Has the Expanded Definition of Disability under the ADAA Gone Too Far?

Daniel Schwartz at the Connecticut Employment Law Blog has an interesting post today about the effect the American Psychiatric Association's proposed changes the Diagnostic & Statistical Manual could have to the Connecticut body of disability discrimination law.  While Connecticut is unique, according to Schwartz, in its definition of disability and expressly includes mental conditions listed in the current DSM as disabilities, I wrote (facetiously) last year that under the ADA's new, expanded (and inclusive) definition of disability, having a disorder that compelled excessive masturbation (i.e., hypersexual disorder) could qualify as a disability under the American with Disabilities Act entitling an employee to all manner of reasonable accommodation in the workplace.

In determining whether a mental impairment qualifies as a disability under the ADA, plaintiffs sometimes argue that because the mental impairment is a recognized disorder under the DSM, it qualifies as a mental impairment under the ADA.  While the identification of a mental disorder in the DSM is not alone sufficient to satisfactorily show that an individual with that disorder is disabled, given the lower standard necessary to show that an impairment substantially limits a major life activity, it is not a stretch to believe that a trial court would find a genuine issue of material fact as to whether a mental disorder like hypersexuality, qualified as a disability.   I predict that eventually, Congress' massive expansion of the ADA will compel a trial court to recognize an individual as disabled under circumstances that were never contemplated by Congress and will be viewed as outrageous to much of the general public.  Until that occurs, and the media uncovers and widely reports it, there is little likelihood that Congress will revisit (or rein in) its extension of ADA rights.  

Related Links:

Could the EEOC Sue on Behalf of an Employee Who Wanted the Right to Masturbate at Work?

Proposed DSM-5

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Court Finds, in Pre-ADAA Case, that Employee with Diabetes Not Disabled

In a recent pre-ADAA case, the Fifth Circuit Court of Appeals held that a former UPS employee's limitations caused by Type II diabetes were not disabling and that UPS did not fail to provide reasonable accommodation to a known disability.  Despite the fact that this case was based on pre-ADAA law, there are still some useful takeaways that will apply notwithstanding the ADAA.

Rommel Griffin was a 28-year employee of UPS who suffered from Type II diabetes.  He worked in a supervisor/management capacity on the twilight shift from 2 to 10 p.m.  After Hurricane Katrina, Griffin experienced unusual numbness and pain that his doctor attributed to stress.  He took a paid leave of absence to complete an outpatient behavioral counseling program.  After completing this program, Griffin was better able to manage his stress and his symptoms improved.

Griffin was released to return to work and upon his return learned that his job had been filled.  Griffin sought out two other positions; neither of which he was awarded.  Ultimately, he was assigned the position he previously held; albeit on the midnight shift.  Upon being told he was assigned to the midnight shift, Griffin delivered a letter titled "Accommodation Request" where he said that that his doctors required that his schedule be adjusted to daytime hours to accommodate his diabetes.  UPS requested additional information from Griffin and his doctors to evaluate the request for accommodation. 

In response to UPS's request, and key to the court's decision, were Griffin and his doctor's response.  Griffin wrote a letter stating that "My diabetes is a condition that does not have to be a disability if I manage it properly, but to do so I will need UPS to make the accommodation to permit me to work days."  His healthcare provider indicated "No" in response to the question regarding whether Griffin's impairments substantially limited his ability to perform any major life activities other than working.  None of the information provided by the physicians said that Griffin needed daytime work hours.  As a result of this information, UPS denied Griffin's request for accommodation.  Shortly thereafter, Griffin tendered his notice of retirement.  Prior to this retirement, he made no complaints to human resources about the denial of accommodation nor did he participate in UPS's formal dispute resolution program.  Like UPS, the trial court also concluded that Griffin was not disabled and granted judgment in favor of the company.

On appeal, the court reviewed the decision that Griffin was not disabled.   The court noted that Griffin had been able to manage his diabetes for years, without complication, so long as he maintained his regimen of medication, meals and rest.  In this mitigated state, pre-ADAA law, Griffin's impairments could not be considered to be substantially limited.  Importantly, the court observed that neither it, not the Supreme Court, has recognized the concept of per se disabilities and that Griffin's limitations were on the moderate end of the diabetes spectrum thereby not amounting to significant limitations on any major life activity.  Consequently, the court of appeals also found that Griffin was not disabled. 

Similarly, the court also affirmed judgment against Griffin on his failure to provide reasonable accommodation claim.  The court affirmed judgment on this claim because there was no evidence that UPS was unwilling to engage in a good faith, interactive process regarding his request for accommodation.  None of the information submitted by Griffin's doctors requested that he be assigned only daytime hours.  Moreover, Griffin admitted that his diabetes does not have to be a disability if managed properly. 

It should be clear that the Court's analysis of whether Griffin was disabled or diabetes qualifies as a disability has been superseded by the ADAA.  However, there are still some good analysis that survives the changes made in the ADAA.  First, where the information provided by the employee's doctor fails to demonstrate that the employee is disabled or that the particular accommodation requested is necessary because of the employee's disability, the employer does not fail to provide reasonable accommodation to a known disability.  Second, where the employee terminates the interactive process through voluntary resignation or retirement, a failure to provide reasonable accommodation claim is difficult to maintain because it is difficult for the court to determine what measures would have been taken had the accommodation discussions continued.

You can download a full copy of Griffin v. UPS, Inc. here.

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Large Texas Employer Announces it Will Not Consider Applicants for Employment Who Use Products with Nicotine

One of North Texas' largest employers announced that it will not longer hire or consider for hire any individual who uses any nicotine product (i.e., cigarettes, nicotine gum or patches, chewing tobacco or electronic cigarettes).  Baylor Health Care Systems announced its new policy on the careers page of its website stating:

As a health care system committed to improving the health of those we serve, we are asking our employees to model the same behaviors we promote to our patients. Beginning January 1, 2012, Baylor will no longer hire individuals who use nicotine products. Applicants who profess to use nicotine will not have their applications processed. Anyone who is offered and accepts a position with BHCS will be tested for nicotine during our regular post-offer pre-employment testing. Applicants who test positive for nicotine will be eliminated from consideration and pending job offers will be rescinded.  We encourage candidates who do not pass the nicotine testing to consider taking steps to stop the use of nicotine and reapply for consideration after a period of 90 days. 

The policy appears to screen out any applicants, regardless of the type of product used containing nicotine and whether the product is use on non-working time off the employer's premises.  Smoking or nicotine dependence has not historically had success in the courts as being a recognized ADA disaiblity.  However, it will be interesting to see if in a post-ADAAA world, where the definition of disability has been greatly relaxed, this policy comes under scrutiny by the EEOC or applicants rejected for employment based on their use of products containing nicotine. 

Baylor is not the first hospital to implement such a policy.  However, similar policies are not without their critics.  The National Workrights Institute, a nonprofit human rights organization focused on workplace issues, has been quoted that "such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding." 

Presumably Baylor had its policy fully vetted by its legal experts and believes it can defend the policy.  However, a quick, admittedly nonexhaustive research search, failed to find any cases holding that nicotine addiction is not a disability under the ADAAA.  Only time will tell whether these kinds of policies will be upheld by the courts.

Follow me on Twitter @RussellCawyer.

Other Articles on Failure to Hire Tobacco Users:

Refusing to Hire Tobacco Users --Valid Argument or Just Blowing Smoke?

Hospital Hiring Goes Up in Smoke.

Hospitals Shift Smoking Bans to Smoker Ban

ADA Amendments May Open the Door for Nicotine Addiction Claims

EEOC Takes Hog-Like Approach on Attendance as Essential Job Function

There's an old saying in rural America that "pigs get fat and hogs get slaughtered."  We used the phrase to describe someone who, instead of being satisfied with what he has, gets greedy.  In the litigation context it can be used to describe a party that takes overly aggressive, unreasonable and untenable positions.  My fellow bloggers, Work Blawg and Employment and Labor Insider posts last week about the EEOC's apparent position that attendance is not an essential job function (or not working as Work Blawg refers to it) makes me think the EEOC might be getting a little Hog-like in its attack on employer leave of absence and attendance policies.  The issues comes up in discussions of Verizon's record-setting $20 million settlement with the EEOC over its no-fault attendance policy.  As Robin Shea points describes the dispute that was settled:

The case was about charging absences under a no-fault attendance policy to employees who missed work because of medial conditions that were 'disabilities' within the meaning of the ADA.  It does not appear that medical leaves were at issue.  Exempting ADA conditions from no-fault attendance policies is a huge deal.

With the Verizon settlement, the EEOC is apparently signaling that it believes an employer commits a violation of the ADA when it charges an employee absence against a no-fault attendance policy when the absence results from a medical condition that qualifies as a disability.  Because the ADAAA now renders everyone disabled, the EEOC's position is troubling.  It suggests that the EEOC believes that attendance is not an essential function of most jobs. 

The problem with the EEOC's position (and where it crosses the line from being piggish to hoggish) is that the ADAAA made no changes to what is considered an essential job function or the well-settled standard that an employer need not eliminate essential job functions in providing reasonable accommodation.   Certainly, the ADAAA has given the EEOC ample reason to be aggressive in litigating issues on what constitutes a disability or is a substantial limitation on a major life activity.  However, the ADAAA made no changes to the statute regarding what constitutes reasonable accommodation or essential job functions.  Most courts have held that attendance is an implicit, essential job function of most employment.  Consequently, the EEOC's position that attendance is not an essential job function and employees cannot consider absences caused by "disabilities" under no fault attendance policies is puzzling.  If accepted by the Courts, the EEOC's position would require employer's to investigate each and every absence to determine whether the employee is disabled and whether absence was caused by a disability. 

Follow me on Twitter @RussellCawyer.

Could the EEOC Sue on Behalf of an Employee Who Wanted the Right to Masturbate at Work?

There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations.  (See post, post, post, and post).  The increase in the number of applicants and employees who qualify for reasonable accommodations and the types of impairments that now qualify as disabilities has me thinking about the unintended consequences arising with such broad and encompassing changes to the ADA.  Today I read about a potential consequence I had not been able to imagine. 

Elie Mystal wrote yesterday at Above the Law about an employee in Brazil sued and won the right to watch pornography and masturbate because she suffers from "a chemical imbalance that triggers severe anxiety and hypersexuality."  This started me thinking, could the EEOC bring the same suit against a U.S. employer on behalf of an employee who wanted breaks to watch pornography and otherwise relieve his or her stress caused by severe anxiety or hypersexuality (i.e., to masturbate)?  I think the answer, despite what Congress intended, is probably "yes".

First, is hypersexuality or severe anxiety a disability?  The ADAAA regulations say that "depressive disorder, bipolar disorder, OCD, and schizophrenia" are presumptively disabling disorders.  Severe anxiety is a recognized psychological disorder listed in the current version of the DSM and hypersexuality is a proposed diagnosis for the the DSM-V.  (check) 

Second, does it substantially affect a major life activity?  The EEOC's regulations instruct that whether a major life activity is substantially limited is not a demanding standard and should be viewed expansively.  Furthermore the Commission regulations include concentrating, thinking and the operation of the major bodily systems including the reproductive system as major life activities. Therefore, it should not be hard to imagine evidence that these disorders cause the employee difficulty with thinking, concentrating or the normal operation of the reproductive systems.  Moreover, how would an employer challenge whether these impairments and the preoccupations it causes limits the employee's ability to think or concentrate?  (check)

Third, are reasonable break times to relieve stress reasonable?  Unless the employer can show undue hardship, probably so.  Employees are permitted reasonable break times for reasons caused by other physical impairments such as frequent restroom breaks for impairments affecting the urinary or digestive systems; and frequent meal or break times for diabetics who need to test their blood sugar and eat small meals.  Consequently, it would be up to the employer to show that the requested accommodation is not reasonable and/or it causes an undue hardship.  (check).

Having concluded that the EEOC could bring this lawsuit under the ADA on behalf of a employee or applicant, I recognize that the likelihood of it doing so is less than zero; the political fallout would be disastrous for the Commission.  Just because the EEOC would not bring the suit, however, would not prevent an employee from hiring private counsel and bringing the same claim against his or her employer.  This example demonstrates just how far the ADAAA has gone to expand what qualifies as a disability.  Did Congress go too far when it passed the ADAAA?

El Paso EEOC Sues Starbucks over Height Challenged Barista

In a suit you don't see filed everyday, the El Paso District Office of the EEOC recently filed a disability discrimination lawsuit against Starbucks over the termination of an employee suffering from dwarfism.  According to the EEOC's Complaint:

Charging Part has a physical impairment, dwarfism. . . [and] is substantially limited in the major life activities of, including but not limited to, reaching, lifting, and performing manual tasks.  Charging Party was hired by the [Starbucks] as a barista, a customer service position.  The job description for the barista position stated that no prior experience was required. . .  On or about July 30, 2009, Charging Party requested the use of a stool and/or small step-ladder as a reasonable accommodation to enable her to perform the essential functions of her job.  With reasonable accommodation, [she] would have been able to perform the essential functions of her job; to operate the cash register and prepare beverages.

After the Charging Party requested a reasonable accommodation, [Starbucks] failed or refused to engage in the interactive process and failed or refused to provide the Charging Party with a reasonable accommodation.  On or about July 30, 2009, [Starbucks] terminated Charging Party's employment, claiming that she would be a danger to customers and employees.

In my quick, and admittedly non-exhaustive research while writing this post, individuals suffering from achondroplastic previous hitdwarfism have not fared well in suits filed under the ADA.  However, with the relaxed standard for qualifying for "disabled" status under the Americans with Disabilities Amendments Act and its accompanying regulations (see post), the EEOC may have a stronger hand in this case if it can overcome Starbucks apparent "direct threat" defense.

You can review a copy of the EEOC's complaint here.

UPDATE:  On August 16, 2011, Starbuck entered a Consent Decree with the EEOC where it agreed to pay $75,000 to settle the charges of discrimination.  You can see all of the terms of the Consent Decree here.

EEOC Changes Tactics in Enforcing "Pregnancy" Discrimination Laws

The EEOC recently brought suit against the country's largest home builder on behalf of a pregnant employee who was denied a period of unpaid leave in addition to the maximum permitted under the employer's policies.  What is unique about this suit is that the EEOC brought the suit under the Americans with Disabilities Act rather than the Pregnancy Discrimination Act.

According to the Commission's press release, D.R. Horton

denied [the plaintiff] additional unpaid leave time after her doctor placed her on bed rest for over seven months as a result of pregnancy-related complications. Although the company initially provided some leave time, it finally stated it was against company policy to provide the employee any more leave time, even if it was unpaid, and then fired her.

Prior to the passage of the ADA Amendments Act, it is unlikely that the EEOC would have brought this case under the ADA because most courts were reluctant to conclude that pregnancy was a disability.  Instead, the Commission would have had to show under the Pregnancy Discrimination Act that the pregnant employee was treated differently than other nonpregnant employees who were similar in their ability and inability to work (i.e., similar work restrictions).  However, the EEOC is targeting employer leave policies that are perceived by the Commission as rigid.  An example of such policy is one that provides a maximum leave duration of six or twelve months.

One aspect of this tactic that should be troubling to Texas employers is the fact that Texas law uses the enforcement of a neutral absence control policy as a defense to a workers' compensation claim.  Where an employer uniformly and consistently applies a leave of absence policy with a maximum duration, an employee who is separated from employment for exhausting the available leave of absence, even if the absence is caused by an on-the-job injury, will have no workers' compensation retaliation claim.  Suits like the EEOC's suit against D.R. Horton may have the effect of requiring employers to make more frequent exceptions to these neutral absence control policies that might weaken their effectiveness as a defense in Texas workers' compensation retaliation cases.


Being Chronically Tired May Qualify as a Disability in Texas

A federal appellate court with jurisdiction over Texas held that chronic fatigue syndrome (CFS) may qualify as a disability under the Americans with Disabilities Act. According to the Centers for Disease Control, CFS is characterized by symptoms including weakness, muscle pain, impaired memory and/or mental concentration, insomnia, and post-exertional fatigue lasting more than 24 hours.  There is no known diagnostic test for CFS and physicians are left to rely on forensically unreliable self-reports of the patient to make this diagnosis.   Notwithstanding this inability to test for or confirm the existence of this "syndrome," the federal court of appeals covering Texas held that CFS might qualify as a disability that an employer must reasonably accommodate. 

In EEOC v. Chevron Phillips Chemical Co., L.P., the Fifth Circuit Court of Appeals reversed a summary judgment in favor of Chevron on an employee's claim that she was discriminated against and denied reasonable accommodation for her chronic fatigue syndrome.

The employee, Lorin Netterville, was first diagnosed with CFS in 1987 while attending school and caring for her children at home.  She received a six-week course of treatment and her symptoms disappeared.  In late-2000 Netterville applied for employment with Chevron and was eventually hired.  As part of the employment process Netterville completed a medical history questionnaire, where she failed to disclose a history of excessive fatigue with work or exercise.

Several years later Netterville was required to work long hours of overtime that included manually packing boxes and moving supplies as part of Chevron's office relocation. Netterville claims she begin to suffer sleep disruptions that included getting no more than 1-2 hours of sleep per night for 6-7 days at a time.  Once a month she claimed she would sleep 17 hours straight.  She also claims she "began to run low-grade fevers and to suffer from headaches, disorientation, pain in her temples, stiff joints, pain in her arms and legs, and numbness in her legs, as well as aphasia and problems with memory, concentration and decision-making at times she was unable to remember even her own son's name."  She became unable to sit or walk for more than thirty minutes at a time, was hypersensitive to light and sound, and experienced episodic crying spells and feelings of social isolation.  Approximately 1 year after her symptoms reoccurred Netterville was living with her sister who assisted her with daily living tasks like shopping, cooking, washing, showering, drying, dressing, and using the bathroom.  This assistance was primarily needed because of excruciating pain in Netterville's arms and morning nausea she experienced.

Netterville's physician suggested that she take a month off from work.  Because Netterville could not afford a month off without pay, she got her doctor to write a note advising for a two week break from work.  When Netterville presented her request to Chevron for the 2 weeks of time off, she inaccurately reported that her symptoms had reappeared 2 years earlier.  Because Netterville was hired by Chevron less than 2 years earlier, the company also began investigating whether Netterville had falsified her medical history questionnaire in addition to considering her leave request.  Ultimately Netterville was given her two weeks of leave.

Netterville's physician conditioned her release to return to work on additional accommodations.  He recommended that she be relocated to an office closer to her home.  Additionally, due to her alleged hand pain and concentration difficulties, the doctor also advised that Netterville needed to be in a job that allowed for alternate typing and reading rather than reading and typing for extended periods of time.  She also needed to be able to take a short nap during her lunch break.  When Netterville made these requests to her supervisor, he remained silent.  She was allowed, however, to return to work, and she was provided the accommodations she requested during her final 4 days at work.  Ultimately, Netterville was terminated for falsifying information on her medical questionnaire.

The EEOC filed a lawsuit on Netterville's behalf.  Relying heavily on EEOC-promulgated regulations and its compliance manual (the EEOC is one of the governmental agency litigants that gets to write the authority it then asks a court to rely on to find in its favor --something no private employer is allowed to do), the court of appeals held that Netterville was entitled to a jury trial on her claims because there were fact issues as to whether Netterville had a disability; whether she was terminated for a disability; and whether Chevron provided reasonable accommodation.

This case is an important reminder that any physical or mental impairment may qualify as a disability if it substantially limits a major life activity. Moreover, the major life activity substantially limited need have no bearing on an employee’s employment or performance of his or her job duties. With the passage of the ADA Amendments Act that substantially broadens the coverage of individuals with disabilities, expect more denials of and reversals of employer summary judgments in ADA cases.