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 1
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 others 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 obtaining dismissals based on insufficient pleading regarding what major life activities are substantially limited and how 6 2
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 on 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 3
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 of 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 (10 th 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 4
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 over 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 ” or “ 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 5
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 occur 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 6
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