Anxiety and the ADA

Q: An employee in my company has requested intermittent leave as an accommodation for what he claims is a debilitating “anxiety,” but he has no job performance issues and seems fine to me. Are we required to provide a reasonable accommodation under the ADA for anxiety?

A: The question of whether an employee’s anxiety constitutes a disability under the Americans with Disabilities Act (“ADA”) is rather tricky for employers. Most people experience some level of anxiety on the job and in every day life, but in the absence of clear behavioral indicators, it may be difficult for employers to assess whether an employee’s anxiety rises to the level of a disability as defined by the ADA. However, as a recent decision from a federal court in the Middle District of Tennessee demonstrates, to enjoy the protections of the ADA, your employee’s accommodation request must be grounded on something more than his generalized claim that he has a “debilitating” anxiety disorder.

In EEOC v. West Meade Place LLP, the U.S. Equal Employment Opportunity Commission (“EEOC”) alleged that the defendant, a nursing home, failed to provide a reasonable accommodation to an employee who suffered from an anxiety disorder, and then fired her because of her disability.

The ADA prohibits discrimination on the basis of disability with respect to hiring, compensation, discharge, and other terms, conditions, and privileges of employment. In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show that (1) she is disabled, (2) she is otherwise qualified to perform the essential functions of a position, with or without accommodation, and (3) she suffered an adverse employment action because of her disability.

In West Meade Place, the employer argued that the plaintiff could not establish the first element of the legal standard—that she was disabled. Under the ADA, a “disability” is defined in three ways: (1) a physical or mental impairment that substantially limits one’s ability one or more of the individual’s major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. Reviewing the evidence in light of this definition, the court found that the plaintiff was unable to satisfy her prima facie burden and granted summary judgment to the defendant.

First, the plaintiff could not show that her condition substantially limited her ability to perform her job. The EEOC’s plan to rely on testimony from the employee’s physician on this point backfired during the physician’s deposition. After stating on an FMLA form that the employee could not work during her anxiety “flare-ups,” the physician admitted that, in lieu of a medical opinion, she signed the FMLA form simply because the employee asked her to do it. Given the scant medical evidence to support plaintiff’s medical condition, the court rejected the agency’s argument that one or more of the employee’s major life activities were “substantially limited” by her anxiety.

In addition, the plaintiff’s contradictory testimony undermined the EEOC’s position that the employee had a record of impairment. On the forms she completed at the outset of her employment, she indicated that she had used an anti-anxiety medication and affirmed that she had issues with anxiety. However, she also wrote on the forms that she had never been treated for anxiety. As such, the court found the onboarding documents failed to establish that the plaintiff had a history of anxiety of such severity that it substantially limited on or more of her major life activities.

Likewise, the EEOC’s argument that the plaintiff was regarded as having an impairment by the employer failed. The court explained that, rather than simply alleging that the employer was aware of her symptoms, the plaintiff must instead show that the employer regarded her as “impaired” within the meaning of the ADA. An employee’s statement to management that she suffered from anxiety may not be enough. As the nurse manager explained when asked whether she was aware that the plaintiff had a disability, just because an employee “said she had anxiety, that doesn’t make it a disability. I have anxiety. It’s not a disability.”

Given that the plaintiff could not meet the ADA’s definition of “disabled,” she failed to establish a prima facie case of either on either her discrimination or failure-to-accommodate claims.

By nature, anxiety is somewhat difficult to assess, and thus employers must take care when responding to an employee’s request for an accommodation for an anxiety condition. In the absence of supporting evidence, an employee’s bald assertion that he or she suffers from an anxiety disorder probably is not enough to meet the ADA standard. Thus, an employer should carefully analyze any documents provided by the employee’s health care provider to determine whether the diagnosis indicates that the anxiety amounts to a “mental impairment” as contemplated by the statute. Also, employers should conduct a thorough review of the employee’s file to ascertain whether the employee identified the medical condition at the outset of employment or afterwards, thereby putting the employer on notice. In addition, employers should take a holistic view of the employee’s overall engagement with the company to determine whether the company regarded the employee as disabled. As always, to mitigate the risk of liability, employers should thoroughly review the facts and available documents with an attorney who has experience in analyzing ADA issues, prior to denying an employee’s request for an ADA accommodation.

Rogers Stevens

California Supreme Court Decision Could Expand Standing For Website Accessibility Claims

Q.  Does a consumer need to actually try to buy a product or service at a store to have standing to sue under the ADA for failure to maintain an accessible website?

A.  Evolving case law regarding website accessibility under the Americans with Disabilities Act (ADA) and comparable state laws continues to impact companies across the country. In the past, courts have required plaintiffs to show that the allegedly discriminatory website prevented their full use and enjoyment of a connected brick-and-mortar location. More recently, however, courts have looked favorably on claims even absent such an alleged deprivation. A recent opinion from the Supreme Court of California not directly addressing ADA website compliance appears nevertheless to further cement this shift, allowing standing for discrimination claims regarding a website under California’s Unruh Civil Rights Act based on an individual’s intent to use the website’s services in and of themselves. This shift further emphasizes the need for commercial website owners to ensure that their online content is accessible to the visually impaired in compliance with the widely adopted Web Content Accessibility Guidelines (WCAG) 2.0.

For further information, click here.

Jeffrey M. Goldman, Tracey E. Diamond and Victoria D. Summerfield

Second Circuit Court of Appeals Recognizes Hostile Work Environment Claim Under the ADA

Q.  An employee at one of my company’s facilities in New York recently complained to his supervisor that his coworkers made fun of his disability. Can an employee with a disability file a “hostile work environment” claim under the Americans With Disabilities Act?

A.  On March 6, 2019, the Second Circuit Court of Appeals ruled for the first time that hostile work environment claims are available to plaintiffs under the Americans with Disabilities Act (ADA). With its decision in Fox v. Costco Wholesale Corporation, the Second Circuit joins the Fourth, Fifth, Eighth and Tenth Circuits, which likewise have found that hostile work environment claims are cognizable under the ADA.

In Fox v. Costco, the plaintiff suffered from Tourette’s syndrome and obsessive-compulsive disorder, conditions which manifested in verbal tics and other behavioral issues.  He alleged that, following a change in management, he was subjected to a hostile work environment by a new manager, who reprimanded the plaintiff for his work on certain tasks that non-disabled individuals performed in the same way but were not reprimanded for.  Later, the employer disciplined the plaintiff following complaints from customers regarding his behavior, which included an incident where he told a customer that she was “the love of his life.”  After investigating these incidents, the employer suspended the plaintiff for several days and transferred him to another job with the same pay and benefits.

Even after the transfer, however, the plaintiff alleged that his new supervisor made harassing comments to him. In addition, his coworkers began mimicking his behavioral tics, allegedly taunting him with comments such as “hut-hut-hike,” a mocking reference to a behavioral tic in which plaintiff sometimes crouched like a football player to touch the floor before moving forward.  The plaintiff alleged that the employer’s managers witnessed these comments over a period of “months and months,” but failed to act.  After plaintiff had a panic attack at work one day, he went out on indefinite medical leave and did not return to work.

The district court granted summary judgment to the employer on the plaintiff’s claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation under the ADA and New York State Human Rights Law. Regarding the hostile work environment claim, the district court found that the plaintiff failed to prove that the alleged conduct was sufficiently “severe and pervasive” because he offered no details regarding the persistence of the “hut-hut-hike” comments, such as how many times the comments were made per shift, week and/or month.  The district court also ruled that the conduct and comments at issue were not objectively hostile and abusive.

On appeal, the Second Circuit affirmed the district court’s grant of summary judgment with respect to the plaintiff’s claims for disparate treatment, retaliation, and failure to accommodate. However, the Second Circuit also found that the plaintiff offered enough evidence to present the claim to a jury to decide “whether the frequency and severity of the mockery rose to the level of an objectively hostile work environment.”  Specifically, the plaintiff’s testimony that his coworkers mocked his disability for months—in the presence of managers who did nothing to prevent the comments—was sufficient to defeat summary judgment.

The court based its decision on the plain language of the ADA, which prohibits employers from discriminating “against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” As the court explained, this language was borrowed from Title VII, and since the ADA “echoes and expressly refers to Title VII” and Title VII allows for a hostile work environment claim, the same standard should be applied to a hostile work environment claim under the ADA.

Having found that the ADA can serve as a basis for a hostile work environment claim, the court proceeded to analyze whether the plaintiff presented evidence that the alleged harassment was sufficiently severe or pervasive to meet the standard. The appeals court rejected the district court’s finding that the plaintiff was required to present specific evidence “regarding the number of times the comments were made per shift, week and/or month” in order to show that the harassment was pervasive.  In this respect, the Second Circuit explained, “[t]he district court demanded too much of [plaintiff].”  Instead, the plaintiff was required to demonstrate only that the conduct he complained about was “objectively abusive.”

In light of this decision, now may be a good time to emphasize to managers and supervisors that they must take action if they become aware of employees making inappropriate remarks in the workplace based on an individual’s protected status, including disability.

Rogers Stevens

In ADA Website Accessibility Cases, Remediation May Be a Successful Defense

Q.  What can I do to protect my company from lawsuits claiming that our website is not accessible to visually-impaired individuals?

A.  Companies, universities and other organizations around the country continue to face an onslaught of lawsuits brought under the Americans with Disabilities Act (ADA) alleging that commercial websites cannot be appropriately accessed by visually impaired individuals. A recent opinion from the U.S. District Court for the Southern District of New York provides a potential roadmap for companies to stave off litigation by taking action to remediate barriers to full website accessibility.

For full article, click here.

Jeffrey M. Goldman, Tracey E. Diamond, and Victoria D. Summerfield

Woof Woof: Accommodating Animals in the Workplace

Q.  An employee has requested that he be allowed to bring his Labradoodle to work with him. Do we have to accommodate this request?

A.  Pets are accompanying their masters everywhere these days. It is not unusual to see pets in public areas, including restaurants, and even on airplanes. Likewise, more employees are requesting to bring man’s best friend to work.  Whether an employer has to accommodate such a request depends on whether the employee is qualified individual with a disability and the request for accommodation would enable the employee to perform the essential functions of his or her job.  If the workplace is also a place of public accommodation, then the company also should be mindful of the rules under the  Americans With Disabilities Act (ADA) for “service animals.”

The ADA defines a service animal as a dog or miniature horse that is individually trained to do work or perform tasks for a person with a disability. Yes, you did read that correctly.  Miniature horses are covered by the Act, although other animals, such as cats, are not.  Examples of the type of work or tasks performed by service animals include:  (i) guiding a blind employee, (ii) alerting a deaf individual, (iii) pulling a wheelchair, (iv) alerting and protecting a person who is having a seizure, (v) alerting a diabetic that his or her blood sugar has reached certain high or low levels, (vi) reminding a person with mental illness to take prescribed medications, and (vii) calming an employee with a mental health disability during an anxiety attack.  The work or task the service animal has been trained to provide must be directly related to the person’s disability.

When it is not obvious what service a particular animal provides, a place of accommodation may only ask the following questions: (1) whether the animal is a service animal required because of a disability, and (2) what work or task the service animal has been trained to perform. The company may not require the individual to demonstrate that the service animal has been trained to perform a certain task.  Moreover, the ADA does not require that service animals be trained by a professional training program.  Instead, individuals with disabilities have the right to train the service animal themselves.  Likewise, the ADA does not require service animals to wear a vest, ID tag, or specific harness, or require that the animal has been certified, trained, or licensed as a service animal.

Animals in Private Workplaces

If your workplace is not a place of public accommodation, then the ADA does not have specific rules governing the type of animal allowed.  Employers will need to engage in the interactive process with the employee to determine whether allowing the animal into the workplace will enable the employee to perform the essential functions of his or her job without posing an undue hardship on the employer or a direct threat to health and safety in the workplace.  As part of the interactive process, the employer should ask the employee to provide medical documentation of the nature of the disability and way in which the animal would enable the employee to perform his or her job functions.  The employer can provide an alternative accommodation so long as the accommodation would be as effective in enabling the employee to perform the job.

Written Policies

Employers should consider putting a written policy in place, taking into consideration several practices, including, for example, the employee’s responsibility to keep the animal harnessed, leashed, or tethered, unless these devices interfere with the animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls. In addition, a policy can clarify the employee’s responsibility to provide care and food for the animal.  Moreover, an individual with a disability can be asked to remove his animal from the workplace if: (a) the animal is out of control and the employee does not take effective action to control it, (b) the animal is not housebroken; (c) the facility cannot accommodate the animal’s type, size, or weight; or (4) the animal’s presence will compromise legitimate safety requirements necessary for safe operation of the facility.

Significantly, however, a coworker’s allergies or fear of dogs may not be valid reasons for prohibiting animals from the workplace. When a coworker who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility, or modifying work schedules.

–Tracey E. Diamond