Bob Gregg, partner in Boardman Law Firm, and Cliff Bobholz, an associate,share their roundup of diversity-related legal issues. They can be reached at email@example.com and firstname.lastname@example.org, respectively.
ADA accommodations must be reasonable and fit operational needs. An employee with a migraine condition sued her employer after her requested accommodation of moving to another city and working from home was denied. Her physician stated that some changes to her office environment and a work-schedule modification could adequately accommodate the condition. The employer offered the office environmental changes and schedule modification and allowed her to work from home part of the time (part of the schedule modification). The employee, however, insisted that her proposed accommodation was "more reasonable," and she proceeded to move to the other city. She was subsequently discharged. In Porter v. Environmental Protection Agency (D. DC, 2009), the court dismissed the case. It is noted that the ADA and the Rehabilitation Act, which prohibits discrimination on the basis of disability in programs conducted by federal agencies, require a reasonable accommodation—not the employee's preferred accommodation. The employee's focus on the "more reasonableness" of her proposal was misplaced; she presented no evidence that her doctor's recommendations were not workable. Moreover, her employer was entirely reasonable in selecting to follow the doctor's advice and the accommodation that best fit its operational needs.
Interactive process not necessary when no accommodations exist. The ADA requires the employee and employer to engage in interactive dialogue and exploration to consider reasonable accommodations, to enable an employee with a disability to perform a job or maintain employment in an available alternative position. But no exploration is required when no accommodation is available. In McBride v. Bic Consumer Products Mfg. Co. (2nd Cir., 2009), the employee's respiratory sensitivity to the chemicals in her work rendered her unable to continue the present job. She requested the accommodation of being placed in a different job in a different location where there were no chemicals. However, no such job was open. Since the ADA does not require either the creation of a new job or bumping existing employees out of their jobs to make way for an employee with a disability, no accommodation existed. Therefore, the court found that there was no requirement for the company to further engage in a meaningless exercise of discussing a nonexistent position.
Vacuuming and laundry are major life activities. A Rehabilitation Act plaintiff was able to survive a summary judgment challenge to whether her cancer treatments qualified her as having a disability by being "substantially limited in a major life activity." Under the ADA's Amendments Act, the court interprets the law in a more inclusive manner. The plaintiff's cancer treatments caused significant pain and fatigue and made it difficult or impossible to keep up with basic household tasks such as vacuuming, laundry and other tasks. In Pinegar v. Dept. of Veteran Affairs (M.D., Pennsylvania, 2009), the court ruled that these are tasks necessary for living in a healthy environment and "are part of the major life activity of caring for oneself." Therefore, her case on constructive discharge was allowed to proceed to trial.
Independent contractors can sue under the Rehabilitation Act. Independent contractors are not employees and, thus, do not have the standing to sue under employment laws such as Title VII or the ADA. But the Federal Rehabilitation Act is broader. It incorporates all of the ADA's Title I employment requirements relating to discriminatory discharge and allows independent contractors to sue for the termination of their contractor status.
Fleming v. Yuma Regional Medical Center (9th Cir., 2009) involved a hospital in which the physicians were independently contracted. An anesthesiologist was diagnosed with multiple sclerosis. The Medical Center drafted a contract addendum—which provided that it did not have to, and would not, engage in any reasonable accommodations—based on the doctor's non-employee/contractor status. The doctor claimed "constructive discharge" (a situation in which an employee is forced to quit a job because the employer has made working conditions intolerable) and filed suit under the Rehabilitation Act. The court denied the Medical Center's motion for summary judgment and validated the independent contractor's right to sue over the "discharge."