ADA

Eric Feit applied for a job with BNSF Railway Company.  The Company gave him a conditional offer of employment as a conductor trainee provided he completed a physical examination, drug screening, background check and BNSF’s Medical History Questionnaire.

On February 6, 2008, BNSF advised Feit that he was not qualified for this “safety sensitive” position because of risks associated with his extreme obesity.  The company said he would either have to lose 10% of his body weight or successfully complete additional physical examinations at his own expense.

Feit chose to complete the additional physical examinations but would not complete the sleep study test because it would have cost him $1,800.  When the company insisted on completing the sleep study test, Feit decided to try to lose 10% of his weight.  Eventually, Feit sued for discrimination based on disability, namely his condition of obesity.

The Court reviewed prior cases under the ADA that stand for the proposition that physical characteristics that are not the result of a physiological disorder may not be considered impairments either as actual or perceived disabilities.  BNSF urged that the Court follow this line of cases.  The Court refused to do so because “. . . the cases on which BNSF relies all were decided before passage of the ADAAA.  In that Act, Congress instructed the courts they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis.”

Feit argued that the ADA Amendments Act invalidated many of the prior cases dealing with the issue of obesity as a disability.  Further, he argued that the EEOC consistently has held that severe or morbid obesity is an impairment.  The EEOC has defined “severe obesity” as being more than 100% over weight norms.

In this case, the Court was construing the Montana Human Rights Act (MHRA), bit it did so in the context of the ADA.  It concluded, “Taken together, the ADA, ADAAA, and the EEOC’s interpretation are clear and provide persuasive guidance in interpreting the MHRA. . . Obesity that is not the symptom of a physiological disorder or condition may constitute a ‘physical or mental impairment’ within the meaning of Montana Code Annotated . . . if the individual’s weight is outside ‘normal range’ and affects ‘one or more body systems’ as defined in 29 C.F.R. 1630.2(h)(1)(2011).”

The take-away from this case for readers is that the ADA Amendments Act is having and will continue to have a profound effect on the expansion of disability coverage under the ADA.  The case may be found at BNSF Railway Company v. Eric Feit, 2012 MT 147 (S. Ct. Montana 2012).

Fern Strickland was hired by Eckerd Corporation in 1992. She worked as a cashier for the Jones Bridge Rite Aid.  In June, 2001, she was diagnosed with osteoarthritis in both knees.  Her condition made it difficult for her to walk without a cane or stand for long periods of time.

In 2001, Strickland requested permission to sit in a chair at work to relieve pain in her knees.  She had knee replacement surgery in her right knee in 2006, but her pain persisted. Her store manager exempted her from physically demanding tasks for many years and allowed her to sit frequently during the work day.

In June, 2007, Rite Aid acquired the store, and in March, 2008, Larry Frisbie became the district manager of the Jones Bridge Rite Aid.  Several months later, Frisbie and the HR Manager visited the store and observed Strickland sitting in a plastic lawn chair behind the counter.  Frisbie and the HR Manager confronted Strickland about the use of the lawn chair, and Strickland provided a copy of a 2007 doctor’s note advising that she needed to use the chair at work.

The company requested a more current note, which Strickland provided. This note, from December 2008, stated that Strickland required “a chair at checkout and limited to 15 minutes or less at a time due to osteoarthritis.”

The company’s loss prevention manager reviewed security surveillance tapes that showed that Strickland was sitting down half of her shift.  According to Frisbie, the job required cashiers to productively work on the sales floor in stocking, cleaning, and performing housekeeping duties when there was no customer at the register.

The company met with Strickland on January 15, 2009 to initiate an interactive dialogue regarding her restrictions and possible accommodations. Strickland provided another doctor’s note stating that she needed to sit 30 minutes every hour.  The company determined that it could not provide that specific accommodation and terminated Strickland’s employment. Strickland filed a charge with the EEOC alleging discrimination under the ADA.

The Court reviewed the essential job functions of a cashier and determined that the job required customer service and housekeeping duties that are physically demanding, including stocking shelves, building merchandise displays, and keeping the store clean.  Cashiers were expected when not working at the register to productively work on the sales floor. The Court commented that Strickland’s restrictions from osteoarthritis made it difficult for her to walk unassisted or stand for any lengthy period of time.   The Court concluded that Strickland could not perform the essential functions of the job and was therefore not a qualified individual under the ADA.  It said, “In fact, the sitting accommodation would simply eliminate rather than enable Strickland to perform, many of the essential functions of the cashier’s job . . . It is therefore per se unreasonable.”

The EEOC argued that the accommodation must be required because the company allowed Strickland to sit for the last eight years.  The Court disagreed, “[a]n employer’s willingness to provide a certain accommodation does not establish that the accommodation is reasonable or required.” Strickland and the EEOC argued that the functions she could not perform were obviously not essential because she had not done them for eight years.  Once again the Court disagreed:  “As with any other type of voluntary accommodation, an employer does not concede that a job function is unessential by temporarily removing the function from a disabled employee’s duties.”

This case resonates with many employers who have for years exempted employees from performing essential functions only to determine at some point that an exemption can no longer be allowed.  The question is whether the past practice of removing certain duties prohibits an employer from changing its position in the future.  The Court analogized to the situation where employers permitted frequent tardiness.  “[a]n employers past tolerance of tardiness does not negate evidence that punctuality is an essential function.”  To be covered under the ADA, an employee must be a qualified individual, one who can perform the essential functions of the job with or without reasonable accommodation.  Removal of an essential function is not a reasonable accommodation.

The case can be found at EEOC v. Eckerd Corporation d/b/a/ Rite Aid, 2012 U.S. Dist. LEXIS 91370, (N.D. Georgia 2012).

Workers’ compensation cases sometimes lead to ADA litigation when an injured worker contends that he or she can return to work with serious restrictions, but the employer maintains it has no job available within these restrictions. That was the dynamic in Otto v. City of Victoria, 685 F.3d 755 (8^th Cir. 2012). (more…)

EEOC could not explain how employee could claim ability to work with accommodation while getting SSDI payments.

Michael Turner worked for Greater Baltimore Medical Center (GBMC) as a unit secretary since 1984. In 2005, Turner was hospitalized for necrotizing fasciitis, which is a life-threatening condition. He later suffered a stroke during the same year. Turner also suffered from diabetes. (more…)

The question is an important one and comes down to this: is the reassignment process competitive?

Courts are split on the issue with the most recent decision coming in EEOC v. United Airlines, Inc., 673 F.3d 543, 2012 U.S. App. LEXIS 4713 (7^th Cir. 2012). The case involved United Airlines’ company policy, which does not automatically place a disabled employee into a vacant position. The company instead would allow an unlimited number of transfer applications, a guarantee of an interview and priority consideration over applicants who are similarly qualified. But it would not reassign a disabled employee to a position if there were more qualified applicants for that position. The EEOC challenged the policy. (more…)

More and more ADA cases stem from garden variety workers’ compensation claims, and disability discrimination claims now make up one quarter of all EEOC charges.

The case of Gibbs v. ADS Alliance Data Systems, Inc., 2011 U.S. Dist LEXIS 82540 (D. Kansas) drives home the point that many claimants with work-related injuries will now find coverage under the ADA following the passage of the ADA Amendments Act. (more…)

In Williams v. Goodyear Tire and Rubber Company, a Kansas federal court dealt with the ability of an employer to terminate an applicant for misrepresenting facts in the job application process. Williams filled out a job application and listed three jobs in response to the question “Account for all your time – regardless of how spent.” Williams did not list another ten jobs that he had since 1996 and he did not list the two employers during whose employment he had work-related injuries. (more…)

The plaintiff had suffered two workers’ compensation accidents and returned to work with restrictions which she argued her employer held against her in terminating her employment.

One of the ways that a plaintiff may find coverage under the ADA is to be regarded as having a disability, even if the employee in fact has no disability. In Fieni v. Franciscan Care Center, 2011 U.S. Dist LEXIS 113910 (E.D. Pa 2011), the plaintiff worked with Franciscan Care Center, a long-term care facility, initially as a scheduler and later as a supply coordinator. (more…)

Psychological examinations are of great importance in the public safety arena. In Terry v. Town of Morristown, 2011 U.S. App. LEXIS 20053 (3d. Cir. 2011), Jeffrey Terry applied to be a police officer in the Town of Morristown. He underwent a psychological fitness evaluation with Dr. Matthew Guller. Working under the supervision of his supervisor, Leslie J. Williams, Ph.D., Dr. Guller conducted an interview of Terry in which Terry revealed that he had worked as a bouncer and had been involved in several incidents. (more…)

Sometimes the cases with the most simple fact patterns make the best ones to understand bright lines in the law.  The case of EEOC v. Thrivent Financial for Lutherans, 2011 U.S.Dist. LEXIS 64042 (D. Wisc. 2011) provides some clear guidance on what employers can and cannot say about the health of employees. In this case, it was a comment about a former employee that was the principal issue.

Gary Messier worked for and was placed by Omni Resources, Inc., a technology consulting agency, with Thrivent Financial in Appleton, Wisconsin. Thomas Brey was Messier’s account manager at Omni, and John Schreiner was the manager of the Thrivent department where Messier was assigned to work.        

On November 1, 2006, Messier did not appear at work nor alert anyone that he would not be coming in.  Schreiner called Brey at Omni to inquire about Messier’s absence.  Eventually Messier was reached by email and sent a long responsive email to Brey and Schreiner.  In that email Messier revealed that he had suffered from debilitating migraine headaches for many years.  The headaches were so incapacitating that he could not even respond to anyone or call anyone due to the intensity of pain.  He said that if all went well, he would be in work the next day.   

One month later Messier quit his job with Omni and Thrivent and commenced looking for other employment.  He quickly deduced that Schreiner was providing a negative reference to his prospective employers.  Messier hired Reference Matters, Inc., a reference checking agency.  On January 10, 2011, Reference Matters called Schreiner and Schreiner indeed disclosed information about Messier’s migraine condition to the representative.

In his lawsuit Messier argued that Thrivent violated Section 102(d)(4) of the Americans with Disabilities Act.  That provision deals with confidentiality of medical information.  The District Court disagreed with the EEOC and said, “Under its plain meaning, Section 102(d)(4) protects only that information which an employer acquires through a medical inquiry or a medical examination.  The statute focuses on the employer’s active role in the disclosure and thus does not protect any disclosure of medical information to an employer no matter how it arises.”

The court reviewed the leading cases on breach of confidentiality under theADA.   They said that Mr. Brey and Mr. Schreiner did not specifically request or require that Messier disclose information about a medical condition, which is the key difference between some of the other federal court decisions where violations of confidentiality were found.  All they did was inquire why he had an unexcused absence from work.  They also did not ask Messier questions that were likely to elicit specific information about a medical condition.  As such, Messier’s disclosure about his migraine condition was entirely voluntary.  The court found that discussing a voluntary disclosure to a third party is not a violation of theADA’s provisions on confidentiality according to the court.

This case is extremely helpful to employers in understanding which discussions about health conditions of employees could violate confidentiality and which do not.  If an employer gains medical information by asking questions about health or asking someone to fill out an FMLA form, that information must be treated confidentially.  However, if an employee voluntarily discloses medical information as happened in this case, the subsequent disclosure of that information does not violate theADA.