Driving Under the ADA

The Tenth Circuit Court of Appeals recently held that merely because a person cannot drive does not mean that the person meets the legal definition of "disabled" under the Americans with Disabilities Act: Kellogg v. Energy Safety Services, Inc. 544 F.3d 1121 (10th Cir. 2008). Although the facts of the case are most compelling, it is anticipated that Kellogg will not be the law on this issue for long, as the ADA Amendments Act went into effect January 1, 2009; and, a much broader definition of "disability" is set out in the ADA Amendments Act.

Kellogg, who had epilepsy, sued her employer, alleging disability discrimination. She was a safety technician who, occasionally, drove to oil fields to perform her work. She asserted that, because she was not allowed to drive, due to the risk of seizure, she was substantially limited in the major life activity of "driving." The Court noted that, although driving is an "important daily activity", it is a "means to an end". Consequently, although Kellogg prevailed on her claim before a jury at the District Court level, the Tenth Circuit reversed and remanded the case for a new trial on whether Kellogg was limited in a major life activity.

However, the Kellogg decision will, most likely, not be law for employment claims that arise under the recently passed ADA Amendments Act (possibly the most sweeping change to the face of employment law in over 10 years). The ADA Amendments ACT (which was signed on September 25, 2008) went into effect on January 1, 2009, and makes important changes to the definition of the term "disability". The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. On the other hand, it changes the way that these statutory terms should be interpreted. Moreover, the new law directs EEOC to revise that portion of its regulations defining the term "substantially limits"; and, to date, those new regulations have not been finalized.

The Benefit of the Doubt

During any investigation of an employee, it is critical that the employer always extend the "benefit of the doubt" to the employee. This was strikingly evident in a recent Tenth Circuit decision: Trujillo v. PacificCorp., 524 F.3d 1149 (10th Cir. 2008). In Trujillo, the Court fired 2 employees (who were husband & wife), the parents of a young man who was suffering from cancer; and, their terminations occurred less than 2 weeks after the young man's cancer had relapsed. The terminations followed an investigation of the parents - that lead the employer to conclude that they had allegedly falsified their time records which, if true, defrauded the company of a combined 40 hours of pay.

The former employees asserted claims under the Americans With Disabilities Act and ERISA. The ADA claim was asserted under the ADA "association provision" - in which the former employees claimed that they had been terminated because of the expense or cost to the company (a self-insured company) associated with their son's illness. Although the District Court granted summary judgment to the employer, the Tenth Circuit reversed. The Tenth Circuit held that, under the totality of circumstances, and considering the evidence presented concerning the employer's concerns about the cost of the son's illness and the temporal proximity between the relapse and the termination, the former employees raised the necessary reasonable inference of discrimination.

The Tenth Circuit cited several specific facts related to the company's investigation of the couple that indicated that, although the couple had served the company for many years, they were never given the benefit of the doubt during the company's investigation: key witnesses allegedly were not interviewed; other employees allegedly were not terminated for other serious offenses, but were placed on progressive discipline; and, the company allegedly had cited certain unreliable records in support of its conclusion of time theft.

The Tenth Circuit's opinion provides an excellent outline of the legal framework for a claim under the ADA "association provision". This case also reveals several practical steps to take and to avoid during an investigation of an employee, including: it is critical that the employer always extend the "benefit of the doubt" to the employee.