OCALA EMPLOYMENT DISCRIMINATION

LAWYERS SERVING CENTRAL FLORIDA

For more than two decades, our Marion County, Florida employment discrimination lawyers have been in the trenches fighting for employment discrimination victims. In Ruiz-Rivera v. Pfizer Pharmaceuticals, Inc., 521 F.3d 76 (1st Cir. 2008), the U.S. First Circuit Court of Appeals observed that the Americans with Disabilities Act (ADA) “provides a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Although the ADA was passed in 1990, employees with physical or mental disabilities continue to face substantial disadvantages in their efforts to obtain and retain employment.

For years, the U.S. Supreme Court led the charge of restricting the protection afforded to disabled individuals by the ADA. In response to the Supreme Court’s frontal assault against the ADA and employee rights, Congress amended the ADA in 2008 in order to overturn Supreme Court precedent and ensure a less restrictive interpretation of the ADA. Based in Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida employment discrimination attorneys are dedicated to vindicating the rights of employees who have been discriminated against on the basis of disability.

Protection Against Disability Discrimination

Under the ADA, employers are prohibited from discriminating against a qualified individual on the basis of disability. The ADA’s protection against disability discrimination extends to all employees and applicants for employment. The ADA prohibits discrimination on the basis of disability with respect to all terms and conditions of employment, including hiring, compensation, demotion, promotion, job duties, job training, discipline, and termination. Under the ADA, prohibited disability discrimination also includes not making reasonable accommodations to qualified individuals with a disability.

In order to state a prima facie case of disability discrimination under the ADA, as determined by the U.S. Third Circuit Court of Appeals in Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999), an individual must establish that he or she: (1) is a disabled individual within the meaning of the ADA; (2) is qualified to perform the essential functions of the job, with or without a reasonable accommodation by the employer; and (3) suffered an adverse employment action, such as demotion or discharge, because of his or her disability.

ADA’s Definition Of Disability

In order to bring a claim for disability discrimination under the ADA, an individual must demonstrate that he or she has a disability within the meaning of the ADA. There are three ways to be considered disabled for purposes of the ADA. Under the ADA, an individual is disabled if he or she: (1) has a physical or mental impairment that substantially limits one or more major life activities (the “actual disability” prong of the ADA); (2) has a record of a physical or mental impairment that substantially limits one or more major life activities (the “record of” a disability prong of the ADA); or (3) is regarded by an employer has having a physical or mental impairment (the “regarded as” disabled prong of the ADA).

Congress Expands Definition Of Disability

In September 2008, Congress broadened the definition of “disability” by passing the ADA Amendments Act of 2008 (ADAAA). In the ADAAA, Congress explained that the U.S. Supreme Court in a series of decisions had improperly “narrowed the broad scope of protection intended to be afforded by the ADA,” and thereby “eliminat[ed] protection for many individuals whom Congress intended to protect.” Congress further explained that it passed the ADAAA for the purpose of “reinstating the broad scope of protection to be available under the ADA.”

With the passage of the ADAAA, Congress explicitly rejected the Supreme Court’s decision in Toyota Motor v. Williams, 534 U.S. 184 (2002), in which the Court adopted a narrow interpretation of the term “disability.” The ADAAA states that Toyota set an “inappropriately high level of limitation necessary to obtain coverage under the ADA.” Congress declared that the “definition of disability shall be construed in favor of broad coverage of individuals” under the ADAAA, “to the maximum extent permitted by the terms” of the ADAAA. In passing the ADAAA, Congress also directed the U.S. Equal Employment Opportunity Commission (EEOC), which is the federal agency responsible for interpreting and enforcing the ADA, to amend its ADA regulations to reflect the changes made by the ADAAA.

ADA’s Definition Of Impairment

To have a disability for purposes of the ADA, an individual must establish that he or she has a physical or mental impairment. A physical impairment under the ADA means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skins, and endocrine. A mental impairment under the ADA means any mental or psychological disorder, such as intellectual disability (formerly mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Definition Of Major Life Activities

To have an actual disability or a record of a disability for purposes of the ADA, an individual must establish that his or her physical or mental impairment substantially limits one or more major life activities. The ADA provides a non-exhaustive list of examples of major life activities, including: caring for oneself; performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; sitting; reaching; lifting; bending; speaking; breathing; learning; reading; concentrating; thinking; communicating; interacting with others; and working. The ADA also states that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

The EEOC regulations state that the term “major” shall not be “interpreted strictly to create a demanding standard for disability.” In harmony with the ADAAA’s mandate that the “definition of disability shall be construed in favor of broad coverage of individuals,” the EEOC regulations further state that whether an activity is deemed a “major life activity is not determined by reference to whether it is of central importance to daily life.” With the enactment of this regulation, the EEOC explicitly rejected Toyota v. Williams, 534 U.S. 184 (2002), in which the Supreme Court ruled that a major life activity “refers to those activities that are of central importance to daily life.”

Impairment Must Be Substantially Limiting

To have an actual disability or a record of a disability within the meaning of the ADA, an individual with a physical or mental impairment must be substantially limited in performing a major life activity as compared to most people in the general population. An individual with a physical or mental impairment need only be substantially limited, or have a record of a substantial limitation, in one major life activity in order to have an actual disability or a record of a disability.

The EEOC regulations state that the term “substantially limits” shall “be construed broadly in favor of expansive coverage” and is “not meant to be a demanding standard.” The EEOC regulations also provide that a physical or mental impairment “need not prevent, or significantly restrict or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” With the enactment of this regulation, the EEOC explicitly rejected Toyota v. Williams, 534 U.S. 184 (2002), in which the Supreme Court ruled that a physical or mental impairment must “prevent or severely restrict” the individual from performing a major life activity in order to be considered substantially limiting.”

Showing Impairment Is Substantially Limiting

The EEOC regulations provide that in determining whether an individual is substantially limited in a major life activity, as compared to most people in the general population, courts should consider: (1) the condition under which the individual performs the major life activity; (2) the manner in which the individual performs the major life activity; and/or (3) the duration of time it takes the individual to perform the major life activity.

The EEOC regulations further provide that in considering facts such as condition, manner, or duration in determining whether an individual is substantially limited in a major life activity, courts should also consider, among other things: (1) the difficulty, effort, or time required to perform a major life activity; (2) the pain experienced when performing a major life activity; (3) the length of time a major life activity can be performed; and/or (4) the way in which a physical or mental impairment affects the operation of a major bodily function.

The EEOC regulations also state that the “duration of the impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” Although “impairments that last only a short period of time are typically not covered,” they may be covered “if sufficiently severe.” Thus, the EEOC regulations expressly provide that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of an actual disability. The EEOC provides an example illustrating these principles: “if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered” under the actual disability prong of the ADA.

Examples Of Disabilities Under ADA

The EEOC regulations set forth examples of physical and mental impairments that “should easily be concluded” to constitute disabilities under the ADA. The physical and mental impairments identified by the EEOC regulations are as follows:

• Deafness

• Blindness

• Intellectual Disability

• Partially or Completely Missing Limbs

• Mobility Impairments Requiring Use of Wheelchair

• Autism

• Cancer

• Cerebral Palsy

• Diabetes

• Epilepsy

• HIV Infection

• Multiple Sclerosis

• Muscular Dystrophy

• Major Depressive Disorder

• Bipolar Disorder

• Post-Traumatic Stress Disorder

• Obsessive Compulsive Disorder

• Schizophrenia

Regarded As Disabled

The ADA’s definition of “disability” is not limited to individuals who have an actual disability or a record of a disability. Instead, the ADA also defines “disability” to include an individual who is “regarded as” disabled by an employer. In other words, when an employer perceives an individual to have a disability, the individual has a disability for purposes of the ADA. Thus, the ADA does not require an individual to have an actual disability or a record of a disability in order to receive protection from disability discrimination. Instead, an individual is protected from disability discrimination when an employer “regarded” the individual as having a disability. This means that employers cannot discriminate against an individual because they think he or she disabled, even if, in fact, the individual is not disabled.

With the passage of the ADAAA, Congress eliminated the requirement that an individual’s physical or mental impairment must substantially limit a major life activity in order to satisfy the “regarded as” disabled prong of the ADA. Under prior U.S. Supreme Court precedent, if the employer did not perceive the individual’s physical or mental impairment as one that substantially limits one or more major life activities, then the employer did not “regard” the individual as disabled. Because employers invariably denied they perceived the individual as having a physical or mental impairment that prevented him or her from performing a major life activity, Supreme Court precedent essentially eliminated the “regarded as” disabled prong from the scope of protection afforded by the ADA.

Under the ADAAA, however, an individual need only show that the employer believed that he or she has a physical or mental impairment. If the employer perceived the individual as having a physical or mental impairment, it is not necessary to show that the employer also believed the impairment prevented the individual from performing a major life activity. In other words, an individual need only show that the employer considered him or her to have a physical or mental impairment—not a substantially limiting physical or mental impairment. Consequently, the EEOC regulations provide that whether an individual’s physical or mental impairment substantially limits a major life activity is “not relevant” to a “regarded as” disabled ADA claim.

EEOC regulations do provide that the “regarded as” disabled prong does not apply to impairments that are “transitory and minor.” This means that when an individual is “regarded as” disabled rather than suffering from an actual disability or a record of a disability, the perceived impairment must not be “transitory and minor.” EEOC regulations define “transitory” as lasting or expected to las six months or less. The “transitory and minor” limitation is an affirmative defense that the employer bears the burden of proving.

Importantly, the “transitory and minor” limitation does not apply when an individual contends that he or she has an actual disability or a record of disability. In the context of an actual disability or a record of disability claim under the ADA, the effects of a physical or mental impairment lasting or expected to last fewer than six months can substantially limit a major life activity.

Qualified Individual With A Disability

In order to have a meritorious claim for disability discrimination under the ADA, an individual must establish that he or she is a “qualified individual with a disability.” For an individual to be considered a “qualified individual with a disability” under the ADA, he or she must be able to perform the essential functions of the position held or desired, with or without a reasonable accommodation. This means that an individual with a disability must show that he or she can perform the essential functions of the job without an accommodation, or, failing that, show that he or she can perform the essential functions of the job with a reasonable accommodation. If an individual with a disability cannot perform, with or without a reasonable accommodation, the essential functions of the position held or desired, then he or she is not a “qualified individual with a disability” under the ADA and is not protected from disability discrimination by the ADA.

Essential Functions Of The Job

In Kuehl v. Wal-Mart Stores, Inc., 909 F.Supp. 794 (D. Colo. 1995), the U.S. District Court for Colorado explained that the term “essential functions” is defined by the ADA as “the fundamental job duties of the employment position the individual holds or desires” and “does not include the marginal functions of the position.” In determining whether a particular job function is “essential,” as observed by the U.S. District Court for the Western District of Texas in Molina v. DSI Rental, Inc., 840 F.Supp. 984 (W.D. Tex. 2012), “courts give consideration to the employer’s judgement, as well as looking to evidence, including, but not limited to written job descriptions, time spent performing the function, and consequences if the employee does not perform the function.”

Although an employer’s written job description may provide evidence of a job’s essential functions, as explained by the U.S. Sixth Circuit Court of Appeals in Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014), it is not “dispositive.” Rather, as determined by the U.S. Tenth Circuit Court of Appeals in Robert v. Bd. of Cty. Com’rs, Brown Cty., Kan., 691 F.3d 1211 (10th Cir. 2012), “the essential function inquiry turns on whether the employer actually requires all employees in the particular position to satisfy the alleged job-related requirement.” Thus, if an employer does not require all employees to perform a particular job duty, then the job duty is not an indispensable task and not an essential function.

Reasonable Accommodation For Disability

As discussed more extensively in our section regarding an accommodation for disability, when an individual with a disability is not able to perform the essential functions of the position held or desired, an employer must provide reasonable accommodations that will enable the disabled individual to perform those functions. However, the duty to accommodate does not arise until the employer becomes aware of the need for accommodation. Thus, as explained by the U.S. District Court for Oregon in Brown v. Verizon Directories Sales Corp., 2004 WL 1315845 (D. Or. Mar. 31, 2004), “employees must give notice of a disability and their desire for an accommodation to trigger the employer’s duty to implement a reasonable accommodation.” Consequently, the ADA requires employees to request a reasonable accommodation.

Employer’s Knowledge Of Disability

To successfully establish a claim of disability discrimination, an individual must demonstrate that the employer had either actual or constructive knowledge of the disability or otherwise regarded the individual to be disabled. In the context of proving a discriminatory discharge claim based on disability, the employee must prove that his or her employer had actual or constructive knowledge of the disability at the time of the termination. As observed by the U.S. Eleventh Circuit Court of Appeals in Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996), “an employer cannot be held liable under the ADA for firing an employee when it indisputably had no knowledge of the disability” since “an employer cannot fire an employee because of a disability unless it knows of the disability.”

Animus Not Required To Prove Violation

In many cases, employers argue that they cannot be held liable for alleged disability discrimination under the ADA because the employee produced no evidence of their discriminatory animus towards the disabled. Such arguments by employers are legally frivolous because the ADA, as pointed out by the U.S. Sixth Circuit Court of Appeals in Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012), “speaks in terms of causation, not animus.” As the Sixth Circuit explained in EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018), “an employer violates the [ADA] whenever it discharges an employee on the basis of disability (a necessary requirement for liability), not only when it harbors ill will (a sufficient way of establishing liability).”

Disability Harassment

As discussed more extensively in our section regarding hostile work environment harassment, the ADA also protects employees against harassment on the basis of disability. Disability harassment is a form of disability discrimination prohibited by the ADA. In the context of disability harassment, the harasser targets the victim for abuse because of the victim’s disability. Generally, disability-based harassment takes the form of derogatory remarks, insults, ridicule, or jokes against the victim because of the victim’s disability. Disability harassment which is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create a hostile working environment violates the ADA.

Protection From Retaliation

As discussed more extensively in our section regarding retaliation, the ADA protects employees from retaliation when they complain about perceived disability discrimination in the workplace. Under the ADA, employers are forbidden from subjecting an employee to an adverse employment action in retaliation for complaining about disability discrimination. Prohibited retaliatory adverse employment actions include reduction in pay or hours, demotion, failure to promote, and termination.

To be protected against retaliation under the ADA, employees do not have to prove that the perceived discriminatory conduct constituted an actual violation f the ADA. Instead, employees only have to show that they had a good faith, reasonable belief that they were opposing discrimination prohibited by the ADA. In other words, employees are protected from retaliation even if they are wrong about whether the perceived discriminatory conduct constituted an actual violation of the ADA. This means, as observed by the U.S. District Court for the Southern District of Ohio in Hoover v. Chipotle Mexican Grill, 2018 WL 1899166 (S.D. Ohio April 20, 2018), that an employee “need not be disabled in order to assert a claim of disability retaliation, so long as he has a reasonable, good faith belief that the opposed act or practice is unlawful under the ADA.’

Employment Law Blog

As part of our commitment to assist and educate employees in protecting themselves against abusive employment practices, our Marion County, Florida employment discrimination lawyers offer more information about disability discrimination and harassment in our employment law blog.

Consult With Ocala Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Marion County, Florida employment discrimination attorneys have been litigating employment discrimination cases in Florida state and federal courts for more than twenty years. If you have experienced discrimination on the basis of disability or have questions regarding your rights under the ADA, please contact our Ocala, Florida employment discrimination lawyers for a free initial consultation. You will receive personalized and individual attention from our Marion County, Florida employment law attorneys. Our employees’ rights law firm takes employment discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Marion County, Florida employment discrimination attorneys are ready to take your discrimination case and fight for your rights.