“Beware of Smelly Employees” Warns the ADA

Emma Gripshover, Associate Member, University of Cincinnati Law Review

The  Americans with Disabilities Act of 1990 (ADA) has sparked a lot of attention in the courts lately, with more and more employees finding creative ways to file employment discrimination cases.[1] Employers need to stay up to date on recent ADA case law in order to avoid employment discrimination claims in their own workplace.

The ADA protects employees with disabilities from employment discrimination and applies to all employers with fifteen or more employees.[2] An employee is considered to have a disability if he or she has a physical or mental disability that substantially limits a major life activity.[3]  The law was passed in 1990 and amended to expand the definition of disability in 2008. Throughout this timeframe, the ADA has been widely interpreted by courts. The following ADA cases serve as a starting-point for employers to stay up-to-date on courts’ recent expansion of rulings on the ADA in the employment context.

  1. Stinky Coworkers: EEOC v. Advanced Home Care, Inc. 305 F. Supp. 3d 672 (M.D.N.C. 2018)

An employee suffering from Asthma and COPD requested permission to work from home as a “reasonable accommodation” under the ADA.[4] Her basis for the for the request was that the scents and odors of her nearby coworkers in their cubicles aggravated her disabilities.[5] After exhausting all of her medical leave, the employer informed the employee that she would be terminated if she could not return to work without restrictions.[6] After termination, the employee filed a claim against her employer under the ADA.[7] The employer filed a motion to dismiss and the District Court denied the Defendant’s motion to dismiss, reasoning that the employee was qualified for the position and could perform the essential functions of the job with the requested accommodation.[8]

Key Take-Away for Employers: The ADA’s Reasonable accommodation requirement should be taken seriously no matter how trivial the employee’s request for accommodation may seem.  

  1. Obesity: Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016)

An employee’s offer to work as a machinist was revoked after his employer discovered through required medical review that the employee was morbidly obese with a Body Mass Index (BMI) of 40.[12]

Key Take-Away for Employers: An employee’s obesity is not considered to be a physical impairment and may be a legitimate reason for termination if the employee’s weight impedes on his or her ability to perform the essential job functions without reasonable accommodations. One caveat: If the employee’s obesity is the result of an underlying physiological disorder, then the obesity may be considered a physical impairment under the ADA.

  1. Mental Health: Williams v. AT&T Mobility Services, LLC, 847 F.3d 384 (6th Cir. 2017)

An employee working at a call center consistently missed work due to her depression and anxiety attacks.[14] After the employer warned the employee several times about the company’s absenteeism policy and the employee did not return to work, the employer terminated the employee.[15] The District Court granted summary judgment in favor of the employer.[16] The Sixth Circuit affirmed the grant of summary judgment on the grounds that the employee was unqualified for her position because of her excessive absenteeism.[17] The court reasoned that even with reasonable accommodations, such as flexible scheduling and modified breaks, the employee still could not perform the essential functions of her job.

Key Take-Away for Employers: To avoid situations like Williams, Employers must be extremely specific about job requirements on their job applications. If an application states that regular attendance is a job requirement, the courts will be much more likely to rule in favor of the Employer.

 

  1. Otherwise Qualified Employees. Whitacker v. Wisconsin Dep’t of Health Servs, 849 F.3d 681 (7th Cir. 2017)

An employee suffering from a recent back injury exhausted all of her Family Medical Leave Act (FMLA) leave while recovering. The employee then used her thirty days of unpaid leave to care for her ill father.[20] The employee submitted a doctor’s note from her physician requesting additional unpaid leave, but the employer terminated her regardless of the doctor’s note.[21] The Seventh Circuit held that the employee was not an “otherwise qualified” employee required by the ADA because she could not prove that she could meet the job requirements (e.g. regular attendance) even with an accommodation. [22] The court reasoned that the requested accommodation “amounted to an open-ended leave request”, which was unduly burdensome on the employer.[23]

Key Take-Away for Employers: Doctor’s notes may be legally supportive of an employee’s position, but they are not a mandatory order to keep an unqualified employee on your staff. If it is clear that an employee is not otherwise qualified for the position and cannot perform the essential job functions with reasonable accommodation, there is no reason to exhaust time and energy on the employee. That being said, see EEOC v. Advanced Home Care, Inc. above, where the court found in favor of an employee under similar circumstances. [24]

Conclusion

These cases demonstrate that courts are reaching varied conclusions on the application of the ADA. Employers need to be aware that the courts are constantly issuing new rulings on the ADA and employees are continually finding innovative legal routes to receive their day in court. Employers need to keep abreast of these developments and these cases should serve as starting-point for further research.

[1] ADA Amendments Act of 2008, P.L. 110-325 (2008)

[2] 42 U.S.C. §12111

[3] 42 U.S.C. §12102

[4] 42 U.S.C.S. §12112 (b)(5)(A)

[5] EEOC v. Advanced Home Care, Inc., 305 F. Supp. 3d 672, 674 (M.D.N.C. 2018).

[6] Id.

[7] Id.

[8] See id at 677.

[9] Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1106 (8th Cir. 2016).

[10] Id.

[11] 42 U.S.C.S. 12102(3)(A); Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1112 (8th Cir. 2016).

[12] Morriss at 1113.

[13] 29 C.F.R. §1630.2(h)(1); Morriss at 1112.

[14] Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 387 (6th Cir. 2017).

[15] Id at 389.

[16] Id at 387.

[17] Id.

[18] Williams v. AT&T Mobility Services, LLC, 847 F.3d 384, 398 (6th Cir. 2017). The Sixth Circuit noted, “In the end, this case reflects the reality that there are some jobs that a person with disabilities is simply unable to perform. A blind person cannot be an airline pilot, nor can one with advanced Parkinson’s disease be a neurosurgeon. Similarly, a person like Williams who reacts to random customer calls with anxiety attacks that require her to log off of her workstation is not capable of performing the essential job functions of an AT&T CSR.”

[19] 29 U.S.C.S. §2601; Whitaker v. Wis. Dep’t of Health Servs., 849 F.3d 681, 683 (7th Cir. 2017).

[20] Id.

[21] Id at 684.

[22] 42 U.S.C. §12101; Whitacker at 686.

[23] Whitacker v. Wisconsin Dep’t of Health Servs, 849 F.3d 681, 684 (7th Cir. 2017).

[24] EEOC v. Advanced Home Care, Inc. 305 F. Supp. 3d 672 (M.D.N.C. 2018).

 

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