The EEOC Reiterates the Importance of the Interactive Process

A recent decision from the federal Equal Employment Opportunity Commission (EEOC) reminds employers of their affirmative duty to engage in an interactive process once an employee raises a medical condition and requests some change to their work environment to accommodate it. The Americans with Disabilities Act (ADA), and the Rehabilitation Act at issue in Harden v. Social Security Administration, protect an employee from discrimination based on a disability, where the employee can otherwise perform his or her job with a reasonable accommodation. Tips for the interactive process are provided below, and next week we will go through a “hypothetical.”

In Harden, a claims assistant who was frequently late notified the SSA about her depression and general anxiety which were causing her problems sleeping and functioning early in the morning. She requested approval to arrive between 9:00 and 9:30 a.m., rather than between 7:00 and 9:00 a.m. like other employees, or else to use leave rather than leave without pay or discipline. The claims assistant supplied the SSA some medical documentation, but the SSA found that the documentation did not show that her medical condition kept her from getting to work before 9:00 a.m. The SSA denied the employee’s request for a modified schedule, and disciplined her when she was again tardy.

Based on information about the employee’s medical condition that came out during the EEOC complaint process, the EEOC found that the SSA engaged in discrimination. The claims assistant had a disability that could have been reasonably accommodated with a modified schedule. The EEOC disagreed with the SSA’s argument that medical documentation provided during the complaint process was irrelevant to the SSA’s decision to deny the modified schedule and discipline the employee.

What does Harden teach us? Disability discrimination laws place affirmative duties on employers to engage in a meaningful process after an employee raises a medical condition. Do not cut short the interactive process because the facts will come out eventually. This 4-step process provides a helpful framework for an ADA request.

 

1.        Get the facts: What is the medical condition? Get documentation from the employee’s doctor if necessary (with an appropriate release), including any limitations and potential accommodations. Allow the employee or doctor to provide additional information if you are not satisfied. What is this employee’s job? Identify the essential functions of her position. Is the employee performing the job, except for reasons related to her disability?

 

2.         Decide whether the employee is eligible for an accommodation: Based on the facts, is the employee qualified for the job? Can he or she perform the essential functions of the job, with or without an accommodation? Determine whether the individual has a physical or mental impairment that substantially limits a major life activity. Is the employee regarded as having such impairment?

 

3.         Have an interactive dialogue with the employee about an accommodation: Ask the employee what he or she wants. Quite frequently, this simple communication can result in a practical, cost-effective solution that works for everyone involved. Can the employee do the essential functions of the job with the employee’s proposed accommodation? Identify other accommodations that may work, and consider the effectiveness of each proposed accommodation. Discuss the cost and burden of each effective accommodation and assess whether it would be an “undue hardship.”

 

4.        Put the accommodation into action: Document the dialogue with employee. Choose and implement an accommodation. Document the expectations on all sides. Inform others of the accommodation, only to the limited extent they must know (such as a supervisor). Ensure confidentiality at all times, and maintain a separate confidential file for the employee’s medical documentation. Reassess the effectiveness of the accommodation after a time.

Service Animals Limited to Dogs and Some Miniature Horses Under New ADA Rules

As reported in the Oregonian, the Department of Justice this week implemented amendments to a number of regulations governing Title II and Title III of the Americans With Disabilities Act (“ADA”). Title II of the ADA applies to public entities, while Title III applies to public accommodation. While the new rules do not apply to Title I, which covers employment, they will impact any business that constitutes a place of public accommodation, which includes all businesses that provide access to members of the public. 

The primary change that will impact employers whose businesses constitute a place of public accommodation is a new definition of what constitutes a “service animal” under the Act. The purpose behind the rule change is to combat the dilution of the “service animal” label, “which has resulted in reduced access for many individuals with disabilities who use trained service animals that adhere to high behavior standards.”

The definition includes two primary changes: First, animals intended only to provide emotional support are no longer considered service animals. The second change limits the definition of a service animal to include only dogs that have been individually trained to do work that benefits an individual with a disability. Other animals, wild or domesticated, trained or untrained, no longer qualify as service animals, except, in limited circumstances, miniature horses. Places of public accommodation are not required to admit customers or members of the public with “service animals” that do not meet this new, limited, definition.

We want to stress again that this change does not apply to the part of the Act that relates specifically to employment, and does not in and of itself require employers to allow employees to have service animals. Employers presented with a situation where an otherwise qualified employee with a disability requests use of a service animal should engage in their usual reasonable accommodation analysis.  This new rule does have the potential to inform that process for employers, by providing insight as to what's considered “reasonable” in the public accommodation context.

For more information on the ADA rule changes, including the text of the rules and fact sheets for employers, go to the Department of Justice’s ADA home page

Medical Marijuana and Zero Tolerance Drug Testing Policies Remain An Issue For Employers

Employers and the courts continue to wrestle with issues involving “zero tolerance” drug testing policies and whether employers must accommodate medical marijuana use by their employees. Marijuana use is illegal under the federal Controlled Substances Act, and therefore does not need to be accommodated under the federal Americans with Disabilities Act (“ADA”). However, 15 states currently have legalized some form or another of medical marijuana use: Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington as well as the District of Columbia. The language of each state’s law can differ, and the courts therefore interpret these state law issues on a case-by-case basis.

 

Most recently, in Casias v. Wal-Mart Stores, Inc., a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana stated no legal claims for wrongful discharge. The court accepted Wal-Mart’s argument that Michigan’s medical marijuana law does not regulate private employment; rather, it merely provides a potential affirmative defense to criminal prosecution or other adverse action by the state. The court rejected the plaintiff’s argument that the law created a new protected employee class, which “would mark a radical departure from the general rule of at-will employment in Michigan.” The Casias decision is currently being appealed.

A similar ruling is under review by the Washington State Supreme Court. I argued the case for the employer on January 18, 2011. As I previously blogged, the Washington Court of Appeals in Roe v. Teletech Customer Care Management affirmed a trial court’s ruling and held that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. In so doing, the Court of Appeals stated, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act.” Rather, the Court held that MUMA merely protects qualified patients and their physicians from state criminal prosecution related to the authorized use of medical marijuana. The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. A decision from the Washington Supreme Court is anticipated later this year.

Three other state Supreme Courts have already issued rulings on workplace medical marijuana issues, and all have found in the employer’s favor. In Ross v. RagingWire, the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana. The court held that employers in California do not need to accommodate the use of medical marijuana, even when users only ingest or smoke marijuana away from the workplace.

In Johnson v. Columbia Falls Aluminum Company, the Montana Supreme Court ruled, in an unpublished decision, that an employer is not required to accommodate an employee's use of medical marijuana under the federal ADA or the Montana Human Rights Act.

Also previously covered on World of Employment, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that because federal criminal law takes precedence over Oregon’s medical marijuana law, employers in Oregon do not have to accommodate employees' use of medical marijuana. Stoel Rives filed a “friend of the court” brief on behalf of the employer in that case.

There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including, without limitation, customer requirements, government contracting requirements (including the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability. To best protect themselves, employers should review their policies to make sure that illegal drug use under both state and federal law are prohibited, and that their policies prohibit any detectable amount of illegal drugs in an applicant’s or employee’s system as opposed to using an “under the influence” standard. Employers should also ensure that all levels of their human resources personnel know how to handle medical marijuana issues as they arise. Finally, given the continued efforts by marijuana advocates and civil rights groups to “push the envelope” of medical marijuana laws into the workplace, it is important for employers to continue to closely monitor legislative and legal developments. A recent effort to include workplace protections for medical marijuana users via amendments to Washington’s medical marijuana laws was defeated, but we anticipate similar efforts will be made in Washington and other states in the coming years.

Ninth Circuit Holds "One-Strike" Drug Testing Rule Does Not Violate ADA

The Ninth Circuit Court of Appeals yesterday held in Lopez v. Pacific Maritime Association that an employer’s one-strike drug testing policy for applicants does not violate the Americans With Disabilities Act (“ADA”). The one-strike policy in question stated that the company would never hire any applicant who tested positive on a pre-employment drug screening. All applicants were given notice of the test seven days in advance. The plaintiff failed his test when he first applied in 1997. At the time he suffered from an addiction to drugs and alcohol. He re-applied in 2002, and was rejected based solely on his prior positive test. At that time the employer was unaware of plaintiff’s earlier addiction.

The plaintiff filed suit, alleging disparate treatment and disparate impact violations of the ADA based on his protected status as a rehabilitated drug addict. The trial court granted the employer’s motion for summary judgment, and the Ninth Circuit affirmed. The court dispensed with plaintiff’s disparate treatment arguments on the grounds that the rule, while arguably unreasonably harsh, was neutral, in that it “eliminates all candidates who test positive for drug use, whether they test positive because of a disabling drug addiction or because of an untimely decision to try drugs for the first time, recreationally, on the day before the drug test.” Citing the Supreme Court’s decision in Raytheon v. Hernandez, the court noted that “[t]he ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions made because of factors merely related to a person’s disability.”

The Court also rejected plaintiff’s disparate impact argument, on the ground that he failed to produce evidence from which a juror could conclude that “the one-strike rule results in fewer recovered drug addicts in Defendant’s employ, as compared to the number of qualified recovered drug addicts in the relevant labor market.”

While this case does present something of a win for employers with similarly neutral policies, I would caution employers from getting too excited for two reasons. First, the Court hinted that summary judgment may not have been appropriate had the employer known of the plaintiff’s addiction before he reapplied. Second, plaintiff’s disparate impact claim failed only because he could not produce any evidence of disparate impact. The Court made clear that to survive summary judgment he’d only have to produce “some” evidence—a very low threshold indeed.

Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana

Yesterday the Oregon Supreme Court conclusively ruled that employers are not required to accommodate the use of medical marijuana in the workplace, ending years of doubt and confusion on this critical issue. Click here to read the Court’s opinion in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries.

In Emerald Steel, a drill press operator was terminated after his employer learned he was using medical marijuana to treat a medical condition that qualified as a disability under Oregon law. The employee filed a claim with the Oregon Bureau of Labor and Industries, alleging that the employer’s refusal to accommodate his use of medical marijuana violated Oregon law requiring employers to reasonably accommodate an employee’s disability. A judge ruled that the employer did not properly engage in the interactive process to determine whether other reasonable accommodations were possible.

The employer appealed that decision, arguing that neither federal nor state disability law requires employers to engage in the interactive process with users of medical marijuana, given that their use of marijuana is prohibited by federal law. The Oregon Court of Appeals ruled in favor of the employee on the basis that the employer failed to preserve that argument in the case below. Further, a prior Oregon Court of Appeals case—Washburn v. Columbia Forest Products—had held that employers do have a duty to accommodate the use of medical marijuana by a disabled employee.

On appeal, the Oregon Supreme Court reversed the decisions of the trial judge and the Court of Appeals, and reversed the Oregon Court of Appeals’ decision in Washburn. The Supreme Court held that employers do not have to accommodate employees’ use of illegal drugs. Because marijuana—medical or otherwise—is illegal under federal law, employers are not required to accommodate its use under any circumstance.

Since the original Washburn decision, many Oregon employers have assumed they were obligated to accommodate the use of medical marijuana by disabled employees. The Emerald Steel decision should give all Oregon employers comfort in knowing that, until or unless federal law changes, they are definitely not required to accommodate medical marijuana use. A similar ruling from the Washington Court of Appeals is being reviewed by that state’s supreme court.  Stoel Rives represents the employer in that case. Click here to read the World of Employment's coverage of that case.

9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases

The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases.  Click here to read the decision in Alvarado v. Cajun Operating Co. 

Mr. Alvarado worked as a cook in defendant’s restaurant. He complained after his supervisor made allegedly discriminatory remarks related to his age and disability, and shortly afterward he received several disciplinary write-ups for poor performance.  After Mr. Alvarado was ultimately terminated, he sued his former employer for, among other things, retaliation under the ADA.  Prior to trial, the federal district court granted defendant’s motion in limine, barring plaintiff from seeking punitive and compensatory damages, and a jury trial, on his ADA retaliation claim on the grounds that the statute provided only equitable relief for such claims.

The Ninth Circuit affirmed the district court’s ruling by holding that the plain, unambiguous language of the ADA remedy provisions specifically enumerate only those sections of the act for which compensatory and punitive damages (and a jury trial) are available, and that the ADA anti-retaliation provision is not included in that list.  Somewhat surprisingly considering the laws at issue have been on the books since 1991, the Ninth Circuit appears to be only the third Circuit Court of Appeals to have been presented with the issue, after the Seventh and Fourth Circuits (which reached similar conclusions).  The court also noted that several district courts in other circuits had reached the opposite conclusion (perhaps most surprising of all), by ignoring the text of the remedy provision and instead emphasizing the overall structure of the ADA and the “expansive” intent of the 1991 amendments. 

For now, the law in the Ninth Circuit on this question is clear:  while still entitled to compensatory or punitive damages in disability discrimination or failure to accommodate claims under the ADA, employees may not receive those damages for ADA retaliation claims.


 

Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010

Wow, it's Festivus already, which means that in just a few short days it will be a brand new year!  We have a Festivus present for Oregon employers to help you get ready:  Ten things you need to know for 2010!  (click on each blue hotlink for more information)

  1. All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
  2. The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
  3. As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate
  4. Leave for Military Spouses:  Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty. 
  5. In 2010, you might have a greater duty to accommodate employees' religious dress and practices
  6. Domestic Violence Leave and Accommodations:  Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must  make reasonable accommodations for such employees.
  7. In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
  8. Oregon's minimum wage will remain $8.40/hour.
  9. Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act
  10. Oregon has new rest and meal break regulations.

And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength.  Happy festivus, and see you in 2010!

9th Circuit: Independent Contractor Can Assert Disability Claim Under Rehabilitation Act

The Ninth Circuit Court of Appeals ruled recently that an independent contractor may assert a disability claim against an employer under the Rehabilitation Act.  Click the link to read the opinion on Fleming v. Yuma Regional Medical Center

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act (ADA).

In Fleming, an anesthesiologist who worked as an independent contractor sued the medical center at which he worked, alleging a discriminatory constructive discharge.  The trial court dismissed the case on the basis that Fleming was an independent contractor and that the  Rehabilitation Act applied only to employee-employer relationships.  The Ninth Circuit reversed, holding that the Rehabilitation Act provides a cause of action to any individual subjected to disability discrimination by any program or activity receiving federal financial assistance.  While the Rehabilitation Act adopts the standards that are applied under the  ADA, it does not adopt the ADA's limitation to the employee-employer relationship. 

Independent contractors are not considered "employees" for purposes of most employment discrimination laws, and many employers hire independent contractors to avoid potential liability under such laws.  Fleming shows that, at least for employers covered by the Rehabilitation Act, independent contractors may still find ways to seek the protections of those laws despite their "non-employee" status.  In addition, many employers incur significant tax and other liabilities by misclassifying people as "independent contractors" when they really should be treated as employees.   For more information, the Internal Revenue Service offers this guidance for determining whether someone is or is not correctly classified as an independent contractor

EEOC Updates H1N1 Guidance

The H1N1 virus (aka "swine flu") continues to spread.  Is your workplace prepared?  Are your policies and procedures legally compliant?  In order to help employers, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employers titled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."  (Click title to download). The EEOC guidance answers several common questions relating to H1N1 and compliance with the ADA.  For example:

  • May an employer send employees home if they display influenza-like symptoms during a pandemic?  Yes.  Employees who become ill with flu-like symptoms at work should leave the workplace.  Directing such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus.
  • How much information may an employer request from employees who report feeling ill at work or who call in sick?  Employers may ask employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • May an employer require employees to wear face masks or gloves, or gowns to reduce the transmission of the H1N1 or flu virus?  Yes. An employer may require employees to wear personal protective equipment during a pandemic. 
  • May an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?  Yes. Requiring regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA. 

The guidance addresses these and many other common H1N1 questions.  In short, the EEOC is directing employers not to panic, to take the H1N1 outbreak seriously, but also to treat it no differently than the regular seasonal flu -- at least from an employment law perspective.  For more information, consult the EEOC guidance or contact your employment law attorney. 

Another Circuit Court Agrees: ADA Amendments Act is Not Retroactive

Congress did not intend for the ADA Amendments Act (ADAAA) to be retroactive, the Court of Appeals for the District of Columbia ruled yesterday, and applied pre-ADAAA law to dismiss an employment discrimination claim.  Click here to read the court's decision in Lytes v. DC Water and Sewer Authority

Congress passed the ADAAA in 2008 and the new law became effective January 1, 2009.  The ADAAA significantly expanded the definition of "disabled" under the Americans with Disabilities Act (ADA).  The Lytes court reviewed the legislative history of the ADAAA, and could not find in that history any indication that Congress intended the law to apply retroactively.  The court also noted that Congress signaled its intend that the law not apply retroactively when it gave the ADAAA a specific effective date. 

The DC Circuit joins the Fifth Circuit Court of Appeals, which also ruled in EEOC v. Agro Distribution, LLC that the ADAAA is not retroactive.  Notably, the Department of Labor has also taken the position that the law should not apply retroactively.  And, at least for now, it appears that the Equal Employment Opportunity Commission agrees

Lytes and Agro Distribution are important cases for employers defending ADA claims; they make clear that for claims arising before January 1, 2009, pre-ADAAA standards of what constitutes a "disability" are likely to apply.  For more information on the ADAAA, click here for the Stoel Rives World of Employment's ADAAA coverage

Bus Driver's "Shy Bladder Syndrome" a Disability

A school bus driver who was demoted after his "shy bladder syndrome" left him unable to comply with his employer's drug testing procedures may proceed with claims under the Americans with Disabilites Act (ADA) according to a recent ruling from a Tennessee federal court.  Click here to read the full opinion in Melman v. Metropolitan Government of Nashville.

In Melman, the plaintiff was required to submit to random drug tests.  During two tests he could not provide an "adequate" urine sample, and explained that he could not because of a "shy bladder."  A urologist diagnosed the plaintiff with paruresis (aka shy bladder syndrome) and offered to perform the urine sampling via catheterization.  The employer  declined that offer.  Instead, it placed the plaintiff on unpaid leave, required him to attend a drug rehabilitation program at his own expense, and demoted him to a position as a bus monitor.  (Notably, the plaintiff ultimately did provide a negative sample obtained via catheter.)  The court denied the employer's motion to dismiss, holding that shy bladder syndrome substantially limited the plantiff's major life function of eliminating bodily waste.

Employers with drug testing programs should take note:  employees who are unable to comply with standard drug testing procedures may have a qualifying disability, especially given the more liberal standards under the ADA Amendments Act.  Employers should not shy away (okay, bad pun) from engaging in the interactive process with the employee to find ways that the employee can comply with the procedures - such as providing a sample through catheterization.  The International Paruresis Association also provides suggestions for accommodating shy bladder syndrome. 

Supreme Court Tightens Standards for Age Discrimination Plaintiffs

Yesterday the United States Supreme Court ruled 5-4 that trial courts may not use a "mixed motive" framework in federal age discrimination cases.  Rather, plaintiffs in age discrimination cases must prove that "but for" their age, they would not have been discriminated against.  Click here to read the Court's decision in Gross v. FBL Financial Services

Under a 1991 amendment to Title VII  of the Civil Rights Act of 1964, plaintiffs may prove race, sex, religion or national origin discrimination by proving either they would not have been discriminated against "but for" their employer's unlawful motive, or if their employer had a "mixed motive," meaning that the employer had some lawful motives to take an adverse action against the employee, but also some unlawful motives.  In "mixed motive" cases, employers can avoid some (but not all) liability by proving that it would have taken the same action against the employee even absent the unlawful motive.  Prior to Gross, several circuit courts (including the Ninth Circuit Court of Appeals) had applied the "mixed motive" framework in cases under the Age Discrimination in Employment Act or the Americans with Disabilities Act, even though those statutes do not incorporate a"mixed motive" framework. 

Gross is ultimately a technical case mostly of interest to employment litigators.  Gross will make it incrementally more difficult for plaintiffs to prevail in age discrimination and some other federal discrimination cases.  Employers do not need to change their current policies and practices in light of Gross - rather, employers should continue not to discriminate on the basis of age, sex or any other characteristic protected by federal, state or local law.  (Well, duh!)

Driving Not a "Major Life Activity" Under ADA

Is driving a car a major life activity under the Americans with Disabilities Act (ADA)No, the Tenth Circuit Court of Appeals recently concluded, joining two other federal circuit courts that have held that just because a person cannot drive does not mean that person meets the legal definition of "disabled."  Kellogg v. Energy Safety Services, Inc.

Kellogg, who has epilepsy, sued her employer alleging disability discrimination.  Kellogg asserted that because she is not allowed to drive due to the risk of seizure, she is substantially limited in the major life activity of "driving."   After Kellogg prevailed on her claim at a jury trial, The Tenth Circuit reversed.   (The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah.)

The court held that driving is merely a "means to an end," and not a major life activity in and of itself.  For some plaintiffs, an inability to drive may prevent them from engaging in other major life activities (such as working), but because Kellogg presented no evidence that she was substantially impaired in any activity except driving, she failed to prove she was "disabled."  The Tenth Circuit thus joins both the Second and Eleventh Circuits in holding that driving is not a major life activity. 

Don't expect Kellogg to set precedent for long:  this case almost certainly would have been decided differently under the ADA Amendments Act (ADAAA), which goes into effect January 1, 2009.  Under the much broader definition of "disability" under the ADAAA, Kellogg's epilepsy alone almost certainly would have qualified her for the protections of the ADA.  For more on the ADAAA, check out the Stoel Rives World of Employment's coverage, here

President Bush Signs ADA Amendments Act

As expected, President Bush yesterday signed the ADA Amendments Act ("ADAAA") into law, significantly expanding the scope of the Americans with Disabilities Act.  The final version of the law can be downloaded here.  The Stoel Rives World of Employment has been actively covering the law as it wound its way through Congress, and you can follow our reporting here

The ADAAA goes into effect January 1, 2009.  To help you get ready, Stoel Rives is offering free seminars on the ADAAA in its Portland, Boise and Seattle offices on December 2, 2008.  For more information and to register, click one of these links: 

Failure to Accommodate Disabled Employee May Result in Constructive Discharge

According to a recent Americans with Disabilities Act case from the U.S. Sixth Circuit Court of Appeals, a failure to accommodate an employee's disability may result in a constructive discharge and expose the employer to the same kind of liability it would face had it terminated an employee because of a disability.

In Talley v. Family Dollar Stores of Ohio Inc., Talley, a former store cashier with severe arthritis, could not stand more than 15 minutes without extreme pain.  She requested a stool to sit on while working, but the employer refused the request because employees complained of "favoritism" and wanted stools of their own.  After the employer refused her request for an accommodation, Talley quit her job and sued for disability discrimination under the ADA, claiming that her employer's refusal to accommodate her forced her to quit.

The Sixth Circuit agreed that Talley proved a claim for constructive discharge--in other words, the employer made her working conditions so intolerable that a reasonable person would feel compelled to resign.  If Talley proves her case to a jury, her former employer can be liable for several years' of backpay damages, as well as attorney's fees and possibly even punitive damages.  

This case underscores employers' obligation to provide reasonable accommodations for disabled employees.  While most anti-discrimination laws do not allow "favoritism," the ADA is different:  an employer does have an obligation to provide disabled employees with accommodations (such as giving a disabled cashier a stool) that non-disabled employees do not receive.  Perceived favoritism is simply not a defense.  For technical assistance in complying with the ADA, check out the U.S. Department of Justice's ADA Page