The Ninth Circuit Court of Appeals recently ruled in favor of an employer in an Americans With Disabilities Act (ADA) case involving the employer’s reassignment of an allegedly disabled employee. The employee suffered from temporomandibular disorder (“TMD”) and claimed the transfer caused increased stress which aggravated her TMD. As an accommodation under the ADA, she then requested a transfer out of her new position.
The Ninth Circuit Court held that the employer had articulated several legitimate, nondiscriminatory reasons for the transfer and that the employee failed to provide sufficient evidence that those reasons were only a “pretext” for disability discrimination. In rejecting her pretext argument, the Court found no evidence that the employee had been reassigned because co-workers complained about earlier accommodations she had received. Second, although her coworkers did complain about the employee’s misconduct, the Court found the alleged misconduct did not relate to any earlier accommodations.
With regard to the employee’s argument that her employer failed to provide a reasonable accommodation by transferring her out of the new position, the Court addressed a threshold issue: Whether to apply retroactively – to pending cases – the broadened definition of “disability” in the ADA Amendments Act (ADAAA) effective January 1, 2009. The Court followed its sister circuits and held that the ADAAA does not apply retroactively. As such, it instead applied to this case the pre-2009 standards that are much more business-friendly, and concluded under those standards that the employee did not have a “disability”:
Becerril is not substantially limited in speaking because she is limited only in talking constantly, for a long time, and under stress. She is not substantially limited in eating because eating hard foods is not “of central importance to daily life,” and an inability to eat hard foods is not substantially limiting. She has produced no evidence besides conclusory assertions on how her impairment substantially limits her seeing or sleeping. And though her pain and grogginess limited her thinking and concentrating at times when she was working, Becerril has not raised a genuine issue of material fact on whether her intermittent symptoms substantially limited her ability to think and concentrate not just at work but outside of work as well.
This case illustrates several important reminders to employers:
First, all employers must be able to articulate a legitimate, nondiscriminatory reason for any adverse action, as this provides a critical defense to ADA claims as well as other discrimination claims. Employers should document clearly the reasons for any adverse employment decision.
Second, because the new ADAAA “disability” definitions do not have retroactive effect, it is clear that courts will analyze employer adverse actions taken prior to January 1, 2009 under the ADA’s original standards, as compared with the pro-employee standards of the ADAAA. Of course, employer actions from January 1, 2009, forward will be analyzed under the new, plaintiff-friendly standard of the ADAAA. This may mean that employees not “disabled” under the old standards may have become “disabled” under the new ADAAA standards.
Third, an employer may defend against an ADA discrimination claim by arguing that the employee does not have a “disability” – but the ADAAA’s broad definition of “disability” weakens such arguments.