Recent Case Information

Recent Developments in Employment Law

Disability

I.    Knowledge of Depression Doesn't Equal Knowledge of Disability  (excerpted from HR on Campus June 2005)

Case name: Mingo v. Oakland Unified School District,  No. 104055 (105 LRP 7028) (Cal. Ct. App. 2005).

Ruling:  A teacher with depression failed to maintain his discriminatory termination claim under the California Fair Employment and Housing Act. The California Court of Appeal affirmed judgment for the Oakland Unified School District.

What it means: To bring a claim for disability discrimination against a college or university, an employee must prove that the institution knew he was disabled.

Summary:  The district terminated a typing teacher with depression after allegations arose that the teacher sexually harassed a student and made threats against district employees. The teacher sued under the FEHA, alleging disability discrimination.

At trial, the jury returned a special verdict finding that the teacher suffered from a disability, but that the district did not know of his disability prior to termination.

In an unpublished decision, the Court of Appeal affirmed the judgment. Substantial evidence showed the teacher and his doctors never informed the district that they believed his depression constituted a disability, the court determined.

Prior to the teacher's termination, his neurologist called the district and warned that the teacher was dangerous and made threats against district employees. The led the district to obtain a restraining order, and a district representative testified that these alleged threats, along with the secual harassment allegations, were the reason for termination.

In letters to the district, the teacher's therapist stated that the teacher suffered from depression and asked that the restraining order be lifted. At a hearing regarding the order, the teacher also presented letters from his psychiatrist and psychologist.

The court held that these letters informed the district of the teacher's depression, but did not notify the district that the teacher was disabled. The court noted that none of these letters mentioned a disability.

The court also found that the teacher never claimed his depression caused the alleged threats or sexual harassment. Therefore, the court reasoned that the teacher did not establish a link between his depression and the termination.

Because the teacher failed to show the district knew he was disabled, the court held the termination was not based on his disability.

Disability

II.    Lack of Substantial Limitation Scuttles Claim for Alcoholism Disability  (excerpted from HR on Campus June 2005)

Case name: Roig v. Miami Federal Credit Union,  No.04-21093-CIV-KING (105 LRP 7037 (S.D. Fla. 2005).

Ruling:  A relief branch manager failed to maintain his claim that Miami Federal Credit Union terminated him because of his alcoholism. The U.S. District Court, Southern District of Florida granted summary judgment for the credit union.

What it means:  Alcoholism can constitute a disability under the Americans with Disabilities Act, but the employee must either show his alcoholism substantially limits a major life activity or show his employer regards him as disabled because of his alcoholism.

Summary:  Miami Federal Credit Union employed a relief branch manager for six years, during which it was aware of the manager's alcoholism. After the manager took an allegedly unexcused, weeklong absence from work, the credit union terminated his employment.

The manager sued the credit union. He alleged it violated the ADA by terminating him because of his alcoholism.

The District Court granted summary judgment for the credit union, finding the manager failed to establish that his alcoholism constituted a disability under the ADA or that the credit union regarded him as disabled because of his alcoholism.

The District Court first found the manager failed to show his alcoholism substantially limited a major life activity. The manager testified that side effects from medication caused him to be sent home in the middle of the day on several occasions, but the court found this evidence insignificant to show a limitation.

More important, according to the court, was the testimony from both the manager and his wife stating his treatment and alcoholism did not limit him in any way.

The District Court also found the manager failed to show the credit union regarded him as disabled.

After learning of his alcoholism early in his employment, the court observed that the credit union kept the manager employed and promoted him twice.

The court also noted the termination letter expressed the credit union's belief that the manager had "the potential to do a capable job."

This letter clearly indicated the credit union did not believe the manager was disabled or unable to perform in the workplace, the court concluded.

Gender discrimination

III.   Romantic Favoritism is not Considered Sex Discrimination, A Court Rules  (excerpted from HR on Campus June 2005)

Case name:  Preston v. Wisconsin Health Fund,  No. 04-2384 (105 LRP 7342) (7th Cir. 2005).

Ruling:  The 7th U.S. Circuit Court of Appeals affirmed the District Court's grant of summary judgment for the Wisconsin Health Fund on Jay Preston's Title VII gender discrimination claim.

What it means:  A male administrator's romantically motivated favoritism toward a female subordinate is not sex discrimination in violation of Title VII. This is true even when the favoritism disadvantages a male competitor of the female.

Summary:  Bruce Trojak was the chief executive officer of the Wisconsin Health Fund. The fund is a teamsters health and welfare organization that provides health services directly to the clinics it owns.

It had been losing money for many years when Trojak took over in 1998. Preston was a long-time director of a dental clinic that lost $1 million dollars in 1999.

He later presented Trojak with a well-written business plan containing his ideas for stopping the hemorrhaging of cash (the court noted that Preston had an M.B.A., as well as a dental degree).

Despite Preston's efforts, Trojak fired him and replaced him with Linda Hamilton, a much younger dentist "who had no apparent credentials for the job except eagerness for it." Preston sued. he alleged, among other things, that the fund discriminated against him on account of his sex in violation of Title VII.

Trojak stated that he thought Preston's ideas were too few and too late. He also claimed that he was impressed by Hamilton's "can do" attitude.

Preston contended the Trojak favored Hamilton for personal reasons. The two were rumored to be having an affair. Although the rumors were unsubstantiated, the couple frequently dined together and sometimes they would retire to his apartment afterward.

Trojak and Hamilton claimed that these were "platonic sessions solely devoted to disinterested discussion of the future of the dental clinic." The court noted that their deposition testimony was "not terribly credible."

Nevertheless, a male executive's romantically motivated favoritism toward a female subordinate is not sex discrimination in violation of Title VII.

This is true even when the favoritism disadvantages a male competitor of the female. The court explained that "such favoritism is not based on a belief that women are better workers, or otherwise deserve to be treated better than men; indeed it is entirely consistent with the opposite opinion."

Thus, the 7th Circuit affirmed the District Court's grant of summary judgment in favor of the fund.

Racial discrimination

IV.    Fire Department Employee's Claims of Discrimination Get Hosed  (excerpted from HR on Campus June 2005)

Case name: Charron v. City of Hartford,  No. 3:02CV1526DJS (105 LRP 8091) (D. Conn. 2005)

Ruling:  The U.S. District Court, District of Connecticut granted summary judgment for the City of Hartford on Naud Charron's claims of age and race discrimination.

What it means: To survive summary judgment, an employee must show that an institution's stated reasons for not promoting him are a pretext for illegal discrimination.

Summary:  Charron, a mechanic in the Fire Equipment Maintenance Division of the Hartford Dire Department, applied for a supervisor position. He did not receive the promotion. Charron was white and over 40 years old.

The position went to Michael Smith, a black man, under 40. Charron sued the city and others. He alleged race and age discrimination in violation of Title VII and the Age Discrimination in Employment Act, respectively.

The District Court found that Charron established an initial case of discrimination. The defendants then provided a legitimate, nondiscriminatory reason for denying him the promotion.

Specifically, the defendants claimed they selected Smith because he, unlike Charron, held a college degree and had prior supervisory experience. He also showed initiative in seeking additional training through volunteer work and learning about the division's budget, they said.

To survive summary judgment, Charron had to show that the defendants' reasons for not promoting him were a pretext for illegal discrimination. In support of his allegation of pretext, Charron asserted that the defendants deviated from a long-standing practice of promoting the most senior elegible candidate, which would have been him in this case.

The deviation, he argued, established that their stated reason for not selecting him was a pretext for discrimination. But he could not prove that their motivation was based on age or race. Charron admitted that the fire chief was not required to select the most senior applicant.

He offered only his belief to support his claim that the chief deviated from an established practice of selecting the most senior applicant.

A plaintiff's belief, standing alone, is insufficient to prove pretext. Additionally, Charron's assertions were contradicted by the defendants' hiring records. Because he could not show pretext, the court entered summary judgment for the city and the other defendants.

V. Age-Based Comments Proof of Discrimination  (excerpted from Workforce Management 02/04)

Jimmy Palasota, employed by Haggar Clothing for more than 28 years as a sales associate, was fired in 1996 at age 51.  Shortly before the firing, Haggar's vice president for sales, who was Palasota's supervisor, distributed a memorandum recommending severance for 14 sales associates, all specifically identified as over 50 years of age.  Haggar had earlier campaigned to present a "more youthful image," and the company's president and a national sales manager had both referred to Haggar's "aging, graying sales force."  The company also hired people in their 20s and early 30s to perform the same duties as sales associates.

Palasota sued in federal district court, and a jury awarded him $842,218 in back pay for Haggar's violation of the Age Discrimination in Employment Act.  However, the district court overturned the verdict on the grounds that the ageist comments by management were merely "stray remarks" and that Palasota had failed to show that younger workers were more favorably treated.

On appeal, the U.S. Court of Appeals for the 5th Circuit reinstated the jury's verdict, saying that ageist comments may be considered by a jury provided that the speakers are in a position to influence the decision.  Also, Palasota had only to show "evidence . . . from which a fact finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue."  Palasota v. Haggar Clothing Co. , 5th Cir., No. 02-10844 (9/30/03).

Impact:   Companies are advised to warn their management to monitor their mouths or risk considerable liability.

VI.   Chief Justice v. Massachusetts Commission Against Discrimination  (excerpted from Personnel Law Update 10/03)

. . . Cheryl Cossaboom and Theresa O'Brien both held the highest clerical positions in the clerk of court's office of Hampden County, Massachusetts, and had been employed there for twenty years.  After having been sworn in as deputy assistant clerks during a hiring freeze, they also performed the courtroom duties of an assistant clerk.

After the freeze was lifted, the then clerk of court, William Martin, posted two assistant clerk positions, and Cossaboom and O'Brien applied.  Martin hired two males from the outside.  His hiring documents listed "[j]ob knowledge insufficient for the position" as his reason for not hiring the females.  However, the males, a former probation officer and a former tax collector, had never worked in a clerk's office, but they had both participated in Martin's political campaign.

Moreover, during Martin's entire tenure as clerk, he hired five assistant clerks and four head administrative assistants - all of whom were male.

The female employees filed a complaint with the Massachusetts Commission Against Discrimination (Commission).  A commissioner found the clerk and trial court liable for sex-based hiring, and the full Commission affirmed.  On appeal to the Superior Court, a judge vacated the decision of the Commission and remanded the case for further consideration of the commissioner's findings . . . The Supreme Judicial Court of Massachusetts reversed the judgment of the Superior Court and ordered the Superior Court to enter judgment affirming the Commission's decision.

The Supreme Judicial Court of Massachusetts found the commissioner's findings "perfectly adequate".  The commissioner had first determined that sufficient evidence had been presented to establish the elements of a prima facie sex discrimination case:  (1) the complainants were members of a protected class, (2) they applied for the open positions, (3) they were not selected, and (4) their employer filled or sought to fill the positions with similarly (or lesser) qualified individuals.

The commissioner had then found that Martin's explanation for failing to hire the complainants was a pretext in light of their experience performing assistant clerks' duties.  Additionally, although both males had college degrees, and one had some supervisory experience, there was no evidence that these factors were considered or that Martin preferred candidates with these qualifications.  The Supreme Judicial Court found that the commissioner made sufficient findings, even though there were other potentially nondiscriminatory reasons to deny the promotions, i.e. , that the males were hired because of their political support for Martin or because they had more desirable backgrounds.

[ Note:   Employers must be concerned with their manager's documentation, or lack thereof.  Whatever background is required for a position should be set forth in the job description and discussed and documented in the interview process.]

VII. Ocheltree v. Scollon Prods. Inc. (4th Cir., No. 01-1648, 7/18/03)

Ocheltree worked as a shoe maker at Scollon Prods. Inc., a costume manufacturer specializing in creating mascots. During her employment at Scollon, Ocheltree experienced male staff engaging in open conversations regarding sex, commenting about the sexual habits of others, and telling sexually oriented jokes. She also witnessed employees pretending to perform various sexual acts on the mascots the company produced. Scollon terminated Ocheltree for excessive absenteeism, and Ocheltree filed suit alleging sexual harassment based on a hostile work environment.

To be successful in her law claim, a sexual harassment plaintiff must prove four elements: (1) that the subject was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment, and (4) it was imputable on some factual basis to the employer.

On October 10, 2002, the Fourth Circuit held that the sexual banter Ocheltree experienced was not because of her sex (i.e., the sexual banter would have occurred irrespective of Ocheltree's gender) and was not sufficiently severe and pervasive to be actionable.

The Fourth Circuit sitting en banc (12 justice panel rather than the normal 3 judge panel) reversed its October decision and found evidence sufficient to find Scollon liable for sexual harassment. To meet the "because of sex" requirement, the sexual harassment plaintiff must experience "disadvantageous terms and conditions of employment to which member of the other sex are not exposed". The Court satisfied the "because of sex" element by observing that "the men behaved as they did to make her uncomfortable" and laughed at Ocheltree's reactions. As for the "severe or pervasive" element, the Court must find the conduct to be "abusive to a reasonable person in the plaintiff's position". Taken together, the conduct witnessed by Ocheltree "painted women in a sexually subservient and demeaning light", and, accordingly, was abusive to a reasonable woman working in that environment.

In satisfying the final element of a sexual harassment claim, the Court determined that a reasonable jury could find Ocheltree's employer had constructive knowledge of the alleged harassment because the company failed to provide adequate complaint procedures. Under Scollon's policy, if the supervisor did not adequately resolve an employee's complaint, the employee had the responsibility of complaining to the company president or vice president. The Court noted that the Scollon's complaint procedure failed to place any duty on its supervisors to report incidents of sexual harassment to a higher authority. The Court further focused on the fact that the policy placed the burden on the victim to make a second complaint if she was unsatisfied with her supervisor's response.

Employers should take the time to ensure that their complaint procedures require supervisors to report all complaints of harassment to a higher authority. While harassment policies should still provide multiple avenues of complaint, the policy should not place the burden of making multiple complaints on the victim.

Ninth Circuit Decisions:

EEOC v. Luce, Forward, Hamilton & Scripps, 2002 WL 2004340 (9th Cir. 2002)

In one of the Ninth Circuit's more controversial employment law decisions in recent years, Duffield v. Robertson Stephens, 144 F. 3d 1182 (9th Cir. 1998), the court held that employees cannot lose their jobs for refusing to agree to have their Title VII workplace discrimination claims settled by an arbitrator. In this case,. a divided panel overturned Duffield, ruling that employers may require employees to sign agreements to arbitrate Title VII Claims as a condition for their employment.

In reaching this decision, the Ninth Circuit noted that not all compulsory arbitration agreements will be enforced; such agreement still must comply with the traditional principles of contract law. The court further noted a compulsory arbitration agreement between an employer and an employee neither prevents the employee from filing a charge with the EEOC, nor binds the EEOC to the arbitral forum because the EEOC is not a party to the agreement.

Family Medical Leave Act of 1993 ("FMLA")

Ragsdale v. Wolverine Worldwide, Inc., 122 S. CT 1155 (2002)

The Eighth Circuit, rejecting Department of Labor ("DOL") regulations, held that employers do not need to give prospective notice to an employee that company leave is also leave under the Family and Medical Leave Act ("FMLA"). The court reasoned that FMLA only requires that an employer provide a minimum of 12 weeks of leave, regardless of how that 12 weeks is designated. Accordingly, the court held, FMLA requires nothing more than an employer's leave policy provide 12 weeks of leave.

Ragsdale worked in Wolverine Worldwide Inc.'s ("WWI") factory, but later was diagnosed with Hodgkin's disease. She resisted surgery and radiation therapy and was unable to work. WWI's leave plan offered employees up to seven months of leave, which Ragsdale used. Her condition persisted, so she sought an extension, which was denied. WWI then terminated Ragsdale when she did not return to work.

Ragsdale sued WWI, alleging that, because the Company never designated any of the seven months of company leave as FMLA leave pursuant to DOL regulations, 1  her FMLA leave had not started to accrue. WWI conceded that it had not notified Ragsdale of her leave eligibility under FMLA or of her right to have leave designated as FMLA leave.

The district court granted WWI's motion for summary judgment, and the Eighth Circuit affirmed. In so doing, the Eighth Circuit found that "under the FMLA, twelve weeks of leave is both the minimum the employer must provide and the maximum the statute requires." Because WWI's company leave policy was far more generous than the federally mandated minimum established by the FMLA, the company leave policy complied with the law. WWI, therefore, was not required to provide Ragsdale with prospective notice that her company leave was also designated as FMLA leave.

The Supreme Court, in a 5 -4 decision, affirmed the Eighth Circuit's decision. In doing so, the Court explicitly set aside the question of whether the DOL was justified in requiring individualized notice when an employee commences FMLA leave. Instead, the Court held that even assuming the notice was valid, the categorical penalty the DOL imposes for its breach is contrary to FMLA's remedial design.

1  The DOL mandates that, in all situations, "It is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section".

Overview of Recent Affirmative Action Developments:

Recent Cases Involving Affirmative Action Issues in Education

I. Grutter v. Bollinger et al. (Law School) and Gratz et al. v. Bollinger et al. (College of Literature, Science, and the Arts)

U.S. Supreme Court - June 23, 2003

by Jonathan Alger, University of Michigan Assistant General Counsel

(note: the following is excerpted from the author's full summary)

Summary

On June 23, 2003, the U.S. Supreme Court held in Grutter v. Bollinger et al. that diversity is a compelling interest in higher education, and that race is one of a number of factors that can be taken into account to achieve the educational benefits of a diverse student body. The court found that the individualized, whole-file review used in the University of Michigan Law School's admissions process is narrowly tailored to achieve the educational benefits of diversity. The Court also held that the Law School's goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. In Gratz et al. v. Bollinger et al., the Court held that while race is one of a number of factors that can be considered in undergraduate admissions, the automatic distribution of twenty (20) points to students from underrepresented minority groups is not narrowly tailored.

In an opinion by Justice O'Connor (joined by Justices Stevens, Souter, Ginsburg, and Breyer), the Court explicitly adopted Justice Powell's view from Regents of the University of California v. Bakke (1978), finding that "student body diversity is a compelling state interest that can justify the use of race in university admissions". It noted that the public and private universities across the nation have modeled their admissions programs on the views articulated by Justice Powell in Bakke, and it reiterated that race "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body".

. . . The Court rejected the assertion that “the only governmental use of race that can survive strict scrutiny is remedying past discrimination." It recognized that “universities occupy a special niche in our constitutional tradition," and deferred to the University of Michigan Law School's good faith educational judgment that diversity is essential to its institutional mission.

The Court found that the educational benefits of diversity “are not theoretical but real," and had been substantiated by the University and its amici in supporting briefs. Those benefits include "cross-racial understanding" and the breaking down of racial stereotypes.

It acknowledged that “major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints," and that high-ranking former military leaders have asserted that “a highly qualified, racially diverse officer corps" is essential to national security.

The Court concluded that “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."

The Court next found that the Law School's admissions program is narrowly tailored to achieve its compelling interest. The Court held that universities may consider race or ethnicity as a “plus" factor in the context of individualized review of each applicant, and that admissions programs must be “'flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant'". Institutions may not, however, “establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. The Law School policy meets all of these requirements—it is “a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.

The Court went on to hold that “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative," and that a university need not choose between commitments to excellence and to a diverse student body. Institutions must give “serious, good faith consideration" to workable race-neutral alternatives to achieve these objectives, but the Court indicated that the Law School had adequately done so. The Court noted that percentage plans that guarantee admission to all students above a certain class-rank threshold in every high school in a state—the alternative suggested in the federal government's brief—may not work for graduate and professional schools, and may preclude the individualized review of applicants necessary to achieve diversity along all the qualities valued by the university.

Finally, the Court held that “race-conscious admissions policies must be limited in time," and that universities should consider sunset provisions and periodic reviews for such programs. It concluded with an expectation that, 25 years from now, such programs will no longer be necessary.

II. University and Community College System of Nevada v. Farmer. 930 P. 2d 730 (Nev. 1997), cert denied , 523 U.S. 1004 (1998)

The court found the policy was constitutionally sound and promoted Bakke's holding that race may be considered among other factors. The plan survived a Title VII Challenge under the factors set out in United Steelworkers of America v. Weber, 443 U.S. 193 (1979) because it does not "unnecessarily trample the interests of white employees", is a temporary measure, and is utilized to break down old patterns of racial segregation and hierarchy.

III. Daniels v. State of California (Los Angeles superior court, filed 1999).

The American Civil Liberties Union filed suit in July 1999 on behalf of African American and Latino California public high school students, alleging that the allocation of AP classes throughout the state discriminates against the students on account of thier race in violation of the California constitution and various state statutes. The suit alleges that the relative lack of AP courses for minority students harms their secondary education and decreases their access to higher education. A stay in the case has been entered while the parties attempt to resolve the case with the assistance of a team of educational experts. In January 2000, those experts presented their findings to the California legislature and state officials. In June 2000, SB 1689 was passed, establishing the "Advanced Placement Challenge Grant Program". The bill was enacted into law as Ca. Educ Code § 52247 and became effective in July 2000. The legislation establishes a funding scheme for schools meeting certain criteria for the development of AP programs. The parties are continuing settlement negotiations.

IV. Summary of the Bakke Case

Program Challenged: The case involves the admissions program to the University of California Medical School at Davis. Out of an entering class of 100, UC set aside 16 spaces for students admitted through a "special admissions program" for minority applicants.

Supreme Court Decision:  A majority of the Supreme Court - five justices - held that while the UC program was unconstitutional because it involved a quota. It was lawful to take race into account in admissions. Justices Brennan, Blackmun, Marshall and White (the so-called "Brennan 4") joined in Section V(C) of Justice Powell's opinion which says:

"In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed".

There were six opinions written. Justice Powell's opinion is the controlling opinion of the Court because his opinion is the narrowest ground supporting the majority's conclusions that race can be used in college admissions.

Justice Powell wrote the controlling opinion. Powell wrote that the use of race should be subject to "strict scrutiny" meaning that: (1) There should be a compelling governmental interest  in using race; and (2) The program must be necessary - or narrowly tailored to achieve - that interest . Powell found that the educational benefits of diversity were a compelling governmental interest justifying the use of race as a "plus factor" in admissions. Powell said that race can be considered one of the many factors and can influence admissions decisions when the university is trying to achieve overall diversity.

ADA:

Short workday may be accommodation

A part-time schedule may be a reasonable accommodation if a full-time load is not described as essential in a written job description and the job has been performed part time for months without any designation of it as light-duty, a court decided May 14, allowing a dispatcher's ADA claim to go to trial.

Part-time schedule for months

As a routeman for Alpha Baking Co., Gary Kinlaw regularly delivered bread products to clients until he injured his back when his truck malfunctioned. After he was out for months, Alpha returned him to work as a dispatcher and office worker.

In his new job, he answered phones and checked in drivers returning to the bakery. Although he was told he should work at least eight hours per day, Kinlaw worked six-hour days for months before a supervisor told him he had to work more than 10 hours per day six days a week, including Sunday, or he would be fired. Kinlaw attempted to work the full schedule for a few months before his health began to deteriorate.

After he presented a note from his doctor setting a work restriction of six hours of work per day, he was fired. The company president told Kinlaw he was being fired because of his work restriction and his request to work six hours a day as an accommodation was rejected without any discussion of possible modifications, according to Kinlaw.

No hours listed in job description

He sued, claiming his termination violated the ADA, and Alpha asked the court to dismiss his claim, arguing he was not qualified because he could not work full-time.

The court examined the essential functions of the dispatcher position, reviewing;

• The employer's judgment;
• Written job descriptions prepared before advertising or interviewing job applicants;
• The work experience of past incumbents of the job; and
• The work experience of people currently in similar jobs.

While reasonable accommodation requests do not need to be in writing, descriptions of essential functions should be included in written job descriptions, advises the EEOC in its Technical Assistance Manual on Title I  (see 391 of the Guide ). Nevertheless, the EEOC states that the employer should focus on the purpose of the function and its result, rather than the manner in which the function is performed.

But the court emphasized that the job description for dispatchers did not specify that working at least 10 hours per day was an essential function, and refused to dismiss Kinlaw's claim. Other factors persuasive to the court included the fact that Kinlaw performed his tasks in six hours a day for months and that his successors worked in the position on a part-time basis.

Alpha said Kinlaw was allowed to work six hours a day only as light-duty, but the court noted that he was never told his position was temporary. Moreover, his position differed from most light-duty positions, Kinlaw argued. Typical light-duty assignments included counting bread trays and sweeping, not dispatching, he maintained. In addition, he pointed out that, unlike most workers on light-duty, the head dispatcher trained him.

Policy against redundant staffing

The ADA regulations specify that part-time work may be a reasonable accommodation unless it causes an undue hardship, the court stated. Kinlaw argued there would be no undue hardship for a company with revenue exceeding $120 million a year and more than 500 employees.

Alpha countered that it had accommodated Kinlaw, giving him a light-duty job, letting him work a short day and take frequent breaks. Allowing him to work part time would pose an undue hardship, it insisted, noting that other workers would have to cover for him during the three to four hours of missed work. This would disrupt the workforce by causing redundant staffing, which is against company policy, it added.

Nevertheless, the court determined that a jury might reasonably conclude there was no undue burden ( Kinlaw v. Alpha Baking Co. , 2003 WL 21089042 (N.D. Ill.)).

Important Threshold Case:Toyota v. Williams
Toyota Motor Manufacturing Kentucky Inc. v Williams 534 U.S.__2002.

Complainant diagnosed with carpal tunnel syndrome with permanent work restrictions that precluded lifting more than 20 pounds or from frequently lifting or carrying objects weighing up to 10 pounds is not "an individual with a disability".

(Court Held) Merely having an impairment does not make on disabled for the purpose of the ADA.

The impairment must also substantially limit a major life activity*.

*includes walking, seeing, hearing, and performing manual tasks.

When determining whether an individual is substantially limited in a specific major life activity, consider:

1. The nature and severity of the impairment.
2. The duration or expected duration of the impairment.
3. The permanent or long term impact.

To be substantially limited, 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 must also be permanent or long-term.

It is insufficient for individuals attempting to prove disability status to merely submit evidence of a medical diagnosis of an impairment.

Those claiming the ADA's protection must offer evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial.

With respect to the major life activity of working, 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 abilities.

Occupation specific tasks may only have limited reference.