BNSF's refusal to hire obese applicant based on fear of future impairment does not support regarded-as claim
The text of the ADA's "regarded-as" prong "plainly encompasses only current impairments, not future ones," observed the Seventh Circuit, finding it does not apply to a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. Accordingly, the appeals court reversed the denial of summary judgment to BNSF on the regarded-as claim of an applicant who was denied employment for a safety-sensitive job based on his high Body Mass Index, which the railroad believed placed him at a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease. ( Shell v Burlington Northern Santa Fe Railway Co, 7thCir, October 29, 2019, Scudder, M.)
Engineer's gender dysphoria not protected by the ADA, no showing of physical impairment
Granting Northrup Grumman's motion to dismiss a former Field Engineer's Title VII and ADA claims, a federal district court in Alabama held that the employee's gender dysphoria is not protected by the ADA. While the ADA does not explicitly list gender dysphoria in its exceptions, the statue excludes "gender identity disorders" which is synonymous with gender dysphoria. The employee's ADA claim may have survived the motion to dismiss if he could show that his gender dysphoria was the result of a physical impairment, but the employee made no such allegation. ( Doe v Northrup Grumman Systems Corporation, NDAla, October 22, 2019, Smith, L.)
Does a medical leave of absence grant an employee a free pass for pre-leave misconduct discovered during the LOA?
This question is squarely at the center of the court’s decision in Williams v. Graphic Packaging International (6th Cir. 10/31/19) [pdf]
James “Randy” Williams worked as a department manager for Graphic Packaging. In late 2014 or early 2015, Williams told his supervisor, plant manager Eddie Lee, that he had been re-diagnosed with prostate cancer. In September 2015, Williams requested time off for treatment, which the company granted from Sept. 14 through Nov. 23, 2015. During that leave, however, several of Williams’ subordinates lodged complaints against him of inappropriate treatment. The company investigated, and concluded that “Williams had been using manipulative and coercive tactics to control his employees and prevent them from communicating with upper management.” As as a result, shortly after Williams returned to work, the company fired him.
Williams sued, claiming (among other things) that firing on the heels of a return to work after cancer treatment is tantamount to disability discrimination.
The 6th Circuit court of appeals disagreed.
The evidence demonstrates that Graphic Packaging terminated Williams’s employment after receiving complaints from an employee, which were later corroborated by interviews with fellow employees, an internal investigation, and depositions from Graphic Packaging upper management, Human Resources employees, and employees who reported to Williams. The record reflects that Williams violated Graphic Packaging’s Core Values by mistreating employees both publicly and privately, limiting access to upper management, and propagating troubling and salacious rumors concerning upper management. Williams has even admitted that he committed at least some of the acts which so clearly violated Graphic Packaging’s Core Values.
No employee gets a free pass on workplace misconduct just because he or she suffers the misfortune of having cancer (or any other disability). The company concluded that the allegations against Williams (which its internal investigation corroborated, and many of which Williams himself admitted) merited termination. Those allegations included Williams telling his subordinates that he “owned” them; spreading an unsubstantiated rumor that Lee had molested his own daughter; cheating on a mandatory safety exam; and forbidding his subordinates from speaking to plant management.
Cancer and other ADA-protected disabilities are not “get out of jail free” cards for workplace misconduct. Do your due diligence, and treat the employee the same as you would have treated him or her if the disability didn’t exist. If the misconduct warrants termination, so be it. Terminate, and defend your legitimate, non-discriminatory decision. Otherwise, you risk setting a precedent that the misconduct is OK, which will make it that much more difficult to hold others accountable for that same misconduct in the future.
The Americans with Disabilities Act prohibits discrimination in employment against persons who are disabled, as well as those regarded as disabled. Last week, the Seventh Circuit Court of Appeals joined other federal courts in holding that the ADA does not prohibit discrimination on the basis of potential future disabling medical conditions.
In Shell v. Burlington Northern Santa Fe Railway Co., the plaintiff alleged that he was rejected after applying for work due to his obesity and the employer’s concerns about future medical issues relating to his weight. BNSF prohibits employees with a body mass index over 40 from working in safety-sensitive roles due to concerns over sudden incapacity based on medical conditions associated with their weight. While the plaintiff had no current disabling medical conditions, he alleged that BNSF illegally denied him the job because it regarded him as disabled.
The Seventh Circuit disagreed, overruling a lower court decision denying BNSF’s summary judgment motion. The court noted that the plaintiff did not contend that he had a current disability. He was not regarded as currently disabled because BNSF’s policy is clearly based on fears over development of medical conditions in the future. The Seventh Circuit concluded that the ADA’s anti-discrimination language does not extend to protection against concerns over development of future disabling medical conditions.
This decision raises interesting questions for employers seeking to defend employment decisions made based on concerns over an employee’s weight. If obesity itself is not considered a disability, employers could use the Seventh Circuit’s reasoning to deny employment based on critical safety issues associated with future medical conditions tied to obesity. The employer would need to be careful about not considering the employee or applicant as currently disabled and not denying employment due to fears over the impact of obesity on their medical insurance premiums. If followed by other federal courts, this decision makes it more difficult for plaintiffs to overcome adverse employment decisions tied to safety concerns associated with obesity.
October was National Disability Employment Awareness Month. It’s a time each year when disability organizations, elected officials, business experts, and journalists discuss the status of disabled people in the job market and workplace.
We generally start by taking stock of the size and shape of the disability employment gap. It’s big. According to a February 2019 disability employment report from the U.S. Department of Labor Bureau of Labor Statistics, the unemployment rate for people with disabilities actively in the job market is 8%, compared to 3.7% for people without disabilities. In a time of historically high employment, disabled Americans experience recession-level unemployment. This rate typically becomes catastrophic whenever the economy plunges.
Meanwhile, we struggle to pinpoint the most common barriers to employment for people with disabilities. Specifics vary widely from person to person and workplace to workplace. But there is almost always some combination of inadequate education and work skills training, longstanding disincentives built into disability benefits and American healthcare systems, and both formal and informal discrimination by employers.
A Boise property management company must pay more than $22,000 to a former employee after reportedly violating the Americans with Disabilities Act, the U.S. Equal Employment Opportunity Commission says.
The EEOC said it has settled an August lawsuit against Verity Property Management, Inc. for discriminating against an employee whom it did not name. The company will also “make substantial changes to settle a disability discrimination lawsuit,” the agency said in a news release.
The agency said Friday that it found in an investigation that Verity had violated the ADA when it discriminated against an employee based on disability or perceived disability.
The EEOC said Verity found an applicant for an administrative assistant position so well-qualified that the company instead offered the woman a job as a leasing agent. On her first day at work, results from a drug test showed the employee used medication prescribed to her for a medical condition. That reportedly concerned Verity officials, who worried that side effects of the medication could affect the woman’s ability to do her job. They asked her why she had not disclosed her usage of the medication, the EEOC report said.
“On her second day, Verity terminated her without further inquiry or discussion, even though she did not experience such side effects from her medication and was well able to perform her job duties,” the report said.
The $22,500 will go to the terminated employee for lost wages and compensatory damages.
“The ADA does not prohibit screening to prevent illegal drug abuse. However, a ‘drug-free’ workplace policy should not lead to denying employment opportunity to a worker lawfully using prescription medication to treat a medical condition,” said EEOC senior trial attorney May Che in the news release.
According to its website, Verity provides management services at commercial spaces and retail centers, as well as multi-family residential complexes and individually-owned properties.
The company has 23 employees in Idaho, EEOC said.
“We commend Verity, which was recently acquired by new ownership, for demonstrating its commitment to discrimination prevention under its new leadership,” said Nancy Sienko, EEOC’s Seattle field director, in the release.
In October 2019, Walmart agreed to pay $14 million to settle class action pregnancy discrimination claims brought against it. The claims asserted violations of both Title VII of the 1964 Civil Rights Act (Title VII) and the Pregnancy Discrimination Act (PDA).
A federal court must first approve the class action settlement before it takes effect. Walmart denies the allegations in the complaint.
Michael Abbondanza, owner of Riverbend Eatery in Bailey, is one step closer to figuring out whether a Florida man named Santiago Abreu actually visited his restaurant in 2015 before suing him.
On October 23, a federal judge in Colorado denied a motion to dismiss Abbondanza's lawsuit that claims Colorado and Florida lawyers engaged in a fraudulent conspiracy to file an Americans With Disabilities Act complaint on behalf of Abreu, who apparently uses a wheelchair, against Abbondanza and Riverbend. That means Abbondanza has passed the first legal hurdle in his quest to prove that the original ADA lawsuit wasn't legitimate, but was instead part of a money-making scheme, as outlined in our June 2019 cover story.