ADA in the News: August 28, 2014

Statement of Interest: S.S., et al., v. City of Springfield, Massachusetts, et al.
This Statement of Interest was filed to clarify the proper interpretation of the Title II ADA claim at issue in this case, where plaintiffs allege that children with mental health disabilities are segregated in separate buildings where, among other things, they are denied access to nearly all extracurricular activities that are available in neighborhood schools; subjected to harmful forced isolation and dangerous physical restraints; and are regularly subjected to unduly punitive responses to even minor infractions of school rules and routine disciplinary matters.  The Statement of Interest clarifies that where both the ADA and the Individuals with Disabilities Education Act (“IDEA”) are implicated (and presuming fulfillment of IDEA’s administrative exhaustion requirements), a plaintiff may opt to proceed in federal court under the ADA alone, particularly given that the ADA may require different or additional measures to avoid discrimination against children with disabilities than the measures that are required under IDEA.  Further, the Statement of Interest clarifies that the Department of Justice’s regulations at 28 C.F.R. § 35.130 directly execute the ADA’s nondiscrimination mandate and give rise to a private right of action.


Dura Automotive Wins New Trial Under ADA On Fired Workers’ Challenge to Drug Policy

Bloomberg BNA

A Tennessee auto glass manufacturer that fired production employees who tested positive for prescription drugs that potentially affect their ability to operate machines safely may not be liable under the Americans with Disabilities Act, a divided U.S. Court of Appeals for the Sixth Circuit ruled Aug. 26.

In a 2-1 decision, the Sixth Circuit reversed an $870,000 district court judgment in favor of six former employees of Dura Automotive Systems Inc., who prevailed at a jury trial on their claims the company's drug testing program violated the ADA as a medical exam and disability-related inquiry without business justification.

The Sixth Circuit majority said the district court erred by holding as a matter of law that Dura's testing program was a medical examination or disability-related inquiry under the ADA, which an employer must prove is job-related and consistent with business necessity.

Instead, the court said Dura's program wasn't intended to force employees to disclose health conditions or potential disabilities but rather to determine if an individual's drug use made it unsafe for the person to operate machinery. Dura gave employees who tested positive an opportunity to stop using such drugs but terminated those who didn't do so.

A jury on remand should resolve factual disputes about whether Dura inquired into employees' health conditions or whether the information about legal drug use gleaned from the testing program inevitably disclosed to the company the nature of an employee's impairment or disability, the court said.


ADA: Illinois hospital's response to ill employee's accommodation request deemed infirm

What do you get when you combine a hard-working employee with breast cancer, a request for accommodation, and an employer’s muddled story on why it fired her? A recent court decision says you get a jury trial.


1.      Did employee's termination for unexcused absences violate ADA?

All too often, employees seek to utilize the Americans with Disabilities Act (ADA) as a shield against discipline for unexcused absences. The U.S. Court of Appeals for the 5th Circuit—which covers Louisiana, Mississippi, and Texas—recently upheld the dismissal of an employee's claim that her termination for excessive unexcused absences violated the ADA.


Employer gets new trial to prove drug tests were not medical examinations or disability-related inquiries


A Tennessee auto glass manufacturer will get a new trial to prove that drug tests it administered to its employees – including tests for prescription medications — were not “medical examinations” or “disability-related inquiries” under the Americans with Disabilities Act.  Bates v. Dura Automotive Systems, Inc., No. 11-6088 (6th Cir. August 26, 2014). 


NOVA Legal Beat: Fired for Dyslexia?

ARL now

Q. If an employee makes mistakes because he has dyslexia, can an employer fire him because of poor performance?

A. The American with Disabilities Act (ADA) prohibits employers from discriminating against employees and job candidates who have a “a physical or mental impairment that substantially limits one or more major life activities.”

Learning is considered a “major life activity,” and dyslexia is a learning disability. So long as the person with dyslexia is qualified for a position, meaning he or she can perform its essential functions with or without a reasonable accommodation, employers generally should not terminate someone solely because of this learning disability.

In Shively v. City of Martinsville (2009), the U.S. District Court for the Western District of Virginia defined “dyslexia” as “a cognitive condition that affects one’s ability to read and process the written language. In many instances, letters and numbers are transposed in the mind, making it difficult to accurately convey letters and numbers in the proper order.” The court noted that the tendency for people with dyslexia “to confuse or transpose numbers and letters… would affect a broad class of jobs, such as accounting, bookkeeping, or practicing law.”

Employers may be required to provide qualified employees with a reasonable accommodation, such as the provision of a reader or more time to complete a task. An accommodation would not be reasonable if it imposes an undue burden on the employer. A diagnosis of dyslexia alone may not be enough to require an employer to provide a reasonable accommodation.

“A person does not qualify as ‘disabled’ simply by submitting evidence of a medical diagnosis of an impairment,” the U.S. District Court for the District of Maryland said in Fleetwood v. Harford Systems Inc. (2005). “Rather, an individual must offer evidence that the limitation caused by the impairment ‘prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives,’ and that the impact of the impairment is permanent or long-term.”

Even if the dyslexia does not result in an actual limitation caused by the impairment, a diagnosis of this learning disability could result in a perceived substantial limitation in a major life activity. Such a perceived limitation would afford an employee ADA protection, but “the mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that this perception caused the adverse employment action,” the U.S. District Court for the Western District of Virginia said in Marshall v. Wal-Mart Stores (2001).

In Shively, the court noted that an employee must more than “merely assert that the Defendants perceived her as being disabled; she must allege all of the elements of her cause of action. She must allege that Defendants perceived her as suffering from an impairment that substantially limited one or more major life activities.”

People who believe an employer discriminated against them because they have dyslexia, or are perceived to suffer from an impairment that substantially limits one or more major life activities, should immediately contact an employment law attorney who could prepare a disability discrimination lawsuit.


The ADA and Employer Inquires About Prescription Drugs

Workforce Management (blog)

Employers with employees working in safety-sensitive positions have an obligation to ensure that their employees are not impaired while engaged in their jobs. For example, earlier this week I discussed Blazek v. City of Lakewood, in which the 6th Circuit concluded that the Americans with Disabilities Act does not protect a drunk snowplow driver. We also know that the ADA does not protect employees under the influence of illegal drugs.

What about legally prescribed drugs? As an employer, can you test employees for prescription medications packaged with warnings about operating heavy equipment. And, if an employee tests positive, can you require those employees to disclose those medications to the third-party company hired to administer the tests. Surprisingly, the ADA is silent on these issues.

In Bates v. Dura Automotive Sys. (8/26/14) [pdf], the 6th Circuit attempted to give us some answers.


Fired worker sues Cornerstone

Herald Palladium

GRAND RAPIDS - A Coloma woman who was fired from Cornerstone Alliance about a year ago is suing the organization for wrongful termination.

Reyna Price's lawsuit alleges the economic development organization violated the Americans With Disabilities Act by firing her in part because of her need to care for her disabled 7-year-old daughter.

The suit was filed Aug. 6 in U.S. District Court by Price's lawyer, William F. Piper of Portage, Mich. Cornerstone Alliance has not yet filed an answer, according to court records.

Cornerstone Alliance President Victoria Pratt was not immediately available for comment Wednesday.

Price was hired at Cornerstone in February 2009 as a resource development coordinator, and was fired Sept. 19, 2013.

Price has a child with Dravet syndrome, a severe form of epilepsy.

According to Price's lawsuit, she was sometimes needed in an emergency or on short notice and it had never interfered with her ability to perform her job effectively.

Shortly after the organization hired a new president in 2013, Price was told that she was to eat, sleep and breathe economic development 24 hours a day and "stop acting like a victim," the lawsuit alleges.

The suit further alleges that Prices was criticized, in writing, for her attention to her daughter's needs and was told to not discuss her personal life with fellow employees.

Price also was pressured to attend nonessential weekend and after-hour duties without compensation, and was told that job descriptions no longer governed, though her position was funded through federal grants that depended on a job description, the suit alleges.

The lawsuit further alleges that on Sept. 19, 2013, Price was again told to "stop acting like a victim" and was told that Cornerstone Alliance was "a business, not a family." She was fired that same day, according to the lawsuit.

The suit is asking for equitable relief, including reinstatement or front pay; legal relief, including compensation for loss of income and benefits now and in the future; compensation for intangible damages suffered in the past and the future; punitive damages; recoverable interest; attorney's fees and any other relief the court deems fair and just.


1.      Disabilities: Did 6-month leave policy provide reasonable accommodation?

No matter how capable we are, we all have times when things don't go our way. Perhaps the most difficult times are when we are faced with unexpected serious health problems. The federal Rehabilitation Act, like the Americans with Disabilities Act (ADA), which is patterned after it, protects employees with disabilities by striking a balance between the legitimate interests of employers and employees.


1.      Disney Faces More Heat As Autistic Kids Lawsuit Looks To Expand

Walt Disney Parks and Resorts could be facing a lot more angry families of children with developmental disorders if the plaintiffs in the ongoing American With Disabilities Act lawsuit get their way. In fact, the discrimination suit over access at Disneyland and other theme parks filed back in April against the media giant could nearly triple. “After the initial Complaint was filed, undersigned counsel received an outpouring of phone calls and emails from victims and their families, similarly situated to the 26 existing Plaintiffs,” said lawyers Andy Dogali and Eugene Feldman in one of several filings today in federal court (read it here). “Most of the victims wanted to offer cheers of support and witness assistance; some were in search of counsel. Ultimately, the undersigned counsel agreed to represent many of them.”


1.      What Are My Employment Rights If I am Disabled?

Many workers know that the Americans with Disabilities Act protects them from job discrimination if they are currently or become disabled. However, the types of protections afforded to them and what constitutes employment discrimination based on a disability is unclear for some. According to information outlined by the U.S. Equal Employment Opportunity Commission, the law covers workers who have a physical or mental impairment that places significant limitations on a major aspect of their lives, but are still qualified to perform fundamental job functions, even if they require reasonable accommodations to do so.

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