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Is An Expert Needed To Prove Disability In Discrimination Cases?

Published By | Jun 16, 2022 | Disability Discrimination, Employment Discrimination, Employment Law, Firm News, Wrongful Termination |

Yesterday, I blogged about the victory that Fred Bean, the partner in charge of Spitz, The Employee’s Law Firm’s Cleveland office before the Eighth District Court of Appeals in Anderson v. Accuscripts Pharmacy, L.L.C., 2022-Ohio-1663 (8th Dist.), which overturned the trial court’s holding that epilepsy was not a protected disability under Ohio law and the Americans with Disabilities Act (“ADA”). (Best Law Read: Is Epilepsy A Protected Disability At Work?). However, the Eighth District Court of Appeals did not address the trial court’s indication that expert testimony is necessary to establish a disability for workplace protection against disability discrimination and to enforce a right to an accommodation. Specifically, the trial court opined: “Plaintiff failed to submit evidence through an expert” to establish that “her epilepsy substantially limited her major life activities, such as caring for herself, performing manual tasks, or whether her condition substantially limits her ability to work.” Implicitly, had the Court of Appeals agreed with the trial court it would have affirmed the dismissal of the case, but in reversing the trial court and sending this back for a trial on the wrongful termination and failure to accommodate claims, the Court of Appeals indirectly confirmed that no expert was necessary to prove disability or substantial limitations. But’s let look at this head on.

Do I need an expert to prove my disability in my wrongful termination case?

Best Employment Lawyer Answer: No. While you can present an expert on this issue, it is not always necessary under Title VII or Ohio law claims. Specifically addressing this issue, the federal Tenth District Court of Appeals in Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 998 (10th Cir. 2019), dealt with an employee who had “chronic lower back pain” and produced one doctor’s note during her employment regarding lifting restrictions. In this circumstance, the trial court held that expert testimony was needed to establish a disability under the ADA and dismissed the case. The Tenth District Court of Appeals reversed, holding:

“[n]o language in the ADA or implementing regulations states that medical testimony is required,” AutoZone, Inc., 630 F.3d at 643, and “[t]here is certainly no general rule that medical testimony is always necessary to establish disability,” Katz, 87 F.3d at 32. Instead, courts assess the necessity of expert evidence on a case-by-case basis and consider the type of disability alleged. See Mancini, 909 F.3d at 39. Courts generally require expert testimony only if an impairment is “rare” or “of such character as to require skilled and professional persons to determine the cause and extent thereof.” Felkins, 774 F.3d at 652 (quotations omitted). But when an impairment or disability is “obvious,” Katz, 87 F.3d at 32, or can be “fathom[ed] without expert guidance,” Mancini, 909 F.3d at 42, courts generally do not require expert testimony. See also 6 Jones on Evidence § 52:1 (7th ed. 2019) (“To determine whether expert testimony is required to establish … an element … of a medically-related cause of action, courts consider whether the subject … is one within the realm of the ordinary experience of mankind …. If it is beyond the ken of a lay jury, … then the plaintiff must present expert testimony ….” (quotations omitted)).

Likewise, in Head v. Glacier Nw. Inc., 413 F.3d 1053, 1059–60 (9th Cir. 2005), the Ninth District Court of Appeals rejected the notion that expert medical testimony was necessary. In Head, the employee had been diagnosed with depression or bipolar disorder. (Best Law Read: What Are My Mental Health Rights At Work?; What To Know About Returning To Work After A Mental Health Crisis; What Are My Job Rights If I’m Suicidal?).

The company allegedly fired the employee for getting a loader stuck in mud. They employee sued for being wrongfully fired under the ADA because he was disabled, was perceived by his employer as having a disability, had a record of a disability, and/or had made a request for a reasonable disability accommodation to help him do his job. The Ninth District Court of Appeals reversed the district court’s dismissal of the claim for failure to present expert testimony, holding:

Because we conclude that plaintiffs need not supply comparative or medical evidence if they provide other adequate evidence, we must now determine whether Head provided adequate evidence in this case. Thus, to determine whether the grant of summary judgment was appropriate, we review Head’s alleged impairment of each major life activity. We conclude that Head has alleged sufficient evidence to demonstrate a substantial impairment in the established major life activities of sleeping, interacting with others, and thinking. Moreover, we conclude that reading is a major life activity, and that Head has alleged sufficient evidence of a substantial impairment regarding reading.

In Hood v. Diamond Prod., Inc., 1996-Ohio-259, 74 Ohio St. 3d 298, 303, 658 N.E.2d 738, 742, the Ohio Supreme Court reversed the trial court and held:

Having determined that cancer may be a handicap, we next consider whether the court of appeals in the case at bar erred in finding that appellant’s testimony in support of her motion for summary judgment was insufficient to establish “that she suffered a covered condition and was within the class to be protected.” In particular, the court determined that appellant’s affidavit was “self-serving” testimony and hearsay, and that expert medical testimony was necessary to demonstrate that she suffered from her alleged handicap. We disagree. While the better practice in this type of situation would have been to submit expert medical testimony, we do not believe that under the circumstances of this particular case such testimony was required.

(Best Law Read: Is Cancer A Disability Under The ADA?; Does My Job Have To Give Me Time Off For Cancer Treatments? I Need The Top Disability Discrimination Lawyer And Best Wrongful Termination Attorney In Ohio!)

There are limits to self-identification of a disability. In Jones v. McDonough, No. 3:19-CV-00310, 2021 WL 964045, at *11 (M.D. Tenn. Mar. 15, 2021), the employee worked at the U.S. Department of Veterans Affairs (“VA”), where she was placed on a performance improvement plan for failing to reach required productivity benchmarks. The employee argued that she was wrongfully fired despite notifying her employer of her self-diagnosed depression and anxiety. The United States District Court for the Middle District of Tennessee held that this was not sufficient:

Instead, the plaintiff apparently diagnosed herself as having depression and anxiety, and she does not indicate the onset date of these conditions or their duration. In the October 6, 2014 email to Nave and Hatfield, sent before the plaintiff ever saw her doctor, the plaintiff describes herself only as suffering from “stress and anxiety,” which had led to “loss of sleep and hence fatigue.” …It is clear that anxiety and depression may qualify as “mental impairments.” See, e.g., Williams v. AT & T Mobility Servs., LLC, 186 F. Supp. 3d 816, 823 (W.D. Tenn. 2016) (“It is undisputed that Plaintiff suffered from the mental impairments of depressive disorder and anxiety as shown by medical evidence in the record ….”). The plaintiff’s self-diagnosis of those conditions, however, is not sufficient to establish that she suffers from a mental or emotional illness. The plaintiff is certainly qualified to offer testimony regarding her symptoms and the degree to which her symptoms impaired her ability to function, but, to establish that she was disabled, she must first offer evidence from which a jury could find that she actually suffered from an “impairment.”

This decision is not unique. In the framework of mental health impairments, courts have regularly held that a self-diagnosis is not sufficient to establish the existence of an impairment. For example, in Heit v. Aerotek, Inc., 726 F. App’x 648 (9th Cir. 2018), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a case via summary judgment because the employee failed to provide medical evidence of his self-diagnosis of “shy bladder syndrome,” a psychiatric condition characterized as a “social anxiety disorder.” The Ninth Circuit Court of Appeals held that “lay witnesses [like the employee are] incompetent to testify as to the existence … of [medical] illnesses.” Id. at 649 & n.1 (citation omitted). The court recognized that the plaintiff was “competent to testify about the effects of the alleged condition,” but held that the “cause of such a condition is a medical question … not within the certain knowledge of laymen” and “must be proved by expert testimony.” Id. at 649.

Likewise in Santiago v. New York City Police Dep’t, No. 05CIV3035(PAC)(MHD), 2007 WL 4382752, at *7 (S.D.N.Y. Dec. 14, 2007), the United States District Court for the Southern District of New York held that “Santiago’s self-diagnosis that he was depressed or upset or stressed out does not constitute an impairment. There is no competent, medical diagnosis of depression; and so there can be no impairment.” Id. aff’d, 329 F. App’x 328 (2d Cir. 2009).

In Adams v. Rochester Gen. Hosp., 977 F. Supp. 226, 232 (W.D.N.Y. 1997), the employee asserted a disability discrimination claim based on a “mental impairment” that he described as “mental stress,” “depression,” “manic-depression,” and “psychosis,” but failed to offer any “expert opinion, medical affidavit, hospital or treating doctor’s record indicating any medical diagnosis” or evidence that the plaintiff suffered from a specific “mental impairment” at the time of the alleged discriminatory action. Therefore, his case was lost.

Importantly, these case focus on self-diagnosis not repeating what has been diagnosed by a professional. Certainly, a non-expert employee is no more capable of diagnosing cancer or a pulmonary lung disease than anxiety or depression and the same problem would likely arise in those types of cases.

How do I prove my disability discrimination case?

Best Ohio Employment Firm for Employees Answer: If you have epilepsy, you already have enough to worry about without having to face discrimination at work for a manager or supervisor. If  you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages or refused a workplace accommodate because you have epilepsy then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Our employee’s rights lawyers are her for you in Ohio, Michigan, and North Carolina. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.

Disclaimer:

This employee’s rights law website is an advertisement. The materials available at the top of this disability discrimination and accomodation rights page and on this employment discrimination website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “What medical documents do I have to give my employer for a disability accommodation?”, “am I disabled under the ADA because I have depression and anxiety?”, “Can I sue my employer for firing me for having cancer?”, or “can the company that I work for retaliate against me after I requested for a workplace accommodation for my disability?”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.