ADA Developments in the Great Lakes Region Over 2017-2018 (IL,IN,MI,MN,OH,WI)
Prepared by:
Barry C. Taylor, Vice President of Systemic Litigation and Civil Rights, Equip for Equality
Rachel M. Weisberg, Staff Attorney / Employment Rights Helpline Manager, Equip for Equality
Sydney Penny, Legal Intern, Equip for Equality
Definition of Disability
Before the ADA Amendments Act
Bragdon v. Abbott, 524 U.S. 624 (1998)
The Supreme Court held that an individual with asymptomatic HIV has a disability under the ADA, as HIV is a physical impairment that may cause a substantial limitation in the major life activity of reproduction. This Supreme Court decision was important because it affirmed the fact that the statutory and regulatory list of “major life activities” was not exhaustive. It also clarified that a major life activity can be an internal autonomous activity, and that there is no required link between a major life activity and the alleged discrimination.
Sutton v. United Airlines, 527 U.S. 471 (1999)
The Supreme Court held that mitigating measures are taken into account when determining whether an individual has an ADA-qualifying disability. In her decision, Justice O’Connor cited three reasons: (1) the phrase “substantially limits” is in present tense, so Congress intended individuals to be evaluated as they appear in real world; (2) employers should not have to speculate about how an individual would function without the mitigating measure; and (3) the ADA’s preamble estimates coverage to 43 million people, which appears to include only those without mitigating measures. For many years, this decision significantly narrowed the definition of disability under the ADA, ultimately leading Congress to pass the ADA Amendments Act. In the ADA Amendment Act’s findings and purpose section, Congress explicitly criticized this decision. Now, as a result, this case is no longer good law.
Toyota v. Williams, 534 U.S. 184 (2002)
In this Supreme Court case, the court held that the plaintiff did not have a disability under the ADA because she was not substantially limited in performing manual tasks that are “central to most people’s daily lives.” The court further stated that the definition of disability is to be “interpreted strictly” to create a “demanding standard.” Like Sutton, this decision narrowed the definition of disability, but is no longer good law as a result of the ADA Amendments Act.
After the ADA Amendments Act
Gogos v. AMS Mechanical Systems, 737 F.3d 1170 (7th Cir. 2013)
This is one of the first appellate court cases substantively applying the ADA Amendments Act in an employment discrimination case. In this case, the plaintiff, an individual with high blood pressure, was terminated from his position. The Seventh Circuit reversed and remanded the district court’s order granting summary judgment, and discussed the EEOC’s regulatory language, episodic conditions, mitigating measures, and short-term conditions. Specifically, the Seventh Circuit held that even if the plaintiff’s blood pressure spike and vision loss manifested themselves in an episodic way, episodic conditions are now covered by the ADA. It also found that short-term disabilities can be covered by the ADA, citing the appendix to the EEOC regulations. The Seventh Circuit held that the plaintiff’s blood pressure spike and intermittent blindness could substantially limit two of his major bodily functions, eyesight, and circulatory function. Finally, the Seventh Circuit explained that courts must disregard the ameliorative effects of mitigating measures when determining whether an individual has a disability under the ADA, and thus, the ameliorative effects of the plaintiff’s blood pressure medication must be disregarded.
Kinney v. Century Services Corp., Simmons, 2011 WL 3476569 (S.D. Ind. Aug. 9,2011)
An employee requested leave to receive in-patient treatment for depression. The employee was not allowed to return from leave and was ultimately terminated. Applying the ADA Amendments Act, the court held that the employee had raised a question of fact that she has a disability and rejected the employer’s claim that her “isolated bouts” with depression did not constitute an ADA disability. Episodic impairments are now covered if they are substantially limiting when active.
Gregor v. Polar Semiconductor Inc., 2013 WL 588743 (D. Minn. Feb. 13, 2013)
The court found that an employee was substantially limited in the major life activity of performing manual tasks. The employee demonstrated that he lost part of his index and middle fingers, and as a result, was restricted from pinching between his thumb and index or middle fingers. He also had established that he had diminished grip strength, was unable to make torqueing or crimping movements, and was restricted from using vibrating tools or carrying heavy objects.
Regarded As
Brooks v. Kirby Risk Corp., 2009 WL 3055305 (N.D. Ind. Sep. 21, 2009)
The court found that the ADA Amendments Act broadened the “regarded as” prong for the definition of disability, and protects individuals who are “regarded as” having a disabling impairment even when the impairment neither is, nor is perceived to be, substantially limiting. (See also: Plaintiffs in ADA cases are “no longer is required to prove that the employer regarded her impairment as substantially limiting a major life activity,” Wells v. Cincinnati Children’s Hospital Medical Center, 2012 WL 510913 (S.D. Ohio Feb. 15, 2012).)
Stahly v. South Bend Public Transportation Corp., 2013 WL 55830 (N.D. Ind. Jan. 3, 2013)
The court allowed an employee’s claim to proceed, finding that she presented sufficient evidence that her employer “regarded” her as having a disability. The employee met her burden by showing that her employer was aware that she took medication, experienced an anxiety attack and was admitted to an emergency room. The court noted that under the ADA Amendments Act, individuals qualify for coverage under the regarded as theory “whether or not the impairment limits or is perceived to limit a major life activity.” The employee brought this claim to challenge the company’s policy requiring employees to disclose all medications for “safety” reasons. The court found this to be an impermissible medical inquiry, explaining that the evidence failed to demonstrate that the employer could not obtain the same information from a narrowly tailored request.
Record of
Doe v. The Salvation Army in the U.S., 531 F.3d 355 (6th Cir. 2008)
In this case under the Rehabilitation Act, an employee was not hired by the Salvation Army due to a history of having paranoid schizophrenia and taking psychotropic medications. The court held that Doe may have a claim for discrimination based on his “record of” a disability and that the Salvation Army may have inappropriately asked Doe about the medications that he was taking.
Association Discrimination
DeWitt v. Proctor Hospital, 517 F.3d 944 (7th Cir. 2008)
An employee alleged that her employer fired her to avoid having to continue to pay for the substantial medical costs that were being incurred by her husband’s cancer treatments under the employer's self-insured health insurance plan. The district court granted summary judgment in favor of the employer. However, the Seventh Circuit reversed this decision, finding that because the plaintiff established that direct evidence of “association discrimination” may have motivated the employer in its decision to fire her, a jury should be allowed to consider her claim. Specifically, the court relied on the fact that the employer indicated it was reviewing the unusually high costs of her husband’s medical expenses at the same time, the employer was identifying ways to cut health care costs. Also, the employer asked the plaintiff if her husband had considered hospice care instead of the more expensive radiation and chemotherapy treatments her husband was receiving.
Fear of Future Disability
Shell v. Burlington N. Santa Fe Ry., 941 F.3d 331 (7th Cir. 2019)
The plaintiff was not hired for a safety-sensitive position by Burlington Northern Santa Fe Railway Company only because his BMI was 47.5. Company policy was to not hire people with a BMI higher than 40 out of concern that those individuals might suffer from future ailments such as sleep apnea, diabetes, and heart disease. There was a fear that obese people might unexpectedly experience a debilitating health episode and lose consciousness while operating dangerous equipment. The district court held that while obesity was not and of itself and disability, there was enough evidence to show that the company failed to hire the plaintiff for the safety-sensitive position out of the fear the plaintiff might develop a future disability in violation of the ADA. On appeal, however, the Seventh Circuit reversed the district court’s decision and held that the plaintiff could not prevail on a claim of discrimination because he could not prove that he was disabled or that the company regarded him as currently having a disability. It found that fear of developing a future disability was insufficient to establish a regarded as claim.
Specific Impairments
Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016)
The U.S. Court of Appeals for the Eighth Circuit held that obesity—without an underlying impairment—is not a disability under the ADA. The plaintiff applied for a safety sensitive position that required applicants to have a body-mass index (BMI) under 40. Although the plaintiff had no medical condition, his BMI was 40.9, and his job offer was revoked. The Eighth Circuit concluded that the plaintiff did not have a disability under the ADA as obesity has to be due to an underlying physiological disorder to constitute a disability. The court acknowledged that other courts have come to different conclusions and interpreted guidance from the EEOC differently. The plaintiff asked the U.S. Supreme Court to review the case, but the court denied this request on October 3, 2016.
Richardson v. Chicago. Transit Authority, 926 F.3d 881 (7th Cir. 2019)
The plaintiff worked as a bus driver for the Chicago Transit Authority. He was terminated from his position because his employer regarded him as too obese to work as a bus operator. Using guidance from the EEOC, the Seventh Circuit held that the plaintiff’s obesity is not a physical impairment under the ADA because it was not caused by an underlying physiological condition.
Parker v. Strawser Constr., Inc., 307 F. Supp. 3d 744 (S.D. Ohio 2018)
The plaintiff, who is transgender, filed a charge of discrimination on the basis of sex, disability, and retaliation against her workplace. The court held that she does not have a disability discrimination claim because her gender identity disorder does not qualify as a disability. The court explained gender identity disorders that do not result from physical impairments are not covered by the ADA. A condition is “disabling” if the condition substantially limits one or more major life activities. Therefore, if a gender identity disorder does not limit a major life activity, then the disorder does not qualify for protection under the ADA.
Title I (Employment)
Qualified/Essential Job Functions
Brown v. Smith, 827 F.3d 609 (7th Cir. 2016)
The plaintiff was fired from his position of street supervisor because he was unable to obtain a commercial driver’s license (CDL) due to his insulin-dependent diabetes. The question before the court was whether having a CDL was an essential function of the street supervisor position. The U.S. Court of Appeals for the Seventh Circuit affirmed a jury verdict and judgment for the plaintiff. Although the job description stated that the position required a CDL, the court credited the plaintiff’s testimony that he had worked in the position for four years without needing to drive. The court also emphasized that many other employees were available to drive, if necessary, noting that replacement drivers could be secured within 10 minutes, allowing supervisors to focus on their other duties.
Camp v. Bi-Lo, LLC, 662 Fed.Appx. 357 (6th Cir. 2016)
Plaintiff worked as a stock clerk at a grocery store for 38 years. He was restricted from lifting over 35 pounds due to a back impairment. However, the employee had worked in a small team and had an informal arrangement where his co-workers lifted the very heavy items. The issue in this case was whether lifting over 35 pounds was an essential function of his job. The employee argued that it was, citing a job description that required lifting 20-60 pounds frequently. The district court found for the employer, but this decision was reversed and remanded by the U.S. Court of Appeals for the Sixth Circuit. The appellate court held that lifting 35 pounds was not an essential function. In so holding, the court explained that the three-man team had been able to shelve product using the informal arrangement for years without problem. It also cited the testimony from plaintiff’s immediate supervisor and colleagues that plaintiff could perform the essential functions of the position without this type of lifting.
Demyanovich v. Cadon Plating & Coatings, 747 F.3d 419 (6th Cir. 2014)
The Sixth Circuit first held that lifting was not necessarily an essential function of a line operator position, as the employee’s job description identified several essential duties, but did not include a lifting requirement. The court also questioned whether the employee could perform the essential functions at the time of termination, and found a genuine issue of fact. At the time of the employee’s deposition, it was clear that he was no longer capable of several physically exerting activities; however, the defendant presented no evidence that the employee was unable to perform the job functions at the time of his termination, which was the relevant time period.
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014)
The defendant terminated a firefighter who had lost vision in one eye, citing his inability to operate a fire apparatus. The Sixth Circuit found a genuine issue of fact regarding whether operating a fire apparatus/other vehicle was an essential function of the firefighter’s position. In so finding, the Sixth Circuit emphasized that the employer’s judgment about which tasks are essential are not “conclusive,” and noted that the district court erred when it only considered the employer’s judgment. Further, the employer argued that driving was an essential function per the National Fire Protection Association guidelines, but the Sixth Circuit held that there was a dispute about whether these guidelines were actually adopted. Finally, the Sixth Circuit explained that it may be a reasonable accommodation to reassign the task of driving, in light of the evidence that this task could have “easily” been performed by colleagues.
E.E.O.C. v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013)
The Seventh Circuit affirmed a jury award of $100,000 in compensatory damages, $200,000 in punitive damages, and $115,000 in back pay in this ADA case. Here, the employee, a parts sales manager, asked to be relieved of the responsibility of mopping the floors due to back pain. Although this accommodation was granted initially, it was ultimately withdrawn. As a result, the employee experienced extreme back pain causing him to miss work and led to his termination. The Seventh Circuit held that the compensatory damages award was not excessive in light of the evidence of the employee’s physical pain. It also explained that the punitive damages award was appropriate because the managers failed to follow the company’s prescribed procedure for addressing accommodations requests. Note that this decision was the second appellate victory for the EEOC in this case, as an earlier appeal reversed a summary judgment decision and led to the June 2011 trial. See EEOC v. AutoZone, Inc., 630 F.3d 635 (7th Cir. 2010).
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013)
The Sixth Circuit allowed a lifeguard to proceed in his claim for disability discrimination. The lifeguard, who is deaf, was offered a job, but failed his pre-employment physical examination because of his inability to hear. The Sixth Circuit said this case should be sent to a jury because the question of whether the lifeguard is “qualified” is a question of fact. In support of the lifeguard, experts testified that the ability to hear was not essential to the successful performance of lifeguard duties because swimmers in distress use hand motions to signal for help. The lifeguard also presented evidence that the world record for most lives saved by a lifeguard is held by a deaf individual.
Sullivan v. Spee-Dee Delivery Service, Inc., 138 F. Supp. 3d 1050 (W.D. Wis. 2015)
The plaintiff in this case worked as a driver. The plaintiff had epilepsy and was restricted from driving a commercial motor vehicle pursuant to federal law. Although he wanted to remain in his position, he was reassigned to a part-time position with lower pay, fewer hours, and no benefits. The main issue addressed by the court was whether driving a commercial motor vehicle was an essential function of the driver’s position. If so, the driver was unqualified under the ADA. If not, the driver’s position could be restructured to remove the commercial motor vehicle requirement. The court denied the employer’s motion for summary judgment and found that the driver had presented sufficient evidence to create an issue of fact about whether driving was an essential function. It reasoned that the employee drove a commercial motor vehicle only five percent of the time, and the employer regularly made small route adjustments. It also noted that employer judgment was not dispositive, explaining that if “the rule was otherwise, an employer could insulate itself from ADA claims simply by deeming as ‘essential’ anything that the disabled employee could not do.” This case settled following the opinion.
Qualified/Conflicting Statements
Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999)
The Supreme Court considered whether the pursuit and receipt of SSDI automatically inhibits a recipient from pursuing an ADA claim, and concluded that it did not. Despite the “appearance of conflict” between the SSDI program and the ADA, the court held that these two claims do not inherently conflict, and “there are too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side.” The court explained why a recipient of SSDI could still be qualified under the ADA, including: (1) the Social Security Administration (“SSA”) does not take into account the possibility of reasonable accommodations in determining SSDI eligibility; (2) an individual might qualify for SSDI under SSA’s administrative rules for specific impairments, but still be able to perform essential functions; (3) the SSA grants SSDI benefits to individuals who can work and are working through the trial-work period; and (4) the individual’s condition might have changed over time, so that a statement made at the time of his SSDI application is not an accurate representation at the time of the relevant employment decision.
Butler v. Village of Round Lake Police Department, 585 F.3d 1020 (7th Cir. 2009)
The defendant argued that the statements made in a police officer’s application for disability pension prevented him from establishing that he was qualified under the ADA. In support of his pension application, the police officer stated that his pulmonary condition made it impossible to do the required duties, such as chasing a suspect or wrestling with an unruly one. He also provided certificates of disability from three physicians, who noted that he was “permanently disabled from police service” with certain limited restrictions. In an attempt to save his ADA claim, the police officer argued that the statements made at his pension hearing referred to his then-current abilities as opposed to the earlier time frame. Rejecting this argument, the court found that the police officer failed to provide any evidence that he could have performed the essential functions of police work during those earlier time frames because when he stopped reporting to work, he could “barely walk a few blocks or climb stairs.” This case reminds litigants that they must be able to prove the underlying facts to explain the apparent inconsistent statements.
Reasonable Accommodations
U.S. Airways v. Barnett, 535 U.S. 391 (2002)
In this Supreme Court case, an employee sought reassignment to a vacant position, but the employer claimed it would violate its policy granting reassignment by seniority, and thus, cause an undue hardship. The Supreme Court held that it would ordinarily be unreasonable (i.e. an undue hardship) for an employer to violate a consistently enforced seniority policy to place a person with a disability in an open position as a reasonable accommodation under the ADA. This case established the principle that reassignment may be available to a worker despite a seniority policy if the individual can show the seniority provision was not strictly followed in other cases, as the Supreme Court calls reasonable accommodations “special” and “preferential.”
EEOC v. United Airlines, 693 F. 3d 760 (7th Cir. 2012)
United Airlines had a reasonable accommodation policy which stated that an employee could be transferred as a reasonable accommodation but that the transfer process remained competitive. The EEOC sued, claiming that the ADA requires employers to transfer employees with disabilities who can no longer do their current job to a vacant position for which they are qualified. When the Seventh Circuit first heard this case, it noted that the EEOC’s position was persuasive, but ultimately rejected its argument because of precedent in the Seventh Circuit to the contrary, EEOC v. Humiston–Keeling, 227 F.3d 1024 (7th Cir. 2000). However, the Seventh Circuit recommended that the EEOC seek a rehearing en banc, which would allow all of the Seventh Circuit judges to hear the case and decide if it should change existing precedent regarding the reasonable accommodation of reassignment. In this decision, the Seventh Circuit reheard this case and it held that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. As a result, no longer can employers just allow employees with disabilities to “compete” for the position, as under previous precedent. The Seventh Circuit stated that a change of precedent was warranted given the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), which held that accommodation through appointment to a vacant position is reasonable. As a result, it overruled its decision in EEOC v. Humiston–Keeling. Absent a showing of undue hardship, an employer must implement such a reassignment policy. In addition, on May 28, 2013, the U.S. Supreme Court elected not to hear this case. See United Airlines, Inc. v. E.E.O.C., 2013 WL 2300817 (U.S. May 28, 2013).
Settlement Agreement, United States and the University of Michigan (E.D. Mich.)
www.ada.gov/univ_michigan/um_cd.html (June 2015)
The University of Michigan had a “best qualified” policy that required employees with disabilities unable to do an essential function of their job to compete for an open position. After conducting an investigation, the U.S. Department of Justice (DOJ) entered into an agreement with the University, which requires the University to revise its policy to be consistent with guidelines from the Equal Employment Opportunity Commission (EEOC) such that employees with disabilities are reassigned to vacant positions most similar to their current position. The agreement also includes monetary payments, training, and reporting requirements.
Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d 779 (7th Cir. 2016)
A special education teacher with post-traumatic stress disorder (PTSD) had a difficult relationship with her principal and requested leave and a transfer. The district placed the teacher in a Day Treatment program working with children with learning disabilities and also severe emotional and behavioral disorders, a position that neither the plaintiff nor the principal thought was an appropriate fit. The teacher was injured by a disruptive student, and her PTSD was further triggered. The plaintiff requested another leave and another transfer, but instead of granting these requests, the district terminated her position after finding that she was not performing well. Although the district court granted the school district’s motion for summary judgment, the U.S. Court of Appeals for the Seventh Circuit reversed and remanded this decision. It held that the teacher presented sufficient evidence that the district failed to consider transferring her out of the Day Treatment program and that there were at least seven vacancies for special education positions.
Miller v. Illinois Department of Transportation, 643 F.3d 190 (7th Cir. 2011)
Plaintiff, a highway maintainer on a bridge crew, alleged that his employer discriminatorily refused his request not to work at high heights in exposed positions as a reasonable accommodation for his acrophobia. The court allowed plaintiff’s case to proceed finding that before plaintiff was diagnosed, the employer had informally provided the requested accommodation by allowing other crew members to perform non-essential tasks when plaintiff could not do so. Further, other crew members were often accommodated and excused from other duties. These past “accommodations” undercut the employer’s argument that the plaintiff’s request was unreasonable.
E.E.O.C. v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015)
Reversing an earlier decision of the Sixth Circuit, an en banc panel held that “regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” As a result, the resale steel buyer was not qualified individual under the ADA, and her request to telework was not a reasonable accommodation.
Mosby-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595 (6th Cir. 2018)
Plaintiff Andrea Mosby-Meachem, in-house attorney at Memphis Light, Gas & Water Division (“MLGW”), requested to telework for ten weeks due to pregnancy-related complications. She participated in a phone meeting where she was asked if she could perform each essential function of her job remotely, to which she answered “yes.” However, her request was denied because MLGW found that her physical presence was an essential function of her position, and because telework created concerns about confidentiality. The United States District Court for the Western District of Tennessee, Western Division, denied MLGW’s motion for summary judgment, and the jury returned a verdict for Mosby-Meachem on her claim of disability discrimination and awarded her $92,000.00 in compensatory damages. The Sixth Circuit upheld the jury verdict. In doing so, the Sixth Circuit distinguished EEOC v. Ford Motor Co. (en banc), which held that that regular, in-person attendance is essential to most jobs. The court noted that “we expressly did not preclude teleworking in all cases.” In this case, there was evidence Mosby-Meachem worked remotely successfully in the past, and that her request was for a limited period. Here, there was sufficient evidence to support the jury verdict (such as testimony from her colleagues who said it wouldn’t be a problem, and her past experience in which she had never tried a case or taken a deposition) despite evidence to the contrary (such as her job description and the testimony of two former attorneys).
Bilinsky v. American Airlines, 928 F.3d 565 (7th Cir. 2019)
An employee with multiple sclerosis had worked from home for several decades for American Airlines. She was fired from her position after a restructuring of her department expanded her job duties to include in-person involvement. The Seventh Circuit confirmed the district court’s holding that the plaintiff was not a qualified individual who was entitled to protection under the ADA. It was no longer a reasonable accommodation for the plaintiff to work from home because the essential functions of her job had changed. The court emphasized that their holding was due to the unique facts of this case, and it could be a reasonable accommodation for an employee to telecommute.
Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017)
After a 12-week FMLA leave for serious back pain, Raymond Severson requested a leave extension under the ADA for 2-3 months from his employer, Heartland Woodcraft, Inc. His request was denied, but he was invited to re-apply after being cleared to work. Instead of reapplying, Severson sued his employer for discrimination in violation of the ADA because they failed to accommodate his physical disability. The United States District Court for the Eastern District of Wisconsin found for Heartland on their motion for summary judgment and agreed that Severson’s proposed accommodations were not reasonable. The Seventh Circuit affirmed, stating, “An employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.” The Seventh Circuit clarified that intermittent or short leave, such as a couple of days or even a couple of weeks, may be a reasonable accommodation. However, a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. See also Golden v. Indianapolis Housing Agency, 698 Fed.Appx. 835 (7th Cir. 2017) (six months of leave is unreasonable under ADA).
Gradek v. Horseshoe Cincinnati Management, 2017 WL 2573256 (S.D. Ohio June 14, 2017)
Elizabeth Gradek, table games supervisor (“TGS”) at the Horseshoe Cincinnati Casino had a standing restriction due to a knee injury. Supervisors typically rotate among different casino games, but the craps games have a standing “floor person” and a sitting “box” person. Gradek requested permanent placement in sitting “box” position. Horseshoe would not make the accommodation permanent, but offered her another position as a casino accounting clerk. Gradek refused the position, and her employment was terminated. Gradek sued for failure to accommodate and disability discrimination. Horseshoe filed for summary judgment on all claims, and the court denied the motion. The court found that sufficient factual dispute existed as to whether rotating shifts were an essential function of the TGS position. The court found that the written TGS job description did not conclusively establish that standing for more than one hour at a time was an essential function of the TGS position. The court noted that others had been informally accommodated. The court also found that at minimum, a genuine issue of material fact existed as to whether the reasonable accommodation poses an undue burden upon Horseshoe. The court rejected Horseshoe’s argument that the accommodation was an undue hardship because it would prevent others from maintaining skills as there were multiple craps tables open during the shift.
EEOC v. Supervalu, Inc., (N.D. Ill.)
www.eeoc.gov/eeoc/newsroom/release/1-5-11a.cfm (Jan. 2011)
Supervalu agreed to pay $3.2 million to settle the EEOC’s ADA suit that claimed that the employer’s ‘One Year and You’re Out’ and ‘No Accommodation, No Restrictions’ rules violated the ADA. Supervalu also agreed to various forms of injunctive relief, including policy changes.
EEOC v. Sears Roebuck & Co. (N.D. Ill.)
www.eeoc.gov/eeoc/newsroom/release/2-5-10a.cfm (Feb. 2010)
The EEOC asserted that Sears maintained an inflexible workers’ compensation leave policy, and terminated employees who exhausted their leave instead of considering accommodations, including an extension of their leave. In 2010, this case settled for $6.2 million.
EEOC v. Wal-Mart Stores, Inc., 345 F.Supp.3d 1046 (W.D. Wis. 2018)
The plaintiff, who is deaf with developmental, visual and intellectual disabilities, worked as a cart attendant for Wal-Mart for seventeen years. During his employment, he was assisted by a job coach, who Wal-Mart did not pay for. The plaintiff was constructively discharged from his position after a new manager required him to submit additional medical documentation to prove with a reasonable accommodation, he could do his job of cart attendant. After the plaintiff submitted new medical documentation, Wal-Mart ceased communication with the plaintiff and did not schedule him for any hours. The court held that it was an issue of fact if Wal-Mart terminated the plaintiff in violation of the ADA and failed to provide reasonable accommodation for the plaintiff. Here, it would be a reasonable accommodation for the plaintiff to have a job coach. It was evident that the plaintiff could perform the essential duties of the job because he had been doing his job for seventeen years. At trial, a jury awarded the plaintiff $200,000 in compensatory damages and $5 million in punitive damages. See www.eeoc.gov/newsroom/jury-awards-52-million-against-walmart-eeoc-disability-discrimination-case.
Pagenkopf v. United Parcel Service, 2018 WL 288119 (D. Minn. Jan. 22, 2019)
The plaintiff, who is deaf, worked for the United Parcel Service (“UPS”) as a package handler for fourteen years. Several times, he bid for a position of a driver, and each time he was awarded a bid for the driver position, but he was not allowed to be trained for the position because UPS feared he could not perform the essential duties of the job. In particular, UPS was concerned about his ability to communicate via an intercom. The plaintiff provided several possible reasonable accommodations such as assistance from building residents, leaving a note using a pre-recorded message, voice-to-text apps, video relay systems, or video remote interpreting. The court concluded that the plaintiff has a claim for the failure of reasonable accommodation.
EEOC v. Transp. Corp. of America, Inc., 19-cv-02300 (D. Minn.)
https://www.eeoc.gov/eeoc/newsroom/release/10-1-19.cfm (Sept. 2019)
Transport America, a Minneapolis trucking company, required that a truck driver pay a fee to have a service dog accompany him while driving. The animal was required as a reasonable accommodation for the driver’s anxiety. The EEOC stated that a policy allowing service animals for employees with disabilities is insufficient to comply with the ADA. Employers must avoid placing any burden on the employee with a disability that is not placed on employees who do not need a service animal or who do not have animals accompany them. The judge entered a Consent Decree on Sept. 30, 2019. Transport America must pay the truck driver $22,500 and revise its policies to permit qualified employees with disabilities to use a service animal without additional cost to the employee.
Interactive Process
EEOC v. Dolgencorp, LLC, F.3d 428 (6th Cir. 2018)
A Dollar General employee requested permission to keep orange juice with her when working alone, which was refused without engaging in the interactive process. Dollar General later fired the employee for twice drinking an orange juice from the store cooler to remedy hypoglycemic episodes caused by diabetes. A jury found for the employee, awarding her over $277,000 and attorneys’ fees. The Sixth Circuit affirmed the jury verdict. The court rejected Dollar General’s argument that the employee had practical alternatives to her requested accommodation. The court reasoned Dollar General failed to engage in the interactive process and advise the employee alternatives such as carrying glucose tablets. The court also held plaintiffs are not required to show discriminatory animus by defendants to support disparate treatment claims. When employers refuse reasonable requests to modify policy they cannot then rely on that policy as a neutral basis for termination. The court upheld the award of attorneys’ fees.
Garrison v. Dolgencorp, LLC, 939 F.3d 937 (8th Cir. 2019)
A retail sales associate with anxiety and depression asked how to request a leave of absence. The employer Dollar General responded, “there was no leave of absence” and directed the associate to “read the employee handbook.” The associate then missed a shift due to a hospital visit. She requested to use vacation time for the remainder of the week. Dollar General denied the associate’s request, and the associate resigned. The district court granted summary judgment to Dollar General pursuant to the associate’s failure to accommodate claim. On appeal, the 6th Circuit reversed summary judgment. The court held a reasonable jury could conclude Dollar General knew about the associate’s disability, the associate made Dollar General aware of the need for an accommodation, and Dollar General failed to engage in the interactive process. Making an employer aware of the need for an accommodation is equivalent to requesting an accommodation even if the associate “never used those ‘magic words.’” The case was remanded.
Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996)
An employee developed various mental health conditions during his employment as a custodian. The employee provided his employer with a note from his psychiatrist stating that it was in the employee’s best interest to work at a different school that would be less stressful. In his failure to accommodate case, the court found that the employee presented sufficient evidence to show that the employer may have failed to accommodate him and, therefore, that this claim could go before a jury. In reaching this decision, the court noted that both parties must participate in an interactive process to reach an appropriate reasonable accommodation. This process does not require an employee to say, “‘I want a reasonable accommodation,’ particularly when the employee has a mental illness.” The employer must “meet the employee half-way” and work with the employee to determine what reasonable accommodation is appropriate when the employee expresses some desire for needing or wanting one.
Basden v. Prof’l Transp., Inc., 714 F.3d 1034 (7th Cir. 2013)
The plaintiff had missed work on multiple occasions to see physicians to determine if she had Multiple Sclerosis. After being suspended for absenteeism, she requested an unpaid 30-day leave of absence. The employer denied this request, failed to engage in the interactive process, and fired the plaintiff for missing work. Although the employer failed to engage in the interactive process, the court still granted summary judgment for the defendant. The Seventh Circuit upheld this decision, and explained that “even if an employer fails to engage in the required process, that failure need not be considered if the employee fails to present evidence…that she was able to perform the essential functions of her job with an accommodation.” In this case, there was no evidence that any reasonable accommodation would have enabled the plaintiff to perform her essential functions.
Medical Examinations
Karraker v. Rent-A-Center, 411 F.3d 831 (7th Cir. 2005)
A group of current and former employees challenged an employer’s policy requiring employees seeking management positions to take the Minnesota Multiphasic Personality Inventory (“MMPI”), alleging that the ¬¬MMPI can identify mental health conditions. The trial court held that the test did not violate the ADA because it was used for “vocational” purposes to predict future job performance and compatibility. The Seventh Circuit reversed, however, and held that the MMPI is designed to diagnose mental illness, and thus, is a medical examination subject to the ADA’s restrictions on medical exams and inquiries. The Seventh Circuit held that the MMPI was, in fact, a medical examination. It further explained that the test tended to screen out people with mental illness, and it was irrelevant that the test was graded on a vocational scale, as opposed to a medical scale. The court also held that to have standing to challenge a medical examination a plaintiff is not required to be a person with a disability.
Kroll v. White Lake Ambulance Authority, 691 F.3d 809 (6th Cir. 2012)
An emergency medical technician was required to undergo psychological testing and see a mental health counselor after she was accused of several outbursts at her workplace. The question before the Sixth Circuit was whether this constituted a medical examination. Applying the EEOC’s seven factor test, the Sixth Circuit determined that this could have been a “medical examination” under the ADA. The Sixth Circuit also held that an employee does not need to actually submit to a demand to challenge it as unlawful.
Wright v. Illinois Department of Children & Family Services, 798 F.3d 513 (7th Cir. 2015)
This case helped clarify the standard for when an employer can order an employee to undergo a fitness for duty (FFD) examination. The plaintiff worked as a caseworker, and the employer claimed that her supervisor and administrator were concerned about certain behaviors, including her long-standing history of failing to follow orders. A doctor questioned the caseworker’s ability to work with children and noted that “her mental health needs to be assessed.” The employer ordered the caseworker to undergo an FFD, but the caseworker refused on various occasions. This case was presented to a jury, and the jury concluded that the FFD was not legally permissible under the ADA, as it was not job-related & consistent with business necessity. After the district court denied the employer’s motion for judgment as a matter of law, this case was appealed to the Seventh Circuit Court of Appeals, which upheld the decision for the plaintiff. In so doing, the Seventh Circuit outlined the law surrounding medical exams and inquiries. It explained that medical exams of current employees must be “job-related and consistent with business necessity,” and that all employees, regardless of whether they have a qualifying disability under the ADA, are protected by the ADA’s restrictions on medical exams and inquiries. It noted that an employer must have a reasonable basis based on objective evidence that a medical condition will impair the employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition. Finally, it explained that the employer bears the burden of establishing business necessity, and that this burden is “quite high.” In this case, the Seventh Circuit found support for the jury’s decision in the fact that this case was inconsistent with the employer’s usual practice. When an FFD was pending, the employer typically placed that employee on desk duty. Here the plaintiff continued to oversee her normal caseload for almost two months. Given the inconsistent application of the employer’s own policy, the Seventh Circuit held that the employer likely had no real concern about safety.
EEOC v. Strataforce, 1:17-cv-4104 (S.D. Ind.)
www.eeoc.gov/eeoc/newsroom/release/11-14-17.cfm (Nov. 2017)
The EEOC challenged Strataforce’s requirement that applicants for employment complete a pre-offer health questionnaire. The questionnaire asked for sensitive health information and included numerous disability-related questions. The parties reached an agreement and filed a joint motion to approve a consent judgment. Under the consent judgment, Strataforce will be required to provide notice to applicants of their rights under the ADA and submit annual compliance reports to the Commission during the Judgment's four-year term.
DOJ Agreement with New Albany, Indiana, 17-cv-185 (S.D. Ind.)
www.ada.gov/new_albany/new_albany_sa.html (Oct. 2017)
The police chief of New Albany, Indiana, requested medical information from an officer on leave. Based on that medical information, the chief filed charges against the officer to the Merit Commission, and in doing so, provided medical information. The Commission voted to permit the officer to work at a public meeting. However, at the meeting, the chief and the city’s attorney referenced the officer’s disability and their concerns regarding his fitness. The Commission attorney also gave the press charging documents that had info regarding the officer’s prescription medications, treatment, and psychological evaluations. The DOJ and the City of New Albany reached a settlement agreement of $100,000. Additionally, the settlement agreement requires the New Albany Police Department and Merit Commission to revise policies, practices, and procedures regarding confidentiality, and provide training about confidentiality requirements.
Direct Threat
Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002)
An individual with Hepatitis C was not hired as his employer considered the employee a danger to himself because his liver condition may be exacerbated by exposure to toxins at work. The employee argued that the direct threat defense does not apply to threats to self. The ADA statute listed only “danger to others” as a defense, while the EEOC regulations listed danger to self. The Supreme Court upheld the EEOC’s regulations, finding that the direct threat analysis includes a threat to self.
Branham v. Snow, 392 F.3d 896 (7th Cir. 2005)
An applicant with Type 1 Insulin Dependent Diabetes was denied a position as an IRS criminal investigator, and the IRS argued that the applicant posed a direct threat. After considering the duration of the risk posed, and the nature and severity of the risk, the Seventh Circuit ultimately found that the IRS failed to establish that the applicant posed a direct threat as a matter of law. Regarding the duration of risk, the IRS asserted that the applicant experienced significant long-term and short-term changes in his blood glucose levels that could affect his performance. The applicant, however, asserted that while diabetes cannot be “cured,” he can control the condition so effectively that there is no “real ... duration of risk.” The Seventh Circuit agreed with the applicant. Regarding the nature and severity of the risk, the IRS asserted that the drastic changes in blood sugar level could “significantly degrade [the applicant’s] abilities to function as a special agent, potentially endangering [the applicant], his colleagues and the public.” The applicant, however, argued that although the risks of severe hypoglycemia can include incapacitation, confusion, coma, and death, he never had lost consciousness, and he had never experienced physical or mental incapacitation as a result of mild hypoglycemia. Again, the Seventh Circuit agreed with the applicant and held that a reasonable trier of fact could conclude that any hypoglycemia experienced by the applicant would not impair his ability to perform his duties.
Darnell v. Thermafiber, Inc., 417 F.3d 657 (7th Cir. 2005)
The Seventh Circuit affirmed summary judgment for an employer who did not rehire an employee with insulin-dependent, Type 1 diabetes. The employer learned during the employee’s pre-employment physical that his diabetes was not under control. The Seventh Circuit held that an employee is not qualified for employment if his disability poses a direct threat to his safety or the safety of others. Here, because uncontrolled diabetes in a manufacturing plant with dangerous machinery could cause serious injury to himself, and because the employer relied on sufficient objective medical evidence and an individualized assessment in making its decision, the employer did not violate the ADA. See also EEOC v. Rexnord Industries, 966 F. Supp. 2d 829 (E.D. Wisc. 2013) (okay to exclude an employee with a seizure disorder because of threat to self).
Fortkamp v. City of Celina, 159 F. Supp. 3d 813 (N.D. Ohio Feb. 1, 2016)
An employee injured his back while working as an electric lineman. After a spinal fusion surgery and a nearly five-year absence he applied for reinstatement. The city refused, arguing that he posed a direct threat because there was a high likelihood that re-injury would occur. The employee responded by asserting that the employer was inflating the arduousness of essential functions and provided videos of him lifting weights as well as support from physicians. The court denied the employer’s motion for summary judgment, finding that the employer failed to demonstrate that the employee posed a direct threat as a matter of law.
Stragapede v. City of Evanston, 865 F.3d 861 (7th Cir. 2017)
Stragapede, an employee of the City of Evanston’s water services department, acquired a traumatic brain injury and took leave. Stragapede was examined for fitness for duty by the city’s neurologist, who noted he had “mild residual cognitive deficits” but cleared his return to work. The City asserts that shortly thereafter, Stragapede had performance issues, such as problems changing water meter, logging into his computer, reporting to wrong locations, and driving through an intersection while looking down. The City reported their concerns to the neurologist, who concluded that these events were likely caused by Stragapede’s brain injury. The neurologist drafted a letter saying Stragapede was a direct threat to the health and safety of himself or others. The letter asserted Stragapede could not safely perform the essential functions of his job. The City of Evanston fired Stragapede, who then filed an ADA lawsuit. At trial in the United States District Court for the Northern District of Illinois, Eastern Division, the jury found for Stragapede and awarded him over $575,000. The City appealed and argued that it honestly believed that Stragapede posed a direct threat to himself and others, so it should not be liable. The Seventh Circuit found for Stragapede and affirmed the lower court’s decision. The court noted that the direct threat defense requires “medical or other objective evidence,” but the City’s subjective belief about Stragapede’s risk was insufficient. The court found that the jury could have rationally found the doctor’s opinion to be unreasonable because the doctor only had one-sided information and months before had cleared Stragapede’s return. Additionally, Stragapede was able to explain some issues, and other issues named by The City weren’t safety issues.
Harassment
Ford v. Marion Cty. Sherriff’s Office, 942 F.3d 839 (7th Cir. 2019)
Ford, a clerk for the Sheriff’s Office, did not have the full use of her right hand. Ford allegedly suffered three years of disability harassment, first from coworkers Ladd and Watts. Following Ladd and Watts’ transfer to a different office Hendricks began working with Ford and allegedly harassed Ford for her disability. The district court granted partial summary judgment for the Sheriff’s Office on Ford’s hostile work environment claim. The district court granted partial summary judgment on the portion of Ford’s claim related to Ladd and Watts was, and the jury found for the Sheriff’s Office concerning the second period of alleged harassment. Ford appealed to the Seventh Circuit, arguing that the district court erred in dividing the case’s issues because the two alleged periods of harassment were part of the same unlawful employment practice.However, harassment may not always constitute one continuing violation: “a substantial passage of time without incident known to the employer, a change in the employee’s supervisors, [or] an intervening remedial action by the employer” may break the chain. In this case, the two periods of harassment could not be aggregated; therefore, the Seventh Circuit affirmed the district court’s grant of partial summary judgment.
EEOC v. Herbruck Poultry Ranch, Inc., Case No. 1:19-cv-00165 (W.D. Mich.)
https://www.eeoc.gov/eeoc/newsroom/release/12-5-19.cfm (Dec. 2019)
An employee with a disability experienced frequent mocking by her supervisor and coworkers about her disability-related symptoms. The employer failed to take adequate remedial measures in response to the harassment, retaliated against the employee for complaining by increasing the speed of her work, and constructively discharged her through escalating harassment. The harassment included a supervisor following the employee with a disability into a bathroom and initiating a confrontation with the disabled employee on her last day of work. The judge entered a consent decree awarding $93,000 to the employee and mandating the employer to provide annual training on disability discrimination.
Title II (State and Local Governments)
Access to Voting
Settlement Agreement: United States and the Chicago Board of Elections
www.ada.gov/chicago_boe_sa.html (Apr. 11, 2017)
The United States conducted an initial investigation into the accessibility of polling places in Chicago and found that a significant percentage had multiple accessibility barriers. After informing the Chicago Board of Elections (“CBOE”) of these initial findings, CBOE contracted with Equip for Equality, the Illinois Protection and Advocacy Agency, to inspect over 1,000 polling sites to assess their accessibility. As a result, CBOE entered into a settlement agreement with the United States to ensure that every polling site in Chicago (2,000 precincts and nearly 1,500 polling sites) is accessible to persons with disabilities by the November 6, 2018, general election. CBOE also agreed to train all precinct coordinators on the installation and maintenance of any equipment, including wheelchair ramps, and has agreed to retain EFE to act as an expert consultant to continue its review to effectuate the terms of the settlement.
Hindel v. Husted, 875 F.3d 344 (6th Cir. 2017)
Plaintiffs claimed Ohio's paper-ballot absentee voter system discriminates against the blind, as blind voters must rely on the aid of a sighted person to read and complete the paper ballot, thus depriving them of the ability to vote anonymously. Plaintiffs proposed that Ohio adopt an online marking tool for absentee ballots that is used by other states. Ohio argued fundamental alteration to the system, and that implementing a new system would violate state law due to Ohio’s certification requirements. The district court found for Ohio and granted Ohio’s motion for judgment on the pleadings. The court held that plaintiffs’ allegation that they were denied meaningful access to vote privately and independently was a prima facie case of discrimination under the ADA, but the proposed tool was a fundamental alteration to Ohio's voting laws. On appeal, the Sixth Circuit found for plaintiffs and reversed and remanded. The Sixth Circuit found that Ohio has the burden to show the proposed tool is unreasonable or incompatible with Ohio’s election system. The parties settled, and Ohio agreed to implement a certified electronic ballot marking tool for the November 2018 election.
Zoning
Valencia v. City of Springfield, 883 F.3d 959 (7th Cir. 2018)
The City of Springfield, Illinois defines a “family care residence” as a home occupied by a group of no more than six unrelated persons with disabilities, plus paid professional support. City zoning codes restrict “family care residences” from being located within 600 feet of another such facility. Plaintiff Individual Advocacy Group, Inc. (“IAG”), a non-profit organization that provides residential services to adults with disabilities, worked with clients to lease property from landlord for use as a Community Integrated Living Arrangement (“CILA”).The CILA qualified as a “family care residence” as defined by Springfield. Two years after opening, a complaint was filed against IAG because another “family care residence” was located within 600 feet. In response, IAG tried various methods of approval and exception, which were all denied by the City. IAG and a resident of the Noble home filed suit under the ADA, the Fair Housing Act and the Rehabilitation Act, alleging that the City discriminated against the CILA’s residents on the basis of their disabilities. The district court granted the Plaintiffs’ motion for preliminary injunction to enjoin the City from evicting the Noble Home residents during the pendency of the case, finding the Plaintiffs had a reasonable likelihood of success under both a disparate treatment and reasonable accommodation theory. The Seventh Circuit affirmed the decision. It analyzed the issue under the reasonable accommodation theory and found that because suitable group homes are in short supply, exceptions are necessary for equal opportunity. “In the context of a zoning waiver, equal opportunity means the opportunity to choose to live in a residential neighborhood.” The City argued that this was not an equal opportunity issue, as “there is no provision under [the City's] zoning code for three unrelated non-disabled adults to live in a single-family home.” The Court also emphasized that the City had no record of enforcing the prohibition against three unrelated, non-disabled adults living in the same home.
Criminal Justice
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998)
An inmate was restricted from attending a boot camp program due to hypertension and filed suit under Title II of the ADA. The State argued that Title II does not apply because prisoners don’t receive the “benefits of the services, programs, or activities.” The Supreme Court disagreed, holding that Title II of the ADA protects state prison inmates. It explained that modern prisons provide a variety of services, programs, and activities that benefit prisoners. This case helped establish the principle that the ADA can still apply to entities that are not expressly mentioned in the Act, demonstrating the “breadth” of ADA.
Jaros v. Illinois Dep’t of Corr., 684 F.3d 667 (7th Cir. 2012)
A prisoner who used a cane due to his advanced osteoarthritis and vascular necrosis in his hip filed suit when he was unable to access showers and meals the same as non-disabled prisoners, and because he was denied access to the prison’s work release program because of his use of a cane. The court allowed the plaintiff to proceed in his Rehabilitation Act claims that the IDOC failed to accommodate his disabilities and that he was impermissibly denied participation in the prison’s work release program.
McBride v. Michigan Dep’t of Corr., 294 F. Supp. 3d 695 (E.D. Mich. Mar. 9, 2018)
This class action on behalf of deaf and hard of hearing people incarcerated in the Michigan Department of Corrections asserted systemic failure to provide auxiliary aids and services. The court found for plaintiffs and granted in part their motion for summary judgment. The court found that the MDOC violated the ADA by failing to provide video phones. While MDOC asserted a defense of “possible safety concerns,” they failed to explain why traditional safety policies were insufficient. The court noted that deaf and hard of hearing prisoners must have communications that “are as effective” as communications with others, and noted that defendants’ own witness compared TTY system to “sending someone a fax to their homes versus an email to communicate.” The court ordered that video phones be made available for all deaf/hard of hearing prisoners. The court also found that the MDOC violated the ADA by failing to provide ASL interpreters. The court ordered that MDOC provide necessary auxiliary aids for all deaf and hard of hearing prisoners to participate equally in programs, including consistent access to ASL interpreters for all “high-stakes” interactions, including religious services (even though they are “voluntary” and led by volunteers). The court also ordered mandatory training for correctional officers and staff on how to identify and appropriately interact with deaf and hard of hearing inmates. The case resulted in a public settlement.
Holmes v. Godinez, 311 F.R.D. 177 (N.D. Ill. 2015)
www.equipforequality.org/wp-content/uploads/2018/07/Holmes-Stipulation-of-Settlement.pdf
Plaintiffs are a group of deaf and hard of hearing people incarcerated in the Illinois Department of Corrections. They brought a class action alleging that IDOC systematically failed to provide ASL interpreters and other forms of communication, thus them of meaningful access to healthcare, religious services, educational programs, and pre-release programs. This case settled four years after the court issued an opinion certifying the plaintiff class and denying, in large part, the defendant’s motion for summary judgment. The settlement revised IDOC’s process for identifying deaf and hard of hearing inmates, as well as assessing their communication-related needs. Under the agreement, IDOC will provide enhanced screening to identify which prisons are deaf or hard of hearing, provide hearing aids when recommended by an audiologist, provide sign language interpreters for prisoners who communicate in ASL, ensure every Illinois prison with a deaf or hard of hearing prisoner has at least one video phone, two TTYs, two amplified telephones, and establish a safe way to provide accessible notifications about emergencies, evacuations, meals, showers, yard time, doctor and counselor appointments, and visitors to deaf or hard of hearing prisoners.
Access to Courts
Reed v. Illinois, 808 F.3d 1103 (7th Cir. 2015)
The plaintiff had a rare neurological disorder called tardive dyskinesia, which caused her to become mute, scream, or make involuntary movements, particularly when under stress. She also had PTSD and bipolar disorder, which caused her severe anxiety. She filed a personal injury case in state court and made a number of requests for reasonable accommodations from the court’s disability coordinator. Some of these requests were approved (a friend/family member could take notes; podium; occasional recesses), and others were denied (microphone; interpreter; jury instruction explaining her disability). During the trial, the presiding judge expressed annoyance with the plaintiff by telling her to hurry up and glaring at her and, ultimately, the jury found for the defendant. The plaintiff moved for a new trial due to the inadequate accommodations, which the court denied. In so doing, the court denied the plaintiff’s motion for oral argument on her motion for a new trial because her severe speech impediment prevented her from communicating while also concluding that her impediment was accommodated during the trial. The plaintiff then filed a federal case under the ADA and Rehabilitation Act, which was dismissed under the principle of collateral estoppel after the trial court found that the case had already been decided. The Seventh Circuit reversed and remanded. It held that it was unfair to deprive a litigant of an adequate day in court due to a disability that impeded effective litigation, as well as unfair for the state court judge to simultaneously adjudge her as “incompetent to make an oral presentation” and that accommodations were adequate. The court cited the decision in the Supreme Court case Tennessee v. Lane to emphasize the history of unequal treatment in justice system for people with disabilities. It further concluded that: “For one court (state court) to deny accommodations without which a disabled plaintiff has no chance of prevailing in her trial, and for another court (federal district court) on the basis of that rejection to refuse to provide a remedy for discrimination that she experienced in her first trial, is to deny the plaintiff a full and fair opportunity to vindicate her claims.”
Community Integration
Olmstead v. L.C., 527 U.S. 581 (1999)
The Supreme Court held that unwarranted institutionalization of people with disabilities is a form of discrimination under ADA. Since this decision, Olmstead has been applied to individuals at risk of institutionalization, in state-funded but privately operated facilities, and most recently to employment.
Illinois League of Advocates for Developmentally Disabled v. Illinois Dep’t of Human Servs., 803 F.3d 872 (7th Cir. 2015)
The State of Illinois planned to close an institution and transition people with developmental and intellectual disabilities into the community. A group of plaintiffs filed suit on behalf of their disabled family members and sought a preliminary injunction, alleging that the State’s initiative would deny them services or benefit. The district court disagreed, finding the closure to be consistent with Title II, Section 504 of the Rehabilitation Act, and the directives of the Supreme Court’s decision in Olmstead. The court noted that the State’s plan permitted the option for individuals to move into another institutional setting if community living was unworkable or undesirable. The case was then appealed to the Seventh Circuit, which affirmed the lower court’s decision. The Seventh Circuit’s opinion included progressive language about the benefits of community integration, and described Illinois as a “laggard outlier” in the national movement to transition residents out of institutions into community-based settings, while citing the amicus brief of disability organizations. To read the amicus brief filed by Equip for Equality, see www.equipforequality.org/wp-content/uploads/2015/04/Murray-Amicus-Brief-in-7th-Circuit-4-8-15.pdf
Grooms v. Maram, 563 F. Supp. 2d 840 (N.D. Ill. Consent Decree entered May 30, 2008)
The plaintiff has a rare progressive neuromuscular disease and received nursing care in his home from the State of Illinois. However, when he turned 21, he aged out of the Medicaid “waiver” program that the State had invoked to provide him with home services. A State physician had certified that all of the plaintiff’s services were medically necessary and cost neutral to the State, yet, on his 21st birthday, the State reduced the plaintiff’s benefits by more than half, which placed him at risk of institutionalization. He then sued under Title II of the ADA. Eventually, the court entered a permanent injunction ordering the State to restore the approved level of in-home nursing services. The court found that to provide the plaintiff with the services he had been receiving prior to turning 21 would not constitute a “fundamental alteration” under the ADA.
Colbert v. Quinn, 07 C 4737 (N.D. Ill. Consent Decree entered Dec. 20, 2012)
A class action was brought against Illinois state officials on behalf of approximately 20,000 people with physical disabilities and/or mental illness living in nursing homes in Cook County, Illinois. On December 20, 2011, a comprehensive Consent Decree was entered by the judge, which will allow qualified nursing home residents the opportunity to move into the community and receive the supports they need to be successful.
Williams v. Quinn, 748 F. Supp. 2d 892 (N.D. Ill. Sept. 29, 2010)
A class action was brought against Illinois state officials on behalf people with mental illness living in large private state-funded facilities known as Institutions for Mental Disease (IMDs). On September 29, 2010, a comprehensive Consent Decree was entered by the judge, which, over a five-year period, will allow all IMD residents (approximately 4,500 people) who desire community placement to transition to the most integrated community-based setting. The decision is significant because it makes clear that the ADA and Olmstead apply to privately owned facilities that receive state funding.
Ligas v. Hamos, 05 C 4331 (N.D. Ill. Consent Decree entered June 15, 2011)
A class action was brought against Illinois state officials for their failure to provide sufficient community services on behalf of people with developmental disabilities who either live in large private state funded Intermediate Care Facilities for the Developmentally Disabled (ICF-DDs) or who are at risk of living in such facilities. The parties agreed to resolve the case before trial, and on June 15, 2011, the judge entered a comprehensive Consent Decree. Under the Decree, any of the approximately 6,000 ICF-DD residents who desire placement in the community will transition to the most integrated community-based setting appropriate for their individual needs over a six-year period, and an additional 3,000 people with developmental disabilities currently living at home without services will also be given community services. Before the Consent Decree ends, the State must have a waiting list for serving people with developmental disabilities at a reasonable pace.
State Sovereign Immunity
Tennessee v. Lane, 541 U.S. 509 (2004)
Two Tennessee residents with paraplegia were denied access to judicial proceedings because those proceedings were held in courtrooms on the second floor of the building, which lacked elevators. The State argued that it was immune from Title II suits under the Eleventh Amendment, while the plaintiffs argued that there should at least be liability for injunctive relief. The Supreme Court held that Congress, in Title II, appropriately abrogated state sovereign immunity, and plaintiffs can bring ADA damage cases for denial of court access. It cited the extensive history of discrimination regarding public access, and documented the history of state-sponsored discrimination against people with disabilities in many different areas, including voting, education, institutionalization, marriage and family rights, prisoners’ rights, access to courts, and zoning restrictions.
Prakel v. State of Indiana, 2015 100 F. Supp. 3d 661 (S.D. Ind. Mar. 30, 2015)
This case extended the Lane holding to court spectators. Here, a family member who is deaf was allowed to sue under Title II for denial of an interpreter in a case where his mother was a criminal defendant.
Brewer v. Wisconsin Bd. of Bar Exam’rs, 270 Fed. App. 418 (7th Cir. 2008)
The Seventh Circuit held that the Wisconsin Board was immune from suit, as the ADA did not abrogate state immunity for claims challenging attorney-licensing practices. It reasoned that there was no evidence of a history and pattern of disability discrimination in attorney-licensing.
King v. Marion Circuit Court, 868 F.3d 589 (7th Cir. 2017)
Marion County subsidizes a private dispute resolution program in domestic-relations cases, the Marion County Domestic Relations Alternative Dispute Resolution Plan. Financial assistance to defray the cost of mediation, the “modest means program,” can be ordered or requested. Plaintiff Dustin King requested the court refer his case to mediation and authorize his participation in the subsidy program. King also asked for ASL interpreter for the mediation. The court denied King’s request for an ASL interpreter for his participation in the program but agreed to provide one if King continued through court. King declined and relied on his stepfather to interpret through the mediation process. King sued the circuit court in federal court for denial of benefits of the services, programs, or activities of a public entity under Title II of the Americans with Disabilities Act. Indiana asserted sovereign immunity. United States District Court for the Southern District of Indiana, Indianapolis Division, held that Indiana does not enjoy sovereign immunity because this case falls within the abrogation of that immunity sustained in Tennessee v. Lane, 541 U.S. 509 (2004). King prevailed at trial, and the Marion Circuit Court appealed. The Seventh Circuit found for Marion County and reversed/remanded the bench trial decision. Because sovereign immunity bears on whether a federal court may hear a case, the Seventh Circuit addressed the issue before considering the merits. The court found that this was not a valid abrogation of sovereign immunity, and that Marion Circuit Court is immune from this suit in federal court. Here, unlike in Tennessee v. Lane, denial of court-annexed mediation services is not a denial of judicial services. Mediation services were not mandatory for King, but optional. The Circuit Court, therefore, did not actually violate any right falling under Lane's “fundamental access” umbrella. Therefore, the Seventh Circuit concluded that this case has no constitutional dimension, and Title II does not abrogate sovereign immunity here. The Marion Circuit Court remains immune from this suit in federal court.
Titles II/III (Cases that Impact Both Titles)
Website Access
Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999)
This lawsuit challenged an insurance policy’s cap on lifetime benefits for HIV-related conditions as discriminatory under the ADA because the policies had higher cap on other medical conditions. This decision has been important in the development of case law regarding whether the Internet is a place of public accommodation. Although the case was ultimately decided on different grounds, the Seventh Circuit stated: “The core meaning of [title III’s nondiscrimination provision, 42 U.S.C. § 12182(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons . . .”.
Dudley, U.S.A. v. Univ. of Miami, 14-cv-38 (S.D. Ohio)
www.ada.gov/miami_university_cd.html (Dec. 2016)
This lawsuit was initially brought by a student who is blind about her experience without accessible classroom technologies. The United States intervened and expanded this case to impact all students with disabilities at Miami University in Ohio. The parties entered into a consent decree, whereby the University agreed to improve its technology to ensure that it is accessible to students who are blind. This comprehensive and detailed consent decree addresses the wide-range of issues from web content to textbooks to course materials to IT procurement policy. For instance, the University agreed to ensure that its web content and learning management systems will confirm with WCAG 2.0 AA. It also agreed to meet with every student with a disability who requires assistive technology or curricular materials in alternate formats, and their instructors, every semester to develop an accessibility plan, and to procure web technology or software that best meets the accessibility standards.
Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557 (7th Cir. 1999)
This lawsuit challenged an insurance policy’s cap on lifetime benefits for HIV-related conditions as discriminatory under the ADA because the policies had higher cap on other medical conditions. This decision has been important in the development of case law regarding whether the Internet is a place of public accommodation. Although the case was ultimately decided on different grounds, the Seventh Circuit stated: “The core meaning of [title III’s nondiscrimination provision, 42 U.S.C. § 12182(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons . . .”.
Access to Emergency Medication in Childcare Setting
Settlement Agreement: United States and the YMCA of Metro Chicago, (N.D. Ill.)
www.ada.gov/ymca_chicago.html (December 2016)
Complainants filed a complaint with the United States on behalf of their nine-year-old daughter with type 1 diabetes. She participated in the YMCA’s swim team and requested that staff receive training on the administration of glucagon, a potentially life-saving medication administered if the daughter experienced severe hypoglycemia. The YMCA agreed to resolve this dispute by adopting a diabetes management policy and providing training to its employees. Note that in addition to this agreement, in 2016, there were three other agreements with YMCAs across the country on issues related to the inclusion of kids with diabetes.
DOJ Agreement with Learning Care Group, Inc. (E.D. Mich.)
https://www.ada.gov/lcg_sa.html (March 2018)
Learning Care Group, Inc., (“LCG”) located in Michigan, owns and operates approximately 900 childcare centers across the country for children ages six weeks to twelve years old. The United States initiated a compliance review of LCG’s treatment of children with diabetes based on complaints from parents of children with Type I diabetes. The parents alleged that LCG refused to assist their children with insulin administration (by pen or syringe). The United States found that this refusal was based on a corporate-wide policy requiring such refusal. LCG agreed to evaluate each request for assistance on an individual basis, and to provide child-specific training to appropriate employees on blood sugar testing; administration of insulin through pen, syringe, or pump; administration of the emergency medication Glucagon; and a refresher on practicing universal precautions. LCG also agreed to update their written policies and procedures regarding LCG’s obligations under title III of the ADA, provide ADA training to their managers, and pay $10,000 in compensatory damages to each of the eight aggrieved individuals/families identified by the United States in its investigation.
Architectural Access: Barrier Removal
Thomas v. Kohl’s Corp., 2018 WL 704691 (N.D. Ill. Feb. 5, 2018)
Plaintiff Patricia Thomas lives with the progressive effects of Multiple Sclerosis that limits her ability to walk and stand. She uses a walker or scooter. Thomas brought a lawsuit against Kohl’s alleging she could not access certain merchandise due to a narrow path caused by obstruction from a moveable display. The district court found for Thomas and denied Kohl’s motion for summary judgment. Kohl’s had argued that the ADA did not apply because there are no express spacing requirements for moveable display racks. However, the court found that spacing of moveable display racks are governed by the “readily achievable” standard of the ADA. The court noted evidence that those changes would be readily achievable; additional inches around displays would not result in a significant loss of selling or serving space, and enhancing training would have minimal impact on overall operations and resources of store. The court also rejected Kohl’s “customer service defense” as an alternative.
DOJ Agreement with Fill Building Associates, LLC (DJ # 202-37-249) (E.D. Mich. Agreement Reached May 5, 2017)
https://www.ada.gov/fill_building_sa.html
Complainants alleged that the Michigan Institute for Neurological Disorders, located in the Fill Building (“FBE”) in Madison Heights, Michigan, was inaccessible to patients with mobility disabilities due to the building’s non-compliant outer doors and steep ramp slopes. The United States Attorney's Office for the Eastern District of Michigan concluded that barriers to accessibility existed, and that those barriers violated the ADA. FBE agreed to resolve these violations within a year by creating van-accessible parking and other accessible parking spots, posting signs indicating accessible entrances and bathrooms, making exterior routes accessible, replacing door hardware on the first, second, and third floors, and making bathrooms, elevators, and counters compliant with ADA standards.
Higher Education
Peters v. Univ. of Cincinnati College of Med., 2012 WL 3878601 (S.D. Ohio Sept. 6, 2012)
A medical student was dismissed from her school after some academic struggles. The school decided her history of depression would prevent her from sticking to a regimen that would allow her to be a good physician. She sued under the ADA and Rehabilitation Act. The school argued that the plaintiff was not disabled due to her past success as a student. The court rejected this argument with the ADA Amendments Act, saying that the facts showed that she was able to succeed despite her disability. The court also rejected arguments that she was not qualified to be a medical student. The dean had repeatedly allowed other students to continue in the program despite their academic struggles. His comments that her dismissal was due to “a pattern of academic and psychiatric difficulties” could lead a jury to believe that academic standards were not the real reason why she was dismissed.
Argenyi v. Creighton University, 703 F.3d 441 (8th Cir. 2013)
A deaf medical school student filed suit after being denied various auxiliary aids and services. The district court granted summary judgment for the college, finding that the university met its burden of providing “necessary” auxiliary aids and services. The Eighth Circuit reversed and remanded this decision, explaining that the proper legal standard was whether the university provided auxiliary aids and services sufficient to afford the student “meaningful access” to the program. It held that there was a genuine issue of fact as to whether the university had provided the student with meaningful access and allowed the student’s claim to proceed. On remand, a jury found that Creighton University failed to provide the student with meaningful access, and that providing such access would not have posed an undue burden on the school.
Settlement Agreement, United States and Southern Illinois University (S.D. Ill.)
www.ada.gov/southern_illinois_sa.html(Jan. 2016)
A law student with chronic fatigue syndrome alleged that Southern Illinois University (SIU) failed to modify its attendance policy to accommodate his disability. After conducting an investigation, the DOJ concluded that SIU had an inconsistently applied attendance policy, and that it would have been a reasonable modification to modify its attendance policy for the student. As part of the settlement agreement, SIU agreed to adopt and implement an ADA policy.
Access to Healthcare
DOJ Agreement with Aurora Health Care (DJ# 202-85-105) (E.D. Wis.)
www.ada.gov/aurora_hc_sa.html (June 21, 2017)
Two complaints were filed with the United States Department of Justice, alleging that Aurora Health Care, Inc. in Milwaukee, Wisconsin, refused to provide complainants with medical treatment because they have the human immunodeficiency virus (“HIV”). One complainant was denied a hip replacement surgery when his orthopedic surgeon learned of his HIV status. The other complainant’s urologist refused to remove his catheter when the urologist learned of his HIV status. Both complainants eventually had the procedures elsewhere. Aurora Health Care agreed to changes in their training on title III and ADA compliance, and disability discrimination generally; to report future title III complaints to counsel for the United States; to pay the first complainant $30,000 and the spouse of the (now deceased) second complainant $15,000; and to pay $15,000 in civil penalties to the United States.
Access to Healthcare
DOJ Agreement with Aurora Health Care (DJ# 202-85-105) (E.D. Wis.)
www.ada.gov/aurora_hc_sa.html (June 21, 2017)
Two complaints were filed with the United States Department of Justice, alleging that Aurora Health Care, Inc. in Milwaukee, Wisconsin, refused to provide complainants with medical treatment because they have the human immunodeficiency virus (“HIV”). One complainant was denied a hip replacement surgery when his orthopedic surgeon learned of his HIV status. The other complainant’s urologist refused to remove his catheter when the urologist learned of his HIV status. Both complainants eventually had the procedures elsewhere. Aurora Health Care agreed to changes in their training on title III and ADA compliance, and disability discrimination generally; to report future title III complaints to counsel for the United States; to pay the first complainant $30,000 and the spouse of the (now deceased) second complainant $15,000; and to pay $15,000 in civil penalties to the United States.
Service Animals
E.F. by Fry v. Napoleon Community Schools, 2019 WL 4670738 (S.D. Mich. Sept. 25, 2019)
Plaintiff sued her school under the ADA and Rehabilitation Act for refusing to allow a service animal in school. The district court dismissed the case on grounds that plaintiff had not exhausted administrative remedies under the IDEA, and the Sixth Circuit affirmed. The Supreme Court vacated the Sixth Circuit’s opinion, holding plaintiffs do not need to exhaust administrative remedies under the IDEA, and remanded the case. On remand, the district court refused both parties’ motions for summary judgment and ordered all claims to proceed to a jury trial. Plaintiff’s motion related to her intentional discrimination claim failed because the plaintiff did not “present evidence to show that Defendants could have reasonably accommodated E.F.’s disability, but refused to do so.” Plaintiff’s failure to accommodate claim relied on regulations to Article III of the ADA, which the court declined to apply because Article II controlled this case. The school’s argument that it had reasonably accommodated the plaintiff by providing a human aide was rejected because the school did not establish that plaintiff’s request to use a service animal unreasonable. If the requested accommodation was reasonable, the school could not force the plaintiff to accept a different accommodation merely because it was preferable to the school. The question of whether an accommodation is reasonable is case-specific and best answered by a jury.
Effective Communication
Childress v. Fox Associates, LLC, 932 F.3d 1165 (8th Cir. 2019)
Theater patrons who were deaf or hard of hearing filed suit against a theater because the theater did not provide live captioning for all of its performances. The district court granted summary judgment to the patrons, ordering the theater to grant any request for captioning provided two weeks in advance. The court also awarded attorneys’ fees to the patrons. On appeal, the Eighth Circuit affirmed the judgment in full, holding that the theater’s policy of captioning only one performance for each play denied patrons with disabilities meaningful access to the plays. The theater had waived its right to raise an undue burden defense by failing to raise it at trial.
Title III (Places of Public Accommodation)
Standing and Continuing Violations Doctrine
Scherr v. Marriott International, Inc., 703 F. 3d 1069 (7th Cir. 2013)
The court allowed the plaintiff to bring a lawsuit regarding an allegedly inaccessible door in a Marriott bathroom even though the plaintiff filed suit after the statute of limitations period had passed. The Seventh Circuit held that the plaintiff alleged violations that were continuing because the door remained in existence, and thus, her claim was not barred even though she filed outside of Illinois’s two year statute of limitations period. The Seventh Circuit also found that the plaintiff had standing to sue the hotel because she demonstrated that she would use hotel in the future but for the inaccessible door design (but not the 56 other hotels with similar design).
Walker v. Asmar Center LLC, 2011 WL 5822394 (E.D. Mich. Apr. 21, 2011)
A wheelchair user sued a shopping center for a lack of accessibility. The shopping center alleged that he could not bring suit because he lacked legal standing and because he did not exhaust his administrative remedies before filing suit. The court rejected the shopping center’s argument that they did not need to provide wheelchair accessibility because the plaintiff might not return to their shopping center and because there is a closer, similar business to his home. The court also held that the plaintiff did not need to exhaust administrative remedies under Title III (i.e. filing with a state or federal administrative agency) because Title III does not have an exhaustion requirement.
Barrier Removal
Thomas v. Kohl’s Corp., 2018 WL 704691 (N.D. Ill. Feb. 5, 2018)
Plaintiff Patricia Thomas lives with the progressive effects of Multiple Sclerosis that limits her ability to walk and stand. She uses a walker or scooter. Thomas brought a lawsuit against Kohl’s alleging she could not access certain merchandise due to a narrow path caused by obstruction from a moveable display. The district court found for Thomas and denied Kohl’s motion for summary judgment. Kohl’s had argued that the ADA did not apply because there are no express spacing requirements for moveable display racks. However, the court found that the spacing of moveable display racks are governed by the “readily achievable” standard of the ADA. The court noted evidence that those changes would be readily achievable; additional inches around displays would not result in a significant loss of selling or serving space, and enhancing training would have minimal impact on overall operations and resources of the store. The court also rejected Kohl’s “customer service defense” as an alternative.
DOJ Agreement with Fill Building Associates, LLC (DJ # 202-37-249) (E.D. Mich.)
https://www.ada.gov/fill_building_sa.html (April 11, 2017)
Complainants alleged that the Michigan Institute for Neurological Disorders, located in the Fill Building (“FBE”) in Madison Heights, Michigan, was inaccessible to patients with mobility disabilities due to the building’s non-compliant outer doors and steep ramp slopes. The United States Attorney's Office for the Eastern District of Michigan concluded that barriers to accessibility existed, and that those barriers violated the ADA. FBE agreed to resolve these violations within a year by creating van-accessible parking and other accessible parking spots, posting signs indicating accessible entrances and bathrooms, making exterior routes accessible, replacing door hardware on the first, second, and third floors, and making bathrooms, elevators, and counters compliant with ADA standards.
High Stakes Testing
Binno v. American Bar Ass’n, 826 F.3d 338 (6th Cir. 2016)
Binno v. Law School Admissions Council, (E.D. Mich.)
www.abajournal.com/news/article/lsat-will-change-for-all-would-be-lawyers-as-a-result-of-blind-mans-lawsuit-settlement(Oct. 2019)
The plaintiff, a legally blind law school applicant, alleged his lack of success gaining admission was due to discriminatory admissions test (“LSAT”) administered by Defendant American Bar Association (“ABA”). The district court dismissed the plaintiff’s claims under ADA Title III and Title V, and the Sixth Circuit affirmed the decision on appeal. The Sixth Circuit held the plaintiff did not establish the ABA caused his injury because the ABA did not determine the content of the questions or compel law schools to require LSAT scores for admission. Plaintiff also did not establish a favorable decision was likely to redress his injury. The Sixth Circuit also held that the plaintiff failed to state a claim under ADA Title III because the ABA does not “offer” the LSAT as “offer” is used in the ADA. Finally, the Sixth Circuit rejected Plaintiff’s ADA Title V argument because the plaintiff did not establish the ADA’s policy interfered with “the administration of the test in a place and manner accessible to persons with disabilities or the provision of alternate accessible arrangements.” Following this decision, the plaintiff filed a lawsuit against the Law School Admissions Council (“LSAC”), which led to a settlement where LSAC agreed it would eventually replace its logic games section with an alternative ways to test analytical reasoning.