#AmericansWithDisabilitiesAct

Judge_Gorsuch_official_portraitA colleague recently brought to my attention a 2014 employment case written by then-Circuit Judge Gorsuch for a panel of the U.S. Court of Appeals for the 10th Circuit – a particularly interesting opinion that may give us hints as to how Justice Gorsuch may rule in future employment cases before the Supreme Court.

In Hwang v. Kansas State University, an assistant professor was diagnosed with cancer and received a six-month leave of absence. (In the opinion, Judge Gorsuch specifically noted it was a “(paid) leave.” Whether or not it was paid is irrelevant to the legal analysis, but his express mention of payment suggests approval of the employer’s actions as exceeding the norm). Towards the end of the six months, she requested additional leave of apparently another few months. The University, however, had an inflexible policy limiting leave to six months, and it denied her request. The professor then sued, claiming that the University’s inflexible leave policy violated the Rehabilitation Act. Continue Reading Justice Gorsuch and the ADA?

healthFollowing up on my recent post, “Employer May Change Essential Functions of the Job,” I thought we’d discuss another little-mentioned aspect of essential job functions under the Americans with Disabilities Act – job functions that are rarely performed can still be essential!

As we’ve previously discussed, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. The ADA regulations define “essential function” as “a fundamental job duty of a position.” But how do you determine what are the essential functions of a particular job? According to the Equal Employment Opportunity Commission (which is the federal agency charged with enforcing the ADA) and the regulations, the following factors should be taken into account in determining whether a job function is essential: Continue Reading Rarely Performed Job Functions May Still Be “Essential” Under ADA

Fire Icon clip art Free VectorAs you may know, I love the quirky cases (like the Playgirl model who sued for sexual harassment). I recently came across a 2014 state case that falls into this category – the firefighter who is afraid of fire.

In City of Houston v. Proler, the captain of a firefighting crew refused to enter a burning apartment building, appearing to be frightened. He was reassigned to the training academy, but was eventually transferred back to active firefighting duty. Two years after the first incident, the captain arrived at a house fire. Again, he appeared to be frightened – unable to put on his equipment, take or give orders, and showing physical distress. He was hospitalized and diagnosed with “global transient amnesia.” Management (reasonably) considered this a “possibly dangerous situation,” and he was again reassigned to the training academy.

Nonetheless (and despite all common sense), the captain wanted to be reassigned to active firefighting. Because he was a union member, he filed a grievance under the collective bargaining agreement. Shockingly (to me), a hearing examiner ordered that he be returned to his fire suppression duties. Unsurprisingly (to me), the City appealed this decision to the trial court, at which point the captain brought claims against the City for disability discrimination under the Americans with Disabilities Act and Texas state law. Shockingly (to me), the jury found that the City had engaged in disability discrimination against the captain, although it awarded him no damages (he did get $362,000 in attorneys’ fees). Shockingly (to me) the Texas Court of Appeals affirmed the disability discrimination verdict. Continue Reading Firefighter’s Fear of Fire Is Not Disability