Current ADA Developments

7th Annual Idaho Employment Law Seminar
O C TO B E R 1 0 , 2 0 1 9 | B O I S E C E N T RE E A S T | B O I S E , I D A H O
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Current ADA Developments
J. Kevin West
208.562.4908 | kwest@parsonsbehle.com

ADA decision tree – see handout.

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TOPICS
1. Is there a disability?
2. Is the individual qualified?
3. What is Reasonable Accommodation?
4. Medical Exams and Disability - related inquiries
5. ADA “Hostile Environment” claims
6. Retaliation
7. Job Applicants

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The Texas hair salon case:
• Hair stylist told her employer she could not work at a salon
station “if it was in a confined space located between
others” or she would suffer panic attacks.
• Initially the employer gave her a more open station, but then
placed her between two stylists.

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• The stylist asked to be put back the way she was, but the
employer refused.
• She suffered a reaction that required hospital ER treatment.
• The employer then fired her.

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Is Claustrophobia a Disability?
• Yes, it is listed as a disorder under the 2008 amendments to
the ADA.
• The employer paid $60,000 to settle the case with the
EEOC.

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Takeaway:
• Don’t dismiss conditions that you may regard as trivial, or
“made-up”, or imagined; most mental disabilities have
manifestations that are difficult to discern.

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The New Balance case in Maine:
• Employee at New Balance had a total hysterectomy.
• She previously had a tubal ligation.
• Employee had an “emotional outburst” at work, and was
pressured to resign.

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Does the Absence Of Reproductive Organs Render
a Person Disabled?
• Federal district court said the employee was disabled: “a
woman without uterus or ovaries is substantially limited in a
major life activity – reproduction and childbearing – and was
thus protected under the ADA.

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Takeaway:
• Even common procedures like hysterectomies can result in
a disability if there are accompanying complications like
hormonal imbalances, etc.

12
Is a “Social Phobia” a Disability?
The Comcast customer service rep case in New Hampshire:
• The employee had a “social phobia” and experienced
anxiety and panic attacks when fielding a high volume of
inbound customer calls.
• The employee’s healthcare provider certified the existence
of the phobia but said it was controlled with medication.
• The employee was terminated for being unable to perform
her job.

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• The court found that there was sufficient evidence that a
disability existed (but ruled in the employer’s favor on other
grounds).
Takeaway:
• The existence of a disability must be judged without the
mitigating effects of medication, medical supplies, or
equipment.

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Example:
• A diabetic may be considered disabled even though the
diabetes is controlled with insulin.

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The Distinctive HomeCare case in Texas:
• Employee was a pediatrician.
• When confronted by the employer with concerns about her
occasional erratic behavior, the employee disclosed she had
Asperger’s Syndrome.
• The employer fired the employee shortly thereafter.

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Is Asperger’s Syndrome a Disability?
• Asperger’s Syndrome affects the major life activities of
learning, concentrating, thinking, and communicating – as
such, it constitutes a disability.
• The court rejected the employer’s argument that the
employee’s ability to practice at another facility disproved
that she had a disability.

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Takeaway:
• In most cases, showing a disability is a very low bar. The
employee’s disability does not necessarily need to affect
their job performance to constitute a disability.

2. Is the individual qualified?

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The United Parcel Service case:
• The employee worked for UPS in its package center.
• She sustained a back injury while working for UPS and had
permanent lifting restrictions.
• The employee requested that the requirement of lifting
“heavy” packages be eliminated from her job.
• The employer refused and the employee was discharged.

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• The court said that the employee’s job description clearly
stated that lifting heavy packages was an essential job
function; as a result, the employee was not qualified to
perform the job.
• The court declined to require the employer to peel off the
heavy lifting aspects of the job as part of a “job-sharing”
arrangement.

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Takeaway:
• An employee must be able to perform the essential
functions of the job to be a “qualified individual”, even where
the inability to do so was the result of an on-the-job injury.

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The Gardea case in Iowa:
• The employee was a maintenance mechanic at JBS pork
processing plan.
• The employee developed carpal tunnel syndrome in his
right wrist from working at the plant.
• After treatment, the employee was left with permanent lifting
restrictions. He asked for relief from the lifting aspects of his
job because it was only an “occasional” part of his duties.
The employer refused.

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• The court said that because the employee could not perform
the essential functions of the job, he was not qualified.
Takeaway:
• Same as the UPS case. A task that is only done a few
minutes each day a week may still be an essential job
function.

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Comcast case (discussed above):
• Because the customer service rep could not handle a
normal volume of inbound customer calls due to her “social
phobia”, she was not qualified and not protected under the
ADA.

3. What is a Reasonable
Accommodation?

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The AstraZeneca Pharmacy case:
• The employee, a pharmacist, had taken a lengthy leave due
to depression and requested 12 more months as an
accommodation.
• The employer refused the accommodation and the
employee was terminated.

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Is an Extended Leave a Reasonable Accommodation?
• The 1st Circuit, relying heavily on a 10th Circuit case
authored by Justice Gorsuch, said that the ADA does not
require extended leaves of absence as an accommodation.
Takeaway:
• “The purpose of the ADA is to enable employees to work,
not to not work.” Extended leaves of absence are generally
not required as accommodations.

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The Ardagh Glass Packing case in New Jersey:
• The employee was a forklift operator who took a drug test at
the workplace; the test revealed the presence of various
drugs.
• The employee disclosed that he took drugs prescribed for
pain management, including Percocet, Gabapentin, and
marijuana.

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Must an Employer Accommodate Medical Marijuana?
• The employer refused to allow the employee to return to
work and he sued, claiming that the employer’s requirement
to pass a drug test was discriminatory.
• The court noted that N.J. law legalized medicinal marijuana,
but that marijuana was still illegal under federal law.

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• N.J. law prevented criminal prosecution for possession of
medical marijuana, but did not require an employer to
accommodate medical use of marijuana in the workplace.
• Accordingly, the employer was not required to waive its
requirement of a clean drug test.
Takeaway:
• State and federal law are on a collision course regarding
medical marijuana, but employers may still restrict use of
medical marijuana in most situations.

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However, the Massachusetts Supreme Court reached the
opposite result in Barbuto v. Advantage Sales.

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• The court said that because the medical use of marijuana
was legal in Massachusetts, the employer had to
accommodate the employee’s use under state law (not the
ADA).

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The 4th Circuit decision in Hanna v. Coats:
• Employee was an operations analyst for the Office of the
Director of National Intelligence.
• She had told her employer of her depression previously, but
had not requested an accommodation.

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• Employee began having attendance issues – tardiness and
unannounced absences.
• Employer and employee developed a plan together to
address the attendance issues, but the employee failed to
comply with the plan.
• Employer then rescinded the plan and directed the
employee to meet with an EAP counselor.

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• The employee refused to meet with the EAP and instead got
a letter from her psychiatrist, who recommended four weeks
of leave.
• The employer granted the leave but would not grant a return
to work until the employee met with the EAP counselor.

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Who Gets to Choose Among Competing
Accommodation Options?
• The court determined that the employer had engaged in the
interactive process.
• The court said the employer had the right to rescind the plan
it previously put in place and implement a requirement of
counseling with the EAP counselor.

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Takeaway:
• While employers must engage in the interactive process,
they have “the ultimate discretion to choose between
effective accommodations.”
• Employers do not have to grant the specific accommodation
requested by the employee.

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10th Circuit decision in Exby-Stolley v. Board of
County Commissioners:
• Employee was a county health inspector who broke her arm
and was thereafter unable to meet her inspection quotas.
• The employer moved the employee into a part-time office
job, kept her at the same pay, but declined to create a new
full-time position.

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Was Transfer from a Full-time to a Part-time Job a
Reasonable Accommodation?
• The 10th Circuit found that the employer’s efforts to
accommodate the employee’s condition were sufficient,
though not desired by the employee.
• No other full-time job was available for which the employee
was qualified.

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Takeaway:
• The 10th Circuit found that there must be an “adverse
employment action” in order for an ADA claim to exist; here,
the employer’s accommodative actions did not constitute an
adverse action.

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Lincoln v. BNSF Railway:
• The 10th Circuit reiterated its position that reassignment to
another position may be a required accommodation if:

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1. Another position is vacant;
2. The disabled employee is qualified; and
3. is the most qualified of the candidates for the position (this
assumes the employer has a written policy of hiring the
most qualified applicant).

43
Mosby-Meacham v. Memphis Light, Gas, and Water:
• Pregnant employee is put on bedrest for her 3rd trimester.
• She asked to work from home as an accommodation;
employer refused.

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Is Telecommuting a Required Accommodation?
• The 6th Circuit said that an employer must consider
telecommuting (i.e., working from home) as an
accommodation if (1) the employee can perform the
essential functions of the job at home, and (2) there are time
limits on the work-at-home period.
Takeaway:
• Employers should not automatically reject telecommuting as
an accommodation.
• See factors considered by the EEOC.

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Factors re Working at Home
1. The employer’s ability to supervise adequately.
2. Whether the employee must use equipment or tools found
only at the workplace.
3. The need for face-to-face interaction with the employee.
4. The need for access to documents or other information
found only in the workplace.

4. Medical Examinations and
Disability-Related Inquiries

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May an Employer Require a Psychiatric Evaluation
on a Depressed Employee?
Hanna v. Coats (facts discussed above):
• Employee had depression and attendance issues.
• The court said that the employer’s referral of the employee
for an EAP psych evaluation was not an impermissible
medical exam because the evaluation was job-related and
consistent with medical necessity.

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• The court also rejected the employee’s contention that her
supervisor’s inquiries about her attendance were designed
to solicit confidential information about her depression.
• The employer was entitled to ask about the employee’s poor
work attendance.

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• “The ADA does not require an employer to simply ignore an
employee’s blatant and persistent misconduct even where
that behavior is potentially tied to a medical condition.”

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Is a Medical Questionnaire a Permissible
Medical Inquiry?
Hustvet v. Allina Health System:
• Employee was a respiratory tech.
• Employer had a policy requiring immunization for various
communicable diseases.
• In filling out a medical questionnaire on immunizations,
employee revealed she was not immunized for rubella.

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• After employee refused to get immunized for rubella, she
was fired.
• Employee claimed “chemical sensitivities” or allergies made
it uncomfortable for her to have immunizations.

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• The court said that the medical questionnaire was post-offer
and thus a permissible “medical examination”.
• Court also found that the employee’s sensitivities did not
constitute a disability.

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Fitness for Duty Exams:
What is the Second Opinion Disagrees?
6th Circuit case on conflicting medical opinions:
• After two years of rehab and physical therapy, a refinery
worker returned to work with a fitness for duty letter signed
by his doctor.
• The collective bargaining agreement required a company
doctor to examine a returning employee; this doctor found
that the employee was unfit.

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• The employer initially refused to reinstate the employee.
• After the employee filed a grievance, the two doctors finally
spoke to one another and, after further evaluation, the
employee was allowed to return.
Takeaway:
• When there is more than one medical opinion, employers
may not simply take the one they like best; they should
facilitate further review and collaboration.

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EEOC v. McLeod Health:
• Employee was editor of company newsletter for health
system employer. The job required no physical activity.
• She had a disability that made walking difficult, but despite
that, had done her job duties satisfactorily.

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• Employee began having frequent falls on the job.
• Employer required employee to undergo a fitness for duty
medical examination.
• The doctor said the employee could do the job, though he
recommended certain modifications to the employee’s job.
• The employer ultimately fired, claiming she could not do the
job safely.

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Was the Medical Exam Appropriate?
• The 4th Circuit ruled that requiring a medical exam violated
the ADA because walking was not an essential job function.
Takeaway:
• A generalized concern about an employee’s health or well-
being is not sufficient to justify requiring a medical exam; the
exam must be related to an essential job function.

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Police officer case in Michigan federal court:
• Police officer employee aggravated a pre-existing back
injury.
• Employer ordered the officer to undergo a fitness for duty
exam.
• Officer argued that ordering him to undergo the exam was
an adverse job action.

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Was the Medical Exam Appropriate?
• The court disagreed – the exam was specifically related to
essential job functions and was therefore permissible under
the ADA.

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Turcotte v. Comcast (see facts above):
• Employee had a “social phobia”.
• As part of the interactive process, the employer requested
info from the employee’s doctor; she refused.
• The court said that the employee’s refusal to engage in the
interactive process defeated her claim.

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What is the Permissible Scope of Medical Inquiries?
The court said:
1. Employers can request medical records to substantiate
the claimed disability.
2. The request cannot generally seek all medical records; it
must focus on the disability at issue.

5. A New Legal Theory:
ADA Hostile Environment Claims

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Scheidler v. State of Indiana:
• Employee had PTSD and depression as a result of previous
employment at a state prison where an inmate had
threatened her.
• At her current job with Dept. of Insurance, employee
discussed her condition with one of her supervisors and
asked them not to startle her.

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• Following an argument with her supervisor, he startled her
by saying, “I could just strangle you.”
• Employee was later terminated for other misconduct and
sued for ADA violation.

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Was There a “Hostile Environment” Based
on Disability?
• The court said that the choking comment was a “one-off”
incident that did not amount to a hostile environment.
• The supervisor’s disregard for the employee’s request not to
startle her was not a failure to accommodate.

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But Compare…..
UPS case in Maryland:
• Deaf UPS employee was taunted by co-workers, excluded
from meetings, and denied access to a sign language
interpreter.
• The court recognized a claim for “hostile environment”
under the ADA.

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Waite v. Gonzaga University:
• Employee worked for Gonzaga in its research grant
department.
• Employee had brought her pet bulldog to work prior to the
incident in question.

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• Employee fell at work and suffered wrist, shoulder, and knee
injuries.
• She requested an accommodation for 6-hour workdays,
which Gonzaga allowed; she was also given an ergonomic
workstation.

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• 8 months later, employee provided a doctor’s note saying
the bulldog was a trained service dog that alerted the
employee to hyperglycemia.
• Gonzaga took away the ergonomic workstation while the
employee was on leave for disciplinary reasons.
• After further controversies, employee quit work on the
advice of her psychologist.

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• Employee sued for retaliation by the employer because she
had requested accommodations (the desk, the dog), and
because the employer requested additional medical
information from the employee’s doctor.

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Did the Employer Retaliate?
The court ruled:
1. Requiring an employee to provide updated documentation
regarding an accommodation is not retaliatory conduct.

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2. Revocation of a previously granted accommodation (the
ergonomic workstation) can be evidence of retaliation.
3. Refusal to allow the pet dog at work was not a failure to
accommodate because the employer initially had no
knowledge that the animal was trained and the employee
failed to cooperate in providing information about the
animal.

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Nashville case filed by EEOC:
• Employer sought to hire multiple customer service reps at
its electronics company.

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• When the claimant came in for an interview, the company
saw that she was paralyzed from the waist down.
• The company quickly ended the interview without asking
about the claimant’s skills or work experience.

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Does the ADA Apply to Job Applicants?
• Claimant was not hired and the EEOC brought a charge of
discrimination.
• The company ultimately paid $50,000 to settle the case.
Takeaway:
• Don’t put morons in charge of interviewing/hiring; your
company’s reputation/liability is at stake.
• The ADA does not apply to job applicants.

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Thank You
• J. Kevin West
208.562.4908
kwest@parsonsbehle.com

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