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by M. McClure on Sep 13, 2010 at 3:31 PM

Plaintiffs gain momentum in ADA litigationThe first cases decided under the amended ADA are beginning to appear, and, as expected, they don't look great for employers. In October of 2008, Congress passed the Amendments Act to the Americans with Disabilities Act (ADAAA), expanding the definition of disability. The new cases move away from the issue of whether the plaintiff is disabled and focus instead on whether the employer met its responsibility in the accommodation process.  Three recent cases illustrate this trend.    

Jenkins v. National Board of Medical Examiners is the only ADAAA case that has been decided by a circuit court so far.  Jenkins was a medical student that had been diagnosed with a reading disorder at a young age.  Despite this disadvantage, he successfully completed high school, college and had reached his third year of medical school before his reading disorder presented an insurmountable challenge.  The National Board of Medical Examiners refused to provide Jenkins with additional time on an upcoming test.  Jenkins sued for injunctive relief.  At trial the court applied the old, more restrictive, standard and found that Jenkins was not disabled.  Jenkins appealed.  Before the Sixth Circuit heard the case, the new standard went into effect.  Because Jenkins was requesting relief for an ongoing harm, the Sixth Circuit applied the ADAAA and found that Jenkins was disabled.  Plaintiff wins.
    
In Grizzell v. Cyber City Teleservices Marketing, Inc., the employee was sent to the Philippines for job training where he witnesses the death of a young girl.  The experience traumatized the employee, who had previously been diagnosed with post-traumatic stress disorder (PTSD).  The employee told his employer that he might need treatment for PTSD, but the employer refused to accommodate the employee’s request.  A few weeks later, the employer fired him.  The employee sued; the employer filed a motion to dismiss; and the court held that PTSD is a disability under the ADAAA and the case should go to trial.  Plaintiff wins.
    
In Hoffman v. Carefirst of Fort Wayne, Inc., the employee was in remission after treatment for renal cell carcinoma and had been released for work with no restrictions by his doctor.  One year later, the employer changed the employee’s hours from 40 a week to 65-70.  When the employee told his employer that he could not work that long for health reasons and provided a statement from his doctor to that effect, the employer fired him.  Later, the employer called the employee, stating that he had not been terminated, and could work 40 hours a week, but could no longer work from home and must commute to a location an hour away.  The employee was not amused, and told the employer that because he had already been fired, he was not coming back to work under those conditions.  The employee then sued the employer for wrongful discharge under the ADAAA.  The employer filed a motion for summary judgment, claiming that the employee was not disabled.  The Court held that cancer in remission can be a disability, and held for the employee.  Plaintiff wins.
    
The score so far: Plaintiffs 3, Employers 0.  In every ADAAA case the courts have ruled on to date, in addition to the three discussed above, the employee has been found to be disabled.  This is a major shift for employers.  Employers now need to focus on the accommodation process and give real thought to whether an accommodation is available to assist an employee who has medical concerns.   

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by M. McClure on Nov 13, 2009 at 12:45 PM

Prominent EEOC lawyer says pregnancy may be a protected disability under the ADAAAIt's not official yet, but pregnancy may be the newest protected disability under the amended Americans with Disability Act (ADAAA).  Although the ADAAA does not address pregnancy, the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  That statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

Christopher J. McKinney at HR Lawyer's Blog points out that the EEOC recently filed a complaint in Washington against D. R. Horton, a Fortune 500 home builder, for discriminating against an employee when it fired her after she was put on bed rest for seven months due to pregnancy related complications. McKinney is correct when he says that the fact that the EEOC brought this case under the ADAAA "speaks volumes."  

A recent Arkansas case is a good example of how a pregnancy discrimination case might be more successful under the ADAAA.  The Arkansas Supreme Court recently affirmed summary judgment for an employer in a complaint against the company for discrimination due to pregnancy complications.  In Greenlee v. J.B. Hunt, the employee experienced complications during her pregnancy that required bed rest, but she was fired because she had only worked for the company for four and a half months and was not eligible for additional leave.  The court found that employee was not fired because she was pregnant, but because additional leave was not available to her under the company policy.  

If the Greenlee case had been brought under the ADAAA (which wasn't in affect at the time of the plaintiff's termination), a court may have reasoned that the company failed to accommodate a condition that substantially limits a major life activity and allowed the plaintiff continue to trial.       

It's important to note that the proposed ADAAA regulations state that conditions that are transitory (lasting less than 6 months) will not be protected under the ADAAA.  Therefore, the ADAAA is unlikely to apply to the majority of pregnant employees.  Still, it's too soon to know how far the EEOC's theory on pregnancy as a disability will go, and the fact that the EEOC has staked out this position should give employers pause.

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