FROM SAME-SEX MARRIAGE
TO OVERTIME FOR SYNCHING
MY BLACK BERRY:
Recent Decisions Affecting the
Workplace
Alaska Municipal Attorneys Association
November 18-19, 2013
Anchorage, Alaska
Terrence S. Welch
Brown & Hofmeister, L.L.P.
740 E. Campbell Road, Suite 800
Richardson, Texas 75081
www.bhlaw.net
“The Times They Are A-changin’.”
— Bob Dylan
There have been significant decisions by the United States Supreme Court and
other courts during the last several years that have rocked the workplace, resulting in
discarding past notions of who is, or is not, married and how same-sex couples should
be treated under the law by employers. Not surprisingly, there have been a multitude of
cases that address more mundane issues, from overtime compensation under the Fair
Labor Standards Act to obesity being considered a disability and the ongoing battle
about what constitutes a reasonable accommodation under the ADA. The purpose of
this paper is to provide a broad overview of recent cases and where applicable, actions
by regulatory agencies in interpreting these new cases.
I. Same-Sex Marriage and the Death of DOMA
A. United States Supreme Court Cases
The two blockbuster United States Supreme Court cases on the topic of same
sex marriage during the last term of the Court were United States v. Windsor,1 and
Hollingsworth v. Perry.2 While not providing a detailed analysis of both of the cases, a
brief review is nonetheless helpful.
Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were
lawfully married in Ontario, Canada in 2007. Ms. Spyer died in 2009, leaving her entire
estate to Ms. Windsor. Ms. Windsor sought to claim the federal estate tax exemption
for surviving spouses; however, she was barred from doing so by Section 3 of the
Defense of Marriage Act (DOMA) (codified at 1 U.S.C. § 7),3 which provided that the
term “spouse” only applies to a marriage between a man and woman. The Internal
1
570 U.S. ___, 133 S.Ct. 2675 (2013).
2
570 U.S. ___, 133 S.Ct. 2652 (2013).
3
Section 3 of DOMA provides as follows:
In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word “marriage” means only a legal
union between one man and one woman as husband and wife, and the
word “spouse” refers only to a person of the opposite sex who is a
husband or a wife.
1 U.S.C. § 7.
1
Revenue Service (IRS) found that the exemption did not apply to same-sex marriages,
denied Ms. Windsor’s claim, and compelled her to pay $363,053 in estate taxes.
On November 9, 2010, a lawsuit was filed against the United States government
in the United States District Court for the Southern District of New York, where Ms.
Windsor sought a refund because DOMA singled out legally married same-sex couples
for “differential treatment compared to other similarly situated couples without
justification.” On February 23, 2011, U.S. Attorney General Eric Holder issued a
statement from the Obama administration that agreed with the plaintiff’s position that
DOMA violated the United States Constitution and said he would no longer defend the
law in court. The Bipartisan Legal Advisory Group (BLAG) of the House of
Representatives continued the defense of the law. On June 6, 2012, U.S. District Judge
Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due
process guarantees of the Fifth Amendment and ordered the federal government to
issue the tax refund, including interest.4 The Second Circuit Court of Appeals affirmed
the decision on October 18, 2012.5
BLAG and the U.S. Department of Justice (DOJ), as a nominal defendant,
appealed the decision to the U.S. Supreme Court, which granted a writ of certiorari in
December 2012. On March 27, 2013, the Supreme Court heard oral arguments and on
June 26, 2013, issued a 5–4 decision declaring Section 3 of DOMA to be
unconstitutional. The Court first held that although DOJ decided not to defend DOMA,
the government retained a stake sufficient to support Article III jurisdiction because the
unpaid refund is “a real and immediate economic injury.” 6 Thus, there was a sufficient
basis for the court to entertain jurisdiction over the case.7 DOMA was then determined
to be unconstitutional as a deprivation of the equal liberty of persons under the Fifth
Amendment. The Court noted that although the regulation of marriage has traditionally
been within the authority of the states,8 DOMA, applicable to more than 1,000 federal
4
833 F.Supp.2d 394 (S.D.N.Y. 2012).
5
699 F.3d 169 (2d Cir. 2012).
6
Windsor, 133 S.Ct. at 2686.
7
Interestingly, Justice Kennedy, writing for the majority, addressed the political nature
of this case. “The integrity of the political process would be at risk if difficult
constitutional issues were simply referred to the Court as a routine exercise. But this
case is not routine. And the capable defense of the law by BLAG ensures that these
prudential issues do not cloud the merits question, which is one of immediate
importance to the Federal Government and to hundreds of thousands of persons.
These circumstances support the Court’s decision to proceed to the merits.” Id. at
2689.
8
Id. at 2690-92.
2
statues and numerous federal regulations—such as Social Security, housing, taxes,
criminal sanctions, copyright and veterans’ benefits—was directed to a class of persons
that the laws of New York and 11 other states had sought to protect.9 Justice Kennedy
wrote that DOMA is inconsistent with the principle that marriage laws may vary from
state to state, but are consistent within each state. “The principal purpose [of DOMA] is
to impose inequality . . . to deprive some couples married under the laws of their State,
but not other couples, of both rights and responsibilities.”10 New York’s decision was a
proper exercise of its sovereign authority and by seeking to injure the class New York
sought to protect, DOMA violated basic due process and equal protection principles
applicable to the federal government. Constitutional guarantees of equality “must at the
very least mean that a bare congressional desire to harm a politically unpopular group
cannot” justify disparate treatment of the group. DOMA’s history and text indicated a
purpose and practical effect to impose a disadvantage, a separate status, and a stigma
upon those entering into same-sex marriages made lawful by the states. The law
deprived some couples married under the laws of their states, but not others, of rights
and responsibilities, creating two contradictory marriage regimes within the same state;
it diminished the stability and predictability of basic personal relations. 11 Justice
Kennedy concluded that
[DOMA] is invalid, for no legitimate purpose overcomes the purpose and
effect to disparage and to injure those whom the State, by its marriage
laws, sought to protect in personhood and dignity. By seeking to displace
this protection and treating those persons as living in marriages less
respected than others, the federal statute is in violation of the Fifth
Amendment. This opinion and its holding are confined to those lawful
marriages.12
On the same day that the Windsor opinion was issued, the Court also issued a
second 5–4 decision in Hollingsworth v. Perry, a case related to California's
constitutional amendment initiative barring same-sex marriage. The Hollingsworth
decision effectively allowed same-sex marriages in that state to resume after the Court
ruled that the proponents of the initiative lacked the requisite Article III standing to
appeal in federal court based on its established interpretation of the case or controversy
clause.
In 2008, the California Supreme Court held that limiting the official designation of
marriage to opposite-sex couples violated the equal protection clause of the California
9
Id. at 2694.
10
Id.
11
Id. at 2693.
12
Id. at 2695.
3
Constitution.13 Later that year, state voters then passed a ballot initiative, Proposition 8,
amending the state constitution to define marriage as a union between a man and a
woman.14 Same-sex couples who wished to marry filed suit in federal court, challenging
Proposition 8 as being in violation of the Due Process and Equal Protection Clauses of
the Fourteenth Amendment to the U.S. Constitution.15 Not unlike the position taken by
the Obama Administration in Windsor, California state officials refused to defend the
law; however, the federal district court allowed the initiative’s official proponents to
intervene and the court subsequently declared Proposition 8 unconstitutional and
enjoined its enforcement.16 State officials declined to appeal but the intervenors opted
to appeal. The Ninth Circuit certified a question about Article III standing, to which the
California Supreme Court answered that the official proponents of a ballot initiative had
authority to assert the state’s interest to defend the constitutionality of the initiative when
public officials refuse to do so. The Ninth Circuit, relying on that answer, concluded that
petitioners had standing and affirmed.17 The Supreme Court vacated and remanded,
holding that the intervenors did not have the requisite Article III “case or controversy”
standing to appeal. While the Court determined the intervenors had standing to initiate
this case against the California officials responsible for enforcing Proposition 8, once the
federal district court issued its order, they no longer had any injury to redress—they had
won—and state officials chose not to appeal.18 The intervenors had not been ordered
to do or refrain from doing anything and their “generalized grievance” was insufficient to
confer standing. “Their only interest in having the District Court order reversed was to
vindicate the constitutional validity of a generally applicable California law.” 19
B. So How Is The Federal Government Responding?
Since late June, the Federal Government has been in the process of responding
to Windsor. Not surprisingly, federal regulations are being revised accordingly. Federal
guidelines have been amended as follows:
●
Federal Taxes. On August 29, 2013, in Revenue Ruling 2013-17, the
Department of the Treasury and the Internal Revenue Service (IRS) ruled that same13
In re Marriage Cases, 43 Cal.4th 757; 76 Cal.Reptr.3d 683; 183 P.3d 384.
14
Hollingsworth, 133 S.Ct. at 2659.
15
Id. at 2660.
16
Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010).
17
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).
18
Hollingsworth, 133 S.Ct. at 2662.
19
Id.
4
sex couples, legally married in jurisdictions that recognize their marriages, will be
treated as married for federal tax purposes. The ruling applies regardless of whether
the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that
does not recognize same-sex marriage. Under Revenue Ruling 2013-17, same-sex
couples will be treated as married for all federal tax purposes, including income and gift
and estate taxes. The ruling applies to all federal tax provisions where marriage is a
factor, including filing status, claiming personal and dependency exemptions, taking the
standard deduction, employee benefits, contributing to an IRA and claiming the earned
income tax credit or child tax credit.
Any same-sex marriage legally entered into in one of the 50 states, the District of
Columbia, a U.S. territory or a foreign country will be covered by the ruling; however,
the ruling does not apply to registered domestic partnerships, civil unions or similar
formal relationships recognized under state law. Same-sex marriage partners may file
amended tax returns and choose to be treated as married for federal tax purposes for
one or more prior tax years still open under the statute of limitations. Generally, the
statute of limitations for filing a refund claim is three years from the date the return was
filed or two years from the date the tax was paid, whichever is later. As a result, refund
claims can still be filed for tax years 2010, 2011 and 2012. Some taxpayers may have
special circumstances, such as signing an agreement with the IRS to keep the statute of
limitations open, that permit them to file refund claims for tax years 2009 and earlier.
Additionally, employees who purchased same-sex spouse health insurance coverage
from their employers on an after-tax basis may treat the amounts paid for that coverage
as pre-tax and excludable from income.20
●
Immigration. On July 1, 2013, Secretary of Homeland Security Janet
Napolitano issued the following statement:
After last week’s decision by the Supreme Court holding that Section 3 of
the Defense of Marriage Act (DOMA) is unconstitutional, President Obama
directed federal departments to ensure the decision and its implication for
federal benefits for same-sex legally married couples are implemented
swiftly and smoothly. To that end, effective immediately, I have directed
U.S. Citizenship and Immigration Services (USCIS) to review immigration
visa petitions filed on behalf of a same-sex spouse in the same manner as
those filed on behalf of an opposite-sex spouse.21
USCIS has done exactly that, and visas and green cards now extend to same-sex
spouses. An FAQ issued by USCIS provides the following information about immigration and
20
Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under
State Law is found at http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questionsfor-Same-Sex-Married-Couples.
21
See http://www.dhs.gov/news/2013/07/01/statement-secretary-homeland-securityjanet-napolitano-implementation-supreme-court.
5
same-sex marriages: U.S. citizens or lawful permanent residents in a same-sex marriage can
now sponsor their spouses for a family-based immigrant visa; U.S. citizens who are engaged
to be married to a foreign national of the same sex can file a fiancé or fiancée petition;
and same-sex couples who were married in a U.S. state or a foreign country that
recognizes same-sex marriage may file an immigrant visa petition for the spouse,
because as a general matter, the law of the place where the marriage was celebrated
determines whether the marriage is legally valid for immigration purposes. Just as
USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, it
will apply all relevant laws to determine the validity of a same-sex marriage. The
domicile state’s laws and policies on same-sex marriages will not bear on whether
USCIS will recognize a marriage as valid.22
●
Family and Medical Leave Act. The U.S. Department of Labor issued its
Guidance (Fact Sheet #28F)23 in mid-August confirming that same-sex married couples
are entitled to the same benefits of the Family and Medical Leave Act (FMLA) as
heterosexual married couples. The Guidance indicates that FMLA spousal leave
entitlements extend to same-sex spouses that reside in states that recognize same-sex
marriages. DOL now defines “spouse” as “a husband or wife as defined or recognized
under state law for purposes of marriage in the state where the employee resides,
including “common law” marriage and same-sex marriage.” An employer located in a
state that does not recognize same-sex marriage does not have to grant FMLA leave to
a same-sex married employee to care for that employee’s same-sex spouse if the
same-sex married couple does not reside in a state that recognizes same-sex marriage.
There is nothing in the DOL Guidance, however, that precludes an employer from
having its own internal leave policy allowing for leave for a same-sex spouse. Until
there is further judicial review, there will be disparate treatment of same sex married
couples for FMLA leave purposes that will turn on the place of residence—DOL’s
interpretation is unique because it focuses solely on the residence of the employee and
not where the employer is located.
●
Other Federal Regulations. Below is a summary of other regulations
from the federal government about same-sex marriage:

Employees may cover their same-sex spouses under health care plans
provided by their employers without having to pay taxes on the value of
such coverage.

Same-sex spouses have full rights to continuation health care coverage
under the Consolidated Omnibus Budget Reconciliation Act (COBRA) in
22
See USCIS Frequently Asked Questions (FAQ) about Implementation of the Supreme
Court Ruling on the Defense of Marriage Act (updated on July 1, 2013), and found at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?
vgnextoid=fbfe0b8497b9f310VgnVCM100000082ca60aRCRD
23
See http://www.dol.gov/whd/regs/compliance/whdfs28a.htm.
6
the event of a participant’s termination of employment, divorce or legal
separation.

Employees may receive tax-free reimbursement under flexible spending
accounts, health reimbursement arrangements and health savings
accounts for qualified medical expenses incurred by same-sex spouses.

Same-sex spouses are entitled to the same special enrollment right under
the Health Insurance Portability and Accountability Act (HIPAA) as
opposite-sex spouses.

Same-sex spouses are entitled to a 50 percent qualified joint and survivor
annuity (QJSA) or a 75 percent qualified optional survivor annuity (QOSA)
under a participant’s pension plan, and the spouse’s consent is required to
pay pension benefits in any other form.

Same-sex spouses are entitled to a 50 percent qualified preretirement
survivor annuity (QPSA) where the participant dies prior to commencing
pension benefits, unless the spouse consents to waive the benefit.

Same-sex spouses are entitled to receive 100 percent of a participant’s
Section 401(k) account balance at death, unless the spouse consents to
another beneficiary.

Same-sex spouses are clearly eligible to receive a qualified domestic
relations order (QDRO) apportioning pension benefits upon divorce.

Same-sex spouses may roll over plan distributions to their own individual
retirement account or employer plan, rather than only being able to roll
over to an “inherited IRA” (which is subject to more restrictions).24
II. New Technology and Overtime Compensation
Under the Fair Labor Standards Act and its regulations, an employer must record
and pay non-exempt employees for all hours “suffered or permitted to work,” without
regard to the reason for the work.25 Hours worked includes time spent for the
24
See http://about.bloomberglaw.com/practitioner-contributions/same-sex-marriageand-erisa-in-the-windsor-era/.
29. C.F.R. § 785.11 (“Work not requested but suffered or permitted is work time. For
example, an employee may voluntarily continue to work at the end of the shift. He may
be a pieceworker, he may desire to finish an assigned task or he may wish to correct
errors, paste work tickets, prepare time reports or other records. The reason is
immaterial. The employer knows or has reason to believe that he is continuing to work
and the time is working time.”).
25
7
employer’s benefit, as well as time an employee cannot otherwise effectively use as his
or her own, even if the employee is not actively engaged in performing a task. 26 There
is no such thing as “unauthorized” work; if management is aware the work is being
done, the employer must record the hours and compensate the non-exempt employee
accordingly.27 Nonetheless, in 1946 the United States Supreme Court created a “de
minimis” exception to the general rule that non-exempt employees must be paid for all
hours worked.28 Courts have noted that “[n]o rigid rule can be applied with
mathematical certainty” when determining whether work time is de minimis for purposes
of the Fair Labor Standards Act.29 Consequently, courts often employ a three-pronged
test, considering: (1) the practical administrative difficulty of recording the additional
time; (2) the aggregate amount of compensable time; and (3) the regularity of the
additional work.30
The analytical and regulatory emphasis on “administrative difficulty,” “industrial
realities,” and whether an employee’s working time is “practically ascertainable” in the
context of the de minimis exception should serve as a signal to employers that they
need to remain cognizant of the technological advances that are emerging to make it
easier than ever to record hours worked. The U.S. Department of Labor even has an
app to assist employees in independently tracking their hours, breaks and overtime.31
As a consequence of new technology, more cases are being filed about alleged
entitlement to overtime compensation. A few representative cases follow:
●
Kuebel v. Black & Decker.32 The plaintiff in this putative collective action
was a Black & Decker employee whose job duties included travelling to various Home
26
29 C.F.R. § 785.7.
27
Id.
28
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946); see also 29 C.F.R.
§ 785.47 (“In recording working time under the [Fair Labor Standards] Act, insubstantial
or insignificant periods of time beyond the scheduled working hours, which cannot as a
practical administrative matter be precisely recorded for payroll purposes, may be
disregarded.”).
29
Lidow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984).
30
Reich v. Montfort, 144 F.3d 1329, 1333-34 (10th Cir. 1998); Lidow, supra note 66.
31
Press Release, U.S. Department of Labor, Keeping track of wages: The US Labor
Department has an app for that! (May 9, 2011).
32
643 F.3d 352 (2d Cir. 2011).
8
Depot stores. Black & Decker required this employee to synch his company-issued
personal digital assistant (PDA) with Black & Decker’s server, which he would do
several times a week by plugging it into his home computer. The employee sued for
overtime compensation relating to his at-home work as well as other compensation
issues. The employee admitted he never reported the overtime being claimed (and he
thus submitted false timesheets) but testified he did so at his supervisor’s instruction.
The court ruled the actual time spent working at home could be compensable and
represented a fact issue for trial.
●
Allen v. City of Chicago.33 Plaintiff Chicago police sergeant brought a
wage-hour collective action claiming that he and other similarly-situated employees
were required to use employer-issued PDAs and other electronic communication
devices to perform work outside of normal working hours without receiving
compensation, including overtime compensation. The court denied the City’s motion to
dismiss because “whether the amount of time plaintiff worked off the clock is greater
than a de minimis amount . . . is a matter of the proof of his claim, not a matter of the
sufficiency and plausibility of his complaint.” The court questioned “the ability to treat on
a class basis the broad range of situations in which police personnel may ‘respond’ to
messages that are sent to them on PDAs, the extent to which those responses might
constitute ‘work,’ and the extent to which work might not be compensable because it is
‘de minimis.’”
●
West v. Verizon Communications, Inc.34 A personal account manager for
Verizon sought overtime compensation on behalf of herself and all similarly situated
meployees for work allegedly performed remotely using a company-issued BlackBerry.
The court denied the collective action, but in a subsequent order, the court held that
there were genuine issues of material fact whether the employee had worked the hours
claimed. The difficulty for Verizon was that it had not required such employees to keep
track of their work time nor did it track the hours these employees worked. Accordingly,
when Verizon submitted evidence of Ms. West’s hours worked in the form of a list of the
calls (incoming and outgoing) made on her BlackBerry (including the length of each call)
and a list of the call log entries made by Ms. West on the Verizon website (including
how many words each call log entry consisted of), Ms. West simply submitted her
testimony that she did not work exclusively by BlackBerry. Considering the conflicting
evidence, the court found that there was a fact issue.
Some employers have now adopted policies that explicitly require all non-exempt
employees to record all of their time worked, even if it is just checking emails on their
telephones. Such a policy also could prohibit employees from working “after hours,”
thus prohibiting employees from checking emails on their phones. If an employee
violates such a policy, the employee could be subject to disciplinary action. While this
33
2011 WL 941383 (N.D. Ill. 2011).
34
2009 WL 2957963 (M.D. Fla. 2009).
9
may seem harsh, with more collective actions being authorized by trial courts, large
employers face ever increasing potential liability.
III. Obesity as a Disability
In the Equal Employment Opportunity Commission’s (EEOC) original ADA
regulations, the EEOC determined that “except in rare circumstances, obesity is not
considered a disabling impairment.”35 Cases generally required an individual to show
some different underlying medical condition that is a disability and that causes obesity
as a “symptom.” After the adoption of the Americans With Disabilities Act Amendments
Act of 2008, the EEOC’s regulations still provide that “[t]he definition of the term
“impairment” does not include physical characteristics such as . . . weight, . . . that are
within “normal” range and are not the result of a physiological disorder.”36 Nevertheless,
it is interesting to note that the EEOC may now consider obesity a disability under the
ADAAA.
In 2010, in a case arising prior to the ADAAA, the EEOC filed a lawsuit in
Louisiana against an employer, claiming that it had terminated an employee because of
obesity. In a somewhat surprising ruling the federal district court sided with the plaintiff,
finding that severe obesity may qualify as a disability, regardless of the cause.37
Lisa Harrison was slightly over five feet in height and weighed 527 pounds when
she was fired from her job in 2007 at a Louisiana drug addiction treatment center. She
had been hired in 1999 and at that time, Ms. Harrison weighed more than 400 pounds.
She contended in her EEOC charge that she was “discriminated against in violation of
the Americans with Disabilities Act (ADA), in that [she] was regarded as having a
disability.” Ms. Harrison passed away on November 1, 2009, and the official cause of
death listed on her death certificate was morbid obesity. Additionally, her death
certificate listed hypertension, diabetes and congestive heart failure as other “significant
conditions contributing to death.” While the court noted that Ms. Harrison was a
qualified individual with a disability under the ADA, it noted that she “was severely
obese, which is an impairment under the ADA [and] she was actually disabled as a
result of her severe obesity because of the resulting diabetes and heart problems.”
Additionally, there was evidence that Ms. Harrison “was regarded by Defendant as
being substantially limited in the major life activities of walking, being mobile, and
working,” and the court noted there was “sufficient evidence that supports the notion
that [Defendant] regarded her as disabled based upon her supervisor's comments.”
The key contested issue for trial was whether Ms. Harrison's disability was the cause of
35
29 C.F.R. § 1630.16 App. (§ 1630.2(j), “Substantially Limits”) (Pre-ADAAA text).
36
29 C.F.R. § 1630.16 App. (§ 1630.2(h), “Physical or Mental Impairment”).
37
EEOC v. Resources for Human Development, 2012 WL 669435 (E.D. La. 2012).
10
her termination from Family House.38 What is noteworthy about this case was that the
EEOC filed suit on Harrison’s behalf and took an expansive view of obesity as a
disability.
Not surprisingly, after the ADAAA’s effective date in 2009, the “regarded as”
prong of a disability claim based on obesity is now an easier threshold than under preADAAA case law. In Lowe v. American Eurocopter,39 a federal district court in
Mississippi held that an obese receptionist, who alleged that her weight affected her
ability to walk, could proceed with her “regarded as” having a disability claim 40 because
her former employer harassed her based on her use of disabled parking. She also
alleged that (i) her weight affected the major life activity of walking (she was “unable to
park and walk from the regular parking lot”); and (ii) her “[e]mployer was informed of this
situation [referring to her obesity and her inability to walk from the regular parking lot].”
The Court read this allegation as an attempt by the plaintiff “to show that her employer
regarded her as having such a disability.” The court noted that under the ADAAA, an
individual is now not required to demonstrate that the disability she is regarded as
having is an actual qualified disability under the ADA or that it substantially limits a
major life activity41; rather, the ADAAA requires a plaintiff to only show “that he or she
has been subjected to an action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” Thus, a plaintiff now might be considered
disabled due to obesity under the ADA if an employer perceived the employee’s weight
as an impairment.42
IV. Is It a Reasonable Accommodation for Fern to Sit in a Plastic
Lawn Chair for Half of Her Shift?
Since the focus of any disability inquiry no longer rests on the interpretation of
whether an individual is disabled, but instead whether (i) employers have complied with
their statutory obligations and (ii) discrimination has occurred, the safer course is to
38
Id.
39
2010 WL 5232523 (N.D. Miss. 2010).
Under the ADA, as amended, a disability is “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). A “qualified individual with a disability” is “an individual with a disability
who, with or without reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
40
41
See 42 U.S.C.A. §§ 12101(1)(C), (3).
42
Id.
11
assume that all employees suffer from no disabilities and if indeed there is an
impairment, assume the ADA applies and the employee qualifies for some sort of
reasonable accommodation. The purpose of the ADAAA, in part, was to broaden the
restrictive definitions that often had been judicially imposed, of course including the
Sutton trilogy43 of Supreme Court cases. As a consequence, in the cases determined to
date, few defendants have been successful. One notable exception is EEOC v. Eckerd
Corp.44
Fern Strickland began working as a cashier at Eckerd’s in 1992. In 2000, Ms.
Strickland transferred to a different Eckerd’s store, where she continued to work as a
cashier. Rite Aid purchased the Eckerd Corporation in June 2007, and Ms. Strickland
worked as a cashier for the Rite Aid store from the date of the acquisition until she was
terminated on January 29, 2009.
Ms. Strickland was diagnosed with osteoarthritis in both of her knees in June
2001. Her condition made it difficult for her to walk without the assistance of a cane or
to stand for prolonged periods of time. At some point in 2001, Ms. Strickland began
intermittently sitting in a chair at work to relieve pain in her knees, having knee
replacement surgery in her right knee in 2006. Her knee pain nevertheless persisted
and she continued to use the chair at work.
In March 2008, Larry Frisbie became the district manager of the Rite Aid store.
Several months later, Mr. Frisbie and Human Resources Manager Linda Sheffield
visited the store and observed Ms. Strickland sitting in a plastic lawn chair behind the
counter. Ms. Sheffield was perplexed by this observation because Rite Aid generally
did not permit cashiers to sit while they were on duty and she had never seen a cashier
sitting in this manner. According to Mr. Frisbie, cashiers were required to productively
work on the sales floor stocking, cleaning and performing other housekeeping and
general store duties when they did not have a customer at the register.
When Mr. Frisbie and Ms. Sheffield asked Ms. Strickland why she was sitting
behind the counter, Ms. Strickland informed them that she had provided Rite Aid a
doctor’s note concerning her need to use the chair at work. Following the store visit,
Ms. Sheffield checked Ms. Strickland’s file for a doctor’s note and found one from
January 2007. The note stated that Ms. Strickland “requires a stool or chair to sit in at
work . . . throughout the day, and most of the day due to severe arthritic symptoms.”
After reviewing the note and speaking with Ms. Strickland, Ms. Sheffield determined that
she needed more information about Ms. Strickland’s limitations as well as her work
habits and ability to meet the requirements of the cashier position.
The three “Sutton trilogy” cases are Sutton v. United Airlines, Inc., 527 U.S. 471
(1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); and Albertson’s, Inc.
v. Kirkingburg, 527 U.S. 555 (1999).
43
44
2012 WL 2726766 (N.D. Ga. 2012).
12
Upon further investigation, Ms. Sheffield was informed by the store manager,
Robin Jean, that Ms. Strickland had been permitted to sit intermittently and at her
discretion for several years due to her arthritic symptoms; however, Ms. Sheffield did
not find any evidence that Eckerd or Rite Aid had ever formally approved a sitting
accommodation for Ms. Strickland. Moreover, Ms. Sheffield surmised from her
interview with Ms. Jean that Ms. Strickland’s frequent sitting was causing productivity
and personnel problems for the store.
Based on her preliminary inquiries, Ms. Sheffield concluded that the 2007
doctor’s note was outdated and vague concerning Ms. Strickland’s precise limitations.
Accordingly, Ms. Sheffield requested an updated and more specific doctor’s note
regarding Ms. Strickland’s medical restrictions. Per Ms. Sheffield’s request, Ms.
Strickland provided a doctor’s note in December 2008 stating that she “requires a chair
at checkout and limited to 15 minutes or less at a time due to osteoarthritis.” In an
accompanying handwritten note, Ms. Strickland indicated that “Dr. Ellis’s nurse ‘Allison’”
could provide more information if necessary. In addition to requesting an updated
doctor’s note, Ms. Sheffield asked Rite Aid Loss Prevention Manager Gibson to review
security surveillance tapes over the register to determine how much time Ms. Strickland
spent sitting idly and how much time she spent working productively. By mid-January
2009, Mr. Gibson had reviewed four days of video footage from the first week of
January 2009 and he reported to Ms. Sheffield that, on those four days, Ms. Strickland
was sitting down idly for about half of her shift. A loss prevention associate reviewed
two additional days of tape and reported similar findings.
After reviewing the updated doctor’s note and the loss prevention reports, Ms.
Sheffield determined that she and Mr. Frisbie needed to meet with Ms. Strickland to
determine whether they could find an appropriate accommodation for her. They
scheduled a meeting with Ms. Strickland on January 15, 2009. The stated purpose of
the meeting was for Ms. Sheffield and Mr. Frisbie to engage in an interactive dialogue
with Ms. Strickland so that they could better understand her restrictions and try to
identify reasonable accommodations. During the meeting, Ms. Sheffield and Mr. Frisbie
advised Ms. Strickland that they had received an updated doctor’s note, but that the
note still was unclear about Ms. Strickland’s limitations. They also informed Ms.
Strickland about the results of the loss prevention surveillance review indicating that Ms.
Strickland was sitting down idly for about half of her shift. At some point in the meeting,
Ms. Sheffield and Mr. Frisbie asked Ms. Strickland about the permanency of her
requested sitting accommodation. Ms. Strickland responded that she would likely need
the accommodation forever.
Shortly after the January 15 meeting, Ms. Strickland provided Ms. Sheffield and
Mr. Frisbie a new note from her doctor stating that she “needs to sit at least 30 minutes
per hour worked throughout the work day.” The new note was consistent with the
amount of time that Ms. Strickland had been observed to be sitting idly on video
surveillance tapes; however, the note did not provide a rationale for the half-time sitting
restriction or a more specific assessment of Ms. Strickland’s limitations, as requested by
13
Ms. Sheffield and Mr. Frisbie. Based on their most recent discussions with Ms.
Strickland and the new doctor’s note, Ms. Sheffield and Mr. Frisbie concluded that they
still needed more information about Ms. Strickland’s restrictions and needs to identify a
reasonable accommodation.
On January 19, 2009, Ms. Sheffield faxed a written cashier job description to Dr.
Ellis and asked him to review it to ensure that Ms. Strickland was medically capable of
performing the essential functions of the job. The purpose of Ms. Sheffield’s request
was to determine whether Ms. Strickland’s doctor could recommend any
accommodation other than the “very restrictive 50% sitting accommodation” requested
by Ms. Strickland and indicated by the doctor’s most recent note. Dr. Ellis never
responded to Ms. Sheffield’s job description inquiry and Ms. Strickland admitted that
she never asked Dr. Ellis to provide the requested information or otherwise followed up
to see if he had responded to Ms. Sheffield’s inquiry.
Within the next several days, Ms. Sheffield concluded that Rite Aid could not
provide Ms. Strickland with the sitting accommodation that she had requested. Mr.
Frisbie, as well as Ms. Sheffield’s direct supervisor, concurred. Mr. Frisbie and Ms.
Sheffield met with Ms. Strickland on January 29, 2009, to tell her that Rite Aid would not
allow her to sit for half of each hour that she worked. Per Ms. Sheffield’s
recommendation and accommodation decision, Ms. Strickland was not permitted to
continue working on January 29, 2009, and Ms. Strickland was terminated on that date.
In her lawsuit (filed on her behalf by the EEOC), Ms. Strickland contended that (i)
she was not provided a reasonable accommodation for her disability, and (ii) was then
terminated on account of her disability, in violation of the ADA. To prevail on her
reasonable accommodation claim, Ms. Strickland was required to prove that she had a
disability (which was assumed here) and that she was qualified for the Rite Aid cashier
position. She also had to prove that the defendant failed to provide a reasonable
accommodation for her disability. For the defendant to avoid liability, it was required to
show that Ms. Strickland’s accommodation would impose an undue hardship on its
business or operations. Not surprisingly, the defendant contended that Ms. Strickland
was not a qualified individual because she could not perform the essential functions of
the cashier position, either with or without a reasonable accommodation. Moreover, the
defendant asserted that Ms. Strickland’s requested accommodation of sitting for half of
every hour she worked would impose an undue hardship on its business.
The court determined there was no question that the cashier job at issue here
had significant physical requirements and that the defendant’s written job description for
the cashier position included several customer service and housekeeping duties that
are physically demanding, including unloading merchandise, stocking shelves and endcaps, building merchandise displays, and ensuring that the store is always clean and
visually pleasing. To accomplish those duties, the job description specified that
cashiers must be able, among other things, to (1) regularly stand dynamically for long
periods of time without a break, (2) regularly walk about, (3) occasionally stand statically
for long periods of time without a break, and (4) occasionally lift and carry up to fifty
14
pounds. Consistent with the written job description, the store manager and district
manager testified that cashiers were expected to productively work on the sales floor,
rather than sit idly, when they did not have a customer at the register. According to Mr.
Frisbie, cashiers spent much of their time at work walking customers to a department,
cleaning, stocking shelves, unloading trucks, implementing price changes and
performing other inventory duties throughout the store. For that reason, cashiers were
not permitted to sit while on duty and they were expected to stay busy doing tasks that
generally required movement around the store.
The court, crediting Ms. Strickland’s testimony and her doctor’s assessments,
wrote that Ms. Strickland did not meet the physical requirements described in the written
job description, and could not perform many of the tasks identified by her employer as
essential, without an accommodation. The determinative question was whether Ms.
Strickland could perform the essential job functions with a reasonable accommodation,
and the court wrote that the EEOC had not met that burden with respect to Ms.
Strickland.
The only accommodation that Ms. Strickland ever identified was to be allowed to
sit in a chair for at least half of her work day and the EEOC did not explain how sitting
idly for half of the work day would enable Ms. Strickland to (1) work productively on the
sales floor when there is not a customer at the register, or (2) meet the physical
demands required to assist with truck unloads and perform regular stocking, cleaning
and inventory-related duties. In fact, the court wrote that the sitting accommodation
would simply eliminate, rather than enable Ms. Strickland to perform, many of the
essential functions of the cashier job and that the proposed accommodation was per se
unreasonable.
The EEOC also argued that the accommodation was nevertheless required by
the ADA because Ms. Strickland had been allowed to sit for the last eight years of her
employment without incident. The defendant conceded that Ms. Strickland began using
a chair intermittently at work in 2002, but during the first five years that Ms. Strickland
was allowed to sit, her store was operating as an Eckerd rather than as a Rite Aid.
When Rite Aid purchased Eckerd in 2007, it reduced the payroll budget and
correspondingly increased the expectations of its cashiers. Assuming that the sitting
accommodation was reasonable for an Eckerd cashier, it was not necessarily feasible
once the store became a Rite Aid, as evidenced by the fact that Mr. Frisbie and Ms.
Sheffield began questioning Ms. Strickland about her sitting within about a year of the
acquisition. In any case, the court wrote, it is well-settled that an employer’s previous
willingness to provide a certain accommodation does not establish that the
accommodation is reasonable or required. Additionally, the EEOC contended that the
functions that Ms. Strickland was unable to perform were not essential because she
was not personally asked to do them during the last several years of her employment.
On this point, the store manager testified that she exempted Ms. Strickland from any
physically demanding tasks and that she allowed her to sit frequently during the work
day. The court determined that as with any other type of voluntary accommodation, an
employer does not concede that a job function is unessential by temporarily removing
15
the function from a disabled employee’s duties.
Finally, the last effort by the EEOC was to suggest that the defendant was liable
under the ADA as a result of its failure to discuss alternative accommodations that might
have enabled Ms. Strickland to perform the essential functions of her job. The court
disposed of this contention summarily, holding the Eleventh Circuit has held that an
employer has no affirmative duty even to engage in an interactive process where the
disabled employee fails to identify a reasonable accommodation—the only
accommodation that Ms. Strickland identified during her employment with the defendant
was per se unreasonable. The court wrote that “[e]ven now, neither Strickland nor the
EEOC can point to any accommodation that would enable Strickland to perform the
essential functions of the cashier job. Given Strickland’s acknowledged physical
limitations, it is doubtful that any such accommodation exists.” To the extent that the
ADA required an interactive process in this case, it was determined that the defendant
clearly met its burden in that regard—Mr. Frisbie and Ms. Sheffield conducted an
investigation during which they gathered information from various sources concerning
Ms. Strickland’s condition, her work habits, and her ability to perform the cashier job in
spite of her physical limitations. They subsequently met with Ms. Strickland several
times, at least once with the express purpose of identifying and discussing potential
accommodations. Having fully engaged in a dialogue with Ms. Strickland about her
limitations and ability to be accommodated, the court wrote that the defendant was not
liable under the ADA for failing to consider accommodations that Ms. Strickland herself
never identified or requested.
Based on the foregoing, the district court concluded that the sitting
accommodation requested by Ms. Strickland was not only unreasonable, it was patently
incompatible with the essential functions of the cashier job as identified by management
and routinely performed by every other cashier except Ms. Strickland. It was undisputed
that Ms. Strickland never identified an alternative reasonable accommodation, and there
was no indication that such an accommodation exists. Accordingly, Ms. Strickland was
not a “qualified individual” under the ADA.
The court next addressed the “undue hardship” defense. An accommodation is
an undue hardship when it can only be accomplished with “significant difficulty or
expense” to the employer.45 To determine whether that is the case, a court considers
several factors, including the nature and cost of the accommodation and its impact on
an employer’s operations and workforce.46 Accommodations that result in other
employees having to work harder or longer are often denied on the ground of undue
hardship.47
45
See 42 U.S.C. § 12111(10)(A).
46
Id. at § 12111(10)(B).
See Dey v. Milwaukee Forge, 957 F.Supp. 1043, 1052 (E.D. Wis. 1996) (“An
accommodation that would result in other employees having to work harder or longer is
47
16
The EEOC acknowledged that Rite Aid operates on a lean staffing model. There
are generally only one or two cashiers and a store manager or other supervisor on duty
during any given shift. In addition to checking out customers at the register, cashiers
are responsible for a number of other customer service and housekeeping duties,
including unloading merchandise, stocking shelves, cleaning, working in the photo lab,
and assisting customers with their shopping needs. To fulfill those duties, cashiers are
expected to productively work on the sales floor any time they do not have a customer
at the register. The court noted that given the defendant’s business model, having a
cashier sit idly for half of her shift would necessarily cause productively and morale
issues. In fact, there was undisputed evidence that Ms. Strickland’s sitting interfered
with the defendant’s operations in a number of ways. Ms. Strickland admitted that she
(1) did not work in the photo lab, (2) only mopped the floor two or three times during her
entire Eckerd/Rite Aid employment, and (3) helped stock only a small fraction of the
store, and there was testimony that other Rite Aid employees became frustrated by Ms.
Strickland’s low productivity.
The EEOC countered that the sitting accommodation was essentially cost-free
because Ms. Strickland purchased her own chair, and that the defendant can easily
absorb any impact associated with the accommodation because it is a large corporation
with over 4,700 stores and 80,000 employees. The court held that these arguments
failed to account for the true cost of the accommodation and its impact on the particular
store where Ms. Strickland worked. Every employee, including Ms. Strickland, testified
that the cashier job required frequent movement throughout the store in order to
accomplish a variety of tasks that are essential to the operations of the store. At any
given time, there were only one or two cashiers who are available to perform the
required work. While Ms. Strickland was sitting, the work was either being done solely
by one person or not being done at all. The court wrote that the defendant’s size does
not ameliorate the impact of that arrangement on the productivity and morale of the
specific store. Therefore, the requested sitting accommodation met the definition of
“undue hardship” under the ADA.
V. Plaintiffs Almost Always Get Their ADA Day in Court
The news for plaintiffs is much better. Although Rite Aid ultimately prevailed in
the district court, courts around the nation have been far more sympathetic to plaintiffs,
at least allowing them to have their day in court to attempt to prove some sort of
disability discrimination. Again, many cases are unreported, but do serve to show that
courts are far more sympathetic to plaintiffs’ disability discrimination claims after the
ADAAA than before its adoption.
not required under the ADA”); and Pate v. Baker Tanks Gulf S., Inc., 34 F.Supp.2d 411,
417 (W.D.La.1999)(holding same).
17
In LaPier v. Prince George’s County,48 Steven LaPier began training as a student
officer at the Police Department sometime in October 2008. Mr. LaPier alleged in his
lawsuit that he witnessed “what he considered inappropriate and unprofessional
conduct by the police instructors” from the “very first day of the Academy.” He alleged
various examples of this conduct—e.g., the instructors’ use of “foul language”; the
instructors’ forcing the cadets to fold clothes for weeks; an instructor’s punching a hole
in a wall and “telling” a cadet to pay for it; and the instructors’ forcing students to change
in a parking lot “at some point during the winter months.” Although Mr. LaPier alleged
that he and other student officers were subjected to “demeaning and dehumanizing
treatment” on a daily basis, he alleged no details regarding such treatment. He also
alleged that he communicated these concerns to Major David Morris who, at some
point, communicated them to “appropriate personnel” at the Department.
On April 9, 2009, Mr. LaPier passed out during a training run. One or more
doctors diagnosed him with Osler–Weber–Rendu syndrome, which is a chronic blood
disorder that causes decreased oxygen in the blood. Mr. LaPier resumed his normal
training activities after a weeklong period during which his doctors advised him to
perform only light work. In a letter dated May 5, 2009, one of Mr. LaPier’s doctors
informed the County that Mr. LaPier was fit to resume normal training activities.
The County’s Medical Advisory Board (MAB) met on June 4, 2009. The MAB
reviewed Mr. LaPier’s medical records, determined him to be unfit for duty, and
recommended his separation from the Police Department. The Police Chief advised Mr.
LaPier of the Board’s recommendation in a letter that the Chief signed on June 9, 2009,
and delivered on June 18, 2009. Mr. LaPier appealed to the County Personnel Board
the MAB’s recommendation that the Chief terminate him. Mr. LaPier was represented
by legal counsel during this appeal and was permitted to produce witness testimony on
his behalf. Mr. LaPier also alleged that the Personnel Board made a decision and
transmitted it to the County’s law office for review, but that the County’s law office
unjustifiably failed to permit the Personnel Board’s decision to issue.
On June 17, the day before Mr. LaPier received the termination letter, he learned
of a cheating scandal in which instructors were spoon-feeding exam answers to police
cadets. Apparently, on the same day, Mr. LaPier informed Major Morris of his
discovery, who in turn informed the Chief.
On October 14, 2010, Mr. LaPier filed a complaint containing six counts. While
not addressing the civil rights violations alleged by Mr. LaPier in his lawsuit, he asserted
a claim for violations of the ADA and ADAAA, along with a claim for violation of the
Rehabilitation Act of 1973.
In brief, the County argued that Mr. LaPier was not a qualified individual with a
disability under the ADAAA. An individual can show that he is disabled in three ways,
48
2012 WL 1552780 (D. Md. 2012).
18
only two of which are relevant to this case, under the ADAAA. An individual can show
that he suffers from “a physical . . . impairment that substantially limits one or more
major life activities of such individual.”49 Alternatively, an individual can show that his
employer regarded him as having such an impairment.50
Under the ADAAA, the court noted that an individual has an actual disability
where he suffers from a physical impairment that substantially limits at least one major
life activity.51 One can divide this definition of disability into three prongs: (1) whether
someone suffers from a physical impairment; (2) whether the physical impairment limits
at least one of the person’s major life activities; and (3) whether such limitation is
substantial.
In this case, the court determined that Mr. LaPier had adequately alleged that he
had a physical impairment—a chronic blood disorder. Further, the court wrote that Mr.
LaPier had sufficiently stated that this impairment limited a major life activity. The
ADAAA defines “major life activities” to include “breathing,” as well as “respiratory” and
“circulatory” functions.52 Here, Mr. LaPier had alleged that he passed out on account of
a chronic blood disorder that causes decreased oxygen in the blood, and at a minimum,
the court noted that this event would seem to implicate breathing, respiration, and/or
circulation.
Therefore, the only question for the court was whether Mr. LaPier had
satisfactorily stated that his blood disorder “substantially” limited a major life activity. As
the court noted, the ADAAA does not define the phrase “substantially limits.” In an
attempt to fill this gap, the court reviewed the ADAAA’s legislative history and concluded
that “although the [ADAAA] evinces Congress’s intent to lower the threshold for
demonstrating a disability, the impairment’s severity must rise above a floor of material
restriction.”
Here, at a minimum, the court determined that Mr. LaPier had suitably asserted
that his blood disorder substantially limited the major life activities of breathing,
respiration, and/or circulation. “To reiterate, Plaintiff alleges that he suffers from a
chronic blood disorder that, inter alia, causes decreased oxygen in the blood. Plaintiff
maintains that he has experienced ‘bleeding events’ from his adolescence. Plaintiff
further avers, and Defendants do not dispute, that Plaintiff lost consciousness during a
training activity. In light of these allegations, it is plausible that Plaintiff’s blood disorder
limits his ability to engage in major life activities (e.g., breathing) compared to most
49
42 U.S.C. § 12102(1)(A).
50
Id. § 12102(1)(C).
51
See id. § 12102(1)(A).
52
Id. § 12102(2)(A)-(B).
19
people in the general population. Anything less would make a mockery of the ADAAA’s
mandate that ‘[t]he definition of disability in this chapter shall be construed in favor of
broad coverage of individuals under this chapter, to the maximum extent permitted by
the terms of this chapter.’”53 Accordingly, the court held that Mr. LaPier had stated a
cognizable claim for actual disability.
The next issue addressed by the district court related to Mr. LaPier’s allegation of
a perceived disability. The ADAAA provides that disability means being “regarded as”
having an impairment that substantially limits at least one major life activity. 54 An
employee may satisfy this definition by showing that his employer subjected him to
discrimination “because of a . . . perceived . . . impairment whether or not the
impairment limits or is perceived to limit a major life activity.”55 Here, Mr. LaPier alleged
that the County perceived him as disabled because he provided the County with
medical documentation of his blood disorder and the County relied on such
documentation in determining him to be physically unfit for duty. The County did not
dispute these assertions.
Instead, the County contended that Mr. LaPier’s blood disorder was “transitory
and minor” and, therefore, did not fall under the ADAAA’s “regarded as” definition of
disability.56 The court wrote that the foregoing discussion, however, demonstrated that
Mr. LaPier had adequately alleged that his blood disorder was more than minor.
Moreover, the ADAAA defines “transitory impairments” as those with “an actual or
expected duration of 6 months or less.”57 In this case, by contrast, Mr. LaPier
maintained that he has suffered from his blood disorder since he was an adolescent.
Therefore, the court determined that the County’s argument was without merit and that
Mr. LaPier had stated a cognizable claim for perceived disability.
Alternatively, the County contended that Mr. LaPier had failed to state a prima
facie case for disability discrimination. In this case, as the court explained, Mr. LaPier
had suitably asserted that he came within the ADA’s protected class because he had
stated a cognizable claim that he is disabled under the ADAAA. Although Mr. LaPier’s
allegations were “somewhat sparse,” they sufficed to state that Mr. LaPier was
performing at a level that met the County’s legitimate expectations. Nevertheless, in
light of these admittedly sparse allegations, the court held that Mr. LaPier had stated a
See 42 U.S.C. § 12102(4)(A); see also 29 C.F.R. § 1630.2(j)(1)(i) (“‘Substantially
limits’ is not meant to be a demanding standard.”).
53
54
See 42 U.S.C. § 12102(1).
55
Id. § 12102(3)(A).
56
See id. § 12103(3)(B).
57
Id.
20
facially plausible claim that he can satisfy the elements of a prima facie case. The court
also held that because Mr. LaPier had stated a cognizable claim for disability
discrimination under the ADAAA, “it forcibly follows that he has stated a cognizable
claim for disability discrimination under the Rehabilitation Act.”
VI. Recent ADA Cases: Mostly Victories for Plaintiffs
Below is a listing of cases where plaintiffs generally have been successful, at
least by “lowering the bar” to survive motions to dismiss and other pleas.
●
Gibbs v. ADS Alliance Data Sys.58 The court denied defendant’s motion
for summary judgment and held that carpal tunnel syndrome that is debilitating in one
hand may constitute a disability under the ADAAA. The court stated that under the new
law, “Congress intended to convey that the question of whether an individual’s
impairment is a disability under the ADA should not demand extensive analysis and that
the primary object of attention in cases brought under the ADA should be whether
entities covered under the ADA have complied with their obligations.”
●
Kinney v. Century Services Corp.59 Plaintiff had isolated bouts of
depression, which was debilitating when active, but did not impact her work
performance when it was inactive. The district court denied defendant’s motion for
summary judgment and held that although intermittent depressive episodes were clearly
not a disability prior to the ADAAA’s enactment, plaintiff’s depression raised a genuine
issue of fact as to whether she is a qualified individual under the Amendments Act.
●
Feldman v. Law Enforcement Assoc.60 One plaintiff had episodic multiple
sclerosis and the other plaintiff had TIA, or “mini-stroke.” The court found that the
multiple sclerosis was clearly a disability under the ADAAA since the statute specifically
states that “an impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.” In addition, the recent EEOC
regulations for the Amendments Act specifically list MS as a disability. As to the plaintiff
suffering from TIA, the court held that “while the duration of [plaintiff’s] impairment may
have been relatively short, the effects of the impairment were significant”, and therefore,
he also alleged sufficient facts at the initial stage of the case.
●
Chamberlain v. Valley Health Sys.61 Plaintiff adequately alleged that she
was “regarded as” disabled as a result of her visual field defect which made fine visual
58
2011 WL 3205779 (D. Kan. 2011).
59
2011 WL 3476569 (S.D. Ind. 2011).
60
779 F.Supp.2d 472 (E.D.N.C. 2011).
61
781 F.Supp.2d 305 (W.D. Va. 2011).
21
tasks more difficult. The court denied summary judgment and held that the issue of
whether the employer believed that plaintiff’s impairment “was both transitory and minor
must be decided by a jury” given that plaintiff submitted an affidavit stating that one of
her supervisors insisted that plaintiff was completely unable to work as a result of her
vision problem.
●
Cohen v. CHLN, Inc.62 Plaintiff alleged that he suffered from debilitating
back and leg pain for nearly four months before his termination. The court denied
summary judgment and held that under the less restrictive standards of the ADAAA,
plaintiff has offered sufficient evidence to raise an issue of fact as to whether he was
disabled at the time of his termination. While defendant claimed that his condition was
of too short a duration, the court disagreed and found that the ADAAA mandates no
strict durational requirements for plaintiffs alleging an actual disability.
●
Norton v. Assisted Living Concepts, Inc.63 The court denied summary
judgment and held that renal cancer qualified as a disability under the ADAAA. The fact
that plaintiff’s cancer was in remission when he returned to work is of no consequence
since there is no dispute that renal cancer, “when active,” constitutes a physical
impairment under the statute. Moreover, cancer, when active, substantially limits the
major life activity of normal cell growth, as defined by the statute and the EEOC
regulations regarding the Amendments Act. See also Meinelt v. P.F. Chang’s China
Bistro, Inc.64
●
Coffman v. Robert J. Young Co., Inc.65 A copy center operator (and 15year employee) was seriously injured in a non-work related accident. She was placed
on FMLA leave and subsequently received both short-term and long-term disability
benefits. Even though she was given a “return to work” date with certain lifting
limitations, she was terminated because (1) she could not perform the tasks of her
position, (2) the company needed to fill the position and (3) “due to [her] long term
disability.” The court held that the plaintiff had sufficiently pleaded a physical
impairment that substantially limited the major life activity of working and the defendant
had terminated her employment as a result of her impairment.
●
Rico v. Xcel Energy, Inc.66 Plaintiff suffered a work-related back injury as
an apprentice lineman and after surgery, he returned to work with “modest lifting
62
2011 WL 2713737 (E.D. Pa. 2011).
63
786 F.Supp.2d 1173 (E.D. Tex. 2011).
64
2011 U.S. Dist. LEXIS 57303 (S.D. Tex. 2011) (denying summary judgment where
plaintiff had an operable brain tumor).
65
2011 WL 2174465 (M.D. Tenn. 2011).
66
893 F.Supp.2d 1165 (D.N.M. 2012).
22
restrictions” and “no utility pole climbing.” He subsequently requested a transfer, which
was denied, where he would not lift or climb poles. Instead, he was recommended for
long-term disability benefits and terminated, and he applied for an open position in
competition with other job applicants. He was offered a lower-paying job with a loss of
seniority. Plaintiff’s allegations of a violation of the ADA, as amended by the ADAAAA,
withstood a motion to dismiss because plaintiff sufficiently pleaded he was disabled.
●
Harty v. City of Sanford.67 After having received knee injuries and a 40%
disability rating from the VA while in the Navy, plaintiff accepted a job with the city as an
equipment operator. After a pre-employment physical, it was determined that he could
perform all essential job functions. After 2 weeks on the job, he applied for and was
offered a foreman’s job, with no additional fit-for-duty examination being conducted. He
injured his knee while assisting a bricklayer and was placed on light duty. After
returning to work full-time with restrictions on squatting, kneeling, running and jumping,
among others, a fit-for-duty evaluation was performed, and it was determined that he
could not perform all of the essential functions of a foreman and he was terminated.
The employer’s motion for summary judgment was denied because there was evidence
the plaintiff was disabled and a qualified individual who could perform essential job
functions.
●
Johnson v. Farmers Ins. Exchange.68 Under the broad definition of
disability in the ADAAA, the plaintiff’s allegations that she suffered from sleep apnea
were sufficient to state a claim that she had a disability that substantially limited a major
life activity. As a consequence, the defendant’s motion to dismiss was denied.
●
Farina v. Branford Bd. of Educ.69 Since the ADAAA lowered the threshold
requirement to establish a disability, and specifically included lifting as a major life
activity, “it is possible that even a relatively minor lifting restriction could qualify as a
disability within the statute.” In this case, the lawsuit of a tenured elementary school
teacher who had substantial performance issues and was often tardy to work did not
survive a motion for summary judgment because of factual insufficiencies in her
pleadings.
●
Phelps v. Balfour Commemorative Brands, Inc.70 Although the plaintiff
alleged she suffered from arthritis, bursitis, obesity, tendonitis, diabetes and anemia and
was often sick and hospitalized, she made no factual statements as to the nature of her
disability and did not show that her impairment substantially limited one or more major
67
2012 WL 3243282 (M.D. Fla. 2012).
68
2012 WL 95387 (W.D. Okla. 2012).
69
2010 WL 3829160 (D. Conn. 2010).
70
2013 WL 653542 (W.D. Ky. 2013).
23
life activities. Consequently, she failed to establish a prima facie case for discrimination
and also could not show a failure to accommodate a disability.
●
Fierro v. Knight Transportation.71 Terminated truck driver requested that
he not be sent over-the-road because of important medical appointments and that he be
granted leave from work to seek medical attention. The plaintiff alleged that he had
adenoid cystic carcinoma, a form of cancer, but failed to plead any facts giving rise to
an inference that his cancer substantially limited one or more major life activities. He
also failed to plead sufficient facts regarding the timing of his termination relative to his
alleged cancer as well as facts that his employer had notice of the disability and failed to
accommodate; however, the plaintiff did plead sufficient facts that he was perceived by
his employer to have cancer, thus stating a cause of action for discriminatory discharge.
●
Nayak v. St. Vincent Hospital and Health Care Center, Inc.72 Hospital
OB/GYN resident delivered one of two twins (one passed away during pregnancy) and
experienced serious post-partum difficulties. Her contract was not renewed and she
alleged it was a result of her pregnancy complications. The court determined the
resident had sufficiently pleaded a plausible claim for disability discrimination but had
not adequately pleaded a “regarded as” disabled claim of discrimination.
71
2012 WL 4321304 (W.D. Tex. 2012).
72
2013 WL 121838 (S.D. Ind. 2013).
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