It is very difficult for individuals to meet the burden of proving that they have an impairment that rises to the level of a disability under the Americans with Disabilities Act (ADA) as defined by the courts. Two cases will be identified in this column related to individuals who were able to demonstrate a disability under the definition of the ADA but who also met the very difficult burden of proof in court relating to “regarded as” disabled.
The first case, Moorer v. Baptist Memorial Healthcare System, will be discussed in detail because of the important implications for case managers. The second case is related to an employee who was denied the right to return to work after suffering two seizures. However, his employer mistakenly believed that he had a serious epileptic condition. There will be additional discussion related to whether or not someone who is regarded as disabled should be accommodated in the workplace. The case law continues to evolve in this area. There also will be a review of recent case law involving working at home or telecommunicating as a reasonable accommodation and also trends in mental disability claims.
The Supreme Court has agreed to hear a very interesting and important case in its 2004-2005 term regarding the state of Oregon's Death with Dignity Act, and this action will be reviewed herein.
The ADA prohibits covered entities from discriminating against a “qualified individual with a disability because of the disability of such person.” A qualified individual with a disability means an individual who with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires. Under the ADA, a disability means either a mental or a physical impairment that substantially limits one or more major life activities (MLA) of such person, a record of such an impairment, or being regarded as having such an impairment.
Congress and the drafters of the ADA intended for the “regarded as” prong of the law to protect people who are perceived as having a disability based on stereotypes, fears, or misperceptions about disability. It was meant to protect all of us.
In the Supreme Court decision, Sutton v. United Airlines, Inc., the court noted there were two ways in which individuals may fall within the perceived as statutory definition:
1.A covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more MLAs, or
2.A covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more MLAs.
In both of these situations, a covered entity must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. In a decision of the Sixth Circuit Court of Appeals, the judge noted that it was “extraordinarily difficult” to prove an employer regarded an individual as being disabled, particularly if the MLA of work is being considered. In fact, the judge noted that “proving that an employee is regarded as disabled in the MLA of working takes a plaintiff to the farthest reaches of the ADA.” The court further notes that this question is “imbedded almost in entirely in the employer's subjective state of mind.”
Moorer v. Baptist Memorial Healthcare System
The Sixth Circuit Court of Appeals was asked to review this case. In this case, the district court concluded that Baptist Memorial Healthcare System (BMHS) violated the ADA by regarding Moorer as having a disability. The actual award in this case was $834,334, plus $212,063 in attorney's fees and costs. This award included back and front pay, both with interest and compensatory damages for emotional distress. This case is instructive for case managers because it involves several areas that case managers typically become involved.
Moorer had worked for BMHS for 17 years before his termination in 1997. He had been promoted several times and ultimately obtained the position of administrator and chief financial officer of Tipton County Baptist Hospital and Lauderdale Baptist Hospital. He was the only administrator in the Baptist system that had responsibilities for two hospitals.
In January 1997, Moorer's supervisors discussed a list of performance concerns that were a part of his performance evaluation. He responded with a plan of action to address the concerns. In the interim, changes in the administrative structure occurred and Moorer was assigned a new supervisor, Cathy Hill. She asked Moorer to submit a plan for corrective action related to a number of the issues in the performance evaluation. They had several discussions related to the need to improve his performance. Ultimately, she said he needed to improve his overall job performance by September 15, 1997, or he would probably be terminated.
In July 1997, both Hill and Moorer attended a Baptist Health Services group meeting. Hill believed she smelled alcohol on Moorer's breath and observed behaviors that she thought were related to alcohol use. It was decided to refer him to Concern, an employee assistance program, for a fitness-for-duty evaluation. He was given another letter outlining alleged performance deficiencies and goals he was expected to meet. It also was indicated to Moorer that, if he failed to participate and to cooperate in the program and obtain 100% successful adherence, he would be immediately terminated.
In a meeting in August 1997, he met with his supervisors and was told they thought he was an alcoholic but he would have a job when he returned from the rehabilitation program. Moorer then was admitted to the program. While he was there, Hill called Moorer's wife and said, “Alcoholism is an incurable disease and your husband will never be cured, and it is a deadly disease.”
While Moorer was in rehabilitation, other performance issues came to Hill's attention. In a termination interview, Moorer was told his “work problems were caused by his disease.” He completed the 5-week treatment program and brought suit against BMHS, alleging they discharged him in violation of the ADA.
Opinion of the court
The district court concluded BMHS had violated the ADA. They determined Moorer did not suffer an actual disability or had a record of a disability but instead was regarded as having a disability by BHMS. The court noted very specific evidence existed to bring them to the conclusion that Moorer's alleged performance deficiencies were linked to a belief that he was an alcoholic. The following was the evidence noted for the court to conclude the above:
1.The demand that Moorer undergo a fitness-for-duty examination.
2.In August 1997, his supervisor told Moorer she thought he was an alcoholic and required him to seek treatment.
3.While undergoing treatment, Moorer's wife was told that alcoholism is an incurable disease and, therefore, her husband would never be cured.
4.When Moorer was fired, he was told that his disease of alcoholism caused his work-related problems.
The court concluded that Hill had acted in accordance with her belief that Moorer's performance deficiencies were related to his alcoholism and that Hill believed Moorer's alcoholism substantially limited his MLA of working. The court also concluded that Moorer's job duties were diverse and required general skills that could be used in a broad range of fields and that these skills as a hospital administrator were necessary for most high-level management positions. The court noted that because Hill believed Moorer's alcoholism substantially limited his ability to work at Baptist, she also must have believed the impairment of alcoholism would have precluded him from performing a broad class of jobs.
The court summarized their conclusion as follows: “Plaintiff's supervisor Cathy Hill perceived plaintiff as an alcoholic and perceived that alcoholism precluded him from competently performing his job. Based on this perception, defendant ‘regarded’ plaintiff as disabled and used subsequently discovered evidence of plaintiff's deficiencies to justify her unlawful basis for his discharge.”
Circuit court of appeals analysis
The Sixth Circuit reviewed the two situations in which an individual may fall within the “regarded as” definition under ADA. Recall that in both of these situations, the covered entity must believe either that a person has substantially limiting impairment that he or she does not have or that a person has a substantially limiting impairment when, in fact, the impairment is not so limiting.
According to the records, the district court determined that Baptist believed Moorer had the physical or the mental impairment of alcoholism. The court also found evidence that Baptist perceived Moorer's alcoholism as a substantial limitation on his ability to work in a broad class of jobs or a broad range of jobs in various classes. The Sixth Circuit agreed with this analysis. There was clear evidence that Hill linked her perception of Moorer's alcoholism to his inability to perform his job as a hospital administrator. The court, however, determined that Moorer was required to show that Baptist regarded him as unable to perform in a class of jobs or a broad range of jobs in various classes.
The court also concluded there was evidence that the company created a pretext for firing Moorer. This pretext was proof, according to the court, that Baptist regarded him as a disabled employee. It was his burden to demonstrate the number and the types of jobs with similar training, knowledge, skills, or abilities within that geographic area from which he is also disqualified because of the impairment.
The appeals court then held that Moorer presented evidence that Baptist perceived him as incapable of performing a broad class of work because of its perception and belief that he was incapable of performing managerial work. In addition, Hill's belief that Moorer's incurable alcoholism would result in his death permitted the inference that Hill regarded Moorer as substantially limited in his ability to not only perform work but any MLA.
Moorer must next establish a causal connection between the perceived disability and his termination. The court determined there was significant evidence that Baptist erroneously perceived Moorer's alcoholism to be substantially limiting and actually motivated his termination.
Compensatory damages
Because of Moorer's own testimony, along with his wife's and his treating physician, the court determined it was evidence of his severe emotional distress stemming from his termination. Moorer sought treatment from a clinical psychologist, and his wife testified he had been suffering from depression, insomnia, and isolation. The clinical psychologist testified that his termination was devastating, causing feelings of betrayal, anger, and depression. The Sixth Circuit Court noted that because of his emotional distress, the $250,000 compensatory damages were not excessive. Therefore, the circuit court affirmed the district court's judgment in favor of Moorer on his ADA claim.
Implications for case managers
Many companies face this type of situation when they say an individual cannot return to work unless he or she is “100% healed.” Courts have held that these situations involve a genuine issue of material fact as to whether the employer perceives the plaintiff or the employee to be substantially limited in the ability to perform a larger class of jobs because of the 100% rule. If the employer perceives that the individual cannot perform any work at their place of employment, this offers evidence that they perceive the employee to be unable to perform the same broad class of work in another employment situation.
Case managers need to be concerned when there is an inappropriate connection with an alleged disability and the individual's job performance. The case manager will need to provide appropriate documentation as the case unfolds, because it will prove extremely important.
Taylor v. USF-Redstar Express, Inc.
In this case, Taylor sued his employer because it denied him the right to return to work for 20 months after suffering two seizures brought on by taking creatine, a nutrition supplement. The employer mistakenly believed that Taylor had a serious epileptic condition and was a danger to the public. A senior U.S. district judge for the Eastern District of Pennsylvania found that there was evidence that the employer acted in a prejudicial and uninformed manner that the ADA was designed to prevent.
Taylor had been working for Redstar Express, Inc. for 12 years as a truck driver and a dockworker when he suffered two nocturnal seizures in March 2001. Under the union agreement, Taylor exercised his seniority rights and bid on a job as a dockworker. In the proceedings, it was alleged that Taylor's boss had sent him home based on the erroneous perception that he had a “serious epileptic condition” and, therefore, was subject to “sudden, unanticipated losses of consciousness.” However, the fact was that Taylor's seizures were isolated occurrences that were the result of taking the nutrition supplement creatine. Medical evidence was provided to the company that identified the substance as the cause of the seizures. However, the company refused to allow Taylor to return to work for a 20-month period.
The employer took the position that if Taylor had a seizure while driving a forklift, it could be a dangerous situation. The employer also said Taylor presented no evidence that Redstar believed his seizures prevented him from doing anything other than drive a forklift or a truck. Taylor's attorneys argued that there were numerous witnesses and medical evidence that Redstar had refused to return him to work on the basis of the misperception that he had a serious epileptic condition. The lawyers said the company had “misclassified Taylor as an epileptic who was seizure prone and subject to sudden unpredictable losses of consciousness.” They added that no physician had ever provided medical evidence to the company that Taylor suffered from seizures caused by epilepsy.
The jury believed that the employer thought that Taylor was seizure-prone and, therefore, they believed that the employer regarded the plaintiff as being “substantially limited in one or more MLA, such as walking or talking.” Unfortunately, the employer was taking the ironic position that the decision to send Taylor home was justified by a concern that he could have a seizure, while arguing that the employer did not perceive Taylor to be disabled. In essence, the employer argued that the employer did not view him as disabled in an MLA; but, on the other hand, the employer viewed Taylor as so disabled that he could lose the ability to walk, talk, or do anything else, if he had a seizure.
Taylor received a jury award of $157,000, and his team of attorneys received $283,000 in fees and costs. The award included back pay, loss of pension benefits, and $100,000 in compensatory damages.
Implications for case managers
This case demonstrates that it is important for case managers to help employers understand the medical evidence that relates to the case at hand. As an advocate, the case manager can help the employer to obtain medical documentation related to a question about a diagnosis. In this case, there was mounting medical evidence that indicated that Taylor had a seizure caused by a nutrition supplement, not by a serious epileptic condition. The case manager can help the employer understand this medical evidence and advocate for the client in a return-to-work situation. The case manager can intervene and clarify if additional medical evidence is needed to diagnose the employee's actual condition. This intervention can preclude the development of stereotypes that tend to support matters “perceived as a disability.”
Reasonable accommodation
Circuit courts have debated considerably as to whether or not individuals who are regarded as disabled are entitled to reasonable accommodation. The issue of reasonable accommodation with perceived disability usually is posed as the question: Is an employee entitled to reasonable accommodation when the employer regards him/her as having a disability, even though he/she does not have an actual disability?
Trends In Mental Disability Claims
Mental disability claims under the ADA are on the rise. An increasing number of plaintiffs are filing such claims under state statutes. However, there also is a rise in claims in federal court under the ADA. Some legal commentators suggest that there is more case law and that attorneys are becoming better at avoiding the so-called soft claims. Soft claims might include a mild depression because it is difficult to verify. Plaintiffs' lawyers must wrestle with the same conundrum that is apparent in proving a physical disability—being able to show that the client is disabled enough to require accommodations but not so disabled as to be unable to perform the essential functions of the job.
If the employee has a long track record of successful employment, with brief periods of a diagnosed mental disability, there is more possibility of success in the courtroom. Most of the awards are based on lost wages, pain, and suffering. However, few mental disability claims ever make it to trial because they are settled.
The Ninth Circuit Court of Appeals in Kaplan v. City of North Las Vegas (The Case Manager, July/August 2003) said that the court considered several scenarios that, on the surface, appeared to be subverting the intent of the ADA. For example, if plaintiffs regarded as disabled are entitled to reasonable accommodation, impaired employees would be better off if employers treated them as disabled, even if they are not.
The court also noted that it would be wrong to provide employees with a windfall if they perpetuated the misperception of having a disability. They added that to require accommodation to someone not actually disabled compels employers to waste resources that could be better spent assisting those individuals who are disabled and need accommodation.
Therefore, the court reasoned that employers do not have a duty to accommodate an employee in a “regarded as” case. Several other courts had arrived at the same conclusion, including the Eighth Circuit Court of Appeals.
It is known that Congress intended to remove architectural barriers to equal employment opportunities in the workplace, even for those who are not disabled but who were perceived as such by their employers. It has already been noted in the last two cases that the employer erroneously believed that the employee had a disabling condition that denied the individual employment. In each case, the employer falsely believed that the individual was substantially limited. In these cases, there was clearly an adverse employment action.
But what if those individuals who were regarded as disabled had requested an accommodation so that they could continue their work but perhaps in a different role or capacity? In Kaplan v. City of North Las Vegas, the Ninth Circuit Court rejected the idea of providing reasonable accommodation to employees who are regarded as disabled. But in another case, Williams v. Philadelphia Housing Authority Police Department, the Third Circuit Court of Appeals ruled that an employer was required to accommodate an employee with a perceived mental disability.
Williams was a police officer for the Philadelphia Housing Authority but was suspended after he threatened his superior officer. Williams was ordered to be examined by a psychologist, who diagnosed him with major depression and recommended that he not carry a weapon for 3 months. However, the psychologist cleared Williams to work in an administrative or clerical capacity.
Williams requested, as an accommodation, either a transfer to a training unit or to the radio room. In either of these positions, he was not required to use a firearm. The housing authority denied both requests because it perceived him as being restricted from any access to firearms and being around others carrying firearms. However, in the actual recommendation from the psychologist, he was only restricted from carrying a firearm himself. He was terminated because he had exhausted his available leave time without being assigned to another unit.
The Third Circuit Court rejected the reasoning of the Ninth Circuit Court and said that Williams had been denied a reassignment “solely based on his employer's erroneous perception.” Therefore, restoring Williams to where he would have been but for his employer's misperception is not a windfall.
The Court also relied on the legislative history of the ADA, which sought to correct the reaction of others to individuals with medical impairments that were not substantially limiting. They also reasoned that protection under the ADA also was for those who suffered adverse employment actions because of “myths, fears, and stereotypes associated with disabilities.” The court said Williams should have been provided with a reasonable accommodation to allow him to return to work in another area.
Intent of Congress
It appears from legislative history that Congress did indeed intend for those individuals regarded as disabled to be able to request and to receive a reasonable accommodation, such as job restructuring, position reassignment, or extended leave of absences. Congress did intend for individuals to be protected from unfounded fears, myths, and stereotypes.
Telecommuting as a reasonable accommodation
With the advent of technology, more workers have the ability to be connected through computer networks and other telecommunication devices to their place of employment. What if an employee with a disability requests the reasonable accommodation of telecommuting from home? Is this reasonable? As previously noted, reasonable accommodation includes job restructuring, leave of absence, modified or part-time schedules, or reassignment to a vacant position. Courts generally are in agreement that a reasonable accommodation may include a reassignment to a vacant position in the company for which the employee is qualified. The employer, however, is not required to reassign an employee to a job if he or she is not considered qualified.
Examples of accommodations that are considered unreasonable and, therefore, not required, include reducing production performance standards that are uniformly applied, providing personal use items, changing supervisors, monitoring medications, unwarranted promotions, or eliminating the essential functions of a job. Other accommodations that are not considered reasonable include shift transfer requests or transportation issues regarding commuting to and from the workplace. In addition, if the problems on the job are related to an individual's performance and are not the result of a disability, reasonable accommodation may not be required.
Even though each case calls for an individualized assessment, it appears that the case law supports working at the employer's place of business as an essential function that the employer need not compromise. The underlying principle is that the employment relationship begins at the workplace and is at the heart of employment law in a variety of circumstances. At this point, the telecommuting request as a reasonable accommodation does not appear to be supported by case law as a requirement of employers.
A challenge to Oregon's Death with Dignity Act
In its upcoming term, the Supreme Court has agreed to review a case appealed from the Ninth Circuit Court, Gonzales v. Oregon, et al. The question under consideration is whether the attorney general has permissibly construed the Controlled Substances Act and its implementing regulations to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual's suicide, regardless of a state law purporting to authorize such distribution.
In 1994, Oregon voted to enact the Death with Dignity Act, which enabled physicians to legally prescribe certain lethal substances to assist in painless death of competent yet terminally ill individuals. Oregon is the first and the only state to legalize physician-assisted suicide.
In November 2001, Attorney General John Ashcroft issued the “Ashcroft Directive” stating that physicians who distributed controlled substances to assist suicide can have their registration to distribute controlled substances under the act revoked or be criminally prosecuted for violating federal law. In April 2002, in state court, a group successfully challenged Ashcroft's Directive, and it was ruled invalid.
In May 2004, the Ninth Circuit Court of Appeals found the directive unlawful and unenforceable, because it violated the plain language of the Controlled Substance Act, undermined the intent of Congress, and overstepped the bounds of the attorney general's authority. Furthermore, they said Ashcroft was interfering with Oregon's authority to regulate its own medical care.
Although there are many issues related to this case, the attorney general asked the Supreme Court to review it, because he argued that he has primary responsibility for enforcing the Controlled Substance Act and, therefore, his interpretation should have precedence.
The ADA connection
Disability rights groups have submitted a brief in support of Ashcroft's position. In their brief, they state that the Oregon law violates the ADA because the Oregon physician-assisted suicide law conflicts with the rights of people with disabilities to be free from discrimination. They add that the attorney general could have permissibly found that assisted suicide under the Oregon law is not a legitimate medical practice because it violates the ADA: “The Oregon law does so by authorizing health care providers and state and local entities to treat differently people who have suicidal ideations based on whether they have a disability.” They continue their position by saying that individuals with terminal illnesses would generally qualify as having a disability. They contend that health care providers are subject to the nondiscrimination provisions of the ADA. This includes the double standard for suicide intervention based on whether a person does or does not have a disability.
This case will be very interesting to follow and will be reported in The Case Manager after the Supreme Court has reached a decision.
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