Current ADA Developments

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31st Annual Employment Law Seminar
M A R R I O T T C I T Y C E N T E R H O T E L | S A LT L A K E C I T Y, U TA H
PA R S O...

ADA decision tree – see handout.

3
TOPICS
1. Is there a disability?
2. Is the individual qualified?
3. What is Reasonable Accommodation?
4. Medical Exams a...

1. Is there a disability?

5
The Texas hair salon case:
• Hair stylist told her employer she could not work at a salon
station “if it was in a confin...

6
• The stylist asked to be put back the way she was, but the
employer refused.
• She suffered a reaction that required ho...

7
Is Claustrophobia a Disability?
• Yes, it is listed as a disorder under the 2008 amendments to
the ADA.
• The employer p...

8
Takeaway:
• Don’t dismiss conditions that you may regard as trivial, or
“made-up”, or imagined; most mental disabilities...

9
The New Balance case in Maine:
• Employee at New Balance had a total hysterectomy.
• She previously had a tubal ligation...

10
Does the Absence Of Reproductive Organs Render
a Person Disabled?
• Federal district court said the employee was disabl...

11
Takeaway:
• Even common procedures like hysterectomies can result in
a disability if there are accompanying complicatio...

12
Is a “Social Phobia” a Disability?
The Comcast customer service rep case in New Hampshire:
• The employee had a “social...

13
• The court found that there was sufficient evidence that a
disability existed (but ruled in the employer’s favor on ot...

14
Example:
• A diabetic may be considered disabled even though the
diabetes is controlled with insulin.

15
The Distinctive HomeCare case in Texas:
• Employee was a pediatrician.
• When confronted by the employer with concerns ...

16
Is Asperger’s Syndrome a Disability?
• Asperger’s Syndrome affects the major life activities of
learning, concentrating...

17
Takeaway:
• In most cases, showing a disability is a very low bar. The
employee’s disability does not necessarily need ...

2. Is the individual qualified?

19
The United Parcel Service case:
• The employee worked for UPS in its package center.
• She sustained a back injury whil...

20
• The court said that the employee’s job description clearly
stated that lifting heavy packages was an essential job
fu...

21
Takeaway:
• An employee must be able to perform the essential
functions of the job to be a “qualified individual”, even...

22
The Gardea case in Iowa:
• The employee was a maintenance mechanic at JBS pork
processing plan.
• The employee develope...

23
• The court said that because the employee could not perform
the essential functions of the job, he was not qualified.
...

24
Comcast case (discussed above):
• Because the customer service rep could not handle a
normal volume of inbound customer...

3. What is a Reasonable
Accommodation?

26
The AstraZeneca Pharmacy case:
• The employee, a pharmacist, had taken a lengthy leave due
to depression and requested ...

27
Is an Extended Leave a Reasonable Accommodation?
• The 1st Circuit, relying heavily on a 10th Circuit case
authored by ...

28
The Ardagh Glass Packing case in New Jersey:
• The employee was a forklift operator who took a drug test at
the workpla...

29
Must an Employer Accommodate Medical Marijuana?
• The employer refused to allow the employee to return to
work and he s...

30
• N.J. law prevented criminal prosecution for possession of
medical marijuana, but did not require an employer to
accom...

31
However, the Massachusetts Supreme Court reached the
opposite result in Barbuto v. Advantage Sales.

32
• The court said that because the medical use of marijuana
was legal in Massachusetts, the employer had to
accommodate ...

33
The 4th Circuit decision in Hanna v. Coats:
• Employee was an operations analyst for the Office of the
Director of Nati...

34
• Employee began having attendance issues – tardiness and
unannounced absences.
• Employer and employee developed a pla...

35
• The employee refused to meet with the EAP and instead got
a letter from her psychiatrist, who recommended four weeks
...

36
Who Gets to Choose Among Competing
Accommodation Options?
• The court determined that the employer had engaged in the
i...

37
Takeaway:
• While employers must engage in the interactive process,
they have “the ultimate discretion to choose betwee...

38
10th Circuit decision in Exby-Stolley v. Board of
County Commissioners:
• Employee was a county health inspector who br...

39
Was Transfer from a Full-time to a Part-time Job a
Reasonable Accommodation?
• The 10th Circuit found that the employer...

40
Takeaway:
• The 10th Circuit found that there must be an “adverse
employment action” in order for an ADA claim to exist...

41
Lincoln v. BNSF Railway:
• The 10th Circuit reiterated its position that reassignment to
another position may be a requ...

42
1. Another position is vacant;
2. The disabled employee is qualified; and
3. is the most qualified of the candidates fo...

43
Mosby-Meacham v. Memphis Light, Gas, and Water:
• Pregnant employee is put on bedrest for her 3rd trimester.
• She aske...

44
Is Telecommuting a Required Accommodation?
• The 6th Circuit said that an employer must consider
telecommuting (i.e., w...

45
Factors re Working at Home
1. The employer’s ability to supervise adequately.
2. Whether the employee must use equipmen...

4. Medical Examinations and
Disability-Related Inquiries

47
May an Employer Require a Psychiatric Evaluation
on a Depressed Employee?
Hanna v. Coats (facts discussed above):
• Emp...

48
• The court also rejected the employee’s contention that her
supervisor’s inquiries about her attendance were designed
...

49
• “The ADA does not require an employer to simply ignore an
employee’s blatant and persistent misconduct even where
tha...

50
Is a Medical Questionnaire a Permissible
Medical Inquiry?
Hustvet v. Allina Health System:
• Employee was a respiratory...

51
• After employee refused to get immunized for rubella, she
was fired.
• Employee claimed “chemical sensitivities” or al...

52
• The court said that the medical questionnaire was post-offer
and thus a permissible “medical examination”.
• Court al...

53
Fitness for Duty Exams:
What is the Second Opinion Disagrees?
6th Circuit case on conflicting medical opinions:
• After...

54
• The employer initially refused to reinstate the employee.
• After the employee filed a grievance, the two doctors fin...

55
EEOC v. McLeod Health:
• Employee was editor of company newsletter for health
system employer. The job required no phys...

56
• Employee began having frequent falls on the job.
• Employer required employee to undergo a fitness for duty
medical e...

57
Was the Medical Exam Appropriate?
• The 4th Circuit ruled that requiring a medical exam violated
the ADA because walkin...

58
Police officer case in Michigan federal court:
• Police officer employee aggravated a pre-existing back
injury.
• Emplo...

59
Was the Medical Exam Appropriate?
• The court disagreed – the exam was specifically related to
essential job functions ...

60
Turcotte v. Comcast (see facts above):
• Employee had a “social phobia”.
• As part of the interactive process, the empl...

61
What is the Permissible Scope of Medical Inquiries?
The court said:
1. Employers can request medical records to substan...

5. A New Legal Theory:
ADA Hostile Environment Claims

63
Scheidler v. State of Indiana:
• Employee had PTSD and depression as a result of previous
employment at a state prison ...

64
• Following an argument with her supervisor, he startled her
by saying, “I could just strangle you.”
• Employee was lat...

65
Was There a “Hostile Environment” Based
on Disability?
• The court said that the choking comment was a “one-off”
incide...

66
But Compare…..
UPS case in Maryland:
• Deaf UPS employee was taunted by co-workers, excluded
from meetings, and denied ...

6. Retaliation

68
Waite v. Gonzaga University:
• Employee worked for Gonzaga in its research grant
department.
• Employee had brought her...

69
• Employee fell at work and suffered wrist, shoulder, and knee
injuries.
• She requested an accommodation for 6-hour wo...

70
• 8 months later, employee provided a doctor’s note saying
the bulldog was a trained service dog that alerted the
emplo...

71
• Employee sued for retaliation by the employer because she
had requested accommodations (the desk, the dog), and
becau...

72
Did the Employer Retaliate?
The court ruled:
1. Requiring an employee to provide updated documentation
regarding an acc...

73
2. Revocation of a previously granted accommodation (the
ergonomic workstation) can be evidence of retaliation.
3. Refu...

7. Job Applicants

75
Nashville case filed by EEOC:
• Employer sought to hire multiple customer service reps at
its electronics company.

76
• When the claimant came in for an interview, the company
saw that she was paralyzed from the waist down.
• The company...

77
Does the ADA Apply to Job Applicants?
• Claimant was not hired and the EEOC brought a charge of
discrimination.
• The c...

78
Thank You
• J. Kevin West
208.562.4908
kwest@parsonsbehle.com

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