Recent Developments Under the Americans With Disabilities Act 


October 16, 1999 Program on Law and the Workplace,
Outline presented by Louis Pechman
New York University School of Continuing and Professional Studies

I. STATUTORY DEFINITION OF “DISABILITY”

A. ADA Definition of Disability

The ADA defines the term “disability” as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2).

Statutory Basis for Pursuit of State and City Claims

“Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.” 42 U.S.C. § 12201(b).

B. New York Human Rights Law Definition of Disability

The New York Human Rights Law (“NYHRL”) defines “disability” as “(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.” NY Executive Law § 292(21)(1998).

New York City Human Rights Law Definition of Disability

The New York City Human Rights Law defines a disability as “any physical, medical, mental or psychological impairment, or history or record of such impairment.” NYC Administrative Code § 8-102(16) (1997).

An Example of Disability Under State but not Federal Law

In contrast with the ADA, the NYHRL and NYCHRL do not require individuals to identify a major life activity that is substantially limited by an impairment to satisfy its definition of disability.

In Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 156 (2d Cir. 1998), an Airport Operations Supervisor suffering from “Panic Disorder with Agoraphobia,” precipitated by a vacation trip to Disney World, was barred from suing his former employer under the ADA due to his failure to identify a major life activity which was substantially limited by his alleged disability. His claim under the New York State Human Rights Law, however, was viable, as that statute has no analogous requirement for the identification of an impaired major life activity. Under state law, it is sufficient if the impairment substantially limits the individual’s normal activities.

II. THE EVOLVING DEFINITION OF DISABILITY UNDER THE ADA

Supreme Court Pronouncements

“The [ADA] addresses substantial limitations on major life activities, not utter inabilities.” Bragdon v. Abbott, 118 S. Ct. 2196 (1998).

A “mere difference” in the individual’s manner of performing a major life activity is not substantial; the ADA “concerns itself only with limitations that are in fact substantial.” Albertsons, Inc. v. Kirkingburg, 1999 U.S. LEXIS 4369, at *23 (S. Ct. June 22, 1999).

“The determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis.” 29 CFR pt. 1630, App., § 1630.2(j) (1998), quoted with approval in Albertsons, Inc. v. Kirkingburg, 1999 U.S. LEXIS 4369, at *20 (S. Ct. June 22, 1999).

Where are the 43 million disabled Americans?

“[T]he ADA protects only a limited class of persons — individuals who suffer from impairments significantly more severe than those encountered by the average person in every-day life. The ADA does not protect people who endure short-term setbacks, or who suffer from slight shortcomings. Physical or mental limitations that are both minor and commonplace do not constitute a disability under the ADA.” Sweet v. Electronic Data Systems, Inc., 1996 U.S. Dist. LEXIS 5544, at *11 (S.D.N.Y. 1996).

A diagnosis of a clear physical impairment such as multiple sclerosis does not automatically constitute disability under the ADA. The claimant must still prove that she is substantially limited in a major life activity. Sorensen v. Univ. Of Utah Hosp., 1998 U.S. Dist. LEXIS 4309, at *9 (Utah. 1998).

UPS employee who was unable to lift items in excess of thirty pounds, to sit for periods longer than 3 hours at a time, and to engage in certain leisure activities was not disabled. Kirkendall v. United Parcel Service, Inc., 964 F. Supp. 106, 109 (W.D.N.Y. 1997).

Nurse who testified at a deposition that her multiple sclerosis did not limit her activity could not establish that she has an impairment that limits a major life activity. Kocsis v. Multi-care Management, Inc., 97 F.3d 876, 884 (6th Cir. 1996).

Plaintiff’s inability to sit or stand for more than two hours at a time without having difficulty, walk with a limp and inability to lift things over twenty pounds held to constitute no more than “comparatively moderate restrictions.” Horth v. General Dynamics, 960 F. Supp. 873, 878 (M.D. Pa. 1997).

Employee with colitis not disabled even though when symptomatic it severely limits her ability to control her elimination of waste and she sometimes soils herself. Ryan v. Grae & Rybicki, P.C., 1998 U.S. App. LEXIS 1863 (2d Cir. 1998).

Disability status denied to a plaintiff who could not lift more than twenty pounds, use vibrating equipment, or make repetitive use of her right hand. Mckay v. Toyota Motor Mfg., U.S.A., 110 F.3d 369, 373 (6th Cir. 1997).

C. The Major Life Activities

“Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2(i).

“A physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA [because] the statute requires an impairment that substantially limits one or more life activities.” Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).

“Nothing in the definition suggests that activities without a public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside the meaning of the word ‘major.’ The breadth of the term confounds the attempt to limit its construction in this manner.” Bragdon v. Abbott, 118 S. Ct. 2196 (1998).

Working

“With respect to the major life activity of working, the term ‘substantially limits’ means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3).

A document control clerk with carpal tunnel syndrome who is unable to perform 122 of 235 jobs due to her impairment is not significantly restricted from working in the entire class of jobs, in light of her training for clerical work, her completion of an A.S. in management and her capability of performing most of the tasks necessary for clerical work. Martin v. Lockheed Martin Missiles & Space, 7 A.D. Cases, 1861 (N.D. Calif. 1998).

Carpal tunnel syndrome can create a substantial limitation on the major life activity of working where sufficient evidence demonstrates that the condition restricts an individual’s ability to perform a class of jobs or a broad range of jobs in various classes. Dalton v. Subaru-Isuzu Automotive, Inc., 1998 U.S. App. LEXIS 5990, at *20-23 (7th Cir. 1998).

An employee with breast cancer who had a lumpectomy and received radiation treatment was not limited in the major life activity of “working” where she never missed a day of work, continued working on a modified schedule and was “back to normal” within five months. Ellison v. Software Spectrum, Inc., 85 F.3d 187 (5th Cir. 1996).

Inability to tolerate stressful job situations is not an impairment for purposes of the ADA. Mundo v. Sanus Health Plan, 966 F. Supp. 171 (E.D.N.Y. 1997).

Attorney with obsessive compulsive disorder who alleged only that his condition limited his ability to perform in the stressful position he held as assistant general counsel did not demonstrate an impairment that substantially limits his ability to work. Sherman v. New York Life Ins. Co., 1997 U.S. Dist. LEXIS 1141 (S.D.N.Y. 1997).

A former employee, allegedly suffering from post-traumatic stress disorder (PTSD) after rescuing a drowning woman, was barred from suing his employer where the court determined that the PTSD only temporarily impaired the major life activity of working, particularly in light of the employee’s ability to continue working at the job and, after his discharge, to run his own software distribution business and obtain another position with a competitor. Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047 (5th Cir. 1998).

A plaintiff who is unable to work with specific individuals who cause him “prolonged and inordinate stress” is not substantially limited in the major life activity of working, as he is not incapable of performing a “class of jobs or a broad range of jobs in various classes.” Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998).

“Because the ADA does not entitle an individual to the job of his choice, the inability to obtain or retain one particular job does not qualify as a substantial impairment in the major life activity of working. Rather, the impairment becomes a disability only after it substantially impairs an individual’s ability to perform a particular class of jobs, or a broad range of jobs in various classes.” DeMar v. Car-Freshner Corp., 49 F. Supp. 2d 84, (N.D.N.Y. 1999).

Seeing

“The need for corrective eyewear could reasonably be characterized as ‘commonplace’ . . . ‘minor’ and ‘widely shared.'” Joyce v. Suffolk County, 911 F. Supp. 92, 96 (E.D.N.Y. 1996).

Lifting

“[A]s a matter of law, a twenty-five pound lifting limitation – particularly when compared to an average person’s abilities – does not constitute a significant restriction on one’s ability to lift, work or perform any other major life activity.” Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 349 (4th Cir. 1996), cert. denied, 117 S.Ct. 1844 (1997).

Breathing

ADA plaintiff with respiratory problems who claimed to suffer adverse effect from environmental tobacco smoke pleaded legally sufficient impairment of major life activity of “breathing.” Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d 958, 962 (7th Cir. 1996).

Caring for Oneself

“Plaintiff’s inability to do anything with her hair but comb and blow dry it does not substantially limit her ability to care for herself.” Popko v. Pennsylvania State University, 994 F. Supp. 293, 298 (M.D. Pa. 1998).

Ability to Get Along

“The concept of ‘ability to get along with others’ is remarkably elastic, perhaps so much so as to make it unworkable as a definition. While such an ability is a skill to be prized, it is different in kind from breathing or walking, two exemplars which are used in the regulations. Further, whether a person has such an ability may be a matter of subjective judgment; and the ability may or may not exist depending on context. Here, [plaintiff’s] alleged inability to interact with others came and went and was triggered by vicissitudes of life which are normally stressful for ordinary people — losing a girlfriend or being criticized by a supervisor. [Plaintiff’s] last depressive episode was four years earlier, and he had no apparent difficulties in the interim. To impose legally enforceable duties on an employer based on such an amorphous concept would be problematic. It may be that a more narrowly defined concept going to essential attributes of human communication could, in a particular setting, be understood to be a major life activity, but we need not address that question here.” Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997).

“[I]nability to get along with others is not the sort of activity within the ADA’s purview of a major life activity.” Brieland v. Advance Circuits, Inc., 976 F. Supp. 858, 863 (D. Minn. 1997).

Recreational Activities

“[P]laintiff’s right arm condition restricts her from playing the piano, swimming, or playing sports involving dexterity of the arms. There is no basis to conclude, and plaintiff has provided no authority for the proposition, that these leisure activities are major life activities.” Popko v. Pennsylvania State University, 994 F. Supp. 293, 298 (M.D. Pa. 1998).

Plaintiff’s problem reading, sitting in a theater, and restrictions on driving with one arm did not substantially limit a major life activity. Ouzts V. USAir, Inc., 1996 U.S. Dist. LEXIS 11610 (W.D. Pa. 1996).

Restrictions on “skiing, football, tennis, basketball, bowling” do not substantially limit a major life activity. Kirkendall v. United Parcel Service Inc., 964 F. Supp. 106, 110 (W.D. N.Y. 1997).

Sex

Claim that a secretary’s colitis limited her major life activity of sex was rejected by the court. Plaintiff’s claimed disinterest in sex did not rise to the level of an impairment of the reproductive system. Johnson v. New York Medical College, 1997 U.S. Dist. LEXIS 14150 (S.D.N.Y. 1997).

Incontinence

A plaintiff who could control incontinence through the use of “Depends” and bringing a change of clothing, and who has always been able to perform all facets of her work as a licensed practical nurse without any accommodation, could not demonstrate that her incontinence substantially interferes with a major life activity. As a result, she was unable to prove that her incontinence is a disability pursuant to the ADA. Hensley v. Baptist Hospital, 1997 U.S. Dist. LEXIS 22515, at *18 (East. Dist. Tenn. 1997).

Because loss of bowel control caused by a spastic colon aggravated by multiple sclerosis did not interfere with a major life activity, it does not constitute a disability. Hileman v. City of Dallas, 116 F.3d 352, 354 (5th Cir. 1997).

D. Consideration Of Mitigating Measures

“[T]he determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment, including, in this instance, eyeglasses and contact lenses.” Sutton v. United Air Lines, Inc., 1999 U.S. LEXIS 4371, at *9 (June 22, 1999).

“We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body’s own systems.” Albertsons, Inc. v. Kirkingburg, 1999 U.S. LEXIS 4369, at *19 (June 22, 1999).

E. “Qualified Individual With Disability”

Statutory Definition

The ADA defines “qualified individual with a disability” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such an individual holds or desires.” 42 U.S.C. § 12111(8).

The ADA definition mandates a two pronged inquiry, first as to whether the disabled individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position desired and second, whether the individual can perform the essential functions of such position with or without accommodation.

Judicial Interpretation

To be considered a “qualified individual with a disability,” plaintiff had to present evidence that “he possessed the necessary skills to perform his job and that he was ‘willing and able to demonstrate these skills by coming to work on a regular basis.'” Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998). In Nowak, the plaintiff failed to provide any evidence, medical or otherwise, that he was able to perform the essential functions of regular attendance required of a teacher, where he had suffered from medical conditions requiring open heart surgery, stabilization of his spine, operations on both hands and above-the knee amputation of his left leg.

An assembly-line worker with tendinitis and tenosynovitis is prevented from performing any assembly-line job where she produced evidence including (1) demonstration of her preclusion from more than her production line job, and (2) the agreement of two physicians that she was disabled from performing virtually any employment which required repetitive motions of her right hand, despite her ability to use that hand for less strenuous work and the fact that there was no need to impose weight restriction on her. She was, therefore, not “a qualified individual with a disability” as her own experts demonstrated her inability to satisfy the essential functions of her job, or that of any other job with her employer. DePaoli v. Abbott Laboratories, 140 F.3d 668, 674 (7th Cir. 1998).

The termination of a loan review analyst whose job required him to be in the office regularly, as near to normal business hours as possible, and to work a full schedule who could not fulfill these essential functions, even with a requested flex-time schedule did not violate the ADA because he was not “otherwise qualified for the job.” Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998).

Plaintiff was not qualified for the position of gas delivery driver as a matter of law where he suffered from a condition which caused a loss of concentration and memory, as a result of which, plaintiff admitted that it was possible for him to run over someone with his truck and not notice it. Newman v. Chevron, 979 F. Supp. 1085, 1997 U.S. Dist. LEXIS 16387, at *16 (S.D. Tex. 1997).

F. “Being Regarded As Having Such Impairment”

“This part of the definition protects people who are not substantially limited in a major life activity from discriminatory actions taken because they are perceived to have such a limitation. Such protection is necessary, because, as the Supreme Court has stated and the Congress has reiterated, ‘society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments.’

The legislative history of the ADA indicates that Congress intended this part of the definition to protect people from a range of discriminatory actions based on ‘myths, fears and stereotypes’ about disability, which occur even when a person does not have a substantially limiting impairment.

An individual may be protected under this part of the definition in three circumstances:

1.The individual may have an impairment which is not substantially limiting, but is treated by the employer as having such an impairment.

2.The individual has an impairment that is substantially limiting because of attitudes of others toward the condition.

3.The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment.”

EEOC Technical Assistance Manual § 2.2(c).

“There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual – it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.” Sutton v. United Air Lines, Inc., 1999 U.S. LEXIS 4371, at *33 (June 22, 1999).

“Regarded As” Prong Established

“[I]n light of petitioner’s skills and the array of jobs available to petitioner utilizing those skills, petitioner has failed to show that he is regarded as unable to perform a class of jobs. Rather, the undisputed record of evidence demonstrates that petitioner is, at most, regarded as unable to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner is regarded as substantially limited in the major life activity of working.” Murphy v. United Parcel Service, Inc., 1999 U.S. LEXIS 4370, at *16 (June 22, 1999).

“[A] reasonable jury could infer that [an employer] regarded [his employee] as suffering from a disabling mental condition that substantially limited his ability to work” when the employer “asked [the employee] if he was having any ‘problems’, . . . encouraged [him] to seek counseling through [the employer’s] EAP, [and] received several doctor’s reports diagnosing [the employee] with depression, anxiety and stress.” Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996).

A “reasonable fact finder” could infer that a supervisor perceived plaintiff to be disabled where his written evaluation of plaintiff’s performance made multiple references to plaintiff’s absence due to illness, the supervisor had discussed these absences with plaintiff, and the absences caused the supervisor to question plaintiff’s commitment to the job. Olson v. General Electric Aerospace, 101 F.3d 947, 954 (3d Cir. 1996).

There existed sufficient evidence of a material issue of fact where a medical center documented confusion as to the extent of a nurse’s ability to push, pull and lift, where it fundamentally misunderstood and exaggerated the limitations that a wrist injury imposed on her, and it failed to evaluate her, contact her physicians, or independently review her medical records and instead relied on a single phone call with her. Deane v. Pocono Medical Center, 142 F.3d 138 (3d Cir. 1998).

“Regarded As” Prong Not Established

“[T]he mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action.” Kelly v. Drexel University, 94 F. 3d 102, 109 (3d Cir. 1996).

“It would be inconsistent with these purposes to construe the [ADA] to reach alleged discrimination by an employer on the basis of a simple physical characteristic such as weight. This would make the central purpose of the statutes, to protect the disabled, incidental to the operation of the ‘regarded as’ prong, which would become a catch-all cause of action for discrimination based on appearance, size and any number of other things far removed from the reasons the statutes were passed.” Francis v. Meriden, 129 F.3d 281, 287 (2d Cir. 1997).

Despite a school district’s general awareness of a guidance counselor’s depression and related treatment, criticism in a performance evaluation was merely identification of deficiencies in work and did not establish that it regarded her as disabled. Olson v. Dubuque Community School Dist., 137 F.3d 609, 1998 U.S. App. LEXIS 3270, at *7 (8th Cir. 1998).

“. . . [Plaintiff] cannot prove that the NYPD perceived her as disabled within the meaning of the ADA merely by proving that the NYPD believed her to be unfit for the single job of police officer.” Tubens v. Police Dept. of the City of New York, 48 F. Supp. 2d 412 (S.D.N.Y. 1999).

III. REASONABLE ACCOMODATION

A. Statutory Basis

ADA

The ADA does not define the term “reasonable accommodation,” but does note that the term may include: “(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9).

New York Human Rights Law

The New York Human Rights Law defines the term “reasonable accommodation” as “actions taken which permit an employee, prospective employee or member with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which actions is requested.” N.Y. Exec. Law § 292(21-e) (1998).

New York City Human Rights Law

The New York City Human Rights Law defines the term “reasonable accommodation” to mean “such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business.” NYC Administrative Code § 8-102(18).

Burden of Proof

“The plaintiff, as the party who must prove that he or she can perform the essential functions of the position with or without reasonable accommodation, bears the burden of showing the existence of a reasonable accommodation.” Feliciano v. State of Rhode Island, et al., 160 F.3d 780, 786 (1st Cir. 1998).

B. Scope of Reasonable Accommodation Duty

“[T]he ADA does not require an employer to relieve the employee of any essential functions of the job, modify the actual duties, or reassign existing employees or hire new employees to perform those duties.” Robertson v. The Neuromedical Center, 161 F.3d 292, 295 (5th Cir. 1998).

“The ADA does not require an employer to accommodate a disability by foregoing an essential function of the position or by reallocating essential functions to make other workers’ jobs more onerous.” Feliciano v. State of Rhode Island, 160 F.3d 780, 785 (1st Cir. 1998).

“We do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled.” Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), cert. denied, 516 U.S. 1172 (1996).

“[N]othing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congress intended simply that disabled persons have the same opportunities available to nondisabled persons.” Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996).

“An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced.” Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538, 544 (7th Cir. 1995).

The ADA does not require such extreme measures as reinstating an employee suffering from uncontrollable depression whenever he resigns during a depressive episode. Wooten v. ACME Steel Co., 986 F. Supp. 524 (N.D. Ill. 1997).

Accommodations requested by plaintiff are “unreasonable” where they “would fundamentally alter the position and eliminate many of the essential functions” of the position. DeMar v. Car-Freshner Corp., 49 F. Supp.2d 84, 86 (N.D.N.Y. 1999).

C. The Interactive Process

“To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3).

“In order to be entitled to an accommodation, the employee must inform the employer that an accommodation is needed.” Cannice v. Norwest Bank Iowa N.A., 1999 U.S. App. LEXIS 18762, at *6 (8th Cir. August 13, 1999).

“[T]he employee’s failure to provide medical information necessary to the interactive process precludes her from claiming that the employer violated the ADA by failing to provide reasonable accommodation. An employer cannot be expected to propose reasonable accommodation absent critical information on the employee’s medical condition and the limitations it imposes.” Templeton v. Neodata Services, Inc., 162 F.3d 617, 619 (10th Cir. 1998).

“The statute does not require that the employee’s request for accommodations include the words ‘reasonable accommodations.’ Rather it requires only that the employee articulate a request for accommodations that are themselves reasonable, as defined by the statute.” Sidor v. Reno, 1997 U.S. Dist. LEXIS 14260, at *22 (S.D.N.Y. Sept. 19, 1997).

“No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.” Beck v. University Of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).

“[P]roperly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say ‘I want a reasonable accommodation,’ particularly when the employee has a mental illness. The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.” Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1286 (7th Cir. 1996).

“An infertile woman whose treatment causes emotional distress that leads to insubordination. . . [permits] a reasonable inference [to] be drawn that disability-induced irrationality renders the employee unable to initiate the process. . . . [W]hen confronted with her insubordinate outburst the University had a responsibility under the ADA to take the small step of sitting down and talking about the situation, assuming the outburst was known to be a product of plaintiff’s disability.” Erickson v. Board of Governors, 1997 U.S. Dist. LEXIS 13313, at *18 (N.D. Ill. 1997).

D. Transfer/Reassignment

Employee was not entitled to insist upon a transfer in preference to the restructuring of his current job. Corrigan v. Perry, 1998 U.S. App. LEXIS 5859, at *25 (4th Cir. 1998).

“[E]mployer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” 29 C.F.R. § 1630.9 App.

“Employers cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies, but they are not required to find another job for an employee who is not qualified for the job he or she was doing. Schmidt v. Methodist Hospital of Indiana, Inc., 89 F.3d 342, 344 (7th Cir. 1996).

“Under the ADA, an employer need only reassign the employee to a vacant position. Generally, transfer or reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship. An employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available. However, a reassignment will not require creating a new job, moving another employee, promoting the disabled employee, or violating another employee’s rights under a collective bargaining agreement.” Cassidy v. Detroit Edison, 138 F.3d 629, 634 (6th Cir. 1998).

“[T]he ADA does not require an employer to promote a disabled employee as an accommodation, nor must an employer reassign the employee to an occupied position, nor must the employer create a new position to accommodate the disabled worker.” White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995).

“[W]e have been unable to find a single ADA or Rehabilitation Act case in which an employer has been required to reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer, and for good reason. The contrary rule would convert a nondiscrimination statute into a mandatory preference statute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of the disabled employees.” Dalton v. Subaru Isuzu Automotive, Inc., 1998 U.S. App. LEXIS 5990, at*35 (7th Cir. 1998).

“Although part-time work, as the statute and regulations recognize, may be a reasonable accommodation in some circumstances (particularly where the employer has part-time jobs readily available), we hold that USAir was not required to create a part-time position for plaintiff where all part-time positions had already been eliminated from the company.” Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998).

“Because most jobs involve ‘team work under supervision rather than solitary unsupervised work, team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance,’ an employer is not generally required to accommodate a disability by allowing the disabled worker to work at home.” Stanley v. Prange, Inc., 25 F. Supp. 2d 581, 584 (E.D.Pa. 1998), quoting Vande Zande v. State of Wisconsin Dept. of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995).

E. Effect of Collective Bargaining Agreement

“A plain reading of the ADA supports the conclusion that an accommodation that would compel an employer to violate a collective bargaining agreement is unreasonable.” Willis v. Pacific Maritime Ass’n, 162 F.3d 561, 566 (9th Cir. 1998).

“Following the other circuits which have considered this issue, we hold that the ADA does not require an employer to take action inconsistent with the contractual rights of other workers under a collective bargaining agreement.” Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997).

“Requiring an employer to violate the collective bargaining agreement in situations where the employer regards the infringement on seniority rights as insubstantial and the accommodation reasonable unfairly would expose the employer to potential union grievances as neither the union nor the arbitrator hearing a grievance would be required to disregard violations of the collective bargaining agreement. Thus, a rule requiring an employer to violate seniority rights would subject the employer to the cost of defending itself against grievances as well as to risk that it might be subject to a costly remedy. Accordingly, even minor infringements on other employee’s seniority rights impose unreasonable burdens on employers who, by reason of those infringements, must face the consequences of violating the collective bargaining agreement.” Kralik v. Durbin 130 F.3d 76, 1997 U.S. Dist. LEXIS 34829, at *22 (3d Cir. 1997).

IV. JOB PERFORMANCE ISSUES

A. Can The Employee Do The Job With Or Without A Reasonable Accommodation?

“[A] worker has no claim under the ADA if she, even with a reasonable accommodation, cannot do the job for which she was hired.” Depaoli v. Abbott Laboratories, 1998 U.S. App. LEXIS 5992, at *17 (7th Cir. 1998).

“It is irrelevant that the lack of qualification is due entirely to a disability.” Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1195 (7th Cir. 1997).

The ADA does not prohibit an employer from terminating an individual who can no longer perform the essential functions of his position even with reasonable accommodation. Such individuals fall outside the scope of the Act’s protection. Smith v. Midland Brake, Inc. 1998 U.S. App. LEXIS 4495, at *11 (10th Cir. 1998).

“The duty of reasonable accommodation does not encompass a responsibility to provide a disabled employee with alternative employment when the employee is unable to meet the demands of his present position.” Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995).

B. Attendance

“[A]n employee who does not come to work cannot perform the essential functions of his job.” Nowak v. St. Rita High School, 142 F.3d 999, 1003 (7th Cir. 1998).

C. Disability As An Excuse For Behavior

“[I]f an employer fires an employee because of the employee’s unacceptable behavior, the fact that the behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act.” Palmer v. Circuit Court of Cook County, 117 F.3d 351, 352 (7th Cir. 1997).

“Congress, in enacting the ADA, intended to prohibit unfair stereotypes about the disabled but not to shield the disabled from the consequences of misconduct.” Den Hartog v. Wasatch Academy, 909 F.Supp 1393, 1401 (D.Utah 1995).

“[T]he ADA does not insulate emotional or violent outbursts blamed on an impairment. An employee who is fired because of outbursts at work directed at fellow employees has no ADA claim.” Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1052 (5th Cir. 1998).

“Employers subject to the Rehabilitation Act and ADA must be permitted to take appropriate action with respect to an employee on account of egregious or criminal conduct, regardless of whether the employee is disabled. In the instant case, for example, while alcoholism might compel [plaintiff] to drink, it did not compel him to operate a motor vehicle or engage in the other inappropriate conduct reported. Likewise, suppose an alcoholic becomes intoxicated and sexually assaults a coworker? We believe that it strains logic to conclude that such action could be protected under the Rehabilitation Act or the ADA merely because the actor has been diagnosed as an alcoholic and claims that such action was caused by his disability.” Maddox v. University of Tennessee, 62 F.3d 843, 848 (6th Cir. 1995).

“Failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.” McPherson v. MHSAA, 119 F.3d 453, 460 (6th Cir. 1997) (en banc).

Employee’s testimony that his diabetes was the reason he engaged in the rudeness that precipitated his discharge “might itself support his claim of discrimination” under the ADA. Gilday v. Mecosta Co., 1997 U.S. App. LEXIS 33306, n.7 (6th Cir. 1997).

The ADA permits an employer to “hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for . . . job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” 42 U.S.C. § 12114(c)(4). See also Brown v. Lucky Stores, Inc., 1999 U.S. Dist. LEXIS 1416, at *7-8 (N.D.Ca. February 8, 1999).

“[M]isconduct — even misconduct related to a disability — is not itself a disability, and an employer is free to fire an employee on that basis.” Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 n.3 (4th Cir. 1997).

D. Coping With Job Stress

“The major life activity of working is not ‘substantially limited’ if a plaintiff merely cannot work under a certain supervisor because of anxiety and stress related to his review of her job performance.” Weiler v. Household Finance Corp., 101 F. 3d 519, 524-25 (7th Cir. 1996).

Inability to tolerate stressful job situations is not an impairment for purposes of the ADA. Mundo v. Sanus Health Plan, 1997 U.S. Dist. LEXIS 9012 (S.D.N.Y. 1997).

Attorney with obsessive compulsive disorder who alleged only that his condition limited his ability to perform in the stressful position he held as assistant general counsel did not demonstrate an impairment that substantially limits his ability to work. Sherman v. New York Life Ins. Co., 1997 U.S. Dist. LEXIS 1141 (S.D.N.Y. 1997).

“[R]equest to be transferred away from individuals causing [employee] prolonged and inordinate stress was unreasonable as a matter of law under the ADA.” Gaul v. Lucent Technologies, Inc., 1998 U.S. App. LEXIS 14403 (3d Cir. 1998).

“While specific stressors in a work environment may in some cases be legitimate targets of accommodation, it is unreasonable to require an employer to create a work environment free of stress and criticism.” Gonzagowski v. Widnall, 115 F.3d 744, 748 (10th Cir. 1997).

V. SOCIAL SECURITY

“[P]ursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA. Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant’s motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions’ of her previous job, at least with ‘reasonable accommodation.'” Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597, 1600 (1999).

VI. DIRECT THREAT

“The existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based on medical or other objective evidence. . . . belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability.” Bragdon v. Abbott, 118 S. Ct. 2196, 2210 (1998).

The duty of reasonable accommodation does not run “in favor of employees who commit or threaten to commit violent acts.” Palmer v. Circuit Court of Cook County, 117 F.3d 351, 353 (7th Cir. 1997).