Eeoc: ada case Law Update Joyce Walker-Jones


b. Plaintiff Is Not a Qualified Individual with a Disability



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b. Plaintiff Is Not a Qualified Individual with a Disability
No new cases added.
3. Miscellaneous
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the defendant, the court held that genuine issues of material fact existed as to whether the defendant had made an individualized inquiry to determine whether the plaintiff, who was deaf, was qualified to be a lifeguard. At the post-offer medical examination, the doctor declared the plaintiff to be unqualified immediately after realizing the plaintiff was deaf, without doing any type of individualized assessment. The doctor’s report stated that the plaintiff could be a lifeguard only with constant accommodation (never identified), and even then, the doctor did not think such accommodation would be adequate. The defendant then contacted aquatic safety consultants, who voiced serious doubt about the plaintiff’s qualifications and asserted that, without 100% certainty that accommodations would always be effective, the plaintiff would pose a safety hazard. As a result, the defendant withdrew its job offer. The district court concluded that while the doctor who declared the plaintiff unqualified had not made an individualized inquiry, the ultimate decisionmaker for the defendant had made an individualized assessment of the plaintiff’s ability to be a lifeguard because: (1) county staff had observed him while he took the county’s lifeguard training program to earn certification; (2) staff developed possible accommodations for the plaintiff; and (3) staff and management had supported his hiring. Although the appeals court agreed with this conclusion, it questioned why the defendant then subsequently withdrew its job offer: did the defendant alter its assessment based on a doctor’s report and the advice of the aquatic safety consultants, and if so, did the defendant’s individualized inquiry satisfy the ADA? Noting that it appeared “incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not,” the appeals court remanded the case to the district court to address these issues.

Hohn v. BNSF Ry. Co., 707 F.3d 995 (8th Cir. 2013). Affirming a jury verdict in the employer’s favor, the court upheld the conclusion that the plaintiff was unable to perform the essential functions of a locomotive machinist due to his advanced stage retinitis pigmentosa. The optometrist who diagnosed Hohn placed restrictions on him that prevented him from performing the essential functions of his position, including not walking on uneven surfaces (he’d fallen on such a surface before being diagnosed), only occasional bending or stooping, no operating vehicles or machinery, no climbing ladders or scaffolds, no working at unprotected heights, and no job requiring more than a 15-degree visual field. In short, the doctor recommended that Hohn work only in a confined work station, the opposite of the working environment of a locomotive machinist, which required that he work within, around, over, and under locomotives. Furthermore, the work environment included variable lighting, uneven surfaces, scaffolding, ladders, ramps, stairs, and overhead objects. Hohn disputed his doctor’s restrictions and testified that he ignored them, but he could offer no medical evidence that contradicted them. The court concluded that the ADA does not require an employer to ignore restrictions from an employee’s doctors.
C. Disparate Treatment

1. Generally


Terrugi v. CIT Group/Capital Fin., Inc., 709 F.3d 654 (7th Cir. 2013). The plaintiff, who had several bones removed from his right hand, alleged that his termination was based on disability, age, and retaliation for filing a workers’ compensation claim. Affirming summary judgment for the employer, the court held that the plaintiff’s circumstantial evidence of discriminatory intent was insufficient to raise a genuine issue of material fact under the direct method of proof. Assertions that the employer secretly monitored the plaintiff’s email for a year, did not interview him for a senior position until it had been offered to someone else, and fired him for what he believed to be a minor violation of the company’s confidentiality policy after a very brief investigation did not support his claim under the direct method, because they constituted “an amorphous litany of complaints about a myriad of workplace decisions,” instead of “pointing directly” to discrimination. Comments by the plaintiff’s supervisor about the plaintiff’s retirement plans, being old, and being on drugs were also insufficient, because they were not made around the same time, or in reference to, the termination decision.
Nayak v. St. Vincent Hosp. & Health Care Ctr., 27 A.D. Cas. (BNA) 596, 2013 WL 121838 (S.D. Ind. Jan. 9, 2013). The plaintiff’s medical residency contract was not renewed “due to her medically complicated pregnancy and significant concerns regarding her academic progress,” approximately two weeks after returning from a leave necessitated by post-partum difficulties that included symphysis pubis dysfunction. After allowing the plaintiff’s prong-one (actual disability) claim to proceed, the court dismissed her prong-three regarded-as claim because she did not show that her perceived disability was a but-for cause of the action. In reaching its conclusion, the court relied on Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), and rejected the plaintiff’s argument that Serwatka was effectively overruled when the ADA’s prohibition against discrimination “because of” disability was changed to a prohibition against discrimination “on the basis of” disability by the ADAAA, concluding that this textual change was too small to transform the ADA into a mixed-motives statute.


  1. “Sole Cause” Standard in ADA Cases

No new cases added.


3. Disability-Related Statements as Evidence of Discrimination
No new cases added.
4. Pretext
Smothers v. Solvay Chems., Inc., 740 F.3d 530 (10th Cir. 2014). The plaintiff’s degenerative disc disease caused severe chronic pain and sleeping problems, necessitating frequent intermittent FMLA leave from his surface maintenance mechanic job. After his supervisors complained about the leave and gave him negative performance reviews for absenteeism, the plaintiff was terminated by a “decision making group” of six supervisors, ostensibly for violating safety procedures and engaging in hostile behavior toward a coworker. Reversing summary judgment for the employer, the court held that the plaintiff had raised a jury question as to whether the proffered reasons were pretext for FMLA retaliation and disability discrimination, by identifying employees who had been treated less harshly for similar safety violations. Although the decision making groups were not identical in each case, there was sufficient overlap between the groups to establish that the comparators were “similarly situated.” Five of the plaintiff’s six decision makers participated in at least one of the comparators’ decision making groups, and each of the comparators’ decision making groups contained at least one member of the plaintiff’s decision making group. A finding of pretext was also supported by the employer’s failure to allow the plaintiff to explain or deny his alleged hostile behavior and the employer’s prior retaliation and bias against the plaintiff for taking FMLA leave.
Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013). Thirteen years after she began working as an administrative assistant, and seven years after she first developed chronic fatigue syndrome, fibromialgia, and chronic depression, the plaintiff was issued a “final warning letter” citing recent problems with work performance, conduct, and attendance, stating that she would be terminated if she did not make adequate progress, and notifying her that she would be required to “key” 3.75 boxes of scanned claim files per week. The plaintiff was terminated when, after being told by her supervisor that she had failed to meet that week’s keying quota, she accused the supervisor of lying and “blew her stack.” Affirming summary judgment for the employer, the court found that the plaintiff failed to support an inference that the employer’s reasons for terminating her – inadequate performance and insubordination – were pretext for disability discrimination where the same supervisor had previously allowed her to take daily naps and unlimited absences as reasonable accommodations, provided her with two years of disability leave, and promoted her after she returned to full-time workyears before she was terminated.
D. Reasonable Accommodation
1. Notice of the Need for Reasonable Accommodation
Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that the plaintiff did not request a reasonable accommodation when she initially informed her employer that she had difficulty walking from her assigned parking place to her office, because she did not specifically ask for an accommodation. However, the court found that she requested a reasonable accommodation for her multiple sclerosis more than two months later when she submitted a list of medical restrictions from her doctor, including one asking for “specified parking . . . if possible.” Although the plaintiff also alleged that she requested that her work be proofread by another employee as a reasonable accommodation, the court found no evidence that she informed her employer that her poor written work was related to her disability or asked for a reasonable accommodation for her written work.
Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013). Affirming summary judgment for the defendant, the court held that an employee with fibromyalgia and chronic fatigue syndrome who had received reasonable accommodations failed to request additional ones and therefore the defendant was not liable for failing to provide them. In response to a doctor’s note, the defendant permitted Lenzen to nap each day and gave her time off for frequent medical appointments. The defendant also reduced her job requirements. Lenzen claimed that she should have been paid for the time she spent taking naps and that “at times” the defendant failed to provide her with a private office in which to nap, forcing her to sleep on the floor or at her desk. There was no evidence, however, that Lenzen asked for a better space in which to nap or to be paid for this time. Furthermore, she presented no evidence that the places where she napped negatively impacted her medical condition or her job performance.
2. Interactive Process

EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary judgment for the employer, the court held that the employer, which had rejected a request to telework for a large portion of the work week, should have used the interactive process to explore reasonable alternatives. As a result of irritable bowel syndrome, Jane Harris, a resale buyer, requested authorization to telework on an as-needed basis up to four days a week as a reasonable accommodation. Ford denied the request and proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. The court stated that it was Ford’s responsibility to engage in an interactive process with Harris if it objected to her teleworking up to four days a week. Harris had been willing to discuss alternatives, including telecommuting for only one to two days per week. Having failed to engage in this discussion, Ford could not show that no telework arrangement was reasonable. The court also rejected Ford’s argument that its offer to provide alternative accommodations, which Harris rejected, meant she was not qualified for the job. Alternative accommodations must adequately meet an employee’s needs, and the evidence suggested that Ford’s two alternatives – moving her closer to the bathroom and finding a reassignment that permitted telework – would not have effectively met Harris’s needs. Even standing up from her desk could have caused Harris to soil herself, so proximity to the bathroom would not necessarily have resolved this issue. Contrary to the dissent, the court concluded that it was not reasonable to expect Harris to tolerate the “humiliation” of soiling herself on a regular basis in front of coworkers, merely because she could use Depends or bring a change of clothing. As for reassignment, the court noted that Ford offered only to look for a position, not guarantee it could move her into one. While an employer normally may choose between “reasonable options,” choosing reassignment here was not an effective accommodation because the telework she had requested in her current position might have been effective.


Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether the employer committed an independent violation of the ADA by failing to engage in good faith in the interactive process. After developing monocular vision, the defendant fired the plaintiff, a firefighter, because of his inability to drive a fire apparatus under emergency lights. The court found that the plaintiff had requested two reasonable accommodations – reassignment of the marginal function of driving the fire truck and reassignment to a new position. The court noted that the defendant ignored evidence that driving the vehicle during an emergency was not an essential function and instead made a preemptory decision that Rorrer was unqualified to remain in the firefighter position. Similarly, the defendant’s refusal to discuss reassignment suggested bad faith, reinforced by its insistence that Rorrer would still have to be able to perform the driving requirement even though there was no indication that anyone in the new position ever actually drove a fire truck during an emergency. The record suggested that, if the defendant had engaged in a good faith interactive process, it could have reassigned Rorrer without having to modify any actual job duties.
Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014). Reversing summary judgment for the employer, the court held that the employer violated the ADA by abruptly ending the interactive process and terminating the plaintiff, when further engagement would have identified a reasonable accommodation. After repeatedly falling asleep at work, the plaintiff received a warning of possible termination and was notified that she could submit information relevant to this determination. A few days later she informed Human Resources (HR) that a medical condition might be responsible for her sleeping episodes, and was given a medical questionnaire for her doctor to fill out that was due two weeks later. The doctor checked the box indicating that the plaintiff had an ADA disability, recommended periodic breaks, and noted he was conducting additional medical tests. The plaintiff immediately returned the paperwork to HR, well within the two-week deadline, but the company proceeded with termination. A month later, the plaintiff received a definitive diagnosis of narcolepsy, which is manageable with proper medication.
The court noted that the employer had not yet decided whether to fire the plaintiff when she notified the company that she might have a medical condition causing the sleeping episodes. The defendant correctly began the interactive process by giving the plaintiff the medical questionnaire for her doctor, but it did not engage her further when it received the completed document and instead disregarded it. The court rejected as insufficient the defendant’s claim that it engaged in the interactive process by giving the plaintiff the medical questionnaire. The defendant claimed that it was not required to accept the doctor’s “opinion” that the plaintiff had an ADA disability, but the court noted that the company chose not to seek clarification from the doctor about the severity of her condition or to inquire what reasonable accommodations might be effective. Although failure to engage in the interactive process is not an independent basis for liability, a violation may be found if failure to engage in this process prevents identification of an appropriate accommodation. Here, the evidence suggested that a reasonable accommodation was “readily available” in that the plaintiff needed only further medical testing and a prescription to control her narcolepsy.
Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4th Cir. 2013). Affirming summary judgment for the employer, the court held that an employer is not liable for failing to engage in an interactive process where an employee is unable to provide evidence that his requested reasonable accommodation – here, a two-day extension of leave – would have enabled him to return to work. The defendant had already granted the plaintiff six weeks of leave to obtain treatment for a serious eye infection, which it extended for two additional weeks, and then it granted one extra day of leave. When the plaintiff arrived at work on his anticipated return date, he presented a doctor’s note requesting two more days of leave with a return date of April 9, 2010. The employer denied the requested accommodation and fired him. The court noted that there was no evidence that, if the defendant had engaged in a good faith interactive process, a reasonable accommodation would have been found that would have enabled the plaintiff to resume performance of his essential functions. Although the plaintiff testified that he resumed looking for a job about 10 days after his termination, this testimony did not establish that he could have returned to work with a two-day extension of leave.
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the employer, the appeals court instructed the district court on remand to address whether the defendant had failed to engage in an interactive process. The district court did not address this issue because it had found that the plaintiff had failed, as a matter of law, to identify an accommodation that was objectively reasonable, a conclusion the appeals court found was erroneous for summary judgment purposes. The plaintiff, a deaf individual who applied to be a lifeguard at a wave pool, argued that the defendant failed to discuss with him concerns raised by the doctor who conducted the post-offer examination and by aquatic safety consultants. The plaintiff maintained that if the defendant had engaged in an interactive process, it would have learned about his ability to detect loud noises through his cochlear implant. He also could have clarified that he did not need sign language interpreters to perform his essential functions but only for staff meetings and classroom instruction. Finally, the plaintiff could have referred the defendant to individuals with expertise regarding the ability of deaf people to be lifeguards.
Basden v. Professional Transp., Inc., 714 F.3d 1034 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that even though the record suggested that the employer’s response to Basden’s request for a 30-day leave of absence was not “appropriate,” the employer did not violate the ADA since failure to engage in the interactive process is not an independent basis for liability and the employee failed to show that she could work with a reasonable accommodation.
Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that the defendant’s efforts to provide the plaintiff with an appropriate parking space met its reasonable accommodation obligation, even if it took several months for the plaintiff to finally receive a parking space that effectively met her needs. The court also found that the defendant’s efforts to give her a printer near her office were sufficient. The court noted that reasonable accommodation is “a process, not a one-off event.” The ADA does not require that an employer provide an employee with the specific accommodation requested but rather engage the employee in an interactive process to determine what would be an effective accommodation. In this case, the plaintiff developed multiple sclerosis and submitted a list of medical restrictions, including one asking for “specified parking . . . if possible.” In response, the defendant assigned the plaintiff to a lot across the street from her worksite. About three months after her initial request, she submitted a doctor’s note asking for a parking space in her building because parking in the new lot required more walking than she could handle. The defendant responded about six weeks later by giving her visitor parking passes for the underground lot beneath her building and for street parking, but these proved ineffective because the spots she required were often full when she arrived. The plaintiff informed the defendant of the problem, and within a few weeks, after another employee left his position, she received his permanent underground parking space. The court stated that there was no way for the employer to have known that the initial parking spaces provided would turn out to be insufficient. Furthermore, each time the defendant learned an accommodation was not working, it acted with “reasonable speed” to provide a new one. Regarding the printer, the defendant took between two weeks and one month to provide the plaintiff with a printer for her office after she requested one. The plaintiff argued that the defendant should have immediately bought her a printer or given her a temporary one to use. However, the fact that the defendant ultimately took a printer from another employee suggested there were no printers to lend to the plaintiff, and as a governmental entity it had a responsibility to evaluate alternative accommodations before spending taxpayer money. The issue was not whether the defendant could have chosen another accommodation but whether the chosen accommodation, in light of all the facts, was reasonable. Under this standard, a delay of several weeks before providing an effective accommodation was not unreasonable.
James v. Hyatt Regency Chicago, 707 F.3d 775 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that the plaintiff’s delayed return to work was caused by his failure to clarify the meaning of several doctor’s notes indicating an inability to perform the essential functions of his banqueting job, rather than by the employer’s refusal to resume providing accommodations given before the plaintiff’s use of extended medical leave. The plaintiff had a vision problem that was exacerbated when he developed a retinal detachment requiring corrective surgery. Prior to this, the defendant had provided reasonable accommodation for over 20 years (increasing the print size of his work assignments and schedules). The plaintiff was granted FMLA leave and, when that was exhausted, he received leave under the collective bargaining agreement. After the expiration of the FMLA leave the plaintiff provided notes from his doctor, one of which stated that he would not be able to work until early August (about three weeks after the expiration of the FMLA leave). The plaintiff did not return to work in August but submitted a note from a different doctor in late September saying he could return to work with the restrictions of no heavy lifting or excessive bending. In response, the defendant tried unsuccessfully to obtain more information about the restrictions; the defendant made a second unsuccessful attempt to obtain information in December. In January 2008 the defendant contacted the first doctor to ask about the plaintiff’s medical condition and was informed that the plaintiff could return to work. The defendant then met with the plaintiff who sought and was granted two weeks of paid vacation. The plaintiff returned to work in mid-February. The plaintiff alleged several FMLA violations and that the defendant’s delay in returning him to work resulted from its wish to avoid providing the reasonable accommodations he had received for the past two decades. The court concluded that the defendant’s refusal to reinstate the plaintiff was unrelated to the need to continue providing reasonable accommodations that it had provided for over 20 years; rather, reinstatement was denied because the plaintiff and his doctors did not provide more specificity about the need for light duty or certain restrictions that would prevent performance of the essential functions of his job.


  1. Job Restructuring, Other Alterations to the Job or Work Environment, Part-Time Work, and Modified Work Schedules


Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). After the plaintiff developed monocular vision, the defendant fired him because he could not drive a fire apparatus under emergency lights. Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether the function of driving a fire apparatus under emergency lights could have been reassigned to another firefighter. If this job duty was not an essential function, then it could have been assigned to another firefighter as a reasonable accommodation.
McMillan v. New York, 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the employer, the court held that the plaintiff had suggested two plausible reasonable accommodations to address his disability-related tardiness, thereby raising a material factual issue as to whether he could perform the essential functions of a case manager. The employer’s flex-time policy permitted employees to arrive between 9 and 10:15 a.m. A supervisor could approve or disapprove a late arrival, and if approved, the employee could apply accumulated leave or “banked time,” i.e., to cover the time missed. Employees were required to work 35 hours per week, and they had a mandatory one-hour lunch period in which they were prohibited from working without prior approval. Due to medication taken for his schizophrenia, the plaintiff was drowsy and sluggish in the morning, often resulting in arrival after 11 a.m. For a period of at least 10 years, the plaintiff’s tardy arrivals were explicitly or implicitly approved, allowing him to use banked time to make up for his late arrival. But, in 2008, management decided to stop approving the plaintiff’s late arrivals, prompting him to request repeatedly that he be given a later start time because of the side effects of his medication. The employer refused, stating that he could not work past 6 p.m. without a supervisor present. The plaintiff noted that he often worked past 7 p.m. and that the office was open until 10 p.m., so that his request to work later would permit him to arrive after 10:15 yet meet his 35-hour requirement and bank extra hours to use when he was tardy. Alternatively, the plaintiff proposed that he be allowed to work through lunch to bank time.
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the employer, the court held that genuine issues of material fact existed as to whether job restructuring, a form of accommodation listed in the statute, would have enabled a deaf individual to perform the essential functions of a wave pool lifeguard. Communicating was an essential function in order to supervise water activities, enforce safety rules, maintain water areas, and teach swim lessons. Evidence showed that several accommodations initially proposed by a defendant official would have allowed the plaintiff to perform the essential function of effectively communicating while on duty, at little or no cost to the defendant. For example, the plaintiff could have carried laminated note cards to communicate with guests in non-emergency situations; he could have used his whistle and gestures to enforce pool rules; and he could have looked at other lifeguards while visually scanning his zone of the pool to determine if they were entering to assist a swimmer. The defendant official also had suggested modifications to their emergency action plan involving using visual signals that would improve the effectiveness of emergency response for all lifeguards and therefore was to be implemented even if the plaintiff was not working. The court acknowledged testimony by the defendant that other employees may have had to assume extra duties because of the plaintiff’s deafness, but this was insufficient to grant summary judgment. Evidence suggested that the duties to be reassigned might have been marginal ones, such as answering general questions from patrons (other employees might have had primary responsibility for this duty), using a megaphone or radio, handling first aid needs, and working at the slide (a popular rotation for other lifeguards).
Olsen v. Capital Region Med. Ctr., 713 F.3d 1149 (8th Cir. 2013). Affirming summary judgment for the employer, the court held that, despite a number of reasonable accommodations provided by the employer, a mammogram technologist with continuing, unpredictable epileptic seizures that caused loss of orientation and muscle control was not qualified for her job. The job included positioning patients in the mammography machine, operating the radiographic equipment, and tending to the patients’ physical and psychological needs. Between July 2008 and August 2010, Olsen had 14 seizures at work, including some in which she suffered serious injuries and two seizures in the presence of patients receiving mammograms. During this period, the defendant provided a number of reasonable accommodations to eliminate environmental triggers, including removing mold, investigating cleaning agent ingredients, having other technicians handle patients who wore heavy perfume, installing anti-glare filters on lights, eliminating scrolling from computers, covering x-ray films to reduce brightness, permitting Olsen to wear sunglasses, and educating Olsen’s coworkers about epilepsy and how to treat someone having a seizure. Despite these accommodations, the seizures continued and the defendant ultimately fired her. The court noted that the defendant had clearly engaged in an interactive process with Olsen and attempted numerous reasonable accommodations, but nothing had eliminated the seizures. Olsen claimed the defendant could have provided her with intermittent rest as a reasonable accommodation, but produced no evidence that this would have eliminated the seizures and permitted her to perform her essential functions, including the ability to ensure patient safety. Her continued periods of incapacitation, despite the accommodations, made her unqualified.
4. Leave
Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4th Cir. 2013). Affirming summary judgment for the employer, the court held that an employee who was unable to provide evidence that he would have been able to return to work at the end of a requested two-day extension of leave was not qualified for his job processing inventory and loading merchandise. Five months after starting work with the defendant, the plaintiff (who was blind in one eye) developed a serious inflammatory condition in his one remaining eye. The defendant granted him an initial six-week leave of absence to obtain treatment, followed by two additional weeks. The plaintiff’s doctor released him to return to work on April 6, but that day his vision remained blurry. The plaintiff immediately notified the defendant that he was still having significant vision problems, and the company granted him one more day of leave. The plaintiff’s condition worsened, and he went to the emergency room at the local hospital. From the hospital he drove to the defendant’s worksite with a discharge letter saying that he could return to work in two days. Since the plaintiff acknowledged he could not return to work that night as previously agreed, the company terminated him, stating that he could reapply after his condition improved. The court found the plaintiff’s testimony that he was able to look for work within 10 days of his termination to be insufficient evidence that he could have performed his essential functions if he had been given the two additional days of leave requested.
Basden v. Professional Transp., Inc., 714 F.3d 1034 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that Basden failed to produce evidence that her request for a 30-day leave of absence would have permitted her to return and perform the essential functions of her position on a regular, reliable basis. Basden, a train dispatcher, was permitted seven unexcused absences under company policy, but an eighth could result in termination. She was given a preliminary diagnosis of multiple sclerosis after her third absence but could not get an appointment with an MS specialist for several months. She provided doctor’s notes for all her absences. A month before her appointment with the MS specialist, Basden requested a 30-day leave of absence due to complications from MS. By this time she had accumulated six unexcused absences. Under company policy any employee with at least a year’s tenure could request an unpaid 30-day leave of absence, but Basden was a little over a month shy of meeting this requirement. The request was denied, and when she was unable to return to work, she was fired. The court noted that Basden received a confirmed diagnosis of MS after her late June appointment with a specialist and began taking medication in the weeks after that. The record did not show, however, that the medication immediately alleviated her symptoms such that she would have been able to return to work without further absences. Basden testified that her condition got worse after she left the defendant but then eventually stabilized. The record also indicated that, during the short time she worked in her next job, she required two weeks of leave because of her MS. Therefore, the court concluded that the evidence did not show that a combination of the 30-day leave requested and medication would have permitted the essential job requirement of regular, reliable attendance.
5. Reassignment
EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary judgment for the employer, the court stated that although an employer ordinarily may choose from among several reasonable accommodations, the employer cannot choose reassignment when it is possible to provide a reasonable accommodation in the employee’s current job without causing an undue hardship. As a result of irritable bowel syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable accommodation. Ford denied the request and proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. Among the reasonable accommodations proposed by Ford was to find a different job that could better accommodate Harris’s wish to telecommute. The court noted that there was no evidence that Ford actually had a vacant job to which Harris could have been reassigned and which would have permitted her to telework. Furthermore, since the court found that teleworking might have been feasible in Harris’s current job, reassignment would have been inappropriate.
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether a firefighter who developed monocular vision could be reassigned to a fire inspector position. The defendant maintained there were no vacancies when the plaintiff requested reassignment, but evidence showed that another employee was getting a promotion, thereby creating a vacancy. The defendant also argued that the position at issue was not really a different position but rather a firefighter position (for which the defendant maintained the plaintiff was not qualified because he could not drive a fire vehicle during an emergency) with different job duties. The court found this argument “lack[ed] merit” because the purpose of the fire inspector position was to prevent fires, not fight them. Furthermore, the defendant did not dispute that the plaintiff had the “expertise, training, and certification” to carry out the new job duties. Although the defendant also pointed to the job description for a fire inspector, which listed the firefighter job functions (including driving vehicles during an emergency), the court concluded that a simple reasonable accommodation would have been to modify its job description for the plaintiff, which would not have required any change in the actual duties he would have had to perform as a fire inspector.
Henschel v. Clare Cnty. Rd. Comm’n, 737 F.3d 1017 (6th Cir. 2013). Affirming summary judgment for the employer, the court held that an employer was not required by the ADA to violate a collective bargaining agreement and that a union was not required to remove a more senior employee from his position in order to provide a reassignment to Henshel, an excavator operator. As the result of an above-the-knee leg amputation necessitated by a motorcycle accident, Henshel was no longer able to haul an excavator to the worksite. The union had considered removing a more senior employee to create an opening in a job that Henschel was qualified to perform, but decided against this. The CBA did not permit the employer to unilaterally reassign an employee into a new job, and the ADA did not require the defendant to create a job so that it could reassign Henschel.
Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736 (10th Cir. 2013). Affirming summary judgment for the employer, the court held that a deputy sheriff failed to identify an appropriate vacancy to which he could have been reassigned. The plaintiff had a stroke, and based on a psychological fitness-for-duty examination, he was removed from his position and placed temporarily in an emergency management position. After the county cut funding for this position, there were no other vacant positions to which the plaintiff could have been reassigned.
 6. Working at Home or from a Remote Location
EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine factual issue whether telework was an effective reasonable accommodation for a resale steel buyer. As a result of irritable bowel syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable accommodation. Ford denied the request and proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. While the court acknowledged case law that held that telework was rarely an effective reasonable accommodation, it also observed that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded” as a result of technological developments. Although Harris had work problems when she had a flex-time arrangement for her disability, telework did not raise the same concerns because she would work normal business hours. The problems Harris experienced while she worked a flex-time schedule all occurred because she was working during non-core hours, not because she was working from home. Furthermore, it was Ford that prohibited Harris from working at home during core hours, leaving her no choice but to work during non-core hours when she could not consult with colleagues. With telework, Harris would be available for an emergency or to join in an impromptu meeting during core hours. Similarly, to the extent coworkers had to take on some of Harris’s job duties, it was because she was not working during normal work hours. Mistakes made by Harris because she could not consult after hours with others would not have occurred if she had been working a regular schedule from home. Ford offered no evidence that telework was “inherently problematic.” Finally, the court rejected Ford’s argument that telework was not a reasonable accommodation given Harris’s attendance problems, noting that her attendance issues were the result of her disability. An employer cannot deny a reasonable accommodation that could eliminate performance problems created by a disability.
 7. Changing Supervisors
No new cases added.
8. Stress-Free Job
No new cases added.
9. Workplace Free of Chemical Irritants
No new cases added.
10. Monitoring Medication and Effects of Disability
No new cases added.
11. Modifying Workplace Policies
No new cases added.
12. Job Coaches/Assistance from Other Employees
No new cases added.
13. Benefits and Privileges of Employment
Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013). An employee requesting a reserved on-site parking space as a reasonable accommodation does not have to show how the accommodation will enable her to perform her essential functions. Nothing in the text of the statute suggests that there must be a nexus between a requested reasonable accommodation and the essential functions of an employee’s position. Providing the requested accommodation could be viewed as making the employee’s workplace “readily accessible to and usable by” her, one of the statute’s examples of a reasonable accommodation. The court cited the EEOC regulations, which state that reasonable accommodation includes modifications that enable an employee to enjoy equal benefits and privileges of employment. Also, the appendix to the regulations notes that providing a reserved parking space may be a reasonable accommodation.
14. Burdens of Proof
Majors v. General Elec. Co., 714 F.3d 527 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that because the plaintiff failed to show that she could perform the essential functions of her position with a reasonable accommodation, the employer was not required to show that her proposed accommodation would cause an undue hardship. The plaintiff was denied a promotion because she was prohibited from lifting over 20 pounds due to a work injury. The court held that an essential function of the position required lifting more than 20 pounds. As a result, it rejected the plaintiff’s suggested reasonable accommodation that another employee could lift these heavy objects instead. Since the plaintiff’s proposed accommodation was unreasonable as a matter of law, the defendant was not required to show that it caused an undue hardship.
15. Sign Language Interpreters
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the employer, the court found sufficient evidence to create a genuine issue of material fact as to whether providing sign language interpreters for staff meetings and further classroom instruction was objectively reasonable for a deaf individual applying for a lifeguard position at a wave pool. The plaintiff never requested sign language interpreters to perform his essential functions, and he presented testimony by several experts that the ability to hear is not necessary for someone to perform the essential functions of a lifeguard. Testimony by the doctor who conducted the post-offer examination and by aquatic safety consultants that full-time interpreters would be necessary to perform the essential functions was insufficient to grant summary judgment, given that these individuals had no direct knowledge, education, or experience regarding deaf individuals serving as lifeguards. The court noted evidence of the plaintiff’s successful completion of his lifeguard training courses as demonstrating the effectiveness of providing interpreters for classroom instruction. The court observed that sign language interpreters are listed as a possible form of reasonable accommodation in the statute and concluded that provision of interpreters could easily be deemed reasonable when they would be needed only on occasion, such as for staff meetings and training. Moreover, given the limited situations in which the accommodation would be needed, the benefit of the accommodation would appear to be proportional to its cost. Finally, the defendant had not argued that providing interpreters would pose an undue hardship.
E. Drug and Alcohol Use
Shirley v. Precision Carparts Corp., 726 F.3d 675 (5th Cir. 2013). After overdosing on Vicodin, the plaintiff entered an in-patient treatment program that required him to abstain from opioid use before returning to his extrusion press operator position. After the plaintiff prematurely checked out of the program, the employer notified him that his failure to complete it was grounds for dismissal. The employer permitted him to reenter the program, but terminated him after he again prematurely checked out of the program. The plaintiff argued that he was not excluded from the definition of “qualified individual” under section 12114(a), even though he was “currently” engaging in the illegal use of drugs for purposes of that subsection, because the decision to terminate him was not “made on the basis of [his illegal drug] use,” but rather on the basis of his failure to complete the drug treatment program. The court rejected this argument because the requirement to complete in-patient treatment was itself based on his illegal drug use. In the alternative, the plaintiff argued that he was exempted from the section 12114(a) exclusion under section 12114(b)(2), because he was “participating in a supervised rehabilitation program,” and had not engaged in illegal drug use for eleven days at the time of his termination. The court rejected this argument because use of the section 12114(b)(2) safe harbor requires a “significant period of recovery” and sufficient additional facts to justify a reasonable belief that drug use is no longer a problem for the individual in question, rather than “mere entry” into a rehabilitation program.
F. Defenses
1. Direct Threat
a. Threat to Self
No new cases added.
b. Individualized Assessment Required
No new cases added.
c. Threats of Violence
No new cases added.

2. Undue Hardship

EEOC v. Ford Motor Co., 29 A.D. Cas. (BNA) 1140, 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary judgment for the employer, the court found no evidence that permitting an employee to telework as much as four days a week would cause an undue hardship. As a result of irritable bowel syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable accommodation. Ford denied the request and proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. The court found sufficient evidence that teleworking might have been a reasonable accommodation. It also concluded that Ford had not met its burden on summary judgment to show that this accommodation would have caused an undue hardship. Although a reasonable accommodation could cause some hardship to an employer, the ADA requires a higher standard than that to justify a denial. Thus, while it would have entailed some cost to set up a home workstation for Harris, the cost would likely have been “de minimis,” given Ford’s financial resources and the size of its workforce. Furthermore, Ford had a written telework policy that agreed to pay such costs for all employees approved to telecommute.


Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). The defendant’s undue “burden” defense mirrored its argument that driving a fire apparatus under emergency lights was an essential function of a firefighter. After finding that this function might not be essential and that it would have been possible to reassign the function (as a marginal function) to another firefighter, the appeals court concluded that there was insufficient evidence to support the district court’s grant of summary judgment on the grounds that excusing a firefighter who developed monocular vision from driving an emergency vehicle would cause an undue hardship.
McMillan v. New York, 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the employer, the court held that the record did not support a finding of undue hardship as a matter of law regarding two possible accommodations to address the plaintiff’s disability-related tardiness. The plaintiff, a city case manager, proposed being allowed to work past the normal 6 p.m. quitting time or being given approval to work through his lunch hour in order to “bank” time to use when he was late arriving at the office due to the side effects of medication taken for his schizophrenia. The defendant denied the plaintiff’s request to work past 6 p.m., stating that he could not work without a supervisor present. The defendant contended that requiring a supervisor to work past 6 p.m. would be an undue hardship, but the court noted that the record did not address times when it appeared that the defendant had permitted the plaintiff to work unsupervised. The plaintiff claimed that he often worked past 7 p.m., and it seemed that the plaintiff worked unsupervised when he made home visits to clients. Regarding the plaintiff’s proposal to work through lunch, the appeals court disagreed with the district court’s conclusion, without any analysis, that this would have caused an undue hardship. The court noted the city’s policy of permitting supervisors to approve an employee’s request to work through lunch and concluded that such pre-approval did not seem to require significant difficulty or expense.
3. Job-Related and Consistent with Business Necessity
EEOC v. Walgreen Co., -- F. Supp.2d --, 2014 WL 1410311 (N.D. Cal. April 11, 2014). Denying summary judgment for the employer, the court held that factual issues exist as to whether the employer failed to accommodate a diabetic employee who was discharged for violating the stores “anti-grazing” policy during an alleged hypoglycemic attack. The court stated, “Here, whether it was a business necessity to treat [plaintiff] the same as other employees who had been fired under the anti-grazing policywhen [plaintiff] claims taking the chips was necessitated by her medical condition is a question of fact for the jury.”
4. Other Federal Laws
Samson v. Federal Express Corp., 746 F.3d 1196 (11th Cir. 2014). Reversing summary judgment for the employer, the court held that the Federal Motor Carrier Safety Regulations (FMCSRs) do not require a mechanic who will not engage in interstate driving to have a commercial driver’s license (CDL). Therefore, Samson’s failure to pass the medical examination (due to insulin-dependent diabetes) required to get a CDL was not a legitimate reason to deny him the position. The Federal Highway Administration’s guidelines interpreting the regulations clearly state that intrastate drivers of an interstate motor vehicle are not subject to the FMCSRs except in one circumstance that was not relevant here. The defendant claimed that test driving vehicles was an essential function of the mechanic position and that it was required to comply with the FMCSR, but the court found that any test driving by a mechanic would not include the interstate transport of property or passengers that triggers coverage by the FMCSRs. An opinion letter issued by the Chief Counsel for the Federal Motor Carrier Safety Administration made a similar determination involving almost identical hypothetical facts.




H. Exams and Inquiries
Owusu-Ansah v. Coca-Cola, 715 F.3d 1306 (11th Cir.), cert. denied, 134 S. Ct. 655 (2013). The plaintiff, a customer service representative at a call center, generally worked from home but was required to report to the center for certain meetings. During one such meeting with his supervisor, the plaintiff raised several incidents of alleged mistreatment by his managers and coworkers over the course of his employment and, according to his supervisor, became agitated, banged his hand on the table, and said that someone was “going to pay for this.” Concerned that the plaintiff had made a threatening statement (even though he was not asked for his version of what happened in the meeting), the defendant requested that he meet with an independent psychologist who specialized in crisis management and threat assessment. After meeting with the plaintiff, the psychologist expressed to the defendant that there was a “strong possibility that [plaintiff] was delusional” and recommended that he be placed on paid leave to allow for further evaluation. The psychologist also recommended that the plaintiff undergo a psychiatric fitness-for-duty examination. Addressing a matter of first impression, the Eleventh Circuit held that an individual need not prove that he is “disabled” to challenge an alleged unlawful disability-related inquiry or medical examination. However, despite finding that the plaintiff could assert a claim, the court found that he failed to rebut the defendant’s showing that the examination was job related and consistent with business necessity, i.e., that management had “a reasonable, objective concern about [his] mental state, which affected job performance and potentially threatened the safety of its other employees.” In reaching this conclusion, the court noted that although the plaintiff generally worked from home, he had access to the call center and was required to report there for meetings. Because the defendant had the plaintiff’s supervisor’s account of the plaintiff’s conduct and statements at the meeting and had received observations and recommendations from the consulting psychologist, the defendant “had sufficient objective evidence that [the plaintiff] had a potentially dangerous mental condition.”
EEOC v. United States Steel Corp., 2013 WL 625315 (W.D. Pa. Feb. 20, 2013). EEOC challenged the defendant’s policy, which had been negotiated with the employees’ union, of randomly testing probationary steelworkers for drugs and alcohol, arguing that medical examinations of employees must be job-related and consistent with business necessity (i.e., an employer must have a reasonable belief that a particular employee may pose a direct threat because of a medical condition). After considering the relevant legal authority and legislative history behind the ADA’s prohibition on medical examinations or inquiries, as well as the nature of the testing policy in the context of a busy steel factory, the court found that the defendant’s policy of randomly testing probationary employees was job-related and consistent with business necessity within the meaning of §12112(d)(4)(A). In reaching this conclusion, the court relied on evidence that probationary employees work closely with molten coke that reaches a temperature of more than 2,000 degrees Fahrenheit, and, therefore, must be alert at all times. The court also noted that the drug and alcohol tests were practical and fair because protective gear worn at the plant made it impossible to otherwise determine if an employee was intoxicated while working. Finally, the court reasoned that the defendant’s policy of randomly testing employees for drug and alcohol abuse functioned to deter employees in safety-sensitive positions from working under the influence.


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