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Kauffman v. Petersen Health Care VII, LLC, No. 13-3661 (7th Cir. Oct. 16, 2014)

The Seventh Circuit issues a divided opinion on the issue of "qualified individual" under the ADA, in a case concerning a nursing-home beautician. While unanimously agreeing to reverse summary judgment, the panel splits over the question of how to analyze whether pushing the residents' wheelchairs was properly classified as an "essential function."

Kauffman v. Petersen Health Care VII, LLC, No. 13-3661 (7th Cir. Oct. 16, 2014): plaintiff Kauffman was a hairdresser for a nursing home. During half her working days, part of her job entailed pushing residents in wheelchairs from their rooms to a central parlor. She performed the task without difficulty for nearly three decades, until she required a reconstructive procedure on her bladder, resulting in a pushing limitation. The fact record was ambiguous about whether the pushing restriction was ever removed, but available literature (cited by the panel majority) suggests that patients receiving this procedures should never push more than 50 pounds.

The nursing home's administrator, Mr. Wall, reportedly told the plaintiff that "we just don't allow people to work with restrictions, and you have a restriction on here ... . [A]s long as you've got the restriction we can't employ you." He denied the accommodation of having other employees push the wheelchairs on the ground that it "would put a hardship on the facility to hire somebody to transport the patients from the beauty shop to the resident's room and back and forth. That was something that we were not able to do." Notwithstanding, she was briefly and informally accommodated by her colleagues until she resigned.

The panel reverses summary judgment. The majority opinion, by Judge Richard Posner, notes several errors in the district court's opinion - the principal one being that the record on whether pushing the residents was an "essential function" of being a hairdresser was unresolved. The defendant contended that wheeling residents occupied 60-65% of the plaintiff's time, while the plaintiff calculated the time as 9%, or fewer than two hours a week on average.

"The question," writes the panel majority, "would then be whether her inability to wheel could reasonably be accommodated by assistance from other staff, as seems to have worked for the other hairdresser after the plaintiff left the nursing home until a replacement was hired." Assuming the correctness of the plaintiffs' estimate, the demand on the other employees' time, divided over the rest of the staff, would be trivial. "What the best estimate of the plaintiff's time spent wheeling is can't be determined on a motion for summary judgment. A trial is required."

The panel majority also holds that Wall's alleged statement that "we don't allow people with restrictions to work" was, if believed, further evidence of a disability-biased motive. Even Wall's own contention that he said (or meant) "permanent" restrictions did not help the defense, because:

"it's not true that the fact that a restriction is permanent automatically excuses the employer from making any attempt to accommodate it. Otherwise an amputee would never have a right to an accommodation, even if it involved nothing more costly to the employer than lowering the sink in the employees' bathroom."

The panel majority noted that such a policy (termed "100% healed") is discredited by case law and an EEOC enforcement guidance. "If a minor adjustment in the work duties of a couple of other employees would have enabled the plaintiff despite her disability to perform the essential duties of her job as a hairdresser, the nursing home's refusal to consider making such an adjustment was unlawful."

As the record was barren of any valid explanation why other employees could not be engaged to support the plaintiff in this one task, let alone an "interactive process" to locate another alternative, a trial on "reasonable accommodation" was required. "Should a trial reveal that the only accommodation needed to enable the plaintiff to remain employed by the nursing home would have been a couple of hours of orderly time a week, Wall might have a very hard time proving that such an accommodation would be a[n] '[undue] hardship' to the nursing home."

Concurring, Judge Daniel Manion accepts the need for a trial on "essential function," but demurs on the panel majority's framing of the issue as one of the amount of time spent on pushing patients to and from hairdressing appointments:

"[T]he amount of time spent on a task is but one factor considered in determining whether a task is an essential job function. It is not dispositive because 'an essential function need not encompass the majority of an employee's time, or even a significant quantity of time, to be essential.' [Citation omitted.] Thus, even if Kauffman spent only 1.71 hours pushing wheelchairs, that task could nonetheless be an essential job function."

Judge Manion suggests that the inquiry upon "essential function" might turn on such matters as, for instance, whether the wheelchair commute was also a social occasion (for interaction between the resident and the hairdresser, and other residents seen along the way). "But even if it is an essential function, Kauffman may be able to show on remand that a reasonable accommodation would allow her to transport residents to and from the salon."

Finally, a usage note: both the majority and concurring opinions use the expression "wheelchair-bound," a term held in disability-advocacy circles to be insulting and dehumanizing. Neither the authors nor their able law clerks seemed to pick this up, but this humble blogger hopes that - somehow - word will get back to the judges' chambers to consider omitting this term in the future.

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