Articles Posted in ADAA

On September 30, 2014, the Equal Employment Opportunity Commission sued AmerisourceBergen Drug Corporation (“Amerisource”) for terminating Meron Debru, and failing to provide reasonable accommodation for her pregnancy-related disability, and ultimately terminating her employment, in violation of both the http://www.dol.gov/dol/topic/disability/ada.htm (ADA) and the Civil Rights Act of 1991.

The Commission claims in its complaint that Ms. Debru, a Reimbursement Case Advocate in the company’s Rockville, Maryland facility, was granted leave for the birth of her child, from April 25 through June 6, 2012. However, on June 6 her doctor did not release her to return to work, citing concerns about possible post-partum depression. She was referred her to a Professional Counselor, who confirmed the doctor’s suspicion by diagnosing Debru with post-partum depression. She then informed the company that she could not return to work, and would take additional unpaid leave.

When she did not return to work on July 15, 2012, the company filled Debru’s position. Then on August 1, 2012 they sent a letter informing her that she was terminated, effective August 1, 2012, because she had exhausted her six months of leave under the FMLA. She then informed them that they had been incorrect, since she had not actually taken more than six months of leave, and that she had post-partum depression.

On April 22, 2014, the Sixth Circuit Court of Appeals reversed a Michigan District Court’s grant of summary judgment for the Defendant in EEOC v. Ford Motor Co., concluding that there is “a genuine dispute as to whether (Plaintiff Jane) Harris was qualified to work as a resale buyer and whether she was terminated in retaliation for filing an EEOC charge.” Prior to filing an EEOC complaint, Ms. Harris was by all accounts a competent resale buyer. However, she suffered from severe Irritable Bowel Syndrome, which often made her unable to control her bowel. She requested that the company accommodate her disability by allowing her to telecommute, but Ford denied this request and she resorted to taking FMLA leave, missing work and trying to make up for it by working at home. Her work suffered, her supervisors criticized and disciplined her, and ultimately the company tried to argue that her inability to do her job was their reason for terminating her. However, she and the EEOC argued, and the Sixth Circuit ended up agreeing, that these performance problems resulted, not from Ms. Harris’s work per se, but primarily from the company’s failure to provide the accommodations she requested.

The Court acknowledged that a majority of jobs require the employee to be physically present in the workplace, and that this requirement has long been the norm for most workers. In this case, Ford’s management expressed its “business judgment” that “physical attendance was essential for resale buyers because face-to-face interactions facilitate group problem-solving.” The Court did not reject this judgment, but it noted that its “inquiry does not end simply because Ford has expressed its business judgment” that the employee’s physical presence is essential. But the Court noted that advances in technology have made it feasible for many employees to telecommute and work remotely, and that there was evidence showing that Ms. Harris’s specific job was done mostly by telephone even when she was physically at work. In short, the Court concluded, it is a triable issue of fact whether Harris could or could not do her job remotely, and thus also a triable issue of fact whether allowing her to do so would be a reasonable accommodation that would be required under the Americans with Disabilities Act.

The Defendant argues that it would not be reasonable to require them to accommodate Ms. Harris as she requested because, as a resale buyer, she must interact on a regular basis with other team members and access information that is not available during non-“core” business hours. The Court noted that this argument “confuses remote work arrangements with flex-time arrangements.” That is, in arguing against the reasonableness of accommodating Ms’ Harris’s disability, the company pointed to the problems that had been caused by her missing work. However, the court concluded, it is not clear that a telecommuting arrangement would cause such problems, or hinder her work at all. Ford’s burden at the next stages of litigation is thus now clearer: it must show that physical presence at the company work site, and not just regular attendance at the workplace (wherever it is), is a requirement of Ms. Harris’s job. If not, it might turn out that accommodating a person’s disability can mean letting them work remotely.

On April 24, 2014, Judge Stephen N. Limbaugh, Jr. of the Southeastern Division of the Eastern District of Missouri issued a Memorandum and Order denying the Defendant’s Motion to Dismiss in the case Joseph Whittaker v. America’s Car-Mart, Inc. In his initial complaint , Plaintiff Whittaker argued that his employment had been terminated by Car-Mart because of his severe obesity. In a later, amended complaint, he added an additional claim of retaliation, alleging that, following his termination and filing of the first Complaint, Car-Mart had contacted his prospective employer threatening to “terminate all business” with them if they hired Mr. Whittaker. Defendant moved to strike the amended complaint, arguing that it had been filed without leave of the court, but the Court determined that this claim was in error, so the only question at issue for the Judge was whether the Plaintiff had asserted a facially plausible claim of Discrimination under the ADA.

Most prominent in the Judge’s explanation is his conclusion that the Defendant’s arguments and legal analysis were essentially out of date. For example, Defendant argued “…that plaintiff’s alleged disability, severe obesity, is not an actual disability under the ADA unless it is related to an underlying physiological disorder or condition and that plaintiff fails to allege that his obesity is related to an underlying physiological disorder or condition.” The Judge noted that in its arguments Defendant failed to account for recent changes to the ADA and its interpretation, specifically the adoption of the Americans With Disabilities Amendments Act of 2008, which explicitly states that “the definition of disability be construed ‘in favor of broad coverage individuals…to the maximum extent permitted’ by the law.” In addition, the Defendant’s legal analysis depended on the “unduly restrictive approach established by the Supreme Court in Toyota Motor Mfg., Ky., Inc. v. Williams,” which is precisely the approach that Congress rejected when it passed the ADAAA.

The Court noted that under the ADA, as amended by the ADAAA, a disability is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; (C) being regarded as having such an impairment…” The Plaintiff argues that his severe obesity meets these conditions: first, while it did not limit his performance of all of his job responsibilities, his obesity did substantially limit him in some life activities, most notably walking; second, he showed that his employer did in fact regard him as having such impairment. Thus, the Court concluded, “Based on the substantial expansion of the ADA by the ADAAA, Defendant’s assertion that Plaintiff’s weight cannot be considered a disability is misplaced.”

On January 24, 2014, the United States Court of Appeals for the Fourth Circuit issue its decision in the Summers v. Alltarum Institute case regarding the definition of “disability” in the Americans with Disabilities Amendments Act of 2008 (“ADAAA“). Plaintiff appealed the dismissal of his complaint by the district court for failure to state a claim on which relief can be granted.

In this case, Plaintiff fell and injured himself on his way to work. He sustained serious injuries to both legs. Following the accident, Plaintiff was not able to walk normally for roughly sevent months. During his hospitalization, Plaintiff contacted Defendant, Altarum to inquire about short-term disability benefits and working from home as he recovered. Plaintiff suggested to Defendant “a plan in which he would take short-term disability for a few weeks, then start working remotely part-time, and then increase his hours gradually until he was full-time again.” Defendant’s insurance provider agreed to grant Plaintiff’s short-term disability benefits. However, Defendant did not follow up with Plaintiff regarding his return to work and neither discussed alternative accommodations nor engaged in any interactive process with Defendant. Instead, Plaintiff was terminated effective December 1, 2011, in order to place another analyst in his former position.

Following his sudden termination, Plaintiff filed a complaint in the Eastern District of Virginia alleging two claims under the Americans With Disability Act (“ADA“): (i) a discrimination claim alleging that Defendant discriminated against him by wrongfully discharging him on account of his disability; and (ii) a claim alleging that Defendant failed to accommodate his disability. In October 2012, the district court granted Plaintiff’s motion for summary judgment and dismissed both claims without prejudice. In December 2012, Plaintiff filed a new lawsuit, which virtually included the two same claims. Following this second lawsuit, the district court ruled in favor of Defendant again, granting its motion to dismiss both claims, with prejudice this time. Regarding Plaintiff’s wrongful discharge claim, the district court specifically held that: “even though Plaintiff had ‘suffered a very serious injury,’ this injury did not constitute a disability because it was temporary and expected to heal within a year.” Following this decision, Plaintiff appealed his wrongful discharge claim only. However, the Court of appeals disagreed with this holding and emphasized the fact that: “nothing about the ADAAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions. Because Plaintiff alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment ‘substantially limited’ his ability to walk.”