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.
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.
Taking sides in a widening split in the circuits, the Fifth Circuit holds that an independent contractor - here, a pediatrician working on an United States Air Force base - can bring a claim for disability discrimination under the Rehabilitation Act of 1973 against the clinic where she practiced.
The Fifth Circuit becomes the latest circuit to grapple with the temporary (or joint) employer issue under the federal anti-discrimination laws. It concludes in this case that There was a genuine dispute of material fact about which entity (or both) employed the plaintiff for purposes of the ADA. The panel also holds that There was a genuine dispute about pretext, where the alleged grounds for termination - among There things, her using the Internet while at work - may not have been known to the decision maker at the time the plaintiff was fired.
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."
In the past eighteen months, there have been favorable decisions from the Second and Sixth Circuits about unconventional work scheduling as a reasonable accommodation. The D.C. Circuit joins those courts with a new Rehabilitation Act decision holding that the Department of Agriculture should have considered a flextime schedule for an employee under treatment for depression.