ADA in the News: February 8, 2017

Tenth ​Circuit Rejects EEOC Position on Retroactive Accommodation of Performance Issues

JD Supra

For years, the Equal Employment Opportunity Commission (EEOC) and federal courts have acknowledged that employers do not have to excuse employee disciplinary violations because the employee later attributes such conduct to a disability. For example, if an employee is caught drunk at work, the employer is not restricted from taking disciplinary action because the employee demonstrates that he or she has alcohol dependency issues. Last month, the Tenth Circuit Court of Appeals rejected an attempt by the EEOC to create a different standard for employee performance problems later claimed to have been the result of a medical condition.

In DeWitt v. Southwestern Bell Telephone Co., the employer discharged the plaintiff for a workplace violation involving excessive dropping of calls. She responded to this action by claiming that her conduct related to her diabetic condition, and requesting a retroactive accommodation by the employer to excuse the work rule violations on this basis. The employer rejected this request on the grounds that the ADA does not require accommodation of disciplinary rules violations.

The Tenth Circuit agreed, affirming dismissal of the claim. The court noted EEOC guidance and federal court precedent stating that the ADA does not mandate excusing employee conduct violations, even if the transgressions are the result of the disabling medical condition. In an amicus brief, the EEOC argued that the work rule here was really a performance metric rather than a disciplinary rule. The agency advocated a separate standard with regard to retroactive accommodation of performance problems later attributed by the employee to a disabling medical condition.

ADA ruling: Extreme cost not enough to label accommodation an ‘undue hardship’

Hr Morning

Here’s painful proof that courts don’t want to hear that you used cost as the determining factor to deny a disabled employee an accommodation under the ADA. 

Lauren Searls was a deaf nurse who was offered a job at Johns Hopkins Hospital. When she accepted the offer, Searls requested a full-time American Sign Language (ASL) interpreter as an accommodation.

‘Not enough in the budget’

The hospital looked into providing one and determined a full-time ASL interpreter would cost $120,000.

It then rescinded the job offer. It claimed the department, which Searls was to be assigned to, had “no other funds to pull from within the department.”

The hospital also claimed its “threshold is zero for interpreter costs.”

As a result, it said the accommodation would create an undue hardship.

‘Irrelevant factor’

Searls then filed an ADA lawsuit against the hospital.

She said she was being discriminated against on the basis of her disability.

Result: She won the case, and a court granted her summary judgment. Johns Hopkins could now be facing some hefty damages.

Is Morbid Obesity a disability under the ADA? Courts say No.


On 2/3/17, a federal court granted summary judgment to an employer on ADA claims, concluding that morbid obesity is not a disability under the ADA unless the employee can prove that the condition is caused by a “physiological disorder.” The court relied upon existing federal appellate court decisions in the Eighth, Sixth and Second Circuits.    Therefore, even though this employee’s morbid obesity caused him to have knee and joint problems and difficulty climbing and bending, the court concluded that he was not disabled within the meaning of the ADA or the more expansive 2008 amendments to the ADA (the ADAAA).   The case is Valtierra v. Medtronic Inc. (D. Arizona 2/3/17).

No “regarded as” disabled ADA liabilityThe court also rejected the employee’s argument that his employer “regarded him” as disabled, reasoning that an employee has to do more than allege that the employer believes that a physical condition, such as height, weight or hair color, renders the employee disabled. Rather, the employee must allege that the employer believed erroneously that the employee suffered from an “impairment” that, if it existed, would be a covered disability under the statute.

No ADA retaliation. The court also rejected the employee’s ADA retaliation claim. The court reasoned that the ADA prohibits an employer from retaliating against an employee who seeks a reasonable accommodation in good faith but concluded that there was no evidence here that the termination of employment was motivated by retaliation. The court rejected the employee’s argument that retaliation could be inferred from the temporal proximity between the employee’s request for an accommodation and his discharge (i.e., 6 months). The court said that 3 to 8 months could be a time range from which an inference of retaliation could be drawn. However, the court ultimately concluded that the employer here had set forth a legitimate nondiscriminatory reason for the termination and that the employee had presented no evidence to rebut it. In that regard, the employee was terminated after he falsely recorded that he had performed certain maintenance activity on equipment when, in fact, he had not done so because the tasks involved climbing and other activities that he could not perform safely because of his weight and associated physical limitations. He had previously requested an accommodation to be relieved of these types of tasks but, the court noted, he did not renew his request for an accommodation at this time. Rather, he falsely reported that he had performed the tasks when he had not done so.

No FMLA interference. The employee also asserted an FMLA interference claim on the ground that he had informed his employer that he needed surgery in several months. The court granted summary judgment to the employer on this claim because the employee presented no evidence that the upcoming surgery was a factor that was considered in making the decision to terminate his employment. The court emphasized that an employee can be discharged for misconduct in violation of company policies even if the employee has requested FMLA leave.

Lessons for employers. The federal courts seem to be of the view that obesity -- even morbid obesity -- is not a disability, unless an employee can prove that is caused by some underlying physiological condition. Employers should bear in mind, however, that in the past the EEOC has taken the position that morbid obesity is an ADA disability, and has brought lawsuits which have resulted in settlements with employers.   It remains to be seen whether or not the EEOC will maintain this position in the new administration.

It is also important to bear in mind that an individual who is morbidly obese may have other medical conditions and may be able to point to an underlying physiological cause for the obesity. Moreover, some state laws may protect obesity as a disabling condition. For example, clinically-diagnosed obesity is considered to be a disability under the New York State Human Rights Law and courts in New Jersey have concluded that actual or perceived morbid obesity is a protected disability under the New Jersey Law against Discrimination.

As to the FMLA interference claim, it is good news for employers that they can take appropriate disciplinary action – including termination – even if an employee has requested FMLA leave. Employers should exercise this right judiciously because, as happened here, litigation often follows such a termination of employment.

Failure to Allege Brick-And-Mortar Hurdle Dooms Website Access Suit

Bloomberg BNA

A federal judge has dismissed a lawsuit alleging that an audio equipment company’s website violated a blind person's civil rights.

Plaintiff Andres Gomez alleged that Bang & Olufsen America Inc.’s website contained various accessibility barriers and didn’t provide him with the same online shopping experience as non-disabled consumers. Gomez alleged violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §12182(a), which prohibits discrimination on the basis of disability in the full and equal enjoyment of public accommodations.

Lawsuit Alleges ADA Violations At Red Rocks

CBS Local

A lawsuit filed in federal court in December claims that the City of Denver is in violation of the Americans with Disabilities Act for the way it handles wheelchair accessible seating at Red Rocks Amphitheatre.

Because of the unique structure of the facility, wheelchairs can only access the first row of seats and the last row of seats. Out of 9,500 seats in the amphitheater, only 78 are accessible.

ADA Tension Highlighted in Return-To-Work Case

The Legal Intelligencer

Returning employees who are injured at work to their positions can leave employers navigating between "a rock and a hard place." The often ­competing interests between obligations under the Americans with Disabilities Act competing with the workers' compensation laws render most return-to-work situations a challenge. The recent decision of McGlone v. Philadelphia Gas Works, (PGW) No. ­15-3262, 2017 U.S. Dist. LEXIS 7963 (E.D. Pa. Jan. 19), illustrates what is likely a typical scenario.

United States: Sherlock: The Final Problem For Employers

Mondaq News Alerts

The series four finale of Sherlock cleverly illustrates the dangers of allowing the inmates to run the asylum. The show regularly covers behaviors that would alarm any employer, such as Sherlock abusing drugs, firing guns indoors whenever frustrated, and generally being delightfully bizarre. These oddities are some of the many reasons that Sherlock is a consultant for, rather than an employee of, the local authorities.

They also explain why Sherlock has no regular employees to speak of, unless you count his secret network of informants. This series introduces Sherlock's sister, who is comprised of equal parts evil and intellect. When she takes over the high-security facility where she has been housed for decades for being "too clever," all bets are off.

The fact that the facility's employees ignore established policies and protocols for handling this particular inmate has devastating consequences. The facility certainly could have used some advice on employee screening, training, and discipline for failure to follow procedures. It also may have wanted to invest in some serious psychological testing of any employees, though screening applicants by use of psychological tests may raise Americans with Disabilities Act (Act) concerns if the tests are used to detect mental impairments.

Such screenings also may implicate rights under state law or raise discrimination issues, depending on the types of questions asked in the test. If lawful, a psychological test should be given only after an employment offer has been extended, because a pre-offer psychological examination may constitute a prohibited pre-offer medical exam under the ADA. Regardless, I doubt any psychological screening could have prepared the facility to handle Sherlock's little sister.

Some general takeaways for employers are:

  1. Using sword-wielding clowns and bleeding portraits to frighten an individual into telling the truth is very effective, but still not acceptable behavior.
  2. Double-check that any glass walls in your facility actually have glass in them.
  3. Do not leave employees alone with highly dangerous geniuses with a particular talent for mind control.
  4. Beware of inmates–or employees–converting areas of the facility for their own personal uses.
  5. Finally, even the most seemingly complex problems can sometimes be solved with a little love.

C​urrituck to train workers on ADA after incident

The Daily Advance

Currituck County department heads and supervisors will receive training on the federal Americans with Disabilities Act, following an incident in which a disabled veteran with a service dog was denied unlimited access to a county facility.

Team 10 Investigation: Putting disability lawsuit to the test


Team 10 discovered allegations in dozens of lawsuits accusing San Diegans of not doing enough to make their business accessible to everyone.

But are people taking advantage of the law?

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