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Employment Law Alert: Two Interesting ADA Cases – One Favoring Employers, The Other Not

In Rehrs v. IAMS Co., the Eighth Circuit issued an opinion in which it held that a rotating shift schedule was an essential function of a warehouse technician position at an IAMS plant operated by P&G. The plant operated on a 24 hour a day basis.

The plaintiff, who had Type 1 diabetes, had requested an accommodation in the form of allowing him to remain on the day shift permanently. This accommodation, he argued, would better allow him to control his blood sugar levels. P&G accommodated this request for a period of 60 days, but balked at continuing it once it became clear that the request was for a permanent day shift position. Citing the hardship that the proposed accommodation would cause for other warehouse technicians -- requiring someone to permanently work the night shift, P&G refused to provide the requested accommodation. The Company also cited the fact that shift rotation was favored "because it exposed employees to management and other resources, such as suppliers and outside customers with whom the company only interfaced during the day, enhancing their opportunities for training and development."

In siding with P&G, the Eighth Circuit noted that the concept of "essential functions" "encompasses more than core job requirements; indeed, it may also include scheduling flexibility." Additionally, the Court noted that employers do not concede the non-essential nature of a job function merely by granting an employee a temporary accommodation.

A more troubling case is USF-Red Star Express Inc. v. Taylor, an ADA perceived disability case out of the Third Circuit, in which a jury awarded the plaintiff $158,796 in damages, despite the fact that the plaintiff had apparently misled his employer into believing that he had epilepsy. When the Company removed him from his job operating a forklift, and refused to allow him to resume those duties until he had been cleared by his doctor to do so, the employee filed an ADA claim, alleging that he had been unlawfully perceived as disabled by his employer.

There are a couple of things that are particularly troubling with respect to this case (which the U.S. Supreme Court has declined to review). First, the Third Circuit defined "major life activity" as any activity "that an average person can perform with little or no difficulty" -- thus apparently ignoring the Supreme Court’s directive in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that major life activities are those that are "of central importance to most people’s daily lives." Second, the Court appears to have adopted a more lenient standard for "perceived disability" cases than for actual disability cases. By finding that the employer’s belief -- based on what had been represented to it by the plaintiff -- that he was "seizure prone," that he "might have another seizure and be a danger to the public" and that he could be a "threat to himself and others" was a sufficient basis for the jury’s determination that the plaintiff had been wrongfully perceived as disabled. The flaw in this argument is that it seems to dispense with the requirement -- as in actual disability cases -- that the employer perceive the employee as being substantially limited in some major life activity. There was no evidence supporting a conclusion that the ability to drive a forklift is a major life activity.

Bottom Line

The IAMS case, while not a particularly surprising result, is a good result for employers because it reinforces the employer’s crucial role in deciding what "essential job functions" are. The Third Circuit case, on the other hand, is a bad result and appears to have been wrongly decided. Thankfully, it is an unpublished decision which is not even binding on other courts in the Third Circuit, much less courts in other circuits.

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