ADA opinions released in the Eighth and Ninth Circuits today underscore that the burden of proof, ultimately, is always on the employee to show that the employer failed to provide a reasonable accommodation. These serve as a reminder to disabled employees and counsel that when seeking reassignment as an accommodation, it is vital to request the reassignment clearly and to set one's sights realistically.
The Sixth Circuit affirms a jury verdict for an in-house lawyer in Tennessee, including $92,000.00 in compensatory damages and $18,184.32 in backpay. The court holds that the jury could have found that the employer violated the Americans with Disabilities Act (and state law) duty to accommodate, by failing to allow a ten-week period of telecommuting during the lawyer's pregnancy bedrest.
In the ceaseless struggle over what is meant by "similarly situated," an Eleventh Circuit splits over whether the plaintiff - a Black woman detective with a heart condition - presented enough evidence that two white male officers who failed a physical-fitness requirement were treated better. The case also considers, for an ADA claim, whether receiving a Taser shock or pepper spraying in training was an "essential function" of the job.
One way that an employee can circumstantially prove discrimination is by showing that the employer offered shifting and inconsistent rationales for its adverse action. The Fifth Circuit returns this ADA and FMLA retaliation case back for a jury to decide on just that rationale.
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final "Enforcement Guidance on Retaliation and Related Issues" ("Guidance") which details how the federal agency will enforce anti-retaliation laws. This Guidance is the first major update to EEOC enforcement policy on retaliation in nearly 20 years, and reflects changes in employment law over the last two decades, particularly several landmark U.S. Supreme Court decisions. The updated Guidance also adds specific language regarding retaliatory actions under the Americans with Disabilities Act.
Courts are split over whether, under the ADA, employers who are able to reassign incumbent employees to accommodate their disabilities must do so outside of a normal competitive, "best-qualified" application process. The Eleventh Circuit this week joined the fray, holding that employers do not need to abandon a so-called "best-qualified" policy for filling vacancies, even as a reasonable accommodation.
One way that employers go wrong under disability-discrimination laws is writing off an employee with diagnosed mental disabilities as simply a difficult personality or a poor "fit" for the job. Here, a special-education teacher with post-traumatic stress disorder (PTSD) - who was denied a transfer to a less-stressful position and fired for supposedly creating "so much unnecessary drama" with co-workers - will have a trial, thanks to a recent Seventh Circuit decision.
Here's a nice, short decision affirming a judgment of $25,200 in compensatory damages and $65,274.64 in back pay for an ADA plaintiff fired because of his insulin-dependent diabetes. The court underscores that the question of "essential function" under that statute is a factual one for a jury to resolve. And the court also holds that starting a business, even one that fails, is a valid method of mitigating damages.
In two recent federal-sector race discrimination decisions, the D.C. Circuit - while ruling in the employer-agency's favor - issued opinions that may be even more useful for employees in future cases. Both opinions criticized short-cuts sometimes used by district courts to improperly weigh summary judgment records.
The Tenth Circuit reviews an ADA claim of a deaf applicant for technician at a plasma-donation center. It holds that a health-care provider cannot fend off an analysis of whether a proposed accommodation for a disabled employee is reasonable simply by arguing that any risk to patients, however infinitesimal, is unacceptable.