Articles Posted in ADA

Lev Craig

This Monday, November 13, 2017, the U.S. District Court for the Northern District of Illinois granted the defendant’s motion for summary judgment in Richardson v. Chicago Transit Authority, in which plaintiff Mark Richardson alleged that his former employer, the Chicago Transit Authority (CTA), had violated the Americans with Disabilities Act (ADA) by terminating his employment because he was obese. The court held that, if not caused by an underlying physiological disorder or health condition, obesity in and of itself does not qualify as a disability under the ADA. As a result, Richardson was unable to show that he was disabled within the meaning of the ADA, and his ADA claim was dismissed.

Richardson began working for the CTA as a bus driver in 1999. In 2010, after Richardson took an extended medical leave, the CTA required him to undergo a medical exam and safety assessment before returning to work. At the time of the medical evaluation, Richardson weighed 594 pounds and, according to standardized height and weight medical guidelines, had a BMI of 82.8, meaning that he was medically considered to be “suffering from ‘extreme obesity.’” During the safety assessment, the CTA found that Richardson’s weight prevented him from complying with various CTA safety regulations; for example, Richardson could not perform hand-over-hand turning or stop “cross-pedaling”—having part of his foot on the gas and brake pedals at the same time—because of his size. The CTA later terminated Richardson’s employment, stating in a memo, “Based on the Bus Instructors [sic] observations and findings, the limited space in the driver’s area and the manufacturer [maximum allowable weight] requirements, it would unsafe for Bus Operator Richardson to operate any CTA bus at this time.”

By Edgar M. Rivera, Esq.

For those who follow The Harman Firm Blog, you may recall our article “Second Circuit Addresses Alcoholism Perceived Disability Claims Under NYCHRL,” in which we reported that the Second Circuit in Makinen v. City of New York certified the question of whether §§ 8-102(16)(c) and 8-107(1)(a) of the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism. Section 8-107(1)(a) prohibits discrimination based an actual or perceived disability. But in the case of alcoholism, § 8-102(16)(c) limits the applicability of the term “disability” to cover only employees who are recovering or have recovered from alcohol use disorder and are currently free from abuse. On October 17, 2017, the Court of Appeals of New York answered the certified question in the affirmative.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years and, during that time, were falsely accused of abusing alcohol by their respective former partners. Ms. Nardini’s former partner—also the father of her daughter—accused Ms. Nardini of abusing alcohol in the midst of a tumultuous breakup and ongoing custody battle, which led the NYPD to refer Ms. Nardini to its Counseling Services Unit, where she was diagnosed as suffering from alcohol abuse. She accepted treatment only under threat of suspension. Ms. Makinen was similarly referred to the NYPD’s Counseling Services Unit while embroiled in a custody dispute with her former husband. On multiple occasions, Ms. Makinen’s former husband and his family members alleged that Ms. Makinen drank excessively, drove while drunk, and abused her children. The Counseling Services Unit diagnosed Ms. Makinen—like Ms. Nardini—with alcohol dependence, and Ms. Makinen reluctantly agreed to attend a four-week inpatient rehabilitative treatment program to avoid disciplinary actions.  It is undisputed, however, that neither plaintiff was actually an alcoholic.

Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

Lev Craig

The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss Kate Lynn Blatt’s gender and disability discrimination claims in Blatt v. Cabela’s Retail, Inc. Blatt, a transgender woman, brought suit against her former employer under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), alleging that Cabela’s had discriminated against her based on her gender identity and her diagnosis of gender dysphoria.

Being transgender does not necessarily involve a diagnosis of gender dysphoria. Whereas a transgender person is someone whose gender identity differs from the sex that they were assigned at birth, gender dysphoria is a condition recognized by the American Psychological Association (APA), characterized by a “marked difference between [an individual’s] expressed/experienced gender and the gender others would assign [them],” which is present for at least six months and “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

Harrison Paige

On April 4, 2017, in Vasquez v. Smith’s Food & Drug Centers, Inc., the U.S. District Court for the District of Arizona denied summary judgment on Juanita Vasquez’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). Vasquez alleged that that Smith’s Food & Drug Centers (“Smith’s”) had discriminated against her based on her disability by failing to accommodate her fibromyalgia and terminating her for her use of a previously approved accommodation. The court found that disputes of material fact remained which required that the case proceed to trial.

In 2009, Vasquez, a 17–year Smith’s employee, was diagnosed with fibromyalgia, a chronic condition which causes musculoskeletal pain, fatigue, disordered sleep, and memory and mood problems. Vasquez’s primary care physician completed a “Medical Accommodation Questionnaire” to submit to Smith’s after her diagnosis, stating that Vasquez could not stand for more than two hours, lift over ten pounds, or bend and stoop frequently. These restrictions disqualified Vasquez from working in certain positions at Smith’s, such as cashier roles, but Frank Orozco, the store manager at Vasquez’s location at the time, assigned her to work as a courtesy clerk and administrative secretary to accommodate her disability-related limitations.

By Shelby Krzastek and Lev Craig

On May 17, 2016, the Medical Marijuana Act (MMA) took effect in Pennsylvania. The MMA allows patients with certain serious medical conditions—including HIV/AIDS, autism, cancer, and post-traumatic stress disorder—to use marijuana in pill, oil, vapor, liquid, tincture, or topical form to treat their symptoms. Once the MMA is fully implemented in early 2018, Pennsylvania residents with an approved medical condition will be able to apply for a medical marijuana ID card issued by the Pennsylvania Department of Health, which will allow them to legally obtain marijuana for medical use. While the MMA has received praise from many Pennsylvania residents, the act also creates new challenges for employees who become certified to use medical marijuana under the MMA.

Although a growing number of states have legalized marijuana use, marijuana remains illegal under federal law, where it is classified as a Schedule I controlled substance under the Controlled Substances Act. Because marijuana is illegal under federal law, employers are not required to allow employees to use medical marijuana as a reasonable accommodation under the Americans with Disabilities Act. In addition, workplaces that are federally mandated to be drug-free—such as federal contractors and certain safety-sensitive industries—require employees to report positive marijuana test results, even if an employee’s use of marijuana is for medical purposes. As a result, if an employee tests positive for marijuana use, the employer may terminate the employee for failing to comply with drug-free workplace policies.

Shelby Krzastek

Bill Brown alleges that Stevens Transport, one of the four largest refrigerated trucking companies in the United States, refused to hire him as a truck driver because he takes medication to control his bipolar disorder. On November 30, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) filed suit in U.S. District Court for the Northern District of Texas on Mr. Brown’s behalf.

Mr. Brown applied for employment as a driver with Stevens Transport in March 2015. Stevens Transport told Mr. Brown they would not hire him as a truck driver because he regularly took a certain medication to manage symptoms of bipolar disorder, due to a a company policy prohibiting drivers from taking medications including Lexapro, Zoloft, Paxil, Celexa, and Latuda. Mr. Brown objected, as he had fulfilled a course in advanced truck driving and passed the Department of Transportation (DOT) physical that is required to hold a commercial driver’s license (CDL). Mr. Brown claims that neither Stevens Transport nor its physician made an individual assessment of him, as required by the Americans with Disabilities Act (ADA). Mr. Brown’s medical provider issued a report stating Mr. Brown was capable of driving safely while on medication. No U.S. DOT regulations prohibit people who take medication for bipolar disorder from commercial truck driving.

Lev Craig

In Moebius v. TharpeRobbins Co., Matthew Moebius brought wrongful termination and disability discrimination claims against his former employer, TharpeRobbins, under the Americans with Disabilities Act (ADA) and Massachusetts state law, alleging that TharpeRobbins had discriminated against him because of his severe depression. The U.S. District Court for the District of Massachusetts recently denied TharpeRobbins’ motion for summary judgment. In its November 1, 2016 order, the court found that triable questions remained as to whether Moebius’s depression substantially limited a major life activity, whether TharpeRobbins had failed to provide Moebius with a reasonable accommodation, whether Moebius had been terminated because of his disability, and whether TharpeRobbins’ proffered legitimate, non-discriminatory reasons for Moebius’s termination were pretextual.

For over seven years, Moebius worked as a senior network engineer for TharpeRobbins, which develops and provides software programs designed to measure and reward employee performance. In late 2013, Moebius began experiencing symptoms of severe depression related to his recent divorce. Moebius alleges that, around this time, he began using more paid time off due to his depression and asked on two occasions if he could work from home as an accommodation. However, Moebius’s supervisor prohibited him from doing so and required him to be physically present in the office to manage other employees and maintain servers. Moebius’s attendance began to grow worse, and in September 2014, he was terminated, purportedly for unsatisfactory performance.

Lev Craig and Edgar M. Rivera, Esq.

Determining a school’s liability in a student suicide case is a fraught and complex issue: While plaintiffs argue that schools should make more significant efforts to prevent a student’s suicide—especially since many student suicides are caused by repeated incidents on school campuses, like severe peer bullying—courts have generally been reluctant to impose new or heightened duties on school counselors.

In 1991, the Maryland Court of Appeals in Eisel v. Board of Education of Montgomery County was the first court to hold that school officials may have a legal duty to try to prevent a student’s suicide. In Eisel, a wrongful death and survival action, a 13-year-old girl committed suicide after telling school counselors that she intended to kill herself.  Citing the in loco parentis doctrine—which requires a person or organization, such as a school, to take on some of the functions and responsibilities of a parent—the court concluded that “school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student’s suicidal intent.”

Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.