Texas courts routinely look to and take guidance from federal law when evaluating claims under the Texas Commission on Human Rights Act. The TCHRA is the Texas state law that prohibits employment discrimination on the basis of disability (and other status) and requires employers to provide reasonable accommodation to qualified individuals with disabilities.
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Fifth Circuit Holds That Telecommuting Not a Reasonable Accommodation Because Regular In-Office Work Was Essential Job Function of Litigation Attorney
In Credeur v. State of Louisiana, an attorney working as a litigator with the attorney general’s office experienced health issues related to a kidney transplant. The Office of the Attorney General allowed Credeur to work from home temporarily while she was recovering from her transplant surgery. After several months of telecommuting, the Office of
U.S. Supreme Court Wrap-up of Employment Law Cases 2014-15 Term
This past term saw the Supreme Court issue four opinions in labor and employment cases. In case you missed them, the following is a brief summary of the holdings from those cases.
EEOC v. Abercrombie & Fitch Holding that Title VII’s prohibition against refusing to hire an applicant to avoid accommodating a religious practice that
Employee Wins Reversal of Religious Discrimination Defeat at the Fifth Circuit
Last week I wrote about a religious discrimination case where an employer snatched victory from the jaws of defeat at the Fifth Circuit Court of Appeals. This week, we have a Fifth Circuit opinion where the court took away an employer’s victory in another religious discrimination case and sent the case back to the trial court
Breaking News: U.S. Supreme Court Agrees to Hear Important Case on Reasonable Accomodation for Pregnant Employees
The U.S. Supreme Court just concluded its 2013-14 term and is already creating a buzz over the cases it will hear when it convenes again this October. Today, the Court agreed to hear a case involving whether and to what extent pregnant employees are entitled to reasonable accommodations for conditions related to their pregnancy. The case
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
Does Title VII Protect Followers of the Church of the Flying Spaghetti Monster?
Imagine this, its Friday and you are sitting in your office as Director of Verizon’s newly created Office of Reasonable Accommodation. An employee, I’ll call him Joe, walks into your office. Joe tells you he’s recently converted to the Church of the Flying Spaghetti Monster (i.e., he is now a Pastafarian); that Friday’s
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
EEOC Holds Hearing on Leave of Absence as Reasonable Accommodation
This week the EEOC held a hearing on whether new or updated regulations and enforcement guidance was needed with respect to providing leave of absence as a reasonable accommodation for disabled employees. The EEOC has recently been very aggressive in bringing suit against employers that use maximum leave policies or "inflexible" policies that provide no exception for reasonable accommodation.
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.
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.