Pre-ADAAA Opinion Smells Bad for Worker

The Fifth Circuit Court of Appeals recently issued an opinion reminding us how difficult it was for workers to bring disability claims before the passage of the ADAAA (the Americans with Disability Act Amendment Act) of 2008.

In Tina Milton v. Texas Department of Criminal Justice, Ms. Milton alleged disability discrimination and violations of the Family and Medical Leave Act (FMLA).   Milton suffered from allergies, asthma and severe sensitivity to perfumed and scented products.   Evidently her employer allowed plug-ins and candles to be used in the workplace.   These scents aggravated Milton’s respiratory problems, causing coughing, chest tightness, nausea and other symptoms.    Milton made a simple accommodation request – “No plug in or candles. Strong [orders].”         Management rejected the request.    Milton later took FMLA leave and was subsequently terminated for allegedly failing to provide required FMLA documentation to her employer while on medical leave.

In this pre-ADAAA case (Milton was terminated in April 2007 and the ADAAA became effective January 1, 2009), the trial court analyzed whether Milton’s impairment was a “disability” subject to protection and accommodation under the ADA.    The trial court decided it was not, rationalizing that Milton’s “sensitivities” were limited to time and place, and could be avoided outside the workplace.  Really?   Aren’t workplace accommodations meant to address issues in the workplace?   Milton was required to be confined in a workplace for 8 hours per day, five days a week.  Who cares if she could avoid plug-ins and candles away from work?   I guess the trial judge did, as the case was dismissed by summary judgment and affirmed by the Fifth Circuit Court of Appeals.

The ADAAA has since addressed the narrow definition of “disability” used in pre-ADAAA cases such as Milton.     Episodic impairments like allergies, epilepsy, diabetes, cancer or PTSD – which may not have constant and continuous symptoms, are now examined when in their active state, not when in remission.   Courts are now also prohibited from considering mitigating measures used by workers to control their impairment — such as medication.  In other words, the fact that Milton avoided plug-ins and candles away from work, or only suffered her respiratory problems at limited times and places (e.g. when exposed to strong scents on the job), would not be relevant considerations in determining whether she had a disability.

“It’s a formidable scent… It stings the nostrils. In a good way.”

–       Ron Burgundy from the movie, “Anchorman”.

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.