Employees Regarded as Disabled Must Be Accommodated, Says Eleventh Circuit

A recent decision from the U. S. Court of Appeals for the Eleventh Circuit significantly impacts the litigation of disability discrimination cases under the Florida Civil Rights Act and increases the likelihood of a Supreme Court resolution of an important issue for all employers. Filed under both the Americans with Disabilities Act and the Florida Civil Rights Act, the lawsuit was brought by a terminated employee who had requested a modification in job duties to accommodate her medically diagnosed vertigo. In its decision, the Court of Appeals agreed with the district court that disability discrimination claims under the Florida Civil Rights Act are analyzed under the same framework as ADA claims. (See also, Chanda v. Englehard/ICC, 234 F.3d 1219, 1221 (11th Cir. 2000).) Additionally, the court concluded that the ADA, by its plain language, requires employers to provide reasonable accommodations for employees they regard as disabled. In doing so, the Eleventh Circuit joins the U. S. Court of Appeals for the Third Circuit, and widens the split among the various federal appeals courts on whether the ADA requires reasonable accommodation for individuals "regarded as" disabled. Ultimately, the split may be resolved by the United States Supreme Court. [D'Angelo v. ConAgra Foods, Inc., No. 04-10629 (11th Cir. Aug. 30, 2005).]

Factors Leading to Employee's Termination

The employee began employment in ConAgra's Singleton Seafood processing plant in October 1998. She was hired as a "spreader," an entry level position. She also worked as a "packer," packing shrimp into boxes. She was promoted twice during her tenure at Singleton. The first promotion occurred in February 1999 when she was promoted to the position of "stacker." In March 2000, she was promoted to the position of "product transporter." In this position, she filled boxes with shrimp and transported them around the plant using a pallet jack or by hand.

Generally, the employee was assigned to a particular duty, which she performed throughout the day. However, she and other employees were asked to assist with other duties. Each job was classified at a particular level between I and V—product transporter, was a Level III. Employees were considered qualified to work in any position at or below the level of their own particular job.

In September 1998, shortly before the employee began work at the Singleton plant, she was diagnosed with vertigo. Apparently, the vertigo did not interfere significantly with her job performance because, as noted above, she continued to work and received two promotions.

In September 2001, the employee was assigned to monitor a conveyor belt known as the "box-former belt." This job entailed watching the boxes in a line to make sure they were formed properly and not mangled. This was a task that she had not previously performed. When she informed her line leader that monitoring the box-former belt was making her sick and dizzy and asked for a different work assignment, she was reassigned to make boxes. However, her supervisor instructed her to return to the conveyor belt. When she explained the conveyor belt made her sick, the supervisor asked for documentation of her condition.

The employee presented a note from her doctor that stated she has a vertigo condition that "affects her when her eyes have to look at moving objects such as belts. She should avoid this situation since it could cause her to fall and sustain injury."

After receiving the note, the plant manager and human resource manager met to discuss whether there were any positions that would not require the employee to look at and work around moving equipment such as conveyor belts. They determined no such positions were available and terminated her employment the next day.

Lawsuit for Disability Discrimination Under Federal and Florida Law

After her employment was terminated, the plaintiff filed suit in federal district court, alleging unlawful discrimination based on her actual disability caused by the condition of vertigo and the employer regarding her as disabled. She claimed she was entitled to the reasonable accommodation of being exempt from working on the spreader belt and the box-former belt, and that her termination violated the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and parallel provisions of the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq. ConAgra sought and was granted summary judgment, disposing of both claims.

On her appeal to the U. S. Court of Appeals for the Eleventh Circuit, the court affirmed the grant of summary judgment on the actual impairment claim. The court found that the employee's medical condition, vertigo, did not substantially limit her in the major activity of working because it did not restrict her ability to perform a "class of jobs" or a "broad range of jobs in various classes."

As to the "regarded-as" claim, the Eleventh Circuit reversed the summary judgment decision after an extensive examination of the record evidence. The court found that a genuine issue of material fact existed as to whether working on a conveyor belt was an essential function of the product transporter position. As a matter of law, the ADA requires employers to provide reasonable accommodations to perform essential job functions for employees they regard as disabled, the court concluded.

What is an "Essential Job Function"?

A large portion of the Eleventh Circuit decision is devoted to an examination of whether working on a conveyor belt was an essential function of the employee's position. Reviewing the ADA's implementing regulations (29 C.F.R. § 1630.2(n)(1), statutory language (42 U.S.C. § 12111(8)), and prior case law (Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997)) and testimony from both the plant manager and the employee's immediate supervisor, the court concluded a "genuine issue of material fact" existed as to whether working on a conveyor belt was an essential job function. Neither the manager or supervisor mentioned working on a conveyor belt when they testified concerning the job duties of the transporter position. And, neither the job description nor a document entitled Job Safety Analysis for the transporter position mentioned working on a conveyor belt. During the year and a half she worked as a transporter, the employee was assigned to work on a conveyor belt only once.

The "essential function" analysis is critical to determining an employer's obligations under the ADA. The employer's managers assumed, without any analysis, that working on the conveyor belt was an essential function. Because the employee could not perform this function, management concluded she was not a qualified individual and, therefore, not entitled to a reasonable accommodation.

What Is a "Regarded-As" Disabled Claim?

A person is "regarded as" disabled if the employer mistakenly believes that the person's actual, non-limiting impairment substantially limits one or more major life activities. Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999).

The district and appeals courts found the plaintiff had presented sufficient evidence to create an issue of genuine fact as to whether the employer regarded her as disabled. While the employee claimed her vertigo condition only limited her ability to work on a conveyor belt, the supervisor, plant manager and human resource manager all believed the note from her doctor limited her, not only from working on the conveyor belt, but also from working around moving equipment. Because all of the positions in the plant that she had worked involved being around moving equipment, management concluded she could not safely work in the plant. Again, it appeared the managers assumed she could not do the job without making an individualized assessment.

Individuals who are "regarded as" disabled are entitled to reasonable accommodation, according to the Eleventh Circuit. Only one other federal appeals court explicitly has taken this position, the U. S. Court of Appeals for the Third Circuit in the case Williams v. Phila. Hous. Auth. Police Dept., 380 F.3d 751, 771-76 (3d Cir. 2004). Four other federal appeals courts -- the Fifth, Sixth, Eighth and Ninth -- have found no such obligation, while the First Circuit has made the assumption that the obligation to reasonably accommodate individuals regarded as disabled does exist.

The Eleventh Circuit, in agreement with the Third Circuit's decision in the Williams case, found that a "review of the plain language of the ADA yields no statutory basis for distinguishing among individuals who are disabled in the actual-impairment sense and those who are disabled only in the regarded-as sense" and, consequently, "regarded-as disabled individuals also are entitled to reasonable accommodations under the ADA."

Reviewing the text of the statute, the court looked at the definition of a "qualified individual with a disability," which means: "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12112(8). A "disability," in turn, is defined by the statute as either a "physical or mental impairment that substantially limits one or more major life activities of such individual," or "a record of such an impairment," or"being regarded as having such an impairment." Id. at § 12102(2)(A)-(C). The statute's prohibition against discrimination applies equally to all so defined disabilities, the court found.

Following this reasoning, the court then examined the meaning of the term "discrimination," which includes, among other conduct, "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." Id. § 12112(b). Thus, the court concluded: "[T]he statute plainly prohibits 'not making reasonable accommodations' for any individual with a disability, including one who is disabled in the regarded-as sense no less than one who is disabled in the actual-impairment or the record-of-the-impairment sense."

The Lesson for Employers

This lawsuit illustrates the importance of engaging in the interactive, reasonable accommodation exchange of information encouraged by the ADA and its regulations. It is likely litigation could have been avoided by not assigning the employee to work on the conveyor belt. She had been working without incident for nearly three years before her medical condition became known to the plant manager and human resource manager, although it appears from the record that at least some of her first line supervisors and co-workers had known of her vertigo almost from the commencement of her employment. Moreover, by not being assigned to work on the conveyor belt for most of the time she had been employed, she had been accommodated. It was only after a change in supervisors that a problem arose.

The new supervisor wanted documentation that the employee had a medical condition that prevented her from operating the conveyor belt, a prudent decision most likely motivated by the supervisor's desire to make sure she could safely perform her job. Unfortunately, at this point the issue of disability came into play and the company's legal problems began. Although not actually "disabled," the court found there was a genuine issue of fact as to whether the employee's supervisors regarded her as disabled. That they did was demonstrated by their premature conclusion that she was not able to perform her job due to the vertigo. At that point, no effort was made to accommodate her, even though she had been performing as a product transporter for nearly two years without incident. Instead, her employment was terminated the day after the doctor's note was received.

This case also illustrates the importance of accurately assessing the impact of an injury or illness on an employee's ability to perform his or her job. Employers must be careful not to misread or over-interpret doctor's notes submitted by employees. Here, the employee and the company disputed what the employee could do. While the employee said she could not perform work requiring her to stare at conveyor belts continuously, the employer viewed her as unable to do any job that required her to be around moving objects. The dispute was compounded by a disagreement over whether working on a conveyor belt was indeed an essential job function.

The key to avoiding such disputes is mastering medical assessments and creating a record that supports the employer's lawful approach to managing employees with disabilities or those regarded as disabled. Employers that engage in the individual assessment process can more accurately understand the nature and extent of an employee's limitations and reduce the likelihood of disputes over the employment actions they take in response.

The Jackson Lewis Disability Management Practice Group is available to answer employers' questions concerning reasonable accommodation obligations and the interactive process, and to help strategize the management of disabilities in the workplace. Please contact the attorney with whom you regularly work, or partners Diane E. Stanton, (407) 246-8440; StantonD@jacksonlewis.com; Francis P. Alvarez, (914) 514-6149; AlvarezF@jacksonlewis.com.