The ABA Journal is, again, seeking nominations for its list of the 100 best legal blawgs, the “Blawg 100.” The nomination process is simple. Go here and answer a few simple questions touting your favorite blawgs. In addition to this one, there are many good blogs out there. For example, the ones that I use frequently, I have listed in my blog roll.

Turning to the question of the week. Let’s say an employer has someone who is 4’10” tall. That someone gets on the employer’s nerves and the employer retaliates by telling her that she has to drive a car that she can’t possibly drive due to her height. She of course can’t do that. Therefore, the employer fires her. She sues alleging disability discrimination because she is only 4’10” tall. Does she survive a motion to dismiss? Will she survive a motion for summary judgment?

The above was pretty much the scenario in the case of McElmurry v. Arizona Department of Agriculture (Docket number:CV-12-02234-PHX-GMS, D. Ari. June 11, 2013). In this case, the plaintiff worked at a lab in Yuma, Arizona, and her job consisted of screening traps set by other employees in the field. It wasn’t a happy place to work, and the plaintiff attempted to raise health concerns with the person who oversaw the program she worked in. Those concerns were not taken seriously, and people who complained of health problems were sent to the field of fired regardless of their physical condition. They also had their workers compensation claims denied. Things went from bad to worse. In the end, her supervisor assigned her to fieldwork despite the fact that the plaintiff said that she would not be able to drive the vehicle due to her small stature. Once she was in fieldwork, she suffered an injury. Eventually, the plaintiff was fired and was told that since Arizona’s a right to work State, they could fire you anytime they wanted without reason. She filed suit under both the Age Discrimination in Employment Act and under the ADA. The defendant filed a motion to dismiss.

The defendant’s motion to dismiss was based on two grounds. First, sovereign immunity prevented a lawsuit involving the Age Discrimination in Employment Act. Second, since all the plaintiff was, was short, being short was not a disability under the ADA. With respect to the Age Discrimination in Employment Act claim, the court held that the state was protected by sovereign immunity. With respect to the ADA claim, the court relied on the EEOC’s interpretation of 29 C.F.R. § 1630.2(h) that said their view (EEOC), of the term “impairment,” does not include physical characteristics such as eye color, hair color, being left-handed, height, weight, or muscle tone that are within normal (emphasis mine) range and are not the result of a physiological disorder. The court said that a motion to dismiss was too soon to throw out the case because her height was alleged to be outside the normal range. Also, the court said that it was plausible that height in some contexts could substantially limit one or more of the major life activities of the individual. Accordingly, the defendant’s motion to dismiss on the ADA claim was denied.

One of the things that academicians (which I used to be), share with attorneys who counsel in the ADA (which I am), is that they are always looking for cases that push the envelope. Academicians do that to move the legal paradigm. Whereas, people who counsel in the ADA, do that to get a sense of where the law might be heading and to suggest ways to head off future lawsuits. That said, in a case such as this, it’s important to delve deeper to see just what are the risks, in this case to the employer. Once you do that, I do believe that an employer has many ways to defend claims such as this.

First, it is curious as to why sovereign immunity was raised successfully with respect to the Age Discrimination in Employment Act, but does not appear to have been raised with respect to the ADA. That seems to be a bit odd. After all, under Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), sovereign immunity with respect to title I of the ADA is very much in play. On the surface, it seems there may have been a missed opportunity here unless, Arizona did not waive its sovereign immunity with respect to the Age Discrimination in Employment Act but did with respect to the ADA (I have not done the research on that, but this would seem very unlikely to be true).

Second, there is a roadmap for successfully defending against a claim of height being a disability where that height is not due to any physiological disorder or condition. That roadmap would work like this. First, the ADA, even as amended, doesn’t define what a physical or mental impairment is. Second, the EEOC in their final regulations does define what a physical impairment means. They say that a physical impairment (emphasis mine), is, “ any physiological disorder or condition, (emphasis added) cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1). The way this regulation is phrased, it would seem clear that a physical impairment must be a physiological disorder or condition. It would also seem clear that “physiological,” applies to both “disorder,” and, “condition,” and that some kind of impairment must be involved. Third, it is true that in the appendix the EEOC says that impairment might include a physical characteristics such as height that is outside the normal range and not the result of a physiological disorder (see above), but anything that appears in the appendix is an interpretation of the regulation put out by the EEOC and since that interpretation itself did not go through the formal rulemaking process, the court is free to ignore it.

Lesson learned: there are several things we can take away from this case. First, just because an employer is in a right to work state, that does not mean they are free to ignore applicable antidiscrimination laws. Second, on the defense side, if a defendant has the opportunity to do so, it should argue sovereign immunity. Sovereign immunity is very much in play with respect to title I of the ADA. Third, if you are an employer, and you get sued claiming discrimination under the ADA because a person was short, you are going to want to assess whether that person’s height is due to a physiological condition or disorder that is the result of an impairment versus whether he or she is just short. Also, you are going to want to argue, that the “outside normal range,” language contained in the appendix is not something that the court should follow since that language did not go through proper rulemaking process. Finally, employers need to have systems in place so that their employees are trained so that the kind of environment detailed in this case does not occur and when it does, it is not tolerated.