Articles Posted in Disability

That George Costanza was definitely on to something.

A federal court in Virginia (here) recently denied an employer’s attempt to dismiss the complaint of a former employee who claimed that his rights under the Americans with Disabilities Act were violated when his employer failed to accommodate him by waking him when he fell asleep on the job.

The ADA requires that an employer accommodate a disabled employee, if doing so will not cause undue burden to the employer, but will still allow the employee to perform the essential functions of his job.

In mid-June, the American Medical Association concluded that obesity is a disease “requiring a range of medical interventions to advance obesity treatment and prevention.” This news led Jon Hyman at the Ohio Employer’s Law Blog to conclude that classification of obesity as a “disease” has huge employment law implications; namely, that under the Americans with Disabilities Act, employers would have to consider allowing for reasonable accommodations for obese employees. Indeed, even before the AMA guidance, a Louisiana court determined that morbid obesity was a disability under the ADA, thus requiring reasonable accommodation.

Well, last month, a state court in West Virginia concluded otherwise. More on this decision and its impact on employers after the jump…

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The Americans with Disabilities Act (ADA) limits when an employer can require an employee to take a medical examination. Specifically, the ADA forbids employers from requiring medical exams (and cannot otherwise inquire into the nature or severity of a disability) unless the exam or inquiry is shown to be “job-related and consistent with business necessity.”

The U.S. Equal Employment Opportunity Commission (EEOC) advises (here) that an exam is permissible where the employer “has a reasonable belief based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”

So, let’s assume that you have an employee about whom you receive multiple reports of emotionally-erratic workplace behavior. At what pointy can you require that employee to seek counseling?

Barbara Joy McElmurry worked for the Arizona Department of Agriculture. In a Complaint she filed in federal court, she alleged that her supervisor forced her into a field work position in which she would not be able to drive vehicles because she was too short (4’10”). So, McElmurry asserted a claim for discrimination on the basis of disability, namely, her short stature.

So, could height (or lack thereof) be a disability?

Well, under the Americans with Disabilities Act, a person is disabled if she suffers from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” An employer could also regard an employee as disabled, even if she isn’t; that too would bring the employee within the scope of the ADA.

Here’s the scenario: You have a disabled employee who seeks an accommodation. Mindful of the Americans with Disabilities Act, and being the compliant company that you are, you engage that employee in an interactive dialogue to discuss reasonable accommodations — options to allow the employee to perform the essential functions of the position. 

Ah yes! You recall that there is another vacant position for which the employee is qualified — albeit barely. That’s a reasonable accommodation. But, oh no! You remember seeing the resume of the perfect candidate for that position.

Question: If there is no other reasonable accommodation available, do you have to offer that open position to the barely-qualified disabled employee? Or can you fill the position with the more qualified candidate?

I’ll discuss after the jump…

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You’re thinking I should have led with the strip club, eh?

On Wednesday, an Iowa jury awarded $240,000,000 to a group of 32 men with intellectual disabilities, whom it found had been discriminated against in violation of the Americans with Disabilities Act. According to this EEOC press release, the verdict works out to $2 million in punitive damages and $5.5 million in compensatory damages for each plaintiff, and follows a September 2012 order from the district court judge awading the men $1.3 million for unlawful disability-based wage discrimination, thus making the total judgment $241.3 million.

And then there’s “THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE.” More First Amendment than employment law. But, nonetheless, right in my wheelhouse.

To defend against a claim of discrimination, an employer can argue that it fired an employee because it honestly believed that the employee did “X.” And, as long as “X” isn’t discriminatory, the employer prevails. This is the honest belief doctrine.

So, can an employee flip the “honest belief doctrine” on its head to show that an employer’s purported legitimate business reason for disciplining an employee was actually pretext for discrimination?

Find out after the jump…

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