2017 ADA Updates and Trends

The Americans with Disabilities Act (ADA) is a key anti-discrimination law. While not all small organizations and businesses are subject to the ADA because they don’t have enough employees, most Colorado employers are subject to the Colorado Anti-Discrimination Act (CADA), Colorado’s state anti-discrimination law, which largely mirrors its federal counterpart. Disability issues are interpreted similarly under CADA. While it is important to follow the law in your jurisdiction, learning about the national trends is worthwhile. To keep you up to date, we’ve gathered some recent cases and trends throughout this Circuit and the rest of the country.

ADA Updates from the Tenth Circuit

The Tenth Circuit has been busy issuing published decisions interpreting the ADA this year. While Colorado state courts are not bound to follow these decisions, they are often considered very persuasive authority when state courts consider disability discrimination claims under CADA. Here are a few of the more notable cases from 2017.

Dewitt v. Southwestern Bell Telephone Co.: The ADA Does Not Require Employers to Excuse Past Misconduct¹

Normally, employers subject to the ADA need to engage in an interactive process to provide reasonable accommodations to disabled employees. However, the ADA does not prevent employers from discharging a problem employee. In this case, a call-center worker had been consistently warned about poor performance at work and was on a “Last Chance Agreement.” After she hung up on two customers, she was terminated. She sued her company for discrimination, claiming that she was experiencing dangerously low blood sugar levels at the time of the calls due to her diabetic condition. Her theory was essentially that the company failed to accommodate her disability by not excusing or overlooking her misconduct, because her misconduct was related to her disability.

The Tenth Circuit ruled for the employer. The Court concluded that the employer did not violate the ADA, because it had demonstrated its honest belief that it had fired the employee for a legitimate, non-discriminatory reason: dropping the calls. In addition, the employee could not bring a failure-to-accommodate claim because the Court concluded that retroactive leniency is not a reasonable accommodation. In other words, the ADA “does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct—irrespective of whether the misconduct resulted from the employee’s disability.”²

Punt v. Kelly Services: Time Away From the Office is Not Always a Reasonable Accommodation³

In this case, the Tenth Circuit emphasized that employers are not always required under the ADA to provide leaves of absence, particularly where a physical presence in the office is a key part of the job.

A temporary employee was assigned to a receptionist-type position at a company by a staffing agency. She was diagnosed with breast cancer and ended up missing work on several occasions. She was eventually informed that her temporary position had been terminated. She brought claims under the ADA and the Genetic Information Nondiscrimination Act against both the company and the staffing agency.

The Tenth Circuit affirmed a grant of summary judgment in favor of the company and the staffing agency. First, the Court explained that a failure-to-accommodate claim—unlike other claims under the ADA—does not require a former employee to actually prove that the employer acted with discriminatory intent. Instead, the plaintiff needs to come forward with an initial showing that (1) she is disabled; (2) she is otherwise qualified; and (3) that she requested a plausibly reasonable accommodation. Here, the Court concluded that the former employee could not meet the third element of her prima facie case. A reasonable accommodation is one that will enable an employee to be able to perform the essential functions of the job. While a leave of absence can sometimes enable such performance, it will not always in every case. Here, the Court stated that Plaintiff’s vague request to take time off of work was not enough to be a plausibly reasonable accommodation because of factors like the vague nature of her request and the fact that her position required her to be in the office.

ADA Trends from Across the Country

In addition to cases directly impacting Colorado, several trends are emerging around the country. Here are some highlights.

The Seventh Circuit Draws the Line on Multi-Month Leaves of Absence

A recent case out of the Seventh Circuit addresses whether employers are required to continue providing leaves of absence after an employee has exhausted leave taken under the FMLA. The EEOC has taken the position that extending a leave of absence may be required as a reasonable accommodation under the ADA. But when the issue came up recently, the Seventh Circuit disagreed: “The ADA is an antidiscrimination statute, not a medical-leave entitlement.”⁴ In Severson v. Heartland Woodcraft, the employee had exhausted his FMLA leave and wanted to take another two months off to recover from back surgery. His company terminated his employment when his FMLA leave expired, but invited him to reapply when he was cleared for work. Instead of reapplying, the employee sued the company for failing to accommodate his disability by giving him an extended leave of absence. The Seventh Circuit ruled for the employer, making clear that at least in that jurisdiction, an employer is not obligated to give an employee a multi-month leave of absence under the ADA. This case is important because it goes against what the EEOC—the federal agency in charge of enforcing the ADA—has said.

Medical Marijuana Use as a Reasonable Accommodation?

As medicinal marijuana becomes more prevalent throughout the country, courts are grappling with whether an employee who is discharged because of medical marijuana use might have a claim for disability discrimination. At least one state court has suggested that employers might need to provide an accommodation to allow for employees’ off-site legal medical marijuana use.⁵

Colorado law, however, does not appear as definitive. For example, the Colorado Supreme Court has stated that medical marijuana use is not “lawful off-duty conduct” subject to Colorado’s lawful off-duty conduct statute—the law that prohibits employers for firing employees for lawful activities outside of work—because marijuana is still illegal under federal law.⁶

Gender Dysphoria and the ADA

The ADA specifically excludes “gender identity disorders” from the definition of a disability.⁷ But just recently, a federal district court in Pennsylvania allowed an employee with gender dysphoria to state a claim for disability discrimination under the ADA.⁸ The Court allowed the suit to go forward because it concluded that the employee’s condition was actually disabling in that it affected the employee’s major life activities. Accordingly, the Court concluded that the employee’s condition was not excluded by the ADA and that the lawsuit could go forward.

Conclusion

While these stories are interesting, their real usefulness is allowing businesses to spot issues before they become a problem. A thoughtful approach, perhaps with the assistance of your counsel, may well keep you out of trouble.

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¹ Dewitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017). Note, the decision refers to the ADAAA, which is sometimes used by courts to refer to the most recent amendments to the Act.

² Id. at 1316.

³ Punt v. Kelly Servs., 861 F.3d 1040 (10th Cir. 2017).

⁴ Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017) (slip op. at 2).

⁵ See Barbuto v. Advantage Sales & Marketing, LLC, 78 N.E.3d 37 (Mass. 2017).

⁶ See Coats v. Dish Network, LLC, 2015 CO 44.

⁷ 42 U.S.C. § 12211(b)(1).

⁸ Blatt v. Cabela’s Retail, No. 5:14-cv-04822 (E.D. Pa. May 18, 2017).