Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at firstname.lastname@example.org.
Court allows obesity as perceived disability. In Frank v. Lawrence Union Free School District, the court has allowed an ADA case to proceed to trial on the “perceived disability” of obesity. A probationary math teacher, weighing 350 pounds, received good evaluations and the recommendations for permanent appointment from his direct supervisors and principals. An assistant superintendent overruled the recommendation, denying further employment. Evidence showed the assistant superintendent had made remarks about the teacher being “too big and sloppy” and that his size and weight would interfere with his duties and were not conducive to learning. These comments about his weight significantly impairing job duties led the court to believe there was a perceived disability under the ADA. The assistant superintendent’s attempted defense, that the teacher had poor performance and ineffective teaching methods, was rejected as pure pretext in light of the uniformly good performance evaluations and positive recommendations of several people who regularly observed him in the classroom (E.D. NY, 2010).
Doctor could not safely treat patients. A doctor, during his post-graduation internship, misdiagnosed patients, prescribed wrong medications, prescribed 10 times the proper dosage of the correct medication and once identified a living patient as being dead. He ignored directions from senior physicians and was “extremely argumentative” when errors were discussed with him. After diagnosis of “possible attention deficit disorder,” the doctor asked for accommodations of a significantly reduced number of patients and a “more compassionate environment.” But the hospital could not reasonably reduce the number of patients below the level required for interns by the Accreditation Council for Graduate Education; a special team of doctors had been formed to provide coaching with his notes/charts and assist when he expressed having difficulties. The doctor’s performance, however, did not improve and he was discharged. He subsequently sued under the ADA for “perceived disability” discrimination. In Shir v. U. of Maryland Medical Systems Corp., the court dismissed the case, finding that the doctor was not a “qualified person with a disability”; he could not perform the work even with accommodation. “No reasonable jury could find that he provided safe and appropriate care for patients,” stated the court (4th Cir., 2010).
ADA does not excuse drunk driving and injury. The chief of a county police unit had an off-duty vehicle accident, causing the hospitalization of two people in the car he hit. He tested at three times the legal limit for alcohol and the state suspended his driver’s license, while the county terminated employment. The ex-chief then sued, claiming that he had the disability of alcoholism and the county should have allowed him to seek treatment and recover rather than fire him. He also argued that the county was premature, not waiting to see if he would be convicted for an OWI (operating while intoxicated). But the plaintiff lost on both counts. Although the ADA covers a “history of dependency and treatment” as a disability and prevents discharge because someone has a diagnosis or history of dependency, it does not protect a person from actions caused by active use or immunize an employee from violating rules that could cause discharge of any other employee. The OWI violated police-department rules. Driving was also an essential job function; without a license, the police chief could not effectively perform the job, and there was no reasonable accommodation. In addition, in Budde v. Kane County, Illinois, the court found that an employer is not required to wait for the slow process and greater burden of proof of the criminal-judicial process. It had independent evidence sufficient to show violation of employment rules and could act accordingly (7th Cir., 2010).
Safe driving concerns warrant medical evaluation. The ADA allows the medical evaluation of employees based on significant job-related factors. In Kirkish v. Mesa Imports Inc. (D. Arizona, 2010), an employee’s job involved significant driving. But a neuropathy condition required him to take large doses of painkillers, which might impair his concentration and driving. So the company requested information from the employee’s doctor, who refused to certify the employee as clearly safe to drive. As a result, the employee was let go for being unable to do a significant job duty; he subsequently sued. The court ruled that the employer had a valid safety concern, and the medical-evaluation request was justified under the ADA. The doctor’s failure to certify safety rendered the employee unable to effectively perform the job.