Rojgar Job News

As we previously reported here, the issue of whether obesity is a legally-protected impairment is complex, and jurisdictions differ on the extent to which they consider obesity to be a disability under the Americans with Disabilities Act (“ADA”).  On June 12, 2019, the United States Court of Appeals for the Seventh Circuit joined the Second, Sixth, and Eighth Circuits in holding that without evidence that an underlying physiological disorder caused the individual’s extreme obesity, a plaintiff’s weight does not qualify as an impairment under the ADA or the Equal Employment Opportunity Commission’s (“EEOC”) interpretive guidance. In Richardson v. Chicago Transit Authority , the plaintiff, a bus driver weighing nearly 600 pounds, claimed that his employer took adverse action against him because of his morbid obesity in violation of the ADA.  However, his employer – the Chicago Transit Authority, Chicago’s mass transit operato...

Many employers are familiar with Title I of the Americans with Disabilities Act (ADA), which sets forth employers’ obligations to disabled applicants and employees, but the ADA also imposes obligations on businesses that are places of public accommodation – and nearly all are – with respect to their patrons. A recent Ninth Circuit appellate decision, Tauscher v. Phoenix Board of Realtors, Inc ., No. 17-17218 (9th Cir. July 25, 2019), offers guidance on the extensiveness of public accommodations’ obligations to accommodate their disabled customers. The lawsuit was brought by a profoundly hearing-impaired licensed real estate salesperson, Mark Tauscher. Mr. Tauscher is unable to hear sounds that are less than 90 decibels, roughly as loud as a lawnmower. He cannot engage in conversational settings or lip-read. His only means of communication with others is through American Sign Language (ASL). Despite these challenges, Mr. Tauscher had successfully navigated the bus...

As we previously discussed here and here, courts are split regarding the extent to which obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”). The Second, Sixth, Seventh and Eighth Circuit Courts of Appeal have held that obesity must be accompanied by an underlying physiological disorder for it to constitute a disability, whereas the First Circuit and some district courts have come to the opposite conclusion, particularly when the plaintiff presents expert testimony supporting the contention that obesity is a physical impairment, regardless of an underlying physiological condition. The Ninth Circuit wrestled with this question in 2018 in a case brought under the Washington Law Against Discrimination (“WLAD”). Because the case involved a question of state law, the Ninth Circuit certified a question to the Washington Supreme Court to resolve whether Washington courts would conclude that obesity, standing alone, constitutes a disabilit...

On October 29, 2019, railway operator Burlington Northern Santa Fe Railway Company (“BNSF”) prevailed before the United States Court of Appeals for the Seventh Circuit – which covers Illinois, Indiana, and Wisconsin – in a case in which the company argued that its refusal to hire an obese candidate due to an unacceptably high risk that the applicant would develop certain obesity-related medical conditions incompatible with the position sought did not violate the Americans with Disabilities Act (“ADA”).  Ronald Shell applied for a job with BNSF as a machine operator position.  Per its standard practice when the applied-for position is safety-sensitive, as was the heavy equipment operator position sought by Shell, BNSF required him to undergo a medical examination.  During the medical examination, the examiner determined that Shell’s body mass index (“BMI”) was 47.  BNSF had a practice of refusing to hire indiv...

Employers already are (or should be) familiar with their obligations not to discriminate against and to reasonably accommodate employees and applicants with disabilities under the Americans with Disabilities Act (“ADA”), which requirements are addressed in Title I of the ADA.  But the ADA also imposes additional non-employment obligations on governments and municipalities (Title II) and on private places of public accommodation (Title III).  Nearly all private employers are also “private places of public accommodation,” as that term includes a wide range of entities such as restaurants, bars, hotels, theaters, stadiums, grocery stores, hospitals, doctors’ offices and pharmacies, banks, accountants’ and lawyers’ offices, retail stores, museums, libraries, zoos, amusement parks, private schools, and day care centers.  Not only must those facilities be physically accessible to patrons with disabilities, but for years, courts have deb...

On October 22, 2019, a Tennessee federal district court dismissed a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) under the Americans with Disabilities Act (“ADA”) against West Meade Place LLP (“WMP”), a skilled nursing facility, after finding on summary judgment that the EEOC failed to establish that former WMP employee Carma Kean was disabled, as that term is defined under the ADA. In EEOC v. West Meade Place LLP , the EEOC, acting on behalf of Ms. Kean, alleged that she had anxiety and that during “flare-ups” of this condition, she was unable to work.  The EEOC alleged that WMP violated the ADA because it failed to accommodate Ms. Kean’s condition by providing her with requested time off work, and also engaged in disability discrimination when it terminated Ms. Kean’s employment.   In order to establish a prima facie case of a failure to accommodate or ot...

In Darby v. Childvine , a recent decision from the United States District Court for the Southern District of Ohio, the Court considered whether a genetic mutation can constitute a “disability” as that term is defined under the federal Americans with Disabilities Act (“ADA”). In that case, the employer terminated the plaintiff/then-employee Sherryl Darby two weeks after she underwent surgery for a double mastectomy.  Darby sued Childvine, claiming that she had breast cancer, was therefore disabled under the ADA, and that its termination of her employment violated the ADA.  Childvine moved to dismiss her complaint, arguing that a diagnosis of breast cancer does not automatically mean that the employee is substantially limited in a major life activity – which is, in part, how the ADA defines a disability.  In response, Darby amended her complaint, alleging that her cancer diagnosis meant that she was substantially limited in normal cell growth, ...

Many individuals with disabilities use service animals to help them fully engage in everyday life.  Animals, particularly dogs, can be trained to perform a wide range of tasks to help people with disabilities, and the number of tasks these specially trained animals can perform continues to grow. As a result, more applicants and employees are requesting the use of service animals as a reasonable workplace accommodation for a variety of different disabilities.  In addition, the growing popularity of emotional support animals adds another layer of complexity to the issue of animals in the workplace for employers.  Because the law in this area is somewhat murky, employers must use caution when addressing service animal/emotional support animal accommodation requests and need to be prepared to address the potential challenges that such accommodations can entail. Animals as Accommodations under the ADA Title I of the Americans with Disabilities Act (ADA), which specifically add...

As we previously reported here, the U.S. Court of Appeals for the Ninth Circuit and the Washington Supreme Court have been wrestling with whether obesity qualifies as a disability under the Washington Law Against Discrimination (“WLAD”). The dispute involves an applicant for a position with a railway company who sued in 2010, alleging that the company unlawfully refused to hire him in violation of the WLAD because of his obesity.  Six years later, a federal district court granted summary judgment in favor of the railway company, holding that because the applicant could not prove that his obesity was caused by a physiological condition or disorder or that the employer perceived his obesity as stemming from such a source, his obesity discrimination claim under state law could not proceed.  The applicant appealed, and the Ninth Circuit Court of Appeals  concluded that whether obesity unrelated to any physiological condition or disease is a disability was an unres...

As discussed in our prior posts on obesity and disability law, there is continuing disagreement in the courts concerning whether obesity alone constitutes a disability, or whether obesity must result from a physical disease or condition in order to be a disability.  On February 27, 2020, the U.S. Court of Appeals for the Fifth Circuit became the latest federal circuit court to consider whether obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”) in a case called Lumar v. Monsanto Company. Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”  Further, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, and defines such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job. ...

In Woolf v. Strada , decided by the U.S. Court of Appeals for the Second Circuit in February 2020, the court considered whether the plaintiff’s inability to perform his particular job as a result of migraines and stress arising from the circumstances surrounding his job gave rise to a qualifying disability under the Americans with Disabilities Act (“ADA”), as amended. In Woolf , the plaintiff suffered from migraines that he contended were related to stress at work.  The migraines left him temporarily incapacitated and impaired his ability to work and to participate in life activities more generally. As a result, his work performance declined and he received negative performance reviews.  Throughout this time, the plaintiff made multiple requests to transfer to a different position or to be assigned different supervisors, providing a note from his neurologist in support of his requests.  The employer did not grant the plaintiff’s transfer requests o...

Although the coronavirus disease 2019 (COVID-19), commonly referred to as the “coronavirus,” remains a developing situation, it has begun affecting the US in major ways.  With cases now reported throughout the US, every organization should have a plan of action in place concerning the coronavirus.  Although every business faces unique considerations, a cross-disciplinary team of Squire Patton Boggs attorneys have collaborated to prepare guidance – available here – for organizations to consider when addressing coronavirus-related employment, customer service, and other issues.

Our colleague Justin DiCharia at Squire Patton Boggs’  Sixth Circuit Appellate Blog recently discussed the Sixth Circuit’s decision in a case involving an employee’s request to work from home as a disability accommodation under the Americans with Disabilities Act.  As Justin notes below, this decision came prior to the recent COVID-19 pandemic and the massive shift to work-from-home for many workers.  It remains to be seen, once the pandemic subsides, what impact this pivot to remote work will have on whether requests to work from home may be deemed unreasonable ADA accommodation requests when, during the pandemic, the employee involved worked from home.  As the world bunkers down and works from home during this COVID-19 crisis, a WFH accommodation decision from the Sixth Circuit feels timely. Though the decision predates social distancing and office closures, its relevance to the employer-employee relationship may outlast the coronavirus. In  ...

The United States currently is experiencing an unprecedented public health emergency due to the COVID-19 virus.  The economic fallout of this crisis has been sudden and brutal on US employers, with vast numbers of businesses ordered to close and nearly 1 million new unemployment claims filed in the past two weeks alone.  In response, Congress has passed several new laws to take emergency action to address the impact on employers and employees.  These laws and the speed at which they were put in place has left many overwhelmed and with many questions about what obligations they impose and how they will operate, if they can at all, through this crisis. Although there is a certain feeling that in unprecedented times like this, employers should have more flexibility to take what could be potentially business-saving measures, no matter how drastic, it is important for employers to remember that, even during these trying times, the laws enforced by the US Equal Employment Oppor...

Sunny Anthony worked for TRAX International as a technical writer.  During the course of her employment, she asked TRAX to accommodate her disabilities–post-traumatic stress disorder and related anxiety and depression—by letting her work from home, which TRAX denied or otherwise declined to allow.[1]   So Ms. Anthony sued TRAX, alleging that it violated the Americans with Disabilities Act (ADA) by failing to provide her reasonable accommodation, and for terminating her employment due to her disabilities.  In the course of that lawsuit, TRAX discovered that Ms. Anthony had falsely represented on her employment application that she possessed a bachelor’s degree, when she in fact did not. Possessing a bachelor’s degree was a prerequisite for the technical writer position and was required under a government contract held by TRAX. In response to her claims, TRAX argued that as a plaintiff suing under the ADA, Ms. Anthony must show that she was qual...

Since early in the pandemic, the EEOC has been maintaining a Technical Assistance Questions and Answers page, which it updates from time to time. As employers’ attention turns to life after COVID-19 and planning for our return to the workplace, on April 17, the EEOC updated its COVID-19 pandemic informal guidance to address the challenges employers will face in the return-to-work transition. Reasonable Accommodations With respect to the reasonable accommodation process, the EEOC clarified that employers may provide temporary accommodations for disabilities if, due to pandemic conditions, the employer and employee lack the time to engage in a full interactive process, or if accommodation needs are expected to change as government-imposed restrictions are lifted. The EEOC approved of employers providing short-term accommodations with end-dates that evolve based on public health directives, or even providing accommodations on a “trial basis, with an end date, while awaiting rec...