An employee with obsessive-compulsive disorder claimed that her supervisors had discriminated and harassed her because of her disability by giving her a baseless reprimand, yelling at her, refusing to meet with her to discuss her condition, and creating a work environment which exacerbated her condition. She sued them as individual defendants. Since the Ninth Circuit had never addressed whether individual employees may be personally liable under the Americans with Disabilities Act, the Court looked at its previous rulings that individuals may not be sued for damages under Title VII of the 1964 Civil Rights Act. Walsh v. Nevada Dept. of Human Resources.

A General Motors customer activities manager with multiple sclerosis was forced to take disability leave after reports that he had skipped required meetings, failed to return calls to customers, had his assistant performing some of his job duties, and was seen driving too slowly on the highways. The Court said that although placing the employee on disability leave was an adverse employment action, he was not meeting the company’s legitimate expectations and that “GM did not have to wait [for him] to get a ticket or have an accident before it could evaluate his fitness to drive one of its vehicles.”
Timmons v. General Motors Corporation.

An employee who was terminated by a financially struggling company because of the “staggering” medical expenses incurred by her terminally ill spouse should be allowed to present her case to a jury, rules the Seventh Circuit. Under the “association discrimination” section of the Americans with Disabilities Act, an employer is prohibited from discriminating against an employee as a result of the employee’s relationship with a disabled individual.

The Court finds that the company, which had a self-insured health plan, was very concerned about cutting its costs, and “personally felt the heavy bite” of the spouse’s expensive treatments. The Court says that because the claimant had established that direct evidence of “association discrimination” may have motivated the company to terminate her, a jury should be allowed to consider her claim. In a concurring opinion, Judge Posner clarified that “if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination.” Since the company did not raise the cost argument, reversal was proper, Judge Posner says. Dewitt v. Proctor Hospital

An employee who experienced temporary cold-like symptoms such as headache, shortness of breath, and sore throat after being exposed to colognes or perfumes does not have a disability under the Americans with Disabilities Act, a federal district court rules. In granting summary judgment for the employer, the court said that although the employee was temporarily restricted in her ability to perform activities such as breathing and seeing when her throat constricted and eyes watered after exposure to fragrances, such “intermittent flare-ups” do not establish that an impairment is a disability. The court also noted that the employee considered herself disabled only when exposed to perfume or fragrances, and had “never been hospitalized for this condition.” Robinson v. Morgan Stanley Dean Witter.

The Equal Employment Opportunity Commission has issued a fact sheet for employers on employing or re-employing disabled military veterans. Government statistics show that more than 30,000 veterans have returned home with service-connected disabilities—amputations, burns, post traumatic stress disorder and traumatic brain injuries.

The guidance covers how protections for veterans with service-connected disabilities differ under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act, and describes how the ADA in particular applies to recruiting, hiring and accommodating veterans with service-connected disabilities.

An employer who informally accommodated a paraplegic employee’s disability-related tardiness for 15 years, then terminated him pursuant to its new, no-fault punctuality policy may have violated the Americans with Disabilities Act, the Eleventh Circuit rules in sending the issue back to a lower court.

The Court questioned whether the strict punctuality policy, under which employees were charged with a tardy for clocking in even one second after the shift start time, was an “essential function” of the charging employee’s position. Up till the new policy was instituted, the employee’s supervisors had accommodated his occasional tardiness, and testified that his job was not as time sensitive as other areas in the company. Although the company had argued that the employee’s tardiness can slow product assembly, the Court noted that there was no evidence showing that the company actually incurred increased overhead: “Indeed, it is particularly difficult to imagine an actual increase in overhead costs due to [his] tardiness since the vast majority of time he was late by only one minute, and the accommodation he was permitted for some fifteen years, and which he seeks again now, involves his making up any lost time the same business day.” Holly v. Clairson Industries, LLC.

The Sixth Circuit revives a disability discrimination claim by a former cashier who abandoned her job after being denied the use of a stool to allow her to perform her duties without suffering severe pain.

The employee had a number of ailments that limited her ability to stand at her register, and proposed the use of a stool--an accommodation that her supervisors had let her use on prior occasions--but she was told by management that this was no longer acceptable, allegedly because other employees had complained about unfair treatment. During her last shift, she complained of severe pain and inquired whether she could have a stool delivered to the store. One of her managers refused and allegedly told she could finish her shift without a stool or she could get a doctor’s note that indicated that she needed a stool to perform her job. She chose to get a note from her doctor that same day which provided the stool as an accommodation. When she returned to work with the note and gave it to her manager, he allegedly refused to open the note. Although he indicated that he would schedule a meeting with the employee and the district manager to resolve the issue, she left the store without finishing her shift and did not return. The meeting with management never took place, despite the employee calling her manager, and she was subsequently terminated for job abandonment.

The Court says that the use of a stool may have been a reasonable accommodation; that the employee was able to adequately perform her job at the register with the use of a stool and that she did not require unlimited break; and that she was not offered an accommodation that would have allowed her to work her shift without pain. The Court concludes that a jury should decide whether she proposed a reasonable accommodation that would have allowed her to be “otherwise qualified” for the cashier position despite her disability. “Further, if a jury were to find that [the employee’s] requests, both written and oral, for a stool constituted a request for a reasonable accommodation, there is a remaining dispute of whether that accommodation would cause an undue hardship for the employer. The defendants have not set forth specific facts indisputably demonstrating that the use of a stool would have presented an undue hardship for the company,” the Court holds. Talley v. Family Dollar Stores

To answer questions from both employers and employees about what steps are appropriate when a disability causes – or seems to be causing – a work performance or conduct problem, the Equal Employment Opportunity Commission has issued a 34-page Q&A on applying work standards to employees with disabilities under the Americans with Disabilities Act.

The Q&A also covers when an employer can properly raise the issue of an employee’s disability as part of a discussion about performance or conduct problems, how and what to ask for in medical documentation, attendance issues, the application of dress codes, and when an employee is disabled by alcoholism or illegal use of drugs. The question and answer format contains useful examples of situations illustrating the EEOC guidelines.

A federal district court in Texas rejects the claim of an ex-employee that her termination for being a registered sex offender constituted a disability under the Americans with Disabilities Act.

According to the court, the ex-employee alleged that she was fired in violation of the ADA because her “status as being listed on a sex offender registry represents an impairment in the significant life activity of work.” The court says: “Being a registered sex offender is not ‘a mental or physical impairment.’ [citation omitted] And although [the company] has a policy against hiring registered sex offenders, there are many jobs for many employers that [the claimant] is fully capable of performing. To be disabled from working under the ADA requires an inability to work in a broad class of jobs or in different classes of jobs, not merely an inability to work for a particular employer.” Vlasek v. Wal-Mart Stores, Inc.

In its current term, the Court will consider the question of whether the Americans with Disabilities Act requires an employer to reassign a qualified disabled employee to a vacant, equivalent position as a reasonable accommodation, or that the employer merely permit the worker to apply and compete with other applicants for the position.  At issue is an Eighth Circuit decision in Huber v. Wal-Mart Stores, Inc. which held that "the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate."

The question and answer fact sheet issued by the Equal Employment Opportunity Commission covers how the Americans with Disabilities Act applies to applicants and employees in health care industries, including hospitals, nursing care facilities, doctor or dentist offices, and diagnostic laboratories. The fact sheet explains how the ADA applies to situations unique to health care, and are based on real-life examples which have been decided by the courts or settled by the EEOC. See Questions and Answers about Health Care Workers and the Americans with Disabilities Act.

Although driving is an extremely important daily activity, it does not qualify as a major life activity under the Americans with Disabilities Act, declares the Tenth Circuit, reversing the decision of a lower court.

A safety supervisor in Wyoming was terminated because she was unable to drive as part of her work due to epilepsy, and as a consequence sued for disability discrimination. The lower court had determined that driving was a major life activity, particularly for residents in Wyoming “where public transportation is virtually non-existent, distances between towns is measured by hours of driving, economic conditions often require residents to seek employment outside of their local community, and long winter conditions significantly limit foot or bicycle travel.”

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities” of an individual. Equal Employment Opportunity Commission regulations define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” The Tenth Circuit says that driving, while important, is “a means to an end,” and not itself a major life activity. Kellogg v. Energy Safety Services, Inc.

The Dept. of Justice has issued a notice of proposed rulemaking to adopt enforceable accessibility standards under the Americans with Disabilities Act consistent with the guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board. The proposed rulemaking would also allow for periodic reviews of “any rule judged to have a significant economic impact on a substantial number of small entities,” and a “regulatory assessment” of the costs and benefits to small businesses.

Title III of the ADA prohibits disability discrimination in places of public accommodation—businesses that are generally open to the public and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors’ offices—and requires newly constructed or altered places of public accommodation as well as commercial facilities (privately owned, nonresidential facilities like factories, warehouses, or office buildings)—to comply with the ADA Standards. The DOJ is inviting comments on the existing and proposed standards regarding cost and impact.

The U.S. Supreme Court has dismissed an Americans with Disabilities Act case it recently agreed to review because the parties have reached a confidential settlement. The Supreme Court was to consider whether the ADA requires an employer to reassign a qualified disabled employee to a vacant, equivalent position as a reasonable accommodation, or that the employer merely permit the worker to apply and compete with other applicants for the position. The Eighth Court decision in Huber v. Wal-Mart Stores Inc. holding that the ADA does not require such reassignment is left standing.

An employee who experiences asthmatic and other symptoms when exposed to colognes and other substances causing breathing difficulties may be covered by the Americans with Disabilities Act, according to an informal opinion letter recently released by the Equal Employment Opportunity Commission. “However, breathing difficulties that occur only upon exposure to a certain type of cologne would be insufficient to constitute a substantial limitation in breathing,” the letter says.

The opinion letter notes that employers “are entitled” to make two basic inquiries when an employee requests a reasonable accommodation: (1) whether the employee meeting the ADA’s definition of “disability,” and (2) whether the employee’s disability necessitates an accommodation. Medical documentation supporting the claim that there is a disability and information about the particular substance causing the employee’s problems can also be requested by the employer.