In Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. Apr. 12, 2010), the Third Circuit addressed when an employee may bring suit under the Americans with Disabilities Act (ADA) based on conditions caused by medication. In the case, the plaintiff/employee needed more time than most employees for restroom breaks. He needed more time to use the bathroom because of weight loss medication.

The side effects from treatment and medication can constitute a disability under the three-prong test utilized by the Court in Sulima:

(1) the treatment is required "in the prudent judgment of the medical profession,"

(2) the treatment is not just an "attractive option," and

(3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff's voluntary choices.

This test was first laid out by the Seventh Circuit in Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051 (7th Cir. 1997). It is now the test in the Third Circuit as well.

In this specific case, the court found that the plaintiff's medication was not "required in the prudent judgment of the medical profession" as evidenced by the fact that his doctor took him off the medication when learning of the side effects.

Previously, the Ninth, Seventh, and Sixth Circuits and (most recently) the Third Circuit (Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009)) have ruled on claims that an employer discriminated against (or tolerated harassment of) employees whose dress and behavior did not conform to a gender stereotype of feminity or masculinity.  All of these courts recognized such a claim under Title VII or parallel state laws. 

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

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. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

• directs EEOC to revise that portion of its regulations defining the term "substantially limits";
• expands the definition of "major life activities" by including two non-exhaustive lists:
• • the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
  • the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
• states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
• provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Definition of "Genetic Information"

Genetic information includes information about an individual's genetic tests and the genetic tests of an individual's family members, as well as information about any disease, disorder, or condition of an individual's family members (i.e. an individual's family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.

Discrimination Because of Genetic Information

The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn't tell the employer anything about someone's current ability to work.

Harassment Because of Genetic Information

Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee's genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee, such as a client or customer.

Retaliation Because of Genetic Information Discrimination

Under GINA, it is illegal to fire, demote, harass, or otherwise "retaliate" against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) will publish a proposed rule that would make several significant changes to the definition of the term "disability" under the Americans with Disabilities Act.

The proposal would revise the EEOC's regulations to conform with the ADA Amendments Act of 2008 (ADAAA), which makes it easier for individuals seeking protection under the ADA to establish that they have a disability. The proposed regulations include revised definitions of some key terms under the definition of "disability."

The EEOC will be publishing a Notice of Proposed Rulemaking this week and will be seeking public comment for 60 days.

In the NPRM, the EEOC will emphasize that:

• The definition of disability--an impairment that poses a substantial limitation in a major life activity--must be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA, and should not require extensive analysis;
• Major life activities include "major bodily functions";
• That mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and
• Impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would "substantially limit" major life activities when active.

The EEOC says the regulation also provides a more straightforward way of demonstrating a substantial limitation in the major life activity of working, and implements the ADAAA's new standard for determining whether someone is "regarded as" having a disability.

In addiiton, the proposed regulation identifies impairments that consistently will meet the definition of "disability:

• Deafness,
• Blindness,
• Intellectual disability
• Partially or completely missing limbs,
• Mobility impairments requiring use of a wheelchair (a mitigating measure),
• Autism,
• Cancer,
• Cerebral palsy,
• Diabetes,
• Epilepsy,
• HIV/AIDS,
• Multiple sclerosis,
• Muscular dystrophy,
• Major depression,
• Bipolar disorder,
• Post-traumatic stress disorder,
• Obsessive-compulsive disorder, and
• Schizophrenia.

Note: The list isn't an exhaustive one, so examples not listed in the proposed regulation could still consistently meet the definition of disability.

The PDA amends Title VII to prohibit an employer from treating pregnancy, childbirth, or related medical conditions any differently than it treats other temporary disabilities for purposes of employment, including hiring, firing, promotion, seniority, leaves of absence, benefits, pay increases, and other terms or conditions of employment.

The PDA does not require employers to treat pregnant employees in any special manner with respect to employment-related matters, to establish any new programs where none currently exists, or to provide pregnancy-related disability leave to any employees.

Coverage

Employers with at least 15 employees on each working day in each of 20 or more calendar weeks in the current or preceding calendar year are covered by the PDA.  In addition, an employer with a significant number of part-time employees might be covered, even though fewer than 15 individuals are scheduled to work on any one day.

Pregnancy Leave

An employer may not pre-establish the following.

• A mandatory beginning date for maternity leave (e.g., beginning of third trimester).  An employer cannot force an employee to take time off for pregnancy or a pregnancy-related condition, unless the condition prevents the employee from being able to do her job. 
  
  
• A length of time for maternity leave (e.g., at least four weeks after the birth).  A woman who has given birth must be allowed to return to her job when she can perform it if other employees who have been absent because of a temporary disability are allowed to return to work as soon as they are able.  If a doctor's statement is required to establish return dates for pregnant workers, a similar statement must be required for employees on disability leave for other reasons.

Reinstatement

Reinstatement rights of women on leave for pregnancy or pregnancy-related reasons are protected to the extent employees on other types of disability leave have such rights.  Such rights include return to the same or an equivalent position, seniority, and retirement benefits.

Benefits

Any benefits provided to employees with temporary, long-term, or permanent disabilities must also be available to employees disabled by pregnancy-related conditions.  Examples: paying disability benefits, health and life insurance premium payments, pension accrual, and profit-sharing plans.

If an employer offers different health plans for employees to choose from, each plan must cover pregnancy-related conditions and the deductible for such conditions must be the same.

If an employer's insured health plan denies coverage for pre-existing conditions, that plan may deny coverage for a pregnancy that exists at the time that the coverage became effective.  However, an employer is prohibited from applying any such limit differently for pregnancy-related conditions than for other medical conditions.

The PDA does not require that an employer health plan provide dependent or spousal coverage.  If a plan restricts coverage to employees, additional coverage is not required.

If the medical expenses of employees' spouses are covered under the employer's plan, pregnancy-related expenses of a male employee's wife must receive the same coverage.  However, a pregnant spouse does not necessarily have to receive the same coverage as a pregnant employee.