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Fear of Future Disability Actionable Under ADA?

March 13, 2018 By William Goren 1 Comment

Today’s blog entry deals with the question of whether taking adverse action against a person who does not currently not have a disability but where the employer fears will develop a disability in the future is actionable under the ADA. We will discuss two cases going opposite ways. They are: EEOC v. STME, LLC d/b/a/ Massage Envy-South Tampa from the Middle District of Florida decided February 15, 2018, and Shell v. Burlington Northern Santa Fe Railway Company from the Northern District of Illinois Decided March 5, 2018. As usual, the blog entry is divided into categories and they are: Massage Envy facts; Massage Envy reasoning; Shell facts; Shell’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Massage Envy Facts:

In September 2014, plaintiff requested time off to visit her sister in Ghana, West Africa. Massage Envy’s business manager approved the request. On October 22, 2014, three days prior to her trip, plaintiff was terminated out of concern that she would be infected with Ebola if she traveled to Ghana and would bring it home to infect Massage Envy’s employees and clients upon her return. Plaintiff subsequently did take her trip to Ghana. When she returned, she filed a claim with the EEOC. The EEOC found reasonable cause to believe that plaintiff was regarded as disabled and engaged in informal conciliation effort to reach a resolution. When the resolution effort failed, EEOC filed suit.

Massage Envy’s Reasoning in Granting the Motion to Dismiss:

Under 42 U.S.C. §12102(3)(A) an individual is regarded as having a disability when she is subject to a prohibited action 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.
In an interpretive guidance, the EEOC said impairment does not include characteristics or predisposition to illness or disease.
The owner did not perceive plaintiff as presently having Ebola. Instead, he perceived her as having the potential to become infected with Ebola in the future. As such, the owner did not believe the plaintiff was presently impaired.
The court declined to expand the regarded as having a disability definition in the ADA to cover cases where the employer perceives an employee to be presently healthy with only the potential to become a person with a disability in the future due to voluntary conduct.
Massage Envy correctly argues that the EEOC failed to state an association discrimination claim because the defendant had not yet had any association with persons in Ghana, or with identified people known by the owner to be a person with a disability as required by the ADA. At the time of her termination, the plaintiff had not yet had any association with persons in Ghana. Further, there is no evidence that the owner knew any individual in Ghana with Ebola.
The plain language of the ADA makes clear that the plaintiff must be known to have [present tense] (brackets appear in the opinion itself), a relationship or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination.
Citing to an 11^th Circuit case, the court noted that one of the prima facie elements is that the employer knew at that time that the plaintiff had a relative or associate with a disability.
The plain language of the ADA and binding case law says that an employer must know of a presently existing or past association with a person with a disability at the time of the adverse action in order to fall under the ADA’s association discrimination provision. The EEOC did not give the court nor was the court aware of any 11^th Circuit case where an association discrimination claim was sustained based upon the employer’s knowledge of the potential future association with a person with a disability or persons with disabilities.
No question in this case that the owner was without knowledge of a current association between the plaintiff and individuals in Ghana at the time of the plaintiff’s termination because no such association had occurred yet.
Even if it is assumed that a plaintiff could bring an association discrimination claim for potential future association with a person with a disability, the ADA requires that such an individual have a known disability. In fact, the EEOC in its interpretive guidance says the ADA prohibits an employer from discharging the employee because the employee does volunteer work with people who have AIDS, and the employer fears that the employee may contract the disease.
The ADA does not establish a cause of action for discrimination against an individual associating with people who are merely regarded as having a disability.
The interference claim fails because it could not be reasonably assumed from the charge that such a claim existed.

III

Shell Facts:

Shell was employed by Rail Terminal Services, which was responsible for intermodal operations at Burlington Northern Santa Fe’s Corwith railyard. In July 2010, Burlington Northern Santa Fe announced that it would be taking over the operations at that yard and invited employees to apply for positions with Burlington Northern Santa Fe. Burlington Northern Santa Fe required that intermodal equipment operators act as groundsmen, hostlers, and crane operators. Groundsmen are responsible for climbing on railcars to insert and remove container interlocker devices; hostlers are responsible for operating trucks to move trailers within the yard; and crane operators are responsible for operating overhead cranes that load and unload intermodal containers from trains and truck chassis. While the plaintiff had previously worked for Rail Terminal Services, that position did not require him to fulfill all three functions. Even so, the plaintiff had many years of experience working in a similar capacity and also had experience in operating a broad array of relevant equipment.

Following an interview process, Burlington Northern Santa Fe made the plaintiff a conditional offer of employment with a scheduled start date of January 1, 2011 conditional on his completion of a background check, drug test, physical examination, and medical evaluation. As part of the medical evaluation process, Burlington Northern Santa Fe considered the body mass index of applicants for safety sensitive positions, which included plaintiff’s position. Burlington Northern Santa Fe believes that there are significant risks associated with having individuals of a body mass index of 40 or greater working in safety sensitive roles. In particular, such individuals are at a substantially higher risk of developing a number of medical conditions including sleep apnea, diabetes, and heart disease, all of which can manifest as a sudden incapacitation or serious impairment of alertness or cognitive ability. Accordingly, Burlington Northern Santa Fe does not hire applicants for safety sensitive position if their body mass index is over 40.

Physical exams established that the plaintiff was 5’10” tall and weighed 331 pound with a BMI of 47.5. Accordingly, Burlington Northern Santa Fe withdrew its offer of employment, but did inform the plaintiff that he might be eligible for reconsideration if he lost 10% of his weight, maintained that weight loss for six months, and provided any additional test results that were requested. That decision was based solely on plaintiff’s BMI and not on any existing physiological disorder or functional limitation. For that matter, no further examination was requested to determine if the plaintiff did in fact suffer from sleep apnea, diabetes, or heart disease and no evidence suggested that the plaintiff suffered from these conditions presently. Finally, no evidence suggested that the plaintiff’s weight resulted from the underlying medical condition.

Shell’s Reasoning for Denying Defendant’s Motion for Summary Judgment

In order to prevail on an ADA discrimination claim, plaintiff has to show that: 1) he is a person with a disability; 2) he is otherwise qualified to perform the essential functions of the job; and 3) the employer took an adverse action against him on the basis of his disability.
Under 42 U.S.C. §12112(b)(6), one of the acts constituting discrimination against a qualified individual on the basis of disability is using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities. Further, the use of such qualification standards, tests, or other criteria only flies if it is shown to be job-related for the position in question and consistent with business necessity.
Under 42 U.S.C. §12102(3), a person is regarded as having a disability if he can establish an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
The court agrees with the weight of authority that obesity is not a disability under the ADA unless it results from an underlying physiological condition. Further, plaintiff also failed to establish that Burlington Northern Santa Fe perceived his obesity is a disability.
The court cited to a case from the Southern District of Illinois where that court found in the case of a person who was not hired because of the employer’s fear that he would develop carpal tunnel syndrome in the future, that the plaintiff there was regarded as having a disability and that no reasonable jury could find otherwise.
Burlington Northern Santa Fe readily admitted that it refused to hire the plaintiff based on its fear that he would develop sleep apnea, diabetes, or heart disease, and as a result, he might become suddenly and unexpectedly incapacitated while performing his duties.
A question of fact exists as to whether Burlington Northern Santa Fe is treating the plaintiff as if he does suffer from sleep apnea, diabetes, or heart disease. Burlington Northern Santa Fe apparently views the plaintiff as a ticking time bomb who at any time may be suddenly and unexpectedly incapacitated by one or more of the potential medical conditions that he might develop.
Burlington Northern Santa Fe’s refusal to consider hiring the plaintiff and monitoring him for the conditions it fears will develop suggests that the defendant believes the plaintiff suffers from these conditions or at the very least suffers from the potential effects of those conditions at the present time.
The court sees no reason why Burlington Northern Santa Fe should be held to a lesser standard simply because it is engaging in adverse employment actions before an impairment arises, when there can be no doubt that Burlington Northern Santa Fe is acting based on its belief that plaintiff poses a present safety risk as a result of potential disabilities. Burlington Northern Santa Fe is acting upon the anticipated worst-case scenario derived from precisely the sort of myths, fears, or stereotypes that the ADA is meant to guard against.
The court perceived a clear distinction between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
In its guidance, the EEOC specifically recognizes that obesity can independently give rise to regarded as disability discrimination claims.
In a footnote, the court said that Burlington Northern Santa Fe essentially argues that although it cannot discriminate against individuals who actually have a disability, it can discriminate against those who are likely to have disabilities but have yet to develop them. That argument is facially illogical and antithetical to the protections afforded by the ADA and other antidiscrimination statutes.
With respect to business necessity, the employer’s burden is quite high and is not to be confused with mere expediency.
From the record, it is impossible to determine whether the plaintiff’s health posed so great a safety risk that his exclusion from safety-sensitive positions constituted business necessity. In a footnote, the court noted that while it is true that the plaintiff offered no testimony from a medical expert to controvert Burlington Northern Santa Fe’s assessment of the risks of plaintiff’s obesity, Burlington Northern Santa Fe’s own evidence was based solely on indefinite and vague comparative statements of risks.
Burlington Northern Santa Fe’s willingness to employ the plaintiff providing he lost some weight undermines its claim that the plaintiff was inherently too dangerous to be in a safety sensitive position. Accordingly, a dispute of material fact existed as to whether it was truly necessary to exclude the plaintiff and other individuals like him from safety sensitive positions.

Takeaways:

I don’t see how the two cases can be reconciled. I would certainly look for the EEOC to appeal and use Shell in its appeal. The 11^th Circuit as of late has often been favorable to persons with disabilities.
Interesting that the same interpretive guidance gets used in both cases to reach opposite conclusions.
As a preventive law matter, assume that Shell is the law and don’t take adverse action against an employee over the fear that the employee will develop a disability in the future.
It isn’t a bad idea to have a lawyer draw up the EEOC charge where possible. Also, whoever draws up the charge should be sure to put in it any and all claims that reasonably stem from the facts in that charge.
For more explanation as to what constitutes business necessity, check out this blog entry.
Burlington Northern Santa Fe made a big mistake by not doing an individual analysis as to whether the plaintiff either had a disability or whether the plaintiff constituted a direct threat per this blog entry.
While Shell goes along with the majority trending that obesity must be based upon an underlying condition to be protected under the ADA, it is significant that this court says that obesity can independently give rise to regarded as disability discrimination claims.
Massage Envy specifically talks about voluntary conduct of plaintiff in the decision, and will be interesting to see how that plays out, if at all.
As a preventive matter, individual analysis is critical.

Regardless of ADA Title, Never Forget About the Individualized Inquiry and the Interactive Process

January 16, 2018 By William Goren 3 Comments

Hope everyone had a great holiday weekend, assuming you had a chance to have Martin Luther King Day off. Today’s case, United States v. Asare is a decision that came down on December 20, 2017, from the Southern District of New York. The lesson here is never forget about the interactive process and performing an individualized analysis regardless of whether an employment matter is involved. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the categories.

Facts

The facts of this case are pretty straightforward. There were three plaintiffs in the case. All of them wanted male breast reduction surgery (gynecomastia surgery), with Dr. Asare. The doctor had a blanket policy against operating on individuals with HIV who were also taking antiretroviral medications. At various points in the preoperative process, all three plaintiffs were told that the doctor would not perform the surgery. When the Department of Justice got involved, it brought suit on its own behalf alleging violations of the ADA’s screen out and reasonable modification provisions as well as the New York City Human Rights Law, §8-107. One of the plaintiffs, Milano, intervened in the case. The plaintiffs brought suit against Dr. Asare and his medical practice. After discovery, plaintiffs moved for summary judgment on their claims, which the defendants opposed, and the defendants, ultimately successfully, cross moved for summary judgment on claims unrelated to HIV. Our discussion will focus strictly on the HIV ADA claims and not on the New York Human Rights claims nor on the non-HIV claims.

Court’s Reasoning

In granting the plaintiff’s motion for summary judgment with respect to the HIV claims, the court reasoned as follows:

Everyone agreed that Dr. Asare’s blanket policy of refusing to operate on individuals with HIV taking antiretroviral medications constitutes an eligibility criterion that screens out a class of individuals with disabilities. Accordingly, the question is whether the eligibility criterion was necessary and therefore, permissible under the ADA.
Relying on School Board of Nassau County, Florida v. Arline, the court said that the ADA requires an individualized inquiry into the patient’s health risks.
It is impermissible under Arline, to reject an applicant automatically as a result of his or her disease or symptoms without considering the individual.
Asare testified at his deposition that when a person comes to him and says that he is HIV positive, the doctor then asks him whether the patient is on an antiretroviral cocktail. If the answer is yes, the case is closed and the doctor does not investigate what type of antiretroviral drugs a potential patient is taking or its possible effects. Further, the defendant acknowledged that some antiretroviral drugs are not contraindicated for the drugs in his sedative regimen, but he does not investigate further because he just doesn’t feel comfortable.
A blanket refusal without an individualized inquiry is insufficient to pass muster under the ADA.
Defendant’s own medical expert stated that he would have preferred to have more history and patient information available prior to making decision because without some knowledge of that patient’s medical history, a decision would not be made based upon medical necessity or medical history.
Defendant had the burden to demonstrate that the application of any criteria screening out individuals with HIV was necessary. Such a burden cannot be met when the defendant automatically rejects potential patients without making a determination based upon medical necessity.
Title III of the ADA imposes a fundamental requirement that a person with a disability be evaluated on an individual basis.
The refusal to consider an individual’s personal circumstances in deciding whether to accommodate a disability run counters to the clear language and purpose of the ADA.
An individualized inquiry must be made to determine whether a specific modification for a particular person’s disability is reasonable under the circumstances as well as necessary for that person while not imposing a fundamental alteration on the defendant’s place of business.
The fact Dr. Asare admits that he refuses to perform cosmetic surgery on patients taking antiretroviral medication without making any further inquiry into their medical history or medical regimen is dispositive with respect to the failure to modify policies, practices, and procedures just as it is dispositive with respect to the screen out provisions.

III

Takeaways

With respect to the New York Human Rights Law, the court noted that the ADA sets a floor for the states. Accordingly, a violation of the ADA is automatically a violation of the New York Human Rights Law. The impact of this holding cannot be understated because not every state law explicitly ties into the ADA, though some do.
While the court talks about whether the eligibility criterion was necessary, the court never really reaches the necessary determination because of the lack of an individualized inquiry. In that way, the case resembles what used to be called the irrebuttable presumption line of cases more than it does an analysis of whether the eligibility criterion was necessary.
If this case stands for anything, it is never forget about an individualized inquiry before denying services to a person with a disability. Indeed, you won’t even get to the “necessary,” defense without engaging in that individualized inquiry first.
On the preventive law side, if this case stands for anything, never forget about the interactive process. It is true that interactive process is a title I construct, but how an individualized inquiry and a decision about how to provide or deny services to a person with disability can be made without engaging in the interactive process, is beyond me (case law, such as this one, does exist expanding the interactive process to title II of the ADA). So, be sure to engage in an individualized inquiry as well as an interactive process.
Blanket policies without an individualized analysis are not a good idea. We have previously talked about that one before in this blog entry, which involved 100% return to work policies.
A person with HIV is a person with a disability per this case.
The burden is on the defendant to demonstrate the application of any criteria screening out individuals with HIV is necessary.
Review your policies and practices for policies and practices that unwittingly screen out persons with disabilities. See this case for example.
I am seeing more and more cases where a plaintiff is successful in obtaining summary judgment, though it is still unusual.
Arline is a direct threat case and not whether a screen out provision can be proven necessary or whether a, “necessary” defense exists to a failure to modify practices, policies, and procedures. Nevertheless, this case makes clear that in deciding “necessary,” you also want to look at direct threat concepts, which we discussed in this blog entry.

What’s Wrong with This Job Description? Let Me Count the Ways

November 30, 2015 By William Goren 3 Comments

Hope everyone had a great Thanksgiving! This post is a momentous one so to speak. It is my 200th blog entry (about four years). There is absolutely no way I could have done this without the loyal readers of this blog. Thank you so much!!!!!!! As much as I love to write, writing a blog isn’t always easy. It is the readers of this blog have made it worthwhile and keep me doing it week after week (of course, the ancillary benefit of clients generated doesn’t hurt either:-)

The big newspaper in Atlanta Georgia is the Atlanta Journal-Constitution. On Sundays, they have a section called AJC Jobs. This Sunday, their piece was called, “physical aspects of jobs pose barriers.” The subtitle was, “disabled who want to work may need accommodations.” The article was by a Diane Stafford of the Kansas City Star. It was an interesting article. Here is what I want to focus on. In the article, she says that the following is a real example of the required duties for an accounting job:

“While performing the duties of this job, the employee is regularly required to walk, talk, see and hear. General level of physical activity would be defined as sedentary. The employee is occasionally required to stand and frequently required to sit; use hands to finger, handle, or feel; reach with hands and arms. Some movements of the hands, arms and wrists may involve repetitive motion. Specific vision abilities required by this include close vision, distance vision, color vision, depth perception and ability to adjust focus.”

My thoughts on this job description are as follows:

1. This is an accounting job!

2. This is an accounting job! (I think I said that:-)

3. The employer is confusing major life activities with essential functions of the job. As far back as the first edition of my book, I talked about how this is not something you want to do. What are the essential functions of accounting? Being able to process information? Being able to communicate information? Understanding accounting principles? Utilizing certain software associated with accounting? Interacting with others? Etc. I fail to understand how any of these “essential functions,” listed in the article have anything to do with carrying out the job’s fundamental purposes. It shouldn’t matter the means (in this case, the major life activities utilized by that person), that the person accomplishes the job’s essential purposes, just that he or she gets it accomplished.

4. The job description as written clearly screens out persons with disabilities and is in probable violation of 42 U.S.C. § 12112(b)(6). Hope this particular company has budgeted for litigation.

5. Readers of this blog entry may be interested in this blog of mine as well, which discusses how not to defend essential functions of the job.

6. I don’t see how these requirements could be job-related or consistent with business necessity either (what the employer would have to show in order to be allowed to screen out persons with disabilities under 42 U.S.C. § 12112(b)(6)). See this blog entry for example.

7. When reviewing job descriptions, make sure they are accurate, reflect the realities on the ground, and do not screen out persons with disabilities. If you are going to use major life activities as essential job functions, make sure you absolutely have no choice before doing that. See if you can’t rephrase it some way. If you do have no choice, make sure you are able to show that you have to do that because it was job-related and consistent with business necessity.

8. While we are on the subject of confusing essential functions with other things, another thing I have seen over the years, is confusing essential functions of the job with tasks. Don’t do that either. For example, data entry is an essential function but ten key is not.

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