The Sixth Circuit holds in a 2-1 panel decision that an employer's demand that an employee "receive psychological counseling" and "see a mental health counselor as a condition to keeping her employment" may constitute a prohibited "medical examination" under 42 U.S.C. § 12112(d)(4)(A). The unanimous panel also holds that the employee need not actually submit to the demand to have standing to challenge it.
The same panel on the Sixth Circuit publishes two opinions on the same day reversing summary judgment. In the first, a gaming floor supervisor revives a case against a casino for selectively enforcing a workrule about bad deals, owing (allegedly) to race and sex. In the second, the court reminds the lower court that the Americans with Disabilities Act is special because - in contrast to There statutes - it specifically protects against discrimination in training.
The Tenth Circuit issues two decisions today, both involving the EEOC - in different capacities. In the first, the court splits 2-1 on an ADA reasonable accommodation and retaliation case brought by the Commission itself, holding that a photography studio was not required to accommodate a deaf photographer by providing an ASL signer. In the second, in which the EEOC appeared as amicus, the court affirms summary judgment on a sex harassment claim but reverses on a retaliation claim.
Here's yet another jury verdict in favor of a worker, in a seldom-seen case of a frustrated job seeker barred from applying for a job on account of deafness. The Fifth Circuit affirms liability under the Americans with Disabilities Act, injunctive relief and the award of damages: $14,400 in back pay, $20,000 in compensatory damages for emotional pain and suffering, and $68,800 in punitive damages.
Today we log two wins for ADA "regarded as" disability discrimination claimants. In the First Circuit, the panel holds that a district court too hastily dismissed a complaint of disability discrimination, alleging that the employer refused to assign a mentally-ill employee anywhere in the workplace. In the Sixth Circuit, the panel (in an unpublished opinion) astoundingly overturns a jury verdict for the employer - and orders entry of judgment for the employee - where the company placed the plaintiff on involuntary medical leave based solely on an unclear state-court order and without an independent examination of the employee.
One of the critical stages in many disability discrimination cases is when the employee gets a new manager or supervisor, who does not understand - or is insensitive to - an accommodation formerly extended to a person with a disability. As this First Circuit case reveals, a botched switch in the gears can create a triable issue of fact for a jury about whether the employee was denied reasonable accommodations.
Plaintiff, a fired bridge crew member in Southern Illinois, wins the opportunity to try his claims of ADA regarded-as disability discrimination and retaliation against IDOT. Plaintiff claims that the agency believed him to be substantially limited in the major life activity of work, owing to his acrophobia, and that he was fired after complaining about being given dangerous duty beyond his limitations.
It is a shame for the development of the law when useful opinions like this one go unpublished. A 2-1 panel of the Fourth Circuit wades into two EEO issues that divide the circuits, holding in this ADA case that (1) appellate review of a district court order granting equitable tolling of the 90-day limitations period is only for abuse of discretion, not de novo; and (2) reasonable accommodation of an employee's disability may require advising the employee of available opportunities to transfer.
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.