Hunton Employment & Labor Perspectives

Employers increasingly feel that they are forced to bend, or sometimes even break, company rules to reasonably accommodate disabled workers under federal and state law. In a victory for employers, the Eleventh Circuit bucked this trend, holding that when mandatory overtime is established as an “essential function” of the job, a disabled employee who cannot work overtime is not a “qualified individual” under the Americans with Disabilities Act (“ADA”) and, thus, need not be accommodated.

With the Americans with Disabilities Amendments Act (“ADAAA”) and its expansion of the definition of “disability,” some would argue that the focus should no longer be on whether someone meets the definition of a “disability.” The presumption being that it is much easier now to prove someone is “disabled” under the law. The Fifth Circuit Court of Appeals has recently issued a ruling contracting this assumption.

A new case under the amended American with Disabilities Act (“ADA”) may add to employers’ confusion over how to handle medical and disability issues.   Butler v. Louisiana Dep’t of Pub. Safety & Corr., No. 3:12-cv-000420 (M.D. La. 2013).  In Butler, a state trooper alleged he was “regarded as” disabled by his employer, who allegedly thought he had obsessive compulsive disorder and germaphobia.  He claimed he was placed on involuntary leave, subjected to an excessive fitness-for-duty exam, and denied overtime opportunities.  The defendant employer denied the allegations and asserted the “direct threat” defense.  It sought discovery of the plaintiff’s psychiatric records and moved to compel production when the employee objected to the requests.  The court denied the motion to compel and made several interesting pronouncements.

We live in a society that is obsessed with appearance, and studies show that many people equate appearance to success.  While employers may not be aware of these studies, some are trying to control appearance in the workplace by imposing weight restrictions on job applicants or employees as a condition of employment.  

Whether these policies are permissible can only be answered with a “maybe.” 

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In Victoria, Texas, the Citizens Medical Center prohibits hiring obese employees.  The hospital promulgated a policy that requires all potential employees to have a body mass index (BMI) of less than 35.  For example, an applicant who is 5-foot-5 could not weigh more than 210 pounds, and an applicant who is 5-foot-10 could not weigh more than 245 pounds.  All potential employees are screened by a physician to assess their fitness for duty.  According to the hospital’s policy, an employee’s physical appearance “should fit with a representational image or specific mental projection of the job of a health care professional.”

In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors.  These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.

Disability discrimination claims have long been difficult for employees to pursue in court. Although employers are often grappling with reasonable accommodation and leave issues in the workplace, such issues have typically not spilled into the courtroom. One reason for that has been the difficulty in proving an employee has a “disability.” The final regulations issued by the EEOC in March 2011 could change all of that. The new regulations, interpreting the ADA Amendments Act of 2008 (ADAAA) expand the definition of “disability” and otherwise remove several impediments to pursuing lawsuits under the ADA. This should lead to an increase in ADA litigation.

The 2010 fiscal year was a busy one for the EEOC as employees filed a record number of charges.  See A Year In Review: EEOC Charges & Trends.  This wave of charges is historic -- not just because of the number of charges filed, but also because of the evolving trends in the types of claims made. Unfortunately for employers, these trends will likely continue in 2011 and beyond.

Historically, the most common types of claims filed were those of race and sex discrimination. Although these particular types of claims remain prevalent (the number of both race and sex discrimination claims increased in 2010), other types of claims are emerging at an alarming rate due to recent changes in the legal landscape.

With the closing of the first month of the federal government’s 2011 fiscal year, employers may be curious to know what the EEOC’s litigation landscape looks like.  For instance, what type of employers are being sued, and for what?  Importantly, what can employers learn from the EEOC’s litigation efforts?  A review of recently filed lawsuits that the EEOC has announced in its October press releases found that few claims have been brought under recently passed laws and only a small portion of the defending employers are Fortune 500 companies.

As was predicted following the passage of the ADA Amendments Act of 2008 (ADAAA), which went into effect in January 2009, there has been a subsequent surge in the filing of lawsuits under the Americans with Disabilities Act (ADA).  Lawsuits brought under the ADA now comprise the highest percentage of claims filed by former employees.  When compared with the number of ADA-related lawsuits filed in the first three months of 2009, there has been a nearly 40% percent increase in the number of ADA-related suits filed in 2010  during the same period.  Moreover, the second quarter of 2010 saw the number of ADA-related lawsuits increase by 15% over those filed in the first quarter.