I.
THE ADMINISTRATIVE AGENCY EXPERIENCE UNDER THE ADA
The implementation of the ADA has resulted in a tremendous increase in the volume of
employment discrimination charges filed with the EEOC. From July 26, 1992, through
September 30, 1999, the Commission reported receiving over 125,946 new charges alleging
disability-based employment discrimination under the ADA. Breaking the numbers down by
impairments most often cited in the 17,007 charges filed in the fiscal year ending September
1999, emotional/psychiatric impairments were the most common at 17.4% of all claims, with
depression being the most common emotional/psychiatric impairment at 7.5% of all claims. The
other most cited impairments were back-related (12.2%); non-paralytic orthopedic (10.0%); heart
(3.8%); diabetes (4.0%); hearing (2.9%); vision (2.5%); cancer (2.3%); epilepsy (1.9%); asthma
(1.8%); substance abuse (1.7%); and HIV (1.4%). A significant number of the claims filed
alleged discrimination on the basis of being “regarded as” disabled – 11.6% – a smaller, but
growing number of claims – 4.4% – alleged discrimination on the basis of having a “record of”
disability.
There has been a significant increase in the annual number of ADA charges filed since
the Act took effect. In fiscal year 1992 there were 1,048 claims filed with the EEOC. In fiscal
year 1999, there were 17,007 claims – over a sixteen-fold increase. Monetary settlements and
judgments on reported cases for the same period have risen from $200,000 to almost $50 million.
Of the total charges filed with the EEOC through September, 1999, 33.1% have been
closed for administrative reasons, 52.4% of the claims lacked reasonable cause, 5.2% were
withdrawn after the claimant received benefits, 4.9% ended in settlements and only 4.4% have
been found to be supported by reasonable cause.
The EEOC has been criticized recently by the National Council on Disability (“NCD”), a
cabinet-level national task force on the employment of adults with disabilities created by
President Clinton in a 1998 executive order. The NCD alleges that lack of funding and an “overcautious” approach has undermined effective enforcement of the ADA by federal agencies,
including the EEOC. The NCD states that the federal agencies “‘lack[ ] any coherent and
unifying national strategy’” and that “the major impact of this weak enforcement environment
has been its contribution to the ‘problematic federal court interpretations of key ADA principles’
that have narrowed the scope of the law’s protections.” 125 Daily Labor Report, AA-1 (June 28,
2000) (citing NCD report). Although the long-term effects of this criticism are unclear, it may
lead to increased ADA enforcement activity by the EEOC. Indeed, the EEOC responded to the
NCD report by citing the agency’s accomplishments in enforcement of the ADA, including a
discussion of monetary benefits obtained and a description of its successful litigation efforts.
II.
THE AMERICAN BAR ASSOCIATION 1999 SURVEY OF ADA CASES
The 1999 American Bar Association (“ABA”) survey of employment discrimination
cases brought under the ADA shows that employees prevailed in only 4.3% of the cases in which
a final decision was rendered. 121 Daily Labor Report, E-1 (June 22, 2000). The small
percentage of employee wins reinforces the view that it is very difficult for employees to prevail
when courts resolve the cases. Indeed, as the ADA approaches its tenth birthday, the percentage
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of employee wins continues to decline, from 8.4% between 1992 and 1997 and 5.6% in 1998.
Id.
III.
BASIC ISSUES UNDER THE ADA
A.
Who Is Disabled?
Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998): Asymptomatic HIV
infection is an impairment within the meaning of the ADA.
While there is little doubt that an individual with full-blown AIDS has an “impairment”
within the meaning of the ADA, until recently there was a question as to whether asymptomatic
HIV infection in and of itself could be such an impairment. The Supreme Court resolved the
issue in Bragdon v. Abbott.
In 1994, Sidney Abbott, an asymptomatic HIV-positive woman, visited Dr. Randon
Bragdon, a dentist, for a dental examination. Ms. Abbott informed Dr. Bragdon of her HIVpositive status on her patient registration form. During the examination, Dr. Bragdon discovered
a cavity. He informed Ms. Abbott of his infectious disease policy, pursuant to which he would
not fill the cavity in his office. Dr. Bragdon offered to perform the work for no additional fee at
a hospital, but Ms. Abbott would have had to pay any charge by the hospital for use of its
facilities. She declined and filed suit under Title III of the ADA, which prohibits discrimination
on the basis of disability in public accommodations.
In a 5-4 decision, the Supreme Court affirmed the lower court decisions on the question
of whether asymptomatic HIV infection constitutes a disability within the meaning of the ADA.
The Court held that HIV infection, even in the absence of any symptoms, did meet the statutory
definition of “impairment.” After giving a primer on the course of HIV infection and its effects
on the body’s systems, the Court concluded that “[i]n light of the immediacy with which the
virus begins to damage the infected person’s white blood cells and the severity of the disease,”
524 U.S. at 637, being HIV-positive (seropositivity) is a “physical impairment” from the moment
of infection. 118 S. Ct. at 2204. This holding resolved a dispute among the circuit courts of
appeals on this issue.
1.
Temporary or Intermittent, Episodic Impairments.
Generally, temporary impairments are not protected disabilities under the ADA. See 29
C.F.R. Pt. 1630, app. § 1630.2(j) (temporary, non-chronic impairments of short duration, with
little or no long term or permanent impact, are usually not disabilities). But see Adams v.
Citizens Advice Bureau, 187 F.3d 315, 317 (2d Cir. 1999) (finding plaintiff’s temporary injury
was not ADA protected disability, but stating “we have no occasion to consider whether
temporary injuries are per se unprotected under the ADA. . . . The question is open in this
circuit and we intimate no opinion on it”). Where, however, the episode is a “characteristic
manifestation of an admitted disability[, it] is . . . a part of the underlying disability and hence a
condition that the employer must reasonably accommodate.” Vande Zande v. Wisconsin Dep’t
of Admin., 44 F.3d 538, 544 (7th Cir. 1995).
Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 780 (6th
Cir. 1998): Psoriasis that flared up intermittently was physical impairment under
ADA.
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Cehrs was a nurse at the Northeast Ohio Alzheimer’s Research Center who had suffered
from “chronic generalized pustular psoriasis” and “psoriatic arthritis” for thirty years. Cehrs’
psoriasis flared up on occasion, at which time it could be life-threatening, but remained dormant
at other times. During the dormant stage, Cehrs received weekly medical treatments to control
the psoriasis. Cehrs experienced a flare-up – her first one in eight years – as a result of which
she had to take a leave of absence. Northeast terminated her employment on the grounds that she
had not completed the paperwork to extend the leave past the original estimated return date,
despite the fact that her personnel file contained letters from her doctor informing Northeast of
the need for the extension and the fact that Northeast never sent her the forms.
Northeast argued that Cehrs’ psoriasis could not be considered a disability because it only
impaired her physically during flare-ups and was therefore not of a continuing nature. The court
rejected that argument, reasoning that it was not necessary that Cehrs experience flare-ups on a
daily basis and holding that her psoriasis was a physical impairment due to the “ongoing nature
of the disease and its physiological impact even during its dormant stage.” The Cehrs court cited
to the Supreme Court’s Bragdon decision. In holding that asymptomatic HIV infection is a
covered “impairment” under the ADA, Bragdon lent additional support to the proposition that
conditions that flare up at times while lying dormant at other times are covered “impairments”
and are not excluded, “temporary” impairments.
2.
Major Life Activities.
Like the determination of “impairment,” the question of whether the asserted activity is a
“major life activity” under the ADA is a question of law for the court to decide. Poindexter v.
Atchison, Topeka and Santa Fe Ry. Co., 168 F.3d 1228, 1232 (10th Cir. 1999).
a.
Reproduction.
Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998): Reproduction is a
“major life activity” under the ADA.
The Bragdon decision also addressed an issue that had become a major area of
disagreement: whether reproduction is a “major life activity.” The majority had “little difficulty
concluding that it is.” 524 U.S. at 638, 118 S. Ct. at 2205. The Court based its conclusion on its
interpretation that the term “major” denotes comparative importance, and its conclusion that
“[r]eproduction and the sexual dynamics surrounding it are central to the life process itself.” Id.
It rejected the argument that the statute was intended to cover only those activities with a
“public, economic, or daily character.” Id.
Whether reproduction is a “major life activity” was a central point of disagreement
between the majority and the dissent. The four dissenters argued that the common thread linking
the illustrative list of major life activities in the regulations was not “fundamental importance,”
on which the majority focused, but rather that they are “major” activities in the sense of being
“greater in quantity, number, or extent” and that they are “repetitively performed and essential to
the day-to-day existence of a normally functioning individual.” Id. at 660, 118 S. Ct. at 2215.
The dissent pointed out that impairments of the reproductive system can substantially limit many
other activities besides reproduction, so the fact that the regulations include disorders of the
reproductive system in their definition of “impairment” did not necessarily mean that
reproduction itself was a “major life activity.” The dissent also noted that Abbott had not
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adduced any evidence that reproduction was a major life activity for her personally, as required
by the statute. Id. at 658, 118 S. Ct. at 2214-15.
The Bragdon decision raises three significant issues for the development of law in the
area of “major life activities.” First, the standard of “comparative importance” in determining
what is a major life activity is a very subjective standard that could lead to inconsistent results.
The dissent’s standard would appear to be less subjective.
Another issue the decision raises is whether a physiological impairment will
automatically translate into a major life activity. While the majority did not rely on it, the dissent
criticized an argument raised in the briefs that, because the regulations define the term
“impairment” to include physiological disorders of the reproductive system, reproduction must
be a major life activity. The dissent called this argument “simply wrong,” id. at 660, 118 S. Ct.
at 2215, noting that numerous disorders of the reproductive system, such as dysmenorrhea and
endometriosis, can be so painful that they limit the ability to walk and work, and that cancers of
the reproductive organs can limit the ability to engage in numerous activities other than
reproduction. Id. Most of the activities listed as major life activities in the regulations are not
themselves physiological functions, although breathing is. The sensory functions of seeing and
hearing are also listed; however, the Department of Justice has issued an opinion that using the
sense of smell is not a major life activity. 3 Nat’l Disability L. Rep. (LRP), at 290 (Apr. 28,
1993).
A third issue the dissent pinpoints is the significance to the individual of the claimed
“major life activity.” The majority focused on whether reproduction was a major life activity in
the abstract, without considering the question of whether Abbott had to prove that it was a major
life activity for her. The dissent, on the other hand, argued that the statutory language requires
that the major life activity at issue be one for the individual. Id. at 2214-15. Several courts of
appeals, however, have explicitly held that whether an activity is a “major life activity” is
determined based on whether it is “significant within the meaning of the ADA, rather than
whether that activity is important to the particular individual.” Pack v. Kmart Corp., 166 F.3d
1300, 1305 (10th Cir.), cert. denied, 120 S. Ct. 45 (1999); Land v. Baptist Med. Ctr., 164 F.3d
423, 425 (8th Cir. 1999); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 642 (2d Cir.
1998), cert. denied, 526 U.S. 1018, 119 S. Ct. 1253 (1999); Runnebaum v. NationsBank of
Maryland, N.A., 123 F.3d 156, 170 (4th Cir. 1997) (en banc). They have found support in the
fact that the Bragdon majority did not consider whether the asserted major life activity was such
for Abbott personally.
b.
Scope of Major Life Activity.
Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144 (2d Cir. 1998):
Plaintiffs may not tailor the scope of their asserted major life activities in such a
way that predetermines the outcome of the substantial limitation analysis.
Reeves illustrates the reluctance of courts to recognize “major life activities” not listed in
the regulations. At the time of his dismissal, Reeves was an Airport Operations Supervisor for
Johnson Controls. Reeves was diagnosed with “panic disorder with agoraphobia,” which
involved panic attacks under certain circumstances and pervasive avoidance of potentially panicprovoking situations. He asserted that his disorder substantially limited him in the major life
activity of “everyday mobility,” which he defined by means of examples such as “‘taking
vacations or even doing things as routine as going to a shopping mall alone,’ taking ground
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transportation ‘along a route which might cause [one] to cross a bridge or tunnel or to travel on
high roads,’ going to ‘unfamiliar places that would involve staying overnight,’ and riding
‘unaccompanied in trains.’” Id. at 152 (alteration in original). The court rejected this claimed
“major life activity” as being “conveniently form fitting;” narrowly drawn to match his particular
facts. The court found that such personalized definitions of major life activities would
essentially obviate the need to prove substantial limitation. “If the courts permit individual
tailoring of the scope of the major life activity, the case-by-case inquiry into whether an
impairment entails a ‘substantial limit[ation]’ is essentially fixed from the outset – it is, in short,
pre-determined by a plaintiff.” Id. at 153.
c.
Other Recent Cases – Major Life Activity Recognized.
McAlindin v. County of San Diego, 201 F.3d 1211 (9th Cir. 2000), petition for cert.
filed, 120 S. Ct. 2689 (2000): Engaging in sexual relations, sleeping, and interacting with
others are major life activities.
Land v. Baptist Medical Center, 164 F.3d 423, 424 (8th Cir. 1999): Eating is a major
life activity.
Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.), cert. denied, 120 S. Ct. 45 (1999):
Sleeping is a major life activity.
d.
Other Recent Cases – Major Life Activity Not Recognized.
Sinkler v. Midwest Property Management L.P., 209 F.3d 678 (7th Cir. 2000):
Commuting to and from work is not a major life activity.
Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000): Cleaning or doing housework is
not a major life activity.
Schneiker v. Fortis Ins. Co., 200 F.3d 1055 (7th Cir. 2000). Inability to work with a
particular supervisor due to personality conflict is not a major life activity.
Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998): Lifting more
than 45 pounds is not a major life activity.
Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.), cert. denied, 120 S. Ct. 45 (1999):
Concentration may be a significant and necessary component of a major life activity, but
it is not an “activity” itself.
3.
Substantial Limitation.
The third and final step in the determination of whether a plaintiff is disabled is the
question of whether the asserted impairment “substantially limits” the asserted major life
activity. “Substantially limited” means “ (i) [u]nable to perform a major life activity that the
average person in the general population can perform; or (ii) [s]ignificantly restricted as to the
condition, manner or duration under which an individual can perform a particular major life
activity as compared to the condition, manner or duration under which the average person in the
general population can perform the same major life activity.” 29 C.F.R. § 1630.2(j)(1).
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Hoskins v. Oakland County Sheriff’s Dep’t, 2000 WL 1043238 (6th Cir. July 31, 2000):
Fact that plaintiff’s injuries did not cause her to avoid any major life activities, but rather merely
affected the way she conducted them, did not preclude finding that she was substantially limited
in major life activities.
Susan Hoskins, a deputy with the Oakland County Sheriff’s Department, was fired after
she suffered an injury that rendered her unable to restrain inmates. In response to her disability
discrimination complaint, the district court determined, based upon Hoskins’s own testimony,
that she had not established that she was disabled within the meaning of the ADA. Specifically,
the district court held that Hoskins was not “substantially limited” in any of the major life
activities because she testified that she “does not let her impairments stop her from doing
anything and that she ‘attempt[s] to do everything.’” Id. at *4. The court of appeals, however,
found that the district court employed an exceedingly narrow interpretation of “substantially
limits” and that because Hoskins’s testimony made clear that both the manner and duration under
which she can perform particular major life activities are significantly restricted, a genuine issue
of material fact regarding Hoskins’s substantial limitation was raised and summary judgment on
that ground was inappropriate. Id.
Broussard v. University of California, 192 F.3d 1252 (9th Cir. 1999): Plaintiff
must allege specific facts addressing her own training and abilities in order to
demonstrate that she is substantially limited in the major life activity of working.
Jocelyn Broussard worked as an animal technician in the University’s Office of
Laboratory Animal Care (OLAC). One of her duties involved stoppering and unstoppering water
bottles. Broussard began experiencing pain in her wrist and was diagnosed with carpal tunnel
syndrome (CTS). Despite accommodations by the OLAC, she continued to experience pain and
eventually was so limited in her movement that half of her workload had to be assigned to
another technician. She underwent surgery on her wrist and subsequently was evaluated by the
University’s rehabilitation counselor who found that she could work only in thirty to forty-five
minute intervals of sedentary to light manual labor activities. Broussard requested that she be
transferred to another position. The University stated that there were no vacant positions for
which Broussard was qualified and terminated her employment.
Broussard brought suit, claiming she was disabled because she was substantially limited
in the major life activity of working. The evidence she presented was a declaration by Thomas
Church, a vocational rehabilitation specialist who evaluated Broussard’s job prospects based on
the evaluations of the rehabilitation counselor and Dr. Massem, Broussard’s treating physician.
Church determined that Broussard was limited to working in the sedentary to light category of
jobs and that she faced restrictions even within this category. Applying these restrictions to jobs
available in the San Francisco Bay area, Church stated that Broussard’s disability precluded her
from working in forty percent of such positions.
In granting summary judgment for the employer, the court held that the evidence
presented by the plaintiff should have addressed the plaintiff’s vocational training and abilities
rather than address categories of jobs such as “sedentary” and “light manual.” Id. at 1258. The
court further held that because Church did not compare the jobs Broussard could do before and
after the onset of her CTS, nor did he provide sufficient evidence from which one might infer
that the plaintiff faced significant restrictions in her ability to meet the requirements of jobs other
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than that of animal technician, his declaration was conclusory and was insufficient to survive
summary judgment. Id. at 1259.
a.
Mitigating or Corrective Measures.
Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999): The
determination of whether an individual is disabled must be made with reference to
measures that correct or mitigate the individual’s impairment.
In June 1999, the Supreme Court resolved the much-debated question of whether one
must consider corrective or mitigating measures in making the determination of whether a person
is disabled under the ADA.
In Sutton, the main case of three addressing this point, the plaintiffs were twin sisters who
had applied to be commercial pilots with United Airlines. United rejected them because their
uncorrected vision was 20/200 or worse in the right eye and 20/400 or worse in the left eye, even
though they had corrected vision of 20/20 or better. The Court held that the sisters were not
“disabled” within the meaning of the ADA because, with the corrective measures, they were not
“substantially limited” in any major life activity. This conclusion was contrary to the EEOC
regulations.1
The Court offered three reasons why it concluded that corrective or mitigating measures
must be considered in making the determination of disability: First, the Court noted that the
language of the ADA is in the present tense – the impairment must be one that “substantially
limits” in the present, not one that might potentially or hypothetically do so if mitigating
measures were not taken. And an impairment that is corrected does not “substantially limit” a
major life activity.
Second, the Court relied on the ADA’s requirement that disability be evaluated on an
individual basis. Disregarding corrective measures would require courts and employers to
speculate about the person’s uncorrected condition and force them to rely on general information
about how a condition usually affects individuals, rather than on the individual in question’s
actual condition. The Court also reasoned that not considering mitigating measures would
preclude consideration of side effects of those measures, even when the side effects are very
severe.
Third, the Court reasoned that disregarding corrective measures would result in a vastly
overinclusive definition of disability. The Court relied heavily on the finding, enacted as part of
the ADA, that about 43,000,000 Americans have one or more disabilities. The Court construed
this as evidence that Congress intended to disregard corrective measures in the determination of
disability because, if it had meant to include all persons with corrected physical limitations, the
number cited would have been much higher. Id. at 2148-49.
Two justices dissented. Justice Breyer’s separate dissent framed the issue as a choice
between: 1) including some people Congress did not intend to protect under the ADA, such as
those who wear ordinary eyeglasses, and 2) excluding those whom Congress certainly did intend
to protect, such as, for example, those who use medicine to control epilepsy. To Justice Breyer,
“[T]he individual determination of whether an individual is substantially limited in a major life activity must
be made on a case-by-case basis, without regard to mitigating measures such as medicines, or assistive or
prosthetic devices.” 29 C.F.R. Pt. 1630, app. § 1630.2(j).
1
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the former was the appropriate choice between the two. See also Albertson’s, Inc. v.
Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162 (1999) (determination of whether individual is
disabled must be made with reference to measures that correct or mitigate individual’s
impairment); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S. Ct. 2133 (1999)
(same).
Tangires v. Johns Hopkins Hospital, 79 F. Supp. 2d 587 (D. Md. 2000). Asthma
which can be treated with medication does not constitute an impairment that
substantially limits a major life activity.
Tangires, a former employee of the Johns Hopkins Hospital, who suffered from asthma,
filed suit against the hospital alleging failure to accommodate her asthma, disparate treatment
and discriminatory discharge. The hospital argued that because Tangires’ asthma was
correctable by medication and she voluntarily refused the recommended treatment, as a matter of
law she did not have an impairment that substantially limits a major life activity and thus, does
not fall within the purview of the ADA. Id. at 595-96. The court agreed with the hospital and
concluded that Tangires was not disabled under the ADA and thus, granted summary judgment
to the hospital on all three counts of Tangires’ complaint. Id. at 600. See also Epstein v. KalvinMiller Int’l, Inc., 100 F. Supp. 2d 222, 226 (S.D.N.Y. 2000) (type 2 diabetes in treated state does
not substantially limit major life activities and thus, is not disability under the ADA).
b.
Non-Physiological Limitation.
Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998):
substantially limits reproduction.
HIV infection
Another significant holding of the Bragdon Court was that HIV infection substantially
limits the major life activity of reproduction. The Court’s decision adds another twist to the
determination of substantial limitation. While recognizing that “[c]onception and childbirth are
not impossible for an HIV victim,” 524 U.S. at 641, 118 S. Ct. at 2206, the court found that the
risk of transmission to the infected person’s partner and to the child was sufficient to constitute a
substantial limitation within the meaning of the ADA. The Court also noted the economic and
legal consequences, i.e., the cost of health care for the child and the fact that some states forbid
persons infected with HIV from having sex with others. Id.
Justice Rehnquist’s dissent, for its part, focused on the fact that HIV-positive people are
no less physically able than anyone else to engage in sexual intercourse, give birth to a child, and
perform the manual tasks necessary to rear a child. The dissent characterized the decision not to
do so as a “voluntary choice” that does not constitute a “limit” on one’s life activities. Id. at 661,
118 S. Ct. at 2216.
Thus, in its decision the Court endorsed the idea that limits other than purely
physiological ones can fulfill the statutory requirement of “substantially limits.” In this case, the
limit was one that could be described as arising out of a moral compulsion not to spread the
infection, or as one pre-Bragdon court of appeals decision put it, out of the infected individual’s
reaction to the knowledge of the infection, rather than out of the infection itself. Runnebaum v.
Nations Bank of Maryland, N.A., 123 F.3d 156, 172 (4th Cir. 1997) (en banc). Where the limits
of this interpretation lie remains to be determined. For example, a female carrier of the gene for
hemophilia whose partner is not a carrier (that is, not hemophiliac) has a 50% chance of
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transmitting hemophilia to a son (and 0% chance of transmitting it to a daughter).2 Is that
woman, then, “disabled” within the meaning of the ADA even though her status as carrier has no
physical effect on her?3 Does the severity of the disease matter? Where is the line? Given the
Court’s reference to economic factors, will the potential parents’ economic resources for
providing for a potentially disabled child make a difference in determining whether the parents
themselves are “disabled”?
4.
Record of Impairment.
If an individual does not presently have an impairment that substantially limits one or
more of that person’s major life activities, that individual may still be considered disabled for
purposes of the ADA if that individual has “a record of such an impairment.” 42 U.S.C.A.
§ 12102(2)(B). The cases on “record” of impairment have largely focused on whether the
asserted past impairment substantially limited a major life activity and have thus not differed
greatly from the analyses of current disability. The cases emphasize the fact that the standard for
a “record” of disability is the same as for a current disability and that the same individualized
inquiry is required. See, e.g., EEOC v. R.J. Gallagher Co., 181 F.3d 645, 655 (5th Cir. 1999)
(“It is not enough for an ADA plaintiff to simply show that he has a record of a cancer diagnosis;
in order to establish the existence of a ‘disability’ . . . there must be a record of an impairment
that substantially limits one or more of the ADA plaintiff’s major life activities”); Hilburn v.
Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1229 (11th Cir. 1999) (“[T]he record of impairment
standard is satisfied only if she actually suffered a physical impairment that substantially limited
one or more of her major life activities”).
Thus, for example, a number of courts of appeal have held that a record of
hospitalization, without more, is insufficient to establish a disability if the record does not
indicate the extent to which the impairment requiring the hospitalization limited a major life
activity. See Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 645-46 (2d Cir. 1998), cert.
denied, 526 U.S. 1018, 119 S. Ct. 1253 (1999); Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir.
1998), cert. denied, 526 U.S. 1113, 119 S. Ct. 1758 (1999); see also Bilodeau v. Mega Indus., 50
F. Supp. 2d 27, 37 (D. Me. 1999) (following 6th, 7th, and 8th Circuits in holding that
hospitalization for impairment does not in and of itself establish record of disability).
These cases have found it necessary to distinguish the Supreme Court’s decision in
School Bd. of Nassau County v. Arline, 480 U.S. 273, 107 S. Ct. 1123 (1987), a case decided
under the Rehabilitation Act.4 In Arline, the Court held that the plaintiff’s hospitalization for
tuberculosis twenty years prior established a record of impairment, and that the fact that the
tuberculosis was serious enough to require hospitalization was more than sufficient to establish
that one or more of her major life activities was substantially limited. The subsequent cases,
however, have noted the absence of detail in Arline concerning the length of the hospital stay or
The Bragdon majority quoted 25% as the approximate chance of transmitting HIV to a partner or child,
Bragdon, 524 U.S. at 641, 118 S. Ct. at 2206, and said that even an 8% chance, potentially attainable through
use of certain therapies, of “transmitting a dread and fatal disease to one’s child” could not be said as a matter
of law not to constitute a substantial limitation on reproduction. Id.
2
This would also require determination of whether a defective gene constitutes an “impairment” under the
ADA.
3
The Rehabilitation Act of 1973 prohibits disability-based discrimination with respect to employment under
federal contracts, under programs or activities receiving federal financial assistance or conducted by certain
federal government, and which served as the model for the ADA.
4
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the severity of the tuberculosis, and have declined to interpret Arline in such a way as to establish
“the nonsensical proposition that any hospital stay is sufficient to evidence a ‘record of
impairment . . . .’” Taylor v. United States Postal Serv., 946 F.2d 1214, 1217 (6th Cir. 1991).
But see Mark v. The Burke Rehabilitation Hosp., 1997 WL 189124, at *4 (S.D.N.Y. Apr. 17,
1997) (relying on Arline to find plaintiff’s hospitalization for cancer to be record of impairment
substantially limiting major life activity, without further analysis).
Sorenson v. University of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999): A
record of hospitalization and diagnosis of multiple sclerosis is not a record of an
impairment that substantially limits a major life activity under the ADA if the
allegedly disabling condition does not presently impact the plaintiff’s ability to
perform her job and if the symptoms are of brief duration and without long-term
impact.
Laura Sorensen was employed as an AirMed flight nurse at the University of Utah
Hospital when she was diagnosed with multiple sclerosis (MS) and was hospitalized for five
days. Her employer informed her that she could not return to work until she obtained a letter
from her doctor stating that she was physically able to work as a flight nurse. During the time
that Ms. Sorenson was being evaluated to determine if she could work as a flight nurse, she
returned to work as a nurse in other departments of the hospital. Before the hospital made a final
determination on her fitness to return to work as a flight nurse, she resigned and filed a complaint
alleging that the hospital had discriminated against her because she had a record of an
impairment that substantially limits a major life activity.
The court noted that Ms. Sorenson was required to establish that her MS substantially
limited a major life activity. Although acknowledging that the plaintiff was substantially limited
in a number of major life activities during her five-day hospitalization and subsequent recovery –
a period of approximately three weeks – the court referred to the EEOC guidelines, which
suggest that the duration and long term impact of the impairment be considered when
determining if an impairment substantially limits a major life activity. Id. at 1087. The court
then found that Ms. Sorenson’s hospitalization and MS symptoms substantially limited her major
life activities for only a limited period of time, and little if any long term impact resulted from
her impairment. Further, because her MS did not presently impact her ability to perform other
nursing jobs, the court held that the plaintiff did not have a record of an impairment that
substantially limits a major life activity. Id.
5.
Perceived Impairments.
Under the ADA, being regarded as having an impairment that substantially limits a major
life activity constitutes a disability just as if the individual actually had the impairment or
produced a record of such impairment. See 29 C.F.R. § 1630.2(g)(3). A person is “regarded” as
disabled if (1) he has a physical or mental impairment that does not substantially limit major life
activities, but the condition is treated by an employer as constituting such a limitation; (2) he has
a physical or mental impairment that substantially limits major life activities only as a result of
the attitude of an employer toward such impairment; or (3) he does not have a qualifying
impairment but is treated by an employer as having such an impairment. 29 C.F.R. § 1630.2(l);
Sutton, 119 S. Ct. at 2149-50. By including as a “disability” the perception that one is disabled,
the ADA intends to protect persons who do not have an impairment but, by virtue of stereotyping
and prejudice, are considered impaired. Id. The EEOC regulations state that individuals with
“facial scar[s] or disfigurement, or. . . a condition that periodically causes an involuntary jerk of
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the head but does not limit the individual’s major life activities” may come under this category.
29 C.F.R. Pt. 1630, app. § 1630.2(l). And, if an employer discriminated against such an
individual because of the negative reactions of customers, the employer would be regarding the
individual as disabled and would be acting on the basis of that perceived disability. Id. To fall
within the “regarded as” definition and qualify as disabled so as to be protected by the ADA,
however, the complainant must satisfy the same requirements as an individual who claims to
truly be impaired. The complainant must demonstrate that the defendant regarded him or her as
having an impairment that substantially limited his or her major life activities.
Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999): Employer may be liable
for regarding employee as disabled even as a result of an innocent mistake, unless the
employer’s perception is based on the employee’s unreasonable actions or omissions.
Taylor was a frozen food manager at Pathmark when he sustained a 16% permanent
disability in his right ankle. Taylor was terminated following a somewhat complicated series of
miscommunications and misinterpretations between Pathmark and the reports from Taylor and
Taylor’s doctors regarding the degree and permanency of his restrictions, although he was
reinstated after he filed suit.
While the court found that Taylor was not disabled within the meaning of the ADA, it
held that Taylor had adduced sufficient evidence that Pathmark regarded him as disabled, based
on the doctors’ reports and misunderstandings thereof, to withstand judgment as a matter of law.
Pathmark argued, however, that it was Taylor’s responsibility to correct Pathmark’s
misperception, and that it could not be held liable for considering him unable to work until he
provided definitive notice otherwise. The court disagreed, concluding that Taylor had not been
responsible for the misunderstanding on Pathmark’s part, and that even if Pathmark’s mistake
were otherwise innocent, Pathmark could be liable.
The court then went on to establish a “limited reasonability” defense for the employer.
The court reasoned that the ADA is principally concerned with preventing employers from
acting on stereotypes and fears about the disabled – which was not the situation in this case – and
that it is less concerned with a mistake regarding the extent of a particular employee’s
impairment made in the course of an individualized determination. The court expressed the
exception as follows: “If an employer regards a plaintiff as disabled based on a mistake in an
individualized determination of the employee’s actual condition rather than on a belief about the
effects of the kind of impairment the employer regarded the employee as having, then the
employer will have a defense if the employee unreasonably failed to inform the employer of the
actual situation.” Id. at 193. On the record before it, the court concluded that Taylor had
provided sufficient evidence for a jury to conclude that he had not acted unreasonably and that
Pathmark was responsible for the misunderstanding. See also Deppe v. United Airlines, 217 F.3d
1262, 1266 (9th Cir. 2000) (reversing grant of summary judgment for employer where individual
involved in termination decision testified that two years after employee’s injury, he still believed
that employee’s physical condition precluded him from fulfilling certain functions).
6.
Association with a Disabled Person.
The ADA expressly prohibits discrimination against an individual who is associated with,
or has a relationship with, a disabled individual. Under the “association provision,” an employer
may not “exclud[e] or otherwise deny[] equal jobs or benefits to a qualified individual because of
the known disability of an individual with whom the qualified individual is known to have a
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relationship or association.” 42 U.S.C.A. § 12112(b)(4); Den Hartog v. Wasatch Academy, 129
F.3d 1076, 1082 (10th Cir. 1997).
Beck v. Dahn Corp., 1998 WL 237259 (10th Cir. May 12, 1998): Husband who
had been hired with his wife as a team, and was therefore fired when she was, did
not have claim for associational discrimination.
Mr. and Mrs. Beck had been hired as an on-site manager team for a self-storage facility.
The employer, Dahn, only hired teams to be on-site facility managers. After Dahn fired the
Becks, Mrs. Beck sued, alleging that she had been fired because of her disability, multiple
sclerosis. Mr. Beck also sued, claiming that he had been fired because of his association with a
person with a disability, his wife.
The court held that Mr. Beck failed to make out a claim of associational discrimination.
The court found that, rather than being fired because animus against him due to his wife’s
disability, Mr. Beck was fired because once his wife was fired, he was no longer part of a team
and was thus, no longer qualified for the job.
Dahn conceded, however, that should Mrs. Beck have a legally sufficient claim, her
remedy should include Mr. Beck’s damages.
Sifre v. Department of Health, 38 F. Supp. 2d 91, 100-101 (D.P.R. 1999), aff’d,
214 F.3d 23 (1st Cir. 2000): Advocacy on behalf of persons with disabilities is not
covered by the association provision of Title I of the ADA, but by the retaliation
provision of Title V of the ADA.
The plaintiffs in Sifre were employees of the Puerto Rico Department of Health who
alleged they were discriminated against in violation of the Rehabilitation Act and the ADA due
to their opposition to various regulations and other actions related to persons with HIV/AIDS.
The court held that the plaintiffs did not state a claim under the association provision
because they did not sufficiently allege that they lost their positions because of their association
with HIV/AIDS patients. Rather than allege they were dismissed due to their employer’s
stereotypes or unfounded beliefs regarding persons with HIV/AIDS with whom the plaintiffs
associated, the plaintiffs claimed they were dismissed because of their advocacy on behalf of
persons with HIV/AIDS. The court concluded that such claims should be analyzed under the
retaliation provision of Title V of the ADA, not Title I.
7.
Exclusions from the Definition of Disability.
a.
Excluded Matters.
The EEOC regulations specifically exclude various “conditions” from the ADA
definitions of “disability” and “qualified individual with a disability.” These “conditions” are
homosexuality, bisexuality, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting from physical impairments, compulsive gambling,
kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal
use of drugs. 29 C.F.R. § 1630.3(d). See, e.g., Rentos v. OCE-Office Sys., 1996 WL 737215
(S.D.N.Y. Dec. 24, 1996) (ADA expressly defines “disability” so as to exclude transsexualism).
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b.
Drugs and alcohol—specific provisions.
The ADA has explicit provisions that address alcohol and drug abuse or addiction. An
individual who is “currently engaging in the illegal use of drugs” is not protected by the ADA
when the employer acts on the basis of the illegal drug use. 42 U.S.C.A. § 12114(a). However,
an employer cannot discriminate against addicts and alcoholics based on their status as such.
Nevertheless, an employer may hold an employee who engages in the illegal use of drugs or who
is an alcoholic to the same qualification standards for employment or job performance and
behavior to which it holds other employees, “even if any unsatisfactory performance or behavior
is related to the drug use or alcoholism of [the] employee.” 42 U.S.C. § 12114(c)(4).
Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir. 1999):
Relevant date for determination of whether employee was “current” illegal drug
user was date of notification of termination, not date of termination.
Zenor was a pharmacist at the Columbia Medical Center-East hospital who became
addicted to cocaine. One day, Zenor felt he was still under the influence of cocaine when the
time came to report to work, so he called his supervisor and told him that he could not report to
work because he was under the influence of cocaine. Zenor entered a rehabilitation program the
next day and shortly thereafter went on leave. About one month later, on September 20,
Columbia informed Zenor that his employment would be terminated after his medical leave
expired.
Zenor filed suit alleging, among other things, discrimination under the ADA. He argued
that the determination of whether he was a “current” drug user and therefore excluded from the
provisions of the ADA must be made as of the date his termination took effect, November 24, by
which time he had completed the residential portion of his treatment program. The court
disagreed, holding that the relevant adverse employment action took place when Zenor was
informed that he would be terminated, that is, on September 20. In so holding, the court
disagreed with the Second Circuit’s conclusion in Teahan v. Metro-North Commuter R.R. Co.,
951 F.2d 511 (2d Cir. 1991), cert. denied, 506 U.S. 815, 113 S. Ct. 54 (1992).
The court went on to hold that Zenor was a current drug user as of September 20 and
therefore not subject to the protections of the ADA. The court also held that he was not
“qualified” within the meaning of the ADA and that he was not “regarded as” being disabled.
B.
Qualification.
1.
Essential Functions of the Job.
“Essential functions” are defined in the EEOC regulations as the fundamental, nonmarginal duties of the employment position either held or desired by a disabled individual. 29
C.F.R. § 1630.2(n)(1). A job function may be regarded as essential if: “(i) . . . the reason the
position exists is to perform that function; (ii) . . . [there is a] limited number of employees
available among whom the performance of that job function can be distributed; and/ or (iii) [t]he
function may be highly specialized so that the incumbent in the position is hired for his or her
expertise or ability to perform the particular function.” 29 C.F.R. § 1630.2(n)(2); Martin v.
Kansas, 190 F.3d 1120, 1130 (10th Cir. 1999).
In general, the courts have taken the position that regular attendance is an essential
function of all jobs. In its 1999 Guidance, however, the EEOC has taken a contrary position, a
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position which the courts have not appeared to follow. See Jovanovic v. In-Sink-Erator Div. of
Emerson Elec. Co., 201 F.3d 894, 900 (7th Cir. 2000) (post-1999 Guidance decision holding that
if employee cannot perform the essential job function of regular attendance, individual is not
otherwise qualified under the ADA).
Employers may consider various factors as evidence that a particular function of a job is
essential. “[C]onsideration shall be given to the employer’s judgment as to what functions of a
job are essential, and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered evidence of the essential
functions of the job.” 42 U.S.C.A. § 12111(8); Martin, 190 F.3d at 1130. The terms of a
collective bargaining agreement may also be considered as evidence that a function is essential.
29 C.F.R. § 1630.2(n)(3)(v). While the ADA explicitly provides that the employer’s judgment is
“considered” in determining what functions of a job are essential, exactly how much deference is
given to the judgment is unclear.
McGregor v. AMTRAK, 187 F.3d 1113 (9th Cir. 1999): An employer’s policy
which requires that an employee be “100% healed” before returning to work is a
per se violation of the ADA.
Jackie McGregor had been a ticket agent for Amtrak for over thirty years when she
injured her right arm on the job. Surgery failed to improve her condition, and she was restricted
to lifting no more than 20 pounds. McGregor testified that she inquired extensively into bidding
on other jobs and was told by her supervisor that she could not return to work or bid on any other
position until she was “100% healthy.” The court held that a “100% healed” or “fully healed”
policy is a per se violation of the ADA, because such a policy permits employers to substitute a
determination of whether a qualified individual is “100% healed” from an injury for the ADA
required individual assessment of whether the qualified individual is able to perform the essential
functions of his or her job with or without accommodation. Id. at 1116.
2.
Estoppel from Claiming Ability to Perform Essential Job Functions.
Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S. Ct. 1597
(1999): Claim of total disability in applying for disability benefits does not
automatically bar ADA claim.
In Cleveland, the Supreme Court resolved the disputed issue of whether a plaintiff who
has previously claimed to be totally disabled and unable to work in applying for disability
benefits is estopped from subsequently claiming that he or she is able to work, and therefore
from pursuing a claim under the ADA. In a unanimous decision, the Court held that claiming
total disability in applying for benefits does not automatically estop pursuit of an ADA claim,
nor does it create a strong presumption against the plaintiff’s success in the ADA case.
However, the plaintiff is required to explain why the claim of total disability and inability to
work is consistent with the ADA claim of being able to perform the essential functions of the
job.
The Court reasoned that “there are too many situations in which an SSDI claim and an
ADA claim can comfortably exist side by side.” Id. at 802, 119 S. Ct. at 1602. Such situations
included:
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1.
The determination of eligibility for SSDI does not take into account the possibility
of reasonable accommodation; thus the ADA claim of being able to perform the
job with reasonable accommodation may be consistent with the SSDI claim of not
being able to perform a job without it;
2.
An individual might qualify for SSDI under the Social Security Administration’s
(“SSA”) five-step procedure, which is simplified for the purpose of processing
numerous claims efficiently, while still being able to perform the essential
functions of her job.
3.
The SSA sometimes grants SSDI benefits to individuals who are working, as in
the trial-work period designed to facilitate reentry into the workforce, during
which a working SSDI recipient may continue to receive benefits; where an
individual’s improvement in physical condition may permit that person to work
without necessarily leading to termination of SSDI benefits; or where change in
the nature of an individual’s disability over time may result in a statement on an
SSDI application that does not reflect the individual’s capacities at the time of the
relevant employment decision.
4.
Where an individual has only applied for, but not yet received a decision on SSDI
benefits, the inconsistency between the SSDI application and the ADA claim is of
the sort normally tolerated by the legal system. Because one may not be sure in
advance on what legal theory one will succeed, one may ordinarily proceed on all
possible claims, regardless of consistency.
That said, the Court recognized that a contradictory statement, without more, would not
suffice to create a genuine issue of fact precluding summary judgment. Rather, the Court
explained, courts should require an explanation of the apparent inconsistency.
DiSanto v. McGraw-Hill, Inc., 220 F.3d 61 (2d Cir. 2000): Disability
discrimination claim dismissed where plaintiff failed to reconcile his application
for Social Security disability benefits, which disclaimed ability to work, with the
required showing under the ADA that he is able to perform essential job
functions.
DiSanto brought an action against his former employer alleging that his HIV-positive
status and depression were not accommodated and that he was discriminatorily discharged, in
violation of the ADA. After a jury verdict in favor of DiSanto, the district court granted
judgment as a matter of law on the grounds that DiSanto was not an otherwise qualified
individual with a disability because he had represented on his Social Security benefits
application that he was totally unable to work and thus, he could not perform the essential
functions of his job with or without an accommodation. Id. at 63.
On appeal, the Second Circuit relied on Cleveland for the proposition that although a
claim of total disability in applying for disability benefits does not automatically bar an ADA
claim, the plaintiff “must offer some explanation for the inconsistency.” Id. at 64. The court
found that DiSanto pointed to no explanation for the inconsistency. “[B]ecause DiSanto failed to
explain his unqualified statement to the Social Security Administration that he was unable to
work prior to his discharge, the evidence presented at trial cannot support DiSanto’s ADA
claim.” Id. at 65. See also Motley v. New Jersey State Police, 196 F.3d 160, 164-65 (3d Cir.
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1999) (plaintiff not qualified under ADA where stated in applying for accidental disability
benefits that he was permanently and totally disabled and failed to proffer reasonable explanation
for inconsistent statements).
Norris v. Sysco Corp., 191 F.3d 1043 (9th Cir. 1999), cert. denied, 120 S. Ct.
1221 (2000): Whether a plaintiff is estopped from asserting her ADA claims due
to statements she made in applying for disability benefits is a jury question.
Brenda Norris was employed by Allied-Sysco Food Services in a sales position that
necessitated driving long distances and occasionally lifting and moving heavy objects. Norris
injured her back on the job and injured her knee in an accident that was not job related. She
underwent surgery on her knee and back and during her period of convalescence, she
periodically asked Allied if she could return to work with accommodations of some kind. Norris
also applied for and received disability benefits under California’s State Disability Insurance and
under Allied’s private long-term disability plan. On the application for benefits forms submitted
to the insurers, Norris certified that she could not perform her former job responsibilities or any
other job responsibilities.
Norris and her physician explained that they thought the forms meant only that she could
not engage in her regular occupation at that time. The court held that because Norris offered
some explanation for the inconsistencies in her statements and because a jury could understand
the “problems and dilemmas faced by injured workers as they confront a myriad of forms,
demands, concepts, and needs,” the assessment of Norris’ disparate positions should properly be
consigned to the common sense of the jury. Id. at 1049.
3.
Direct Threat.
The ADA indicates that “[t]he term ‘qualification standard’ may include a requirement
that an individual shall not pose a direct threat to the health or safety of other individuals in the
workplace.” 42 U.S.C. § 12113(b). At the same time, however, that language appears in a
section of Title I that lists affirmative defenses to a charge of discrimination. There is thus
divergence of opinion as to whether the employee, who bears the burden of proving that he or
she is qualified, must show that he or she does not pose a direct threat, or whether the employer,
who bears the burden of proving affirmative defenses, must show that the employee does pose
such a threat. Compare, e.g., EEOC v. Amego, Inc., 110 F.3d 135 (5th Cir. 1997) (burden is on
employee), with Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996), cert. denied,
519 U.S. 1118, 117 S. Ct. 964 (1997) (burden is on employer). The cases regarding direct threat
are discussed infra at Part X.B, pp. 58-61.
4.
Individualized Inquiry as to Qualification.
Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000). Before concluding
that an individual’s disability disqualifies them from a position, employer must
make an individualized assessment of the individual’s qualification.
Holiday filed suit against the City of Chattanooga under the ADA, alleging that the City
refused to hire him as a police officer because he was HIV positive. The City had extended him
an employment offer contingent upon his passing a physical examination required by state
statute. During the examination, Holiday voluntarily informed the doctor of his HIV-positive
status. The doctor then advised the City that Holiday did not pass the medical exam because, in
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his opinion, Holiday was not strong enough to withstand the rigors of police work. The district
court concluded that Holiday was not “otherwise qualified” for the position and granted
summary judgment for the City. The Sixth Circuit reversed holding that the district court erred
in accepting the doctor’s report as dispositive evidence of Holiday’s alleged inability to serve as
a police officer, where (1) there was no indication that the doctor conducted an individualized
inquiry as mandated by the ADA; and (2) Holiday provided sufficient evidence to raise an issue
of fact as to whether he is otherwise qualified to perform as a police officer. Id. at 640.
The court of appeals recognized that the ADA mandates an individualized inquiry to
determine whether an individual’s disability disqualifies him or her from a particular position,
rather than reliance on unsubstantiated beliefs that an individual’s disability prevents them from
performing a particular job. Id. at 643. In this case, the doctor’s medical report cited Holiday’s
HIV-positive status to support the conclusory opinion that he was not fit for police work. In
addition, the court found no evidence that Holiday’s HIV had progressed beyond the
asymptomatic stage or that he actually suffered from any AIDS related health problems at the
time of his physical exam. Furthermore, Holiday provided sufficient evidence to prove that he
was in fact qualified to perform as a City’s police officer – he passed the physical agility test
administered as part of the application process. Thus, the court concluded that under these
circumstances, the doctor’s report at most creates a question of fact as to whether Holiday was
qualified to perform the essential functions of the position of a police officer, but was insufficient
to warrant summary judgment for the defendant. Id. at 646.
C.
The EEOC’s Internal Response to the Supreme Court
On July 27, 1999, the EEOC issued a Guidance that instructs field offices in analyzing
ADA charges in light of the recent Supreme Court cases Sutton, Murphy, Albertsons, and
Cleveland. After emphasizing the importance of making an individualized, case-by-case
determination of whether a person has an ADA-covered “disability,” most of the Guidance is
devoted to the questions that an investigator should ask in determining whether a charging party
is “disabled” under each of the ADA’s three definitions of “disability.” Most significantly, the
Guidance describes the type of information to obtain in great detail regarding any “mitigating
measures” the employee uses:
•
Does the employee use any mitigating measures or compensating behavior to
control or eliminate symptoms or limitations of the impairment?
•
Does the mitigating measure or compensating behavior fully or only partially
control the symptoms or limitations of the impairment? This question must be
answered as of the time of the alleged discrimination, since the effectiveness
of some measures may vary over time.
•
Does the mitigating measure or compensating behavior itself cause any
limitations in performing a major life activity? This may include the
combined effects of measures that independently would not be substantially
limiting.
With regard to “record” of impairment claims, the Guidance lists questions to ask
regarding the nature and extent of an impairment prior to using a mitigating measure, as well as
whether any unsuccessful mitigating measures were attempted prior to using an effective one. In
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analyzing perceived impairment claims; investigators do not consider mitigating measures, but
rather, consider the employer’s reasons for its action and its beliefs about the employee.
The Guidance also discusses two issues raised in the recent Supreme Court cases that
relate to whether an employee is “qualified” for a job: (1) whether the person fails to meet a
federal safety standard; and (2) the impact of application for, or receipt of, disability benefits.
The Guidance instructs investigators to analyze safety standards to determine whether they are
absolute or voluntary, and whether any waiver provision specifically modifies the safety standard
or provides for exceptions that are consistent with maintaining safety. As to disability benefits,
the Guidance emphasizes the Supreme Court’s holding in Cleveland that there is no inherent
conflict between eligibility for disability benefits and a claim of being qualified to work under
the ADA. It instructs investigators to be careful about reviewing and analyzing apparent
discrepancies between the benefits application and the contention that the person is qualified, and
to look for potential explanations – for example, differences in definitions or formulas – that
would reconcile the two.
IV.
THE DUTY TO PROVIDE REASONABLE ACCOMMODATION
An employer violates the ADA when it discriminates “against a qualified individual with
a disability because of the disability of such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Examples of
discrimination within the meaning of the ADA include, inter alia, . . . “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of the business of
such covered entity…[or would pose a direct threat to the health or safety of the disabled
individual or others].”
The ADA provides that an individual with a disability is qualified for a job if, with or
without reasonable accommodation, he or she can perform the essential functions of the job. 42
U.S.C. § 12111(8). “Essential functions” are defined as the fundamental, non-marginal duties of
the employment position either held or desired by a disabled individual. It is important to note
that the courts have recognized that when a function is proven to be essential to a particular job,
an employer is not expected to waive the function or exempt an individual from fulfilling that
function. In order to determine whether an individual with a disability is “otherwise qualified”
for a particular job, the employer must assess whether there is any reasonable accommodation
that will permit the individual to perform the essential functions of the job.
A.
1999 EEOC Reasonable Accommodation Enforcement Guidance.
On March 2, 1999, the EEOC issued an Enforcement Guidance entitled “Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act,” (EEOC
Enforcement Guidance at www.eeoc.gov/docs/accommodation.html, referred to hereinafter as
“1999 Guidance”), which generally sets forth, in question and answer form, the EEOC’s position
as to the rights and responsibilities of employers and individuals with disabilities concerning
reasonable accommodation and undue hardship. Specifically, the 1999 Guidance examines
various issues including what “reasonable accommodation” means, who is entitled to receive it,
what constitutes a request for a reasonable accommodation, and types of reasonable
accommodations. In addition to case law analysis of various reasonable accommodation issues,
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included below is a summary of the EEOC’s position with respect to such issues as set forth in
its 1999 Guidance.
B.
Basic Principles of Reasonable Accommodation.
There is no simple or short-form definition of reasonable accommodation. The ADA
requires reasonable accommodation in three aspects of employment: (i) to ensure equal
opportunity in the application process; (ii) to enable a qualified individual with a disability to
perform the essential functions of a job; and (iii) to enable an employee with a disability to enjoy
the equal benefits and privileges of employment. 1999 Guidance at 2. The EEOC Technical
Assistance Manual (“TAM”) provides some basic principles to assist employers in assessing
whether an accommodation is “reasonable.”
1.
A reasonable accommodation must be an effective accommodation. It must
provide an opportunity for a person with a disability to achieve the same level of
performance or to enjoy benefits or privileges equal to those of an average,
similarly-situated, nondisabled person. However, the accommodation does not
have to ensure equal results or provide exactly the same benefits or privileges.
TAM § 3.4.
2.
The reasonable accommodation obligation applies only to accommodations that
reduce barriers to employment related to a person’s disability; it does not apply to
accommodations that a disabled person may request for some other reason. Id.
See also Gaines v. Runyon, 107 F.3d 1171 (6th Cir. 1997) (employer was not
required to “accommodate” an employee’s epilepsy by providing a particular shift
where medical documentation showed that the employee was capable of working
his regular shift).
3.
A reasonable accommodation need not be the best accommodation available, as
long as it is effective for the purpose, that is, it gives the person with a disability
an equal opportunity to be considered for a job, to perform the essential functions
of the job, or to enjoy equal benefits and privileges of the job. TAM § 3.4.
4.
An employer is not required to provide an accommodation that is primarily for
personal use. Id.
5.
The ADA’s requirements for certain types of adjustments and modifications to
meet the reasonable accommodation obligation do not prevent an employer from
providing accommodations beyond those required by the ADA. Id.
C.
Statutory and Regulatory Examples of Reasonable Accommodation.
The EEOC regulations to the ADA state that, “[i]n general, an accommodation is any
change in the work environment or in the way things are customarily done that enables an
individual with a disability to enjoy equal opportunities.” 29 C.F.R. Pt. 1630, app. § 1630.2(o).
Reasonable accommodation is not a concept that can be readily defined under the ADA, and thus
it has been, and will continue to be, the basis of much litigation. To assist employers in
determining what is a reasonable accommodation, the ADA and the corresponding EEOC
regulations include a series of examples of what may, in particular circumstances, constitute
reasonable accommodations.
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The ADA itself provides some non-exhaustive examples of what may be considered a
reasonable accommodation, such as “making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and . . . job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9).
In turn, the EEOC regulations define “reasonable accommodations” as: “(i)
[m]odifications or adjustments to a job application process that enable a qualified applicant with
a disability to be considered for the position such applicant desires; or (ii) [m]odifications or
adjustments to the work environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position; or (iii) [m]odifications or
adjustments that enable a[n employer’s] employees with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other similarly situated employees without
disabilities.” 29 C.F.R. § 1630.2(o).
The regulations also provide specific examples of reasonable accommodation including
improved accessibility to the employer’s facility; improved usability and accessibility in work
areas and non-work areas (including rest rooms); various forms of job restructuring, including
reassignment to positions that become vacant in a reasonable time; acquisition or modification of
equipment, examinations, training materials, or policies; provision of readers or interpreters;
provision of reserved parking spaces; and possibly even the provision of personal assistants to
help disabled employees with specified job-related duties. 29 C.F.R. Pt. 1630, app. § 1630.2(o).
D.
When is an Employer Obligated to Make a Reasonable Accommodation?
The case law almost uniformly follows the ADA language and holds that the employer
need provide a “reasonable accommodation” only for the known or obvious disabilities of its
employee. General knowledge that an employee has a particular ailment will not likely be
sufficient information to put the employer on notice regarding the disability. Further, “[i]n
general, it is the responsibility of the applicant or employee with a disability to inform the
employer that an accommodation is needed to participate in the application process, to perform
the essential job functions or to receive equal benefits and privileges of employment. An
employer is not required to provide an accommodation if unaware of the need.” TAM § 3.6.
Indeed, the ADA’s legislative history states that “[i]n the absence of a request it would be
inappropriate to provide an accommodation, especially where [it] could impact adversely on the
individual.” H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 1990, at 62, reprinted in 1990
U.S.C.C.A.N. 303, 344. See also Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046 (6th
Cir. 1998) (disabled employee must inform the employer that accommodation is needed).
Where the employer has knowledge of an employee’s disability, however, the employee
need not necessarily speak “magic words” of accommodation to trigger the ADA obligation. To
be safe, an employer should consider as a request for a reasonable accommodation any
notification that a job modification is needed because of a medical condition that might be a
disability.
Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996):
Where disability prevents individual from asking for a reasonable
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accommodation and employer knows about the individual’s disability and need
for accommodation, employer should provide needed accommodation that does
not impose an undue hardship.
In Bultemeyer, the court considered the reasonable accommodation claim of a janitor
with a mental disability who said that it would be too stressful to work at his assigned school.
The court rejected the employer’s argument that the employee was not entitled to reasonable
accommodation since he had not requested an accommodation. Specifically, the court noted that
“an employer cannot expect an employee to read its mind and know that he or she must
specifically say ‘I want a reasonable accommodation,’ particularly when the employee has a
mental illness. The employer has to meet the employee half-way, and if it appears that the
employee may need an accommodation but doesn’t know how to ask for it, the employer should
do what it can to help.” Id. at 1285. Indeed, the court noted that the employer should have
communicated with the employee in order to determine an appropriate accommodation and at a
minimum, the employer should have “simply . . . inquire[d] of Bultemeyer or his psychiatrist
about what he needed to be able to work.” Id. at 1286.
E.
Identifying Reasonable Accommodations.
“The reasonable accommodation requirement is best understood as a process in which
barriers to a particular individual’s equal employment opportunity are removed. The
accommodation process focuses on the needs of a particular individual in relation to problems in
performance of a particular job because of a physical or mental impairment.” Bryant v. Better
Bus. Bureau, 923 F. Supp. 720, 736 (D. Md. 1996) (quoting H.R. Rep. No. 485(II), 101st Cong.,
2d Sess. at 65-66, reprinted in, 1990 U.S.C.C.A.N. 303, 347). The EEOC Technical Assistance
Manual attempts to elaborate on what employers should do to identify a reasonable
accommodation:
1.
Look at the particular job involved. Determine its purpose and its essential
functions.
2.
Consult with the disabled individual to find out his or her specific physical or
mental abilities and limitations as they relate to the essential job functions.
3.
In consultation with the individual, identify potential accommodations and assess
how effective each would be in enabling the individual to perform essential job
functions.
4.
If consultation with the disabled individual does not identify an appropriate
accommodation, seek technical assistance from outside agencies or consultants.
5.
If there are several effective accommodations that would provide an equal
employment opportunity, consider the preference of the disabled individual and
select the accommodation that best serves the needs of the individual and the
employer.
TAM §§ 3.7-3.8.
Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000): Failure of employer
to engage in interactive process to determine reasonable accommodation does not
render employer liable under the ADA.
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Rehling, a police officer, had his left leg amputated above the knee as a result of an
accident occurring in the course of his duties and asked to be assigned to a citation clerk position
in the police district where he had been assigned prior to the accident. However, the position of
citation clerk was a civilian position covered by a union contract which specified that the
position would only be filled by a civilian. Moreover, the district did not have an opening for a
citation clerk. The police department offered plaintiff a different position in another unit and
offered to provide him with transportation to the work site.
Plaintiff did not dispute that the position offered was a reasonable accommodation, but
claimed that the City was required to engage in an interactive exchange regarding his placement.
The court pointed out that the interactive process is not an end in itself but simply a means to
identify a reasonable accommodation. Id. at 1015. Thus, to state a claim, the plaintiff must
allege that the employer’s failure to engage in an interactive process resulted in a failure to
identify an appropriate accommodation for the qualified individual. Id. at 1016. In affirming the
grant of partial summary judgment for the employer, the court held that “[t]he ADA seeks to
ensure that qualified individuals are accommodated in the workplace, not to punish employers
who, despite their failure to engage in an interactive process, have made reasonable
accommodations.” Id.
Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000): The employer has no duty
to initiate the interactive process to determine a reasonable accommodation.
Debra Earl was an Area Coordinator for Mervyns. One of her principal responsibilities
was preparing her department for the store’s morning opening by obtaining cash for her register,
stocking merchandise and arranging displays, as well as ensuring the department was properly
equipped to run during the day. The employer’s punctuality policy allowed its employees fifteen
“punctuality infractions” in a 365-day period. After 15 infractions, the employer implemented a
three-step corrective action plan including oral and written warnings and eventual discharge if
the situation did not improve.
Beginning in November of 1992, Earl arrived late 29 times within a 365-day period. She
then informed the employer that she was suffering from Obsessive Compulsive Disorder
(“OCD”) and that this condition was the cause of her tardiness. Mervyns offered to permit her to
“clock in” up to fifteen minutes ahead of her scheduled shift and receive appropriate overtime
pay, but Earl wanted to be allowed to “clock in” at whatever time she arrived, without reprimand
and be permitted to make up any “late” time at the end of her shift. Mervyns rejected that request
as unreasonable. Earl’s doctor admitted that no accommodations of her OCD would allow her to
arrive at work on time. At Earl's request, Mervyns scheduled Earl on the afternoon or evening
shift, but her punctuality problems continued and after providing her with continued warnings,
Earl’s employment was terminated.
Earl contended that Mervyns violated the ADA by failing to initiate an interactive
process to identify a reasonable accommodation that would have enabled Earl to perform the
essential functions of her job. The court rejected this argument, explaining that when an
employee does not identify any reasonable accommodation, the employer has no duty to initiate
a process to identify a reasonable accommodation. Id. at 1367. Rather, the court held that “[t]he
burden of identifying an accommodation that would allow a qualified employee to perform the
essential functions of her job rests with that employee, as does the ultimate burden of showing
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that such accommodation is reasonable.” Id. Because Earl failed to do so, the court held that
Mervyns was under no duty to engage in an “interactive process.” Id. See also Donahue v.
Consolidated Rail Corp., 2000 WL 1160947, at *5-8 (3d Cir. Aug. 17, 2000) (plaintiff cannot
survive summary judgment because employer failed to engage in good faith in “interactive
process” where after discovery, plaintiff could not identify any vacant position at the appropriate
level that he could have performed without presenting a significant safety risk). But see
Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999) (“[a]lthough an employer
will not be held liable under the ADA for failing to engage in an interactive process if no
reasonable accommodation was possible, we find that for purposes of summary judgment, the
failure of an employer to engage in an interactive process to determine whether reasonable
accommodations are possible is prima facie evidence that the employer may be acting in bad
faith”).
V.
JUDICIAL INTERPRETATION OF THE REASONABLE ACCOMMODATION
REQUIREMENT
A.
Accommodation for Applicants.
According to the 1999 Guidance, an employer must provide a reasonable accommodation
to a qualified applicant with a disability that will enable the individual to have an equal
opportunity to participate in the application process and to be considered for a job (unless it can
show undue hardship). Thus, individuals with disabilities who meet initial requirements to be
considered for a job should not be excluded from the application process because the employer
speculates, based on a request for reasonable accommodation for the application process, that it
will be unable to provide the individual with reasonable accommodation to perform the job. An
employer should thus assess the need for accommodations for the application process separately
from those that may be needed to perform the job. 1999 Guidance at 10-11.
B.
Job Restructuring and Reallocation of Job Duties.
Job restructuring is one possible accommodation under the ADA. See 42 U.S.C.
§ 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii). An employer need not, however, create a new
position or substantially restructure its work force in order to accommodate a disabled employee.
Although restructuring may include reallocating the marginal functions of a job, an employer
need not reallocate the essential functions of a job, which a qualified individual must perform.
Hoskins v. Oakland County Sheriff’s Dep’t, 2000 WL 1043238 (6th Cir. July 31,
2000): ADA does not require employers to accommodate individuals by shifting
an essential job function onto others.
Hoskins was employed as a deputy with the Oakland County Sheriff’s Department. After
she suffered an off-duty injury that rendered her unable to restrain inmates, an essential function
of her job, Hoskin was discharged. Hoskins contended, however, that she could perform the
function of restraining inmates with the assistance of others. The court rejected this
“accommodation” as unreasonable because the ADA does not require accommodation which
reallocates essential job functions onto co-workers. Id. at *7.
Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997): Employer not required
to restructure job due to employee’s anxiety disorder to create “a work
environment free of stress and criticism.”
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Gonzagowski was employed as a computer specialist when he began to experience
difficulties working with a new supervisor. He was subsequently discharged for unacceptable
performance. Gonzagowski argued that he suffered from anxiety disorder which had led to his
performance difficulties and that his employer violated the Rehabilitation Act by failing to
provide him with an accommodation to perform his job and then firing him. Id. at 746-47. The
court found, however, that Gonzagowski’s request that his job be restructured to create a “work
environment free of stress and criticism” was unreasonable. Id. at 747-48.
In its 1999 Guidance, the EEOC states that although job restructuring does not require
reallocating essential functions, it would be reasonable for an employer to restructure an
employee’s job to eliminate some marginal functions. 1999 Guidance at 13.
C.
Light Duty.
Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998):
Employer can reserve light-duty positions for employees recuperating from recent
injuries who had temporary disabilities.
The plaintiffs in Dalton worked on the production floor at the Subaru-Isuzu plant and
suffered on-the-job injuries – most of the repetitive stress type – that left them permanently
disabled to varying degrees. The plaintiffs alleged that the company had failed to meet all of its
duties to accommodate their respective disabilities under the ADA. In particular, plaintiffs
argued that the company had vacancies in its light-duty program into which they should have
been reassigned on a permanent basis. Id. at 680.
The light-duty program at issue had been established in coordination with the Indiana
Workers’ Compensation Act and was available only for those employees (disabled or otherwise)
who were recuperating from recent injuries and whose disabilities were temporary. Id.
Employees could participate in the program for a maximum period of 90 days. The court
recognized that if the company’s “duty under the ADA to accommodate disabled persons
requires it to offer these temporary-duty positions to its permanently disabled workforce in order
to accommodate their permanent disabilities, the effect would be to abolish (in whole or in part)
the temporary disability program, leaving nothing for that group of employees.” Id.
Thus, the court held that the “ADA does require that [the company] make its light-duty
program available to disabled employees who are recuperating from temporary restrictions and
are otherwise qualified to participate. But nothing here indicates that [the company] failed to do
that, and it was entitled to reserve a reasonable number of positions for this special purpose. To
hold otherwise would be to require [the company] to create new full-time positions to
accommodate its disabled employees, a course of action not required under the ADA.” Id.
(emphasis in original and citation omitted). See also Mengine v. Runyon, 114 F.3d 415, 418 (3d
Cir. 1997) (post office was not required to transform a temporary light duty job into a permanent
job to accommodate a disabled letter carrier absent a showing of “vacant, funded positions
whose essential duties [the letter carrier] was capable of performing, with or without reasonable
accommodation”).
Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998): Where
employer does not make clear that light-duty positions are only temporary,
employer may be required to allow disabled employees to permanently continue
in positions as reasonable accommodation.
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The plaintiffs in Hendricks were former production workers at Excel who were injured
on the job and placed on medical layoff after they received permanent medical restrictions that
precluded them from performing their regular jobs and any other available production jobs at the
plant. Pursuant to Excel’s policy, injured workers are initially placed in other jobs – other
production jobs, non-production jobs or light-duty jobs – that they can perform while they are
recuperating from their injuries. Id. at 696. Excel argued that the ADA does not require an
employer to establish light-duty assignments and certainly does not compel an employer to make
such assignments permanent. Id. The district court agreed and found that these positions were
temporary and therefore did not need to be considered when reasonably accommodating the
disabled employees.
While the court of appeals agreed that “it would frustrate the ADA for permanently
impaired employees to fill temporary light-duty assignments when those jobs have been set aside
specifically for recuperating employees[,]” it found on the instant facts, where “employees were
given light-duty positions with no end-date” and “Excel specifically created light-duty positions
in the CBA but did not designate those jobs as ‘temporary[,]’” the “employee’s assignment to
that position must be treated as a reassignment to a permanent job for purposes of
accommodation.” Id. at 697. Thus, finding “a genuine issue as to whether the injured employees
knew that the jobs in which they initially were placed were truly temporary or whether they
could consider the jobs a reasonable accommodation for their impairments[,]” the court reversed
the lower court’s grant of summary judgment to the employer. Id. at 698. See also Hoskins v.
Oakland County Sheriff’s Dep’t, 2000 WL 1043238, at *9 (6th Cir. July 31, 2000) (ADA
imposes no duty on employer to convert temporary relief position into new full-time position).
D.
Transfer or Reassignment to a Vacant Position.
1.
Accommodation Required.
The ADA specifically lists reassignment as a form of accommodation. 42 U.S.C.
§ 12111(9)(B). The EEOC regulations also have recognized that reassignment to a vacant
position may be a reasonable accommodation. 29 C.F.R. § 1630.2(o)(2)(ii). Most courts have
held that reassignment, in some form, is reasonable.5
Mustafa v. Clark County School District, 157 F.3d 1169 (9th Cir. 1998):
Reassignment of a teacher to a non-classroom setting may be a possible
accommodation.
Mustafa, a teacher with the Clark County School District, was accused of sexual
misconduct (which allegations were subsequently found to be unsubstantiated), after which he
was diagnosed with depression, panic disorder and post-traumatic stress disorder. He also
suffered from physical impairments for which he took a leave of absence. His doctor then
released him to return to non-classroom work only. The school district requested that he submit
to an examination by their doctor, which he did. She stated that while he may have difficulty
returning to classroom work, he could do so. Mustafa was then assigned to teach at a middle
5 Although the Rehabilitation Act does not require that disabled employees be reassigned, the Supreme Court
in School Board of Nassau County v. Arline, 480 U.S. 273, 289 n.19, 107 S. Ct. 1123, 1131 n.19 (1987), held that
“[a]lthough [employers] are not required to find another job for an employee who is not qualified for the job
he or she was doing, they cannot deny an employee alternative employment opportunities reasonably
available under the employer’s existing policies.”
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school and he filed suit against the school district for violation of the Rehabilitation Act by
requiring him to work in a classroom. Id. at 1173.
The court first considered whether Mustafa’s request to be placed in a non-classroom
setting was reasonable and found that “[i]nasmuch as Mustafa was claiming to be suffering from
panic attacks, it is arguable that a non-classroom setting would have alleviated this condition to
some degree . . . . Thus, the burden shifts to the district to show that the suggested
accommodation is unreasonable.” Id. The court then determined that the school district had
failed to meet its burden. “The district advances no argument that Mustafa’s suggested
accommodation was not feasible, nor could it. [The school district] unilaterally rejected
Mustafa’s doctors’ recommendation that he be required to return to work only if he could be
placed in a non-classroom setting, while he testified later that such non-classroom positions had
been available.” Id. at 1177. Thus, the court held that Mustafa raised a triable issue of fact as to
whether the school district violated the Rehabilitation Act when it ordered him to return to
classroom teaching. Id.
Connolly v. Bidermann Industries U.S.A., Inc., 56 F. Supp. 2d 360 (S.D.N.Y.
1999): Even if employee not qualified for position currently held, employer has
obligation to reassign employee to vacant position for which she is qualified.
Plaintiff Diana Campbell Connolly was employed by defendant as Vice President of
Sales for Chain Stores. Her position required her to fly from New York to Chicago, Detroit and
North Carolina on a frequent basis. In the fall of 1994, as a result of flying while she had a cold,
Connolly lost the hearing in one ear and suffered from a condition known as tinnitus, a ringing in
the ear. Connolly was advised by her physician that she could lose the hearing in her other ear if
she continued to fly. Id. at 362.
Defendants argued that Connolly was not qualified for her position because the ability to
fly was an essential function of her job. Id. at 363. Connolly produced evidence that she asked
if other positions were available and was told that there were not, even though the position of
Regional Sales Manager for the New York Region was vacant and would not have required her
to fly. Id. Defendants claimed that under Second Circuit case law, “an employer is not obliged
to reassign an employee to another vacant position if the employee is not able to perform the
essential functions of her job with a reasonable accommodation.” Id. at 364. In other words, the
Defendants argued that transferring an employee to a vacant position was not an accommodation
required by the ADA; rather, an employer need only provide accommodations that would allow
the disabled employee to perform the job he or she held at the time the disability occurred.
The court rejected this argument which it found was based on an analysis under the
Rehabilitation Act, prior to its being amended in 1992, and which differed significantly from the
standard under the ADA. Id. at 366. The court recognized that the EEOC interpretive guidelines
specifically provide that reassignment to a vacant position is a potential reasonable
accommodation. Id. at 364. The court further found that the plain language of the ADA, as well
as its legislative history, support the position that “[r]easonable accommodation may also include
reassignment to a vacant position.” Id. at 365 (citation omitted). Finally, the court noted that
contrary to defendants’ allegations, “Second Circuit precedent also supports the conclusion that
an employer is obligated to reassign a qualified employee with a disability who can perform the
essential functions of a similar, vacant position even if she can no longer perform the essential
functions of her current job.” Id. at 366.
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According to the EEOC, an employer’s obligation to offer reassignment to a vacant
position is not limited to those vacancies within the disabled employee’s office, branch,
department or geographical area. 1999 Guidance at 21. Rather, the extent to which an employer
must search for a vacant position is an issue of undue hardship. Id. Further, as part of the
interactive process, the employer should ask the employee about his or her qualifications and
interests and based on this information, the employer is obligated to inform an employee about
vacant positions for which he or she may be eligible as a reassignment. Id.
2.
Employer Cannot Require Employee to Compete for New Position.
Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998):
Reassignment as an accommodation means more than allowing the employee to
apply for a new position on the same basis as non-disabled employees.
Aka, an orderly at Washington Hospital Center, was responsible for transporting patients
and medical supplies to and from the hospital’s operating room, which required substantial
amounts of heavy lifting and pushing. In 1991, after working for the hospital for over nineteen
years, Aka was hospitalized with heart and circulatory problems and subsequently underwent
bypass surgery. Although he was released to return to work in April, 1992, he was limited to
jobs with only “light or moderate level of exertion.” Id. at 1286.
Because Aka’s former orderly job did not meet that qualification, he asked the hospital to
transfer him to a job that was compatible with his medical restrictions. The hospital declined to
do so and told him that it was his responsibility to review the hospital’s job postings and apply
for any vacant jobs that interested him. After he was unable to obtain another position at the
hospital, Aka filed a suit alleging among other things, that the hospital violated the ADA by
placing full responsibility on him to locate a vacant position for which he was qualified. Id. at
1287.
In reversing the district court’s grant of summary judgment for the hospital, the court in
Aka recognized that an employer has an affirmative obligation to assist a disabled employee to
locating vacant positions for which he or she is qualified. Further, in rejecting the employer’s
argument that it has an obligation only to allow the disabled employee to apply for vacant
positions on the same basis as other employees, the court held that an “employee who on his
own initiative applies for and obtains a job elsewhere in the enterprise would not be described as
having been ‘reassigned’; the core word ‘assign’ implies some active effort on the part of the
employer. Indeed, the ADA’s reference to reassignment would be redundant if permission to
apply were all it meant; the ADA already prohibits discrimination ‘against a qualified individual
with a disability because of the disability of such individual in regard to job application
procedures.’” Id. at 1304. See also Smith v. Midland Brake, Inc., 180 F.3d 1154, 1170 (10th Cir.
1999) (if reassignment is reasonable accommodation under circumstances, disabled employee
has right to reassignment and not just consideration with other applicants).
Like the court in Aka, the EEOC takes the position that reassignment does not mean that
the employee is permitted to compete for a vacant position. 1999 Guidance at 21-22. Rather, the
EEOC makes clear that reassignment means that the employee gets the vacant position if he or
she is qualified for it. “Otherwise, reassignment would be of little value and would not be
implemented as Congress intended.” Id. at 22.
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3.
Accommodation Not Required Where Employee Fails to Identify
Vacant Position for Which He or She is Qualified.
Burns v. Coca-Cola Enters., Inc., 2000 WL 1022686 (6th Cir. July 24, 2000):
Employee’s failure to request a transfer to a new position for which he was
otherwise qualified, as required by employer’s legitimate non-discriminatory
transfer request policy, precluded him from recovering under the ADA.
Melvin Burns was a former employee of Coca-Cola who claimed he was constructively
discharged after he suffered a serious on-the-job back injury in the summer of 1996. In October,
1997, Burns sued his former employer alleging that it failed to reasonably accommodate his
disability by providing him with a light duty job and by subsequently terminating his
employment. The district court granted summary judgment in favor of Coca-Cola. On appeal,
as an initial matter, the court held that the ADA does require that an employer consider
reassigning a disabled employee once it becomes clear that the employee can no longer perform
the essential functions of his or her former position. Id. at *8. The court further held that an
“employer has a duty under the ADA to consider transferring a disabled employee who can no
longer perform his old job even with accommodation to a new position within the Company for
which that employee is otherwise qualified.” Id. at *10.
Despite this obligation, however, the court held that Burns was precluded from
recovering under the ADA because he failed to abide by Coca-Cola’s non-discriminatory policy
requiring him to apply for a transfer. In so holding, the court recognized that “nearly all the
cases that address a plaintiff’s ability to recover as a ‘qualified individual with a disability’ in
light of his or her employer’s affirmative duty to accommodate conclude that, although
employers have a duty to locate suitable positions for disabled employees, such employees may
not recover unless they propose, or apply for, particular alternative positions for which they are
qualified.” Id. at *11. Because Burns failed to request a transfer to another position within the
Company that he was qualified to perform, he failed to establish that he is a qualified individual
with a disability entitled to an accommodation or recovery under the ADA. Id. at *12. See also
Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566-67 (2d Cir. 2000) (burden of
establishing that a vacancy exists for which plaintiff-employee is otherwise qualified is on
plaintiff-employee).
4.
Employer Need Not Retrain Employee for New Position.
Mitchell v. Washingtonville Central School District, 190 F.3d 1 (2d Cir. 1999):
Employer not required under the ADA to retrain and assign disabled employee to
an entirely different position.
Mitchell was Head Custodian at the Washingtonville High School. As his job functions
evolved, Mitchell, whose right leg was amputated and who wore a prosthesis as a result,
increasingly had to remain on his feet throughout the day. In November 1994, Mitchell’s doctor
determined that Mitchell was unable to walk and stand on a regular basis and requested that
Mitchell be retrained for a job that was more sedentary. Shortly thereafter, the School District
informed Mitchell that it had terminated his employment.
Mitchell then commenced suit alleging that the School District violated the ADA by
failing to provide him with a reasonable accommodation of his disability. Although conceding
that he could not perform the essential functions of the Head Custodian position, Mitchell argued
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that his former employer should have retrained him and assigned him to an entirely different
position as a reasonable accommodation. The court rejected his argument and held that
employers are not required to find another job for an employee who is not qualified for the job he
or she was doing. In so holding, the court took what is quickly becoming the minority position.
See also Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) (employer is
“not . . . obligated to accommodate [plaintiff] by reassigning him to a new position”), cert.
denied, 525 U.S. 1115, 118 S. Ct. 1050 (1998).
Note that although the EEOC states that reassignment to a vacant position is a form of
reasonable accommodation, the EEOC has followed the majority of the courts and recognized
that an employer need not change a person’s supervisor as a form of reasonable accommodation.
1999 Guidance at 22.
E.
Modification of Work Schedule/Attendance Requirement.
1.
Accommodation Required.
Reasonable accommodation may include part-time or modified work schedules.
U.S.C. § 12111(9).
42
Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998): Agreeing with
EEOC position that part-time work might be appropriate as a reasonable
accommodation.
Employee who suffered from major depression and post-traumatic stress disorder as a
result of sexual harassment he suffered at work was given a one year leave of absence with pay.
After the one year leave expired, the plaintiff asked to return to work on a temporary part-time
basis. Id. at 169-70. The company hired a psychiatrist who determined that the employee should
not be allowed to return to part-time work. Id. at 170.
Although Lucent argued that it had already made a reasonable accommodation to the
employee’s disability by giving him 52 weeks of leave with pay, the court found that “[t]he duty
to provide reasonable accommodation is a continuing one…and [was] not exhausted by one
effort.” Id. at 172. Thus, the court held that a limited part-time assignment “strikes us as
eminently reasonable” and is “in accord with the Americans With Disabilities Act.” Id.
The EEOC takes the position that absent undue hardship, an employer must allow an
employee with a disability to work a modified or part-time schedule as a reasonable
accommodation. “A modified scheduled may involve adjusting arrival or departure times,
providing periodic breaks, altering when certain functions are performed, allowing an employee
to use accrued paid leave, or proving additional unpaid leave.” 1999 Guidance at 17. The EEOC
further states – in direct contravention of the holdings of numerous courts – that although
attendance is relevant to job performance, attendance is not an essential function as defined by
the ADA because it is not one of the “fundamental job duties of the employment position.” Id. at
17 n.61.
2.
Accommodation Not Required.
Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000): When punctuality is an
essential job function, an accommodation that allows tardiness is not reasonable.
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Debra Earl was an Area Coordinator for Mervyns. One of her principal responsibilities
was preparing her department for the store’s morning opening. The employer’s punctuality
policy allowed its employees fifteen “punctuality infractions” in a 365-day period. After 15
infractions, the employer implemented a three-step corrective action plan including oral and
written warnings and eventual discharge if the situation did not improve.
Beginning in November, 1992, Earl began arriving to work late. After she had been late
29 times within the 365-day period, she informed the employer that she was suffering from
Obsessive Compulsive Disorder (“OCD”) and that this condition was the cause of her tardiness.
Mervyns offered to permit her to “clock in” up to fifteen minutes ahead of her scheduled shift
and receive appropriate overtime pay, but Earl wanted to be allowed to “clock in” at whatever
time she arrived, without reprimand, and be permitted to make up any “late” time at the end of
her shift. Mervyns rejected that request as unreasonable. Earl’s doctor admitted that no other
accommodations for her OCD would allow her to arrive at work on time. Earl’s tardiness
problem continued and eventually her employment was terminated.
The court determined that punctuality was an essential function of Earl’s job because her
tasks as Area Coordinator by their very nature had to be performed daily at a specific time – in
the morning. Id. at 1366. The court further held that the plaintiff’s suggested accommodation
was not reasonable because it would require the employer to change the essential functions of the
job. Because she was unable to perform the essential functions of her job, with our without a
reasonable accommodation, the court concluded that she “was not a qualified individual under
the ADA.” Id. at 1367
Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998): Employer has no duty to create
a part-time position to accommodate a disabled employee.
In Terrell, plaintiff was employed by USAir as a reservation sales agent. The job
required plaintiff to type constantly on a keyboard or telephone keypad. Plaintiff developed
carpal tunnel syndrome because of her job and subsequently took a leave of absence for surgery
and recovery. In April 1993, Plaintiff returned to work on limited duty, and after she exceeded
the sixty-day limited allowed for limited duty, she was placed on unpaid medical leave. At that
time, USAir had no permanent part-time reservations agents. In April 1994, however, USAir
reconsidered using part-time agents and recalled plaintiff in a part-time position. Id. at 623.
Although still employed by USAir, plaintiff filed suit under the ADA alleging that USAir had
failed to accommodate reasonably her disability by failing to create a part-time position for her
in 1993.
USAir argued that it had no duty to place plaintiff in a part-time position as a reservations
agent because no such positions existed when plaintiff was placed on medical leave. The court
agreed. Id. at 625. Specifically, the court found that “[a]lthough both the statute and regulations
list (“may include”) part-time work as a potential reasonable accommodation, we do not accept
that this listing means part-time work is always a reasonable accommodation . . . . A plaintiff
does not satisfy her initial burden by simply naming a preferred accommodation – even one
mentioned in the statute or regulations; she must show that the accommodation is ‘reasonable’
given her situation.” Id. at 626. The court then held that USAir was not required to create a
part-time position for the plaintiff where all part-time positions had already been eliminated from
the company. Id. Significantly, in so holding the court recognized that “[w]hether a company
will staff itself with part-time workers, full-time workers, or a mix of both is a core management
policy with which the ADA was not intended to interfere.” Id. at 626-27. See also Burch v.
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Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997) (employer “was not forced to create a parttime position” for a disabled area service manager where “the essential functions of the [job]
demanded a full-time [employee]”), cert. denied, 522 U.S. 1084, 118 S. Ct. 871 (1998).
F.
Work at Home/Work Out of the Office.
Smith v. Ameritech, 129 F.3d 857 (6th Cir. 1997): Work at home is a reasonable
accommodation only in exceptional cases.
In this case, plaintiff Smith had worked for the defendant employer as a sales
representative until he sustained a debilitating back injury. Id. at 860. Smith’s doctors reported
that, as a result of his injury, Smith was fit only for the most sedentary type employment and
would be unable to perform the essential functions of his sales representative position. Id. at
861. Because of his disability, Smith requested that his employer reassign him to a position
permitting him to work from his home. Id. at 862. Soon thereafter, the employer informed
Smith that, because it had been unable to find him a position involving sedentary work, his
employment would be terminated. Id. Smith then commenced an action against his employer
claiming that it had failed to accommodate his disability in violation of the ADA.
Affirming the district court’s order granting summary judgment, the Sixth Circuit held
that Smith’s proposed accommodation was not objectively reasonable in view of his disability.
Id. at 867. Noting that Smith failed to show that any position that would accommodate his
disability was open while his employer tried to find him a job, the court held that the ADA does
not require employers to create a new position for a disabled employee who can no longer
perform the essential functions of his job. Id. The court went on to hold that Smith failed to
present any facts indicating that “his was one of those exceptional cases where he could have
performed at home without a substantial reduction in quality of [his] performance.” Id.
(quotations omitted). Accordingly, the court held that the employer did not violate the ADA by
failing to creating a position for Smith that would enable him to work out of his home. Id.
Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418 (N.D. Cal. 1996),
aff’d, 191 F.3d 1043 (9th Cir. 1998) cert. denied, 120 S. Ct. 1221 (2000): Work
at home may be a reasonable accommodation for administrative employee.
In this case, plaintiff Norris suffered a back injury while working as a sales manager and
left her job on disability leave. The injury rendered her unable to perform heavy lifting or to
drive her car for long periods of time. Id. at 1428. Shortly after she was injured, Norris was
offered and accepted the position of “Brand Manager.” Id. at 1427. According to Norris, she
asked her employer to allow her to work as a Brand Manager from her home. Id. at 1425.
Norris was then terminated, and she commenced an action against her employer under the ADA.
A jury found that Norris’s employer violated the ADA and awarded her $300,000 in
compensatory damages. Id. at 1421. Thereafter, the employer moved for a judgment as a matter
of law, arguing that the jury improperly determined that the employer failed to offer Norris a
reasonable accommodation. Id. In denying the employer’s motion, the district court explained
that the evidence at trial indicated that the essential functions of the Brand Manager position
were administrative and clerical in nature, involving mostly paperwork and talking on the
telephone. Id. at 1431-32. The court concluded that “a jury could have reasonably found that
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time, if necessary), where she could have performed the administrative duties of the Brand
Manager job on the computer and over the telephone.” Id. at 1431.
In its recent Guidance, the EEOC recognized that an employer need only modify its
policy concerning where work is performed if such a change is needed as a reasonable
accommodation and “this accommodation would be effective and would not cause an undue
hardship.” 1999 Guidance at 23.
G.
Transportation to and from Work.
Wade v. General Motors Corp., 1998 WL 639162 (6th Cir. Sept. 10, 1998):
Employer is not responsible for getting an employee to work.
In Wade, the plaintiff who could not drive himself to work because of his vision
impairment sought his employer’s assistance in getting to work. The court rejected the
plaintiff’s position and held that if the plaintiff could not drive, he “should. . . find another means
of transportation to and from work.” Id. at *2.
According to the EEOC, an employer is only required to provide accommodation in those
situations where the barriers exist inside the workplace, not when the barriers exist outside the
workplace. See 4/17/95 EEOC Informal Guidance Letter from Elizabeth M. Thorton, Deputy
Legal Counsel; See also 6/15/93 EEOC Informal Guidance Letter from Ms. Thorton. Indeed,
barriers outside the workplace, such as a difficulty in getting to work, are not “workplace created
barriers.” Id. Moreover, according to the EEOC, an employer is not required to assist an
employee into the facility (e.g., from a car to a wheelchair to the facility). Id. But see Lyons v.
Legal Aid Soc’y, 68 F.3d 1512 (2d Cir. 1995) (employer may have to “reasonably accommodate”
transportation needs of his or her disabled employees in getting to and from work).
H.
Requests for Leave.
1.
Accommodation Required.
Although leaves of absence are not expressly mentioned in the ADA’s non-exhaustive list
of reasonable accommodations, the EEOC regulations state that “other accommodations could
include permitting the use of accrued paid leave or providing additional unpaid leave for
necessary treatment.” 29 C.F.R. Pt. 1630, app. § 1630.2(o).
Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000): Leave
beyond one-year job reservation period normally provided under employer’s
policies was reasonable accommodation.
Plaintiff Garcia worked for Lederle Parenternals, Inc., as a secretary from October 1983
to June 13, 1996, when her employment was terminated. In 1986, Garcia was stricken with
breast cancer and underwent several rounds of surgery and chemotherapy during which time she
has taken a number of leaves of absence and has collected disability benefits. In 1996, Garcia
was notified that her most recent disability leave exceeded the company’s one-year period for job
reservation and that as a result, her employment was terminated. During her absences, Garcia’s
essential job functions were fulfilled by temporary employees and there was no evidence that the
temporary employees cost her employer any more than Garcia would have or that their
performance was in any way unsatisfactory. Id. at 642-43.
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After Garcia brought suit under the ADA and Puerto Rico law, the district court granted
Lederle’s motion for summary judgment. On appeal, the court reversed the district court’s
decision on the grounds that the lower court had failed to conduct the individualized assessment
required by the ADA and had instead applied a per se rule to determine that the request for
additional leave beyond the one-year period was not reasonable. The court of appeals held that
on the facts before it, where the essential functions of the job were being performed in the
plaintiff’s absence without undue hardship for the employer, a request for a limited amount of
additional leave was reasonable. “[T]he employer may in some instances, such as here, be able
to get temporary help or find some other alternative that will enable it to proceed satisfactorily
with its business uninterrupted while a disabled employee is recovering. In situations like that,
retaining the ailing employee’s slot while granting unsalaried leave may be a reasonable
accommodation required by the ADA.” Id. at 650.
Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998):
Leave of a specific duration is a form of reasonable accommodation.
The plaintiff in Rascon suffered from post-traumatic stress disorder, which led to
problems with anger and fighting in the workplace. As a result, plaintiff requested an
approximately six-month leave of absence under the company’s disability plan to attend a
treatment program. Although plaintiff was granted almost four months of leave, he was
discharged while still undergoing treatment. Id. at 1327-29. US West argued that the request for
leave would have caused an undue hardship and thus, was not a reasonable accommodation. In
rejecting this claim, the court noted that the company’s own policies required more leave than
was granted to plaintiff and moreover, the company had failed to carry its burden of
demonstrating that granting the leave would have caused it undue hardship. Id. at 1334-35.
Powers v. Polygram Holding, Inc., 40 F. Supp. 2d 195 (S.D.N.Y. 1999): Seventeen
week leave of absence for employee with clinically diagnosed manic depressive disorder may be
a reasonable accommodation.
In Powers, the plaintiff, who was employed as an Associate Tax Director, suffered from
clinically diagnosed manic depressive disorder and requested three leaves of absence totaling 14
weeks. All of his requests were granted, but when he requested an additional leave of
approximately one month, his request was denied and he was subsequently fired. Id. at 197.
Plaintiff then brought suit alleging that the company had violated the ADA by firing him and
failing to provide him with the additional leave.
The court recognized that leaves of absence may be reasonable accommodations and
analyzed the circumstances under which leaves may not be reasonable. In so doing, the court
determined that
a court may hold, without the need for trial, that a requested leave of absence is an
unreasonable request for accommodation only in unusual circumstances, none of
which are present in the instant case. Examples of such circumstances are: 1)
where the request is for a very long leave of absence, such as one year (although
we do not here hold that any exact number is the “red line” that demarcates the
reasonable from the unreasonable); 2) where the absences are so sporadic that the
employer has no way of knowing, from one day to the next, if their employee will
even be reporting to work; 3) where it is clear that, even when the employee
returns from the requested leave of absence, he or she will still be unqualified to
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perform the essential functions of their job; or 4) where the employee was hired to
perform a specific task in a finite period of time, and the leave of absence would
make it impossible for that task to be completed in that time.
Id. at 201.
In denying summary judgment to the employer, the court recognized that although the
plaintiff’s return date was not certain, “no person recovering from clinically diagnosed mental
illness, especially while suffering symptoms of this illness, can give an absolute date as to when
his symptoms will ameliorate to the point that he will be able to return to work. To require such
certainty, and to read such a requirement into the principle that an employer need not ‘wait an
indefinite period for an accommodation to achieve its intended effect,’ . . . would be to eviscerate
much of the protection afforded under the ADA.” Id. at 202 (citation omitted). Thus, the court
held that the plaintiff’s request for a seventeen-week leave was not so unreasonable that a jury
should not be allowed to decide the issue. Id.
2.
Accommodation Not Required.
Deal v. Candid Color System, 1998 WL 381036 (10th Cir. July 6, 1998):
Disabled employee who could only work infrequently and sporadically was not
entitled to leave for her absences.
Deal worked for Candid Color Systems (“CCS”) as a full-time employee in its film
library. After she was diagnosed with breast cancer in April 1995, CCS permitted Deal to work
whenever she felt well. She provided little or no advance notice of her absences and worked
only sporadically during July, August and September 1995. In September, Deal was told that she
would have to work a fixed part-time schedule. Although Deal was dissatisfied, she ultimately
agreed to the fixed schedule, but never returned to work. After missing several scheduled work
days, Deal was discharged. Id. at **1.
Deal sued CCS and alleged that she could perform the essential functions of her job if she
was accommodated by being allowed to work whenever she felt able. The district court granted
summary judgment in favor of CCS. On appeal, the court affirmed the grant of summary
judgment for CCS and found that “allowing Deal to work whenever she was able would have
imposed an undue hardship on its business during the busy fall season.” Id. at **2.
Johnson v. Foulds, Inc., 1997 WL 78599 (7th Cir. Feb. 19, 1997): Indefinite
leave is not a reasonable accommodation because it does not enable disabled
individual to work and its cost to the employer is disproportionate to the benefit.
Johnson was the secretary to the president of Foulds when she began to suffer from a
disabling mental depression. She requested an indefinite leave of absence and then failed to
report to work for approximately one month. Shortly thereafter she was discharged. Id. at **1.
Johnson argued that she could have performed the essential functions of her job if her request for
indefinite leave had been granted. The court, however, agreed with the district court’s holding
that “an indefinite leave of absence is neither an ‘accommodation,’ because it does not ‘enable a
disabled individual to work,’ nor ‘reasonable,’ because the cost to the employer is so clearly
disproportionate to the benefit.” Id. at **3.
Further, “[a] reasonable accommodation is not a guarantee of continued employment; it is
an adaptation of work requirements designed to enable the employee to do her job and do it at
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reasonable cost. Requiring an employer to hold a position open for an indefinite period would
accomplish neither.” Id. Thus, the appeals court affirmed the district court’s grant of summary
judgment for the company. See also Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir.
1999) (additional recovery time of unspecified duration was not reasonable accommodation).
Significantly, however, in its 1999 Guidance, the EEOC states that indefinite leave may
be a reasonable accommodation as long as it does not create an “undue hardship.” 1999
Guidance at 27-28. This is true even if the employer already has a generous unpaid leave policy.
On this point, the Guidance conflicts with circuit court opinions.
I.
Modifying No-Fault Attendance Policies as a Reasonable Accommodation.
Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir. 1998): Uniformly
applied one-year leave policy does not violate the ADA and no-fault policy should
not itself be considered an ADA violation.
The employer in Gantt had a leave of absence policy that provided for a maximum of one
year leave of absence at the expiration of which employment would be terminated. The policy
had been posted for 10 years on the employee bulletin board. Id. at 1045. The plaintiff suffered
an on-the-job injury that led her to take a leave of absence from work. Shortly before the
plaintiff reached the one year leave limit set forth in the company’s policy, the company’s
personnel administrator called the plaintiff and asked when she would be returning to work. The
plaintiff responded that she would return as soon as she received a release from her doctor but
that she had no idea when that would be or what her limitations would be. Id. After plaintiff
exceeded the one year absence policy, her employment was terminated.
Although the plaintiff alleged in her complaint that the company’s leave policy violated
the ADA because “it is applied most often to ill or injured employees[,]” the district court
granted the company’s motion for summary judgment on the ADA claim. Id. at 1045. In so
doing, the court determined that the policy did not violate the ADA as a matter of law because
there was no evidence that the policy was applied unfairly or inconsistently enforced. Id.
Plaintiff contended on appeal that there was evidence that the policy had not been applied
consistently insofar as a co-worker had been on leave for approximately 15 months before she
was fired. Id. at 1046. The court of appeals rejected the argument and affirmed the lower
court’s decision. In affirming, the court recognized that the company’s “leave of absence policy
does not distinguish between disabled and non-disabled employees. It is a uniform policy that
requires termination of any employee who does not return to work at the expiration of the leave
period.” Id. Further, the court found that “[p]laintiff’s comparison of herself to another disabled
employee who received more favorable treatment gives rise to no logical inference of
discrimination on the basis of disability.” Id.
The Gantt decision renders the ruling precedent in the Sixth Circuit at variance with the
subsequently issued EEOC guidelines. According to the EEOC, however, an employer may not
apply a “no-fault” leave policy under which employees are automatically terminated after they
have been on leave for a certain period of time. 1999 Guidance at 14. Rather, if an employee
with a disability needs additional unpaid leave as a reasonable accommodation, the employer
must modify its “no-fault” leave policy to provide the employee with the additional leave, unless
it can show that an alternate effective accommodation is available or that granting additional
leave would cause an undue hardship.
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J.
Duty to Provide Reasonable Accommodation for Perceived Disability.
“Disability” under the ADA includes being regarded as having an impairment that
substantially limits a major life activity. 29 C.F.R. § 1630.2(g)(3). However, while it is clear that
a “regarded as” disability case may proceed under a disparate treatment theory, there is presently
a split in the circuit courts of appeal as to whether individuals who are “regarded as” disabled are
entitled to reasonable accommodation.
Weber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999), cert. denied, 120 S. Ct. 794
(2000): “Regarded as” disabled plaintiffs are not entitled to reasonable
accommodations.
Weber was employed as an international sales manager for the defendant. After Weber
suffered a major heart attack and was hospitalized on a number of occasions, the company
reduced his commissions and told him that his employment could be terminated at any time. Id.
at 910. After he was ordered to relocate or accept a lower position at his then current location,
Weber asked the company to delay his relocation for six months. The company refused and
Weber was discharged.
Weber brought actual and perceived (regarded as) disability claims, and the district court
granted judgment as a matter of law on both claims in favor of the company. Id. The court of
appeals affirmed the lower court’s decision and, with respect to the perceived disability claim,
observed that “[t]he reasonable accommodation requirement makes considerably less sense in
the perceived disability context. Imposing liability on employers who fail to accommodate nondisabled employees who are simply regarded as disabled would lead to bizarre results.” Id. at
916.
In rejecting the perceived disability claim, the court further stated that the “ADA cannot
reasonably have been intended to create a disparity in treatment among impaired but nondisabled employees, denying most the right to reasonable accommodations but granting to
others, because of their employers’ misperceptions, a right to reasonable accommodations no
more limited than those afforded actually disabled employees.” Id. at 917. See also Deane v.
Pocono Med. Ctr., 142 F.3d 138, 148 n.12 (3d Cir. 1998) (en banc) (although not reaching “the
more difficult question addressed by the panel whether ‘regarded as’ disabled plaintiffs must be
accommodated by their employers if they cannot perform the essential functions of their jobs[,]”
“considerable force” given to argument that “regarded as” disabled plaintiffs are not entitled to
accommodations); Coleman v. Keebler Co., 997 F. Supp. 1102, 1119 (N.D. Ind. 1998)
(individual only perceived to be disabled not entitled to accommodation).
Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996): Regardless of whether a
plaintiff was actually disabled, he would be entitled to reasonable
accommodation if the employer perceived him to be disabled.
The plaintiff in Katz, a recent heart-attack victim, sought accommodation from his
employer in the form of a part-time work schedule in connection with his “actual” and
“perceived” disability claims. Id. at 28-29. The court held that even under the perceived claim,
plaintiff may have been entitled to an accommodation. The court based its holding on the theory
that “both the language and policy of the [ADA] seem to us to offer protection as well to one
who is not substantially disabled or even disabled at all but is wrongly perceived to be so.” Id. at
33. See also Davidson v. Midelfort Clinic, 133 F.3d 499, 509 & n.6 (7th Cir. 1998) (individual
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with record of substantially limiting impairment may be permitted to demand reasonable
accommodations to ongoing or recurrent limitations, even if current impairment is not disabling).
VI.
JOB APPLICATION PROCEDURES/PRE AND POSTEMPLOYMENT
INQUIRIES
A.
Preemployment Inquiries.
An employer’s ability to inquire into an individual’s need for reasonable accommodation
to perform the job is severely limited at the pre-offer stage of the employment process. In 1995,
the EEOC issued a Guidance on Preemployment Inquires (the “1995 Guidance”) to explain the
ADA provisions that prohibit an employer from asking disability-related questions and from
requiring medical examinations of an applicant before he or she has been given a conditional job
offer. 42 U.S.C.A. § 12112 (2)(A) & (B).
The 1995 Guidance states that although employers may not ask disability-related
questions, i.e., questions that are likely to elicit information about a disability, or require medical
examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an
applicant is qualified for the job, including:
1.
asking about an applicant’s ability to perform specific job functions;
2.
asking about an applicant’s non-medical qualifications and skills, such as
education and work history, certifications, and licenses;
3.
asking applicants to describe or demonstrate how they would perform the job
tasks;
4.
asking applicants whether they will need reasonable accommodation for the
hiring process;
5.
asking applicants for reasonable documentation about their disability if they
request reasonable accommodation for the hiring process;
6.
asking whether an applicant can meet the employer’s attendance requirements;
7.
asking questions about an applicant’s impairment that is not likely to elicit
information about whether the applicant has a disability;
8.
asking questions about current use of illegal drugs;
9.
asking questions about applicant’s drinking habits;
10.
asking applicants, but only under certain conditions, to “self-identify” as
individuals with disabilities for purposes of employer’s affirmative action
program, see 41 C.F.R. §60-741.42(a).
11.
requiring applicants to take a physical agility test, i.e., demonstrating the ability to
perform actual or simulated job tasks;
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12.
requiring applicants to take a physical fitness exam without measuring the
applicant’s physiological or biological responses;
13.
requiring applicants to provide medical certification that they can safely perform a
physical agility or physical fitness test;
14.
requiring applicants to take tests to determine illegal use of controlled substances.
An employer may not ask the following questions in a pre-employment interview:
1.
whether the applicant will need a reasonable accommodation to perform the
functions of the job;
2.
whether the applicant can perform major life activities such as standing, lifting,
walking, etc.;
3.
questions about an applicant’s use of legal drugs;
4.
questions of third parties that the employer could not ask the applicant directly.
Note, however, that prior to making a job offer, an employer may inquire into the need
for and type of reasonable accommodation required by an applicant if: (1) the employer
reasonably believes that the applicant needs reasonable accommodation because of an “obvious”
disability; (2) the employer reasonably believes that the applicant needs reasonable
accommodation because of a “hidden” disability voluntarily disclosed by the applicant; or (3) the
applicant voluntarily disclosed the need for reasonable accommodation to perform any of the
functions of the position.
Applicants need not be disabled to state a claim under the ADA based on impermissible
preemployment inquiries. See, e.g., Griffin v. Steeltek, Inc., 160 F.3d 591 (10th Cir. 1998), cert.
denied, 526 U.S. 1065, 119 S. Ct. 1455 (1999) (job applicant not precluded from stating prima
facie claim under the ADA section prohibiting preemployment inquiries regarding disabilities by
fact that applicant not disabled nor perceived to be disabled). In addition, the 2000 Guidance
states that an employee who applies for a new (i.e., different job) with the same employer should
be treated as an applicant for the new job for purposes of the pre-employment inquiry and
medical examination guidelines.
B.
Postemployment Inquiries.
On July 27, 2000, the EEOC issued an Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees Under the ADA (EEOC Enforcement
Guidance at www.eeoc.gov/docs/guidance-inquiries.html, referred to hereinafter as “2000
Guidance”). The 2000 Guidance explains the ADA’s rules concerning when employers may and
may not obtain medical information about their employees. The Guidance was intended to
answer some of the most frequently-asked questions posed to the EEOC about how the ADA
applies to people who are already working. As an initial matter, the EEOC clarifies the rules
about when an employer may make disability-related inquiries and require medical
examinations. The rules are different at each of the three employment stages: pre-offer, postoffer and during employment. At the first stage (pre-offer), an employer may not ask any
disability-related questions or require any medical examinations, even if they are job-related. At
the second stage (post-offer), an employer may ask disability-related questions and conduct
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medical examinations, regardless of whether they are related to the job, as long as it does so for
all entering employees in the same job category. At the third stage (after employment begins),
an employer may make disability-related inquires and require medical examinations only if they
are job-related and consistent with business necessity. 2000 Guidance at 3.
With respect to disability-related inquiries, the 2000 Guidance states that the same
standards for determining whether a question is disability-related and therefore prohibited in the
pre- and post-offer stages apply to the employment stage, and the EEOC provides a list of
disability-related inquires that may not be made at the employment stage, including:
1.
asking an employee whether he or she has (or ever had) a disability or how he or
she became disabled or inquiring about the nature or severity of an employee’s
disability;
2.
asking an employee to provide medical documentation regarding his or her
disability (unless the disability or the need for the accommodation is not known or
obvious and an accommodation is requested);
3.
asking an employee’s co-worker, family member, doctor or another person about
an employee’s disability;
4.
asking about an employee’s genetic information;
5.
asking about an employee’s prior workers’ compensation history;
6.
asking an employee whether he or she is currently taking any prescription drugs
or medications.
An employer may ask the following questions of its employees:
1.
asking generally about an employee’s well being (e.g., how are you?), asking an
employee who looks tired or ill if he or she is feeling okay, asking an employee
who is sneezing or coughing whether he or she has a cold or allergies or asking
how an employee is doing following the death of a loved one or the end of a
marriage or relationship;
2.
asking an employee about nondisability-related impairments (e.g., how did you
break your leg?);
3.
asking an employee whether he or she can perform job functions;
4.
asking an employee whether he or she has been drinking or currently using illegal
drugs;
5.
asking a pregnant employee how she is feeling or when her baby is due;
6.
asking an employee to provide the name and telephone number of a person to
contact in case of a medical emergency.
In addition, the 2000 Guidance provides clarification with respect to disability-related
inquiries and medical examinations as they apply to reasonable accommodation, particularly
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requests for leave, and to direct threat concerns. For example, the 2000 Guidance states that
although an employer may ask an employee for medical documentation when he or she requests
a reasonable accommodation, the employer may only request documentation that is sufficient to
substantiate that the employee has an ADA covered disability and needs the reasonable
accommodation requested, but typically cannot ask for an employee’s complete medical records.
The 2000 Guidance also states that an employer may require an employee to go to a health care
professional of the employer’s choice when an employee requests a reasonable accommodation,
but only if the employee’s own health care professional provides insufficient documentation and
the employee is told that the documentation is insufficient yet fails to provide the missing
information in a timely manner. The EEOC further recommends that the employer should
consider consulting with the employee’s doctor (with the employee’s consent) before requiring
the employee to go to a health care professional chosen by the employer. 2000 Guidance at 1011.
In terms of requests for leaves, the 2000 Guidance states that an employer may request an
employee to provide a doctor’s note or other explanation to substantiate his or her use of sick
leave and an employer may require periodic updates when an employee is on extended leave
because of a medical condition. According to the Guidance, however, when the employer has
granted a fixed period of extended leave and the employee has not requested additional leave, the
employer cannot require the employee to provide periodic updates. Employers may call
employees on extended leave to check on their progress or to express concern for their health.
Id. at 12. Also, an employer may make disability-related inquiries or require a medical
examination when an employee who has been on leave for a medical condition seeks to return to
work if the employer has a reasonable belief that the employee’s present ability to perform
essential job functions will be impaired by a medical condition or that he or she will pose a direct
threat due to a medical condition. Id.
With respect to the direct threat analysis, the 2000 Guidance provides that an employer
may require an employee who it reasonably believes will pose a direct threat, be examined by an
appropriate health care professional of the employer’s choice. Any medical examination,
however, must be limited to determining whether the employee can perform his or her job
without posing a direct threat, with or without reasonable accommodation. Id. at 11. On a related
point, the EEOC states that an employer may subject an employee who has been off from work
in an alcohol rehabilitation program, to periodic alcohol testing when he or she returns to work,
if the employer has a reasonable belief, based on objective evidence, that the employee will pose
a direct threat in the absence of periodic testing. Id. at 13.
C.
Qualification Standards.
Employers may set forth qualification standards that employees must meet in order to be
considered “otherwise qualified” for a particular job. The EEOC regulations define
“qualification standards” as “personal and professional attributes including the skill, experience,
education, physical, medical, safety and other requirements established by a covered entity as
requirements which an individual must meet in order to be eligible for the position held or
desired.” 29 C.F.R. § 1630.2(r). Although an employer is not permitted to use such standards if
they screen out or tend to screen out disabled individuals on the basis of their disability,
qualification standards may be applied if they are shown to be job-related for the position in
question and consistent with business necessity. See 29 C.F.R. Pt. 1630, app. § 1630.10.
Further, while qualification standards may be an acceptable means of determining a prospective
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employee’s ability to perform the job at issue, absence of a disability can never be a qualification
standard or be part of a job description.
Qualification standards are only relevant where they set forth the standard necessary to
perform the essential functions of a position. While qualification standards are permissible in
certain instances, “[a] blanket exclusion of all disabled [individuals] clearly constitutes unlawful
discrimination on the basis of a disability because it is based on generalizations or stereotypes
about the effects of a particular disability on an individual.” Champ v. Baltimore County, 884 F.
Supp. 991, 996 (D. Md. 1995), aff’d without op., 91 F.3d 129 (4th Cir. 1996); see, e.g.,
Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 698-99 (7th Cir. 1998) (provision of
collective bargaining agreement stating that layoff, recall and promotion would be based on
length of service “provided the qualifications, ability to perform the work and physical fitness
are equal among employees eligible for consideration” would violate ADA if “physical fitness”
interpreted as imposing independent criterion on class of employees, as it would tend to screen
out disabled employees even for positions where physical fitness not essential requirement of
job; case remanded to district court for interpretation of agreement); EEOC v. AMR Eagle, Inc.,
No. 3:98-CV-0763-M (N.D. Tex Aug. 1, 2000) (consent decree approved pursuant to which
American Airlines will pay $500,000 and discontinue use of extensive medical guidelines that
effectively eliminated applicants for flight attendant jobs based on a lengthy list of medical
conditions, including lupus, sickle cell anemia, diabetes, mastectomy and attention deficit
disorder).
Once a plaintiff demonstrates that a qualification standard tends to screen out disabled
applicants, the burden shifts to the employer to demonstrate that the qualification standard is jobrelated and consistent with business necessity. See, e.g., Valle v. City of Chicago, 982 F. Supp.
560, 566 (N.D. Ill. 1997) (where disabled probationary policy officer demonstrated that he was
denied position as regular police officer because of his inability to complete required running
segment of physical training program, burden shifted to city to demonstrate that ability to run 1.5
miles in under 15 minutes was job-related and consistent with business necessity).
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 55, 119 S. Ct. 2162 (1999): An
employer can use its compliance with applicable Department of Transportation
(“DOT”) safety regulations to justify its visual-acuity job qualification standard,
despite existence of experimental program by which DOT standard could be
waived in an individual case.
Kirkingburg began working as a truck driver for Albertsons, Inc. in 1990. Before
commencing work, Kirkingburg was erroneously certified by a physician as meeting the
Department of Transportation’s (“DOT”) long-established basic vision standards for commercial
truck drivers. In a 1992 examination, however, Kirkingburg’s vision was correctly assessed as
essentially monocular and did not meet the DOT standards. At that time, Kirkingburg was
informed that he could apply for a waiver of the standards. Because he did not meet the DOT
standards, Albertsons fired Kirkingburg and refused to re-hire him when he later received a
waiver. Kirkingburg then sued Albertsons, claiming his termination violated the ADA.
The district court granted summary judgment in favor of Albertsons on the grounds that
Kirkingburg was not “qualified” for the truck driver position because he did not meet the DOT
basic vision standards, and giving Kirkingburg additional time to obtain a DOT waiver was not a
required reasonable accommodation because the waiver program was “a flawed experiment” that
did not alter the basic DOT standards. The Ninth Circuit Court of Appeals reversed the grant of
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summary judgment. First, the Court rejected Albertsons’ argument (raised for the first time on
appeal) that Kirkingburg was not “disabled” within the meaning of the ADA, concluding that
Kirkingburg was disabled as a matter of law based on the “uncontroverted evidence” presented
below. More importantly, the Court held that Albertsons could not use compliance with the
DOT regulation concerning basic vision standards as justification for the vision requirement
because the waiver program was a “lawful and legitimate part of the DOT regulatory scheme.”
The Court of Appeals further held that, although Albertsons could set a vision standard different
from the DOT’s, it had to justify its independent standard and could not do so in this case.
The Supreme Court reversed. As an initial matter, the Court held that, based on its
opinion in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999), the Ninth
Circuit should have considered the mitigating factor that Kirkingburg’s brain had developed
mechanisms for correcting his vision. 119 S. Ct. at 2169. The Court then addressed the issue of
whether Albertsons could insist upon a job qualification based on the minimum level of visual
acuity set forth in the DOT regulation. First, the Court noted that the regulation at issue had been
in effect since 1971 and represented the agency’s considered determination about the level of
visual acuity needed for safe operation of a commercial motor vehicle in interstate commerce.
Id. at 2172. In contrast, the regulatory record showed the waiver program was simply an
experiment designed to elicit factual information for possible reconsideration of the existing
standards, and the waiver regulation did not rest on any final factual conclusion that the waiver
scheme was conducive to public safety, nor did it purport to modify the substantive content of
the general acuity regulation in any way. Id. at 2173-74. The Court concluded, “[i]t is simply
not credible that Congress enacted the ADA (before there was any waiver program) with the
understanding that employers choosing to respect the Government’s sole substantive visual
acuity regulation in the face of an experimental waiver might be burdened with an obligation to
defend the regulation’s application according to its own terms.” Id. at 2174. Accordingly, the
Court reversed the judgment of the Court of Appeals.
D.
Medical Examinations and Safeguarding Medical Information.
As the 2000 Guidance states, under the ADA, an employer may not require a medical
examination to determine whether an individual has a disability or the extent and nature of the
disability. 42 U.S.C. § 12112(d)(2)(A). However, medical examinations are permitted under
two circumstances: (1) employment entrance examinations may be required after an offer of
employment has been made, provided all entering employees are subjected to such an
examination regardless of disability (42 U.S.C. § 12112(d)(3)); and (2) an employer may require
a current employee to undergo an examination if it “is shown to be job-related and consistent
with business necessity.” 42 U.S.C. § 12112(d)(4)(A).
With respect to examinations of current employees, “job-related and consistent with
business necessity” means that the “employer ‘has a reasonable belief, based on objective
evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a
medical condition; or (2) an employee will pose a direct threat.’” 2000 Guidance at 6. This
includes medical examinations that may be necessary to determine whether an employee
returning from medical leave is able to perform the essential functions of his or her position,
and/or to determine whether any accommodations are necessary to comply with the employer’s
obligations under the ADA. According to the 2000 Guidance, however, an employer may not
make disability-related inquiries or require a medical examination of an employee based in
whole or in part, on information learned from another person unless the information learned is
reliable and would give rise to a reasonable belief that the employee’s ability to perform essential
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job functions will be impaired by a medical condition or that he or she will pose a direct threat
due to a medical condition. Id. at 8.
The courts have permitted medical examinations to determine an employee’s fitness for
duty, or where performance problems are linked to health problems, provided the examinations
are properly limited in scope. See, e.g., Porter v. U.S. Alumoweld Co., Inc., 125 F.3d 243, 246
(4th Cir. 1997) (summary judgment for employer affirmed where employee terminated for
refusing to submit to return to work examination following back surgery); Yin v. California, 95
F.3d 864 (9th Cir. 1996), cert. denied, 519 U.S. 1114, 117 S. Ct. 955 (1997) (summary judgment
for employer affirmed where employee sued to prevent employer from compelling her to release
medical records or to undergo a medical examination where employee had missed an inordinate
number of days of work and employer’s only motivation was to determine whether she could
work). Moreover, in its 2000 Guidance, the EEOC states that if an employee fails to respond to
a disability-related inquiry or fails to submit to a medical examination that is job-related and
consistent with business necessity, the employer may in certain circumstances – i.e., where the
possible disability and need for reasonable accommodations are not obvious – refuse the
requested accommodation. 2000 Guidance at 9-10.
The ADA also requires employers to protect any medical information gathered in the
course of an employment entrance or employee examination. All medical information must be
kept confidential and separate from the applicant or employee’s personnel file. 42 U.S.C.
§ 12112(d)(3)(B) and (4)(C); 29 C.F.R. § 1630.14(b)(1)(i-iii); EEOC ADA Enforcement
Guidance: Preemployment Disability-Related Questions and Medical Examinations (October
10, 1995). Narrow exceptions exist for disclosing specific, limited information to supervisors
and managers, first aid and safety personnel, and government officials investigating compliance
with the ADA. Employers also may disclose medical information to state workers’
compensation offices, state second injury funds, or workers’ compensation insurance carriers in
accordance with state workers’ compensation laws and may use the medical information for
insurance purposes. 42 U.S.C. §§ 12112(d)(3)(B) and (4)(C), 12201(c); 29 C.F.R. pt. 1630 app.
§ 1630.14(b).
Sullivan v. River Valley School District, 197 F.3d 804 (6th Cir. 1999) cert.
denied, 120 S. Ct. 2718 (2000): Request that an employee obtain a medical exam
may signal that an employee’s job performance is suffering, but cannot itself
prove perception of a disability.
Beginning in 1977, Sullivan was employed as a teacher in the River Valley School
District. Prior to 1995, he had not been reprimanded or disciplined and had received consistently
satisfactory job evaluations. In 1995, Sullivan’s behavior changed drastically. For example, at a
January, 1995 school board meeting, he engaged in disruptive and abusive verbal outbursts,
shoved papers in the faces of individual school board members and refused to stop when asked
by the board president. Id. at 808. His strange behavior continued, including his disclosing
confidential information about a student’s grades and subsequent grade change to a local
newspaper. In March, 1995, the school’s superintendent contacted a psychologist for an
informal review of Sullivan’s behavior. The psychologist stated that he thought Sullivan might
be dangerous and mentally unstable. Sullivan was suspended with pay pending board approval
of the requirement that Sullivan be required to undergo mental and physical fitness-for-duty
exams. Id. at 809.
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Sullivan’s threatening behavior continued and after the board approved the examination
requirement, Sullivan refused to comply. Subsequently, the board determined that the various
acts of misconduct and insubordination were grounds for discharging Sullivan. Sullivan
appealed the decision to the Michigan State Tenure Commission which converted the discharge
to a three-year unpaid suspension. Sullivan then brought an action under the ADA on the theory
that his employer regarded him as disabled and illegally suspended him without pay for refusing
to submit to mental and physical fitness-for-duty examinations. Sullivan’s evidence that his
employer treated him as impaired is that his employer asked him to undergo mental and physical
examinations to determine his fitness as a teacher following his allegedly exhibiting some
unusual behavior. Id. at 810. The court of appeals, however, affirmed the decision of the district
court granting summary judgment for the employer holding that “[g]iven that an employer needs
to be able to determine the cause of an employee’s aberrant behavior, this is not enough to
suggest that the employee is regarded as mentally disabled. As the district court ably explained,
a defendant employer’s perception that health problems are adversely affecting an employee’s
job performance is not tantamount to regarding that employee as disabled.” Id.
Moreover, the court rejected Sullivan’s argument that if an employer can order mental
and physical examinations in a case such as his, there is no limit to when an employer can
require such tests. Indeed, relying on the language of the ADA statute itself, the court
recognized that “an employer’s discretion to order employees to undergo examinations is hardly
unbounded. Post-hiring demands for examinations can only be made where shown to be ‘jobrelated and consistent with business necessity.’” Id. at 811 (citation omitted). Further, citing the
EEOC regulations interpreting the statute, the court also recognized that “any examination
ordered by the employer must be restricted to discovering whether the employee can continue to
fulfill the essential functions of the job.” Id. “Accordingly, we adopt this qualification for a
fitness-for-duty examination, acknowledging it is not an excuse for every wide-ranging
assessment of mental or physical debilitation that could conceivably affect the quality of an
employee’s job performance. While it is true that the ADA limits an employer’s ability to
request unfounded examinations to prevent ‘the unwanted exposure of the employee’s disability
and the stigma it may carry,’ an employer may order a well-founded examination.” Id. at 812.
In light of Sullivan’s aberrant behavior, the court concluded that the examinations ordered for
Sullivan met this standard. “Sullivan’s behavior had given the school district reason to seek
further information about his fitness for continued employment.” Id.
Cossette v. Minnesota Power & Light, 188 F.3d 964 (8th Cir. 1999): An
employee may state a claim under the ADA for unauthorized disclosure of
medical information by her employer, even where the employee is not disabled
within the meaning of the Act.
Dianne Cossette worked in a call center for Minnesota Power & Light (“MPL”). While
working at the call center, Cossette’s supervisor ordered her to undergo testing for suspected
intellectual deficiencies. The tests revealed Cossette had normal abilities. Cossette requested a
transfer to MPL’s office services department, and underwent a medical examination that
determined she had a twenty- to thirty-pound lifting restriction. Prior to the transfer, Cossette’s
new supervisor learned of her history of back injury, her lifting restriction, and the perceived
intellectual deficiencies. The supervisor shared this medical information with Cossette’s coworkers, which allegedly caused them to treat her in a condescending and patronizing fashion.
Upon learning that Cossette had applied for work with the U.S. Postal Service, the supervisor
also took it upon himself to contact the Postal Service and inform them of Cossette’s lifting
restriction. After the Postal Service rejected Cossette’s application, she filed suit against MPL,
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asserting a number of claims, including violation of the ADA’s confidentiality provisions. The
district court granted summary judgment in favor of MPL on the grounds that Cossette was not
disabled within the meaning of the ADA, and therefore could not avail herself of the ADA’s
protections for confidential medical information.
The court of appeals reversed the grant of summary judgment, holding that an employee
need not demonstrate that he or she is disabled in order to recover under the ADA for the
unauthorized disclosures of medical information by her employer. Id. at 969. The Court first
noted that the language of the relevant portions of the statute (42 U.S.C. §§ 12112(d)(3) and
(d)(4)) spoke of “employees” and “applicants,” in contrast to the ADA’s general prohibition on
disability discrimination, which provides that employers shall not “discriminate against a
qualified individual with a disability” (42 U.S.C. § 12112(a)). Id. The Court further reasoned
that a contrary reading of the confidentiality provisions would greatly decrease their usefulness:
“It makes little sense to require an employee to demonstrate that he has a disability to prevent his
employer from inquiring as to whether or not he has a disability.” Id. Finally, the Court was
persuaded by opinions from the other circuits that held that a plaintiff need not be disabled to
state a claim for the unauthorized gathering or disclosure of confidential medical information.
Id., (citing Fredenburg v. Contra Costa County Dep’t of Health Servs., 172 F.3d 1176 (9th Cir.
1999) and Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998), cert. denied, 526 U.S.
1065, 119 S. Ct. 1455 (1999)).
E.
Other Disability-Related Inquiries and Medical Examinations of Employees.
In addition to the disability-related inquires and medical examinations of employees
discussed above, there are a number of other acceptable inquiries and examinations discussed in
the 2000 Guidance. For example, an Employee Assistance Program (“EAP”) counselor may ask
an employee seeking help for personal problems about any physical or mental condition he or
she may have. The EAP counselor should not, however, act on behalf of the employer, must be
obligated to shield from decision makers any information the employee reveals and cannot have
power to affect employment decisions. 2000 Guidance at 14. Employers may make disabilityrelated inquiries and require medical examinations that are required or necessitated by another
federal law or regulation, i.e., the Occupational Safety and Health Act. Id. at 14-15. An
employer may also make disability-related inquiries or conduct medical examinations that are
part of its voluntary wellness program, as long as any medical records acquired as part of the
wellness program are kept confidential and separate from personnel records. Finally, an
employer may ask employees to voluntarily self-identify as persons with disabilities for
affirmative action purposes. Id. at 15.
VII.
COLLECTIVE BARGAINING AGREEMENTS
In attempting to fulfill the requirements of the ADA, a unionized employer may find that
some of its proposed accommodations may conflict with provisions in its collective bargaining
agreement (“CBA”). The EEOC regulations offer only limited guidance as to how employers
and unions are to reconcile their conflicting responsibilities under the ADA and the National
Labor Relations Act. The EEOC regulations do state, however, that while an employer cannot
use the CBA to avoid compliance with the ADA, it may consider the terms of a CBA to
determine whether a particular function is essential or whether providing such accommodation
poses an undue hardship on the employer. 29 C.F.R. Pt. 1630, app. §§ 1630.2(n) & 1630.15(d).
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In this area, the most common question courts have addressed is whether an employer is
required to violate a collective bargaining agreement in order to accommodate a disabled
employee.
Davis v. Florida Power & Light Co., 205 F.3d 1301 (11th Cir. 2000): Where
mandatory overtime is an essential function of the job and the rules governing its
assignment are set forth in a collective bargaining agreement, accommodations of
“no overtime” or selective overtime are unreasonable.
Davis filed suit against Florida Power & Light Company (“FPL”), alleging that he was
terminated by FPL in violation of the ADA. Davis suffered from a back injury and
consequently, his doctor suggested that he work no more than 8 hours a day. However, Davis’
job required mandatory overtime work, a condition that was expressly required by the collective
bargaining agreement that governed FPL’s relationship with Davis. That agreement specified
that if overtime were needed, employees with the least seniority would be the first to be assigned
overtime. In seeking an accommodation, Davis insisted that either he not be given overtime or
that he be allowed to assess whether he could medically perform overtime on an ad hoc basis.
Id. at 1304. The district court granted FPL summary judgment on all claims.
In affirming the district court’s decision and holding that Davis’ requested
accommodations of either no overtime or selective overtime were unreasonable as a matter of
law, the Eleventh Circuit held that “[t]he ADA does not require accommodations, such as those
Davis requested, that contravene the seniority rights of other employees under a collective
bargaining agreement.” Id. at 1306. In arriving at its decision, the court relied on holdings from
other circuits, including the Ninth Circuit in Willis v. Pacific Maritime Ass’n, 162 F.3d 561, 566568 (9th Cir. 1998) (“an employee’s proposed accommodation under the ADA is unreasonable if
it conflicts with a bona fide seniority system established under a [collective bargaining
agreement]”). A core element of the Davis court’s reasoning was that if Davis were allowed to
selectively decide whether to work overtime, more senior employees who would not otherwise
have to work overtime would be required to work in Davis’ stead. That, the Eleventh Circuit
held, was not required by the ADA. Id. at 1307.
Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997), cert. denied,
522 U.S. 1115, 118 S. Ct. 1050 (1998): The ADA does not require an employer to
take action inconsistent with the contractual rights of other workers under a
collective bargaining agreement.
The plaintiff in Foreman had been an employee of defendant, a welding and steel
fabrication facility, for over 22 years. At the relevant time, he worked as an “expeditor” making
deliveries of necessary materials and supplies to the buildings at the manufacturing plant. Under
a collective bargaining agreement (“CBA”), the plaintiff’s seniority entitled him to a “level
seven” position as an expeditor. Id. at 802. After the plaintiff underwent surgery and had a
pacemaker installed, he was precluded from working near power lines in the plant buildings.
Plaintiff took a disability leave because of his condition. He then filed a charge of discrimination
with the EEOC alleging that the company discriminated against him by failing to reasonably
accommodate him by giving him a new position. Id. at 803. Shortly thereafter, company
representatives met with the plaintiff to discuss his return to work.
Apparently, the plaintiff argued that he should be allowed to return to work at a level 7
expeditor or be given another position of comparable pay. Both requests were denied. The first
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request was denied because he was not qualified to perform the essential functions of the level 7
expeditor position. The second request was denied because other positions did not exist and the
“bona fide seniority provisions” of the CBA prevented the company from giving him another
position of comparable pay. Id.
Significantly, the plaintiff admitted that, under the terms of the CBA, he would not
otherwise be entitled to the reassignment that he sought because he did not have the requisite
seniority. He argued, however, that the seniority provisions of the CBA violated the ADA
because they precluded the company from offering him certain reassignments and that the
company’s obligation to accommodate him under the ADA trumps the company’s obligation to
honor its seniority provisions under the CBA. Id. at 809.
The court disagreed. “Following the other circuits which have considered this issue, we
hold that the ADA does not require an employer to take action inconsistent with the contractual
rights of other workers under a collective bargaining agreement.” Id. at 810. See also Lujan v.
Pacific Maritime Ass’n, 165 F.3d 738, 742 (9th Cir. 1999) (“[t]he federal courts of appeals that
have reached the issue are unanimously of the view that the ADA does not require
accommodations that contravene the seniority rights of other employees”).
Although the majority of courts that have considered this issue have agreed with
Foreman, the EEOC has taken the position that an employer cannot claim that a reasonable
accommodation imposes an undue hardship simply because it violates a collective bargaining
agreement. 1999 Guidance at 28. According to the EEOC, an employer should first “determine
if it could provide a reasonable accommodation that would remove the workplace barrier without
violating the CBA. If no reasonable accommodation exists that avoids violating the CBA, then
the ADA requires an employer and a union to negotiate in good faith a variance to the CBA so
that the employer may provide a reasonable accommodation, unless the proposed
accommodation unduly burdens the expectations of other workers.” Id. at 28-29.
On a closely related issue and as set forth in more detail below, the Ninth Circuit Court of
Appeals recently held that an employer’s unilaterally imposed seniority system is not a per se bar
to reassignment as a reasonable accommodation. See Barnett v. U.S. Air, Inc., 2000 WL
1468743 (9th Cir. Oct. 4, 2000).
Barnett v. U.S. Air, Inc., 2000 WL 1468743 (9th Cir. Oct. 4, 2000): Noncollectively bargained seniority system is not a per se bar to reassignment as a
reasonable accommodation.
Barnett worked for ten years as a customer service agent for U.S. Air in the company’s
cargo department. He injured his back and, after a leave of absence, returned to his position but
found that he could no longer perform its physical requirements. He used his seniority to
transfer to the company’s mail room. His doctor concluded that Barnett could perform the job
requirements of a swing-shift mail room position, but could not perform the duties of the cargo
position. Barnett then learned that two employees with greater seniority planned to exercise their
seniority right to transfer to the mail room. Once they transferred, Barnett’s seniority would
limit him to jobs in the cargo area. Id. at *1.
Shortly thereafter Barnett wrote to his manager and requested an accommodation under
the ADA; that is, that U.S. Air make an exception within its seniority system and thereby allow
him to remain in his mailroom position. U.S. Air evaluated Barnett’s request and then informed
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him that he would be removed from the mail room and placed on job injury leave. In response,
Barnett wrote his manager a second letter suggesting two alternative means of accommodation.
Barnett also filed formal charges of discrimination with the EEOC. U.S. Air denied Barnett’s
alternative requests for accommodation and informed him that he could bid for any job within
his restrictions. Id. Barnett did not make any subsequent bids and after the EEOC determined
there was reason to believe that U.S. Air had discriminated against Barnett, Barnett brought suit
under the ADA.
After the district court and a three judge panel of the court of appeals rejected Barnett’s
argument that U.S. Air should have created an exception for him within its seniority system and
allowed him to remain in the swing-shift mail room position, the court of appeals considered the
issue en banc. As an initial matter, the court held that because U.S. Air rejected each of
Barnett’s proposed reasonable accommodations and merely offered that Barnett could apply for
any position for which he was qualified given his restrictions and for which he had sufficient
seniority, it had failed to engage in the mandatory interactive process under the ADA and thus,
liability would be appropriate if a reasonable accommodation would otherwise have been
possible. Id. at *9.
The court then considered Barnett’s argument that it would have been a reasonable
accommodation for U.S. Air to allow him to remain in the mail room by making an exception to
its seniority policy. U.S. Air argued that the ADA guarantees Barnett nothing more than the
opportunity to apply for and compete for reassignment. Id. at *10. Relying heavily on the
EEOC’s position on this issue, the court rejected U.S. Air’s argument and found that “the EEOC
leaves no doubt that reassignment involves more than a mere opportunity for disabled employees
to compete.” Id. Although recognizing that most circuits, including the Ninth, have reached the
conclusion that the ADA does not require an accommodation which conflicts with a collective
bargaining agreement, the court also found that “[b]oth the legislative history and the EEOC
reject any per se rule barring reasonable accommodation even when reassignment would conflict
with a collective bargaining agreement.” Id. at *12.
Given the court’s willingness to require accommodation in the face of a collective
bargaining agreement, it is not surprising that the court held that because the case before it did
not involve a collective bargaining agreement and no bargained for rights were at issue, “[i]t
would seem that the seniority system without more should not bar reassignment. . . . A per se
bar conflicts with the basic premise of the ADA, which grounds accommodation in the
individualized needs of the disabled employee and the specific burden which such
accommodation places on an employer. Only in the event of ‘undue hardship’ can a seniority
system be a bar to reasonable accommodation.” Id. In so holding, the court reversed the district
court’s grant of summary judgment in favor of U.S. Air.
VIII. EMPLOYER DEFENSES TO REQUESTS FOR REASONABLE
ACCOMMODATION
The ADA provides that an employer will not be required to make an accommodation that
constitutes an “undue hardship” to the employer. Generally, whether an employer will be able to
avail itself of the “undue hardship” defense depends on various economic factors, including the
nature and overall cost of the accommodation balanced against the overall financial resources of
the employer and other business needs. “In general, a larger employer would be expected to
make accommodations requiring greater effort or expense than would be required of a smaller
employer.” EEOC Technical Assistance Manual, § 3.9.
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Similarly, an employer need not accommodate an individual with a disability who poses a
“direct threat to the health or safety of himself/herself or others,” assuming that the threat cannot
be eliminated or reduced by reasonable accommodation. Appendix to 29 C.F.R. § 1630.2(p); see
42 U.S.C. § 12113(b). Of course, any such job safety qualification must be applied equally to
disabled and non-disabled employees alike. Appendix to 29 C.F.R. § 1630.2(p). Like claims of
undue hardship, the health and safety defense requires a detailed, case-by-case factual analysis.
A.
Undue Hardship.
An employer is not required to make an accommodation that creates an “undue hardship”
that imposes “significant difficulty or expense . . . [on] a covered entity.” 29 C.F.R. § 1630.2(p).
The “undue hardship” question focuses on the impact that the accommodation would have, if
implemented, on the specific employee in question “at a particular time.” See 29 C.F.R. Pt 1630,
app. § 1630.15(d). “This is a multi-faceted, fact-intensive inquiry, requiring consideration of: (1)
financial cost, (2) additional administrative burden, (3) complexity of implementation, and (4)
any negative impact which the accommodation may have on the operation of the employer’s
business, including the accommodation’s effect on its workforce.” Bryant v. Better Bus. Bureau,
923 F. Supp. 720, 737 (D. Md. 1996) (citing 29 C.F.R. § 1630.2(p)).
Walton v. Mental Health Association, 168 F.3d 661 (3d Cir. 1999):
Continuation of employee’s unpaid leave would have imposed undue hardship on
employer.
Walton was employed by defendant as the Director of Advocacy Consumer Training for
New Opportunities, a program run by defendant that provided employment training and job
placement for mental health services consumers. Like almost eighty percent of defendant’s
employees, Walton was a mental health services consumer; she suffered from depression. Id. at
664. She was hospitalized on six occasions over a 3 ½ year period and well exceeded her annual
sick leave during each of those years. During her final hospitalization in October 1993, she was
discharged. Walton then filed an ADA discrimination charge with the EEOC.
Among other things, Walton asserted that the defendant should have accommodated her
by continuing her leave of absence without firing her. The defendant argued that although
unpaid leave is potentially a reasonable accommodation, continuation of the leave when Walton
had already missed a tremendous number of days from work would have created an undue
burden for the defendant. Id. at 670-71. The court of appeals affirmed the district court’s
finding that the additional leave would have caused an undue hardship on the defendant’s
operations. Id. at 671. See also Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir. 1999) (no
hard-and-fast rule that no absences from work need be tolerated, but in evaluating request for
leave, issue will be whether hardship imposed on employer is “undue”).
Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998):
Short-term leave of absence could be provided without creating an undue
hardship.
Haschmann, the Vice President of Finance for Time Warner’s Green Bay Division
suffered from lupus and requested a 2 to 4 week leave of absence in addition to a short-term
leave taken two months earlier. Shortly thereafter, the company terminated Haschmann’s
employment. In its defense, the company argued that the requested 2 to 4 weeks of leave was
only an estimate and thus was not reasonable and would cause the company undue hardship,
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because the company would be left with essential functions unperformed for unpredictable
periods of time. Id. at 600.
The court rejected the undue hardship claim, noting that the job had been vacant for many
months before Haschmann was hired, the company took almost six months to fill her position
after her discharge, and subordinates handled the job in the interim. Id. at 601-02. “We
conclude that a jury reasonably could determine that her requested short-term leave of absence
would not be an undue hardship on Time Warner to provide.” Id. at 602. In so holding, the
court noted that “[w]e do not dispute that a business needs its employees to be in regular
attendance to function smoothly; the absence of employees is disruptive to any work
environment. However, it is not the absence itself but rather the excessive frequency of an
employee’s absences in relation to that employee’s job responsibilities that may lead to a finding
that an employee is unable to perform the duties of his job . . . . Time Warner’s efforts at
accommodation were inadequate [and] would not impose an undue hardship on the business[.]”
Id.
Various financial factors may be considered to determine whether reasonable
accommodation will cause undue hardship, although as the EEOC states, the inability of a
covered entity to afford the costs of reasonable accommodations does not permit the covered
entity to avoid its obligations under the ADA if funding is available from other sources, such as
state vocational rehabilitation agencies. Further, the EEOC has also stated – in conflict with the
holdings of a number of courts – that a cost-benefit analysis may not be used to determine
whether a reasonable accommodation will cause undue hardship. 1999 Guidance at 28.
According to the EEOC, “[n]either the statute nor the legislative history supports a cost-benefit
analysis to determine whether a specific accommodation causes an undue hardship. Whether the
cost of a reasonable accommodation imposes an undue hardship depends on the employer’s
resources, not on the individual’s salary, position, or status.” Id.
B.
Direct Threat to Health or Safety of Individual or Others.
Reasonable accommodation need not be made for an employee who poses a direct threat
to health or safety of individuals in the workplace, except to the extent that the accommodation
will eliminate or reduce the threat. There has been some dispute as to whether the direct threat
defense may be asserted in instances where the disabled individual poses a threat to himself or
herself, or if its use is limited to instances where the disabled individual poses a threat to other
individuals. Compare Echazabal v. Chevron USA, Inc., 213 F.3d 1098, 1105 (9th Cir. 2000)
(direct threat posed by applicant to his own health or safety did not provide employer with
affirmative defense to liability under ADA for refusing to hire him), with Moses v. American
Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (direct threat under ADA includes threat to
self), cert. denied, 519 U.S. 1118, 117 S. Ct. 964 (1997). The EEOC regulations recognize the
use of the defense for threats to both the disabled individual and to others. The regulations
define a direct threat as:
[A] significant risk of substantial harm to the health or safety of the individual or
others that cannot be eliminated or reduced by reasonable accommodation. The
determination that an individual poses a “direct threat” shall be based on an
individualized assessment of the individual’s present ability to perform the
essential functions of the job safely. This assessment shall be based on a
reasonable medical judgment that relies on the most current medical knowledge
and/or the best available objective evidence. In determining whether the
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individual would pose a direct threat, the factors to be considered include: (1)
[t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3)
[t]he likelihood that potential harm will occur; and (4) [t]he imminence of the
potential harm.
29 C.F.R. § 1630.2(r).
EEOC. v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000). Where an employer has
developed a qualification standard applicable to all employees of a given class,
the standard is not reviewed under the ADA’s direct threat provision.
In response to the Valdez incident, Exxon adopted a substance abuse policy that
permanently removes any employee who has undergone treatment for substance abuse from
certain safety-sensitive positions which are subject to little supervision. The EEOC sued Exxon
on behalf of certain Exxon employees, alleging that this policy violates the ADA. Exxon
justifies its policy as promoting safety in jobs in which it is unable to oversee employees to
ensure they are not relapsing into substance abuse, as well as furthering environmental
protection, the prevention of future tort liability, and good corporate citizenship. EEOC argued
that Exxon must defend its policy under the ADA’s individualized “direct threat” provision. The
district court certified the issue for appeal.
On appeal, the Fifth Circuit held that where an employer has developed a safety-based
qualification standard applicable to all employees in a given class, the employer may defend the
standard as a business necessity rather than under the individualized direct threat analysis. Id. at
875. While acknowledging that this issue was one of first impression, the court reasoned that
where an employer has developed a general safety standard for a position, “safety is a
qualification standard no different from other requirements defended under the ADA’s business
necessity provision.” Id. at 874. For example, the court continued, physical requirements for job
performance, such as the ability to see, lift or walk, are acceptable standards as long as they are
job-related and are a business necessity. Id. The court further held that a business necessity
standard such as Exxon’s applies to across-the-board rules, whereas the ADA’s direct threat
analysis concerns a standard imposed on a particular individual. As such, the court held that
where an employer has developed a standard applicable to all employees of a given class, the
employer need not proceed under the direct threat provision in such cases but rather may defend
the standard as a business necessity. The direct threat test applies only in cases in which an
employer responds to an individual employee’s claimed risk that is not already addressed by an
existing qualification standard. Id. at 875.
Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999): Employer failed
to meet burden of proof on summary judgment that employee with fainting
disorder posed a direct threat that could not be reasonably accommodated.
Nunes was a sales associate for Wal-Mart who suffered from a fainting disorder that
caused episodes during which she lost consciousness. These “syncopal episodes” varied in
frequency and were diagnosed as being stress-related. Id. at 1245. After Nunes suffered five
episodes in an ten month period, she began an extended medical leave of absence. Although four
of the five episodes occurred at work, and on one occasion Nunes broke her glasses and cut her
eyebrow, no other individuals were injured. Id. After an absence of eight months, without
contacting Nunes to determine her status, Wal-Mart terminated Nunes’ employment. Nunes then
brought a disability discrimination claim against Wal-Mart.
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Wal-Mart argued that because Nunes posed a “direct threat to the health or safety of other
individuals in the workplace” her ADA claim should fail. Id. at 1247. Although the district
court agreed with the company, the court of appeals did not. As an initial matter, the court of
appeals noted that because direct threat is an “affirmative defense, Wal-Mart bears the burden of
proving that Nunes is a direct threat.” Id. The court then recognized that in evaluating a direct
threat defense, “a court should first consider whether the employer has demonstrated that the
employee cannot perform the job without a significant risk of harm . . . . If the court determines
that such a risk is posed, then it must ask whether the employer can make a reasonable
accommodation, without undue hardship to the employer, so that the employee can perform her
job without such risk.” Id. at 1248.
Wal-Mart argued that Nunes could hurt herself or others if she suffered an attack while
carrying something heavy over her head. Significantly, however, the court found that Wal-Mart
did not present any evidence about Nunes’ medical condition at the time that she was terminated,
and further, Nunes’ doctor testified that it was “very unlikely” that Nunes posed any risk of harm
to herself or others. Id. Moreover, the court found that the record contained no evidence that
Wal-Mart considered any at-work accommodations to reduce the risks it feared. “For example,
even though Wal-Mart feared that Nunes might drop a heavy item lifted over her head, there is
no evidence that Wal-Mart considered an accommodation to avoid such lifting.” Id. Thus, the
court of appeals reversed the grant of summary judgment for Wal-Mart.
Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996), cert. denied, 519
U.S. 1118, 117 S. Ct. 964 (1997): Epileptic employee posed direct threat to himself and others
when he was required to work with fast-moving and extremely hot machinery.
Moses, an epileptic, alleged that he had been terminated in violation of the ADA. The
employer argued that it had terminated plaintiff because he posed a direct threat in the workplace
due to his epilepsy. Each of plaintiff’s assigned tasks presented “grave risks” to an employee
with epilepsy. Id. at 447-48. For example, as a product inspector he was required to sit on a
platform above fast-moving press rollers, and as a Hot Splicer assistant, he was required to work
next to machinery that reached temperatures of 350°. Id. at 448. As such, the employer properly
concluded that plaintiff posed a direct threat to the workplace, and the employee’s discharge did
not violate the Act. See also LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th
Cir. 1998) (fact that subsequent employer is willing to bear risk of harm posed by epileptic
employee who worked as line cook does not constitute evidence rendering other employers liable
under ADA for their refusal to bear same risk).
IX.
THE APPLICATION OF THE ADA TO EMPLOYERS’ HEALTH INSURANCE
PLANS
In 1993, the EEOC issued an Interim Policy Guidance (“Interim Guidance”) on the
application of the ADA to disability-based distinctions in employer-provided health insurance.
The EEOC regulations implementing the ADA provide that it is unlawful for an employer to
discriminate on the basis of disability against a qualified individual in regard to “[f]ringe benefits
available by virtue of employment, whether or not administered by the [employer].” 29 C.F.R.
§ 1630.4(f). Health insurance plans are a fringe benefit available by virtue of employment and
therefore the ADA prohibits discrimination in their provision. Further, the ADA prohibits
employers from indirectly discriminating on the basis of disability in the provision of health
insurance. Because of this prohibition, employers may not participate in a contractual or other
arrangement or relationship that has the effect of subjecting the employer’s own disabled
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employee to discrimination. 42 U.S.C. § 12112(b)(2); 29 C.F.R. § 1630.6(a). Thus, “an
employer will be liable for any discrimination resulting from a contract or agreement with an
insurance company, health maintenance organization, [or other third party], … to provide or
administer a health insurance plan of its employees.” Interim Guidance, at 1, reprinted in ADA
Manual (BNA) at 70:1051.
A.
Disability-Based Distinctions.
Whenever it is alleged that a health-related term or provision of an employer-provided
health insurance plan violates the ADA, the first issue is determining whether the challenged
term or provision is, in fact, a disability-based distinction. It must be noted, however, that not all
health-related plan distinctions discriminate on the basis of disability. The Interim Guidance
provides the following non-exhaustive list of acceptable, non-disability-based distinctions that
may be contained in a health insurance plan:
1.
a distinction between benefits provided for the treatment of “physical” conditions
as compared to benefits provided for the treatment of “mental/nervous”
conditions;
2.
a distinction in the level of benefits provided for the treatment of a broad category
of physical ailments encompassing a “multitude of dissimilar conditions,” such as
“eye care,” as compared to benefits provided for other conditions;
3.
blanket “pre-existing condition” clauses that exclude from coverage the treatment
of conditions that pre-date an employee’s eligibility for benefits under the plan;
4.
universal limits or exclusions from coverage of all experimental drugs and/or
treatments;
5.
universal limits or exclusions from coverage of all elective surgery;
6.
coverage limits on medical procedures that are not exclusively, or nearexclusively utilized for the treatment of a particular disability, i.e., blood
transfusions and x-rays;
7.
an across-the-board yearly dollar limit on the benefits provided for the treatment
of any physical condition.
Id. at 70:1052-1053.
However, health insurance plan provisions that distinguish or single out specific types of
disabilities are “disability-based” distinctions that violate the ADA unless justified by the
employer. The Interim Guidance provides the following examples of such disability-based
distinctions:
1.
a plan that caps benefits for the treatment of all physical conditions at $100,000
per year, but caps benefits for AIDS treatment at $5,000 per year;
2.
a plan that excludes from coverage treatment for any pre-existing blood disorders
(e.g., hemophilia, leukemia) for a period of 18 months, but does not exclude the
treatment of any other pre-existing conditions;
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3.
a plan that singles out a procedure or treatment used exclusively, or nearly
exclusively, for the treatment of a particular disability or discrete group of
disabilities (e.g., exclusion of a drug used only to treat AIDS).
Interim Guidance, at 70:1052-1053, 1055.
In addition to the above listed disability-based distinctions, employers have been found to
have violated the ADA where they have failed to offer the same treatment to all individuals
regardless of disability. See, e.g., Henderson v. Bodine Aluminum Inc., 70 F.3d 958 (8th Cir.
1995) (breast cancer patient entitled to injunctive relief on grounds that health plan discriminated
against her by denying coverage for high dose chemotherapy bone marrow transplant, where
plan covered such treatment for other types of cancer).
B.
Justification of Disability-Based Distinctions.
If it is determined by the EEOC that a challenged health insurance plan provision
constitutes a disability-based distinction, to avoid ADA liability, the employer must first prove
that the plan is a bona fide health insurance plan. See Interim Guidance at 70:1054. The
employer must then prove that the disability-based distinction is not a “subterfuge” to evade the
purposes of the ADA. A plan is a subterfuge if the disparate treatment is not justified by the
risks or costs associated with the disability. Id.; See also 29 C.F.R. § 1630.16(f) (plans cannot
operate as a subterfuge to evade purpose of ADA).
1.
Establishing a Bona Fide Plan.
With regard to the first element, the employer’s burden varies depending on whether the
plan is an insured plan or a self-insured plan. If the plan is an insured plan, the employer can
satisfy this element by proving that the plan is bona fide in that it exists and pays benefits, its
terms have been communicated accurately to eligible employees, and the plan’s terms are not
inconsistent with applicable state law as interpreted by the appropriate state authorities. If the
plan is self-insured, the employer can prove the plan is bona fide simply by proving that it exists
and pays benefits and that its terms have been communicated accurately to eligible employees.
See Interim Guidance, at 70:1054.
2.
Establishing that the Plan Is Not a “Subterfuge.”
The term “subterfuge” means a disability-based distinction that is not justified by the
risks or costs associated with the disability. The Interim Guidance provide a “non-exclusive” list
of potential legitimate business/insurance justifications for a disability-based distinction:
1.
the employer may prove that the distinction is not disability-based, i.e., that the
plan actually treats all similar conditions the same way and does not single out a
particular disability for different treatment;
2.
the employer may prove that the disability-based distinction is justified by
legitimate actuarial data, or by actual or reasonably anticipated experience, and
that conditions with comparable actuarial data or experience are treated in the
same fashion;
3.
the employer may prove that the disability-based distinction in treatment is
necessary to ensure that the plan satisfies the commonly accepted or legally
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required standards for the fiscal soundness of such an insurance plan. In
establishing this, the employer must prove that there was no nondisability-based
plan alteration that could have been made to accomplish the same results;
4.
the employer may prove that the challenged disability-based distinction is
necessary to prevent the occurrence of an unacceptable change either in the
coverage of the plan, or in the premiums charged for the plan. An “unacceptable”
change is a drastic increase in premium payments (or in co-payments or
deductibles), or a drastic alteration in the scope of coverage or level of benefits
provided, that would: (i) make the plan effectively unavailable to a significant
number of employees, (ii) make the plan so unattractive as to result in significant
adverse selection (the low-risk employees drop out of the plan due to excessive
cost while higher-risk employees remain), or (iii) make the plan so unattractive
that the employer cannot compete in recruiting and maintaining qualified workers
due to the superiority of plans offered by other employers in the community.
Again, in establishing this justification, the employer must prove that there was no
nondisability-related alteration in the plan that could be made to prevent the
unacceptable change;
5.
where the employee is challenging the employer’s denial of coverage for a
disability-specific treatment, the employer may prove that this treatment does not
provide any benefit to the employee, i.e., it has no medical value. The employer
may prove by reliable scientific evidence that the disability-specific treatment
does not cure the condition, slow the degeneration/deterioration or harm
attributable to the condition, alleviate the symptoms of the condition, or maintain
the current health status of individuals with the disability who receive the
treatment. Note, however, that the employer may still violate the ADA if the
evidence reveals that the employer’s plan covers treatments for other conditions
that are likewise of no value.
Interim Guidance, at 70:1054-1055 & n.17.
C.
Recent Cases.
Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000):
Totally disabled plaintiff cannot sue under Title I for alleged discrimination in a
long-term disability policy and further, former employees are not qualified
individuals capable of suing for post-employment fringe benefits under Title I of
the ADA.
Weyer, who suffered from severe depression, sued her former employer, Twentieth
Century Fox (“Fox”) and her insurance administrator, UNUM Life Insurance Company
(“UNUM”), for violation of the ADA for administering a disability plan that capped benefits for
mental disabilities at two years, while benefits for physical disabilities accrue until age sixtyfive. The district court granted summary judgment for Fox and UNUM on all counts, holding
that Weyer was not a “qualified individual” as defined in the ADA because she was no longer an
employee and was totally disabled from doing her job.
As an initial matter, the Ninth Circuit agreed with the district court and five circuit courts
to have considered the issue, and held that because Weyer conceded that at the time of the
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lawsuit she was totally disabled, she cannot sue under Title I for alleged discrimination with
respect to her long-term disability policy. In so holding, the court noted that “Title I expressly
refers to the ability to perform a job, not the ability to receive benefit checks, and . . . a
plaintiff’s efforts to shoehorn ‘a person who is no longer able to hold an ‘employment position’
‘into the definition of a ‘qualified individual’ [is] ‘strained.’” Id. at 1109 (citation omitted).
With respect to a former employee’s ability to bring suit under Title I of the ADA, while
noting that its holding was contrary to the Second and Third Circuits, the Ninth Circuit agreed
with the Seventh and Eleventh Circuits and held that former employees are not “qualified
individuals” capable of suing under Title I of the Act. The court based its finding on the fact that
“Title I unambiguously excludes totally disabled persons” through its use of “temporal qualifier”
language in the statute itself, i.e., the definition of a “qualified person” as someone who “can
perform,” using the present tense. Id. at 1112. The court further held that this reading makes
sense because, “Congress could reasonably decide to enable disabled people who can work with
reasonable accommodation to get and keep jobs, without also deciding to equalize postemployment fringe benefits for people who cannot work.” Id. Moreover, “other legislation,
such as ERISA, address fringe benefits for people unable to perform the functions of a job even
with reasonable accommodations.” Id.
EEOC. v. Aramark Corp., Inc., 208 F.3d 266 (D.C. Cir. 2000): Employer is
long-term disability plan, adopted before the ADA was enacted, cannot fall within
the ADA’s subterfuge exception to the safe harbor.
Rebecca Fennell worked as a food service manager for Aramark for ten years until
depression and post-traumatic stress disorder forced her to terminate her employment. She
received long-term benefits under Aramark’s benefit plan, for 24 months. The plan provided
such benefits for mental disability for 24 months and for physical disability until at least age 65.
Fennell and the EEOC filed suit against Aramark, alleging that the plan’s differing benefit terms
for mental and physical disabilities amounted to discrimination under Title I of the ADA.
Under ADA Section 501(c)’s “safe harbor” provision, insurers are not prohibited from
“establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is
not subject to State laws that regulate insurance.” 42 U.S.C.A. § 12201(c)(3). However, this
provision “shall not be used as a subterfuge to evade the purposes” of the ADA. Id. § 12201(c).
All parties to the lawsuit agreed that the long-term disability plan was a bona fide employee
benefit plan. Aramark, 208 F.3d at 269. However, the parties disagreed as to the meaning of the
“subterfuge” exception. Id.
Aramark argued that the plan was not a subterfuge to evade the purposes of the ADA
because the benefit plan was adopted in 1982, prior to the enactment of the ADA. Id. EEOC
and Fennell, on the other hand, asserted that any disability benefit plan is a subterfuge to evade
ADA’s purposes if the distinction between mental and physical disabilities is not “based on
sound actuarial principles” even if the plan was adopted prior to the enactment of ADA. Id.
Relying on its 1996 decision that a disability plan could not be a subterfuge of the Rehabilitation
Act of 1973 because the employer had adopted the plan prior to the passage of the act
(Modderno v. King, 82 F.3d 1059 (D.C. Cir. 1996) cert. denied, 519 U.S. 1094, 117 S. Ct. 772
(1997), the D.C. Circuit found that Aramark’s long-term disability plan was in place at least
eight years before the enactment of the ADA and therefore was not a subterfuge. Id. at 269-270.
See also Leonard F. v. Israel Discount Bank, 199 F.3d 99, 103 (2d Cir. 1999) (plan enacted prior
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to passage of ADA could not have been conceived to thwart purposes of ADA and thus, does not
constitute subterfuge in violation of ADA).
Lewis v. Kmart Corp., 180 F.3d 166 (4th Cir. 1999), cert. denied, 120 S. Ct. 978
(2000): The ADA does not require a long-term disability plan that is sponsored
by a private employer to provide the same level of benefits for mental and
physical disabilities.
Lewis was hired by Kmart in 1984, and in 1993, was elected to participate in Kmart’s
Long Term Disability (“LTD”) Plan. The plan limited disability benefits for mental disabilities
to two years, but provided disability benefits for physical disabilities until a participant was 65
years of age. As a result of his severe depression, in 1995 Lewis had to take a leave of absence.
In September, 1995, Lewis began receiving disability benefits pursuant to the LTD plan. In the
spring of 1996, he learned that his condition was classified as a mental condition and that his
benefits would only continue until September, 1997. Subsequently, Lewis filed suit against
Kmart alleging that he had been subjected to discrimination on the basis of his mental disability
because he was given a shorter period of disability insurance coverage than were people with
physical disabilities. The district court entered a judgment in favor of Lewis.
In reversing, the Fourth Circuit first noted that in Rogers v. Department of Health and
Environmental Control, 174 F.3d 431 (4th Cir. 1999), it held that Title II of the ADA did not
require a long-term disability plan sponsored by a public entity to provide the same level of
benefits for mental and physical disabilities. Faced in Lewis with the same question as the
Rogers court considered, but under Title I which concerns private entities rather than Title II
which concerns public entitles, the court declared: “We . . . adopt our reasoning in Rogers and
hold that [the ADA] does not require a long-term disability plan that is sponsored by a private
employer to provide the same level of benefits for mental and physical disabilities.” Lewis, 180
F.3d at 170 (emphasis added). In employing identical reasoning with respect to private and
public entities, the court held that “no material distinction exists between Title I . . . of the
ADA and Title II . . . of the ADA . . . . [T]he only difference between these two sections
is the nature of the employing entity, which is a distinction without a difference. Certainly,
Congress did not intend for an employer’s liability for illegal discrimination under the ADA to
turn on the private versus public nature of the employing entity.” Id. Thus, the court held that,
the LTD plan offered by Kmart was lawful, notwithstanding the disparity in benefits for physical
and mental disabilities. Id. at 172.
Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453 (6th Cir. 1998): Defendant
insurance company did not violate the ADA by denying coverage for heart
transplants while providing coverage for other types of organ transplants, since
the ADA does not prohibit health insurance providers from differentiating
between persons with different disabilities.
Marcie Lenox was a schoolteacher employed by the Fayette County Board of Education
who obtained health insurance with Healthwise of Kentucky through her employment. Lenox
developed a pregnancy-related heart problem that ultimately required her to undergo a heart
transplant. Although the Healthwise policy covered certain organ transplants, it excluded
coverage for heart transplants. Lenox underwent a successful heart transplant, then sued the
Board of Education and Healthwise, alleging that Healthwise violated the ADA by providing a
policy that discriminated based on disability-based distinctions. The district court granted
summary judgment for Healthwise, finding that because the policy did not violate Title III of the
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ADA (the “public accommodation” provisions of the statute), and because the policy did not
violate the ADA, the Board of Education had not violated Title I by providing the policy to its
employees.
The Sixth Circuit affirmed the grant of summary judgment. Relying on Sixth Circuit
precedent, Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997) (en banc),
cert. denied, 522 U.S. 1084, 118 S. Ct. 871 (1998), the court held that the ADA did not prohibit
Healthwise from differentiating between different disabilities. In so holding, the court
recognized – following the analysis in Parker - that the same policy is provided to all employees
who, when they receive it, are not disabled but working. The fact that some may become
disabled for different reasons does not amount to discrimination in providing the policy. “‘The
ADA does not mandate equality between individuals with different disabilities. Rather, the
ADA, like the Rehabilitation Act, prohibits discrimination between the disabled and the nondisabled.’” Id. at 457 (citing Parker, 121 F.3d at 1019).
X.
RELIEF AVAILABLE UNDER THE ADA
The remedies authorized by Title VII of the Civil Rights Act of 1964 are also available
under the ADA. 42 U.S.C. § 12117. Title VII provides that a court may order “affirmative
action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of
employees, with or without back pay . . . , or any other equitable relief as the court deems
appropriate.” 42 U.S.C. § 2000e-5(g). Further, courts commonly have recognized front pay as
an equitable remedy under both the ADA and the Rehabilitation Act. See, e.g., Braverman v.
Penobscot Shoe Co., 859 F. Supp. 596, 606 (D. Me. 1994) (front pay is available equitable
remedy under the ADA). Prevailing parties may also recover their costs of suit and attorneys’
fees. 42 U.S.C. § 12205.
The Civil Rights Act of 1991 broadened the relief available for an employer’s intentional
discrimination under Title VII and under the ADA to include the recovery of compensatory and
punitive damages. 42 U.S.C.A. § 1981a(c)(1); Schmidt v. Safeway Inc., 864 F. Supp. 991, 1001
(D. Or. 1994) (compensatory damages are available under the ADA). Compensatory and
punitive damages are also available under Section 504 of the Rehabilitation Act.
While an employee may recover compensatory and punitive damages under the ADA, the
Civil Rights Act of 1991 limited the amount of monetary recovery under Title VII and the ADA
by placing caps on the aggregate amount of compensatory and punitive damages that could be
awarded to any complaining party. The maximum amount of these damages that may be
awarded ranges from $50,000 to $300,000, depending on the size of the employer. See, e.g.,
EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir. 1995) (citing 42 U.S.C.
§ 1981a(b)(3)(A)).
As with Title VII, the overwhelming majority of courts addressing the issue have held
that individual supervisors may not be held personally liable under the employment provisions of
the ADA. See, e.g., Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); Sacay v. The
Research Found. of the City Univ. of N.Y., 44 F. Supp. 2d 496, 503 (E.D.N.Y. 1999).
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XI.
RECENT DEVELOPMENTS UNDER THE ADA, FMLA, AND RELATED
CALIFORNIA LAWS
XII.
RECENT DEVELOPMENTS UNDER THE FMLA
A.
Basic Requirements.
The FMLA provides that an eligible employee may take up to a total of 12 weeks of
unpaid leave during any 12-month period for qualifying reasons. During the leave period, the
employer must maintain the employee’s health benefits and must guarantee the employee
reinstatement to the same or an equivalent position. The employee’s absence for a qualifying
family and medical leave purpose may not be considered as an absence under the employer’s
attendance policies.
1.
“Covered Employer.”
a.
Applicable Regulations
Cialini v. Nilfisk Advance America, Inc., 2000 WL 230215 (E.D. Pa. 2000): Plaintiff,
who was employed at Defendant’s facility, claimed that Defendant employed between 48-54
employees during the relevant period. Defendant, however, argued that the 20 members of its
outside salesforce that plaintiff included in the number of employees must be subtracted because
they were not employed at the facility. Pursuant to FMLA regulations, the “worksite” for
employees with no fixed worksite is the site from which their work is assigned or to which they
report. The court concluded that the outside salesforce reported to and were assigned work by
three Regional Sales Managers who were located in other states. The salesforce was thereby
subtracted from the total number of employees at the facility and Defendant was not subject to
the FMLA.
Hukill v. Auto Care Inc., 1999 WL 739407 (4th Cir. 1999): Defendant could not be held
liable under the Act because it was not an “integrated employer”, as plaintiff alleged. An
integrated employer company can be joined with other, related companies to top the 50
employee requirement if there is a common management, an interrelation between operations,
centralized control of labor relations, and a degree of common ownership and financial control.
2.
“Eligible Employee”
Smith v. Hinkle Manufacturing, Inc., 2000 WL 621143 (N.D. Ohio 2000): Plaintiff may not
maintain an action under the FMLA because she worked for the company for approximately ten
and a half months and consequently, was not an eligible employee
Dormeyer v. Comerica Bank-Illinois, 2000 WL 1010865 (7th Cir. 2000): Department of Labor
regulation 29 C.F.R. § 825.110(d) which waives FMLA statutory eligibility requirements in
cases in which the employer fails to respond promptly to a request for leave, is invalid.
Employee who had not worked 1,250 could not circumvent eligibility requirement based on
employer’s failure to respond to her request for leave.
Stewart v. Intem, Inc., 2000 WL 1140517 (D. Or. 2000): Court rejected Plaintiff’s argument
that her failure to work the required 12 months is not fatal to her FMLA claim because
defendant’s action of immediately terminating her upon notice of her pregnancy precluded her
from fulfilling the 12-month requirement. To allow such an argument would impermissibly
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expand the class of protected employees under the FMLA beyond what Congress intended.
3.
Reasons for Leave
Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir. 1999): Plaintiff’s son was in
counseling for behavioral problems and was then physically assaulted by several individuals.
Plaintiff, who was from the Philippines, requested a five week leave to take her son to the
Philippines to leave him with relatives. Plaintiff claimed that she was entitled to leave under the
FMLA to “care for” her son. The court noted that Plaintiff was not moving her son so that he
could receive alternative medical or psychological treatment nor did she have specific plans to
seek medical attention for her son when she reached the Philippines. Rather, the court found that
Plaintiff’s purpose in moving her son was to keep him safe from further beatings, a purpose
which did not meet the FMLA’s statutory definition of “caring for” a child.
Navarro Pomares v. Pfizer Corp., 97 F. Supp. 2d 208 (D. P.R. 2000): Plaintiff requested leave
to care for her adult daughter who was having pregnancy-related health complications. Under 29
U.S.C. § 2611(12) of the FMLA, a parent is entitled to leave to care for a child over the age of 18
if that child is “incapable of self-care because of a mental or physical disability.” To determine
if the plaintiff’s daughter was incapable of self-care because of a disability, the court referred to
the regulations implementing the ADA for the definition of a “mental or physical disability.”
As an initial matter, the court recognized that the district courts are split on whether pregnancyrelated complications can constitute a disability under the ADA, but joined those courts finding
that they can. The court held, however, that the daughter did not meet this definition because she
suffered from high blood pressure only in her 36th week of pregnancy and did not allege that she
suffered from high blood pressure throughout most of her pregnancy, that the risk of premature
birth extended throughout much of the pregnancy or that her condition would have any long-term
or permanent impact. Because the daughter suffered from a temporary, non-chronic impairment
of short duration with little or no long term or permanent impact and did not meet the definition
of “disabled” under the ADA, the court held that her mother was not entitled to leave under the
FMLA to care for her.
Krohn v. Forsting, 11 F. Supp. 2d 1082 (E.D. Mo. 1998): FMLA does not authorize
leave for the care of grandparents to whom the plaintiff does stand in loco parentis.
4.
Amount of Leave Entitlement
McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999): A regulation that required
employers to notify an employee that an absence is being counted as FMLA leave before it
would count against the 12 weeks provided is invalid. Such a law would have the effect of
extending the employee’s leave beyond the 12 weeks that Congress envisioned as the
permissible limit on such leave.
B.
Serious Health Condition
Stekloff v. St. John’s Mercy Health Sys., 2000 WL 959613 (8th Cir. July 12,
2000): On the day after her two week FMLA leave from one employer began, Plaintiff attended
an orientation for a part-time nursing job at another health-care facility. Her employer argued
that because she had the physical ability to work a part-time job for another employer, she must
not have suffered a “period of incapacity” of longer than 3 days as required by the FMLA
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regulations and thus, was not entitled to FMLA leave. The court rejected the argument and held
that “a demonstration that an employee is unable to work in her current job due to a serious
health condition is enough to show that the employee is incapacitated, even if that job is the only
one that the employee is unable to perform.”
Caldwell v. Holland of Texas, Incorp., 208 F.3d 671 (8th Cir. 2000): Plaintiff was fired
after missing work to care for her 3-year old son who needed emergency services due to a fever
and severe ear infection. Her son was treated with two 10-day courses of antibiotics and
eventually needed surgery to remove his tonsils and adenoids. The District Court granted
summary judgment to the employer holding that the boy’s conditions did not qualify as a
“serious health condition.” The Eight Circuit reversed holding that summary judgment for the
employer was inappropriate because there was a genuine issue of material fact as to whether the
child was incapacitated for more than three consecutive days and whether he subsequently
received continued, supervised treatment. The court noted that the regulations do not provide
guidance as to what constitutes incapacity of a 3-year old, but stated that the proper measurement
was whether the condition demonstrably affected his normal activities. Appropriate factors
included, but were not limited to, whether the child participated in his daily routine or was
particularly difficult to care for during that period and whether a daycare facility would have
allowed a child with the illness to attend its sessions.
Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000): Thorson was out ill for several
days, saw her doctor twice and had tests for a suspected ulcer which turned out to be negative.
Upon her return to work she was fired for excessive absenteeism. Another doctor later
diagnosed her with a small hiatal hernia, mild antral gastritis and duodenitis, all stress-related.
Gemini argued that while employed, Thorson had not undergone continuous treatment and that
her illness was minor and thus, her absences were not protected by the FMLA. Specifically, the
company pointed to a 1995 DOL opinion letter which stated that absent complications, minor
illnesses such as “ulcers” were not serious health conditions. In response, the court noted that
the DOL also issued a seemingly inconsistent opinion letter in 1996 which stated that
“complications per se were not necessary if the period of incapacity and continuing treatment test
were otherwise met.” Reluctant to rely on inconsistent administrative interpretations, the court
stated that even without deferring to the DOL opinion letters, Thorson was sufficiently ill to see
her doctor twice in just a few days and that is all that is required for continuing treatment.
Additionally, the court noted that simply because a minor illness normally does not fall within
the definition of “serious health condition” that does not mean that such ailments can never be
FMLA “serious health conditions.” Further, looking to the legislative history, the court noted
that simply because Thorson’s final diagnosis did not appear in a non-exclusive list – set forth in
the FMLA’s legislative history – of ailments that might qualify as a serious health condition, she
is not precluded from receiving FMLA leave for her absence.
Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190 (8th Cir. 2000): Shoulder injury
that was diagnosed as “right shoulder impingement” for which anti-inflammatory drugs and
strengthening exercises were prescribed was not serious health condition. Plaintiff was not
advised by his doctor to stay off work, nor was he given any light duty restrictions and he failed
to attend his follow-up doctor appointments. Thus, he did not demonstrate an inability to
perform work or that he sought “continuing treatment.”
Bailey v. Amsted Indus., Inc., 172 F.3d 1041 (8th Cir. 1999): Plaintiff was diagnosed in
1987 with Graves’ Disease, a form of hyperthyroidism. Between 1991 and 1995, he was absent
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without excuse seventy-two times. Upon being terminated for his absences, he filed an FMLA
violation claim. The court held that since the majority of his absences were unrelated to the
“serious health condition” that he happened to have, he could obtain no shelter under the FMLA.
Haefling v. United Parcel Service, 169 F.3d 494 (7th Cir. 1999): Where there was no
evidence that plaintiff had to see a doctor for his condition, but he did so only upon referral by
his attorney in the instant action, plaintiff did not establish the existence of a “serious health
condition”.
Ozolins v. Northwood-Kensett Community Sch. Dist., 40 F. Supp. 2d 1055 (N.D. Iowa
1999): A serious health condition does not have to arise from a single, discrete illness, but can
result from several different illnesses all affecting the individual simultaneously. Here, where
plaintiff’s mother was in a period of incapacity for more than three straight days, with separate
but related periods of incapacity (existing illnesses along with a fall), plaintiff showed serious
health condition existed for FMLA purposes.
C.
Employee’s Obligation to Provide Notice of Need for Leave
Cole v. Uni-Marts, Inc., 88 F. Supp. 2d 67 (W.D.N.Y. 2000): Plaintiff is not required to
give defendant 30-days notice of her need for leave based on her foreseeable medical treatment if
the treatment required that leave begin in less than 30 days. In that case, Plaintiff was only
required to give notice as soon as was practicable under the circumstances.
Austin v. Haaker, 76 F. Supp. 2d 1213 (D. Kan. 1999): Over a period of three years
employee was disciplined for excessive absenteeism, but also had taken several FMLA designated
leaves. After receiving a final warning about absenteeism, he called in sick and was discharged. The
court held that he did not demonstrate that he gave the company notice that he wished to exercise
his FMLA rights. The court found that although not required to mention the FMLA by name, he
should have provided at least verbal notice sufficient to make the employer aware that he needed
FMLA qualifying leave. The employee gave the employer no reason whatsoever to suspect that his
absence was any different from the many occasions over the preceding three years when he had
called in sick. The employee argued that he did not mention the FMLA because the employer had
previously told him that he was no longer entitled to FMLA leave. The court held that he needed
only to mention that he was suffering from a serious health condition which would have placed the
burden on the company to inquire further of the employee if it was necessary to have more
information about whether FMLA leave was being sought by the employee. The employee failed to
do so and thus, was not entitled to FMLA leave.
Ozolins v. Northwood-Kensett Community Sch. Dist., 40 F. Supp. 2d 1055 (N.D. Iowa
1999): Here, where plaintiff’s mother fell and injured herself over the weekend, and plaintiff
notified employer on Monday via a fax from her mother’s doctor’s office, saying that her mother
was “having medical problems”, the soon-as-practicable notice requirement was met. This is so
even if plaintiff did not use the proper form. Such an oversight does not give the employer the
right to delay employee’s use of FMLA leave.
McNeela v. United Air Lines, 1999 WL 377831 (N.D. Ill. 1999): As a general rule, to
provide sufficient notice to employer, employee should, either in person or via electronic means,
give enough information to inform employer that FMLA qualifying leave is needed. Here,
where employer spoke with plaintiff in the hospital and was aware of the work-related accident
that caused these injuries, employer had sufficient notice for FMLA purposes.
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Browning v. Liberty Mutual Ins. Co., 178 F.3d 1043 (8th Cir. 1999): Court upheld
denial of plaintiff’s motion for judgment as a matter of law where a reasonable jury could easily
conclude that plaintiff failed to give enough information to employer to provide notice of
FMLA-qualifying injuries. Here, where plaintiff was unable to get in touch with employer to
notify it that she would not be returning to work due to her chronic, cubital-tunnel syndrome, and
employer contacted plaintiff’s doctor only to hear that plaintiff was released to work, employer
did not have sufficient notice of a possible, FMLA-qualifying injury and leave.
D.
Employer’s Obligation to Designate Leave and to Provide Notice of Rights
Moss v. Formosa Plastics Corp., 99 F. Supp. 2d 737 (M.D. La. 2000): Plaintiff, a “Panel
Board Operator,” had an epileptic seizure while at work in the control room of Defendant’s
Caustic Chlorine Plant. On June 29, 1997, he suffered a more severe seizure while working by
himself in the control room. He felt the seizure coming on and radioed his supervisor. Plaintiff
took medical leave and saw a series of doctors, two of whom opined that he could not safely
return to work.
In July 1997, Plaintiff’s treating neurologist concluded he was fit to return to work, but
another neurologist whom he saw in August and September concluded that he should not work in
a position in which he could harm himself or someone else. In or about September, Defendant
notified Plaintiff of its decision to terminate his employment due to the conflicting reports of his
ability to work. Subsequently, Defendant decided to instead place Plaintiff on unpaid leave
pursuant to FMLA to allow him to “get his situation under control.” Plaintiff then produced two
notes from another doctor written in March and May 1998 which stated that he was fit to work,
but should not “be responsibil[e] for managing toxic chemicals.” Defendant then terminated his
employment and he brought suit alleging violation of the FMLA by unilaterally forcing him to
take twelve weeks of FMLA leave and by failing to reinstate him at its conclusion. In granting
summary judgment for the employer, the court held that there is nothing in the FMLA statute or
regulations which prohibits an employer placing an employee on involuntary unpaid FMLA
leave if the statutory conditions are otherwise met. The court further held that the employer was
not required to reinstate plaintiff where his epileptic condition rendered him incapable of
performing his job.
Woodford v. Community Action of Green County, Inc., 103 F. Supp. 2d 97 (N.D.N.Y.
2000): Interval of two or three days between Plaintiff’s request for FMLA leave and written
notice from Defendants that reinstatement would be denied because she was a key employee was
not so great as to place Defendants in violation of requirement that it give written notice “as soon
as practicable” after the request for leave.
Plant v. Morton Int’l., Inc., 2000 WL 572458 (6th Cir. 2000): Employee was injured in
a car accident and only worked sporadically between February and September, 1995. The leave
was not designated as FMLA leave. In April, 1996, the employee aggravated his injuries and
pursuant to doctor’s orders, took another leave of absence. Again, the leave was not designated
as FMLA leave. Six weeks into this second leave his employment was terminated. Employee
alleged the employer told him that it “needed someone who could be present more than he
could.” The employer claimed he was terminated for poor performance. The employer argued
that it had not interfered with the employee’s FMLA rights because the employee had conceded
he could not return to work within the 12-week FMLA period. The court, however, held that the
employer failed to designate the leave as FMLA leave and could not retroactively do so. Thus,
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assuming he met the other FMLA requirements, the employee could bring an FMLA claim
against his former employer.
Ragsdale v. Wolverine Worldwide, Inc., 2000 WL 943787 (8th Cir. 2000): The
company’s leave policy offered an eligible employee seven months of leave as long as the
employee submitted a request for an extension every thirty days. The employee, diagnosed with
cancer, did so, but was terminated at the end of the seven months because she had exhausted her
leave and was incapable of returning to work. The employee claimed that because her leave was
not designated as FMLA leave, she was still entitled to 12 weeks of leave and that she was
capable of returning to work after the 12 weeks. The court held that Department of Labor
regulations 29 C.F.R. § 825.208(c) and § 825.700(a), which provide that an employer may not
designate leave retroactively and that undesignated leave does not count against an employee’s
FMLA’s entitlement are invalid because they impermissibly expand FMLA leave. The DOL
regulations improperly convert the statute’s minimum of federally-mandated unpaid leave into
an entitlement to an additional 12 weeks unless the employer specifically and prospectively
notifies the employee that she is using her FMLA leave. Thus, the court affirmed the district
court’s grant of summary judgment for the employer finding that the employer’s failure to
formerly designate any of the seven months of company leave as FMLA leave did not preclude
the employee’s 12 weeks of FMLA leave from running. The court, however, stressed that it was
not holding that any DOL regulation requiring designation was invalid as there were various
situations in which an employer’s failure to give notice may function to interfere with or to deny
an employee’s rights.
Donnellan v. New York City Transit Auth., 1999 WL 527901 (S.D.N.Y. 1999): Here,
employer failed to designate employee’s leave as FMLA leave. This was not a denial of
employee’s rights because she received seventeen weeks of leave prior to being discharged and
was unable to return to work when the twelve week protected period ended.
E.
Health-Care Provider’s Certification
Rager v. Dade Behring, Inc., 210 F.3d 776 (7th Cir. 2000): Fifteen day period to which
plaintiff was minimally entitled in order to obtain medical documentation of “serious health
condition” began to run when she received notice from employer that such documentation was
required.
F.
Continuation of Health Insurance
O’Hara v. Mt. Vernon Bd. of Education, 16 F. Supp. 2d 868 (S.D. Ohio 1998): As of
the effective date of the FMLA, plaintiff here was entitled to coverage of health benefits for a
twelve-week period of parental leave.
G.
Right to Reinstatement
Parris v. Miami Herald Publishing Co., 200 WL 895277 (11th Cir. 2000): Employer
was restructuring and employee’s position was to be eliminated. While in the process of seeking
another internal position, employee took FMLA leave and was discharged during his leave. The
court held that the company offered contradictory evidence as to when the employee’s position
was actually to be eliminated. The employee offered evidence that established that he was never
told the specific date that his position would be eliminated and that employees had been told that
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they had until the end of the year to try and find other jobs. Thus, the employee presented
sufficient evidence to raise a genuine issue of material fact as to whether he had the right to
reinstatement after his FMLA leave.
Renaud v. Wyoming Dep’t of Family Servs., 203 F.3d 723 (10th Cir. 2000): Here,
Plaintiff arrived at work under the influence of alcohol and was placed on administrative
suspension pending investigation of alleged violations of the state’s substance abuse policy
which governed the employer. He then requested and was granted leave and checked himself
into an alcohol treatment program. His employment was terminated several days later. The
court held that an employee on FMLA leave has no greater rights than an employee who remains
at work. An employee may be laid off if the action would have been taken in the absence of
FMLA leave. Defendant provided sufficient evidence that Plaintiff would have been discharged
regardless of his being on a FMLA leave.
William v. Saad’s Healthcare, 2000 WL 362038 (S.D. Ala. 2000): The FMLA does not
require that an employer “reasonably accommodate” an employee by reinstating her to a position
of “light duty,” the latter obligation is relevant under the ADA, not the FMLA.
Moss v. Formosa Plastics Corp., 99 F. Supp. 2d 737 (M.D. La. 2000): Defendant
unilaterally placed Plaintiff on FMLA to allow him to get his epilepsy under control, but decided
not to reinstatement him at the end of the leave. Plaintiff argued that the clear and unambiguous
language of the statute required mandatory reinstatement. The court held that the implementing
regulations recognized that some employees would not be able to return to work. Specifically,
29 C.F.R. § 825.214(b) stated “if the employee is unable to perform an essential function of the
position because of a physical or mental condition, the employee has no right to restoration to
another position under the FMLA. However, the employer’s obligations may be governed by the
Americans with Disabilities Act.” Thus, the court held that under the FMLA, Defendant was not
required to reinstate Plaintiff because his epilepsy was a serious medical condition which posed a
safety threat and rendered him unable to perform the essential functions of his job. Plaintiff did
not assert a cause of action under the ADA.
Reynolds v. Phillips & Temro Indus., Inc., 1999 WL 980639 (8th Cir. 1999): Where
plaintiff’s job description called for lifting up to 100 pounds, lifting substantial weight above his
head, and climbing and remaining on his feet all day, and plaintiff’s doctor restricted him to
living twenty-five pounds, not climbing, and restricting his standing, walking, bending and
twisting to fifty percent of his work day, he had no right to reinstatement.
O’Hara v. Mt. Vernon Bd. of Education, 16 F. Supp. 2d 868 (S.D. Ohio 1998): The
refusal to permit a teacher to return from her parental leave under the FMLA before the end of
the school term, in reliance on a collective bargaining agreement whose provisions conflicted
with the FMLA, violated the FMLA’s requirements regarding reinstatement.
H.
Prohibition of Discrimination
Kenyon v. Western Extrusions Corp., 2000 WL 12902 (N.D. Tex. 2000): Employee
failed to establish prima facie case of discrimination based on her request for leave. She did not
offer any evidence that the employer knew of what she termed her “serious medical condition.”
Moreover, even if such knowledge is presumed, it is undisputed that the company did not learn
of her request for FMLA leave, which she had left on a supervisor’s voicemail, until after the
meeting in which she had been dismissed. Further, employee presented no evidence that she had
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asked for leave prior to the date of her discharge.
Raymond v. Albertson’s, Inc., 38 F. Supp. 2d 866 (D. Nev. 1999): Pretext by
employer’s proffer of legitimate, nondiscriminatory reason for termination may be shown by
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions”. Here, in
granting defendant’s motion for summary judgment, the Court held that plaintiff could not
effectively contest defendant’s allegations that plaintiff’s termination was due to his excessive
absenteeism, and not his FMLA leave.
Routes v. Henderson, 58 F. Supp. 2d 959 (S.D. Ind. 1999): Statements by a supervisor
that reveal animus against the employee for exercising a protected right suffice to show
discrimination. Here, employer’s words that “I don’t need employees like you who schedule
themselves off” for elective medical treatment during the busiest time of the year had a
“chilling” effect on plaintiff with regard to needed, medical leave for depression and broken
knee.
Graham v. State Farm Mut. Ins. Co., 1999 WL 979618 (11th Cir. 1999): Here, where
plaintiff received all the leave she requested and in fact was paid for most of it, there is no claim
for retaliation based on a memo from her supervisor warning her of taking further, non-FMLA
leave.
Chaffin v. John H. Carter, Inc., 179 F.3d 316 (5th Cir. 1999): To show pretext for
discrimination, it must be shown both that the reason proffered was false and that the
discrimination was the real reason.
I.
Remedies and Procedural Issues.
1.
Individual Liability Under the FMLA.
Lonstreth v. Copple and MCI Telecommunications Corp., 101 F. Supp. 2d 776 (N.D.
Iowa 2000): Based on the plain language of the FMLA, the court finds that the FMLA expresses
an intent to impose individual liability on supervisors who violate the FMLA.
2.
Identifying the Prima Facie Case and Burdens of Proof.
As the cases have continued to develop, several courts have begun to consider how a
plaintiff can establish a prima facie case for wrongful discharge or discrimination under the
FMLA.
Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000): The District Court improperly
placed the burden on the employer to prove that it had a legitimate business reason for Plaintiff’s
discharge. The District Court instructed the jury that the defendants had the burden to establish
that Plaintiff would not have been retained even if she had not been on FMLA leave. The
Seventh Circuit reversed and remanded holding that the proper burden of proof requires the
Plaintiff to establish by a preponderance of the evidence that she would not have been discharged
if she had not taken FMLA leave.
O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000): The
FMLA recognizes two types of alleged violations: interference claims in which employers
burden or outright deny substantive statutory rights and retaliation claims in which employers
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discharge employees for exercising their FMLA rights. As a matter of first impression, the court
held that the standard for establishing an interference claim under the FMLA requires that when
an eligible employee who was on FMLA leave alleges that her employer denied her FMLA right
to reinstatement, the employer has an opportunity to demonstrate it would have discharged the
employee even had she not been on FMLA leave.
Kenyon v. Western Extrusions Corp., 2000 WL 12902 (N.D. Tex. 2000): A plaintiff
with no direct evidence of discrimination must apply the McDonnell Douglas burden shifting
analysis to an FMLA discrimination claim. She first must establish a prima facie case of
discrimination by showing that: (1) she is protected under the FMLA; (2) she suffered an
adverse employment decision; and (3) other employees who did not request FMLA leave were
treated more favorably than she or that the adverse decision was made because of her request for
leave. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason
for the employee’s discharge. If this is established, the burden shifts back to the employee to
establish that the proffered reason is pretextual and that the intent to discriminate was the real
reason.
Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000): Plaintiff alleged her employment
was terminated because of her request for FMLA leave. Plaintiff was required to show that she
availed herself of a protected right; she suffered an adverse employment decision; and there was
a causal connection between the protected activity and the adverse employment decision.
King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999): To show a causal
connection, the employee must demonstrate that the employer would not have taken the adverse
employment action but for the employee’s protected activity.
3.
Statute of Limitations.
There is a two-year statute of limitations for FMLA violations. See 29 U.S.C.
§ 2617(c)(1).
4.
Arbitration Developments.
Unlike the Americans with Disabilities Act (“ADA”), the FMLA does not contain an
explicit provision that encourages arbitration. In fact, the section that confers a private right of
action does not mention arbitration at all. 29 U.S.C. § 2617(a)(2). Accordingly, questions arose
as to whether compulsory arbitration provisions that are routinely included in employment
contracts are enforceable.
Jones v. Fujitsu Network Communications, Inc., 81 F. Supp. 2d 688 (N.D. Tex. 1999):
In general, contractual agreements to arbitrate FMLA claims are enforceable. The particular
agreement in question was also valid because (1) although not specifically mentioned, the
language was broad enough to encompass FMLA claims; (2) the employer used three different
methods to provide notice to its employees of the implementation of the new policy; and (3) the
employee continued to work after the policy was implemented, thereby accepting the policy as a
matter of law. However, the court also held that arbitration of statutory claims is only valid if
litigants are provided with an adequate forum in which to vindicate such rights. Thus, the court
concluded that the fee-splitting provision of the agreement was unenforceable as it limits
employee’s access to such a forum.
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Rogers v. New York Univ., 2000 WL 986402 (2d Cir. 2000): Former employee sued
University under the ADA and FMLA. The court held that because the arbitration provision by
which employees purport to waive their rights to a federal forum with respect to statutory claims
is contained in a union-negotiated collectively bargained agreement, it was not sufficiently
explicit to waive the employee’s right to commence a federal action to enforce the FMLA.
5.
Damages.
An employee who establishes an FMLA violation is entitled to compensatory damages
equal to back wages or salary, employment benefits, other lost compensation, interest on the
compensatory damages, and, unless the court concludes that the employer acted in good faith and
reasonably believed it complied with the Act, liquidated damages equal to the amount of
compensatory damages plus interest. 29 U.S.C. § 2617(a)(1)(A).
Lapham v. Vanguard Cellular Sys., Inc., 102 F. Supp. 2d 266 (M.D. Pa. 2000): Plaintiff
conceded she did not suffer any damages prior to her discharge, but argued that Defendants’
interference with her FMLA rights aggravated her medical condition and thus prevented her
from obtaining other employment for a year. She sought to recover wages from the date of her
dismissal until she secured another position. Court held that Plaintiff may not recover damages
for economic loss incurred after she was lawfully discharged for legitimate reasons nor could she
be awarded attorneys’ fees.
Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000): If the employer can prove to the
satisfaction of the court that the FMLA violation was in good faith and that the employer had
reasonable grounds for believing that its behavior was not a violation, the court may decline to
award liquidated damages. The court recognized that FMLA was in effect only six months at the
time of Thorson’s firing and that the employer was aware of the new law and had made efforts to
get a copy of the interim regulations so as to include information about the FMLA in the new
revision of its employee manual. Thus, the court refused to award liquidated damages.
Williams v. Toyota Motor Manufacturing, Inc., 218 F.3d 609 (6th Cir. 2000): Even
assuming that plaintiff was improperly denied FMLA leave, she suffered no damages and
therefore her claim was properly dismissed. Plaintiff testified at her deposition that on the day of
her discharge she was under a “no work” restriction by her doctor and remained so for nine
months. She failed to present any evidence that she was mistaken about the work restrictions
and that she could have returned to work within a reasonable time and thus, even if granted
FMLA leave, she would have been lawfully discharged anyway.
Zawadowicz v. CVS Corp., 2000 WL 744533 (D.N.J. 2000): Neither punitive damages
nor damages for physical and emotional distress are available under the FMLA.
6.
Miscellaneous Procedural Issues.
Hale v. Mann, 2000 WL 675209 (2d Cir. 2000): Congress did not have the authority to
abrogate the sovereign immunity of states on claims arising under the particular provisions in the
present case: 29 U.S.C. § 2612(a)(1)(D) which provides medical leave to deal with one’s own
“serious health condition” and the related retaliation section under 29 U.S.C. §§ 2614(a)(1).
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Garrett v. Univ. of Alabama Bd. of Trustees, 193 F.3d 1214 (11th Cir. 1999): State was
immune from suit under the FMLA provision dealing with leave for an employee due to her own
serious health condition.
Sims v. Univ. of Cincinnati, 2000 WL 973501 (6th Cir. 2000): FMLA does not abrogate
the States’ sovereign immunity. The court noted, however, the jurisdictional nature of the ruling:
“private litigation to enforce the FMLA against the states may not proceed in federal court. But
we express no view as to whether the FMLA was properly enacted pursuant to Congress’s
commerce power. The United States, thus may enforce the FMLA against state actors through
federal litigation . . . and private plaintiffs may repair to state court.”
J.
Use of Unemployment Insurance for Parental Leave.
On June 13, 2000, the United States Department of Labor (“DOL”) – the agency charged
with administering the FMLA – issued in final form a controversial rule aimed at prompting state
use of unemployment insurance systems to provide partial wage replacements for parents away
from work caring for newborns or newly adopted children. 157 Daily Labor Report, AA-1
(August 14, 2000). The rules comes at a time when states are seeing an increasing number of
proposals related to Birth and Adoption-Unemployment Compensation (known as “Baby-UI”)
plans, with the current total at 15 states considering legislation, including New York, New Jersey
and Connecticut. Id.
The model legislation proposed by the DOL suggests that Baby-UI benefits be available
to parents who take a leave of absence during the first year after the birth or adoption of their
child and that benefits be available for a maximum of 12 weeks. Average weekly unemployment
benefits are in the $200 range. State proposals that vary from the DOL suggestions “include
those requiring pilot cost-benefit studies, mandating that unemployment benefits be available for
absences related to family and medical situations other than parental leave, limiting the duration
of paid leave to five or six weeks and exploring the use of temporary disability insurance funds
to provide paid leave.” Id.
Business groups believe the cost of plan is up to $36 billion annually, significantly higher
than the $196 million annual estimate set by the DOL. Concerned about the cost,
implementation difficulties and a variety of other issues, employers filed a lawsuit in June, 2000,
in the U.S. District Court for the District of Columbia, seeking a permanent injunction ordering
the secretary of labor to withdraw the rule. According to the suit, withdrawals from state
unemployment compensation trust accounts can be used only for the payment of unemployment
benefits. The suit also alleges that the DOL acted illegally in issuing the rule. Id. Only time
will tell whether the use of unemployment compensation funds for parental, and perhaps other
types of family and medical leave, will be yet another administrative hurdle which employers
must jump.
XIII. FEDERAL LEGISLATION EXPANDING EMPLOYEE RIGHTS UNDER THE
FMLA
At present there are a number of Bills pending in the United States House of
Representatives and the Senate which seek to expand employee rights under the FMLA.
Although a fair number of pending bills will not survive the legislative process and it is difficult
to predict whether a particular bill will become law – particularly in light of the recent election –
set forth below is a summary of the significant pending legislation related to the FMLA.
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A.
Family and Medical Leave Improvements Act of 1999
The Leave Improvements Act has received significant media coverage and has strong
support from the Clinton administration. The Improvements Act would entitle eligible
employees (defined as in the FMLA) to a total of 24 hours of leave during any 12-month period
– in addition to the 12 weeks provided under the FMLA – to: (1) participate in school activities
directly related to the educational advancement of a child of the employee, such as parentteacher conferences or interviewing for a new school; (2) accompany the child of the employee
to routine medical or dental appointments, such as checkups or vaccinations; and (3) accompany
an elderly relative (an individual of at least 60 years of age who is related by blood or marriage
to the employee) of the employee to routine medical or dental appointments or appointments for
other professional services related to the elder’s care, such as interviewing at nursing or group
homes. See H.R. 91, 106th Cong., 1st Sess. (1999).
B.
Family and Medical Leave Enhancement Act
The Leave Enhancement Act is similar to the Improvements Act and proposes an
entitlement of 4 hours of leave during any 30-day period, and a total of 24 hours of leave during
any 12-month period, to participate in or attend an activity sponsored by a school or community
organization. School is defined as an elementary or secondary school, Head Start program or
child care facility licensed under State law. The term “community organization” means a private
nonprofit organization that is representative of a community or a significant segment of a
community and provides activities for certain individuals. See H.R. 2103, 106th Cong., 1st Sess.
(1999).
C.
Leave to Care for a Domestic Partner, Parent-in-Law, Adult Child, Sibling
or Grandparent
Yet another Bill proposes that the FMLA be expanded to cover leave to care for the
serious health condition of a domestic partner, parent-in-law, adult child, sibling or grandparent.
See H.R. 2104, 106th Cong., 1st Sess. (1999). At present, the FMLA allows for leave only to
care for the employee’s spouse, child (under the age of 18, or age 18 or older but incapable of
self-care because of a mental or physical disability) or parent. Domestic partners are not
considered spouses nor are in-laws considered parents.
Finally, both the Improvements Act and the Enhancement Act, as well as legislation
pending in the House and Senate, seek to expand coverage of the FMLA to employers with at
least 25 employees from the current threshold of 50 and legislation in the House seeks to amend
the FMLA to permit leave after the death of a spouse for widows and widowers with minor
children. See Family and Medical Leave Fairness Act of 2001, S. 18, 107th Cong., 1st Sess.
(2001); H.R. 265, 107th Cong., 1st Sess. (2001); H.R. 1312, 107th Cong., 1st Sess. (2001).
Although most of the pending legislation seeks to expand the rights of employees under
the FMLA, at least one Bill seeks to protect employer rights by allowing employers to require
that intermittent leave be taken in minimum blocks of four hours. See Family and Medical
Clarification Act, S. 489, 107th Cong., 1st Sess. (2001).
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XIV. THE CFRA
a.
Statute and Regulations.
The California Family Rights Act (“CFRA”) is quite similar in scope and content to the
FMLA. In 1993, the CFRA underwent major amendments rendering it more consistent with the
FMLA. Administrative regulations under the CFRA and the pregnancy provision of the Fair
Employment and Housing Act (“FEHA”) became effective August 12, 1995. These regulations
underscore that, except where differences are expressly noted, the CFRA should be interpreted
consistently with the FMLA. Still, critical differences remain between the CFRA and the
FMLA, and these are highlighted below.
Leaves for pregnancy-related disability: One important difference between the CFRA
and the FMLA concerns leave for a pregnancy-related disability. The qualifying reasons for
leave under the CFRA are the same as under the FMLA, except that leaves taken because of the
employee’s disability on account of pregnancy, childbirth, or related medical conditions are
expressly excluded from the CFRA. Cal. Gov’t Code § 12945.2(c)(3)(C). Such leaves are
separately governed under state law by the pregnancy provision of the FEHA, Cal. Gov’t Code
§ 12945 (discussed below).
Certification: Another important difference between the family leave laws is that the
CFRA, unlike the FMLA, prohibits an employer from asking about the specific nature of the
serious health condition of an employee or an employee’s family member. Instead, the CFRA
provides that the certification supporting a serious health condition need only state:
(1)
the date on which the serious health condition commenced;
(2)
the probable duration of the condition; and
(3)
a statement that, due to the employee’s serious health condition, the employee is
unable to perform the function of his or her position or a statement that the
serious health condition of the family member warrants the participation of the
employee to provide care and an estimate of the amount of time needed for such
care.
Cal. Gov’t Code §§ 12945.2(j), (k). Furthermore, the CFRA, unlike the FMLA,
does not authorize the employer to obtain a second opinion of a health care practitioner
where leave is taken to care for a family member with a serious health condition. Rather,
under the CFRA, second (and third) opinions are authorized only where leave is taken for
the employee’s own serious health condition. Cal. Gov’t Code § 12945.2(k).
Intermittent leave due to birth or placement of a child: Under the FMLA, where
leave is taken due to the birth or placement of a child, the employer need not provide intermittent
leave but rather may require such leave to be taken in one consecutive 12-week segment.
29 C.F.R. § 825.203(b). By contrast, under the CFRA, intermittent leave must be provided
where leave is taken for the birth or placement of a child. The employer may impose a two-week
basic minimum duration for such intermittent leave segments, except that on any two occasions
the employer shall grant a request for such leave of less than two week’s duration. Cal. Code
Regs. tit. 2, § 7297.3(d).
Substitution of paid sick leave where leave taken due to a serious health condition of
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a family member: Under the FMLA, an employer may require the employee to substitute
accrued paid sick leave otherwise available during an FMLA leave taken to care for a family
member with a serious health condition. 28 C.F.R. § 825.207(c). Under the CFRA, however,
the employer is not authorized to require substitution of paid sick leave when leave is taken due
to the serious health condition of a family member. Cal. Code Regs. tit. 2, § 7297.5(b)(3).
Spouses or parents employed by same employer: Under the FMLA, where both a
husband and wife are employed by the same employer, the employer may limit leave to a
combined total of 12 weeks between the two spouses when leave is taken for the birth or
placement of a child. 29 C.F.R. § 825.202. Under the CFRA, this limitation is broader, applying
when both parents, who may be unmarried, are employed by the same employer and take leave
for the birth or placement of their child. Cal. Code Regs. tit. 2, § 7297.1(c).
b.
Selected Cases.
Marchisheck v. San Mateo County, 199 F.2d 1068 (9th Cir. 1999): Neither the FMLA
nor the CFRA required defendant to provide leave for an employee to move her teenage son to
the Phillipines. Although the leave was motivated by the employee’s desire to remove her son
from an unwholesome and physically violent environment, the act of taking him to a foreign
country to live with relatives cannot be considered “caring for” a family member within the
meaning of the statutes.
Gibbs v. American Airlines, Inc., 74 Cal. App. 4th 1 (1999): Absent unusual
circumstances, a cold or the flu is not an incapacitating “serious health condition,” even though
the employee missed more than three days of work and received continuing treatment
(antibiotics) by a health care provider. The court stated that a variety of health matters may
involve absence from work and continuing medical treatment but still not be accorded FMLA or
CFRA protection. The court noted that the FMLA regulations expressly exclude from protection
common ailments such as cold, flu, ear ache, upset stomach, and ordinary headaches.
Nelson v. United Technologies, Inc., 74 Cal. App. 4th 597 (1999): Discharged
employee may state a tort claim for wrongful discharge in violation of public policy predicated
on an alleged violation of the CFRA.
XV.
CALIFORNIA PREGNANCY DISABILITY LEAVE LAW
a.
Statute and Regulations.
Under the pregnancy provision of the FEHA, California employers must allow employees
to take a leave of absence on account of disability caused by pregnancy, childbirth or related
medical conditions for a period up to four months. The employer may require the employee to
provide a certification from a health-care practitioner that the employee is disabled due to
pregnancy or related medical condition and unable to perform one or more of the essential
functions of her position. The employer cannot require a second opinion. Pregnancy-disability
leave under the FEHA may be taken intermittently or on a reduced leave schedule when
medically advisable.
Upon expiration of a leave under the pregnancy provision of the FEHA, the employee
must be reinstated to the same position, unless that position became unavailable due to reasons
unrelated to the employee’s pregnancy (such as layoff) or each means of preserving the position
for the employee would substantially undermine the employer’s ability to operate the business
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safely and effectively. In such circumstances, the employee must be reinstated to a comparable
position unless no comparable position is available or (if the leave is not also FMLA-qualifying)
filling the comparable position with the employee would substantially undermine the employer’s
ability to operate the business safely and effectively.
To the extent that the pregnancy-related disability also constitutes a “serious health
condition,” a pregnancy-disability leave under the FEHA may run concurrently with an FMLA
leave. However, because pregnancy-related disabilities are not CFRA-qualifying, a pregnancydisability leave of up to four months duration cannot be credited toward the employee’s annual
entitlement to leave under the CFRA.
The state regulations clarify the following issues regarding pregnancy-disability leaves
and the interrelationship between the pregnancy provision of the FEHA, the CFRA, and the
FMLA:
Maximum leave entitlement: An employee may take up to four months of leave under
the FEHA for a pregnancy-related disability (and, for the first 12 weeks of the leave,
contemporaneously exhaust her FMLA entitlement), and then take an additional 12 weeks of
family care leave due to the birth of the child (or any other qualifying reason) under the CFRA.
Cal. Code Regs. tit. 2, §§ 7291.13, 7297.6.
Pregnancy-disability of greater than four months duration: Where an employee has
used up her four months of pregnancy-disability leave prior to the birth of her child and her
health care provider determines that a continuation of the leave is medically necessary, an
employer may, but is not required to, allow the employee to use CFRA leave for the additional
period of pregnancy-disability leave. If an employer allows leave to be continued in this
situation, any period of leave beyond the initial four months will count against the employee’s
12-week CFRA entitlement. Cal. Code Regs. tit. 2,. §§ 7291.13(c)(1), 7297.6(c)(1).
Continuation of health insurance: The obligation to maintain health insurance under
the CFRA commences on the date leave first begins under the FMLA for pregnancy-disability
leaves, and that obligation does not exceed 12 weeks in a 12-month period. Cal. Code Regs. tit.
2, § 7297.5(c). In other words, by providing continuation of health insurance during the first 12
weeks of the pregnancy-disability/FMLA leave, the employer has satisfied its annual
continuation obligations under both the FMLA and the CFRA. Should the employee seek a
consecutive CFRA leave for the birth of the child, the employer is obligated to provide the leave,
but need not continue health insurance for any additional period.
Substitution of paid leave: During the course of a pregnancy-disability leave, an
employer may require an employee to use, or an employee may elect to use, any accrued sick
leave during the otherwise unpaid portion of her leave. An employee may elect, at her option, to
use any vacation time or other accrued personal time off that the employee is otherwise eligible
to take during her leave. Cal. Code Regs. tit. 2, § 7291.11(b).
Reinstatement rights: At the expiration of a pregnancy-disability leave, if an employee
takes a CFRA leave for reason of the birth of her child, the employee’s right to reinstatement is
governed by the CFRA and not the pregnancy provision of the FEHA. Cal. Code Regs. tit. 2,
§ 7291.9(c). Thus, in such circumstances, the employer may avail itself of the “key employee”
exception to reinstatement under the CFRA or may return the employee to a comparable position
without any showing that the same position could not be made available.
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b.
Selected Cases.
Spaziano v. Lucky Stores, Inc., 69 Cal. App. 4th 106 (1999): Disability leave policy that
provided one-year leave of absence to employees disabled by occupational injury and six-month
leave of absence to employees disabled by nonoccupational injury, including pregnancy, did not
discriminate against pregnant employees in violation of the FEHA. The distinction made by the
policy was not based on the employee’s sex or pregnancy, but on whether the employee’s
disability was work-related.
Williams v. MacFrugal’s Bargains—Close-Outs, Inc., 67 Cal. App. 4th 479 (1999):
Employee’s hysterectomy, performed several years after childbirth, was not a medical condition
“related” to pregnancy or childbirth within the meaning of the FEHA.
XVI. OTHER RECENT CALIFORNIA LEGISLATION REGARDING LEAVES
A.
“Kincare”: Use Of Sick Leave for Illness of a Family Member
The California Legislature recently passed legislation regarding the use of sick leave to
care for a family member. This legislation entitles employees, under specified situations, to
utilize accrued compensated sick leave to attend to the illness of a child, parent, or spouse. It
further prohibits employers from discriminating against an employee for using sick leave to
attend to the illness of a child, parent, or spouse. This legislation, codified at Section 233 to the
California Labor Code (“the Section”), applies to all employers, regardless of size.
1.
Substantive Provisions.
a.
Sick Leave Compensation.
Under the Section, an employer who provides sick leave for employees must permit an
employee to use a limited amount of “the employee’s accrued and available sick leave
entitlement” to “attend to the illness of a child, parent, or spouse of the employee.” In particular,
in any calendar year, the employee may use his or her accrued sick leave entitlement for those
purposes “in an amount not less than the sick leave that would be accrued during six months at
the employee’s then current rate of entitlement.”
The Section specifies that all conditions and restrictions placed by the employer upon the
use by an employee of sick leave also apply to such use by an employee to attend to the illness of
a family member. The Section further specifies that it does not extend the maximum period of
leave to which an employee is entitled under the California Family Rights Act or the federal
Family and Medical Leave Act, regardless of whether the employee receives sick leave
compensation during that leave.
As used in the Section, “sick leave” means “accrued increments of compensated leave
provided by an employer to an employee as a benefit of the employment for use by the employee
during an absence from employment” due to the employee’s (1) physical or mental inability to
work; (2) diagnosis or treatment of a medical condition; or (3) other medical reasons. “Sick
leave” does not include any benefit provided under an employee welfare benefit plan subject to
the Employee Retirement Income Security Act (ERISA), nor does it include any insurance
benefit, workers’ compensation benefit, unemployment compensation disability benefit, or
benefit not payable from the employer’s general assets.
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As used in the Section, “child” means “a biological, foster, or adopted child, a stepchild,
a legal ward, or a child of a person standing in loco parentis.” The term is not specifically
limited to minors.
Interestingly, the Section does not define the term “illness.” The Committee Reports
indicate the term is meant to encompass “unexpected, short term situations” and “minor illnesses
and injuries” that may not constitute a “serious health condition” under existing law.
b.
Anti-Discrimination Provision.
The Section further provides that “[n]o employer shall deny an employee the right to use
sick leave or discharge, threaten to discharge, demote, suspend, or in any manner discriminate
against an employee for using, or attempting to exercise the right to use, sick leave to attend to
an illness of a child, parent, or spouse of the employee.”
Plainly, this provision prohibits an employer from taking any adverse action because the
employee received (or requested) compensation, under a sick leave plan, for an absence to attend
to the illness of a family member. It is unclear to what extent the provision restricts adverse
employment action because of the absence itself, irrespective of compensation. Arguably, this
provision could be read to prohibit “counting,” under an attendance policy, absences to attend to
the illness of a family member. Such an interpretation, however, appears inconsistent with the
provision specifying that the Section does not extend the maximum period of leave to which an
employee is entitled under existing law.
2.
Remedies and Enforcement.
An employee aggrieved by a violation of the Section is entitled to reinstatement and
actual damages or one day’s pay, whichever is greater, and to appropriate equitable relief.
The aggrieved employee may file a complaint with the Labor Commissioner. The Labor
Commissioner is empowered to enforce the provisions of the Section, including conducting
administrative investigations and hearings. Alternatively, the employee may bring a civil action
for the specified remedies. If the employee prevails, the court may award reasonable attorney’s
fees. The Section specifies that the rights and remedies that it provides are non-exclusive.
B.
Victims of Domestic Violence Employment Leave Act
Under legislation effective January 1, 2001, California employers are prohibited from
discharging or retaliating against any employee who is the victim of domestic violence and who
takes time off work to seek medical attention, to obtain services from a domestic violence
program, to obtain psychological counseling, or to participate in safety planning. This act,
codified at Cal. Labor Code section 230.1, applies to employers with 25 or more employees.
The employee must give the employer reasonable advance notice of the employee’s
intention to take time off for a purpose protected by the act, unless advance notice is not feasible.
When an unscheduled absence occurs, the employer shall not take any action against the
employee if the employee, within a reasonable time after the absence, provides a certification to
the employer. The certification can be a police report, court order, documentation from a health
care provider, or documentation from a domestic violence advocate. An employee may use
© 2001 American Bar Association
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vacation, personal time, or compensatory time off otherwise available to the employee for time
taken off for a purpose protected by the act. The act does not create a right for an employee to
take unpaid leave that exceeds the unpaid leave time allowed under the FMLA. To the extent
allowed by law, employers shall maintain the confidentiality of any employee requesting leave
under the act.
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TABLE OF CONTENTS
Page
I.
THE ADMINISTRATIVE AGENCY EXPERIENCE UNDER
THE ADA............................................................................................................................................1
II.
THE AMERICAN BAR ASSOCIATION 1999 SURVEY OF
ADA CASES ......................................................................................................................................1
BASIC ISSUES UNDER THE ADA..........................................................................................................2
A.
Who Is Disabled? .................................................................................................................2
1.
Temporary or Intermittent, Episodic Impairments. .........................................2
2.
Major Life Activities..............................................................................................3
3.
B.
a.
Reproduction..............................................................................................3
b.
Scope of Major Life Activity..................................................................4
c.
Other Recent Cases – Major Life Activity
Recognized. ................................................................................................5
d.
Other Recent Cases – Major Life Activity
Not Recognized. ........................................................................................5
Substantial Limitation............................................................................................5
a.
Mitigating or Corrective Measures........................................................7
b.
Non-Physiological Limitation. ...............................................................8
4.
Record of Impairment............................................................................................9
5.
Perceived Impairments. ...................................................................................... 10
6.
Association with a Disabled Person................................................................. 11
7.
Exclusions from the Definition of Disability................................................. 12
a.
Excluded Matters. .................................................................................. 12
b.
Drugs and alcohol—specific provisions. .......................................... 13
Qualification....................................................................................................................... 13
1.
Essential Functions of the Job........................................................................... 13
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C.
IV.
V.
Page
2.
Estoppel from Claiming Ability to Perform
Essential Job Functions. ..................................................................................... 14
3.
Direct Threat......................................................................................................... 16
4.
Individualized Inquiry as to Qualification...................................................... 16
The EEOC’s Internal Response to the Supreme Court.............................................. 17
THE DUTY TO PROVIDE REASONABLE
ACCOMMODATION ................................................................................................................... 18
A.
1999 EEOC Reasonable Accommodation Enforcement
Guidance. ............................................................................................................................ 18
B.
Basic Principles of Reasonable Accommodation....................................................... 19
C.
Statutory and Regulatory Examples of Reasonable
Accommodation................................................................................................................. 19
D.
When is an Employer Obligated to Make a Reasonable
Accommodation?............................................................................................................... 20
E.
Identifying Reasonable Accommodations. .................................................................. 21
JUDICIAL INTERPRETATION OF THE REASONABLE
ACCOMMODATION REQUIREMENT ................................................................................. 23
A.
Accommodation for Applicants. .................................................................................... 23
B.
Job Restructuring and Reallocation of Job Duties. .................................................... 23
C.
Light Duty........................................................................................................................... 24
D.
Transfer or Reassignment to a Vacant Position. ......................................................... 25
1.
Accommodation Required. ................................................................................ 25
2.
Employer Cannot Require Employee to Compete
for New Position. ................................................................................................. 27
3.
Accommodation Not Required Where Employee
Fails to Identify Vacant Position for Which He or
She is Qualified.................................................................................................... 28
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4.
E.
VI.
Page
Employer Need Not Retrain Employee for New
Position. ................................................................................................................. 28
Modification of Work Schedule/Attendance Requirement. ..................................... 29
1.
Accommodation Required. ................................................................................ 29
2.
Accommodation Not Required. ........................................................................ 29
F.
Work at Home/Work Out of the Office........................................................................ 31
G.
Transportation to and from Work. ................................................................................. 32
H.
Requests for Leave............................................................................................................ 32
1.
Accommodation Required. ................................................................................ 32
2.
Accommodation Not Required. ........................................................................ 34
I.
Modifying No-Fault Attendance Policies as a Reasonable
Accommodation................................................................................................................. 35
J.
Duty to Provide Reasonable Accommodation for Perceived
Disability............................................................................................................................. 36
JOB APPLICATION PROCEDURES/PRE AND
POSTEMPLOYMENT INQUIRIES .......................................................................................... 37
A.
Preemployment Inquiries................................................................................................. 37
B.
Postemployment Inquiries. .............................................................................................. 38
C.
Qualification Standards.................................................................................................... 40
D.
Medical Examinations and Safeguarding Medical
Information. ........................................................................................................................ 42
E.
Other Disability-Related Inquiries and Medical
Examinations of Employees............................................................................................ 45
VII.
COLLECTIVE BARGAINING AGREEMENTS ................................................................... 45
VIII.
EMPLOYER DEFENSES TO REQUESTS FOR REASONABLE
ACCOMMODATION ................................................................................................................... 48
A.
Undue Hardship................................................................................................................. 49
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B.
IX.
Page
Direct Threat to Health or Safety of Individual or Others........................................ 50
THE APPLICATION OF THE ADA TO EMPLOYERS’
HEALTH INSURANCE PLANS................................................................................................ 52
A.
Disability-Based Distinctions. ........................................................................................ 53
B.
Justification of Disability-Based Distinctions............................................................. 54
C.
1.
Establishing a Bona Fide Plan. ......................................................................... 54
2.
Establishing that the Plan Is Not a “Subterfuge.” ......................................... 54
Recent Cases. ..................................................................................................................... 55
X.
RELIEF AVAILABLE UNDER THE ADA ............................................................................ 58
XI.
RECENT DEVELOPMENTS UNDER THE ADA, FMLA, AND
RELATED CALIFORNIA LAWS ............................................................................................. 59
XII.
RECENT DEVELOPMENTS UNDER THE THE FMLA ................................................... 59
A.
Basic Requirements. ......................................................................................................... 59
1.
“Covered Employer.”.......................................................................................... 59
a.
Applicable Regulations......................................................................... 59
2.
“Eligible Employee” ........................................................................................... 59
3.
Reasons for Leave................................................................................................ 60
4.
Amount of Leave Entitlement........................................................................... 60
B.
Serious Health Condition................................................................................................. 60
C.
Employee’s Obligation to Provide Notice of Need for
Leave.................................................................................................................................... 62
D.
Employer’s Obligation to Designate Leave and to Provide
Notice of Rights................................................................................................................. 63
E.
Health-Care Provider’s Certification............................................................................. 64
F.
Continuation of Health Insurance .................................................................................. 64
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G.
Right to Reinstatement ..................................................................................................... 64
H.
Prohibition of Discrimination ......................................................................................... 65
I.
Remedies and Procedural Issues. ................................................................................... 66
J.
XIII.
Page
1.
Individual Liability Under the FMLA............................................................. 66
2.
Identifying the Prima Facie Case and Burdens of
Proof. ...................................................................................................................... 66
3.
Statute of Limitations.......................................................................................... 67
4.
Arbitration Developments.................................................................................. 67
5.
Damages. ............................................................................................................... 68
6.
Miscellaneous Procedural Issues...................................................................... 68
Use of Unemployment Insurance for Parental Leave................................................ 69
FEDERAL LEGISLATION EXPANDING EMPLOYEE RIGHTS
UNDER THE FMLA ..................................................................................................................... 69
A.
Family and Medical Leave Improvements Act of 1999............................................ 70
B.
Family and Medical Leave Enhancement Act............................................................. 70
C.
Leave to Care for a Domestic Partner, Parent-in-Law, Adult
Child, Sibling or Grandparent......................................................................................... 70
XIV. THE CFRA....................................................................................................................................... 71
XV.
a.
Statute and Regulations. ....................................................................... 71
b.
Selected Cases. ....................................................................................... 72
CALIFORNIA PREGNANCY DISABILITY LEAVE LAW .............................................. 72
a.
Statute and Regulations. ....................................................................... 72
b.
Selected Cases. ....................................................................................... 74
XVI. OTHER RECENT CALIFORNIA LEGISLATION REGARDING
LEAVES ........................................................................................................................................... 74
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A.
“Kincare”: Use Of Sick Leave for Illness of a Family
Member................................................................................................................................ 74
1.
2.
B.
Page
Substantive Provisions........................................................................................ 74
a.
Sick Leave Compensation.................................................................... 74
b.
Anti-Discrimination Provision. ........................................................... 75
Remedies and Enforcement. .............................................................................. 75
Victims of Domestic Violence Employment Leave Act........................................... 75
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Page
Adams v. Citizens Advice Bureau,
187 F.3d 315 (2d Cir. 1999).................................................................................................2
Aka v. Washington Hospital Center,
156 F.3d 1284 (D.C. Cir. 1998) ...................................................................................27, 28
Albertson's, Inc. v. Kirkingburg,
527 U.S. 55, 119 S. Ct. 2162 (1999)........................................................................8, 41, 42
Austin v. Haaker,
76 F. Supp. 2d 1213 (D. Kan. 1999):.................................................................................62
Bailey v. Amsted Indus., Inc.,
172 F.3d 1041 (8th Cir. 1999) ...........................................................................................62
Bilodeau v. Mega Indus.,
50 F. Supp. 2d 27 (D. Me. 1999) .........................................................................................9
Bragdon v. Abbott,
524 U.S. 624, 118 S. Ct. 2196 (1998).........................................................................2, 3, 4,
8, 9
Braverman v. Penobscot Shoe Co.,
859 F. Supp. 596 (D. Me. 1994) ........................................................................................58
Broussard v. University of California,
192 F.3d 1252 (9th Cir. 1999) .........................................................................................6, 7
Browning v. Liberty Mutual Ins. Co.,
178 F.3d 1043 (8th Cir. 1999) ...........................................................................................63
Bryant v. Better Bus. Bureau,
923 F. Supp. 720 (D. Md. 1996) ..................................................................................21, 49
Bultemeyer v. Fort Wayne Community Schools,
100 F.3d 1281 (7th Cir. 1996) ...........................................................................................21
Burch v. Coca-Cola Co.,
119 F.3d 305 (5th Cir. 1997), cert. denied, 522 U.S. 1084, 118 S. Ct. 871
(1998).................................................................................................................................31
Caldwell v. Holland of Texas, Incorp.,
208 F.3d 671 (8th Cir. 2000) .............................................................................................61
Cehrs v. Northeast Ohio Alzheimer's Research Center,
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155 F.3d 775 (6th Cir. 1998) ...............................................................................................3
Chaffin v. John H. Carter, Inc.,
179 F.3d 316 (5th Cir. 1999) .............................................................................................66
Champ v. Baltimore County,
884 F. Supp. 991 (D. Md. 1995), aff'd without op., 91 F.3d 129 (4th Cir.
1996) ..................................................................................................................................41
Barnett v. U.S. Air, Inc.,
2000 WL 1468743 (9th Cir. Oct. 4, 2000)...................................................................47, 48
Beck v. Dahn Corp.,
1998 WL 237259 (10th Cir. May 12, 1998) ......................................................................12
Burns v. Coca-Cola Enters., Inc.,
2000 WL 1022686 (6th Cir. July 24, 2000).......................................................................28
Cialini v. Nilfisk Advance America, Inc.,
2000 WL 230215 (E.D. Pa. 2000) .....................................................................................59
Cleveland v. Policy Management Systems Corp.,
526 U.S. 795, 119 S. Ct. 1597 (1999)...................................................................14, 15, 16,
17, 18
Cole v. Uni-Marts, Inc.,
88 F. Supp. 2d 67 (W.D.N.Y. 2000) ..................................................................................62
Coleman v. Keebler Co.,
997 F. Supp. 1102 (N.D. Ind. 1998) ..................................................................................36
Colwell v. Suffolk County Police Dep't,
158 F.3d 635 (2d Cir. 1998), cert. denied, 526 U.S. 1018, 119 S. Ct. 1253
(1999)...............................................................................................................................4, 9
Connolly v. Bidermann Industries U.S.A., Inc.,
56 F. Supp. 2d 360 (S.D.N.Y. 1999)............................................................................26, 27
Copple and MCI Telecommunications Corp.,
101 F. Supp. 2d 776 (N.D. Iowa 2000)..............................................................................66
Cossette v. Minnesota Power & Light,
188 F.3d 964 (8th Cir. 1999) .......................................................................................44, 45
Costa County Dep't of Health Servs.,
172 F.3d 1176 (9th Cir. 1999) ...........................................................................................45
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Dalton v. Subaru-Isuzu Automotive, Inc.,
141 F.3d 667 (7th Cir. 1998) .............................................................................................24
Davidson v. Midelfort Clinic,
133 F.3d 499 (7th Cir. 1998) .............................................................................................37
Davis v. Florida Power & Light Co.,
205 F.3d 1301 (11th Cir. 2000) .........................................................................................46
Deal v. Candid Color System,
1998 WL 381036 (10th Cir. July 6, 1998).........................................................................34
Deane v. Pocono Med. Ctr.,
142 F.3d 138 (3d Cir. 1998)...............................................................................................36
Den Hartog v. Wasatch Academy,
129 F.3d 1076 (10th Cir. 1997) .........................................................................................12
Deppe v. United Airlines,
217 F.3d 1262 (9th Cir. 2000) ..........................................................................................11
DiSanto v. McGraw-Hill, Inc.,
220 F.3d 61 (2d Cir. 2000)...........................................................................................15, 16
Donahue v. Consolidated Rail Corp.,
2000 WL 1160947, at 5-8 (3d Cir. Aug. 17, 2000) ...........................................................23
Donnellan v. New York City Transit Auth.,
1999 WL 527901 (S.D.N.Y. 1999)....................................................................................64
Dormeyer v. Comerica Bank-Illinois,
2000 WL 1010865 (7th Cir. 2000) ....................................................................................59
EEOC v. AIC Sec. Investigations, Ltd.,
55 F.3d 1276 (7th Cir. 1995) .............................................................................................59
EEOC v. AMR Eagle, Inc.,
No. 3:98-CV-0763-M (N.D. Tex Aug. 1, 2000)................................................................41
EEOC v. Amego, Inc.,
110 F.3d 135 (5th Cir. 1997) .............................................................................................16
EEOC. v. Aramark Corp., Inc.,
208 F.3d 266 (D.C. Cir. 2000) .....................................................................................56, 57
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EEOC. v. Exxon Corp.,
203 F.3d 871 (5th Cir. 2000) .............................................................................................51
EEOC v. R.J. Gallagher Co.,
181 F.3d 645 (5th Cir. 1999) ...............................................................................................9
Earl v. Mervyns, Inc.,
207 F.3d 1361 (11th Cir. 2000) ............................................................................22, 23, 30,
67
Echazabal v. Chevron USA, Inc.,
213 F.3d 1098 (9th Cir. 2000) ...........................................................................................50
Epstein v. Kalvin-Miller Int'l, Inc.,
100 F. Supp. 2d 222 (S.D.N.Y. 2000)..................................................................................8
Fjellestad v. Pizza Hut of Am., Inc.,
188 F.3d 944 (8th Cir. 1999) .............................................................................................23
Foreman v. Babcock & Wilcox Co.,
117 F.3d 800 (5th Cir. 1997), cert. denied, 525 U.S. 1115, 118 S.
Ct. 1050 (1998) ......................................................................................................29, 46, 47
Frazier v. Iowa Beef Processors, Inc.,
200 F.3d 1190 (8th Cir. 2000) ...........................................................................................61
Gaines v. Runyon,
107 F.3d 1171 (6th Cir. 1997) ...........................................................................................19
Gantt v. Wilson Sporting Goods Co.,
143 F.3d 1042 (6th Cir. 1998) ...............................................................................20, 35, 36
Garcia-Ayala v. Lederle Parenterals, Inc.,
212 F.3d 638 (1st Cir. 2000)........................................................................................32, 33
Garrett v. Univ. of Alabama Bd. of Trustees,
193 F.3d 1214 (11th Cir. 1999) .........................................................................................68
Graham v. State Farm Mut. Ins. Co.,
1999 WL 979618 (11th Cir. 1999) ....................................................................................66
Gibbs v. American Airlines, Inc.,
74 Cal. App. 4th 1 (1999) ..................................................................................................71
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Gonzagowski v. Widnall,
115 F.3d 744 (10th Cir. 1997) ...........................................................................................24
Griffin v. Steeltek, Inc.,
160 F.3d 591 (10th Cir. 1998), cert. denied, 526 U.S. 1065, 119 S.
Ct. 1455 (1999) ......................................................................................................38, 40, 45
Gutridge v. Clure,
153 F.3d 898 (8th Cir. 1998), cert. denied, 526 U.S. 1113, 119 S. Ct. 1758
(1999);..................................................................................................................................9
Haefling v. United Parcel Service,
169 F.3d 494 (7th Cir. 1999) .............................................................................................62
Hale v. Mann,
2000 WL 675209 (2d Cir. 2000)........................................................................................68
Haschmann v. Time Warner Entertainment Co.,
151 F.3d 591 (7th Cir. 1998) .............................................................................................50
Henderson v. Bodine Aluminum Inc.,
70 F.3d 958 (8th Cir. 1995) ...............................................................................................54
Hendricks-Robinson v. Excel Corp.,
154 F.3d 685 (7th Cir. 1998) .......................................................................................25, 41
Hilburn v. Murata Elecs. N. Am., Inc.,
181 F.3d 1220 (11th Cir. 1999) ...........................................................................................9
Holiday v. City of Chattanooga,
206 F.3d 637 (6th Cir. 2000) .............................................................................................17
Hoskins v. Oakland County Sheriff's Dep't,
2000 WL 1043238 (6th Cir. July 31, 2000).............................................................6, 23, 25
Hukill v. Auto Care Inc.,
1999 WL 739407 (4th Cir. 1999) ......................................................................................59
Jackan v. New York State Dep't of Labor,
205 F.3d 562 (2d Cir. 2000)...............................................................................................28
Johnson v. Foulds, Inc.,
1997 WL 78599 (7th Cir. Feb. 19, 1997) ....................................................................34, 35
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Jones v. Fujitsu Network Communications, Inc.,
81 F. Supp. 2d 688 (N.D. Tex. 1999) ................................................................................67
Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co.,
201 F.3d 894 (7th Cir. 2000). ............................................................................................14
Katz v. City Metal Co.,
87 F.3d 26 (1st Cir. 1996)..................................................................................................37
Kenyon v. Western Extrusions Corp.,
2000 WL 12902 (N.D. Tex. 2000)...............................................................................65, 66
King v. Preferred Technical Group,
166 F.3d 887 (7th Cir. 1999) .............................................................................................67
Krohn v. Forsting,
11 F. Supp. 2d 1082 (E.D. Mo. 1998)................................................................................60
LaChance v. Duffy's Draft House, Inc.,
146 F.3d 832 (11th Cir. 1998) ...........................................................................................52
Land v. Baptist Med. Ctr.,
164 F.3d 423 (8th Cir. 1999) ...........................................................................................4, 5
Lapham v. Vanguard Cellular Sys., Inc.,
102 F. Supp. 2d 266 (M.D. Pa. 2000) ................................................................................68
Lenox v. Healthwise of Kentucky, Ltd.,
149 F.3d 453 (6th Cir. 1998) .............................................................................................58
Leonard F. v. Israel Discount Bank,
199 F.3d 99 (2d Cir. 1999).................................................................................................57
Lewis v. Kmart Corp.,
180 F.3d 166 (4th Cir. 1999), cert. denied, 120 S. Ct. 978 (2000)....................................57
Lonstreth v. Copple and MCI Telecommunications Corp.,
101 F. Supp. 2d 776 (N.D. Iowa 2000)..............................................................................66
Lujan v. Pacific Maritime Ass'n,
165 F.3d 738 (9th Cir. 1999) .............................................................................................47
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Lyons v. Legal Aid Soc'y,
68 F.3d 1512 (2d Cir. 1995)...............................................................................................32
Marchisheck v. San Mateo County,
199 F.2d 1068 (9th Cir. 1999) ...........................................................................................71
Marchisheck v. San Mateo County,
199 F.3d 1068 (9th Cir. 1999) ...........................................................................................60
Marinelli v. City of Erie,
216 F.3d 354 (3d Cir. 2000).................................................................................................5
Mark v. The Burke Rehabilitation Hosp.,
1997 WL 189124, at 4 (S.D.N.Y. Apr. 17, 1997)..............................................................10
Martin v. Kansas,
190 F.3d 1120 (10th Cir. 1999) .........................................................................................14
Mason v. Stallings,
82 F.3d 1007 (11th Cir. 1996) ...........................................................................................59
McAlindin v. County of San Diego,
201 F.3d 1211 (9th Cir. 2000), petition for cert. filed, 120 S. Ct. 2689 (2000) ..................5
McGregor v. AMTRAK,
187 F.3d 1113 (9th Cir. 1999) ...........................................................................................14
McGregor v. Autozone, Inc.,
180 F.3d 1305 (11th Cir. 1999) .........................................................................................60
McNeela v. United Air Lines,
1999 WL 377831 (N.D. Ill. 1999) .....................................................................................62
Mengine v. Runyon,
114 F.3d 415 (3d Cir. 1997)...............................................................................................24
Mitchell v. Washingtonville Central School District,
190 F.3d 1 (2d Cir. 1999) ..................................................................................................28
Modderno v. King,
82 F.3d 1059 (D.C. Cir. 1996) cert. denied, 519 U.S. 1094, 117 S. Ct. 772
(1997).................................................................................................................................57
Moses v. American Nonwovens, Inc.,
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97 F.3d 446 (11th Cir. 1996), cert. denied, 519 U.S. 1118, 117 S.
Ct. 964 (1997) ........................................................................................................16, 50, 52
Moss v. Formosa Plastics Corp.,
99 F. Supp. 2d 737 (M.D. La. 2000)............................................................................63, 65
Motley v. New Jersey State Police,
196 F.3d 160 (3d Cir. 1999)...............................................................................................16
Murphy v. United Parcel Service, Inc.,
527 U.S. 516, 119 S. Ct. 2133 (1999)............................................................................8, 17
Mustafa v. Clark County School District,
157 F.3d 1169 (9th Cir. 1998) .....................................................................................25, 26
Navarro Pomares v. Pfizer Corp.,
97 F. Supp. 2d 208 (D. P.R. 2000).....................................................................................60
Nelson v. United Technologies, Inc.,
74 Cal. App. 4th 597 (1999) ..............................................................................................72
Norris v. Allied-Sysco Food Services, Inc.,
948 F. Supp. 1418 (N.D. Cal. 1996), aff'd, 191 F.3d 1043 (9th Cir. 1998)
cert. denied, 120 S. Ct. 1221 (2000) ............................................................................31, 32
Norris v. Sysco Corp.,
191 F.3d 1043 (9th Cir. 1999), cert. denied, 120 S. Ct. 1221 (2000)................................16
Nunes v. Wal-Mart Stores, Inc.,
164 F.3d 1243 (9th Cir. 1999) ...........................................................................................52
O'Connor v. PCA Family Health Plan, Inc.,
200 F.3d 1349 (11th Cir. 2000) .........................................................................................66
O'Hara v. Mt. Vernon Bd. of Education,
16 F. Supp. 2d 868 (S.D. Ohio 1998) ..........................................................................64, 65
Ozolins v. Northwood-Kensett Community Sch. Dist.,
40 F. Supp. 2d 1055 (N.D. Iowa 1999)..............................................................................62
Pack v. Kmart Corp.,
166 F.3d 1300 (10th Cir.), cert. denied, 120 S. Ct. 45 (1999).....................................4, 5, 6
Parker v. Metropolitan Life Insurance Co.,
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121 F.3d 1006 (6th Cir. 1997), cert. denied, 522 U.S. 1084, 118 S. Ct. 871
(1998).................................................................................................................................58
Parris v. Miami Herald Publishing Co.,
200 WL 895277 (11th Cir. 2000) ......................................................................................64
Plant v. Morton Int'l., Inc.,
2000 WL 572458 (6th Cir. 2000): .....................................................................................63
Poindexter v. Atchison, Topeka and Santa Fe Ry. Co.,
168 F.3d 1228 (10th Cir. 1999) ...........................................................................................3
Porter v. U.S. Alumoweld Co., Inc.,
125 F.3d 243 (4th Cir. 1997) .............................................................................................43
Powers v. Polygram Holding, Inc.,
40 F. Supp. 2d 195 (S.D.N.Y. 1999)............................................................................33, 34
Rager v. Dade Behring, Inc.,
210 F.3d 776 (7th Cir. 2000) .............................................................................................64
Ragsdale v. Wolverine Worldwide, Inc.,
2000 WL 943787 (8th Cir. 2000) ......................................................................................64
Ralph v. Lucent Technologies, Inc.,
135 F.3d 166 (1st Cir. 1998)..............................................................................................29
Rascon v. U.S. West Communications, Inc.,
143 F.3d 1324 (10th Cir. 1998) .........................................................................................33
Raymond v. Albertson's, Inc.,
38 F. Supp. 2d 866 (D. Nev. 1999)....................................................................................65
Reeves v. Johnson Controls World Services, Inc.,
140 F.3d 144 (2d Cir. 1998).................................................................................................5
Rehling v. City of Chicago,
207 F.3d 1009 (7th Cir. 2000) ...........................................................................................22
Renaud v. Wyoming Dep't of Family Servs.,
203 F.3d 723 (10th Cir. 2000) ...........................................................................................65
Rentos v. OCE-Office Sys.,
1996 WL 737215 (S.D.N.Y. Dec. 24, 1996) .....................................................................13
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Reynolds v. Phillips & Temro Indus., Inc.,
1999 WL 980639 (8th Cir. 1999) ......................................................................................65
Rice v. Sunrise Express,
209 F.3d 1008 (7th Cir. 2000) ...........................................................................................66
Rogers v. Department of Health and Environmental Control,
174 F.3d 431 (4th Cir. 1999) .............................................................................................57
Rogers v. New York Univ.,
2000 WL 986402 (2d Cir. 2000)........................................................................................67
Routes v. Henderson,
58 F. Supp. 2d 959 (S.D. Ind. 1999) ..................................................................................66
Runnebaum v. NationsBank of Maryland, N.A.,
123 F.3d 156 (4th Cir. 1997) ...........................................................................................4, 9
Sacay v. The Research Found. of the City Univ. of N.Y.,
44 F. Supp. 2d 496 (E.D.N.Y. 1999) .................................................................................59
Schmidt v. Safeway Inc.,
864 F. Supp. 991 (D. Or. 1994) .........................................................................................58
Schneiker v. Fortis Ins. Co.,
200 F.3d 1055 (7th Cir. 2000) .............................................................................................5
School Bd. of Nassau County v. Arline,
480 U.S. 273, 107 S. Ct. 1123 (1987)..........................................................................10, 25
Sherrod v. American Airlines, Inc.,
132 F.3d 1112 (5th Cir. 1998) .............................................................................................5
Sifre v. Department of Health,
38 F. Supp. 2d 91 (D.P.R. 1999), aff'd, 214 F.3d 23 (1st Cir. 2000).................................12
Sims v. Univ. of Cincinnati,
2000 WL 973501 (6th Cir. 2000) ......................................................................................68
Sinkler v. Midwest Property Management L.P.,
209 F.3d 678 (7th Cir. 2000) ...............................................................................................5
Smith v. Ameritech,
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129 F.3d 857 (6th Cir. 1997) .............................................................................................31
Smith v. Hinkle Manufacturing, Inc.,
2000 WL 621143 (N.D. Ohio 2000)..................................................................................59
Smith v. Midland Brake, Inc.,
180 F.3d 1154 (10th Cir. 1999) .........................................................................................27
Sorenson v. University of Utah Hospital,
194 F.3d 1084 (10th Cir. 1999) .........................................................................................10
Spaziano v. Lucky Stores, Inc.,
69 Cal. App. 4th 106 (1999) ..............................................................................................73
Stekloff v. St. John's Mercy Health Sys.,
2000 WL 959613 (8th Cir. July 12, 2000).........................................................................61
Stewart v. Intem, Inc.,
2000 WL 1140517 (D. Or. 2000).......................................................................................60
Sullivan v. River Valley School District,
197 F.3d 804 (6th Cir. 1999) cert. denied, 120 S. Ct. 2718 (2000).............................43, 44
Sutton v. United Air Lines, Inc.,
527 U.S. 471, 119 S. Ct. 2139 (1999).....................................................................7, 11, 17,
42
Tangires v. Johns Hopkins Hospital,
79 F. Supp. 2d 587 (D. Md. 2000) .......................................................................................8
Taylor v. Pathmark Stores, Inc.,
177 F.3d 180 (3d Cir. 1999)...............................................................................................11
Taylor v. Pepsi-Cola Co.,
196 F.3d 1106 (10th Cir. 1999) .........................................................................................35
Taylor v. United States Postal Serv.,
946 F.2d 1214 (6th Cir. 1991) ...........................................................................................10
Teahan v. Metro-North Commuter R.R. Co.,
951 F.2d 511 (2d Cir. 1991), cert. denied, 506 U.S. 815, 113 S. Ct. 54
(1992).................................................................................................................................13
Terrell v. USAir,
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132 F.3d 621 (11th Cir. 1998) .....................................................................................30, 31
Thorson v. Gemini, Inc.,
205 F.3d 370 (8th Cir. 2000) .......................................................................................61, 68
Valle v. City of Chicago,
982 F. Supp. 560 (N.D. Ill. 1997) ......................................................................................41
Vande Zande v. Wisconsin Dep't of Admin.,
44 F.3d 538 (7th Cir. 1995) .................................................................................................3
Wade v. General Motors Corp.,
1998 WL 639162 (6th Cir. Sept. 10, 1998) .......................................................................32
Waggoner v. Olin Corp.,
169 F.3d 481 (7th Cir. 1999) .............................................................................................49
Walton v. Mental Health Association,
168 F.3d 661 (3d Cir. 1999)...............................................................................................49
Weber v. Strippit, Inc.,
186 F.3d 907 (8th Cir. 1999), cert. denied, 120 S. Ct. 794 (2000): " ................................36
Weyer v. Twentieth Century Fox Film Corp.,
198 F.3d 1104 (9th Cir. 2000) ...........................................................................................56
Williams v. MacFrugal's Bargains—Close-Outs, Inc.,
67 Cal. App. 4th 479 (1999) ..............................................................................................73
Williams v. Toyota Motor Manufacturing, Inc.,
218 F.3d 609 (6th Cir. 2000) .............................................................................................68
Willis v. Pacific Maritime Ass'n,
162 F.3d 561 (9th Cir. 1998) .............................................................................................46
Woodford v. Community Action of Green County, Inc.,
103 F. Supp. 2d 97 (N.D.N.Y. 2000).................................................................................63
Yin v. California,
95 F.3d 864 (9th Cir. 1996), cert. denied, 519 U.S. 1114, 117 S. Ct. 955
(1997).................................................................................................................................43
Zawadowicz v. CVS Corp.,
2000 WL 744533 (D.N.J. 2000) ........................................................................................68
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Zenor v. El Paso Healthcare System, Ltd.,
176 F.3d 847 (5th Cir. 1999) .............................................................................................13
STATUTES
Cal. Labor Code section 230.1.......................................................................................................75
29 C.F.R. § 825.110(d) ..................................................................................................................60
29 C.F.R. § 825.202 .......................................................................................................................71
29 C.F.R. § 825.203(b) ..................................................................................................................71
28 C.F.R. § 825.207(c)...................................................................................................................71
29 C.F.R. § 825.208(c)...................................................................................................................64
29 C.F.R. § 825.214(b) ..................................................................................................................65
29 C.F.R. § 825.700(a)...................................................................................................................64
29 C.F.R. § 1630.2(j)(1)......................................................................................................6, 11, 14,
20, 23, 25,
36, 41, 49,
51
29 C.F.R. § 1630.3(d) ....................................................................................................................13
29 C.F.R. § 1630.4(f) .....................................................................................................................53
29 C.F.R. § 1630.6(a).....................................................................................................................53
29 C.F.R. § 1630.2(j) ...................................................................................................................2, 7
29 C.F.R. § 1630.2(l) .....................................................................................................................11
29 C.F.R. § 1630.2(n)
29 C.F.R. § 1630.2(o) ..............................................................................................................20, 32
29 C.F.R. § 1630.10 ......................................................................................................................41
29 C.F.R. § 1630.14(b) ..................................................................................................................43
29 C.F.R. § 1630.14(b)(1)(i-iii) .....................................................................................................43
29 C.F.R. § 1630.15(d) ............................................................................................................46, 49
29 C.F.R. § 1630.16(f) ...................................................................................................................54
41 C.F.R. §60-741.42(a) ................................................................................................................38
29 U.S.C. § 2611(12) .....................................................................................................................60
29 U.S.C. § 2612(a)(1)(D) .............................................................................................................68
29 U.S.C. § 2614(a)(1)...................................................................................................................68
29 U.S.C. § 2617(c)(1).............................................................................................................67, 68
42 U.S.C. § 2000e-5(g) ..................................................................................................................58
42 U.S.C. § 12111(8) ........................................................................................................18, 20, 23,
25, 29
42 U.S.C. § 12112(a) ........................................................................................................18, 42, 43,
45, 53
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42 U.S.C. §§ 12112(d)(3)(B) and (4)(C), 12201(c).......................................................................43
42 U.S.C. § 12113(b) ...............................................................................................................16, 49
42 U.S.C. § 12114(c)(4).................................................................................................................13
42 U.S.C. § 12117..........................................................................................................................58
42 U.S.C. § 12205..........................................................................................................................58
42 U.S.C.A. § 1981a(c)(1) .............................................................................................................58
42 U.S.C.A. § 12102(2)(B)..............................................................................................................9
42 U.S.C.A. § 12111(8) .................................................................................................................14
42 U.S.C.A. § 12112(b)(4).......................................................................................................12, 37
42 U.S.C.A. § 12114(a) .................................................................................................................13
42 U.S.C.A. § 12201(c)(3).............................................................................................................56
Cal. Code Regs. tit. 2 .....................................................................................................................72
Cal. Code Regs. tit. 2, § 7297.3(d).................................................................................................71
Cal. Code Regs. tit. 2, § 7297.5(b)(3)............................................................................................71
Cal. Code Regs. tit. 2, § 7297.1(c).................................................................................................71
Cal. Code Regs. tit. 2, §§ 7291.13, 7297.6 ....................................................................................72
Cal. Code Regs. tit. 2, § 7297.5(c).................................................................................................73
Cal. Code Regs. tit. 2, § 7291.11(b)...............................................................................................73
Cal. Code Regs. tit. 2, § 7291.9(c).................................................................................................73
FEHA, Cal. Gov't Code § 12945 (discussed below)......................................................................70
Cal. Gov't Code § 12945.2(c)(3)(C) ........................................................................................70, 71
Family and Medical Clarification Act, S. 489, 107th Cong., 1st Sess. (2001)..............................70
Family and Medical Leave Fairness Act of 2001, S. 18, 107th Cong., 1st
Sess. (2001)........................................................................................................................70
H.R. 1312, 107th Cong., 1st Sess. (2001)......................................................................................70
H.R. 2103, 106th Cong., 1st Sess. (1999)......................................................................................70
H.R. 2104, 106th Cong., 1st Sess. (1999)......................................................................................70
H.R. 265, 107th Cong., 1st Sess. (2001)........................................................................................70
H.R. 91, 106th Cong., 1st Sess. (1999)..........................................................................................69
H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 1990, at 62, reprinted in 1990
U.S.C.C.A.N. 303, 344 ......................................................................................................20
MISCELLANEOUS
121 Daily Labor Report, E-1 (June 22, 2000) .................................................................................2
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125 Daily Labor Report, AA-1 .......................................................................................................1
157 Daily Labor Report, AA-1 .....................................................................................................69
-XXI© 2001 American Bar Association
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RECENT DEVELOPMENTS UNDER THE
ADA, FMLA, AND RELATED
CALIFORNIA LAWS
2001
Lynne C. Hermle
Silicon Valley
1000 Marsh Road
Menlo Park, CA 94025
(650) 614-7400
London
Los Angeles
New York
Tokyo
Sacramento
Silicon Valley
Washington, D.C.
Singapore
Lynne C. Hermle is a Partner in Orrick’s Silicon Valley Office, where she heads up Orrick’s Silicon Valley Employment Group. She counsels
employers on layoffs and other employment issues, and tries employment cases in federal and state court.
© Copyright 2001, Orrick, Herrington & Sutcliffe LLP. All rights reserved.
This paper is for informational use only and is not intended to constitute,
and does not constitute, legal advice.
© 2001 American Bar Association
http://www.bna.com/bnabooks/ababna/annual/2001/hermle.doc