Jailer fired for absences despite complaints smoking at the jail was making him sick advances bias claim
In denying summary judgment on the ADA claims of an employee who worked for less than two months at a county jail before he was fired for excessive absenteeism—he had missed more than 91 hours of work during that time, allegedly because smoking at the jail aggravated his previously dormant asthma—a federal court in Mississippi found "problematic" the county's reliance on his absences as a "defense to an ADA claim that is based on the notion that a failure to accommodate his disability was making him sick, and thus miss work." Nor was the county entitled to summary judgment on Title VII discrimination and retaliation claims, in which he alleged a coworker repeatedly called him a "faggot" and "Steve Urkel the black nerd." Observing, however, that the employer raised very real questions about the employee's credibility, the court noted that it would allow the jury to hear evidence at trial that he previously filed a lawsuit against Walmart, his former employer, in which he alleged he was called a black "nerd" and a "faggot." Even though the county conceded that the employee was called "Urkel" by his coworker, the court found it a "remarkable coincidence that plaintiff has filed two lawsuits containing such similar allegations," and suspected that jurors may agree. ( Simmons v Monroe County, Mississippi, NDMiss, November 21, 2019, Mills, M.)
Extreme Obesity Alone Is Not A Disability
The 7th Circuit Court of Appeals recently ruled that extreme obesity, by itself and alone, does not constitute a disability under the Americans With Disabilities Act. Employers must be careful about perceiving an individual who is extremely obese from being considered impaired or in some way unable to perform his/her duties.
We have finally received a decision about obesity from the 7thCircuit Court of Appeals which governs employers in the state of Wisconsin. In this decision (Richardson v. Chicago Transit Authority, No. 17-3508 & 18-2199) (7th Cir. June 12, 2019)), the federal Court of Appeals held that extreme obesity, by itself and alone, does not constitute a disability under the Americans with Disabilities Act. We do not have a clear decision from the Equal Rights Division on this topic, so hopefully the ERD will follow the same reasoning as the Court of Appeals. 1 This is important because Wisconsin is high on the list of states with a large population of obese residents; 32 percent of Wisconsin residents qualify as obese.
The decision holds that an individual suffering from extreme obesity, meaning significantly overweight for his/her height, does not constitute a disability for which ADA protections must be provided. Employers must be careful, however, because there are two circumstances where the decision could be different: (1) instances where the obesity is the consequence of a physiological disorder or impairment, or (2) situations where the employer perceives the employee to be disabled because of his/her health condition being that of extreme obesity. Under either of these scenarios, the employee may be afforded protection from discrimination.
In another recent 7th Circuit Court of Appeals decision, the Court held that an employer did not violate the Americans with Disabilities Act when it had concerns about a future impairment that could be experienced by a candidate suffering from obesity. Shell v. Burlington N. Santa Fe Ry. Co., No. 19-1030 (7th Cir. Oct. 29, 2019) The Court held that the employer did not discriminate when it refused to consider an applicant suffering from extreme obesity for a safety-sensitive position that included the operation of heavy equipment. The Court held that the employer did not regard the candidate as disabled because the candidate did not “have” an impairment at the time although concern was expressed about a future impairment.
[1] The LIRC has held in Elmhurst v. School District of Neillsville(ERD Case No. CR 200500684) that an “’overweight condition’ cannot be considered a disability where there is no indication of glandular or other physiological disorder and the complainant’s weight was totally within the complainant’s control. Plizka v. A.O. Smith (DILHR Comm., 08/19/75).”
Other federal and state Supreme Courts have looked at this issue and provided different guidance. For example, the Court of Appeals for the 9th Circuit in Valtierra v. Medtronic, Inc(926 F. 3rd 881, 2019) failed to reach a conclusion whether obesity (standing alone) is an actionable “impairment” under the Americans with Disabilities Act. The 9th Circuit Court of Appeals ruled similarly to the 7th Circuit by holding that obesity cannot constitute a disability unless the obesity is caused by an underlying physiological condition. The 9thCircuit Court of Appeals found that the plaintiff had not shown a causal relationship between his obesity and his termination from employment.
On the opposite side of the spectrum, the Supreme Court for the State of Washington held that obesity is always an impairment under the Washington Law Against Discrimination and did not require a showing that the obesity is related to some other medical condition. Casey Taylor v. Burlington Northern Santa Fe Railway Company (2019 WL 3023161, Wash., July 11, 2019). The Washington State Supreme Court did not define obesity but relied upon a definition of disability. Disability under the Washington Law is defined as the presence of a sensory, mental, or physical impairment regardless whether it limits life activities that either is medically recognizable or diagnosable or exists as a record or history or is perceived to exist whether in fact it exists in actuality. The Court held that obesity is always an impairment because obesity is both a condition and a disorder affecting various bodily systems. The Court did distinguish situations where simply being overweight would not constitute a disability as compared to situations where an individual would be medically classified as suffering from obesity. The Court relied upon a 2013 pronouncement by the American Medical Association that defined obesity as a medical condition.
Employers need to be very careful about perceiving an individual who is extremely obese from being considered impaired or in some way unable to perform his/her duties. While the employer, under the recent 7th Circuit opinion, would appear to have the right to determine that the employee cannot perform the regular duties of his/her position, there is always the concern that the employer is thereby perceiving the employee to be disabled. In order to avoid that perception, the employer must make a reasonable and fact-based analysis of the ability of the employee to perform his/her regular duties even with the challenges of an extreme weight condition.
ADA lawsuit was correctly dismissed after issues were fixed, rules Utah court
A court ruling says a judge in Utah was correct to dismiss a wheelchair user’s disabilities-access lawsuit citing deficiencies already corrected by Smith’s Food and Drug Centers Inc.
The 10th U.S. Circuit of Appeals decision Wednesday upheld the dismissal of Trevor Kelley’s suit, ruling that the case was moot because Smith’s fixed the height of a restroom soap dispenser and installed parking signage compliant with the Americans with Disabilities Act.
Kelley had objected to the dismissal, arguing unsuccessfully that he and his lawyer and his expert had discovered additional barriers that violated the ADA and that Smith’s lacked a policy on ADA compliance.
However, the 10th Circuit said the case was moot because the two barriers cited in the complaint “were permanently remediated while this litigation was pending.”
Ambassador Theatre Group Wins Lawsuit Regarding Food in Theaters
The Ambassador Theatre Group has won a lawsuit regarding bringing outside food into theaters, according to Forbes.
Last year, Evelyn Castillo sued the Broadway landlord in federal court over its policy, which does not allow guests to bring outside food into its theaters. She claimed that the practice discriminates against individuals with diabetes, and violates the Americans with Disabilities Act.
This act says that all places of public accommodation must allow all people with disabilities to have "full and equal enjoyment" of the shows. The venues must make reasonable changes to their policies, practices, and procedures to make the theaters accessible to all.
Castillo said that she was planning to purchase a ticket to Head Over Heels, when she noticed the rule against bringing outside food into the theatre. She said that she must bring her own packaged or pre-measured food to an event, or else she faces the risk of both overeating and undereating, which puts her at further risk of either using too much insulin or not enough.
The theater group's lawyers stated that its website "provides several methods for potential customers to contact [the firm], and ... an accessibility statement and an additional number to call for assistance."
The lawyers say that "Providing such information demonstrates [the Ambassador Theatre Group]'s intent to comply with the ADA."
In addition, Castillo never asked the theatre for an accommodation upon entry. She did not claim that a guard checking bags at the Hudson Theatre "otherwise knew of her disability, and refused to accommodate her."
The judge agreed, and dismissed the lawsuit in September.
Castillo does not plan to appeal the decision.
Public transportation services for people with disabilities must get better, MPC says
Toward Universal Mobility, a report by the Metropolitan Planning Council, lays out 32 recommendations for improving public transportation for the 800,000 people with disabilities in the Chicago region.
What's Keeping Disability Rights in a Stagnant State
Now more than ever, the disabled community is fighting for equality. Though some may scoff at the thought, it is a sad truth.
“But you have laws for that stuff,” is the most common rebuttal. The Americans With Disabilities Act (ADA) is almost 30 years old — so yes, there are laws, but they’re archaic and still all too frequently disregarded. While there needs to be an overhaul of accessibility laws, that is not the main focus of this piece.
The disabled community could have utopian laws when it came to accessibility and it would not address the root of the problem. “What more could you want?” is the all-too-common refrain. Doing the bare minimum and then expecting disabled people to be grateful is ableism at its finest. I believe until there is a change in mindset regarding the disabled community, accessibility as we know it will remain stagnant.
The continual marginalization of an already marginalized group is one of the biggest obstacles when it comes to equality. Whether you live in the United States, United Kingdom or anywhere else in the world, being repeatedly disrespected and denied basic rights can occur on a daily basis when you’re disabled. Disabled people are frequently talked down to, ignored, stepped over, denied an accessible parking space and more. Children and adults are yelled at and called a “drain on society.” Some wheelchair users are subjected to verbal abuse from drivers for being in the road when there are no sidewalks available.