The latest from Work Matters
- Court issues first Texas ruling on the ADA Amendments Act of 2008 and EEOC final regulations and guidance
- To improve ethical decision-making, ask "What would mom do?"
| Court issues first Texas ruling on the ADA Amendments Act of 2008 and EEOC final regulations and guidance | Top |
| On May 13 in Norton v. Assisted Living Concepts Inc. , the U.S. District Court for the Eastern District of Texas in Sherman became the first court in Texas to interpret the Americans With Disabilities Act Amendments Act of 2008 and the EEOC final regulations and guidance that becomes effective May 24. The court's opinion denying the employer's motion for summary judgment on the disability claim is instructive. The court sketched it out: An employee was diagnosed with a cancerous tumor on his left kidney in April 2009. He took off for surgery, returned to work on July 1, 2009, and was fired on August 5, 2009. He sued for disability discrimination. The employer said he was fired for poor performance. The employer moved for partial summary judgment, arguing that he did not have a disability. The court rejected the argument. First, the court noted that Congress made clear in the ADAAA that it intended disability to have a broad and expansive meaning. Second, the court said that it did not matter if the plaintiff's cancer was in remission. Third — and here is the big difference between the old ADA and the amendments — there is a disability even if the only major life activity the condition substantially limits is something very narrow, such as normal cell growth. Previously, to qualify as a disability, a plaintiff had to show that the impairment made him unable to function on a daily basis. The plaintiff could have a terrible condition, but if he could get up in the morning, brush his teeth and drive to work, he was not disabled under the law. All of this is important, but here is something equally important: The plaintiff invoked a new federal rule of procedure, effective Dec. 1, 2010, providing that a litigant can ask the court, on the court's own initiative, to grant summary judgment on a legal issue. The plaintiff did just that, asking the court to hold, as a matter of law, that the renal cancer is a disability. No briefing, just a request. The court granted the request and asked the employer to respond as to why the court should not grant a summary judgment on the issue of disability. I believe this case is an indicator of more of what we will see in ADAAA cases. Get ready. | |
| To improve ethical decision-making, ask "What would mom do?" | Top |
| I hope you enjoyed Mother's Day. I spent most of the day finishing "Blind Spots: Why We Fail To Do What's Right And What To Do About It" from Max H. Bazerman and Ann E. Tenbrunsel. To help make ethical decisions, they advocate using "mom's litmus test." When confronted with an ethical dilemma, ask yourself whether you would feel comfortable telling your mom, "Guess what, mom? I lied about having another salary offer to get the job." According to the authors, imagining mom's reaction focuses people on the abstract principles that guide ethical decision-making and brings those principles to the forefront (WWMD: "What would mom do?"). And, once at the forefront of our minds, these abstract principles enhance our "should" self (the angel whispering in our ear to do the right thing) and put a damper on our "want" self (the devil whispering in our other ear to do the wrong thing). My mom taught me a lot. Here is a link to a column I wrote about her . | |
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