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Curiosity Killed the Cat: Disability Related/Medical Inquiries and the ADA

January 9, 2018 By William Goren 1 Comment

The blog entry for this week is a follow-up on the blog entry from last week. Last week, I discussed job relatedness and business necessity. This week we discuss medical related inquiries and disability related inquiries in two different cases.  One from the Northern District of Texas and the other from the Fourth Circuit. The case from the Northern District of Texas is Mir v. L-3 Communications Integrated Systems . The case from the Fourth Circuit is Bingman v. Baltimore County. As usual, the blog is divided into categories, and they are: Mir facts; Mir court’s reasoning; Bingman court’s facts; Bingman court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories in the blog entry

I

Mir Facts:

Plaintiff suffered from hip problems throughout his life and had a number of surgeries on his right hip, including multiple hip replacement operations or revisions. In 2005, during his left hip replacement, the sciatic nerve on one side of his hip was crushed causing permanent nerve damage. As a result, plaintiff walks with a pronounced limp and uses a cane to assist him while walking. In 2005, the injury required him to go on long term disability. The long-term disability provider required him to apply for Social Security benefits to offset the long-term disability benefits. He made certain representations on his Social Security Administration application for benefits and was awarded SSA benefits. In 2007, the plaintiff underwent another surgery to correct his hip, and he was physically able to return to work in 2008. In 2011, he applied to work for L-3 Communications at their Greenville, Texas facility. On October 11, 2011, he was contacted by the defendant and an interview was scheduled for October 17 of 2011. The specific job posting for the position was as follows:

Bachelors Degree in Mechanical or Civil Engineering with a minimum of 8 years of experience or Bachelor’s Degree with related experience. The candidate must have a knowledge of manufacturing processes, which include machining, NC programming, sheet metal and assembly. Additional knowledge of HDL Aircraft installation procedures is a plus. He/She should have experience with what constitutes a good engineering design with respect to producibility issues. In additional to these skills, the ability to work simultaneous projects and operate in a dynamic, fast-paced cross-functional environments is required. Strong written and oral communication skills are essential.

On October 17, 2011, a department head at L-3 Communications met the plaintiff at a recruiter’s office and led him to his office, which was located in a separate building to conduct the interview. During the walk to his office, approximately 100 yards away, the department head asked the plaintiff questions regarding his ability to walk. The plaintiff responded that he had a hip replacement surgery, a mistake was made, and his sciatic nerve was crushed. Once the interview started the department head also asked the plaintiff questions regarding the nature and extent of his physical limitations. More specifically, he made inquiries as to his short and long-term prognosis and a timeline of when the injuries occurred. Plaintiff testified that the discussion concerning his injuries lasted approximately 15 minutes. Three weeks later, human resources contacted the plaintiff to inform him that they declined to offer him a position. The plaintiff then filed a complaint with the Office of Federal Contract Compliance Programs, which initially concluded that he had been discriminated against because of his disability, but then issued a revised notification of results stating that there was insufficient evidence to conclude that discrimination occurred because of his disability. OFCCP then issued a notice of to sue, and the plaintiff brought suit in federal court.

II

Mir Court’s Reasoning

  1. Claims of disability discrimination can be established by either presenting direct evidence or by using the indirect method of proof set forth in McDonnell-Douglas. The questions asked by the department head were not direct evidence of discrimination under the ADA.
  2. Plaintiff was not bound by his statement to the Social Security Administration because those statement regarding his inability to work occurred approximately five years prior to his interview for the position at L-3 communications. He established that he underwent corrective surgery to correct the injury. His statement to the Social Security Administration were consistent with his claim that he could perform the duties of the position with reasonable accommodations. Finally, plaintiff offered sufficient explanation to reconcile his sworn assertion to the Social Security Administration regarding his inability to work with his claim that he was qualified for the position under the ADA. Accordingly, he was not judicially estopped from being a qualified individual under the ADA.
  3. Knowledge of HDL aircraft installation procedures was not a necessary minimum qualification under the job posting for the position.
  4. The job posting did state that a candidate for the position must have NC programming knowledge and the plaintiff lacked such knowledge.
  5. The court could not find any authority requiring a prospective employer to accept a person for a position who does not meet all minimum qualifications. Accordingly, since the plaintiff did not have NC programming knowledge, he was unable to establish a prima facie case of discrimination due to his disability. The court was unpersuaded by plaintiff’s claim that a lack of NC programming knowledge was not a bar to the job because he had more advanced programming knowledge than the NC programming.
  6. The ADA provides that an employer shall not conduct a medical examination or make inquiries of the job applicant as to whether such applicant is an individual with a disability or as to the nature or the severity of such a disability. 42 U.S.C. §12112(d)(2)(A). While damages liability must be based on something more than a violation of 42 U.S.C. §12112(d)(2)(A), that doesn’t preclude nominal damages. Accordingly, a genuine dispute of material fact existed with respect to plaintiff’s claim of improper inquiries under the ADA.

III

Bingman Court’s Facts

Plaintiff, formerly employed as a laborer with the Bureau highways of Baltimore County, Maryland, sued Baltimore County alleging he was terminated because of his disability in violation of the ADA. At trial, he received a verdict of $400,000 in damages, of which $298,000 consisted of noneconomic damages. The County argued that the District Court erred when it refused to allow the county to present evidence that the plaintiff applied for and received Social Security Disability Insurance benefits, and when it refused to instruct the jury regarding plaintiff’s obligation to explain the inconsistencies between the disability discrimination claims and his SSDI application. The County also argued that the jury’s noneconomic damages awards were not supported by the evidence.

IV

Bingman Court’s Reasoning

  1. With respect to the SSDI filing, the County was allowed to question the plaintiff regarding statements he made in his SSDI proceedings, and the District Court adequately instructed jury regarding its obligations to consider statements the plaintiff made in those proceedings.
  2. The facts are undisputed that the County used out of date medical authorizations to obtain plaintiff’s cancer related medical records, and then made unlawful inquiries when it sought and received records regarding plaintiff, rather than limiting their request to the plaintiff’s back injury. As a result of those unlawful inquiries, the County received information about plaintiff’s cancer diagnosis and treatment, which it was not allowed to do.
  3. It is also undisputed that the plaintiff was told to undergo a medical examination based solely on speculation that his bones may be brittle because of his cancer treatments.
  4. The inquiries and examination were separate acts for which the jury was justified in awarding damages.

V

Takeaways:

  1. Whether the bifurcation of direct evidence and indirect method when it comes to the burden of proof has continuing validity is debatable, as discussed in this blog entry.
  2. The must read case on judicial estoppel can be found in this blog entry.
  3. As mentioned last week, it is critically important that if you are going to make a disability related inquiry or a medical inquiry, the inquiry be narrowly focused to the issue at hand and not be any broader than necessary.
  4. If you are curious about an applicant’s disability, keep it to yourself. Remember, curiosity killed the cat. The ADA does allow you to ask an applicant how they might perform the essential functions of the job in light of an obvious or self-disclosed disability, but even so, doing so is very very tricky. Training Training Training (see also ¶ 6 below), is always good.
  5. Getting the ADA medical inquiry and disability related inquiry things wrong can lead to substantial liability.
  6. With respect to medical inquiries and disability related inquiries, it really helps if people with disabilities (HR personnel with disabilities and/or attorneys with disabilities), are involved in the process of assessing when such medical inquiries and disability related inquiries may take place or have taken place.
  7. Make sure your essential job functions in your job descriptions reflect how the job is actually performed.
  8. Should you really be interviewing people who don’t meet the essential functions of the job with or without reasonable accommodations? Doesn’t that suggest the function of the job is not essential?

Filed Under: ADA, Federal Cases, Final Federal Regulations, Title I Tagged With: 42 U.S.C. §12112, Bingman v. Baltimore County, burden of proof, Cleveland v. Policy Management Systems Corporation, direct evidence, disability related inquiries, essential functions of the job, essential job functions, improper inquiries, indirect method, job description, judicial estoppel, McDonnell Douglas Corporation v. green, medical inquiries, Mir v. L-3 communications integrated systems, nominal damages, Ortiz v. Werner Enterprises Inc., reasonable accommodations, SSDI, With or without reasonable accommodations

This is Outrageous! April Fools:-)

April 1, 2017 By William Goren Leave a Comment

I

This is just outrageous!* People shouldn’t say these things, such as:**

  1. “I’m not going to change anything with respect to IEP’s. After all, appropriate progress means anything you want it to mean.”
  2. “Since I don’t want your money, I can do what I want.”
  3. “A cool website is more important than an accessible website. Besides, my business is entirely on the website, so no worries.”
  4. “I hired someone to give me the down and dirty on my hotel being in compliance with the ADA. So, if it isn’t, not my problem since that person has to indemnify me anyway.”
  5. “Just more efficient if I accommodate the same disability in the same way regardless of the individual.”
  6. “Judges need not worry about accommodating litigants with disabilities since they have judicial immunity anyway.”
  7. “A person on a jury with a disability, NAAAAH.”
  8. “For real… affirmative action for persons with disabilities? What is next?
  9. “You can’t do the essential functions of the job, hit the road.”
  10. “You have to be at work unless of course, I-85 has been destroyed.”
  11. “Don’t worry about reasonable accommodations unless the employee says please.”
  12. “Ignorance of the law is no excuse unless you are the police.”
  13. “Addicts are addicts, and so I am going to treat drug addicts and alcoholics in the same way.”
  14. “You have got to be kidding; athletes subject to the ADA. Good Grief.”
  15. “Since Auer is dead anyway, I don’t need to care about what an agency says about how it would interpret its own regulations.”
  16. Dogs!
  17. “I love people on SSDI since I don’t have a duty to accommodate them.”
  18. “A disability is a get out of jail free card.”

 

*APRIL FOOLS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

** My thanks to Robin Shea for giving me the idea and the courage to do this April fools post. Her April fools blog entry is really cool!

II

Can they really do that or say that?

  1. Relying on “appropriate progress,” to think that the old world of IEP’s can remain is very dangerous. It is clear when the Court used the term “appropriate progress,” they had something quite a bit different in mind than the old paradigm. A better way to look at it would be to think of it in terms of “progress appropriate…” See this blog entry.
  2. If you refuse to take money, because you want to discriminate, that is not going to work as seen here.
  3. This one is really complicated. See my friend and colleague’s, Richard Hunt, blog entry on it. It is indeed a mess. For now, the thing to keep in mind is meaningful access.
  4. The ADA is a nondelegable duty as discussed here, but see here as well.
  5. The ADA requires an individual analysis. Do you really need a citation for that?:-)
  6. Judges do have to worry about accommodating litigants with disabilities even though they have judicial immunity. See here and here.
  7. Person’s with disabilities do have a right to serve on juries. See here.
  8. Not outrageous at all; A person opposed to affirmative action for persons with disabilities just may have a case as discussed here.
  9. Just because a person cannot do the essential functions of the job, does not mean they can’t do the job with reasonable accommodations. See here for example. For other examples, just plug-in “essential function,” into my blog search engine, and you will see many different blog entries discussing essential functions.
  10. This particular statement is happening all over the Atlanta area. As many of you may be aware, it appears that a group of homeless people started a fire and that caught a bunch of flammable items on fire as well as items that made the heat even worse. The result of which is that I-85 completely busted up in a very busy corridor of Atlanta. Employers are encouraging their employees to telecommute. So, I sure hope they have telecommuting policies. Also, I sure hope they have read this blog entry as well.
  11. Magic words are not required as discussed here. See also ¶ II 2.
  12. Not exactly. The police get some slack but not a free pass.
  13. It is a real common misperception that drug addicts and alcoholics are treated the same way under the ADA. They aren’t. See this blog entry and its comments.
  14. Athletes are most definitely covered by the ADA. See this blog entry and comments for example.
  15. Auer (the doctrine that gives deference to agency interpretation of its own regulations), will shortly be dead, but that doesn’t mean a guidance can’t be great preventive law, such as here.
  16. As everyone knows, I love dogs! See here and here for example.
  17. Outrageous, but complicated.
  18. A disability is not a get out of jail free card.

Hope you enjoyed this blog entry. Remember, it was written on April fools. Good luck to everyone on the upcoming baseball season. The prognosticators are saying the Cubs and the Tribe will be back, but we will see.

Filed Under: ADA, Constitutional law, Federal Cases, Final Federal Regulations, Guidances, IDEA, Proposed Federal Regulations, Title I, Title II, Title III Tagged With: ADA, affirmative aaction, alcoholics, appropriate progress, athletes, Auer, court system, drug addicts, essential functions, IEP, indemnification, judges, jury, litigants with disabilities, nondelegable duty, Police, progress appropriate, reasonable accommodations, Service dogs, SSDI, telecommuting, title I, title II, title III, website accessibility

Is attendance always an essential function of the job?

April 21, 2014 By William Goren 5 Comments

When the ADA first was enacted back in 1990 and went into effect in 1992, the Internet was just getting started. Back then, it was pretty obvious to everyone that an essential function of the job must mean showing up for it. Since then, technology has evolved quite a bit so now many people can do their work from just about anywhere. Therefore, whether attendance is an essential function of the job is now a case-by-case decision. How does one go about figuring out whether attendance is an essential function of the job? In my opinion, the leading case on this issue is the case of Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012). In this case, a neonatal nurse had fibromyalgia (a rather hard condition for physicians and patients to get a handle on and one that can limit effective sleep and which has as one of its components chronic pain/nerve pain throughout the body). As a result of her fibromyalgia and how it affected her, Samper was unable to regularly come to work in accordance with the employer’s attendance policy. Eventually, she was discharged for several reasons, including having seven absences in the 12 month period as well as a general problems with attendance. She then filed suit alleging violation of the ADA.

In affirming summary judgment for the employer, the Ninth Circuit held that regular attendance is an essential function of the job where the job requires attendance. The court goes on to give some great preventive law tips as to how you could know when that job requires attendance. A job requires attendance according to Samper, where the employee must work as part of the team, the job requires face-to-face interaction with clients and other employees, or the job requires the employee to work with items and equipment that are on site. With respect to Samper, the Ninth Circuit said that all these requirements were satisfied considering the nature of being a neonatal nurse and the stakes involved for the hospital’s patients when the hospital is not staffed adequately.

A recent case that follows Samper is Mecca v. Florida Health Services Center, Inc., 2014 WL 408431 (M.D. Fla. February 3, 2014). In this case, the plaintiff was employed as a peripherally inserted central catheter nurse. Such a nurse inserts a peripherally inserted central catheter line into patients, which is an intravenous catheter that is typically inserted through a large vein generally in a patient’s upper arm and then threaded into the patient until it rests in the body directly next to the patient’s heart. It is a job that requires adherence to proper procedures and strict sterile techniques in order to avoid high risks of infection. Mecca’s disability involved panic attacks and anxiety. The accommodation he sought was in the form of leave. With respect to his particular symptoms, they included nervousness, anxiety, incontinence, and sleeplessness, among other things. After several consecutive weeks on FMLA leave, he brought a medical note from the doctor releasing him to work three days a week for 8 to 12 hours a day. However, on his first day at work back from leave, he did not respond to any request for consults, which are requests to assess a patient to insert a line. He also left for the day prior to the end of his shift. After numerous communications with the human resources department indicating that he would be subject to discipline, including termination, for failing to respond to consults, he submitted his resignation. He subsequently applied for Social Security disability benefits claiming he was unable to work as of May 8, 2010 and he was successful in that application.

In finding for the hospital, the Middle District of Florida found Samper persuasive. It also found that the role of the nurse that did what he did was very similar to one of a neonatal nurse. Accordingly, the court found that attendance at work was an essential job function of his job. The court also found that the plaintiff by filing for Social Security Disability Income was judicially estopped from pursuing his ADA case since he did not give an explanation sufficient to warrant a reasonable juror to conclude that he could perform the essential functions of the job with or without reasonable accommodation notwithstanding the representations made in the application for Social Security Disability Income.

Takeaways:

1. When trying to figure out whether an essential function of the job includes attendance, the first step should be to look at the Samper criteria.

2. Keep in mind that even a job that satisfies all these criteria upon initial review may not be a job where attendance is an essential function of the job. For example, the Fifth Circuit in Carmona v. Southwest Airlines Company, 604 F.3d 848 (5th Cir. 2010), held that a flight attendant for Southwest Airlines may not have been in a job where attendance was an essential function in light of the airlines extremely lenient attendance policy, which thereby created a question of fact for the jury to decide.

3. It would behoove the employer to have data to back up its contention with actual practice that attendance is an essential element of the job regardless of whether the particular job at issue meets the Samper criteria.

4. On the plaintiff’s side, if the plaintiff is taking on an ADA case, the plaintiff’s attorney needs to explain the risk of filing for Social Security Disability Income should the client be suggesting that that is something he or she wants to do. If the attorney is an SSDI attorney, that attorneys should make it a part of a routine part of his or her practice to explain how the filing of an SSDI claim may compromise a future ADA claim. Failure on the part of the plaintiff’s attorney or the SSDI attorney to make that explanation may lead to a legal malpractice claim. For a blog entry of mine discussing judicial estoppel, take a look at this particular blog entry. With respect to legal malpractice, I wrote an article on it for the DuPage County Bar Association Journal, The Brief. I expand on that article on pages 142-143 of my book. On the defense side, whenever a person sues for discrimination on the basis of disability in employment, it needs to be a discovery item as to whether that person filed an SSDI claim.

Filed Under: ADA, Federal Cases, General, Title I Tagged With: 9th Cir., ADA, Americans with Disabilities Act, anxiety, attendance, essential functions of the job, Fibromyalgia, Inc., judicial estoppel, Mecca v. Florida health services center, middle District of Florida, Ninth Circuit, panic attacks, Samper v. Providence St. Vincent Medical Ctr., Social Security disability income, SSDI, title I

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