Disability Discrimination Law Is a Mess in More Than Ohio

Jon Hyman, at Ohio Employer's Law Blog who does a great job of keeping up with developments in the Buckeye state and beyond, has an interesting post about the differences of the definition of disability under the ADA and the Ohio state version. Because of that difference, it's hard not to agree with his conclusion, Disability discrimination law in Ohio is a mess.

While true, it raises the bigger problem with disability discrimination laws at all levels. Unlike race, age, gender, color and national origin which are immutable and known characteristics, whether one is disabled or not, is a legal determination.

Employers must make that determination, and make it correctly at the outset, when faced with dealing with an employee. The fact that it is not always clear cut needs no more evidence than all the cases that have been decided by different courts, often where an appellate court has reversed a district judge. If after full development and briefing, it remains a hard decision for judges, where's the fairness of requiring that employers get it right, or be in violation of the law?

Of course the default position is to treat every possible disability as a disability. While that is a potential solution, is it really effective? And even if it is, is the net gain to society worth the costs that go with it? 

The real problem is that in an effort to ensure that people with non-obvious disabilities are protected, as well as those with a condition which no one would dispute is a disability, we have created this rather odd situation, where we toss out a complex legal definition, subject to many variables and interpretations, and require that employers who have hundreds of personnel decisions a week, get it right or else.

It is ironic that we have a much clearer means of identifying who is entitled to utilize parking spaces reserved for the disabled, you either have a government or company issued permit or you don't, than we do making the potentially costly deteremination of whether an individual is disabled under the ADA or one of the state versions.

We are not going to change (the Fox rule of employment law -- Congress does not roll back rights it has given employees) -- but it would be nice if everyone at least realized this unique aspect of this area of law. Particularly as they see how much in the way of judicial and employer resources it is going to consume over the next decade and the ones that follow.

ADA Cases Are No Longer Unwelcome in Plaintiff Counsel's Offices

Lynne Seabrook was working as an assistant registrar for Upper Iowa University focusing on its Malaysia campus when she was terminated in February 2009. She felt that the termination was because she had been diagnosed with depression, post-traumatic stress disorder and anxiety.

Based on several conversations I have had in the last few months with attorneys who regularly represent employees, the most significant aspect of that scenario was that she was not terminated two months earlier. If she had been terminated in December, 2008, before the broad amendments to the Americans with Disabilites Act became effective, she might never have been the happy beneficiary of this headline from last week's WCF Courier,  Former UIU employee awarded $1.1M by civil jury.

Many of those attorneys I have talked with said while they formerly turned away ADA cases because they were such summary judgment targets, they were now giving them a much closer look.

Headlines and jury awards like this, will do nothing to discourage that view.

Cautionary Comments as the ADA Nears Adulthood

Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success. 

So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy 15th13th Birthday to the ADA).

Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.

Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.

To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences. 

The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.

Think about the law works.

The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability).  To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.

But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.

In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately

With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.

But are they disabled? As defined under the ADA, not nearly as easy.

And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.

And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.

There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles --  that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.

I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.

Medical Marijuana: Accomodation Required? Which Way Do You Think Oregon Went?

Probably depends on how liberal you view Oregon. Since I have spent little time there (which will hopefully be somewhat ameliorated by a vacation week there in a couple of months) my guess is based more on perception than actual knowledge. If pushed, I would have guessed for a pro-employee outcome.

But I would have been wrong. In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries (Oregon 4/14/10), the Oregon Supreme Court dealt with it succinctly:

The Oregon Medical Marijuana Act authorizes persons holding a registry identification card to use marijuana for medical purposes. ORS 475.306(1). It also exempts those persons from state criminal liability for manufacturing, delivering, and possessing marijuana, provided that certain conditions are met. ORS 475.309(1). The Federal Controlled Substances Act, 21 USC § 801 et seq., prohibits the manufacture, distribution, dispensation, and possession of marijuana even when state law authorizes its use to treat medical conditions. Gonzales v. Raich, 545 US 1, 29, 125 S Ct 2195, 162 L Ed 2d 1 (2005); see United States v. Oakland Cannabis Buyers' Cooperative, 532 US 483, 486, 121 S Ct 1711, 149 L Ed 2d 722 (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana).

The question that this case poses is how those state and federal laws intersect in the context of an employment discrimination claim; specifically, employer argues that, because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee's use of marijuana to treat a disabling medical condition. ...We also hold that, under Oregon's employment discrimination laws, employer was not required to accommodate employee's use of medical marijuana. (emphasis added)(all interior cites removed)

It will be a long time before that question ever arises in Texas, but I have been surprised how many times it has come up for the employers that our firm represent in those states where some form of medical marijuana use is legal.

Given that legalization is on the ballot in California in November, see a summary of the proposal and get the actual text here,  this could become an even bigger issue.

Hat tip to the locals who called this to my attention, the folks at Stoel, Rives who not only posted about the result, Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana, but filed an amicus brief on behalf of the Pacific Legal Foundation and the National Federation of Independent Business, and to  Ross Runkel, Professor of Law Emeritus at Willamette University College of Law (Salem, Oregon).

Well I Would Hope So

This is the description of the 4th Circuit's decision lifted entirely from today's Daily Labor Report ($):

A medical intern who misdiagnosed patients, prescribed wrong medications, and identified a living patient as deceased could not show he was a qualified individual with a disability under the ADA.

Shin v. University of Maryland Medical System (4th Cir.)(3/11/10) [pdf].

Employees in Limbo Land - EEOC Challenges the Solution

One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees. My term for them: "lost in limbo land."

In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.

But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .

The key paragraph from the Complaint:

Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)and (b)(5)(A).

Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:

This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.

With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."

Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.

Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.

Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.

5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case

In a lengthy opinion, the 5th Circuit today reversed summary judgment for the employer where the district court found plaintiff's chronic fatigue syndrome was not a disability under the ADA. EEOC v. Chevron (5th Cir. 6/5/09) [pdf].

The Court also reversed the alternative holding that plaintiff's completion of the medical questionnaire without mentioning her previous diagnosis of CFS 15 years earlier justified her termination.

Although this was not based on the new amendments to the ADA, my guess is that it is a harbinger of things to come -- fewer summary judgments in ADA cases.

Compromise on Capitol Hill -- Coming Soon

When you see these names listed together, what do you think?


American Association of People with Disabilities
American Diabetes Association
Bazelon Center for Mental Health Law
Epilepsy Foundation
HR Policy Association
International Franchise Association
Leadership Conference on Civil Rights
National Association of Manufacturers
National Disability Rights Network
National Council on Independent Living
National Restaurant Association
Society for Human Resource Management
U.S Chamber of Commerce


When attached to a letter to Congressional leaders it means that a compromise on the ADA Restoration Bill is getting much closer.


Thanks to Shopfloor, the blog for the National Association of Manufacturers for the link to the letter and their update on this compromise.


Depending on what happens in the national elections, this could be the harbinger of things to come.

Hurting by Helping? The Law of Unintended Consequences

If the Democratic party gains control of the federal government -- the White House, the House and a veto proof Senate (60 votes), many in the employment and labor law community anticipate a bevy of new laws. For a preview as reported by the good professors at the Workplace Prof Blog, check out House Discusses ADA Restoration Act and the Civil Rights Act of 2008.

Clearly the intent of the authors of those and similar bills is to help either employees in general or at least certain groups of employees. But good intentions don't always mean good results. That's the point of the article in the Freakonomics column in last week's NYT, Red-Cockaded Woodpecker - Endangered Species.

The employment law example was the Americans with Disabilities Act:

The economists Daron Acemoglu and Joshua Angrist once asked a similar question: How did the A.D.A. affect employment among the disabled?

Acemoglu and Angrist found that when the A.D.A. was enacted in 1992, it led to a sharp drop in the employment of disabled workers.

Clearly not what was intended. The reason -- "employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place. " For more you can check out their paper, Consequences of Employment Protection? the case of the Americans with Disabilities Act.

Obviously, you can argue that such actions were also illegal, but it doesn't change the impact.

Rarely are things as simple as they seem.

A hat tip to Will Schendel at the Alaska Employment Law Blog.

Update (12.27.08): For a new article suggesting that the above problem may be a result of the statistics themselves see, The Employment Rate of People With Disabilities at BeSpacific.

ADA Standard in 5th Cir is "Motivating" Not "Sole" Factor

Deciding a question, that probably few thought was in real doubt, a panel of the 5th Circuit last week joined seven other circuits in setting the proper causation standard for Americans with Disabilities cases. Pinkerton v. Paige (5th Cir. 11/13/07).

According to the Court:

Under a plain reading of the statute, and in accord with the position of other circuits, we conclude that the “sole causation” standard is not the appropriate standard for ADA claims. We hold that under a straightforward reading of the statute, the “motivating factor” test should be applied to ADA claims. This is consistent with the law of most other circuits,33 and it is in line with the causation standard we have applied to similar anti-discrimination statutes.

If there was any surprise in the decision for me it was that it had not been decided before.

Another interesting issue was how the Court came to decide it. The case is brought by an employee of the Department of Education under both §501 and §504 of the Rehabilitation Act. The question was whether the "sole" causation standard of §504 or the "motivating factor" standard of §501 was applicable.

Rather than just deciding that specific question, the Court first held that the §501 standard was the same as the ADA, and then resolved the previously undecided issue in the 5th Circuit. Such a departure from the conservative principle of only deciding the question before you may be what caused Judge Jones to concur only in the judgment.

It was also a good reminder to me that even though I don't do public sector work, I shouldn't ignore or read those decisions too hastily as they often have hidden gems applicable to the private sector when you would hardly expect it. Pinkerton is a case in point.

7th Cir. - Calling Employee "Crippled, Disabled and Handicapped" Not Enough To Violate ADA

An employee was hired as a flat bed truck driver, even though he had a severely crushed hand which led to a 20% disability pension from the Army. When he was terminated for violating a safety rule, he claimed that the employer called him "crippled, disabled and handicapped." He sued under the ADA, not claiming he was actually disabled, only that the employer considered him disabled. Accepting for purposes of the ruling that the employer used those words, the Court still found no violation of the ADA. They all fall within "a range of meanings" and are not sufficient to show that the employer thought the employee was so far disabled as to meet the ADA statutory definition. It is that level required to meet the "perceived as disabled" standard. Tockes v. Air-Land Transport Services, Inc.. (7th Cir. 9/9/03) [pdf]. Chief Judge Posner commented that rather than being made in a case where an employee had been hired with an existing disability as here, a perceived disability claim would be more likely where an employee suffered an injury which the employer viewed as disabling when it was not.

11th Cir. Deals With Unusual ADA Retaliation Claim - Individual Liability Under Public Accommodation Section

Political disputes often lead to interesting law issues. That appears to be what happened in Shotz v. City of Plantation, Florida (11th Cir. 9/8/03) [pdf]. Shotz, an ADA expert, surveyed a Community Center at the request of one of the council members and wrote a letter to the council member reporting numerous ways it was not in compliance with the ADA. The council member provided a copy to the Mayor and ultimately others received it as well. Unhappy with the report, an assistant city mayor authorized an investigation into Shotz' background which included hiring a private investigator and authorizing the city attorney to conduct a data base search. Ultimately, information about Shotz' "criminal, credit, and driving records, medical history, involvement in professional disciplinary and other civil proceedings, property ownership, social relationships, including an ongoing conflict with a neighbor, as well as a criminal report involving his wife," were made public.

Shotz sued several individuals under the anti-retaliation provisions of the ADA. Although noting there were numerous cases holding that individuals are not liable for violations under the ADA employment provisions, the Court found that the retaliation provision under the public accommodations section was not so limited. It also raised the question, although not deciding it, whether individuals might be liable under the retaliation provisions even for employment related matters.

Besides making one cautious about doing favors for a council member, the case is also a good lesson for the dangers of investigating someone's background. The regulatory framework is broad enough that some legal problem is almost certain to be created.

9th Cir. Holds Diabetic Significantly Limited In Major Life Activity of Eating

Reversing a summary judgment, the 9th Circuit proves how fact intensive ADA cases are by its lengthy discussion of plaintiff's diabetes, which is classified as 'brittle' and which requires a strict monitoring of any food intake, often requiring her to test her blood sugar to ensure proper levels. Fraser v. Goodale (9th Cir. 9/8/03) [pdf]. Under these circumstances, the Court found that eating was a major life activity which was significantly limited. In an effort to ward off claims the Court specifically made clear it was not inviting those on a diet to complain that their major life activity of eating was threatened, but emphasized the unique circumstances of this case.

ADA - Disability Must Be Related To Needed Accommodation To Be Actionable

A redi-mix driver fell in a hole and suffered severe nerve damage which resulted in a number of physical problems. He was terminated because his restrictions, including the inability to lift more than 50 lbs, left him unable to perform his redi-mix driving job. He sued saying that he was discriminated against because of a disability. The court's decision is a good study in how an ADA case is evaluated by the courtw. Wood v. Crown Redi-Mix, Inc. (8th Cir. 8/7/03) [pdf]. He alleged that he was disabled because of limitations with respect to walking, standing, turning, bending, lifting, working and the ability to procreate. The trial court granted summary judgment for the employer on all claims. The 8th Circuit affirmed the claims on the basis of walking, standing, turning, bending, and lifting by evaluating them in light of what it called the "high bar" set by Toyota Motor Manufacturing, Kentucky., Inc. v. Williams (U.S. 2002), which requires that an individual must have an "impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Measured against that standard, although the court characterized the restrictions as moderate, they were not severe. With respect to working, he could not show that he was limited to a substantial range of jobs.



Although hesitant to do so without additional proof, the court accepted for purposes of this case Wood's unsupported assertion that the injury had left him unable to procreate, therefore making him disabled under the ADA (impairment of the major life function of procreation). Even accepting that, the court still affirmed summary judgment, holding that since his inability to procreate had nothing to do with the accommodation that he was requesting, he failed to establish a prima facie case under the ADA. To so hold the court found, "would be a strange result, and one we do not believe Congress intended, to have the viability of Wood's claim that he should have been accommodated as an employee of a truckdriving company turn solely on whether or not he was impotent."

9th Circuit: Interference with ADA Rights, Separate and Broader Cause of Action Than Retaliation

Noting that it was perhaps opening a wide door, nevertheless the 9th Circuit finds that a cause of action under Section 503(b) of the ADA which prohibits interference with the exercise of rights under the ADA is distinct from, and broader than a cause of action for retaliation under Section 503(a). Brown v. City of Tucson, (9th Cir. 7/30/03) [pdf]. Although summary judgment for the City was upheld on the retaliation claim under the burden shifting analysis of McDonnell-Douglas, the same analysis did not apply to the interference claim. Nor does it equate to a hostile environment claim, which would require a finding of an adverse employment action. The most applicable standard is that found under the Fair Housing Act, which has an identical provision. Unfortunately, that standard does not give much guidance for its application under the ADA. At a minimum however, where as here there were allegations of threats for exercising her rights under the ADA, in this case being threatened with adverse action if she did not give up the accommodation for her disability, it is sufficient to survive summary judgment under Section 503(b). It would be a surprise if the Supreme Court were not given a chance to shut this door that the 9th Circuit may well have opened.

9th Cir Sends Chevron Back To Trial Court To Prove Threat To Employee

Chevron scored a landmark victory in the U.S. Supreme Court by validating the EEOC's regulation that direct threat includes a threat to the employee as well as to others, even though the ADA did not contain that specific language. Chevron v. Echazabal (U.S. 2002). They were less successful in convincing the 9th Circuit that their summary judgment granted on that basis should be upheld.



In today's decision in Echazabal v. Chevron (9th Cir. 7/23/03) [pdf] the Court found there were factual issues on whether Chevron made its decision “based on a reasonable medical judgment that relies on the most current medical

knowledge and/or on the best available objective evidence.” Chevron did convince one judge of the panel who filed a vigorous dissent, but unfortunately, must now start over in the trial court.

UPS Settles ADA Class Action With Deaf Employees for $5.8 Million

In addition to the monetary settlement the company is also continuing a number of changes it had already begun to accommodate the hearing impaired. The Mercury News has the details of the settlement and the actions to be taken by UPS.

HIV Positive Acrobatic Catcher - Direct Threat or Not?

The headline in the S.F. Chronicle, Cirque du Soleil accused of firing HIV-positive gymnast, tells the story. Clearly, Cirque du Soleil, the very popular modern day circus, was aware of the ADA since according to the article, the letter terminating the employee did so because he represented a "direct threat" to the safety of others. Although there aren't that many openings for acrobat catcher, if this case goes all the way through the courts, it could provide another chapter on what jobs, if any, are off limits to HIV positive employees.

Perceived Disability Claims Succeeds Because of Erroneous Interpretation of Doctor's Restriction

ADA claims are difficult to make but the third prong of the ADA definition, often referred to as perceived disability, may be an easier route for plaintiffs. In Ollie v. Titan Tire Co. (8th Cir. 7/15/03) when Ollie was turned down as a strike replacement for work in the warehouse because of his asthma, he lost his claim that he was actually disabled, but won because those involved in the hiring decision had perceived him as disabled.



In keeping with their normal practice, the company acted based on an oral report from the doctor's office where the post-offer, pre-employment physical was conducted. Here the report was, “The Examinee is medically able to do the essential functions of the job with accommodations listed below.” In the space below he wrote: “Pt. has asthma. May have difficulty in areas [with] dust or fumes.” What the person at the company wrote was, "“Asthma, no working where dust or fumes.” Concluding that everywhere in the warehouse would have dust or fumes, company personnel revoked the job offer.



Unfortunately for Titan, the difference between what the doctor said and what the employer wrote and acted on was enough to distinguish this from other cases where reliance on a doctor's restriction was sufficient to protect the employer. The appellate court did affirm the district court's rejection of the jury's award of punitive damages, but upheld the lower court's award of two years front pay based on the differential of what Ollie would have earned at Titan and what he was earning at the job he was able to get. Moral of the story: when rejecting on medical restrictions, be careful how broadly you view them.

1st Circuit Leaves For Another Day Question of Whether Hostile Work Environment Claim Is Viable Under the ADA

In Rocafort v. IBM, the 1st Circuit affirms a summary judgment on an ADA claim brought by an individual who suffered anxiety attacks, including the fear that he was going to be terminated on his return to work. He also sought to raise a hostile environment claim. Saying the law was unsettled in the 1st Circuit on that issue, the court rather than addressing it found Rocafort had waived it by not raising it below. For those who might see this as just another case where the employer wins an ADA case, should review the facts carefully for the efforts, time and expense that IBM spent on an employee who was certainly not being productive.