No more than five years ago, my friends who represent plaintiffs in employment cases said they were done with ADA cases—lawsuits based on disability were simply too hard to win. A web of essential elements and affirmative defenses created such advantages for defendants that their plaintiff-clients rarely survived summary judgment. The ADA itself was disabled, they claimed.
Today, employers have come to believe the ADA is stacked in the other direction, and plaintiffs are finding more success. How did that happen in such short order? The answer: sustained action from all three branches of government to rehabilitate the ADA.
In 2008, Congress passed the Americans with Disabilities Act Amendment Act. The ADAAA significantly expanded the definition of "disability," making it easier for plaintiffs to prove they are covered by the statute. The ADAAA specifically named impairments of almost any bodily function as a potential disability. So, a plaintiff will generally be considered disabled if he has an endocrine-related ailment like diabetes, respiratory condition like asthma, circulatory issue like high blood pressure, or any number of other very prevalent conditions. Related, the 2008 amendments said the question of disability depends on a plaintiff's un-medicated condition, meaning that many people with well-controlled ailments can sue under the ADA even though their regular medication leaves them with hardly any real impairment. Before 2008, defendants often prevailed at summary judgment by showing that the plaintiff, despite some health issue, was not actually disabled. That issue now strongly favors plaintiffs.
Finally, the ADAAA declared a simple intention on the part of Congress to expand the number of workers covered by the statute, a declaration upon which the EEOC and the courts have relied to expand the reach of the statute and to find plaintiffs "disabled" when the evidence is close.
Executive Agency Action
On behalf of the executive branch of government, and largely under the Obama Administration, the EEOC has become an aggressive regulatory enforcer, pushing the duty of "reasonable accommodation" under the ADA into new areas. In one high-profile class action against Verizon in 2011, for example, the EEOC collected a $20 million consent judgment over allegations that the company had not provided leave as a reasonable accommodation under the ADA to employees who needed to be out of work for health reasons.
For many, the Verizon case created a significant shift. Under the ADA, a plaintiff must show that, despite her disability, she is able to perform her essential job functions as long as the employer provides a particular reasonable accommodation. What is reasonable for a given employer, of course, depends on a host of case-specific facts, as does whether the plaintiff would truly be able to perform the essential job functions with the requested accommodation. Employment attorneys are familiar with litigating what is essential as a job duty and what is reasonable as an accommodation, but cases have focused on the work environment—changing work spaces, altering non-essential duties, offering help at work in one way or another so that an employee could perform what is essential to her job. It has generally been assumed that being at work is an essential job function, because an employee cannot perform ANY functions, essential or not, if she is not at work. Defendants won many cases at summary judgment by simply showing that the disability had caused the employee to exhaust all available leave under the employer's attendance policies and the FMLA.
With Verizon, the EEOC successfully and very publicly began to treat an employer's attendance rules, for purposes of accommodations, like the rules that apply to how work is performed. The EEOC decided that, if reasonably accommodating employees requires employers to modify policies governing employees while they are at work, it should also require modifying policies about being at work in the first place. For example, if an employer could reasonably tolerate allowing an employee to be out of work long enough to recuperate and return, then attendance policies should be modified just as any other workplace policy or expectation.
This notion—that employers should have to accommodate someone by allowing him to perform his essential job functions not now, but later—was not one most employers had ever acted on. In fact, cases dating as far back as Halperin v. Abacus Technology, 128 F.3d 191 (4th Cir. 1997) had long held that an employee had to be able to meet the employer's attendance policies to be qualified for the job. And, the FMLA, not the ADA, has been the federal statutory scheme defining leave rights, while the ADA has defined employee rights to modifications while at work. Without offering any real guidance (because, as they say, each employer and workplace is different), the EEOC now says that an employer violates the ADA by discharging an employee who has no available time-off, if the employee can show an additional period of leave would have enabled him to return before his absences unduly burdened the employer. However long that is.
Case law, of course, lags behind legislative enactments and executive policy-making. Just this year, many of these trends coalesced in the Fourth Circuit Court of Appeals, in Summers v. Altarum Institute, 740 F.3d 325 (4th Cir. 2014). There, the court noted it was "the first appellate court to apply the amendment's expanded definition of "disability." Id. at 330. Mr. Summers had tripped and fallen outside of work, breaking his ankle and his leg and tearing a muscle in his knee. He needed surgery. His doctors estimated he would make a full recovery within six to twelve months. When Altarum discharged him for not being able to attend work—after expiration of all available leave—Mr. Summers sued for wrongful discharge. Altarum moved to dismiss, arguing that the temporary nature of his impairment meant he was not "disabled" under the ADAAA.
The court evaluated the EEOC's post-amendment regulations stating that an impairment lasting less than six months can be "substantially limiting" and, therefore, constitute a disability. Finding the regulations consistent with Congressional intent announced in the ADAAA, the court concluded that Mr. Summers' six to twelve-month recovery period could make him "disabled," too. The court endorsed the EEOC's view that the duration of the impairment is only one factor in determining whether it is "substantially limiting"—someone severely restricted for a short period of time might be disabled even though he will fully recover. The ADA certainly appears to be a statute for injured people in the Fourth Circuit, with no need to prove any underlying permanent condition.
While the court's decision was limited to the question of whether Mr. Summers had adequately pleaded that he was disabled, a second lesson exist, too. Mr. Summers' Complaint acknowledged he was not able to return to work when he was discharged. He had not worked long enough to have leave rights under the FMLA. Because he was allowed to state a claim on these facts, the court made clear that being unable to work and having no available leave at the time of discharge was not a bar to stating a claim. Thus the court, without discussing the point, made it apparent that a defendant can no longer prevail in an ADA suit by proving that, at the time the plaintiff was expected to be at work, he could not attend.
It will take more time to know whether ADA cases are as difficult for defendants today as they were for plaintiffs before the ADAAA. The issue of how long an employee must be unable to work in order to be considered disabled will require more expansive treatment by the courts. How much depends on the severity of the ailment? How much depends on the degree of accommodation the individual will need when he can return? Will courts ever draw any black and white lines for the sake of predictability? Likewise, plaintiffs and defendants both will benefit from more judicial opinions on how long an employer must allow an employee who cannot work to remain out of work before returning. What kinds of jobs allow an employer to require essentially no extra time off? How does the size of the employer matter? What about employers with particularly pressing customer needs? All of these areas, and more, are the likely focus of ADA litigation. For now, though, the ADA at least presents a re-surfaced playing field that plaintiffs' employment attorneys like again.
Published in the May 2014 issue of the NCADA's monthly e-newsletter The Resource. Reprint permission granted.