Jonathan Mook’s updated chapter on litigation under the Americans with Disabilities Act; Rocket Docket update: Our Unsung Hero
by Corey Zoldan
Regardless of its ultimate outcome, a still-developing disability case in federal court in Norfolk serves to emphasize that you need to proceed with caution when instituting tests—especially written tests—for current employees or job applicants. The case also highlights the critical distinction between a “disability” and an “inability” for purposes of being covered under the Americans with Disabilities Act (ADA).
Rayford Gray worked for Columbia Gas of Virginia for 31 years. He started out as a laborer and later was promoted to service technician. In 2015, Columbia decided to institute a written test for all employees. Gray took the written test but failed it three times. Although he contended that he was still able to perform the essential aspects of his job, Columbia fired him.
Gray asked Columbia to reconsider its decision because his poor test results stemmed from the fact that he had attention deficit hyperactivity disorder (ADHD) and couldn’t read. The company refused, and in September 2018, Gray went to court. His lawsuit claims that Columbia discriminated against him based on his disability by not reinstating him after he made it aware he had ADHD and couldn’t read.
At this point, Columbia hasn’t responded to Gray’s lawsuit. But if the case isn’t dismissed or otherwise resolved, we can expect to learn more details as it proceeds.
Those details may include the scope of Gray’s disability and whether he was in fact still able to perform the essential functions of his job. Additionally, if he couldn’t perform the essential functions, then the issue becomes whether Columbia needed to—and could have—provided him with reasonable accommodations that would have enabled him to continue to do his work.
Is there a causal connection?
An interesting point that neither Gray nor Columbia has yet addressed is the connection between ADHD and the inability to read.
In 2012, the U.S. 4th Circuit Court of Appeals (which is based in Richmond and whose rulings apply to Virginia employers) considered whether ADHD is a disability. In that case, Halpern v. Wake Forest Univ. Health Science, the appeals court held that “ADHD and anxiety disorders constitute disabilities giving rise to protection under the . . . ADA.” In reaching that conclusion, the court reasoned that the ADA protects against any “mental or psychological disorder, such as . . . specific learning disabilities.” Clearly, that language includes ADHD and dyslexia.
The situation becomes trickier, however, if Gray’s ADHD and inability to read are unrelated. The Equal Employment Opportunity Commission (EEOC) has previously commented in the appendix to its ADA regulations that “disadvantages such as poverty, lack of education or a prison record are not impairments.” Thus, if a person is unable to read because of a poor education, that person isn’t disabled.
This distinction between disability and inability is likely to be an issue that will be developed as the case moves forward. In all likelihood, addressing the matter will require expert testimony about the nature and effects of ADHD and its impact on Gray’s ability to read and other cognitive functions. Gray v. Columbia Gas of Virginia, 2:18-cv-00475-HCM-LRL.
Avoiding ADA claims
While the distinction between ADHD and an inability to read might ultimately allow Columbia to prevail in the lawsuit, there are several proactive, preventive steps you can take to avoid disability discrimination lawsuits in the first place. The EEOC recommends that you offer an oral test as an alternative to a written test for employees who have a disability that hinders their ability to read. If administering the test in an alternative format isn’t a viable option, the EEOC suggests assessing the ability of a disabled applicant or employee “through an interview, or through education, license, or work experience requirements.”
Further, if the employee or job applicant first becomes aware of having a disability that could have affected the test results only after the test is given, which is what Gray claims, you should have a policy requiring him to inform you immediately. At that point, you should consider providing a retest if a reasonable accommodation is available. Bear in mind, however, that the EEOC says you aren’t required to accommodate when an employee seeks a retest for an “essential function of the position and no reasonable accommodation was available to enable the individual to perform that function, or the necessary accommodation would impose an undue hardship.”
Because an appropriate assessment of your obligations under the ADA involves a number of complex issues, it’s always wise to consult with experienced employment counsel to make sure you have addressed all the necessary factors and have a solid factual and legal basis for the actions you take.
Editor’s note: Because of the various important issues Gray’s lawsuit raises for all employers, we will monitor the legal proceedings and keep you informed of key developments as the case moves forward.
Avoiding and Defending Against ADA Reasonable Accommodation Claims—Webinar w/Jonathan Mook; Rocket Docket updates; Top Lawyers in Personal Injury /Criminal Defense
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DGKeyIP—Learn more about DiMuroGinsberg’s Intellectual Property and Technology Law practice; Winning awards: how does it work and what does it mean to us?
Website accessibility to individuals with disabilities—Webinar w/ Jonathan Mook; Join Jonathan at HRComply2018 to discuss flexible work arrangements; Welcome Corey Zoldan, our new legal research pro!
It happens every day. An employee takes over the responsibility of managing the social media accounts for an organization. Maybe it’s even their full-time job. The employee uses those accounts to promote the business, yet it takes on a persona that closely resembles the employee. The employee uses their individual user id and password and before you know it, they’ve taken a kind of ownership of the social media accounts.
Where does this fall under the company property umbrella? You would think it would be very clear—the company owns its advertising media, no matter what form it takes, right? But, what about a social media profile and its content? It can be so personal to the individual producing the thoughts. It’s their perspective, even though it might be derived from company information. Where does that fall?
An article on the subject, by DiMuroGinsberg attorney Jayna Genti, appears in the September, 2018 issue of the Virginia Employment Law Letter. It discusses a case involving a Virginia newspaper that recently asked a Virginia federal judge to force a former reporter to turn over access and use of what the newspaper claims is the company’s Twitter account. The reporter felt he personally engaged readers and subscribers to the account and followers to his reporting in particular. He felt it was something he could take with him to his next paper.
If you would like to obtain a copy of Jayna’s article entitled “Who Owns Your Company’s Social Media Accounts?”, or if you would like to subscribe to the Virginia Employment Law Letter, please contact Stephanie West at email@example.com.
Download the full “Who owns your company’s social media accounts?” article here.
Legal ethics—dynamic and difficult—a discussion with managing partner Ben DiMuro; Hot Button Employment Issues: What You Need to Know, live with renowned expert Jonathan Mook; Listen to founding partner Nina Ginsberg on NPR on statutes of limitations.
DiMuroGinsberg’s experience litigating in the Rocket Docket; Conditions protected under the ADA—Webinar w/Jonathan Mook; Community service with Michele Kraftschik
The firm proudly announces that the following attorneys have been recognized by their peers in The Best Lawyers in America© for their achievement in certain fields of law.
- Bernard J. DiMuro (Commercial Litigation, Personal Litigation – Plaintiffs and Defendants)
- Nina J. Ginsberg (Criminal Defense – General Practice and White-Collar)
- Michael S. Lieberman (Appellate Practice)
- Jonathan R. Mook (Employment Law – Management)
- Andrea L. Moseley (Criminal Defense – General Practice)
- Stacey Rose Harris (Commercial Litigation)
- Harvey B. Cohen, Retired (Commercial Litigation and Personal Injury Litigation – Plaintiffs and Defendants)
The Best Lawyers in America selection process involves a rigorous peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys. The methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. We are very proud of our attorneys for being recognized by their peers for excellence in their specialties of law. Read more about them in here.
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