ADA in the News: March 12, 2018

Easy disability accommodation? Just do it!

Business Management Daily

Sometimes, it makes sense to simply agree to a disability accommodations request that sounds low-cost, easy to implement and convenient. You don’t necessarily have to spend a lot of time determining the extent of the claimed disability or whether the employee requires an accommodation at all.

Instead of risking a lawsuit, it may be best to just go ahead and provide the accommodation.

Case in point: The EEOC recently settled with a small employer in San Diego. A marketing company called InsideUp employed a consultant who said he suffered from chronic obstructive pulmonary disease, emphysema and asthma. As a reasonable accommodation, he asked to work on the ground floor of the company’s office building, which didn’t have an elevator. That way, he wouldn’t have to walk up and down the stairs.

Instead of making the easy accommodation, the company terminated the man. He promptly went to the EEOC, which filed a lawsuit on his behalf.

InsideUp quickly saw the downside of fighting it out in court. It agreed to settle the case by paying the employee $10,500.

But the company will have to do more than fork over the cash. It must also train all employees on their obligations under the ADA, revise its policies to make clear that reasonable accommodations are available, centrally track accommodation requests and regularly report back to the EEOC on all accommodation requests and how they were resolved.

Advice: Train every supervisor at every level on the ADA and the reasonable accommodation process. Make sure they understand they must pass along all accommodations requests to HR as soon as the employee raises the issue. Track all accommodation requests. Make quick work of instituting the interactive accommodations process, with the goal of implementing reasonable accommodations as soon as possible.

And if there is an easy way to accommodate a disability, just do it.

Obesity “Regarded As” Disability Under ADA

The National Law Review

On March 5, 2018, in a decision styled Shell v. Burlington Northern Santa Fe Railway Company, Case No. 15-cv-11040 (N.D. Ill. Mar. 5, 2018), the U.S. District Court for the Northern District of Illinois suggested liability could attach where an employer regarded an obese individual as disabled, in violation of the Americans with Disabilities Act, as amended (“ADA”).

As previously reported in this blog, courts have held that obesity is not a disability under the ADA.  To qualify as a disability, a physical or mental impairment must substantially limit a major life activity. However, the Equal Employment Opportunity Commission has issued interpretive guidance providing physical characteristics, such as weight, do not qualify as disabilities unless they are (a) outside of a “normal” range and (b) result from a physiological disorder.

In this case, BNSF Railway (“BNSF”) maintained a policy prohibiting employees with a body mass index (“BMI”) over 40 from holding safety-sensitive positions based on its belief that such individuals are at a substantially higher risk of developing medical conditions that “can manifest as a sudden incapacitation or a serious impairment of alertness or cognitive ability.”  Ronald Shell applied for the position of the intermodal equipment operator, a job category that BNSF classified as safety-sensitive because it involves using heavy equipment.  However, a post-offer physical established that Shell’s BMI was 47.5 and his conditional job offer was withdrawn.  Shell filed suit, alleging discrimination under the ADA, and BNSF moved for summary judgment.

In support of its Motion for Summary Judgment, BNSF argued that Shell was not protected by the ADA because obesity -- by itself -- is not a disability.  The Court acknowledged controlling precedent on this point and further found that BNSF did not regard obesity as a disability.  However, the Court pointed to the fact that BNSF’s policy is based on concerns that someone with a BMI over 40 “would develop sleep apnea, diabetes, or heart disease” and become incapacitated.  All of these conditions, the Court noted, are disabilities.  As a result, the Court held that BNSF was “acting based upon an anticipated worst case scenario derived from precisely the sort of myth, fear, or stereotype which the ADA is meant to guard against,” and denied summary judgment under the “regarded as” prong of the ADA. 

While this issue is likely to receive additional consideration from the appellate courts, in the meantime employers should continue to use caution when dealing with employment issues related to obesity. 

Shell v. Burlington Northern Santa Fe Railway Company, Case No. 15-cv-11040 (N.D. Ill. Mar. 5, 2018).

Obesity as Perceived Disability

JD Supra

I recently did a blog about obesity as a disability under the Wisconsin Fair Employment Act.  I concluded that the condition of obesity did not automatically constitute a disability although courts could find that an employer discriminated against an obese person if it perceived the person to be adversely impacted by the obese condition and unable to perform a major life function such as working.  A recent decision from the Northern District of Illinois Federal Court acknowledged this very consideration.

What Others Say: Sensible reform needed to fix nation's ADA


The Americans with Disabilities Act Education and Reform Act of 2017 is a vital opportunity to advance the mission of the ADA while protecting business owners from costly lawsuits.

Since 1990, the ADA has served an important purpose by expanding access for disabled Americans to public places. Unfortunately, the law has all too often been abused, with serial litigants taking advantage of the law to file lawsuits purely for monetary gain. For instance, one serial litigant here in California has filed 2,000 lawsuits in federal court since 2004.

Every year, thousands of lawsuits are filed in federal invoking, in particular, Title III of the ADA which, as the Justice Department explains, “prohibits discrimination on the basis of disability in the activities of places of public accommodations.” Examples of places of public accommodations include businesses, restaurants, movie theaters and doctors’ offices, locations that are generally open to the public.

Under the ADA, people who believe they are being denied access in places of public accommodation due to architectural barriers are allowed to file a lawsuit.

Telework, Pregnancy, and the Employment Law Bermuda Triangle


As technology improves, more and more employees and job applicants want to telework from home or another location. Organizations have many legitimate business reasons to grant or deny such a request. But an employer's obligations are harder to sort out when the employee requesting telework is pregnant.

It was just this type of request that recently landed Memphis Light, Gas & Water Division in court. One of its in-house attorneys was placed on bedrest by her doctor for 10 weeks during her pregnancy. The attorney asked to telework for the time she was on bedrest; the company said no. A jury found that the denial violated the employee's right to a reasonable accommodation, and the Sixth Circuit affirmed.

Solano County hosts resource fair and website launch for people with disabilities

Vallejo Times Herald

A Disabilities Resource Fair is planned for next week in Solano County, in observance of Developmental Disabilities Awareness Month, county officials announced.

Solano County Health and Social Services, in partnership with the DisABILITY Planning Group, will host the event from 10:30 a.m. to 1 p.m. on Thursday at the County Events Center, 601 Texas Street in Fairfield. This event is free and open to the public, they said.

At the resource fair, the County will unveil the – Disabilities website, an online hub of resources, services, health topics and events designed specifically for Solano residents with disabilities.

United States: eLABORate: Opioid User Loses Disability Discrimination Lawsuit For Failure To Engage In Interactive Process With Employer

Mondaq News Alerts

The Americans with Disabilities Act ("ADA") requires employers to engage in an interactive process with employees to reasonably accommodate a disability. A federal court in Ohio has highlighted, through a dismissal of a lawsuit filed by an employee who used opioids in the workplace, the fact that the duty to engage in the process applies equally to employees as well. Sloan v. Repacorp, Inc., 3:16-cv-00161 (S.D. Ohio Feb. 27, 2018).

NBA, NBPA taking steps to further address mental wellness issues for players

The mental wellness program -- the product of almost a year of discussions between the league and union that began as the sides were working out the new Collective Bargaining Agreement -- will allow players to seek treatment and counseling outside of the framework of their individual teams, if they want. Existing team physicians and other resources will still be available to them, too.

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