Kentucky Employment Law Blog

Is Driving A Major Life Activity Under the ADA?

Driving in the vast majority of the United States is almost essential to getting to work, to shop, for recreation and to access most of the things and services that individuals find necessary in everyday life. Sure, mass transit fills some of the gaps but a medical condition that leaves one unable to drive imposes a substantial hardship, one that would seem easily to qualify one as disabled under the Americans With Disabilities Act (ADA).  The answer, however, varies depending on the court and when the condition arose.

The amendments to the ADA and its implementing regulations provide more explicit recognition that inability to drive imposes a disability under the ADA. The ADAAA regs issued by the EEOC speak to the inability to drive as disqualifying one from a broad class of jobs thereby making one disabled:

"A class of jobs may be determined by reference to the nature of the work that an individual is limited in performing (such as commercial truck driving ...) or by reference to job-related requirements that an individual is limited in meeting (for example, jobs requiring ... driving ...)." 

The caselaw prior to the ADAA is more mixed. There are a number of cases indicating that driving is a major life activity: Weiss-Clark v. Kaiser Foundation Health Plan of the Northwest, 2001 WL 204823 (D. Or. 2001); U.S. v. City and County of Denver, 49 F. Supp. 2d 1233 (D. Colo. 1999), aff'd on other grounds sub nom Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999); Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1434 n.13 (N.D. Cal. 1996), aff'd on other grounds, 191 F.3d 1043 (9th Cir. 1999)(“The jury also could have concluded that Norris's back injury substantially limited her ability to drive, and the jury could have reasonably felt that, at least in California, driving is a major life activity.”). See also Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157, 168 (E.D.N.Y. 2006).

Similarly, a number of cases hold that driving limitations may substantially limit working: Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008) (may preclude a “broad range of jobs”); Black v. Roadway Express, Inc., 297 F.3d 445, 453 n.12 (6th Cir. 2002) (recognizing truck driving as a class of jobs); Tate v. Farmland Industries, Inc., 268 F.3d 989, 1000 (10th Cir. 2001); Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997) (statements by employer's agents that plaintiff was restricted from a wide variety of truck-driving jobs was sufficient to suggest employer regarded plaintiff as substantially limited in working); Irizarry v. Mid Florida Community Services, Inc., 2009 WL 2135113, at *4 (M.D. Fla. 2009); Broughton v. City of Jacksonville, 2008 WL 2704420, at *3 (M.D. Fla. 2008) (passenger driving is a class of jobs); Russo v. Sysco Food Services of Albany, L.L.C., 488 F. Supp. 2d 228, 235 N.D.N.Y. 2007) (belief that plaintiff with epilepsy could not safely drive a variety of vehicles); Skomsky v. Speedway SuperAmerica, L.L.C., 267 F. Supp. 2d 995, 1003 (D. Minn. 2003) (truck driving is a class of jobs). See also Winsley v. Cook County, 563 F.3d 598 (7th Cir. 2009) (although inability to drive might interfere with the major life activity of working, employee failed to demonstrate that it foreclosed her from class or broad range of jobs). 

There are, of course, a few courts that flatly reject the notion that driving is a major life activity including the Eleventh Circuit Court of Appeals, which is headquartered in Atlanta, a place where hundreds of thousands of daily commuters might question the notion that driving is not a major life activity. Nonetheless, see Chenoweth v. Hillsborough County, 250 F.3d 1328 (11th Cir. 2001).  

Robert L. Abell
www.RobertAbellLaw.com 

Do an Employer's "100% Healed" or "No Restrictions" Policies Violate the ADA?

 Some employers require injured workers to obtain full medical releases to return to work certifying that they are "100% healed" and/or have "no restrictions" of any kind. Do these type policies violate the Americans With Disabilities Act (ADA)?

Courts have consistently found that policies prohibiting injured employees from returning to work unless they can do so "without restrictions" violate the ADA. The Ninth Circuit, in McGregor v. National R.R. Passenger Corp, 187 F.3d 1113, 1116 (9th Cir. 1999), explained the ADA violation as follows:

[a] "100% healed" or "fully healed" policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is "100% healed" from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation.

Other courts have been no less emphatic: 

• Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001)("All courts that have examined the question . . . agree that a 100% rule is impermissible as to a disabled person.")
• Hutchinson v. UPS, 883 F.Supp. 379, 397 (N.D. Iowa 1995)("Such a policy would on its face 'discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment.'")
• Bearshield v. John Morrell & Co., 570 N.W.2d 915, 923–924 (Iowa 1997) (evidence could support finding that employer perceived plaintiff as having disability if its refusal to allow plaintiff to return to work was based on its fear of higher costs, as reflected by company's “100% healed” policy, rather than on individualized assessment, as required by ADA)
  
  
• Warmsley v. New York City Transit Authority, 308 F. Supp. 2d 114, 122 (E.D.N.Y. 2004) (“Courts have ‘consistently found’ that such ‘100% healed’ or ‘fully healed’ policies violate the ADA")
  
  
• Meling v. St. Francis College, 3 F. Supp. 2d 267 (E.D.N.Y. 1998) (finding such policy “simply defies the ADA,” and justifies jury's punitive damage award)
  
  
• Heise v. Genuine Parts Co., 900 F.Supp. 1137, 1154 n.10 (D. Minn. 1995)(holding that a "must be cured" or "100% healed" policy is a per se violation of the ADA because the policy does not allow a case-by-case assessment of an individual's ability to perform essential functions of the individual's job, with or without accommodation)
• Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 698-99 (7th Cir. 1998) (general physical fitness criterion, like “100% healed” and “must be cured” policies violate the ADA)

Robert L. Abell
www.RobertAbellLaw.com 

EEOC Issues Final ADA Regulations

The EEOC has issued its final regulations following recent amendments to the Americans with Disabilities Act (ADA). Some highlights are as follows:

• Whether or not an activity is a "major life activity" is not determined by reference to whether it is of "central importance to the daily life." 29 C.F.R. § 1630.2(i)(2)
   
• A person with a "record of" a disability is entitled to seek accommodations. 29 CFR § 1630.2(k)(3)
   
•  "Condition, manner, or duration" are useful considerations in determining whether a person suffers a substantial limitation to a major life activity, but they are optional not required factors in the relevant test. 29 CFR § 1630.2(j)(4)(iv); 29 CFR Part 1630  App., § 1630.2(j)(4), 76 Fed.Reg. 16978, 17013 (March 25, 2011)
   
•  The duration of an impairment is a factor relevant to determining whether an impairment substantially limits a major life activity but there is no minimum duration. The impairment can be less than six months and can be short-term if serious enough. 29 CFR § 1630.2(j)(1)(ix)
   
• For a person to have a covered disability he or she need be affected only with regard to one major life activity, meaning an individual is not excluded from ADA coverage because of their ability to do many things, as long as they are substantially limited in one major life activity. 29 CFR § 1630.2(j)(1)(viii); 29 CFR § 1630.2(j)(4)(iii).

Robert L. Abell
www.RobertAbellLaw.com

Impossible Production Quota Proof of Discriminatory Intent

Jeffrey Willnerd suffers from a voice condition that makes it difficult for him to speak and to control the tone of his voice. His condition was a topic of discussion with his supervisors yet did not impact his job performance as a bank loan officer/sales representative. In building a case to justify his termination, the bank imposed on Willnerd an impossible to meet production quota, which, along with other factors, led the Eighth Circuit to reverse a summary judgment and remand for trial. Willnerd v. First National Nebraska, Inc., No. 07-3316 (March 13, 2009). 

Willnerd developed a voice condition that eventually reduced his voice to "a whisper." His supervisor, the bank president, Keslar, testified that he was "concerned with how customers might view Willnerd." Nonetheless, Willnerd's condition "did not adversely affect his job performance." Nonetheless, Willnerd's employment was terminated by the bank in September 2003. 

In February 2002, Willnerd was given an impossible-to-meet production quota. He was required to increase his annual loan volume 100% from $2 million to $4 million.This quota "not only required [Willnerd] to double his annual generation, it required him to single-handedly outperform the entire branch's mortgage-lending volume at a level the branch ultimately failed to achieve at any time prior to or following his termination."  Another employee, Spangler, had the same job duties and "identical job description" as Willnerd but was not put on any type of production quota, even though his loan production was inferior to Willnerd's.  Nonetheless, in May 2003, Willnerd was put on 90 days probation to increase production and improve his "overall proactive sales effort." Spangler was not put on any such terms, despite his inferior production. 

The Eighth Circuit reversed the summary judgment erroneously granted the bank by the lower court, finding sufficient evidence of discriminatory animus and pretext from the following: 1) jurors could view the production quota imposed on Willnerd "as unattainable and as an effort to ensure Willnerd's failure"; (2) inconsistent statements by the bank's upper management as to whether other employees were considered for termination; (3) other purportedly poor performing employees were not subject to quotas or termination; (4) the employee to whom Willnerd's duties were assigned after he was fired failed to perform at Willnerd's level but suffered no adverse consequences; (5) Willnerd outperformed his colleague, Spangler, who suffered no adverse consequences; and, (6) the bank's upper management admitted concern about how customers viewed Willnerd becuase of his voice condition.  

Robert L. Abell
www.RobertAbellLaw.com

Americans With Disabilities Act Covers Type 2 Diabetic

An insulin-dependent type 2 diabetic is covered by the Americans With Disabilities Act (ADA) the United States Court of Appeals for the Ninth Circuit has ruled in Rohr v Salt River Agricultural District, No 06-16527 (February 13, 2009). The diabetes substantially limited the worker's eating and therefore brought him within the scope of the ADA, the court ruled. 

Larry Rohr was diagnosed with in 2000 with insulin-dependent type 2 diabetes. Rohr's diagnosis inaugurated a lifetime regiment of insulin injections, medicine, blood tests, and a strict diet; the condition caused chronic high blood pressure, deteriorating vision, occasional loss of feeling in his hands and feet and made him quicker to tire. His high blood pressure also prevented him from passing an annual respirator certification, which was important to his job. As time went on, these symptoms became more severe. Eventually, Rohr's condition led to a number of permanent work restrictions:

• no rotating shift work
• no more than 9 hour workday 
• limits on prolonged work in hot areas with little ventilation 
• no heavy exertional activities 
• no work from unprotected heights or unprotected climbing  
• carry with him at all times a sugar supply such as a sugar tablet 
• no out-of-town travel to avoid any dietary disruption   

Rohr's employer became dissatisfied with these restrictions, determined that he could not perform the essential functions of his job and presented him with three options: (1) seek another position with the company; (2) apply for disability benefits; or, (3) take early retirement. Rohr opted to apply for disability benefits and filed a charge of discrimination with the Equal Employment Opportunity Commission. 

Diabetes is a "physical impairment" because it affects the "major life activity" of eating the court first ruled. The question was whether it "substantially limited" Rohr's eating. This it did for Rohr the court ruled based on the following:

• he cannot eat large meals or skip meals and must eat a snack every few hours 
• he must schedule each day's blood tests, medications and food intake 
• he sometimes becomes dizzy, symptoms that subside only when he quickly eats something 
• a deviation from his diet regimen for more than a meal or two causes his blood sugar level to rise, aggravating his condition 
• his personal and recreational travel was limited by his need to avoid disruption to his diet  

These factors caused by Rohr's diabetes were so different compared to the general population as to establish that his diabetes substantially limited his eating. 

Rohr's diabetes was severe enough to "substantially limit" eating, a "major life activity." The Court cautioned and noted other cases so ruling that not all diabetes causes such disruptions and therefore rises to the level of a "disability" within the meaning of the ADA. The assessment of a "disability" the court observed is an "individualized determination." 

Robert L. Abell

www.RobertAbellLaw.com 

Breast Cancer Survivor Prevails In Disability Discrimination Suit

A breast cancer survivor, Joan Eshelman, found, upon her return to work from medical leave, that chemotherapy had left lingering cognitive dysfunction -- a condition sometimes referred to as "chemo brain." Eventually and even though she continued to be an outstanding employee, her employer, Agere Systems, Inc. (formerly Lucent Technologies, Inc.) slated her for lay-off because of her cognitive problems. She filed suit under the American With Disabilities Act (ADA) and a jury found in her favor, awarding her $170,000 in back pay and $30,000 in compensatory damages. The trial court judge awarded her the additional sum of $6,983 to cover additional tax liabilities that she would incur. The jury's verdict and the trial court's award was affirmed by the United States Court of Appeals for the Third Circuit in Eshelman v. Agere Systems, Inc, No 05-4895 (January 30, 2009).

Eshelman's chemotherapy-induced memory problems continued after her return to work. She dealt with it successfully, however, by becoming a more meticulous note-taker, sometimes making alternative transportation arrangements when compelled to attend a meeting at a new or unfamiliar location and, at other times, just persevering on her own to get her "focus back." Despite all this, she "excelled at her job, receiving the highest possible performance appraisals for two straight years, promotions, raises and bonuses.  

A downturn in Agere's business caused it to draw up a lay-off plan. Employees were scored and those below a certain level were slated for lay-off. Eshelman was initially rated highly and the possibility of a transfer was broached. After she expressed concerns about a new work location although still asserting her confidence that she could do any job, Eshelman was changed to one of the lowest scores and she was later terminated.

Eshelman prevailed at trial on her claim that her termination violated the ADA. She advanced this claim on two theories: (1) that Agere regarded her as having a disability, and (2) that she had a record of a disability.  More specifically, Eshelman argued that Agere erroneously viewed her memory impairment caused by her chemotherapy treatment as substantially limiting her abilities in two major life activities: working and thinking. This she proved by evidence that her score in the lay-off plan was lowered because Agere management had reservations, notwithstanding her outstanding record, about her ability to perform at a new location. 

Following the jury's verdict in her favor and its award to her of $170,000 of back pay, Eshelman presented expert evidence that her taxes on the lump sum of back pay awarded by the jury would be higher than she would have paid had she received the pay in the normal course of employment. She was awarded the sum of $6,983.00 to cover this additional tax liability. This award was upheld as necessary to restore Eshelman "to the economic status quo that would exist but for the employer's conduct."   

Robert L. Abell

www.RobertAbellLaw.com 

Protections for Disabled Workers Enhanced By ADA Amendments

Amendments to the Americans With Disabilities Act, usually referred to as the ADA, were signed into law on September 25 by President Bush.  These amendments restored protections for disabled Americans that the courts over the last 15 years have read out of the law.  The amendments include the following:

• directions that the courts construe and apply the law to provide the greatest protections

• directions that the courts determine whether a person is disabled and protected by the law based on their condition without consideration for how medicine or other aids may mitigate the condition

• clarifies that persons wrongly "regarded as" disabled are protected regardless of the scope of their actual disability

• empowers the Equal Employment Opportunity Commission to issue controlling regulations

Robert L. Abell
www.RobertAbellLaw.com

Cancer Survivor Protected from Disability Discrimination

A breast cancer survivor qualifies for protection by the Americans With Disabilities Act (ADA), the D.C. Circuit held in Adams v. Rice (No. 07-5101). The protection arose, the court concluded, because the illness and treatment had caused an enduring impairment to the plaintiff's "major life activity" of sexual relations.

The plaintiff, Adams, earned a position with the United States Foreign Service, one that required a medical clearance.  Her medical clearance was revoked when she later reported a diagnosis of stage-one breast cancer.  She underwent a successful treatment program, which included reconstructive surgery.  Despite being cancer-free, her medical clearance was not reinstated and her job was lost.  Adams claimed this violated her rights under anti-disability discrimination laws.

The court ruled that Adams had established that, despite being cancer-free, she continued to suffer a disability because of an ongoing impairment to her ability to engage in sexual relations.  To reach that conclusion the court had to first decide whether engaging in sexual relations qualified as a "major life activity."  Based on statutory text, Supreme Court precedent and applying a "hefty dose of common sense" the court concluded that "engaging in sexual relations qualifies as a major life activity." 

While this case is testament first to Adams's bravery and the "common sense" of the court majority is to be acknowledged, it also serves as an illustration of how Supreme Court and other court rulings have so limited the Americans With Disabilities Act that its protections are ever difficult to define.  Adams lost her job with the State Department because it regarded her as a liability (or at least a potential liability) since she was a breast cancer survivor.  That she qualified for protection from disability discrimination in her employment as a Foreign Service officer based only on an ongoing impairment to her ability to engage in sexual relations indicates that Congress should act and restore a healthy dose of common sense to the protections afforded by the Americans With Disabilities Act by effectively repealing a number of misguided Supreme Court decisions.

Robert L. Abell
www.RobertAbellLaw.com 

Fired Because of A Sick Family Member: Protection Against "Association Discrimination"

One of the most important benefits most people get from their jobs is health care insurance for themselves and their families.  This health insurance becomes of vital importance when a family member falls into a prolonged illness.  From the employer's perspective, especially where the employer is self-insured, a prolonged illness for an employee's family member becomes a cost liability which can create an incentive for the employer to rid itself of both the employee and their sick family member.  Where this occurs the Americans With Disabilities Act (ADA) may provide some protection for the employee and their family.

The ADA prohibits discrimination against an employee "because of the known disability of an individual with whom the [employee] is known to have a relationship or association."  This is commonly referred to as protection against association discrimination.  Two recent cases, one decided by the United States Court of Appeals for the Seventh Circuit DeWitt v Proctor Hospital, and Trujillo v Pacificorp  decided by the United States Court of Appeals for the Tenth Circuit illustrate this protection and in both cases the employer was self-employed.

In Dewitt, the employee's husband became ill with prostrate cancer.  The employer paid medical costs up to $250,000 per year before a "stop loss" policy kicked in.  Each quarter the employer had compiled a roster of all employees whose claims had exceeded $25,000.  When the bills for the employee's husband's treatment began mounting she was confronted about them and asked what type of treatment he was receiving and whether less expensive alternatives had been considered.  The hospital became concerned about the costs, its own overall financial situation and resolved to be "creative" in cutting costs.  And so the employee was fired. 

The Court ruled that a jury should consider the employee's claim of "association discrimination" in violation of the ADA.  It noted that the firing followed close in time expressions of concern to the employee regarding the costs of her husband's medical care and the employer's resolution to be "creative" in cutting costs.  Therefore, the court ruled that a reasonable juor could conclude the employer was concerned that the husband's illness could linger for years and at great cost to the employer and so therefore the employee was fired in violation of the ADA. 

Trujillo v. Pacificorp presents a similar sad story.  The Trujillos, husband and wife, both worked for Pacificorp and had for many years, he for 25 and she for 8 years.  Their son developed a brain tumor that metasized into his spine.  Aggressive and costly (in excess of $62,000) experimental chemotherapy was undertaken but was unsuccessful.  Pacificorp designated claims exceeding $50,000 as high-dollar and healthcare costs for each employee were factored into the plant's budget line item for labor costs. 

Eleven days after the Trujillos' son suffered a relapse and began the final chemotherapy regiment the employer began an investigation into alleged time theft by the Trujillos.  The evidence showed that the company did not use a time clock, that supervisors usually approved employees' time sheets based on their observations during the work day, that time sheets were somtimes filled out in advance, that supervisors sometimes allowed employees to leave early but to record a full shift, and that employees frequently used a "piggyback" procedure to pass through a security gate in which one employee would use his security card to get the gate to open and other employees would walk in as well.  Nonetheless, Pacificorp accused both of the Trujillos with time theft and terminated them.

The court ruled that evidence that Pacificorp had general concerns about the rising cost of healthcare, that the claims for the Trujillos' child were considered "high dollar," that there was only one other "high dollar" claim during the relevant time frame on which the employer kept close tabs, that insurance costs were factored into the budget line item for labor costs of each employee, and that the investigation regarding the Trujillos' alleged time theft was one-sided and incomplete was enough for a jury to find in their favor at trial. 

The DeWitt and Trujillo cases also illustrate general problems that arise from the United States' system of employer-based healthcare insurance.  It seems reasonable for employers to be concerned about rising healthcare costs and the effects those costs have on their ability to compete in their business fields.  And yet it is horribly unfair to fire an employee because they have an ill family member that is generating substantial insurance costs for the employer.  The current system and the ADA mandate that cost be borne solely by the employer who is unlucky enough to employ an individual unlucky to have a family member suffering from a serious illness.  One might reasonably suggest that a single-payer system in which the costs were borne more widely would be more equitable and fair to both the employer and the employee.  It may also eliminate the impulse for "association discrimination" behind both of these cases. 

Robert L. Abell
www.robertabelllaw.com