A real life example of the difference between the old ADA and the amended ADA

Two years after Mantych Metalworking hired Dan Wallace, he suffered a heart attack. He also had a history of back problems. Five years later, Mantych fired him, and he claimed disability discrimination. In Wallace v. Mantych Metalworking (Ohio Ct. App. 8/13/2010) [pdf] the court of appeals concluded that Wallace’s medical problems did not rise to the level of a disability worth of protection from discrimination:

Wallace presented sufficient evidence of back trouble—surgery and rehabilitation—to establish that he had a physiological condition affecting his musculoskelatal system. Also, the evidence shows that Wallace had a heart attack and heart-bypass surgery, evidence that is adequate to establish that he had heart disease. But whether these physical impairments substantially limited one of his major life activities is less clear.

The evidence of the major life activities that Wallace’s impairments affected is composed only of conclusory statements. Wallace’s affidavit states that “[a]s a result of my heart attack … I suffered from shortness of breath,” … and that he had an “impaired ability to work long hours because of shortness of breath, dizziness (standing), [and] muscle cramps (walking).” … The evidence therefore, while establishing that Wallace had physical impairments, does not establish that the physical impairments substantially limited one of Wallace’s major life activities.

This result seems reasonable. Wallace was not “disabled” because his medical conditions, while real, did not have much of an effect on his day-to-day activities. Yet, under the ADA Amendments Act, this issue would likely have a different result. Under the ADAAA, major life activities do not only include day-to-day activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, but they also include the operation of a major bodily functions, including the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Under the current iteration of the ADA, a heart attack, which affects the circulatory system and caused Wallace shortness of breath, would likely qualify as a disability.

Under the ADAAA, almost every medical condition will qualify as a disability. The focus in disability discrimination cases has shifted from whether an employee is legally “disabled” to whether they are “qualified” (whether they can perform the essential functions of the job with or without reasonable accommodation), and whether the employer reasonably accommodated the disability.

Yet, as the concurring opinion in Wallace aptly pointed out, Wallace still loses this case on the issue of whether he was a “qualified individual with a disability”:

Even if Wallace’s adverse health conditions were to constitute a disability, Wallace would also have to prove that he could safely and substantially perform the essential functions of the job in question in order to prove his disability claim against Mantych…. The hours of work an employer requires of an employee, unless otherwise limited by law or by contract, are functions of the job which are as essential to its performance as is the employee’s ability to perform the particular tasks the job involves. It is undisputed that Wallace is unable, due to his adverse health conditions, to work the number of hours per week that Mantych requires. There is no evidence that Mantych had agreed to allow Wallace to work the reduced number of hours per week to which his health condition now limits him. Therefore, Wallace cannot prove that he can substantially perform the essential functions of the job from which he was discharged, preventing a judgment against Mantych on Wallace’s claim for disability discrimination.

The result of this case may be the same under the ADA and the ADAAA, but the route to that outcome is very different. The fact that an employee such as Dan Wallace might qualify as disabled means that his employer must engage in the interactive process, determine an appropriate reasonable accommodation, and make that accommodation work. In other words, employers must be more attuned to employees’ medical conditions, because more employees will qualify for protection under the ADA. Because the ADA is partly a proactive statute, this increased coverage imposes increased responsibilities that employers ignore at their own risk.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #139 (bald is beautiful edition)

At 37, I’m pretty comfortable in my baldness. I’m not sure if it was Michael Jordan, or finding me wife, who loves me for me, bald head and all. One great thing about being bald is that I never have to pay for a haircut—it’s just me and my Gillette a couple times a week. And now, at least according to Adria Martinelli at the Delaware Employment Law Blog, my baldness may protect me under the Genetic Information Nondiscrimination Act. Finally, a discrimination law I can support 100%.

Here’s the rest of what I read this week:

Mark Hurd

• Mark Hurd, HP, Man Gene and Faux Ethics – from The Word on Employment Law with John Phillips

• Will Baggage Stop Former HP CEO, Mark Hurd from Future Employment? – from Nick Fishman at the employeescreenIQ Blog

• The Curious Case of Mark Hurd: Would you Fire a CEO Over Expenses? – from TLNT

• On HP's Mark Hurd: “Assholes Sometimes Get Their Due” – from Bob Sutton

• HP CEO resigned amidst sexual harassment allegations – from Boy Genius Report

• HP and the HR Pro: Watch the Agendas, People – from The HR Capitalist

Discrimination

• Research: Employment Discrimination Cases Often Result in Only Small Victories for Some Employees – from Dan Schwartz’s Connecticut Employment Law Blog

• Cautionary Comments as the ADA Nears Adulthood – from Michael Fox’s Jottings By An Employer's Lawyer

• “Preferences” and the ADAAA – from Workplace Prof Blog

• In Ugly Economy, Age Bias Claims Are a Tough Sell – from Law.com

• Seventh Circuit Holds Nursing Home Violated Title VII In Accommodating Resident’s “White-Only” Request – from Hunton Employment & Labor Law Perspectives™

• Do You Need to Know How Much Your Employees Weigh? – from Frank Roche’s KnowHR Blog

• Was overweight worker a victim of disability discrimination? – from Stephen Meyer’s HR Cafe

• Plain Dealer music critic lost age discrimination lawsuit – from Sindy Warren at the Warren & Hays Employment Law Blog

Litigation

• Lawsuit of the Day: Has Donald Duck Been Unfairly Accused? – from Abovethelaw.com

• When an Apology is a Discovery Response – from Katherine Gallo’s Resolving Discovery Disputes

• Can an apology help to prevent and settle employment litigation? – from David Yamada’s Minding the Workplace

• I Want to Sue the Pants off the Blankety Blank!! – from Teri Rasmussen’s Ohio Practical Business Law

Wage & Hour

• I’m Exempt: Can My Employer Deduct PTO for Doctor’s Appointments? – from Evil HR Lady

• WARNING: Outside Sales Representatives May Not Be Exempt From Overtime Pay – from Wyatt Employment Law Report

• Facts Make the Difference in Misclassification Cases – from Texas Employment Law Update

• Portrait of an Exempt Computer Employee – from Overtime Advisor

• Impact of Healthcare Reform on Business – from Rush Nigut’s Rush on Business

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

More on pregnancy as a disability

The more I think about yesterday’s post discussing Spees v. James Marine, Inc.—which held that pregnancy-related impairments that are not part of a “normal” pregnancy can qualify an an ADA impairment—the more troubled I am about the court’s decision.

The claim in Spees was a “regarded as disabled” claim. Heather Spees claimed her employer transferred her away from her welding duties because it perceived her at risk because of a history of miscarriages. Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of 6 months or less.” Pregnancy, by its very nature, is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

There, now I feel much better.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Pregnant = disabled, at least according to the 6th Circuit

The Americans with Disabilities Act expressly excludes pregnancy as a disability. Or at least that’s what it says, and what I’ve always believed to be true. Yesterday, the 6th Circuit decided Spees v. James Marine, Inc. [pdf], which will turn the notion of pregnancy as an ADA-protected disability on its head.

Heather Spees was a welder-trainee with JMI. Shortly after her hire, she learned she was pregnant. Her prior pregnancy ended in a miscarriage. Spees talked to her brother who was also a JMI foreman, her own foreman, and her obstetrician who originally cleared her for work without restrictions. Spees’s foreman, however, told her to revisit her doctor and get a note for light duty. He thereafter assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.” Apparently, Spees’s brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees. When another doctor later ordered Spees to full bed-rest, JMI terminated her employment for excessive absences. According to Spees, her brother told her that she “was being fired for being pregnant.”

The 6th Circuit resurrected Spees’s “regarded as” disabled claim. Although it recognized that pregancy, in and of itself, does not qualify as a disability, the court concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify an an “impairment” under the ADA:

Our first step in evaluating Spees’s ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such…. 

Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition…. 

Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.

The 6th Circuit appears to be breaking new ground again in the expansion of employees’ rights under federal discrimination laws. This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with those who are pregnant to avoid any knowledge of pregnancy-related complications or conditions.

Do you know? What triggers the duty of reasonable accommodation?

Suppose an employee suffers from sleep apnea, which keeps the employee awake for periods of time at night. In fact, the employee’s nighttime sleep patterns are interrupted to the point that the employee is excessively tired during the work day.

Two weeks after being hired as a manager, the employee falls asleep during a meeting. When questioned, he mentions that he has sleep apnea, but blames the nap on the warmness of his room coupled with his jacket and tie. The employee would repeat his workplace naps numerous times over the next year, and when questioned he would merely state that he had a rough night. He never asked for an accommodation of his sleep apnea, nor indicated that sleep apnea was
interfering with his job. This pattern continued for 18 months.

Finally, the employee’s supervisor catches him sleeping at his desk in the middle of the work day. When it took her more than five minutes to roust him, she told him that he could resign his employment or be terminated. The employee claims that he said that he had sleep apnea which causes him to involuntarily fall asleep, although he never requested any type of accommodation. In his resignation letter, he stated that he was disappointed that his employer was unable to accommodate his medical condition.

These are the facts of Medlin v. Springfield Metro. Hous. Auth. (Ohio App. 8/6/10) [pdf], a case in which Medlin sued for constructive discharge for a failure to reasonably accommodate his sleep apnea. The court of appeals upheld the dismissal of his claim because he failed to request an accommodation for his disability:

Federal courts have recognized that the duty of an employer to make a reasonable accommodation also mandates that the employer interact with an employee in a good faith effort to seek a reasonable accommodation…. To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

As noted, Medlin never asked for reasonable accommodations to accommodate sleeping on the job before being given the option to resign or be terminated. At that time, Medlin did not even suggest what a reasonable accommodation might be; he simply stated in his resignation letter that he was disappointed that SMHA was unable to accommodate his medical condition. SMHA was entitled, however, to terminate Medlin’s employment the day before, when he was found asleep in violation of company rules. There is no showing that SMHA failed to act in good faith by giving Medlin the option the following day to resign or be fired for sleeping on the job, particularly when Medlin had never asked for an accommodation. This is not a situation in which an employee was ignorant of his condition. Medlin was aware for many years that he had sleep apnea, and had ample opportunity to bring the issue of accommodation to his employer’s attention. Medlin was twice questioned about sleeping on the job, and was specifically informed that he had been observed sleeping by other employees and by board commissioners. Nonetheless, Medlin failed to ask for a reasonable accommodation for his condition.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

California court declares open season on stray workplace remarks

Traditionally, an employee cannot use stray remarks in the workplace to prove discrimination. Under the stray remarks doctrine, courts deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process. For more than 20 years employers have successfully avoided liability for crude and even discriminatory remarks made employees not involved in a decision to fire or demote, and for comments that are remote in time from the adverse employment action.

Reid v. Google [pdf]—decided last week by the California Supreme Court—has tossed this long-standing doctrine on its head. The Reid court flatly rejected the stray remarks doctrine in an age discrimination case. Briefly, Brian Reid, a former Google senior executive, claimed that the company discriminated against him because of his age when it terminated his employment. In support of this claim, he pointed to three key pieces of evidence:

1. Statements by one supervisor that Reid was slow, fuzzy, sluggish, lethargic, did not display a sense of urgency, lacked energy, and that his ideas were obsolete and too old to matter.
2. Statements by another supervisor near the time of the termination that Reid was not a good “cultural fit.”
3. Coworkers’ comments calling Reid an old man and an old fuddy-duddy, and a joke that his office placard should be an LP instead of a CD.

The court rejected a strict application of the stray remarks doctrine, concluding that it “would result in a court’s categorical exclusion of evidence even if the evidence was relevant…. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.”

One case does not make a trend. Plus, if there’s one thing I learned in law school it’s that California is legal la-la land, where white is often black and black is often white. For the sake of employers, I hope this is the case with the stray remarks doctrine. Certainly, plaintiffs all over the country will use the Reid decision to argue against summary judgment in cases in which there are stray remarks. It will bear watching to see how federal courts and states other than California react to Reid. Reid can either be an anomaly in a sea of stray remarks, or a sea change in how courts rule on summary judgment in employment cases. The latter will have a catastrophic effect on employers’ ability to defend themselves against discrimination claims. It’s hard to find a workplace in which stray remarks don’t exist. If Reid becomes doctrine, it will be hard to find a discrimination case in which an employer will be able to withstand summary judgment.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #138

Boy has it been quiet this week. Sure, the Senate confirmed Elena Kagan to a seat on the Supreme Court, but otherwise it seems like everyone (but me) are away on their summer vacations. Whether you are away or not, consider this as my tip of the week: your office desk is not a great place to stash your collection of kidding porn (c/o Above the Law)

Here's what I read during what felt like an unusually sedate week:

Discrimination

• Muslim Head Gear Ban Allowed by 3rd Circuit – from Philip Miles’s Lawffice Space

• More Men Filing Sex Discrimination Suits – from Law.com

• Fired for Cubicle Exorcism: Is That Religious Bias? – from Mindy Chapman’s Case in Point

• Customer Preference Not Justification for Discrimination – from GT LE Blog

• A Labor Market Punishment to Mothers – from Howard Bashman’s How Appealing

• ADA’s 20th Anniversary: A Contrary View – from The Word on Employment Law with John Phillips

• Getting to Work – from Charles Sullivan at the Workplace Prof Blog

Wage and Hour

• Court Rules Employee Does Not Necessarily Need to Comply with Employer’s Heightened FMLA Notice Procedure – from Texas Employment Law Update

• Disciplining FMLA Leave-Takers – from The HR Cafe

• FMLA Inclusion Act Introduced in Congress ... Again – from FMLA Insights

• Overtime Compliance Must Be Taken Seriously—Damages are Severe and Potentially Crippling for a Business – from Overtime Advisor

Technology

• Employees: If You’re Too Stupid to Set Your Facebook Privacy, You Deserve It If HR Looks – from Know HR

• Wife Says She Learned From Facebook That Her Hubby Had Another Wedding – from the ABA Journal

• I Shouldn’t Have to Tell Employees This, But I Do – from Popehat

• No Need for Panic: 10 Tips to Prevent Employee Issues with Social Media – from TLNT, the Business of HR

• Tips for creative success from Pixar – from Presentation Zen

• Blog Comments as Trial Evidence – from the Delaware Employment Law Blog

• Adobe’s Advice on Purging PDF Documents of Metadata – from Ride the Lightning

• I Tweet, Therefore I am – from Peggy Orenstein in the New York Times Magazine

• Juvenile corrections officer fired over Facebook slurs – from Chris Tye at wkyc.com

HR

• Bereavement Leave for the 21st Century – from Mike Maslanka’s Work Matters

• Leading a Good Fight: Stories and Rules – from Bob Sutton’s Work Matters

Trade Secrets and Non-Compete Litigation

• Trade Secrets of Ultimate Fighting—Stolen? – from Trade Secrets Blog

• From Trade Secrets to Newsletters, What Do Confidentiality Agreements Really Cover? – from Trade Secret/Noncompete

• Emergency! What Can an Employer Do When An Employee is Violating A Non-Compete Agreement – from Dan Schwartz's Connecticut Employment Law Blog

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.