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UNIVERSITY OF LOUISVILLE’S
TWENTIETH ANNUAL CARL A. WARNS, JR.
LABOR AND EMPLOYMENT LAW INSTITUTE
June 12-13, 2003
Proposed Amendment to the
Americans With Disabilities Act
Mark S. Dichter
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103-2921
(215) 963-5291
Sharon A. Lisitzky
Morgan, Lewis & Bockius LLP
5300 Wachovia Financial Center
200 South Biscayne Boulevard
Miami, FL 33131-2339
(305) 415-3382
2003 Morgan, Lewis & Bockius LLP
TABLE OF CONTENTS
THE MAJOR LIFE ACTIVITY OF WORKING . 16A.
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APPLYING THE SUPREME COURT’S DEFINITION OF AN INDIVIDUAL WITH A DISABILITY
IN THE POST-SUTTON V. UNITED AIR LINES, INC. ERA
MITIGATING MEASURES
Asthmatic Employee Who Intentionally Failed to Take Recommended
Medication Was Not Disabled Under the ADA
Tangires v. Johns Hopkins Hospital, 79 F.Supp.2d 587 (D. Md. 2000), aff’d, 230 F.3d1354 (4th Cir. 2000) Plaintiff Tangires, who suffered from severe asthma, alleged that she was denied promotions and was terminated from her employment with The Johns Hopkins Hospital because of disability discrimination. In concluding that Tangires was not disabled for purposes of the ADA, the Court recognized that the severity of asthma, and the frequency with which a person experiences asthmatic episodes, varies a great deal from person to person. Based on the medical evidence presented in the case, Tangires’ asthma could have been readily treatable with medication, but she intentionally failed to follow her physicians’ recommendations that she take steroid medication due to her “subjective and unsubstantiated” belief that the steroids would adversely affect another condition with which she had been diagnosed – a pituitary adenoma. Since Tangires’ voluntarily refused to take the medication that would have corrected her ailment, she was not substantially limited in any major life activity. A plaintiff who does not avail herself of proper treatment is not a “qualified individual” under the ADA.
Asthmatic FBI Applicant is Not Disabled Where Her Condition Was
Controlled With Medication
Boone v. Reno, 121 F.Supp.2d 109 (D.C. Cir. 2000) Morgan, Lewis & Bockius LLP
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Boone, an applicant for the position of special agent for the Federal Bureau of Investigation, was not disabled by virtue of her asthma. Although Boone had been hospitalized as a result of severe asthmatic episodes three times in the past, her condition was being controlled with medication.
Diabetes
Diabetic Employee Whose Condition Was Controlled With Insulin and Diet Was
Not Disabled Under the ADA, Despite Potential For Future Substantial Limitations
Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002) In Orr, a diabetic pharmacist sued his former employer alleging that he was disciplined and terminated from employment because of his disability, in violation of the ADA. Orr, who controlled his diabetes by taking insulin injections and eating a special diet within thirty minutes of taking his insulin, received a written warning from management for routinely closing the pharmacy for thirty minutes over the noon hour to eat his lunch. Despite management’s direction that the pharmacy remain open, Orr insisted that such a policy prevented him from having an uninterrupted lunch break until much after noon, which, he alleged, was adversely affecting the control of his diabetes.
When Orr indicated that he would resume his noon lunch breaks away from the pharmacy, despite management’s directive to the contrary, he was terminated from Following the Supreme Court’s direction in Sutton, the Court determined that Orr was not disabled under the ADA. In reaching that decision, the Court recognized that it could not consider what would occur if Orr failed to treat his diabetes or how it might develop in the future, but rather had to examine his present condition with reference to Morgan, Lewis & Bockius LLP
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mitigating measures taken. Because Orr could not identify any major life activity that was substantially limited by his diabetes – instead focusing on the possibility that he could, in the future, experience such a limitation if he failed to properly monitor and treat his condition – he failed to establish that he was disabled under the ADA.
Despite Insulin Treatments, Diabetic’s Episodic Loss of Consciousness and
Hypoglycemic Reactions Rendered Him Disabled
Narwot v. CPC International, n/k/a Bestfoods, Inc., 277 F.3d 896 (7th Cir. 2002) Reversing the lower court’s grant of summary judgment for the employer, the Seventh Circuit held that Narwot, a former warehouse supervisor with Bestfoods, was disabled for purposes of the ADA. As set forth by the Court, Narwot was a diabetic, and was required to inject himself with insulin approximately three times a day and test his blood sugar levels at least ten times a day. At times, Narwot experienced episodes of hypoglycemia (low blood sugar), which adversely affected his health, personality and The trial court determined that Narwot’s episodic hypoglycemic reactions, which resulted from his occasional failure to administer insulin, eat snacks, and/or cease work activity when necessary, were insufficient to transform his otherwise controlled condition into a substantially limiting disability. The appellate court disagreed, holding that the specific facts regarding Narwot’s condition – including the progressive exacerbation of his illness, his episodic loss of consciousness, and his extensive nerve damage – sufficiently demonstrated that Narwot was substantially limited in his ability to think and care for himself, which are both major life activities. While Narwot was able to meet this Morgan, Lewis & Bockius LLP
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threshold level, the Court ultimately held that he failed to establish that Bestfoods’ legitimate, nondiscriminatory reasons for his termination were pretextual.
Diabetic Who Was Able to Control His Condition With Insulin and Diet Was Not
Disabled Due to Consideration of Mitigating Measures
Sepulveda v. Glickman, 167 F.Supp.2d 186 (D. P.R. 2001) In Sepulveda, an employee of the U.S. Department of Agriculture brought suit against then-Secretary Glickman for alleged age and disability discrimination. In the suit, Sepulveda alleged that he was disabled by virtue of his Diabetes Mellitus Type II and a renal insufficiency. As to his diabetes, which was the primary focus of the Court’s analysis, the only evidence presented by Sepulveda as to any “impairment” was that he required medication, a fixed meal schedule, timely snack breaks, and the opportunity to use the bathroom very frequently during the work day. Relying on Sutton and on circuit court decisions evaluating the circumstances under which diabetes can be considered a disability for ADA purposes, the district court dismissed Sepulveda’s disability claims on summary judgment. In so doing, the Court held that in light of the availability of corrective and mitigating measures, Sepulveda’s relatively mild impairment did not constitute a substantial limitation to any major life activity.
Side Effects from the Use of Insulin Rendered Diabetic Employee Disabled
Lawson v. CSX Transportation, Inc., 245 F.3d 916 (7th Cir. 2001) Relying on the Sutton Court’s emphasis on the importance of individualized inquiries into an employee’s actual limitations, the Court determined that Lawson, who suffered significant effects from his diabetes, was substantially limited in the major life Morgan, Lewis & Bockius LLP
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activity of eating. The Court recognized that diabetics whose illnesses are adequately controlled by insulin should not be considered disabled. However, the Court cautioned against interpreting that statement to mean that no diabetic could ever be disabled within Unlike the Plaintiffs in Sutton, the Court determined, Lawson’s condition required coordination of multifaceted factors and constant vigilance on a daily basis. Taking into account Lawson’s mitigating measures, and their potential side effects, the Court noted that the multiple insulin injections that Lawson was required to take each day occasionally caused symptoms of hypoglycemia, creating a condition where the level of glucose in his blood is too low. When this occurred, Lawson suffered from symptoms including slurred speech, profuse sweating, paleness, shaking, and unsteadiness, and could lead to dizziness, weakness, loss of concentration, and a deterioration of bodily functions if Lawson did not eat immediately. Thus, the evidence demonstrated that the very medication with which Lawson injects himself to treat his illness will itself bring about debilitating symptoms that can only be ameliorated by immediately eating certain foods. By considering these “side effects” of the mitigating measures taken by Lawson, the Court determined that Lawson was substantially limited in the major life activity of Fact Issues Remained as to Whether Insulin-Independent Diabetic Was Disabled
Schaefer v. State Insurance Fund, 207 F.3d 139 (2d Cir. 2000) Schaefer, a former file clerk, was diagnosed with “insulin-independent” diabetes shortly before commencing her employment with the with the New York State Insurance Morgan, Lewis & Bockius LLP
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Fund. As an “insult-independent” diabetic, Schaefer’s condition could be treated without insulin injections using instead dietary restrictions and oral medication that does not contain insulin. The Second Circuit vacated the lower court’s determination that Schaefer was disabled, and remanded for further proceedings consistent with the Sutton decision, which had been decided after the district court judgment was rendered. While the lower court evaluated Schaefer’s condition without reference to available treatment, Sutton required consideration of the impact of the impairment as ameliorated by measures such as medication. On remand, the lower court ordered a new trial. See 95- CIV-0612 (JFK), 2000 WL 802905 (S.D.N.Y. June 21, 2000).
Epilepsy
Epileptic Former Employee Was Disabled Due to the Severe Limiting Effects of Her
Seizure Disorder, Despite Corrective Surgery and Medication
Otting v. J.C. Penney Company, 223 F.3d 704 (8th Cir. 2000) While acknowledging that Sutton changed the landscape of ADA litigation in some respects, the Court held that Otting’s case was not particularly affected by the Supreme Court’s recent pronouncement regarding mitigating measures. The Court, in concluding that Otting’s epilepsy was an ADA-qualifying disability, noted the continuing severity of Otting’s condition despite in-patient brain surgery and anti-epileptic medication. Otting’s seizures, although sporadic, occurred frequently enough to prevent her from driving a car or taking a bath by herself for fear of crashing or drowning if a seizure occurred. When, approximately two or three times a month, a seizure occurred, Otting became unable to see, hear, speak, walk or work for a period of 30 seconds to two Morgan, Lewis & Bockius LLP
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minutes. Following a seizure, Otting remained lethargic, shaky, and had difficulty concentrating for a period of ten minutes to thirty-six hours. Because of these serious symptoms of her condition, and the enduring symptoms caused by her seizures, Otting met the ADA’s definition of disabled.
Epileptic Who Controlled His Condition With Dilantin and Had Not Suffered a
Seizure in Over Four Years Was Not Disabled Under the ADA
Arnold v. City of Appleton, Wisconsin, 97 F.Supp.2d 937 (E.D. Wis. 2000) Arnold, an epileptic applicant for the position of firefighter with the City of Appleton, was not disabled for purposes of the ADA. Arnold’s epilepsy was controlled with the use of Dilantin, which at one time had produced the side-effect of making Arnold “edgy and uncomfortable.” Arnold reported that he no longer experienced side effects from the Dilantin, and he had not had a seizure in over four years.
Idiopathic Epilepsy That Was Controlled When Plaintiff Averaged Seven to Eight
Hours of Sleep Each Night Was Not a Disability Under the ADA
Popko v. Pennsylvania State University, 84 F.Supp.2d 589 (M.D. Pa. 2000) In this case, the Court determined that Popko’s idiopathic epilepsy (sleep related seizure disorder), in its mitigated state, was not a disability for purposes of the ADA.
Popko’s treating physician testified that her condition had been, and will continue to be, successfully controlled and treated through the proscription of activities that disrupt her “sleep-wake” cycle. Even when Popko did not treat her epilepsy by getting a regular night’s sleep, she experienced, at most, a generalized shakiness in the morning which Morgan, Lewis & Bockius LLP
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Epileptic Clerk Was Not Disabled Absent Evidence That the Side-Effects of His
Epilepsy and Anti-Epileptic Medications Were Substantially Limiting
Todd v. Academy Corp., 57 F.Supp.2d 448 (S.D. Tex. 1999) Todd, an epileptic former stock clerk, was able to control his epilepsy with medication, but still continued to have “light” seizures that typically last from five to fifteen seconds, at the rate of approximately one seizure per week. Because Todd was able to recognize the onset of these “light” seizures before they happened, he was generally able to lie down in a separation location, thereby removing himself and others from potential danger. The Court, considering Todd’s limitations in light of his mitigating measures, determined that he was not disabled under the ADA. While the Court acknowledged that the side-effects of epilepsy and anti-epileptic medication could substantially limit Todd’s thinking and learning capabilities, the Court held that no evidence was presented to suggest that these side-effects were actually, and not Epileptic Who Suffered Only Three Seizures in Ten Years Was Not Disabled
Rutlin v. Prime Succession, Inc., 75 F.Supp.2d 735 (W.D. Mich. 1999) In this case, the Court held that former funeral director Rutlin was not disabled within the meaning of the ADA, as his epilepsy was generally controlled through medications. The evidence demonstrated that Rutlin suffered seizures on only three occasions in a ten-year period, and that he enjoyed a moderately active lifestyle, unimpeded by any physical ailment. While the Court recognized that Rutlin’s epilepsy is a condition that he may have for his entire life, his ability to render the condition largely Morgan, Lewis & Bockius LLP
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asymptomatic by taking two or three pills per day (with only very minor side effects) prevents a finding that his condition was substantially limiting.
Hearing Loss
Hearing Impaired Employee Whose Hearing Aid Produced Negative
Side Effects May Be Disabled Under the ADA
Wilson v. Aetna Life and Casualty Company, 195 F.Supp.2d 419 (W.D.N.Y. 2002) The Court denied Aetna’s motion for summary judgment on Plaintiff Wilson’s ADA claim, holding that fact questions remained as to whether Wilson’s mitigated hearing loss substantially limited his major life activity of hearing. Wilson, in his deposition, testified that he often took out his hearing aid because despite periodic repairs and replacements, he continued to have problems hearing due to ambient noise and background noise. Noting the importance of taking into account any negative side effects resulting from the use of mitigating measures, the Court held that fact issues remained as Plaintiff With Bilateral Hearing Impairment that Could be Corrected to 96% With
Use of Two Hearing Aids Was Not Substantially Impaired
Ivy v. Jones, 192 F.3d 514 (5th Cir. 1999) The Fifth Circuit vacated a district court judgment in favor of Plaintiff Ivy, who was diagnosed with a bilateral hearing impairment, and remanded the case for further proceedings consistent with Sutton. Because the evidence presented to the district court suggested that Ivy’s hearing loss could be corrected to 92% with one hearing aid, and 96% with two hearing aids, it was unlikely that Ivy could demonstrate that her major life activity of hearing was substantially impaired.
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Mitigating Measures That Were Not Actually Used by the Employee Are Not
Considered in Evaluating Whether the Employee is Disabled
Finical v. Collections Unlimited, Inc., 65 F.Supp.2d 1032 (D. Ariz. 1999) Although it ultimately decided that Finical was not substantially limited in any major life activity, the Court declined to consider the potential impact of available mitigating measures that were not actually utilized by Finical in deciding whether she was disabled under the ADA. While Finical’s expert witness testified that her hearing impairment could have been alleviated with the use of hearing aids, Finical admitted that she only tried using hearing aids for a month, and stopped using them because she found the background noise that they picked up to be annoying. The Court refused to speculate as to the extent of Finical’s limitations if she used hearing aids, holding that such an approach would fail to assess the limitations that Finical actually faces in the present.
HIV/AIDS
Court Failed to Make Individualized Inquiry Into Impact of
Plaintiff’s Mitigated HIV Status
Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) Holiday, who is HIV positive, sued the City of Chattanooga for disability discrimination when his offer of employment as a City police officer was withdrawn.
The offer was withdrawn based on the report of the physician conducting Holiday’s pre- employment physical examination that he was not strong enough for police work due to his HIV positive status. The Court reversed the grant of summary judgment in favor of the City, holding that the City failed to make an individualized inquiry into Holiday’s limitations taking into account mitigating measures.
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Hypertension and Cardiac Disease
Truck Driver With Medication-Controlled Hypertension Was Not Disabled
Hein v. All America Plywood Company, Inc., 232 F.3d 482 (6th Cir. 2000) Hein, a former truck driver who suffered from hypertension, was terminated from employment for refusing to make an out-of-town delivery because he would have run out of his blood pressure medication before his return. The Court concluded that Hein’s hypertension did not rise to the level of a disability, as evidenced by Hein’s own admission that while on medication, he functioned normally and was fully able to perform his work-related duties. The Court further noted that it was Hein’s responsibility, knowing that he must be continuously medicated in order to perform his job as a truck driver, to not wait until the last minute to obtain refills of his medicine.
Coronary Artery Disease That Was Controlled By Medication Was Not a Disability
Haiman v. Village of Fox Lake, 55 F.Supp.2d 886 (N.D. Ill. 1999) In concluding that Haiman, the Village’s former bookkeeper, was not disabled under the ADA, the Court noted that her coronary artery disease was under control with her use of four cardiac medications – Cardizem, Lopressor, Persantine, and Ecotrin. The Court rejected Haiman’s argument that she was disabled because her heart condition would substantially limit several major life activities if she discontinued use of her Morgan, Lewis & Bockius LLP
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Mental Illness
Employee Whose Depression, Once Medicated, Resulted in Only
Occasional “Bad Days” Was Not Disabled
Brock v. United Grinding Technologies, Inc., No. C-3-00-541, 2003 WL 1907849 (S.D.
Ohio March 23, 2003) Shortly before he was fired, Brock was diagnosed with stress, situational anxiety, and severe depression, for which he was prescribed Xanax and Prozac. Once medicated, Brock’s symptoms were substantially alleviated, permitting him to return to work with only occasional “bad days.” In light of the impact that these mitigating measures had on Brock, the Court determined that he was not disabled under the ADA.
Surgical Resident Whose Depression Was Substantially Improved with
Medication Did Not Qualify as Disabled Under the ADA
Swanson v. University of Cincinnati, 268 F.3d 307 (6th Cir. 2001) In this case, the Court held that Swanson, a former surgical resident who suffered from severe depression, was not disabled under the ADA. Although Swanson reported symptoms of poor concentration, an inability to speak, and exhaustion, his condition significantly improved when he was on Paxil and Prozac. By Swanson’s own admission, these medications improved the quality of his sleep and allowed him to recover his communication abilities. Therefore, his medicated condition did not substantially limit Employee With Xanax-Controlled Depression Was Not Disabled
Cooper v. Olin Corporation, Winchester Division, 246 F.3d 1083 (8th Cir. 2001) Morgan, Lewis & Bockius LLP
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In this case, Plaintiff Cooper, who suffered from depression, failed to prove that she was substantially limited in the major life activities of caring for herself, social interaction, or working. Despite her depression, Cooper, through the use of medication such as Xanax, remained highly functional and was able to work, raise a family, manage her own finances, live independently, and interact with others in a social setting.
Continuing Symptoms of Bipolar Disorder, and Side-Effects of Lithium Used to
Control Paranoia, Created Fact Issues as to Whether Employee Was Disabled
Taylor v. Phoenixville School District, 184 F.3d 296 (3rd Cir. 1999) In reversing the lower court’s grant of summary judgment to the school district, the Court concluded that fact issues existed as to whether Taylor’s bipolar disorder continued to be substantially limiting even when she took her medication. Although a combination of lithium and the antipsychotic drug Navane was used to control Taylor’s condition, the evidence suggested that she continued to suffer from symptoms such as paranoia and impaired concentration, and that she did, in fact, suffer from significant Former Police Officer With Depressive Disorder Was Not Disabled Where He Was
Able to Function Without Limitation on Medication
Spades v. City of Walnut Ridge, 186 F.3d 897 (8th Cir. 1999) In this case, decided immediately in the aftermath of Sutton, a police officer who suffered from depression attempted to commit suicide by inflicting a gunshot wound to his head with a handgun issued by his employer, the City. After receiving treatment for his physical injuries, and medication and counseling for his depression, Spades alleged that he was capable of returning to work and performing his duties as a police officer.
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Fearing that the City’s knowledge of the officer’s violent use of a firearm would, if repeated in the future, subject the City to legal liability, the City terminated Spades’ employment. The Court granted the City’s motion for summary judgment on Spades’ allegation of discrimination in violation of the ADA, noting Spades’ concession that resort to medication and counseling “allow him to function without limitation.” Thus, his depression was corrected and could not be said to limit a major life activity – a requirement for finding an individual to be disabled within the meaning of the ADA.
Former Employee With Panic and Anxiety Disorders May Be Disabled If Either
Underlying Conditions or Side-Effects of Medications Are Substantially Limiting
McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999) McAlindin raised a triable issue of fact as to whether his panic and anxiety disorders qualified him as disabled under the ADA despite available mitigating measures such as medication. The Ninth Circuit, in this case, noted that under certain circumstances, the use of medication may not eradicate the effects of illness, and a disability may remain either due to symptoms of the condition itself which persist despite the effects of medication, or as a result of the medication’s side-effects.
Sleep Apnea
Plaintiff With Sleep Apnea Was Not Disabled Where He Failed to Take Advantage
of Surgery and Other Measures That Would Have Corrected His Condition
Mont-Ros v. City of West Miami, 111 F.Supp.2d 1338 (S.D. Fla. 2000) While he was working for the City of West Miami, Plaintiff Mont-Ros, a police officer, was diagnosed with a condition known as obstructive sleep apnea. The condition, Morgan, Lewis & Bockius LLP
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according to Plaintiff’s treating physicians, was directly attributable to Plaintiff’s obesity, and could be treated with weight loss, the use of air pressure machines, and/or surgery.
Following a workers’ compensation leave of absence for a knee injury that was unrelated to his condition, Plaintiff was given a light duty position, which he later asked to be adjusted to allow him to work only the day or afternoon shifts. According to Plaintiff, working the midnight shift exacerbated the daytime drowsiness caused by his sleep apnea. Ultimately, before his shifts could be adjusted to accommodate his request, Plaintiff was discharged from his position because his prior injury, in the opinion of his treating physicians, left him physically unable to perform the duties required of a law In dismissing Plaintiff’s ADA claims, the Court held that Mont-Ros failed to adduce evidence that his sleep apnea was sufficiently severe such that it substantially limited his major life activity of sleeping or breathing, particularly given the mitigating measures taken by Mont-Ros. While sleep apnea could, generally speaking, result in extremely restless sleep with extreme daytime hypersomnolence or excessive sleeping through the day, an individualized inquiry of Mont-Ros’ situation revealed that his apnea did not incapacitate him in any way – either at work or in his daily activities. Further, because his doctors concurred that his condition and the resulting drowsiness could have been alleviated or fully corrected through weight loss, use of a nasal air pressure machine, or surgery, his ailment could not be said to substantially limit him.
Sleep Apnea That Had Been Completely Corrected With Use of an Air Pressure
Machine Was Not a Substantially Limiting Disability
Taylor v. Blue Cross and Blue Shield of Texas, Inc., 55 F.Supp.2d 604 (N.D. Tex. 1999) Morgan, Lewis & Bockius LLP
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Taylor, a former sales instructor for Blue Cross/Blue Shield, was diagnosed with moderate obstructive sleep apnea, which caused symptoms of drowsiness, lack of energy, and difficulty breathing. Shortly after his diagnosis, Taylor began using a Constant Positive Air Pressure machine, which eliminated all of the symptoms that Taylor had previously been experiencing. Because his sleep apnea had been completely corrected with use of the air pressure machine, Taylor was not disabled under the ADA.
First Circuit Court of Appeals
Former Police Officer Who Worked 24-32 Hours a Week as a Security Guard Was
Not Substantially Limited in the Major Life Activity of Working
Sheehan v. City of Gloucester, 321 F.3d 21 (1st Cir. 2003) Retired police lieutenant with hypertension was not precluded from a substantial number of jobs, such that he is substantially limited in the major life activity of working.
While Sheehan was deemed unable to perform his duties as a Gloucester police officer due to his hypertension, he was able to work a broad range of jobs. In fact, Sheehan continued to work an average of 24-32 hours per week as a security guard.
Alcoholic Employee’s Inability to Work Overtime and Brief Alcohol-Related
Incarceration Did Not Preclude Him From Employment in a Broad Range of Jobs
Bailey v. Georgia-Pacific Corporation, 306 F.3d 1162 (1st. Cir. 2002) Alcoholic employee was not substantially limited in the major life activity of working. Bailey only presented evidence that he experienced difficulty in a single job, not that his impairment would preclude him from performing a broad range of jobs. The Morgan, Lewis & Bockius LLP
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Court rejected Bailey’s arguments that his inability to accept overtime shifts, and his alcohol-related incarceration, prevented him from performing a broad range of jobs. His problems with overtime work were merely isolated problems relating to his particular employment, and his incarceration was too brief to constitute a substantial limitation.
Sales Representative With Stress Disorder Was Not Substantially Limited in the
Major Life Activity of Working
Carroll v. Xerox Corporation, et al., 294 F.3d 231 (1st Cir. 2002) Retired sales representative who suffered from mild leaking from his heart valves and stress-related chest pains was not substantially limited in a broad range of jobs.
Carroll failed to show that he was unable to perform any job other than the management position that he had previously held, with the particular sales targets and workloads that existed in 1995. Once he was transferred to a different office and into a less stressful non-management position, Carroll was fully capable of performing his job duties without Flight Attendant With Temporary Hearing Loss Was Not
Precluded From Broad Range of Jobs
Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25 (1st Cir. 2000) Former flight attendant with temporary hearing loss was not substantially limited in the major life activity of working. Her temporary hearing loss was not shown to have interfered at all in carrying out the duties of a flight attendant. Even if Santiago Clemente’s impairment were defined more broadly – i.e. as a condition precluding flight on non-pressuring airplanes – the Plaintiff failed to present evidence of how many jobs called for that ability, or that she was precluded from any class of jobs. In fact, the record Morgan, Lewis & Bockius LLP
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indicated that the plaintiff was qualified for various ground positions with the airline (including receptionist, payroll clerk, and operational manager), and that she successfully continued her employment with a higher salary than that which she earned as a flight Second Circuit Court of Appeals
Applicants Who Were Precluded From Driving Certain Tractor-Trailer Trucks
Over Long Distances Were Not Precluded From Other Types of Truck Driving
Equal Employment Opportunity Commission v. J.B. Hunt Transport, Inc., 321 F.3d 69(2d Cir. 2003) Applicants perceived as unsuitable for employment as over-the-road truck drivers were not perceived as substantially limited in the major life activity of working. The applicants on whose behalf the EEOC filed suit used prescription medications with side- effects that could impair their driving abilities. While the company regarded their use of these prescription medications as precluding them from driving freight-carrying tractor- trailer trucks over long distances for extended periods of time, it did not perceive them as unable to successfully engage in other types of truck driving, let alone in other kinds of Respiratory Problems Did Not Preclude Former City Employee
From Employment in a Broad Range of Jobs
Schapiro v. New York Department of Health, 25 Fed.Appx. 57 (2nd Cir. 2001) Former city employee, who developed respiratory problems due to fumes from surrounding construction work and poor ventilation, was not substantially limited in the major life activity of working. Because Schapiro reported that his ability to perform the major life activity of working improved significantly when his job was moved to a Morgan, Lewis & Bockius LLP
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different location, he failed to show that his limitations extended beyond a particular Despite Speculation, Former Police Officer Who Suffered From An Aneurysm Was
Not Substantially Limited in the Major Life Activity of Working
Giordano v. City of New York, 274 F.3d 740 (2d Cir. 2001) Former police officer with the NYPD had been diagnosed with an aneurysm in his aortic root, leading him to undergo corrective surgery and to be placed on a daily regimen of Coumadin, an anticoagulant blood thinner, to prevent the danger of blood clotting.
Rejecting his contention that he was perceived by the City as substantially limited in the major life activity of working, the Court concluded that he had failed to establish that he was restricted in performing a broad range of jobs; at most, he demonstrated that the City perceived him as disabled from police work that involved a substantial risk for physical confrontation. Giordano’s assumption that this perception would preclude him from working in related fields was pure speculation, and as such, was rejected by the Court.
Third Circuit Court of Appeals
Employee Whose Back Injury Precluded Bus Driving Failed to Establish
Limitations in Any Other Jobs, Much Less in a Broad Range of Jobs
Tice v. Centre Area Transportation Authority, 247 F.3d 506 (3d Cir. 2001) Former transportation authority employee’s back injury did not substantially limit him in the major life activity of working. Because Tice was unable to identify any jobs that his injury precluded him from performing other than driving a bus, the Court was not inclined to allow a jury to speculate as to limitations of which Tice himself was not Morgan, Lewis & Bockius LLP
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Depression Did Not Exclude Former Police Officer From a Broad Range of Jobs
Williams v. Philadelphia Housing Authority, 230 F.Supp.2d 631 (E.D. Pa. 2002) Former city housing authority police officer who suffered from depression could not demonstrate that he was unable to perform a broad range of jobs, where his employment opportunities were only temporarily restricted to jobs which did not require Police Officer with Amblyopia Was Able to Perform a Broad Range of Jobs, and
Thus, Was Not Substantially Limited in the Major Life Activity of Working
Knoll v. Southeastern Pennsylvania Transportation Authority (SEPTA), No. Civ.A.-01-2711, 2002 WL 31045145 (E.D. Pa. Sept. 11, 2002) Former transit police officer with amblyopia or “lazy eye” was not substantially limited in the major life activity of working by virtue of his failure to meet SEPTA’s visual acuity standards and subsequent termination of his employment. The undisputed record revealed that Knoll was not only able to perform a broad range of other jobs, he had already been offered a position by the United Nations to serve as a U.N. Peacekeeper in Kosovo and had only failed to accept it because he hoped to be reinstated at SEPTA.
Fourth Circuit Court of Appeals
Temporary Limitations Caused By Back Surgery and Recuperation Were Not
Substantially Limiting in the Major Life Activity of Working
Pollard v. High’s of Baltimore, Inc., 281 F.3d 462 (4th Cir. 2002) Employee who suffered from severe back injury was not substantially impaired in the major life activity of working. The Court held that despite her nine-month leave of absence due to surgery and a resulting infection, Pollard’s condition was temporary.
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Pollard’s physician expected her to make a full recovery, and her only continuing limitation was that she could not lift more than 25 pounds or bend repetitively. The fact that Parr immediately obtained employment in a car dealership following her departure from High’s further reinforced the court’s conclusion that her temporary limitations did not preclude her from a broad range of jobs.
Dissociative Identity Disorder Only Precluded Student in Teaching Program From
the Narrow Category of Jobs Requiring Unsupervised Work With Children
Davis v. University of North Carolina, 263 F.3d 95 (4th Cir. 2001) Student who suffered from dissociative identity disorder (“DID”) was not regarded as substantially limited in the major life activity of working by UNC. While UNC removed her from a teaching certificate program at UNC, based on the perception that she was unable to work unsupervised with children, this perception did not preclude her from employment in a broad range of jobs. Because a number of jobs in the education field and other fields requiring similar training and skills remained open to Davis even with this perceived limitation, the Court rejected the contention that she was perceived as disabled under the ADA.
Fifth Circuit Court of Appeals
HIV Positive Employee Was Not Limited in a Broad Range of Jobs
Blanks v. Southwestern Bell Communications, Inc., 310 F.3d 398 (5th Cir. 2002) Former employee who was HIV-positive could not establish that he was substantially limited in the major life activity. While Blanks’ condition substantially Morgan, Lewis & Bockius LLP
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affected his ability to perform his former customer service representative position, he was not otherwise impaired in his ability to work.
Employee With Back Condition Was Only Precluded From Strenuous Manual
Labor, and Was Capable of Performing a Broad Range of “Light Labor” Jobs
Dupre v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610 (5th Cir.
2001) Dupre, who suffered from a back condition known as degenerative disc disease, argued that her impairment disqualified her from all manual labor, thus precluding her from a broad range of jobs. The Court disagreed, noting that while Dupre was unable to dig holes and repair railroad tracks, she testified that she was able to bend at the knees, walk half a mile, lift up to thirty pounds, drive a car for an hour, and sit and stand for up to an hour at a time. From these facts, the Court concluded that Dupre was only precluded from jobs involving very strenuous physical activity, prolonged standing or sitting, and heavy lifting. There existed, however, many jobs involving only light labor that Dupre seemed perfectly capable of performing.
Sixth Circuit Court of Appeals
Hypertension, Sleep Apnea, Depression and Neck Pain Did Not Substantially
Limit Plaintiff in the Major Life Activity of Working
Cartwright v. Lockheed Martin Utility Services, Inc., No. 00-6671, 2002 WL 1461753(6th Cir. July 3, 2002) Former employee with hypertension, sleep apnea, depression, and neck pain was not substantially limited in the major life activity of working where his ailments only precluded him from a narrow class of jobs. Cartwright acknowledged that it was the stress of working with his particular supervisors that caused his impairments to interfere Morgan, Lewis & Bockius LLP
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with his ability to perform his job as an instrument mechanic, and further conceded that the stress would have been alleviated by a change of supervisors. He failed to demonstrate, however, that he was restricted from working in a broad range of jobs.
Casino Employee’s Diabetes Was Not Substantially Limiting
Salim v. MGM Grand Detroit, LLC, 231 F.Supp.2d 577 (E.D. Mich. 2002) Terminated casino card dealer was not substantially limited in the major life activity of working. While she indicated that switching from the night shift to the day shift would help her to better control her diabetes, she could not demonstrate that she was unable to work in a broad class of jobs. In fact, following her termination, she worked as Seventh Circuit Court of Appeals
Former Union Employee’s Depression Was Not Substantially Limiting
Ogborn v. United Food and Commercial Workers Union, Local No. 881, 305 F.3d 763(7th Cir. 2002) Former business agent of a local union was not substantially limited in the major life activity of working due to his depression. While Ogborn’s depression limited him from working for over eight weeks, he testified that at the time that he visited his physician who prescribed antidepressants, he thought he could still perform him job. He also certified in an unemployment insurance application that he “could accept work Morgan, Lewis & Bockius LLP
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Eighth Circuit Court of Appeals
Railroad Operator With Depression Who Was Only Precluded From Working in
Jobs Involving Transporting Ammunition Was Not Substantially Limited
Cooper v. Olin Corporation, Winchester Division, 246 F.3d 1083 (8th Cir. 2001) Former railroad operator who suffered from depression was not substantially limited in the major life activity of working. While Cooper was precluded from her particular job operating locomotives, which involved transporting ammunition, the evidence did not support that she was restricted from a broad range of jobs involving her Firefighter Was Not Regarded as Substantially Limited in the
Major Life Activity of Working
Shipley v. City of University City, 195 F.3d 1020 (8th Cir. 2000) City firefighter was not regarded as substantially limited in the major life activity of working, where the evidence demonstrated that he was able to perform a variety of jobs after his termination. The plaintiff was only terminated due to the City’s concerns regarding his ability to perform his functions as a firefighter in light of his injuries resulting from a prior severe injury.
Ninth Circuit Court of Appeals
Employee With Carpal Tunnel Syndrome Was Not Substantially Limited
in the Major Life Activity of Working
Broussard v. University of California, Berkeley, 192 F.3d 1292 (9th Cir. 1999) A University employee’s inability to perform the specialized position of animal technician for transgenic mice, due to her carpal tunnel syndrome (“CTS”), did not Morgan, Lewis & Bockius LLP
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constitute a substantial limitation in the major life activity of working. This particular position required the technician to work at a rapid pace, in order to minimize the amount of time that the mice, who were genetically altered to have various immune deficiencies, were kept outside of the “biohood” that was used to prevent germs from coming into contact with the mice. While her CTS prevented such specialized activity, she did not demonstrate that her condition restricted her ability to perform a broad range of jobs.
Tenth Circuit Court of Appeals
County Employee Was Not Regarded As Substantially Limited in the Major Life
Activity of Working Where County Offered Him a Related Law Enforcement Job
Lucas v. Miami County, Kansas, 9 Fed.Appx. 809 (10th Cir. 2001) Former support services lieutenant in the county sheriff’s office, who was terminated after a non-work related back injury left him unable to use the stairs or physically restrain criminals, was not regarded by the County as substantially limited in the major life activity of working. Lucas presented no evidence regarding jobs within the geographic area to which he had access, or as to the number and types of jobs from which the County believed he was disqualified. Further, the fact that the County offered him a job as a dispatcher was evidence that it did not perceive him as precluded from the entire Nurse with Multiple Sclerosis Was Not Precluded From Broad Range of Jobs
Sorenson v. University of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999) Nurse who had been diagnosed with Multiple Sclerosis was not substantially limited in the major life activity of working where the Hospital refused to return her to Morgan, Lewis & Bockius LLP
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the position of AirMed flight nurse due to safety concerns, but continued to employ her as a regular nurse in several Hospital areas (for example, the burn unit, the surgical intensive care unit, and the emergency room).
Eleventh Circuit Court of Appeals
Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000) Employee who suffered from mitral valve prolapse, migraine headaches, depression, high blood pressure and seizures was not substantially limited in the major life activity of working, nor was she regarded as such by her employer. While Cash was not permitted to drive the company car, this restriction did not disqualify her from a large segment of the labor market. Not only were jobs utilizing Cash’s skills available, but the employer was in fact employing Cash in just such a job.
Diabetic Engineer’s Testimony Established Absence of Substantial Limitation
Stedman v. Bizmark, Inc., 219 F.Supp.2d 1212 (N.D. Ala. 2002) Former industrial engineer with diabetes did not demonstrate that he was unable to perform a broad range of jobs; in fact, he admitted in his deposition testimony that he could have performed other jobs with the Company, such as the receiving clerk position that had been offered to him three weeks before he quit.
Job Applicant with Monocular Vision Not Substantially Impaired
Flores v. American Airlines, Inc., 184 F.Supp.2d 1287 (S.D. Fla. 2002) Applicant for position of cabin cleaner, who had permanent monocular vision, did not demonstrate that he was unable to work in a broad range of jobs, as proven by his Morgan, Lewis & Bockius LLP
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extensive work history. Flores had previously worked as an airport agent, substitute teacher, social worker, assembly person, field representative, and salesperson.
D.C. Circuit Court of Appeals
Employee With Back Injury Failed to Demonstrate Broad Range of Jobs
From Which He Was Excluded
Duncan v. Washington Metropolitan Area Transit Auth., 240 F.3d 1110 (D.C. Cir. 2001) Former transit authority employee whose back injury prevented him from lifting more than 20 pounds was not substantially limited in the major life activity of working.
The Court noted that there was a lack of evidence regarding the number and types of jobs in the Washington D.C. area for which the laborer was qualified, and which did not Supreme Court Decides Seminal Case Extending the Direct Threat Defense to
Situations in Which Employment Would Threaten the Individual Himself
Chevron U.S.A., Inc. v. Echazabal, 122 S.Ct. 2045 (2002) In this seminal case, the Supreme Court held that an employer may, under the ADA, refuse to hire a disabled job applicant for a position that would pose a direct threat to the applicant’s health. In so doing, the Court embraced the EEOC’s regulation extending the ADA’s “direct threat defense” – which permits employers to adopt an employment qualification barring employment to those who would pose a direct threat to other individuals in the workplace – to situation in which the position would threaten the Morgan, Lewis & Bockius LLP
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Echazabal, who previously worked for independent contractors at Chevron’s oil refineries, submitted applications for employment with Chevron on two occasions. Both times, Echazabal was offered employment with Chevron pending a physical examination, and both times, when the exam showed liver abnormalities (the cause of which was ultimately determined to be Hepatitis C), Chevron withdrew the offers. Chevron’s doctors determined that Echazabal’s condition would be aggravated by continued exposure to toxins at Chevron’s refinery.
The Court, concluding that the plain language of the ADA left room for such an interpretation, followed the EEOC’s interpretation of the direct threat defense to encompass a direct threat to the employee himself. In determining that the EEOC’s interpretation was reasonable, the Court also noted that if an employer were forced to hire an employee into a position that would pose a direct threat to that employee, such action could violate other statutes, such as the Occupational Health and Safety Act (“OSHA”).
Employment of Diabetic in Position That Did Not Allow for Uninterrupted Meal
Breaks May Pose Direct Threat to Employee Himself
Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002) In this case, discussed at length in section I above, the Court noted that had Orr established a prima facie case of actual disability under the ADA, Wal-Mart could have raised the threat-to-self defense set forth in Chevron. The Court stated that Wal-Mart may have successfully argued that, accepting Orr’s contention regarding the necessity of uninterrupted lunches within thirty minutes of his insulin injection, working in a single- pharmacist pharmacy, which did not provide for uninterrupted meal breaks, posed a Morgan, Lewis & Bockius LLP
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direct threat to Orr’s health. As such, Wal-Mart would have been justified in not Company Was Entitled to Invoke the Direct Threat to Self Defense in Rescinding a
Job Offer to An Applicant Whose Back Condition Would Be Exacerbated By
Working in Cramped Conditions
Collins v. Raytheon Aircraft Company, No. 01-1415-JTM, 2003 WL 192553 (D. Kan.
Jan. 16, 2003) Collins applied for employment with Raytheon in 2000, and subsequently received a conditional job offer for an Aircraft Line Assembler position. The offer was conditional on his passing a physical exam. At the physical examination, it was discovered that Collins, who had suffered from years of back problems and surgeries, was unable to bend over and touch his toes, had continuing numbness in his hands and arms, and had a fused disk and metal rods to stabilize his spine. After Raytheon’s company doctor issued significant restrictions for Collins, and the company’s ergonomist concluded that Collins could not safely perform the essential functions of the Aircraft Line Assembler job due to his limitations in forward bending, Raytheon rescinded its conditional offer of employment and advised Collins that he could be considered for The Court, following Chevron, held that Raytheon was entitled to invoke the affirmative defense that its employment decision was designed to avoid a direct threat to Collins’ own health or safety. The Court recognized that the potential harm to Collins from additional spinal injury was substantial and severe, and acknowledged the opinions of Raytheon’s company doctor and ergonomist that Collins faced an inherently increased risk of additional spinal damage from working in the cramped working conditions Morgan, Lewis & Bockius LLP
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associated with the Aircraft Line Assembler position. Raytheon’s motion for summary Working at Hospital That Used Latex Products Could Pose a Direct Threat to the
Health and Safety of a Registered Nurse With Latex Sensitivity
Watson v. Hughston Sports Medicine Hospital, 231 F.Supp.2d 1344 (M.D. Ga. 2002) The Court granted summary judgment to the Hospital on Watson’s ADA claim, concluding that its refusal to hire Watson did not constitute unlawful disability discrimination. Watson, a registered nurse, suffered from a severe latex allergy, which caused her to experience difficulty breathing, itching of the hands, eyes and face, a runny nose, and sinus congestion when she came into contact with latex products. Latex products, such as rubber gloves, were commonly used at the Hospital, and the Hospital could not be rendered latex-free without a significant expenditure of time and money.
Because of the symptoms suffered by Watson when exposed to latex products – and the possibility that her high degree of latex sensitivity could put her at risk of suffering anaphylactic shock, which, if unexpected, could potentially endanger the patients under Watson’s care – the Hospital was justified in denying her employment. Citing to Chevron, the Court held that under the circumstances, the Hospital’s requirement that its employees not suffer from latex sensitivities is a valid job requirement, as such an allergy could pose a direct threat to the employee.

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