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American's with Disabilities Act Research (Secondary Sources (AmJur 2d…

- - - - Findings and purpose: (5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
        
        Search within: chair /s "reasonable accommodation"
        
        Stafne v. Unicare Homes
        Pushing wheelchair-bound residents was among essential functions of nurse's job at extended care facility, despite nurse's contrary contention on appeal of her ADA discrimination claim against her employer, where nurse testified at trial that she often had to push and lift wheelchair-bound residents in facility's dining room and that she had exacerbated an injury resulting from her disability while pushing a particularly heavy resident in a large wheelchair.
        
        Key #: 78k1218(4)
        Employment qualifications, requirements, or tests
        
        Kowitz v. Trinity Health
        (8th Circuit: 2016)
        
        Kallail v. Alliant Energy Corporate Services, Inc. (8th Cir. 2012)
        "Essential functions “are the fundamental duties of the job, but not its marginal functions.”
        
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        search within: "reasonable accommodation" "essential functions"
        
        Scruggs v. Pulaski County, Ark.
        (8th Cir. April 2016): the ability to lift 40 pounds was an essential function of the employee's position as a juvenile detention officer; county indicated that the lifting requirement was related to the need for officers to protect juveniles from harming themselves and others, lifting requirement was in written job description, all other officers were able to lift 40 pounds
        
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      - § 12102. Definition of disability
      - § 12112. Discrimination: (b) Construction
        As used in subsection (a) of this section, the term “discriminate against a qualified individual on the basis of disability” includes--
        (4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
        (5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
        (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; :star: :<3:
      - 42 USCA § 12103. Additional definitions
        The term “auxiliary aids and services” includes--
        (C) acquisition or modification of equipment or devices; and
        (D) other similar services and actions.
      - 42 U.S.C.A. § 12111: definitions
        (9) Reasonable accommodation
        The term “reasonable accommodation” may include--
        (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
        (B) 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.
- - - - Duty v. Norton-Alcoa Proppants
        not an ADA case At :red_cross: trial, Duty submitted evidence to demonstrate that he was able to perform the essential functions of the maintenance mechanic job, including (1) his own testimony that he was capable of lifting 100 to 150 pounds occasionally, fifty to seventy-five pounds regularly and fifty pounds comfortably; (2) his testimony that heavier lifting was not an essential function of the job, because he had done such lifting only four or five times in his eighteen years on the job; (3) evidence that a variety of lifting devices were available to do any necessary heavier lifting; (4) evidence regarding NAP's available positions of rebuilder, sizing operator, ball mill operator, STS operator, and material handler, all of which he could have performed with his restrictions; (5) evidence of other employees hired to perform jobs he was capable of doing; (6) evidence that the “no-rehire” *493 policy was not the reason he was not given another position; and (7) evidence that other employees had returned to work when they were less than 100% capable of performing their essential job functions.
        
        Headnote 17 --> cited to 4 cases
        
        Knutson v. Ag: distinguishes Duty - We are not persuaded that these authorities control Knutson's case. Both Duty and Webner involved claims of “actual” disability, as opposed to the “regarded as” disability claim asserted by Knutson. Duty, 293 F.3d at 491; Webner, 267 F.3d at 834. The plaintiffs in Duty and Webner, moreover, presented vocational expert testimony to substantiate their claims that their physical restrictions disqualified them from classes of jobs or broad ranges of jobs. Duty, 293 F.3d at 488; Webner, 267 F.3d at 834. In contrast, Knutson *1054 failed to present evidence demonstrating that an inability to perform the tasks of rodding stokers and pulling ash represented a significant restriction on his ability to perform either a class of jobs or a broad range of jobs in various classes, or that Ag Processing perceived him as so restricted. See 29 C.F.R. § 1630.2(j)(3)(i). :red_cross:
    - - Negative treatment: Fjellestad v. Pizza Hut of America, Inc - Requiring employer to create restaurant co-manager position, such that employee who was no longer able to perform functions of unit manager position without accommodation could share unit managerial responsibilities with another manager, was not reasonable accommodation under ADA, inasmuch as employer was not required to hire additional employees, reassign existing workers, create new position, or create permanent position out of temporary one as accommodation. Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.this could be bad if you're considering the reassigng existing workers to observe
    - - Cases that cite to this case
      - Key Number: 78k1225(2) What are reasonable accommodations; factors considered
        
        Minnihan v. Mediacom Communications Corp.
        Employer's judgment about an essential job function in Americans with Disabilities Amendment Act (ADAAA) action is considered highly probative; however, the employer's judgment is not conclusive. Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.
        
        Minnihan v. Mediacom Driving was an essential function of employee's position as a technical operations supervisor for cable television and communications provider, in context of determining whether employee was qualified to perform essential job functions under Americans with Disabilities Amendment Act (ADAAA), where the time employee spent driving facilitated his ability to be out in the field, which employee agreed was where he spent at least 50 percent of his working hours. Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.
- - - - 45 CFR § 84.12 Reasonable accommodation.(a) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity.
        (b) Reasonable accommodation may include: (1) Making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.
        (d) A recipient may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.this is the wrong regulation --- not related to employment :forbidden:
  - - - "When must specialized equipment or other workplace modifications be provided to qualified disabled employee or applicant as reasonable accommodation":
        James v Frank (1991, SD Ohio) 772 F Supp 984, 2 AD Cas 815, 125 ALR Fed 805, the employer was found to have failed to accommodate the plaintiff employee in accordance with the requirements of 29 U.S.C.A. § 794 by failing to provide a chair for the employee's use. The plaintiff, an employee of the United States Postal Service, was an amputee whose prosthesis, while allowing him to engage in most daily activities, limited the length of time he could stand or walk before experiencing pain. While on various assignments, the employee requested the use of a straight–back chair upon which to sit while doing his job. While the chair ultimately was provided, the court found that the employer unreasonably delayed in doing so, in one instance taking seven months to provide the proper chair. The court held that provision of the straight–back chair was not an undue burden on the employer, and that while a certain amount of bureaucratic delay can be excused, the Postal Service was obligated to provide the chair within a reasonable time, and failed to do so.
      - "When Does Job Restructuring Constitute Reasonable Accommodation of Qualified Disabled Employee or Applicant?"
        (8) The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
        (9) Reasonable accommodation. The term "reasonable accommodation" may include—
        (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
        (B) 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.
        
        Cover v. J.C. Penney Corporation, Inc.(2016) Dist. of MN JCP contends that, after it reassigned her, Cover was unable to perform the essential functions of either available position (SS or CSA) with or without an accommodation. Cover, however, repeatedly asserts she was qualified to perform exclusively as a cashier with a reasonable accommodation of a plastic bag separator device. (Mem. in Opp'n at 15, 19–21.)
        18But, Cover overlooks one fatal flaw in her argument. Even if JCP had provided her a plastic bag separator device,16 she was still unable to perform any other essential function of the SS or CSA position—and she does not dispute these positions had other essential, non-cashiering functions. Zoning was one such task; but, because it required repetitive bending, twisting, and folding, Dr. Horowitz forbade Cover from performing this task. (Pl. Ex. 8 at 5); Otto, 685 F.3d at 758 (employer is not required to permit employee to perform a job function the employee's doctor has forbidden). Being a runner was another essential function. Yet, she could not walk well or carry large items.
        
        Hatchett v. Philander Smith College 8th Cir (2001):Former employee who could not confer with students or attend staff meetings or other large group meetings could not fulfill essential aspects of business manager position, and, thus, was not qualified for her former position within meaning of ADA, even if employer granted her accommodation request to work part time or on an intermittent basis.