EEOC-Initiated Litigation - 2022 Edition

32 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP employer had “not shown that [charging party’s] missing a few days each year to recover from a seizure amounts to her inability to perform the essential functions of her job.” 224 On the other hand, in Elledge v. Lowe’s Home Centers, LLC , 225 the Fourth Circuit affirmed a decision by the District Court that held that an employee with a disability was not a qualified individual because he was unable to perform the essential functions of his job. The EEOC alleged that the employer discriminated against an employee whose job entailed frequent visits to stores within his geographic area after that employee underwent knee surgery that made it difficult for him to perform the required driving and walking. 226 The Fourth Circuit agreed with the trial court’s determination that the essential functions of the job included: (1) standing or walking in excess of 4 hours each day; (2) travelling to all supervised stores; and (3) working in excess of 8 hour each day.” 227 The Fourth Circuit also held that it was “not open to serious dispute” that the charging party could not perform those functions after his knee surgery . 228 The question was whether he could perform those duties with reasonable accommodations. The Fourth Circuit held that he could not. The record showed that the charging party had not followed his own doctor’s orders regarding light duty and declined to use the motorized scooter that was offered by the employer . 229 The court concluded that “even the version of the record most favorable to [charging party] does not tell the story of a disabled employee who followed his doctor's orders regularly or utilized his accommodations fully. Instead, it tells the story of an individual who accepted or created certain accommodations, rejected others, and pushed himself beyond the limits of his doctor's orders.” 230 Questions about whether an employee can perform the essential functions of a job with reasonable accommodation often require employers to make difficult decisions that impact the safety of the workplace. For example, in EEOC v. T&T Subsea, LLC , 231 the U.S. District Court for the Eastern District of Louisiana had to decide whether a diver was qualified for his position even though he could not pass a dive physical when he was terminated. 232 The employer asserted a “direct threat” defense, arguing that the charging party posed a significant risk to the health or safety of others that could not be eliminated by reasonable accommodation. 233 The court denied summary judgment to the employer on that defense, however, because of the existence of “genuine issues of material fact regarding whether [employer] meaningfully assessed [charging party’s] ability to perform his job safely based on the best available objective evidence and reasonably concluded that [charging party] posed a direct threat. ” 234 b. Recent ADA Decisions Regarding What Qualifies As A Disability One frequently litigated topic in ADA litigation is what counts as a “disability” under the ADA. There is no hard and fast rule that can be applied to make this determination. Whether a condition rises to the level of the charging party had been terminated because she accrued three absences during her 90-day probationary period, which is two more than allowed by company policy. Id. 224 Id. Moreover, although the employer argued that her absences placed a significant burden on its other staff, the Court concluded that there was “little evidence to show that the burden was significant,” and that the charging party “ha[d] submitted evidence showing that her seizures are rare, suggesting that her requests for time off would be infrequent.” Id. at *6. 225 Elledge v. Lowe’s Home Ctrs., LLC , 979 F.3d 1004 (4th Cir. 2020). 226 Id. at 1007-08. 227 Id. at 1009-10. 228 Id. at 1011. 229 Id. at 1012. 230 Id. ; see also EEOC v. Austal USA, LLC , 447 F. Supp. 3d 1252, 1269 (S.D. Ala. 2020) (holding that because the evidence showed that the charging party could not follow any work schedule on a regular basis, the EEOC had failed to show that there was any reasonable accommodation that would allow the charging party to perform the essential functions of his job). 231 EEOC v. T&T Subsea, LLC , 457 F. Supp. 3d 565 (E.D. La. 2020). 232 In that case, an employee whose job duties included diving to perform underwater welding and other commercial services was terminated after receiving cancer surgery. Id. at 569-70. Although the employee had informed his employer that he would be able to get medical clearance to return to work within four weeks, and in fact did get that clearance, the EEOC alleged that the employer terminated him because he could not pass the dive physical. Id. at 570. 233 Id. at 575. 234 Id. at 576. Among other things, the court pointed to the fact that the charging party was later granted clearance to dive by his physician and was hired as a diver by other companies. Id.