Disability Discrimination South Dakota
"ANNA" AND THE NEW AMERICANS WITH DISABILITIES ACT
By Shiloh MacNally
Not so long ago, I was sitting in my office on a Friday afternoon when I receive a call from a potential client. It has been a long day and I am fairly tired. I reluctantly take the call and begin fumbling around for a blank legal pad and pen. As I am scrambling around for these materials, I answer the phone. I immediately snap to full attention at the sound of a very distressed female voice who is talking very fast and sobbing between sentences. The potential client, who I will call "Anna", explains that she is a youth counselor employed by a facility for troubled teens.
Anna tells me that she has recently been diagnosed with breast cancer. She explains that she underwent surgery to remove the tumor a few weeks ago, but now has developed an infection in her chest wall. Anna went to see her physician who requests she stay home and rest for two weeks to help clear up the infection and speed up the healing process. Anna obtains a note from her physician and presents it to her employer. What she tells me next, I half-expect but am still shocked to hear --- Upon presentation of the note, Anna’s employer does not greet her with concern about her health. Instead, Anna’s employer gives her an ultimatum: Report to work on Monday or be fired!
Sadly Anna’s case is not an isolated incident. In recent months, I have received numerous phone calls from individuals with these very same types of stories. Some stories are more egregious than Anna;s case. I have received calls ranging from individuals who were terminated within a few days of informing their employers that they were diagnosed with cancer to individuals who were terminated in the thrusts of receiving chemotherapy.
Giving the increasing incidence of these calls and the context of today’s current health care reform debate, I felt it prudent to shed a light on this issue. Why, you ask? Well, let’s consider what is now going to happen to Anna or the many, many others like her. Let’s say Anna is fired or soon after this transaction she is fired. Like most individuals, Anna’s only medical insurance coverage is through her employer and now, she has no employer. Anna is in the throes of fighting a dangerous, life-threatening medical condition. A medical condition which is extremely expensive to treat with and without medical insurance coverage.
Well, now wait a minute, I know what you are thinking - we have a great federal law which will protect Anna. Anna will have the option to continue her existing medical insurance coverage through COBRA. Problem solved! Anna is safe! ... Yeah, except that the national average for single coverage under COBRA is almost $400 a month and family coverage around $1,000 a month.
I actually find the $400 number amazing. The people I have talked with haven’t been offered single coverage COBRA for less than $600 a month. So, perhaps, if Anna is independently wealthy or a staunch saver, she might be okay ... By the way, did I mention Anna is a single mother of three children?
But what if Anna is not independently wealthy and she is not a staunch saver? Instead, Anna is like most average Americans who live paycheck to paycheck? This is where Anna’s problems, and those like her, begin to become almost insurmountable. How is Anna going to pay for the COBRA premiums, pay for her living expenses and the costs related to supporting her three children without a job? I know! Maybe, Anna could keep her current health insurance in tact by paying COBRA premiums with funds from her new job! You know, that new job that she got with an employer who was more than happy to hire her after she told them she was diagnosed with cancer!! ...
Wait a minute. Do you think that would actually happen?
Okay, okay. So I have made my point. I took the cynical, round-a-bout approach, but I made my point nonetheless. The reality is that Anna is out in the cold and Anna is in a terrible situation. But there is some hope. Anna is not without remedy. No, not a remedy that can provide an immediate fix, but a remedy that, with the assistance of a caring, dedicated trial lawyer, she can gain a voice against the wrong done to her and she can gain some recovery for her damages.
Anna’s situation may fall under the Americans with Disabilities Act. She may be able to assert that she was wrongly discriminated against by her employer because she has cancer. To establish a prima facie case of disability discrimination, a plaintiff must prove: (1) that she has an ADA-qualifying disability; (2) that she is qualified to perform the essential functions of his position, with or without a reasonable accommodation; and (3) that she suffered an adverse employment action due to her disability. E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir. 2007). Charging Party in this case satisfies all of these elements.
@THE AMERICANS WITH DISABILITIES ACT - AMENDMENTS ACT OF 2008
On September 25, 2008, President Bush signed into law the Americans with Disabilities Act Amendments Act of 2008 (ADA-AA). The Act has two specific purposes: 1) to repudiate the existing precedent of the United States Supreme Court which had placed a high burden of proof on the qualification of A disability@ under the Act; and 2) to broaden coverage of the term of "disability" under the Act to allow significantly more individuals to qualify for coverage.
The Act went into effect on January 1, 2009 and provided a much needed overhaul to a floundering system.
A few weeks ago, newly proposed regulations were announced to implement the provisions of the Act. Here is a simple overview of the changes.
A. The Term "Disability" Is Greatly Expanded.
Disability
Prior to the amendments, substantially limits was narrowly interpreted by the U.S. Supreme Court. The Court required that the individual= s disability had to A significantly@ or A severely restrict a major life activity. Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 134 (2002). The new Act repudiates this requirement and the regulations specifically set forth that the term A substantially limits no longer requires the A level of limitation, and the intensity of focus@ that was applied in the past.
Major life activities
The second list, which is entirely new, includes major bodily functions. These functions include: the A immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.
The second list is remarkable in that it explicitly includes things such as cancer, diabetes, thyroid disease, mental health disorders, etc. While the explicit mention of these conditions were not present before, the EEOC has been quick to point out in its proposed regulations that it has always interpreted the Act to cover these conditions. This has powerful retroactive application for any covered person with these conditions prior to the amendments.
These changes in language and interpretation are huge advances for people such as Anna, who will be able to quickly ascertain coverage under the Act.
B. Mitigating Measures Nearly Nullified
Prior to the amendments, Defendants were able to argue that a person was not considered disabled under the Act if mitigating measures such as medications could fix their condition. As an example, a person who has been diagnosed with major depression, may feel better and operate effectively on anti-depressant medication. A Defendant may be able to argue that since taking the medication the Plaintiff’s condition no longer affects a major life function therefore they are not disabled. Congress has spoken and said, no longer. The new Act provides that the only mitigating measure to be considered in assessing whether a person has a disability is ordinary eyeglasses and contact lenses. Other mitigation measures are not to be considered.C. Impairments That Are Episodic Or In Remission
The category of impairments has broadened. Conditions such as cancer, bi-polar disorder, major depression, epilepsy, post-traumatic stress disorder, etc., that are only episodic or are perhaps in remission now also fall under the protections of the Act. The only requirement is that the impairment or condition must meet the criteria for substantially limiting a major life activity when the condition is active.
D. The Definition of Regarded As Being Disabled Is Changed
Prior to the amendments, the ADA required the Defendant to have perceived the Plaintiff to be substantially limited in a major life activity. Under the new Act, the Plaintiff now simply needs to show that there was an actual or perceived impairment that resulted in an action prohibited by the ADA, such as non-hiring, firing, etc. The only caveat is that the perceived impairment cannot be transitory or minor. Transitory or Minor impairments are conditions usually lasting six months or less, such as a broken leg or sprained wrist.
E. Regarded As Individual Are Not Entitled to Reasonable Accommodation
One change that narrowed the coverage of the Act is in the area of accommodations. The new Act states that an employer, or potential employer, does not have to provide a reasonable accommodation to someone who is only regarded as having a disability.
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While the above summary does not give a full or detailed list of all the changes, the new regulations proposed by the EEOC are quite extensive and provide a vast array of examples of what does and does not qualify under the new and existing ADA.
Listen, I know not everyone out there practices employment law, but I do know that many of you, just like me, have received phone calls just like this. I hope this article has, at the very least, provided you with enough information to steer people in the right direction. At the most, I hope it perhaps inspires you to take a closer look at these issues affecting so many Americans right now, and maybe, just maybe, you will be impressed to take on a case just like Anna’s.
