• Skip to primary navigation
  • Skip to content
  • Skip to primary sidebar
  • Skip to footer

Understanding the ADA

The Blog of William D. Goren, J.D. LL.M. - Of Counsel, Kitchens New Cleghorn, LLC

  • Home
  • About William D. Goren, J.D., LL.M.
  • Kitchens New Cleghorn, LLC
  • Contact

screen out

Egregious Fitness for Duty Policy Leads to Class Action Certification

February 14, 2019 by William Goren Leave a Comment

Before getting started on our blog entry for the week, I want to let everyone know that next week my daughter’s school has a break, and we are off to Universal Orlando for the week. We are all big Harry Potter fans. So, with Monday being a holiday and my daughter being off with some appointments, I am not sure I will get a blog up on Monday. No way, I get a blog up the rest of the week. I will definitely be back blogging the week of the 25th.

One of the things that we have talked about in our blog is the difficulty of class actions when it comes to persons with disabilities. It is, as we have discussed here, very difficult to pull off. I do see them with respect to deaf and hard of hearing access. I also see it with respect to the treatment of prisoners with disabilities, which we discussed here. Other than that, very difficult to pull off. Now comes a case from the District Court of Nebraska saying that a class action can proceed with respect to a particularly egregious fitness for duty policy of the Union Pacific Railroad Company. The case is Harris v. Union Pacific Railroad Company from the U.S. District Court in Nebraska decided on February 5, 2019. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning allowing class action to proceed; and takeaways. I have broken down the reasoning into specific compartments. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Union Pacific has a companywide fitness for duty program. The policy, effective 2014, works like this. Employees in certain positions are required to disclose specific health conditions. That policy automatically precludes employees disclosing those conditions from employment. Those employees then have to have a fitness for duty evaluation, and according to plaintiffs, Union Pacific routinely ignored the medical opinions of outside doctors. The records are then sent to a doctor, a Dr. Holland, in Olympia, Washington and his support staff. The doctor and his staff do not do a physical evaluation, then he and his designees make all decisions regarding who is fit for duty.

The plaintiffs are all previous employees of Union Pacific. Many had worked for years and were allegedly qualified in performing their jobs with no problem. They were pulled from their jobs under this program, evaluated, and then excluded from their positions with Union Pacific even though, according to the plaintiffs, they had no trouble fulfilling the essential functions of the job. Plaintiff challenged Union Pacific’s policy of removing employees from the job based on an arbitrary and scientifically unsound 1% rule regarding the risk of sudden incapacitation. Dr. Holland, the physician making the decisions in Olympia Washington, admitted that Union Pacific applied a uniform threshold risk level by considering any condition with the risk for a sudden impact event of greater than 1% in the coming year to require restrictions from work. That is, non-acceptable risk meant an absolute current risk of sudden incapacitation greater than 1% annual recurrence rate in the coming year.

Plaintiffs brought a class action alleging: 1) disparate treatment; 2) disparate impact; and 3) unlawful medical inquiry in violation of 42 U.S.C. §12112(d)(4)(A). The proposed class encompassed, “individuals who were removed from service over their objection, and/or suffered another adverse employment action, during their employment with Union Pacific for reasons related to a fitness for duty evaluation at any time from 300 days before the earliest date that a named plaintiff filed an administrative charge of discrimination to the resolution of this action.

II

Court’s Reasoning Allowing the Class Action to Proceed

  1. The four basic requirements of a class action under Rule 23(a) are: 1) numerosity; 2) commonality; 3) typicality; and 4) adequacy of representation. Further, one of the following §§ of Rule 23(b) must also be met: 1) a risk of inconsistent adjudication or impairment of interest for non-class members exists; 2) the defendant’s conduct apply generally to the whole class; or 3) questions of law or fact common to members of the class predominate in the class action is a superior method for adjudication. Finally, Rule 23 requires any certification of the class to have in its order the appointment of class counsel.

Numerosity

  1. Regarding numerosity, no magic number proving numerosity exists, but courts have stated that a class of 40 works. Here, the plaintiffs have presented evidence of potentially 7000 class members. While Union Pacific disputes the exact number, it does not dispute that plaintiffs meet the numerosity requirement.

Commonality

  1. Regarding commonality, commonality is satisfied when the legal question linking the class members is substantially related to the resolution of the litigation.
  2. Commonality requirement imposes a very light burden on a plaintiff seeking to certify a class and is easily satisfied.
  3. The key to commonality is focusing on the capacity of a classwide proceeding to generate common answers apt to drive the resolution of litigation. The similarities within the proposed class are what have the potential to impede the generation of common answers.
  4. The court finds commonality exists for several reasons: 1) the fitness for duty policies and reportable health events are uniformly carried out nationwide by the same group of decision-makers, i.e. Dr. Holland and his team of doctors and nurses; 2) 75% of Union Pacific’s 40,000+ employees are considered working in these positions and therefore, are subject to reportable health events policy; 3) each employee has to undergo an evaluation; 4) medical records are obtained on each of those employees, and the employees are not physically examined by Dr. Holland or his team; 5) the doctor merely looks at the employee’s medical records, references materials for the suspected condition or diagnosis, and decides whether the employee poses a greater than 1% risk of sudden incapacitation within the next year; 6) where appropriate, work restrictions are implemented, and in most cases, those broad restrictions make it impossible for the employee to continue working; and 7) proof will be the same regarding systemic disability discrimination, operating procedures and policies, and the affirmative defenses (direct threat and business necessity).

Typicality

  1. Regarding typicality, the court found the claims and defenses are typical of the class for a variety of reasons: 1) all complaints alleged discrimination; 2) all complaints involve the exact same policy; 3) most of the employees allegedly are either discharged or constructively discharged by the 1% rule; 3) the regulations and fitness for duty policies have led to dismissal or significant restrictions on the employees; 4) of the 7000 Union Pacific employees having to report a health event under the policy, it appears that at least 3145 of them were not cleared for work or were issued work restrictions; 5) for those with a “critical diagnosis,” those employees were not cleared for work or given very high levels of work restrictions; and 6) workers were often given long-term restrictions that lasted hundreds of days if not years.

Adequacy of Representation

  1. Regarding the adequacy of representation, plaintiff’s interests do not diverge or are opposed to the rest of the class, and counsel would adequately represent the class members as they are experienced and competent to lead the case.

Rule 23(b)(3)

  1. For class certification, plaintiffs also must prove one of the requirements of Rule 23(b). In this case, the rule involved is Rule 23(b)(3), which necessitates a finding by the court that questions of law or fact common to class member predominate over any questions affecting only individual members, and that a class action is superior to other available method for fairly and efficiently adjudicating the controversy.
  2. With respect to predominance, common issues have to constitute a significant part of any individual cases. Another way to look at it is that where there is an essential factual link between all class members and the defendants for which the law provides a remedy, questions of law or fact common to the class exists.
  3. The proposed class is sufficiently cohesive as it involves an alleged pattern of employee decision-making with respect to the class even more so than with respect to the individuals. Finally, the same evidence will be used to establish class wide proof.
  4. In a footnote, the court noted that the plaintiffs identified their support for the pattern or practice liability, which included: 1) a uniform, written reportable health event policy; 2) uniform implementation of that policy by a small group of decision-makers guided by standardized policies and practices; 3) evidence that the policy is invalid because among other things it is based upon incorrect generalizations about the risk of sudden incapacitation posed by certain health condition, including a scientifically unsound 1% rule and inapplicable material governing commercial truck drivers; 4) internal documents showing that the company was aware of the discriminatory intent and outcomes of its policy; 5) numerous specific instances of discrimination suffered by class members; and 6) data showing a pattern of thousands of workers suffering adverse outcomes as a result of Union Pacific’s policy.
  5. With respect to superiority, the question is whether the adjudication of common issues helps achieve judicial economy. The court found this satisfied because common question regarding the proposed class, including a pattern and practice of discrimination and the viability of Union Pacific’s affirmative defenses exist. Much of the case relies on common proof. So, to allow individual lawsuits would duplicate that proof over and over again.
  6. In the Eighth Circuit, a class must be adequately defined and clearly ascertainable. That is the case here because the case involves a single, uniform reportable events policy. The Eighth Circuit has not joined the Third Circuit in requiring an additional requirement of administrative feasibility of the class. In any event, the administrative feasibility requirement doesn’t make sense when you have a pattern of discriminatory decision-making, i.e. a pattern or practice case.

Court’s Way Forward

  1. With respect to how the case proceeds in the future, the court set up a two-part process. First, the parties litigate liability and injunctive relief in phase 1. Then, in phase 2, parties litigate damages and other remaining issues through individual hearings, or group hearings as appropriate, or by stipulations of the parties.

III

Takeaways

  1. You have to figure that this case is going to settle. We have discussed direct threat many times, such as here, here, and here, and it’s hard for me to believe that such a policy could even remotely come close to meeting the direct threat standard. Also, we have discussed job-related and consistent with business necessity several times as well, such as here. Hard for me to believe that these exams would job-related and consistent with business necessity.
  2. One wonders about how the policy came into being. Hard to believe that knowledgeable ADA counsel would not have spotted the issues with respect to how it screens out persons with disabilities (title I, II, and III all have provisions in them prohibiting policies and procedures that screen out persons with disabilities). It would be interesting to know if the policy was reviewed by in-house or outside legal counsel before implementation as that might create malpractice issues. It is also entirely possible that legal pointed out the difficulties and the client went ahead and did it anyway. That does happen. As mentioned above, the court in a footnote, said that the company was made aware of the discriminatory impact of the policy.
  3. The policy is so draconian that in my opinion, the regarded as prong is also activated.
  4. The ADA requires an individual analysis and an interactive process, both of which are missing in this case.
  5. Interesting discussion about pattern or practice since it is the EEOC that brings such actions. You generally don’t think of a pattern or practice with regards to private litigants. That said, you certainly have screen out issues going on here, which as a de facto matter when combined with the policy amounts to something very similar.
  6. Check your jurisdiction as to whether it adopts an additional administrative feasibility rule when it comes to class actions.
  7. Ignoring relevant medical evidence is never a good idea.
  8. Considering how hard it is to find labor nowadays, one wonders about the business sense of Union Pacific’s policy.
  9. Many of the employees worked for years with no problems. So, if it ain’t broke, don’t fix it.
  10. Commonality is not a difficult requirement to satisfy.
  11. For the reasons discussed in this blog entry, I can’t imagine an appeal being successful.

Filed Under: General Tagged With: 1% rule, ADA, adequacy of representation, Administrative feasibility, Chevron v. Echazabal, class action, class action certification, commonality, consistent with business necessity, direct threat, EEOC, essential function, fitness for duty, fitness for duty policy, Harris v. Union Pacific Railroad Company, individual analysis, interactive process, job-related, numerosity, pattern or practice, predominate, qualified, Regarded as, rule 23, rule 23(a), rule 23(b), screen out, sudden incapacitation, superiority, title I, typicality

Issues Relating to Medical Exams

September 25, 2018 by William Goren Leave a Comment

I did not blog last week, but I have a good excuse. Last week, was the Jewish day of atonement, Yom Kippur, and my daughter was also on fall break. For those who were celebrating last week, I hope your holidays went well. My daughter is now back in school, and so I am ready to get back to it.

Today’s blog entry is actually a two-for-one. We will explore the issue of medical exams both in terms of when they can be done and whether you can ask the employee to pay the cost of the medical exams. In our first case, EEOC v. BNSF Railway Company, we visit the question of whether a prospective employer can force a person with a disability to pay for the cost of a medical exam, in this case an MRI. In the second case, In the Matter of Paul Williams, Township of Lakewood, we visit the question of whether an anonymous tip is sufficient to require an employee to undergo a medical exam. As usual, the blog entry is divided into categories and they are facts, court’s reasoning, and takeaways for each case (a total of six different categories). Of course, the reader is free to read any or all of the categories.

I

BNSF Railway Company Facts

Holt received a conditional job offer from BNSF Railway Company for the position of Senior Patrol Officer contingent on his satisfactory completion of a post-offer medical review. During that medical review, he disclosed that he had injured his back four years before when he suffered a two-level spinal disc expiration. His primary care doctor, his chiropractor, and BNSF’s subcontractor doctor hired to examine him all determined that he had no current limitations with his back and found no need for follow-up testing. Even so, BNSF demanded that he submit an MRI of his back at his own cost, which would have run him $2500 since insurance would not cover it, or it would treat him as having declined the offer. Since he was in bankruptcy at the time, he did not obtain an MRI. As a result, BNSF revoked the job offer.

At the District Court level, the court held that the EEOC had shown that BNSF had regarded Holt as having a disability due to his back injury, that he was qualified for the job, and that BNSF had discriminated against him by requiring an MRI because it regarded him as having a disability. It also held that there wasn’t sufficient evidence to support any affirmative defense and granted partial summary judgment to the EEOC. The parties then reached an agreement on the amount to be awarded for damages, but BNSF did not waive its appellate rights and did in fact appeal. The District Court also entered a nationwide injunction against BNSF mandating that BNSF bear the cost of procuring any additional information it deemed necessary to complete a medical qualification evaluation. The injunction also required BNSF if they chose not to procure additional information, to complete the medical examination process using medical information it had in order to make a determination about whether the applicant was medically qualified for the job for which he received the conditional job offer.

II

BNSF Railway Company Court’s Reasoning

  1. Proving a prima facie case a means showing that Holt: 1) had a disability as defined by the ADA; 2) was qualified for the position as defined by the ADA; and 3) that BNSF discriminated against Holt because of his disability.
  2. 42 U.S.C. §12102(1)(C) provides that a person is regarded as having a disability where he or she can establish that an adverse action occurred because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limited or is perceived to limit a major life activity.
  3. It is no longer necessary to show that the impairment had to be perceived to substantially limit a major life activity for discrimination to be actionable under the regarded as definition. So, all the EEOC had to show is that Holt had an impairment and not that the impairment was substantially limited.
  4. A plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have an impairment and that the impairment was not transitory or minor.
  5. While physical or mental impairment does not appear in the ADA itself, the EEOC at 29 C.F.R. §1630.2(h)(1) has defined an impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
  6. By requesting an MRI because of his back condition and conditioning the job offer on the completion of the MRI at Holt’s own cost, BNSF assumed that he had a back condition disqualifying him from the job unless he could disprove that proposition. Further, in rejecting his application because it lacked a recent MRI, BNSF treated him as it would an applicant whose medical exam had turned up a back impairment or disability. Therefore, BNSF chose to perceive him as having an impairment at the time it asked for the MRI and at the time it revoked the job offer.
  7. Interpreting the ADA so that the definition of perceived impairment includes situations where an employer assumes an employee has an impairment or disability is consistent with the ADA as amended mandate that the definition of disability is construed broadly in favor of persons with disabilities.
  8. Requiring an applicant pay for an MRI or lose his or her job offer because the applicant has a perceived back impairment is a condition of employment that imposes discriminatory conditions on a person with a perceived impairment. Further, considering the cost of MRIs, requiring an MRI as a condition of employment will for many individuals mean disqualifying them from participating in the process.
  9. 42 U.S.C. §12112(d)(3) does not authorize an employer to further burden a prospective employee with the cost of the testing regardless of how necessary the testing may be.
  10. Where an employer requested an MRI at the applicant’s cost only from person with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person’s disability. Such a requirement effectively precludes many applicants and directly contradicts the ADA’s aim to increase opportunities for persons with disabilities.
  11. While there is nothing wrong with requiring additional follow-up testing, it is quite a different kettle of fish to require that the additional follow-up testing be done at the applicant’s expense. Imposing such a requirement limits the general protections of the ADA far beyond the necessary implications of what is allowed the ADA medical testing scheme.
  12. The ADA already puts financial burdens on the employer by requiring them to pay for reasonable accommodations in the absence of an undue hardship. So, allowing employers to force people with disabilities or perceived impairments to pay for follow-up test subverts the goal of the ADA to ensure that those with disabilities have equality of opportunity and would force them to face costly barriers to employment.
  13. If employers are not required to pay for the additional medical tests they require of people with disabilities, they very well might use that medical testing as a way to screen out applicant with disabilities. Putting the burden to pay on employers, helps to ensure that employer do not abuse their power to require testing at the post-offer, pre-employment stage.
  14. While the EEOC did not show that BNSF acted with the discriminatory motive, it didn’t have to since it was clear that action was taken because of an impairment or perception of an impairment.
  15. BNSF did not contest the issue of whether Holt was qualified under the ADA but even so, they decided to impose an MRI on him because of its perception that he had an underlying back problem.
  16. With respect to the nationwide injunction, the court noted that there are customarily four factors a court considers when granting a nationwide injunction and they are: 1) whether plaintiff has suffered an irreparable injury; 2) whether remedies available at law are inadequate to compensate for that inquiry; 3) the balance of hardships; and 4) the public interest. While the District Court did not engage in this analysis, the Ninth Circuit holds that the factors were met in this particular case. Even so, the Ninth Circuit said that the injunction had to be vacated and remanded because the District Court failed to make adequate factual findings to support the scope of the injunction.

III

BNSF Takeaways

  1. The ADA has a complicated scheme when it comes to medical exams and disability related inquiries, and we discussed that in this blog entry.
  2. It is a bit mind-boggling to me that an employer would try to impose the costs of such exams on the applicant because doing so undoubtedly screens out people with disabilities and directly contravenes the whole idea behind the ADA in the first place.
  3. There is a big debate going on right now about the utility of nationwide injunctions, and the four factor test provides a useful guideposts for trying to figure that out.
  4. Interesting that the Ninth Circuit says that the final prong of a prima facie case is showing that the applicant was discriminated against, “because of his disability.” As we discussed in this blog entry, that is not what the ADA as amended requires.
  5. Also interesting, is that the court with respect to regarded as says the ADA as amended provides for an exception from regarded as coverage if the impairment is transitory OR minor. However, 42 U.S.C. §12102(3)(B) requires that the impairment to be excluded must be transitory AND minor. Also, the court says that the plaintiff has the burden to show that the impairment is not transitory or minor.
  6. While it is true that physical or mental impairment is not defined in the ADA itself, 29 C.F.R. §1630.2(h) does state what a physical or mental impairment is. It is a rather sparse definition, but in fleshing that out, it is helpful to remember how the ADA as amended defines major life activities.
  7. Don’t forget about the screen out provisions of the ADA.

IV

In the Matter of Paul Williams, Township of Lakewood Facts

The Township of Lakewood received an anonymous letter purportedly from a very concerned employee at Lakewood Public Works saying that Williams had mental issues and was a time bomb waiting to explode. For over eight months, the Township took no action concerning the letter. Then, the Township advised Williams that he would be sent for psychological fitness for duty examination and that if he did not attend such an examination he would face disciplinary action. Williams believe the examinations were not job-related and consistent with business necessity as required by the ADA at 42 U.S.C. §12112(d)(4)(A), and so he did not attend the evaluations. Accordingly, the Township sought to remove him from employment. It first went through the ALJ, which found in favor of Williams. They then appealed it to the Commission, which found in favor of the Township. Williams then appealed it into the court system.

V

In the Matter of Paul Williams, Township of Lakewood Court’s Reasoning

  1. The ADA at 42 U.S.C. §12112(d)(4)(A) prohibits employers from requiring a medical exam or making inquiries on employee at the whether such employee is a person with a disability unless such examination or inquiry is shown to be job-related and consistent with business necessity. Citing to a case (Kroll), discussed in this blog entry, the court notes that there is very little discussion of this particular section in the ADA’s legislative history.
  2. EEOC regulations make clear that an employer cannot require an employee to undergo medical test that do not serve a legitimate business purpose.
  3. In an EEOC enforcement guidance, the EEOC says that a disability-related inquiry or medical examination of an employee may be job-related and consistent with business necessity when the employer has a reasonable belief, based upon objective evidence, that either: 1) an employee’s ability to perform essential job functions is impaired by a medical condition; or 2) an employee poses a direct threat due to a medical condition.
  4. With respect to direct threat, which we have discussed many times in our blog, such as here, pursuant to 29 C.F.R. 1630.2(r), the term refers to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.
  5. An employer has to reasonably believe either through direct observation or through reliable information obtained from credible sources that the employee’s perceived medical condition is affecting his or her work performance or that the employee poses a direct threat before it can require a medical examination of a current employee.
  6. EEOC enforcement guidelines says that an employer cannot act on information learned from another person to impose a medical exam unless the information learned is reliable and gives rise to a reasonable belief that the employee’s ability to perform essential job functions is impaired by a medical condition or poses a direct threat due to a medical condition. The guidance goes on to list five factors for an employer to consider for determining whether the information an employer receives is reliable and those factors are: 1) the relationship of the person providing the information; 2) the seriousness of the medical condition at issue; 3) the possible motivation of the person providing the information; 4) how the person learned of the information (whether directly from the employee whose medical condition is in question or from someone else); and 5) other evidence that the employer has bearing on the reliability of the information provided.
  7. The employer’s belief requires an assessment of the employee and his or her job and cannot be based on general assumptions.
  8. The Township did not meet its burden to demonstrate that requiring a physical exam was job-related and consistent with business necessity because the evidence was not there: 1) Williams work performance was satisfactory; 2) while Williams was confrontational at times, he didn’t behave differently than any other employee; 3) the Township failed to prove that Williams was a direct threat to either himself, others, or property; 4) prior employees of the Township were not required to undergo psychological evaluations, and the Township did not present any documentary evidence concerning any other disciplinary actions involving Williams; 5) the Township failed to take action for eight months; 6) the Township could have but did not solicit information from the Department of Public Works Director and any other supervisors concerning Williams job performance; and 7) the Township could have contacted the three union stewards specifically named in the letter for information about the alleged outbursts that Williams had but did not. Instead, they failed to investigate for over eight months, and then sought to rely on the letter as the sole basis for requiring the medical exam.

VI

In the Matter of Paul William Township of Lakewood Takeaways

  1. I am generally not a big fan of enforcement guidances. I think lawyers use them as a crutch. I am much happier sticking to statutory provisions and final implementing regulations that have gone through the rulemaking process. That said, as we discussed in this blog entry, enforcement guidances do prove useful at times. I believe using the enforcement guidance’s five factor test to figure out whether information you receive that might justify a medical exam makes a lot of sense and is good preventive law. I suppose whether it makes sense is a personal call, but hard to argue that the enforcement guidance five factor test is great preventive law.
  2. The case cited to in the opinion, Kroll, we discussed here.
  3. In many ways, the decision to require a medical exam of the current employee blends into whether a direct threat exists.
  4. You can never go wrong with individual analysis.
  5. If you receive information suggesting that a medical examination may be in order, in addition to the five factor test, be sure to look into it promptly and not wait eight months.
  6. This court says transitory and minor is an affirmative defense, which is different from what the Ninth Circuit says in BNSF, our first case. So, when it comes to transitory and minor, check your jurisdiction on who has the burden of proof. Also, on the plaintiff side, be sure to monitor the defense so that a court is not convinced that it is transitory or minor rather than transitory and minor as stated in the ADA itself.

Filed Under: General Tagged With: 29 C.F.R. §1630.2, 42 U.S.C. §12102, 42 U.S.C. §12112, actual impairment, ADA, affirmative defense, applicant's expense, conditional job offer, consistent with business necessity, direct threat, discriminatory condition, discriminatory motive, EEOC enforcement guidance, EEOC five factor test, EEOC v. BNSF Railway Company, Enforcement guidances, Holt, impairment, in the matter of Paul Williams Township of Lakewood, individual analysis, injunction, job-related, Major life activity, medical exams, MRI, nationwide injunction, perceived, perceived impairment, physical impairment, pprima facie, reasonable accommodations, Regarded as, screen out, substantially limited, title I, transitory and minor, transitory or minor

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.

I

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.

II

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

  1. 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.
  2. In an interpretive guidance, the EEOC said impairment does not include characteristics or predisposition to illness or disease.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. Citing to an 11th 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.
  8. 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 11th 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.

IV

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. The court perceived a clear distinction between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
  11. In its guidance, the EEOC specifically recognizes that obesity can independently give rise to regarded as disability discrimination claims.
  12. 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.
  13. With respect to business necessity, the employer’s burden is quite high and is not to be confused with mere expediency.
  14. 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.
  15. 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.

V

Takeaways:

  1. 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 11th Circuit as of late has often been favorable to persons with disabilities.
  2. Interesting that the same interpretive guidance gets used in both cases to reach opposite conclusions.
  3. 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.
  4. 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.
  5. For more explanation as to what constitutes business necessity, check out this blog entry.
  6. 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.
  7. 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.
  8. 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.
  9. As a preventive matter, individual analysis is critical.

Filed Under: ADA, Final Federal Regulations, Title I Tagged With: 42 U.S.C. §12102(3), 42 U.S.C. §12102(3)(A), 42 U.S.C. §12112(b)(6), ADA, Association discrimination, BMI, body mass index, business necessity, Chevron v. Echazabal, conditional job offer, conditional offer, crane operator, diabetes, direct threat, Ebola, EEOC charge, EEOC interpretive guidance, EEOC v. Amsted rail company Inc., EEOC v. STME dba Massage Envy-South Tampa, fear of developing disability in the future, fears, future disability, groundsman, heart disease, hostlers, interference, job-related, Known disability, medical evaluation, myths, Obesity, predisposed to developing a disability, predisposed to illness, present impairment, qualification standards, Regarded as, regarded as having a disability, safety sensitive position, school board of Nassau County v. Arline, screen out, Shell v. Burlington Northern Santa Fe Railway Company, sleep apnea, stereotypes, title I, underlying physiological condition, Voluntary conduct of plaintiff, Wascura v. city of South Miami

Posts navigation

Page 1 Page 2 Page 3 Next

Primary Sidebar

Search

NOW AVAILABLE

Understanding the ADA 4th Edition

ABA JOURNAL WEB 100

2014-2018: 5 Consecutive Years!

2017 & 2016 FEEDSPOT TOP 100 LEGAL BLOG

Recent Posts

  • Egregious Fitness for Duty Policy Leads to Class Action Certification February 14, 2019
  • Medical Exams, Direct Threat, and Qualified and How All Three Concepts Work Together February 5, 2019
  • Title III of the ADA Applies to Internship and Externship Sites January 30, 2019
  • Standing in Cyberspace and Other Issues January 25, 2019

ADA Legal Resources

  • Department of Justice ADA Web Site
  • Disability Discrimination, EEOC Info
  • DuPage County bar Journal, The Brief
  • Job Accommodation Network
  • Midwest Center for the Law and Deaf
  • National Association of Attorneys with Disabilities (NAAD)
  • Understanding the Americans with Disabilities Act

Articles

  • ADA and Mediation/Arbitration: Things to Think About
  • Affirmative-action and persons with disabilities
  • Americans with Disabilities Act Claims: Is a Mixed Motive Jury Instruction Dead?
  • An ADA Checklist as You Go About Your Practice
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Expect huge impact from DOJ regulations implementing Titles II and III of ADAAA
  • Help your institution avoid some common mistakes when dismissing students with disabilities
  • Internet addiction, ADA, and employment
  • Internet and Title III of the ADA
  • Is Your University or College's Homepage Accessible to Prospective Students with Visual Impairments?
  • Legal Liability of Buying or Developing Inaccessible Technology
  • Reassignment and the ADA: Is It a Matter of Right and How Do You Prove It up?
  • Service dogs and the ADA
  • Should Your Law Firm's Internet Site Be Accessible to the Persons with Disabilities
  • The Americans with Disabilities Act and Employment
  • The Ins and Outs of Nevada’s Service Animal Laws
  • What is the statute of limitations for ADA claims

Blogroll

  • architectural accessibility
  • disability law blogspot
  • FMLA Insights Blog
  • labor and employment law blog (management)
  • Lawffice Space Blog
  • management employment law blog (California based firm)
  • Ohio Employment lawyer blog (Jonathan Hyman-management)
  • PLAINTIFF California labor and employment law blog
  • plaintiff employment law blog
  • Robin Shea's employment and labor law insider blog (management-Constangy, Brooks & Prophete)
  • Second Circuit civil rights cases
  • The blog for Supreme Court goings on
  • The employer handbook blog
  • Title III and Fair Housing Act Blog (defense)
  • Title III and II ADA blog
  • Title III blog business side (Seyfarth Shaw)
  • Workplace safety and health law blog

Greatest Hits

  • ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next
  • ADA and the Applicable Statute of Limitations
  • ADA compliance auditing for higher education
  • ADA Compliance Is a Nondelegable Duty
  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
  • Can You Get Compensatory and Punitive Damages When Alleging Retaliation
  • Just When Does the Statute of Limitations BEGIN to Run in ADA Cases
  • Service dog v. therapy dogs
  • Suing state court system for title II violations
  • Temporary disabilities and the ADA
  • What do you have to show to get compensatory damages under title II of the ADA
  • What does it mean to exhaust administrative remedies under title I of the ADA?
  • Why a recent US Supreme Court opinion is a huge victory for title I plaintiffs (mixed motive)

In the Media

  • ABA Blawg 100 2014
  • ADA and ADR
  • ADA Game Changer: CRST Van Expedited v. EEOC
  • ADA Litigation Game Changer
  • Blog entry on Impact of University of Texas Southwestern Medical Center v. Nassar on the ADA
  • Blog entry on Judge Gorsuch on Disability Rights Linked to by SCOTUS Blog
  • Blog entry on Sheehan v. City and County of San Francisco
  • CBS money watch article discussing website accessibility litigation.
  • CRST Van Epedited blog entry referenced in over lawyered
  • Death Penalty and Intellectual Disabilities Supreme Court Opinion
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Does title IIof the ADA/§ 504 of the Rehabilitation Act applied to employment
  • E-bay's Inaccessibility to the Deaf
  • EEOC affirmative action per § 501 blog entry referenced in March 2016 employment Law blog carnival
  • Employment Law Blog Carnival November 2015
  • Expert Interview Series: ADA Consultant William Goren on What You Need to Know About ADA Compliance
  • February 2016 employment Law blog carnival
  • Finding creative solutions within the law
  • Fisher II blog entry referenced in Scotus Blog
  • Fry oral argument blog entry referenced in Scotus Blog
  • Guest Post on Illinois Business Litigator Blog regarding My Burden of Proof When Dealing with Remediation Blog Entry
  • How Fry playing out blog entry referenced by Scotus blog
  • How the legal industry lets down lawyers with disabilities
  • Illinois business litigator blog featuring my blog entry discussing whether a corporation has a retaliation cause of action under the ADA
  • Impact of Abercrombie and Fitch Decision on the ADA
  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
  • Law practice today members spotlight
  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
  • PBS News Hour piece discussing accessibility of amusement parks for persons with disabilities
  • Reflections on the development of disability as a diversity concern in the legal profession
  • SCOTUS blog references Blog entry discussing the impact of South Dakota v. Wayfair on Internet accessibility litigation
  • SCOTUS blog references Endrew oral argument blog entry
  • SCOTUS Blog references Fry decided blog entry
  • SCOTUS Blog referencing blog entry that Reviews Supreme Court cases and the upcoming Supreme Court cases vis a vis the ADA/disability rights
  • Sevorson decision analyzed
  • Sheehan decision
  • Trimble v. Kroger
  • Voyage Atlanta Profile
  • What's wrong with this job description blog entry featured in December 2015 employment Law blog carnival
  • When to grant more leave after FMLA is exhausted
  • Why ADA is a Good Law

Presentations of interest

  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

Footer

Powered by WordPress and the Utility Pro theme for Genesis Framework.