Disability Discrimination: Developments in Case Law Under the ADA
DISABILITY DISCRIMINATION:
DEVELOPMENTS IN CASE LAW UNDER THE ADA
Jonathan R. Mook
Partner
DiMuro, Ginsburg & Mook, P.C.
Alexandria, Virginia
Of Counsel
Ogletree, Deakins, Nash, Smoak & Stewart, LLP
Washington, D.C.
I.
COURT DECISIONS DEFINING “DISABILITY”
A.
Physical or Mental Impairments Substantially Limiting a Major Life Activity
1.
Cases Where Plaintiff Has or Could Have a Substantially Limiting
Impairment
!
In Taylor v. Phoenixville School District, __ F.3d __ (3d Cir.
1999), the Third Circuit reversed the lower court’s grant of
summary judgment in favor of the employer and reinstated a suit
brought by a secretary who suffered from bipolar disorder. In
reversing the district court, the court of appeals held that the
secretary’s bipolar disorder was a disabling condition under the
ADA because it substantially limited her abilities to think, care for
herself, concentrate, and interact with others. The court noted that
the secretary had been confined to a hospital because she was
psychotic, had become increasingly agitated, and that she suffered
paranoid delusions that persons were trying to kill her. The court
of appeals also found that the secretary’s employer school district
had more than enough information to put it on notice that the
secretary might be disabled due to her bipolar disorder. In addition,
the court found that when the secretary’s son asked for
“accommodations” from the school district, the district bore the
burden of seeking whatever additional information it may have
needed pertaining to the secretary’s disability and possible
accommodations. Accordingly, the court of appeals held that a
reasonable jury could conclude that the school district failed to
engage in an interactive process of seeking accommodations for the
secretary and, hence, failed to fulfill its ADA obligations.
1
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
2.
Cases Where Plaintiff Does Not Have a Substantially Limiting
Impairment
!
In Leisen v. Shelbyville, 135 F.3d 805 (7th Cir. 1998), the Seventh
Circuit upheld the district court’s grant of summary judgment to the
plaintiff’s former employer, the City of Shelbyville Fire Department,
because the plaintiff failed to establish that her claimed “depression”
substantially limited any major life activity and there, even if it did,
that she was a qualified individual with a disability. The plaintiff,
who had been hired as a firefighter for the city of Shelbyville, had
been terminated when she failed to gain state certification as a
paramedic, which her employment contract required. The plaintiff
attributed her inability to obtain certification to her emotional
disabilities, and the plaintiff’s counselor testified that the plaintiff
suffered from “sleep problems, memory problems, crying and
anxiety, suicidal ideation [and] ... some depression.” Even if
plaintiff had a recognized mental impairment, the district court
found that it did not qualify as an ADA covered “disability” because
the plaintiff was not substantially limited in any major life activity.
The Court of Appeals upheld the district court’s determination.
Even though the plaintiff had difficulty obtaining certification as a
paramedic, this did not show that she was substantially limited in
the major life activity of learning “any more than the fact that a
particular individual might not be able to pass a course in physics or
philosophy would allow an inference that all learning activity was
substantially limited.” Similarly, the appeals court noted that the
record contained no evidence to establish that the plaintiff was
substantially limited in the major life activity of working since “not
everyone can be a firefighter, and [plaintiff] showed at most that her
disability interfered with her ability to perform that particular job.”
Alternatively, the court of appeals upheld the district court’s ruling
that the plaintiff was not a qualified individual with a disability
because the requirement to obtain a paramedic certification was a
reasonable one, and “that an employer does not have to change
basic job qualifications just because someone is disabled.”
!
A secretary’s carpal tunnel syndrome, which prevented her from
typing for a number of months, did not constitute an ADA covered
disability because the impairment did not “substantially limit” her
ability to work and take care of herself. The court found that the
plaintiff’s impairment did not substantially limit her ability to work
in a broad range of jobs because the plaintiff’s “single and particular
2
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
limitation” was limited to the difficulty in performing typing duties.
In so holding, the court noted that the plaintiff’s request to transfer
to a position that did not require typing indicated that the plaintiff
did not feel limited in her ability to perform a broad range of job.
Lamboy/LaSalle v. Puerto Rico Telephone Company, 8 F. Supp.
1222 (D.P.R. 1998).
!
A flight attendant’s temporary hearing impairment, which required
her to fly only in planes using pressurized cabins, did not rise to the
level of an ADA covered disability because the hearing impairment
was temporary. Moreover, plaintiff failed to show that her
impairment limited her major life activities. Clemente v. Executive
Airlines, 7 F. Supp. 114 (D.P.R. 1998).
!
In Hoeller v. Eaton Corporation, 149 F.3d 621 (7th Cir. 1998), the
court of appeals upheld the district court’s grant of summary
judgment in favor of the employer, Eaton Corporation, on the
plaintiff’s claim that Eaton terminated his employment because of
his bipolar disorder. Although the disorder produced mood swings
from depression to mania, the court of appeals found that the
plaintiff had failed to establish that his bipolar disorder substantially
limited any major life activities. The court noted that there was no
evidence that plaintiff’s disorder substantially limited his “thought
processes” or his “communication skills and interpersonal
relationships.”
!
An elementary school guidance counselor with a history of
depression was held not to be covered by the ADA because the
employee’s depression was not severe enough to substantially limit
a major life activity. Olson v. Dubuque Community School
District, 137 F.3d 609 (8th Cir. 1998). The Eighth Circuit Court of
Appeals agreed with the district court’s grant of summary judgment
in favor of the employer on the basis that the guidance counselor
was not disabled. The undisputed evidence showed that the
counselor reported to work regularly and felt that she was able to
perform her job in a satisfactory manner, despite periodic episodes
of depression. The guidance counselor also failed to demonstrate
that her employer regarded her as having a disability. Although the
employer knew that the guidance counselor had a history of
depression, this information, without more, did not establish that it
regarded her as having a disability covered by the ADA.
3
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
!
In Cody v. Cigna Healthcare, 139 F.3d 595 (8th Cir. 1998), the
plaintiff, Carole Cody, worked in St. Louis as a nurse for Cigna
Healthcare. Cody claimed that she suffered from depression and
anxiety, and, as a consequence, it was difficult for her to go to
certain parts of the city she considered dangerous. As a result of
co-worker complaints about Cody’s strange behavior and that Cody
had spoken about carrying a gun, Cigna scheduled a meeting with
Cody who arrived with a noticeable bulge in her purse. A local
security specialist was sent to the meeting and Cigna offered Cody
a paid leave of absence with her return contingent upon undergoing
a psychiatric evaluation. Cody left the meeting and when she
refused to return to work, Cigna terminated her.
Cody, thereafter, filed suit under the ADA and the Missouri Human
Rights Act, but the district court dismissed the case on the basis
that Cody was unable to establish that she was disabled. The
Eighth Circuit affirmed, concluding that even though Cody was
diagnosed with depression, there was no evidence that her mental
impairment substantially limited any of her major life activities.
Although Code claimed that she experienced anxiety in elevators,
driving and entering high-crime areas, the court concluded that
Cody’s statements only demonstrated that her depression “caused
difficulties in her life, she did not show it was such a substantial
impairment as to amount to a disability under the ADA..”
In addition, the court concluded that the evidence did not establish
that Cigna regarded Cody as having an impairment. Although
Cody argued that Cigna’s offering her paid medical leave and
requiring that she see a psychologist before returning to work
indicated that Cigna viewed her as disabled, the court of appeals
disagreed. The court reasoned that “an employer’s request for a
mental evaluation is not inappropriate if it is not obvious that an
employee suffers from a disability” and “a request for an evaluation
is not equivalent to treatment of the employee as though he were
substantially impaired.” According to the appeals court, “while
some of Cody’s behavior may have been unusual, the evidence that
she submitted does not establish that Cody was treated as if she
were disabled.”
!
In Leisen v. City of Shelbyville, 153 F.3d 805 (7th Cir. 1998), the
court held that plaintiff’s claimed depression did not make her a
qualified individual with a disability. Plaintiff claimed to suffer from
depression, and alleged that her impairment caused her to fail the
4
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
paramedic course required for firefighters. The court found that
plaintiff passed other qualifying exams (such as EMT renewal)
while she was under stress, and held that she was not substantially
limited in the major life activity of learning. Additionally, the
employee failed to present any evidence that she was substantially
limited in the major life activity of working.
3.
What Constitutes a Major Life Activity?
!
A former employee’s depression was held not to constitute an ADA
covered disability in Pack v. K Mart Corporation, et al., 166 F.3d
1300 (10th Cir. 1999), because the depression did not substantially
limit her major life activities. The plaintiff and the EEOC, as
amicus curiae, contended that the depression substantially limited
the plaintiff’s major life activities of sleeping and concentrating.
The Tenth Circuit agreed that sleeping is a major life activity,
reasoning that it “is a basic activity that the average person in the
general population can perform with little or no difficulty, similar to
the major life activities of walking, seeing, hearing, speaking,
breathing, etc.” However, the court held that concentration, in and
of itself, is not a major life activity, although it may be a “significant
and necessary component of a major life activity, such as working,
learning or speaking.”
In considering the extent to which the plaintiff’s depression limited
her major life activity of sleeping the court noted that the plaintiff
had episodes of sleep disruption and waking without feeling rested.
Nevertheless, the court found no indication that the plaintiff’s sleep
problems were severe, long term, or had a permanent impact upon
the plaintiff. In addition, the court noted that the plaintiff’s
physician was able to control the plaintiff’s sleep problems with
medication, even going too far in some instances, and making the
plaintiff too sleepy or drowsy. According to the court, this
evidence confirmed that the plaintiff’s major life activity of sleeping
was not substantially limited by her depression. In making this
analysis, the Tenth Circuit followed its earlier decision in Sutton v.
United Airlines, 130 F.3d 893 (10th Cir. 1997), cert. granted, 119
S.Ct. 790 (1998), in which the court of appeals held that in
evaluating whether a physical or mental impairment is substantially
limiting, a court should take into consideration any mitigating or
corrective measures, such as medication, utilized by the individual.
5
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
!
In Reeves v. Johnson Controls, 140 F.3d 144 (2d Cir. 1998), the
court of appeals upheld the district court’s decision that a former
employee who suffered from a panic disorder with agoraphobia was
not covered by the ADA, despite the contention that his condition
substantially limited the major life activity of “every day mobility.”
Although plaintiff could not travel over bridges or through tunnels,
board trains unaccompanied, or drive along routes prone to traffic
tie-ups, the court found that the plaintiff was sufficiently mobile to
travel to and from work on a regular basis. The court stated that an
ADA plaintiff may not tailor the definition of “major life activity” to
fit the specific circumstances of the impairment, which is what the
plaintiff in Reeves was trying to do. Also, the court questioned
whether “everyday mobility” should be considered a “major life
activity.”
4.
Substantial Limitations in Working
a.
Do Lifting Restrictions Substantially Limit Working?
!
In Corrigan v. Perry, 961 F. Supp. 132 (E.D. Va. 1997), aff’d,
1998 U.S. App. LEXIS 5859 (4th Cir. 1998), the court held that an
employee who was medically restricted because of a back injury
from lifting more than 25 pounds, driving a forklift, and lifting over
his head, was not disabled under the Rehabilitation Act.
!
A plaintiff with a lifting restriction was not substantially limited in
the major life activity of working. Gutridge v. Clure, 153 F.3d 898
(8th Cir. 1998). Although the plaintiff could not perform his
current position of computer service technician, there were
numerous other technician positions that did not require lifting.
Additionally, the court declined to interpret a record of impairment
to mean hospitalization. The court stated that the ADA requires
“permanent or long-term impairments....”
b.
Inability to Perform a Particular Job, Work Schedule, or Work
With a Particular Supervisor
!
A teacher of severely retarded children, who suffered from paranoia
and was discharged from a special education school, was held not
to be disabled under the ADA. Patterson v. Chicago Association
for Retarded Citizens, 150 F.3d 719 (7th Cir. 1998). Even though
the teacher was found to be incapable of instructing and vigilantly
monitoring severely retarded children, most of whom had additional
6
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
psychiatric or emotional problems or physical impairments, the
court of appeals upheld the district court’s grant of summary
judgment. The court noted that in order to be substantially limited
in the major life activity of work, the plaintiff’s mental impairment
had to render her incapable of performing any teaching job, not just
a specific type of teaching job. The evidence established that the
plaintiff was significantly restricted in the ability of performing only
one specific area of classroom instruction that involved severely
retarded children. Moreover, following her termination at the
special education school, the plaintiff became regularly employed as
a teacher with the Chicago Public School System. The court noted
that “judging from the record, her ability to perform the duties of a
teacher in the [public school] system generally has not been affected
[by her impairment].”
!
In Berg v. Norrand Corporation, __ F.3d __ (8th Cir. 1999), the
court of appeals upheld the grant of summary judgment against a
non-insulin dependent diabetic who claimed that she had been
terminated by her employer because of her disability. The plaintiff’s
diabetes restricted her to a 40-50 hour work week, but the court
found that being limited in this fashion could not be said to
substantially limit one’s ability to work. The court of appeals found
this to be true especially in the case of the plaintiff since, after her
termination, the plaintiff started her own tax and accounting
practice and became chief financial officer of a construction
company.
!
The court in Deas v. River West, L.P., 152 F.3d 471 (5th Cir.
1998), rejected the argument that a seizure is a disability per se,
reasoning that a temporary loss of awareness does not constitute a
substantial limitation of a major life activity. Plaintiff presented no
evidence that her employer considered her injuries substantial
enough to limit a major life activity. Additionally, the court stated
that the inability to perform one type of job does not substantially
impair the major life activity of working.
!
In Swain v. Hillsborough County School Board, 146 F.3d 855
(11th Cir. 1998), the court of appeals ruled that the plaintiff failed
to prove she was disabled. Although the plaintiff suffered from a
number of ailments that required frequent access to the restroom,
she failed to show how these ailments significantly limited a major
life activity. The plaintiff asserted that her ability to work was
affected because there were periods of time at work during which
7
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
she could not use the restrooms. The court found, however, that
this proved only that plaintiff had difficulty with her current
teaching job, not all teaching jobs.
!
Former employee who suffered from depression and anxiety
disorders that rendered him unable to cope with stress or to work in
unduly stressful environments was not substantially limited in the
major life activity of work. Gaul v. AT&T, Inc., 955 F. Supp. 346
(D.N.J. 1997), aff’d sub nom., Gaul v. Lucent Technologies, Inc.,
134 F.3d 576 (3d Cir. 1998). The court determined that “unduly
stressful” jobs do not constitute a recognized occupational
classification, and, hence, the plaintiff was not significantly
restricted in his ability to perform either a class or jobs or a broad
range of jobs in various classes. Further, to the extent that the
plaintiff claimed that in order to accommodate his depression and
anxiety disorders he merely needed to be transferred away from a
certain supervisor, the court reasoned that he was not disabled
under the ADA.
B.
Being Regarded as Disabled
1.
Employer Perceived or May Have Perceived Individual as Disabled
!
A supermarket company that erroneously viewed a former frozen
food manager’s physical restrictions following ankle surgery as
permanent based upon a mistaken interpretation of the medical
records was held to have erroneously regarded him as disabled.
Taylor v. Pathmark Stores, __ F.3d __ (3d Cir. 1999). The court
of appeals affirmed the district court’s determination that the
plaintiff was disabled under the ADA because the employer
considered him incapable of performing a wide range of jobs,
covering most jobs available in supermarkets. The court further
explained that an employer that is factually mistaken about the
extent of an employee’s impairment will not be liable under the
ADA if the employee or his agent is responsible for the mistake.
On the other hand, if the employer believes that an employee’s
perceived disability inherently precludes successful performance of
the essential functions of the job, the employer must be correct
about the employee’s ability to perform the job in order to avoid
ADA liability. In the case before it, the court of appeals found that
a jury could determine that the employer was responsible for
erroneously regarding the former employee as being disabled.
8
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
!
In Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998),
the plaintiff, Cline, brought suit against Wal-Mart alleging that he
was demoted and terminated because of his disability. Cline had
taken a leave of absence for surgery to remove a brain tumor.
When Cline returned from his leave, he was demoted from his
supervisory position because Wal-Mart did not believe he could
handle the pressure and stress. Later, Cline was terminated when
he and another worker were found in the lounge instead of
attending a meeting. The other individual, however, was not
terminated. In addressing whether, at the time of his termination,
Cline was disabled, the court held that Wal-Mart could “be found to
have regarded Cline as having an impairment that substantially
limited the major life activity of working if Wal-Mart demoted Cline
because it perceived him to be significantly restricted in his ability
to perform either a class of jobs or a broad range of jobs in various
classes.”
!
In Riemer v. Illinois Department of Transportation, 148 F.3d 800
(7th Cir. 1998), the Seventh Circuit held there was sufficient
evidence for the jury reasonably to conclude that defendant
regarded plaintiff as suffering from a disability, in this case, asthma.
After examining the plaintiff, the defendant’s doctor concluded that
working in the fabrication shop would irritate plaintiff’s asthmatic
condition. Plaintiff’s supervisor testified that this was the reason he
transferred plaintiff to a permanent field position outdoors.
2.
Employer Did Not Perceive Individual as Disabled
!
In Lesard v. Osram-Sylvania, __ F.3d __ (3d Cir. 1999), the Third
Circuit addressed the standard for establishing a “regarded as”
disability claim. In that case, the court held that an employer did
not regard an employee with a hand injury as being disabled when it
terminated him from working in a department in which the job
involved repetitive motion. The court noted there was no evidence
that the employer’s decision indicated that it perceived the
employee to be limited in the major life activity of working. The
court went on to say that it is doubtful whether even mis-motivated
actions by an employer can be the basis for liability if those actions
are based on a perceived impairment of an individual that does not
substantially limit a major life activity. The court noted there was
9
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Disability Discrimination: Developments in Case Law Under the ADA
no reason to think that Congress intended the scope of protection
afforded to persons with perceived disabilities to be larger than the
scope of protection afford to those actually disabled.
!
In Talanda v. KFC National Management Co., 1997 U.S. District
LEXIS 4006 (N.D. Ill. 1997), aff,d., 140 F.3d 1090 (7th Cir.
1998), the court determined that an employee who had missing
teeth was not regarded by his employer as being disabled, even
though the employer removed the employee from his position as an
order taker in a fast food restaurant and reassigned the employee to
food preparation. The court reasoned that the employer’s action
indicated only that the employee was unsuited for a single job, that
of a smiling order taker, and that the employer did not regard the
employee as unqualified to work generally.
!
In Duncan v. State of Wisconsin Dept. of Health and Family
Services, et al., 166 F.3d 930 (7th Cir. 1999), the plaintiff was
employed as a youth counselor at a correctional facility for young
males operated by the State of Wisconsin. The plaintiff was
terminated two months after an incident in which one of his young
charges complained that plaintiff had been verbally abusive. The
incident prompted the correctional facility to order the plaintiff to
submit to various psychological tests at the state’s expense. The
plaintiff completed some, but not all, of the program the psychiatrist
recommended for him. After plaintiff missed several meetings with
counselors and officials of the correctional facility, he was fired.
The plaintiff then sued under Title II of the ADA, which prohibits
discrimination by state and local governments, and the
Rehabilitation Act of 1973. The district court granted summary
judgment in favor of the State of Wisconsin, and the Seventh
Circuit upheld the district court’s determination. The court of
appeals agreed with the district court that the plaintiff was not
covered under the ADA or the Rehabilitation Act as being
“disabled” even though the plaintiff had argued that the correctional
facility officials had regarded him as having a personality disorder,
and as being substantially limited in the major life activity of
working. The Seventh Circuit pointed out that the plaintiff had
demonstrated that he was regarded only as having trouble
performing one specific job – not working in general. The court
noted that because the correctional facility officials had responded
to problems in the plaintiff’s unit by transferring him to another
facility, this indicated that the officials believed he could work
successfully in a slightly different environment.
10
© American Bar Association
http://www.bna.com/bnabooks/ababna/annual/99/annual08.pdf

---

Document Outline

• Disability Discrimination: Developments in Case Law Under the ADA
  • I. COURT DECISIONS DEFINING DISABILITYŽ
  • II. WHO IS A QUALIFIED INDIVIDUAL WITH A DISABILITY''?
  • III. WHAT DOES AND DOES NOT CONSTITUTE DISCRIMINATION UNDER THE ADA?
  • IV. REASONABLE ACCOMMODATION

---