Employment Law Attorneys

Disability Discrimination

This article will provide an in-depth analysis of the Americans with Disabilities Act (hereinafter “ADA”) and its prohibitions against disability discrimination. The ADA was passed to eliminate disability discrimination in the workplace. “The purpose of the ADA was to combat “ ‘archaic attitudes,’ erroneous perceptions, and myths” that disadvantage persons regarded as having a disability. Wooten, 58 F.3d at 386, quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987).” Wenzel v. Missouri-American Water Co., 404 F.3d 1038, 1042 (C.A.8 (Mo.),2005).

In passing the ADA Congress wanted to provide a national program to eliminate disability discrimination. “The ADA is a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).” Lanman v. Johnson County, Kansas , 393 F.3d 1151, 1156 (C.A.10 (Kan.),2004).

OVERVIEW OF CHAPTER

The ADA is a general prohibition against any form of employment discrimination based upon disability. “The ADA prohibits discrimination by an employer “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).” Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 936 (C.A.3 (Pa.),1997).

Specifically, the ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112(a).” D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *4 (C.A.11 (Fla. (C.A.11 (Fla.),2005).

There are three distinct causes of action that a plaintiff can bring under the ADA, disparate treatment disability discrimination, failure to accommodate and a disparate impact claim of discrimination. “Defining and applying an appropriate framework for analyzing claims of discrimination has proven difficult, as evidenced by the parties’ conflicting theories of discrimination. We pause to examine the theories under which ADA claims should be analyzed. “Discrimination” as used in the ADA encompasses three distinct types of discrimination. First, it means treating “a qualified individual with a disability” differently because of the disability, that is, disparate treatment. Additionally, because the ADA defines discrimination in part as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual ···,” 42 U.S.C. § 12112(b)(5)(A), a separate claim of discrimination can be stated under the ADA for failing to provide a reasonable accommodation. Finally, under a disparate impact theory, discrimination is defined as including the use of “qualification standards ··· or other selection criteria that screen out or tend to screen out an individual with a disability ····” 42 U.S.C. § 12112(b)(6). No matter what type of discrimination is alleged, however, a plaintiff must establish first that he was “a qualified individual with a disability.” Davidson v. America Online, Inc., 337 F.3d 1179, 1188 -1189 (C.A.10 (Utah),2003).

More perhaps than any other employment discrimination statute, the ADA has specific definitions within it as defined by the courts that set forth the relevant parameters of the Act. One of the most important definitions under the ADA is the issue of what is a disability. The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Id. See, e.g., Starks-Umoja v. Federal Express Corp., 341 F.Supp.2d 979, 991 (W.D.Tenn.,2003)(“The Americans with Disabilities Act defines disability as: 1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; 2) a record of such impairment; or 3) being regarded as having such an impairment. 42 U.S.C. § 12102(2).”). As will be discussed at length in this chapter, each of these definitions is a term of art that has a huge amount of case law on it.

Another equally important issue that courts grapple with constantly is who is a “qualified individual with a disability.” Courts have set forth that a “qualified individual with a disability” is an individual “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).” Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 936 (C.A.3 (Pa.),1997).

Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of 2008
On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 (“ADA Amendments Act” or “Act”). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

directs EEOC to revise that portion of its regulations defining the term “substantially limits”;
expands the definition of “major life activities” by including two non-exhaustive lists:
the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
states that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.
EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.

Effective Date:

The ADA Amendments Act is effective as of January 1, 2009.(Source EEOC.gov)

ELEMENTS OF CAUSE OF ACTION
Disparate Treatment Disability Discrimination

The definitions above lay the foundation for establishing a prima facie case of discrimination. Courts have held that “to establish a prima facie wrongful discharge claim under the ADA, a plaintiff must show that (1) she was a “qualified individual with a disability”; (2) she was discharged; (3) she was fulfilling her employer’s legitimate expectations at the time of discharge; and (4) the circumstances of her discharge raise a reasonable inference of unlawful discrimination.” Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir.2001).” Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 (C.A.4 (Md.),2004). See also, Thompson v. Federal Reserve Bank of New York, 2004 WL 330243, *7 (S.D.N.Y.,2004)(To state a claim under the ADA, plaintiff must show that: “(1) [her] employer is subject to the ADA; (2)[s]he suffers from a disability within the meaning of the ADA; (3)[s]he could perform the essential functions of [her] job with or without reasonable accommodation; and (4)[s]he was fired because of [her] disability.” Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 149-50 (2d Cir.1998) (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.1998)).).

Disparate Impact Disability Discrimination

Disparate impact claims differ substantially from disparate treatment claims. “This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that “ ‘[d]isparate treatment’ ··· is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic].” Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). Liability in a disparate-treatment case “depends on whether the protected trait ··· actually motivated the employer’s decision.” Id., at 610, 113 S.Ct. 1701. By contrast, disparate-impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters, supra, at 335-336, n. 15, 97 S.Ct. 1843. Under a disparate-impact theory of discrimination, “a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of the employer’s subjective intent to discriminate that is required in a ‘disparate-treatment’ case.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-646, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, § 105, 105 Stat. 1074-1075, 42 U.S.C. § 2000e-2(k) (1994 ed.).”
Raytheon Co. v. Hernandez, 540 U.S. 44, *52-53, 124 S.Ct. 513, 519 (U.S.,2003).

Under the ADA a plaintiff can bring a claim under a disparate treatment theory and or under a disparate impact theory. Courts have held that “[b]oth disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U.S.C. § 12112(b) (defining “discriminate” to include “utilizing standards, criteria, or methods of administration ··· that have the effect of discrimination on the basis of disability” and “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability”).” Raytheon Co. v. Hernandez, 540 U.S. 44, 53, 124 S.Ct. 513, **519 (U.S.,2003).

Failure to Accommodate

There are two types of claims plaintiffs can make under the ADA. The first is that the employer’s adverse employment action was discriminatory based upon their disability. The second is that the employer failed to accommodate their disability. Courts have held that the ADA requires employers to make reasonable accommodations for disabled employees. “An employer’s failure to make reasonable accommodation for an otherwise qualified disabled employee constitutes discrimination under the ADA, which states, in pertinent part: The term “discriminate” includes-····(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability····42 U.S.C. § 12112(b); see also Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.2001) (“An employer unlawfully discriminates against a qualified individual with a disability when the employer fails to provide ‘reasonable accommodations’ for the disability-unless doing so would impose undue hardship on the employer.”). D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *5 (C.A.11 (Fla.),2005).

The courts have defined the types of accommodations that may constitute “reasonable accommodations” under the ADA. The ADA provides that reasonable accommodations include, inter alia, “job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B). The duty to provide a reasonable accommodation is subject to certain limitations. For example, an employer is not required to provide a reasonable accommodation if it would impose an “undue hardship,” 29 C.F.R. § 1630.2(p), if it would pose a “direct threat” to the safety of the employee or others, 29 C.F.R. § 1630.15(b)(2), see Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S.Ct. 2045, 2049, 153 L.Ed.2d 82 (2002), or if to do so would conflict with seniority rules, see US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002).” Buskirk v. Apollo Metals, 307 F.3d 160, 168 (C.A.3 (Pa.),2002). See also, St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d 999, 1005 (D.Minn.,2003) (“Reasonable accommodations” may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position ··· and training materials or policies.” 42 U.S.C. § 12111(9)(B). Although there is no precise test for what constitutes a reasonable accommodation, “an accommodation is unreasonable if it either imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program.” Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir.1999).

The prima facie case for a failure to accommodate case has been set forth by the courts. “Where, as in this case, a disabled plaintiff claims that he can perform a particular job with a reasonable accommodation, the prima facie burden requires a showing that (1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations. Id. at 217” Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (C.A.2 (N.Y.),2004.

Courts have held that an important element of showing that you were denied a reasonable accommodation is demonstrating that you requested such accommodation. “In general ··· it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” 29 C.F.R. pt. 1630 app. § 1630.9.” Rodal v. Anesthesia Group of Onondaga, P.C. 369 F.3d at 120. However, courts have held that you do not specifically have to use the words reasonable accommodation to be held to be requesting a reasonable accommodation. “The ADA does not require that any talismanic language be used in a request for reasonable accommodation. Taylor v. Phoenixville School Dist., 184 F.3d 296, 313 (3rd Cir.1999) (stating that the EEOC manual makes clear that the employee need not invoke any specific words; rather, the employer need only know of both the disability and the employee’s desire for accommodations for that disability); see also Thompson v. E.I Dupont deNemours & Co., 140 F.Supp.2d 764, 774 n. 8 (E.D.Mich.2001) (finding not a single Sixth Circuit case in which an employee’s “vague” request wholly excused the employer from any further inquiry regarding a possible accommodation). “What matters under the ADA are not formalisms about the manner of the request, but whether the employee ··· provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.” Taylor, 184 F.3d at 313; see also Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir.1996) (citation omitted) (holding that “[a]n employee’s request for reasonable accommodation requires a great deal of communication between the employee and the employer ····” ). See also, White v. Honda of America Mfg., Inc., 191 F.Supp.2d 933, 950 (S.D.Ohio,2002).

In addition to not requiring specific language requesting the accommodation, courts also do not require that the accommodation request be in writing. “An employee need not make a request for accommodation in writing and the employee need not use specific words to request accommodation. Taylor v. Phoenixville School Dist, 174. F.3d 142, 158-59 (3d Cir.1999). The scope of the employee’s notice for accommodation depends on the employer’s knowledge. Id. at 159. However, an employee must make a request to his employer for modifications of his duties due to his disability as the “[e]mployers cannot assume employees are disabled and need accommodations.” Id.” Wells v. Mutual of Enumclaw, 2005 WL 2035066, *6 (D.Idaho) (D.Idaho,2005).

Interactive Process

Requests by employees for accommodations under the ADA trigger something known as the “interactive process”. The interactive process requires the employer to discuss with the employee and implement reasonable accommodations for the employee. “Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. Hunphrey v. Memorial Hospitals Assoc., 239 F.3d 1128 (9th Cir.2001)(citing Barnett v. U.S. Air, 228 F.3d 1105, 1114 (9th Cir.2000).” Wells v. Mutual of Enumclaw, 2005 WL 2035066, *6 (D.Idaho,2005); See also, Gilbert v. City of St. Charles L, 182151, *8 -9 (N.D.Ill.,1999) (“Once an employer knows of an employee’s disability and the employee has requested reasonable accommodations, the ADA and its implementing regulations require that the parties engage in an interactive process to determine what precise accommodations are necessary ···· Liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown [in the process]. But where ··· the employer does not obstruct the process, but instead makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possessed, ADA liability simply does not follow.”

What is the employer required to do in the interactive process? “To determine what the appropriate reasonable accommodation should be, the “legislative history makes clear that employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations.” Barnett, 228 F.3d at 1111. The regulations envision “an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3).” Hadley v. Wal-Mart Stores, Inc., 2001 WL 34039486, *6 (D.Or.,2001).

When is an employer required to initiate the interactive process without the employee requesting a reasonable accommodation? “The employer should initiate the reasonable accommodation process without being asked if the employer: “(1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.” Id. at *7.

Does the employer’s obligation to provide a reasonable accommodation and engage in the interactive process end after the first accommodation has been provided? Courts have said no, it continues. “Thus, the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective. Humphrey, 239 F.3d at 1137-38.

Reasonable Accommodation
What is a “reasonable” accommodation? Courts have held that “[a] modified work schedule may constitute a reasonable accommodation in certain circumstances. See42 U.S.C. § 12111(9)(B) (including “part-time or modified work schedules” within the list of methods encompassed by the term “reasonable accommodation”). But a scheduling accommodation is not reasonable if it, in essence, requires an employer to eliminate an essential function of a job. See Shannon v. New York City Transit Auth., 332 F.3d at 100 (“A reasonable accommodation can never involve the elimination of an essential function of a job.”).” Rodal v. Anesthesia Group of Onondaga, P.C.,. 369 F.3d at 120.

Essential Functions of the Job
What are essential functions of the job? “EEOC regulations define “essential functions” to mean the “ ‘fundamental’ duties to be performed in the position in question, but not functions that are merely ‘marginal.’ ” Id. (quoting Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.1997) (citing 29 C.F.R. § 1630.2(n)(1) (1996))). “ ‘[A] court must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.’ ” Id. (quoting D’Amico v. City of New York, 132 F.3d 145, 151 (2d Cir.1998)). But ultimately, the question whether a task constitutes an essential function depends on the totality of the circumstances. See Stone v. City of Mount Vernon, 118 F.3d at 97 (factors relevant to determining whether a job function is essential include the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring the plaintiff to perform the function, mention of the function in any collective bargaining agreement, the work experience of past employees in the job, and the work experience of current employees in similar jobs (citing 29 C.F.R. § 1630.2(n))).” Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d at 120-121.

Undue Burden
What is an undue burden? “Undue hardship” is an employer’s affirmative defense, proof of which requires a detailed showing that the proposed accommodation would “requir[e] significant difficulty or expense” in light of specific enumerated statutory factors. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d at 221; see 42 U.S.C. § 12111(10)(A)-(B) (identifying relevant factors to include (1) the employer’s type of operation, including its composition, structure, and the functions of its workforce; (2) the employer’s overall financial resources; (3) the financial resources involved in the provision of the reasonable accommodation; and (4) the impact of such accommodation upon the employer’s operation).” Rodal v. Anesthesia Group of Onondaga, P.C. 369 F.3d at 121-122.

Disability Harassment
Courts have held that hostile work environment cases are allowed under the ADA.
“After reviewing the similarities between Title VII and the ADA, nothing indicates that Congress intended disability-based employment discrimination to be treated any less expansively. Thus, we hold that a hostile work environment claim is actionable under the ADA…” Lanman v. Johnson County, Kansas, 393 F.3d 1151, 1156 (C.A.10 (Kan.),2004).

“The Eighth Circuit, however, has “never recognized an ADA ··· claim based on a hostile work environment.” Jeseritz v. Potter, 282 F.3d 542, 547 (8th Cir.2002) (citation and internal quotations omitted). Assuming, without deciding, that such a cause of action exists, it “would be modeled after the similar claim under Title VII.” Id. (citation and internal quotations omitted).” St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d 999, 1006 (D.Minn.,2003).

Courts have held that “[d]iscrimination” includes not making reasonable accommodations for a qualified individual with a disability. Id. § 12112(b)(5); Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707, 711 (8th Cir.2003);
St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d 999, 1005 (D.Minn.,2003).

Courts have also set forth what the requirements are for a prima facie case of a hostile work environment based upon disability. “To prove hostile work environment, the plaintiff must demonstrate that: “(1) [he] is a qualified individual with a disability [under the ADA]; (2)[he] was subjected to unwelcome harassment; (3) the harassment was based on [his] disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of [his] employment and to create an abusive working environment ; and (5) that the [defendant] knew or should have known of the harassment and failed to take prompt effective remedial action.” Brown v. Small, 2005 WL 736530, *5 (D.D.C. March 31, 2005) (citing Walton v. Mental Health Ass’n of Southeastern Pa., 168 F.3d 661, 667 (3d Cir.1999).” Brown v. Snow, 2005 WL 975772, *5 (D.D.C.) (D.D.C.,2005).

It is the fourth element that creates problems for many plaintiffs because they must demonstrate that the harassment was severe and pervasive to the extent that it actually interfered with their working conditions. In one case the court stated “[t]o make a prima facie case for hostile work environment, St. Hilaire must offer evidence of harassment that was “so severe or pervasive as to alter the conditions of [his] employment and create an abusive working environment.” Id. (citation and internal quotations omitted). In analyzing such evidence, relevant considerations include, “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). “Accordingly, the ordinary tribulations of the workplace, such as the sporadic use of abusive language ··· and occasional teasing are not actionable.” Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681, 688 (8th Cir.1998) (citations and internal quotations omitted).” St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d 999, 1006. (D.Minn.,2003).

What types of comments rise to the level of severe and pervasive such that they create a hostile work environment? Courts have held that normal tribulations of the workplace do not rise to the requisite level to create a hostile work environment. “For example, his co-workers were skeptical of his Tourette’s Syndrome, accused him of lying, and called him “strange,” “weird,” “retarded,” “a baby,” “immature,” “a whiner,” “a thorn in [a co-worker’s] thigh,” and “a pain in the ass.” … Minco responds that such conduct does not rise to the level of such severe and pervasive harassment as to create a hostile work environment. The Court agrees.” St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d at 1006-1007.
The St. Hilaire court found that the employee’s co-worker’s statements were merely “offhand comments” and did not rise to the level necessary to create a hostile work environment. “While his co-workers displayed incivility and poor judgment, St. Hilaire’s allegations are, at most, an account of the unfortunate, yet ordinary tribulations of the modern workplace. The discrimination laws, however, “are not a general civility code” and “offhand comments and isolated incidents ··· will not amount to discriminatory changes in the terms and conditions of employment.” St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d at 1007.

In addition to that the comments are severe and pervasive, a plaintiff must also establish that such comments interfered with his/her work performance in order to maintain a prima facie case of a hostile work environment claim. “Furthermore, the Court cannot find that his co-workers’ conduct “unreasonably interfere[d] with [his] work performance,” Harris, 510 U.S. at 23, 114 S.Ct. 367, given his admission that “[d]espite my disabilities and the negative treatment I received, I was promoted four times from Technician 2 to Technician 5 Supervisor from 1984 to 1999. I routinely received above average to excellent job performance evaluations.” (St. Hilaire Aff. 6.) Therefore, even if the Eighth Circuit recognized a hostile work environment claim under the ADA, Jeseritz, 282 F.3d at 547, St. Hilaire could not establish a prima facie case.” St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d at 1007.

DISCUSSION

Prima Facie Case of Disability Discrimination
Although we have set forth above the requisite elements necessary to establish a prima facie case of disability discrimination, each of the elements must be analyzed in depth for a proper understanding of how to prove such a case. The first step in demonstrating a case of disability discrimination is to show that the plaintiff is a “qualified individual with a disability”.

Qualified Individual With a Disability
How do courts define who is a qualified individual with a disability? Courts require that the plaintiff show that they (1) have a disability as defined by the ADA and (2) that they are a “qualified individual”.

1. Definition of Disability
How does a plaintiff show that they have a disability? To do this you would have to take the ADA definition of disability and demonstrate one of the three options, either you have a physical or mental impairment that substantially limits one or more of the major life activities of the plaintiff, or (2) you are regarded as being disabled, or (3) you have a record of being disabled and have been discriminated against on the basis of that record.

A. Physical or Mental Impairment that Substantially Limits a Major Life Activity

This definition actually has three components. First you have to show that you have a physical or mental impairment. Then you have to show that it is substantially limiting and then you have to show it limits a major life activity, as defined by the relevant case law. All of these are terms of art that have distinct legal meanings as set forth by the courts. “The Supreme Court enunciated the following three-step process for determining whether a plaintiff has satisfied his burden of proof in establishing that he has a physical or mental impairment that substantially limits one or more of his major life activities: First, the court determines if the plaintiff suffers from a physical or mental impairment. Second, the life activity upon which plaintiff relies is identified and a determination is made whether it constitutes a “major life activity” under the ADA. Third, plaintiff must show that the impairment “substantially limited” the life activity identified in the second step. Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Colwell, 158 F.3d at 641.” LaBella v. New York City Admin. for Children’s Services, 2005 WL 2077192, *11 (E.D.N.Y.,2005).

The regulations set forth the definition of physical or mental impairment.
“Physical or mental impairment means: (1)[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.” 29 C.F.R. § 1630.2(h)(1) (2002).” Knight v. Computer Sciences Raytheon (CSR), 2002 WL 32818520, *6 (M.D.Fla.,2002).

Courts have made clear that it is not enough to just show that a plaintiff has a physical or mental impairment. One also must show that this impairment substantially limits a major life activity. “However, “[m]erely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity .” Toyota Motor Mfg. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 690, 151 L.Ed.2d 615 (2002) (citing 42 U.S.C. § 12102(2)(A) (1994)).” Knight v. Computer Sciences Raytheon (CSR), 2002 WL 32818520, *6 (M.D.Fla.,2002).

Courts have held that “[t]he term “substantially limits,” like the other terms within the ADA, is “interpreted strictly to create a demanding standard for qualifying as disabled.” Toyota, 534 U.S. at 197, 122 S.Ct. 681; Kupstas v. City of Greenwood, 398 F.3d 609, 612 (C.A.7 (Ind.),2005); See also, Thompson v. Federal Reserve Bank of New York, 2004 WL 330243, *7 (S.D.N.Y.,2004) (“Not every physical or mental impairment is considered substantially limiting; “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term.” Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).”).

What do courts require to show that the impairment substantially limits a major life activity? “Under the regulations that guide the interpretation of the ADA, to which we have repeatedly looked for guidance, an impairment is substantially limiting if it renders a person “(i) [u]nable to perform a major life activity that the average person in the general population can perform; or (ii) [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1) (2003).” Heisler v. Metropolitan Council, 339 F.3d 622, 627 (C.A.8 (Minn.),2003);
See also, Knight v. Computer Sciences Raytheon (CSR) 2002 WL 32818520, *6 (M.D.Fla.,2002) (“In order to qualify as disabled, the plaintiff must also show that the limitation on the major life activity is substantial. The EEOC provides that “substantially limit[ed] means [u]nable to perform a major life activity that the average person in the general population can perform; or [s]ignificantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”29 C .F.R. § 1630.2(j)(1)(i)-(ii) (2002).”).

Courts are influenced in making this decision by “(i) [t]he nature and severity of the impairment; (ii)[t]he duration or expected duration of the impairment; and (iii)[t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment,”29 C.F.R. § 1630.2(j)(2), in determining whether an individual is substantially limited in a major life activity.” Heisler v. Metropolitan Council, 339 F.3d at 627. See also, Ukofia v. American Financial Printing, Inc., 2005 WL 240932, *4 (D.Minn.,2005) (“The factors considered in determining whether a person is substantially limited in a major life activity include: (1) the nature and severity of the impairment; (2) its duration or anticipated duration; and (3) its long term impact. See 29 C.F.R. § 1630.2(j)(2)(i-iii).”).

The Supreme Court of the United States has made clear that the decision as to whether a particular physical or mental impairment substantially limits a major life activity must be made on a case-by-case basis based upon the individual facts presented in each case. “The Supreme Court made that much clear in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In the course of explaining why medicinal or mitigation measures should be considered when determining if a person is disabled, the Court said: The agency guidelines’ directive that persons be judged in their uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA. The agency approach would often require courts and employers to speculate about a person’s condition and would, in many cases, force them to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual’s actual condition. For instance, under this view, courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes. Thus, the guidelines approach would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals. This is contrary to both the letter and the spirit of the ADA Id. at 483-84, 119 S.Ct. at 2147 (emphasis added). We have a decision to the same effect. Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir.2000) (affirming the grant of summary judgment against an ADA plaintiff because even though “her diabetes, migraines, and depression ··· have had an adverse impact on Cash’s life, there is no evidence that they have limited her in a major life activity” (footnote omitted)).” Collado v. United Parcel Service, Co., 2005 WL 1805168, *11 (C.A.11 (Fla.),2005).

The Supreme Court has held that “[d]etermining whether a major life activity has been substantially limited is an individualized inquiry. Thus, “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures-both positive and negative-must be taken into account.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).” Brunke v. Goodyear Tire and Rubber Co., 344 F.3d 819, 821 (C.A.8 (Neb.),2003).

The Supreme Court has held that it is particularly important to use an individual assessment when the impairment’s symptoms are ones that are very variable for each person with the impairment. “The Supreme Court has explained that “[a]n individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person.” Toyota Motor Mfg., 122 S.Ct at 692.” Knight v. Computer Sciences Raytheon (CSR), 2002 WL 32818520, *7 (M.D.Fla.,2002).

Moreover, it is clear that the decision of whether a particular impairment substantially limits the plaintiff in a major life activity must be decided in light of any mitigating measures the plaintiff uses. “As the Supreme Court told us in Sutton, the question of whether a plaintiff is substantially impaired for disability purposes is to be considered in light of available mitigation measures such as taking insulin. 527 U.S. at 482-83, 119 S.Ct. 2146-47.” Collado v. United Parcel Service, Co., 2005 WL 1805168, *13 (C.A.11 (Fla.),2005); See also, Thompson v. Federal Reserve Bank of New York, 2004 WL 330243, *7 (S.D.N.Y.,2004)(“In Sutton, the Court held that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures-both positive and negative-must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.” Sutton, 527 U.S. at 482. The Court wrote: A ‘disability’ exists only where an impairment ‘substantially limits a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken. A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity. 527 U.S. at 482-83.”).

Courts have also made clear that temporary conditions do not constitute disabilities within the meaning of the ADA because they are not substantially limiting. “A disability under the ADA “ ‘does not include temporary medical conditions, even if those conditions require extended leaves of absence from work’ because such conditions are not substantially limiting.” Huskins v. Pepsi Cola of Odgensburg Bottlers, Inc., 180 F.Supp.2d 347, 352 (N.D.N.Y.2001) (quotation omitted). The Second Circuit has repeatedly found that temporary injuries or conditions requiring claimants to take a few months off from work are “too short [in] duration to be ‘substantially limiting.” ’ Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2d Cir.1999) (quoting Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2d Cir.1998), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253, 143 L.Ed.2d 350 (1999)).” Thompson v. Federal Reserve Bank of New York, 2004 WL 330243, *8 (S.D.N.Y.,2004).

What is a major life activity? This again is a legal term of art with a very specific definition. “The EEOC regulations are a source of guidance for interpreting the terms of the definition of disability under the ADA. See 29 C.F.R. § 1630 (2002). According to these regulations, “[m]ajor [l]ife [a]ctivities 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) (2002).” Knight v. Computer Sciences Raytheon (CSR), 2002 WL 32818520, *6 (M.D.Fla.,2002).

One major life activity that plaintiffs often claim to be significantly impaired by an impairment is “working”. “In the context of working, the Equal Employment Opportunity Commission (“EEOC”) has interpreted “substantially limits” to mean “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.” 29 C.F.R. § 1630.2(j)(3)(i).” Kupstas v. City of Greenwood, 398 F.3d 609, 612 (C.A.7 (Ind.),2005).

The EEOC has gone further. “It has further indicated that a plaintiff relying on the major life activity of working must present “evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which an individual would be excluded because of an impairment.” 29 C.F.R. Pt. 1630, App. § 1630.2(j). Although the Supreme Court has reserved judgment on the weight generally to be accorded the EEOC’s interpretation of ADA terms, it has held that if working is determined to be a major life activity under the ADA, a claimant will be required to show “an inability to work in a broad range of jobs.” Toyota, 534 U.S. at 194, 200, 122 S.Ct. 681 (internal quotations omitted). We have concluded that, except in “rare cases in which the [plaintiff’s] impairments are so severe that [his] substantial foreclosure from the job market is obvious,” he must present “some evidence of the number and types of other jobs” in the geographic region, from which he would be excluded because of his perceived impairments. EEOC v. Rockwell Int’l Corp., 243 F.3d 1012, 1017-18 (7th Cir.2001). The impairments must “substantially limit employment generally,” Stein v. Ashcroft, 284 F.3d 721, 725 (7th Cir.2002), not merely preclude an employee from performing “either a particular specialized job or a narrow range of jobs.” 29 C.F.R. Pt. 1630, App. § 1630.2(j). A plaintiff can never satisfy his burden by showing only that his employer believed that he could not perform a specific job. Toyota, 534 U.S. at 200, 122 S.Ct. 681; Peters, 311 F.3d at 843.” Kupstas v. City of Greenwood, 398 F.3d 609, 612 -613 (C.A.7 (Ind.),2005).

B. Regarded as Disabled

One of the two other methods for establishing that you are a qualified individual with a disability entitled to the protections of the ADA is to show that you are regarded as being disabled even though you are not really disabled under the law. “The EEOC regulations interpreting the ADA have explained that to be “regarded as having such an impairment” means that an individual:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2(l).” D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *7 (C.A.11 (Fla.),2005).

Courts have held if an employer mistakenly believes that the plaintiff’s impairment substantially limits one or more major life activities, even though it actually does not, then this is sufficient to establish a regarded as disabled case. “The Supreme Court has explained that “a person is ‘regarded as’ disabled within the meaning of the ADA if a covered entity mistakenly believes that the person’s actual, nonlimiting impairment substantially limits one or more major life activities.” Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999); see also Hilburn v. Murata Elecs. N. Am., 181 F.3d 1220, 1230 (11th Cir.1999) (“As with actual disabilities, a perceived impairment must be believed to substantially limit a major life activity of the individual.”). Thus, “[a]n employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity.” Sutton, 527 U.S. at 490, 119 S.Ct. 2139.” D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *7 (C.A.11 (Fla.),2005).

Employers run afoul of the ADA when they mistakenly make assumptions about employees medical conditions or symptoms. “A person is regarded as disabled when “(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.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In creating this category of disability, Congress recognized that “society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” Id. (quoting Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 284, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)).” Lanman v. Johnson County, Kansas, 393 F.3d 1151, 1156 (C.A.10 (Kan.),2004).

In making the determination of whether the employer regarded the employee as disabled the court will do an in-depth analysis of what information the employer had regarding the employee’s condition and how it acted in response to that information. “In order to determine whether Apollo Metals regarded Buskirk as disabled , we must consider the information Apollo Metals had regarding Buskirk’s condition and its response to that information. In Olson v. General Electric Astrospace, 101 F.3d 947, 954-55 (3d Cir.1996), we held that a reasonable factfinder could have found that the employer perceived the employee to be disabled where the evidence showed that a supervisor knew of the employee’s illness and hospitalizations and that this knowledge factored into its hiring decision. “[E]ven an innocent misperception based on nothing more than a simple mistake of fact as to the severity, or even the very existence, of an individual’s impairment can be sufficient to satisfy the statutory definition of a perceived disability.” Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 (3d Cir.1998) (en banc). Further, in another “regarded as” case, we held that the analysis “focuses not on [the plaintiff] and his actual disabilities, but rather on the reactions and perceptions of the persons interacting or working with him.” Kelly v. Drexel Univ., 94 F.3d 102, 108-09 (3d Cir.1996) (stating that the “mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate ··· that the employer regarded the employee as disabled”).” Buskirk v. Apollo Metals, 307 F.3d 160, 167 (C.A.3 (Pa.),2002).

What type of comments would be sufficient to substantiate a “regarded as” claim of disability discrimination? In a recent case one court identified comments that could rise to such a level. The court noted that “Stephens testified at her deposition that:
– after she came back from a period of disability, her work was taken away from her and her duties were significantly reduced; she was no longer being copied on paperwork; and she was being excluded from meetings and ignored (Stephens Dep. 45-47, 354, 356, 373); – her supervisors complained on several occasions to her that she was having memory problems and told her that “the chemotherapy ··· seemed to be causing a problem with [her] memory”; in fact, she was not having memory problems and the comments were made when she was no longer on chemotherapy and “there was nothing wrong with [her] memory at all” ( id. 52; see also id. 62, 365-66);
– her supervisors said to her that her drugs were “making [her] kind of exaggerate things, ··· that [she] was kind of blowing [things] out of proportion” ( id. 53);
– a supervisor told her that she was being “overly sensitive,” “overly emotional,” and “taking things way too seriously,” and that he was “absolutely convinced” that these symptoms were caused by her “medications for her breast cancer” ( id. 384);
– a supervisor stated to her that “he needed somebody aggressive, and that ··· since [she] got sick, [she] wasn’t as aggressive,” and that she had “lost [her] edge” ( id. 62, 403; see id. 404);
– the same supervisor told her that he was doing her job “because he didn’t think that [she] was capable of doing it; that he needed somebody [who] was healthy and aggressive, and that [she] wasn’t like that any more” ( id. 65);
– her supervisor and a co-worker commented to her that her “face was so red” that she must have been “spending all [her] time at the beach, that on the days that [she] wasn’t in the office, that [she] wasn’t really sick at home, that [she] was at the beach,” when in fact her face was red because of the chemotherapy ( id. 295-96);
– a supervisor sent her home “once or twice,” saying that she “didn’t look well,” even though she told him she was fine ( id. 99);
– the same supervisor told her that she “looked like shit” and that if she insisted on being at work, she “should keep the door closed so that no one else could see [her]” ( id. 100, see id. 186);
– on a “day-to-day basis,” two supervisors made comments to her “about [her] thinning hair, [her] red face, [her] inability,” and her memory problems, and told her that she “looked like shit” and that “[she couldn’t] perform [her] job functions” ( id. 451-52);
– a supervisor told her that her “illness was interfering with his business *285 and that [she] should go out on disability and come back when [she] was well” ( id. 282; accord id. 297, 308);
– a supervisor threw some papers in her face, and he said to her “you should never have come back” ( id. 368); and
– a supervisor told her “he wanted [her] to go out on disability [and] that he regarded [her] as disabled.” ( id. 456).
For purposes of this motion, I must accept Stephens’s testimony. Therefore, I must assume that these actions were taken against her and that these statements were made to her. A reasonable jury could find from this testimony as well as other evidence in the case that defendants discriminated against Stephens by engaging in a pattern of severe and pervasive conduct based on their perception that she was disabled and that altered the conditions of her employment. A reasonable jury could find that Stephens’s supervisors fired her or forced her out because they wrongfully believed that she was incapable of performing her job responsibilities because of her breast cancer and associated symptoms, imagined or otherwise.” Stephens v. Thomas Pub. Co., Inc., 279 F.Supp.2d 279, 284 -285 (S.D.N.Y.,2003).

C. Record of Having a Disability

The final way that an employee demonstrates that they are a qualified individual with a disability and entitled to the protections of the ADA is to show that they have a record of having a disability and that the employer discriminated against them on that basis. “To have a record of an impairment, an employee must “ha[ve] a history of ··· a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k).” Heisler v. Metropolitan Council, 339 F.3d 622, 630 (C.A.8 (Minn.),2003).

What is necessary to prove that an employee has a record of having a disability? Courts have held that “[f]irst, “simply being hospitalized [does not] establish[ ] a record of an impairment under the ADA.” Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir.1998), cert. denied, 526 U.S. 1113, 119 S.Ct. 1758, 143 L.Ed.2d 790 (1999). Second, the record must be of an impairment that substantially limits a major life activity. Being hospitalized on four occasions for short periods of time, taking medications, and receiving shock therapy treatments do not in and of themselves establish that Heisler’s depression has ever substantially limited the major life activities she has asserted in this litigation. Nor does having a history of depression qualify Heisler as disabled. She has worked and lived independently throughout the twenty years that she has suffered from depression and has provided no evidence that any major life activities were substantially limited during that time. We do not mean to minimize the effects of Ms. Heisler’s major depressive disorder. However, she has failed to establish that it qualifies her as disabled for purposes of the ADA.” Heisler v. Metropolitan Council, 339 F.3d 622, 630 (C.A.8 (Minn.),2003).

2. Qualified Individual
Once you have proven that you either have a disability within the meaning of the ADA or are regarded as having an ADA qualifying disability or have a record of having an ADA qualifying disability, you must then prove that you are a “qualified individual” within the meaning of the law. “In order to pass the second prong of the test for disability discrimination, a plaintiff must prove that s/he is a “qualified individual.” “Qualified individual” is defined as one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The EEOC regulations divide this inquiry into two parts: (1) whether the individual has the requisite skill, experience, education and other job-related requirements of the position sought, and (2) whether the individual, with or without reasonable accommodation, can perform the essential functions of that position. 29 C.F.R. § 1630.2(m). Buskirk v. Apollo Metals, 307 F.3d 160, 168 (C.A.3 (Pa.),2002.)

Clearly, the more difficult part of this two-part test is whether the employee can perform the essential functions of the position. Courts have held that “[t]he term “qualified individual with a disability” means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Id. § 12111(8); see also, e.g., Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.2000); D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *5 (C.A.11 (Fla.),2005); See also, Wright-Khan v. People’s Bank, 274 F.Supp.2d 205, 213 (D.Conn.,2003) ( “The protected class in which Wright-Khan claims membership is that of qualified individuals with disabilities, which requires evidence from which a fact finder could conclude that Wright-Khan is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires,” 42 U.S.C. § 12111(8).”).

Courts have held that the disability discrimination laws do not require an employer to eliminate an essential function of the job. Thus Courts reason that “[i]f the individual “is unable to perform an essential function of his ··· job, even with an accommodation, he is, by definition, not a ‘qualified individual’ and, therefore, not covered under the ADA. In other words, the ADA does not require [the employer] to eliminate an essential function of [the plaintiff’s] job.” Id. (citation omitted).” D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *7 (C.A.11 (Fla.),2005).

Three-Prong Burden-Shifting Analysis
Once a plaintiff has proven that they are a qualified individual with a disability they then have to go about proving the prima facie case of discrimination, as discussed above in the elements necessary to substantiate a disability discrimination case. Then the burden would shift to the defendant employer to demonstrate that they have legitimate non-discriminatory reasons and the plaintiff would then have to show that these are pretextual.

Courts employ the same three-prong burden-shifting analysis to disability discrimination cases that they use in other employment discrimination cases. “The same burden-shifting analysis used in Title VII claims is also used to evaluate disability discrimination claims under the ADA: (1) a plaintiff must establish a prima facie case of discrimination; (2) the burden of production then shifts to defendant to offer non-discriminatory reasons for its actions; and (3) the plaintiff then must show that those reasons are merely pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.1999).” LaBella v. New York City Admin. for Children’s Services, 2005 WL 2077192, *10 (E.D.N.Y.,2005).

This analysis always begins with proof of a prima facie case of discrimination. Courts hold that “[t]o establish a prima facie case of employment discrimination based on disability, Plaintiff must establish that (1) she is a disabled person within the meaning of the ADA, (2) she is otherwise qualified, with or without reasonable accommodation, to perform the essential functions of the job, and (3) the employer terminated her because of her disability. Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir.1998). If Plaintiff establishes a prima facie case, the burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for its action. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1179 (6th Cir.1996). If Defendant meets that burden, Plaintiff must show that the proferred explanation is a pretext for unlawful discrimination. Id.” Starks-Umoja v. Federal Express Corp. , 341 F.Supp.2d 979, 990 (W.D.Tenn.,2003).

Once a plaintiff establishes a prima facie case the burden shifts to the defendant to proffer a nondiscriminatory reason for the action it took. “By making out this minimal prima facie case, the plaintiff creates a presumption that the employer unlawfully discriminated, and thus places the burden of production on the employer to proffer a nondiscriminatory reason for its action. If the defendant meets its burden, the McDonnell Douglas framework disappears and the sole remaining issue is discrimination vel non. The plaintiff must then meet her ultimate burden of proving that she was the victim of intentional discrimination without the benefit of McDonnell Douglas’s intermediate burdens and presumptions.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 77 (2d Cir.2001) (internal quotations, citations and alterations omitted). Wright-Khan v. People’s Bank, 274 F.Supp.2d 205, 213 (D.Conn.,2003).

Judicial Estoppel
One argument that defendants utilize to attempt to defeat disability discrimination claims is judicial estoppel. They use this to assert that the plaintiff is not a qualified individual with a disability because the plaintiff has claimed in another forum that they are not capable of performing the essential functions of the job. Usually this happens when the plaintiff has also filed for social security benefits in another forum.

Courts have set forth the definition of what judicial estoppel is and how to prove it.
“The doctrine of judicial estoppel prevents a party from asserting a factual position in one legal proceeding that is contrary to a position that it successfully advanced in another proceeding. See Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.1999). Thus, “[a] party invoking judicial estoppel must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment.” Id. (citation omitted).” Rodal v. Anesthesia Group of Onondaga, P.C. 369 F.3d at 118; See also, Floyd v. Mount Sinai Medical Center Personnel Director (Linen Dept.), 2005 WL 612716, *5 (S.D.N.Y.,2005.)(“Two conditions are required for estoppel to apply: “(1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding, and (2) that position was adopted by the first tribunal in some manner, such as rendering a favorable judgment.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.1999). The purpose of such a rule is “to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings.” Simon v. Safelite Glass Corp., 128 F.3d 68, 71 (2d Cir.1997)(internal quotations omitted)”). See also, Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 119 (C.A.2 (N.Y.),2004) (“The law in this circuit recognizes that when an individual’s prior submission regarding his disability to an adjudicatory body contains a “purely factual statement[ ] that directly contradict[s]” a statement made in a subsequent ADA claim, and the two “[can]not be reconciled with any amount of explanation,” judicial estoppel will preclude the ADA claim. Parker v. Columbia Pictures Indus., 204 F.3d at 334 (citing as examples of factually contradictory statements plaintiffs’ assertions that they could/could not raise their arms above their head, or could/could not stand and walk).”

Courts emphasize that the context in which contradictory statements are asserted is extremely important in determining whether the plaintiff should be judicially estopped from claiming in an ADA case that he is a qualified individual who can perform the essential functions of the job. “As the Supreme Court cautioned in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), however, a court must carefully consider the contexts in which apparently contradictory statements are made to determine if there is, in fact, direct and irreconcilable contradiction. In Cleveland, the Court ruled that a representation of complete disability in a Social Security proceeding was not directly contradicted by the same person’s ADA claim that he could perform essential job functions with reasonable accommodation because the former proceeding did not consider the effect that reasonable workplace accommodations would have on the claimant’s ability to work. See id. at 807, 119 S.Ct. 1597.” Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d at 119. See also, Floyd v. Mount Sinai Medical Center Personnel Director (Linen Dept.), 2005 WL 612716, *5 (S.D.N.Y.,2005)(“ The receipt of disability benefits does not automatically prevent an individual from asserting he is also qualified to work under the ADA. It is possible that an individual can be considered disabled for SSDI purposes, yet still capable of performing his or her job duties with reasonable accommodation under the ADA. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802-03 (1999). In Cleveland, the Supreme Court noted that the meaning of disabled in the Social Security context does not consider the effects of reasonable accommodations on the plaintiff’s ability to work. Id. at 807. For this reason, a plaintiff’s statement that he or she is totally disabled or cannot work, made in the context of an application to the SSA, does not necessarily mean that the plaintiff could not work if granted a reasonable accommodation as required by the ADA. Id. at 802-03. Because of this overlap, judicial estoppel applies only when there is a direct factual contradiction between a statement at an earlier proceeding and the current claim, and that contradiction “[can]not be reconciled with any amount of explanation.” Parker v. Columbia Pictures Indus., 204 F.3d at 334.”).

Courts recognize that the ADA may co-exist with other statutes that require a showing of complete disability. “In Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), the Supreme Court addressed whether a plaintiff who claims both to be “totally disabled” for purposes of receiving SSDI benefits and “qualified” for employment under the ADA is judicially estopped from bringing his ADA claim. As a preliminary matter, the Supreme Court first observed that to make a prima facie case of disability discrimination under the ADA, a plaintiff must first demonstrate he is qualified for the position in question; and in order to receive SSDI benefits, a claimant must make a showing of a disability . Id. at 806, 119 S.Ct. 1597. Although apparently incompatible, the Court concluded these two statuses may nevertheless co-exist as to one claimant, observing that a claimant for SSDI benefits is not per se precluded from making a showing of qualification for purposes of setting out a prima facie case of disability discrimination. Id. at 797-98, 119 S.Ct. 1597.” McClaren v. Morrison Management Specialists, Inc., 2005 WL 1864272, *4 (C.A.5 (Tex.),2005).

Courts allow a plaintiff to explain the inconsistency and will analyze such explanations. “In such a case, to survive judgment for the employer, a plaintiff must address the apparent inconsistency between “qualified” for employment under the ADA and “disabled” for SSDI benefits. Id. at 798, 806, 119 S.Ct. 1597 (holding that “ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim”). A plaintiff’s explanation of the apparent inconsistency must be “sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good faith belief in, the earlier statement, the plaintiff could nonetheless perform the essential functions of her job, with or without reasonable accommodation.” Id. at 807, 119 S.Ct. 1597 (internal quotation marks omitted). If a plaintiff fails to explain the inconsistency between his qualification and disability, or if the explanation is insufficient, then his ADA claim is judicially estopped by his earlier statements regarding disability. Id.” McClaren v. Morrison Management Specialists, Inc., 2005 WL 1864272, *4 (C.A.5 (Tex.),2005).

What is an Essential Function of the Job?

As discussed above, a qualified individual for ADA purposes is someone who with or without accommodation can perform the essential functions of the job. Accordingly, another huge area of litigation is over what the essential functions of the plaintiff’s job were and whether he/she could perform them. To address this, one must understand what the term “essential functions” means. “The ADA’s implementing regulations provide that “[t]he term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires,” and “does not include the marginal functions of the position.”29 C.F.R. § 1630.2(n)(1). “Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors.” Davis, 205 F.3d at 1305. In making this determination, the statute provides, “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”42 U.S.C. § 12111(8); see also Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir.1997). “The ADA regulations provide that other factors to consider are: (1) the amount of time spent on the job performing the function, (2) the consequences of not requiring the incumbent to perform the function, (3) the terms of the collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience of incumbents in similar jobs.” Davis, 205 F.3d at 1305 (citing 29 C.F.R. § 1630.2(n)(3)). These regulations also identify three (nonexclusive) bases on which a job function may be deemed essential: “(1) the reason the position exists is to perform the function; (2) there are a limited number of employees available among whom the performance of the job function can be distributed; and (3) the function is highly specialized so that the incumbent in the position was hired for his or her expertise or ability to perform the particular function.” Holbrook, 112 F.3d at 1526 (citing 29 C.F.R. § 1630.2(n)(2) (1996)).” D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *8 (C.A.11 (Fla.),2005).

Courts equate essential function with fundamental function or job duties. “The term “essential function” is defined as “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1); Martin v. Kansas, 190 F.3d 1120, 1130 (10th Cir.1999). This term does not include marginal functions of the position. 29 C.F.R. § 1630.2(n)(1); White v.York Int’l Corp., 45 F.3d at 361. Determining whether a particular function is essential is a factual inquiry. See id. In making this determination, courts must give consideration to the employer’s judgment as to what functions of a job are essential, including those functions contained in a written job description. See id.; see also 42 U.S.C. § 12111(8). However, such evidence is not conclusive; “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.” Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1071 (9th Cir.2000) rev’d on other grounds,536 U.S. 73, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002).” Davidson v. America Online, Inc., 337 F.3d 1179, 1191 (C.A.10 (Utah),2003).

What Type of Accommodations are Reasonable
The issue of what is a “reasonable” accommodation under the ADA is also litigated quite frequently. This question comes up when an employer alleges that the plaintiff is not a qualified individual with a disability because he cannot show that he can perform the essential job functions with a reasonable accommodation because the accommodation he has requested is not reasonable. Some types of accommodation to enable an employee to perform his/her job are reasonable and others are not. In this case, plaintiff’s request that he be semi-isolated from the rest of the employees was not a reasonable accommodation. Thus he was unable to show he was a qualified individual who with a reasonable accommodation could perform the essential functions of the job. “The Court finds that St. Hilaire has not shown that he could perform the essential functions of his job with reasonable accommodations because isolation is not a reasonable accommodation. Although St. Hilaire argues that as a supervisor he had “limited interactions with people and in fact, most of the work is done on a computer” (St. Hilaire Aff. 22), he admits that being around others was an essential function of his job, (St. Hilaire Dep. Tr. at 156), and his job description describes his supervisory duties as scheduling, training, discipline, and evaluating performance. (Quade Aff. Ex. DD.) Given that working around others is essential to his job, St. Hilaire’s requested isolation accommodation would clearly impose an undue financial and administrative burden on Minco. See Buckles, 176 F.3d at 1101. “An employer is not required by the ADA to create a wholly isolated work space for an employee that is free from” other co-*1006 workers. Id. (finding it an unreasonable accommodation to require employer to provide an isolated workplace free of irritants); Gits v. Minnesota Min. and Mfg. Co., Civ. No. 99-1925 (ADM/AJB), 2001 WL 1409961, at *8 (D. Minn. June 15, 2001) (finding it unreasonable to require employer to create an isolated workplace free of chemicals). “In this situation, there is only so much avoidance that can be done before an employer would essentially be providing a bubble for an employee to work in,” Buckles, 176 F.3d at 1101, but the ADA does not mandate the creation of a co-worker free bubble for St. Hilaire. See Gits, 2001 WL 1409961, at *8. Because St. Hilaire fails to advance a reasonable accommodation, he has not met his initial burden to show that he is a qualified individual under the ADA.” St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d 999, 1005-1006 (D.Minn.,2003.)

The issue of what kind of accommodation is reasonable also comes up with regard to a failure to accommodate case in which the plaintiff claims that the employer failed to provide him/her with a reasonable accommodation and the employer defends by contending that it did not have to provide that type of accommodation because it was not reasonable. “In the alternative, Defendant argues that if Plaintiff were disabled, it had no duty to accommodate her because the requested accommodation was not reasonable because there was no causal connection between the accommodation, i.e., working days, and diabetes. In addition, the requested accommodation was unreasonable because it would require Defendant MGM to accommodate Plaintiff in contravention of its seniority system.” Salim v. MGM Grand Detroit, LLC., 231 F.Supp.2d 577, 583 -584 (E.D.Mich.,2002). See also, Walton v. Mental Health Assn. of Southeastern Pennsylvania, 1997 WL 717053, *11 (E.D.Pa.,1997)(“Thus, in order to make out a prima facie case of failure to accommodate, a plaintiff must show that a request for a possible or plausible accommodation was made. If the plaintiff can so demonstrate, the burden shifts to the defendant to show that the proposed accommodation is unreasonable-that is, that implementation of such an accommodation would cause the defendant to suffer an undue burden. Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 138 (2d Cir.1995).”).

Who is an Employee under the ADA?
The issue of who is an employee under the ADA is an important one. “The statute defines an “employee” simply as “an individual employed by an employer,” id. § 12111(4), a “ ‘circular’ ” construction that, as the Supreme Court has observed, “ ‘explains nothing.’ ” Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. at 444, 123 S.Ct. 1673 (quoting Nationwide Mut., Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)) (construing similar definition of employee in ERISA).” Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 122 (C.A.2 (N.Y.),2004). This issue has been called into play recently with the rise of professional corporations in which the employees are shareholders rather than partners.

“For some time, the definition presented particular challenges as applied to professional corporations, “a [relatively] new type of business entity that has no exact precedent in the common law.” Id. at 447, 123 S.Ct. 1673. Prior to the enactment of state statutes authorizing such corporations, professionals often associated as partners, to whom it was “generally accepted that the benefits of ··· antidiscrimination statutes ··· do not extend.” Hyland v. New Haven Radiology Assocs., P.C., 794 F.2d at 797. In professional corporations, however, the participating professionals are “shareholders,” which led some courts, including this one, to conclude that “[h]aving made the election to incorporate” and reap the tax and employee benefits associated with this business form, they could not at the same time claim that their business was “essentially a ··· partnership” for purposes of evading antidiscrimination laws. Id. at 798. Other courts, however, concluded that “[t]he role of a shareholder in a professional corporation is far more analogous to a partner in a partnership than it is to the shareholder of a general corporation,” and ruled that such shareholders could not be considered “employees” protected from workplace discrimination. EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177, 1178 (7th Cir.1984).” Id. at *122 -123.

The Supreme Court however recently resolved the conflict among the circuit courts.
“Last term, the Supreme Court intervened to resolve the circuit conflict on this issue. In Clackamas Gastroenterology Associates, P.C. v. Wells, the Court eschewed categorical approaches and instead looked to the common-law master-servant relationship for guidance, stating that “the common-law element of control is the principal guidepost that should be followed” in evaluating whether a shareholder of a professional corporation is an “employee” for purposes of the antidiscrimination statutes. 538 U.S. at 448, 123 S.Ct. 1673. The Court ruled that the relevant inquiry is “whether the individual acts independently and participates in managing the organization, or whether the individual is subject to the organization’s control.” Id. at 449, 123 S.Ct. 1673. It approved six factors, identified by the EEOC, as relevant to this determination:
“Whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work
Whether and, if so, to what extent the organization supervises the individual’s work
Whether the individual reports to someone higher in the organization
Whether and, if so, to what extent the individual is able to influence the organization
Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts Whether the individual shares in the profits, losses, and liabilities of the organization.” Id. at 449-50, 123 S.Ct. 1673 (quoting EEOC Compliance Manual § 605:0009). Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 123 (C.A.2 (N.Y.),2004).

Major Life Activities
What are major life activities for the purposes of the ADA? “The term “major life activity” is defined by the regulations as including functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”29 C.F.R. § 1630.2(i). In addition, to qualify as “disabled,” a plaintiff must show that the limitation on the major life activity is “substantial.” 42 U.S.C. § 12102(2)(A). Thus, in order to be considered “substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term.” Toyota Motor Mfg. at 198, 122 S.Ct. 681, 151 L.Ed.2d 615.” Edwards v. Brookhaven Science Associates, LLC, 2005 WL 2296407, *4 (E.D.N.Y.,2005).

Working is a major life activity that plaintiff’s use often in ADA cases. “The Supreme Court has explained that “[w]hen the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Indeed, the Equal Employment Opportunity Commission (EEOC) regulations interpreting the ADA make it abundantly clear that an individual’s ability to work is “substantially limited” when the individual is “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)(i).” D’Angelo v. ConAgra Foods, Inc., 2005 WL 2072131, *6 (C.A.11 (Fla.),2005).

The Supreme Court in a recent case has also held that reproduction is a major life activity. “These regulations are contrary to petitioner’s attempt to limit the meaning of the term “major” to public activities. The inclusion of activities such as caring for one’s self and performing manual tasks belies the suggestion that a task must have a public or economic character in order to be a major life activity for purposes of the ADA. On the contrary, the Rehabilitation Act regulations support the inclusion of reproduction as a major life activity, since reproduction could not be regarded as any less important than working and learning. Petitioner advances no credible basis for confining major life activities to those with a public, economic, or daily aspect. In the absence of any reason to reach a contrary conclusion, we agree with the Court of Appeals’ determination that reproduction is a major life activity for the purposes of the ADA.” Bragdon v. Abbott, 524 U.S. 624, 639, 118 S.Ct. 2196, 2205 (U.S.,1998).

HOW IT RELATES TO YOU PERSONALLY
1. If you believe that you have been discriminated against based upon your disability
If you believe that your employer has discriminated against you based upon your disability, you should consult an attorney. Please contact Mark Carey at 203-255-4150 or mcarey@capclaw.com. If you do not want to do this, you should at the very least attempt to preserve your legal rights by putting your claim in writing addressed to your company’s human resources or legal department. The company is required to conduct an investigation and will provide you with the results.

It is important that you file a charge with the EEOC or the state fair employment agency in your jurisdiction in a timely manner. In addition, what you put in your initial charge is extremely important. In many cases, courts have held that a plaintiff can be barred from bringing a disability claim under the ADA because of the plaintiff’s failure to exhaust their administrative remedies by stating that claim in the EEOC charge. “Plaintiff did not allege discrimination based on disability, or even identify a disability, in the EEOC charge. Accordingly, plaintiff may only maintain her disability discrimination claims if they are “reasonably related” to her claims in the EEOC charge. A necessary requisite to filing a charge of disability discrimination in federal court is a timely filing of a complaint claiming disability discrimination with either the EEOC or local fair employment agency. Courts have made it very clear that cases in which the plaintiff has not initiated their claim with the EEOC or local fair employment agency will be dismissed for failure to exhaust administrative remedies. “Of the three types of “reasonably related” claims, only the first is relevant to plaintiff’s failure to allege discrimination based on disability in her EEOC charge. However, plaintiff’s EEOC charge, which alleges discrimination based on sex, retaliation and a hostile work environment created by LaMarco and Atlantic Express only, could not reasonably be expected to have triggered an investigation into her claims of discrimination based on disability, particularly because plaintiff does not even make reference to a disability in the administrative filing. See, e.g. Culbertson v. Charosa Foundation Corp., No. CV-03-3742, 2004 WL 502925, at *4 (E.D.N.Y. Jan.7, 2004) (finding that plaintiff’s claims of age, race, and religious discrimination were not reasonably related to her administrative complaint alleging gender discrimination only, where neither the face nor substance of the administrative complaint suggested racial, religious, or age discrimination , and plaintiff did not even note her race, religion, or age in the administrative complaint); O’Neal v. State Univ. of New York Health Sci. Ctr. Brooklyn, No. CV-01-7802, 2003 WL 1524664, at *3 (E.D.N.Y. Mar.24, 2003)(finding that plaintiff’s race discrimination claim was not reasonably related to the administrative complaint alleging gender discrimination only, where she did not charge race discrimination, or even allege her race, in the administrative filings). Accordingly, plaintiff’s claims of discrimination based on disability are dismissed pursuant to Rule 12(b)(6) for her failure to exhaust her administrative remedies with respect to those claims.” Estefania v. LaMarco, 2005 WL 990695, *7 (E.D.N.Y.,2005).

The reasoning that courts use is that the information in the charge must be sufficient to allow an investigation and if there was not sufficient information in the charge the plaintiff will be prohibited from asserting the claim in federal court. “In the tenth circuit, a plaintiff must exhaust her claims before the EEOC as a prerequisite to federal court jurisdiction over her ADA claims. See Jones v. Runyon, 91 F.3d 1398, 1399 n. 1 (10th Cir.1996); Khader v. Aspin, 1 F.3d 968, 970-71 (10th Cir.1993). A plaintiff’s claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC. Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir.1994); Martin v. Nannie & Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir.1993) (overruling on other grounds recognized by Davidson v. America Online, Inc., 337 F.3d 1179, 1184-85 (10th Cir.2003)); Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124, 132 (4th Cir.2002).” MacKenzie v. City and County of Denver, 414 F.3d 1266, 1274 (C.A.10 (Colo.),2005).

Remember that you are protected once you have filed this claim and any adverse employment actions taken against you once you have filed a complaint could be considered to be retaliation. See section on retaliation in employment discrimination actions, infra.

2. If you have been accused of discriminating against an employee based upon the employee’s disability
Usually your company’s human resource or legal department will conduct an investigation into the employee’s claim and provide the employee and you with the results of the investigation. The ADA does not provide for individual liability. “Although the Second Circuit has yet to expressly rule on the issue, district courts have held that individually named defendants cannot be personally liable under the ADA. See, e.g., Cerrato v. Durham, 941 F.Supp. 388, 395 (S.D.N.Y.1996); Gentile v. Town of Huntington, 288 F.Supp.2d 316, 322 (E.D.N.Y.2003); Altman v. New York City Health and Hospitals Corp., 903 F.Supp. 503, 508 (S.D.N.Y.1995), aff’d,100 F.3d 1054 (2d Cir.1996); Yaba v. Caldwalader, Wickersham & Taft, 931 F.Supp. 271, 274 (S.D.N.Y.1996) (all rejecting individual liability under the ADA).” Lennon v. NYC, 2005 WL 2464687, *7 (S.D.N.Y.) (S.D.N.Y.,2005). Although the ADA does not provide for individual liability for managers in these situations, some state human rights laws (such as New York’s) may provide for individual liability. ‘Individual liability is sometimes possible, however, under New York’s Human Rights Law. Gregory v. Daly, 243 F.3d 687, 689 n. 1 (2d Cir.2001); Tomka, 66 F.3d at 1317.’ Mandell v. County of Suffolk ,316 F.3d 368, 377 (C.A.2 (N.Y.),2003). Since you may have some exposure it may be worth consulting with legal counsel regarding the alleged claim against you.

For more information please contact Mark Carey at (203) 255-4150 or email to info@capclaw.com.

Contact us for more information