EEOC: Case Law Update: ADA Amendments Act (ADAAA) at Five JOYCE WALKER-JONES SENIOR ATTORNEY ADVISOR OFFICE OF LEGAL COUNSEL SEPTEMBER 17, 2014 What I ’ m Going to Discuss . . . 2 Coverage under Prongs 1 (actual) and 3 (regarded as) Qualified Reasonable Accommodation Drugs and Alcohol Exams and Inquiries Purpose of the ADAAA 3 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) 1
Recent Case Law: General Observations 4 Courts generally agree that Congress greatly broadened the definition of disability and more plaintiffs are prevailing in showing disability (although many lose on other grounds) With a few exceptions, district courts have recognized and applied changes to the “ major life activities ” element of the definition of disability – addition of “ major bodily functions ” seems to be accomplishing much of what it was intended to do EEOC ’ s non-exhaustive list of conditions that are virtually always disabilities generally has been embraced by the courts General Observations (cont.) 5 Turnaround in case law especially notable with respect to: cancer, HIV, multiple sclerosis, diabetes, and psychiatric conditions Expanded definition of disability has increased types of accommodations employers must offer, particularly requests to telework or for flexible schedules General Observations (cont.) 6 ADAAA statutory revision regarding consideration of mitigating measures is unequivocal and courts generally have had little trouble reincorporating the pre-Sutton principle that mitigating measures should not be considered in determining disability Courts generally appear to be grasping the ADAAA provision that an impairment that is episodic or in remission constitutes a disability if it would substantially limit a major life activity when active Courts seem to be having no trouble applying the ADAAA ’ s more straightforward analysis for determining whether an individual was “ regarded as ” having a disability … However, 2
General Observations (cont.) 7 With respect to the “ transitory and minor ” concept, a worrisome line of cases has developed in which the courts have looked only to the duration (i.e., whether an impairment lasted or is expected to last six months or less) and have failed to analyze whether the impairment is “ minor ” The exception to “ regarded as ” coverage applies only where the employer ’ s action was based on an impairment that both lasts fewer than six months and is minor Anxiety & Depression 8 Coverage: Prong 1 9 Huiner v. Arlington School District , 2013 WL 542496(D.S.D. Sept. 23, 2013) An art teacher alleged that she was discriminated based on her anxiety and panic attacks when school district failed to accommodate her Relying on plaintiff ’ s testimony and medical records that her anxiety caused her to lose 30 lbs in eight months, care for her children, and sleep, court concluded that her anxiety constituted a disability 3
Coverage: Prong 1 10 Palacios v. Continental Airlines , 2013 WL 499866 (S.D. Tex. Feb. 11, 2013) Plaintiff, who received treatment and medication for depression over a period of years, testified that his condition affected his ability to sleep or eat – he either slept too much or could not sleep or eat; he just sat in his living room and did nothing; he didn ’ t care about going to work, losing his house, or making car payments Court held that the self-described severity of plaintiff ’ s depression and its adverse effects on his working, sleeping, eating, and attention to ordinary care was sufficient to raise an issue that he had a disability Back, Legs & Knees 11 Coverage: Prong 1 12 Mazzeo v. Color Resolutions Int ’ l, LLC, 746 F. 3d 1264 (11 th Cir. 2014) Court held that plaintiff ’ s herniated disc and resulting pain – which had lasted for years and was serious enough to require surgery – substantially limited his ability to walk, bend, sleep, and lift more than 10 lbs Relevant factors in determining whether impairment is substantially limiting include: difficulty, effort, or time required to perform the activity; pain experienced while performing it; length of time , or extent to which, it can be performed ; effect on the operation of a major bodily function, etc. 4
Coverage: Prong 1 13 Summers v. Altarum , 740 F. 3d 325 (4 th Cir. 2014). Plaintiff fell and fractured his left leg, tore a tendon in his left knee, fractured his right ankle, and ruptured a tendon in his left leg. Following two surgeries, doctors restricted him from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for at least seven months . Relying on EEOC regulations that state that “ effects of an impairment lasting or expected to last fewer than six months can be substantially limiting, ” 4 th Cir. reversed the district court ’ s holding that a “ temporary injury ” cannot be a disability Coverage: Prong 1 14 Rocco v. Gordon Food Serv. , 2014 WL 546726 (W.D. Pa. Feb. 10, 2014) A delivery driver alleged that he was denied a reasonable accommodation and terminated based on a knee injury , which initially caused pain requiring prescription meds and limited his ability to walk or lift Court held that because the plaintiff ’ s alleged limitations, including his inability to concentrate or sleep (caused by the pain meds), had resolved by the time of the employment action , he failed to establish that he had a disability Diabetes & Hypertension 15 5
Coverage: Prong 1 16 Willoughby v. Connecticut Container Corp ., 2013 WL 6198210 (D. Conn. Nov. 27, 2013) Plaintiff with Type II diabetes and high BP experienced an episode of low blood sugar and dehydration at work, which caused him to pass out. Despite evidence that the incident was likely diabetes- related, he was terminated allegedly for sleeping on the job Court held that because the plaintiff experienced symptoms due to diabetes, which is a disease that affects the functioning of the endocrine system , and EEOC regulations list diabetes as an impairment that easily should be concluded to be a disability , a jury could easily conclude that he had an impairment that substantially limited one or more of his major life activities Coverage: Prong 1 17 Gogos v. AMS Mech. Sys., 737 F.3d 1170 (7 th Cir. 2013) A welder sought leave for medical treatment of his high blood pressure , which “ spiked to very high ” and caused intermittent vision loss, sometimes for a few minutes at a time Reversing the district court, the 7 th Cir. held the relevant issue was not how long Gogos ’ s episodes of higher-than-normal blood pressure and vision loss lasted but, rather, whether they substantially limited a major life activity when they occurred Pregnancy-Related Impairments 18 6
Coverage: Prong 1 19 Price v. UTI United States, Inc. , 2013 WL 798014 (E.D. March 5, 2013) Defendant terminated employee three weeks after she gave birth via cesarean section Court held that although pregnancy is not a physical impairment under the ADA, plaintiff introduced evidence of pregnancy- related physiological disorders affecting her reproductive system sufficient to raise a genuine issue of material fact as to whether she meets the definition of a person with a disability Coverage: Prong 1 20 Wonasue v. U of Md Alumni , 2013 WL 6158375 (D.Md. Nov. 22, 2013) While pregnancy-related complications may rise to the level of an ADA disability, plaintiff ’ s single instance of more severe than typical morning sickness did not because there were no subsequent medical restrictions Prong 3: “ Regarded as ” 21 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 7
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