President-elect Trump made headlines during the campaign (as he often did) when he gave the appearance of mocking a physically disabled reporter. The election of Donald Trump in 2016 carries far-reaching implications for disability discrimination cases (as well as other employment discrimination matters), but they will not be felt until 2017 or beyond. After taking office, President-elect Trump will have the power to the influence regulatory and enforcement efforts of the Equal Employment Opportunity Commission (EEOC), which enforces the Americans with Disabilities Act (ADA). While another amendment to the ADA is unlikely, President-elect Trump stated his intent to appoint more conservative federal judges to fill more than 100 judicial vacancies, which could result in more narrow interpretations of the statute as we move from 2016 into 2017.
In addition, the vacancy of the EEOC’s general counsel position may also provide an opportunity to impact the direction of EEOC enforcement litigation. For now, the EEOC, stacked with a number of President Obama-appointed commissioners with terms ending deep into President-elect Trump’s presidency, will aggressively move forward with its enforcement agenda. One of the EEOC’s priorities for 2017 is the qualification and accommodation of employees with disabilities. Employers should expect to see more disability discrimination lawsuits focused on whether an employee is qualified for a position and its reasonable accommodation obligations.
During the last couple of years, courts considered a number of disability accommodation cases that highlight the importance of having job descriptions that accurately identify essential job functions. For example, in EEOC v. LHC Group, Inc., a registered nurse sued her employer after being terminated shortly after suffering a grand mal seizure at work. She returned to work but was restricted from driving. As a result, the employer claimed the nurse was no longer qualified for the position; driving was an essential function identified in the employee’s job description. The employee was able to overcome summary judgment in favor of her employer with testimony of one of her supervisors, who explained that many of the employee’s duties were performed in the branch office, which, according to the court, undercut driving being an essential function as stated in the job description.
In Colbert v. Harris Co. Juvenile Probation, another job description case, a plaintiff with a hearing impairment applied for juvenile supervising officer position with a juvenile detention center. The position’s job description required the “ability to communicate effectively in written and oral forms.” This, the employer stated, included the ability to use a two-way radio, which the employer emphasized during the interview process. The employee successfully challenged the two-way radio requirement noting that the job description did not identify using a two-way radio and that other employees in similar positions did not use two-way radios.
Even if a job function is essential, an employer cannot immediately separate an employee who cannot perform such function. Instead, an employer must also determine if there is a reasonable accommodation that enables such employee to perform the essential function. In the 2016 case of Cannon v. Jacobs Fied Services., an applicant with an inoperable rotator-cuff injury applied for a job requiring ladder climbing and driving. The applicant’s shoulder injury required him to take prescription pain medicine and prevented him from raising his arm above his shoulder. The employee was medically cleared to perform the job but restricted from driving company vehicles and climbing ladders. The employer was concerned about the prescription medicine use and the ladder climbing restriction — because of the job requirements — and rescinded the job offer. The employee was able to show that he could avoid taking pain medicine during work and offered a video of himself climbing a ladder in an OSHA-compliant manner. This, the court ruled, was enough to overcome summary judgment in favor of the employer.
The EEOC closed out 2016 with a reminder that the next time your employee with performance issues comments that he or she is depressed or suffers some other form of mental condition, you might not be able to discipline the employee right away. On December 12, 2016, the EEOC published a “Your Legal Rights” bulletin emphasizing protections for employees with mental health conditions, including depression. Notably, the EEOC explained that a condition “need not be permanent or severe to be ‘substantially limiting’” and that such conditions are disabilities if they make “activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them.” Even symptoms that “come and go” may be disabilities if they are sufficiently limiting when the symptoms are present. The EEOC identified examples of the types of accommodations an employer would have to offer, which include more breaks or altered break schedules, scheduling work around therapy appointments, “quiet office space,” “changes in supervisory methods” (such as requiring written instructions from a supervisor), specific shift assignments, and “permission to work from home.”
The release of this guidance could be a clarion call for plaintiffs to file EEOC charges in 2017 and beyond centering on alleged discrimination on the basis of a mental health condition. Regardless of whether we see an uptick in this particular brand of disability claim, we do expect 2017 to be an active year for ADA-related charges and lawsuits generally.