This is an update to the blog entry that I previously posted. I am revising it because upon further review, it is NFL season after all (Go Falcons!; Go Cubs too!), I realized that confusion was created over when the amendments to the ADA went into effect versus when the final regulations of the ADA went into effect and what that all means. So, what appears below is a revised blog entry taking into account all of that. I have divided the blog entry into categories: introduction; initial thoughts on the complaint; let’s have some fun; moving away from the hypothetical, confusion still exists; other thoughts; and concluding thoughts. I am not sure how the reader of this blog entry could only read certain categories and not the whole thing (excepting III maybe), but the reader may find the categories helpful for understanding the structure of the entry.

I
Introduction

Previously, I had commented upon the EEOC regulations dealing with accommodating pregnancy. After that blog entry, the United States Supreme Court weighed in on that with Young v. UPS . You can find that blog entry as well as a mention of Young v. UPS in the comments section associated with that blog entry here. I then came across this case, which Robin Shea then wrote a great blog entry on, which can be found here (I sent a blurb about the case along to Robin, but the complaint itself I got from Robin’s blog entry). Robin’s blog entry is great as usual, but I thought I would share some of my own thoughts as well (especially since Robin convinced me that people might be interested in me doing so). So here goes.

II
Initial Thoughts on the Complaint

1. According to the complaint, Landis Communities and Landis Homes Retirement Community are an integrated enterprise maintaining interrelated operations, common management, centralized control of labor relations, as well as common ownership and financial control. They are an organization that manages three senior housing communities and provide eldercare services in Lancaster County Pennsylvania.

2. The occurrences occurred in April 2010 and in March 2011. This seems strange for a couple of reasons (Robin also thought it strange). First, before someone can go to court to file a claim for disability discrimination in employment, they have to exhaust administrative remedies first. That means, they have to file a claim with the EEOC or an equivalent state agency. If there is no equivalent state agency, the claims have to be filed within 180 days of the occurrence. If there is an equivalent state agency (which Pennsylvania apparently is), the deadline gets extended to considerably longer, 300 days. In either event, the right to sue letter was issued by the EEOC in 2015. As Robin points out, something is off here.

III
Let’s have some fun. If this incident had occurred over the time period of 2008 and 2009, then you would have some very interesting legal issues:

1. If the incidents had occurred in 2008 and 2009, the analysis would go like this: First, the ADAAA didn’t go into effect until January 2009. Second, Young v. UPS is a recent case. So, the first question is with respect to a hypothetical occurrence in 2008, would the plaintiff have a disability? Since our hypothetical occurrence occurred in 2008, the rules would be analyzed under the rules in effect prior to the ADAAA. That would mean analyzing whether the plaintiff has a physical or mental impairment that substantially limits a major life activity as it was then analyzed. That in turn, means analyzing whether the plaintiff was prevented or severely restricted from performing a major life activity per Toyota Motor Manufacturing Kentucky v. Williams. It also means asking per that same case whether the major life activity was of central importance to most people’s daily lives. In this particular case, the plaintiff had an incompetent cervix (Robin has an excellent link to what that condition is in her blog entry, which I am posting here for reference).

2. We know from Bragdon v. Abbott, which can be found here, that reproduction is a major life activity. From reading a description of incompetent cervix, it is pretty clear that without surgical intervention, such a condition would prevent or severely restrict a person from becoming pregnant. So, prior to January 2009, a good argument exists that the plaintiff with a hypothetical occurrence in 2008 had a disability under the ADA as it was defined prior to the amendments. But here’s the thing: she requested the accommodation after she had surgery relating to repairing the incompetent cervix. Prior to the amendments to the ADA, the Supreme Court had said in Sutton v. United Airlines , here,that mitigating measures must be factored into the analysis as to whether a person had a disability. So, with respect to a hypothetical occurrence in 2008, the question would become whether she was severely prevented or restricted from reproducing after the surgery? Sutton also talks about how temporary disabilities are not protected by the ADA. In short, with respect to a claim involving the occurrence before January 2009, whether a plaintiff on these facts had a disability is a bit of a nightmare. It means asking whether she was prevented or severely restricted from performing a major life activity (assuming that is the standard that would apply since Toyota explicitly focused on manual tasks. Even so, most courts were extending this definition across disabilities), in this case reproduction, after the surgery since there appeared to be no issue prior to the surgery. It also means asking whether the lifting restriction she requested was for a temporary disability as it was then defined.

IV
Moving Away from the Hypothetical, Confusion Still Exists

1. Even though the ADA, the amendment to the ADA went into effect January 2009, the facts of this case still have plenty of confusion to deal with. The reason being that the EEOC took over two years to publish the final regulations implementing the amendments to the ADA. Those regulations were published on March 25, 2011 and effective May 24, 2011.

2. If you look at the time frame of the occurrences in the complaint, the first occurrence occurred on April 26, 2010, a little more than one full year before the final regulations were published. The second and third occurrences (the advice of the termination already having happened and the date she was actually terminated), occurred on April 12, 2011, and on March 31, 2011, respectively. The 2011 dates dates are after the final regulations were published, but before they became effective. That means, for all of the dates, you are still left with the question of just how the definitional terms would be defined because the final regulations were either not published or not in effect. Absolutely, you have to start with the amendment to the ADA itself but since the regulations were either not published or not in effect, you arguably would only have the statute to go by. That means you would know that mitigating measures are not factored in. You would also know that reproduction would be a major life activity. However, you would not know what it means to be substantially limited in a major life activity. You also would not know how temporary disabilities might be handled. Therefore, because of the timing of the federal regulation, it is possible that the defense could argue that the EEOC final regulations do not apply in this case and that a court would have to look at the statute itself with respect to determining what the definitional terms mean.

V
Other Thoughts

1. The complaint does say that the defendant had a policy or practice of accommodating lifting restrictions of non-pregnant employees similar in their ability or inability to work. However, this policy was in effect long before the decision came down from the Supremes in Young v. UPS. Hard for me to believe that Young would be retroactive.

2. If the final regulations issued by the EEOC do not apply to this case because of the timing of the occurrences, an argument can be made that the plaintiff did not have a disability as defined by the ADA as amended, however, she doesn’t need a disability if she is alleging that she was retaliated against for asserting rights under the ADA. The complaint alleges that the employer placed the plaintiff on an unpaid, indefinite leave of absence on the same day that she submitted her reasonable accommodation request. If that is true, it certainly opens up the employer to a retaliation claim regardless of whether the plaintiff had a disability. Of course, assuming a retaliation claim, whether the plaintiff is able to get compensatory and punitive damages is a completely different question as we discussed in this blog entry.

3. The complaint alleges that starting in April 2010, the plaintiff attempted to engage in the interactive process with the defendants regarding her ability to continue working with reasonable accommodations, but the defendants rebuffed those efforts and failed to offer any reasonable, effective alternative that would allow her to continue working. This also opens up the employer to a failure to engage in an interactive process claim, which depending upon the Circuit a person is in can be a separate cause of action. Regardless of whether such a separate cause of action exists, it also opens up the employer to a claim of terminating the interactive process and subjecting them to liability that way as well. That is, the employer has the obligation to engage in the interactive process once the person with a disability makes that request. The general rule is that the party stopping the interactive process bears the consequences.

4. In April 2010, the complaint alleges that the defendant told the plaintiff to reapply for her old positions after she gave birth and was able to return to work without restrictions. If this allegation is true, the employer has a problem because 100% return to work policies are not kosher. For that matter, that was my view prior to the amendment to the ADA as well (many editions of my book, Understanding the ADA, prior to the amendments act stated as much. Also, readers may want to check out this blog entry on 100% return to work policies).

5. The complaint alleges that in March 2011, the plaintiff applied for a staff nurse and a nurse supervisor position. One month later, the defendants advised her that she had been terminated effective March 31, 2011. Furthermore, she was told by the defendant that they would not consider her for the for the positions which she applied because defendants had no notice that the previous lifting restrictions had ended.

6. The employer told the plaintiff that she was terminated effective March 31, 2011, but she was being given that information on April 12, 2011, that the employer would not reconsider her for position for which she applied because they had no notice that the lifting restrictions had ended. The key here is that she was terminated and now because she was terminated and she has an application in after her termination, she is no longer an employee of the company. That means, the argument is created, which is an argument being made by the EEOC in this complaint, that the employer is making a prohibited pre-employment medical/disability related inquiry. If she had not been terminated, the employer might have been able to argue that the inquiry was job-related and consistent with business necessity, concepts we discussed in this blog entry, but the termination preceded being told the information about the lifting restrictions not being lifted and that such lifting was a necessity prior to being considered for any job that she had applied for. Another item raised by this is whether every job that the plaintiff was applying for had as their essential functions lifting more than 25 pounds, and whether if so, whether that particular essential function could be done with or without reasonable accommodations.

VI
Concluding Thoughts

1. In short, the length of time between when the occurrence happened and when the EEOC is stepping in is a bit problematic.

2. Also, even assuming no issue there with respect to the filing of the EEOC charge, the fact that the adverse employment actions occurred before the final regulations of the EEOC were either published or went into effect makes things a bit of a nightmare as that means the meaning of the definitional terms with respect to this case is uncertain.

3. A retaliation claim would seem to be a distinct possibility as is a claim dealing with prohibited pre-employment disability related inquiries.

3. Finally, this case becomes incredibly complex as befitting the complicated law that the ADA is. There would seem to be good reasons, based upon what we have discussed in this blog entry, why both sides would want to settle this case. It will be interesting to follow developments.

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