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«Brief No. 22 EMPLOYMENT May 2014 Legal Briefings Prepared by: Barry C. Taylor, Vice President of Systemic Litigation and Civil Rights and Rachel M. ...»

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In other cases, however, employees have successfully shown that lifting is not necessarily essential, especially when the employees have worked in the position for a number of years without lifting. In Zombeck v. Friendship Ridge, a nurse aide with a lifting restriction worked at a long-term nursing home facility.86 Concluding that lifting was not an essential function, the court conducted an extensive analysis, reviewing almost all of the factors noted as determinative by the EEOC. Specifically, the court stated that the nurse aide position did not exist so that nurse aides may lift; allowing or not allowing the plaintiff to lift appeared to have no effect on the number of employees required to lift since she had held the title of nurse aide for thirteen years without lifting;

and lifting was not a highly specialized function nor was the plaintiff hired for her lifting ability. Further, the court reviewed the employer’s job description, and emphasized that “helps transfer” was listed as an essential function, but lifting was not. While “lifting” was listed as a physical demand, the court explained that a “‘physical demand’ is not tantamount to it being considered an essential function.”87 The court found persuasive the fact that the plaintiff did not lift for a thirteen-year period, but maintained the title of “nurse aide” without receiving any unsatisfactory formal performance evaluations, demonstrating that her inability to lift did not cause any adverse consequences for the defendant. See also Bambrick v. Sam’s West, Inc., 2013 WL 427399 (N.D. Iowa Feb.

4, 2013) (finding plaintiff created a genuine issue of material fact as to whether lifting fifty pounds was an essential function of a manager of the photography lab for reasons Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act including the fact that the plaintiff worked in the position without lifting for a number of years, and the job description requiring lifting was drafted in the middle of her employment without any changes to her position); Demyanovich v. Cadon Plating & Coatings, --- F.3d ---, 2014 WL 1259603 (6th Cir. March 28, 2014) (finding lifting was not necessarily an essential function of a line operator job, as the employee’s job description identified several essential duties, but did not include a lifting requirement).

Battleground After the ADA Amendments Act Specific Essential Functions: Law Enforcement Functions Qualified Under the ADA: The New Legal Two recent cases evaluate functions as they relate to employees in law enforcement positions. In Cefalu v. Holder, the plaintiff had a permanent elbow injury, which the defendant argued prevented him from working as a special agent because he could not lift a firearm.88 The court concluded that carrying and using a firearm was an essential function. In so finding, the court relied on the employer’s job description and the employer’s policies stating that special agents were to bear arms in furtherance of official law enforcement operations, and to be armed at all times. Further, the court noted that employees in similar law enforcement positions were also required to lift and carry a gun.

The ability to restrain and control inmates was found to be an essential function in a recent Fourth Circuit case. In Atkins v. Holder, a correctional counselor had certain physical restrictions due to polyarthropathy of the right knee and degenerative disc disease in his back, including curtailing the amount of time that he was permitted to walk and stand.89 The court concluded that it was an essential function of a law enforcement position to physically restrain and control inmates, and emphasized that the counselor himself acknowledged that he was afraid for his safety.

Judicial Interpretation: Interplay Between “Qualified” and “Reasonable Accommodation” Often, the analysis of whether an individual is qualified requires a judicial inquiry into whether a particular accommodation is reasonable, as well as how the employee functions when accommodations are provided. For instance, in Torres v. House of Representatives of the Commonwealth of Puerto Rico, when determining that an individual with hemiplegia who used a motorized wheelchair was qualified to work as a legislative advisor, the court emphasized that when she was accommodated, she was able to perform the essential functions of her job.90 Specifically, the court explained that when the legislative advisor had the use of a laptop computer, she could perform all of her work functions. Moreover, even before she received the laptop computer, the legislative advisor performed her essential functions by dictating to a co-worker who transcribed her work. Therefore, the employee’s ADA claim could proceed, as she was deemed qualified.

Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act However, if the employer can show that the employee is not able to perform her essential functions, even with the requested accommodation, then the employee cannot establish her qualification under the ADA. In Olsen v. Capital Region Medical Center, a mammography technician with epilepsy experienced seizures at the workplace.91 Her essential functions included operating medical machinery, tending to the physical and emotional needs of the patient, and ensuring the patient’s safety. The employer provided various accommodations to eliminate the environmental triggers of Battleground After the ADA Amendments Act the technician’s seizures, such as removing mold, investigating cleaning agent Qualified Under the ADA: The New Legal ingredients, having other technicians handle patients who wore heavy perfumes, installing anti-glare filters on lights, eliminating scrolling from computers, covering x-ray films to reduce brightness, permitting the employee to wear sunglasses, and educating co-workers about epilepsy and how to respond/treat someone who is seizing.

However, the technician continued to experience seizures, and the employer placed her on leave. After the technician started to take medications to control her seizures, the employer offered to reinstate her, but the employee declined and filed a lawsuit under the ADA. The Eighth Circuit affirmed the lower court’s holding that the technician was not qualified under the ADA. It explained that even with the accommodations provided, the technician was not able to perform the essential functions when she continued to experience seizures. See also Delon v. Eli Lilly & Co., 2013 WL 6887645 (S.D. Ind. Dec. 31, 2013) (granting summary judgment for the employer on the issue of qualified because the employee testified that her disability of Cushing’s Syndrome prevented her from being able to work as a senior scientific communications associate anywhere, so even if she had been granted the accommodation of telework, she would not have been able to perform her essential functions).

Because the plaintiff has the burden of showing that she is a qualified, it is generally also considered the plaintiff’s burden to establish that the accommodation is reasonable. This is consistent with the burden-shifting analyses when the case is solely about reasonable accommodations. In Majors v. General Electric Co., the plaintiff asserted that she would be qualified to work with a lifting restriction, if she would have been accommodated.92 The accommodation she sought was having others lift heavy objects for her. The plaintiff argued that her employer had the burden of proving that her proposed accommodation was an undue hardship. The court disagreed, emphasizing that the plaintiff had the initial burden of establishing that she was a qualified individual with a disability, and that she must establish that her proposed accommodation is reasonable on its face. To find otherwise, said the court, would “ignore[]that this record won’t allow a finding that she is a qualified individual with a disability.”93 Because the plaintiff’s requested accommodation was objectively unreasonable (requiring someone else to perform the employee’s essential functions), the court concluded that she failed to meet the burden of establishing that she is qualified, and thus, the burden need not shift to the employer to show that the proposed accommodation would be an undue hardship.

Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act Courts are clear that employees only need to show that an effective accommodation that would render the employee qualified exists. While plaintiffs have the burden of demonstrating that they are qualified, they only have to identify the accommodation and show that facially, the cost does not clearly exceed the benefit.94 At that point, the burden shifts back to the defendant to show that the accommodation is unreasonable or would create an undue hardship.

Battleground After the ADA Amendments Act The interplay between “qualified” and “reasonable accommodation” also becomes Qualified Under the ADA: The New Legal apparent when an employee requests the removal of a specific task as an accommodation. Whether this type of request is a reasonable accommodation depends on whether the task is marginal or essential. It is clear that employers are not

required to remove essential functions as an accommodation. According to the EEOC:

“An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a "qualified" individual with a disability within the meaning of the ADA.”95 See also Gober v. Frankel Family Trust, 537 Fed.Appx. 518 (5th Cir. 2013) (holding that it was not a reasonable accommodation to reassign a job task if the task is an essential function).

Unlike the request to reassign essential functions of position, however, it is generally considered a reasonable accommodation to reassign a position’s marginal functions.

For instance, in EEOC v. AutoZone, 707 F.3d 824 (7th Cir. 2013), a parts sales manager requested reassignment of his mopping duties in light of his back injury. The manager was known as a good salesman who could “sell ice cubes to an Eskimo.” Customers specifically asked for his assistance, and as a result, he averaged the highest sales per customer amount the employees. While the store manager accommodated the manager’s request and did not require mopping, the district manager refused accommodation, and required the manager to mop. As a result, manager experienced extreme back pain causing him to miss work and led to his termination. After multiple trials and appeals, the Seventh Circuit affirmed a jury verdict awarding the manager $100,000 in compensatory damages, $200,000 in punitive damages, and $115,000 in back pay. The Seventh Circuit also issued an injunction on AutoZone's anti-discrimination practices.

Judicial Interpretation: Interplay Between “Qualified” and “Regarded as” In the ADA Amendments Act, Congress answered a question that had previously split the circuit courts: it clarified that individuals who are “regarded as” disabled are not legally entitled to reasonable accommodations under the ADA.96 One consequence, perhaps unintended, of this clarified statutory requirement, is that if a plaintiff cannot perform the essential functions of the job without an accommodation, even if he or she has been “regarded as” having a disability, he or she will not be found qualified for the Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act job. This was the situation in one recent case, Walker v. Venetian Casino Resort, where a cocktail server at the Venetian Casino Restaurant was injured on the job and subsequently terminated.97 She brought a claim alleging that she was regarded as disabled, and in response, her former employer argued that she was not qualified to do her job. The employee agreed that she was not qualified without a reasonable accommodation, but asserted that she would have been qualified under an accommodated reassignment. Because the ADA does not require employers to

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Given the limits of the reasonable accommodation requirement in “regarded as” cases, plaintiffs whose cases involve reasonable accommodations should plead that they have disabilities under the “actual disability” and “record of disability” prongs wherever possible.

Interplay Between “Qualified” and “Direct Threat”

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