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ADA Topical Case Law Archive

Collective Bargaining
Aka v. Washington Hosp. Center, (CA DC), 8 AD Cases 1093, 10/9/1998

Summary: It is impossible to determine from factual record whether collective bargaining contract, which includes section on "handicapped employees'' that specifically contemplates their reassignment whenever "feasible,'' would ever preclude employer from reassigning disabled employee to vacant position without complying with contract's provisions regarding seniority and posting of vacancies, but employer clearly has power to do so in at least some circumstances.

Barnett v. U.S. AIR Inc., (CA 9), 8 AD Cases 1073, 10/6/1998

ADA does not require employer to create exception within its seniority system as accommodation to disabled employee, even though seniority system was not product of collective bargaining. Employees rely on this decades-old seniority system to award equitably job assignments and shifts just as would employees subject to collectively bargained seniority system. Employer's seniority policy does not have exception that could encompass disabled employees, and there is no suggestion that seniority system is designed or used to discriminate against disabled employees.

Wright v. Universal Maritime Service Corp., (US. Sup Ct.), 8 AD Cases 1429, 11/16/1998

Summary: A general arbitration clause in a collective-bargaining agreement does not require an employee to use the arbitration procedure to remedy an alleged violation of the ADA.

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Confidentiality
Downs v. Mass. Bay Transp. Authority, (DC Mass), 8 AD Cases 447, 7/6/1998

Summary: Employer's release of employee's medical file to its workers' compensation claims representative violated employee's right to confidentiality under ADA, since release of information did not fall under any of permissible uses of confidential information; claims representative is neither supervisor or manager, first aid or safety person, or government investigator entitled to information, and purpose for which information was sought and used does not meet any of purposes cited by ADA.

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Definition of "Disability" ("Substantially Limits" and "Major Life Activities")
Andrews v. State of Ohio
, (CA 6), 6 AD Cases 322, 1/13/1997

Summary: State troopers who exceeded weight limit under state's Highway Patrol Fitness Program and failed to meet its fitness criteria have not alleged that state perceived them to be impaired under ADA or Rehabilitation Act of 1973, since they do not allege that their weights or cardiovascular fitness is beyond normal range or that they suffer from physiological disorder, and their allegations establish only that they have certain physical characteristics--either being marginally above weight limit or marginally below fitness standard--that state has deemed inconsistent with job requirements of certain law enforcement positions.

Berg v. Norand Corp., (CA 8 1999) 9 AD Cases 207, 3/5/1999

Summary: Employee failed to show her diabetes was a disability for ADA purposes. Employee's non-insulin-dependent diabetes that restricts her to 40-to 50-hour work week is not substantially limited in major life activity of working. Employee started her own tax and accounting practice after her termination and became chief financial officer of a construction company. Employee failed to show any class of jobs or broad range of jobs from different classes from which she is excluded Being limited to 40- to 50-hour work week does not substantially limit one's ability to work.

Bragdon v. Abbott, (US Sup Ct), 8 AD Cases 239, 6/25/1998

Summary: Reproduction is a ``major life activity'' under ADA. Nothing in regulatory definition suggests that activities without public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside meaning of word ``major,'' and Rehabilitation Act of 1973 regulations that define term ``major life activity'' to include such activities as caring for one's self and performing manual tasks belie suggestion that task must have public or economic character to be major life activity for ADA purposes.

Dental patient's infection by human immunodeficiency virus (HIV) substantially limited her ability to reproduce in that woman infected with HIV who tries to conceive child imposes on man significant risk of becoming infected and infected woman risks infecting her child during gestation and childbirth.

Cehrs v.Northeast Ohio Alzheimer's Research Center (CA 6), 8 AD Cases 825, 9/1/98

Summary: Terminated nurse raised factual issue as to whether her psoriasis substantially limits her ability to care for herself and to work, where her condition is life-threatening and incurable, she experiences pain and receives weekly medication and treatment even during dormant periods, medication causes skin-peeling and loss of hair and fingernails, and because condition causes persistent skin irritations, she is constantly afraid of other people's reactions to her condition; her entire appearance, including clothing, is dictated by her psoriasis.

Cerrato v. Durham, (DC SNY), 5 AD Cases 1660, 9/16/1996

Summary: Female employee's pregnancy-related conditions--including spotting, leaking, cramping, dizziness, and nausea--can qualify as disabilities under ADA so that woman suffering from such symptoms is protected from adverse employment decisions based solely on her symptoms. Employee has alleged facts from which it might be concluded that she has suffered impairment of bodily system--her reproductive system--that substantially restricts her capacity to engage in work, which is major life activity. Although regulations provide that transitory and non-chronic impairments are not covered by ADA, extent and severity of limitations that she faced are sufficient factual questions to withstand motion to dismiss.

Coker v. Tampa Port Authority, (DC MFla), 7 AD Cases 1541, 2/4/1997

Summary: Former employee's back condition does not substantially limit his ability to perform major life activities other than work. Even though he was given working restrictions after suffering the back injury, he was released to his regular duties after completing work-hardening program. Employee indicated that he recovered after one day of rest from the two incidents that left him unable to work, and that he has problem getting around only if his back has spasm.

Columbus Civil Service Commission v. McGlone, (Ohio SupCt), 8 AD Cases 737, 8/12/1998

Summary: Firefighter recruit who was rejected due to his nearsightedness was not ``handicapped'' within meaning of Ohio employment discrimination statute, since inability to perform single job because of medical condition does not transform condition into handicap. Statute was written to protect those who have condition that significantly affects their day-to-day lives, and federal regulations under Americans with Disabilities Act support position that inability to perform one job is not sufficient.

Deas v. River West, (CA 5), 8 AD Cases 989, 9/3/1998

Summary: Neither seizures nor epilepsy is a disability per se under ADA, since term "seizures''--due to its wide range of symptoms and causes--does not appear to describe class of impairments that share sufficiently similar characteristics to be treated as single impairment or "disability'' under ADA. Acceptance of argument that "seizure'' is a disability per se would require courts to equate impairment of individual who experiences occasional "tingling'' in fingertips due to mild seizures with impairment of individual who experiences frequent, prolonged, and potentially life-threatening convulsions due to severe grand mal seizures.

"Awareness'' is not a major life activity, even though major life activities of seeing, hearing, and speaking are by definition and nature limited in person who has temporarily lost awareness of his surroundings due to seizure, since not every temporary loss of "awareness'' necessarily constitutes substantial limitation of major life activities of seeing, hearing, and speaking. Although it is uncontrovertible that seizure that causes temporary loss of awareness briefly ``limits'' ability to see, hear, or speak, it is far from clear that all such seizures have effect of substantially limiting these activities, and thus, while epilepsy or general seizure disorder in many cases will substantially limit one or more major life activities, not all seizures will have this effect.

DePaoli v. Abbott Laboratories, (CA 7), 7 AD Cases, 3/26/1998

Summary: Reasonable jury could conclude that discharged assembly-line worker who has tendinitis and tenosynovitis is prevented from performing class of jobs, where her evidence indicates that she was precluded from more than her production-line job; two physicians agree that she was disabled from performing virtually any employment requiring repetitive motions of her right hand even though hand was usable for less strenuous work and there was no need to impose weight restriction on her. She was thus precluded from virtually any assembly-line job that required repetitive movement, and assembly-line work is recognized type of work in manufacturing plants.

Doren v. Battle Creek Health System, (DC WMich), 8 AD Cases 904, 6/5/1998

Summary: Nurse with arthritis who claimed that she cannot work 12-hour shifts in hospital's pediatric department or care for adult patients due to her condition is not substantially limited in major life activity of working, where she is capable of working eight-hour shifts per day and 40 hours per week as pediatrics nurse without accommodation, and she has submitted no evidence as to number of pediatric nursing jobs from which she is excluded, apart from those at hospital.

Dudley v. UPS, (DC STexas), 7 AD Cases 1780, 2/6/1998

Summary: Temporary physical incapacity due to work-related injury is not ADA-qualifying disability, since temporary incapacity is not physical or mental impairment that substantially limits one or more major life activities.

Ellis v. Mohenis Services Inc., (DC EPa), 8 AD Cases 939, 8/21/1998

Summary: Sales manager who was diagnosed with Hepatitis C infection was not substantially limited in major life activity of working, even though his physical limitations prevented him from continuing his position as manager because he could work only 40 hours per week, since inability to work more than 40 hours per week is not a disability, and he has not offered evidence that his limitations restrict him from performing entire class or broad range of potential jobs for person with his vocational skills and training; he did not offer any evidence as to his vocational training, accessible geographic area, or number and type of jobs demanding similar training from which he was also disqualified.

Formosa v. Miami Dade Comm. College, (DC SFla), 7 AD Cases 1768, 12/11/1997

Summary: Personality conflict with superior does not establish disability under ADA, even if it produces depression, as such conflicts often do.

Francis v. City of Meriden, (CA 2), 7 AD Cases 955, 11/17/1997

Summary: Obesity, except in special cases where it relates to physiological disorder, is not "physical impairment'' within meaning of ADA and, therefore, no cause of action lies against employer that simply disciplines employee for not meeting certain weight guidelines.

Frix v. Florida Tile Industries, (DC NGa), 8 AD Cases 1411, 7/11/1997

Summary: Former storeroom coordinator who is permanently restricted from repetitive bending, twisting, crawling, or lifting more than 25 pounds because of his back injury is disabled, despite contention by employer that he is not substantially limited in major life activity of working because he is precluded from performing only a narrow range of jobs that require lifting of more than 25 pounds. His impairment does not simply restrict him from lifting particular items stocked in employer's storeroom, but it precludes him from lifting any item weighing more than 25 pounds. His inability to bend and stoop repeatedly further eliminates his capacity to perform class of jobs requiring heavy to moderate lifting, and restrictions associated with his impairment are permanent in duration.

Gittens v. Garlock Sealing Technologies, (DC WNY), 8 AD Cases 1309, 10/2/1998

Summary: Employee with lower spine injury who was removed from job of punch press operator and later assigned to light-duty work did not show that he has a disability within meaning of ADA. Although he is subject to a lifting restriction of 25-30 pounds, his inability to perform a single particular job does not constitute substantial limitation on the ability to work. The employee has worked in other positions, including welder and variety of other light-duty jobs, and weight limitation such as his, particularly when compared to average person's abilities, does not constitute significant restriction on ability to lift, work, or perform any other major life activity.

Gudenkauf v. Stauffer Communications, (DC Kan), 5 AD Cases 1739, 2/13/1996

Summary: Pregnancy is not an impairment under the ADA, since it is a natural consequence of a properly functioning reproductive system; physiological conditions and changes related to pregnancy are not impairments unless they exceed normal ranges or are attributable to some disorder.

Harrington v. Rice Lake Weighing Systems, (CA 7), 8 AD Cases 163, 8/25/1997

Summary: Former personnel manager's neck injury did not substantially limit his ability to work after he returned from surgery, even though his physician put some restrictions on lifting immediately following surgery, where restrictions were not expected to be permanent or long lasting, they were removed before he was discharged, and lifting was only incidental to his position.

Lamboy-La Salle v. P.R. Telephone Co., (DC PR), 8 AD Cases 392, 3/12/1998

Summary: Former secretary did not show that her carpal tunnel syndrome lasted long enough--one year and four months--to substantially limit her ability to work and to take care of herself, even though she may still experience some discomfort or difficulty as a consequence. Her carpal tunnel syndrome substantially limits her ability to work in broad range of jobs, as her single and particular limitation is difficulty in typing.

McKay v. Toyota Motor Mfg., (CA 6), 6 AD Cases 933, 4/8/1997

Summary: Automobile assembly employee's physical restrictions caused by her carpal tunnel syndrome--no lifting over 20 pounds, using vibrating tools, or engaging in repetitive use of her right hand--do not significantly restrict her ability to perform class consisting of manufacturing jobs. At best, her evidence supports conclusion that her impairment disqualifies her from narrow range of assembly-line manufacturing jobs requiring repetitive motion and frequent lifting of more than 10 pounds but would not significantly restrict her ability to perform broad range of jobs in various classes.

Mendoza v. Borden, (CA 11), 8 AD Cases 1665, 10/28/1998

Summary: Evidence that employee had impairment that prevented her from lifting objects of over five to seven pounds does not establish that she is disabled within meaning of ADA, where she has presented no evidence that she cannot perform broad range or class of jobs.

Perkins v. St. Louis County Water Co., (CA 8), 8 AD Cases 1345, 11/10/1998

Summary: Meniere's disease, which is condition that causes occasional episodes of vertigo and vomiting, was not disability where employee suffered only two Meniere's-related episodes during his three years of employment. First episode caused him to miss two weeks of work, and second one, which occurred year later, caused him to miss three days; medical condition that causes individual to miss two and one-half weeks of work in three-year period is not sufficient to render individual disabled under ADA.

Reeves v. Johnson Controls, (CA 2), 7 AD Cases 1675, 3/20/1998

Summary: Former employee's Panic Disorder With Agoraphobia is not ADA-protected disability, despite contention that his condition substantially limits asserted major life activity of "everyday mobility,'' which he defines largely by means of examples that are co-extensive with his symptoms; this circumvents ADA's requirement that his particular impairment substantially limits major life activity.

Richards v. City of Topeka, (DC Kan), 8 AD Cases 1027, 7/1/1996

Summary: Pregnant firefighter who did not allege that her pregnancy was unusual or abnormal does not qualify as disabled under ADA, even though pregnancy is a physiological condition, since it is not disorder, and it cannot be called an impairment as it is natural consequence of properly functioning reproductive system.
 

Sarko v. Penn-Del Directory Co., (DC EPa), 7 AD Cases 1201, 7/9/1997

Summary: Former employee's depression did not substantially limit her in major life activity of working, where she offers no evidence that her depression or medication that she took to combat it rendered her unable to perform class or broad range of jobs, she admittedly was able to work long hours and perform successfully while with employer, and despite grogginess caused by medication, she felt sufficiently confident in her ability to wake up each morning to request 8:00 a.m. starting time; she has submitted no evidence of any jobs that her condition rendered her unable to perform.

Savage v. Hoechst Celanese Corp., (DC STexas), 8 AD Cases 1173, 7/31/1998

Summary: Discharged employee who, after heart bypass surgery, was restricted from lifting more than 20 pounds and from pulling or pushing anything for two months, who was limited in his climbing abilities, and who was restricted from working 40 hours per week is not disabled under ADA, where there is no evidence that these restrictions prevented him from performing his full job duties.

Serrano v. County of Arlington, (DC EVa 1997), 7 AD Cases 1056, 1/26/1997

Summary: Exclusion from one's chosen profession is not always substantial limitation on ability to work. Otherwise, a relatively minor impairment that might bar employment in one highly specialized and demanding profession, without impairing one's employability generally, would necessarily constitute a disability; such a result would be inconsistent with regulations' acknowledgment that an individual is not substantially limited in working just because he or she is unable to perform profession requiring extraordinary skill, prowess, or talent.

Shah v. Upjohn Co., (DC WMich), 5 AD Cases 820, 10/23/1995; affirmed by 6th Circuit in 8 AD Cases 1024, 2/28/1997

Summary: Former biochemist's eosinphilia, which she allegedly developed while working in employer's laboratory, is not ''disability'' under ADA or Michigan Handicapper's Civil Rights Act, as there were no major life activities that she could not engage in during any relevant time period. Even her most severe symptoms were present for only one-month period before she was removed from laboratory. The fact that she continued to seek out non-laboratory jobs with employer is not an indication that her impediments were severe, and while she claims that she was afraid that she would get cancer if she continued to work in laboratory, there is no evidence that she ever had cancer, and fear of cancer does not qualify as disability.

Sherrod v. American Airlines, (CA 5), 7 AD Cases 1298, 1/27/1998

Summary: Former employee who is medically restricted from heavy lifting and who claims that she cannot perform any job requiring even medium lifting has not adduced evidence sufficient for reasonable jury to find substantial limitation on major life activity of working, where her evidence regarding nature and severity of her injury fails to establish her disqualification from broad range or class of jobs; her evidence tends only to prove disqualification from one job, that of flight attendant.

Skorup v. Modern Door Corporation, (CA 7), 8 AD Cases 808, 8/26/1998

Summary: Former assembly-line employee's assertion that she cannot perform any and all jobs that require repetitive stretching and pulling of shoulder does not show that her impairment substantially limits her ability to work, where she provides no evidence of number of jobs from which she is precluded because of this impairment. To establish that ADA applies to her condition, she needed to identify what requirements posed by class of assembly-line jobs or by broad range of other jobs were problematic in light of limitations that her condition imposed on her.

ADA claimants are not required to establish precise percentage of jobs that their impairment precludes them from performing to show that they are substantially limited in major life activity of working, but disabled employee's failure to present any evidence from which it can be determined whether her impairment forecloses her from accepting few, many, or most of jobs in particular class or in broad range of classes precludes her from showing that her impairment meets ADA's definition of disability.

Snow v. Ridgeview Medical Center, (CA 8), 8 AD Cases 343, 10/16/1997

Summary: General lifting restriction imposed by physician, without more, is insufficient to constitute disability within meaning of ADA.

Sutton v. United Air Lines, Inc., (Sup.Ct.) (97-1943), (BNA cite not yet available), 6/22/1999

Summary: Petitioners failed to allege properly that they are "regarded as," having an impairment that "substantially limits" a major life activity. Petitioners did not sufficiently alleged that they are regarded as substantially limited in the major life activity of working. When the major life activity under consideration is that of working, the ADA requires, at least, that one's ability to work be significantly reduced. The EEOC regulations similarly define "substantially limits" to mean significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The Court assumes without deciding that work is a major life activity and that this regulation is reasonable. It observes, however, that defining "major life activities" to include work has the potential to make the ADA circular. Assuming work is a major life activity, the Court finds that petitioners' allegations are insufficient because the position of global airline pilot is a single job. Indeed, a number of other positions utilizing petitioners' skills, such as regional pilot and pilot instructor, are available to them. The Court also rejects petitioners' argument that they would be substantially limited in their ability to work if it is assumed that a substantial number of airlines have vision requirements similar to respondent's. This argument is flawed because it is not enough to say that if the otherwise permissible physical criteria or preferences of a single employer were imputed to all similar employers one would be regarded as substantially limited in the major life activity of working only as a result of this imputation. Rather, an employer's physical criteria are permissible so long as they do not cause the employer to make an employment decision based on an impairment, real or imagined, that it regards as substantially limiting a major life activity.

Szalay v. Yellow Freight System Inc, (DC NOhio), 7 AD Cases 1504, 6/20/1996

Summary: Former mechanic who injured knee at work is not substantially limited in major life activity, where his own physician testified that while the injury will permanently diminish his ability to bend and climb he remains able to carry out all other functions associated with job as mechanic as well as other jobs and can function normally "as long as he does not exert himself.'' He is currently employed as full-time maintenance person, is capable of carrying out such activities as mowing his lawn and maintaining his house, and can perform some bending and climbing as long as he limits it to short periods of time; injury that limits employee in just one aspect of one job does not constitute substantial limitation.

Tardie v. Rehabilitation Hospital of Rhode Island, (CA 1) BNA cite not yet available, 2/24/1999

Summary: Employee experienced chest pain, shortness of breath, dizziness and numbness in her arms as a result of an enlarged heart. Employee contended that the symptoms were a result of working excessive hours (i.e. hours over forty). The court rejected the employee's argument that she is substantially limited in the major life activity of working, and therefore, disabled under the ADA, because she cannot work the overtime hours required for her position. The court held that the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

Taylor v. Pathmark Stores, (DC Del), 8 AD Cases 136, 10/23/1997

Summary: Former frozen food manager who had arthroscopic surgery on his ankle following work-related ankle injury is not disabled under ADA, despite contention that he requires a break every 50 minutes at work while non-injured workers generally are entitled to a break every two hours, where he has been able, since his initial work-related injury and subsequent aggravation of that injury, to stand and/or walk for 50 minutes of each hour, and constant standing and/or walking for 50 minutes does not constitute ``very brief'' period of time so as to constitute substantially limiting impairment on major life activity of walking under EEOC regulations.

Vaughan v. Harvard Industries, (DC WTenn), 8 AD Cases 291, 5/10/1996

Summary: Former employee's 30-pound lifting restriction does not constitute disability under ADA, despite contention that his back condition kept him from performing broad class of manual labor jobs, where he has worked as security guard, tractor driver, cement truck driver, and vinyl siding installer since leaving employer, his current job as cement truck driver clearly falls under manual labor category with duties ranging from driving, loading, and washing truck's chutes, he has not demonstrated that his impairments, which require him to rest often and to lift only light objects, have done more than restrict him from shopping for long periods of time or picking up his child, who weighs more than 20 pounds, and while such impairments are inconvenient, they do not rise to level of substantial limitation to major life activity.

Vulcu v. Trioniz Research Laboratory, (DC NOhio), 7 AD Cases 1441, 1/27/1998

Summary: Former employee who suffered temporary work injury that prevented him from working for short period of time is not disabled under ADA, despite contention that his back injury cannot be classified as "temporary'' because he receives continuing treatment in form of cortisone injections, where such treatment is insufficient to establish that he is substantially limited in major life activity. While he lists his inability to carry groceries, mow lawn, and wash dog as evidence of his disability, the term "substantially'' requires a far greater limitation on ability to perform manual tasks.

Wadding v. Sandusky Vinyl Prod., (Ohio CTApp), 8 AD Cases 1435, 10/30/1998

Summary: Former tow motor operator/janitor with back injury who had medically diagnosable abnormal condition that limited her functional ability is "handicapped'' under Ohio employment discrimination statute, where she could not perform every day routine living and working without significant hardship. 

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Direct Threat
Burroughs v. City of Springfield, (CA 8), 8 AD Cases 1677, 12/28/1998

Summary: City properly made "direct threat'' risk assessment before removing police officer from active duty following two diabetic episodes. City acted only after he suffered two hypoglycemic episodes during which he failed to remain alert and functional while on duty. City based decision on recent medical evaluation by diabetes specialist, who concluded that officer "could conceivably'' be danger to himself or others and should not carry weapon until he was able to function without significant diabetic episodes. Doctor's opinion is not speculative given that officer had recently suffered two significant episodes while on duty, proving that he was not consistently controlling his disease.

EEOC v. Prevo's Family Market (CA 6), 8 AD Cases 401, 2/4/1998

Summary: Medical examination to determine whether produce clerk who claimed he was positive for Human Immunodeficiency Virus (HIV) posed direct threat was not unwarranted, despite his contention that he posed low risk of transmitting HIV to co-workers or customers, where existence of exposure and transmission opportunities are instrumental in determining whether medical examination is necessary, and it is undisputed that his condition presented potential transmission opportunities; he testified that he regularly incurred scrapes, cuts, and puncture wounds in course of employment and that he was sure at times that he did not properly clean his knives, and there is testimony on sharing of cutting utensils, some which were not properly cleaned.

Estate of Mauro v. Borgess Med. Ctr., (CA 6), 7 AD Cases 1571, 2/25/1998

Summary: Continued employment as surgical technician of employee who had human immunodeficiency virus (HIV) was properly found to pose direct threat to health and safety of others, where his job required him occasionally to place his hands into patient's body cavity in presence of sharp instrumentation to provide room and visibility for surgeon, he had in past sustained needle stick or minor laceration, and wound causing HIV-infected surgical technician to bleed while in body cavity could have catastrophic results and near certainty of death.

Hamlin v. Charter Township of Flint, (CA 6), 8 AD Cases 1688, 1/8/1999

Summary: Federal district court did not err in submitting to jury issue of whether assistant fire chief posed direct threat to safety because of his physical inability to engage in active firefighting duties. Township presented evidence as to unpredictability of firefighter's work environment, the need for firefighting capabilities generally, and the possibility that the first responder to a scene might be in position to rescue someone trapped inside building. Township also had a rule providing that when two firefighters go into burning building for fire suppression or rescue, another pair of firefighters remains outside and ready to go in to assist if necessary. However, this evidence did not establish as a matter of law that there was a high probability of potential harm because of assistant chief's physical limitations or that the alleged risk was anything more than speculative or remote. Township simply relied on its own "subjective perceptions'' that all line officers do nothing other than directly fight fires.

Kirkingburg v. Albertson's Inc., ( CA 9), 8 AD Cases 180, 5/11/98
(first version 5/11/98)
(second version 7/1/1998)

Summary: Employer failed to establish that discharged truck driver with monocular vision who obtained Federal Highway Administration waiver exempting him from complying with Department of Transportation (DOT) visual acuity regulations posed direct threat to safety, where drivers who qualify for waiver program have established that they do not pose safety threat, waiver program was designed to bring DOT regulations into compliance with requirements of ADA and serves to protect disabled persons against unfounded discrimination, and denying monocular-visioned driver opportunity to work, in spite of his showing that he is capable of performing job safely, is precisely sort of discrimination that ADA sought to abolish.

LaChance v. Duffy's Draft House, (CA 11), 8 AD Cases 652, 7/14/1998

Summary: Former line cook with epilepsy and long history of complex partial seizures who admits that if he had continued working at restaurant he would have had seizures on job that would have posed risk of harm to himself and others because of appliances involved did not produce probative evidence that he does not pose risk to himself and others, despite contention that he has performed job safely at other places, where his prior employment consisted mainly of prep work, there is no evidence that those jobs involved using kind of appliances with which he was required to work at employer, and affidavit from his supervisor at another job indicating that he had worked around same appliances without incident for 13 months does not overcome his own admission and his doctor's statement that he posed risk of harm.

Smith v. Cadbury Beverages, (DC WNY), 7 AD Cases 1667, 9/30/1996

Summary: Discharged employee who claims he was terminated due to perceived mental disorder is unlikely to prevail on ADA claim, as his conduct--posting notice comparing employer to Ku Klux Klan and writing menacing letter to employer's president--supports view that he poses direct threat to safety of others in workplace, and it is unlikely that employer would be obliged to accommodate employee who makes libelous and threatening statements about it.

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Eleventh Amendment Immunity
Alsbrook v. City of Maumelle, (CA 8), 8 AD Cases 953, 9/11/1998

Summary: Congress did not exceed its authority under Fourteenth Amendment to U.S. Constitution in enacting ADA, and state commission on law enforcement standards and training and its officials are thus not entitled to dismissal of former city police officer's ADA action on Eleventh Amendment sovereign immunity grounds.

Autio v. AFSCME Local 3139, (CA 8), 8 AD Cases 436, 7/7/1998

Summary: Rehearing en banc granted to rehear decision in 7 AD Cases 1706 (4/9/1998) that Eleventh Amendment to U.S. Constitution does not bar employee's ADA action against state.

Clark v. State of California, (CA 9), 7 AD Cases 292, 8/27/1997

Summary: Eleventh Amendment to U.S. Constitution does not bar action under Title II of ADA against state, since Title II was validly enacted under Fourteenth Amendment; Congress's power is not limited to protection of classes found by U.S. Supreme Court to deserve "special protection'' under Constitution.

Coolbaugh v. State of Louisiana, (CA 5), 7 AD Cases 1730, 2/27/1998

Summary: Enactment of ADA was valid exercise of Congress' enforcement power under Section 5 of Fourteenth Amendment to U.S. Constitution, and ADA thus does not infringe on state's rights under Eleventh Amendment.

Crawford v. Ind. Dept. of Corrections, (CA 7), 6 AD Cases 1416, 6/2/1997

Summary: Eleventh Amendment to U.S. Constitution does not bar prisoner's damage action under Title II of ADA, since ADA is exercise of Congress' power under Section 5 of Fourteenth Amendment to enact legislation designed to enforce and bolster substantive provisions of amendment.

Kimel v. State of Florida Bd. Of Regents, (CA 11), 8 AD Cases 1, 4/30/1998

Summary: States are not entitled to immunity from suit under ADA by Eleventh Amendment to U.S. Constitution, since ADA was enacted pursuant to Section 5 of Fourteenth Amendment.

Seaborn v. State of Florida, (CA 11), 8 AD Cases 562, 6/16/1998

Summary: ADA is valid exercise of Enforcement Clause of Fourteenth Amendment to U.S. Constitution, and states thus do not have Eleventh Amendment immunity from suit under ADA.

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Essential Functions/"Otherwise Qualified"
Ackan v. N.Y.S. Dept. of Labor, (DC NNY), 8 AD Cases 1385, 10/23/1998

Summary: Ability to conduct on-site inspections is essential function of position of state safety and health inspector, since job exists to perform asbestos inspections, number of employees among whom performance of that job function can be distributed is limited, state agency has determined that on-site inspection is essential function of job as is evidenced by written description and past experience; utility of job would be nullified if inspector cannot make on-site check of contractors' compliance with asbestos regulations.

Albertsons, Inc. v. Kirkingburg, (Sup.Ct.) (98-591), (BNA cite not yet available), 6/22/1999

Summary: Delivery driver with seriously impaired vision claimed that ADA required an employer to justify as a business necessity its decision to enforce DOT safety regulations and terminate his employment as driver. The Court ruled that an employer who requires that an employee meet a federal safety regulation does not have to justify enforcing the regulation even though its standard may be waived experimentally in an individual case.

Backer v. Wyeth-Ayerst Laboratories, (DC WMich 1996), 7 AD Cases 1011, 11/15/1996

Summary: Employee with respiratory ailment who proposed that employer move her to another building has not shown that other buildings were free of chemicals or other irritants that would cause her respiratory distress, and she did not show that essential functions of her job--distributing production schedules, interacting with other members of her unit, or receiving supervision from her unit supervisor, could be performed in another building.

Brickers v. Cleveland Board of Ed., (CA 6), 8 AD Cases 534, 7/16/1998

Summary: Employee was a bus driver for the Cleveland Board of Education who sought an accommodation to her disability in the form of a transfer to a bus attendant position. The court held that lifting was an essential function of the bus attendant's position, and that the employer need not exempt an employee from performing an essential function in order to accommodate that employee's disabilities. Primary among the qualifications for a bus attendant is a requirement under state regulations that the attendant has the "[p]hysical capability of appropriately lifting and managing handicapped pupils when necessary." Therefore, in order to comply with state law, the Board must hire as school bus attendants only those applicants able to lift. Although, as the employee argued, it may be true that an attendant seldom, if ever, must perform any lifting, the ability to lift would be crucial in an emergency situation, such as an accident or fire. Much like a police officer must have the skill required to use a firearm yet might never actually draw his or her weapon, it only stands to reason that a bus attendant charged with the supervision and care of a group of children with peculiar needs and limitations would be able to account for those needs and limitations in any foreseeable circumstance, regardless of whether that circumstance actually arises. A lifting requirement is one sensible means toward ensuring that a bus attendant will adequately protect his or her charges in the event of an emergency, however unlikely.

Cehrs v.Northeast Ohio Alzheimer's Research Center (CA 6), 8 AD Cases 825, 9/1/98

Summary: It is improper to presume that uninterrupted attendance is an essential job requirement. If an employer cannot show that an accommodation unduly burdens it, then there is no reason to deny the employee the accommodation. It is essential to give each disability claim individualized attention.

Deane v. Pocono Medical Center, (CA 3), 7 AD Cases 1809, 4/15/1998

Summary: Terminated nurse with wrist injury has raised factual issue as to whether she was qualified for job, even though written job description mentions lifting as essential function, since EEOC's guidance says that employer's judgment as to which functions are essential and written job descriptions are two possible, but not incontestable, types of evidence on this point, regulations further state that determination must be made on case-by-case basis based on all relevant evidence, and nurse has offered expert testimony to support her view that she was qualified.

Foremanye v. Bd. Of Comm. College, (DC Md), 8 AD Cases 131, 3/20/1996

Summary: Former college assessment coordinator who had attendance problems because of her medical conditions, variously described as mitral valve prolapse leaflet syndrome, irritable bowel syndrome, and chronic Epstein-Barr syndrome, that were allegedly related to stress of her job could not perform essential functions of her job, even with requested accommodation of 7.5 hours reduction in her weekly hours, and she is thus not qualified individual under ADA; accommodation that she sought was equivalent to being absent for one full day each week, but full attendance was clearly essential for adequate performance of duties of job, certain amount of stress was inherent in performance of those duties, and this stress caused her severe physical problems and prevented her from fulfilling her job responsibilities.

Hamlin v. Charter Township of Flint, (CA 6), 8 AD Cases 1688, 1/8/1999

Summary: Terminated assistant fire chief's application for and receipt of disability benefits does not preclude him from maintaining that he is otherwise qualified. Asst. chief never stated in the application that he could not perform duties of assistant fire chief. He contended that he was physically unable to fight fires, and fact that disability board granted him disability pension benefits on that basis is not inconsistent with his contention that his essential job functions did not include firefighting.

Holbrook v. City of Alpharetta, (CA 11), 6 AD Cases 1409, 5/22/1997

Summary: Driving automobile and collecting certain kinds of crime scene evidence--two functions that former city detective can no longer do as result of his impaired vision--are essential functions of job. Collection of evidence is part of job description of city police detectives, and state's driver's license is requirement for job. Employee cannot perform independently full-scale investigation of many types of crime scenes and must be accompanied by fellow detective if need for such investigation arises, and he concedes that collection of evidence is specialized task requiring training.

Hypes v. First Commerce Corp., (CA 5), 7 AD Cases 1546, 2/12/1998

Summary: Loan review analyst whose job could not be done at home because it required him to review various confidential loan documents and to work as member of team was not "otherwise qualified'' for job, and bank thus did not violate ADA or Louisiana Civil Rights Act for Handicapped Persons even if it discharged him because of his chronic obstructive lung disease, since it was essential that he be in office regularly, as near to normal business hours as possible, and work full schedule, and even with requested flex-time accommodation he could not arrive at work early enough or often enough to perform essential functions of job.

Jones v. Kerrville State Hospital, (CA 5), 8 AD Cases 129, 6/4/1998

Summary: Employer did not violate ADA in refusing to allow nurse with arthritic conditions to work in direct-care position, where evidence clearly supports jury's finding that completion of physical section of behavior-management training was essential function of job, and nurse has presented no proof that she could have completed section with reasonable accommodation.

Kees v. Wallenstein, (CA 9), 8 AD Cases 1629, 11/25/1998

Summary: Former corrections officers whose various medical conditions restricted them from direct inmate contact and who were assigned to control room until they were separated are not qualified individuals with disabilities under ADA. No accommodation would allow them to have direct inmate contact, and direct inmate contact is essential function of position. Both employer and written job description identify inmate contact as fundamental duty, corrections officers assigned to control room are not expected to have inmate contact on regular basis but some incidental contact is inevitable. Corrections officers' ability to restrain inmates during emergency is critical to jail security, and collective bargaining contract indicates that corrections officers are expected to rotate among several positions, most of which require inmate contact.

Koshinski v. Decator Foundry, (CA 7), 9 AD Cases 353, 4/22/1999

Summary: Employee was cupola operator, whose job involved using a cylindrical shaft blast furnace for remelting iron before casting. Employer's refusal to return employee with degenerative disease to work because condition would be exacerbated by his job did not violate ADA, despite contention that ADA is not paternalistic statute designed to protect disabled person from himself. Employee could not perform essential functions of job when employer decided to let him go.

Laurin v. Providence Hospital, (CA 1), 8 AD Cases 768, 7/28/1998

Summary: Fact that hospital provided nurse with temporary eight-week accommodation during which it allowed her to work straight-day shift without rotating shifts does not undercut its contention that it could not cover all three shifts without shift-rotation requirement; it would be perverse to discourage employers from accommodating employees with a temporary breathing space during which to seek another position with employer. Employer does not concede that job function is ``non-essential'' simply by voluntarily assuming limited burden associated with temporary accommodation, nor thereby acknowledge that burden associated with permanent accommodation would not be unduly onerous.

Murphy v. United Parcel Service, Inc., (Sup.Ct.) (97-1992), (BNA cite not yet available), 6/22/1999

Summary: United Parcel Service, Inc. (UPS), hired petitioner as a mechanic, a position that required him to drive commercial vehicles. To drive, he had to satisfy certain Department of Transportation (DOT) health certification requirements, including having "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." 49 CFR § 391.41(b)(6). Despite petitioner's high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, respondent fired him on the belief that his blood pressure exceeded the DOT's requirements. The Court held that under the ADA, the determination of whether petitioner's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs. The Tenth Circuit concluded that, when medicated, petitioner's high blood pressure does not substantially limit him in any major life activity. Because the question of whether petitioner is disabled when taking medication is not before this Court, there is no occasion here to consider whether he is "disabled" due to limitations that persist despite his medication or the negative side effects of his medication.

Nesser v. Trans World Airlines, (CA 8), 8 AD Cases 1348, 11/10/1998

Summary: Discharged employee did not establish that he could perform essential functions of his job without accommodation, as he was unable to attend work on regular basis.

Roberts v. County of Fairfax, (DC EVa) 8 AD Cases 919, 8/13/1996

Summary: Inherent in the definition of a "qualified individual'' under the ADA is a significant limitation: the individual must be willing to accept the employer's efforts at reasonable accommodation if the accommodation is necessary for the individual to perform the job. The ADA implementing regulations embody precisely this principle by providing that a qualified individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit that such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered a qualified individual with a disability.

29 C.F.R. §1630.9(d). Citing this provision, the Sixth Circuit has ruled that an employee who was having performance problems stemming from migraine headaches was not a "qualified individual'' under the ADA because she declined to avail herself of the accommodations her employer had made available to her. Hankins v. The Gap, Inc., 5 AD Cases 924 (6th Cir. 1996). In that case, the plaintiff attempted to argue that she was not adequately notified of the possibility of taking leave as an accommodation. The Sixth Circuit, however, concluded that even if this were true, it should have been self-evident to Hankins that taking leave was what she needed to do when a migraine occurred. In addition, the court concluded that Hankins' refusal to accept an available reasonable accommodation precluded her from arguing that other accommodations should have been provided. The Hankins reasoning applies with equal force to this case.

Serrano v. County of Arlington, (DC EVa 1997), 7 AD Cases 1056, 1/26/1997

Summary: Being able to lift weight of average adult is essential function of firefighter position, where written job description warns that job involves exposure to hazardous and physically demanding conditions, firefighters may have to perform many unassisted rescues throughout career, and potentially grave consequences may result in emergency if firefighter cannot perform this function; fact that firefighters spend small amount of time performing this activity does not make it any less essential, and county's decision to use lower weight in physical agility test is not dispositive because it uses other physical examinations and medical judgments to determine whether applicant can carry out rescues at greater weights.

Tardie v. Rehabilitation Hospital of Rhode Island, (CA 1) BNA cite not yet available, 2/24/1999

Summary: Employee experienced chest pain, shortness of breath, dizziness and numbness in her arms as a result of an enlarged heart. Employee contended that the symptoms were a result of working excessive hours (i.e. hours over forty). Court held that the extended hours requirement is an essential function of the employee's position. The job description stated that the person holding the position must have "sufficient endurance to perform tasks over long periods of time." The employee admitted that dealing with employee issues beyond 9:00 to 5:00 was part of the job; she was frequently needed to be present at work for at least a portion of all three work shifts; and the position often required her to return to work after going home for the evening.

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FMLA and ADA
Rhoads v. FDIC, (DC Md), 3 WH Cases2d 1381, 2/22/1997

Summary: "Disability'' under Americans with Disabilities Act and "serious health condition'' under FMLA are different concepts and must be analyzed separately; employee may have serious health condition under FMLA even though she is not disabled under ADA.

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Interactive Process
Barnett v. U.S. Air Inc., (CA 9), 8 AD Cases 1073, 10/6/1998

Summary: Employee argued that an employee's first request for accommodation triggers the employer's duty to initiate an "interactive process." The regulations, however, state only that an interactive process "may be necessary." (§ 1630.2(o)(3)) (emphasis added). The regulations do not state that it is necessary. The court interpreted this as permissive language that also serves as a warning to employers that a failure to engage in an interactive process might expose them to liability for failing to make reasonable accommodation. The employer "must make a reasonable effort to determine the appropriate accommodation." §1630 app. §1630.9. This statement means that the employer will be liable for discrimination if a reasonable accommodation was available, but the employer did not act upon it. The ADA and its regulations do not, however, create independent liability for the employer for failing to engage in ritualized discussions with the employee to find a reasonable accommodation.

The court held that most, if not all, employers should engage in an interactive process with their disabled employees. Logically, such a process will ensure an optimal accommodation of the employee's limitations. The court did not agree, however, that an employer's failure to do so exposes it automatically and independently to liability under the ADA. Rather, the inquiry is whether the employer failed to make required reasonable accommodations for the employee. A failure to engage in an interactive process may be relevant to that inquiry; it is not a separate inquiry.

In this case, the court found that the accommodations proposed were not reasonable.

Hammon v. DHL Airways, (CA 6), 8 AD Cases 1707, 1/12/1999

Summary: Former pilot failed to establish that airline knew or should have known about his anxiety disorder, even though he told supervisors about his loss of confidence, where he never suggested that his emotional problems stemmed from condition of disability.

Hensley v. Baptist Hospital, (DC ETenn), 7 AD Cases 1798, 10/27/1997

Summary: Hospital's termination of incontinent nurse was not due to disability, even though it knew of her condition, where there is no evidence that it knew or even considered incontinence as disability under ADA inasmuch as nurse never informed it of frequency or severity of her condition and never referred to her condition as disability during her employment, and she provided no information from which hospital could have determined otherwise; her purported statement to supervisor that she would purchase protective undergarments and return to work indicates that her condition did not substantially interfere with any major life activity.

Rodriguez v. Roadway Express, (DC STexas), 7 AD Cases 1124, 12/2/1997

Summary: Motor freight carrier met its obligation under ADA to participate in interactive process with truck driver concerning accommodation of his reduced ability to lift when it expressed willingness on several occasions over six months to explore possible accommodations, asked for medical records to assist in ascertaining precise nature of his disability, and invited him to suggest accommodations.

Soto-Ocasio v. Federal Express, (CA 1), 8 AD Cases 1067, 7/16/1998

Summary: Employer did not fail to engage in "meaningful'' interaction with ADA claimant regarding reasonable accommodation, where no reasonable trier of fact could have found that she was capable of performing duties of her position. At the time she sought to return to work, she continued to receive long-term disability benefits. To be eligible to receive those payments she was required to represent that she met the definition of "total disability,'' which is "inability because if a physical impairment, to engage in any substantial gainful activity for which [the claimant is] reasonably qualified (or could become reasonably qualified) on basis of [the claimant's] education, training, or experience.'' Her doctor submitted a report stating that she "needs disability at this moment; cannot work; still in medical care.''

Staub v. Boeing Company, (DC WWash), 8 AD Cases 323, 2/26/1996

Summary: Employer's failure to conduct "informal, interactive process'' to identify potential reasonable accommodations did not deprive employee of reasonable accommodation. Regulation concerning interactive process merely suggests its use in certain circumstances, and the purpose of process is to identify limitations of employee. Here the employee and employer agreed on all his limitations, and the only issue was whether there were job openings that fit his limitations. The employer had already conducted an elaborate informal process with the employee including hiring a vocational counselor, conducting independent medical examinations, and obtaining information concerning his precise limitations from his physician.

Taylor v. Phoenixville School Dist., (CA 3), 9 AD Cases 311, 4/5/1999

Summary: School district had more than enough information to put it on notice that employee might be disabled due to her bipolar disorder. Therefore, her son did not have to invoke ADA or use words "reasonable accommodation'' to trigger school district's duty to negotiate about possible accommodations. She became psychotic at work, school officials knew that she was hospitalized shortly thereafter, and hospital contacted school district to discuss her. To trigger school district's obligation, employee or her representative only needed to request accommodation. Further, school district's obligation to negotiate about reasonable accommodation of employee with bipolar disorder was triggered whether or not its officials knew specific name of her condition.

Woodman v. Runyon, (CA 10), 7 AD Cases 1189, 12/24/1997

Summary: Disabled employee need not identify available position for reassignment before enlisting employer's assistance; she can initiate interactive process merely by notifying employer of nature of her disability and specifically requesting information about possible reassignment. At that point the employer is obliged to assist her in her effort to identify an available job. The employer has a duty to investigate the possibility of a permanent reassignment by gathering necessary information concerning her medical condition and searching for an available permanent job, where she requested a reasonable accommodation and has shown that reasonable accommodation through permanent reassignment is plausible.

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Light Duty
Hammer v. Bd. Of Ed., Arlington Heights, (DC NIll), 8 AD Cases 963, 1/21/1997

Summary: Fact that employer does not have obligation to create light-duty position for disabled employee if none is available does not mean that it does not have a duty to attempt reasonable accommodation, since accommodation under ADA means that employer must be willing to consider making changes in its ordinary work rules, terms, and conditions to enable disabled individuals to work.

Hendricks-Robinson v. Excel Corp., (DC CIll), 8 AD Cases 643, 8/4/1997

Summary: Employer's policy of removing disabled employees from light-duty jobs that they could perform, once they were determined to be permanently restricted, did not violate ADA, despite contention that such positions were reasonable accommodation, since light-duty jobs were temporary. The light- duty jobs were set aside to facilitate employees' recoveries from injuries by allowing them to remain employed rather than placing them on medical layoff to recover at home. If the employer were forced to provide light-duty positions on a permanent basis to permanently restricted employees, at some point future temporarily restricted employees would no longer have the opportunity to work in temporary, light-duty positions while they recuperated but would be forced into medical layoff until they were ready to return to heavy-duty work.

Sidaris v. Runyon, (DC MAla), 8 AD Cases 1165, 2/27/1997

Summary: U.S. Postal Service, which in past had assigned mail carrier to light duty during summer months so that she would not be delivering mail when temperature exceeded 80 degrees, is not required to continue this assignment or to convert it to permanent light-duty assignment.

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Medical Examinations
EEOC v. Prevo's Family Market, (CA 6), 8 AD Cases 401, 2/4/1998

Summary: Employer that was informed by produce department employee that he was positive for Human Immunodeficiency Virus was not required to take his word that he had an illness that might require special accommodation but, instead, could require him to undergo medical examination to confirm or disprove his statement without violating ADA. If otherwise, every employee could claim disability warranting special accommodation yet deny employer opportunity to confirm whether need for accommodation exists; ADA's purpose was not to create impediments for such employer-employee cooperation but to promote interactive dialogue to discover to what extent employee is disabled and how he may be accommodated in workplace.

Rodriguez v. Loctite Puerto Rico, Inc., (DC PR), 8 AD Cases 835, 6/25/1997

Summary: Employer's request that employee who allegedly had systemic lupus erythematosus undergo medical examination before deciding whether to grant her request for two-month medical leave was consistent with business necessity, where she did not have substantial record of absenteeism due to illness, employer was aware of her alleged lupus condition, the purpose of the examination would have been to determine whether she could perform her job, she admits that doctor filled in dates of medical excuse not on basis of his independent judgment but on basis of her request that she needed two-months respite, and she had never formally informed employer of any impairment.

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Mitigating Measures
Arnold v. United Parcel Service, (CA 1), 7 AD Cases 1489, 2/20/1998

Summary: Court of Appeals held that the lower court, which determined that diabetic job applicant was not disabled in light of ameliorative effects of his insulin medication, did not afford adequate consideration to EEOC guideline stating that determinations of whether an individual has an impairment and whether it substantially limits major life activity should be made without regard to mitigating measures, where EEOC's interpretation is consistent with ADA's legislative history and broad remedial purposes. (But see conflicting view by 6th Circuit)

Baert v. Euclid Beverage Limited, (CA 7), 8 AD Cases 973, 7/10/1998

Summary: Whether insulin-dependent diabetic driver's condition constitutes impairment should be determined without regard to fact that he is apparently able to control effects of disease with insulin; whether condition constitutes impairment and extent to which impairment limits individual's major life activities is to be evaluated without regard to availability of mitigating measures such as medicines or assistive or prosthetic devices. (Note: 6th Circuit holds opposite view. See Gilday v. Mecosta County, (CA 6) 7 AD Cases 348, 9/2/1997)

Matczak v. Frankford Candy & Choc. Co., (CA 3), 7 AD Cases 1050, 11/18/1997

Summary: Individuals who control their disability with medication may still invoke protections of ADA, since EEOC has stated that determination of whether individual is substantially limited in major life activity must be made without regard to mitigating measure such as medicines, or assistive or prosthetic devices, and ADA's legislative history reveals Congress' intent to exclude mitigating measures from assessments of disability; one report noted that persons with impairments, such as epilepsy or diabetes, that substantially limit major life activity are covered under ADA even if effects of impairment are controlled by medication. (But see conflicting view by 6th Circuit)

Murphy v. United Parcel Service, Inc., (Sup.Ct.) (97-1992), (BNA cite not yet available), 6/22/1999

Summary: United Parcel Service, Inc. (UPS), hired petitioner as a mechanic, a position that required him to drive commercial vehicles. To drive, he had to satisfy certain Department of Transportation (DOT) health certification requirements, including having "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." 49 CFR § 391.41(b)(6). Despite petitioner's high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, respondent fired him on the belief that his blood pressure exceeded the DOT's requirements. The Court held that under the ADA, the determination of whether petitioner's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs. The Tenth Circuit concluded that, when medicated, petitioner's high blood pressure does not substantially limit him in any major life activity. Because the question of whether petitioner is disabled when taking medication is not before this Court, there is no occasion here to consider whether he is "disabled" due to limitations that persist despite his medication or the negative side effects of his medication.

Sutton v. United Air Lines, Inc., (Sup.Ct.) (97-1943), (BNA cite not yet available), 6/22/1999

Summary: Applicants for jobs as pilots suffered from severe myopia, but their vision impairments were fully corrected through optical lenses. Applicants argued that the airline violated ADA by requiring minimum standards of uncorrected visual acuity; the district court held that applicants had no standing to sue under ADA, since their corrected vision left them fully able. The Court held that the determination whether an individual is disabled under 42 U.S.C. § 12102(2) should be made in the light of measures, such as eyeglasses and contact lenses, that mitigate the individual's impairment.

Washington v. HCA Health Services, (CA 5), 8 AD Cases 1044, 9/3/1998

Summary: Cases holding that mitigating measures must be taken into account in determining whether impairment substantially limits major life activity offer most reasonable reading of ADA. However, the statute is ambiguous, and EEOC's guideline interpreting statute to measure impairment in unmitigated state must be given more than minimal deference inasmuch as this guideline has been part of its regulations since they were promulgated. The regulations have consistently interpreted "disability'' to mean "without regard to mitigating measures." The legislative history supports EEOC's interpretation, and EEOC has significant expertise and authority to interpret and promulgate regulations under ADA.

EEOC guideline interpreting ADA to measure impairment in unmitigated state will be read narrowly, since nothing in EEOC's Interpretative Guidelines or legislative history suggests that all impairments must be considered in their unmitigated states or that no mitigating measures may ever be taken into account.

Whether impaired individual must be evaluated without regard to mitigating measures in determining whether he is substantially limited in major life activity depends on both nature of impairment and mitigating measures that he employs, and, therefore, these issues must be considered on case-by-case basis.

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Non-Discriminatory Discharge
Adamcyzk v. Chief, Baltimore Cty. Police, (DC Md), 8 AD Cases 515, 1/29/1997

Summary: County police department lawfully demoted sergeant for misconduct following his revolting behavior at shift party, despite contention that he was demoted because of his alcoholism, where he engaged in egregious misconduct unbecoming of police officer, and whether or not he was intoxicated, what he did and said adversely affected morale of other police officers, particularly female officers in attendance.

Brohm v. JH Properties Inc., (CA 6), 8 AD Cases 511, 7/24/1998

Summary: Hospital was entitled to discharge anesthesiologist who was sleeping on job and who subsequently was diagnosed with sleep apnea, despite contention that he was discharged for conduct causally related to his disability, where sleeping while administering anesthetics severely diminished his ability to perform his duties as anesthesiologist.

Crandall v. Paralyzed Veterans, (CA DC), 8 AD Cases 348, 6/23/1998

Summary: Employer that terminated librarian for rudeness was not on notice of his alleged underlying disability of bipolar disorder, despite contention that his rude behavior itself was so extreme as to afford notice, where layman cannot reasonably be expected to infer psychiatric disorder merely from rude behavior, given prevalence of rudeness without psychiatric disorder.

Gantt v. Wilson Sporting Goods, (CA 6), 8 AD Cases 308, 5/12/1998

Summary: Former employee who was discharged because she was unable to return to work at end of one-year leave of absence cannot demonstrate pretext by her arguments that employer's leave-of-absence policy identified in discharge letter was posted on bulletin board while another leave policy was published in employee manual, that she was not warned that she was about to be terminated, that her work record was good and there was no other reason to terminate her, and that extension of leave policy for three weeks would have cost employer nothing, since none of these factors tends to show that employer's application of its leave of absence policy was untrue, did not actually motivate discharge, or was insufficient to motivate discharge.

Hamilton v. Southwestern Bell Tel. Co., (CA 5), 8 AD Cases 1219, 3/23/1998

Summary: Discharge of managerial employee who verbally abused physically smaller female employee and slapped her hand down was due to his violation of employer's policy against workplace violence and did not violate ADA, despite contention that his violent outburst was caused by his post traumatic stress disorder syndrome. ADA does not insulate emotional or violent outbursts blamed on impairment; cause of discharge was his failure to recognize acceptable limits of behavior in workplace environment.

Jasmantas v. Subaru-Isuzu, (CA 7), 7 AD Cases 1859, 3/26/1998

Summary: Discharged employee with repetitive-stress disability did not offer sufficient evidence of discrimination. Photographs taken by private investigators convinced managers that she was malingerer and was dishonest about her injuries. Employee offered no evidence undercutting good faith of this belief or otherwise tending to show pretext. Fact that two officials may have made disparaging remarks about disabled employees on several occasions is too remote from circumstances of her termination to help her.

Kariotis v. Navistar Intl., (CA 7), 7 AD Cases 1313, 12/9/1997

Summary: Former executive assistant who had knee replacement surgery cannot make out ADA claim against employer that discharged her for disability fraud. Video tape secretly taken by employer's investigators showed employee walking, driving, sitting, bending, and pushing grocery cart. Although employer did not speak with her physician or have her examined by its doctor, it reasonably concluded that she was collecting disability benefits even though she could perform her job. Nothing in the record suggests that the employer came to this conclusion because the employee had severe physical problems that were costing it money. Discharge decision may be flawed, but it was not based on illegal discrimination.

Maddox v. Univ. of Tennessee, (CA 6), 4 AD Cases 1253, 8/21/1995

Summary: Court distinguished between discharge for misconduct and discharge because of disability of alcoholism in upholding discharge of assistant university football coach for having been arrested for drunk driving, despite the contention that in essence he was discharged because of disability because alcoholism caused incident that led to discharge. A contrary ruling would force employer to accommodate all behavior of alcoholic that could in any way be related to alcoholic's use of intoxicating beverages, including behavior that would be intolerable if engaged in by sober employee or by intoxicated but non-alcoholic employee. For example, it strains logic to conclude that an individual who becomes intoxicated and sexually assaults a co-worker could be protected under the ADA merely because he has been diagnosed as an alcoholic and claims that his conduct was caused by his disability.

Matthews v. Commonwealth Edison, (CA 7), 7 AD Cases 1651, 11/17/1997

Summary: Employer's discharge in reduction in force (RIF) of employee who had suffered heart attack did not violate ADA, even though discharge was consequence of his disability, where it was not due to his disability. Employer selected employees for RIF on basis of recent performance, and heart attack caused him to miss many months and resulted in lower annual performance rating.

Matthews v. Trilogy Communications, (CA 8), 8 AD Cases 299, 5/14/1998

Summary: Termination of insulin-dependent diabetic traveling sales representative after he became uninsurable because of his bad driving record does not establish disability-based discrimination, since at time of termination he no longer possessed same objective professional qualifications as when he was hired. When hired, he had valid driver's license and was insurable driver under employer's insurance policy, and having valid driver's license and being insurable are not only mere company rules but rather are objective qualifications for job because sales personnel must be able to drive to clients' locations.

Newberry v. East Texas State Univ, (CA 5), 8 AD Cases 1595, 11/18/1998

Summary: If disabled employee engages in conduct that is legitimate basis for discharge, employer may discharge him on basis of conduct itself without violating ADA, even though it believes that his conduct is symptomatic of his disability, as long as collateral assessment of disability plays no role in discharge decision.

Pouncy v. Vulcan Materials Co., (DC NAla), 7 AD Cases 1621, 2/16/1996

Summary: Employer's reasons of poor performance and bad attitude for terminating systems analyst, who claimed that she was perceived by employer to be suffering from mental illness, were not pretextual, where her performance problems and attitude problems were well documented, and employer went out of its way to attempt to keep her on job even after her problems persisted for months.

Smith v. Chrysler Corp., (CA 6), 8 AD Cases 1084, 9/15/1998

Summary: In order for an employer's proffered non-discriminatory basis for its employment action to be considered honestly held, the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made. If the employer is unable to produce such evidence to support its employment action, then the "honest belief'' rule does not apply. In this case, the court held that the employer reasonably relied on the particularized facts at hand when it determined that the employee had falsely stated on his Driver's License Examination form that he was not narcoleptic. Chrysler had before it letters from the employee's treating physician stating that he was being treated for narcolepsy, the medical opinion expressed by the employee's doctor during his telephone conversation with the employer's doctor that the employee suffered from narcolepsy, and the medical notes of the employer's doctor indicating that the employee himself admitted to suffering from narcolepsy since 1989.

Thompson v. City of Watford City, (ND SupCt), 8 AD Cases, 9/8/1997

Summary: Mentally disabled garbage collector's job-related conduct gave city non-discriminatory reasons for discharging him, since he had not been performing satisfactorily; he worked more slowly, walked off job without permission, tried to hit co-worker, and went fishing when directed to return to shop to "cool off,'' and he rejected meeting with supervisor and mayor about keeping his job despite these job failings.

Wallin v. Minnesota Dept. Of Corrections, (CA 8), 8 AD Cases 1012, 8/17/1998

Summary: Discharged correctional officer was not discriminated against by reason of his disability, despite contention that similarly situated employees were disciplined differently, where other employees cited by him were not similarly situated to him because their misconduct was not as egregious as his in that he, unlike them, created substantial public danger by leaving entire cell block unbolted, he was involved in three serious, unrelated incidents in short one-month period while demonstrating pattern of violent behavior, and he, unlike other employees cited, was evasive during investigation, would not admit to wrongdoing, and could not assure supervisors that he would not repeat his misdeeds.

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Pre-Employment Inquiries
Bartlett v. New York State Bd. of Law Examiners
, (CA 2), 8 AD Cases 1004, 9/14/998

Summary: Individual seeking to take bar examination who suffers from lack of automaticity and phonological processing defect is disabled in major life activities of reading and learning. Individual is entitled to reasonable accommodations in taking examination, where her condition significantly restricts her ability to identify and decode written materials. She is not able to read and absorb knowledge as quickly as general population, and her achievement of roughly average reading skills on some measures is due to her history of self-accommodations and fact that skills test used allowed her unlimited time to compensate for her disability.

Downs v. Mass. Bay Transp. Authority, (DC Mass), 8 AD Cases 447, 7/6/1998

Summary: State transportation authority appears to have asked impermissible disability-related inquiries to bus-driver applicant when, before making real conditional offer of employment, it asked him whether he had ever received workers' compensation and gave him application form to fill out that asked whether he had ever suffered from joint pain, where it appears that these inquiries were not directly tied to his ability to drive bus.

Dubois v. Alderson-Broaddus College, (DC NWVa), 8 AD Cases 931, 1/24/97

Summary: College student who claims that he is entitled to accommodation because he has learning disability did not show that he has specific learning disability, where he did not comply with college's written policy on how to obtain accommodation for disability. He does not contend that policy violated federal law or imposed undue burdens on him. Psychological report that he submitted stated that he ``might'' suffer from disability but did not make specific diagnosis. Other consultant who declared him disabled never personally examined him. Finally, student failed to take intelligence scale test despite being expressly advised by college that his previous submissions were insufficient and that test was required for final disability classification.

Griffin v. Steeltek Inc., (CA 10), 8 AD Cases 1249, 10/29/1998

Summary: Job applicant who was not hired after he provided answers to impermissible questions regarding whether he had ever received workers' compensation benefits and whether he had any disabilities has standing to challenge employer's questions under Section [PL 101-336 102(d)(2)] 102(d)(2) of ADA without showing that he is actually disabled or regarded as having disability, where he has sufficiently alleged that he suffered injury in fact in that employer did not hire him because of his responses to impermissible questions, and he seeks damages and injunctive relief to remedy his injury.

Jacobsen v. Tillmann, (DC Minn), 8 AD Cases 913, 8/31/1998

Summary: Request by elementary school teacher with learning disability, who is unable to pass mathematics portion of required Pre-Professional Skills Test (PPST), for waiver of that portion of PPST is unreasonable modification that would fundamentally alter nature of state's certification of qualified individuals license to teach children of state.

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Psychiatric Disabilities
Criado v. IBM Corporation, (CA 1), 8 AD Cases 336, 6/5/1998

Summary: Former employee presented evidence that could have allowed rational jury to find that her psychological disability was not temporary, as she had been seeing her physician for seven years, she often had periods of depression, and she had been diagnosed with Attention Deficit Disorder, which is a permanent disability; despite evidence from her physician that her condition was temporary and that she would completely recover after short leave from work, jury could have found that she and physician only intended that accommodation she requested was temporary, not the disability itself.

Duda v. Bd. Of Education, (CA 7), 8 AD Cases 99, 1/16/1998

Summary: Allegation by school custodian, who had been diagnosed as manic depressive with bipolar disorder, that he had been forced to transfer to location where he is required to work alone under orders not to communicate with any other individual states viable claim under ADA for being segregated. EEOC guidelines state clearly that reassignment cannot be used to segregate or otherwise discriminate against employees with disabilities.

Hoeller v. Eaton Corp, (CA 7), 8 AD Cases 537, 7/10/1998

Summary: Former employee with bipolar disorder who claims that employer regarded him as being substantially limited in major life activity has not proved that his condition limited him substantially in any major life activity, even though it was undoubtedly difficult condition to live with.

Kolpas v. G.D. Searle & Co., (DC NIll), 8 AD Cases 1285, 3/17/1997

Summary: Inability to work due to stress imposed by supervisor does not establish ADA-protected disability, since ADA does not protect people from general stresses of workplace.

Olmstead v. L. C., (Sup. Ct.) (98-536), (BNA cite not yet available), 6/22/1999
(Note: this is not an employment case, but involves government services and is included for general reference.)

Summary: Plaintiffs argued that ADA's proscription of discriminatory treatment requires placement of persons with mental disabilities in community settings rather than in institutions. On the facts of the case, where the medical personnel and the individual agreed to such placement, and such placement does not fundamentally alter the state's services, a majority of the Court agreed.

Sarko v. Penn-Del Directory Co., (DC EPa), 7 AD Cases 1201, 7/9/1997

Summary: Former employee's depression did not substantially limit her in major life activity of working, where she offers no evidence that her depression or medication that she took to combat it rendered her unable to perform class or broad range of jobs. Employee admittedly was able to work long hours and perform successfully while with employer, and despite grogginess caused by medication, she felt sufficiently confident in her ability to wake up each morning to request 8:00 a.m. starting time. She submitted no evidence of any jobs that her condition rendered her unable to perform.

Smith v. Cadbury Beverages, (DC WNY), 7 AD Cases 1667, 9/30/1996

Summary: Discharged employee who claims he was terminated due to perceived mental disorder is unlikely to prevail on ADA claim, as his conduct--posting notice comparing employer to Ku Klux Klan and writing menacing letter to employer's president--supports view that he poses direct threat to safety of others in workplace. It is unlikely that an employer would be obliged to accommodate an employee who makes libelous and threatening statements about it.

Taylor v. Phoenixville School Dist., (CA 3), 9 AD Cases 311, 4/5/1999

Summary: Employer that has been notified of employee's disability and desire for accommodation bears burden of requesting whatever additional information that it needs, as disabled employees, especially those with psychiatric disabilities, may have good reasons for not wanting to reveal details of their medical records. Much of information may be irrelevant to identifying and justifying accommodations, could be embarrassing, and might actually exacerbate workplace prejudice. Employee with mental illness may have difficulty effectively relaying medical information, particularly when symptoms are flaring.

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Reasonable Accomodation and Undue Hardship
Aka v. Washington Hosp. Center, (CA DC), 8 AD Cases 1093, 10/9/1998

Summary: Employee seeking reassignment to vacant position is "qualified individual with a disability'' if, with or without reasonable accommodation, he can perform essential functions of job to which he seeks reassignment, even if he cannot perform essential functions of his current job.

Bailey v. Amsted Industries, (CA 8), 9 AD Cases 292, 4/8/1999

Summary: Former employee who was diagnosed with Graves' Disease and depression did not show that his discharge for absenteeism occurred under circumstances that raise inference of discrimination, where vast majority of his 72 absences were not for medical reasons and thus not related to his alleged disability.

Barnett v. U.S. Air Inc., (CA 9), 8 AD Cases 1073, 10/6/1998

Summary: In this case, the employee made three concrete suggestions to his employer for accommodation of the limitations created by his disability: (1) that the employer create an exception for him within its seniority system and allow him to remain in the swing-shift mailroom position, (2) that the employer purchase special lifting equipment to enable him to serve in the cargo position, or (3) that the employer alter the cargo position so that Barnett would perform only desk work.

The court found all three proposals unreasonable. The court found that the airline was not required to make an exception for the employee within its seniority system and leave him in the swing-shift mailroom position. Although the seniority system was not as a result of a collective bargaining agreement, the system was relied upon to award equitable job assignments and shifts. Moreover, the policy did not have an exception that could encompass disabled employees. The employee failed to show that special equipment would provide any accommodation of his disability not provided by the forklifts already furnished. Finally, the court rejected the employee's suggestion that the airline should have modified the shift requirements to require only deskwork because reasonable accommodation does not require an employer to eliminate or reassign essential job functions.

Bennett v. Henderson, (DC Kan), 8 AD Cases 1361, 8/7/1998

Summary: Accommodation that would be unreasonable for private employer could be found reasonable undertaking for U.S. Government in view of its affirmative goal to be model employer for those with disabilities. There still exists some point at which suggested accommodation exceeds bounds of reasonableness even for U.S. Government, and former U.S. Postal Service employee's requested accommodation crosses that point. Costs would clearly exceed benefit to be derived inasmuch as no evidence indicates that requested accommodations would permit him to perform all essential functions of his position.
 

Cehrs v.Northeast Ohio Alzheimer's Research Center (CA 6), 8 AD Cases 825, 9/1/98

Summary: Case was sent back to the lower court. Lower court erred in holding that an unpaid leave of indefinite duration (or a very lengthy period, such as one year) could never constitute a "reasonable accommodation" under the ADA. Because the employer routinely granted medical leave to its employees and the employee (nurse) had never requested extended leave throughout her tenure with employer, a factual issue existed as to whether the employer would have been unduly burdened by granting further medical leave to the employee with psoriasis.

Cassidy v. Detroit Edison, (CA 6), 8 AD Cases 326, 3/12/1998

Summary: Employer that previously had attempted reasonably to accommodate asthmatic employee did not deny her reasonable accommodation by its failure to transfer her to requested allergen-free workplace, where it attempted to locate such facility but her proposal was too vague to inform it of reasonable accommodation or was otherwise simply unavailable; the employee had a duty to propose objectively reasonable accommodation, and she failed to show that there were any vacant positions in such areas.

Corder v. Lucent Technologies, Inc., (CA 7), 8 AD Cases 1611, 10/22/1998

Summary: Employer that terminated employee who took enormous amount of paid sick leave due to her depression did not unreasonably refuse to accommodate her when it terminated her for refusing to complete independent medical evaluation after her paid administrative leave expired. Employer went extra mile and then some for her in that it agreed to accommodate her unpredictable need for time off if she would agree to work at particular location; fact that employee would have preferred to work elsewhere is of no consequence.

Dalton v. Subaru-Isuzu, (CA 7), 7 AD Cases 1872, 3/26/1998

Summary: Disabled employee will be "qualified'' to be reassigned to different job as accommodation if he can satisfy that position's legitimate prerequisites and be able to perform its essential functions with or without accommodation. However, to avoid infinite regression on accommodation issue, accommodation cannot include transfer to yet third job, but rather all such jobs must be considered at same time.

Employer that is trying to accommodate disabled employee by transferring him to alternative position must first identify full range of alternative positions for which the employee satisfies the employer's legitimate non-discriminatory prerequisites. The employer must determine whether the employee's knowledge, skills, and abilities would enable him to perform essential functions of any of those alternative jobs with or without reasonable accommodations, and consider transferring him to any of these jobs, including those that would represent demotion.

Davoll v. Webb, (DC Colo), 7 AD Cases 1479, 10/10/1996

Summary: ADA's reasonable accommodation requirement includes reassignment and imposes duty on employers to consider that avenue. Thus, city, which refused to assign former police officers, who had sustained work-related injuries rendering them unable to effect forceful arrest or fire weapon, to non-patrol positions in which they would not be expected to make forceful arrest as part of their duties, has not shown entitlement to judgment as matter of law on basis that each of them is not "qualified individual with a disability.''

DePaoli v. Abbott Laboratories, (CA 7), 7 AD Cases, 3/26/1998

Summary: Employer was not obligated to transfer assembly-line worker who has tendinitis and tenosynovitis to new job, where she never proposed any alternative job for which she satisfied employer's prerequisites and whose essential functions she could perform.

Duda v. Bd. Of Education, (CA 7), 8 AD Cases 99, 1/16/1998

Summary: Allegation by school custodian, who had been diagnosed as manic depressive with bipolar disorder, that he had been forced to transfer to location where he is required to work alone under orders not to communicate with any other individual states viable claim under ADA for being segregated. EEOC guidelines state clearly that reassignment cannot be used to segregate or otherwise discriminate against employees with disabilities.

EEOC v. Hertz Corp., (DC EMich), 7 AD Cases 1097, 1/6/1998

Summary: Employer that hired two disabled persons under arrangement with company that supplied job coaches did not have continuing duty to employ those persons after it ordered job coaches off premises for misconduct, despite contention that it had continuing duty to find other job coaches to train and supervise them; it had no duty to provide job coaches, on either temporary or permanent basis.

Gantt v. Wilson Sporting Goods, (CA 6), 8 AD Cases 308, 5/12/1998

Summary: Employer had no duty to accommodate claimant who, during leave of absence, never made request to return to work and never requested any kind of accommodation, since employer was not required to speculate as to extent of her disability or her need or desire for accommodation, and while it failed to warn her before terminating her for violation of leave policy, she never contacted employer after she received notice of termination to request reconsideration in light of her misunderstanding of leave policy, and even after she received doctor's release she did not contact employer to discuss accommodation for her disability.

Gaul v. Lucent Technologies Inc., (CA 3), 7 AD Cases 1223, 1/22/1998

Summary: Request by employee, who is suffering from depression and anxiety-related disorder, to be transferred away from individuals causing him prolonged and inordinate stress would impose impractical obligation on employer. Employer could never achieve more than temporary compliance because compliance would depend entirely on employee's stress level at any given moment and because this in turn would depend on an infinite number of variables, few of which the employer could control. Term "prolonged and inordinate stress'' not only is subject to constant change but is also subject to tremendous abuse. Only certainty for employer would be its obligation to transfer employee to another department whenever he becomes "stressed out'' by co-worker or supervisor, and it is difficult to imagine a more amorphous standard to impose on an employer.

Hankins v. The Gap Inc., (CA 6), 5 AD Cases 924, 5/29/1996

Summary: Employer has no duty to reiterate self-evident accommodations to employee suffering from migraine headaches, given her awareness and apparentness of available accommodations. Employee admits that she knew about availability of paid and unpaid medical leave, voluntary time off, personal days, and vacation days. Employee also knew of company medical center because she went there 29 times during her employment, and she does not claim that any leave application was denied to her.

Employee refused to accept available reasonable accommodations, and is therefore precluded from arguing that other accommodations should also have been provided. The employee is not considered a ''qualified individual with a disability'' under ADA because she rejected reasonable accommodations that are necessary for her to perform the essential functions of her job.

Haschmann v. Time Warner Entertainment Co., (CA 7), 8 AD Cases 692, 7/29/1998

Summary: Requested medical leave of two-four weeks by employer's former vice president for finance who suffers from lupus was reasonable, despite employer's contention that it could not tolerate continued absence of important executive. There was evidence that the job had been vacant for many months before the employee was hired, that the employer took almost six months to fill her position after her discharge, and that subordinates handled job in interim. Thus, the requested short-term leave of absence would not be an undue hardship.

Hypes v. First Commerce Corp., (CA 5), 7 AD Cases 1546, 2/12/1998

Summary: Employee with attendance problems proposed a flex-time accommodation that would allow him to come to work up to one hour late. This accommodation would not have enabled him to perform the essential functions of his job, where that accommodation would rarely have been enough actually to ameliorate his tardiness and absenteeism.

Johnson v. State of Maryland, (DC Md), 7 AD Cases 1084, 10/10/1996

Summary: Limited-duty accommodation suggested by former correctional officer, which precludes him from attaining certification in use of firearms, is not reasonable. All correctional officers must be proficient in use of firearms because in emergencies all officers must be able to assume positions that may require its use, and inability to use firearms to help control prison population poses direct threat to safety of other officers and public at large.

Kolpas v. G.D. Searle & Co., (DC NIll), 8 AD Cases 1285, 3/17/1997

Summary: Inability to work due to stress imposed by supervisor does not establish ADA-protected disability, since ADA does not protect people from general stresses of workplace.

Former employee did not show that employer failed to reasonably accommodate her by its failure to transfer her to another supervisor or to find her position that did not require working more than 40 hours per week. It is not a reasonable accommodation for an employer to have to transfer an employee to a position under another supervisor as that decision remains with the employer. The employer maintains that working longer than 40 hours per week was at times a necessary function of her job. Two openings available in other departments would have been considered promotions from her current position and required more than 40 hours per week but the employer was not obligated to promote her with an increase in salary as accommodation, and she never applied for either position.

Kralik v. Durbin, (CA 3), 12/12/1997, December 12, 1997

Summary: Requested accommodation of being relieved from contractually mandated overtime is not reasonable, despite contention that such accommodation imposes virtually no hardships on employer. Such accommodation would require employer to violate seniority provisions of its collective bargaining contract. It is appropriate for union, rather than employer, to make determination that infringement is justifiable by releasing employer from obligation to follow contractual seniority provision to accommodate qualified individual with disability. (Note: It is crucial to examine the specific language concerning ADA accommodations in the collective bargaining agreement at issue.)

Krennerich v. Town of Bristol, (DC Maine), 8 AD Cases 1195, 10/24/1996

Summary: Disabled town park manager's request that his duties be limited to supervision and administration and that someone else be hired on hourly basis to do physical aspects of his job is not reasonable, since essential functions of his job would need to be altered beyond recognition. The requested accommodation can only be accomplished by delegating the majority of his job duties, and because there is only one employee present to perform job function from September to May of each year, delegation simply is not possible, and town is not required to hire substitute for him.

Laurin v. Providence Hospital, (CA 1), 8 AD Cases 768, 7/28/1998

Summary: Hospital that has always required all non-senior staff nurses in its 24-hour maternity unit to rotate shifts and that has never made exception articulated legitimate non-discriminatory reason for denying days-only shift rotation to nurse who had fainting spells, where witnesses attested that evening and night shifts were less desirable than day shift and that it was essential that hospital cover shortage of ``straight-evening'' and ``straight-night'' nurses by making shift rotation essential function of all non-senior daytime nursing positions.

Section of collective bargaining contract specifying prescribed levels of seniority as criterion excusing day nurses in hospital's 24-hour maternity unit from shift-rotation requirement plainly implies that other criteria do not warrant waivers of this requirement and supports hospital's judgment that shift rotation is essential function of day-nurse position in maternity unit; if hospital were to waive shift-rotation requirement for ADA claimant, either other non-senior nurses or senior nurses would have to be called on to cover her evening and night shifts, or hospital would have to try to hire new nurses to cover less desirable shifts.

Malabarba v. Chicago Tribune Co., (CA 7), 8 AD Cases 1505, 7/22/1998

Summary: Former employee whose lifting restrictions disqualified him from packager position, requested, as an accommodation, that the duties of multi-task packager be split up and he be assigned to position of automatic lift operator. This accommodation is unreasonable where he concedes that he is unable to perform all essential tasks of packager working on support team, such as bending, lifting heavy objects, and standing for long periods of time. Each team member must be trained in every area so that anyone can work on any given assignment. If one team member is absent and the only person available to fill in is the former employee, who is physically incapable of doing so, timing of newspaper's all-important delivery system breaks down.

McCreary v. Libbey-Owens-Ford Co., (CA 7), 7 AD Cases 1115, 12/18/1997

Summary: The employer did not fail reasonably to accommodate employee with back injury who worked in soldering department when it failed to reassign him to quality control department, where there is no evidence of a vacant position there. Employee's testimony that he sometimes worked in quality control when there was no work in soldering department is insufficient, since occasional opportunities to work in another department are not equivalent to vacancy for permanent position.

Memmer v. Marin County Courts, (CA 9 1999) 9 AD Cases 106, 3/3/1999

Summary: County municipal court did not discriminate against visually impaired litigant when it offered her services of interpreter who was not specially trained in assisting visually disabled, where accommodating her required only helper with ability to observe, read, and communicate verbally with her, which are skills possessed by average person without need for special training.

Monette v. EDS Corp., (CA 6), 5 AD Cases 1326, 7/30/1996

Former employee has not shown that his proposal that employer keep him on unpaid medical leave indefinitely until another customer service representative or receptionist position opened up is reasonable accommodation. Employers are simply not required to keep employee on staff indefinitely in hope that some position may become available some time in future. Employer offered uncontradicted evidence that only one customer service representative worked in the employee's building and adequately explained its need to have such representative available. Moreover, it was entirely reasonable for the employer to fill his position permanently rather than temporarily inasmuch as it had no way of knowing when, or even if, he would return to work. He never expressed desire to return to work, and in fact he applied for permanent disability benefits before returning to work unannounced.

Moritz v. Frontier Airlines, (CA 8), 8 AD Cases 385 , 7/7/1998

Summary: Requested accommodation by airline station agent who has multiple sclerosis that she be allowed to work exclusively at ticket counter or to have assistant while performing gate duties cannot be considered reasonable. Airline is not required to revise its bidding system, to eliminate her gate duties, to hire additional employees, or to reassign existing workers to assist her in her gate duties.

Nesser v. Trans World Airlines, (CA 8), 8 AD Cases 1348, 11/10/1998

Summary: Whether airline's denial of request of airline customer service agent with Crohn's disease to work at home can be violation of ADA will not be considered, where he did not show that reasonable accommodation of transfer to reservations sales agent position, which would allow him to work at home, was possible, as he did not present any evidence that vacant position was available in reservation sales department.

Newman v. Chevron U.S.A., (DC STexas), 7 AD Cases 1821, 10/7/1997

Summary: Any possible accommodation that would allow truck driver, who suffers from loss of concentration and memory allegedly due to post-traumatic stress disorder, to continue driving gasoline truck, such as assigning someone else to ride in cab with him, is unreasonable and not required by ADA. It is not reasonable to require that two people do one person's job in name of accommodation; ADA does not require employer to eliminate or reallocate essential functions of job.

Nowak v. St. Rita High School, (CA 7), 8 AD Cases 106, 4/24/1998

Summary: ADA does not require employer to accommodate employee who suffers from prolonged illness by allowing him indefinite leave of absence.

Randolph v. Rodgers, (CA 8), 9 AD Cases 336, 3/19/1999

Summary: State corrections department's failure to provide sign language interpreter to profoundly hearing- impaired inmate at disciplinary hearing violated ADA. ADA requires that otherwise qualified individuals receive "meaningful access'' to programs and activities.

However, district court erred in granting summary judgment to inmate. Lower court's reasoning that state legislature's enactment of statute requiring prisons to provide interpreters means as a matter of law that such accommodation is not unduly burdensome is flawed. Corrections department presented substantial evidence that inmate's request for interpreter created safety and security issues, as well as placed financial burden on prison. State statute creates rights and duties under state law, but it cannot be used definitively to establish rights and duties under federal law.

Smith v. Ameritech, (CA 6), 7 AD Cases 917, 11/20/1997

Summary: Former traveling sales representative who suffered chronic pain from back injury sustained in automobile accident that left him able to perform only sedentary work has not shown that his request to be permitted to work at home was reasonable, since he has not presented evidence that he is one of those exceptional individuals who could have worked at home without substantial reduction in quality of performance.

Employer that provides accommodation not required by ADA to one employee is not consequentially obligated to provide same accommodation to other employees.

Smith v. Glickman, (CA 8), 7 AD Cases 1820, 3/27/1998

Summary: Employer reasonably accommodated soil scientist's sleep apnea and asthma by reducing his workday and requiring him to wear filtered breathing apparatus while doing field work.

Stanley v. Lester M. Prange Inc., (DC EPa 1998), 8 AD Cases 1157, 10/6/1998

Summary: Disabled trucking company log clerk's proposal that she spend up to four hours per day at employer's premises and perform remainder of her tasks at home is not reasonable and would cause undue hardship on employer. Her position required her presence at the workplace to perform virtually all of the essential functions of her job. Her interaction with other employees included training drivers in completing logs, meeting with drivers to review logs, and addressing problems that they encountered on road. The computer that she used to enter drivers' logs was located at employer's office, loss in productivity caused not only by her absence but also by additional time that drivers would spend traveling to her residence would be costly to employer, and there is no safe place for drivers to park trucks near her residence.

Templeton v. Neodata Services Inc., (CA 10), 8 AD Cases 1615, 12/10/1998

Summary: Employer lawfully terminated employee who refused to provide requested medical certification while she was on medical leave of absence. Her failure to provide medical information necessary to interactive process precludes her from claiming that employer unreasonably failed to accommodate her disability. Employer's request for medical information was reasonable in light of employee's doctor's letter indicating real doubt as to her ability to return to work; employer cannot be expected to propose reasonable accommodation absent critical information on her medical condition and limitations that it imposes.

Terrell v. USAIR, (CA 11), 8 AD Cases 529, 1/6/1998

Summary: Airline was not required to create part-time reservations agent position to accommodate employee's carpal tunnel syndrome after it had eliminated all part-time positions.

Airline did not fail to accommodate reservation agent's carpal tunnel syndrome by its delay in providing her with full-time use of drop keyboard until 13 months after she requested it, where she was on medical leave for 10 of those months, she had some access to drop keyboard during other three months, and she was not required to type when she had no access.

Waggoner v. Olin Corp., (CA 7 1999), 9 AD Cases 88, 2/26/1999

Summary: ADA in most instances does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability, since attendance at job site is basic requirement of most jobs.

Working part-time or working at home part are accommodations that can and should be made in some cases, but issue in evaluating any requested accommodation will be whether hardship imposed on employer is undue.

Walton v. Mental Health Assn., (CA 3 1999), 9 AD Cases 34, 2/23/1999

Summary: Obese employee's requested accommodation of continued leave of absence would have created undue burden on employer, even though unpaid leave supplementing regular sick leave and personal days might represent reasonable accommodation, since employer had already granted it to her, and blanket requirement that employer allow such leave is beyond scope of ADA when absent employee simply will not be performing essential functions of her position; she cannot use employer's past grants of unpaid leave to show that requested leave was reasonable, since that unpaid leave exceeded ADA's requirement of reasonable accommodation, and employer's decision to discontinue that accommodation does not give her cause of action.

Webster v. Methodist Occupational Health, (CA 7), 8 AD Cases 33, 4/23/1998

Summary: Employer did not violate its duty to consider transferring to another job industrial nurse who had suffered stroke and who consequently could not work without supervision. No accommodation that she proposed for nursing position offered a way for employer to employ her without supervision. Employee sought assignment to day shift, where it would be easier to have someone looking over her shoulder most of the time, refused to consider non-nursing positions, and refused to contemplate clinical nursing position until after discharge. Rather than participate in ``interactive process,'' employee chose position most to her liking and insisted that employer place her there and nowhere else despite her inability to fulfill its reasonable requirement that its industrial nurses be able to work without supervision.

Wilmarth v. City of Santa Rosa, (DC NCalif), 7 AD Cases 1131, 10/1/1996

Summary: City senior clerk typist's carpal tunnel syndrome was temporary disability under ADA, where she was cleared by her doctors to return to full clerical duties approximately two years after onset of her condition, and she might have been cured even sooner had she not repeatedly refused treatment locally.

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Regarded As/Record of
Andrews v. State of Ohio, (CA 6), 6 AD Cases 322, 1/13/1997

Summary: State troopers who exceeded weight limit under state's Highway Patrol Fitness Program and failed to meet its fitness criteria have not alleged that state perceived them to be impaired under ADA or Rehabilitation Act of 1973, since they do not allege that their weights or cardiovascular fitness is beyond normal range or that they suffer from physiological disorder, and their allegations establish only that they have certain physical characteristics--either being marginally above weight limit or marginally below fitness standard--that state has deemed inconsistent with job requirements of certain law enforcement positions.

Bute v. Schuller International, (DC NGa), 7 AD Cases 1607, 2/27/1998

Summary: Fact that employer regarded plaintiff as unable to perform duties of machine attendant because his back injury precluded him from lifting heavy objects does not compel conclusion that it regarded him as disabled, where its placement of limitations on his employment was based on lifting restrictions imposed on him by three different physicians.

Cody v. Cigna Healthcare, (CA 8), 7 AD Cases 1716, 3/16/1998

Summary: Employer's offer to give employee paid medical leave and its requirement that she see psychologist before returning to work do not show that it regarded her as disabled. Employer's request for an evaluation is not the equivalent to treating the employee as though she were substantially impaired. Requesting a mental evaluation is not inappropriate if it is not obvious that employee suffers from disability; employers need to be able to use reasonable means to ascertain the cause of employee's troubling behavior without exposing themselves to ADA claims.

Columbus Civil Service Commission v. McGlone, (Ohio SupCt), 8 AD Cases 737, 8/12/1998

Summary: Firefighter recruit who was rejected due to his nearsightedness was not perceived as "handicapped'' under Ohio law. Inability to perform a single job because of the employee's medical condition does not transform the condition into a handicap, and for recruit to prevail on perception theory city would have had to consider his nearsightedness as foreclosing him from a class of jobs.

Colwell v. Suffolk County Police, (CA 2), 8 AD Cases 1232,10/15/1998

Summary: Former county police officer who was hospitalized for 30 days following cerebral hemorrhage did not establish record of impairment, despite his reliance on open-ended light duty assignment--which he concedes is not evidence of continuing disability--to prolong indefinitely disabling experience of single episode of hospitalization. Employer that accedes to minor and potentially debatable accommodations does not thereby stipulate to employee's record of chronic and endless disability. Otherwise, costless accommodations to physical complaints would entail large future costs, would discourage employment of persons with minor limitations, and would promote litigation without assisting persons entitled to protection of ADA.

Francis v. City of Meriden, (CA 2), 7 AD Cases 955, 11/17/1997

Summary: Individual cannot state valid "regarded as'' claim simply by alleging that employer believes that some physical condition, such as height, weight, or hair color, renders him disabled.

Gutridge v. Clure, (CA 8), 8 AD Cases 705, 8/26/1998

Summary: Former employee's five separate surgeries, wraps, splints, medication, work restrictions, and inability to do manual tasks do not create record of impairment under ADA, where he has not shown that one or more of his major life activities were substantially limited. Simply being hospitalized does not establish record of impairment within meaning of ADA.

Maloney v. Barberton Citizens Hosp., (Ohio CtApp), 7 AD Cases 1603, 2/14/1996

Summary: Hospital's refusal to allow licensed practical nurse with back injury to return until she could work without restrictions does not establish that it regarded her as having impairment that substantially limited major life activity. At most, hospital regarded her as having minor injury that temporarily interfered with her ability to perform all functions of job, including lifting and turning patients.

McCollough v. Atlanta Beverage Co., (DC NGa 1996), 7 AD Cases 1845, 2/27/1996

Summary: Employer did not regard former route assistant with bad back as disabled when it terminated him as a result of his representations of his inability to continue doing work that was primary duty of his position. Employer's recognition of his limitations was not erroneous perception but instead was recognition of fact called to its attention by his own physician.

Murphy v. United Parcel Service, Inc., (Sup.Ct.) (97-1992), (BNA cite not yet available), 6/22/1999

Employee is not "regarded as" disabled because of his high blood pressure. A person is "regarded as" disabled within the ADA's meaning if, among other things, a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities. Here, employer does not regard employee as substantially limited in the major life activity of working, but, rather, regards him as unqualified to work as a UPS mechanic because he is unable to obtain DOT health certification. When referring to the major life activity of working, the Equal Employment Opportunity Commission (EEOC) defines "substantially limits" as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 CFR §1630(j)(3)(i). Thus, one must be regarded as precluded from more than a particular job. Assuming without deciding that the EEOC regulations are valid, the Court concluded that the evidence that the employee is regarded as unable to meet the DOT regulations is not sufficient to create a genuine issue of material fact as to whether he is regarded as unable to perform a class of jobs utilizing his skills. At most, the employee has shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle-a specific type of vehicle used on a highway in interstate commerce. He has put forward no evidence that he is regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require DOT certification. Indeed, it is undisputed that he is generally employable as a mechanic, and there was uncontroverted evidence that he could perform a number of mechanic jobs. 

Olson v. Dubuque Community School Dist., (CA 8) 7 AD Cases 1598, 3/2/1998

Summary: Criticism in performance evaluation of elementary school guidance counselor's work during her first year of employment does not furnish evidence that it regarded her as disabled. Evaluation simply identifies ways in which supervisors believed that her work was deficient.

Polesnak v. R.H. Management Systems, (DC WPa), 6 AD Cases 417, 1/3/1997

Summary: Restaurant violated ADA when it discharged manager who weighed 375 pounds at time of discharge, where he has shown that it perceived him as having a disability, that he was otherwise qualified to perform essential functions of job, and that he suffered discrimination because of disability.

Richards v. City of Topeka, (CA 10), 9 AD Cases 333, 3/24/1999

Summary: City did not regard pregnant firefighter as disabled when it reassigned her to light duty and did not allow her to return to full duty during her pregnancy, despite contention that reassignment showed that city regarded her pregnancy as impairment. Firefighter concedes that pregnancy was not a substantially limiting impairment.

Riemer v. Ill. Dept. of Transp., (CA 7), 8 AD Cases 440, 6/29/1998

Summary: Employee presented sufficient evidence at trial to support jury's determination that state department of transportation perceived his asthma as substantially limiting his ability to breathe. Department did not dispute that it reassigned him to a less favorable field job after its physician found that his job in the fabrication shop was exacerbating his condition and recommended that he be reassigned or that he consider new line of work altogether. Supervisor testified that he believed people with asthma experience difficulty breathing and that fabrication shop fumes aggravate this difficulty.

Roberts v. Unidynamics Corp., (CA 8), 7 AD Cases 1867, 10/6/1997

Summary: Discharged employee has not shown that rumors that he had Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS) reached decisionmakers who terminated him. Employee admitted at trial that no comments to that effect were made by or to employer's officials, and statement by supervisor that he was a liability to the company and should find new job does not necessarily show link to HIV or AIDS, particularly as supervisor knew that his real ailment was Graves' disease.

Skorup v. Modern Door Corporation, (CA 7) 8 AD Cases 808, 8/26/1998

Summary: ADA claimant cannot establish that employer regarded her as disabled merely by showing that it was aware of her impairment; instead, she must show that it knew of impairment and believed that she was substantially limited because of it.

Sorensen v. Univ. of Utah Hosp., (DC Utah), 7 AD Cases 1883, 3/31/1998

Summary: Former flight nurse who was diagnosed with multiple sclerosis resigned from her position when her employer, a hospital, failed to return her to that job. Even though the employee was able to obtain a job as a flight nurse for another employee, the hospital had not regarded her as disabled, but regarded her as very capable of performing any nursing job other than flight nurse and gave her opportunity to perform numerous other nursing jobs. The fact that its standards may differ from those of other employer does not support claim of discrimination.

Sutton v. United Air Lines, Inc., (Sup.Ct.) (97-1943), (BNA cite not yet available), 6/22/1999

Summary: Petitioners failed to allege properly that they are "regarded as," having an impairment that "substantially limits" a major life activity. Generally, these claims arise when an employer mistakenly believes that an individual has a substantially limiting impairment. To support their claims, petitioners allege that respondent has an impermissible vision requirement that is based on myth and stereotype and that respondent mistakenly believes that, due to their poor vision, petitioners are unable to work as "global airline pilots" and are thus substantially limited in the major life activity of working. Creating physical criteria for a job, without more, does not violate the ADA. The ADA allows employers to prefer some physical attributes over others, so long as those attributes do not rise to the level of substantially limiting impairments. An employer is free to decide that physical characteristics or medical conditions that are not impairments are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job. An employer's physical criteria are permissible so long as they do not cause the employer to make an employment decision based on an impairment, real or imagined, that it regards as substantially limiting a major life activity. Petitioners have not alleged, and cannot demonstrate, that respondent's vision requirement reflects a belief that their vision substantially limits them. 

Vardiman v. Ford Motor Co., (DC EMo), 7 AD Cases 1068, 11/13/1997

Summary: Employee assistance program (EAP) representative is not an "agent'' of the employer, and the representative's knowledge of the employee's alcoholism is thus not imputable to the employer, since an EAP representative cannot be the employer's "agent'' within meaning of ADA. EAP representative has no power to affect employment decisions and, in fact, is obligated to shield decisionmakers from the employee's personal or substance abuse problems. The representative committed no act even remotely cognizable under the ADA, and there is no evidence that she breached her duty of confidentiality.

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Substance Abuse
Avery v. Omaha Public Power District, (DC Neb), 7 AD Cases 1654, 2/4/1998

Summary: Alcoholic employee's admitted violation of return-to-work agreement that forbade him to consume alcohol warranted employer's revocation of his nuclear power operator's license in view of safety-sensitive nature of his job and his clear breach of promise. Employee's argument that he signed agreement under duress, as he otherwise would not have been permitted to continue his employment, is without merit since such agreements by definition are tied to continued employment.

Buckley v. Consolidated Edison Company of New York, (CA 2), 8 AD Cases 847, 9/11/98

Summary: Requiring recovering substance abusers to submit to drug testing more frequently than other employees does not violate ADA, which specifies that drug test should not be considered medical examination under Section 104(d)(1) of the Act and allows employers to exempt non-abusers from drug testing entirely.

Employer that administers random drug tests to recovering substance abusers was not required to accommodate employee's neurogenic bladder condition, which makes it difficult for him to urinate on command, by extending time allowed for him to urinate, and it did not violate ADA in discharging him for failure to complete drug test, since neither text nor legislative history of ADA suggests that employer must accommodate impairment that is not "disability'' under ADA, and there is no evidence that employee's inability to produce urine sample was related to his status as recovering substance abuser.

Dauen v. Bd. Of Fire and Police Comrs., (Ill AppCt), 7 AD Cases 1392, 9/22/1995

Summary: City board of police and fire commissioners was entitled to find that firefighter's possession of cocaine, not his addiction, was basis for his termination following police search of his home. There was no evidence that the fire chief, who learned about the search and sought the employee's dismissal for possession of cocaine in violation of state law and departmental rules, knew that he was addicted to drugs or that he was seeking treatment.

Herman v. City of Allentown, (DC EPa), 7 AD Cases 1326, 11/21/1997

Summary: City that failed to rehire firefighter who had been discharged after being arrested for altering a prescription for a pain killer discriminated against him on the basis of the erroneous belief that he was engaging in illegal use of drugs. City contended that it acted on the basis of his drug use, which would disqualify him from being "qualified individual with a disability,'' but the conduct being challenged is not his discharge but the city's failure to rehire him. Employee was no longer engaging in illegal use of drugs when city refused to rehire him. Employee testified that he stopped using drugs on the day that he was arrested, and drug program director and drug addiction specialist both stated that when they examined him he was no longer illegally using drugs.

Maddox v. Univ. of Tennessee, (CA 6), 4 AD Cases 1253, 8/21/1995

Summary: Court of Appeals held that lower court correctly distinguished between discharge for misconduct and discharge because of disability of alcoholism in upholding the discharge of an assistant university football coach for having been arrested for drunk driving. Employee contended that in essence he was discharged because of his disability because it was alcoholism that caused the incident that led to discharge. However, such a position would force employers to accommodate all behavior of alcoholics that could in any way be related to the alcoholic's use of intoxicating beverages, including behavior that would be intolerable if engaged in by sober employee or by intoxicated but non-alcoholic employee.

Employers must be permitted to take appropriate action where there is egregious or criminal conduct regardless of whether the employee is disabled. It strains logic to conclude that an individual who becomes intoxicated and sexually assaults a co-worker could be protected under the ADA merely because he has been diagnosed as an alcoholic and claims that his conduct was caused by his disability.

Mararri v. WCI Steel Inc., (CA 6), 7 AD Cases 978, 12/21/1997

Summary: Section 104(a) of the ADA, which excludes current users of illegal drugs from protection of the ADA, does not apply to alcoholics, since its plain language does not exclude alcoholics from ADA coverage. Alcohol is not a "drug'' within the meaning of the ADA, and the ADA treats drug addiction and alcoholism differently.

Randall v. Port of Portland, (DC Ore), 8 AD Cases 1404, 10/22/1998

Summary: Employer did not violate ADA when it discharged alcoholic employee for losing his driver's license following his conviction for driving while intoxicated, where he has failed to produce any evidence that his discharge was precipitated by his alcoholism, as opposed to legal consequences of his decision to drive while intoxicated, and he admitted that employer terminated him because "he could not drive.''

Salley v. Circuit City Stores, (CA 3), 8 AD Cases 1407, 11/19/1998

Summary: Former store manager who had revealed his history of drug addiction to supervisor a few years before his relapse into addiction was lawfully discharged for violations of management policies involving drug use. Employer took no action on his drug-use revelations, its loss prevention department acted to investigate him only when it discovered evidence that his drug use was no longer just past problem, other employees were aware of his drug use, he discussed drugs at workplace, he reported to work under influence of drugs, he was late because of drug use and sometimes left work to use drugs, he failed to report subordinate drug use and instead engaged in drug use with subordinate. Store legitimately feared that such acts would be harmful to its business.

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Workers' Compensation/Social Security
Blanton v. Inco Alloys Intl., (CA 6), 7 AD Cases 1475, 8/22/1997

Summary: Receipt of disability benefits does not preclude subsequent ADA relief, but parties' prior sworn statements can be considered as a material factor.

Cleveland v. Policy Management Systems, (CA 5), 7 AD Cases 1031, 8/14/1997

Summary: Former employee continuously and unequivocally represented to the Social Security Administration that she was totally disabled and completely unable to work. Application for or receipt of Social Security disability benefits creates a rebuttable presumption that the claimant or recipient of such benefits is judicially estopped from asserting that he is "qualified individual with a disability'' under ADA. Therefore, because former employee did not rebut the presumption that she is estopped from asserting that she is "qualified individual with a disability,'' she cannot complain that she could perform the essential functions of her job during the time between her return to work and her termination.

Cleveland v. Policy Management Systems Corp., (US Sup Ct) (BNA cite not yet available), 5/24/1999

Summary: Despite the appearance of conflict between the SSDI program (which provides benefits to a person with a disability so severe that she is unable to do her previous work or any other kind of substantial gainful work) and the ADA (which prohibits covered employers from discriminating against a disabled person who can perform the essential functions of her job, including those who can do so only with reasonable accommodation), the two claims do not inherently conflict to the point where courts should apply a special negative presumption such as the one applied below. There are many situations in which an SSDI claim and an ADA claim can comfortably exist side by side. For example, since the Social Security Administration (SSA) does not take into account the possibility of "reasonable accommodation" in determining SSDI eligibility, an ADA plaintiff's claim that she can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that she could not perform her own job (or other jobs) without it. An individual might qualify for SSDI under SSA's administrative rules and yet, due to special individual circumstances, be capable of performing the essential functions of her job. Or her condition might have changed over time, so that a statement about her disability made at the time of her application for SSDI benefits does not reflect her capacities at the time of the relevant employment decision. Thus, this Court would not apply a special legal presumption permitting someone who has applied for, or received, SSDI benefits to bring an ADA suit only in some limited and highly unusual set of circumstances.

Nonetheless, in some cases an earlier SSDI claim may turn out genuinely to conflict with an ADA claim. An ADA plaintiff's sworn assertion in an application for disability benefits that she is unable to work appears to negate the essential element of her ADA claim that she can perform the essential functions of her job, and a court should require an explanation of this apparent inconsistency. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless perform the essential functions of her job, with or without reasonable accommodation.

Here, the parties should have the opportunity in the trial court to present, or to contest, Cleveland's explanations for the discrepancy between her SSDI statements and her ADA claim, which include that the SSDI statements that she was totally disabled were made in a forum that does not consider the effect that reasonable workplace accommodation would have on her ability to work and that those statements were reliable at the time they were made.

Fredenburg v. Contra Costa DHS, (CA 9), 9 AD Cases 385, 4/19/1999

Summary: Mental health treatment specialist who suffered from paranoia may assert that she is able to perform essential functions of job, despite her sworn statement to state employment agency that she was disabled, since it is possible to be disabled under ADA and eligible for state benefits at same time. Prior inconsistent statement can still be used to impeach credibility at trial. Because she had been placed on unpaid leave against her will it would be unfair to prohibit her from opportunity to support herself by collecting state benefits pending disability determination.

Griffith v. Wal-Mart Stores, (CA 6), 7 AD Cases 1233, 1/29/1998

Summary: Former employee's admissions regarding his disability that he made in his Social Security disability benefits application do not bar his ADA action, where he may not have fair opportunity to explain details of his medical condition and his ability or inability to work for ADA purposes. Statements made in application and forms are open to interpretation and context in which statements were made must be considered in determining precisely what he "admitted.'' Portions of application and other forms require merely that boxes be checked off without comment or that blanks be filled in with little room given for elaboration.

Johnson v. State of Oregon, (CA 9), 8 AD Cases 283, 4/20/1998

Summary: Neither application for nor receipt of disability benefits automatically bars claimant from establishing that she is a qualified person with disability under the ADA. An individual may be disabled and therefore entitled to disability benefits so long as she is not working--and still be qualified individual under ADA because she can work with reasonable accommodations, if her employer will provide them.

Moore v. Payless Shoe, Inc., (CA 8), 7 AD Cases 1697, 3/30/1998

Summary: ADA claimant may not cast aside factual import of prior sworn representations to Social Security Administration (SSA), even though judicial estoppel may not be invoked to bar ADA claims; claimant is estopped to deny truth of ongoing sworn statements made in SSA disability proceeding but may attempt to prove that he is nonetheless "qualified individual with a disability'' for ADA purposes.

Pena v. Houston Lighting & Power Company, (CA 5) 8 AD Cases 961, 9/21/1998

Summary: Employee who represented in his applications for long-term disability (LTD) benefits and mortgage disability benefits that he is "totally disabled'' has not overcome rebuttable presumption that he is not qualified individual with disability under ADA. LTD plan's definition of "totally disabled'' tracks ADA's "qualified individual with a disability'' language in that it states that claimant is totally disabled if "the Participant is wholly and continually disabled by sickness or accidental bodily injury which prevents him/her from performing, with or without reasonable accommodation, the essential functions of his/her normal occupation.'' This definition was included both in application that he filled out and in award letter that he received, and because he specifically represented that he could not perform his job with or without reasonable accommodation, he thus cannot show that he is "qualified individual'' under ADA.

Rascon v. U. S. West Communications, (CA 10), 8 AD Cases 541, 5/6/1998

Summary: Statement that former employee made in connection with his application for Social Security disability benefits that he did not plan ever to return to work does not preclude finding that he was a qualified individual with disability under ADA. There is no evidence that former employee indicated that he could not perform the essential functions of his job with reasonable accommodation. There is evidence that he wanted and expected to return to his job after completing a treatment program, and his doctor testified that he would have been able to return to his job had the employer not terminated him.

Talavera v. School Bd. Of Palm Beach Cty., (CA 11), 7 AD Cases 1025, 11/24/1997

Summary: Certification of total disability on Social Security disability benefits application is not inherently inconsistent with being "qualified individual with a disability'' under ADA. The certification means that the applicant cannot perform the essential functions of the job without reasonable accommodation but does not necessarily mean that he cannot perform essential functions with reasonable accommodation.

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