We have frequently written about the Americans With Disabilities Act.
The ADA prohibits discrimination against qualified individuals with a disability. An employee can be protected by the ADA because he or she actually has a disability. She can also be protected because the employer perceives her as having a disability, even if he or she doesn't.
Employee and disability advocacy groups have long argued that courts have too narrowly interpreted the ADA. Congress has responded with sweeping changes to the ADA, all geared to making the statute more friendly to employees. For example, under the current ADA, in determining whether an impairment substantially limits a major life activity, courts are to look at the impairment in its medicated or mitigated state. For example, if an employee has high blood pressure, the impairment is viewed in its medicated (i.e. the employee takes blood pressure pills) state.
Under the amended ADA, this rule is significantly changed. Now the question is whether the impairment materially restricts (possibly a lesser standard than substantially limits) a major life activity. The amended ADA prohibits the consideration of measures that reduce or mitigate the impact of the impairment, such as medication, prosthetics and assisted technology. However, impairments relating to vision still will be considered when the employee wears glasses.
Over the next three articles, we will look at two cases and determine how they might be decided under the new ADA. The first case shows that even under the current law, courts can give the ADA an expansive reading.
Consider these facts. A young man with Cerebral Palsy was hired as a pharmacy assistant. Neither at the time of his hire nor at any time later did he ask for any reasonable accommodations in performing his job. In fact, he didn't believe that accommodations were necessary.
The young man worked three days in the pharmacy. He didn't make any mistakes and performed each of the required job duties. However, he performed his work slowly, and his immediate supervisor constantly admonished him to work faster.
The employee was transferred to two other jobs. The first job was to collect shopping carts and to pick up garbage in the parking lot. This was clearly a demotion from the position of pharmacy assistant.
When the employee complained, he was transferred to a second job in the employer's food department. He was not provided with the same training given to new employees in that department. He requested a transfer back to the pharmacy department. The request was denied.
The employee sued under the ADA, claiming in part, that the employer failed to engage in an interactive process with him concerning his disability and failed to provide a reasonable accommodation. Next time, we will share the outcome of the case.
Opinions expressed solely are those of the writer. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.
