Retroactivity of the ADA Amendments Act

In Jenkins v. National Board of Medical Examiners, 2009 WL 331638 (6th Cir. Feb. 11, 2009), the plaintiff had a reading disorder and was seeking an accommodation of additional time on a medical licensing examination. Relying on previous Supreme Court precedent taking a narrow view of the definition of disability, the trial court found that the plaintiff did not have an ADA disability. On an appeal taken after the ADA Amendments Act (ADAAA) was enacted, the Sixth Circuit reversed and held that the ADAAA should be applied to the case relying on precedent that allows statutes to be applied retroactively when the only remedy is prospective injunctive relief. To support its position, the court reasoned that rather than seeking damages for some past act of discrimination, the plaintiff was seeking the right to receive an accommodation on a test that will occur in the future, well after the ADAAA's effective date. The Sixth Circuit also allowed for the recovery of attorneys' fees. Relying on Supreme Court precedent that recovery of attorneys' fees is collateral to the main cause of action, the court found that seeking attorneys' fees did not convert the case into a damages action.

Definition of Disability

In McClinton El v. Potter, 2008 WL 5111182 (N.D. Ill. Dec. 4, 2008), the plaintiff was an employee of the United States Postal Service who had depression and anxiety. The employer claimed that he did not have an ADA disability because he was not substantially limited in a major life activity and his mental illness only occurred on an episodic and intermittent basis. The court held that plaintiff had provided sufficient evidence that he was substantially limited in the major life activities of caring for himself, sleeping, and eating, which supported his claim that he had an ADA disability. (Note: this case arose before the effective date of the ADAAA)

In Imbody v. C&R Plating Corp., 2009 WL 196251 (N.D. Ind. Jan. 23, 2009), the plaintiff was a factory worker who was injured on the job, sustaining lumbar and thoracic strains. Plaintiff requested accommodations from his employer for his injuries, but he was not provided the accommodations, and instead was required to perform work in violation of medical restrictions imposed by his doctor. After being examined by the employer's physician and being provided with similar work restrictions, the plaintiff was fired and filed suit under the ADA. The employer moved to dismiss, arguing that the plaintiff failed to allege sufficient facts to establish that he had an ADA disability. Specifically, the employer contended that plaintiff failed to allege specifically how his injury substantially limited a major life activity. The court disagreed and denied the motion, holding that the plaintiff's allegations of a back injury and medical restrictions considered together were sufficient to state that he had an ADA disability in a federal Complaint. For the same reason, the court also declined to dismiss the plaintiff's claim that the employer regarded him as having a disability. (Note: this case arose before the effective date of the ADAAA)

Medical Examinations and Inquiries

In Connolly v. First Personal Bank, 2008 WL 4951221 (N.D. Ill. Nov. 18, 2008), the plaintiff had a neck condition and used a legally prescribed controlled substance. She was conditionally offered employment pending passing a pre-employment drug test. When the test results showed the presence of the controlled substance, the bank rescinded its offer without allowing her to provide documentation that the positive test was for a substance she had obtained legally via a prescription. She then sued under the ADA. The employer sought to dismiss the case, but the court denied the employer's motion. Although pre-employment drug tests for illegal drugs do not violate the ADA, when the tests cover legally prescribed drugs and are used to make employment decisions beyond the prohibition of illicit drug use, then those tests can violate the ADA.

Qualified Despite Receiving Disability Benefits

In Finan v. Good Earth Tools, Inc, 565 F.3d 1076 (8th Cir. 2009), a salesman developed a seizure disorder and was relieved of his job duties despite letters from his doctors stating that he could do the job. Ultimately, the salesman was allowed to return to his job, but he was penalized for reduced sales figures (because of the time he involuntarily missed work) and he was terminated. He filed suit under the ADA and a jury found in his favor awarding him $475,000 in back pay and damages. The 8th Circuit Court of Appeals affirmed the jury's verdict holding that there was sufficient evidence to find that he was qualified. The employer argued that the salesman was not qualified because he received disability benefits under Social Security and a private plan. The court rejected the employer's argument finding that a person can be both qualified under the ADA and still be deemed "disabled" to receive disability benefits.

Qualified - "100% Healed" Policies

In Street v. Ingalls Memorial Hosp., 2008 WL 162761 (N.D. Ill. Jan. 17, 2008), the plaintiff fractured her femur three inches above the knee and her osteoporosis complicated her injury. After surgery, physical therapy, and an arthroscopy, the plaintiff sought to return to work, but was not allowed because of her work restrictions and she sued under the ADA. The court found that defendant's "100% healed" or "released without restrictions" rule was a per se violation of the ADA. Plaintiff presented evidence that the defendant's policy excluded the return of employees who rely on a wheelchair, walker or cane.

Reasonable Accommodation - Interactive Process

In McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 25, 2008), the plaintiff had a chemical sensitivity, which caused her to negatively react to certain scents in the workplace. When her employer failed to accommodate her disability, she filed suit under the ADA. The court first found that the plaintiff was a person with a disability protected by the ADA because she was substantially limited in the major life activity of breathing. With respect to her reasonable accommodation claim, the court agreed that demanding a scent-free workplace was not a reasonable accommodation, but emphasized that the plaintiff had not requested a scent-free workplace. Rather, she had requested that the employer try to limit the presence of certain scents and "work with her." The court found that there was evidence that the employer had failed to engage in the "interactive process" to reach an agreement on the accommodation, and allowed her case to go forward.

Disability Harassment/Constructive Discharge/Retaliation

In McKelvey v. Green, 2009 WL 910750 (E.D. Mich. Apr. 1, 2009), an Army operations specialist with disabilities brought a claim of disability harassment against the Army. Co-workers regularly referred to him as "crip" or "cripple," refused to give him work assignments, and assigned him tasks that he was physically unable to perform. The court denied the Army's motion for summary judgment. Looking at the totality of the circumstances, the court found that there was sufficient evidence for a jury to find that he had been subjected to a hostile work environment and was constructively discharged. The court also found that the timing of the plaintiff's discrimination complaint and his subsequent negative performance evaluation created an inference of a causal connection to allow his retaliation claim to go forward.

In Navarre v. White Castle System, Inc., 2007 WL 1725382 (D. Minn. June 14, 2007), the court denied summary judgment to an employer on an ADA harassment claim. The plaintiff, who had ADHD and Tourette's syndrome, was hired to work the night shift at White Castle. Plaintiff alleged his supervisor used derogatory language ("f***ing retard"), physically pushed him down and threatened violence. Taking the plaintiff's deposition testimony as true for summary judgment purposes, the court found that plaintiff had submitted sufficient evidence that he had experienced harassment related to his disability that was severe and pervasive, and that White Castle management had not effectively responded to his harassment complaints.

In Talley v. Family Dollar Stores of Ohio, Inc., 542 F. 3d 1099 (6th Cir. 2008), the plaintiff was employed as a cashier. She had degenerative osteoarthritis of her cervical and lumbar spine necessitating her to take medical leave several times during the course of her employment. Her disease created such pain in her legs and back that she was unable to stand or sit for long periods of time. While some of the plaintiff's supervisors allowed her to bring a stool to work to use at her cashier station, others forbade the practice. Without use of the stool, she could not fully perform her position. She initially provided the employer with a doctor's note that said she could work without restrictions, but she later provided a note requesting that she be permitted to use a stool at work. Because she was not allowed to use the stool at work, she walked off the job and was subsequently discharged. The 6th Circuit found that the plaintiff produced sufficient evidence that may lead a jury to conclude that the employer intended for her to resign. The court reasoned that when an employee makes a repeated request for an accommodation and that request is both denied and no other reasonable alternative is offered, a jury might conclude that the employee's resignation was both intended and foreseeable. Thus, the court allowed her constructive discharge claim to proceed.

Pretext for Discrimination

In Willnerd v. First National Bank of Nebraska, 558 F.3d 770 (8th Cir. 2009), the 8th Circuit reversed the trial court's finding of summary judgment in an employment discrimination case brought by a Plaintiff with a neurological condition that affected his voice. The court found the employer's termination decision was suspect. Specifically, the court stated that the plaintiff was purportedly fired, after 22 years, due to poor performance, and yet he was the only one fired from the branch despite not being the lowest-performing employee. Furthermore, the employer placed the plaintiff on an unachievable performance plan, and when he failed to comport with the plan, replaced him with someone far less qualified and with far less experience. Thus, the court found there was sufficient evidence to support the plaintiff's argument that the reasons the employer provided for termination were pretextual for disability discrimination

Discrimination Charges with the EEOC

In Caplinger v. Uranium Disposition Services, 2009 WL 367407 (S.D. Ohio Feb. 11, 2009), an employer refused to allow an employee to return to work after a medical leave. The employee submitted a signed questionnaire to the EEOC within the requisite time period for filing ADA charges, but did not file the actual charge until after the time period had ended. After the employee filed suit, the employer argued that the charge was untimely. The court held that a signed questionnaire form submitted to the EEOC satisfied the statute of limitation requirements, where that questionnaire had sufficient information to put the employer on notice.

Accommodations in the Criminal Justice System

In Kutrip v. City of St. Louis, Division of Corrections, 2009 WL 1175519 (8th Cir. May 4, 2009), an inmate with mobility impairments needed an accessible shower or a plastic chair that he could hold into in the shower. He was never told that a shower with grab bars was available. He filed suit under Title II of the ADA and Section 504 of the Rehabilitation Act. The 8th Circuit Court of Appeals held that the Division of Corrections has a responsibility to provide accommodations to individuals with disabilities, and to ensure that accessible features are made available to those who need them. The court held that when an inmate's disability is readily apparent, the inmate does not have to explicitly request an accommodation in order to become eligible for it. Here the court found that the inmate's disability and his need for an accommodation were both obvious and he should have been accommodated.

In Bahl v. County of Ramsey, 597 F.Supp.2d 981 (D. Minn. 2009), three individuals who were deaf were arrested and were not provided with TTYs to contact their next of kin. The three individuals and two of their spouses filed suit under Title II of the ADA. The court dismissed the claims by the arrestees and the spouses that were seeking prospective relief for lack of standing to file suit under the ADA because there was no indication that they would suffer the same harm in the future. However, the claims by the spouses seeking compensatory relief were allowed to continue as the court found that they were excluded from telephone calls from their detained loved ones due to the failure to accommodate their disabilities.