Monday, May 23, 2011
Although we're winding down on pre-amendment ADA cases, the Seventh Circuit just issued one that may have significant implications for post-amendment cases as well. In Miller v. Ill. Dep't of Trans., the court considered when work can be considered a major life activity, when an employee will be considered to be regarded as disabled, whether a proposed accommodation was reasonable, and whether there was an issue of material fact on the plaintiff's retaliation claim. Most of these issues will continue to be at least as important (and maybe more so) under the amendments, although they might be framed a little differently, so the case is worth analyzing in some depth.
The plaintiff, Darrell Miller, worked for IDOT for five years as a highway maintainer on a bridge crew before he was discharged. Miller had a serious fear of heights, later diagnosed as acrophobia, and he notified his supervisor that he would not be able to work unsecured in extreme positions above certain heights. The supervisor accommodated this limitation, and accommodated the limitations of other members of the crew too. Each member would do work they could and fill in where other members could not. Miller could do about 97% of all of the work the crew did, and there was only one occasion in which he was not able to perform a task. That occasion led to his discharge and this lawsuit.
After a number of years without any problems, Miller's supervisor ordered him to do a task that he would have to stand unsecured on a bridge beam for. Miller tried but had a panic attack and couldn't complete the task. He was taken by ambulance to a hospital. After this incident, Miller was diagnosed with acrophobia, and Miller characterized his limitation as not being able to work above 20 feet in an unsecured, extreme position. IDOT treated him, though, as if he could never work above 20 feet or where he might think he was above 20 feet. Something he had been doing fine (as long as he was secured) for years. A memo to the IDOT personnel department interpreted this already broad limitation even more broadly to include any work in which a person might be able to see that they were significantly higher than a surface below them (able to see through holes in a bridge's road surface, on a steep hill, etc.). The memo suggested that there was no IDOT highway job that Miller could do.
The court of appeals found that Miller had created a material issue of fact on whether IDOT considered him disabled from working. To be disabled from working, a person must be disabled from a broad class of jobs, not just the particular job at issue. The key here was that the "regarded as" standard is subjective, and IDOT essentially admitted that it perceived Miller to be disabled from a broad class of jobs in its memo. Thus, it regarded him as substantially impaired and unable to work generally.
On the accommodations request, the court found that a reasonable jury could either find that the work Miller could not do was not an essential function of his job or that the accommodation to have other members of the bridge crew do it was reasonable since that was how the crew as a whole had been functioning for years.
On the retaliation claim, when Miller had requested an accommodation, a personnel employee told him that the IDOT did not grant requests, and she denied the accommodation. Miller was ordered back to work, though, and when he returned to work, he called the personnel employee who had refused his accommodation request "Arch Enemy Number 1," and while he said he had never hit a woman before, he commented that he "sometimes . . . would like to knock her teeth out." Miller was fired for insubordination. This may sound bad, but Miller produced evidence that his supervisor had threatened coworkers a number of times and even threatened to kill three of them, but was never disciplined. That plus the timing of his discharge--his first day back--was enough to create a genuine issue of material fact on the reason for his termination.
Post amendment implications: Miller likely had to go with the "regarded as" prong for his ADA case because he might not have been considered disabled under the definitions that had been established under the statute. Under the amended version, he likely would be considered disabled from working at a broad class of jobs his training suited him for, or perhaps from maintaining cognitive and appropriate physical functions regardless of height. The expansive definition of a disability and the explicit inclusion of working as a major life activity would likely cover him, making the regarded as claim unnecessary. If Miller was only regarded as disabled, though, he might have a problem under the amendments. The duty to accommodate does not seem to apply to individuals who are only regarded as disabled, and so if Miller was only regarded as disabled under the amendments, he would not be entitled to an accommodation that he be relieved from some of the duties of the bridge crew. Still, the essential functions and reasonable accommodations analysis (if he would be disabled under the amendments) gives some guidance to how those should be analyzed under the amendments, since they did not change.
Hat tip: Mark Weber