impairment

Obesity as a Disability and the Case of a Legislator with a Disability Unable to do His Job

August 1, 2019 by William Goren Leave a Comment

Today’s blog entry is a two-for-one. First off, with respect to being late this week, my daughter started her second year of high school today. So, this week was her last week of summer break, and as you can imagine, things were pretty hectic around here. But, we are now back to the school routine.

Turning to the blog entry of the day, as mentioned above, it is a two-for-one. First, the blog will explore the issue of whether obesity is a disability. We will explore a very interesting case from the State of Washington. Second, what happens if you have a legislator with a disability who can’t get to the same starting line as a legislator without a disability due to another legislator refusing to accommodate him. What title of the ADA does that legislator turn to. As usual, the blog entry is divided into categories and they are: background with respect to whether obesity is a disability; Taylor facts; Washington Supreme Court’s reasoning that obesity is always a disability under Washington law; Taylor takeaways; what’s going on in Wisconsin? Introduction; and let’s break this down. Of course, the reader is free to focus on any or all of the categories.

Background with Respect to Whether Obesity Is a Disability

In Taylor v. Burlington Northern Rail Holdings, Inc., The Washington Supreme Court received a certification request from the Ninth Circuit with respect to whether under Washington law obesity was a disability. People who follow the ADA know whether obesity is a disability under the ADA is complicated. The courts aren’t unanimous on it. However, the majority view in a big way is for obesity to be a disability under the ADA, there must be an underlying physical or mental impairment. Absent an underlying physical or mental impairment, a person with obesity is not a person with a disability under the ADA. This case raises a very important point that States often have their own antidiscrimination laws. Those laws may look at things very differently from the ADA.

Taylor Facts

In 2007, Taylor received a conditional offer of employment as an electronic technician from the defendant. The offer was contingent on a physical exam and a medical history questionnaire. The physical exam found that Taylor met the minimum physical demands of the essential functions of an electronic technician. However, the medical exam found that Taylor’s height was 5’6” and weighed 256 pounds resulting in a BMI of 41.3. Since a BMI over 40 is considered severely or morbidly obese, the defendant treated that as a trigger for further screening in the employment process. As a result, his results were referred to defendant’s chief medical officer who told Taylor that they were unable to determine whether he was medically qualified for the job due to significant health and safety risks associated with extreme obesity and uncertain status of knees and back. The defendant offered to reconsider if Taylor paid for expensive medical testing, including a sleep study, bloodwork, and an exercise tolerance test. The defendant also told Taylor that it was company policy to not hire anyone having a BMI over 35 and that if he could not afford the testing, his only option was to lose 10% of his weight and keep it off for six months. Taylor could not afford the testing because he was unemployed and did not have medical insurance or VA benefits. So, he filed suit in Washington State court and the suit was removed to federal court. At the federal court level, the judge relied on the majority rule with respect to obesity and found that Taylor was not a person with a disability under the ADA because he could not show that the obesity was caused by a physiological condition or disorder or that the defendant perceived the plaintiff’s obesity as having such a cause. On appeal to the Ninth Circuit, the Ninth Circuit stated that whether obesity was a disability under Washington State law was unresolved and certified the question to the Washington Supreme Court. The Washington Supreme Court accepted that certification.

III

Washington Supreme Court’s Reasoning That Obesity Is Always a Disability under Washington Law

Washington law makes it an unfair practice for an employer to refuse to hire any person because of the presence of any sensory, mental, or physical disability unless based upon a bona fide occupational qualification.
Washington law defines a disability as a sensory, mental, or physical impairment that: 1) is medically cognizable or diagnosable; or 2) exists as a record or history; or 3) is perceived to exist whether or not it exists in fact.
Under Washington law, a disability can be temporary or permanent, common or uncommon, mitigated or unmitigated and can exist regardless of whether it limits the ability to work generally or at a particular job, or limits any other activity.
What is an impairment under Washington law is either of the following: 1) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or 2) any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The debate is over whether obesity is a physiological disorder or condition under Washington law.
The Washington Human Rights Commission has said that a person is considered disabled by a sensory, mental, or physical condition if he or she was discriminated against because of the condition and the condition is abnormal.
In a prior case, the Washington Supreme Court has said that an employee is disabled if they have a sensory, mental, or physical a abnormality and such abnormality has a substantially limiting effect upon the individual’s ability to perform his or her job.
In response to previous opinions of the Washington Supreme Court, the Washington legislature in amending Washington law expressly found that the Washington Law against Discrimination affords residents of Washington protections independent of those afforded by the ADA and that those protections existed for many years prior to the advent of the ADA. In making those changes the legislature chose to define disability very broadly including explaining that impairment includes but is not limited to any physiological disorder or condition affecting one or more body systems.
In a case such as this, all plaintiff need to show is the employer perceived the employee as having an impairment.
The medical community recognizes obesity as a primary disease. The medical evidence shows that obesity is always an impairment because it is a physiological disorder or condition affecting one or more body systems.
Obesity qualifies as an impairment that is physiological because it involves the organic process and phenomena of an organism-the excessive accumulation of fat cells.
The medical community recognizes obesity as a disorder.
Just because obesity is often diagnosed by measuring weight doesn’t mean that it is not a physiological disorder affecting body systems.
Overwhelming consensus in the medical community is that obesity is a disease in and of itself.
Obesity satisfies the AMA criteria for labeling something a disease. That recognition of obesity as a disease is supportive of the conclusion obesity is a physiological disorder under the Washington statute.
While the Washington statute does not define disorder, Webster’s does. A disorder under Webster’s is a derangement of function and an abnormal physical or mental condition. A disease fits within that definition.
While the Washington legislature did not provide a definition of “condition,” the Washington Human Rights Commission did. According to Washington Human Rights Commission a condition is a sensory, mental, or physical disability if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question. The Human Rights Commission definition of “condition,” has to be given great weight since the Human Rights Commission is responsible for administering the Washington law against discrimination. The Washington Court of Appeals has previously adopted the Human Rights Commission view of what a condition is.
While the Human Rights Commission doesn’t define the word abnormal, the medical evidence shows obesity is an abnormal condition. The AMA has stated that obesity is a disease involving abnormal energy balance and abnormal endothelial function resulting in metabolic abnormalities even after weight loss.
The medical evidence also shows that obesity itself affects one or more body systems including neurological, musculoskeletal, special sense organ, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. In particular, Amicus brief described in detail just how obesity itself affects the cardiovascular or circular system, the musculoskeletal system, the lymphatic system, and the endocrine system.
The court had trouble understanding how finding obesity is a disability would produce more psychological harm than is already caused by companies freely and openly refusing to hire people because of their obesity. Obesity after all leads to social, economic, and psychological problems as a result of prejudice, discrimination, poor body image, and low self-esteem. Oftentimes, obese people are underemployed or unemployed.
Washington Law against Discrimination must view the definition of impairment broadly in order to effectuate the purposes of that law.
Washington Law against Discrimination is broader than the ADA and offers its own independent protection to Washingtonians.

Taylor Takeaways

When it comes to disability discrimination, the ADA isn’t the end-all and be-all, though it is in Georgia. It is not unusual for States to have their own antidiscrimination laws when it comes to people with disabilities. Those laws may extend coverage to employers of less than 15 or more. Those laws also may define disability very very differently. Finally, those laws may have different remedies associated with them. Accordingly, the ADA is only one thing to look at. You have to look at state law as well.
Washington Law Against Discrimination defines disability very differently from the ADA. While impairment under Washington law, judging from the case, appears to resemble the ADA, the other part of the definition of a disability is quite a bit different as it talks about whether the mental or physical impairment or sensory impairment is medically cognizable or diagnosable. That makes things considerably broader than the ADA in its scope of coverage.
Did I mention that I am not an attorney licensed in Washington. When it comes to state antidiscrimination laws affecting people with disabilities, always be sure to find an attorney who can interpret that state law for you. Generally, that means an attorney licensed in the applicable State.
Will you now see a movement by the legislators in Washington to change the definition of disability under the Washington Law against Discrimination to something more similar to the ADA. As mentioned above, “impairment,” in Washington law is quite similar to the ADA. It is the disability part that is considerably different. I don’t know what the answer to this question is, but it wouldn’t surprise me if you see an effort to amend the Washington Law against Discrimination to match the ADA.
Two problems with this case are that the Washington Supreme Court doesn’t really define what obesity is. It just assumes obesity is a BMI over 40. Also, the Washington Supreme Court says that obesity is always a disability and that it never depends. The decision that obesity is always a disability and never depends is what drove Justice Yu to dissent. His view is that obesity should not be a per se rule but should be based upon an individualized inquiry as such an approach fits better with how disability discrimination statutes, such as the ADA, generally work.
Those who are followers of Chevron deference matters, can see that the Washington Supreme Court essentially adopted that approach with respect to how the Human Rights Commission defined various terms. Note, that the Human Rights Commission had specific authority from the legislature to implement the Washington Law Against Discrimination.

What’s going on in Wisconsin?: Introduction

In Wisconsin, there is a legislator who uses a wheelchair. The story can be found here. Basically, the legislator is a Democrat who uses a wheelchair and a personal attendant is necessary many times. There are time because of his health and the lack of an ability to find a personal attendant that it makes sense for him to be able to dial in or use videoconferencing to attend some of his obligations. The chair is a Republican and is refusing to allow that accommodation and insists upon the legislator being personally there. I have seen the article pop up in several different places on the Internet. What is interesting, is that the article never seem to take into account title II of the ADA. Some of the articles that I have read said that if the legislator was an employee, then title I applies, but since he is a legislator all bets are off.

Let’s Break This down.

One of the things I have consistently seen over the years, is ADA knowledge is quite high among attorneys practicing in title I of the ADA. On the plaintiff side, you will find attorneys who litigate on behalf of plaintiffs with respect to employment discrimination claims involving persons with disability. The defense bar responding to those lawsuits is generally quite knowledgeable and not afraid to retain people, such as myself, who are knowledgeable if requisite knowledge is lacking. The defense bar also gets involved in counseling employers on disability discrimination matters. However, once you move into title II and title III of the ADA, the knowledge base among attorneys goes way down. What is wild about this situation is that title I and title II are involved at the same time. It is rare you see that. In fact, I have only seen it once; many years ago, when I consulted on such a case.

With respect to title I, assuredly the Democratic legislator is being paid for his efforts. Who is the entity paying him? It is probably the State of Wisconsin. Surely, the State of Wisconsin or whatever entity is paying him has more than 15 employees. So, the entity that is paying him has independent ADA obligations to ensure that one of their employees receives reasonable accommodations for his or her disability. As we have mentioned too many times to count, under title I of the ADA, accommodations must be made unless an undue hardship is involved. Undue hardship can either be financial or logistical. As we have also mentioned previously, financial hardship is very difficult to show as you look to the overall governmental resources and not to the budget item. For undue hardship in the logistical sense, readers of the blog know to think in terms of fundamental alteration. I don’t see how either applies to the case of the Democratic lawmaker seeking the ability to dial in or to videoconference. Of course, you have the question of whether the Democratic legislator is a qualified person with a disability. I don’t see how that is an issue here. Clearly, the Democratic lawmaker has a disability. By virtue of being elected, he has the requisite skill, experience, etc. to be a legislator. The question then becomes can he do the job with or without reasonable accommodations. He has recommended accommodations and has been turned down. So, whoever is employing the Democratic legislator has a problem on their hands with respect to the actions of the Republican chair. At a minimum, an interactive process should ensue to see if everyone can get to a win-win. Of course, I’m assuming that legislators and Wisconsin are employees in the first place and not independent contractors. If by some chance legislators in Wisconsin are actually independent contractors, I don’t see how that is possible but even so…, Then the Democratic legislator would still have claims under title II of the ADA and §504.

It doesn’t end there. With respect to title II, there may be a claim there as well. After all, a public entity is involved. We are also talking about accessing the programs, services, and activities of a public entity, i.e. legislative proceedings. Under title II of the ADA, reasonable accommodations have to be made unless you are dealing with an undue hardship or a fundamental alteration. As we have discussed previously many times, undue hardship and undue burden mean the same thing. Fundamental alteration is essentially logistical undue hardship. For the reasons mentioned above, I don’t see how either undue burden or fundamental alteration work as a defense in this situation. Again, you have the question of whether the Democratic legislator is a qualified person with a disability. Whether a person is a qualified person with a disability under title II of the ADA has a different definition than in title I of the ADA. Again, the Democratic legislator gets by this hurdle rather easily. He is, as mentioned above, a person with a disability. As for being qualified, he also meets the essential eligibility requirements of the program, activity, or services as well, i.e. he is qualified to be a state legislator and to participate in all legislative proceedings with or without reasonable accommodations. So, bottom line, the Democratic legislator has both a title I claim and a title II claim against the entity paying both him and the chair. With respect to title I, it is entirely possible that the S grin tate of Wisconsin may be able to claim sovereign immunity per Board of Trustees of the University of Alabama v. Garrett. However, the state of Wisconsin is going to have a much harder time claiming sovereign immunity with respect to our Democratic legislator’s title II claim as we are talking about legislative activities. See this blog entry. Also, since federal funds are undoubtedly involved as well, our Democratic legislator probably has a §504 claim as well. In many jurisdictions, receipt of federal funds waves sovereign immunity under §504.

In short, the chair and the entity paying the chair and the Democratic legislator need to get together to engage in the interactive process so that the Democratic legislator can do his job with or without reasonable accommodations. Failure to do that could very well lead to title I, title II, and §504 claims. In addition, such a lawsuit would be horrible publicity. Finally, from the little facts we do know, such a lawsuit would have a high probability of success thereby forcing the state of Wisconsin to pay attorney fees for themselves as well as for the Democratic legislator. Finally, if the Democratic legislator were to be retaliated against for bringing the lawsuit, that would result in additional claims. The retaliation claims would then relate back to both title I and to title II as well as to §504. In that situation, whether damages would be allowed in the ADA claims, would depend upon the particular title of the ADA involved. That is, no damages for retaliation under title I per this blog entry, but damages upon a showing of the deliberate indifference (see this blog entry for discussion of deliberate indifference), for violating title II.

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.

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.

BNSF Railway Company Court’s Reasoning

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

The ADA has a complicated scheme when it comes to medical exams and disability related inquiries, and we discussed that in this blog entry.
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.
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.
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.
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.
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.
Don’t forget about the screen out provisions of the ADA.

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.

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

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.
EEOC regulations make clear that an employer cannot require an employee to undergo medical test that do not serve a legitimate business purpose.
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.
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.
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.
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.
The employer’s belief requires an assessment of the employee and his or her job and cannot be based on general assumptions.
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.

In the Matter of Paul William Township of Lakewood Takeaways

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.
The case cited to in the opinion, Kroll, we discussed here.
In many ways, the decision to require a medical exam of the current employee blends into whether a direct threat exists.
You can never go wrong with individual analysis.
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.
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.

Some thoughts on retaliation and the ADA

January 7, 2013 by William Goren Leave a Comment

42 U.S.C. § 12203(a) prohibits retaliation against an individual opposing any act or practice that violate the ADA or because the individual made a charge, testified, assisted, or participated in any manner an investigation, proceeding or hearing. Over the last few weeks, I have come across a few cases in the retaliation area that deserve mentioning. In the first, the Southern District of Texas found that retaliation can include a subsequent employer retaliating against a prospective employee for actions that occurred in a prior employment. Shepherd v. Goodwill Industries of South Texas, Inc. 827 F. Supp. 2d 569 (S.D. Texas 2011). In this case, the plaintiff had worked for the South Texas lighthouse for the Blind based at the Corpus Christi Naval Air Station. The plaintiff alleged that after a period of harassment and discrimination at the hands of her supervisors she was terminated 23 days after starting. The plaintiff contended that she became so sick and stressed that she passed out and lost consciousness. When she regained consciousness, her supervisor told her to go home. When she walked to her car, she found herself surrounded by military police with their guns drawn. They ordered her to put up her hands saying that her supervisors had reported she made a terrorist threat and then the military police scraped off the plaintiff’s decals from her car. She then filed an EEOC charge against both supervisors (a reading of the opinion, suggests that this claim was ultimately settled). A year later, the plaintiff received an email regarding a position of Junior Editor by her job for defendant Goodwill. That job was also based at the Naval Air Station at Corpus Christi. It turns out that the job was basically the same as what she had done before because her prior job had subsequently been outsourced to Goodwill Industries. Also, it turns out that one of her supervisors was now working for Goodwill Industries. Plaintiff filled out the application, but she did not answer the required question of whether she’d ever been terminated from employment position and when asked about the missing information wrote on her application, “unable to disclose per legal agreement.” She also did not indicate either the date of her prior employment as an editor for the military or her reason for leaving that position.*

*I have been thinking for some time that applying the traditional principles of legal writing whereby you cite any time it is not your idea is not something that comes off the best in a blog. I would love to hear the reader’s views on this to see if my guess is correct. Accordingly, I am going to experiment with just citing at the end of a paragraph, especially when it comes to the recitation of facts, and see how that goes. I do believe that citing is important, but in the context of the blog, classic citing is probably overkill (I have not seen other blogs such as the ones on my blogroll, do it).

For the preceding paragraph the recitation of the facts can be found at Shepherd v. Goodwill Industries of South Texas, Inc. 872 F. Supp. 2d 569, 571-573 (S.D. Texas 2011).

Nevertheless, she was invited to come in and test for the position. However, the testing became a bit of a mess because Goodwill Industries did not have the equipment and software necessary for a blind individual like the plaintiff to effectively take the test. Nevertheless, she used the fallback option of using software built into Microsoft to take the test. That option was nowhere near optimum for her to be able to take the test effectively. The second thing that went wrong was that when the person taking the plaintiff’s employment application mentioned to the manager they had another person interested in the Junior Editor job, that manager contacted the plaintiff’s former supervisor, who now worked as a project manager for Goodwill, and asked her if the plaintiff had previously worked at the Corpus Christi naval base. Her former supervisor said she had worked at the military base and that she had problems with the military police resulting in her base security pass being taken away, her decals being stripped from her vehicle, and the plaintiff being escorted off the base. Based on these comments, the plaintiff was rejected from the job at Goodwill, and the lawsuit followed.

The information for the preceding paragraph may be found at Id. at 572-573.

The court held that a question of fact existed as to whether the plaintiff was qualified to perform the job of Junior Editor for Goodwill in light of the fact that she may not have been reasonably accommodated during the testing process. Id. at 576. With respect to retaliation, the court said her former supervisor’s involvement in the hiring decision was sufficient to raise a fact issue as to motive and causation on the part of Goodwill not hiring her for the job. Id. at 579.

Preventive tips: The first preventive tip is rather obvious I suppose. That is, if a person has to go through testing to apply for a job, make sure that the testing process is set up in such a way so that an individual with a disability is reasonably accommodated. Again, the whole purpose of reasonable accommodations is to get the person with a disability to the same starting line as the person without a disability. Second, whenever a law firm takes on a new client, they have to do a conflict check. The lesson to take from this case is that when a company is looking to hire an employee and something negative comes up with respect to people influencing that process in terms of how that applicant is being perceived or rated, it would behoove the company to make sure that none of the evaluating personnel has a conflict of interest, i.e. a prior existing relationship with that individual. If so, the person with the conflict of interest should be removed from the process.

The second case comes out of the Fifth Circuit. In this case, the plaintiff was an operator for Jacobs Field Services North America, a company performing general construction and construction-related services, industrial maintenance, and plant operations for chemical refining companies throughout the Gulf Coast region. The job of an operator meant working on the high-speed gallon line most often. The job duties involved climbing, balancing, stooping, kneeling, pulling, pushing, lifting, grasping, and using tools. In the year leading up to his termination, the plaintiff experienced numerous health problems including carpal tunnel syndrome, neck pain, back pain and weakness in the legs thereby making it not possible for him to perform his job. After an extended sick leave, the plaintiff tried to return to work with a limited duty release but the superintendent informed the plaintiff that no limited or light duty work was available at that time and that he could not return to work until he obtained a full medical release. The plaintiff after receiving this notification return to the plan and attempted to enter the plant but since his badge had been deactivated he could not enter. Instead, he followed another vehicle into the plant (the plaintiff knew that such a practice was against company policy). A subsequent meeting between the plaintiff and two employees of the defendant led to the plaintiff being terminated for violating this company policy. He filed suit alleging discrimination based on the ADA as well as retaliation.

You’ll find the recitation of the facts in this case, which was not selected for publication in the federal reporter, at Hammond v. Jacobs Field Services 2012 WL 6033078 (5th Cir., December 5, 2012).

The court found that due to the nature of the operator position and the plaintiff’s disabilities, the plaintiff was not qualified for his position because he could not do the essential functions of the job with or without reasonable accommodations and granted summary judgment to the defendant. Id. at *3. However, retaliation matter was a completely different story. First, the plaintiff engaged in protected activity when he requested accommodation for a disability shortly before being terminated. Id. at *5. Second, while it is true that the plaintiff followed a car into the plant, the evidence was such that such a practice was not unusual and the company frequently looked the other way. Id. Accordingly, the court reversed the grant of summary judgment with respect to the ADA retaliation claim and remanded it for further proceedings. Id.

Preventive tips: In this situation, the employer moved a bit too fast. That is, they should’ve let the normal process of what happened with respect to a person who is unable to perform the essential functions of the job with or without reasonable accommodations pursue its course, rather than terminating the individual for violation of a policy that oftentimes did not result in termination. Also, this case means that just because a person may lose a disability discrimination claim on the ground that he is not otherwise qualified, doesn’t mean that such a person will also lose a retaliation claim. In short, an employer should be wary of doing things that may give the plaintiff an avenue to pursue a retaliation claim, and particularly where that plaintiff would not be otherwise qualified.

Our final case comes out in the Middle District of Tennessee, Coffman v. Robert J Young Company, Inc., 871 F. Supp. 2d 703 (M.D. Tenn. 2012).. In this situation, the plaintiff worked as a copy center operator at an engineering firm for 10 years. As part of her job, she provided customer service, made copies, and assisted with the repair of machines, kept machines stocked with toner and paper, made booklets, printed documents and scanned documents. Plaintiff was in an off-duty motorcycle accident, which led to surgery and physical therapy. She also took FMLA leave. While on leave, her position was covered by other employees of the defendant. In July 2009, she informed the defendant that she was only able to use one hand and one arm at that time (she had been giving the defendant regular notes after a medical status and complying with the defendant’s policies are providing medical documentation). The defendant offered her a sedentary job, but the plaintiff declined it because she did not feel physically or mentally capable of performing that job. On October 28 of 2009, the plaintiff provided defendant a note saying that she was going to be able to return to work on November 23 with minimal restrictions of no lifting of more than 10 pounds, limited overhead and limited pushing/pulling. Nevertheless, the human resources director and the General Counsel decided to terminate plaintiff anyway.Prior to that termination, the human resources director and the General Counsel proceeded to the termination: 1) without discussing with the plaintiff her impairment or condition or her intention to return to work on November 23, 2009; 2) without discussing with the plaintiff for conducting an interactive process with the plaintiff to determine whether any of plaintiff’s job functions could be accommodated; 3) by not requesting additional information from the health care provider or by consulting an occupational physician to determine whether plaintiff would be open to perform her job duties; and 4) by not considering the offering of additional leave from October 28, 2009 to November 23, 2009 as a reasonable accommodation. As if that wasn’t bad enough, the termination letter the plaintiff received said, “given that you are unable to perform the task of your job, we have found it necessary to hire someone to fill the vacancy created by your need to take long-term disability and due to your long-term disability we must terminate your employment.” It just gets worse from there for the defendant. In particular, the plaintiff’s job as a copy center operator did not categorize it duties into essential and nonessential functions. In fact, the human resources director was unaware that breaking down job functions into essential and nonessential functions was critical to deciding how to accommodate a person with a disability. Further, the HR director acknowledged that the jobs lifting requirements could have been modified and that allowing the plaintiff to remain employed until November 23, 2009 would not have resulted in an undue hardship.

The recitation of the facts in the preceding paragraph can be found at Id. at 708-709.

In light of all thie above the court found that the letter constituted direct evidence of discrimination, and a reasonable jury could find that the defendant decision to terminate the plaintiff was motivated, at least in part by her disability. Id. at 714-715. The court also found that the termination letter was evidence of retaliation as well and granted the plaintiff’s motion for summary judgment on the retaliation claim. Id. at 718.

Preventive tips: 1) this case in so many ways is a recipe for what not to do. First, prior to termination, there should be an interactive process discussing the employee’s medical condition as well as for figuring out whether the employee can perform the essential functions of the job with or without reasonable accommodations; 2) the employer should request additional medical information and/or consult an occupational physician, therapist or other experts in order to determine whether the employee can perform the essential functions of the position with or without reasonable accommodations; 3) the employer should consider offering the employee additional leave unless they can show that such an offering would be an undue hardship or is a situation where the plaintiff is asking for an indeterminate amount of leave. 4) the ADA is an extraordinarily complex law as well as extremely comprehensive, if people, attorneys or others, are not clear or comfortable with the law, they should not be afraid to get help (in fact, the ethical rules for attorneys generally demand that an attorney get assistance in such situations. Nevertheless, I am consistently surprised at how often mistakes seem to be made as a result of being unfamiliar with the ADA); and 5) a company needs to be sure that employees are continually trained by qualified people on the requirements of the ADA.

impairment

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