very difficult for defendants to prevail on summary judgment with respect to failure to accommodate claims.
Under the court’s reasoning, failure to accommodate claims do not require an independent adverse action. That is, the failure to accommodate is the adverse action.
This whole direct indirect evidence thing is very confusing, even for me. As we discussed here, the Seventh Circuit is more than ready to blow that whole analysis up completely.
This case is now the second time where I have seen a prima facie for a failure to accommodate claim talk about how a plaintiff can show that they could have performed a job with an essential job requirement eliminated. I’ve said before with respect to this element that I just don’t get it. The ADA does not require the elimination of an essential function of the job.
I’ve also said before that working is not a major life activity that should be used by plaintiffs except under extraordinary situations. The court here says precisely that. In fact, unless extraordinary situation exists, my view for years has been for a plaintiff to allege working as the major life activity is legal malpractice.
Magic words are not required as we have discussed here. All that is required is for the employer to have enough information about the employee’s condition to conclude that the employee has a disability. That is not a high standard.
When it comes to determining substantial limitation, the question is how does that person compare to most people in the general population.
If you have a policy setting up a distinction as to when you will accommodate based upon the origin of the disability, get rid of it.
De minimis employment action defense not available in the Sixth Circuit with respect to a failure to accommodate claim. Check your jurisdiction to see how it handles this question.
The reasoning of the court is such that it open the door to many more constructive discharge claim when a failure to accommodate is involved. The court uses the language “complete failure,” but the decision itself doesn’t seem to be talking about a “complete failure,” being necessary for a constructive discharge claim. Jurisdictions may vary on this.
Court says that retaliation claim can analyze under an indirect evidence test, though I don’t know why that would necessarily need to always be the case.
What Jon said in his blog entry on the case.
The decision is published.
The Sixth Circuit presumes in this case that motivating factor is the causation standard.
Not every court agrees that a failure to accommodate constitutes an adverse action. We discussed one such case here. So, check your jurisdiction on this. This also means a split now exist among the Circuits. Will that split result in Supreme Court review? If it does, I will have to do some serious thinking as to which way the court would go. Offhand, not clear to me at all.
Pre-2008 law discussing how to determine a disability is no longer good law.

Shell Reversed on Appeal

November 4, 2019 by William Goren Leave a Comment

Before getting started on the blog entry of the week, I want to congratulate the Washington Nationals on their World Series victory where for the first time, a road team won every single game. Congratulations. I will be very curious to see whether the Washington nationals go to the White House. As everyone knows, a lot of professional sport teams are handling that different ways.

Turning to the blog entry of the week, on October 29, 2019, the Seventh Circuit decided here Shell v. Burlington Northern Santa Fe Railway Company. I have previously blogged on that case here. So, no need to go into the facts of the case. Accordingly, that means our blog entry is going to be divided into the categories of court’s reasoning and takeaways/thoughts. The reader, of course, is free to look at any and all of the categories.

Seventh Circuit’s Reasoning Reversing the District Court’s Denial of Summary Judgment

The alleged disability of obesity only works if there is evidence the obesity is caused by an underlying physiological disorder or condition. Plaintiff presented no such evidence to the District Court. For that matter, plaintiff did not present any evidence that the defendant regarded his obesity as having a physiological origin either.
Plaintiff based his claim upon medical conditions the defendant feared he would develop-sleep apnea, diabetes, and heart disease. It is true that those conditions are physical or mental impairments under the ADA. However, plaintiff did not have those impairments at the time he applied to work for the defendant, and the company had no perception to the contrary. That is, the defendant did not believe that plaintiff had any of the feared impairments at the time it refused his application.
The regarded as prong of the ADA, 42 U.S.C. §12102(1)(C), defines disability as being regarded as having a physical or mental impairment. As such, the very text of the statute encompasses only current impairments and not future ones. Regardless of how the grammar is debated, no one would understand the sentence to mean anything other than currently suffering from the disability. That is, “having,” means presently and continuously. It does not include something in the past that has ended or something yet to come.
42 U.S.C. §12102(3)(A) also mentions an individual is regarded as having a disability when he or she has been subjected to an action because of an actual or perceived physical or mental impairment. If the impairment does not yet exist, it can’t be actual or perceived.
While you can argue over whether the Dictionary Act compels a different conclusion, such reasoning can’t overcome the plain meaning of the ADA’s statutory text.
Other Circuits agree that fear of disability is not a cognizable claim. Those Circuits include: the 8th Circuit; the 11^th Circuit; the 9th Circuit; and the 10th Circuit.
The EEOC’s own interpretive guidance says the definition of impairment does not include physical characteristics or predispositions to illness or disease.
The EEOC’s Compliance Manual genetic profiling example is divorced from the text of the ADA as it is in tension with other EEOC interpretive guidance. So, that doesn’t work with respect to persuading the court to differ from the ADA’s unambiguous text.
A valid point exists about how the ADA combats accumulated myths and fears about disability and disease. However, to the extent a stereotype is involved, it is a stereotype about obesity, and obesity is only protected by the ADA if there is an underlying physiological cause. Without that underlying cause, obesity is not a disability the ADA protects.
While Congress does say that the definition of disability must be construed broadly in favor of the individual, that doesn’t give the court license to go beyond the terms of the statute. To do otherwise, would mean encroaching into the legislative branch’s responsibilities.

Thoughts/Takeaways

Reviewing my blog entry on the District Court decision reveals some interesting things. First, the District Court said that a question of fact existed with respect to whether the defendant actually believed the plaintiff was suffering from the conditions feared the plaintiff would develop. Second, the Seventh Circuit doesn’t address the District Court’s concern about the defendant being held to a lesser standard simply because it is engaging in adverse employment action before an impairment arises when there was no doubt that the defendant was acting based upon its belief that the plaintiff posed a present safety risk as a result of potential disabilities. Similarly, the District Court said that it was facially illogical and antithetical to the protections afforded by the ADA to argue that the defendant could not discriminate against individuals who actually have a disability but could discriminate against those individuals likely to have a disability but have yet to develop them.
Absolutely true that the vast majority of courts are saying that with respect to obesity there has to be an underlying impairment. I wonder if plaintiff could not borrow from the definition of major life activity in the ADA as amended per 42 U.S.C. §12102(2)(B), and argue that the way the body operates with respect to a person who is obese constitutes a physical impairment vis a vis normal cell growth, brain, neurological, etc.
Obesity is the only physical or mental impairment requiring an additional underlying physiological condition. That is, just about all of the other physical or mental impairments by their very definition have such a condition automatically contained within the diagnosis. So, even under the Seventh Circuit’s decision, would the same conclusion follow if a different disability was involved. For example, would the Seventh Circuit reach the same conclusion as the 11^th Circuit with respect to a fear of a contagious disease? What if that individual the employer feared getting a contagious disease already had his or her immune system compromised in some way to begin with?
I do think the Shell District Court’s reasoning is still worthwhile for plaintiff attorneys to use. On the plaintiff’s side, I would definitely allege an underlying physical or mental impairment whenever bringing a fear of future disability claim. I also think the myths, fears, and stereotypes angle is well worth pursuing.
No dissenting opinion in this case. So, not sure if a rehearing en banc will be sought. Regardless, I doubt plaintiff will prevail in the Seventh Circuit even if a rehearing en banc is granted considering the Seventh Circuit’s track record of late with respect to persons with disabilities.
Impossible to say how the United States Supreme Court would deal with a case like this. We currently do not have a Circuit Court split that I am aware of. So, it is entirely possible that United States Supreme Court will wait until such a split develops.
One of the labor and employment law blogs I read regularly is the OhioEmployers Law Blog authored by Jon Hyman. His blog is a very interesting perspective. He is a management side attorney. However, he isn’t afraid of talking about how employers should do the right thing regardless of what the law allows. Sure, there is a moral side to that. However, there is also a monetary side to that as well. With respect to fear of future disability cases, the law is really unclear. Does the employer really want to risk spending $250,000 to prove a point when they can obtain the use of a valuable employee in the meantime? There isn’t a day that goes by where I read articles, in such places as the Wall Street Journal, talking about how employers of all kinds simply can’t find enough employees anymore. Even if the employer takes a risk in hiring such an individual, the ADA does allow for that employer to take certain actions if they become aware of issues. For example, as we discussed here for example, should the employer become aware of issues that are job-related and consistent with business necessity, they can always insist on a medical exam.
Fear of future disability cases ultimately come down to company preference. That is, do they want to go to just where the law allows and make a defense litigation firm happy. Or, do they want to engage in preventive law by going further than the law allows initially, and then using what the law does allow them to do to deal with issues as they come up. I am pretty sure I know what Jon would say, but he can correct me if I’m wrong.

This week the United States Supreme Court will be considering a petition for cert. in the case we discussed here, which deals with the same defendant and the issue of who pays for the medical exam. I will certainly be following what happens with that case. Oftentimes, petitions for cert. get relisted. So, we may not know for a while what the United States Supreme Court elects to do in that case.

Massage Envy Decided by 11th Circuit

September 16, 2019 by William Goren 1 Comment

Today’s blog entry will focus on the decision from the 11^th Circuit decided September 12, 2019, on the Massage Envy case we discussed here. In this decision, the 11^th Circuit affirmed the opinion of the lower court holding that regarded as does not apply to fear of a future disability. As mentioned in the original blog entry on this case, the lower courts are split on this question. I do look for a Circuit Court split in the future on the matters discussed in this blog entry. Since we have already talked about this case extensively, there isn’t a need to bother with the facts except as they are germane to the court’s reasoning. So, this blog entry is divided into categories of: court’s reasoning regarded as; court’s reasoning association discrimination; miscellaneous matters; and thoughts/takeaways. The reader is free to concentrate on any or all of the categories.

Court’s Reasoning Affirming the District Court That Regarded As Does Not Apply to Fear of Employee Catching Ebola on a Trip to Ghana

Employer’s fear that employee could catch Ebola was unfounded as there were no confirmed cases of Ebola in Ghana during the 2014 outbreak.
42 U.S.C. §12102(1) defines a disability as: 1) a physical or mental impairment that substantially limits one or more major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment.
With respect to regarded as having such an impairment, 42 U.S.C. §12102(3)(A) that definition is satisfied if the individual establishes he or she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
Regarded as does not apply to impairments that are transitory and minor.
Time period for assessing the existence of disability for purpose of triggering ADA protection is the time of the alleged discriminatory act.
The court agrees with the defense that the employer perceived the employee as having the potential or possibility of becoming infected in the future when she traveled to Ghana. That is not the same thing as the employer perceiving the employee had Ebola.
The definition of disability and 42 U.S.C. §12102(1) provides that a disability is a present physical or mental impairment, a record of such an impairment, or being regarded as having such an impairment.
Many courts have said that the impairment in the actual disability prong is limited to impairments existing at the time of the adverse employment action and does not include impairments manifesting after the alleged discrimination. Therefore, it necessarily follows that impairment in the regarded as prong has the same meaning as impairment in the actual disability prong because terms appearing in several places in statutory text generally read the same way each time it appears.
42 U.S.C. §12102(1)(C) refers to “such an impairment,” which necessarily refers back to 42 U.S.C. §12102(1)(A).
So, in regarded as cases a plaintiff has to show the employer knew the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action. Further, that impairment must not be transitory and minor.
When 42 U.S.C. §12102(3)(A) is read most naturally, a person is regarded as a person with disability only if she is subject to termination because of an actual or perceived physical or mental impairment. That is, an employer does not fire or otherwise discriminate against an employee because of a perceived physical impairment unless the employer actually perceives the employee to have that impairment. So, 42 U.S.C. §12102(3)(A) does not extend to an employer’s belief that an employee might contract or develop an impairment in the future.
While it is absolutely true that the ADA has to be construed in favor of broad coverage of individuals, the court still concludes that the terms of the ADA protect anyone who experiences discrimination as a result of a current, past, or perceived disability and not a potential future disability.
The EEOC’s own interpretive guidance, a body of experience and informed judgment that the court may properly resort to for guidance, states that a predisposition to developing an illness or disease is not a physical impairment.
In the EEOC’s appendix to the regulations, the EEOC says that it is important to distinguish between conditions that are impairment and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. That same appendix says that characteristic predisposition to illness or disease did not constitute a physical impairment under the ADA. So, if a predisposition to developing a disease in the future is not a physical impairment, then the court simply didn’t see how the plaintiff’s heightened risk of developing the disease of Ebola in the future by visiting Ghana constitutes a physical impairment either.
While it is true that the phrase “being regarded as having such an impairment,” contains present tense verbs (present tense can include the future), the plain language of the ADA in the context of this provision indicates that being regarded as does not apply to the future.
The 11^th Circuit also wasn’t buying that regarded as should be read as being regarded as having an imminent impairment because that would be adding a word to the statute that doesn’t exist.
The statutory text of the ADA is such that the employer must perceive the employee as having a current existing impairment at the time of the alleged discrimination.

Court’s Reasoning Association Discrimination

The association discrimination provision is intended to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
A prima facie claim for association discrimination means showing: 1) plaintiff was subjected to an adverse employment action; 2) plaintiff was qualified for the job at that time; 3) plaintiff’s employer knew at that time that she had a relative or associate with a disability; and 4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
While the nature of the relationship in question does not have to be family (see 29 C.F.R. §1630.8), a plaintiff does have to show an association or relationship with a specific person with a disability or persons with a disability (see 42 U.S.C. §12112(b)(4).
Plaintiff’s claim fails because plaintiff did not plausibly allege that the employer knew the plaintiff had an association with a specific individual with a disability in Ghana when it terminated her employment.
Alleging plaintiff might come in the contact with certain unknown individuals by traveling in Ghana is too attenuated a connection for stating an association discrimination claim because that kind of claim requires both a known association and a known disability.
EEOC failed to plausibly allege a sufficient association or relationship with unknown individuals with Ebola. After all, plaintiff was not traveling to Ghana to assist with the Ebola epidemic. It isn’t good enough to allege that plaintiff might come into contact with those individuals by traveling in the country.
Generalize references to association with persons with disabilities or to advocacy for a group of persons with disabilities are not sufficient to state a claim for association discrimination under the ADA.
The EEOC did not cite to any case involving the association discrimination claim based upon the employer’s belief about an employee’s potential causal association with unknown people with disabilities.
An employer may fire an employee for good reason, a bad reason, a reason based on erroneous facts, or for no reason at all so long as its action is not for discriminatory reason contrary to federal law.

III

Miscellaneous Matters

The 11^th Circuit agrees that the lower court was justified in refusing to allow the EEOC to amend its complaint to add an interference claim because the plaintiff had no right granted or protected by the ADA to begin with;
The 11^th Circuit agreed with the plaintiff that the District Court erred in not allowing her to intervene in the lawsuit because plaintiff as a matter of right has the right to intervene in the lawsuit. Nevertheless, since plaintiff had no underlying ADA rights to begin with, denying the intervention was harmless error;
Judge Jordan concurred. He was of the opinion that the clear statutory language was such that the majority opinion got it right. However, he did write to state that the policy behind the ADA supported the plaintiff’s position. In particular, the ADA was enacted in part to eliminate the sort of stereotyping allowing employers to see their employees primarily as their disability. Also, citing to Shell, which was discussed in the original Massage Envy blog entry, Judge Jordan says the EEOC position that “regarded as,” encompasses a decision made by an employer based on a perception that an employee is going to suffer experience a disability in the future makes a lot of sense.
Judge Jordan would have also decided the question of whether the EEOC had to exhaust administrative remedies before filing suit. He also says that he would have decided in favor of the EEOC that the exhaustion of administrative remedies doctrine does not apply to the EEOC.

Thoughts/Takeaways

The contrary view to this decision was expressed by the court deciding Shell.
The 11^th Circuit has been very pro-person with a disability of late. So, one wonders whether a petition for rehearing en banc will not be sought. Appeal to the United States Supreme Court? With respect to the United States Supreme Court, it is true that United States Supreme Court is not friendly to people with disabilities with respect to employment matters. However, United States Supreme Court of late has been very interested in looking at the rights of people with disabilities broadly outside of the employment context, such as here and here, for example. Not at all clear to me even with the configuration of this court, how the Supreme Court might decide this.
The Shell case has several arguments that could be used to convince an en banc court that this panel didn’t get it right. These arguments appear below in ¶ ¶ 4-8 of this section. Keep in mind, the facts in Shell, dealing with obesity, were much more obvious that the employer perceived a disability than they are in Massage Envy. Also, the “voluntary,” conduct in Shell was much less of an issue there than it is in Massage Envy. So, Massage Envy certainly has an argument that Shell is distinguishable. I realize in the original blog entry that I didn’t see how the two cases could be distinguished, but upon further review, there is a possibility that they can be. After all, it is football season. So, we always have, “upon further review.”
The policy behind the ADA, as Judge Jordan mentioned, is such that regarding a person as having a future disability is protected by the ADA.
The ADA makes quite a point about individualized analysis needing to be done just about everywhere. That certainly wasn’t the case when Massage Envy terminated the plaintiff.
A distinction exists between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
The employer acted upon worst-case scenarios derived from precisely the sort of myths, fears, or stereotype the ADA was meant to guard against.
The 11^th Circuit ignores that the ADA prevents an employer from adopting policies, practices, and procedures that screen out people with disabilities.
If the 11^th Circuit decision holds, does that mean employers have free reign to terminate employees with genetic conditions that will manifest themselves later? Will the distinction in those kinds of cases be “voluntary,” conduct?
11^th Circuit cites to the EEOC’s appendix on more than one occasion. The appendix is essentially the EEOC interpreting its own regulations. As we know from our discussion in Kisor v. Wilkie, it is far from a certain conclusion that the EEOC’s interpretation of its own regulations will automatically get credited as the go to deciding factor.
I agree with the court that it doesn’t make a lot of sense to say regarded as must be read as regarding as having an imminent impairment.
The Circuit’s are splitting on what association discrimination is. The 11^th Circuit has a far broader notion of association discrimination than the Seventh and Second Circuits (see, here). As we discussed in this blog entry, in the Second and Seventh Circuits, association discrimination only applies under certain narrow factual situations. The 11^th Circuit decision doesn’t do that. Another Circuit court split that tees up for the Supreme Court.
It is not a foregone conclusion to me that the actual disability prong must dictate the same conclusion with respect to the regarded as prong when it comes to whether a future impairment is part of the regarded as definition. You could argue that the regarded as prong essentially functions as an adjective modifying the actual disability prong.
The 11^th Circuit uses “because of,” several times in its opinion. Causation under title I is “on the basis of,” as we have discussed many times before, such as here.

42 U.S.C. §12102

Footer