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The courts continue to address interesting and challenging issues under the Americans with Disabilities Act (ADA). And the EEOC has just proposed new regulations under the ADA Amendments Act (ADAAA). Here are some highlights.

“Zero Tolerance” For Violence. In Kondas v. Potter, the U.S. Court of Appeals for the Third Circuit considered a disability case brought against the U.S. Postmaster General by a technician at a mail processing and distribution center. During training, Kondas had difficulty working with instructors and made several statements to them threatening physical violence. Understandably, the U.S. Postal Service (being the source of the phrase “going postal”) does not take lightly threats of violence against co-workers, and Kondas was discharged based on a “zero tolerance” anti-violence policy. But he was reinstated following a union grievance, and resumed where he had left off, again writing aggressive notes aimed at his instructors. He was then barred from the training process.

Kondas sued under the Rehabilitation Act, the ADA’s counterpart for federal employees, claiming disability discrimination and retaliation. The Third Circuit affirmed the trial court’s order of summary judgment for the Postmaster. The court rejected Kondas’ attempt to equate his treatment to others who had been involved in drunken brawls but were not barred from training (none of the alleged drunkards made repeated threats or were viewed as a continuing threat to trainers’ safety). Nor could retaliatory intent be shown by special scrutiny given to him under the “zero tolerance” policy (because the Postal Service had acted similarly in response to comparable situations in the past).

Bodenstab v. County of Cook, decided by the U.S. Court of Appeals for the Seventh Circuit, also involved threats of violence against co-workers. Bodenstab, an anesthesiologist employed at a hospital, was apparently upset with his cancer diagnosis, after which he declared: “Well, maybe I’ll take some people with me,” and specified that he would kill his former chief doctor and four or five physician co-workers. He predicted that he would die in an ensuing gun battle with police. After being suspended, Bodenstab underwent psychiatric evaluation and treatment. Upon completion, he sought reinstatement. That request was rejected and his employment was terminated. He sued, claiming disparate treatment, failure to accommodate, and retaliation. He asserted that the hospital “regarded” him as disabled — i.e., as having an impaired ability to interact with others. The Seventh Circuit did not decide whether an inability to interact with others is a “major life activity” under the ADA or whether Bodenstab was “substantially limited” in doing so. Instead, the court disposed of Bodenstab’s lawsuit on the basis that there was no evidence that the reason for the discharge — his serious and acknowledged threats of violence — was a pretext for disability discrimination. As for his failureto- accommodate claim, the court held there is no ADA violation when an employer discharges a person based on misconduct, even if the misconduct is causally related to a disability. In other words, an employer has no ADA obligation to accommodate threatening behavior.

No Duty To Accommodate Bad Work. In Scott v. Commissioner of Social Security, the plaintiff had been a case management trainee with the Social Security Administration. Her job involved reviewing and analyzing medical records; preparing letters, memoranda, and forms; and responding to written inquiries. Her job required a high level of accuracy. Soon after her hire as a trainee, she was found to be making crucial errors, and was warned several times about unsatisfactory performance. She was then diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed medications. She reported a better ability to concentrate, but her work quality did not improve. When she was discharged, she sued claiming a failure to accommodate her ADHD condition. A U.S. District Court in Michigan rejected her claims, reasoning that, in essence, Scott wanted an accommodation in the form of removal of job duties that were giving her trouble, but which were essential to her position. The court also concluded that, to the extent Scott had requested reassignment to another position, she had failed to identify a vacant position for which she was qualified.

Non-Retroactivity Of ADA Amendments Act. As we noted in our last Insight, the ADAAA was passed in September 2008, but became effective January 1, 2009. The amendment significantly broadens the scope of protection and declares that the focus be moved from strictly scrutinizing whether a person is “disabled” to determining whether he or she actually suffered “discrimination.” Since the passage of the ADAAA a year ago, many plaintiffs have argued that it should have retroactive effect to claims dating back to September 2008. The U.S. Courts of Appeals for both the Sixth and the D.C. Circuits have rejected this argument. In Milholland v. Sumner County Board of Education, the Sixth Circuit noted that there is a general presumption against retroactive application of statutes, and that the text of the ADAAA shows no intent to reach conduct preceding its effective date. Similarly, in Lytes v. D.C. Water and Sewer Authority, the D.C. Circuit viewed the hiatus between the passage and effective dates as a clear indication that Congress meant it to apply prospectively only, i.e., the delay was designed to give fair warning to affected parties and to protect settled expectations. These decisions are significant inasmuch as there are still cases being filed and litigated that involve conduct that occurred during the hiatus between the September 2008 passage date and the January 2009 effective date. Those cases should be decided under the old ADA standards, not the new ADAAA standards.

EEOC Issues Proposed ADAAA Regulations. Consistent with Congress’ mandate for implementing regulations for the ADAAA, the EEOC recently issued a notice of proposed regulations that are focused on the ADAAA’s expansive interpretation of “disability.” Among other things, the regulations list impairments that the EEOC finds will consistently meet the definition of disability, including autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, and major depression. They also state that the determination whether an impairment substantially limits a major life activity will be based on a common-sense assessment, comparing the individual’s ability to perform a specific activity with that of most people in the general population. An impairment need not prevent or significantly or severely restrict an individual from performing a major life activity to be considered a disability. These proposed regulations clearly signal a broader application of the ADA, which was of course one of the expressed purposes of the ADAAA.

Jay C. Boger