Summary Judgment Hurdles (Continued from page 10)
mental capacity would impede his ability to perform his supervisory functions. Closely related to the “regarded as”
theory of ADA coverage is when an em- ployer concedes that the disability is the reason for the adverse action and argues that the employee constitutes a direct threat to the health or safety of others in the workplace.16
A determination of
direct threat is an individualized inquiry, wherein the employer must rely on objec- tive, scientific, and quantifiable evidence to justify its adverse action. The Court’s analysis in E.E.O.C. v. Browning-Ferris, Inc.17
contains a comprehensive discussion
on how an employer must meet the direct threat standard. An employer’s reliance on this defense will make it hard-pressed to argue that it did not regard the plaintiff as disabled. Your case accordingly will rise or fall depending on whether the plaintiff is a direct threat to the health or safety of others. Be mindful of cases that arise as a result of employers who withdraw offers of employment or terminate an employee
16 42 U.S.C. §12113(b) 17 262 F. Supp.2d 577 (D. Md. 2002)
based on the opinion of company doctors. These doctors generally are not experts in the nature of your plaintiff ’s disability and will not have conducted the required individualized inquiry. Of course, retain your own expert to counter this defense. You will find that people in general, and employers in particular, including the company doctors, still make unfounded assumptions about disabilities, based on myth, fear and stereotype. Collect as much of this evidence as you can.
Choose Concrete Over Amorphous Major Life Activities
The term “major life activities” refers
to “those activities that are of central im- portance to daily life … that the average person in the general population can per- form with little of no difficulty.”18
EEOC
regulations describe “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”19
18
Rohan v. Networks Presentations, LLC, 375 F.3d 266, 274 (4th ted)
19 29 C.F.R. §1630.2(i) Cir. 2004)(citations omit-
and as the ADA has developed, the courts have considered whether additional func- tions constitute major life activities.20
As
discussed below, be selective when arguing which major life activities apply to your plaintiff. The more physical and concrete the ma-
jor life activity, the better chance the court has recognized it as such. Conversely, the more amorphous the major life activity, the better to avoid it. Seeing, hearing, and walking 21
life activities. Consider using standing, eating,22
sleeping,23
are well-recognized major lifting, 24
25and elimination of waste.26 acting with others,27
breathing, Avoid inter-
thinking, driving,28
and concentrating. The number of major life activities acknowledged as such by the Fourth Circuit is limited. Look to the Supreme Court and other circuits when persuading the court to acknowledge other major life activities.
Avoid Working as the Major Life Activity
This list is not exhaustive EEOC’s regulations provide that with
respect to working as a major life activ- ity,
Bradley Troy,
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20 21 22
The term substantially limits means 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 abili- ties. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.29
(Continued on page 14)
See also Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th
Cir. 1998)
E.E.O.C. v. Town & Country Toyota, Inc., 7 Fed.Appx. 226, at **2
Vailes v. Prince George’s County, Maryland 39 Fed.Appx. 867 (4th lished)
23 24 Cir. 2002)(unpub-
Rohan v. Networks Presentation, LLC., 175 F. Supp.2d 806 (
D.Md. 2001)
In Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346 (4th
Cir. 1996), the Court
implies that lifting is a major life activity but makes clear that a 25 pound lifting restriction would not significantly restrict the ability to lift.
25
Rhoads v. F.D.I.C., 257 F.3d 373, 390 (4th
Cir. 2001), cert. denied, 535 U.S. 933 (2002) 26 27 28
Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d at 257
Rohan v. Networks Presentations, LLC, 375 F.3d at 274
Wyland v. Boddie-Noell Enterprises, Inc., 165 F.3d 913 (4th
Cir. 1998)(unpublished) 29 29 C.F.R.§1630.2(j)(3)(i) 12 Trial Reporter Winter 2007
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