fear of future disability

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.

What Not to do With Respect to Pre-employment Disability Related Inquiries and Retaliation

October 15, 2018 by William Goren Leave a Comment

Here in Atlanta, we have finally moved into fall weather. That means temperatures in the afternoons in the upper 60s and low 70s and temperatures in the evenings and mornings in the 50s. The 20 to 30° range of temperature that Atlanta gets in the winter and in the fall took some getting used to.

Today’s case is Ward v. United States Xpress. It deals with preemployment medical inquiries and retaliation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff was diagnosed with thyroid cancer around 2012 and 2013. She was recruited by the defendant for employment as an over the road truck driver, and she attended the training orientation at Tunnel Hill, Georgia, during which she filled out a medical history form in which she disclosed she previously had thyroid cancer. A manager allegedly pulled plaintiff aside several times during the training to inquire about her health and ability to work in light of her prior cancer diagnosis. Each time, plaintiff insisted that she was in good health, willing and able to work, and that she was healthy and had been in remission since 2013. After the manager told her she could become sick while driving and become a liability, plaintiff researched the law and returned to the training to inform the manager that it was discriminatory for the company to deny her employment because of her history of cancer. Later that same day, the manager pulled the plaintiff from training to meet with him and the company’s human resources representative, during which they informed her of her removal from the training purportedly due to her driving record. However, plaintiff contended that defendant approved her driving record prior to the training and that her record only contained minor incidents similar to other similarly experienced drivers. Defendant filed a motion to dismiss.

Court’s Reasoning

In denying defendant’s motion to dismiss, the Northern District of Alabama reasoned as follows:

42 U.S.C. § 12203(a) prohibits retaliation against an individual because the individual opposed any act or practice made unlawful by the ADA.
To make a prima facie case of retaliation, a plaintiff has to show that she: 1) engaged in statutorily protected conduct; 2) suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.
When it comes to retaliation, it isn’t necessary for a plaintiff to prove that the underlying discriminatory conduct she opposed was actually unlawful, but rather the plaintiff must show a good faith reasonable subjective belief that the employer was engaged in an unlawful employment practice so long as that belief is objectively reasonable in light of the facts and record presented.
Plaintiff sufficiently pled engagement in a protected activity and a causal connection to the adverse employment action. In particular: 1) plaintiff alleged that after being pulled out of training, she performed an online search related to employment discrimination and shared the results with the manager by telling him it was discriminatory for her to be denied employment because of her previous history of cancer.
Plaintiff’s allegations rise above mere speculation because existing substantive law establishes the reasonableness of her belief the defendant engaged in an unlawful employment practice.
With respect to the causal connection, plaintiff has to demonstrate that the decision-makers were aware of the protected conduct and that the protected activity and the adverse actions were not wholly unrelated. One of the ways plaintiffs do that is showing a close temporal proximity between the protected activity and the adverse action.
Plaintiff sufficiently alleged facts suggesting a temporal proximity between the protected activity and the adverse action. In particular, after plaintiff informed the manager about her research on discrimination and disability, that same day the manager pulled her aside for a meeting with the human resource representative who informed her that she was no longer a candidate for the truck driving position.
While it is possible that plaintiff’s driving record prevented her from being further considered, at the stage of a motion to dismiss, plaintiff’s pleading must be taken as true. Here, plaintiff contended that defendant had approved her driving record before training began, and her record became an issue only after she raised her discrimination concerns.
The ADA provides that an employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is job-related and consistent with business necessity. An employer does have the right to make inquiries into the ability of an employee to perform essential functions of the job. The key here is that the manager purportedly pulled the plaintiff aside several times during the training to follow up on her medical questionnaire and inquire about her health. During those conversations, the plaintiff alleged that the manager called her a liability even though she insisted she had no significant chance of relapse and was in good health, willing, and able to do the job.
In the 11^th Circuit, a private right of action exists under the ADA for a prohibited medical inquiry in the pre-offer phase of the job application process, irrespective of disability status.
A company does not have an unfettered right to make disability inquiries and conduct medical examinations. For example, the withdrawal of a conditional offer after a job applicant revealed a prior back surgery is not acceptable under the ADA because there was no individualized assessment as to applicant’ ability to perform essential functions.
Plaintiff alleged: the manager removed her from training multiple times; repeatedly ignored her representation that her cancer was in remission; and that she posed no threat. Further, the manager in the company purportedly ended her training solely based on their own assessment about her abilities without consulting her medical providers to show the job-related and business necessity of the inquiry. Accordingly, plaintiff sufficiently alleged that the defendant made inquiries likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.

III

Takeaways

We have discussed the pre-employment medical inquiries scheme and what it means to be job-related and consistent with business necessity here.
I have read many articles in numerous places saying that there is a tremendous shortage of over the road truck drivers, and especially women drivers. It would seem to me that it would be in the best interest of a truck driving company to adhere closely to the ADA medical inquiries scheme in order to maximize the possibility of bringing on over the road truck drivers in light of the incredible shortage.
It is mind-boggling to me why the case didn’t settle prior to the motion to dismiss. I would expect it to settle now. The court’s opinion pretty clearly lets readers know that the defendant is probably in deep trouble here, which wouldn’t surprise readers of this blog.
When it comes to retaliation, the key is whether a plaintiff has a good faith reasonable subjective belief that his or her employer is engaged in an unlawful employment practice. Whether that is actually the case as a matter of law doesn’t matter.
You don’t have to have a disability to allege a violation of the ADA prohibited medical inquiries scheme.
In the 11^th Circuit, a private right of action exists with respect to violations of the prohibited medical inquiries scheme.
Always a mistake to terminate a person with a disability without engaging in an individualized analysis of the situation.
Always a mistake to not engage in the interactive process with a person with a disability.
For the disability related inquiry violation to occur under the ADA, the plaintiff has to show that the inquiry is likely to elicit information about a disability. My position has long been that when it comes to the analysis of whether an inquiry is likely to elicit information about a disability, an employer is well served to have persons with disabilities involved in that determination.
Despite what it looks like, this case is not a fear of future disability case, which we discussed here, at all. Rather, it is a record of a disability case.
In this blog entry, I discussed the situation where the human resources department did the right thing. I can’t say that here. The principles involved here are well-known to readers of this blog. Human resources should have stepped up to stop this process rather than go along with it. Also, if human resources did not feel comfortable stepping up, human resources should have at least suggested bringing in an ADA knowledgeable attorney. If either would have occurred, chances are very high, assuming the facts are indeed what the plaintiff has alleged, that this situation would have been stopped in its tracks, and the company would have had a competent sorely needed over the road truck driver. The company would have also saved considerable litigation costs.
The Internet can be a boon for a person establishing a good faith belief of employer conduct violating the law. For example, it is certainly possible with respect to these facts that the plaintiff could have found her answers allowing her to reach the conclusion she did in Robin Shea’s, Eric Meyer’s, Jon Hyman’s, or even this blog (Robin’s-labor and employment law insider blog- , Eric’s -the employer handbook blog-, and Jon’s- Ohio employer’s law blog- are all in my blog roll. Further, there are other labor and employment law blogs where she could have found her answers in as well).
I just don’t understand how these mistakes keep happening. Who is doing the training and how often? Where is ADA knowledgeable legal counsel? Well… y’all know where to find me;-)

Regarded As: What Not to Do

May 16, 2018 by William Goren 1 Comment

Hope everyone had a great Mother’s Day.

Today’s blog entry is a case that I’ve had in my pipeline for quite a long time. I actually know the plaintiff’s attorney on the case, Cheryl Lagare of Lagare, Attwood & Wolfe. We have spoken a few times, and she is a fabulous CLE speaker. When this case came out, I congratulated her and asked her if it would be okay if I blogged on it, and she said go for it. Well, that was several months ago, but here goes. The case is Lewis v. City of Union City, Georgia, which can be found here. This case involves both the actual disability prong and regarded as prong of what it means to have a disability under the ADA. It also explores essential functions and direct threat as well. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning as to whether plaintiff had an actual disability; court’s reasoning as to whether plaintiff was regarded as having a disability; court’s reasoning as to whether plaintiff was qualified; court’s reasoning as to whether plaintiff was a direct threat; survivability of summary judgment motion; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

In January 2009, Lewis, a police officer, suffered a small heart attack. It was unusual in the sense that the cardiac catheterization showed no clot and no disease in her heart even though heart attacks are generally caused by a clot inside the coronary arteries. While the cardiologist who treated her described the damage to her heart as being minuscule to small, enzyme levels confirmed the diagnosis of a heart attack. The doctor also found that the global function of the heart was unaffected, but noted that people who have had heart attacks tend to be at greater risk for subsequent heart attacks. Her primary care doctor said that she did not have heart disease that chronically affected her life, and therefore, cleared her to return to work without any cardiac restrictions because there weren’t any blockages to her heart.

Prior to 2010, the Union City Police Department allowed officers to choose which nonlethal weapons they carried. However, in early 2010, the Police Chief aat the time purchased tasers for all Union City officers and required each officer to carry one. While the manufacturer of the tasers, Taser International, does not require training to receive a Taser shock to be certified in Taser use, the Police Chief required his officers to receive a Taser shock in order to be certified in Taser use. Accordingly, he required his officer to receive a five second shock as part of the Taser training and gave justification for that requirement.

When Lewis found out about this training, she went and visited her primary care doctor. Her doctor shared her concerns that the electrical current could cause undue stress to her heart, and then wrote a letter to the Police Chief. That letter explained that she had been treating Lewis for several chronic conditions, including a heart condition, and that she would not recommend a Taser gun or oleoresin capsicum (OC) spray be used on or near Lewis. The letter asked the department to take that recommendation into consideration when making decisions about occupational training.

On June 17, following the Chief’s receipt of the letter from plaintiff’s physician, the Assistant Chief immediately placed her on administrative leave without compensation until such time as her physician released her to return to full and active duty. That letter did not fix any time frame for the plaintiff to be medically cleared to return to full and active duty. It also said that while she was being placed on leave without pay with the option to use her accrued leave until leave expired.

Plaintiff then wrote the Chief asking permission to resume her duties as a detective explaining that she was only asking for an accommodation on the training. She also sent a second letter requesting permission to seek temporary employment elsewhere while the Union City Police Department and her Doctor figured out some conclusion on the medical matter. She expressed concern in that letter that her sick and vacation leave had nearly run out, and she needed to be able to provide for family.

The Chief directed the Assistant Chief to tell the plaintiff that her request to return to work was denied and claimed that her Doctor’s letter essentially made it impossible for her to work or be at work. It denied her request to resume her duties until her doctor released her for duty. As before, no time frame was picked for obtaining such a medical release.

When plaintiff’s Doctor went on vacation, an email correspondence ensued where the Assistant Chief mentioned that they were constrained by the FMLA even though the plaintiff had never applied for FMLA leave, was not on FMLA leave, and was on administrative leave instead.

On July 8, the Assistant Chief terminated the plaintiff without speaking to the human resources manager. He also did not make any attempt to contact her physician or to have anyone else from the department contact her. Her physician had been on vacation and was not able to get the paperwork to the department until July 12. On July 8, plaintiff’s primary care doctor spoke with Assistant Chief Brown. To plaintiff’s Doctor recollection, the conversation was unpleasant and left her quite offended because she felt the Assistant Chief questioned her professionalism and her professional opinion. She made clear to the Assistant Chief that her opinion was based solely on a professional medical judgment and that she did not do things because patients tell her to do them.

In November of 2012, plaintiff filed suit alleging violations of the ADA as well as race and gender discrimination under §1981 and title VII. When the District Court granted defendant’s motion for summary judgment, plaintiff appealed.

Court’s Reasoning on Whether Plaintiff was a Person with an Actual Disability?

Plaintiff argued that she was substantially limited in a major life activity of breathing and sleeping. However, the only such evidence in the record was her own testimony that she had periodic shortness of breath and her primary care physician’s testimony that the shortness of breath could, but in her case, did not affect plaintiff’s ability to sleep. The record was completely absent of any evidence of the severity, frequency, and duration of the shortness of breath episodes. Further there was not any evidence to the extent to which the episode limited plaintiff’s ability to sleep or that could lead a reasonable jury to conclude that she was substantially limited in a major life activity.

III

Court’s Reasoning on Whether Plaintiff Was Regarded as Having a Disability

The ADA, 42 U.S.C. §12102(3)(A), provides that an individual is regarded as having a disability if he or she establishes that she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment regardless of whether that impairment limits or is perceived to limit a major life activity.
All kinds of evidence existed to raise a genuine issue of material fact as to whether Union City regarded the plaintiff as having a disability, including the following: the Chief was aware of the heart attack as he was a witness to it; the June 17 letter putting the plaintiff on leave referred to her chronic conditions and instructed her to complete FMLA paperwork; Chief Brown’s July 1 letter forbade plaintiff from returning to work until everything was cleared up with her Doctor and said that her Doctor’s letter made it impossible for her to be at work or for her to work. That letter further concluded she could not return until her doctor released her for duty; the July 6 letter from the Assistant Chief again referred to the possibility of the plaintiff taking leave under FMLA; and the department’s own stated reason for putting plaintiff on leave-data fear for her safety in view of her heart condition, demonstrated the department’s belief that plaintiff’s medical condition set her apart from other police officers.
The EEOC guidance specifically gives the case of an employer being considered as regarding an employee as having a disability where the employer terminates an employee with angina from a manufacturing job requiring the employee to work around machinery because they believe the employee poses a safety risk to himself or others if he were suddenly to lose consciousness. It also notes while the direct threat defense may exist, that is a separate inquiry from whether the person has a disability. The EEOC guidance illustrates that an employer taking an adverse action because it fears the consequences of an employee’s medical condition regards the employee as having a disability.

Court’s Reasoning on Whether Plaintiff was an Otherwise Qualified/Qualified Individual

Evaluating essential functions is done on a case-by-case basis by looking at several different factors, such as the employer’s judgment, especially when it is a Police Department.
Other factors to look at (per the EEOC), include any written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the employee to perform the function; the terms of any collective bargaining agreement; the work experience of past employees in the job; in the current work experience of employees in similar jobs.
Although the employer’s judgment is entitled to substantial weight, that factor alone is not conclusive.
The City’s written job description for the detective position does not mention anywhere the necessity for a detective either to carry or to be exposed to OC spray or a Taser shock.
In the section listing various physical demands of the job, there was no such mention of OC spray or Taser shock. Same goes for the work environment section of the job description.
Plaintiff offered evidence that previously, detectives were given the choice of what nonlethal weapon or weapon to carry.
Neither party disputed that Taser International did not require trainees to receive a shock in order to become certified in Taser use.

Court’s Reasoning Finding That Plaintiff Was Not a Direct Threat

The direct threat defense requires an analysis of the individual’s ability to perform safely the essential functions of the job.
Since the court held a genuine dispute of material fact existed as to what the essential functions of the police detective were, the court could not resolve the question of whether she could perform those yet undefined essential functions safely.
Citing to Chevron v. Echazabal, a direct threat must be based upon reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job determined after considering, among other things, the imminence of the risk and the severity of the harm likely to occur.

Survivability of Summary Judgment Motion

With respect to surviving a summary judgment motion, the court held that a convincing mosaic existed to show that the employer discriminated intentionally against the plaintiff. For another blog entry discussing convincing mosaic, see this blog entry.

VII

Takeaways

There are a lot of things Union City did wrong here, among them: 1) insisting on a method of certification for use of a Taser that wasn’t even called for by the manufacturer; 2) refusing to engage in any meaningful interactive process; 3) focusing on a full return to work, certainly implicitly; 4) acting unprofessionally with plaintiff’s primary care physician; 5) terminating the plaintiff without speaking to human resources manager or legal counsel; 6) putting the plaintiff on unpaid leave until a full return to work was signed off on and; 7) imposing the FMLA on the situation when it was not even involved.
Just because a person does not have an actual disability doesn’t mean they are not protected as regarding as having a disability. With respect to regarded as, it is not necessary to show a substantial limitation on a major life activity. True, a person who is regarded as having a disability is not entitled to reasonable accommodations. However, you can’t take adverse action against that person either because of the disability you are regarding.
This court seems to suggest that it would cover fear of a future disability under the ADA. See this blog entry for example.
In the 11^th Circuit, an employer’s judgment as to what are the essential functions, is not conclusive by itself.
Make sure you keep job descriptions current and that they reflect the actual job.
Not every court is following the convincing mosaic line of thinking.
Direct threat is a term of art and you just can’t make assumptions. Go through the Chevron analysis to get it right.
To prove an actual disability, you do have to show a substantial limitation on a major life activity. With the amendments to the ADA, doing that is not as difficult as it used to be, but it still has to be done.
Looking to employer’s judgment as to essential functions comes directly from the ADA itself. The EEOC has seven factors and three situations addressing essential functions as well. All of that is persuasive, but not dispositive, and there are variations among the courts.

fear of future disability

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