1 Purpose of the ADA Amendments Act (ADAAA) Everything starts with - - PDF document

1 EEOC ADA Case Law

Joyce Walker-Jones Senior Attorney Advisor Office of Legal Counsel September 13, 2012

What I’m Going to Discuss . . .

 General observations about recent cases on coverage

 Findings by the courts about whether plaintiffs established that they

were substantially limited in a major life activity

 What the courts are saying about cancer  How courts are applying the “episodic” or “in remission” rule  How courts are analyzing duration  When courts are finding that plaintiffs were “regarded as” having a

disability

2

Discussion (cont.)

 Suits alleging:

 denial of reasonable accommodation  reasonable accommodation and termination  unlawful disability-related inquiries and medical

examinations

NOTE: The cases I will mention during this presentation are in the case summary handout and have been highlighted in that document.

3

2

Purpose of the ADA Amendments Act (ADAAA)

Everything starts with Congress: “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.” 29 C.F.R. §1630.1 (c)(4)

4

Recent Case Law: General Observations

 A number of courts seem to blend pre- and post-ADAAA

statutory and regulatory standards

 Courts have, without comment, cited and applied EEOC

regulations to employment decisions made prior to May 24, 2011, the effective date of the regulations

 Courts generally agree that Congress greatly broadened the

definition of disability

5

General Observations (cont.)

 Some courts have accepted plaintiff’s testimony about

limitations when assessing substantial limitation, while

• thers have required additional evidence

 A number of courts have found insufficient medical evidence

• - even where some medical documentation was part of the

record – especially demonstrating ways in which a major bodily function is substantially limited

 Defense bar has frequently succeeded in its new strategy of

• btaining dismissals based on insufficient pleading regarding

what major life activities are substantially limited and how

6

3

Prong 1: Plaintiff Is or May be Substantially Limited

 Molina v. DSI Renal, Inc., 2012 WL 29348 (W.D. Tex. Jan. 4,

2012)

 Court held that jury could find that plaintiff with back impairments

was substantially limited in various major life activities-- lifting, bending, and the operation of a major bodily function (musculoskeletal) – in light of her intermittent pain and other symptoms

 Court also correctly applied the ADAAA standard for

determining substantial limitation without regard to mitigating measures, citing plaintiff’s deposition testimony that she took Tylenol for pain and that without medication she experienced pain

• n a level of 8 out of 10

7

Prong 1: Plaintiff Is or May be Substantially Limited (cont.)

 Medvic v. Compass Sign Co., 2011 WL 3513499 (E.D. Pa. Aug.

10, 2011)

 Although noting that “a medical diagnosis is not enough,” court

relied on plaintiff’s own testimony that his stuttering substantially limits his ability to communicate, sometimes rendering him totally incapable of communicating at all

 Citing to the ADAAA’s episodic or in remission provision, court

also held that the plaintiff “can still be substantially limited in communicating even if he is able to communicate at times without limitation”

8

Prong 1: Plaintiff Is or May be Substantially Limited (cont.)

 Thomas v. Bala Nursing & Retirement Ctr., 2012 WL 2581057

(E.D. Pa. July 3, 2012)

 Plaintiff alleged that because of her anemia, she is substantially

limited in standing, walking, breathing, and sleeping

 Although court acknowledged that occasional fatigue does not SL

a MLA, it noted that all of the cases defendant cited were decided before the ADAAA and applied a more rigorous standard  Mallard v. MV Transp., 2012 WL 642496 (D. Md. Feb. 27, 2012)

 Plaintiff, who asserted that he had not been able to urinate in 20

years, established that his kidney disease SL his bladder function

9

4

Prong 1: Plaintiff Is or May be Substantially Limited (cont.)

 Dentice v. Farmers Insurance Exchange, 2012 WL 2504046

(E.D. Wis. June 28, 2012)

 Fact that plaintiff’s depression required a nine-month absence

from work as well as continued medical treatment even after he returned and evidence that impairments affected both his personal and work life was sufficient to show that he was substantially limited in thinking, learning, interacting with others, and marital relations  Moloney v. Home Depot, 2012 WL 195767 (May 31, 2012)

 A fact finder could conclude that plaintiff who functions at the level

• f an 8-year old, reads at the level of a 9-year old, and needs his

parents to write checks and pay bills was substantially limited in caring for himself

10

Prong 1: Plaintiff is NOT Substantially Limited

 Allen v. Southcrest Hosp., 2011 WL 6394472 (10th Cir. Dec. 21,

2011)

 Plaintiff alleged that on days that she had migraines, she would

come home from work and “crash and burn” (i.e., take medication and go straight to bed)

 Court found that although plaintiff asserted that she was

substantially limited in caring for herself, she presented no evidence re: what time she went to bed, which specific self-care tasks she was forced to forgo as a result of going to bed early, how long she slept after taking medication, what time she woke up the next day, etc.

11

Other Cases Finding No Disability

 Broderick v. Research Found. of State Univ. of N.Y., 2010 WL

3173832 (E.D.N.Y. Aug. 11, 2010)

 Complainant’s reference to an unspecified injury to her

hip and lower back without explanation of what MLA(s) it substantially limited was insufficient to state a claim under the ADAAA standards

 Lewis v. Florida Default Law Group, 2011 WL 4527456 (M.D.

• Fla. Sept. 16, 2011)

 The flu – whether H1N1 or seasonal – is not a disability

12

5

More Cases Finding No Disability (cont.)

 Culotta v. Sodexo, 2012 WL 1069179 (E.D. La. March 29, 2012)

 Plaintiff failed to present sufficient detail about her fear of traveling

• ver water constitutes a mental impairment that substantially limits

her in the MLA of working  Brtlalik v. South Huntington, 2012 WL 748748 (E.D. N.Y. March

8, 2012

 Characterizing a routine, diagnostic, out-patient procedure

(such as a colonoscopy/polypectomy), or any related minor discomfort, as a disability within the meaning of the ADA is “simply absurd”

13

Impairments That Are “Episodic”

• r “In Remission”

 Will be disabilities if they substantially limit a major life

activity when active

 Episodic: impairments that may not affect a person 24/7 but

which periodically flare up: epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, schizophrenia

 Cancer is an example of impairment that may be in remission

14

What Are Courts Saying About Cancer?

 Unganst v. Dual Temp Co., 2012 WL 931130 (E.D. Pa. March

19, 2012)

 Congress “clearly intended” to protect cancer patients from

disability discrimination

 Although plaintiff’s non-Hodgkin’s lymphoma was in remission

when he was terminated, it would substantially limit a major life activity when active

15

6

Cancer (cont.)

 Katz v. Adecco, 2012 WL 78156 (S.D.N.Y. Jan. 10, 2012)

 Major life activities include major bodily functions such as normal

cell growth

 EEOC regulations state that cancer should “easily” be found to

be substantially limiting  Brandon v. O’Mara, 2011 WL 4478492 (S.D.N.Y. Sept. 28,

2011)

 Court held that plaintiff’s complaint making references that she

would “experience fatigue” and was “not to engage in lifting objects” contained insufficient detail explaining how she was substantially limited

16

What About Other Impairments That May be “Episodic” or “In Remission?”

 Pearce –Mato v. Shinseki, 2012 WL 2116533 (W.D. Pa. June

11, 2012)

 Plaintiff had vocal cord edema that, when active, made it difficult

and painful to speak and intermittently required the use of an electro larynx device to vocalize sounds

 Court held that the “fact that the periods during which an episodic

impairment is active and substantially limits a MLA may be brief or

• ccur infrequently is no longer relevant to determining whether

the impairment substantially limits a major life activity”

17

Application of “Episodic” or “In Remission” Rule (cont.)

 Carbaugh v. Unisoft, 2011 WL 5553724 (S.D. Tex. Nov. 15,

2011)

 Plaintiff asserted that his multiple sclerosis (MS) symptoms could

“flare up at any time and go away for a period of time” and that during a flare-up, he required intravenous steroid treatments that could cause a spike in energy followed by severe fatigue

 Court relied exclusively on plaintiff’s description of his symptoms to

find that plaintiff’s remitting MS is a substantially limiting impairment when active

18

7

Application of “Episodic” or “In Remission” Rule (cont.)

 Kinney v. Century Servs. Corp., 2011 WL 3476569 (S.D. Ind.

• Aug. 9, 2011)

 Court noted that prior to passage of ADAAA, the Seventh Circuit

frequently found “isolated bouts” of depression to be temporary impairments and not disabilities as defined by ADA

 Here, court held that plaintiff’s debilitating symptoms when her

depression is active raises genuine issue of fact as to whether she has a disability

19

Interesting Cases on Duration

 Cohen v. CHLN, 2011 WL 2713737 (E.D. Pa. July 13, 2011)

 ADAAA mandates no strict durational requirements for

plaintiffs alleging prong 1 (“actual”) disabilities

 Plaintiff’s back and leg issues began four months before his

termination and were not resolved by the injections recommended by his doctor

 Such a “severe, ongoing impairment stands in distinct contrast to

those cited by the EEOC as merely minor and temporary, such as the common cold or flu.”

20

Duration (cont.)

 Lewis v. Florida Default, 2011 WL 4527456 (M.D. Fla. Sept. 16,

2011)

 Although the ADAAA made clear that an impairment lasting or

expecting to last fewer than six months can be substantially limiting, plaintiff’s flu symptoms were of “short duration” and not “sufficiently severe” to substantially limit any major life activity  Feldman v. Law Enforcement, 779 F. Supp. 472 (E.D. N.C.

2011)

 Effects of mini-stroke that lasted two weeks = SL impairment

21

8

Duration (cont.)

 Brandon v. O’Mara, 2011 WL 4478492 (S.D.N.Y Sept. 28, 2011)

 Court rejected employer’s argument that plaintiff had to allege that

her fatigue from cancer was “not temporary” in order to establish a substantially limiting impairment

 Court held that “statutory text makes clear” that the six-month

“transitory” part of the “transitory and minor” exception applies only to the “regarded as” prong of the definition of disability

22

Prong 3: “Regarded as”

 Terms “substantially limit” and “major life activity” are not

• relevant. Regarded as coverage no longer requires a showing

that an employer believed the impairment substantially limited a major life activity

 Only two elements:

 Employer took employment action  Because of an individual’s actual or perceived

impairment that was not both transitory (lasting or expected to last six months or less) and minor

23

Plaintiff “Regarded as” Substantially Limited

 Davis v. Vermont Dept. of Corr., 2012 WL 1269123 (D. Vt. April

16, 2012)

 Plaintiff alleged that he was harassed because of his hernia

condition

 Court held that given the duration of the alleged harassment, it

appeared that plaintiff’s perceived impairment lasted longer than six months  Fleck v. Wilmac Corp., 2011 WL 1899198 (E.D. Pa. May 19,

2011).

 Fact that plaintiff wore a plainly visible “cam boot” because of her

ankle injury and notified employer she needed additional surgery was sufficient to raise inference that she was “regarded as” disabled

24

9

Plaintiff Was Not “Regarded as”

 White v. Interstate Distributor Co., 2011 WL 3677976 (6th Cir.

• Aug. 23, 2011)

 Court applied the “transitory and minor” exception to preclude

coverage, reasoning that plaintiff’s lifting and other restrictions following motorcycle accident were expected to last only a month or two  Selkow v. 7-Eleven, 2012 WL 2054872 (M.D. Fla. June 7, 2012)

 Court ruled that plaintiff’s weakened back that started in her fifth

month of pregnancy was “transitory” because it “could not possibly last another six months from the time impairment began but did not address whether condition also was minor

25

Plaintiff Was Not “Regarded as” (cont.)

 Sibilla v. Follett Corp., 2012 WL (E.D.N.Y. March 30, 2012)

 Fact that employer may have regarded plaintiffs who weighed

400 pounds and 271 pounds as obese or overweight “does not necessarily mean” that employer regards them as “suffering a physical impairment”  Harris v. Reston Hosp. Ctr., 2012 WL 1080990 (E.D. Va. March

26, 2012)

 Supervisor’s statement to plaintiff “you’re drunk” and

knowledge that she previously had gone to a rehabilitation facility to be treated for depression and a suicide attempt were insufficient to show management perceived plaintiff as having an impairment

26

Notice of Request for Reasonable Accommodation

 Howard v. Steris Corp., 2012 WL 3561965 (M.D. Ala. Aug. 17,

2012)

 Plaintiff alleged that supervisors had “constructive notice” of his

narcolepsy because he frequently fell asleep at work and “accommodated” him by allowing his co-workers to wake him up by spraying him water, scaring him, or kicking his chair

 Court found that 11th Circuit cases made clear that an employee

has to tell his supervisor about his specific disability before the ADA triggers an obligation to accommodate him or refrain from firing him because of his disability

27

10

Notice (cont.)

 EEOC v. C.R. England, 644 F.3d 1028 (10th Cir. 2011)

 Truck driver with HIV, who asked for “home time” because he

needed time with his family and later said that he was going to “see his doctor” did not put employer on notice that he was making a request for a reasonable accommodation because of his HIV

28

“Reasonableness” of Request

 Miller v. Illinois Dept. of Transp., 643 F.3d 190 (7th Cir. 2011)

 Plaintiff who had a fear of heights requested to have other team

members perform tasks that required working above 25 feet in exposed or extreme position

 ADA does not give employers “unfettered discretion” to

determine what is “reasonable” but, rather, requires employers to rethink their preferred practices or established methods of

• peration

 Evidence showed that for several years team members routinely

swapped jobs responsibilities based on individual abilities, preferences, and limitations

29

“Reasonableness” (cont.)

 Solomon v. Vilsack, 2012 WL 629399 (D.D.C. Feb. 23, 2012)

 Plaintiff was a budget analyst who missed a lot of work because of

depression

 Court held that although the ADA defines reasonable

accommodation to include modified work schedules, an employer is not required to accept an open-ended “work when able” schedule for a time-sensitive job or allow employee to leave work whenever she was unable to work the entire day or come in late if she wasn’t able to arrive in time

 Court also held that if the above was unreasonable, then

teleworking whenever one likes is even more unreasonable

30

11

Interactive Process

 Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190 (1st Cir.

2011)

 First Circuit disagreed with the district court’s finding that employer

met its obligation by providing a reasonable accommodation to plaintiff with chronic fatigue syndrome 17 months after she first requested it

 Evidence suggested that employer did engage in interactive

process, did not follow its normal reasonable accommodation procedures, and that accommodation provided was not plaintiff sought and did not effectively meet her medical needs

31

Reasonable Accommodation and Termination

 Carter v. Pathfinder Energy Serv., 662 F.3d 1134 (10th Cir.

2011)

 Court found genuine issues of material fact as to whether plaintiff

with diabetes who had worked part-time successfully for two months was fired because employer no longer wanted to provide the accommodation

 Company conceded that allowing plaintiff to work only one shift per

month so that he had time to rest and recover between assignments was reasonable

 Court noted evidence that supervisor misrepresented the extent of

the accommodation being provided and stated that other employees would quit because plaintiff was not working same number of assignments

32

Workplace Free of Chemical Irritants/Telework

 Core v. Champaign Cty Bd., 2012 WL 3073418 (S.D. Ohio July

30, 2012)

 Plaintiff who has asthma and severe sensitivity to certain

perfumes requested that employer ask co-workers to refrain from wearing perfume at work and employer refused to act

 After seeking emergency treatment, plaintiff went on leave as a

result of her exposure and asked to work from home

 Court held that defendant’s assertion that working from home is an

“unreasonable accommodation as a matter of law” is not necessarily supported by Sixth Circuit precedent

33

12

Medical Exams and Inquiries

 Kroll v. White Lake Ambulance, 2012 WL 3590284 (6th Cir. Aug.

22, 2012)

 After becoming romantically involved with one co-worker and

having a dispute with another, employer required EMT to receive “psychological counseling”

 Citing to EEOC seven-factor test for determining whether a test or

procedure is a medical examination, court vacated district court’s holding that “counseling alone does not constitute a medical examination under the ADA”

34

For More Information

 For links to the ADAAA, the final regulations, and

Question & Answer documents on disability issues, please see EEOC’s website www.eeoc.gov

 Or, contact:

Joyce Walker-Jones Senior Attorney Advisor Joyce.Walker-Jones@eeoc.gov (202) 663-7031

35