Ninth Circuit Dodges the Question of Whether Morbid Obesity is an “Impairment” Under the ADA; EEOC Says Yes
On August 20, 2019, the Ninth Circuit dodged answering the question of whether morbid obesity is a disability under the Americans with Disabilities Act. In Valtierra v. Medtronic Inc., No. 17-15282, the Ninth Circuit affirmed the District Court’s grant of summary judgment in favor of the defendant, but came short of joining the Second, Sixth, Seventh and Eighth Circuits in explicitly holding that obesity cannot constitute a disability under applicable EEOC regulations unless there is evidence that the obesity is caused by an underlying physiological condition.
Jose Valtierra was employed as a facility maintenance technician for Medtronic. In his position, Valtierra was responsible for repairing and maintaining manufacturing equipment. At all times during his employment, Valtierra was morbidly obese. His supervisor noticed that Valtierra was having difficulty walking and using the stairs. Concerned about whether Valtierra was able to perform his job functions, his supervisor reviewed the company’s computer systems to verify whether Valtierra had been completing his assignments. The company’s computer system reflected that Valtierra had completed 12 assignments even though he was on vacation. When confronted about the issue, Valtierra admitted that he had not performed the work, but instead intended to do so when he returned from vacation. Medtronic terminated Valtierra’s employment for falsification of records and Valtierra filed suit, claiming that he was unlawfully terminated because of his alleged disability, obesity, in violation of the ADA.
The District Court granted summary judgment to Medtronic, finding that pursuant to the applicable EEOC regulations, “standing alone,” obesity is not a disability under the ADA unless it is caused by an underlying physiological condition. Valtierra appealed.
The EEOC submitted an amicus brief in support of Valtierra, unequivocally asserting, “[t]here can be no question that the Commission’s view that morbid obesity is an ‘impairment’ is ‘permitted’ by the terms of the ADA.” The EEOC noted that the 2008 amendments to the ADA were intended to expand the definition of disability “in favor of broad coverage,” highlighting that several federal agencies, including the FDA, IRS, and SSA, have defined obesity as a disease. It also relied upon Valtierra’s medical records, which showed that he had a number of medical issues which are often associated with obesity, including insulin resistance, bilateral leg edema, cholesterol issues, high blood pressure, sleep apnea, and joint pain. He also experienced severe pain in his right knee that was inoperable due to his obesity and which made it difficult for him to walk. As a result, the EEOC argued that morbid obesity is a physiological disorder that affects various body systems.
Further, the EEOC argued that a plaintiff need not show the cause of his medical disorder or condition so long as s/he can establish that the disorder or condition is “physiological” in nature and “affects one or more body systems.
Finally, the EEOC argued that, separately, Valtierra’s chronic knee condition was an “impairment” under the ADA and that there was sufficient evidence in the record to support a conclusion that this impairment substantially limited his major life activity of walking.
In its relatively brief opinion, the Ninth Circuit noted there was no dispute that if (emphasis on “if”) Valtierra’s condition constituted an “impairment” under the ADA, it sufficiently limited his life activities such that he would be considered disabled for purposes of the ADA. However, the Ninth Circuit never actually decided whether obesity is an “impairment” for purposes of the ADA. Rather, the Ninth Circuit punted on the issue because “even assuming that [morbid obesity] itself is an impairment, or that Valtierra suffered from a disabling knee condition that the district court could have considered,” there was no basis for concluding Valtierra was terminated for any reason other than his falsification of records.
This is certainly not the last time we will hear from the courts and the EEOC on this issue. For employers, however, the issue of whether obesity itself qualifies as a disability may be practically irrelevant. To the extent an employee with morbid obesity has a separate medical disorder or condition which constitutes an impairment under the ADA and substantially limits a major life activity (e.g., diabetes, high blood pressure, etc.), that employee may qualify as disabled under the ADA (regardless of obesity).
There is debate among employers as to whether or not being morbidly obese is considered an ADA-covered disability. Do you have to accommodate limitations that may be caused by obesity by treating it as a disability?
8th Circuit Decision - No
The U.S. 8th Circuit Court of Appeals (AK, IA, MN, MO, NE, ND, SD) refused to recognize obesity standing alone as a disability under the ADA in Morriss v. BNSF Railway (2016). BNSF prohibited the employment of people with a body mass index of 40 or higher (according the Centers for Disease Control a BMI of 30 is considered “obese”). Absent an underlying medical condition which caused the obesity, the 8th Circuit did not consider it to be a disability under the ADA/ADAA.
7th Circuit Decision - No
In Richardson vs. Chicago Transit Authority (June 2019), the 7th Circuit Court of Appeals (IL, IN, WI) took the same stance regarding obesity and the ADA: absent “a physiological disorder or condition,” obesity was not an ADA-covered condition.
Both courts evaluated the approach of the employers in the BNSF and Chicago Transit cases. Did the employers view obesity as a disability? In both instances, the courts found no information that the employers had in fact viewed it to be a disability status.
9th Circuit Disagrees
While the 2nd (CT, NY, VT), 6th (KY, MI, OH, TN), 7th, and 8th Circuits all state that obesity alone is not a disability, the 9th (AK, HI, AZ, CA, ID, MT, NV, OR, WA) Circuit has disagreed, indicating that obesity can be a disability.
Employers with staff in multiple states should be careful to check the law in their actual employee location. Additionally, employers need to be careful relating to secondary issues which can be involved with obesity. Persons with significant or morbid obesity may have other physiological conditions which may fall under the Americans with Disabilities Act such as joint issues, back problems, or diabetes which would require assessment evaluation and potentially, reasonable accommodation.
Philly’s dangerous sidewalks violate federal law protecting people with disabilities, lawsuit alleges
Four Philadelphians with disabilities and three advocacy groups are suing the city in federal court for violating the Americans with Disabilities Act and a 1977 law requiring streets be accessible to all.
The plaintiffs, which includes Liberty Resources, Disabled in Action of Pennsylvania, Inc., and Philadelphia ADAPT, claim city walkways are “dilapidated, disintegrating, and teeming with obstructions, making everyday travel difficult and dangerous for the estimated 186,000 people with disabilities that call Philadelphia home.”
- Hirschbach Motor Lines, a national trucking company, has agreed to pay $40,000 to settle allegations that it improperly discriminated against three job applicants by requiring them to take a back assessment that required them, among other things, to balance and stand on one leg, touch their toes while standing on one leg and crawl.
- The U.S. Equal Employment Opportunity Commission (EEOC) sued the company for alleged violations of the Americans with Disabilities Act (ADA). The EEOC said the back assessment was used to screen out job candidates with pre-existing injuries or conditions who had received conditional offers of employment, even though they had received Department of Transportation medical certifications that authorized them to drive trucks.
- As part of the settlement, in addition to the monetary relief, Hirschbach will use a narrower range of physical tests going forward and will discontinue its 100%-healed policy. Hirschbach will also create a reasonable accommodation policy and provide training on it, as well as report semi-annually to the EEOC on its compliance efforts.
The EEOC has said that an employer will violate the ADA if it requires an employee with a disability to have no medical restrictions — to be "100%" healed or recovered — if the employee can perform his or her job with or without reasonable accommodation, unless the employer can show that providing the needed accommodations would cause an undue hardship.
Similarly, according to the EEOC, an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but is unable to show that the person is a "direct threat," meaning that the person poses a "significant risk of substantial harm" to self or others. If an employee's disability does pose a direct threat, an employer must consider whether reasonable accommodation will remove or reduce the threat, the EEOC said.
There are limits to how far an employer must go to accommodate a worker's disability. The 5th U.S. Circuit Court of Appeals recently ruled that UPS did not have to create a new position for a worker returning from surgery. The worker was not a "qualified individual" under the ADA because his numerous restrictions, including cognitive limitations, precluded him from performing the core requirements of his job.
- The U.S. Equal Employment Opportunity Commission (EEOC) chargedChristus St. Vincent Regional Medical Center in Santa Fe, New Mexico, with violating the Americans with Disabilities Act (ADA) in a lawsuit alleging it harassed, discriminated and retaliated against a deaf laboratory technician.
- During her training, the technician's supervisor repeatedly yelled at her, "I've already told you how to do that once," EEOC said.
- The technician was fired for "not getting trained fast enough" and in retaliation for both reporting discriminatory conduct and also her disability and requests for accommodation, EEOC said.
The ADA prohibits employers from discriminating against workers and applicants with many types of disabilities, including deafness or hearing impairments. It also requires employers to provide workers with disabilities reasonable accommodations that enable them to perform the essential functions of their jobs, unless those accommodations would pose undue hardship to an employer. The cost of ignoring this law is high: Safeway recently paid $75,000 to settle an EEOC lawsuit alleging it violated the ADA by failing to provide an interpreter for a deaf applicant.
The law compels employers to install compliant protocols and procedures in the workplace, but even the most robust compliance policies may not make an environment totally inclusive to workers with hearing impairments. A recent study revealed almost all Americans would recommend a deaf individual for a job, but only 30% of workers believe that a person who is deaf could perform respondents' own jobs equally as well as the respondent could, or better. The same survey showed less than half of those polled would absolutely vote for a presidential candidate who was deaf, even if their beliefs aligned.
Workplaces may want to provide some training to employees — especially those with managerial roles — that educates them on interacting with deaf people in a respectful way. When getting the attention of a colleague who is deaf or hard of hearing, hearing workers should tap the person on the shoulder, look them in the eye and speak clearly, experts previously told HR Dive. And if the person works with an interpreter, the worker should speak to the person, not the interpreter.
- Blood Bank of Hawaii has agreed to pay $175,000 to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).
- The non-profit blood collection company required employees to return to work without limitation at the end of the 12 weeks allowed under the Family and Medical Leave Act (FMLA), the EEOC says. It also allegedly fired employees who had exhausted leave under the FMLA but needed more time, or who were unable to return to work without restrictions, in violation of the Americans with Disabilities Act (ADA).
- Under a two-year consent decree, the organization agreed to retain an EEO consultant, designate an in-house ADA coordinator, revise and distribute its ADA policy, provide training, and provide a log for accommodation requests under the ADA. "We continue to see employers not properly engaging in the interactive process," regional attorney for the EEOC's Los Angeles District, Anna Park, said in an EEOC statement announcing the settlement.
Addressing inflexible leave policies that discriminate against individuals with disabilities is one the priorities identified in the EEOC's current Strategic Enforcement Plan.
When an employee has exhausted the leave the employer provides as a benefit, including leave exhausted under a workers' compensation program, FMLA, or state or local laws, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, so long as it does not create an undue hardship for the employer, the EEOC says in Employer-Provided Leave and the Americans with Disabilities Act.
Several employers have been taken to court over inflexible leave policies. In a lawsuit filed late last month, the EEOC alleged one of the largest tank truck carriers in the United States violated federal law when it applied an inflexible leave policy to fire two employees with disabilities who had exhausted their medical leave. Similarly, employees sued United Airlines earlier this year, claiming that United violated the ADA with its 100% healed return-to-work policy.
Employers are expected to engage in an interactive, good-faith process to determine worker accommodations. Communication is key, and it may take some back-and-forth for employers and employees to arrive at an effective accommodation. The 7th U.S. Circuit of Appeals complicated the question of leave as an accommodation, however, stating in Severson v. Heartland Woodcraft, Inc. that "a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA."
Regardless, experts have said that employers are still required to engage in the good-fath process. An employer can show its good faith in many ways, including meeting with the employee; requesting information about the employee’s conditions and limitations; asking the employee what accommodation is desired; showing some signs of having considered the request; and offering and discussing available alternatives if the request is overly burdensome.
In Pena v. Honeywell International, Inc., issued on July 22, 2019, the U.S. Court of Appeals for the First Circuit denied a former employee’s petition for rehearing en banc of the court’s April 26, 2019, decision addressing whether her inconsistent statements on her Social Security Disability Insurance (SSDI) benefits application and complaint precluded her from bringing a claim pursuant to the Americans with Disabilities Act (ADA). Specifically, in applying for SSDI benefits, Pena, the former employee, had consistently asserted that she was totally disabled as of the last date she worked at Honeywell. However, in her complaint against Honeywell, Pena alleged that she was a qualified individual with a disability and thus able to perform the essential functions of the job, with or without an accommodation. Because Pena failed to explain these inconsistencies, the court held that her ADA claims against Honeywell were precluded by the doctrine of judicial estoppel.
Honeywell determined that all of its production and assembly-line employees should be cross-trained in various departments. Pena, who regularly worked in the respiratory department, was thereafter required to cross-train in the molding department, among other areas of the facility. Prior to and after Honeywell’s decision to have employees cross-train, Pena took several medical leaves due to her depression and anxiety. After the decision, she began working in the molding department for several hours a week, and spent the remainder of her time working in the respiratory department. Shortly thereafter, Pena complained that working in the molding department was “harmful to [her] emotionally.” She also provided a doctor’s note stating that Pena had reported that working in the molding room had exacerbated her anxiety. Without more information, Honeywell was unable to substantiate Pena’s complaint and informed her that if she refused to work in the molding department, she would have to go home. On March 8, 2013, Pena left work and never returned.
After she left work, Pena clarified that the “noise, speed, and overall environment [of the molding department] gives [her] anxiety, palpitations.” The company thereafter exchanged multiple correspondences with her attorney and received several notes from her doctor explaining, among other things, that the “noise levels, chemical odors, and the presence of robotics” in the molding department made it particularly stressful for Pena. On May 22, 2013, Honeywell wrote to Pena’s attorney again stating that her doctor’s notes did not explain the connection between her medical diagnosis and her ability to work in the molding department, given that the items identified by her doctor were also true of working conditions in other departments, including the respiratory department where Pena regularly worked. The letter also explained that the respiratory department would remain Pena’s primary department, but that all employees would be rotating among all areas of the facility, not just the molding department. Moreover, the rotations would be “as brief as 15 minutes, or as long as one week.” Pena’s attorney did not respond to this letter.
On June 17, 2013, after Pena had been absent for more than three months and used all of her medical leave, the company terminated her due to job abandonment. Approximately two months later, she applied for SSDI benefits. On her application, she claimed that she was totally disabled as of the last date that she worked at Honeywell by stating, “I became unable to work because of my disabling condition on March 8, 2013,” and “I am still disabled.”
The Court’s Analysis
On April 16, 2015, Pena filed a complaint in Rhode Island Superior Court (the civil action was subsequently removed to the U.S. District Court for the District of Rhode Island) alleging that the company had violated the ADA and state law. The district court granted the company’s motion for summary judgment, holding that Pena’s claims were precluded by judicial estoppel due to her inconsistent statements on her SSDI application. The doctrine of judicial estoppel prevents a party from taking a position in one proceeding that contradicts the position it took in an earlier proceeding. Pena appealed the district court’s decision to the First Circuit, arguing that being disabled under the ADA is distinguishable from being disabled for the purpose of qualifying for SSDI benefits, as the ADA considers reasonable accommodations. On April 26, 2019, the First Circuit affirmed the district court’s decision, noting that Pena had provided “no qualification of any sort to her statement that she was totally disabled as of March 8, 2013.” (Pena v. Honeywell International, Inc., 923 F.3d 18 (1st Cir. 2019)). Specifically, at her deposition, Pena had failed to explain the discrepancies between her claims made in the ADA litigation and in her SSDI application, and instead reinforced the discrepancies. Additionally, Pena subsequently submitted a self-serving affidavit in an attempt to minimize her deposition testimony. The court declined to consider the affidavit, as it was an improper method of creating a genuine issue of a material fact.
Pena filed a petition for rehearing en banc with the First Circuit, which the court denied for the aforementioned reasons.
The court expressly stated that its order denying the petition for rehearing en banc “does not foreclose different successful SSDI beneficiaries from filing ADA claims, provided they reconcile any differences in their positions …” (emphasis added). The court’s decision highlights the importance of obtaining all documents and evidence related to a plaintiff’s statements, correspondence, disability applications, etc., to determine if the plaintiff has made inconsistent assertions regarding his or her disability. At the same time, employers are wise to engage in the interactive process with employees who have applied for SSDI benefits regardless of statements made on their SSDI applications, as they may be entitled to bring ADA claims if they can adequately explain discrepancies during ensuing litigation.
In early 2018, Minnesota federal courts issued two decisions dismissing so-called “drive-by” disability access lawsuits under Title III of the Americans with Disabilities Act (ADA). That trend has continued in 2019. In fact, in just the past two months, courts in Minnesota have dismissed, in whole or in part, no fewer than six Title III cases, again reminding business owners that liability is far from automatic in these lawsuits.
“Drive-by” lawsuits are so named for a suspected practice of plaintiffs or lawyers allegedly driving by businesses to spot visible ADA-access violations without any real intent to patronize those businesses. Finding a perceived violation, the plaintiff files suit, claiming he or she was unable to patronize the business due to the alleged violation. These cases often settle quickly because the defendants wish to avoid the associated legal expenses that can easily surpass the plaintiffs’ settlement demands. But these recent decisions provide helpful guidance for those business owners who decide to defend Title III cases rather than quickly settling them.
Minnesota’s Six Title III Cases
First, on July 18, 2019, the U.S. District Court for the District of Minnesota granted summary judgment based on the doctrine of standing, dismissing a Title III case. In Dalton v. Simonson Station Stores, Inc., the plaintiff alleged that the defendant, a service station and convenience store in Alexandria, Minnesota, lacked an accessible entry and accessible parking spaces. Because the plaintiff sought injunctive relief, he needed to demonstrate the threat of an ongoing future injury to establish that he had standing to sue—that is, he had to show that he intended to return to the defendant’s establishment, where he would encounter the same issues. The court found no such evidence, however, because the plaintiff lived more than 100 miles from the service station, had never visited the station in the past, had only vague plans to return there in the future, and failed to establish that he traveled to the area with any frequency.
The next day, the district court dismissed part of another Title III case, Hillesheim v. Morris-Walkers, Ltd., based on the doctrine of collateral estoppel. In this case, the plaintiff sued a restaurant in Belle Plaine, Minnesota, asserting numerous ADA violations. However, his lawyer had previously, but unsuccessfully, asserted one of those same violations against the restaurant in an earlier case, on behalf of another plaintiff. Therefore, in this second case, the court found that the plaintiff could not assert the same claim, based on collateral estoppel. In addition, while the plaintiff’s other ADA claims survived, for now, the court dismissed the plaintiff’s corresponding claims under the Minnesota Human Rights Act, because the plaintiff failed to provide pre-suit notice as required under that state law.
Next, on July 22, 2019, the district court dismissed a Title III case, based on another defense: that the required remediation was not “readily achievable.” In Smith v. Golden China of Red Wing, Inc., the plaintiff claimed that a restaurant in Red Wing, Minnesota, lacked the accessible parking spaces required under the ADA. The restaurant claimed that compliance was not readily achievable and, therefore, was not required under the ADA. The restaurant was a small business with only two employees, and the remediation would have cost between $29,000 and $39,000, which would have put the restaurant out of business. The court agreed that under these facts, remediation was not readily achievable, rejecting the plaintiff’s counterarguments that to pay for the work, the restaurant could mortgage its property, obtain tax incentives, spread the cost over time, or stop paying its owner’s salary, and that the company must have had funds since it was paying legal fees to defend the lawsuit.
The Eighth Circuit Court of Appeals weighed in on Title III on July 31, 2019, in Dalton v. NPC International, Inc., in which Ogletree Deakins shareholder Thomas L. Henderson represented the defendant. In Dalton, the plaintiff sued a restaurant franchisee in Fergus Falls, Minnesota, alleging that the restaurant’s parking lot lacked appropriate access aisles. The restaurant immediately corrected the problem and moved to dismiss the case on the grounds that it was moot. The plaintiff then amended his complaint to add three new alleged violations. The district court dismissed the lawsuit, as we reported in 2018, and the court of appeals has now affirmed that dismissal. The appellate court held that the original claims had become moot, because, after the defendant’s permanent remediation of the parking lot, the plaintiff could not show that those alleged violations were likely to recur. The court also affirmed the dismissal of the newly added claims, on the grounds that the plaintiff lacked standing—that is, he had not suffered any injury because he had not actually encountered those alleged violations when he patronized the restaurant.
Next, on August 13, 2019, the U.S. District Court for the District of Minnesota dismissed another Title III lawsuit, again relying on both mootness and standing to reach its decision. In Dalton v. JJSC Properties, LLC, the plaintiff got lost while driving in St. Paul, Minnesota, pulled into a gas station to look at an online map, and noticed that the station did not have proper signage or markings for accessible parking. When he filed suit, the defendant immediately added the required signage and, when weather permitted, painted the parking lot surface. The court ruled that the lack of any prior complaints about the gas station, its swift remediation of the alleged violations, and its assurances that it would continue to comply in the future rendered the plaintiff’s claims moot. In response to defendant’s dismissal motion, however, the plaintiff argued that the parking lot was also impermissibly sloped and that there was no accessible route from the parking space to the gas station’s exterior restroom. While those new claims were not moot, the court held that the plaintiff lacked standing to assert them because he had not specifically identified those alleged violations in his complaint and he had not encountered, and had no knowledge of, the issues when he filed suit.
Finally, on August 15, 2019, a Minnesota state district court joined the fray. In Boitnott v. Latuff Bros. Inc., the plaintiff asserted that architectural barriers prevented him from patronizing the defendant’s autobody shop in St. Paul. In an earlier decision, the Ramsey County District Court had dismissed several counts of the lawsuit on the ground that the defendant’s remediation had rendered those claims moot. This new decision arose from the defendant’s second motion for summary judgment, in which it argued that the plaintiff lacked standing as to the remaining counts because he could not demonstrate a “real and immediate threat of future injury” arising from the defendant’s violations. Although the plaintiff lived near the defendant’s business, he had never been to the body shop before, and he presented no evidence that he was frequently in the neighborhood. Moreover, he testified in his deposition that he had no plans to return to the body shop. Therefore, the court agreed that he did not have standing to assert those remaining claims.
While these cases were decided on several different bases, together with prior cases they demonstrate that many defenses are available in ADA “drive-by” lawsuits and that Minnesota courts are receptive to those defenses. Therefore, businesses facing such lawsuits may want to evaluate these and other potential defenses to determine the best strategy for responding to such claims.
CUNA, Leagues and credit unions achieved their third victory at the appellate level Tuesday as the Sixth Circuit Court of Appeals dismissed a frivolous lawsuit alleging website noncompliance with the Americans with Disabilities Act (ADA). CUNA and the Michigan Credit Union League (MCUL) filed an amicus brief in support of the two credit unions in the lawsuit, Aeroquip CU and Belle River Community CU.
Credit unions around the country have been hit with similar suits alleging violations of the ADA, however the statute does not contain specific website accessibility guidelines.
“We’re grateful that another appellate-level court has dismissed this latest lawsuit designed to exploit a law that protects disabled Americans,” said CUNA President/CEO Jim Nussle. “These outcomes in the courts are encouraging, and CUNA will continue its engagement with policymakers and regulators to secure much-needed clarity on how credit unions can protect themselves from similar legal actions while ensuring website accessibility.”
The Seventh Circuit Court of Appeals ruled in favor of an Illinois credit union in July, and the Fourth Circuit Court of Appeals made a similar ruling in January. These decisions set precedent in their respective circuits.
“We are thrilled that the Sixth Circuit has now joined with the Fourth and Seventh Circuit this morning when it reversed a Michigan federal court’s refusal to dismiss two cases brought by the same plaintiff,” said MCUL President/CEO Dave Adams. “MCUL, along with CUNA, worked to help Aeroquip and Belle River Community Credit Unions when it was clear that the plaintiff had brought lawsuits without any legal merit. We are committed to working to support credit unions from baseless claims by plaintiff law firms seeking to harass and make money on cases that lack any support in law or fact. We see this decision as a victory for Michigan credit unions as well as all credit unions nationally.”
CUNA attended arguments in the case in Cincinnati earlier this month with the Ohio Credit Union League.
CUNA’s efforts to find a solution include meetings and communications with the Department of Justice and CUNA/League engagement with policymakers resulting in both members of the House and Senate, as well as 19 state attorneys general, writing to the Department of Justice calling for a solution.