As the U.S. Courts of Appeals finally begin to decide disabilities cases governed by the ADA Amendments Act of 2008 (ADAAA), we'll begin to see transformational decisions like this one. Contrary to prior case law, the Fourth Circuit holds that an employee's temporary condition - here, "broken legs and injured tendons [that] render him completely immobile for more than seven months" - may constitute a disability.
"Steven Smothers worked for Solvay Chemical, Inc. ('Solvay') for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker." The Tenth Circuit reverses summary judgment in this ADA and FMLA case, holding that the employee created a genuine dispute of material fact about whether Solvay singled him out for harsher treatment than his coworkers. The company, according to the summary judgment record, committed the rookie HR mistake of not allowing the employee to present his side of the story.
Any employer that fires a disabled worker on the heels of a request for an ADA workplace accommodation - and entirely disregards a doctor's recommendation - is nothing if not buying trouble. The Seventh Circuit reverses summary judgment on just such a claim, holding that the employee presented a genuine dispute of material fact when she was fired just days after filing paperwork from her physician requesting scheduled rest periods. The record includes deposition testimony by a decision maker that "I don't believe that the doctor is in a position to make that determination. It is his opinion."
The Sixth Circuit reverses summary judgment in an ADA case involving the operation of heavy equipment with a prosthetic leg. The court holds that it is prospectively for a jury, not a judge, to decide whether hauling such equipment to the worksite is an "essential function" of the job. The case highlights that formal job descriptions can sometimes differ markedly from in-the-field practice.
Both the EEOC and several court decisions have recognized that an employer's duty under the ADA and Rehabilitation Act to furnish reasonable accommodations is not limited to accommodating essential functions at work, but also ancillary functions important to achieving equal access - such as commuting to and from the office. See 29 C.F.R. § 1630.2(o)(1); Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010) (partly-blind employee could be accommodated with daylight shifts, to facilitate her commute). And so, too, the Fifth Circuit holds - reversing summary judgment - that the State of Louisiana might be required to provide a free on-site parking space to accommodate the plaintiff's disability (osteoarthritis of the knee).
Employees with disabilities are sometimes caught between the desire to work and the need to apply for public or short-term disability benefits for survival purposes. The Ninth Circuit does a good job in explaining how these are not necessarily in conflict, reversing summary judgment in an Americans with Disabilities Act case where a school teacher had to apply for disability retirement.
Though slightly off the employment-beat, this Ninth Circuit decision may be useful to our readers, for the important and simple lesson that an Americans with Disabilities Act plaintiff does not necessarily need an expert to testify about architectural barriers. As the panel majority writes, "Perhaps we've become too expert-prone."
Not all of the protections under the Americans with Disabilities Act are limited to disabled persons. The AD also protects employees from undergoing unconsented medical exams, unless the employer can show that the exam is job-related and consistent with business necessity (42 U.S.C. § 12112(d)(4)(A)). In this Eleventh Circuit case, the panel holds that an employee does not need to be disabled to have standing to bring suit under this section. The panel, nonetheless, affirms summary judgment for the employer, finding that it made out its job-related/business-necessity defense as a matter of law.
Once again, a federal court of appeals is compelled to reverse summary judgment in a discrimination case where the employer brazenly offered no reason for its decision to terminate the plaintiff. The Seventh Circuit here remands claims of ADA discrimination and retaliation for an employee diagnosed with MS. (The ADA retaliation claim specifically concerns a manager who is openly resentful of the plaintiff's disability, all but accusing the plaintiff of malingering.) Judge David Hamilton, concurring, also explains why the common McDonnell Douglas method of proof may be backwards, essentially requiring the employee to guess at the employer's defense before it is offered.
Here's a potentially important case for disabled persons and their advocates residing in the Second Circuit (NY, CT and VT) and elsewhere. A panel reverses summary judgment in a case involving a city professional employee with schizophrenia under medication, holding that accommodations such as flex-time and unsupervised work may be reasonable in some instances. In this particular case, the record reflected that the employee had been so accommodated for ten years before a supervisor suddenly and inexplicably called an end to it.