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.