While the Americans with Disabilities Act protects medical information about employees disclosed to an employer as a result of "medical examinations and inquiries," 42 U.S.C. § 12112(d), such protection is not infinitely elastic. The Seventh Circuit, affirming summary judgment in this ADA case, holds that the employer must "already kn[o]w something [i]s wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry." Fortunately for disabled employees, such circumstances are usually within their control if they are willing to come straight with their bosses about their work-related needs at the beginning of the relationship.
The Tenth Circuit joins other circuits and the EEOC in holding, under the Rehabilitation Act, that the required "reasonable accommodation" of persons with disabilities is not limited to accommodations related to the essential functions of a job. Here, the court holds that it may be a reasonable accommodation to transfer an employee to a major metropolitan area to enable her to get Medical attention. "Considering the case law from this court and others, we conclude that a transfer accommodation for Medical care or treatment is not per se unreasonable, even if an employee is able to perform the essential functions of her job without it."
The Seventh Circuit today announces the overruling of its precedents, EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000) and Mays v. Principi, 301 F.3d 866 (7th Cir. 2002), that held employers had no duty to place employees who were losing their current positions due to disability into vacant positions for which they are otherwise qualified. The court holds that this interpretation of the ADA was superseded by the Supreme Court decision, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), and that employers have a duty to transfer.
The saga of the Doe case continues, with its second trip to the Sixth Circuit since it was first filed in 2005. Once again, the plaintiff wins a reversal of summary judgment, with the Sixth Circuit holding that there is no "religious organization" exception to coverage under § 504 of the Rehabilitation Act.
In the space of ten days, two circuits issue decisions rejecting a "sole cause" jury instruction under different federal acts. The en banc Sixth Circuit unanimously sweeps away prior circuit law requiring proof under the ADA that disability was the "sole" cause of the discrimination - vacating the jury's verdict under such an instruction - though the judges ultimately divide over what the correct causation standard ought to be. In the D.C. Circuit, the panel rejects a "sole factor" instruction in a Title VII case, distinguishing a prior published decision, but affirms the defense verdict on the ground that the jury charge was overall correct.
Employees who believe they are not getting ahead in their jobs because of sex, race, disability, age or other factors, take heed: unless you actually apply for - or at very least, express interest in - a promotion, you may not have a claim for discrimination. Such an application is an important step to preserving your rights, even if you think the outcome is preordained against you.
Apparently, in Cleveland, Ohio public schools, the ability to yell at the class - here, politely termed "verbally control[ling] resistive students" - is deemed an "essential function" of teaching. A teacher's medical restriction not to raise her voice, holds an unreported Sixth Circuit decision today, means that she is not a "qualified individual" under the ADA.
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.