Kentucky Employment Law Blog

Disability Discrimination Claim May Be Pursued under Equal Protection Clause, Sixth Circuit Rules

A claim founded on disability discrimination may be pursued as a denial of equal protection of the law and pleaded under 42 U.S.C. § 1983 the Sixth Circuit ruled recently in Bullington v. Bedford County, Tennessee. 

Kaleena Bullington worked for the county sheriff's department as a dispatcher for over 8 years but fell ill with Hodgkin's Lymphoma and the necessary chemotherapy had some debilitating side effects. She claimed that the county discriminated against her based on the disabilities caused by the cancer and related treatment.

Bullington pleaded a claim of disability discrimination under the Americans With Disabilities Act (ADA); she also pleaded that disability discrimination denied her equal protection of the laws guaranteed by the Fourteenth Amendment and made this claim under 42 U.S.C. § 1983.

The Sixth Circuit held that Bullington "may assert an Equal Protection claim for disability discrimination under § 1983." 

Judge Moore authored the Sixth Circuit's opinion and was joined by Judge Clay. Judge Kethledge, a recent contender for a Supreme Court appointment, concurred stating that "nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. ... reason enough to hold that such a claim is not precluded." 

Understand that Bullington's Equal Protection claim for disability discrimination is an alternative to one made under the ADA but is not a good alternative for at least two reasons: (1) she would have to show that "there was no rational basis for the state action that treated her differently because of her disability," a proof requirement akin to showing that disability discrimination was the sole factor in the differential treatment as opposed to a substantial factor; and, (2) the state's duty to accommodate a disability under the Equal Protection clause is likely lesser than under the ADA. 

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 

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