Issues Involving Anti-Discrimination StatutesADA and Long Term Disability Benefits
a. "Disability threshold": What is a disability under ADA:
i.An impairment that substantially limits one or more major life activities
(1)Some courts view cancer as no impairment on major life activities. E.g., Ellison v. Softwear Spectrum, Inc., 85 F.3d 187, 5 AD Cases 920 (5th Cir. 1996) (breast cancer is not a disability, nor perceived to be a disability); Schwertfager v. City of Boynton Beach, 15 NDLR ¶76 (S.D. Fla. 1999) (female with history of breast cancer not disabled; person is not incapacitated even though she experienced temporary limitations in her ability to perform daily, routine functions, duration during which limitation occurs must be "significantly" long; court would not permit finding of a record of impairment based on diagnosis and hospitalizations and treatment); Gordon v. E.L. Hamm & Associates, Inc., 100 F.3d 907, 6 AD Cases 282 (11th Cir. 1996) (shoulder cancer); EEOC v. R.J. Gallagher Co., 6 AD Cases 1165 (S.D. Tex. 1997) (leukemia does not constitute an impairment); Sanders v. Arneson Products, Inc., 91 F.3d 1351 (9th Cir. 1996), cert. denied, (1998) (psychological impairment resulting from stress reaction to cancerous condition in the bladder, too short in time to be considered a disability); Madjlessi v. Mach’s West, Inc., 11 NLDR ¶157 (N.D. Cal. 1997 (sales manager with breast cancer who went into remission year after chemotherapy, not disabled). [Someone ought to tell the malignant cells there is no serious impairment!] Of course, to assure there is a Catch- 22, if the individual is dying from the cancer, he too is not a qualified individual with a disability. Hirsch v. National Mall & Serv. Co., 11 NDLR ¶210 (N.D. Ill. 1997) (even though worker was dying from non-Hodgkins lymphoma, did not show the cancer was a disability under ADA; no evidence of impairment in daily activities or that employer regarded worker as disabled before employer terminated cancer victim to cut its health costs, which court noted might mean an ERISA violation but not one under ADA). Others in the disability community, such as those who suffer from epilepsy, especially if treatment cuts down the severity of the seizures, may do no better. Todd v. Academy Corp., 1999 U.S. Dist. LEXIS 12133 (S.D. Tex. 1999).
(2) But see Christian v. St. Anthony Medical Center, Inc., 6 AD Cases 1665 (7th Cir. 1997) in which the court said
...if a medical condition that is not itself disabling nevertheless requires, in the prudent judgment of the medical profession, treatment that is disabling, then the individual has a disability within the meaning of the Act, even though the disability is, as it were, at one removed from the condition. We cannot find a case on the question, but the answer seems obvious—maybe that’s why there are no cases; in Gordon v. E.L. Hamm & Associates, Inc., 100 F.3d 907 (11th Cir. 1996), for example, it was simply assumed that chemotherapy treatment for a cancer not itself shown to be disabling could be disabling within the meaning of the Act. In its early stages cancer is usually not disabling, but aggressive treatment of a cancer at an early stage may be, and if it is, the protections of the Act are triggered.(a) See also unreported decision in Bizelli v. Parker Amchem and Henkel Corp., 7 AD Cases 592 (E.D. Mo. 9/22/97) (cancer patient established a "record of impairment" by having been on a leave of absence and receiving short term disability benefits since diagnoses for testicular cancer; former cancer patient cannot be discriminated against on the basis of prior medical history, citing EEOC Interpretative Guidelines, 29 C.F.R. Pt. 1630, App. § 1630.2(k)). This is further enforced by Berk v. Bates Advertising USA, 7 ADA Manual 3 (S.D. NY 1997) (employee with breast cancer who first had to be absent from work for intensive chemotherapy, and then asked to return to work while she received treatment outside of work hours, found to be a qualified individual with a disability, because she has a record of impairment).
(3) Lake Point Tower Ltd. v. Ill. Human Rights Commission, Ill AppCt. No. 196-3008 (Memorandum decision 8/29/97) reported in BNA’s Employment Discrimination Report 9/17/97 vol 9 p.398-99 (spa violated state law by firing employee who was about to receive chemotherapy treatment for non-Hodgkins lymphoma, cancer found to be a handicap within meaning of state act).
(4) See also Karuschkat v. Jessel Rothman, P.C., No. 2- E-D-93-3501414, N.Y.S.D.H.R. 1996) (employee cannot be fired for missing work because of time she took off for chemotherapy treatments). However, suppose attendance was absolutely an essential part of the job and no absence could be accommodated? Such would not be likely, and one must remember the FMLA would likely protect these absences if the other FMLA requirements were met.
(5) Outside of cancer, see some of the more recent cases that have been decided since the Supreme Court’s 1999 trilogy (Sutton v. United Air Lines, 9 AD Cases 673 (1999) (vision impairment removed by use of eyeglasses); Murphy v. United Parcel Serv. Inc., 9 AD Cases 691 (1999) (impairment removed by medicine, leaving no substantial limitation); Albertsons Inc. v. Kirkingburg, 9 AD Cases 694 (1999) (blindness in one eye not substantially limiting where brain made adjustments), holding in effect disability of a person is to be judged in its medicated state, not in ignorance of such mendicants and prophylactic devices: Taylor v. Phoenixville School District, 184 F.3d 296 (3rd Cir. 8/19/1999) (worker is nonetheless still disabled where drug used to control bi-polar disorder is not perfect, leaving worker still substantially limited in her ability to think, and the side effects of the drug impair concentration and create memory problems, all of which interfere with her work and compel the employer to try to accommodate); Fjellestad v. Pizza Hut of America, 188F.3d 944 (8th Cir. 8/25/1999) (worker who suffered severe injuries in auto accident but who was returned to work by her doctors with limited restrictions after reaching her maximum recovery, still made jury submissable case when occupational expert offered that based on her work skills and the locale in which she lived, she experiences a 91% reduction in employability and a 95% reduction in labor market access; compare her and her restrictions with the average person in the general population to determine if work restrictions still remaining were significant).
(6) Cancer will not protect a worker who engages in misconduct, as defaming the employer or insubordination. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997).
ii. Record of (or being regarded as having) impairment. See Bizelli, supra.
i)Able to perform essential functions of job with or without reasonable accommodation
(1)Kennedy v. Applause Inc., 3 AD Cases 1734, 1994 Westlaw 740765 (C.D. Cal. 1994), affirmed, 90 F.3d 1477 (9th Cir. 1996) (person/saleswoman with chronic fatigue syndrome needing open-ended work schedule to accommodate unpredictable changes in her condition, not a qualified individual; plaintiff must show ability to maintain a regular and reliable level of attendance at the job claimed).
(2)There is always great danger if an employee who must be accommodated, asserts she can fully perform all parts of her job, even though it is obvious some accommodation had been provided: Ellison v. Softwear Spectrum, Inc., supra.
b."Total disability": unable to perform any job reasonably suited by education, experience or training.
i.Work comp settlements not conclusive on issue under ERISA: Hurt v. Pullman Inc., 764 F.2d 1443, 1449 (11th Cir. 1985); Pagan v. NYNEX Pension Plan, 18 EBC 1382, 1384 (D.D. N.Y. 1994); Kustanaar v. Connecticut General Life Ins. Co., 902 F.2d 181, 184 (2nd Cir. 1990). But what if worker in the state compensation proceeding claims inability to work? See Jackson v. County of Los Angeles, 11 NDLR ¶195 (Cal. Ct. App. 1997) in which court found estoppel, but it was not per se for the court carefully examined as to whether the claim of work comp disability was one for which that the employer could make some accommodation.ii
(1)But suppose the LTD plan determines the claimant does not qualify for LTD benefits that she can work, and yet the employer terminates without any attempt to accommodate. What effect does this have? Should the plan itself be stopped from making a claim the individual is not disabled. See Hayden v. Texas U.S. Chemical Co., 557 F.Supp 382 (E.D. Tex. 1983); Bonin v. American Airlines, Inc., 562 F.Supp. 896 (N.D. Tex. 1983), affirmed, 783 F.2d 435 (5th Cir. 1984), cert denied, 105 S.Ct. 1968 (1985). Or conversely, should employer be stopped from claiming no reasonable accommodation could be made, and that there was no need to look for alternative jobs?Social security findings of total disability not conclusive on issue of what is a "total disability" under ERISA: Cox v. Mid-America Dairymen, Inc., 965 F.2d 569 (8th Cir. 1992); Madden v. ITT Long Term Disability Plan, 914 F.2d 1279 (9th Cir. 1990); Conley v. Pitney Bowes, Inc.,, 176 F.3d 1044 (8th Cir. 1999). Nor should it, nor an application for social security benefits, be necessarily disqualifying of a claim for accommodation under the ADA: Cleveland v. Policy Management Systems, 526 U.S. 795 9 AD Cases 491 (1999).
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