The ADA Amendments Act of 2008 (ADAAA) will place new federal obligations on employers with respect to their dealings with disabled workers.  However, with respect to California employers, the effect of these changes will be much less significant inasmuch as the California Fair Employment and Housing Act is already more protective of employees’ rights.  Nevertheless, employers should discuss with counsel how the ADAAA may alter their obligations to employees.

Employer Has Duty to Accommodate Employees with Obvious Disabilities.

The Federal 2^nd Circuit Court of Appeals has held that, while generally under the ADA an employer is not liable for failing to accommodate an employee’s disability where the employee did not request an accommodation, an exception exists where the employee is obviously disabled.  In the case of Brady v. Wal-Mart Stores, the court held that Wal-Mart violated the ADA when it failed to accommodate Brady, who had cerebral palsy, although he did not request an accommodation.  The court reasoned that Brady’s disability was obvious in that Wal-Mart knew or should have known that Brady was disabled since he walked slowly and with a limp, spoke slowly and quietly, had weaker vision and a poor sense of direction, among other things.

Fired Disabled Bus Driver Awarded $2.2 Million.

A Los Angeles jury recently awarded a terminated MTA bus driver $2,247,137 for past and future damages.  Plaintiff became disabled while employed as bus driver.  He informed the MTA that he was expected to be released to return to work without restrictions on a date certain.  However, the MTA terminated his employment just days before he was scheduled to return.  The jury returned a verdict for Plaintiff and believed Plaintiff’s experts who testified that he was able to perform the essential duties of his job, or some available alternative job.  The jury determined that plaintiff’s physical condition was a motivating factor in the decision to terminate, that the MTA failed to engage in a good faith interactive process and that it failed to provide reasonable accommodation for his physical condition.  

A Federal court in California held that a school district violated a high school teacher’s right to free speech when it forced him to remove banners from his wall with messages that could be construed as containing religious content.  The banners contained phrases such as “In God We Trust” and “God Shed His Grace On Thee.”  Because the district had a policy permitting its teachers to express ideas and concepts on their classroom walls, the Court classified the walls as “limited public forums.”  The Court noted that where the government has designated an area of public property specifically for the expression of ideas, it “may not exclude speech where its distinction is not reasonable in light of the purposes served by the forum, nor may the government discriminate against speech on the basis of its viewpoint.”  Johnson v. Poway Unified School District.      

Thus, a school district should be mindful that when it has dedicated space for the expression of ideas, the regulation of that speech must be reasonable and unrelated to the content of the speech.