ADA in the News: August 6, 2014

JD Supra
A recent decision from the Fourth Circuit Court of Appeals[1] held that under the Americans with Disabilities Act (ADA), an impairment or injury is not excluded as a disability simply because it is temporary. In deciding Summers v. Altarum,[2] the court endorsed the approach taken by the EEOC[3] and became one of the first appellate courts to squarely apply to a temporary physical condition the expanded definition of “disability,” as provided under the ADA Amendments Act of 2008 (ADAAA).
A California federal judge tossed out the state Department of Fair Employment and Housing’s proposed class action against WinCo Foods LLC that alleges the grocer discriminated against pregnant and disabled workers, closing the case because only state claims remained.
On June 11, 2014, Northern District of California Judge Jon S. Tigar ruled that the California Department of Fair Employment and Housing (“DFEH”) has neither standing nor statutory authority to enforce Title I of the Americans with Disabilities Act (“ADA”).  The decision made clear that while the DFEH has had authority—since January 1, 2013 (as we noted here and here)—to bring enforcement actions directly in state and federal courts, that authority does not extend to federal claims of employment discrimination under Title I of the ADA.
JD Supra
The Americans with Disabilities Act prohibits employers from requiring employees to submit to medical examinations in the absence of business necessity. In an unpublished decision released last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that a university president had the authority to require a mental fitness exam for a professor despite a faculty grievance committee’s conclusion that there were not sufficient grounds to take disciplinary action against him.
In Coursey v. Univ. of Md. E. Shore, a number of students and faculty members complained that the plaintiff was acting in an erratic and hostile manner, yelling at students and acting inappropriately toward female staff. He was suspended by the university, but a faculty grievance committee concluded that there were not adequate grounds to continue the suspension. Despite this conclusion, the university president conditioned reinstatement upon the plaintiff’s submitting to a mental fitness examination. He refused, and sued under the ADA after being terminated for insubordination.
The plaintiff claimed that the faculty committee’s decision demonstrated that the president did not have business necessity for requiring the medical examination. The Fourth Circuit disagreed, noting the extensive reports and complaints detailing the plaintiff’s behavior toward students and staff. The president had the ultimate authority to make decisions regarding faculty disciplinary matters and ability to perform job functions.
Employees who display erratic workplace behavior are often resistant to employer attempts to seek mental health examinations. In many cases, employers may be better advised to focus on the behavior and not the possible causes for it in order to avoid being accused of regarding the employee as mentally disabled. However, for employers such as colleges and universities that have detailed procedures for discipline and discharge of employees, termination in the absence of a thorough review of the circumstances and their possible causes may not be possible. In these situations, federal courts grant employers significant leeway under the ADA to require medical reviews to determine the basis for an employee’s behavior, and possible steps that can be taken to address such behavior.
Two recent court decisions considered whether employees who had permanent lifting restrictions were “qualified individuals” entitled to relief under the Americans with Disabilities Act (ADA).
The National Law Review
As people in the world, we face difficult situations all the time.  If someone seems sad or depressed, we may want to help but not know how.  When it’s your employee who is going through tough times, you may have legal concerns to worry about too.  It’s good to be as prepared as possible beforehand.  For example, let’s imagine that one of your employees seems depressed and starts making comments around the workplace about hurting him or herself.
A condition causing an employee to become suicidal may be covered under the Americans with Disabilities Act (“ADA”).  In that case, it would be an unlawful discriminatory practice to take adverse employment actions based on the employee’s condition, and the employee may be entitled to a reasonable accommodation.  If an employee makes a statement or does something that causes you to think that he or she may be suicidal, it is best to initially address the situation under the assumption that the employee has a condition covered under the ADA.
Page Six
Zoltan Hirsch — a double amputee in a wheelchair dubbed “Hell on Wheels” by The Post in 2011 after he filed 87 federal claims in one year against city businesses, arguing they were not wheelchair-accessible — is continuing his campaign.
Hirsch last month sued Ralph Lauren Denim & Supply at 99 University Place, claiming he suffered injury because, according to papers filed in US District Court, he “continues to be discriminated against due to the architectural barriers.”
KRIS Corpus Christi News-
Bloomberg BNA
Here are some cases the EEOC filed or settled during June 2014:
Disability Discrimination
A nonprofit formed to assist people with disabilities is being sued by the EEOC for disability discrimination under the Americans with Disabilities Act (ADA). The nonprofit is accused of refusing to provide a deaf employee with requested accommodations — such as TTY equipment, a video phone and the ability to use text messaging — or provide alternate accommodations and then firing the employee because of the employee's disability.
A poultry processor agreed to pay $52,000 and provide other relief to settle a disability discrimination lawsuit alleging that it refused to accommodate a disabled employee and fired her because of her disability in violation of the ADA. According to the EEOC, the employee — who suffered from anemia — requested a reassignment after her department's duties were moved to a colder environment. Instead of granting her request, the employer sent her home until she could provide a doctor's note proving her anemia diagnosis, although it fired her before she had time to get the note.
Similarly, a hair salon is being sued for allegedly firing an employee who suffered from scoliosis and a herniated disc after refusing her request for a reasonable accommodation that would allow her to stand for extended periods of time without significant pain.
Two companies face lawsuits for discriminating against an employee or applicant because of perceived disabilities. The first, a distributor, allegedly refused to allow an employee to return to work because it regarded him as disabled following a heart attack, despite the fact that he was cleared by his doctor and fully capable of performing his job. In the second case, an industrial file sharpening company is accused of offering an applicant a position but rescinding it upon discovering he took a prescription drug for a seizure disorder without further evidence that he was incapable of performing the job. Such presumptions violate the ADA, which protects employees from discrimination based on their actual or perceived disabilities.
A health-care facility is accused of disability discrimination for revoking a job offer after learning that an applicant's kidney disorder left her unable to produce concentrated urine for purposes of a pre-employment drug screen. The facility allegedly denied her request for a reasonable accommo­da­tion of an alternative pre-employment drug test based on blood or hair and revoked its conditional offer of employment as a direct result of the failure to accommodate. The facility has agreed to pay $30,000 and furnish other relief to settle the lawsuit.
Unlawful Leave Policy Leads to Disability Discrimination
A health-care provider agreed to pay $1,350,000 and undertake significant remedial measures to settle a disability discrimination lawsuit for a fixed leave policy that failed to consider leave as a reasonable accommodation, in violation of the ADA. Rather, the leave policy merely tracked the requirements of the federal Family Medical Leave Act (FMLA), limiting employee leaves to a maximum of 12 weeks. As a result, employees who were not eligible for FMLA leave were fired after being absent either a short time, or upon the expiration of their 12 weeks of FMLA leave. Rather, the ADA requires that employers engage in an interactive process with employees with disabilities to determine how much ADA-related leave is needed.


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