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Americans with Disabilities Act Archives

Woman "Perceived as Disabled" Under ADA

Kimberly Ann Norman, a Union Pacific Railroad (“UNP”) employee, had a number of physical medical conditions, including irritable bowel syndrome, requiring short term and long term disability leave in the early 2000s. As with many LTD plans, the insurance company, or in this case, UNP, questioned whether Ms. Norman’s medical conditions were due in part to mental illness, thus subjecting Norman to a limited term of benefits known as a mental illness limit. The company required Ms. Norman to undergo an independent medical examination (“IME”), which resulted in the company’s physician determining that Norman’s long term disability resulted from mental, not physical conditions.

When she was later terminated, Ms. Norman claimed discrimination under the Americans with Disabilities Act (“ADA”) because UNP regarded her as mentally ill and terminated her because of the perceived disability.  Despite the fact that she did not regard herself as mentally disabled, never voluntarily sought treatment for mental disabilities, never received a second opinion from a physician confirming mental disability, and filed appeals and extensions allowing her to collect LTD benefits for her physical disabilities, the 8th Circuit Court of Appeals agreed with Ms. Norman’s argument.  For purposes of the ADA, Ms. Norman established an ADA-qualifying disability because the employer regarded her mentally disabled due to the findings of its own physician in Norman's LTD claim.
The “perceived as disabled” rule prevents employers, insurance companies, and plans from arguing in LTD cases that the employee’s disabilities are rooted in mental illness, and then turning around and arguing in an ADA discrimination case that the employee does not have an ADA-qualifying mental disability.

Two "failure to hire" Disability Discrimination Suits Resolved

On June 15, 2010, the EEOC reported that it reached an agreement with Starbucks to settle a suit for Starbucks' failure to hire Chuck Hannay, who suffers from multiple sclerosis. Among other terms of the agreement, Starbucks paid $80,000 to resolve the suit. Mr. Hannay applied for one of six open barista positions at a store in Russellville, Arkansas, but the store did not contact Mr. Hannay in response to his application. It instead hired other, less experienced candidates to fill the open barista positions. Starbucks reportedly worked in a cooperative manner with the EEOC to insure that similar discrimination would not occur in the future. Failure to hire individuals with physical or mental impairments that substantially limit one or more of their major life activities is illegal under the Americans with Disabilities Act.

On June 16, 2010, the EEOC issued a news release revealing that it settled a similar case against Balance Staffing. Balance's owner and manager hired Jocelyn Snower as a recruiter. When the owner learned that Ms. Snower is blind, he immediately revoked the job offer, despite the fact that Ms. Snower is an experienced recruiter. This is an example of "direct" disability discrimination, which is unlawful under the ADA.  In order to resolve the suit, Balance was forced to pay $100,000 and the owner was compelled to enter ongoing EEO training.  Individuals who are subjected to such adverse treatment should contact an employment lawyer and the EEOC.

Airline Settles Disability Discrimination Suit

The Equal Employment Opportunity Commission ("EEOC") and Pinnacle Airlines recently settled a lawsuit against the airline for disability discrimination in violation of the Americans with Disabilities Act ("ADA"). According to the EEOC, the airline terminated Vickie Cowie because she walked too slowly.  A short time after commencing her employment with the airline as an administrative employee, working primarily behind a desk, Ms. Cowie saw her doctor about pain in her knee. Her physician diagnosed her with arthritis.  Cowie continued working and performed her job competently, despite the fact that the arthritis caused her to walk with a limp and use a cane. The EEOC filed suit on Ms. Cowie's behalf, alleging that the airline terminated her because the pace of her gait was too slow.  Rather than trying the case in court, the airline agreed to enter a public settlement agreement. As a part of the agreement, the airline paid Ms. Cowie $20,000 and agreed to reform its human resources policies and procedures.  Employees who are treated unfairly because of their disabilities should contact an employment lawyer immediately and file a charge with the EEOC within 180 days of the adverse treatment.

Employers Must Provide Reasonable Accommodations for Disabled Workers to get to Work

During her employment as a cashier with Rite-Aid, Jeanette Colwell became blind in one eye due to a medical condition completely unrelated to her employment. Ms. Colwell informed her supervisors that it became difficult for her to drive at night due to her blindness and provided a note from her doctor regarding the same. Her supervisor, however, refused to schedule her exclusively during the day because the supervisor felt it would be unfair to other employees. Ms. Colwell eventually resigned her employment by submitting a note indicating that she felt she was treated unfairly.

Ms. Colwell brought suit under the Americans with Disabilities Act "ADA" and the state equivalent. She argued that Rite-Aid constructively discharged her, failed to accommodate her blindness, and retaliated against her because of her disability. The parties agreed that Ms. Colwell did not require an accommodation once she arrived in the workplace, and the District Court therefore found that Rite-Aid did not fail to accommodate Colwell's disability. Colwell’s constructive discharge and retaliation claims were also summarily dismissed by the lower federal court.
On Colwell’s appeal, Rite-Aid argued that it had no duty to even consider changing Ms. Colwell's shift because Colwell's difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not require employers to accommdate such issues. The Third Circuit Court of Appeals disagreed and held that changing Ms. Colwell's working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates, even though it was technically outside of the workplace and working hours.  Employers are required under the ADA to provide reasonable accommdations to help alleviate their disabled employees' difficulties in getting to work, so employees should readily communicate those needs to their employers in order to intiate the process of accommodation.

7th Circuit Dismisses ADA Psoriasis Claim

In Turner v. The Saloon et al., the Seventh Circuit Court of Appeals affirmed the district court's determination that Psoriasis did not meet the "substantially limiting" element of an ADA protected disability in that case. The Plaintiff argued that his psoriasis substantially limited his ability to walk. He admitted under oath, however, that at worst, his psoriasis periodically causes "severe pain causing him to walk with his legs more astride, appearing as a limp." When it comes to walking, the Seventh Circuit had previously determined that walking with difficulty is not a significant restriction on walking. Squibb v. Mem'l Med. Ctr., 497 F.3d 775, 785 (7th Cir. 2007). It has also held that  an employee is not disabled when he admitted that he could walk "distances of less than a mile 'consistently,' [and] that a mile walk 'wouldn't be any problem as long as I'm paying attention to what I'm doing.' " Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir. 2000). Although psoriasis is a bona fide and often serious medical condition, arguments that it limits one's ability to walk and therefore qualifies as an ADA protected disability, absent a particularly severe or unusual case, will be hard-pressed to succeed.  This doesn't, however, mean that psoriasis will never qualify as a disability, provided it substantially limits walking or other life activities.

ADAA Changes to ADA Benefit Disabled Workers

Last year, the Americans with Disabilities Amendments Act (“ADAA”) redefined the meaning of the term “disabled” under existing law by emphasizing disability is to be interpreted more broadly. The Americans with Disabilities Act (ADA) defines “disability” as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” For employees claiming disability discrimination, the definition and interpretation has traditionally encompassed both major life activities required at work and major life activities outside of work. The ADA definition remains, but the ADAA specifically overturned recent Supreme Court decisions and EEOC guidelines for interpretation of the term “substantially limits”. No longer do employees have to show that they are “unable to perform” or are “severely restricted from performing” major life activities in order to qualify as disabled under the ADA. Rather, the new interpretation kept the language of the Act intact, but legislatively changed the legal standard that had been developed by the EEOC and the courts to a more liberal standard. New EEOC rules and regulations, issued in September 2009 conform to the relatively new law. The interpretation of “major life activities” has also been redefined by the recent Amendments. The ADAA now lists major life activities as “includ[ing], but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” In addition to being a non-exclusive list, the list itself encompasses a broad scope of major life activities. If thinking, concentrating, breathing, and hearing are major life activities for purposes of the ADA, driving, caring for family members, having sexual relations, and using the internet also may be considered major life activities.Also notably included as major life activities under the new amendments are “major bodily functions” such as: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This completely redefines the notion of disability as it had been interpreted by the courts. Although an individual may be able to perform major life activities in the typical sense the phrase, i.e. walking, communicating, performing manual tasks, if his immune system, kidneys, or other body processes are “substantially limited”, he may be considered disabled for the purposes of the ADA. Just as with more traditional major life activities, the new “substantially limited” interpretation is less stringent than the old “severely restricted” standard for major bodily functions.

Nick McLeod practices disability law as an associate attorney of Alan C. Olson & Associates, s.c. If you have questions regarding disability discrimination or employment law, please contact him at: [email protected]

Insurer's Cancellation of Health Coverage After Cancer Diagnosis Results in $9M Award

What if you thought you had insurance, were paying your monthly premiums, got sick and got treatment - and then were notified that your insurance was being canceled retroactively, leaving you with huge medical bills?

Employees Cannot be Fired Because of Expensive Medical Insurance Claims

Under Section 510 of the Employee Retirement Income Security Act of 1974, (ERISA), an employer may not discharge an employee "for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140.
The employee in an ERISA retaliation case must show that the employer had a "specific intent" to punish her for asserting rights under the plan. Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C., 277 F.3d 882, 892 (7th Cir. 2001); Lindemann v. Mobil Oil Corp., 141 F.3d 290, 295 (7th Cir. 1998). This means that the plaintiff can prevail when she shows that there was an ERISA plan and presents evidence from which the trier of fact can infer that the employer's motivation in taking the adverse action was to thwart her right to benefits.
"'Direct evidence' is defined the same for discrimination and retaliation claims-that is, it can be an admission of intentional discrimination or a 'mosaic' of circumstantial evidence that directly points to a discriminatory intent." Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d 776, 786 (7th Cir. 2004)
In a recent case, a woman was entitled to healthcare benefits under her employer's group healthcare plan. She had two knee surgeries in early 2000, a breast reduction in 2002, carpal tunnel surgery on both wrists in 2003, and right thumb trigger release surgery in 2004. Given the lack of a legitimate reason for her discharge combined with negative statements from the employer about the expense associated with her health coverage, liability was established. Employees who are retaliated against because of their health plan claims may recover damages for loss of wages and benefits, interest, costs, and attorney fees. 

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