Disability Discrimination: Developement in Case Law Under the ADA

Reprinted, in sincere appreciation, with the author's permission

Jonathan R. Mook
DiMuro, Ginsberg & Mook, P.C.
908 King Street, Suite 200
Alexandria, Virginia 22314
tel (703) 684-4333  fax (703) 548-3181
email:  csigler@dimuro.com

§ 1.01 INTRODUCTION

Since the employment provisions of the Americans with Disabilities Act (Title I) took effect in July, 1992, the Equal Employment Opportunity Commission (EEOC) has received over 129,000 ADA charges. Emotional and psychiatric impairments (including anxiety disorders, depression, manic depressive disorder and schizophrenia) now constitute 15.8 percent of those disabilities cited in charges filed with the EEOC.  In fiscal 1999 alone, there were more than 3,000 ADA claims based on a emotional or psychiatric impairment of the charging party. Other disabilities cited in EEOC charges include:

 

back impairments:  12.9% 

non-paralytic orthopedic impairments:  15.4% 

vision impairments:  2.4% 

cancer:  2.3% 

heart and cardiovascular impairments:  3.8% 

hearing impairments:  2.8%

Since the ADA took effect, the EEOC's resolution of charges has produced over $260 million in benefits to claimants.

§ 1.01SUPREME COURT DECISIONS

[1]   Definition of "Disability"

On June 22, 1999, the U.S. Supreme Court narrowed the scope of coverage under the ADA for employees with disabilities.  In a pair of decisions, Sutton v. United Airlines, Inc.,  119 S.Ct. 2139 (1999), and Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133 (1999), the Court held that the analysis of whether an individual is disabled under the ADA should include consideration of measures that mitigate the impairment, such as eye glasses and medication.

Sutton v. United Air Lines

In Sutton, the plaintiffs were two pilots who  had severe myopia.  Each had uncorrected vision of 20/200 in the right eye and 20/400 in the left eye, but their vision was 20/20 with the use of corrective lenses.  Although both individuals were employed as pilots for a regional airline, they were rejected for commercial pilot positions with United Airlines because their uncorrected vision was not 20/100 or better.  The pilots filed suit alleging that United had discriminated against them because of their myopia.  The plaintiffs contended that their myopia either was an actual disability or that United had regarded them as disabled.  The district court granted United's motion to dismiss on the basis that the plaintiffs were not disabled, and the Tenth Circuit affirmed.

In ruling on the plaintiffs' claim for coverage under the ADA, the Supreme Court, in a 7-2 opinion, held that they were not actually disabled because they could fully correct their visual impairments.  Justice Sandra Day O'Connor writing for the majority, reasoned that in order to be considered to have an actual "disability" covered by the statute, an individual must be "presently" substantially limited in a major life activity because of a physical or mental impairment.  According to Justice O'Connor, "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures - both positive and negative - must be taken into account when judging whether that person is substantially limited in a major life activity and, thus, disabled under the Act."

Justice O'Connor found support for her interpretation in the statute's reference to 43 million Americans with disabilities.  Justice O'Connor noted that the figure cited by Congress would have been much higher had Congress viewed as disabled persons those whose impairments were judged in an unmitigated state.  In so holding, Justice O'Connor rejected the position of the EEOC and the Justice Department, which had interpreted the ADA as requiring the assessment of an individual's impairment without regard to mitigating measures.  In the Court's view, this was "an impermissible interpretation of the ADA." 

The Court also ruled that the plaintiffs had failed to allege that they were "regarded as"disabled and, hence, covered by the statute.  Justice O'Connor reasoned that regarded as claims normally arise when an employer mistakenly believes that an individual has a substantially limiting impairment.  In Sutton, however, the plaintiffs alleged that United mistakenly believed that the plaintiffs were unable to work only as "global airline pilots," which does not substantially limit any major life activity, including working.  Justice O'Connor noted that creating physical criteria for a job, without more, does not violate the ADA.  The statute allows employers to prefer some physical attributes over others, so long as the attributes do not rise to the level of substantially limiting impairments.

Murphy v. United Parcel Service 

Murphy v. United Parcel Service involved a plaintiff who was hired by UPS as a truck mechanic.  Without medication, Murphy's blood pressure was approximately 250/160, but with medication, his blood pressure, though still higher than normal, allowed him to function normally.  UPS required mechanics to have commercial drivers licenses and to make test drives and emergency road calls.  Department of Transportation regulations prohibited drivers with "high blood pressure likely to interfere with ... [the] ability to operate a commercial vehicle safely."  Because UPS believed that Murphy's blood pressure exceeded this DOT requirement, he was terminated.  When Murphy filed suit alleging discrimination under the ADA, the district court dismissed the case finding that Murphy was not actually disabled because he functioned normally with his medication and because he was regarded only as being uncertifiable under DOT regulations.  The Tenth Circuit affirmed. 

The Supreme Court, following the reasoning in Sutton, upheld the dismissal of Murphy's ADA claim.  Because, with mitigating measures, Murphy was not substantially limited in any major life activity, the Court held that he was not actually disabled.  Moreover, the Court found that UPS had not "regarded" him as disabled because of his high blood pressure.  The Court explained that in order to be "regarded as" disabled, an employer must believe that an individual's actual, non-limiting impairment substantially limits one or more major life activities.  In Murphy's case, UPS regarded him as being unable to work in only a specific job that required driving a commercial motor vehicle.  There was no evidence that he was limited in either a class of jobs or a broad range of jobs and, indeed, there was uncontroverted evidence that he could have performed a number of mechanic jobs.  Accordingly, the Court held that Murphy was also not regarded as disabled.

Justice John Paul Stevens and Steven Breyer dissented in both Sutton and Murphy.  Stevens asserted that the analysis of the definition of disability should focus on an individual's past or present condition "without regard to mitigation that has resulted from rehabilitation, self-improvement, prosthetic devices, or medication."  Although Stevens acknowledged that this general rule should not apply to near sighted persons who simply need to wear glasses, he maintained that "in order to be faithful to the remedial purposes of the Act, we should give it a generous, rather than a miserly construction."  Justice Breyer, joining Stevens dissent, noted the dilemma of determining whether to include in the category of "disabled," individuals, such as those who wear ordinary glasses, whom Congress may not have intended to protect.  However, according to Justice Breyer, "faced with this dilemma, the statute's language, structure, basic purpose, and history require use to choose" to err on the side of inclusion, rather than exclusion.

Albertson's, Inc. v. Kirkingburg 

In the third case decided by the Court, Albertson's, Inc. v. Kirkingburg, 119 S.Ct. 2169 (1999), involved a truck driver, Kirkingburg, with monocular vision who had been hired by Albertson's based upon the erroneous understanding that he met DOT standards for commercial truck drivers, which require corrected distant vision acuity of at least 20/40 in each eye and distant binocular acuity of at least 20/40.  After Kirkingburg had been terminated, he received a waiver from the DOT standards under a waiver program of the Department.  Nevertheless, Albertson's refused to rehire Kirkingburg who sued claiming a violation of the ADA.

The district court granted summary judgment for Albertson's, finding that Kirkingburg was not qualified to be a truck driver because he could not meet the basic DOT requirements.  The Ninth Circuit reversed, however, finding that Kirkingburg had established that he was disabled under the statute and that Albertson's could not use compliance with the DOT regulations to justify not hiring him because the Department had a waiver program for which Kirkingburg qualified. 

The Supreme Court reversed the Ninth Circuit and dismissed Kirkingburg's suit under the statute.  In a unanimous opinion, written by Justice Souter, with a concurrence by Justice Thomas, the Court held that having monocular vision is not a per se disability under the ADA, because of the many possible variations in vision loss and "the individual's ability to compensate for the impairment."  Pointing to the Court's decision in Sutton, Justice Souter pointed out that an individual with monocular vision, like other persons claiming the ADA statutory protections, had to prove that the person's limitation substantially impaired a major life activity.

In addition, the Court determined that where, as was the case with Albertson's, an employer establishes as a job qualification that an employee meet an otherwise applicable federal safety regulation, an employer does not have to justify enforcing the regulation solely because the requirement may be waived experimentally in an individual case.  The Court went through an extended analysis of the Federal Motor Carrier Safety regulations and the Department of Transportation waiver program.  The Court concluded that the waiver program did not change the content of DOT's regular vision standard "in a way that  disentitles an employer like Albertson's to insist on it."  Accordingly, Albertson's could adopt the DOT standard and make it a job requirement without violating the statute.

[2]   Social Security Disability v. ADA Protections

Cleveland v. Policy Management System, No.97-1008 (May 24, 1998).  The pursuit and receipt of Social Security disability benefits for being too disabled to work does not automatically estop the recipient from also pursuing an ADA claim.  The ADA defines "qualified individual" to include disabled persons who can perform essential functions of a job with reasonable accommodation.  The Social Security Administration, on the other hand, does not take the possibility of reasonable accommodation into account in determining whether a person is disabled for disability insurance purposes.  Thus, courts should not erect a rebuttable presumption that a person who applies for or receives Social Security disability benefits is prevented from asserting that he is a qualified individual with a disability entitled to invoke the protections of the ADA.  Nevertheless, a recipient must explain why a claim for Social Security disability is consistent with an ADA claim, and the court should require an explanation of any apparent inconsistency.  Cleveland v. Policy Management System, No. 97-1008 (May 24, 1999). 

§ 2.01CIRCUIT AND DISTRICT COURT DECISIONS DEFINING "DISABILITY"

[1]   Physical or Mental Impairments Substantially Limiting a Major Life Activity[1]

[a]   Cases Where Plaintiff Has or Could Have a Substantially Limiting Impairment

That the Supreme Court's decision in Sutton does not necessarily mean the end of ADA suits by individuals who take medication to control their physical or mental impairment is highlighted by the Ninth's Circuit's decision.

McAlindin v. County of San Diego, 201 F.3d 1211 (9th Cir. 1999). In that case, the court of appeals reversed the lower court's grant of summary judgment to the County of San Diego with respect to the claim of an employee who had been diagnosed as suffering from anxiety, panic, and somatoform disorders.  The district court had dismissed McAlindin's claim on the basis that he failed to establish that he was substantially limited in any major life activities.  The Ninth Circuit disagreed, finding that McAlindin had raised a triable issue as to whether he was substantially limited in the major life activities of engaging in sexual relations, sleeping, and interacting with others. 

The court of appeals concluded that engaging in sexual relations was an ADA major life activity in light of the Supreme Court's decision in Bragdon v. Abbott, 524 U.S. 624 (1998), where the Court recognized that reproduction and the sexual dynamics surrounding it are central to the life process itself.  The court of appeals also determined that sleeping would be a major life activity, since an individual who sleeps the recommended eight hours every day spends one-third of each day sleeping and sleeping is critical to maintaining personal health.  Finally, the Ninth Circuit concluded that interacting with others would constitute a major life activity because it is an essential, regular function.  In considering McAlindin's situation, the court of appeals found that a factual issue existed as to whether McAlindin's mental impairments limited these major life activities.  McAlindin had submitted affidavit testimony that he was impotent as a result of medications he was taking, that he experienced difficulty sleeping at night because his medications disrupted his normal sleep patterns, and that his fear reaction and total inability to communicate at times inhibited his interaction with others.  The court emphasized that the use of medication may not eradicate the effects of a mental or physical impairment and a disability under the ADA may arise either due to the symptoms of the condition itself or as a result of the medication's side effects.   

In Taylor v. Phoenixville School Dist., 174 F.3d 142 (3d Cir. 1999), in which the court of appeals upheld its earlier decision reversing the district court's grant of summary judgment in favor of the employer with respect to the ADA claim of a secretary with bipolar disorder.  In reversing the district court, the court of appeals held that a jury should decide whether the secretary's bipolar disorder and the side effects from the Lithium she took to control the disorder, limited her abilities to think care for herself, concentrate, and interact with others.  The court noted that the secretary had been confined to a hospital because she was psychotic, had become increasingly agitated, and that she suffered paranoid delusions that persons were trying to kill her.  The court of appeals also found that the secretary's employer school district had more than enough information to put it on notice that the secretary might be disabled due to her bipolar disorder.  In addition, the court found that when the secretary's son asked for "accommodations" from the school district, the district bore the burden of seeking whatever additional information it may have needed pertaining to the secretary's disability and possible accommodations.  Accordingly, the court of appeals held that a reasonable jury could conclude that the school district failed to engage in an interactive process of seeking accommodations for the secretary and, hence, failed to fulfill its ADA obligations. 

In Durrant v. Chemical/Chase Bank/Manhattan Bank, 81 F. Supp.2d 518 (S.D.N.Y. 2000), the federal district court for the Southern District of New York denied summary judgment to the employer.  The court found that a factual issue existed as to whether a discharged employee with a leg injury, who subsequently developed depression, had a disability under the ADA.  The court acknowledged that because the plaintiff's leg injury was a temporary, non-chronic problem, this did not constitute a disability.  Nonetheless, the district court found that a factual issue existed as to whether the severity of the plaintiff's depression, its anticipated duration at the time of her discharge and its permanent or long-term impact, could substantially limit the plaintiff's major life activity of working.  The court also found that a factual issue existed as to whether the former employee, who had been on medical leave for her leg injury and who was discharged while she was being hospitalized for depression, was a qualified individual who could have returned to work and performed her essential job functions had she been given additional medical leave as a reasonable accommodation. 

In Amir v. St. Louis University, 184 F.3d 1017 (8th Cir. 1999), the court of appeals upheld the district court's conclusion that a former medical student's Title II claim could proceed because the student had sufficiently demonstrated that his obsessive compulsive disorder constituted an ADA disability.  The district court had found that the plaintiff's disorder affected his ability to eat and drink without vomiting, his ability to concentrate and learn, and his ability to get along with others.  Although the court of appeals questioned whether the "ability to get along with  others" constituted a major life activity, it conceded that "eating, drinking, and learning were major life activities" and, accordingly, that the plaintiff had established coverage under the ADA.

[b]   Cases Where Plaintiff Does Not Have a Substantially Limiting Impairment 

In Schneiker v. Fortis Insurance Co., 200 F.3d 1055 (7th Cir. 2000), the Court of Appeals for the Seventh Circuit upheld the district court's grant of summary judgment dismissing the ADA claim of a former employee with depression.  The court found that the former employee had failed to demonstrate that her depression had substantially limited her ability to work, despite her contention that her depression was triggered by stress.  In so holding, the circuit court pointed out that there was no evidence that the plaintiff's inability to work in stressful situations precluded her from a class of jobs.  The record showed only that she could not work for particular supervisor, and conflict with a supervisor alone did not establish that the plaintiff met the definition of disability under the ADA.   

In Spades v. City of Walnut Ridge, 186 F.3d 897 (8th Cir. 1999), the Eighth Circuit Court of Appeals upheld the district court's dismissal of an ADA claim filed by a former police officer who was terminated after he attempted suicide by inflicting a gun shot wound to his head.  Following his suicide attempt, the plaintiff had received treatment, including medication and counseling for depression, and the plaintiff alleged that he was capable of returning to work and performing his duties as a police officer.  However, his employer, the City of Walnut Ridge, refused to re-employ the plaintiff after being advised that because it had knowledge of the plaintiff's violent use of a firearm, his continued employment with the city as a police officer would increase the city's exposure to legal liability.  As a consequence, he was terminated.  The court of appeals upheld the district court's grant of summary judgment on the basis that the plaintiff had failed to establish that he was disabled under the ADA in light of the Sutton and Murphy opinions.  The court noted that the record showed that the plaintiff took medication and received counseling for his depression and the plaintiff conceded that this treatment allowed him to "function without limitation."  Thus, the court concluded that the plaintiff's "depression is corrected and cannot substantially limit a major life activity - a requirement for finding that an individual is disabled within the meaning of the ADA."  The court also found that the plaintiff could not establish that he had been regarded as being disabled because the record did not support any allegation that the city perceived the plaintiff as disabled within the meaning of the Act. 

In Leisen v. Shelbyville, 135 F.3d 805 (7th Cir. 1998), the Seventh Circuit upheld the district court's grant of summary judgment to the plaintiff's former employer, the City of Shelbyville Fire Department, because the plaintiff failed to establish that her claimed "depression" substantially limited any major life activity and there, even if it did, that she was a qualified individual with a disability.  The plaintiff, who had been hired as a firefighter for the city of Shelbyville, had been terminated when she failed to gain state certification as a paramedic, which her employment contract required.  The plaintiff attributed her inability to obtain certification to her emotional disabilities, and the plaintiff's counselor testified that the plaintiff suffered from "sleep problems, memory problems, crying and anxiety, suicidal ideation [and] ... some depression."  Even if plaintiff had a recognized mental impairment, the district court found that it did not qualify as an ADA covered "disability" because the plaintiff was not substantially limited in any major life activity. 

The Court of Appeals upheld the district court's determination.  Even though the plaintiff had difficulty obtaining certification as a paramedic, this did not show that she was substantially limited in the major life activity of learning "any more than the fact that a particular individual might not be able to pass a course in physics or philosophy would allow an inference that all learning activity was substantially limited."  Similarly, the appeals court noted that the record contained no evidence to establish that the plaintiff was substantially limited in the major life activity of working since "not everyone can be a firefighter, and [plaintiff] showed at most that her disability interfered with her ability to perform that particular job."  Alternatively, the court of appeals upheld the district court's ruling that the plaintiff was not a qualified individual with a disability because the requirement to obtain a paramedic certification was a reasonable one, and "that an employer does not have to change basic job qualifications just because someone is disabled."

In Hoeller v. Eaton Corporation, 149 F.3d 621 (7th Cir. 1998), the court of appeals upheld the district court's grant of summary judgment in favor of the employer, Eaton Corporation, on the plaintiff's claim that Eaton terminated his employment because of his bipolar disorder.  Although the disorder produced mood swings from depression to mania, the court of appeals found that the plaintiff had failed to establish that his bipolar disorder substantially limited any major life activities.  The court noted that there was no evidence that plaintiff's disorder substantially limited his "thought processes" or his "communication skills and interpersonal relationships." 

An elementary school guidance counselor with a history of depression was held not to be covered by the ADA because the employee's depression was not severe enough to substantially limit a major life activity.  Olson v. Dubuque Community School District, 137 F.3d 609 (8th Cir. 1998).  The Eighth Circuit Court of Appeals agreed with the district court's grant of summary judgment in favor of the employer on the basis that the guidance counselor was not disabled.  The undisputed evidence showed that the counselor reported to work regularly and felt that she was able to perform her job in a satisfactory manner, despite periodic episodes of depression.  The guidance counselor also failed to demonstrate that her employer regarded her as having a disability.  Although the employer knew that the guidance counselor had a history of depression, this information, without more, did not establish that it regarded her as having a disability covered by the ADA. 

In Cody v. Cigna Healthcare, 139 F.3d 595 (8th Cir. 1998), the plaintiff, Carole Cody, worked in St. Louis as a nurse for Cigna Healthcare.  Cody claimed that she suffered from depression and anxiety, and, as a consequence, it was difficult for her to go to certain parts of the city she considered dangerous.  As a result of co-worker complaints about Cody's strange behavior and that Cody had spoken about carrying a gun, Cigna scheduled a meeting with Cody who arrived with a noticeable bulge in her purse.  A local security specialist was sent to the meeting and Cigna offered Cody a paid leave of absence with her return contingent upon undergoing a psychiatric evaluation.  Cody left the meeting and when she refused to return to work, Cigna terminated her. 

Cody, thereafter, filed suit under the ADA and the Missouri Human Rights Act, but the district court dismissed the case on the basis that Cody was unable to establish that she was disabled.  The Eighth Circuit affirmed, concluding that even though Cody was diagnosed with depression, there was no evidence that her mental impairment substantially limited any of her major life activities.  Although Code claimed that she experienced anxiety in elevators, driving and entering high-crime areas, the court concluded that Cody's statements only demonstrated that her depression "caused difficulties in her life, she did not show it was such a substantial impairment as to amount to a disability under the ADA.." 

In addition, the court concluded that the evidence did not establish that Cigna regarded Cody as having an impairment.  Although Cody argued that Cigna's offering her paid medical leave and requiring that she see a psychologist before returning to work indicated that Cigna viewed her as disabled, the court of appeals disagreed.  The court reasoned that "an employer's request for a mental evaluation is not inappropriate if it is not obvious that an employee suffers from a disability" and "a request for an evaluation is not equivalent to treatment of the employee as though he were substantially impaired."  According to the appeals court, "while some of Cody's behavior may have been unusual, the evidence that she submitted does not establish that Cody was treated as if she were disabled."

A discharged nurse, who was diagnosed with depression and breast cancer, was held not to be substantially limited in any major life activity in Lusk v. Christ Hospital, 2000 U.S. Dist. LEXIS 2691 (N.D. Ill. February 29, 2000).  The federal district court for the Northern District of Illinois found that there was no evidence to suggest that the plaintiff's impairment affected her performance as a licensed practical nurse (LPN) or substantially limited her ability to work generally.  The plaintiff had made only a bare assertion that her impairments limited her ability to work as an LPN at a performance level she had achieved for 14 years prior to the onset of her physical and mental impairments.  The plaintiff also failed to show that her former employer was aware of her depression.  The plaintiff did not tell her employer that she had been diagnosed as being clinically depressed until the day she was given an indefinite suspension.  Even though the plaintiff's supervisor  recognized that she was facing "substantial emotional difficulties," the district  court found that this did not mean that the employer knew she had a disability.

In McConnell v. Pioneer Hi-Bred International, 2000 U.S. Dist. LEXIS 3355 (D.S.D. January 24, 2000), the federal district court for South Dakota dismissed on summary judgment, the claim of a discharged employee who took lithium daily to treat his bipolar disorder.  The court determined that the plaintiff failed to establish that his bipolar disorder constituted a disability under the ADA because, according to the plaintiff's own testimony, he felt fine while taking lithium and he did not present any medical evidence to show that his bipolar disorder substantially limited his ability to do his job at the time of his discharge.  The district court also found that the employer did not regard the plaintiff as disabled when it sought medical expert advice to determine whether the problems with the plaintiff's job performance were related to his bipolar condition.  The court reasoned that an employer should not be punished for obtaining expert medical opinion, rather than reaching misperceptions based upon non-medical, lay interpretations of limitations that bipolar disorder might cause.  The medical expert had informed the employer that the problems the plaintiff was experiencing in the workplace were not the result of his bipolar disorder, but rather were due to his basic personality traits.

In Robb v. Horizon Credit Union, 66 F. Supp.2d 913 (C.D. Ill. September 14, 1999), the federal district court for the Central District of Illinois, held that a former employee with depression did not have a disability covered under the ADA even though she suffered a mental impairment that affected her life activities.  Because Supreme Court precedent requires that the effects of anti-depressant medication be taken into consideration, the district court found that the former employee's depression did not substantially limit any of her major life activities.  The former employee conceded that as long as she was taking her medications, she was capable of working and was not substantially limited in any major life activity.

A former fraud investigator, who allegedly suffered from bipolar disorder and obsessive compulsive disorder failed, to demonstrate that he was disabled under the ADA and, hence, his case was dismissed on summary judgment by the district court of Kansas in Sherrer v. GE Capital Corporation, 9 AD Cases (BNA) 1820 (D. Kan. July 2, 1999).  Although the plaintiff contended that his mental impairments occasionally caused him to speak too quickly, limited his ability to learn and limited his ability to work, the court ruled that these limitations were not substantially limiting.  The court emphasized that the plaintiff had acknowledged that when he took his medications, he generally could control the symptoms of his mental disorders.

In Bowers v. Multimedia Cablevision, Inc., 10 AD Cases (BNA) 671 (D. Kan. August 10, 1999), the federal district court for Kansas granted summary judgment to the employer and dismissed a former employee's claim that his psychological condition constituted an ADA-covered disability because it substantially limited his ability to work.  The plaintiff's physician testified that the plaintiff continued to have some problems dealing with "co-workers and the like," but the evidence demonstrated that the plaintiff was responding well to his medication, that his condition was temporary, and that he had been successfully employed as a computer programmer following his discharge from the defendant.

[c]   What Constitutes a Major Life Activity? 

A former employee's depression was held not to constitute an ADA covered disability in Pack v. K Mart Corporation, et al., 166 F.3d 1300 (10th Cir. 1999), because the depression did not substantially limit her major life activities.  The plaintiff and the EEOC, as amicus curiae, contended that the depression substantially limited the plaintiff's major life activities of sleeping and concentrating.  The Tenth Circuit agreed that sleeping is a major life activity, reasoning that it "is a basic activity that the average person in the general population can perform with little or no difficulty, similar to the major life activities of walking, seeing, hearing, speaking, breathing, etc."  However, the court held that concentration, in and of itself, is not a major life activity, although it may be a "significant and necessary component of a major life activity, such as working, learning or speaking." 

In considering the extent to which the plaintiff's depression limited her major life activity of sleeping the court noted that the plaintiff had episodes of sleep disruption and waking without feeling rested.  Nevertheless, the court found no indication that the plaintiff's sleep problems were severe, long term, or had a permanent impact upon the plaintiff.  In addition, the court noted that the plaintiff's physician was able to control the plaintiff's sleep problems with medication, even going too far in some instances, and making the plaintiff too sleepy or drowsy.  According to the court, this evidence confirmed that the plaintiff's major life activity of sleeping was not substantially limited by her depression.

In Reeves v. Johnson Controls, 140 F.3d 144 (2d Cir. 1998), the court of appeals upheld the district court's decision that a former employee who suffered from a panic disorder with agoraphobia was not covered by the ADA, despite the contention that his condition substantially limited the major life activity of "every day mobility."  Although plaintiff could not travel over bridges or through tunnels, board trains unaccompanied, or drive along routes prone to traffic tie-ups, the court found that the plaintiff was sufficiently mobile to travel to and from work on a regular basis.  The court stated that an ADA plaintiff may not tailor the definition of "major life activity" to fit the specific circumstances of the impairment, which is what the plaintiff in Reeves was trying to do.  Also, the court questioned whether "everyday mobility" should be considered a "major life activity."

[d]   Substantial Limitations in Working 

Former employee who suffered from depression and anxiety disorders that rendered him unable to cope with stress or to work in unduly stressful environments was not substantially limited in the major life activity of work.  Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997), aff'd sub nom., Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998).  The court determined that "unduly stressful" jobs do not constitute a recognized occupational classification, and, hence, the plaintiff was not significantly restricted in his ability to perform either a class or jobs or a broad range of jobs in various classes.  Further, to the extent that the plaintiff claimed that in order to accommodate his depression and anxiety disorders he merely needed to be transferred away from a certain supervisor, the court reasoned that he was not disabled under the ADA.

[2]   Being Regarded as Disabled

[a]   Employer Perceived or May Have Perceived Individual as Disabled

A company president who was demoted after he received treatment for cancer was held not to be actually disabled under the ADA, even though his monthly chemotherapy treatments affected his ability to perform his job-related functions.  EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999).  In so holding, the court of appeals noted that the plaintiff's cancer had gone into complete remission and the plaintiff's doctors had cleared him for unqualified return to work.  The court, however, remanded to the district court on the issues of whether the plaintiff could establish a record of a disability or being regarded as disabled.  With respect to a record of a disability, the court emphasized that the plaintiff would need to make an individualized showing that he had a record of an impairment that substantially limited one or more major life activities.  The court rejected the EEOC's statement in its Interpretive Guidance, 29 C.F.R. § 1630.2 App., that the ADA "protects former cancer patients from discrimination on the basis of their prior medical history."  The court pointed out that it is not enough for a plaintiff simply to show that he has a record of a cancer diagnosis; in order to establish the existence of an ADA-covered "disability," there must be a record that the impairment substantially limits one or more major life activities.  In addition, the court emphasized that on remand, the plaintiff would need to show that the employer regarded his cancer as substantially limiting one or more major life activities.  In so ruling, the court of appeals rejected the employer's contention that its offer of another position to the plaintiff conclusively disproved the plaintiff's allegation that he was perceived as being disabled.  The court noted that the offer could have been pretextual and that a "pretextual offer cannot shield the employer from ADA liability for its discriminatory action."

[b]   Employer Did Not Perceive Individual as Disabled 

A police department's requirement that a police officer with depression undergo a medical evaluation and be supervised by a physician was upheld in Krocka  v. City of Chicago, 203 F.3d 507 (7th Cir. 2000).  The Seventh Circuit Court of Appeals concluded that the police department's requirements were not evidence that the department regarded the police officer as being disabled.  Even though the results of the police officer's medical evaluation might indicate the police department's perception of the officer's ability to function on the job, the court said this was not evidence that the department regarded him as disabled.  The circuit court found that once the department learned that the officer was experiencing mental health difficulties, it was reasonable for the department to evaluate the officer's fitness for duty, especially because of the significant safety concerns presented by a police officer's position.

 

In Watson v. City of Miami Beach, 177 F.3d 932 (1999), the Eleventh Circuit had held that a police department had not violated the ADA when it ordered a fitness-for-duty examination of a police officer who had overreacted in a situation and was regarded as paranoid.  The examination found that the plaintiff, Watson, was "somewhat obsessional in style and experiencing symptoms typically associated with stress."  The doctor who conducted the examination recommended that Watson return to work with appropriate stress management counseling.  The court of appeals found that the police department had good cause for concern as to whether Watson was fit to be an officer and, accordingly, that the fitness for duty examination was job related and consistent with business necessity: 

Police departments place armed officers in positions where they can do tremendous harm if they react irrationally.  Contrary to Watson's contention, the ADA does not, indeed cannot, require a police department to forego a fitness-for-duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries. 

The Eleventh Circuit also found that Watson had not presented sufficient evidence to show that he was regarded as having a mental impairment.  Watson had pointed to evidence that other police officers regarded him as "paranoid," "disgruntled," "oppositional," "difficult to interact with," "unusual," "suspicious," "threatening," and "distrustful."  The court of appeals found that these characterizations of Watson's behavior merely showed that he had "serious personality conflicts with members of his department" but that such conflicts do not rise to the level of a mental impairment under the ADA.

In Duncan v. State of Wisconsin Dept. of Health and Family Services, et al., 166 F.3d 930 (7th Cir. 1999), the plaintiff was employed as a youth counselor at a correctional facility for young males operated by the State of Wisconsin.  The plaintiff was terminated two months after an incident in which one of his young charges complained that plaintiff had been verbally abusive.  The incident prompted the correctional facility to order the plaintiff to submit to various psychological tests at the state's expense.  The plaintiff completed some, but not all, of the program the psychiatrist recommended for him.  After plaintiff missed several meetings with counselors and officials of the correctional facility, he was fired.  The plaintiff then sued under Title II of the ADA, which prohibits discrimination by state and local governments, and the Rehabilitation Act of 1973.  The district court granted summary judgment in favor of the State of Wisconsin, and the Seventh Circuit upheld the district court's determination.  The court of appeals agreed with the district court that the plaintiff was not covered under the ADA or the Rehabilitation Act as being "disabled" even though the plaintiff had argued that the correctional facility officials had regarded him as having a personality disorder, and as being substantially limited in the major life activity of working.  The Seventh Circuit pointed out that the plaintiff had demonstrated that he was regarded only as having trouble performing one specific job - not working in general.  The court noted that because the correctional facility officials had responded to problems in the plaintiff's unit by transferring him to another facility, this indicated that the officials believed he could work successfully in a slightly different environment.

In Newberry v. East Texas State University, et al., 161 F.3d 276 (5th Cir. 1998), the Fifth Circuit affirmed the lower court's dismissal of the ADA claims of a tenured university professor who had been discharged because of his poor work performance and lack of collegiality.  Although the professor had been diagnosed with depression, and one of his supervisors knew this fact, the court of appeals emphasized that the university had dismissed him because of his work performance and lack of collegiality.  The court noted there was no evidence that the perception of plaintiff as being mentally ill had been a motivating factor in his dismissal.  The court of appeals contrasted this situation with that of an employer who regarded mentally ill people as inherently dangerous and, then, to avoid the danger, fired an employee with a mental illness.  The circuit court, therefore, upheld the jury verdict that the plaintiff was not a qualified individual with a disability under the ADA.  As stated by the court, the plaintiff's dismissal came about not because of others' attitudes about the disorder, but because his behavior interfered with his job performance "and perhaps because the behavior displeased others."

In Witter v. Delta Air Lines, Inc., 138 F.3d 1366 (11th Cir. 1998), the court held that in order for an employee to be regarded as disabled, the employer must believe that the employee is unable to perform a class of jobs, not just a single job.  The plaintiff was an airline pilot who had suffered from a bipolar disorder and was grounded for a period of time.  Subsequently, the airline's doctor determined he was qualified to fly unless there was any future unusual behavior.  Later, plaintiff and his co-employees filed claims against each other due to difficulties flying together.  The two other crew members considered plaintiff to present a safety hazard.  The airline's doctor re-evaluated plaintiff, determined he had a Narcissistic Personality Disorder, and suggested he be grounded.  The court ruled that the plaintiff had failed to show that the employer regarded him as being disabled because he was restricted only from an airline pilot position.  The court found that this restriction was not broad enough to substantially limit his employment opportunities, because there were many other jobs that plaintiff could have held with his experience and education.

§ 3.01WHO IS A QUALIFIED INDIVIDUAL WITH A "DISABILITY"?

[1]   Employees Who Were Qualified Individuals

In Haschman v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998), the appeals court upheld a jury verdict for the plaintiff, finding that she was a qualified individual with a disability entitled to pursue an ADA claim.  Plaintiff suffered from systemic lupus erythematosus and suffered periodic flare-ups, which required her to take a leave of absence.  When plaintiff requested a second leave, she was terminated.  The employer contended that plaintiff failed to perform the essential functions of her job prior to her leave of absence, due to her poor job performance.  The court, however, found that plaintiff's poor job performance was not documented until she suffered a flare-up of her lupus.  Accordingly, the court determined that there was sufficient evidence to support a jury finding that plaintiff had performed the essential functions of her position and was terminated in violation of the ADA.

In Norris v. Sysco Corp., 191 F.3d 1043 (9th Cir. 1999), the Ninth Circuit held that a former employee who received total disability benefits from the employer's insurance carrier and from the state was not judicially estopped from pursuing an ADA claim.  The court found that the record failed to demonstrate that the ADA's definition of disability and the definitions of disability under the employer's insurance plan and the state disability plan were so congruent that judgment should be entered against the former employee.  The court noted that there was an explanation for any inconsistencies in the record and that juries are regularly called upon to consider evidence of inconsistencies.  Further, the court of appeals pointed out that the nature of an individual's disability may change over time, which may explain any inconsistencies.

[2]   Employees Who Were Not Qualified Individuals

An employee who suffered from depression and anxiety and who was discharged for excessive absenteeism was held by the Eighth Circuit in Greer v. Emerson Electric Co., 185 F.3d 917 (8th Cir. 1999), not to be a qualified individual with a disability.  The court found that regular and reliable attendance was an essential function of the employee's job and the employee admitted that she was discharged for no reason other than absenteeism.

In Loeb v. Trans World Airlines, Inc., 1999 U.S. App. LEXIS 25475 (8th Cir. October 12, 1999), the Eighth Circuit Court of Appeals upheld the district court's grant of summary judgment dismissing the claims of a discharged employee who applied for and received Social Security disability benefits after being diagnosed with depression, manic depression, obsessive compulsive disorder and alcoholism.  The court found that the discharged employee had failed to prove that she was able to perform the essential functions of her job even with reasonable accommodation.  The former employee failed to explain how her sworn representations to the Social Security Administration that she was unable to work were consistent with her ADA claim that she could perform her job with accommodations.

A 20-year employee, who was fired for verbally abusing and striking a female co-worker, has no ADA claim despite the employee's contention that his outburst was caused by post traumatic stress disorder.  Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047 (5th Cir. 1998).  The court ruled that the plaintiff had failed to show that his diagnosis of PTSD was a disability under the ADA because the plaintiff admitted that his PTSD was a temporary condition stemming from an episode that occurred four months before his discharge.  Accordingly, the court found that the plaintiff's PTSD did not substantially limit him in any major life activity, including working.  In addition, even if the plaintiff had an ADA disability, the employer did not violate the statute by firing him for cursing at a female manager and slapping her hand down.  "The ADA does not insulate emotional or violent outbursts blamed on an impairment....  An employee who was fired because of outbursts directed at fellow employees has no ADA claim."  The court reasoned that the plaintiff's discharge was "not discrimination based on PTSD, but rather his failure to recognize the acceptable limits of behavior in a workplace environment."  According to the court, the plaintiff "cannot hide behind the ADA and avoid accountability for his actions."

In Barbera v. DiMartino, 702 A.2d 1370 (N.J. App. 1997), cert. denied, 708 A.2d 64 (1998), plaintiff, Thomas Barbera, Jr., was terminated as an Assistant Trial Court Administrator after having assaulted his supervisor.  Barbera suffered from a psychiatric disability and the assault was a product of Barbera's medical condition.  Barbera sued under the New Jersey Law Against Discrimination, alleging that he was terminated because of his disability.  After trial, the jury returned a verdict in favor of the employer and Barbera appealed.  The court of appeals affirmed the jury's verdict.  The court said, "we see no reason why ... employers subject to laws protecting the handicapped and disabled nonetheless should not be able to take appropriate action on account of egregious or criminal conduct of an employee, regardless of whether the employee's disability contributed to the conduct."

! Collins v. Blue Cross/Blue Shield of Mich., 1998 Mich. App. LEXIS 73 (Mich. Ct. App. 1998).  Where an employee expressed having homicidal thoughts about killing her supervisor, the employer did not engage in discrimination by terminating the employee.  The case, which was decided under the Michigan Handicappers Act, involved an employee who took a leave of absence for job stress after her supervisor criticized her job skills.  During the leave, the employee was diagnosed with depression.  To confirm the employee's eligibility for disability benefits, the employer sent her to another psychiatrist for an independent medical examination (IME).  During the IME, the employee stated that she had killed her supervisor in her mind a thousand times and that she wanted to blow away her supervisor.  Based on the threats contained in the IME report, the employer terminated the employee.  The employee filed a complaint alleging disability discrimination, which was arbitrated.  The arbitrator agreed with the plaintiff and ordered that the employer put her back to work under a different supervisor.  The Michigan appellate court reversed the decision, holding that the law does not require an employer to establish that an employee will affirmatively act on homicidal thoughts and that the employer reasonably believed the employee to be a threat in the workplace.

§ 4.01WHAT DOES AND DOES NOT CONSTITUTE DISCRIMINATION UNDER THE ADA?

[1]   Establishing Discrimination

The ADA's prohibition on discrimination "because of the disability" of a qualified individual with a disability was interpreted by the Seventh Circuit in Foster v. Arthur Andersen, LLP, 168 F.3d 1029 (7th Cir. 1999), to mean that disability was a motivating factor in the employment decision.  In so ruling, the court looked to the language of the Civil Rights Act of 1991, which states that an impermissible consideration must not be a "motivating factor" of the employment decision.  In the case before it, the court held that the plaintiff had failed to show that she was discharged because of her tendinitis.  The court found that the fact that the plaintiff was discharged one day after she requested accommodation for her tendinitis was not a per se indication that she was discharged because of her disability.  The employer had longstanding complaints about the plaintiff's performance, the plaintiff was on final warning status, and despite these warnings, the plaintiff violated the employer's policies by arriving late for work and failing to inform the employer of her tardiness.

A supervisor's alleged comment about a plaintiff with attention deficit disorder that he was "the mentally ill guy on Prozac that is going to shoot the place up," was held by the Sixth Circuit in Hopkins v. Electronic Data Systems, 9 AD Cases (BNA) 1724 (6th Cir. November 15, 1999), as not constituting direct evidence that the employee was discriminated against on the basis of disability when he was discharged after his position was eliminated.  The court reasoned that the comment was the only slur about the employee's disability alleged to have been made and the slur could not be interpreted as either denigrating the employee's job performance or expressing satisfaction at his misfortune of having a disability.

In a case brought under the federal Rehabilitation Act, the court in Thurston v. Henderson, 10 AD Cases (BNA) 615 (D. Me. March 8, 2000), ruled that a Postal Service employee with anxiety disorder was not subjected to a hostile work environment on the basis of his disability.  The plaintiff had alleged a number of hostile incidents, including confrontation with a co-worker, another co-worker's remark about plaintiff being "too stressed out," a "suicide watch" comment by another co-worker, and co-workers' avoidance of him.  According to the district court, these incidents were not sufficiently severe or pervasive to create a factual issue as to whether plaintiff experienced a hostile work environment.

[2]   Punitive Damages

In EEOC v. Wal-Mart Stores, Inc., 1999 U.S. App. LEXIS 20015 (10th Cir., August 23, 1999), the Tenth Circuit Court of Appeals upheld a punitive damages award in favor of a former Wal-Mart employee with a hearing impairment who had been suspended and terminated after he refused to participate in training that was conducted without a sign language interpreter.  The court of appeals reached this conclusion notwithstanding the fact that Wal-Mart had a written anti-discrimination policy.  The court of appeals found that the policy, in and of itself, was not enough to show that the company had made good faith efforts to comply  with the ADA.  According to the court, the "evidence demonstrates a broad failure on the part of Wal-Mart to educate its employees, especially its supervisors, on the requirements of the ADA and to prevent discrimination in the workplace...."

[3]   Medical Examinations

In Harris v. Harris & Hart, Inc., 206 F.3d 838 (9th Cir. 2000), the Ninth Circuit recognized that an employer may make a medically-related pre-employment inquiry in the case of a rehiring situation.  The case involved a plaintiff sheet metal worker with carpal tunnel syndrome, who had previously requested reasonable accommodation from the employer for his disability.  When the manufacturer failed to provide the worker with the requested accommodation, he resigned.  Only 12 days later, the worker, through the union hiring hall, requested reemployment with the manufacturer.  Before rehiring the worker, the manufacturer requested that the sheet metal worker provide a medical release from his physician.  Because the worker did not provide the medical release, he was not hired by the manufacturer.  The worker then sued, claiming that the manufacturer's request constituted an impermissible pre-employment inquiry under the ADA.  The Ninth Circuit rejected this assertion.   The court of appeals noted that the ADA specifically permits an employer to require a medical examination of an injured employee returning to work to determine fitness to perform essential job functions.  According to the circuit court, common sense would dictate similar treatment of former employees with known disabilities, such as the plaintiff.

In Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999), the Eleventh Circuit Court of Appeals held that a police department did not violate the ADA when it ordered a fitness for duty examination of a police officer who had overreacted in situations and was regarded as paranoid.  The court reasoned that the department had good cause for concern as to whether plaintiff was fit to be a police officer and that such an examination was job-related and consistent with business necessity whenever an officer is reasonably perceived to be mildly paranoid, hostile or oppositional.  The circuit court emphasized that the ADA does not require a police department to forego mental examinations until perceived threats by its officers become real or until questionable behavior results in injuries to the public. 

In Sullivan v. River Valley School District, 197 F.3d 804 (6th Cir. 1999), the Sixth Circuit Court of Appeals held that a school district did not violate the ADA when it requested that a teacher undergo a mental and physical fitness for duty examination after the teacher allegedly exhibited odd behavior.  The court noted that the teacher's behavior and the advice the school district received from an outside healthcare professional had given the school district legitimate reason to believe that an examination of the teacher was needed in order to determine whether he could perform the essential job functions.   

In Cossette v. Minnesota Power & Light, 1999 U.S. App. LEXIS 19290 (8th Cir., August 17, 1999), the Eighth Circuit joined with the Ninth and Tenth Circuits in holding that the ADA protects all employees, not merely those who are disabled within the meaning of the statute, from an employer's unauthorized disclosure of medical information.  In so holding, the court ruled that a former Minnesota Power & Light employee could proceed with her claim that the company violated the ADA's restrictions on the disclosure of medical information.  The court of appeals found that the former employee had submitted sufficient evidence that she had been harmed by the unauthorized disclosure:  a 15 month delay in being hired for a better paying job.  The plaintiff also had alleged that as a result of the disclosure, she was treated by co-employees at Minnesota Power in a condescending and patronizing manner and the court of appeals directed the lower court to address whether this treatment would constitute sufficient tangible injury to state a claim under the ADA.

In Miller v. City of Springfield, 146 F.3d 612 (8th Cir. 1998), the court of appeals upheld a city police department's requirement that applicants for police officer positions take and achieve a certain score on the MMPI-II, a psychological test that is designed in part to measure depression.  The court reasoned that "we easily conclude that appropriate psychological screening is job-related and consistent with the business necessity where the selection of individuals to train for the position of police officer is concerned."

In Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998), the court addressed the question of whether a non-disabled job applicant has a private right of action if he or she was subjected to a pre-employment medical examination and inquiry in violation of the ADA's limitation on medical inquiries and no injury arose from the violation.  The court was unable to find any indication in either the text of the ADA or the legislative history "that a violation of the prohibition against pre-employment medical examinations and inquiries, in and of itself, was intended to give rise to damages liability."  Accordingly, the court held that "damages liability ... must be based on something more than a mere violation of that provision.  There must be some cognizable injury in fact of which the violation is a legal and proximate cause for damages to arise from a single violation."  Plaintiff also sought injunctive relief ordering the defendant to cease requiring prospective employees to complete medical data in their applications.  In addressing plaintiff's equitable claim, the court held that the plaintiff lacked standing to seek either injunctive or declaratory relief.  The Fifth  Circuit reasoned that the plaintiff alleged only a single violation and there was no likelihood that he would be subject to a similar violation in the future.

[4]   Distinctions in Benefits Between Physical and Mental Disabilities

In Weyer v. Twentieth Century Fox, 198 F.3d 1104 (9th Cir. 2000), the Ninth Circuit court of appeals held that Title I and Title III of the ADA did not prohibit an employer from offering insurance policies that provide different levels of benefits to persons with different types of disabilities.  The case involved a former employee's challenge to her former employer's long-term disability insurance policy that capped benefits for conditions caused by mental disabilities, but provided coverage through age 65 for persons with disabling conditions caused by physical impairments.  The court reasoned that insurance distinctions that apply equally to all employees with disabilities cannot be discriminatory.  Had Congress intended to have the ADA affect traditional coverage, the Ninth Circuit reasoned that Congress would have spoken more plainly in the statute and Congress would not have adopted or rejected subsequent legislation on the issue.

In Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453 (6th Cir. 1998), plaintiff sued her employer and health insurer under Titles I, II and III of the ADA, claiming that providing lesser health care benefits for mental illness than for physical ailments constituted disability discrimination.  The court, relying on Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997), cert. denied, 522 U.S. 1084, 118 S.Ct. 871 (1998), affirmed the district court's grant of summary judgment for the defendants.  The court of appeals dismissed plaintiff's Title I and II claims as "untenable" in light of the Parker decision.  The court reiterated the teachings of Parker that "the ADA ... does not prohibit an insurance company from differentiating between different disabilities."  In addressing the plaintiff's Title III claim, the circuit court stated "[e]ven if the policy is deemed a good or service provided by the place of public accommodation, Lenox is not complaining about physical access to a place of public accommodation....  Rather, she is complaining about mix of goods and services offered by an insurance company."  The court interpreted Parker as clearly rejecting such complaints as constituting disability discrimination.

In Castellano v. City of New York, 142 F.3d 58, cert. denied, 119 S.Ct. 60 (1998), the Second Circuit addressed whether retired employees bringing suit against their former employer under Title I of the ADA for disability discrimination in providing disability benefits were "qualified individuals with a disability" under Title I.  The employment action occurred after the plaintiffs were no longer employees and after many of the plaintiffs lost the ability to perform the essential functions of their former positions.  In examining this situation, the court of appeals noted that the legislative history was unhelpful since it focused on situations where "the inability to perform essential functions may not have arisen at the time of the discriminatory employment action."  As an alternative to the legislative history, the court examined the purpose underlying the "essential functions" requirement, which is to enable employers not to hire (or to terminate) disabled employee who are unable to perform their jobs.  In the case of retired employees seeking fringe benefits, this concern is not implicated.  Instead, the relevant concern is whether the former employees were able to perform the essential functions of their positions when they were employed and on that basis became entitled to certain fringe benefits.  Because the plaintiffs satisfied this requirement, the court ruled that the retired employees were "qualified individuals" and could pursue their ADA challenge to the differentiation in benefits between mental and physical impairments.

In Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), the plaintiff had been an employee of defendant for 17 years when she became permanently disabled due to a mental disorder.  The employer's insurance provided coverage for mental impairments for only two years, while physical disabling conditions were covered until age 65.  The plaintiff claimed that this disparity violated the ADA because it constituted discrimination against her on the basis of disability.  In considering whether the plaintiff could proceed with a Title I claim, as a qualified individual with a disability, the court looked to the Supreme Court's ruling in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which allowed coverage under Title VII for former employees.  Given the similarity with Title VII, the court of appeals interpreted Title I of the ADA "to allow disabled former employees to sue their former employers regarding their disability benefits so as to effectuate the full panoply of rights guaranteed by the ADA....  We reach this conclusion because the ADA's proscription of discrimination in fringe benefits generates the need for disabled individuals to have legal recourse against such discrimination...."  Although the court ruled that the plaintiff had standing to sue, the court determined that the disparity in benefits between mental and physical conditions did not constitute disability discrimination and, hence, upheld the dismissal of plaintiff's suit.

§ 5.01REASONABLE ACCOMMODATION

[1]   Process of Supplying Reasonable Accommodation

[a]   Lack of Employer Knowledge

An employer that terminated a librarian for rudeness was held not to be on notice of the librarian's alleged underlying bipolar disorder and, hence, the employer could not be liable for any claimed disability discrimination under the 1973 Rehabilitation Act.  Crandall v. Paralyzed Veterans of America, 146 F.3d 894 (D.C. Cir. 1998).  The plaintiff contended that his rude behavior was so extreme as to afford notice of his disability to the employer.  Nonetheless, the court found that given the prevalence in today's society of rudeness without an underlying psychiatric disorder, a lay person could not reasonably be expected to infer that an individual had a psychiatric disorder merely from that person's rude behavior.   Moreover, according to the court, dispensing with the requirement that an employer must have notice of an employee's disability would invite employees to manipulate statutory protections and to secure a post hoc disability diagnosis that would encompass conduct leading to an employee's discharge or other type of job action.

In Corr v. MTA Long Island Bus, No. CV 97-2562 (E.D.N.Y, 1998), the federal district court for the Eastern District of New York rejected the claim by a mechanic for Long Island Bus that the company violated the ADA by refusing to reinstate him following an absence for more than a year due to his manic depression.  The plaintiff in the case worked for L.I. Bus from 1986 through 1998.  Between 1989 and 1994, he began to experience "mood swings, sleeplessness, and fatigue" that subsequently was diagnosed as bipolar disorder.  The plaintiff did not report for work at all between December 9, 1994 and December 9, 1995, and the company terminated him on December 12, 1995 because he had been absent from work for more than a year.  Under the terms of the collective bargaining agreement, L.I. Bus had the right to terminate an employee absent in excess of one year. 

In dismissing the plaintiff's ADA claim, the court noted that the ADA speaks to an individual's current ability to perform the job and, therefore, an employer need not hold a job open in an effort to assist an employee's attempts to remedy a disability.  Moreover, the court emphasized that the plaintiff had failed to explicitly ask for an accommodation at any time during his absence, which precluded L.I. Bus from having to provide one.  Finally, the court found that L.I. Bus was not on notice that the plaintiff suffered from a mental disability.  "An employer is not obligated to observe employees for any behavior that may be symptomatic of a disability and then divine that the employee actually suffers from a disability."

In determining what would constitute reasonable accommodations for an individual with  a mental disability, the federal district court for Puerto Rico in Santiago Vera v. Williams Hospitality Group, Inc., 73 F. Supp.2d 161 (D.P.R. October 25, 1999), stated that the mentally disabled employee or his health care provider has the initial burden to identify limitations and suggested accommodations to the employer.  The court reasoned that in the case of an employee with a mental impairment, an person's disability, limitations, and necessary accommodations are not necessarily apparent or obvious to an employer.

[b]   Employer's Failure to Supply Reasonable Accommodation

In Reed v. Lepage Bakeries, Inc., 1999 U.S. Dist. LEXIS 12594 (D. Me. August 3, 1999), the federal district court for Maine denied summary judgment to an employer who was alleged to have failed to accommodate an employee with a mental disability.  The employee argued that her disability required her to be permitted to walk away from stressful situations and that she was discharged for being insubordinate in response to the employer's request that she remain in a stressful situation.  The district court found that the employer may have needed to engage in the process of attempting to reasonably accommodate the employee, rather than requiring her to remain in a situation that proved to be stressful.  The court noted that the case law did not support the employer's argument that an employer never need accommodate an employee who may have engage in insubordination.  The court emphasized, however, that if the employee had engaged in threats of violence, then an employer would not need to accommodate such threats. 

[c]   No Failure By Employer To Supply Reasonable Accommodation 

In Cannice v. Norwest Bank Iowa, N.A., 189 F.3d 723 (8th Cir. 1999), the Eighth Circuit held that an employer did not fail to reasonably accommodate an employee who suffered from depression even though the employer failed to use the ADA materials that the employee supplied and, in addition, failed to consult with him about possible accommodations, such as a more flexible work schedule.  The court concluded that the employee failed to show that an accommodation of his disability would have allowed him to keep his job.  The court pointed out that there is no per se liability under the ADA for an employer's failure to engage in the interactive process.  Liability arises only if an accommodation was available, which the employer failed to supply.

A pizza store manager who was fired for screaming at a supervisor has no claim under the ADA according to the Fifth Circuit in Seaman v. C S P H, Inc. d/b/a Domino's Pizza, 179 F.3d 297 (5th Cir. 1999).  The court of appeals affirmed summary judgment in favor of the owner of a Domino's franchise because the fired manager had failed to inform the company of his disability and to the extent that he did so, the employer had tried to accommodate him.  The manager had experienced a number of deaths in his family and had told his area supervisor that he might be suffering from bipolar disorder and sleep apnea, which had resulted in his collapsing in the store.  A few months later, the manager requested to be returned to an assistant manager's job and the request had been granted.  The manager then asked for time off after presenting a doctor's note stating that he was "emotionally and physically exhausted."  In response, the manager was scheduled to have two days off per week and was relieved of wearing a pager.  Nevertheless, during a telephone conversation with his area supervisor, the manager repeatedly yelled at him.  As a result, he was fired.  The Fifth Circuit found insufficient evidence that the manager had notified his employer of his disability or any resulting restrictions.  According to the court, an employee cannot "expect his employer to bear the burden of identifying the need for and suggesting appropriate accommodation."   

In Keever v. City of Middletown, 145 F.3d 809 (6th Cir.), cert. denied, __ U.S. __, 119 S.Ct. 407 (1998), the Sixth Circuit recognized that an employer may choose among available accommodations.  The case involved a city police officer who requested a lower stress job, specifically as a detective on the night shift.  The city thought the best accommodation would be that of desk officer, and assigned him to that position instead.  The police officer brought suit alleging that the city had denied him reasonable accommodation.  The court held, however, that assigning plaintiff to a desk officer position was a reasonable accommodation even though it was not the employee's preferred accommodation.

[2]   Types of Reasonable Accommodation

[a]   Unpaid Leave as an Accommodation

[i]Leave Required

The request for an overall 17 week leave of absence by an employee suffering from manic depression was held in Powers v. Polygram, Inc., 9 AD Cases (BNA) 1370 (S.D.N.Y. April 2, 1999), to constitute a reasonable accommodation.  In so holding, the federal district court for the Southern District of New York noted that a leave of absence is unreasonable when it is for a long period of time, when absences are so sporadic that the employer has no way of knowing if the employee will even be reporting for work, and when it is clear that the employee still would be unqualified to perform the essential job functions upon return from leave.

In Haynes v. Rhone Poulenc, Inc., No. 25366, 1999 W. Va. LEXIS 103 (W.Va. July 14, 1999), the Supreme Court of Appeals of West Virginia held that the West Virginia Human Rights Act protects individuals who are temporarily unable to perform their jobs because of a disability, with or without accommodation.  In addition, the court ruled that an employer may be required to provide a temporary leave of absence as a reasonable accommodation.  According to the court, "a required reasonable accommodation may include a temporary leave of absence that does not impose an undue hardship upon an employer for the purpose of recovery from or improvement of the disabling condition."  The requirement, however, only applies in the situation where "it is reasonably foreseeable that the plaintiff is likely to be able to return to work" and any temporary leave of absence need only be unpaid leave.  In addition, punitive damages may be awarded under the Human Rights Act, but the West Virginia Human Rights Commission is not authorized to impose punitive damages in an administrative resolution.

In Criado v. IBM Corporation, 145 F.3d 437 (1st Cir. 1998), the First Circuit Court of Appeals affirmed a jury verdict that IBM had violated the ADA by failing to grant an employee a one-month leave of absence for treatment of her depression.  The court concluded that there was sufficient evidence in the record for the jury to find that the plaintiff's mental disorder had substantially impaired the major life activity of working.  The court noted that due to her depression, the plaintiff was having trouble dealing with stress and relating to both co-workers and clients.  Also, "depression and anxiety were causing sleep deprivation which affected her timeliness and ability to report to work.  This evidence showed that [plaintiff's] mental impairments had substantially limited her ability to work, sleep, and related to others."

Further, the court upheld the jury's verdict that the employer had failed to reasonably accommodate the plaintiff by granting her a one-month leave of absence that would allow her physician to design an effective treatment program.  The court noted that because the employer provided all employees with 52 weeks of paid disability leave, and because a management representative of the employer testified that such disability leave did not financially burden the company, the company could not assert that the plaintiff's request for a one-month leave of absence would constitute an "undue burden on its operation."  Accordingly, the court held that even though the plaintiff's termination was based on her absenteeism, the employer still discriminated against the plaintiff where the plaintiff's absences would not have occurred had the employer granted the plaintiff's requested accommodation.

[ii]   Leave Not Required

In Samson v. Citibank, FSB, 1999 U.S. Dist. LEXIS 9499 (D.D.C., May 27, 1999), the federal District court for the District of Columbia recognized that the ADA does not require an employer to provide an employee indefinite unpaid leave as a reasonable accommodation.  The case involved an employee of Citibank, Carlotta Samson, who worked as an assistant branch manager and whose duties typically required her to be present every weekday and occasionally on Saturdays.  In April, 1995, Samson began an extended sick leave for what she alleged was severe asthma complicated by gastrointestinal reflux.  In June, 1995, Samson's physician wrote a letter to Citibank stating that although Samson was 60 percent improved, she still had a "long way to go."  The physician stated that he would keep the company "posted on her status," and he emphasized again that she was "not ready to return to work."  On September 1, 1995 (approximately 78 days later), Citibank terminated Samson's employment.  On the basis of these facts, the district court dismissed Samson's claim, finding that she was not a "qualified individual with a disability" in that she could not perform the essential functions of her job, even with a reasonable accommodation.  The court held that Citibank was not required to provide Samson with unpaid leave as a reasonable accommodation because her doctor's June, 1995, letter "could only leave Citibank to conclude that plaintiff's recovery period would be indefinite."  The court reasoned that what Samson was seeking "was an indefinite leave period, something an employer is not required to grant under the ADA."  As a consequence, the court concluded that Citibank could not be held liable under the ADA for terminating Samson "when her own physician gives no estimate as to the expected duration of her" impairment.

An employer is not required to provide an extended leave of absence as a reasonable accommodation where an employee with a disabling condition will not be able to perform the essential functions of the job.  Walton v. Mental Health Association of  Southeastern Pennsylvania, 168 F.3d 661 (3d Cir. 1999).  The case involved the former director of an advocacy organization, who suffered from depression and was obese.  The plaintiff took a leave of absence due to her medical condition; however, the plaintiff did not return to work on the date her leave was to have ended.  Subsequently, the plaintiff was terminated.  In filing suit under the ADA, the plaintiff argued that she should have been granted, as a reasonable accommodation, continued leave.  While the Third Circuit recognized that unpaid leave may be a reasonable accommodation under the statute, the court noted that the plaintiff's employer already had granted the plaintiff some leave, which exceeded the requirement of reasonable accommodation under the ADA.  Therefore, the court held the employer was under

no legal obligation to provide extended leave and, hence, its decision to discontinue the accommodation did not give rise to a cause of action against it.

[b]   Restructured Job 

Part-time work may be a reasonable accommodation for employees with psychiatric disabilities.  In Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998), the court ruled that, as a reasonable accommodation, an employer was required to allow an employee, who had been on disability leave following a mental breakdown, to return to work part time for four weeks.  Because of workplace sexual harassment by male co-employees, the plaintiff was suffering from major depression and post traumatic stress disorder and went on paid disability leave for 52 weeks.  When the employer informed him that his paid leave would soon expire, the plaintiff obtained medical clearance to return to work as long as he did not have to work with his former co-workers.  The co-workers, however, still teased the plaintiff and he became emotionally distraught.  The plaintiff's doctor recommended that plaintiff return to work part time to give him the opportunity to adjust to full-time work.  The employer, however, refused, taking the position that it already had accommodated plaintiff by changing his work assignment and supervisor and giving him paid disability leave.  Both the district court and the court of appeals disagreed.  According to the First Circuit, the duty to provide reasonable accommodation is a continuing one and not exhausted by one effort.  The court found that the requested four week accommodation was reasonable and, hence, required under the ADA.

The request for a "stress free" work environment would impose an unreasonable and "wholly impracticable obligation" on an employer, and, hence, is not required under the ADA.  Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998).   The plaintiff began working as a technical associate in 1981.  In 1984, he was diagnosed with depression, and two years later was hospitalized for a nervous breakdown, taking a three month leave of absence.  In 1988, the plaintiff received a two step promotion, but two years later, in 1990, was given an unfavorable performance review and warned that his job was in jeopardy.  Suffering from depression, the plaintiff took a "stress leave" on the advice of the company's medical staff, returning to work three months later on a limited basis.  In December 1991, the plaintiff began experiencing problems with his new supervisor and, citing increasing stress, asked to be removed from the project on which he was working.  In September 1992, the plaintiff went on disability leave, receiving long-term disability payments from the company's disability insurance plan and from Social Security.  In 1994, he sued alleging disability discrimination because the company had failed to accommodate his disability by providing him with a job without prolonged and inordinate stress.  The court of appeals determined that transfer to a job where he would not be subject to stress by co-workers was not required under the ADA.  According to the court, the employer "could never achieve more than temporary compliance because compliance would depend entirely on [plaintiff's] stress level at any given moment....  The only certainty for [the employer] would be its obligation to transfer Gaul to another department whenever he becomes 'stressed out' by a co-worker or supervisor.  It is difficult to imagine a more amorphous 'standard' to impose on an employer."  In a footnote, the court of appeals also called into question whether plaintiff was disabled within the meaning of the Act.  According to the Third Circuit, "we strong suspect that a plaintiff who was unable to work with individuals who cause him 'prolonged and inordinate stress' cannot be said to be incapable of performing a 'class of jobs or a broad range of jobs in various classes.'"

In Kennedy v. Dresser Rand Co., 9 AD Cases (BNA) 1335 (2d Cir. September 22, 1999), the Second Circuit Court of Appeals dealt with the request of an employee suffering from depression that his supervisor be replaced.  The court held that a per se rule that replacement of a supervisor never may be a reasonable accommodation was inconsistent with ADA case law that requests for accommodation should be evaluated on a case-by-case basis.  Nevertheless, the Second Circuit acknowledged that a presumption exists that an employee's request to change supervisors is unreasonable and the burden of overcoming this presumption lies on the ADA claimant.

Jonathan R. Mook is a partner in the firm of DiMuro, Ginsburg & Mook, P.C.  Mr. Mook is a graduate of the Yale Law School and has been listed in Who's Who in American Law and Who's Who of Emerging Leaders in America.  Mr. Mook is a member of the Virginia and District of Columbia bars and serves as Chair of the D.C. Bar EEO and Individual Rights Committee.  Mr. Mook is a frequent lecturer and an author of numerous publications on the Americans with Disabilities Act and other employment law topics.

Mr. Mook is author of two legal treatises:  The Americans with Disabilities Act:  Employee Rights and Employer Obligations and The Americans with Disabilities Act:  Public Accommodations and Commercial Facilities, both published by the Matthew Bender Company.  He is the author of chapters in several other legal treatises, including, "The NLRA and the Americans with Disabilities Act" in NLRA:  Law and Practice (Matthew Bender, 1996); "ADA:  Public Accommodations and Commercial Facilities" in Powell on Real Property (Matthew Bender, 1997); and "Anti-Discrimination Law" in Condominium Law & Practice (Matthew Bender, 1997); and Homeowner Associations and PUDs (Matthew Bender, 1998).

He also is the author of "Strike Replacement Legislation," 16 Employee Relations Law Journal, Winter (1990/1991); "Employee Tort Action for Sexual Harassment in Virginia:  Negotiating the Liability Mine Field," George Mason Civil Rights Law Journal, Winter (1990/1991); "The ADA and Employee Benefits:  A Regulatory and Litigation Update," Benefits Law Journal, Winter (1994/1995); "Expanding ADA Coverage to Employee Benefit Plans:  Recent Judicial and Administrative Developments," Employee Relations Law Journal (Spring 1995); "Legislation by Executive Fiat:  President Clinton's Order Barring Permanent Replacement Strikers," Employee Relations Law Journal (Autumn 1995); "Substance Abuse and the ADA:  What Every Employer Should Know," Employee Relations Law Journal (Autumn 1996) (with Erin E. Powell); "Personality Testing in  Today's Workplace:  Avoiding the Legal Pitfalls," Employee Relations Law Journal (Winter 1996); "Can Title III of the ADA Be Used to Challenge Disability Plan Limitations?," Employee Relations Law Journal (Spring 1998); "Bragdon v. Abbott - Pushing the Envelop in the Definition of Disability," Benefits Law Journal (Winter 1998); "ADA:  Federal Regulation of Insurance?," Benefits Law Journal (Spring 2000).  Mr. Mook is a co-author of The Effect of the Americans with Disabilities Act on Employer-Sponsored Health Plans, District of Columbia Bar, Labor Relations Section (Commerce Clearing House 1993).

[1]  In Swenson v. County of Los Angeles, 75 Cal. App. 4th 889 (Cal. Ct App. 2d Dist. October 18, 1999), the California Court of Appeals concluded that the definition of "mental disability" under the California Fair Employment and Housing Act contains no express requirement as to the degree of disability that must result from the condition.  Hence, the court found that the FEHA may not be construed as incorporating the ADA's "substantially limits" standard.  The existence of a disabling mental condition, unless otherwise excluded by the statute, qualifies the individual for protection from employment discrimination under the FEHA.  In so holding, the California court noted that the FEHA provides a different definition for "physical disability," which must limit an individual's ability to participate in major life activities.