President Obama earlier this month signed “Rosa’s Law” which replaces the term “mental retardation” with “intellectual disability” in federal education, health and labor laws. Named after a young girl in Maryland with Down Syndrome whose family successfully led the effort to change the terminology in Maryland, the law states that for purposes of the amended statutes and implementing regulations, a reference to an “intellectual disability” shall mean a condition previously referred to as “mental retardation” and a reference to “individuals with intellectual disabilities” shall be a reference to those previously referred to as “individuals with mental retardation.”   Based on the federal government’s change in terminology, watch for more states to pass similar measures.    

 

The EEOC this week sued a grocery store chain, claiming it had violated the ADA by firing an employee due to her 10 pound lifting restriction. The case is worth watching since it deals with an employer’s ability to change the essential functions of a job which results in terminating an individual who had been a qualified individual with a disability prior to the change, but was no longer so.  

According to the EEOC’s press release. Kimberly McMillan-Goodwin, a gas station clerk, had successfully performed her duties with the lifting restriction for years. When she returned from a leave, the employer “claimed it had changed the position so that she could not longer perform her job with her long-standing restriction, and that it had no other positions she could perform.” The employer then placed her on a one year leave of absence, and terminated her at the end of that period, according to the press release.  In its Complaint, the EEOC alleges that McMillan-Kimberly was a “qualified individual with a disability …and could perform the essential functions of the position from which she was removed.” Because theEEOC’s Complaint is pled so broadly, it is unclear whether the EEOC is alleging that McMillan-Kimberly could perform the essential functions of the changed position or that Woodman’s changed the job because of her lifting restriction, or some other theory.

We have visited this issue before.Recall once again the incontinent court reporter, hired as a control room specialist, whose job changed when the chief judge required all court reporters to rotate through all courtrooms.  The Seventh Circuit affirmed summary judgment for the employer, holding that “an employer is not required to maintain an existing position or structure that, for legitimate reasons, it no longer believes is appropriate” and that the plaintiff was not a qualified individual with a disability for the changed position.  The EEOC’s 1992 Technical Assistance Manual recognizes that jobs may change: “The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a job.”

But recall also our post on the Workplace Prof Blog, which opined that an employer’s ability to change essential functions is an ADA “loophole.” “After the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!,” the Prof said.

Neither the EEOC’s press release nor Complaint against Woodman’s indicate the reason Woodman’s changed McMillan-Goodwin’s job.    We will be watching this case for further judicial guidance on the “changed jobs” issue. But in the meantime, tread carefully when changing the essential functions of a disabled employee’s position which would result in that employee no longer being a qualified individual with a disability for the changed job.

 

Faced with continually increasing health insurance premiums, a growing number of employers have been implementing “workplace wellness” programs to motivate employees to lead healthier lifestyles. What legal challneges might an employer face when encouraging employers to lead healthier lives?

The Congressional Research Service (CRS), an agency within the Library of Congress which works exclusively for the United States Congress, issued a report recently entitled ‘Wellness Programs: Selected Legal Issues,’ which summarizes the legal “wellness” concerns under federal law.

The 16 page report discusses “wellness” issues under nine federal laws: the Patient Protection and Affordable Health Care Act, Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, the National Labor Relations Act, the Internal Revenue Code and Medicaid.  Because it summarizes the issues under each of these laws, the report is, in effect, a general checklist to evaluate a wellness program’s compliance with federal law. Many state laws must be considered as well.

One of the laws with the most analysis in the report is the ADA. The report notes numerous ADA issues that create compliance uncertainty, such as.

·         The ADA prohibits an employer from asking employees disability-related questions unless they are job-related and consistent with business necessity. The ADA excepts from this prohibition questions which are a part of a voluntary wellness program. The EEOC has said that the size of the incentive is a factor in determining whether a program is voluntary. In other words, the larger the incentive, the greater the risk that the program will be considered involuntary and that any disability-related inquiries asked as part of the program violate the ADA.

·         Section 501(c) of the ADA, often referred to as the insurance "safe harbor" provision, might shield from scrutiny  issues relating to the “voluntary wellness” standards in Title I of the ADA for wellness plan provisions connected to a group health insurance plan. Employers have been waiting for guidance on the application of the "safe harbor" to such plans. The report notes the existence of Section 501 but provides no analysis. 

·         The report notes that the primary goal of the ADA Amendments Act, which went into effect January 1, 2009, is to expand the scope of those who meet the definition of “disability.”  This amendment, according to the report, means “that obese individuals, those addicted to nicotine, or those with certain cholesterol or blood pressure measurements may be covered under the new language…ADA issues may be raised by certain wellness programs targeting these conditions.” Individuals with such conditions have generally not been found to be covered by the original ADA.

Because wellness programs have a positive goal and often include “rewards,”  there may be a tendency to overlook the fact that at least nine federal laws as well as state laws must be considered before implementation.  The much-anticipated ADA and GINA regulations as well as the uncertain ADA issues noted above illustrate that the law is unsettled and will be dynamic for years to come.

 

Since the Americans with Disabilities Act Amendments Act was not retroactive, ADA court decisions addressing facts that arose prior to  January 1, 2009, the ADAAA’s effective date, have continued to apply the original ADA, including the now-overruled Supreme Court decisions in the Sutton trilogy and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

Now, nearly 20 months after the ADAAA, cases based on facts occurring after January 1, 2009  have made their way through the EEOC administrative process and have reached court.  Perhaps the first ADAAA decision to reach the summary judgment stage illustrates the stark contrast between the original ADA and the ADAAA when it comes to the definition of disability.

In Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Healthcare, the plaintiff had Stage III renal cancer.  The defendant argued that the plaintiff did not have a disability under the ADA because there was no substantial limitation on a major life activity, noting that his cancer was in remission during the period that gave rise to the litigation, and he did not have any work restrictions, performed his regular job duties and did not miss any significant time from work.

The federal district court in Indiana rejected this argument summarily since the ADAAA states  that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The court noted that renal cancer would have substantially limited a major life activity when it was active. The court also relied on the EEOC’s proposed regulations  to implement the ADAAA, which lists cancer as an impairment “that will consistently meet the definition of disability.” Under the original ADA, many courts, after conducting an individualized assessment to determine whether a plaintiff with cancer was substantially limited in a major life activity, had concluded that the plaintiff was not an individual with a disability.

Given the timing of the litigation process, expect a growing number of decisions arising under the ADAAA. Given the breadth of the ADAAA, expect also that many more plaintiffs will  meet the ADAAA’s definition of disability than met the original definition. Watch also for the EEOC’s  final regulations to implement Title 1 of the ADAAA. While the date for these regulations to be issued is uncertain, it has been more than a year since the EEOC published proposed regulations.

 

Sometimes a case makes you wonder. Bruce Casanova, a former American Airlines baggage handler, told the jury he lied to American and feigned forgetfulness in an “Article 29F” investigation of his work related injury, and refused to provide a written statement concerning the circumstances of his injury as required by the collective bargaining agreement, according to the Seventh Circuit in Casanova v. American Airlines, Inc.  Nonetheless, the jury awarded him more than $1 million, including $724,000 for punitive damages, on his argument that American terminated him in retaliation for his anticipated workers compensation claim. Which led the Seventh Circuit to wonder: “How could a jury return a verdict in Casanova’s favor, and award more than $1 million, when his discharge is amply supported by undisputed facts?”

The answer, according to the Seventh Circuit, is that “the trial was hijacked by plaintiff’s counsel and used to protest the Article 29F procedure.” The plaintiff focused the jury on the issue of whether American “should order surveillance of employees who claim to be injured, and whether employers should use such surveillance as the basis of interrogation,” according to the Court. “This case never should have reached a jury,” it held, and set aside the jury’s verdict.

The Court noted that “American has a zero-tolerance policy for material lies by its workers [and that] Casanova has not identified any other worker who behaved in a similar fashion at and after an Article 29F hearing and was not fired.” The Court continued: “Indeed, it is almost impossible to conceive that any employee who conducted himself in this fashion would not be fired, by American Airlines or any other employer that wants to maintain the respect and obedience of its labor force.” The Court added that Casanova did not provide any evidence that American’s explanation for his termination was a pretext for unlawful retaliation.

This was the second Seventh Circuit case within three weeks to uphold an employer’s ability to use surveillance to test the bona fides of a workers compensation claim. In the earlier case, Gacek v. American Airlines, Inc., another former baggage handler sued American Airlines for retaliatory discharge in violation of the state workers compensation law. American had hired a detective agency “to check up on” the plaintiff-injured worker, who had called out sick during the December holiday season. American terminated the plaintiff’s employment after his explanations for his absences were “in tension” with the observations of the detectives. The Seventh Circuit affirmed summary judgment for American.

 

Recall the incontinent court reporter, hired as a control room specialist, a position compatible with her medical condition, but whose job changed when the chief judge decided to evenly distribute the workload, and required all court reporters to rotate through all courtrooms. In ADA parlance, the court changed the essential functions of the court reporter’s job. The court reporter did not claim that the court’s decision to reorganize had anything to do with her disability. When she rejected the accommodations offered her, the court terminated her employment, The Seventh Circuit affirmed summary judgment for the employer, holding that she was not a qualified individual with a disability because she was “unable to sit in the courtroom during proceedings without disrupting court.” The Seventh Circuit rejected her “circular” argument that was qualified because she was qualified for her previous job, which did not require rotating.

An employer’s ability to change the essential functions of an employee’s job “seems like a pretty big loophole [in the ADA],” according to the Workplace Prof Blog, commenting on this same case in a piece entitled "Reorganizing Away the Duty of Reasonable Accommodation." . The Prof opines that “[a]fter the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!”

So is the employer’s right to reorganize and change employees’ essential functions for reasons unrelated to any employee’s disability a “loophole” in the ADA? Webster defines “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” I vote “no” because the ADA was never intended to limit an employer’s ability to reorganize its operation for reasons unrelated to an employee’s disability. Despite this, the Workplace Prof Blog notes that “there seems something troubling” about the Seventh Circuit’s “endorsement of what is in effect, if not intent, an end run around the duty of accommodation.” “Something troubling” about an employer’s exercising a right for legitimate non-discriminatory reasons which affects all employees in the job description? A fundamental principle underlying our anti-discrimination laws is that employers must make decisions based on legitimate non-discriminatory reasons. To hold otherwise would require Webster to revise the definition of “discrimination.”

 

The EEOC’s challenge to “inflexible” leave policies continued this week, as the agency announced that it had sued Princeton HealthCare System for failing to reasonably accommodate employees who needed medical leave. According to the EEOC press release, Princeton HealthCare "fires employees" who are not qualified for FMLA leave and refuses to grant leave beyond the 12 weeks allowed by the FMLA. The EEOC stated that Princeton HealthCare does not grant exceptions to these policies for qualified individuals with a disability who need additional leave as a reasonable accommodation. The release states that more than a dozen Princeton HealthCare employees with disabilities who requested a leave of absence as a reasonable accommodation were denied leave and fired. The case has been filed in the U.S. District Court for the District Court of New Jersey.

The Princeton HealthCare case is the latest in a growing line of cases the EEOC has brought in which the agency claims the employer has had an inflexible leave policy in violation of the ADA. In 2009, the EEOC brought a class action suit against an international package delivery company, claiming the company violated the ADA by rejecting requests for medical leave extensions beyond its 12-month leave policy.  Also in 2009, the EEOC settled a lawsuit in which the agency alleged that a national retailer was inflexible in its administration of leave policies for employees with work-related injuries.  The retailer paid $6.2 million (a “record-setting” amount, according to the EEOC) as part of a consent decree.

We have cautioned employers about the risks of having a “leave limits” policy in our Special Report on Excusing Absences as a Reasonable Accommodation under the ADA. Employers with a leave limits policy which does not allow for additional leave for disabled employees as a reasonable accommodation, bear the risk of being the subject of the next EEOC press release.  

 

As part of its celebration of the 20th anniversary of the ADA, the EEOC issued a report entitled "Twenty Years of ADA Enforcement, Twenty Significant Cases," sort of the top twenty ADA cases brought by the agency. Much can be gleaned from this ten page document and we may revisit it a few times.

First, jurors have awarded large punitive damage verdicts. Six jury verdicts are in the top twenty list. In EEOC v. CEC Entertainment, the jury awarded $13 million in punitive damages to an individual with "intellectual disabilities" who was fired from his janitor’s position at a restaurant. In EEOC v. Echostar, the jury awarded $8 million in punitive damages to a blind employee denied employment as a customer service representative. And in EEOC v. E.I. DuPont De Nemours & Co., the jury awarded $1 million to a discharged lab clerk with a spine and disc disease. In each case, the punitive damage awards were reduced to the ADA’s statutory damage caps.

Next observation: employers have been reluctant to litigate these cases. Fourteen of the top twenty cases were either resolved with a consent decree or settled for amounts that ranged from $78,000 to $6.2 million. So in 70% of these cases (admittedly, a list self-selected by the EEOC), employers preferred, for whatever reason, to pay money rather than present their cases to juries. Was it litigaphobia–a fear of litigation–that led to these resolutions? Or fear of the possibility of a lottery-size punitive damage award (see paragraph above)? Or something else?

What lessons can be learned from this top twenty analysis? They include that plaintiffs in ADA cases can be sympathetic and that jurors have meted out significant punishment to employers found to have discriminated against an individual with a disability. It reinforces the need for an employer to put itself in the best position to get a case dismissed prior to trial, especially in states with disability discrimination laws that do not cap punitive damages. An employer unable to have the case dismissed prior to trial must have a good story to present to the jury to refute the disability discrimination claim.

One last point about the top twenty list: the number one listed case is the "landmark" lawsuit alleging a national retailer had an "inflexible" leave limits policy which did not allow for reasonable accommodation. The consent decree involved a payment of $6.2 million, an amount which the EEOC described as a "the largest monetary recovery" in an ADA lawsuit. We wrote previously about the EEOC’s challenges to "inflexible" leave policies. (See Leave as a Reasonable Accommodation under the ADA)

 

Does an employer’s duty to reasonably accommodate an employee’s disability include the duty to alleviate commuting challenges caused by the disability? Two courts of appeals recently held that it does unless to do so would be an undue hardship; both decisions reversed summary judgment for the employer on the ADA claims.

In both cases, the plaintiff had a vision impairment which did not interfere with her ability to perform her job. In Livingston v. Fred Meyer Stores, Inc., the plaintiff, a wine steward, could not walk or drive after dark due to her vision impairment. In 2005, the company granted her request for a modified work schedule during the fall and winter months to minimize her driving at night. When the company denied her same request for 2006, the plaintiff refused to work her scheduled shift and was terminated.

The Ninth Circuit held that the company had a duty to accommodate Livingston’s inability to finish her scheduled shift, even though her disability did not affect her ability to function as a wine steward. The court remanded the case to resolve the issue of whether Livingston’s vision impairment was a disability.

In Colwell v. Rite Aid Corp, the plaintiff told her supervisor that her partial blindness made it dangerous and difficult for her to drive at night. The company declined to schedule her on day shifts only, explaining that it “wouldn’t be fair” to other workers. After various efforts to change to day shifts, plaintiff resigned.

The Third Circuit held that employers may need to make reasonable shift changes to accommodate a disabled employee’s disability-related difficulties in getting to work. The court remanded the case to resolve the issue of whether accommodating Colwell’s shift needs would be an undue hardship.

These two decisions extend the length of an employer’s “duty to accommodate” day. That day may begin as early as the time an employee leaves home and may not end until the employee returns home. Is that the temporal extent of the duty? Or does it extend even further to disability-related issues at home related to preparing for work, or an employee’s getting to transportation from home?  For those answers, we will need to await further decisions, but at least according to these two decisions, an employer may find itself more involved in an employee’s commuting issues than it has been previously.

 

Sitting in the Rose Garden on July 26, 1990, President G.W.Bush signed the Americans with Disabilities Act and, no doubt intending the historical analogy, declared it "the emancipation proclamation" for those with disabilities. To commemorate the ADA’s 20th Anniversary, I am going to re-read my favorite ADA case, the Supreme Court’s 2001 decision in PGA Tour, Inc. v. Casey Martin, for at least the 20th time.  You don’t have to be a golf or ADA fanatic to appreciate the richness of this opinion.

The issue is stated simply: Due to a serious medical condition, PGA Tour Member Casey Martin needed to use a golf cart when competing, but PGA rules prohibited him from doing so. Martin claimed the PGA’s rule violated Title II of the ADA, which prohibits disability discrimination in public accommodations….and won.　

The Martin decision is special for so many reasons. What an incredible human interest story! Casey Martin had won 17 Oregon Golf Association junior events before he was 15 years old; was the Oregon state champ when a high school senior; was on the Stanford University golf team when it won the NCAA championship; and survived the grueling physical and mental tests to become a member of the PGA Tour. He did all of this despite having since birth, a degenerative circulatory disorder that obstructs blood flow from his right leg to his heart, which has atrophied his right leg. 　 Walking when playing caused him pain, fatigue and anxiety, and created a significant risk of hemorrhaging, developing blood clots, and fracturing his tibia so badly that an amputation might be required. How can you not root for this guy?　

It pits the very old against the very new, the golf traditions going back hundreds of years, beginning with the "Rules of Golf," first adopted by the Royal and Ancient Golf Club of Scotland in 1744, against modern-day notions of equality as encompassed in the ADA, enacted some 250 years after the Rules of Golf.　

It has celebrity appearances. Golf gods Arnold Palmer, Jack Nicklaus and Ken Venturi each testified that fatigue can be a critical factor in a tournament, especially on the last day, and that a competitor using　a cart might have an advantage over walkers.　

It refers to a rich variety of other celebrities, and what a collection it is: the New York Yankees, the American League, the designated hitter, Mary Queen of Scots, the Sopranos, Kurt Vonnegut, Harrison Bergeron, Kafka, Alice in Wonderland, Tiger Woods, Plato, John Q. Public, and George Orwell are all mentioned in the decision. Imagine a dinner party with that guest list!　

It has irony. If riding a cart creates such a competitive advantage, why do most senior tour members, who have the option to ride, walk?　

It raises legal-philosophical issues to ponder: Must a shoe store sell a single shoe to a one-legged person, or can the store insist that the buyer purchase a pair of shoes?

It’s disheartening. The decision cites the testimony of a physiology professor and expert on fatigue who determined that a golfer expends only about 500 calories walking an 18 hole round (about 5 miles), "nutritionally…less than a Big Mac." So much for golf as great exercise.

It has a Solomonic tone. Envision the nine black-robed justices pondering the essence of golf. Justice Souter, in his majority opinion, parses the game and concludes that its essence is shot-making and that walking is neither essential nor indispensable, but merely peripheral, rejecting the PGA’s argument that the walking rule’s purpose is "to inject the element of fatigue into the skill of shot-making." 　　

It has a Scalia dissent and, when it comes to disecting a majority opinion, Justice Scalia has no peers. At the outset, he notes mildly his conclusion: "[T]oday’s opinion exercises a benevolent compassion that the law does not place it within our power to impose." 　In short order, after a delightful romp through law and logic, he reaches this sarcastic crescendo:　

"If one assumes…that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power "[t]o regulate Commerce with foreign Nations, and among the several States,"…to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf." For lovers of sarcasm as a rhetorical device, it sends shivers down your spine.　

That is why PGA Tour v. Martin is my favorite ADA case of all time. And I commend it to you. Happy 20th to the ADA!