DISABILITY DISCRIMINATION: DEVELOPMENTS IN CASE...

Disability Discrimination: Developments in Case Law Under the ADA

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© American Bar Association http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

DISABILITY DISCRIMINATION:DEVELOPMENTS IN CASE LAW UNDER THE ADA

Jonathan R. MookPartnerDiMuro, Ginsburg & Mook, P.C.Alexandria, Virginia

Of CounselOgletree, Deakins, Nash, Smoak & Stewart, LLPWashington, D.C.

I. COURT DECISIONS DEFINING “DISABILITY”

A. Physical or Mental Impairments Substantially Limiting a Major Life Activity

1. Cases Where Plaintiff Has or Could Have a Substantially LimitingImpairment

! In Taylor v. Phoenixville School District, __ F.3d __ (3d Cir.1999), the Third Circuit reversed the lower court’s grant ofsummary judgment in favor of the employer and reinstated a suitbrought by a secretary who suffered from bipolar disorder. Inreversing the district court, the court of appeals held that thesecretary’s bipolar disorder was a disabling condition under theADA because it substantially limited her abilities to think, care forherself, concentrate, and interact with others. The court noted thatthe secretary had been confined to a hospital because she waspsychotic, had become increasingly agitated, and that she sufferedparanoid delusions that persons were trying to kill her. The courtof appeals also found that the secretary’s employer school districthad more than enough information to put it on notice that thesecretary might be disabled due to her bipolar disorder. In addition,the court found that when the secretary’s son asked for“accommodations” from the school district, the district bore theburden of seeking whatever additional information it may haveneeded pertaining to the secretary’s disability and possibleaccommodations. Accordingly, the court of appeals held that areasonable jury could conclude that the school district failed toengage in an interactive process of seeking accommodations for thesecretary and, hence, failed to fulfill its ADA obligations.


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2. Cases Where Plaintiff Does Not Have a Substantially LimitingImpairment

! In Leisen v. Shelbyville, 135 F.3d 805 (7th Cir. 1998), the SeventhCircuit upheld the district court’s grant of summary judgment to theplaintiff’s former employer, the City of Shelbyville Fire Department,because the plaintiff failed to establish that her claimed “depression”substantially limited any major life activity and there, even if it did,that she was a qualified individual with a disability. The plaintiff,who had been hired as a firefighter for the city of Shelbyville, hadbeen terminated when she failed to gain state certification as aparamedic, which her employment contract required. The plaintiffattributed her inability to obtain certification to her emotionaldisabilities, and the plaintiff’s counselor testified that the plaintiffsuffered from “sleep problems, memory problems, crying andanxiety, suicidal ideation [and] ... some depression.” Even ifplaintiff had a recognized mental impairment, the district courtfound that it did not qualify as an ADA covered “disability” becausethe plaintiff was not substantially limited in any major life activity.

The Court of Appeals upheld the district court’s determination. Even though the plaintiff had difficulty obtaining certification as aparamedic, this did not show that she was substantially limited inthe major life activity of learning “any more than the fact that aparticular individual might not be able to pass a course in physics orphilosophy would allow an inference that all learning activity wassubstantially limited.” Similarly, the appeals court noted that therecord contained no evidence to establish that the plaintiff wassubstantially limited in the major life activity of working since “noteveryone can be a firefighter, and [plaintiff] showed at most that herdisability interfered with her ability to perform that particular job.” Alternatively, the court of appeals upheld the district court’s rulingthat the plaintiff was not a qualified individual with a disabilitybecause the requirement to obtain a paramedic certification was areasonable one, and “that an employer does not have to changebasic job qualifications just because someone is disabled.”

! A secretary’s carpal tunnel syndrome, which prevented her fromtyping for a number of months, did not constitute an ADA covereddisability because the impairment did not “substantially limit” herability to work and take care of herself. The court found that theplaintiff’s impairment did not substantially limit her ability to workin a broad range of jobs because the plaintiff’s “single and particular


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limitation” was limited to the difficulty in performing typing duties. In so holding, the court noted that the plaintiff’s request to transferto a position that did not require typing indicated that the plaintiffdid not feel limited in her ability to perform a broad range of job. Lamboy/LaSalle v. Puerto Rico Telephone Company, 8 F. Supp.1222 (D.P.R. 1998).

! A flight attendant’s temporary hearing impairment, which requiredher to fly only in planes using pressurized cabins, did not rise to thelevel of an ADA covered disability because the hearing impairmentwas temporary. Moreover, plaintiff failed to show that herimpairment limited her major life activities. Clemente v. ExecutiveAirlines, 7 F. Supp. 114 (D.P.R. 1998).

! In Hoeller v. Eaton Corporation, 149 F.3d 621 (7th Cir. 1998), thecourt of appeals upheld the district court’s grant of summaryjudgment in favor of the employer, Eaton Corporation, on theplaintiff’s claim that Eaton terminated his employment because ofhis bipolar disorder. Although the disorder produced mood swingsfrom depression to mania, the court of appeals found that theplaintiff had failed to establish that his bipolar disorder substantiallylimited any major life activities. The court noted that there was noevidence that plaintiff’s disorder substantially limited his “thoughtprocesses” or his “communication skills and interpersonalrelationships.”

! An elementary school guidance counselor with a history ofdepression was held not to be covered by the ADA because theemployee’s depression was not severe enough to substantially limita major life activity. Olson v. Dubuque Community SchoolDistrict, 137 F.3d 609 (8th Cir. 1998). The Eighth Circuit Court ofAppeals agreed with the district court’s grant of summary judgmentin favor of the employer on the basis that the guidance counselorwas not disabled. The undisputed evidence showed that thecounselor reported to work regularly and felt that she was able toperform her job in a satisfactory manner, despite periodic episodesof depression. The guidance counselor also failed to demonstratethat her employer regarded her as having a disability. Although theemployer knew that the guidance counselor had a history ofdepression, this information, without more, did not establish that itregarded her as having a disability covered by the ADA.


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! In Cody v. Cigna Healthcare, 139 F.3d 595 (8th Cir. 1998), theplaintiff, Carole Cody, worked in St. Louis as a nurse for CignaHealthcare. Cody claimed that she suffered from depression andanxiety, and, as a consequence, it was difficult for her to go tocertain parts of the city she considered dangerous. As a result ofco-worker complaints about Cody’s strange behavior and that Codyhad spoken about carrying a gun, Cigna scheduled a meeting withCody who arrived with a noticeable bulge in her purse. A localsecurity specialist was sent to the meeting and Cigna offered Codya paid leave of absence with her return contingent upon undergoinga psychiatric evaluation. Cody left the meeting and when sherefused to return to work, Cigna terminated her.

Cody, thereafter, filed suit under the ADA and the Missouri HumanRights Act, but the district court dismissed the case on the basisthat Cody was unable to establish that she was disabled. TheEighth Circuit affirmed, concluding that even though Cody wasdiagnosed with depression, there was no evidence that her mentalimpairment substantially limited any of her major life activities. Although Code claimed that she experienced anxiety in elevators,driving and entering high-crime areas, the court concluded thatCody’s statements only demonstrated that her depression “causeddifficulties in her life, she did not show it was such a substantialimpairment as to amount to a disability under the ADA..”

In addition, the court concluded that the evidence did not establishthat Cigna regarded Cody as having an impairment. AlthoughCody argued that Cigna’s offering her paid medical leave andrequiring that she see a psychologist before returning to workindicated that Cigna viewed her as disabled, the court of appealsdisagreed. The court reasoned that “an employer’s request for amental evaluation is not inappropriate if it is not obvious that anemployee suffers from a disability” and “a request for an evaluationis not equivalent to treatment of the employee as though he weresubstantially impaired.” According to the appeals court, “whilesome of Cody’s behavior may have been unusual, the evidence thatshe submitted does not establish that Cody was treated as if shewere disabled.”

! In Leisen v. City of Shelbyville, 153 F.3d 805 (7th Cir. 1998), thecourt held that plaintiff’s claimed depression did not make her aqualified individual with a disability. Plaintiff claimed to suffer fromdepression, and alleged that her impairment caused her to fail the


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paramedic course required for firefighters. The court found thatplaintiff passed other qualifying exams (such as EMT renewal)while she was under stress, and held that she was not substantiallylimited in the major life activity of learning. Additionally, theemployee failed to present any evidence that she was substantiallylimited in the major life activity of working.

3. What Constitutes a Major Life Activity?

! A former employee’s depression was held not to constitute an ADAcovered disability in Pack v. K Mart Corporation, et al., 166 F.3d1300 (10th Cir. 1999), because the depression did not substantiallylimit her major life activities. The plaintiff and the EEOC, asamicus curiae, contended that the depression substantially limitedthe plaintiff’s major life activities of sleeping and concentrating. The Tenth Circuit agreed that sleeping is a major life activity,reasoning that it “is a basic activity that the average person in thegeneral population can perform with little or no difficulty, similar tothe major life activities of walking, seeing, hearing, speaking,breathing, etc.” However, the court held that concentration, in andof itself, is not a major life activity, although it may be a “significantand necessary component of a major life activity, such as working,learning or speaking.”

In considering the extent to which the plaintiff’s depression limitedher major life activity of sleeping the court noted that the plaintiffhad episodes of sleep disruption and waking without feeling rested. Nevertheless, the court found no indication that the plaintiff’s sleepproblems were severe, long term, or had a permanent impact uponthe plaintiff. In addition, the court noted that the plaintiff’sphysician was able to control the plaintiff’s sleep problems withmedication, even going too far in some instances, and making theplaintiff too sleepy or drowsy. According to the court, thisevidence confirmed that the plaintiff’s major life activity of sleepingwas not substantially limited by her depression. In making thisanalysis, the Tenth Circuit followed its earlier decision in Sutton v.United Airlines, 130 F.3d 893 (10th Cir. 1997), cert. granted, 119S.Ct. 790 (1998), in which the court of appeals held that inevaluating whether a physical or mental impairment is substantiallylimiting, a court should take into consideration any mitigating orcorrective measures, such as medication, utilized by the individual.


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! In Reeves v. Johnson Controls, 140 F.3d 144 (2d Cir. 1998), thecourt of appeals upheld the district court’s decision that a formeremployee who suffered from a panic disorder with agoraphobia wasnot covered by the ADA, despite the contention that his conditionsubstantially limited the major life activity of “every day mobility.” Although plaintiff could not travel over bridges or through tunnels,board trains unaccompanied, or drive along routes prone to traffictie-ups, the court found that the plaintiff was sufficiently mobile totravel to and from work on a regular basis. The court stated that anADA plaintiff may not tailor the definition of “major life activity” tofit the specific circumstances of the impairment, which is what theplaintiff in Reeves was trying to do. Also, the court questionedwhether “everyday mobility” should be considered a “major lifeactivity.”

4. Substantial Limitations in Working

a. Do Lifting Restrictions Substantially Limit Working?

! In Corrigan v. Perry, 961 F. Supp. 132 (E.D. Va. 1997), aff’d,1998 U.S. App. LEXIS 5859 (4th Cir. 1998), the court held that anemployee who was medically restricted because of a back injuryfrom lifting more than 25 pounds, driving a forklift, and lifting overhis head, was not disabled under the Rehabilitation Act.

! A plaintiff with a lifting restriction was not substantially limited inthe major life activity of working. Gutridge v. Clure, 153 F.3d 898(8th Cir. 1998). Although the plaintiff could not perform hiscurrent position of computer service technician, there werenumerous other technician positions that did not require lifting. Additionally, the court declined to interpret a record of impairmentto mean hospitalization. The court stated that the ADA requires“permanent or long-term impairments....”

b. Inability to Perform a Particular Job, Work Schedule, or WorkWith a Particular Supervisor

! A teacher of severely retarded children, who suffered from paranoiaand was discharged from a special education school, was held notto be disabled under the ADA. Patterson v. Chicago Associationfor Retarded Citizens, 150 F.3d 719 (7th Cir. 1998). Even thoughthe teacher was found to be incapable of instructing and vigilantlymonitoring severely retarded children, most of whom had additional


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psychiatric or emotional problems or physical impairments, thecourt of appeals upheld the district court’s grant of summaryjudgment. The court noted that in order to be substantially limitedin the major life activity of work, the plaintiff’s mental impairmenthad to render her incapable of performing any teaching job, not justa specific type of teaching job. The evidence established that theplaintiff was significantly restricted in the ability of performing onlyone specific area of classroom instruction that involved severelyretarded children. Moreover, following her termination at thespecial education school, the plaintiff became regularly employed asa teacher with the Chicago Public School System. The court notedthat “judging from the record, her ability to perform the duties of ateacher in the [public school] system generally has not been affected[by her impairment].”

! In Berg v. Norrand Corporation, __ F.3d __ (8th Cir. 1999), thecourt of appeals upheld the grant of summary judgment against anon-insulin dependent diabetic who claimed that she had beenterminated by her employer because of her disability. The plaintiff’sdiabetes restricted her to a 40-50 hour work week, but the courtfound that being limited in this fashion could not be said tosubstantially limit one’s ability to work. The court of appeals foundthis to be true especially in the case of the plaintiff since, after hertermination, the plaintiff started her own tax and accountingpractice and became chief financial officer of a constructioncompany.

! The court in Deas v. River West, L.P., 152 F.3d 471 (5th Cir.1998), rejected the argument that a seizure is a disability per se,reasoning that a temporary loss of awareness does not constitute asubstantial limitation of a major life activity. Plaintiff presented noevidence that her employer considered her injuries substantialenough to limit a major life activity. Additionally, the court statedthat the inability to perform one type of job does not substantiallyimpair the major life activity of working.

! In Swain v. Hillsborough County School Board, 146 F.3d 855(11th Cir. 1998), the court of appeals ruled that the plaintiff failedto prove she was disabled. Although the plaintiff suffered from anumber of ailments that required frequent access to the restroom,she failed to show how these ailments significantly limited a majorlife activity. The plaintiff asserted that her ability to work wasaffected because there were periods of time at work during which


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she could not use the restrooms. The court found, however, thatthis proved only that plaintiff had difficulty with her currentteaching job, not all teaching jobs.

! Former employee who suffered from depression and anxietydisorders that rendered him unable to cope with stress or to work inunduly stressful environments was not substantially limited in themajor life activity of work. Gaul v. AT&T, Inc., 955 F. Supp. 346(D.N.J. 1997), aff’d sub nom., Gaul v. Lucent Technologies, Inc.,134 F.3d 576 (3d Cir. 1998). The court determined that “undulystressful” jobs do not constitute a recognized occupationalclassification, and, hence, the plaintiff was not significantlyrestricted in his ability to perform either a class or jobs or a broadrange of jobs in various classes. Further, to the extent that theplaintiff claimed that in order to accommodate his depression andanxiety disorders he merely needed to be transferred away from acertain supervisor, the court reasoned that he was not disabledunder the ADA.

B. Being Regarded as Disabled

1. Employer Perceived or May Have Perceived Individual as Disabled

! A supermarket company that erroneously viewed a former frozenfood manager’s physical restrictions following ankle surgery aspermanent based upon a mistaken interpretation of the medicalrecords was held to have erroneously regarded him as disabled. Taylor v. Pathmark Stores, __ F.3d __ (3d Cir. 1999). The courtof appeals affirmed the district court’s determination that theplaintiff was disabled under the ADA because the employerconsidered him incapable of performing a wide range of jobs,covering most jobs available in supermarkets. The court furtherexplained that an employer that is factually mistaken about theextent of an employee’s impairment will not be liable under theADA if the employee or his agent is responsible for the mistake. On the other hand, if the employer believes that an employee’sperceived disability inherently precludes successful performance ofthe essential functions of the job, the employer must be correctabout the employee’s ability to perform the job in order to avoidADA liability. In the case before it, the court of appeals found thata jury could determine that the employer was responsible forerroneously regarding the former employee as being disabled.


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! In Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998),the plaintiff, Cline, brought suit against Wal-Mart alleging that hewas demoted and terminated because of his disability. Cline hadtaken a leave of absence for surgery to remove a brain tumor. When Cline returned from his leave, he was demoted from hissupervisory position because Wal-Mart did not believe he couldhandle the pressure and stress. Later, Cline was terminated whenhe and another worker were found in the lounge instead ofattending a meeting. The other individual, however, was notterminated. In addressing whether, at the time of his termination,Cline was disabled, the court held that Wal-Mart could “be found tohave regarded Cline as having an impairment that substantiallylimited the major life activity of working if Wal-Mart demoted Clinebecause it perceived him to be significantly restricted in his abilityto perform either a class of jobs or a broad range of jobs in variousclasses.”

! In Riemer v. Illinois Department of Transportation, 148 F.3d 800(7th Cir. 1998), the Seventh Circuit held there was sufficientevidence for the jury reasonably to conclude that defendantregarded plaintiff as suffering from a disability, in this case, asthma. After examining the plaintiff, the defendant’s doctor concluded thatworking in the fabrication shop would irritate plaintiff’s asthmaticcondition. Plaintiff’s supervisor testified that this was the reason hetransferred plaintiff to a permanent field position outdoors.

2. Employer Did Not Perceive Individual as Disabled

!! In Lesard v. Osram-Sylvania, __ F.3d __ (3d Cir. 1999), the ThirdCircuit addressed the standard for establishing a “regarded as”disability claim. In that case, the court held that an employer didnot regard an employee with a hand injury as being disabled when itterminated him from working in a department in which the jobinvolved repetitive motion. The court noted there was no evidencethat the employer’s decision indicated that it perceived theemployee to be limited in the major life activity of working. Thecourt went on to say that it is doubtful whether even mis-motivatedactions by an employer can be the basis for liability if those actionsare based on a perceived impairment of an individual that does notsubstantially limit a major life activity. The court noted there was


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no reason to think that Congress intended the scope of protectionafforded to persons with perceived disabilities to be larger than thescope of protection afford to those actually disabled.

! In Talanda v. KFC National Management Co., 1997 U.S. DistrictLEXIS 4006 (N.D. Ill. 1997), aff,d., 140 F.3d 1090 (7th Cir.1998), the court determined that an employee who had missingteeth was not regarded by his employer as being disabled, eventhough the employer removed the employee from his position as anorder taker in a fast food restaurant and reassigned the employee tofood preparation. The court reasoned that the employer’s actionindicated only that the employee was unsuited for a single job, thatof a smiling order taker, and that the employer did not regard theemployee as unqualified to work generally.

! In Duncan v. State of Wisconsin Dept. of Health and FamilyServices, et al., 166 F.3d 930 (7th Cir. 1999), the plaintiff wasemployed as a youth counselor at a correctional facility for youngmales operated by the State of Wisconsin. The plaintiff wasterminated two months after an incident in which one of his youngcharges complained that plaintiff had been verbally abusive. Theincident prompted the correctional facility to order the plaintiff tosubmit to various psychological tests at the state’s expense. Theplaintiff completed some, but not all, of the program the psychiatristrecommended for him. After plaintiff missed several meetings withcounselors and officials of the correctional facility, he was fired. The plaintiff then sued under Title II of the ADA, which prohibitsdiscrimination by state and local governments, and theRehabilitation Act of 1973. The district court granted summaryjudgment in favor of the State of Wisconsin, and the SeventhCircuit upheld the district court’s determination. The court ofappeals agreed with the district court that the plaintiff was notcovered under the ADA or the Rehabilitation Act as being“disabled” even though the plaintiff had argued that the correctionalfacility officials had regarded him as having a personality disorder,and as being substantially limited in the major life activity ofworking. The Seventh Circuit pointed out that the plaintiff haddemonstrated that he was regarded only as having troubleperforming one specific job – not working in general. The courtnoted that because the correctional facility officials had respondedto problems in the plaintiff’s unit by transferring him to anotherfacility, this indicated that the officials believed he could worksuccessfully in a slightly different environment.


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! In Newberry v. East Texas State University, et al., 161 F.3d 276(5th Cir. 1998), the Fifth Circuit affirmed the lower court’sdismissal of the ADA claims of a tenured university professor whohad been discharged because of his poor work performance andlack of collegiality. Although the professor had been diagnosedwith depression, and one of his supervisors knew this fact, the courtof appeals emphasized that the university had dismissed himbecause of his work performance and lack of collegiality. Thecourt noted there was no evidence that the perception of plaintiff asbeing mentally ill had been a motivating factor in his dismissal. Thecourt of appeals contrasted this situation with that of an employerwho regarded mentally ill people as inherently dangerous and, then,to avoid the danger, fired an employee with a mental illness. Thecircuit court, therefore, upheld the jury verdict that the plaintiff wasnot a qualified individual with a disability under the ADA. Asstated by the court, the plaintiff’s dismissal came about not becauseof others’ attitudes about the disorder, but because his behaviorinterfered with his job performance “and perhaps because thebehavior displeased others.”

! In Witter v. Delta Air Lines, Inc., 138 F.3d 1366 (11th Cir. 1998),the court held that in order for an employee to be regarded asdisabled, the employer must believe that the employee is unable toperform a class of jobs, not just a single job. The plaintiff was anairline pilot who had suffered from a bipolar disorder and wasgrounded for a period of time. Subsequently, the airline’s doctordetermined he was qualified to fly unless there was any futureunusual behavior. Later, plaintiff and his co-employees filed claimsagainst each other due to difficulties flying together. The two othercrew members considered plaintiff to present a safety hazard. Theairline’s doctor re-evaluated plaintiff, determined he had aNarcissistic Personality Disorder, and suggested he be grounded. The court ruled that the plaintiff had failed to show that theemployer regarded him as being disabled because he was restrictedonly from an airline pilot position. The court found that thisrestriction was not broad enough to substantially limit hisemployment opportunities, because there were many other jobs thatplaintiff could have held with his experience and education.


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II. WHO IS A QUALIFIED INDIVIDUAL WITH A “DISABILITY”?

A. Employees Who Were Qualified Individuals

! In Haschman v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir.1998), the appeals court upheld a jury verdict for the plaintiff, finding thatshe was a qualified individual with a disability entitled to pursue an ADAclaim. Plaintiff suffered from systemic lupus erythematosus and sufferedperiodic flare-ups, which required her to take a leave of absence. Whenplaintiff requested a second leave, she was terminated. The employercontended that plaintiff failed to perform the essential functions of her jobprior to her leave of absence, due to her poor job performance. The court,however, found that plaintiff’s poor job performance was not documenteduntil she suffered a flare-up of her lupus. Accordingly, the courtdetermined that there was sufficient evidence to support a jury finding thatplaintiff had performed the essential functions of her position and wasterminated in violation of the ADA.

B. Employees Who Were Not Qualified Individuals

! A teacher who was terminated for using illegal drugs could not claim theprotections of the ADA. Although at the time she was fired, the teacherclaimed she was not using drugs, but was in a rehabilitation program, thecourt determined that “an employee may not create a safe harbor againstdischarge by seeking rehabilitation” after the employer learns that theindividual is engaging in illegal drug use. Further, the plaintiff could notavail herself of the protections of the ADA because she tested positive fordrugs while enrolled in the rehabilitation program. Because the plaintiffwas a “current” user of illegal drugs within the meaning of the ADA, theplaintiff was not protected by the statute. Figuero v. Fajardom 1 F. Supp.2d 117 (D.P.R. 1998).

! In Wagoner v. Olin Corporation, __ F.3d __ (7th Cir. 1999), the SeventhCircuit reiterated that the ADA, in most instances, does not protect personswho have erratic, unexplained absences, even when those absences are theresult of a disability. This is because attendance at the job site is a basicrequirement of most jobs. Therefore, in the case before it, the court ofappeals upheld the lower court’s grant of summary judgment that theemployer did not violate the ADA when it refused to grant further leave toa disabled employee with erratic absences, whose medical condition wasnot being successfully treated and who requested to miss work whenevershe felt she needed to. The circuit court did note, however, that workingpart time is an accommodation that may be made in some cases and


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working at home for a time may be an option in some jobs, although not inproduction jobs.

! The fact that an employee suffering from a job related disability may wantto return to work despite the risk of pain and harm, does not mean that anemployer may not legally refuse to allow the employee to return to work ifdoing so would constitute a direct threat to his health or safety. Koshinskiv. Decatur Foundry, __ F.3d __ (7th Cir. 1999). The case involved aformer foundry cupola operator, whose doctor and another physicianrecommended that he avoid vibration, high forced, repetitive tasks, andhigh frequency repetitive tasks. All of these tasks were required in order toperform the essential functions of his job. Even though the cupola operatorwished to return to work, the court held that the medical evidenceindicated that he could not safely perform his job and, therefore, theemployer did not engage in disability discrimination by terminating hisemployment. The court pointed out that the fact that the employee wantedto return to work despite the risk of pain and harm was not the test underthe ADA, but rather, the employee had to show that he was qualified to dothe job.

! In Burch v. City of Nacogdoches, __ F.3d __ (5th Cir. 1999), the court ofappeals upheld the district court’s grant of summary judgment in dismissingthe ADA claim of a former firefighter who had suffered a lower back injurythat prevented him from lifting and carrying heavy objects, as well asstooping and bending. Although the former firefighter’s limitationsprevented him from actually fighting fires, the plaintiff had argued that thecity should have allowed him to chauffeur fire trucks without beingrequired to fight fires. The Fifth Circuit upheld the district court’sdetermination that firefighting was an essential function of his job and thatthe city was not required to eliminate this essential function and, in essence,create a new position. Moreover, the court of appeals found that allowingthe plaintiff to remain in the fire department even as a chauffeur, would puthim in a position of potentially posing a direct threat to his co-workersbecause of his inability to bend, carry or pull someone in case of anemergency. Further, the court held that the city was not required toaccommodate the plaintiff by reassigning him to a vacant position becausethe plaintiff had offered no proof that he was qualified for any suchposition. According to the court of appeals, the plaintiff had theresponsibility to show that he was qualified for a vacant position, that thecity knew of his interest, and that he was denied the vacant job because ofhis disability. The plaintiff failed to make this showing and, hence, thecourt upheld the grant of summary judgment in favor of the city.


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! In Soto-Ocasio v. Federal Express Corp., 150 F.3d 14 (1st Cir. 1998), thecourt addressed whether an employee who was on long-term disability hadproven that she was able to perform the “essential functions” of her job. The employee had been in a serious car accident. After using all of her sicktime, she applied for long-term disability with the employer’s insurancecarrier. In order to receive payments, she had to show that she met thedefinition of “total disability.” When plaintiff wanted to return to work, theonly evidence that she was able to return was a note from a doctor statingshe should be on “light” duty. The note included a list of restrictions as tothe type of work she could do. The court found that the employee failed topresent any evidence that she could perform the essential duties of herposition. Therefore, she failed to show that she was a qualified individualwith a disability within the meaning of the ADA.

! In Laurin v. Providence Hospital and Massachusetts Nurses Association,150 F.3d 52 (1st Cir. 1998), the First Circuit addressed the ADA claim of anurse who wanted to work days. The court found that shift rotation wasan essential function for the position of a nurse. Accordingly, the courtruled that since the plaintiff’s accommodation request was that she onlywork days, she could not perform an essential function of the nursingposition. In so ruling, the court deferred to the hospital’s interpretation ofwhat it considered to be essential functions of the position.

! In Brickers v. Cleveland Board of Education, 145 F.3c 846 (6th Cir.1998), the Sixth Circuit held that the plaintiff, who had an impairment thatprevented her from lifting, failed to make out a prima facie case of being aqualified individual with a disability because she could not perform anessential function of her bus attendant position. The court ruled that liftingwas an essential function of the position even though a buss attendantrarely had to do any lifting in the position. According to the court, it wasimportant and essential that the individual be able to do so if an emergencyarose.

! The Seventh Circuit in Malabarba v. Chicago Tribune Co., 149 F.3d 690(7th Cir. 1998), held that an employer is not required to turn a temporarylight duty position into a permanent position. Accordingly, a disabledemployee who can perform the essential functions of a temporary light dutyjob, but not of a permanent position,` is not a “qualified” individual.

! The Eighth Circuit in Mathews v. Trilogy Communications, Inc., 143 F.3d1160 (8th Cir. 1998), rejected the plaintiff’s argument that he should havebeen able to establish a prima facie case of discrimination without regardto the fact that he was uninsurable under the employer’s automobile


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insurance. The court found that plaintiff’s uninsurability went to the issueof whether plaintiff could perform the essential functions of the position. In this case, driving was an essential function. Because plaintiff no longerwas insurable, he was prohibited from performing an essential function ofhis job. Therefore, plaintiff failed to prove the elements of a prima faciecase.

C. Social Security Disability v. ADA Protections

! The pursuit and receipt of Social Security disability benefits for being toodisabled to work does not automatically estop the recipient from alsopursuing an ADA claim. The ADA defines “qualified individual” to includedisabled persons who can perform essential functions of a job withreasonable accommodation. The Social Security Administration, on theother hand, does not take the possibility of reasonable accommodation intoaccount in determining whether a person is disabled for disability insurancepurposes. Thus, courts should not erect a rebuttable presumption that aperson who applies for or receives Social Security disability benefits isprevented from asserting that he is a qualified individual with a disabilityentitled to invoke the protections of the ADA. Nevertheless, a recipientmust explain why a claim for Social Security disability is consistent with anADA claim, and the court should require an explanation of any apparentinconsistency . Cleveland v. Policy Management System, No. 97-1008(May 24, 1999).

III. WHAT DOES AND DOES NOT CONSTITUTE DISCRIMINATION UNDER THEADA?

A. Establishing Discrimination

! The ADA’s prohibition on discrimination “because of the disability” of aqualified individual with a disability was interpreted by the Seventh Circuiti n Foster v. Arthur Anderson, LLP, __ F.3d __ (7th Cir. 1999), to meanthat disability was a motivating factor in the employment decision. In soruling, the court looked to the language of the Civil Rights Act of 1991,which states that an impermissible consideration must not be a “motivatingfactor” of the employment decision. In the case before it, the court heldthat the plaintiff had failed to show that she was discharged because of hertendinitis. The court found that the fact that the plaintiff was dischargedone day after she requested accommodation for her tendinitis was not a perse indication that she was discharged because of her disability. Theemployer had longstanding complaints about the plaintiff’s performance,the plaintiff was on final warning status, and despite these warnings, the


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plaintiff violated the employer’s policies by arriving late for work andfailing to inform the employer of her tardiness.

B. Qualification Standards/Direct Threat

! In Rizzo v. Children’s World Learning Centers, __ F.3d __ (6th Cir.1999), the court of appeals upheld a jury verdict finding that a day careprovider discriminated against a hearing impaired administrative aide byrelieving her of her van driving duties and taking other employment actionsagainst her. The day care provider took this action because of its rulerequiring van drivers to be able to discriminate spoken words. The courtof appeals found that at trial the day care provider had failed to establishthat the administrative aide was a direct threat. There was no evidence thatthe aide ever had any problems driving the van or that her disabilityresulted in her being distracted from her driving duties.

! A 20-year employee, who was fired for verbally abusing and striking afemale co-worker, has no ADA claim despite the employee’s contentionthat his outburst was caused by post traumatic stress disorder. Hamilton v.Southwestern Bell Tel. Co., 136 F.3d 1047 (5th Cir. 1998). The courtruled that the plaintiff had failed to show that his diagnosis of PTSD was adisability under the ADA because the plaintiff admitted that his PTSD wasa temporary condition stemming from an episode that occurred fourmonths before his discharge. Accordingly, the court found that theplaintiff’s PTSD did not substantially limit him in any major life activity,including working. In addition, even if the plaintiff had an ADA disability,the employer did not violate the statute by firing him for cursing at a femalemanager and slapping her hand down. “The ADA does not insulateemotional or violent outbursts blamed on an impairment.... An employeewho was fired because of outbursts directed at fellow employees has noADA claim.” The court reasoned that the plaintiff’s discharge was “notdiscrimination based on PTSD, but rather his failure to recognize theacceptable limits of behavior in a workplace environment.” According tothe court, the plaintiff “cannot hide behind the ADA and avoidaccountability for his actions.”

! In Barbera v. DiMartino, 702 A.2d 1370 (N.J. App. 1997), cert. denied,708 A.2d 64 (1998), plaintiff, Thomas Barbera, Jr., was terminated as anAssistant Trial Court Administrator after having assaulted his supervisor. Barbera suffered from a psychiatric disability and the assault was a productof Barbera’s medical condition. Barbera sued under the New Jersey LawAgainst Discrimination, alleging that he was terminated because of hisdisability. After trial, the jury returned a verdict in favor of the employer


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and Barbera appealed. The court of appeals affirmed the jury’s verdict. The court said, “we see no reason why ... employers subject to lawsprotecting the handicapped and disabled nonetheless should not be able totake appropriate action on account of egregious or criminal conduct of anemployee, regardless of whether the employee’s disability contributed tothe conduct.”

! Where an employee expressed having homicidal thoughts about killing hersupervisor, the employer did not engage in discrimination by terminatingthe employee. The case, which was decided under the MichiganHandicappers Act, involved an employee who took a leave of absence forjob stress after her supervisor criticized her job skills. During the leave, theemployee was diagnosed with depression. To confirm the employee’seligibility for disability benefits, the employer sent her to anotherpsychiatrist for an independent medical examination (IME). During theIME, the employee stated that she had killed her supervisor in her mind athousand times and that she wanted to blow away her supervisor. Basedon the threats contained in the IME report, the employer terminated theemployee. The employee filed a complaint alleging disabilitydiscrimination, which was arbitrated. The arbitrator agreed with theplaintiff and ordered that the employer put her back to work under adifferent supervisor. The Michigan appellate court reversed the decision,holding that the law does not require an employer to establish that anemployee will affirmatively act on homicidal thoughts and that theemployer reasonably believed the employee to be a threat in the workplace. Collins v. Blue Cross/Blue Shield of Mich., 1998 Mich. App. LEXIS 73(Mich. Ct. App. 1998).

! In Doe v. Dekalb County School District, 145 F.3d 1441 (11th Cir. 1998), an HIV positive physical education teacher challenged a school district’sdecision to transfer him to another position where he would not be incontact with children. The district court upheld the transfer. Even thoughthe court found that Doe posed only a “remote and theoretical” risk to thestudents, the district court concluded that he still posed a direct threat tohealth and safety. The court of appeals reversed because the district courthad failed to make factual findings to support a risk of sufficient magnitudeto constitute a direct threat. Accordingly, the Eleventh Circuit ruled thatDoe was otherwise qualified to be a teacher and, hence, his transfer to anon-teaching position would violate the ADA.

! LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832 (11th Cir. 1998),addressed the issue of whether an employer can reasonably determine thatan employee poses an unacceptable risk of harm even where a previous


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employer found the risk acceptable. Plaintiff, who suffered from seizures,was discharged from his line cook job. Plaintiff attempted to prove that hewas not a direct threat by showing that he had worked safely at otheremployers. Nevertheless, in light of plaintiff’s own admissions concerninghis condition and the statements of his doctor indicating that he posed arisk of harm, the court ruled that the plaintiff posed an unacceptable levelof risk due to his continuous seizures.

C. Medical Examinations

! In Miller v. City of Springfield, 146 F.3d 612 (8th Cir. 1998), the court ofappeals upheld a city police department’s requirement that applicants forpolice officer positions take and achieve a certain score on the MMPI-II, apsychological test that is designed in part to measure depression. Thecourt reasoned that “we easily conclude that appropriate psychologicalscreening is job-related and consistent with the business necessity wherethe selection of individuals to train for the position of police officer isconcerned.”

! In Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998), thecourt addressed the question of whether a non-disabled job applicant has aprivate right of action if he or she was subjected to a pre-employmentmedical examination and inquiry in violation of the ADA’s limitation onmedical inquiries and no injury arose from the violation. The court wasunable to find any indication in either the text of the ADA or the legislativehistory “that a violation of the prohibition against pre-employment medicalexaminations and inquiries, in and of itself, was intended to give rise todamages liability.” Accordingly, the court held that “damages liability ...must be based on something more than a mere violation of that provision. There must be some cognizable injury in fact of which the violation is alegal and proximate cause for damages to arise from a single violation.” Plaintiff also sought injunctive relief ordering the defendant to ceaserequiring prospective employees to complete medical data in theirapplications. In addressing plaintiff’s equitable claim, the court held thatthe plaintiff lacked standing to seek either injunctive or declaratory relief. The Fifth Circuit reasoned that the plaintiff alleged only a single violationand there was no likelihood that he would be subject to a similar violationin the future.


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C. Distinctions in Benefits Between Physical and Mental Disabilities

! In Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453 (6th Cir. 1998),plaintiff sued her employer and health insurer under Titles I, II and III ofthe ADA, claiming that providing lesser health care benefits for mentalillness than for physical ailments constituted disability discrimination. Thecourt, relying on Parker v. Metropolitan Life Insurance Co., 121 F.3d1006 (6th Cir. 1997), cert. denied, __ U.S. __, 118 S.Ct. 871 (1998),affirmed the district court’s grant of summary judgment for the defendants. The court of appeals dismissed plaintiff’s Title I and II claims as“untenable” in light of the Parker decision. The court reiterated theteachings of Parker that “the ADA ... does not prohibit an insurancecompany from differentiating between different disabilities.” In addressingthe plaintiff’s Title III claim, the circuit court stated “[e]ven if the policy isdeemed a good or service provided by the place of public accommodation,Lenox is not complaining about physical access to a place of publicaccommodation.... Rather, she is complaining about mix of goods andservices offered by an insurance company.” The court interpreted Parkeras clearly rejecting such complaints as constituting disability discrimination.

! In Castellano v. City of New York, 142 F.3d 58, cert. denied, 119 S.Ct. 60(1998), the Second Circuit addressed whether retired employees bringingsuit against their former employer under Title I of the ADA for disabilitydiscrimination in providing disability benefits were “qualified individualswith a disability” under Title I. The employment action occurred after theplaintiffs were no longer employees and after many of the plaintiffs lost theability to perform the essential functions of their former positions. Inexamining this situation, the court of appeals noted that the legislativehistory was unhelpful since it focused on situations where “the inability toperform essential functions may not have arisen at the time of thediscriminatory employment action.” As an alternative to the legislativehistory, the court examined the purpose underlying the “essentialfunctions” requirement, which is to enable employers not to hire (or toterminate) disabled employee who are unable to perform their jobs. In thecase of retired employees seeking fringe benefits, this concern is notimplicated. Instead, the relevant concern is whether the former employeeswere able to perform the essential functions of their positions when theywere employed and on that basis became entitled to certain fringe benefits. Because the plaintiffs satisfied this requirement, the court ruled that theretired employees were “qualified individuals” and could pursue their ADAchallenge to the differentiation in benefits between mental and physicalimpairments.


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! In Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), theplaintiff had been an employee of defendant for 17 years when she becamepermanently disabled due to a mental disorder. The employer’s insuranceprovided coverage for mental impairments for only two years, whilephysical disabling conditions were covered until age 65. The plaintiffclaimed that this disparity violated the ADA because it constituteddiscrimination against her on the basis of disability. In considering whetherthe plaintiff could proceed with a Title I claim, as a qualified individual witha disability, the court looked to the Supreme Court’s ruling in Robinson v.Shell Oil Co., 519 U.S. 337 (1997), which allowed coverage under TitleVII for former employees. Given the similarity with Title VII, the court ofappeals interpreted Title I of the ADA “to allow disabled former employeesto sue their former employers regarding their disability benefits so as toeffectuate the full panoply of rights guaranteed by the ADA.... We reachthis conclusion because the ADA’s proscription of discrimination in fringebenefits generates the need for disabled individuals to have legal recourseagainst such discrimination....” Although the court ruled that the plaintiffhad standing to sue, the court determined that the disparity in benefitsbetween mental and physical conditions did not constitute disabilitydiscrimination and, hence, upheld the dismissal of plaintiff’s suit.

E. Retaliation

! In Kiel v. Select Artificials, __ F.3d __ (8th Cir. 1999), the Eighth Circuitupheld the dismissal of the ADA claim of the plaintiff, a deaf employee,who alleged that he was fired in retaliation for his request for a TDD. Thecourt concluded that the fact that the plaintiff had insulted a supervisor andexploded in anger between the time he made his request for a TDD and thedate of his discharge eroded any causal connection that would have impliedthat the employer had terminated the plaintiff because of his disability. Inaddition, the court noted that the employer had hired several deafemployees, had altered job duties to accommodate them, and had generallymaintained good working relationships with them.

! Talanda v. KFC National Management, 140 F.3d 1090 (7th Cir.), cert.denied, __ U.S. __, 119 S.Ct. 164 (1998), involved a supervisor who wasterminated in retaliation for refusing to move a female employee, who hadmissing teeth, from a front counter position in a fast food restaurant. Thecourt rejected the supervisor’s ADA retaliation claim because thesupervisor could not have had a reasonable belief that the employee’smissing teeth constituted a disabling condition. According to the court, “toreceive protection under the ADA, a plaintiff must have acted ‘in goodfaith and with a reasonable and sincere belief that he or she is opposing


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unlawful discrimination.’” Further, the discrimination being opposed mustbe caused by a disability covered by the ADA. The court concluded that itwas unreasonable for the plaintiff to believe that the employee had an ADAcovered disability because missing teeth do not substantially limit the majorlife activity of working.

IV. REASONABLE ACCOMMODATION

A. Process of Supplying Reasonable Accommodation

1. Lack of Employer Knowledge

! An employer that terminated a librarian for rudeness was held not to be onnotice of the librarian’s alleged underlying bipolar disorder and, hence, theemployer could not be liable for any claimed disability discrimination underthe 1973 Rehabilitation Act. Crandall v. Paralyzed Veterans of America,146 F.3d 894 (D.C. Cir. 1998). The plaintiff contended that his rudebehavior was so extreme as to afford notice of his disability to theemployer. Nonetheless, the court found that given the prevalence intoday’s society of rudeness without an underlying psychiatric disorder, alay person could not reasonably be expected to infer that an individual hada psychiatric disorder merely from that person’s rude behavior. Moreover,according to the court, dispensing with the requirement that an employermust have notice of an employee’s disability would invite employees tomanipulate statutory protections and to secure a post hoc disabilitydiagnosis that would encompass conduct leading to an employee’sdischarge or other type of job action.

! In Corr v. MTA Long Island Bus, No. CV 97-2562 (E.D.N.Y, 1998), thefederal district court for the Eastern District of New York rejected theclaim by a mechanic for Long Island Bus that the company violated theADA by refusing to reinstate him following an absence for more than ayear due to his manic depression. The plaintiff in the case worked for L.I.Bus from 1986 through 1998. Between 1989 and 1994, he began toexperience “mood swings, sleeplessness, and fatigue” that subsequentlywas diagnosed as bipolar disorder. The plaintiff did not report for work atall between December 9, 1994 and December 9, 1995, and the companyterminated him on December 12, 1995 because he had been absent fromwork for more than a year. Under the terms of the collective bargainingagreement, L.I. Bus had the right to terminate an employee absent inexcess of one year.


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In dismissing the plaintiff’s ADA claim, the court noted that the ADAspeaks to an individual’s current ability to perform the job and, therefore,an employer need not hold a job open in an effort to assist an employee’sattempts to remedy a disability. Moreover, the court emphasized that theplaintiff had failed to explicitly ask for an accommodation at any timeduring his absence, which precluded L.I. Bus from having to provide one. Finally, the court found that L.I. Bus was not on notice that the plaintiffsuffered from a mental disability. “An employer is not obligated to observeemployees for any behavior that may be symptomatic of a disability andthen divine that the employee actually suffers from a disability.”

2. No Failure By Employer To Supply Reasonable Accommodation

! In Keever v. City of Middletown, 145 F.3d 809 (6th Cir.), cert. denied, __U.S. __, 119 S.Ct. 407 (1998), the Sixth Circuit recognized that anemployer may choose among available accommodations. The caseinvolved a city police officer who requested a lower stress job, specificallyas a detective on the night shift. The city thought the best accommodationwould be that of desk officer, and assigned him to that position instead. The police officer brought suit alleging that the city had denied himreasonable accommodation. The court held, however, that assigningplaintiff to a desk officer position was a reasonable accommodation eventhough it was not the employee’s preferred accommodation.

! Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998), addressed theADA claim of an employee whose doctor requested she be placed in anallergen-free work environment. The employer claimed that it did not haveany position that was in an allergen-free zone. However, the employer hadmade several, alternative accommodations, including transferring her to thecomputer room, scheduling cleaning and maintenance when she was notpresent, allowing her to use her breathing apparatus at work, and allowingher to leave work when she would potentially be exposed to allergens. Inlight of the employer’s attempts to accommodate the plaintiff, the courtupheld the district court’s ruling that plaintiff did not present any questionof fact that the employer failed to accommodate her.

! In Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998), the court ruled infavor of the employer because it found the plaintiff, who suffered fromchemical sensitivity caused a breakdown in the interactive accommodationprocess required under the ADA. If the employee caused the breakdownof the accommodation process, the court held that an employer cannot beliable for failing to provide reasonable accommodations. The employer hadoffered to transfer the plaintiff to a warehouse to accommodate her


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chemical sensitivity, but requested a letter from plaintiff’s doctordocumenting the extent of her work restrictions. The note plaintiffreceived was inadequate because the doctor was misinformed about theposition and the risk of exposure. The employer then requested thatplaintiff obtain a new, clarified letter, but the plaintiff failed to do so. Thecourt found that plaintiff had knowledge of the warehouse procedures andcould have informed her doctor about them. Additionally, plaintiff did notprovide any further information to the employer regarding her condition. The court deemed plaintiff’s inaction to constitute a failure to uphold herpart of the interactive process.

B. Types of Reasonable Accommodation

1. Unpaid Leave as an Accommodation

a. Leave Required

! In Criado v. IBM Corporation, 145 F.3d 437 (1st Cir. 1998), the FirstCircuit Court of Appeals affirmed a jury verdict that IBM had violated theADA by failing to grant an employee a one-month leave of absence fortreatment of her depression. The court concluded that there was sufficientevidence in the record for the jury to find that the plaintiff’s mental disorderhad substantially impaired the major life activity of working. The courtnoted that due to her depression, the plaintiff was having trouble dealingwith stress and relating to both co-workers and clients. Also, “depressionand anxiety were causing sleep deprivation which affected her timelinessand ability to report to work. This evidence showed that [plaintiff’s]mental impairments had substantially limited her ability to work, sleep, andrelated to others.”

Further, the court upheld the jury’s verdict that the employer had failed toreasonably accommodate the plaintiff by granting her a one-month leave ofabsence that would allow her physician to design an effective treatmentprogram. The court noted that because the employer provided allemployees with 52 weeks of paid disability leave, and because amanagement representative of the employer testified that such disabilityleave did not financially burden the company, the company could not assertthat the plaintiff’s request for a one-month leave of absence wouldconstitute an “undue burden on its operation.” Accordingly, the court heldthat even though the plaintiff’s termination was based on her absenteeism,the employer still discriminated against the plaintiff where the plaintiff’sabsences would not have occurred had the employer granted the plaintiff’srequested accommodation.


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! In Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir.1998), the court addressed the question of when a second request for aleave of absence can be a reasonable accommodation. Plaintiff sufferedfrom lupus and experienced flare-ups. After one flare-up, plaintiff took ashort-term leave of absence. Plaintiff then suffered another flare-up andrequested another short-term leave of absence, suggesting the leave wouldbe 2-4 weeks. The employer rejected the request and argued that it wasnot required to accommodate an unlimited leave of absence. The courtruled that the jury reasonably could have found that a request for a 2-4week leave of absence was reasonable. The employer never contacted anindependent physician, and its own physician testified that had he beenasked, he would have stated that a 2-4 week leave was reasonable.

! In Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir.1998), the Tenth Circuit affirmed the district court’s ruling that theemployer failed to provide a reasonable accommodation when it rejectedthe plaintiff’s request for a four month paid leave of absence. Theemployer failed to discuss with plaintiff the leave of absence alternativesprovided by company policy (which included a period of thirty-nine weeksof paid leave for senior employees, such as plaintiff). Also, U.S. Westpresented no evidence at trial that granting plaintiff a leave of absencewould have caused an undue hardship.

b. Leave Not Required

! In Ayala v. Lederle Parentals, Inc., 20 F. Supp. 2d 312 (D.P.R. 1998), thedistrict court held that the reasonable accommodation requirements of theADA did not require the plaintiff’s employer to extend an employee’s jobreservation rights five months in excess of established company policy. The court determined that allowing the plaintiff unpaid leave for this lengthof time would have placed the employer “in an untenable businessposition.”

! An employer’s policy to terminate employees who fail to return to workfrom a leave of absence after one year was upheld by the Sixth Circuit inGantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir. 1998). Plaintiff alleged that this policy discriminated against ill or injuredemployees, but the court found no evidence that the policy was unfairly orinconsistently enforced. Plaintiff also alleged that the defendant failed toreasonably accommodate her, even though she never sought suchaccommodations. The court rejected this claim because it is theresponsibility of the employee to request a reasonable accommodation.


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Only after such a request is made and the employer fails to provide areasonable accommodation, may the court find a violation of the ADA..

! An employer is not required to provide an extended leave of absence as areasonable accommodation where an employee with a disabling conditionwill not be able to perform the essential functions of the job. Walton v.Mental Health Association of Southeastern Pennsylvania, __ F.3d __ (3dCir. 1999). The case involved the former director of an advocacyorganization, who suffered from depression and was obese. The plaintifftook a leave of absence due to her medical condition; however, the plaintiffdid not return to work on the date her leave was to have ended. Subsequently, the plaintiff was terminated. In filing suit under the ADA,the plaintiff argued that she should have been granted, as a reasonableaccommodation, continued leave. While the Seventh Circuit(Third?)recognized that unpaid leave may be a reasonable accommodation underthe statute, the court noted that the plaintiff’s employer already had grantedthe plaintiff some leave, which exceeded the requirement of reasonableaccommodation under the ADA. Therefore, the court held the employerwas under no legal obligation to provide extended leave and, hence, itsdecision to discontinue the accommodation did not give rise to a cause ofaction against it.

2. Restructured Job

! Part-time work may be a reasonable accommodation for employees withpsychiatric disabilities. In Ralph v. Lucent Technologies, 135 F.3d 166(1st Cir. 1998), the court ruled that, as a reasonable accommodation, anemployer was required to allow an employee, who had been on disabilityleave following a mental breakdown, to return to work part time for fourweeks. Because of workplace sexual harassment by male co-employees,the plaintiff was suffering from major depression and post traumatic stressdisorder and went on paid disability leave for 52 weeks. When theemployer informed him that his paid leave would soon expire, the plaintiffobtained medical clearance to return to work as long as he did not have towork with his former co-workers. The co-workers, however, still teasedthe plaintiff and he became emotionally distraught. The plaintiff’s doctorrecommended that plaintiff return to work part time to give him theopportunity to adjust to full-time work. The employer, however, refused,taking the position that it already had accommodated plaintiff by changinghis work assignment and supervisor and giving him paid disability leave. Both the district court and the court of appeals disagreed. According tothe First Circuit, the duty to provide reasonable accommodation is acontinuing one and not exhausted by one effort. The court found that the


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requested four week accommodation was reasonable and, hence, requiredunder the ADA.

! The request for a “stress free” work environment would impose anunreasonable and “wholly impracticable obligation” on an employer, and,hence, is not required under the ADA. Gaul v. Lucent Technologies, Inc.,134 F.3d 576 (3d Cir. 1998). The plaintiff began working as a technicalassociate in 1981. In 1984, he was diagnosed with depression, and twoyears later was hospitalized for a nervous breakdown, taking a three monthleave of absence. In 1988, the plaintiff received a two step promotion, buttwo years later, in 1990, was given an unfavorable performance review andwarned that his job was in jeopardy. Suffering from depression, theplaintiff took a “stress leave” on the advice of the company’s medical staff,returning to work three months later on a limited basis. In December 1991,the plaintiff began experiencing problems with his new supervisor and,citing increasing stress, asked to be removed from the project on which hewas working. In September 1992, the plaintiff went on disability leave,receiving long-term disability payments from the company’s disabilityinsurance plan and from Social Security. In 1994, he sued allegingdisability discrimination because the company had failed to accommodatehis disability by providing him with a job without prolonged and inordinatestress. The court of appeals determined that transfer to a job where hewould not be subject to stress by co-workers was not required under theADA. According to the court, the employer “could never achieve morethan temporary compliance because compliance would depend entirely on[plaintiff’s] stress level at any given moment.... The only certainty for [theemployer] would be its obligation to transfer Gaul to another departmentwhenever he becomes ‘stressed out’ by a co-worker or supervisor. It isdifficult to imagine a more amorphous ‘standard’ to impose on anemployer.” In a footnote, the court of appeals also called into questionwhether plaintiff was disabled within the meaning of the Act. According tothe Third Circuit, “we strong suspect that a plaintiff who was unable towork with individuals who cause him ‘prolonged and inordinate stress’cannot be said to be incapable of performing a ‘class of jobs or a broadrange of jobs in various classes.’”

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