Ninth Circuit: Employee Who Threatens to Kill Co-Workers Not "Qualified Individual with Disability"

Timothy Mayo was a welder. He made some specific threats to kill certain supervisors at his employer, PCC Structurals, Inc.  Co-workers complained.  The company sent him home.  The police visited him and he checked into a hospital.  The company terminated his employment.

Mayo sued under Oregon's version of the ADA, which is modeled under the federal statute. The 9th circuit reviewed the employer's successful motion for summary judgment.

The court decided that a person who makes violent threats against co-workers cannot claim protection under disability discrimination laws:

Even if Mayo were disabled (which we assume for this appeal), he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others. See Williams v. Motorola, Inc., 303 F.3d 1284, 1290 (11th Cir. 2002). And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times). This vastly disproportionate reaction demonstrated that Mayo could not perform an “essential function” of his job, and was not a “qualified individual.” This is true regardless of whether Mayo’s threats stemmed from his major depressive disorder. Cf. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir. 1996) (“Attempting to fire a weapon at individuals is the kind of egregious and criminal conduct which employees are responsible for regardless of any disability.”).

The court was careful to limit its holding to serious threats of violence or harm, in a footnote:

We emphasize that we only address the extreme facts before us in this case: an employee who makes serious and credible threats of violence toward his co-workers. We do not suggest that off-handed expressions of frustration or inappropriate jokes necessarily render an employee not qualified. Nor do we imply that employees who are simply rude, gruff, or unpleasant fall in the same category as Mayo. See U.S. Equal Emp. Opportunity Comm’n, supra, at *15 (advising that an “anti-social” employee with a “psychiatric disability” can be a “qualified individual,” even if he is “abrupt and rude”).

The court also distinguished its line of cases in which it has excused "conduct resulting from a disability":

This ruling is consistent with our cases holding that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139–40 (9th Cir. 2001); see also Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1094–95 (9th Cir. 2007); Dark v. Curry County, 451 F.3d 1078, 1084 (9th Cir. 2006). Unlike in Humphrey, Gambini, and Dark, we do not need to consider whether PCC has offered a legitimate, nondiscriminatory reason for terminating Mayo, as he has failed to establish a prima facie case at step one of the McDonnell Douglas framework.

Only Gambini involved hostile action by the employee.  And the court pointed out that the employer in that case did not argue that Gambini was not a "qualified individual" on appeal.

Summing up, after recognizing the serious problems of mental illness in society, the court remarked:

we disagree with Mayo that employers must simply cross their fingers and hope that violent threats ring hollow. All too often Americans suffer the tragic consequences of disgruntled employees targeting and killing their co-workers. While the ADA and Oregon disability law protect important individual rights, they do not require employers to play dice with the lives of their workforce. We thus conclude that PCC’s actions in this case were lawful.

This case is Mayo v. PCC Structurals, Inc. and the opinion is here. 

9th Circuit: Cop with ADHD Has No "Disability" Under the ADA

Here's a remainder from the Ninth Circuit that not every impairment is a "disability."   And without a "disability" within the meaning of the ADA, there is no obligation to accommodate and there is no relief available for termination of employment based on a claim of disability discrimination.

A 9th Circuit panel held, 2-1, that a police officer with ADHD did not have a legally sufficient  "disability" to justify a claim under the ADA.  That is because, the court found, his "impairment" did not "substantially limit" the major life activities of working or interacting with others.

The employee, Weaving, was diagnosed with ADHD at six years old.  At 12, he stopped taking medication, but had difficulty getting along with others during his teen and adult years.

So, Weaving becomes a police officer in Beaverton, Oregon.  He passed all the exams, physical and mental. He did not disclose his ADHD diagnosis or prior medications, believing he was no longer afflicted.  He stayed in Beaverton for about 10 years, and received much negative feedback about his personality conflicts.

He joined the Hillsboro, Oregon, police force in 2006.  He disclosed his previous ADHD diagnosis and noted some of the personality conflicts that had plagued him.  Hillsboro offered him provisional employment, subject to a medical evaluation.  Weaving passed that evaluation, as well as another one when he applied for promotion to sergeant.  His superiors noted he sometimes was perceived as arrogant or intimidating, but that he did his job well.

After a couple of incidents of conflict with his co-workers/ subordinates, the city placed Weaving on administrative leave. (Paid, natch.).  While on leave, Weaving came to the conclusion that ADHD might be the source of some of his troubles (!).  A doctor agreed that his ADHD might cause him to interact roughly with co-workers, but that he could still be an "excellent" officer.  So, weaving told the City that he should be reinstated with "all reasonable accommodations," so that he might obtain treatment and improve his communications.

But, while on administrative leave, the city conducted an investigation. The consensus was that Weaving was, in effect, a terror.  Two doctors evaluated him as medically fit for duty, too.  So, the city decided to discharge Weaving.

A jury found the city violated the ADA by firing Weaving and awarded him money damages. but not reinstatement.  The city appealed.

The court of appeals first considered whether Weaving was "substantially limited" in the major life activity of working.  The ADA Amendments Act relaxed the "substantially limited" standard. Even so, the court held there was no evidence of substantial limitation:

The record does not contain substantial evidence showing that Weaving was limited in his ability to work compared to “most people in the general population.” See 29 C.F.R. § 1630.2(j)(1)(ii). On the contrary, there is evidence showing that Weaving was in many respects a skilled police officer. ****
Weaving's supervisors recognized his knowledge and technical competence and selected him for high-level assignments. In 2007, before receiving any treatment for adult ADHD, he was promoted to sergeant. In 2009, a psychologist and a physician/psychiatrist both deemed Weaving fit for duty as a
police officer.
 * * * *
Given the absence of evidence that Weaving’s ADHD affected his ability to work, and in light of the strong evidence of Weaving’s technical competence as a police officer, a jury could not reasonably have concluded that Weaving’s ADHD substantially limited his ability to work.

Weaving also claimed substantial limitation in the major life activity of interacting with others. The Ninth Circuit recognizes that as a major life activity.  But, reviewing its own and other courts' decisions, the court said that merely failing to "get along" is not the same as interacting:

Weaving’s interpersonal problems do not amount to a substantial impairment of his ability to interact with others within the meaning of the ADA. Weaving’s ADHD may well have limited his ability to get along with others. But that is not the same as a substantial limitation on the ability to interact with others. See McAlindin, 192 F.3d at 1235; see also Jacques v. DiMarzio, Inc., 386 F.3d 192, 203 (2d Cir. 2004) (distinguishing “‘getting along with others’ (a normative or evaluative concept) and ‘interacting with others’ (which is essentially mechanical)”).
* * *
Weaving was able to engage in normal social interactions. His interpersonal problems existed almost exclusively in his interactions with his peers and subordinates. He had little, if any, difficulty comporting himself appropriately with his supervisors. A case like Weaving’s is what we described in McAlindin as not giving rise to a disability claim.

The court then further explained its ruling, removing the possibility that mere "jerks" can claim they have disabilities.

One who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA. Jacques, 386 F.3d at 203. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.

Right.  On the other hand, those who have a severe inability to relate to others (such as those who cannot relate to anyone, rather than co-workers) may still claim a disability under the court's previous decisions.  I would also point out that the court does not close the door on all persons claiming a disability based on ADHD.  The name of the condition does not matter. It's all about  how the condition's impairment "substantially limits" one or more major life activities.  So, it's possible that another person's ADHD could result in more profound limitations.  Remember too that the effects of medication are irrelevant under California and federal law.

In dissent, Judge Callahan assiduously argued that the majority substituted its judgment for the jury and was unfaithful to the circuit's precedent.  She claimed the majority cherry-picked evidence, rather than simply looked for substantial evidence to support the jury's conclusion.

The opinion in Weaving v. City of Hillsboro is here. 

California Court of Appeal: Fitness for Duty OK after Reinstatement from FMLA Leave

Susan White was an investigator for the LA County District Attorney. She makes a number of errors and acted erratically over the course of several months.  She was making her co-workers nervous about her judgment. She was in a dangerous job, sometimes involving arrest warrants and the like.  She had problems giving testimony at trials, resulting in a defense lawyer filing perjury charges against her.

In 2011, White sought a month of medical leave for her own health condition: her mental health problems.  She provided medical certification and the DA approved her leave under the Federal Family and Medical Leave Act. The court's opinion does not mention the California Family Rights Act.   

Stop me if you've heard this before.  As it turned out, White's doctor was a little overly optimistic about the duration of leave. He extended and extended the leave until the FMLA period expired. The 12 weeks of FMLA were up in August. 

White's doctor finally wrote that she could return to work in September 2011.   The County approved the extended leave.  Then, in September, the County reinstated White to her job, but assigned her to paid leave at home. They had to investigate the misconduct alleged against her before she left. 

The County also required White to attend a fitness for duty examination.  White refused to attend, claiming that the FMLA required her to be reinstated without anything other than her health care provider's certification. 

White sought an injunction against the district attorney, who had sought her medical examination. The trial court granted the injunction, but the Court of Appeal reversed. 

The appellate court said that the County was required to reinstate White to her job upon expiration of the leave based only on her own doctor's certification.  But the court said that the County did just that.

The fitness for duty was to occur after the reinstatement.  White argued that requiring her to undergo this examination was tantamount to interference with her FMLA rights. But the court of appeal was having none of it. 

The court held the County was justified under the ADA to conduct a fitness for duty examination that was job-related and consistent with business necessity. Here, White had engaged in odd behavior in a job requiring good judgment to avoid serious injuries or death.  There was little doubt that the County had the right to examine her under the ADA.  

Here is the money quote:

There is a second reason we reject White’s arguments . . . that a single health care provider’s opinion (i.e., that of the employee’s health care provider) that an employee can return to work from a particular illness or disability is conclusive, and cannot subsequently be questioned by the employer in a FFDE. Public policy rebels at such a thought. The FMLA itself acknowledges that medical professionals can disagree on whether an employee’s serious health condition renders the employee unable to work; it provides for a second opinion on whether an employee qualifies for FMLA leave (29 U.S.C. § 2613(c)) and a third opinion if the first and second opinions are not in agreement (29 U.S.C. § 2614(d)). As such, it is unlikely that Congress intended an employee’s health care provider’s opinion to be conclusive on the employee’s fitness for work. Instead, the FMLA should be interpreted to render the employee’s health care provider’s opinion conclusive on the issue of whether the employee should be immediately returned to work, but to permit the employer to thereafter require a FFDE, if it has a basis to question the employee’s health care provider’s opinion.

So, takeaways:

- reinstate to the original position first; then request the examination

- have an objective reason to doubt the medical certification's clearance to return to work.

- ensure a medical fitness for duty complies with the ADA and FEHA's prohibitions against unlawful medical inquiries.

- if an employee's leave request comes during an employer's investigation into potential misconduct, it is ok to follow through with the investigation when the leave is over.

This case is White v. County of LA and the opinion is here. 

Court of Appeal: Request for Accommodation Not Protected Activity Supporting FEHA Retaliation Claim and Much More

The Legislature passed a paid, organ donation leave provision a couple of years ago (Labor Code Sections 1508-13), which became effective January 1, 2011.  (The court calls it the Donation Protection Act or DPA) Upon hire in September 2010, Scott Rope told his new employer, Auto-Chlor System of Washington, Inc. that he would need time off in February 2011 to donate a kidney to his sister.   When he found out about the new paid leave law, he asked for a longer leave under the new statute.

But Auto-Chlor fired Rope on December 30, 2010, just two days before the effective date of the new law, for poor performance.  Rope sued on a variety of theories.

The court did not allow Rope to sue based on the Labor Code provision, as it did not apply to his employment.  Statutes do not operate retroactively unless the legislature specifies that they do.  This law did not so specify.   But that's not why I posted.

Retaliation for Requesting Accommodation

Although Rope's DPA lawsuit was cut short, he also claimed he suffered retaliation for requesting an accommodation under the Fair Employment and Housing Act.  Putting aside that the request was not for his own disability (he had none), the court addressed whether a retaliation claim will lie when the employee alleges retaliation based on requesting an accommodation under FEHA.  The court held it could not.  First the court defined what type of conduct FEHA retaliation claims may be based on:

Rope alleged he suffered retaliation for engaging in the FEHA ―protected activities of requesting leave for his sister‘s disability/medical condition....The question here is whether Rope‘s request for paid leave as an accommodation qualifies as a ―protected activity within the meaning of section 12940, subdivision (h). ...

Protected conduct under section 12940, subdivision (h) may take many forms. The statute ―makes it an unlawful employment practice [f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.(Yanowitz, supra, 36 Cal.4th at p. 1042.)  ...

FEHA‘s implementing regulations help clarify what constitutes protected activity. They state: ―(a)(1) Opposition to practices prohibited by [FEHA] includes, . . . : [¶] (A) Seeking the advice of the Department [Department of Fair Employment and Housing] or Commission [Fair Employment and Housing Commission], . . . ; [¶] (B) Assisting or advising any person in seeking the advice of the Department or Commission, . . . ; [¶] (C) Opposing employment practices which an individual reasonably believes to exist and believes to be a violation of the Act; [¶] (D) Participating in an activity which is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or [¶] (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act. [¶] (2) Assistance with or participation in the proceedings of the Commission or Department includes, but is not limited to: [¶] (A) Contacting, communicating with or participating in the proceedings of the Department or Commission due to a good faith belief that the Act has been violated; or [¶] (B) Involvement as a potential witness which an employer or other covered entity perceives as participation in an activity of the Department or the Commission.‖ (Cal. Code Regs., tit. 2, § 7287.8, subd. (a).)

And here is the conclusion:

we find no support in the regulations or case law for the proposition that a mere request—or even repeated requests—for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. On the contrary, case law and FEHA‘s implementing regulations are uniformly premised on the principle that the nature of activities protected by subdivision (h) demonstrate some degree of opposition to or protest of the employer‘s conduct or practices based on the employee‘s reasonable belief that the employer‘s action or practice is unlawful....)

So, no retaliation claims based on a requested accommodation. 

Discrimination Based on Association

Rope himself did not have a disability. But he claimed he was "associated" with his sister, who did. The Court addressed (maybe for the first time under FEHA) a claim of discrimination against an "association" with a person who has a disability.  The court relied on a federal case out of the Seventh Circuit, quoting from the opinion:

Three types of situation are, we believe, within the intended scope of the rarely litigated . . . association section. We‘ll call them "expense," "disability by association," and "distraction." They can be illustrated as follows: an employee is fired (or suffers some other adverse personnel action) because (1) (expense) his spouse has a disability that is costly to the employer because the spouse is covered by the company‘s health plan; (2a) (disability by association) the employee‘s homosexual companion is infected with HIV and the employer fears the employee may also have become infected, through sexual contact with the companion; (2b) (another example of disability by association) one of the employee‘s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin); (3) ('distraction‘) the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer‘s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours.

After discussing these categories, the court found that Rope could proceed on his association claim, and the derivative common law claim for wrongful termination:

In our view, Rope has pleaded minimally sufficient facts to state a prima facie ―expense‖ association claim under FEHA The SAC alleges that: From October through December 2010, Rope informed his superiors at Auto-Chlor that he intended to donate a kidney to his sister and that he intended to take a leave of absence to make the organ donation in February 2011; in or about November 2010, Rope informed his superiors about the DPA and requested 30 days paid leave under the DPA, beginning in February 2011; after January 1, 2011, Rope‘s leave under the DPA would cause Auto-Chlor to incur certain expense; and Auto-Chlor terminated Rope‘s employment on the pretext of poor performance on December 30, 2010, two days before the DPA took effect. The reasonable inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope‘s association with his physically disabled sister.

This case is Rope v. Auto-Chlor System of Washington, Inc. and the opinion is here.

American Medical Association Creates Millions of New "Individuals With Disabilities"

At its June 18, 2013 annual meeting, the American Medical Association decided a new "policy":

Obesity as a Disease 

Today, the AMA adopted policy that recognizes obesity as a disease requiring a range of medical interventions to advance obesity treatment and prevention.
“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” said AMA board member Patrice Harris, M.D. “The AMA is committed to improving health outcomes and is working to reduce the incidence of cardiovascular disease and type 2 diabetes, which are often linked to obesity.

The link is here.

Although the effect of this "policy" will have on employment law is unclear, the move could significantly increase ADA / disability discrimination and impose huge new reasonable accommodation obligations on employers. Why? Courts in the past generally have found that obesity in and of itself is not a covered "disability," but its effects (like high blood pressure, type 2 diabetes, heart disease) could be.  (We wrote about this some time ago here.)  If obesity itself is not a disability, the employer would not have a duty to accommodate an obese worker merely because the employee desired adjustments to the work area, for example. It should be noted, though, that some courts more recently have begun to recognize that significantly overweight people might have disabilities or at least be "regarded" as disabled.  The ADA Amendments Act's looser definition of "disability" is making it easier for courts to hold that an employee with nearly any impairment has a disability.

Anyway, if the AMA's recent policy results in more protection for the overweight as "disabled," without a showing of medical complications, then there could be a significant expansion of the duty to accommodate. Employers may have to take into account the obese in office space planning, ergonomics, etc.  What about physical job requirements?  And what of employers who do not hire the obese, or who require / encourage "wellness" plans for the heavyset?  Obese applicants, too, may be able to claim they were not selected due to their disability without any showing that the employer was aware of a latent disability.  

Of course "obesity" is a medical term and does not apply to all overweight people.  And it's too early to know what the AMA's policy statement will mean. But it's worth keeping an eye on this issue and planning for the future.

SV Makes Some Law: No Section 1983 Claims Based on ADA

It's nice to blog about one of your own cases, and even better when it's a victory.  So, Josephine Okwu was a Caltrans employee, who agreed to disability retirement status.  She then wanted to be reinstated from disability retirement status to her former job. Denied, she was unsuccessful under civil service procedure. She then sued CalPERS and Caltrans officials in federal court under 42 U.S.C. Section 1983 for violation of her civil rights.

She had to rely on Section 1983, she believed, because she could not sue her employer, Caltrans, under the Eleventh Amendment.  She could not sue CalPERS, either.  She could not use the ADA to sue the individuals in any court, because individuals cannot be held liable under the ADA.

The district court dismissed the case because Section 1983 cannot be used as a substitute claim for ADA claims that are not viable in federal court. The Ninth Circuit affirmed:

We conclude that Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that Okwu’s allegations of fact do not state a claim under the Equal Protection Clause. We therefore affirm.

The case is Okwu v. McKim and the opinion is here.

9th Circuit Agrees that Medical Marijuana Users Not Protected by ADA

In 2008, the California Supreme Court held in Ross v. Ragingwire Telecomm. Inc. that the California Fair Employment and Housing Act does not protect current users of medical marijuana.  Post here.  Article here.

The Ninth Circuit just held (2-1) that the federal ADA excludes from coverage current illegal drug users and that "illegal" includes marijuana use that would be lawful in California, but is unlawful under federal law:

We hold that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA, and that the plaintiffs' federally proscribed medical marijuana use therefore brings them within the ADA's illegal drug exclusion. This conclusion is not altered by recent congressional actions allowing the implementation of the District of Columbia's local medical marijuana initiative.

The case is James v. Costa Mesa and the opinion is here.

Ninth Circuit Holds Regular Attendance Is Essential Job Function for a Nurse

Some welcome, common sense ADA analysis.  When a job must be performed at the job site, and the employee is not a fungible member of a group of similar workers who can each replace each other, the employer can require regular attendance as a job requirement.

Monika Samper was a neo natal nurse at a Providence Hospital.  She claimed to have Fibromyalgia, which resulted in poor attendance. She violated the attendance policy and was fired.  She wanted essentially a waiver from the policy.

No sale.

It is a “rather common-sense idea . . . that if one is not able to be at work, one cannot be a qualified individual.” Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999). Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as “part of a team.” Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). Other jobs require face-to-face interaction with clients and other employees. Nowak v. St. Rita High Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994) (teacher). Yet other jobs require the employee to work with items and equipment that are on site. EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner, 169 F.3d 481 (production worker); Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer support); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) (computer consultant); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v.Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding clerk under the Rehabilitation Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Rehabilitation Act).

The common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse. This at-risk patient population cries out for constant vigilance, team coordination and continuity. As a NICU nurse, Samper’s job unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, faceto-face interaction with patients and their families, and working with medical equipment face interaction with patients and their families, and working with medical equipment. Samper herself admits that her absences sometimes affected “teamwork and cause[d] a hardship for [her] coworkers who must cover for [her].” Similarly, once at work, Samper’s tasks required her to “lift babies, push cribs and isolettes.” More critically, she had to “get up at a moment’s notice to answer alarms [and] . . . [o]ften . . . run to codes.”
****
Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.

Zing. The case is Samper v. Providence St. Vincent Med. Ctr. and the opinion is here.

U.S. Supreme Court on Ministerial Exception to Title VII

The U.S. Supreme Court decided for the first time that there is a "ministerial exception" to anti-discrimination laws such as the ADA. The lower courts for many years recognized that exception.

At issue was Hosanna-Tabor Evangelical Lutheran Church and School and its discharge of a former teacher, Cheryl Perich. Perich was classified as a "called" teacher, rather than a "lay" one. Called teachers have to satisfy certain requirements, cannot be removed except for cause and by a vote of the congregation, and hold the title “Minister of Religion, Commissioned.”

As a called teacher, Perich 

taught math, language arts, social stud- ies, science, gym, art, and music. She also taught a reli- gion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.

Perich developed symptoms of narcolepsy, which resulted in her inability to perform her job. She later was discharged, after she threatened to file a Charge. The EEOC took up her case and sued on her behalf.

The District Court dismissed the case; the Sixth Circuit reversed, holding that a retaliation claim under the ADA could proceed against the Church.
The unanimous Court, recognizing there is a ministerial exception, put it this way:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The Court did not set out a specific test, but noted that (1) the Church held Perich out to be a minister (2) the Church had a ceremony and the congregation was involved in her investiture (3) she had significant religious training as a prerequisite (4) she held herself out to be a minister and even took a special tax deduction applicable only to members of a ministry (5) her duties involved significant religious teaching activities.


Based on that, the Court decided that Perich met the standards of the ministerial exemption.  The Court was careful to note that the term "minister" was misleading because the exception applies to religions that do not include "ministers."  The Court also refused to address the "parade of horribles" the EEOC argued, such as that Church employers would be exempt from wage-hour or criminal violations towards "ministerial" employees.  


The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Perich and the opinion is here.

Ninth Circuit: No Duty to Accommodate Unqualified Applicant With Disability

Trish Johnson was a special education teacher. She was required to maintain a teacher certification. To do so, she had to satisfy certain continuing education requirements, including having 3 hours of college credit over a five year period.  Johnson failed to complete the college credit on time and told her bosses she would lose her certification. Her school district could have petitioned the state for an exemption, but declined to do so. Johnson lost her certification and was fired.
She sued under the ADA, claiming the school district had to apply for and obtain the exemption as a form of accommodation of her depression and other mental impairments.
Agreeing with the district court, the Ninth Circuit upheld summary judgment. The court held that a plaintiff under the ADA must establish she is a "qualified individual with a disability" or no accommodation is due.
The court noted EEOC regulations provide "that a 'qualified individual with a disability' is one 'who satisfies the requisite skills, experience, education and other job related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m) (emphasis added).
So, the court reasoned, Johnson was required to hold the "requisite" job related requirements of the job without accommodation. She did not maintain the requisite continuing education requirements and, therefore, lost her certification.
So, by way of example given in the opinion, an employer hiring a CPA can require the CPA to be licensed and need not provide "accommodation" that helps the applicant obtain the license (like tutoring).  A law firm does not have to help a law clerk pass the bar, etc.
The case is Johnson v. Bd. of Trustees and the opinion is here.

Ninth Circuit: Ban on Applicants Who Test Positive for Drugs Not ADA Violation

The Pacific Maritime Association has a "one-strike" rule. If you fail a drug or alcohol test during the applicant screening process, you are barred from consideration for employment. Forever.

Santiago Lopez applied for a longshoreman's job, but he tested positive for marijuana. He claims that when he applied, he was addicted. But once he become a recovering addict, he was entitled to reapply with the protections of the ADA.

The Ninth Circuit disagreed, upholding summary judgment. The court said that the one-strike rule applies to anyone who fails a drug/alcohol test, not just addicts or recovering addicts. The employer also had no knowledge that Lopez was a recovering addict, only that he previously had failed the test.

A dissenting judge in this 2-1 opinion would have given Lopez a chance to save his disparate impact claim. Lopez argued that a rule barring all persons from re-applying could have a "disparate impact" on recovering alcoholics/drug abusers. But Lopez did not support that argument with statistical proof and, therefore, the court did not allow the claim to proceed.

The case is Lopez v. Pacific Maritime Association and the opinion is here.

Ninth Circuit: Triable Issue on Accommodation of Hearing Impaired

The EEOC brought suit against UPS Supply Chain Solutions for failing to accommodate a hearing impaired employee. The employee, Mauricio Centeno, was deaf since birth and American Sign Language was his primary language.

He was able to do his job in accounting without a sign language interpreter. But he asked for an interpreter at company meetings. The employer offered post-meeting recaps in writing and contemporaneous notes during the meetings. He also wanted an interpreter's help with respect to certain job training and to understand the company's sexual harassment policy.

The district court granted UPS' motion for summary judgment because, it found, UPS had engaged in an interactive process with Centeno and had provided accommodations that were sufficient to enable Centeno to understand what transpired at meetings, etc.

But the court of appeals reversed. The appellate court held it was a genuine dispute of fact regarding whether the accommodations were effective. The court decided that agendas, contemporaneous notes, and summaries in English were not necessarily sufficient substitutes for a sign language interpreter. The court was especially concerned because Centeno was not proficient at written English, but the court also said it would be a triable issue even if Centeno were fluent in English.

Similarly, the court held that UPS may have failed to accommodate Centeno by delaying Excel training. Centeno claimed he could not read the online training program and required an interpreter. UPS ultimately provided him one, but two years later.

Centeno also complained he did not understand the company's anti-harassment policy and training materials because he was not given a sign language interpreter to read them. The court held that Centeno's professed lack of comprehension was sufficient to put UPS on notice that an accommodation was necessary.

This case raises the bar for employers who employ hearing impaired employees. Even when the hearing impaired can perform essential job functions without interpreters, they may be necessary so the employee can enjoy the "benefits and privileges" of employment.

The opinion is EEOC v. UPS Supply Chain Solutions and the opinion is here.

9th Circuit: No Jury, Compensatory or Punitive Damages for ADA Retaliation

Alvarado sued his former employer, Cajun Operating Co., for retaliation because he complained to an internal hotline about discrimination based on disability, national origin, etc. Before trial, the court granted a motion in limine barring Alvarado's punitive damages, compensatory damage, and jury trial demand. The Ninth Circuit affirmed on appeal.

The analysis is interesting if you like statutory construction cases. I know what you're thinking: Zzz. If you just want the punchline - the Ninth Circuit joined the Seventh in holding that the Americans With Disabilities Act does not provide for compensatory or punitive damages in retaliation cases asserted under the ADA. As with pre-Civil Rights Act of 1991 cases, the only relief available is equitable, which removes the jury trial too. My bold prediction is that Congress will fix this issue in a few weeks or months.

The case is Alvarado v. Cajun Operating Co. and the decision is here.

California Supreme Court LOVES litigation

The California Supreme Court continued its streak of pro-litigation decisions today. What am I talking about? The recent "Tobacco Cases," - expanding the availability of unfair business practice class actions, the anti-arbitration decisions, the pro-class action certification opinions, the Court's common theme lately seems to be - lawsuits good! Too bad the courts are struggling for funds to hear all these cases, there are few disincentives to bring frivolous litigation, and businesses already on shaky financial ground can't afford to be in court. OK, down off the soapbox.

Anyway, in this most recent installment, the California high court considered certified questions from the Ninth Circuit Court of Appeals, including whether proof of intentional discrimination is a required element of claims brought under the Unruh Civil Rights Act. The Unruh Act is the civil rights law that protects the public from discrimination in places of public accommodation. It's the principal state law used in disability access cases. Money damages are available for violations, making the Unruh Act more interesting than laws permitting only injunctions.

This is not an employment law case per se. But many employers operate businesses that are subject to the Unruh Act (retail, restaurants hospitals, etc.) . So, I thought I would mention this case.

The Unruh Act says that a violation of Title III of the ADA (prohibiting discriminating in public accommodations by failure to make facilities accessible) is also a violation of the Unruh Act. The Court decided that because the ADA does not require intentional discrimination in access cases, neither did the Unruh Act. (The rest of the Unruh Act, prohibiting discrimination on a variety of bases, does require intentional discrimination, though, which is why the Supreme Court had to decide the case).

So, disability access litigation is alive and well! The case is Munson v. Del Taco, and the opinion is here.

California FEHC Compares ADA, ADAAA and FEHA

The California Fair Employment and Housing Commission issued a handy chart comparing the original Americans with Disabilities Act, the 2008 amendments (ADAAA), and the Fair Employment and Housing Act's coverage of individuals with disabilities. Here is the chart.

Ninth Circuit Holds Type 2 Diabetic Was Qualified Individual

The Ninth Circuit avoided deciding whether the ADAAA amendments to the ADA are retroactive by holding that a type-2 diabetic had a disability and was a qualified individual under the original ADA.

Larry Rohr was a welder metallurgy specialist for Salt River Project Ag. Improvement and Power District, a political subdivision of the Arizona state government. He developed type-2 diabetes. His doctors imposed a number of restrictions on his diet and prescribed medication. The timing and management of his blood sugar testing, eating, and administration of medication resulted in a number of restrictions. Additionally, because of his medical condition, he was susceptible to a number of symptoms.

At times, Rohr was assigned to work in the field and out of town trips. His doctors, and the company's imposed a number of restrictions on his work, which included extended travel. Ultimately, the company concluded he could not perform his essential job functions and gave him the opportunity to transfer to another job or take early retirement. He sued for disability discrimination under the ADA. The district court granted summary judgment, holding he was not an individual with a "disability" and that he was not "qualified"

The Ninth Circuit disagreed. The opinion discusses at length the limitations on Rohr's ability to eat, including scheduling his meals, eating at certain times, and adjusting medication for food, testing and exercise. The court said not all diabetics are substantially limited, but that Rohr had a number of challenges that seem common to many with the condition. So, particularly under the new ADAAA amendments, it will be nearly impossible to argue diabetes is not a disability after this opinion.

The court then tackled whether Rohr was "qualified" in that he could perform his essential job functions with or without accommodation. Salt River argued Rohr could not pass a respirator test per OSHA standards. The court found a triable issue of fact because: the test was not required by OSHA, Salt River did not consider other testing methods, and the use of a respirator may not have been "necessary" to the job.

The court rather summarily found the parties' disputed whether aspects of Rohr's job were "essential" including the need to travel extensively.

The court also decided that the ADAAA amendments would have lent further support to the conclusion that summary judgment should be reversed. However, the court declined to rule that the amendments applied to Rohr's case, which was filed long before the president signed the 2008 amendments into law. The court's comments on the ADAAA, all dicta, portend tough sledding for employers seeking to challenge whether someone has a "disability" under the new framework.

The deicsion is Rohr v. Salt River Project and the opinion is here.

President Signs ADA Amendments Act

President Bush signed a bill significantly reforming the Americans With Disabilities Act. The new law, which takes effect on January 1, 2009, primarily overturns 9 years of case law interpreting the definition of "disability" under the ADA. Our article on the new law is here. The text of the law is here. Acronym lovers will likely be disappointed by "ADAAA."

DGV