Executive Summary: On August 30, 2019, the U.S. Court of Appeals for the Third Circuit, covering New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands, issued a precedential opinion in an important case interpreting the Americans With Disabilities Act’s (ADA) public accommodations provision and its interaction with persons who rely on psychiatric service animals. In summary, the court: (1) deepened a circuit split by joining the Tenth Circuit in holding that the ADA applies to plasma donor centers; and (2) held that the plasma donor center at issue violated the ADA by imposing a blanket ban on prospective plasma donors who use psychiatric service animals. See Matheis v. CSL Plasma, Inc., (3d Cir. Aug. 30, 2019).
Articles about the Americans with Disabilities Act (ADA), and other issues relating to disability discrimination in the workplace.
What’s New in 2019? A Look at the Ever-Changing Leave and Accommodation Law Landscape
2019 has brought a flurry of new leave and accommodation laws. In fact, in the first 8 months of 2019, more than 20 new laws in this area have passed.
Ninth Circuit Dodges the Question of Whether Morbid Obesity is an “Impairment” Under the ADA; EEOC Says Yes
On August 20, 2019, the Ninth Circuit dodged answering the question of whether morbid obesity is a disability under the Americans with Disabilities Act. In Valtierra v. Medtronic Inc., No. 17-15282, the Ninth Circuit affirmed the District Court’s grant of summary judgment in favor of the defendant, but came short of joining the Second, Sixth, Seventh and Eighth Circuits in explicitly holding that obesity cannot constitute a disability under applicable EEOC regulations unless there is evidence that the obesity is caused by an underlying physiological condition.
Is Morbid Obesity a Protected Disability? Ninth Circuit Weighs In But Doesn’t Answer the Question
Today’s post highlights one of many examples of cases employers should never have to spend tens of thousands of dollars litigating.
Employer’s Good Deed Goes Unpunished—Reliable Attendance Is Essential Function Despite Prior Accommodation of Employee’s Absences
While it’s true that acts of generosity sometimes backfire on those who offer them, the Court’s ruling in Higgins v. Union Pac. R.R. Co., No. 18-1902 (8th Cir. July 24, 2019) shows this is not always the case. In Higgins, the Eighth Circuit affirmed summary judgment for Union Pacific—holding that regular, reliable attendance was an essential function of Higgins’ position despite the fact that Union Pacific accommodated Higgins’ poor attendance for over a decade.
What Am I Doing Wrong?? Common FMLA Mistakes (July 3, 2019)
“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 24th blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.
Court Dismisses ADA Claims Alleging “Excessive” Drug and Alcohol Testing
A federal court in New York dismissed a disability discrimination claim asserted under the Americans with Disabilities Act (ADA) based on allegedly “excessive” drug and alcohol testing of employees after they failed drug or alcohol tests required under the U.S. Department of Transportation (DOT)’s regulations. Vuono, et al. v. Consolidated Edison of New York, Inc., Case No. 1:18-cv-016365-VEC (S.D.N.Y. June 11, 2019).
Seventh Circuit Holds Obesity is not ADA Impairment Absent Underlying Physiological Cause
On June 12, 2019, the Seventh Circuit Court of Appeals issued its ruling in the case of Richardson v. Chicago Transit Authority, which was the appeal of a dismissal of the case after the lower court found that obesity is not an impairment under the Americans with Disabilities Act (ADA) absent an underlying physiological cause. An issue of first impression in the Seventh Circuit (the federal appeals court with jurisdiction over Illinois, Indiana, and Wisconsin), the court agreed with prior decisions in the Second, Sixth, and Eighth Circuits, and upheld the dismissal. The Seventh Circuit held that obesity is not an ADA impairment unless there is evidence of an underlying physiological cause. It also held that CTA did not perceive the plaintiff, a 596-pound bus driver, to be disabled when it terminated him due to safety issues.
Obesity ? Protected Class
Making fun of a co-worker’s weight may be rude, but is it illegal? A New Jersey court recently addressed claims of disability discrimination and hostile work environment by an employee complaining of comments made by co-workers about his weight.
Federal Court Allows Class Action Website Disability Access Case to Proceed Against An Employer
While we continue to wait for guidance from the government on website accessibility standards, plaintiffs continue to challenge the accessibility of company websites. For years, individuals have brought lawsuits claiming that their access to goods and services is limited under Title III of the Americans with Disabilities (“ADA”). More recently we have seen individuals challenge their access to employment under Title I of the ADA due to online application processes that they claim are not accessible.
Employers Must Consider Accommodating Workers’ Religious Objections to Flu Vaccination
Executive Summary: Recent actions by the Equal Employment Opportunity Commission (EEOC) emphasize employers’ obligations under Title VII of the 1964 Civil Rights Act to accommodate workers’ religious objections to receiving a flu vaccination. For example, a Middle Tennessee hospital has agreed to pay $75,000 and perform other non-monetary actions to settle an EEOC lawsuit claiming it violated Title VII by failing to accommodate a worker’s sincerely held religious beliefs against receiving an annual flu vaccination.
The ADA, Occupational Injuries and Light Duty
It is not uncommon for employees who are on leave and receiving workers’ compensation benefits to be released to return to work with light duty restrictions. To account for these situations, some employers have designated light duty positions reserved for employees who are released to return to work on light duty after an occupational injury.
Older Applicants Cannot Utilize ADEA to Challenge Neutral Hiring Criteria, Seventh Circuit Rules
The Age Discrimination in Employment Act does not permit non-employees to bring claims under a disparate impact theory, the Seventh Circuit has ruled. Kleber v. CareFusion Corp. (7th Cir. Jan. 23, 2019). Accordingly, in Illinois, Indiana, and Wisconsin, job applicants will not be able to challenge hiring decisions that are neutral, but which disproportionately exclude job applicants over 40.
School Board Not Liable for Disciplining Disabled Educator’s Excessive Absenteeism or Denying Her Leave Requests
Since Congress passed the Americans with Disabilities Act (ADA) in 1990 and state legislatures enacted their own protections requiring employers to accommodate disabled workers, courts have grappled with the reasonableness of accommodating an employee’s excessive absenteeism caused by a disability. In Barbabosa v. Board of Education of the Town of Manchester, the Connecticut Appellate Court faced that question, holding on April 23, 2019, that attendance was an essential function of Barbabosa’s job and, therefore, her employer was not liable for either disciplining her for excessive absenteeism or denying her requests for extended intermittent leave.
Second Circuit Adopts Heightened “But-For” Standard But Rejects “Sole-Factor” Test for Disability Discrimination Claims
In a recent 2-1 decision, the Second Circuit Court of Appeals rejected its prior precedent,1 joining the Fourth,2 Sixth,3 and Seventh4 Circuits in adopting a “but-for” causation standard in disability discrimination cases brought under the federal Rehabilitation Act of 1973.5 In doing so, the Second Circuit explicitly noted that, with respect to employment discrimination claims, the Rehabilitation Act incorporates the same causation standard as appropriate under Title I of the Americans with Disabilities Act of 1990, and amendments thereto (ADA).6
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