Assuming a disability leads to liability
January 21, 2016
By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
In order to be protected under the Americans With Disabilities Act (ADA) the employee or applicant must be able to perform the essential functions of a job. Therefore, it is not only important to specifically identify those functions in a job posting or description. It is equally important to not assume that the person cannot do the job with or without a reasonable accommodation simply because the person has a “medical condition” which would seem to prevent the performance of the function.
Jacobs Field Services (JFS) was hiring a field engineer at a Colorado mining site in 2011. After interviewing candidates, it offered the job conditionally to Michael Cannon, subject to a medical and drug screen. Cannon passed the drug screen but at the medical screen he told the doctor about his inoperable rotator cuff injury, and that he had previously taken the prescription pain reliever Ultram (brand name version of Tramadol). He was no longer taking it although he still had the prescription for it, he explained.
The doctor cleared Cannon for the position so long as JFS offered the following accommodations for the rotator cuff injury: no driving company vehicles; no lifting, pushing, or pulling more than ten pounds; and no working with his hands above shoulder level. However, the issue of employment actually rested on two factors: whether (1) Cannon could climb a ladder and (2) was still taking Ultram.
Cannon got further documentation that stated that he was “specifically cleared for climbing vertical ladders and maintaining 3-point contact with either arm” and was being weaned from Ultram. However, no one from JFS followed up on this documentation and Cannon’s job offer was summarily rescinded. JFS told Cannon it was rescinded because he could not climb a vertical ladder.
During discovery, the hiring manager stated that Cannon would “not be able to meet the project needs and required job duties” and explained that the job required an employee “capable of driving, climbing, lifting, and walking” as the job site was located “in the mountains with rough/rocky terrain” and “spread over several miles.”
Cannon filed an ADA charge with the EEOC. The trial court granted summary judgment in favor of JFS. It found that Cannon’s rotator cuff injury did not render him disabled under the ADA, and, even if he were disabled, he was not qualified for the field engineer position.
On appeal the 5th Circuit Court of Appeals overturned the ruling by the trial court. First, the court discussed how a disability discrimination must be proved: Cannon must show that: (1) he has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability.
Next, the court had to review the question of whether Cannon was disabled under the ADA, which is defined in this case as having a physical impairment that substantially limits one or more major life activities. The 5th Circuit noted that the standard is whether Cannon’s impairment substantially limited his ability to perform a major life activity as compared to most people in the general population. The answer it found was yes, because of (1) Cannon’s testimony that although he doesn’t need an accommodation, he uses his left arm to compensate for his right arm, and (2) JFS nevertheless perceived Cannon to be disabled, as evidenced by the way it processed Cannon’s application, which was documented in emails.
The second question the court had to answer was whether Cannon was qualified to perform the essential functions of the job. First, Cannon had medical documentation and a video of himself showing he could climb a ladder, which he submitted to JFS but which JFS failed to review. Second, Cannon passed the drug test and told JFS that he was not using Ultram anymore.
Finally, the 5th Circuit considered whether JFC had asserted a legitimate nondiscriminatory reason for rescinding Cannon’s offer. It found that JFS did not.
The 5th Circuit sent the case back to the trial court for trial.
The lesson for HR is an old-fashioned one: An ounce of prevention saves a pound of cure. Surprisingly enough, failing to discuss the injury or engage in the interactive process occurs more often than not. It especially rises in the context of pre-employment medical clearance, particularly when an employer is trying to determine potential worker’s compensation issues. Therefore, before finally determining whether to rescind a job offer (or terminate an employee for inability to perform the essential functions of the job), be sure to gather all the available information, discuss it with the applicant (or employee), and review it with legal counsel.