| A. |
Many
Conditions Are Not A Disability, Even If They Prevent The
Worker From Returning To His Former Job
: Return to Top : Exit Article |
| |
| 1. |
Chronic Insomnia for Psychiatric Nurse Who
Had A Shift Job. Not Generally Precluded From
Nursing Jobs. |
| |
Brown v. Johns Hopkins Hospital, 51
F.3d 265 (4th Cir. 1995) |
| |
|
| 2. |
Shoulder And Feet Injuries Prevented Return
To Regular Job, But Not A Wide Range Of Jobs. |
| |
Bolton v. Scrivner, 36 F.3d 939 (10th
Cir. 1994) |
| |
|
| 3. |
Carpal Tunnel Syndrome Which Disqualifies A
Worker From Her Job, But Not All Manual Labor, Is
Not A Disability. |
| |
McKay v. Toyota Motor Manufacturing,
878 F. Supp. 1012 (E.D. Ken. 1995) |
| |
|
| 4. |
See generally EEOC Compliance
Manual, Volume 2, EEOC Order 915.002 (March 14,
1995) |
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|
| B. |
If
An Employer Does Not Know Of The Disability, Then There
Can Be No Discrimination Claim : Return to Top : Exit Article |
| |
| 1. |
Employers Fired Employees For Absenteeism And
Tardiness, And The Employees Never Informed The
Employer Of Their Conditions - Manic-Depression,
Arthritis, Amyloidosis. |
| |
Miller v. National Casualty Co., 61
F.3d 627 (8th Cir. 1995) (manic depression); |
| |
Hamm v. Runyon, 51 F.3d 721 (7th Cir.
1995) (arthritis); |
| |
Hedberg v. Indiana Bell Tel. Co., 47
F.3d 928 (7th Cir. 1995) (amyloidosis) |
|
| |
|
| C. |
Employee
Must Show Evidence From Which One Can Infer the
Disability Was A Factor in the Adverse Employment
Decision : Return to Top : Exit Article |
| |
| 1. |
No Evidence That Epilepsy Condition Was A
Factor In Laying Off The Employee. |
| |
Newman v. GHS Osteopathic, Inc. Parkview
Hospital Division, 60 F.3d 153 (3rd Cir.
1995) |
| |
|
| 2. |
General Memorandum Stating Desire To Save
Insurance Costs Does Not Show That A Poor
Performing Employee Was Fired Due To Healthy
HIV-Positive Child. |
| |
Ennis v. National Association of Business
and Education Radio, 53 F.3d 55 (4th Cir.
1995) |
| |
|
| 3. |
If The Person Who Fired A Disabled Employee
Is The Same Person Who Hired The Employee, And He
Knew Of His Disability When He Hired Him, Then
There Is A Strong Inference That There Was No
Discriminatory Motive. |
| |
Tyndall v. National Educ. Centers, 31
F.3d 209, 215 (4th Cir. 1994) |
|
| |
|
| D. |
If
The Worker Cannot Perform The Essential Functions Of The
Job, Even With Reasonable Accommodations, Then He Is Not
a Qualified Person And Cannot Maintain An ADA Lawsuit : Return to Top : Exit Article |
| |
| 1. |
Cannot Keep Up With Fast Pace Of Grocery
Warehouse (Due To On-The-Job Injuries) - Taking
And Filling Orders. |
| |
Milton v. Scrivner. Inc., 36 F.3d 939
(10th Cir. 1995) |
| |
|
| 2. |
An Employer Can Fire An Alcoholic For
Off-The-Job Drunk Driving Arrest (Football
Coach-Bad Publicity). |
| |
Maddox v. University of Tennessee, 62
F.3d 843 (6th Cir. 1995) |
| |
|
| 3. |
If Worker Fails To Monitor His Condition
(Diabetic), And It Interferes With His Job
(Police Officer), Then The Employer Can Fire The
Employee. |
| |
Siefken v. The Village Of Arlington
Heights, 4 A.D. Cases 1441 (7th Cir. 1995) |
|
| |
|
| E. |
An
Employee May Be Estopped From Arguing He Can Perform a
Job: Estoppel Based On Insurance Form Representation Or
Tort Verdict :
Return
to Top : Exit Article |
| |
| 1. |
Obtained Tort Jury Verdict Claiming
Permanently Disabled From Work. |
| |
McNeill v. Atchison Topeka and Santa Fe
Railway Co., 878 F. Supp. 986 (S.D. Tex.
1995) |
| |
|
| 2. |
Summary Judgment Granted Based On Insurance
Forms Representations. |
| |
Reigel v. Kaiser Foundation Health Plan of
North Carolina, 859 F. Supp. 963, 969-970
(E.D.N.C. 1994) |
| |
|
| 3. |
Used Insurance Forms To Find The Fact On
Summary Judgment That The Worker Could Not
Perform The Job Duties, But Not A Formal Estoppel
Argument. |
| |
August v. Offices Unlimited. Inc., 981
F.2d 576, 581 (lst Cir. 1992) |
| |
|
| 4. |
EEOC Opposes This Approach. |
|
| |
|
| F. |
Certain
Accommodations Are Beyond Reasonable : Return to Top : Exit Article |
| |
| 1. |
An Employer Does Not Have To Combine Two
Part-Time Jobs To Create A Job For A Disabled
Person. |
| |
Fedro v. Reno, 21 F.3d 1391 (7th Cir.
1994) |
| |
|
| 2. |
No Priority In Vacant Position. Merely Follow
Normal Rules. |
| |
Daugherty v. City of El Paso, 56 F.3d
695 (Sth Cir. 1995) |
| |
Sharpe v. ATT, ___ F.3d ___ (9th Cir.
1995) |
| |
|
| 3. |
Need Not Give An Indefinite Leave Of Absence.
No Preference For Reassignment; Just Follow Usual
Procedures. |
| |
Myers v. Hose, 50 F.3d 278 (4th Cir.
1995) |
| |
|
| 4. |
Need Not Accommodate Unpredictable And
Frequent Absences. |
| |
Jackson v. Veterans Administration, 22 F.3d
277 (11th Cir. 1994); |
| |
Tyndall v. National Education Centers,
31 F.3d 209 (4th Cir. 1994); |
| |
Leatherwood v. Houston Post, 59 F.3d
533 (Sth Cir. 1995) |
|
| |
|
| G. |
Direct
Threat - Employee With Accommodations Must Be Able To
Safely Perform The Job :
Return
to Top : Exit Article |
| |
| 1. |
As A Matter Of Law, A Diabetic Is An
Unreasonable Risk As A Bus Driver |
| |
Daugherty v. City of E1 Paso, 1995 WL
360325 (5th Cir. 1995) |
| |
|
| 2. |
An HIV-Positive Surgical Technician/Surgeon
Cannot Safely Perform His Job. |
| |
Bradley v. University of Texas, M.D.
Anderson Cancer Center, 3 F.3d 922 (Sth Cir.
1993); |
| |
Doe v. University of Maryland Medical
System Corp., 50 F.3d 1261 (4th Cir. 1995) |
| |
|
| 3. |
An HIV-Positive Person Inmate Can Be Barred
From Food Service Job. |
| |
Gates v. Rowland, 39 F.3d 1439 (9th
Cir. 1994) |
|
| |
|
| H. |
Benefits
- If Single Out Condition For No Coverage, Then ADA
Violation : Return to Top : Exit Article |
| |
| 1. |
If High Dose Chemotherapy With Bone Marrow
Transplant Is Not Experimental, Then Can Not
Cover It For Some Cancers, But Not Breast Cancer.
If Experimental For Some Cancers, Then Not The
Same Condition And Can Discriminate. |
| |
Henderson v . Bodine Aluminum, Inc.,
___ F.3d ___, 1995 WL 566954 (8th Cir. 1995) |
| |
|
| 2. |
A Disability Retirement Plan Need Not Be
Offered, And If Offered, It Can Differ From
Normal Retirement Plan. |
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