LibGuides: Helping to Serve Our American Heroes Returning Home: Filing a Reemployment Suit for a Disabled Military Veteran by Christina Pasquali: Cases for Violation of Disability Legislation

Requirements to Bring Claim on Disability Discrimination

E.E.O.C. v. Exxon Mobile Corp., 203 F.3d 871 (5th Cir. 2000).
employers are prohibited from using qualification standards, employment tests, or other selection criteria that tend to discriminate on the basis of disability unless such criteria are job-related
where safety-based qualification standards excluded any employee who had undergone substance abuse from safety-sensitive, little-supervised positions, employer could justify standard under business necessity defense rather than using direct threat test
Phillips v. DAP, Inc., 165 F.3d 41 (11th Cir. 1998).
nor may employers use methods of administration that reflect an individual's disability rather than the individual's skills, aptitude, or other factors that are relevant unless it is job-related to do so.

permissible to lay off long-term mildly mentally retarded employee because he was least skilled even though lack of skills was due to retardation
Krutzig v. Pulte Home Corp., 602 F.3d 1231 (11th Cir. 2010).
In order to make out a case of discrimination, the individual must demonstrate that the employer knew of the claimed disability.

worker must show decision-makers knew of disability

Defenses

Not Qualified
Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 21 A.D. Cas. (BNA) 675 (7th Cir. 2009) (no discrimination in failure to promote employee with prosthetic leg because of poor attitude)

the individual is not a person with a disability as defined under the ADA,

1.) the individual is not otherwise qualified

2.) the individual would pose a direct threat to the health or safety of the individual or others in the workplace

3.) the requested accommodation would pose an undue hardship

4.) selection criteria which tend to screen out or actually screen out or otherwise deny jobs or benefits to individuals with disabilities are job-related and consistent with business necessity,

5.) performance cannot be reasonably accommodated

Direct Threat
Mann v. U.S. Postal Serv., 44 Nat'l Disability Law Rep. ¶197 (D. Conn. 2012)

even if employee provides information, employer does not have to provide accommodation that would be undue hardship or if employee is direct threat to his or others' safety and health
Undue Hardship
E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, (7th Cir. 2012), cert. denied, 133 S. Ct. 2734, (2013)

fact that employer has best-qualified-candidate selection policy will not constitute undue hardship.
Business Necessity
Allmond v. Akal Sec., Inc., 558 F.3d 1312, (11th Cir. 2009)

(hearing-aid ban for federal courthouse security officers met criteria for business necessity);

Definitions of "Disabled" under the Americans with Disabilities Act

Gruener v. Ohio Casualty Ins. Co., 510 F. 3d 661, 664 (6th Cir. 2008)
An individual is considered "disabled" under the statutory definition of the Americans with Disabilities Act if:

(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual

(2) has a record of such impairment, or

(3) is regarded by his employer as having such an impairment.
Roman-Oliveras v. Puerto Rico Elec. Power Authority, 655 F. 3d 43 (1st Cir. 2011)
"Record of impairment" prong of the ADA's disability definition is designed to protect those who have recovered or are recovering from substantially limiting impairments from discrimination based on their medical history, and thus, to qualify for ADA coverage on the basis of this provision, a plaintiff must show that in the past he had, or had been misclassified as having, an impairment that substantially limited a major life activity. Americans with Disabilities Act of 1990.

"Regarded As": To prove a "regarded as" claim against an employer under the ADA, a plaintiff ordinarily must show either that the employer

(1) mistakenly believed that he had a physical impairment that substantially limited one or more major life activities, or

(2) mistakenly believed that an actual, non-limiting impairment substantially limited one or more major life activities.
Cody v. County of Nassau, 577 F. Supp. 2d 623 (E.D. N.Y. 2008) (aff'd, 345 Fed. Appx. 717 (2nd Cir. 2009))
A record or history of an impairment is not sufficient to show disability; the record must be of an impairment that substantially limited a major life activity.
Povey v. City of Jeffersonville, Ind., 697 F.3d 619 (7th Cir. 2012)
employer's belief that employee unable to perform single, particular job does not mean that it considered her substantially limited in major life activity of working

Americans with Disabilities Act: Employment Qualifications

Being otherwise qualified takes into account whether the person can perform technical aspects of the program as well as meet other reasonable requirements of performance. The individual must not be a direct threat to self or others.

Ramos-Echevarria v. Pichis,Inc. 659 F. 3d 182 (1st. Cir. 2011)
To determine whether an impairment qualifies as a disability under the ADA, one must look at a three-step analysis:

1.) the plaintiff must establish that he suffers from a physical or mental impairment.

2.) He must demonstrate that it affects life activities that are major, that is, activities of central importance to daily life.

3.) He must show that the impairment substantially limits the identified major life activity.
Southeastern Community College v. Davis,442 U.S. 397 (1979).
Otherwise qualified: Under federal disability discrimination laws, in addition to being an individual with a disability,1 the person must also be otherwise qualified to perform the essential requirements of the position in spite of the disability, taking into account reasonable accommodations that could be provided.
Jones v. Nationwide Life Insurance Co., 696 F.3d 78 (1st. Cir 2012)
Otherwise qualified: employee's inability to obtain employer required license within specific time frame may demonstrate that employee not otherwise qualified
Richardson v. Friendly Ice Cream Corp., 594 F.3d 69 (1st Cir. 2010).
Otherwise qualified: Fundamental and essential functions: manager in small business may be called upon to perform all duties, inability may prevent employee from being qualified for manager position
Pagonakis v. Express, LLC, 534 F.Supp.2d 453 (Dist. Court, D. Delaware 2008),Affirmed in Part, Reversed in Part and Remanded 315 Fed. Appx.11, 22 (2d Cir. 2009).
Otherwise qualified: Fundamental and essential functions.employer could not accommodate disability of co-manager, two of whose essential job functions were to periodically open and close store and work 40 hour week, employee could only work daylight hours
Martinsky v. City of Bridgeport, 814 F.Supp.2d 130 (U.S. Dist. Ct., D. Conn. 2011), appealed 504 Fed. Appx. 43 (2d Cir. 2012).
Otherwise qualified: Fundamental and essential functions: patrol duties were essential function of terminated police officer's employment and thus officer, who was psychologically incapable of working patrol, could not perform essential functions.
Rose v. Laskey,110 Fed. Appx. 136 (1st Cir. 2004)
A direct threat is defined as a significant risk to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation.
Direct Threat: employee with depression unqualified as direct threat to others after he threatened supervisor and co-workers with death in response to disciplinary remarks by supervisor
Doe v. Salvation Army in U.S., 531 F.3d 355 (6th Cir. 2008)
Direct Threat:
This determination must be based on an individualized assessment of the person's present ability to safely perform the essential functions of the job.
employer that refuses to continue considering applicant with record of paranoid schizophrenia without exploring whether applicant capable of safely performing job with or without accommodations in violation
Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002)
Direct Threat: considered whether an individual whose disability poses a direct threat to his or her own safety or health is an otherwise qualified individual with a disability or one whose condition renders the individual not otherwise qualified. The Court determined that such an individual is not protected, although the statutory definition is silent on this and there is legislative history to the contrary. The Court noted that this standard does not allow employers to use this defense when it is based on “untested and pretextual stereotypes.” The risk must be “based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,” and that such evaluation must be individualized and not generalized.

Physical/Mental Impairment and Major Life Activity Standard

Skinner v. City of Amsterdam, 824 F. Supp. 2d 317 (U.S. N.D. N.Y. 2010)
Impairment Case Law Definition: An impairment's impact must be permanent or long-term to be a disability under the Americans with Disabilities Act (ADA).
Butler v. Exxon Mobil Corp., 838 F. Supp. 2d 473 (U.S. M.D. L.A. 2012)
Major Life Activity Case Law Definition: “Major life activities” within meaning of Americans with Disabilities Act (ADA) are those activities that are of central importance to daily life, and activities that are central to life process itself.
Grubb v. Southwest Airlines, 296 Fed.Appx. 383 (5th Cir. 2008)
ADA does not require employer to keep worker who is not qualified.

Disabled Military Veterans and a Case Before the ADA

Reasonable Accommodation Standard

The term reasonable accommodation includes:

making existing facilities … readily accessible to and usable by individuals with disabilities; and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities

Compton v. Arkansas Veteran's Home, 44 Nat'l Disability Law Rep. ¶238, 2012 WL 692896 (E.D. Ark. 2012)
employer not required to pay for employee's surgery as reasonable accommodation

Google Scholar

Section 501 of the Rehabilitation Act: Federal Employers

Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
Congress intended both §§ 501 and 504 to cover employment practices of federal agencies.

Employee Selection

Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002)
employer discriminated against deaf job applicant by not providing a sign language interpreter during interview process.

In addition to the general prohibition against “limiting, segregating, or classifying job applicants” in a way that is adverse because of the applicants' disabilities, employers are also prohibited from entering into arrangements with others who discriminate on the basis of disability. Discriminating with respect to recruitment, advertising, and job application procedures is also prohibited. It is also impermissible to use standards, criteria, or methods of administration that have the effect of discriminating or that perpetuate the discrimination of others subject to common administrative control.

E.E.O.C. v. Creative Networks, LLC, 912 F. Supp. 2d 828 (D. Ariz. 2012)
employer prevented applicant from completing application process by failing to provide her with reasonable accommodation of sign-language interpreter for required 24 hours of preemployment training

Disability Discrimination, apart from Employee Selection

E.E.O.C. v. C.R. England, 644 F.3d 1028 (10th Cir. 2011).
Discrimination: In addition to discriminatory conduct in the employee selection process, the Americans with Disabilities Act (ADA)1 prohibits employers from engaging in other discriminatory practices. Employees may not be limited, segregated, or classified in such a way as to adversely affect their opportunities or status because of their disabilities.

employee must show alleged adverse action caused more than de minimis harm upon job opportunities or status
Lamphear v. Potter, 45 Nat'l Disability Law Rep.,191, 2012 WL 3043108 (D. Conn. 2012).
Discrimination: Discriminatory conduct is also prohibited in hiring, upgrading, promotion, award of tenure, demotion.
demotion where employee does not pass required promotional test does not violate Rehabilitation Act).
Williams v. Brunswick County Bd. of Educ., 440 Fed. Appx. 169 (4th Cir. 2011).
Discrimination
Discriminatory conduct is also prohibited in transfer.
transfer that does not affect employee's pay, benefits or seniority and is done by school board that has no knowledge of employee's disability does not present evidence of adverse employment action).
Timmons v. General Motor Corp.,469 F.3d 1122 (7th Cir. 2006).
Layoff: Discriminatory conduct is also prohibited in layoff.
placing employee involuntarily on disability leave was adverse action
Milanes v. Holder, 783 F.Supp.2d 272 (D.P.R. 2011).
Termination: Discriminatory conduct is also prohibited in termination.
U.S. attorney sought transfer as accommodation for his mental health, no showing of discrimination in terminating him
Stiefel v. Betchel Corp., 624 F.3d 1240 (9th Cir. 2010).
Right of return from Layoff and Rehire:
Discriminatory conduct is also prohibited in right of return from layoff, rehire.
former employer tried to rehire ironworker, therefore no discrimination.
Brady v. Walmart Stores,Inc., 531 F.3d 127 (2d Cir. 2008).
Job Assignment:
Discriminatory conduct is also prohibited in job assignment.
sufficient evidence existed that employee's transfer from pharmacy to parking lot constituted adverse employment action
Dean v. Chicago Transit Authority, 118 Fed. Appx. 993 (7th Cir. 2005).
Job Classification and Other:
Discriminatory conduct is also prohibited in job classification, organizational structures, position description, lines of progression, seniority, leave, benefits.
dropping insurance plan is not adverse employment action
Carmona-Rivera v. Puerto Rico, 464 F.3d 14 (1st Cir. 2006).
Programs and Other:
Discriminatory conduct is also prohibited in training, social and recreational programs, and other aspects of employment.
school's alleged delay in accommodating teacher's disability or following doctor's recommendations did not amount to intentional discrimination, required to recover non-economic damages.