33. Defendant’s conduct and actions against the plaintiff constitute violations of federal law, specifically 29 U.S.C § 791, et seq. and 42 U.S.C. § 12112. 34.

IV. CONCLUSION 42 U.S.C. §12112(a) and more specifically 42 U.S.C. §12112 (b)(5)(A) prohibits discrimination against a person with a physical disability and requires an employer or potential employer to make reasonable accommodations to the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or employee unless the accommodation would be unreasonably burdensome. In this case the Plaintiff has demonstrated that he (1) is an individual with a recognized physical disability (2) is a qualified individual who can perform the essential functions of the position for which he applied with or without accommodation (3) made his disability known to Defendant through his CV and a series of emails (4) requested an accommodation for the interview process which was denied (5) suffered an adverse employment action as a result of his disability when he was eliminated from further consideration for the job after requesting an accommodation for the interview process (6) The required interactive process between Plaint

Medical Examinations and Inquiries in Employee Wellness Programs Under the ADA The ADA significantly restricts medical examinations and inquiries that employers may conduct in both the pre- and post-employment context. 42 U.S.C. § 12112(d)(1). For current employees, the ADA prohibits non-job-related medical inquiries and exams unless they are part of an employee wellness program, and participation is voluntary: (A) A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless . . . job related or consistent with business necessity.

Dkt. 43 at Pg ID 1012, citing 42 U.S.C. § 12112(d)(3). Because the FCE recommendation is related to a seemingly proper post-offer physical (i.e. Fries conducted the physical on September 10 during Lane’s orientation period and prior to her commencing duties as the outreach enrollment coordinator) there is an argument that the FCE would involve a continuation of the post-offer medical exam rather than a new medical inquiry.

To the extent the interactive process requires limited inquiry into the relevant limitations, such inquiry is plainly job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4) (an “acceptable examination and inquiry” is one by an employer “into the ability of an employee to perform job-related functions.”); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, No.

Significantly, plaintiff does not allege there were any material Case 2:15-cv-00859-JLR Document 44 Filed 04/19/17 Page 11 of 20 DEF WA STATE DEPT OF HEALTH’S MOT TO DISMISS SECOND AMENDED COMPLAINT (C15-00859-JLR) 12 ATTORNEY GENERAL OF WASHINGTON Torts Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 changes to her employment based upon her supervisor’s concerns, nor does she allege there were any further discussions or referrals to the EAP. The ADA expressly authorizes employers to: 1) require medical examinations “if shown to be job-related and consistent with business necessity,” 42 U.S.C. § 12112(d)(4)(A); and 2) “may make inquiries into the ability of an employee to perform job-related functions,” 42 U.S.C. § 12112(d)(4)(B). As such, plaintiff’s supervisor’s one-time discussion of the EAP cannot constitute an adverse employment action when employers may make mandatory referrals. The court finds that a requirement to attend EAP counseling does not constitute a “tangible change in working conditions that produces a material employment disadvantage.” [Wilke v. Dept. of Health & Human Servs., 638 F.3d 944, 955 (8th Cir. 2011)]. Jenkins’s pay, benefits, work duties, work conditions and career prospects are unaffected by any requirement that she attend EAP counseling. EAP counseling was only a temporary requirement. See 45A Am.Jur.2d Job Discrimination § 237 (“[T]here is no adverse action based on temporary even if undesired rotations and assignments.”). Jenkins admits it was reasonable for Schornhorst and Martin to attend EAP counseling.

Case: 3:16-cv-00102-wmc Document #: 24 Filed: 02/21/17 Page 41 of 45 42 C. A Reasonable Jury Could Find That ERCO Intentionally Discriminated Against Milkey on the Basis of His Disability. The ADA prohibits employers from “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee,” 42 U.S.C. § 12112(b)(1). A plaintiff can prove disability discrimination under the ADA by showing that he was treated differently than other workers on the basis of a protected characteristic.

Not only is this position unsupported by the law on business necessity, it is flatly contradicted by the ADA itself, which states that it is unlawful to subject an employee to discrimination based on a contractual arrangement. 42 U.S.C. § 12112(b)(2) “If MVM, via its contract with USMS, has subjected [Plaintiff] to discrimination prohibited by the ADA, it cannot rest on blind contractual compliance to escape liability for discrimination.” Fromm v. MVM, Inc., 371 Fed. Appx. 263, 271 Case 4:15-cv-00565-JED-TLW Document 36 Filed in USDC ND/OK on 10/18/16 Page 15 of 20 16 (3rd Cir. 2010) (Internal quotations omitted).

...................................................................................................................11 Zografov v. V.A. Medical Center, 779 F.2d 967 (4th Cir. 1985) ................................ 10-11 FEDERAL STATUTES AND REGULATIONS 29 U.S.C. § 794d(a)(1)(A)(i) ...............................................................................................6 29 U.S.C. § 794d(f) ......................................................................................................... 4-5 29 U.S.C. § 794d(f)(2) ........................................................................................................4 42 U.S.C. § 1981A(a)(3) ......................................................................................................3 42 U.S.C. §12112 .................................................................................................................3 Case 1:13-cv-00394-RDM Document 32 Filed 01/31/14 Page 14 of 16 -iii- 42 U.S.C.A. § 12112(b)(5) ..................................................................................................3 29 C.F.R. pt. 1630, app.

Prima Facie Case Prong One: Whether Breaux Was Disabled The Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) applies to this case because the allegedly discriminatory conduct, Breaux’s termination, occurred after January 1, 2009. See 42 U.S.C. § 12112. “Disability” is a “physical or mental impairment that substantially limits one or more major life activities of [an] individual.”