Summary Judgment Hurdles (Continued from page 14)


the plaintiff to be disabled, yet neverthe- less capable of performing the job. Obtain all Social Security Disability


Insurance (“SSDI”) applications submit- ted by your plaintiff. Employers love to argue that the plaintiff is estopped from arguing his ability to perform the essential functions of his job when he previously has represented an inability to work.43 Plaintiff therefore must proffer a sufficient explanation for whatever inconsistencies may exist between statements on the SSDI application and a claim of the ability to perform the essential functions of the job.


While most likely you have obtained


medical experts to establish the substan- tially limited major life activities, be mindful that these same experts are not in the best position to establish your client’s ability to be “qualified.” Being a “quali- fied” individual with a disability means “an individual … who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 44


bear[s] more than a marginal relationship to the job at issue.” 45


A job function is essential if it The ADA requires


that the court give consideration to the employer’s judgment as to what functions are essential.46


Just as one’s disability is


analyzed on a case-by-case basis, so too is whether a job function is essential. That said, the Fourth Circuit has made clear that attendance is an essential function of any job.47


Think carefully, therefore, be-


fore you initiate an action on behalf of an employee with problematic attendance. Propound questions to the employer specifically requesting all “functions” essential to the job. If your plaintiff has positive performance appraisals, longevity with the employer, and other indications of successful performance, this may be enough. If not, consider using a vocational


43


Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806, 119 S. Ct. 1597, 1603 (1999)


44 45


46 47


42 U.S.C. §12111(8)


Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal, 31 F.3d 209, 213 (4th


Cir. 1994) 42 U.S.C. §12111(8)


Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d at 213


52 51


expert, or an industrial organizational psychologist -- someone who could assess your plaintiff ’s functional capacities in light of his substantially limiting major life activities.


Use the Smell Test When Identifying Which Requested Accommodations Are Reasonable


The ADA sets forth a number of


examples, which could be considered a reasonable accommodation: - making existing facilities used by em- ployees readily accessible to and usable by individuals with disabilities; and


- job restructuring, part-time or modi- fied work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified read- ers or interpreters, and other similar accommodations for individuals with disabilities.48 The employer and the employee must


engage in the interactive process to identify a reasonable accommodation,49 and generally, it is employee who must make the employer aware of the need


for the requested accommodation.50 51


Just as each disability is examined on


an individual basis, so too is whether a requested accommodation is reasonable, a matter generally reserved for the jury.52 Be realistic and reasonable as to what you can expect from the employer. Don’t demand a change in supervisors in order to reduce the plaintiff ’s stress. It won’t happen. Be cautious about job restructur- ing. A demand that an essential function be removed from the plaintiff ’s duties is a concession that she cannot perform all the essential functions. Our courts have held, as a matter of law, that certain forms of accommodation are not reasonable. An employer is not required to violate a collective bargaining agreement or a non-


48 50


42 U.S.C. §12111(9)(A)(B) 49 29 C.F.R.§1630.2(o)(3)


Tangires v. Johns Hopkins Hosp., 79 F. Supp.2d 587, 597 (D. Md.), aff ’d, 230 F.3d 1354 (4th


Cir. 2000)


Stewart v. Weast, 228 F. Supp.2d 660, 663 (D. Md. 2002)


Pandazides v. Virginia Bd. Of Educ. 13 F.3d 823, 833 (4th


Cir. 1994)


58 59


discriminatory seniority policy, in order to accommodate a disabled worker.53 Requiring an employer to change the very essence of a position, by eliminating stress, and exempting the employee from normal performance reviews, has been held to be unreasonable.54 An employer need not provide a


reasonable accommodation if it can es- tablish that the requested accommodation would impose an undue hardship on the operation of its business.55


A thoughtful


analysis of the interplay between these concepts of “reasonable accommodation” and “undue hardship” is set forth in Bry- ant v. Better Business Bureau of Greater Maryland, Inc.56


When All Else Fails, Prove Retaliation Whatever discrimination issues arise


under other employment civil rights statutes similarly can arise under the ADA. Claims for hostile work environ- ment are recognized, but once again, the plaintiff must be a qualified individual with a disability.57


For retaliation cases


brought under the ADA, the retaliation prohibition is more expansive than its counterparts in the other civil rights statutes.58


accommodation is considered protected activity.59


Just the act of requesting an And finally, in ADA retaliation


cases, the plaintiff need not have an ADA covered disability.60


Conclusion The ADA’s passage alone has made


employers more sensitive to the needs of the disabled, but clearly more needs to be done. We must remain extremely selec- tive in the cases we advance. With more frequent survival of summary judgment and a few good verdicts, the ADA will continue to gain momentum.


53See EEOC v. Sara Lee, 237 F.3d at 353 54


Cir. 1995)(unpublished) 55


Carrozza v. Howard County, Maryland, 45 F.3d 425 (4th


See 42 U.S.C. §12112(b)(5) and 42 U.S.C. §12111(10)(A)(B)(i)-(iv)


56 923 F. Supp. 720 (D. Md. 1996) 57


Cir. 2001) 42 U.S.C. §12203


Haulbrook v. Michelin North America, 252 F.3d 696, 706 (4th


Cir. 2001) 60 Rhoads v. F.D.I.C., 257 F.3d at 380


Fox v. General Motors Corp., 247 F.3d 169, 177 (4th


16


Trial Reporter


Winter 2007





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