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 

Employee "Regarded As" Suffering From Disability Where Employer Fabricated Work Restriction and Failed to Conduct Individualized Inquiry Regarding Employee's Actual Medical Condition, Sixth Circuit Rules

Apparently dissatisfied with the outcome of proceedings as to a workers compensation claim, Nissan fabricated the existence of a work restriction for the employee, then concluded, in view of this fabricated work restriction, that it had no position he was physically able to perform and terminated his employment. This violated the Americans with Disabilities Actas a matter of law the Sixth Circuit ruled in Jones v. Nissan North America, No 09-5786 (August 18, 2011), a remarkable decision in which the Court overrode an adverse jury verdict for the plaintiff, reversed and ordered that judgment as to liability be entered on the employee's behalf.

Mark Jones was a long-time production laborer at Nissan's plant in Smyrna, Tennessee. In April 2003, Jones injured his right elbow, was later diagnosed with "tennis elbow" for which he had successful surgery in September 2004 and was returned to work with no restrictions in January 2005. Related to the elbow injury he was assigned and impairment rating of 3%. He continued working over the next year and a half; his supervisor found in be a hard worker and Jones never asked for any type of accommodation or indicated that he was having any difficulty performing his job duties.

In June 2006, Jones is workers compensation claim regarding his elbow injury was tried in Chancery Court. The Chancellor found that Joan suffered from a 30% vocational disability, noting that Jones was suffering continuing difficulties because of the injury to his elbow.

The award of workers compensation benefits, as the Sixth Circuit noted, "was higher than Nissan was expecting." Nissan resolved that works restrictions should be imposed on Jones to include no lifting, no use of power tools and no use of hand tools. Event concluded that it had no jobs available for Jones consistent with those restrictions, and placed them on unpaid medical leave. Nissan asked Jones to sign a form indicating that he was restricted from lifting, using power tools and using hand tools but he declined, explaining "I was not on any restrictions, I could do my job, and I was able to do my job." Jones also declined to follow Nissan suggestion that he apply for long-term disability benefits. Subsequently, after Nissan had run Jones out of his workforce, he accepted employment with another company, a move that provoked Nissan to formally terminate his employment.

Jones filed suit claiming that the termination of his employment violated both the Americans with disabilities act and Tennessee state law. He claimed not that he actually was disabled but that he was so regarded by Nissan. The essence of his claim was that Nissan fabricated the work restrictions regarding lifting and his use of power and hand tools and therefore regarded him as disabled, because it regarded him as substantially limited in and performing the major life activities of lifting in performing manual task, which includes the use of hand tools and power tools. See Wysong v. Dow Chemical Co., 503 F.3d 441, 450 (6th Cir. 2007)( lifting a major life activity); Kiphart v. Saturn Corp., 251 F.3d 573, 584 (6th Cir. 2001) (ability to perform manual task including using "hand power tools" and "air vibrating power tools" is a major life activity).

Nissan claimed that it had imposed the restrictions on Jones because it was required to do so by the Chancellor's order in Jones' workers compensation case. The Sixth Circuit rejected this out of hand noting, among other things, that "Nissan employees continually revised the Chancellor's findings without regard to what the Chancellor actually stated" and imposed the hand tool restriction "despite the fact that the Chancellor did not make a single finding with regard to Jones's ability to use hand tools and his job."

The Sixth Circuit ruled further that Nissan's position was undercut by its failure to take "any steps to ascertain Jones's actual medical condition" and further that "Nissan acknowledged that it conducted no such inquiry because it determined that it did not matter whether Jones was medically disabled." The court stressed that it is prior holding in Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 200), required an employer to conduct an "individualized inquiry" into an employee's actual medical condition that could not be excused by simply relying on a third-party's assessment that an employee is disabled.

The Court concluded its analysis as follows:

    The question then is whether when an employer takes action based on a third party's judgment regarding the employee's physical ability to perform the job, it is excused from making an individualized inquiry if it perceives that is required to follow the third party's judgment without regard to the accuracy of that judgment. Nissan argues that in such a case the employer is not acting based on prejudice, myths or preconceived notions about an employee's physical abilities, but rather on its understanding, albeit possibly mistaken, of its obligations separate and apart from its perceptions of the employee's physical capabilities. Nissan thus seeks refuge behind the chancellor's conclusions by casting them as legal, rather than medical, conclusions. But the chancellor's statements were neither; there were findings in support of the chancellor's ruling. In making these findings, the chancellor did not impose restrictions on Jones; the chancellor simply stated, in response to Nissan's counsel's request for clarification, what the chancellor found to be the injuries affect on Jones's ability to perform various tasks. Whether this is labeled as a medical determination of some other type of determination, this determination concerns Jones's physical ability to perform his job. Were employers permitted to infer an inability to do the job based on workers' compensation findings of fact, the purposes of the ADA would be undermined. Although Nissan disavows sharing the chancellor's view of Jones's limitations, it nevertheless drew unfounded inferences from those findings, leading it to impose unsupported medical restrictions on Jones. This constitutes discrimination under the ADA.

From that concluson the Sixth Circuit overrode the jury's verdict in Nissan's favor, reversed and ordered that judgment in Jones' favor be entered by the district court.

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

"Aren't You Being Discriminatory?": Protected Activity in Retaliation Cases

"Aren't you being discriminatory?" asked Mary Casna in response to her supervisor's questions about her hearing disability, "How can you work if you cannot hear?"  Casna's supervisor immediately reported Casna's statement to her supervisor, wrote up a job evaluation for Casna and Casna was filed three days later. Casna sued claiming that her statement to her supervisor ("Aren't you being discriminatory?") was protected activity and she claimed that her firing was unlawful retaliation in violation of the Americans With Disabilities Act.

This informal complaint, the Seventh Circuit ruled in Casna v. Loves Park, No. 07-1044 (7th Cir., July 24, 2009), was "protected activity for purposes of retaliation claims."  The court ordered that Casna's retaliation claim under the Americans With Disabilities Act must be decided by a jury at trial.

Robert L. Abell
www.RobertAbellLaw.com

Epileptic Awarded $475,000 In Disability Discrimination Suit

An epileptic proved disability discrimination and a jury verdict awarding him $475,000 in damages, including $410,000 in back pay, was affirmed recently by the Eighth Circuit Court of Appeals in Finan v. Good Earth Tools, Inc., No 08-2221 (May 19, 2009).  The employee claimed that he was "regarded as" disabled and fired by his employer in violation of the American With Disabilities Act.

Finan was employed as a traveling salesman. He suffered from seizures and was eventually diagnosed with epilepsy. His doctor returned him to work and advised that he could resume driving after being seizure-free for six months. Nonetheless, he applied for and began receiving benefits under a private disability policy. Finan also returned to work before being fired on February 9, 2004. After being fired, he applied for and was awarded Social Security disability benefits.

Finan sued under the ADA on a "regarded as" theory; that is, that his employer regarded him as disabled even though he was not. A jury awarded him $410,000 in back pay and $65,000 in other damages.

The court ruled that neither Finan's receipt of private disability benefits nor of Social Security disability benefits undermined his claim. First, the court noted that the private disability policy required merely that he suffer from a disability or sickness, be under a doctor's care and, as a result, sustain an income reduction of 20% or greater. Second, the Social Security Administration did not determine that he could not perform the essential functions of his job; rather, it found only that considering his age, education, work experience, and residual functional capacity, there were not a significant number of available jobs for him in the national economy.   

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