One of the conundrums Congress left us in the 1990 Americans with Disabilities Act is how to draw the line between those "currently engaging in the illegal use of drugs," 42 U.S.C. § 12114(a) -- who are not protected from discrimination under the Act -- and those recovered or otherwise not "engaging" in such drug use under 42 U.S.C. § 12114(b). As the latest decision on this subject reveals, applying these sections to real-life facts is akin to nailing Jell-o to the wall.
In an unpublished decision issued today, the Tenth Circuit remands for trial the Title VII claim of a fired certified medication aide (CMA), who alleged that she was sexually harassed by a resident. The panel holds that there were genuine issues of material fact about whether the behavior was "severe or pervasive," and whether the employer did all it reasonably could to prevent the harassing behavior.
A split jury verdict, of a kind now common in Title VII cases, is affirmed in full (in a non-precedential decision) by a 2-1 panel of the Tenth Circuit. The jury rejected the employee's gender discrimination claim, while awarding her $3 million in compensatory damages on her retaliation claim. The district court capped the award at $300,000, as required by 42 U.S.C. § 1981a(b)(3), but added $89,877 in back pay, and the Tenth Circuit remands for an award of attorneys' fees.
Updated to July 8, 2019