There is a lot that goes into figuring out if a worker has a claim under the Americans with Disabilities Act (“ADA”), and it is often very complicated. Today, we are going to use a recent decided case to breakdown some the basics of disability discrimination, failure to accommodate, retaliation and wrongful termination under the ADA.
Who is a “Qualified Individual” under the ADA?
Best Disability Work Rights Lawyer Answer: The ADA is a law that provides civil rights to individuals with disabilities and protects them in all areas of public life, including employment. The purpose of the ADA is to provide access to the same employment opportunities and benefits available to people without disabilities. However, the ADA only applies to “qualified individuals.”
A qualified individual is a person who 1) has the legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and 2) can perform the “essential functions” of the position with or without reasonable accommodation. (Best Law Read: Do I Have A Disability Discrimination Case?; What should employees know about reasonable accommodations?).
What is an “essential function” of a job under that ADA?
Best Disabled Worker Attorney Answer: Essential job functions are the basic duties that an employee must be able to perform, with or without reasonable accommodation. If the reason the job position exists is to perform one particular function, then that activity is an essential function of the position. For example, a telemarketer’s job is to make phone calls, so making phone calls is an essential function.
If a job function is so highly specialized that the employee is hired because of their expertise (like a doctor that specializes in geriatric medicine), then it is an essential function of the job. If there are so few employees available who can share the duty, then it is an essential function of the job.
Recently, in Rosales v. Bellagio, LLC, No. 21-15464, 2022 WL 2340438 (9th Circuit, June 29, 2022), Jorge Rosales worked as a food service operator at the Bellagio. In 2013, Rosales was hurt at work and sustained injuries to his neck, back, and right shoulder, requiring multiple surgeries on his shoulder. In March 2016, his doctor gave him permanent work restrictions, limiting his lifting to a maximum of 36 pounds, limiting repetitive neck movements, and avoiding repetitive reaching overhead on his right side. Without engaging in an interactive process, Bellagio determined that Rosales could not perform the essential functions of his job and terminated him on April 28, 2016. (Best Law Read: What is the interactive process?). Bellagio sued in federal court for disability discrimination and wrongful termination.
The District Court of Nevada initially held:
“The evidence before the court is sufficient to establish a prima facie claim for discrimination. Prior to engaging in the interactive process, Harbaugh and Gholizadeh determined that there did not exist any reasonable accommodation that would allow Rosales to return to work. See (ECF No. 20-1). This conduct shows that Bellagio did not engage in the interactive process in good faith. See Zivkovic, 302 F.3d at 1089 (holding that employers must engage in the interactive process in good faith).
Moreover, Rosales emphasizes that his doctor restricted him only from lifting over 36 pounds. See (ECF Nos. 20-1, 23). Gholizadeh testified at his deposition that the heaviest items that servers are expected to lift weigh between 30 and 40 pounds. (ECF No. 23-3). Thus, because Rosales was able to lift most, if not all, items that servers handle, the substantive record allows the court to infer that there was a reasonable accommodation that would allow Rosales to work as a server. See Snead v. Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080, 1091 (9th Cir. 2001) (“Making a prima facie showing of employment discrimination is not an onerous burden.”) (italics added).
In light of the foregoing, Rosales has produced sufficient evidence to establish a prima facie case for discrimination in violation of the ADA.”
Rosales v. Bellagio, LLC, Case No. 2:17-CV-3117 JCM (GWF) (D. Nev. Mar. 27, 2019).
Despite finding that Rosales had met the prima facie case of disability discrimination, the District Court granted Bellagio’s Motion for Summary Judgment, meaning it threw the case out of court, because Rosales did not show pretext, i.e. that the employer’s reasons for the termination were untrue. (Best Law Read: What Is Pretext?). Rosales appealed. The Ninth Circuit Court of Appeals reversed the decision because Bellagio did not engage in an interactive process with regard to Rosales’ request for accommodation. Rosales v. Bellagio, LLC, 811 F. App’x 438 (9th Cir. July 2, 2020). (Best Law Read: What Is A Prima Facie Case?; What Is The Interactive Process For Disabled Employees?).
After further litigation and another appeal to the Court of Appeals, the Ninth Circuit determined that Rosales could not perform enough of the “side work” tasks that were essential to his job and was therefore not a qualified individual under the ADA. The Ninth Circuit held:
“While much is disputed, some things are clear. The room service job arguably involves three types of duties. Hospitality duties require heavy lifting and assembly of tables, equipment, and large quantities of food and beverage service items such as plates and glasses. Rosales agrees that he is not able to do hospitality work. He maintains, however, that such work is not an essential function, because he can opt out of it.
A second category of duties involves assembly and delivery of ordinary room service orders. To the extent these duties involve pushing a table from the kitchen to the room, Rosales apparently can perform them. To the extent they involve lifting anything heavier than 36 pounds (the weight of an unloaded hot box) or carrying anything heavier than a gallon of milk, Rosales cannot perform the duties.
The third catch-all category, called “side work,” is composed of everything else that needs to be done, ranging from cleaning the kitchen to restocking the pantry. Rosales maintains that not all side work duties are essential and claims that he could do enough of the side work duties that he could do the essential aspects of side work. Rosales’s restrictions include, in addition to those on lifting and carrying, no repetitive neck movements. Rosales conceded that working as a room service worker requires a lot of neck movement, and that even if he was allowed to do only light work, he might injure his neck. Thus, even if not all of the side work tasks are essential, as he contends, the inability to do repetitive neck movements prevents him from doing even those side work duties that he concedes are essential. See, Dark v. Curry Cnty., 451 F.3d 1078, 1089 (9th Cir. 2006) (“The ADA does not require an employer to exempt an employee from performing essential functions.”).
Given Rosales’ restrictions, he cannot perform enough of the side work tasks that are essential to performing the job, and thus, is not a “qualified individual” under the ADA.”
In a bit of a stretch, the Ninth Circuit apparently determined that Rosales was not a qualified individual under the ADA because he would have to move his neck while doing catch-all “side work.” Despite citing to Dark v. Curry Cnty., the Court did not address how it determined that the three categories of duties above were essential.
How do you determine whether a job duty is essential under the ADA?
Best Disabled Work Accommodation Attorney Answer: The ADA offers some guidance but defers to the employer’s judgment as to which functions are essential. One can also look to written job descriptions to learn what an employer considers to be an essential job function. While numerous job duties may be listed in a job description, the amount of time spent on the job performing the specific task can also be taken into consideration. One can also look at the consequences of an employee being permitted not to perform the essential function, or the actual work experience of current or previous employees in the position.
So, how can a person who needs accommodations win their case? In a case like Rosales, the one specific document that may have helped was a written description of job duties. If you are denied accommodations because your request affects an essential duty and then terminated, your attorney can go through your job description with you to determine just how essential the task is to your position. You and your attorney can look at how often you need to perform each specific task, how much time you spend doing each task in the course of a normal day at work, what other employees also performed those tasks, and what portions of the task that you are or are not able to perform.
How do I sue my former employer for wrongfully firing me because of my disability?
Best Wrongful Termination Lawyer Answer: As you can see, each case of disability discrimination, failure to accommodate, and wrongful termination presents distinctly different issues and requirements. Your best course of action to hire a law firm that has the experience and focus in employment law as well as the resources to prosecute your case. If you are disabled or your employer perceives you as being disabled and you have been fired, wrongfully terminated, discriminated against, denied accommodations, demoted, wrongfully disciplined, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Make a call right now to our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown, Raleigh, and Detroit to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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