Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘ADA’

Failure to Accommodate is Disability Discrimination

Friday, June 1st, 2018

Many people with disabilities face barriers before they even get their foot in the door. But the hiring process is only one form of disability discrimination.

Employers — including federal agencies and government contractors — are legally obligated to accommodate disabilities. But what is considered a “reasonable” accommodation? What if the employer says no?

What does disability accommodation look like?

Under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, employers must provide reasonable accommodations to enable individuals with a disability to (a) compete for a job, (b) access the workplace, (c) perform the functions of the job and (d) enjoy the perks and privileges of the job.

The Equal Employment Opportunities Commission offers these examples of disability accommodations:

  • A wheelchair ramp or handicap-accessible bathroom
  • Specialized equipment or workstation alterations
  • Dictation software for a person with carpal tunnel syndrome
  • An interpreter or TTY software for a hearing-impaired person
  • Changing or eliminating some job tasks
  • Dividing the work day or allowing for extra breaks
  • Working from home (telecommuting)
  • Reassignment to a vacant position

What is the process for requesting accommodations?

Many applicants are hesitant to ask for accommodations during the hiring process. They don’t want to jeopardize their shot, or may not know what accommodations are needed until they start the job.

A request for accommodations can be made at any time, orally or in writing. Once the request is made to a supervisor or manager, it must be forwarded to the agency’s designated Disability Program Manager. The DPM must accept the request and forward it to the appropriate parties. The DPM must respond to the employee within 10 days to discuss viable solutions.

What does failure to accommodate look like?

If management ignores or flatly refuses a reasonable request, that constitutes discrimination. The law requires employers to make a good faith attempt to work with the disabled employee. If the accommodation is not feasible because of cost or other factors, the employer is obligated to offer alternatives or consider compromises. Under the law, refusing to engage in an interactive process is considered failure to accommodate.

For federal employees, all requests for accommodation go through the EEOC. Sometimes the EEOC authorizes an accommodation that differs from the original request. This is not considered failure to accommodate.

What are the remedies for disability discrimination or inadequate accommodation?

If the EEOC denies a request, it must give a detailed explanation why. The employee can request reconsideration through an informal process. If the decision is still unsatisfactory, or if there has been an adverse action, the employee can initiate a formal appeal or grievance through the EEOC or the Merit Systems Protection Board.

If a government contractor or other private employer denies a reasonable request, the remedies vary. The employee could sue to force the employer to provide accommodation. If the employee was let go, reassigned or harassed after requesting accommodations, they could sue for reinstatement or sue for damages for wrongful termination or retaliation.

People with disabilities want to work and contribute and be valued, just like everyone else. If the accommodations would be effective and would not cause the agency or company undue hardship, the law requires it.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on May 31, 2018. Reprinted with permission.

THE ADA AT 25: A CELEBRATION

Wednesday, August 12th, 2015

Gary-PhelanTwenty-six years ago, Joseph Garrison, the senior partner at the law firm  where I worked in New Haven, CT, asked me to speak to a potential client  who claimed he was being discriminated against in his job because of his  multiple sclerosis.  As a new associate and a relatively recent law school  graduate, I had not yet handled any clients on my own.  However, Joe  enthusiastically supported my idea of carving out a niche in the area of  disability discrimination in the workplace, and this potential client provided the first opportunity for my first solo flight.

After hearing more details about how the potential client’s thriving career with this employer had stalled after his MS diagnosis, I suggested that we meet for a consultation.  “Are you accessible?” he asked.  “Absolutely,” I confidently replied, since our law office in New Haven was less than one block off the exit from the I-91 Highway and we had plenty of parking behind our office.

As I eagerly awaited the arrival of my first ADA client, the office manager stormed into my office and said, “Your new client is outside in the parking lot and he is very upset.”  When I went outside, I saw that he had arrived in a large van with a lift and used a wheelchair.  “I thought you said you were accessible,” he angrily asked.  As I looked at the steep staircase to the three-story brownstone building where our offices were located, I realized that perhaps there was more that I needed to learn about disabilities besides case law and legislative history.

Over the past 25 years, I have represented over 750 individuals with disabilities in litigation and negotiations.  I co-authored an ADA treatise, wrote too many supplements to the treatise, and read hundreds of ADA cases.  I taught disability law for six years as an adjunct law school professor.  I spoke about the ADA at over 100 conferences.

Therefore, when asked to say something to employment law practitioners about the ADA’s 25th Anniversary, I decided that the best contribution I could make – besides letting everyone know what accessibility means – would be to share what I have learned that you will not read in a case or in a treatise.

25 LESSONS LEARNED ABOUT THE ADA

  1. ADA cases require more interaction with other laws than any other law governing the workplace. ADA cases may involve issues under the Family and Medical Leave Act (“FMLA”), Social Security Disability Insurance law (“SSDI”), state workers compensation laws, the Genetic Information Non-Discriminate Act (“GINA”), the Employee Retirement Income Security Act (“ERISA”), the Pregnancy Discrimination Act (“PDA”) and the Affordable Care Act (“ACA”).  To handle ADA claims effectively, you need to become familiar with these other laws.
  2. The Job Accommodation Network continues to be the best source of information about workplace accommodations. It’s a free service of the U.S. Department of Labor’s Office of Disability Employment Policy.  This story illustrates its value.  A client of mine recently went into a meeting with her two supervisors and two HR representatives to discuss her request for an accommodation for an impairment that is relatively difficult to accommodate.  I provided her with a copy of JAN’s Fact Sheet which described both the impairment and the possible ways to accommodate it in the workplace.  I advised her to bring four copies of the three-page factsheet to the meeting.  She only had to distribute two copies – two attendees brought their own copy of the same fact sheet.  All five of them proceeded to brainstorm about what accommodations would most likely be effective – with the JAN fact sheet providing the road map.
  3. Employers that make some attempt to accommodate an employee with a disability are much more likely to prevail at summary judgment motion in a failure to accommodate case. For example, in Noll v. IBM, (2d Cir. May 21, 2015), a software engineer who was deaf used several accommodations provided by IBM, including on-site and remote ASL interpreter, communication access real-time translation (“CART”), internet-based real-time transcription and video relay series.  The Court upheld the dismissal of his claim that IBM failed to accommodate him because they refused to provide that all internal videos be captioned and all audio files have transcripts at the same time the videos were posted.  The Court reasoned that when the “employer has already taken (or offered) measures to accommodate the disability, the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is ‘plainly reasonable.’”
  4. Joe Garrison used to say that “a good job is better than a good lawsuit.” The adage applies to the ADA more than any other employment law statute.  A plaintiff’s lawyer should do everything he or she can to keep the person employed – if necessary, with a reasonable accommodation.  The job market for persons with disabilities is dismal.
  5. The ADA Amendments Act of 2008 expanded the scope of the definition of disability. However, the employee still must demonstrate that they meet the definition of disability.  I have heard some practitioners say that now almost every impairment is covered under the ADA.  They are mistaken.  For example, in Neely v. PSEG Texas, Ltd., 735 F. 3d 242 (5th 2013), the Court observed that the ADAAA “in no way eliminated the term “disability” from the ADA or the need to prove a disability or a claim of disability.  Although “the ADAAA makes it easier to prove a disability, it does not absolve the party from proving one.”  Also, in Felkins v. City of Lakewood, 2014 U.S. App. LEXIS (10th Cir. 2014), the court held that although the standard for proving that one has a “disability” is lower than it used to be, an individual must still show that one has an impairment that substantially limits a major life activity.  The plaintiff did not present adequate evidence that her avascular necrosis substantially limited any of her articulated major life activities (walking, standing, lifting, normal cell growth or circulatory functions).
  6. The reasonable accommodation requirement is not a “sliding scale” that varies based on the employee’s performance or personality. Employers continue to be both more flexible and reasonable in cases of “stellar” employees while often making little effort to accommodate an average or poor performing employee.  As a result, many ADA cases that have to be litigated will involve employees whose performance ratings are average.
  7. The ADAAA changed the law to say that when determining whether or not a person has a “disability” you look at them without the use of a mitigating measure. Due to medical and technological advances, there will continue to be mitigating measures that are developed and, for those that currently exist, improved.  Therefore, mitigating measures will become a bigger issues in ADA matters in the future.
  8. Retirement is gradually becoming a thing of the past. As employees live longer they are working longer – by choice or necessity.  The older someone gets, the more likely they will develop medical issues or impairments.  As a result, there will be an increase in the number of ADA matters due to our aging workforce.
  9. Employees are now likely to be more open about their hidden impairments – even when not seeking an accommodation. That could make those employers more vulnerable to termination.  However, employers are starting to realize that the positive effects of an impairment may provide the individual with an advantage in a specialized positon or field.  For example, 35% of entrepreneurs in America have dyslexia.  Individuals on the Autism spectrum often excel in technical fields.  Rather than discriminating against them, some progressive employers are recruiting them and adapting their work environments to help them thrive.
  10. While the ADAAA has expanded the scope of who may be covered under the ADA, it has also led to an expansion of the length of job descriptions. I am increasingly seeing very long job descriptions which include tasks which are rarely, if ever, performed.  The purpose of a job description is not to improve the employer’s odds of winning a summary judgment motion.  It also can be very transparent and can backfire.
  11. Unlike other discrimination cases, ADA cases provide the plaintiff’s lawyer with an opportunity to persuade the employer. Employers rarely acknowledge that they discriminated against an employee because of their race or gender or that an employee was sexually harassed.  However, the same employer may be willing to acknowledge that they acted out of fearing or lack of knowledge about the medical condition or that the condition can be accommodated.
  12. Despite the ADAAA, many judges still rely on pre-ADAAA case law and conclude that a person did not meet the definition of a “disability.” Never assume that either the court or defense counsel is familiar with the ADAAA’s changes.
  13. Attorneys should focus less on the name of the employee’s disability and more on how it effects the employee on a day-to-day basis.
  14. The reasonable accommodation process is a two-way street. Employees must be willing to disclose their disability.  Although the employee does not need to provide their entire medical file, they need to be willing to provide enough information to demonstrate that she has a disability and/or is able to perform the essential functions of the job, with or without an accommodation.  If she does not provide enough information, she risks having a court say that her failure to provide enough information obstructed the ADA’s interactive process.
  15. When an employee requests an accommodation for a disability, the Third Circuit’s decision in Taylor v. Phoenixville School District, 184 F. 3d 296 (3d Cir. 1999) provides the best guidance on how an employer should respond to the request. According to Taylor, an employer can show that it exercised good faith in the interactive process in a variety of ways, such as (1) meeting with the employee seeking an accommodation, (2) requesting information about the employee’s condition or limitations, (3) specifically asking the employee what he or she wants, (4) sharing some indication that the employee’s request was considered, and (5) offering and discussing alternative accommodations when the one requested was too burdensome.
  16. As medical insurance costs continue to escalate, employees whose medical conditions require substantial costs will be more vulnerable. I have found that towards the end of the year when employees find out how much their health insurance rates will increase, the number of calls I get from potential ADA clients rises.  Also, there will be an increase in the number of ADA charges by employees who have an association or relationship with someone – such as a spouse or child with substantial medical expenses that are covered under the employer’s health insurance plan.
  17. Due to the expansion of the definition of the ADA, employees who fall outside the scope of the traditional definition of disability may be covered. For example, women with pregnancy-related medical conditions will be covered in some circumstances.  Accommodations and flexibility tend to make everyone’s lives better.  For example, when a building owner installs a ramp due to the requirements of the ADA’s Title III Public Accommodation section, parents using strollers and older individuals with limited mobility also benefit.
  18. Employees seeking accommodations should avoid getting in “email wars” with the employer. Appeals to guilt or threats of lawsuits are not effective.  Telling the employer what the employer “must” provide usually fails.  Suggest accommodations but acknowledge that the employer has the final say as to what, if any, accommodation will be provided.  Offer to meet with the employer.  Provide the doctor’s contact information and invite the employer to speak to him or her.  Try to persuade the employer that the accommodation will “pay for itself.”
  19. Plaintiffs’ lawyers must familiarize themselves with the impairment. That does not just mean googling medical conditions about which they have never heard.  Start with websites like WebMD.  Don’t assume, for example, that you know about multiple sclerosis because a friend has it.  What is the diagnosis?  What are the symptoms?  Is it chronic?  Does the condition tend to deteriorate over time?  How can it be accommodated?
  20. Accommodation requests that involve technological advances and/or progressive workplace changes will continue to be a challenge for plaintiffs when litigated in court. Don’t assume that our judiciary is up to date on the cutting-edge trends in the modern workplace.
  21. Employees seeking accommodations are not required to use the “magic words” of reasonable accommodations when seeking an accommodation. They are only required to request some kind of change in their work environment due to their impairment.  Saying “I can’t do this anymore” or “I need help” might be enough.
  22. Employees are not required to disclose medical records or any other information to show that they are entitled to an accommodation unless and until the employer asks them to do so. Defense counsel continue to often claim that the employee was not covered by the ADA because they never provided any documentation of the condition – even though the employer never asked them to do so.
  23. GINA will start to play a much more important role as the cost of genetic testing decreases and health care costs continue to escalate. Also, due to the prevalence of social media, employers have access to much more information about employees’ personal lives as well as medical conditions which the employee’s parents or family members may have.  I tell my clients to assume that their employers are familiar with whatever they have posted on social media.  For example, if they post a photo from a 5K race to raise funds for breast cancer research and post a photo saying they ran in the race to honor their mom, a breast cancer survivor, assume their employer might be concerned that they are likely to develop breast cancer.
  24. The medical profession continues to be a major problem when navigating the ADA. Attorneys should consider options like drafting a list of practical questions or scheduling an appointment with the doctor and paying them for their time.  Attorneys need to realize that physicians are very busy, do not like “paperwork” and are in the midst of a transformation of their industry.  The problems I have encountered with doctors include letters that are (1) illegible, (2) only says if the employee can or cannot work, (3) tells the employer what they have to do for the employee, (4) have no clue about the patient’s job duties and/or (5) vacillates to avoid taking any definite position.  The problems with letters from employees’ doctors I have encountered include (1) illegible, (2) do not take into account the employee’s job description, (3) assume that any risk is a “direct threat” and/or (4) make stereotypical judgments.
  25. The ADA will continue to be the most creative and exciting area of employment law. The law continues to evolve.  Problem solving skills are paramount.  Medical and technological advances continue to alter the terrain.  As a result of the passage of the ADAAA, the focus on the law is back to where it was intended – on whether the individual with a disability can do the job with or without an accommodation.  Be willing to take risks and make new law.

Gary Phelan is a shareholder at Mitchell & Sheahan, P.C. He represents employees and employers in a wide range of matters, including disability discrimination. He is the co-author of Disability Discrimination in the Workplace (West Group). Gary was selected by peer review in Best Lawyers in America (1995-2014). He has written and lectured on a wide range of employment-related topics. Gary taught disability law, employment discrimination law and alternative dispute resolution as an adjunct professor for six years at the Quinnipiac University School of Law.

He often serves as a commentator on employment law topics and has appeared on ABC’s Good Morning America, CNN, NBC Nightly News, CBS This Morning, CBS Evening News, Fox Business News, Court TV and MSNBC.  He previously served on the Executive Board of the National Employment Lawyers Association (“NELA”), was president of the Connecticut Employment Lawyers Association and was the co-chair of NELA’s Disability Rights Committee.  He is the Chair of the Connecticut Bar Association’s Labor and Employment Section.

Gary is on the Board of Directors of A Better Balance and Smart Kids with Learning Disabilities. He is also on the Board of Advisors for the New York office of Disability Rights Advocates.

Gary graduated from Siena College and Albany Law School.

Cancer Victim Fired For Disclosing Brain Tumor Has Claim For Disability Discrimination

Monday, June 13th, 2011

ellen simonA U.S. District Court in Texas ruled that a  Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months.  Brown was supervised by Glenn Piner.  Bown told Piner immediately about Meinelt’s condition.

Two days later, Piner began an audit involving  employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.”  The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, “a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its “more expansive definition” of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications.  It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled — and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point  see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

This blog originally appeared on Employee Rights Post on June 10, 2011. Reprinted with Permission.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. Today, Ellen offers legal advice to individuals with legal problems surrounding employment rights, age/gender/race or disability discrimination, workplace retaliation and sexual harassment.

ADA Changes Better Late Than Never

Thursday, November 12th, 2009

New ADA Regulations Will Bring Necessary Change

I received a call from a reporter from MSNBC a few days ago. She indicated that she wanted to ask me some questions about the new Americans with Disabilities Act regulations recently put out by the EEOC.

The interview caused me to reflect on just how important the amendments to the ADA are –along with the new regulations — and the struggle we have gone through to get here.

When the ADA was written, I remember being at a meeting in Cleveland with a group of employment lawyers which was sponsored by a committee of the American Bar Association. The guest speaker was a lawyer from D.C. and he was there to talk to us about the new legislation and give us a preview.

I remember listening to and reading all of these complex, confusing terms and thinking “this is going to result in tons of litigation and be a big nightmare.” I walked out of the meeting and talked about my deep concern with some friends and colleagues from both sides of the bar.

We all seemed to reach the same conclusion – that this was going to be an ugly litigation mess — and though we saw the handwriting on the wall, there was nothing we could do about it. The ADA was written and this is what it was going to say.

And indeed what our group of experienced employment lawyers predicted that day in 1990 turned out to be true. While the intent of the ADA was certainly noble, the way in which it was written has caused nothing but problems.

What’s more important is that the problems with the ADA have had a terrible negative effect on those individuals who were supposed to be protected by the legislation.

The ADA was intended to protect individuals with disabilities from discrimination. Because of the way in which the Act was written, combined with the way in which it has been interpreted by an exceedingly conservative federal judiciary, most cases got thrown out on summary judgment because the courts determined that the individual plaintiff employee was not disabled.

If he/she was not disabled, then he/she was not protected by the ADA from disability discrimination, and so they lost. Here’s an example of what I mean.

A secretary gets fired for going to chemotherapy. We file a case of disability discrimination. The employer argues that cancer is not a disability as defined by the Act. The judge buys the argument and the case gets thrown out. (based on a true story)

That scenario occurred thousands and thousands of times. Employees with disabilities were getting fired, or not hired in the first place, or passed over for promotions – and the cases were thrown out of court because the employers argued that the person was not disabled so the ADA did not apply.

Those rejected included people with AIDS, people with cancer, people with MS, people with epilepsy, diabetes, with prosthetic devices and the list goes on and on.

As a consequence,  those of us who tried to represent these folks never even got to the stage of the case in which we had a chance to prove discrimination.

As I explained to the MSNBC reporter, in other discrimination lawsuits such as age, race, or gender discrimination cases, we don’t have a fight about whether the client is a woman, or over 40, or black.

We glide past step one, and move on to proof of the next step, that is:

  • Was he or she was discriminated against because of age, race or gender?
  • Was that person’s age, race, or gender a motivating reason for the discharge, failure to hire, lack of promotion, or any other adverse employment decision?

In disability cases, it was almost impossible to get to step two. Practically no one seemed to meet the criteria for coverage under the ADA. To be covered, the individual must:

  • have a physical or mental impairment that substantially limits one or more major life activities
  • and be able  to perform the essential functions of the job.

The courts decided – at the employers’ urging — that the employee was either not substantially impaired, or that the impairment did not involve a “major life activity.”

Even if the plaintiff got over that hurdle – in other words was disabled enough to meet the criteria, it’s most likely that he or she was booted anyway.

That’s because the employer would then take the position that the individual was so restricted that he or she was not able to meet the essential functions of their job – and most courts went along with the companies’ argument.

In a nutshell, a person either wasn’t disabled enough to meet the definitional terms of the statute– – or was too disabled to perform the “essential functions of the job” even if accommodated. (reasonable accommodation for the disabled is required under the ADA)

The long and short of it is that millions of people with disabilities had no protection from discrimination as a result of this legal mess.

The amendments to the ADA passed last year (Americans with Disabilities Act Amendments Act of 2008) fixed this problem and the regulations issued at the end of September provided most of the necessary clarifications to put real teeth into the fix.

For the first time, the EEOC regulations lists examples of impairments that will consistently meet the definition of a disability. Such impairments include (but are not limited to):

  • Blindness
  • Deafness
  • Intellectual disabilities
  • Partially or completely missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral palsy
  • Diabetes
  • Epilepsy
  • HIV/AIDS
  • Multiple sclerosis
  • Muscular dystrophy
  • Major depression
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive-compulsive disorder
  • Schizophrenia

There are new definitions for substantial impairment, major life activity, regarded as disabled, and more  — all of which are intended to overrule the previous restrictive federal court interpretations of the legislation(including the US Supreme Court).

The new ADA amendments along with the regulations plainly state that the ADA is intended to offer broad protection to people with disabilities as well as people who are regarded to be disabled by their employers and who are discriminated because of it.

Instead of litigating the issue of whether someone is disabled,  the central issue of these cases will now be what they should have been all along – whether the employee was discriminated against because of a disability.  That’s what was intended when the Americans With Disabilities Act was passed.

Too bad it took us nineteen years to get here – but as the old adage goes, better late than never.

www.michaellouisyoung.com

www.broward.org

This article originally appeared in Employee Rights Post on November 9, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Great Disability Rights Opinion From Seventh Circuit For Employees And Their Lawyers

Tuesday, November 3rd, 2009

Employee With MS Wins Appeal In Seventh Circuit “Regarded As” Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and “unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

Multiple Sclerosis Is A Disability

The first part of the lower court’s ruling pronounced that Brunker had no claim because he was not disabled. In other words, the fact that he had multiple sclerosis didn’t matter, according to the court — even if that’s why he was fired — because MS was not a disability.

The court’s logic was based on case law developed under the ADA which left millions of people with disabilities unprotected from employment discrimination.

Fortunately,  the ADA was amended this past year. Under the new act, multiple sclerosis would be considered a disability (and should have been under the old act as well) so a judge theoretically should not be able to throw the case out on similar grounds. (the court did not address the amended ADA because the case was filed before it was passed)

(For information on new regulations proposed under the amended ADA see the article in the Connecticut Employment Law Blog)

Being Regarded As Disabled Is A Violation Of The ADA

Under the ADA (both the old act and the new one) a person has a claim for disability discrimination if he or she is subjected to an adverse employment decision because he or she is regarded as disabled.

To prove disability discrimination under a “regarded as” theory the employee can win by proving that:

  • The employer mistakenly believes that the employee has an impairment that substantially limits a major life activity, or
  • The employer mistakenly believes that an existing impairment, which is not actually limiting, does substantially limit a major life activity (functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working)

In this case, the Court of Appeals decided that Brunker presented enough evidence that he was fired because Schwan’s regarded him as being disabled. In reversing the lower court, the Court of Appeals stated:

The record contains adequate evidence to support a theory that Schwan’s regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking.

For example, the day before he left for the Mayo Clinic, Schwan”s issued Brunker multiple corrective action reports, including a dress code violation, suggesting that Schwan’s did not believe that Brunker was able to care for himself because of his apparent conditions.

Furthermore, Schwan’s disciplined him even though other employees were not cited for similar violations.

As to Schwan’s motive, the Court of Appeals had this to say:

Schwan’s fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan’s decision to terminate him.

These facts are sufficient to create a triable question as to whether Schwan’s regarded Bunker as disabled when it fired him.

The Court Reverses Sanctions Against The Lawyers

It’s typical in these kinds of lawsuits for lawyers representing employees to request documents from the employer defendant to either prove their case  or disprove the defendant’s case. It not only typical; it is absolutely allowed the Federal Rules of Civil Procedure.

In what I can only say is a quirky, outlandish, and mean-spirited ruling, the trial court in this case imposed sanctions on Brunker’s lawyers because they pressed to get the information they believed necessary to properly represent their client.

For example, the lawyers asked for records on whether Schawn disciplined other employees who failed to follow its dress code or to keep accurate route books (some of the reasons give for the discharge).

A request to see co-employees personnel files in order to prove unequal  treatment or whether what the company is stating is true (pretext) is quite standard, but in this case the lawyers were sanctioned for making it.

The Court of Appeals reversed, holding that the information was relevant to Brunker’s disparate treatment claim since it related to the even handedness of the company’s expectations.

The Court also criticized the company’s lawyers for refusing to produce the requested documents and then using them to support their defense.

The Court said:

Indeed Schwan’s went further than merely raising an issue it had previously argued was irrelevant.

It faulted Brunker for failing to identify any route manager who had “similar performance issues” and was treated more favorably.

And Schwan’s also discussed the route manager who was terminated for failing to service customers, despite Schwan’s successful opposition to Brunker’s request for his personnel file.

Similarly,  Schwan denied the relevance of the personnel file of another former employee, Mike Devereaux, but then used parts of that file in the summary judgment reply.

Through its actions, Schwan’s concedes that the bulk Brunker’s requests were substantially justified. We therefore vacate the award of sanctions.

Conclusion

This case is a great win for both Mr. Brunker and his lawyers. He obviously had grounds to bring a case claiming that he was terminated because of his disability – and every right to have that case heard by a jury.

As far as the lawyers go, it’s always very difficult to get companies to produce the documents we need to prove our cases. Companies control the records in these cases and they do not give them up easily even when they are plainly relevant.

At the same time there is no doubt that lawyers representing employees have to get those documents both to support our clients claims and test the employers’ defenses. It’s simply a battle that must be fought.

The fact that these lawyers were punished for doing what they needed to do for proper representation of their client is plainly wrong. Fortunately, the Seventh Circuit Court of Appeals agreed.

images: www.pocketyourdollars.com bowtielaw.files.wordpress.com

This post originally appeared in Employee Rights Post on November 1, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

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