In Kelly v. Metallics, West
(10th Cir. 6/7/05) the 10th Circuit wades into a problem that is dividing the circuits - is an employee who is not actually disabled (as defined under the ADA), but is "perceived as disabled", entitled to a reasonable accommodation? The question arose where Beverly Kelly could have accomplished all of the essential functions of her office job, if
she had been allowed to use a portable oxygen device. Because with the oxygen device she could perform all of "life's major activities" she was not disabled under Sutton v. United Air Lines
Her employer was less than enthusiastic, first telling her "no oxygen would be allowed on the premises," and later writing her a letter which included the following:
It appears that your health situation the past few months has not improved. You have lost considerable time and your words to me this morning is that you and your doctor have not found the answer and you would either report to work with an oxygen bottle or lose more time. Either condition does not make for a stable employee. Based on this information, management in a meeting this morning, voted to hire a new replacement for your job.
The challenge arose over the jury instructions, which the company argued allowed it to be found liable if it had failed to reasonably accommodate Kelly. The employee and the district court argued that was not the case, but the appellate court found the instructions did have the effect that the company alleged. Unfortunately for the company, that victory was short lived as the the Court went on to find that it was permissible. Adopting the words from a sister circuit, the Court held:
As the Third Circuit expressed it, the real danger is not that an employee will fail to educate an employer concerning her abilities, but that "[t]he employee whose limitations are perceived accurately gets to work, while [the employee regarded as disabled] is sent home unpaid." Williams v. Philadelphia Housing Auth. Police Dep't, 380 F.3d 751, 773-76 (3d Cir. 2004). That is to say, an employer who is unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employee's abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions.
Based on the Court's analysis of the various circuit courts which have addresssed whether there is an obligation to provide a reasonable accommodation for an individual only "perceived as disabled", the split is 3 for (1st, 3rd and 10th), and 3 against (5th, 6th and 9th). Sounds like a future Supreme Court issue to me, although as the Disability Law blog points out in its post
that alerted me to yesterday's decision in Kelly
, the Supreme Court has passed on this issue so far, as recently as this past term when it did not take the Williams
case from the 3rd Circuit. Just from the opinion, this case doesn't sound like the most favorable fact pattern for those who would oppose such a duty.
The employer had another interesting legal argument on the companion retaliation claim, that in the ADA version of retalation there is no entitlement to compensatory damages. That is the view of the 7th Circuit, see my earlier post, Drafting Error? - 7th Cir. No Compensatory or Punitive Damages for ADA Retaliation Claim. Unfortunately in this case, that argument was not raised with the trial court abd thus was waived so we must wait another day to see if that argument will be accepted by other courts.