Adjunct Law Prof Blog

Does The ADA Require Accommodation By Use Of Segways??

This is the question posted by Law Office Space. Reportedly, a plaintiff is suing Disneyland. Plaintiff does not appear to be an employee, but a patron. I cannot imagine that the normal accommodation standards would not apply and I do not see how a Segway can be treated differently from an electronic wheelchair. 

We will have to wait and see how the court rules. But, something tells me that this case is going to be settled.

Mitchell H. Rubinstein 

Morbidly obese employee was not disabled under the ADA, employer did not fail to accommodate

Michaels v Continental Reality Corp, ___F.Supp. 2d___(D.Md. September 26, 2011), is an interesting case. The court held that a morbidly obese computer network administrator failed to sufficiently allege that his employer terminated him because he was disabled within the meaning of the ADA.The court first reasoned that the administrator was not disabled under the ADA. Although he was obese, the court found no evidence that his condition substantially limited him in a major life activity. Moreover, the court noted, even if the administrator was disabled under the ADA, he had not shown that the employer failed to accommodate him. The record was devoid of any allegation that the employer even knew that the administrator allegedly suffered from an ADA-qualifying disability or that he was requesting an accommodation.

Mitchell H. Rubinstein

Failure to respond to admission requests is fatal to disability claims

Quasius v Schwan Food Co, ____F.3d____(8th Cir. March 5, 2010), is an interesting case. An employee's failure to respond to discovery requests from his employer resulted in the dismissal of his ADA and Minnesota law disability bias and reprisal claims. The employer served the employee several discovery requests, including 12 requests for admission pursuant to Fed R Civ P 36. The requests bore directly on the ultimate issue of the employer's liability, asking the employee if he had knowledge of any specific incidents in which he was discriminated against or retaliated against because of his claimed disability by any of the company's other employees. Shortly after serving the requests, his employer filed a motion to dismiss, or alternatively, for summary judgment, leaving the employee 30 days to respond to the requests for admission via a written answer or objection, which he failed to do. The trial court granted summary judgment to the employer, deeming the matters admitted after the employee failed to timely respond to the admission requests or to withdraw or amend the admissions. The Eighth Circuit affirmed, noting the employee made no filing with the district court that might be construed as a motion to withdraw or amend those "admitted" or "conclusively established" admissions, even after the trial court specifically directed him to file a motion and granted additional time for that purpose. "Without some filing by the [employee] aimed at withdrawing his admissions, it was not an abuse of discretion for the district court to consider the admissions in resolving the motion for summary judgment," wrote the circuit court.

Mitchell H. Rubinstein

ADA Does Not Protect Misconduct

Budde v Kane County Forest Preserve, ___F.3d___(7th Cir. March 4, 2010), is an interesting case. A police chief failed to comply with workplace rules when he chose to drive while intoxicated and caused a crash that sent two people to the hospital, and thus, was not a qualified individual with a disability under the ADA. Following the collision, he was placed on administrative leave and subsequently discharged. He claimed that the district violated the ADA by firing him due to his disability: alcoholism. Because of the accident, which constituted a violation of the district's standard operating procedure, and the resulting suspension of his driver's license, he was no longer qualified to perform his job as police chief. "Violation of a workplace rule, even if it is caused by a disability, is no defense to discipline up to and including termination," the circuit court explained. Moreover, due to his suspended driver's license, he could not legally operate a motor vehicle, which was an essential function of his police chief position. Thus, he was fired as a consequence of his misconduct, not discrimination

Mitchell H. Rubinstein

ADA Amendments Act is not retroactive

The D.C. Circuit recently held that Congress clearly indicated that the ADA Amendments Act of 2008 (ADAAA), enacted to “reinstate a broad scope of protection under the ADA,” does not apply retroactively.Instead, the pre-Amendments ADA to the disability discrimination claims of an employee with chronic degenerative disc disease were applied and ultimately dismissed because plaintiff produced insufficient evidence that he was substantially limited in any major life activities. The employee was discharged in 2004, but the ADAAA took effect while his appeal was pending. However, the ADAAA, which was signed into law in September 2008, only applies to claims arising on or before the effective date of January 1, 2009, confirmed the appeals court. “By delaying the effective date of the ADAA[A], the Congress clearly indicated the statute would apply only from January 1, 2009 forward.”  “If the Congress intended merely to ‘clarify’ the ADA, then its decision to delay the effective date would make no sense.” The Supreme Court touched on the same issue in its October 2008 Term when it held in AT&T v Hulteen that the Pregnancy Discrimination Act (PDA) did not apply retroactively, noting the PDA’s effective date was also delayed and concluding that Congress had used the “language of prospective intent” when enacting the PDA. The appeals court held the ADAAA’s delayed effective date similarly indicated that the statute applies only prospectively. In so holding, the DC Circuit joins the Fifth, Sixth and Seventh Circuits, and numerous district courts, which have also found that the ADAAA does not apply retroactively (Lytes v DC Water & Sewer Auth, July 21, 2009).

Mitchell H. Rubinstein

7thCir: Informal complaint is protected activity under ADA

An informal complaint may constitute protected activity for purposes of retaliation claims under the ADA, the Seventh Circuit held, reversing summary judgment to a municipal employer on an employee’s claim that she was fired in retaliation for her complaint of discrimination. The employee, who wears hearing aids in both ears, was discharged within days of an encounter with her supervisor in which she complained of mistreatment. The supervisor, frustrated by perceived inconsistencies in the plaintiff’s hearing abilities, snapped, “How can you work if you cannot hear?” The plaintiff replied, “Aren’t you being discriminatory?” The district court concluded this was not statutorily protected activity and that the plaintiff was discharged for poor performance, not in response to the incident. The appeals court reversed, finding the employee’s response to her supervisor was protected and that a fact question remained as to whether the encounter was the reason for her termination. “[The plaintiff’s] failing as an employee may have prompted the discharge, but so may have [the employer’s] intolerance of her complaint about discrimination,” it reasoned, noting the plaintiff was recommended for discharge the very day after she complained about the supervisor’s hostility to the hearing impairment (Casna v City of Loves Park, July 24, 2009).

This is an important decision to be aware of.

Mitchell H. Rubinstein

5th Holds ADA claim stated for employee with chronic fatigue syndrome

EEOC v Chevron Phillips Chemical Co, ___F.3d___ (5th Cir. June 5, 2009), is an interesting case. The court held that a magistrate judge erroneously found that an employee with chronic fatigue syndrome (CFS) was not disabled under the ADA because her condition was “intermittent” and her impairments were “short-lived, non-permanent, and non-severe.” Interestingly, this ADA suit was brought by the EEOC on the employee’s behalf.
The 5th held that the lower court misapplied the legal standards for determining the duration, permanency, and severity of a chronic condition under the ADA. The relevant time period for assessing whether an employee is disabled is at the time of the adverse employment action, and the evidence suggests the employee’s CFS symptoms were severe enough to constitute a disability under the ADA at the time she was allegedly discharged for having a disability and for requesting an accommodation. The 5th found a jury could reasonably find the employee was substantially limited in the (undisputedly) major life activities of caring for oneself, sleeping, and thinking. The EEOC also raised genuine issues of material fact as to whether the employer failed to accommodate the employee and unlawfully discharged her. The employer claimed the employee was fired for misrepresenting her medical history on a job application by falsely answering a question about whether she experienced excessive fatigue associated with work or exercise. However, the appeals court concluded a jury could reasonably find that the employee truthfully answered “no” to this question, where her CFS-induced fatigue did not arise from work or exercise, and that the employer had “first formed an intention to discharge” the employee because of her disability and “only afterwards developed the purely pretextual reason” to do so.

Mitchell H. Rubinstein

An accommodation that inherently breaches existing employee agreements is not a reasonable accommodation; Nor is an indefinite LOA

I bring Fiumara v. Presidents and Fellows of Harvard College, ___F.3d___(1st Cir. May 1, 2009), for two primary reasons. It discusses a point that sometimes comes up in disability discrimination cases. Is an accommodation reasonable if it would violate some other employee agreements, such as a collective bargaining agreement. The answer is a clear no. The court also explains that there is no duty to grant an indefinite LOA. As the court states:

 An accommodation that inherently breaches existing employee agreements is not a reasonable accommodation. See Laurin v. Providence Hosp., 150 F.3d 52, 56-61 (1st Cir. 1998). Similarly, indefinite leave is not a reasonable accommodation under the ADA. See Watkins v. J & S Oil, 164 F.3d 55, 61-62 (1st Cir. 1998). Harvard was neither required to give Fiumara a position as a bus driver, nor to grant Fiumara indefinite leave.

Mitchell H. Rubinstein

ADA Document Portal

The National Network of ADA Centers maintains a ADA Document Portal which researchers and litigators may find of interest. The categories of information which can be researched are as follows:

General
The ADA Law
Overview
Frequently Asked Questions

Employment
Technical Assistance Manual
Employee Rights (EEOC site)
Employer Responsibilities (EEOC site)

State & Local Gov
Technical Assistance Manual
ADA Guide for Small Towns (USDOJ site)

Private Business
Technical Assistance Manual
ADA Guide for Small Business(USDOJ site)

Facility Access
ADAAG
Checklist for Existing Facilities (USDOJ PDF, requires Acrobat Reader) HTML version

Recreation Access

Transportation
Technical Assistance Manual
Guaranteeing Access to Transportation (Fed Highway Admin site)

Communications
Frequently Asked Questions (FCC site)
Auxiliary Aids

Interpretation Letters

Mitchell H. Rubinstein

7th Holds Driving Is Not A Majority Activity Under ADA

Winsley v. Cook County, No. 08-2339 (7th Cir. Apr. 22, 2009) is an interesting decision. The court affirmed the dismissal of Black female nurse’s race and disability + retaliation claims, noting that driving is not an ADA major life activity. As the court explained:

The ADA defines a disability as “a physical or mental
impairment that substantially limits one or more major
life activities.” 42 U.S.C. § 12102(2). The only potential
impairment supported by the evidence is Ms. Winsley’s
claim that she had difficulty driving. Although this court
has reserved judgment on whether driving is a major
life activity, Sinkler v. Midwest Property Mgmt. Ltd. P’ship,
209 F.3d 678, 685 (7th Cir. 2000), three other circuits have
held that it is not. See Kellogg v. Energy Safety Servs. Inc., 544
F.3d 1121, 1126 (10th Cir. 2008); Chenoweth v. Hillsborough
County, 250 F.3d 1328, 1329-30 (11th Cir. 2001); Colwell v.
Suffolk County Police Dep’t., 158 F.3d 635, 643 (2d Cir. 1998).
Today we agree with our sister circuits and hold that
driving is not, in itself, a major life activity. The version of
the ADA applicable to Ms. Winsley’s action, see note 1,
supra, does not define the term “major life activity,” but an
EEOC regulation states that “Major Life Activities means
functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 29 C.F.R. § 1630.2(I).2 Although
this list does not purport to be exclusive, the items on
the list have several things in common with each other
that driving does not share with them. Most importantly,
the listed activities are so important to everyday life
that almost anyone would consider himself limited in a
material way if he could not perform them. This is not
the case with driving. In fact, many Americans choose
not to drive and do not consider the quality of their lives
to have been diminished by their choice.

The Supremes recently denied cert. in the Kellogg case cited above.

Mitchell H. Rubinstein

 

 

Cancer patient with unknown return date not otherwise qualified under ADA

Peyton v Fred's Stores of Arkansas, Inc, ___F.3d___(8th Cir. April 15, 2009), demonstrates how difficult it is to establish a ADA claim. A store manager who was diagnosed with ovarian cancer and who was uncertain as to her possible return was not qualified to perform essential job functions under the ADA.
Two days after beginning work, the plaintiff was diagnosed with ovarian cancer, for which she had surgery six days later. Her area manager inquired as to possible accommodations and she informed him that she "did not know how long she would be out." The employer then terminated the plaintiff, who filed suit under the ADA, claiming the employer failed to make a reasonable accommodation to an otherwise qualified individual. The district court granted summary judgment to the employer, finding the employee was not "otherwise qualified." The Eighth Circuit affirmed, reasoning: "it is axiomatic that a person who cannot perform any of the functions of a job… cannot… be considered 'otherwise qualified'."

Mitchell H. Rubinstein

Interesting Article On 2008 ADA Amendments

ADA Amendments More In Line With New York State and City Law is an interesting April 20, 2009 article from the New York Law Journal (registration required). The article, provides in part:

Under the ADA, an employee is protected if the individual (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment, and is otherwise qualified to perform the essential functions of their job with or without a reasonable accommodation.

The ADAAA attempts to expand these parameters to the extent they were previously restricted by judicial rulings such as those in Sutton and Toyota. The amendments include relaxation of what, according to those cases, it means for when an impairment "substantially limits" a "major life activity," a new, expansive clarification of the definition of major life activity, rejection of most of the judicially imposed impacts of mitigation of the impairment, and a broadening of what the courts understood to be the standard for "regarded as."

According to the amendments, the drafters of the ADA never intended the act to be interpreted as narrowly as the Supreme Court did. The ADAAA claims to be a reaffirmation of the protections Congress initially intended to provide to individuals with disabilities.

Mitchell H. Rubinstein

 

Do Employer's Need A Blogging Policy??

I usually do not post law firm newsletter or client information reports because most of the time I find them to simply be a form of advertising. However, I found one such report by Littler Mendelson to be particularly worth a read-though I still consider it a type of lawyer advertising.

Philip L. Gordon and Christopher E. Cobey  in a story entitled   DOOCES WILD: How Employers Can Survive the New Technological Poker Game of Employee Blogging recommends that employers adopt employee blogging policies (you know who drafts such policies and that is where the advertising comes in).

The authors point out that a number of employees have been "dooced" (fired because of the harmful content and public availability of their blog) and employers and employees can benefit by clear employer policies. What should these policies provide? The authors state:

All blogging policies should specify the types of conduct, especially that peculiar to the public nature of blogging, which could result in discipline. Categories of conduct normally addressed in blogging policies include the following:

• Disclaimer of Corporate Responsibility: Bloggers should be instructed to state that the opinions expressed in the blog about work-related matters are their own and have not been reviewed or approved by the employer. In the same vein, bloggers should also be instructed to state that they assume full responsibility and liability for any work-related content contained in the blog. These statements are particularly important when the employer otherwise encourages blogging by its employees.
• Confidential Company Information: Bloggers are required to comply with the company's policies protecting its trade secrets and other confidential information and with provisions protecting trade secrets contained in any employment agreement.
• Securities Regulations: Bloggers should not disclose "insider information" and may be required by the employer not to address any company-related activity during certain black out periods required by securities laws and regulations.
• Company Logo/Trademark: The policy should explain when, if at all, the employee-blogger may reproduce the company's identifying marks within the blog.
• Copyrighted Material: The policy should explain the potential civil and criminal penalties of posting in the blog copyrighted material without authorization.
• Be Respectful: The blog should not become a vehicle for personal attacks on the company, its products, its executives, supervisors, coworkers, competitors, or competitors' products.

To avoid having the blogging policy become encyclopedic while ensuring its completeness, the policy should cross-reference related policies, such as the company's policies on the proper use of electronic resources, prohibiting discrimination and harassment, and addressing confidential and insider information.

This article is not dated, but I first saw it on Find Law on July 15, 2008. I am not sure that I would go so far as recommend that employers "must have" blogging policies, but I suppose it could not hurt to have one. Query whether such policies are a mandatory subject of collective bargaining for unionized employees and query whether such policies would cut down employer exposure in wrongful discharge type suits. Some law review commentary may well be worth exploring these issues.

Mitchell H. Rubinstein

National Law Journal Article On ADA Restoration Act

Congress Aims to Expand the ADA is an important July 21, 2008 National Law Journal article. It previews the ADA Restoration Act which is likely to be enacted into law in the Fall. The article describes the changes to current law, and they are significant changes, as follows:

To achieve that shift in focus, the bill explicitly states that the definition of disability "shall be construed broadly. . . "

Under the current law, disability is defined as a physical or mental impairment that substantially limits one or more of the major life activities of the individual; a record of such an impairment; or being regarded as having such an impairment.

The bill would change the definition by adding that "substantially limits" means "materially restricts" a major life activity. It also makes clear that being limited in one major life activity is enough, and an episodic impairment or one in remission is still a disability if it would substantially limit a major life activity when active.

Reversing Sutton, the bill says that the effects of mitigating measures -- and it lists them -- cannot be considered in determining whether an impairment substantially limits a major life activity. Eyeglasses and contact lenses are excluded.

"People who by virtue of medications have controlled their conditions so their impairment is not substantially limiting have failed under existing law," said Epstein's Morris. "Those cases would go forward."

The bill also has a nonexclusive list of major life activities, including a separate provision listing bodily functions. That language is encouraging, particularly for cancer victims, noted Blanck, adding, "To say a woman with breast cancer is not covered by the law is sad."

Courts have struggled with disabilities that affect bodily functions more than life activities, said Mathis. "A lot of people with cancer have not been covered. This is really an effort to make clear body functions can be a type of life activity."

Mitchell H. Rubinstein