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Disability Discrimination - Man in Wheelchair

The concept of what a central job function is complex. So, for today’s legal blog we are going to use a recent United States Court of Appeals for the Fifth Circuit opinion in the case of Equal Opportunity Commission v. Cash Depot, LTD, No. 21-20515, 2022 WL 3644186, at *1 (5th Cir. Aug. 24, 2022), in which the Court decided whether an employer had unlawfully discriminated against an employee on the basis of his disability and whether the employer failed to reasonably accommodate such disability. (Best Law Read: Can My Boss Fire Me Because He Thinks I’m Disabled?; My Job Is Discriminates Against Me Because I’m Disabled!; Can I Be Denied A Job Because Of Prescribed Medications?).

In February of 2019, Employee had a stroke at home while off duty. On March 4, 2019, he informed Employer that he was getting better but was still unable to return to work and asked about short-term disability. Employee then submitted a doctor’s note on March 6th that said he had a follow-up appointment on April 2nd to be evaluated for a determination of whether he could return to work. That same day, Employer posted a job opening for Employee’s position.

HR for Employer sent Employee a letter on March 13th that said Employer had approved a personal, unpaid leave of absence for him until April 3rd because he was not yet eligible for leave under the Family Medical Leave Act (“FMLA”) or for short-term disability. The letter said that Employer “agrees to hold your current service technician position open for you until April 3, 2019. However, please understand that [Employer] cannot guarantee that your position will be available if you are unable to return to work at that time, with or without restrictions.” The letter also said that, after April 3rd, reinstatement would depend on various factors.

On April 2, 2019, Employer offered Employee’s field technician position to a new employee, who accepted with a tentative start date of April 15, 2019. Also on April 2nd, Employee emailed Employer to inform him that he could return to work with a 25-pound restriction, that he “could do coin empties and do repairs, which was most of the work,” and that he had two aneurysms which could possibly need treatment in the future. Employee also inquired as to which day Employer wanted him to return to work.

On April 3rd, Employee’s doctor submitted a letter to Employer confirming that he was released to return to work, but was restricted from performing job functions or duties that involve lifting, pushing or pulling items greater than 25 lbs. That same day, Employer sent Employee a letter of termination which stated, “after reviewing the medical note, we have determined that due to the nature of your job and the unknown of when you will be able to return to full duty to perform the physical requirements/essential functions of your position, that we will not be able to accommodate your restrictions and will be terminating your employment effective April 3, 2019.

As a result of alleged wrongful termination, the Employee sued under the American with Disabilities Act of 1990 (“ADA”) alleging Employer that it engaged in unlawful discrimination by firing Employee because of his disability and failed to reasonably accommodate his disability.

What is the American with Disabilities Act (ADA)?

Employment Discrimination Lawyer Answer: The ADA prohibits discrimination against a “qualified individual” on the basis of their disability. The ADA also requires an employer to make reasonable accommodations to qualified individual’s known disability unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business. In all, the ADA protects a person from being demoted, made fun or, or wrongfully terminated because they are disabled or perceived to be disabled.

Who is a “qualified individual” under the ADA?

Top ADA Attorney Answer: A qualified individual is someone who, with or without a reasonable accommodation, can perform the essential duties of their job. (Best Law Read: ADA: Who is A Qualified Individual?).

How do I prove a disability discrimination claim under the ADA?

Best Employment Discrimination Lawyer Answer: To prove a claim for disability discrimination under the ADA, a court will examine three elements: (1) whether the employee was qualified for the job at the time of the adverse employment action; (2) whether the employee was subjected to an adverse employment action, such as termination, demotion, suspension; and (3) whether the employee was known by the employer at the time to be related to or associated with someone with a disability. (Best Law Read: All Hope Is Not Lost: How To Bring An Employment Discrimination Lawsuit; Can A Company Fire A Protected Employee For Failing A Drug Test?).

How do I prove a failure to accommodate claim under the ADA?

Workplace Disability Accommodation Attorney Answer: To prove a claim for failure to accommodate, a court will examine three elements: (1) the employee is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations. (Best Law Read: What is the Interactive Process for Disabled Employees?; Interactive Process: It Takes Two To Tango; Can A Court Force My Job To Give Me A Temporary Disability Accommodation?).

What will be considered a reasonable accommodation under the ADA?

Employees’ Legal Rights Law Firm Answer: A reasonable accommodation may include: (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (2) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. (Best Law Reads: Can I Pick The ADA Accommodation I Want?; How Do I Discuss A Reasonable Accommodation With My Employer?; Can I Switch My Disability Accommodation?; Disability Discrimination: A Simple Illustration of A Reasonable Accommodation).

Who decides what is a central job function under the ADA?

Wrongful Termination Lawyer Answer: That is what this case came down to. The district court originally bent over backwards to accept everything that the Employer put forward, but the United States Court of Appeals for the Fifth Circuit slowed that roll, holding:

The district court here not only gave consideration to CD’s judgment but also gave deference to it despite contradictory evidence. The district court cited Credeur v. Louisiana Through Office of the Attorney General, 860 F.3d 785, 794 (5th Cir. 2017), for the proposition that Galloway’s “speculation does not create a fact issue and does not overcome the deference given to Cash Depot’s business judgment in how the job is done.” Galloway was not merely speculating about his job or whether what he did was essential; he was testifying as to what he actually did on that job on a daily basis. In Credeur, this court said that “[w]hile we are mindful that employees can be good sources of information regarding their day-to-day activities and the prerequisites for success on the job, [a]n employee’s unsupported testimony that she could perform her job functions from home does not create a genuine dispute of fact to preclude summary judgment.” Id. at 793 (internal marks and citation omitted). Importantly, this court also said in Credeur that, “[o]f course, courts should not give blind deference to an employer’s judgment, but should instead evaluate the employer’s words alongside its policies and practices.” Id.

The district court dismissed Galloway’s deposition testimony as speculative on the basis that he had only worked for CD for seven months. In doing so, the district court failed to give sufficient consideration to the fact that Galloway’s testimony was supported by his doctors and CD’s own job description. The relevant portions of the job description for field technician said that the employee would frequently be required to lift up to 20 pounds, carry 2-5 pounds for 20-40 feet, pull or move 400-900 pounds on a dolly and with a winch, and be willing to drive more than 50 percent of a day.2

As quoted above, “consideration shall be given to the employer’s judgment as to what functions of a job are essential.” 42 U.S.C. § 12111(8). Consideration – not deference; and the consideration is limited to CD’s judgment only as to what functions of a job are essential. But subsection 8 also explicitly states the job description “shall be considered evidence of the essential functions of the job.” The district court failed to do that. Moreover, the district court failed to evaluate CD’s judgment alongside its policies and practices. As discussed below, the EEOC offered evidence that CD had made similar accommodations for various other employees.

Cash at *3-4.

Ultimately, the Fifth Circuit concluded that Employer failed to give sufficient consideration of the medical documentation that had been provided by Employee and that Employer could have reasonably accommodated his restriction. Specifically, Employer could have restructured his work. Furthermore, the Fifth Circuit held that Employer had sufficient notice of Employee’s work restriction. As a result, the Employee was allowed to proceed to a jury on the claims.

How do I sue my employer?

Best Employment Lawyer Answer: Every case is different and involves a particularized set of facts that need to be properly evaluated. That is why you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm, and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employment law website is an advertisement. The materials available at the top of this disability accommodation page and at top of this wrongful termination law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “but I don’t have a disability”, “but they treated me unfairly,” or “what rights do I have” or “I was fired for asking about a disability accommodation to do my job”, it would be best to contact an experienced attorney to obtain advice with respect to any employment law issue or problem. 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, Brian Spitz, or any individual attorney.

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