Interesting issues under the Americans with Disabilities Act (ADA) continue to percolate through the courts.

Making Eye Contact And Faces. In Merrill v. Burke E. Porter Machinery Company, the U.S. Court of Appeals for the Sixth Circuit ruled that the plaintiff — who suffered from Asperger's Syndrome — did not present sufficient evidence to submit to a jury his claim that he was discharged because of this disability. The plaintiff was a mechanical project engineer. He alleged that things his supervisor said to him about his failure to maintain eye contact during discussions (a symptom of his syndrome), as well as accusations of being “stupid” and insubordinate for making “funny faces” at him, were “direct evidence” that, if believed, required the conclusion that unlawful disability discrimination was a motivating factor in his discharge. The court disagreed. It concluded that, while these statements might possibly evidence a discriminatory intent, they were not “direct evidence” because inferences were required. Also, circumstantial evidence did not support the plaintiff ’s claim because there was no evidence he was replaced by a non-disabled person.

“Regarded As Disabled” Due To Disability Pension. The Sixth Circuit recently decided an ADA “regarded as disabled” case in Todd v. City of Cincinnati that illustrates how non-disabled individuals can utilize this rather expansive feature of the ADA. The plaintiff police officer in Todd had degenerative disc disease and was denied a job as a firearms supervisor. While Todd did not claim he was actually disabled under the ADA, he alleged that he was “regarded as” such by his employer and that the City had violated the ADA by denying him the position. The plaintiff's supervising officers had stated that they did not select him for the position because they questioned whether he would be physically able to do the work given that he had received a disability pension based on his back condition. This motivational evidence, the court reasoned, was sufficient for him to present to a jury his theory that he was regarded as disabled and was not hired based on that perception — even though he was actually not disabled.

Elimination Of Waste As A “Major Life Activity.” In Heiko v. Colombo Savings Bank, the U.S. Court of Appeals for the Fourth Circuit considered the ADA's definition of “major life activity” in an unusual setting. The plaintiff alleged that he was denied a promotion and constructively discharged because of his end-stage renal disease that required him to have kidney dialysis three times per week. The parties agreed that the plaintiff's disease was a physical “impairment” under the Act, but the employer disputed whether he was “substantially limited in a major life activity.” The issue was whether the kidneys’ elimination of bodily waste — toxins in the blood — amounts to a “major life activity.” The court concluded that it does, inasmuch as the elimination of bodily waste is basic to any person's daily regimen and “is also a daily activity that that average person can accomplish with little effort.” The court determined that there was sufficient evidence to allow a jury to determine whether the plaintiff was passed over for promotion because of this disability or, as his employer claimed, because he was less qualified than other candidates.

“Full And Equal Enjoyment” Of Public Services. The Michigan Court of Appeals recently decided a public accommodation case under the Persons With Disabilities Civil Rights Act (the Michigan counterpart to the federal ADA). In Wells v. County of Bay, an amputee sued after being required to pass through a courthouse metal detector despite requesting an alternative means of entry to avoid damage to a spinal cord stimulation implant. The trial court granted summary disposition for the County on the ground that the plaintiff had in fact received access to the facility. But the Court of Appeals reversed, holding that mere access is not the only requirement, and that the statute’s mandate of “full and equal enjoyment” of public services connotes more. Where the plaintiff had presented documentation regarding his spinal implant but was only given the alternatives of either passing through the metal detector or leaving the building, the County failed to accommodate him and had not shown any undue hardship.

Jay C. Boger

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