PROFESSION AND SOCIETY
Registered Nurses With Disabilities: Legal Rights and Responsibilities Leslie Neal-Boylan, PhD, APRN, CRRN, FAAN1 & Michelle D. Miller, JD, MPH, RN2 1 Tau Rho, Dean, College of Nursing, University of Wisconsin—Oshkosh, Oshkosh, WI, USA 2 Assistant Professor of Legal Studies, Quinnipiac University, Hamden, CT, USA
Key words Nurses with disabilities, legal, discrimination, rights Correspondence Dr. Leslie Neal-Boylan, University of Wisconsin Oshkosh, College of Nursing, 800 Algoma Blvd., Oshkosh, WI 54901 8660. E-mail: [email protected] Accepted: December 23, 2014 doi: 10.1111/jnu.12128
Abstract Purpose: The purpose of this legal case review and analysis was to determine what kinds of cases involving nurses with disabilities are typically brought to attorneys, which cases tend to be successful, and how and when a nurse with a disability should pursue legal action. Design: The review used the standard legal case analysis method to analyze legal cases that have been brought by registered nurses (RNs) with physical or sensory disabilities from 1995 to 2013. The cases span the period following the enactment of the Americans With Disabilities Act (ADA) of 1990 through the ADA Amendments Act (ADAAA) of 2008. Methods: A nurse attorney reviewed the background material to find every case involving an RN with a disability, excluding those with mental health disabilities or substance abuse issues. Case analysis was conducted using standard legal case analysis procedures. Fifty-six cases were analyzed. Findings: The cases were categorized into five types of legal claims: (a) disability discrimination (84%); (b) failure to accommodate (46%); (c) retaliation (12.5%); (d) association (3.6%); and (e) hostile work environment (7%). The cases were largely unsuccessful, particularly those brought under the ADA instead of the ADAAA. Conclusions: The case analysis revealed that several cases brought by RNs with disabilities using the ADA might have been successful under the ADAAA. In addition, the case analysis has provided vital information for administrators, leaders, and clinical nurses regarding when a case is appropriate for legal action. These findings from this review will help nurses recognize when they are being treated in a discriminatory way in the workplace, what their legal rights and responsibilities are, and at what point they should pursue legal action. Clinical Relevance: This review has relevance to all RNs working in clinical and academic settings who may have a congenital or acquired physical or sensory disability.
Research to date on the work life experiences of registered nurses (RN) with physical or sensory disabilities has demonstrated that these nurses tend to feel discriminated against by supervisors and colleagues. Many nurses with disabilities leave the profession because they worry they will jeopardize patient safety or because they feel pushed out (Neal-Boylan, Hopkins, Skeete, Hartmann, Iezzoni, & Nunez-Smith 2012; Neal-Boylan, 2014; Neal-Boylan, 248
2012). Common themes in the research have included the tendency to try to hide the disability if possible, the feeling that she or he is being treated differently from others, difficulty meeting the expectations of others, concern for patient safety, the decision to go back to school and sometimes change career goals, and compensation for what the nurse cannot do in the usual way. Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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Interestingly, literature regarding nurses with physical disabilities in countries outside of the United States is scant. Camerino et al. (2001) studied 1,159 Italian nurses regarding musculoskeletal symptoms related to the work environment and nursing tasks. They found that female nurses were more likely to suffer from musculoskeletal disorders related to physical exertion and job seniority than were male nurses. Nurses who reported being disabled by their musculoskeletal disorders perceived less social support rather than increased workload or intensity. This was supported in the studies cited in the preceding paragraph by nurses with disabilities who frequently described supportive colleagues and administrators as making a difference in their work life experience. In addition, research data regarding nurses in the United States have revealed a lack of awareness among nurses with disabilities regarding their legal rights and the unlikelihood of pursuing legal recourse in the presence of a good legal case. It seemed logical, therefore, to analyze legal cases involving RNs with disabilities since the Americans With Disabilities Act (ADA) of 1990 was enacted. The purposes of this case law review then were as follows: (a) to determine what kinds of cases involving RNs with physical or sensory disabilities typically pursue legal action, which are successful, and the factors contributing to their success, and (b) to discuss how recent changes to the ADA made by the ADA Amendments Act (ADAAA) of 2008 might impact similar cases in the future. The intention is to support nurses with disabilities to recognize when they are being treated in a discriminatory way in the workplace, what their legal rights and responsibilities are, and at what point they should pursue legal action. This analysis of legal cases sought to answer the following questions: 1. What is typical of claims successfully brought and those that are not successful? 2. Is legal action effective against job discrimination for the nurse with a physical and/or sensory disability? 3. How does the ADAAA impact the potential success of legal action for RNs with physical and/or sensory disabilities?
Background According to the 2012 Disability Status Report (Erickson, Lee, & von Schrader, 2014), 10.4% of individuals between the ages of 21 and 64 years and 25% of individuals between the ages of 65 and 74 years have a disability. The precise number of nurses who have disabilities is unknown; however, working RNs fall into both these age groups. In 2012, the Centers for Disease Control and Prevention (CDC) estimated that 74 million Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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people in the United States had disabilities (CDC, 2014). According to the CDC, out of the 74 million, approximately 17 million had disabilities related to mobility, 38 million related to hearing, and 21 million related to vision. Approximately 34% of working age adults with disabilities were employed in 2012 (Erickson et al., 2014). The nursing workforce is continuing to age (U.S. Department of Health and Human Services Health Resources Services Administration, 2013), with a subsequent increase in the incidence of chronic illness and disability (Bjelland et al., 2010). It is important to all nurses that just and legal consideration be given nurses with disabilities because it is not inconceivable that many nurses will eventually find themselves with some level of disability and will want to continue to work as nurses. In addition, people with disabilities are a diverse group, and nurses should be aware of the issues surrounding disability. The ADA (1990) was enacted to combat discrimination against disabled Americans by various actors: Title I applies to employers, Title II applies to state instrumentalities, and Title III covers public accommodations. As it applies to employment, the ADA specifically prohibits employers with 15 or more employees from taking an adverse employment action against a qualified individual with a disability because of that employee’s disability. A nurse bringing an action against her or his employer for a violation of the ADA must show that (a) she or he has a disability as defined by the law; (b) she or he is “otherwise qualified”; and (c) she or he experienced an adverse employment action because of the disability (Deane v. Pocono Medical Center, 1998). A person is disabled under the statutes if she or he has a physical or mental impairment that substantially limits one or more major life activities, a record exists of such impairment, or she or he is regarded as having an impairment by her or his employer (ADA, 1990). Thus, the first hurdle for a prospective plaintiff is proving that she or he is disabled within the meaning of the law. Beginning in 1999, the Supreme Court greatly restricted the definition of “disability” in a trilogy of cases (Albertson’s, Inc. v. Kirkingburg, 1999 is one such case). One way in which the Court accomplished this was to hold that the ameliorating effect of treatment must be considered when deciding whether a person is disabled (Sutton v. United Airlines, Inc., 1999). So, for example, if a nurse was able to control her or his diabetes by taking insulin, she or he did not have a disability. Congress expressly rejected the Court’s narrow interpretation of the ADA when it amended the law by passing the ADAAA (2008). In addition, the ADAAA also shifts the focus away from whether a nurse has a disability and making accommodations for 249
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the nurse to ensuring equal employment opportunities (www.govtrack.us/congress/bills/110/s3406/text). Interestingly, Congress did not change the definition of disability in the law. Instead, they added rules of construction, which had the effect of enabling more people to make a showing of being disabled under the law. First, Congress mandated that the ameliorating effect of treatment not be taken into consideration when determining if a person has a disability. Congress also explained that even if an impairment is episodic or may at times go into remission, it can still qualify as a disability if it would substantially limit at least one major life activity when it is active (ADAAA, 2008). Moreover, Congress made it clear that the courts had too narrowly construed “substantially limit” and “major life activity.” The U.S. Supreme Court had found that in order to substantially limit a major life function, the impairment must be one that prevents or severely restricts an activity of central importance to most people’s lives on a daily basis (Toyota Motor Mfg., Kentucky, Inc. v. Williams, 2002). Congress stated in the ADAAA that such a restrictive reading of these two concepts must be abandoned in favor of a broad reading that conforms to the purposes of the law (Niccolini & Basu, 2009). Congress also expressly expanded the concept of major life activity to include “major bodily functions,” such as normal cell growth, digestion, and reproduction, as well as providing a nonexhaustive list that includes activities such as performing manual tasks, seeing, hearing, eating, walking, and concentrating (Drohan, 2011). Another crucial change made to the ADA relates to the “regarded as” showing of disability. For purposes of the law, an employee can show that she or he is disabled if her or his employer regards her or him as disabled (ADA, 1990). The courts had interpreted this to require the employee to prove that her or his employer regarded her or him as having an impairment that substantially limits one or more major life activities. In the ADAAA, Congress clarified that a person can make the requisite showing under the “regarded as” test as long as the employee can prove that the employer believed her or him to have an impairment that was not “transitory and minor,” that is, 6 months or less in duration (ADAAA, 2008). Taken together, the changes made to the ADA in 2008 demonstrate that Congress meant for the focus of the law to be on the question of whether a disabled person had been discriminated against, not on whether a person is disabled in the first place (Johnson, 2012). The ADA requires that before bringing a legal action against an employer, an employee must first exhaust her or his administrative remedies. This means that the employee must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), 250
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the federal agency charged with administering Title I of the ADA. A charge of discrimination also serves to provide an employer with reasonable notice of the claim(s) the employee is bringing against them (Sydnor v. Fairfax County, VA, 2012). The employee must name all of the persons against whom the charge is being made or potentially lose the opportunity to name them as defendants in a later court action (Sydnor v. Fairfax County, VA, 2012). If an employee decides to pursue a civil action in court, there are several types of claims that an employee plaintiff can bring against an employer under the ADA. The most common involves an accusation that the employee suffered an adverse employment action because of her or his disability. An employee can also bring a claim that an employer failed to reasonably accommodate the employee. Further, an employee can claim that an employer retaliated against her or him because the employee participated in an activity protected under the ADA. The protected activity in these cases is usually the filing of a disability charge with the EEOC. In some federal circuits, the employee may also make the claim that the employer created a hostile working environment for the employee because of the disability. Finally, an employee can claim that an employer subjected them to an adverse employment action because of the employee’s relationship or association with disabled persons. The employee plaintiff may assert one or more of these claims in her or his complaint filed in court.
Case Analysis Method Although this was not a research study, this case analysis was reviewed and approved by the university institutional review board. A nurse attorney read the statute (the ADA as amended by the ADAAA) and reviewed background material that applied to the law (Table 1). This background material included law review articles about the ADA and the ADAAA as applied to employees. She then gathered every case involving an RN or advanced practice registered nurse (APRN) who brought a disability employment discrimination action in federal court under the ADA from 1995 to 2013. After a law is enacted, it typically takes several years to reach a decision on a case. The first case to meet the sample criteria was published in 1995 (not every judge publishes her or his cases, and it is only possible to access a case if a judge has it published). Similarly, the ADAAA was passed in 2008 and became effective in 2009. Our case analysis includes only a few post-Amendment cases because very few have yet moved through the lengthy legal process. The analysis ended with 2013 because in that year the most recent case that met the sample criteria was published. While cases were brought in different states, state law did not Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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Table 1. Case Analysis Process
Table 2. Procedure for Filing an Americans With Disabilities Act Case
1. Read the statute (law). 2. Review background material: law review articles about the ADA and the ADAAA as applied to employees. 3. Pull every case involving an RN or APRN who brought a disability employment discrimination action under the ADA from 1995 to 2014. 4. Read all of these cases. Analyze the cases for the following: A. Which court heard the case (federal district or circuit court)? The circuit court is the appellate court. B. Examine the "procedural posture" of the case, i.e., at what step is the case in the trial process (see Table 2)? C. Look at the facts of the case that were agreed on by both parties. D. Look at the ADA claims section of the case: What part of the ADA is the plaintiff (nurse with disability) claiming was violated? E. Review the definition of disability according to the ADA to see if the plaintiff fits the description. 1. If the plaintiff is disabled by law, was otherwise qualified for the position, and suffered an adverse employment action, then the case proceeds. 2. If the plaintiff cannot provide sufficient evidence of these three facts, that is the end of the case. F. Look at what, specifically, the plaintiff is claiming. G. Look at the defendant’s "burden of production." Did the defendant (employer) clearly show that their action against the plaintiff was not because of the disability? H. Look at the employee’s case: Does she or he clearly show that the defendant’s reason for their action was just a pretext and that the actual reason for the adverse employment action is disability discrimination? I. Review the court’s opinion: In a motion for summary judgment, if the judge agrees that the employee adduced sufficient evidence that a reasonable jury could find for the plaintiff, then the case goes to trial. J. Look at the final judgment of the case. K. Compare and assess all cases for commonality. Are courts handling the cases in the same way?
Nurse with a disability decides to pursue legal action. The nurse must file a charge with the EEOC. The EEOC issues a "right to sue" letter. The nurse hires or does not hire a lawyer. The nurse files a complaint in federal district court (or the EEOC files on the plaintiff’s behalf, if the agency decides to pursue the case). The defendant is required to answer the complaint. Discovery: The attorneys for the plaintiff and defendant take depositions and gather materials and research. Usually at some point during discovery, a motion for summary judgment is filed by the defendant arguing that there is "no genuine issue of material fact" and, therefore, the defendant should have judgment entered into their favor as a matter of law. The judge determines if there are any materially factual issues in dispute between the two parties. If yes, then the judge denies the motion and the case goes to trial. If no, then the judge grants the motion and the case is finished. If the nurse loses on summary judgment, she or he can then appeal to the circuit court, which will then determine if the case goes to trial or the court affirms the summary judgment.
Note. ADA, Americans With Disabilities Act of 1990; ADAAA, ADA Amendments Act of 2008; APRN, advanced practice registered nurse; RN, registered nurse. From Currier, K. A., & Eimermann, T. E. (2013). The study of law (3rd ed.). New York: Wolters Kluwer Law & Business.
Note. EEOC, Equal Employment Opportunity Commission.
health, cognitive, or substance abuse impairments were not included. All of the cases dated from 1995 to 2013. Forty-one (71%) of the cases were decided based on the original ADA (1990) and 15 (27%) were decided based on the ADAAA (2008). Five of the plaintiffs were men and 51 were women. Eleven (20%) of the cases included injuries that occurred in the workplace (back injuries in nine cases and wrist injuries in two cases). In addition, one case related to a nurse who had an allergy to a cleaning agent and one case involved a nurse with an allergy to latex.
Results Disability Discrimination Claims
play a role in these cases since the ADA and its Amendment constitute federal law. A nurse attorney conducted the case review and analyses. Table 1 lists the process the nurse attorney used to review and analyze the cases and is the standard method by which attorneys review and analyze cases (Currier & Eimermann, 2013). Table 2 includes the procedure for filing a case if a nurse believes she or he has been discriminated against under the ADA or the ADAAA.
Sample A total of 56 cases were reviewed. Only cases dealing with an RN or APRN with a physical or sensory disability (Table 3) were included. Cases of nurses with mental Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
Of the 56 cases analyzed, 47 (84%) contained a claim that the employee plaintiff experienced discrimination (i.e., suffered an adverse employment action) because of a disability. The ADA provides in pertinent part, “[n]o covered entity shall discriminate against a qualified individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment” (ADA, 1990). In order to prevail on a claim that the employer violated the ADA, the plaintiff employee must, as an initial matter, be able to show that (a) she or he is disabled as defined by the ADA; (b) she or he is qualified (i.e., that with or without reasonable accommodation, she or he is able to perform the essential functions of the job); and (c) the employer 251
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Table 3. Demographics of the Sample, 1995–2013 (N = 56) Gender
Disability
Male = 5
Work-related conditions Back injury = 9 Wrist injury = 2 Allergies = 2
Female = 51
Non-work-related conditions Knee issues = 4 Breast cancer = 3 Multiple sclerosis = 3 Diabetes = 2 Seizure disorder = 2 Back injury = 2 Mobility issues (nonspecific) = 2 Fibromyalgia = 2 Asthma = 2 Insomnia = 2 Disabled family members = 2 Gastrointestinal problems = 1 Shoulder injury = 1 Vitamin B deficiency = 1 Foot surgery = 1 Symptomatic atrial fibrillation = 1 Kidney surgery = 1 Central serous retinopathy = 1 Myofascial pain syndrome = 1 Rheumatoid arthritis = 1 Cytomegalovirus = 1 Hepatitis C = 1 Cerebrovascular accident = 1 Pregnancy complications = 1 Infertility = 1 Hearing impairment = 1 Retaliation for complaining about treatment of a disabled patient = 1 Undisclosed = 1
Pre- or Post-ADAAA
Employer
Location
Pre = 41
Hospital = 34 County = 5
1st Circ. = 2 MA = 2 NH = 2 PR = 2 ME = 1
Post = 13
SNF = 4 Clinic = 3
2nd Circ. = 1 NY = 3
Health plan = 3
3rd Circ. = 1
Company = 2
4th Circ. = 1 MD = 1 SC = 1 VA = 1
State = 1 HMO = 1
TX = 3 HHA = 1 Veterans Administration = 1 Nursing school = 1
6th Circ. = 4 OH = 3 KY = 1 7th Circ. = 6 IL = 2 IN = 1 8th Circ. = 4 MO = 1 IA = 1 9th Circ. = 2 CA = 1 CO = 2 KS = 1 UT = 1 11th Circ. = 1 GA = 2 DC = 2
Note. CA, California; Circ., circuit court; CO, Colorado; DC, District of Columbia; GA, Georgia; HHA, home health agency; HMO, health maintenance organization; IA, Iowa; IL, Illinois; IN, Indiana; KS, Kansas; KY, Kentucky; MA, Massachusetts; MD, Maryland; ME, Maine; MO, Missouri; NH, New Hampshire; NY, New York; OH, Ohio; PR, Puerto Rico; SC, South Carolina; SNF, skilled nursing facility; TX, Texas; UT, Utah; VA, Virginia.
subjected her or him to an adverse employment action because of her or his disability (Mowat-Chesney v. Children’s Hospital, 1996). Under the ADA, an individual may be disabled in one of three ways. A person is disabled if she or he has “a physical or mental impairment that substantially limits one or more major life activities of such individual”; a “record of” such impairment (Gordon v. MCG Health, Inc., 2003); or “being regarded as having such impairment . . . whether or not the impairment limits or is perceived to limit a major life activity” (ADA, 1990). Under 252
the first two definitions, the employee must have made the employer aware that she or he had a disability (Clapp v. Northern Cumberland Memorial Hospital, 1997). However, there appear to be very few cases brought under the “record of” option. Indeed, this is not surprising; if you cannot prove that you have a disability, then you cannot prove that you have a record of a disability. Before the ADA was amended in 2008, it was difficult for an employee to prove that she or he was disabled as defined by the law. The U.S. Supreme Court had held that in order to substantially limit a major life activity, the Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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impairment must be one that prevents or severely restricts an activity of central importance to most people’s lives on a daily basis (Toyota Motor Mfg., Kentucky, Inc. v. Williams, 2002). So, for example, courts found that intermittent multiple sclerosis symptoms do not constitute a disability (Sorensen v. University of Utah Hospital, 1999) and that breast cancer in remission is not a disability (Pimental v. Dartmouth-Hitchcock Clinic, 2002). With the ADAAA, Congress clarified that an employee does not have to prove that the employer perceived the impairment as substantially limiting a major life activity in order to prove that an employer regards the employee as disabled (Lopez-Cruz v. Instituto de Gastroenterologia de Puerto Rico, 2013). Moreover, it appears that employers may be less apt now to dispute the presence of a disability (Wynes v. Kaiser Permanente Hospitals, 2013). Such a trend is to be expected since Congress stated in the ADAAA that the U.S. Supreme Court’s restrictive reading of the two concepts “substantially limits” and “major life activity” must be abandoned in favor of a broad reading that conforms to the purposes of the law (Niccolini & Basu, 2009). One thing that did not change under the ADAAA is the showing plaintiffs need to make to establish that their impairment substantially limits the major life activity of “working” (Azzam v. Baptist Healthcare Affiliates, Inc., 2012). Courts have held since the beginning that in order to prove that their ability to work is substantially limited, plaintiffs must demonstrate that they are restricted in performing either a class of jobs or a broad range of jobs (Squibb v. Memorial Medical Center, 2007). This standard is extremely difficult for a nurse to meet since nursing does not constitute a class of jobs (Conrad v. Board of Johnson County Commissioners, 2002) or a broad range of jobs in various classes. The court views nursing as one job, as opposed to law enforcement, which it views as a class of jobs. While nurses know that one can be a nurse and perform a variety of different roles, the court does not recognize this. Thus, if the employer offers the employee a different nursing position as a reasonable accommodation, it becomes impossible for the employee to prove that her or his impairment substantially limits the major life activity of working (Bryant v. Caritas Norwood Hospital, 2004). After the plaintiff has shown that she or he is disabled under the law, she or he must prove that she or he is “otherwise qualified” for the job (i.e., that she or he can perform the essential job functions of the position with or without reasonable accommodation; ADA, 1990). In determining whether a function is essential, courts will consider (a) the employer’s judgment; (b) a written job description; (c) the amount of time spent on that particular function; (d) the consequences of not requiring Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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that the employee be able to perform the function; (e) the terms of any collective bargaining agreement; (f) the work experience of those who have held the position previously; and (g) the work experience of those who currently hold similar jobs (Guneratne v. St. Mary’s Hospital, 1996). However, in practice, courts seem often to defer to healthcare employers (usually physicians) as to what constitutes an essential job function. Thus, for example, courts almost always agree with the employer that lifting (Bryant v. Caritas Norwood Hospital, 2004) and shift work (Samper v. Providence St. Vincent Medical Center, 2012) are essential to a position filled by an RN or an APRN. Similarly, courts have often held that no reasonable accommodation exists that would allow a nurse to perform these essential job functions (Bryant v. Caritas Norwood Hospital, 2004; Guneratne v. St. Mary’s Hospital, 1996). Beyond asserting that an employee could not perform the essential functions of a job, an employer may also defend their actions based on the argument that the employee was not otherwise qualified because she or he presented a “direct threat” (ADA, 1990) to the safety of patients that could be eliminated or reduced by a reasonable accommodation. This defense must be based on an individualized assessment of the employee’s current medical condition, taking into consideration (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the harm will occur; and (d) the imminence of the potential harm (Wells v. Cincinnati Children’s Hospital Medical Center, 2012). The plaintiff must next demonstrate that the employer subjected her or him to an adverse employment action. An adverse employment action is any that carries a reduction in salary, benefits, seniority, or other advantages when compared to the position held by the employee at the time of the discrimination (Norville v. Staten Island University Hospital, 1999). Thus, minor changes that are merely inconvenient do not rise to the level of an adverse employment action (Donnelly v. St. John’s Mercy Medical Center, 2009). However, such a reassignment may be considered adverse if it harmed the plaintiff’s future job prospects or prevented her or him from using her or his professional nursing skills (e.g., reassigning an operating room nurse to the surgical supply room; Brown v. Cox, 2002). Finally, the defendant hospital must then offer a legitimate, nondiscriminatory reason for having taken the adverse employment action. It is then up to the employee to prove that the proffered reason is a pretext (i.e., that the employer was actually motivated by discriminatory animus; Johnson-Parks v. D.C. Chartered Health Plan, 2013). The employee need not prove that discrimination was the sole cause for the action. However, the employee 253
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must show by a preponderance of the evidence that it was more than simply a factor in the decision (Lewis v. Humboldt Acquisition Corporation, Inc., 2012).
Failure to Accommodate Claims An employee may also assert a claim under the ADA that the employer failed to provide a reasonable accommodation as required by the law (ADA, 1990). Out of the 56 cases analyzed, 26 (46%) of them contained a failure to accommodate claim. It must be noted that the onus is on the employee to request a reasonable accommodation of the employer, after which the two parties are required to engage in an interactive process to fashion a suitable accommodation (Donnelly v. St. John’s Mercy Medical Center, 2009). An employee is not entitled to the particular accommodation requested, just a reasonable one (Jones v. Family Health Center, Inc., 2003). Thus, for example, a nurse who was hard of hearing was not entitled to be reassigned from the dialysis unit to orthopedics as he had requested when the hospital offered him additional training in the dialysis unit (Schmidt v. Methodist Hospital of Indiana, Inc., 1996). Indeed, once an employer offers a reasonable accommodation, the employee must either show why it was not reasonable or accept the offer (Hedrick v. Western Reserve Care System, 2004). An employer need not accept an accommodation request that would cause an undue hardship. Thus, for example, it was not required for an occupational health center to provide supervision for a nurse who had suffered a stroke (Webster v. Methodist Occupational Health Centers, Inc., 1998). Likewise, a hospital was not obliged to accept the plaintiff’s proposed job-sharing arrangement to accommodate her lifting restriction (Phelps v. Optima Health, Inc., 2001). Neither does an indefinite leave of absence comprise a reasonable accommodation. In the case of a university, courts have held that the school is not required to eliminate or diminish course requirements necessary for the degree pursued (Wisneski v. Nassau Care Corp., 2003).
Retaliation Claims The ADA also makes it unlawful to retaliate against a person for participating in activities protected by the statute (ADA, 1990), such as filing a charge with the EEOC. Seven (12.5%) of the 56 cases considered included a retaliation claim. A plaintiff bringing such a claim must prove that (a) she or he participated in an activity protected by the ADA, (b) she or he suffered an adverse employment action, and (c) the adverse employment action was a result of such participation (Squibb v. Memorial Medical Center, 2007). As a prerequisite, the employer 254
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must have had reason to know about the protected activity (Hamner v. Community Hospitals of Indiana, Inc., 2000). Moreover, the retaliation must have taken a form severe enough to have a harmful impact on her or his employment (Donnelly v. St. John’s Mercy Medical Center, 2009). Although it can be difficult to prove that the alleged retaliatory action was caused by the plaintiff’s participation in a protected activity (Wells v. Cincinnati Children’s Hospital Medical Center, 2012), a jury may infer causation if the adverse employment action took place directly after the protected activity (Sherrer v. Hamilton County Board of Health, 2010).
Hostile Work Environment Claims Some federal circuit courts have also allowed plaintiffs to proceed with harassment or hostile work environment claims under the ADA. To prevail, a plaintiff must show that (a) she or he is a member of the class of persons protected by the statute; (b) she or he was subjected to harassment; (c) the harassment was due to her or his membership in the protected class; and (d) the harassment was severe enough to create a working environment so hostile that it affected the conditions of her or his employment (Sherrer v. Hamilton County Board of Health, 2010). Only 4 (7%) out of the 56 cases analyzed for this study included a hostile work environment claim based on the ADA.
Association Claims Finally, the ADA prohibits an employer from taking an adverse employment action against an employee because the employee has a known relationship or association with a person the employer knows to have a disability (ADA, 1990). This is a cause of action seldom brought, as evidenced by the fact that only 2 (3.6%) cases of the 56 analyzed contained an association claim. In one of these two cases, the plaintiff claimed that she had not been hired as a nurse because of her two disabled sons (Fox v. The Gates Corporation, 1998). The other case involved a nurse whose husband was ill with prostate cancer. After making several statements about the high cost of her husband’s medical bills, the nurse’s supervisors fired her without explanation. On appeal, the Seventh Circuit Court held that the plaintiff had provided adequate evidence in the record for the question of whether she had been fired due to her relationship with a disabled person to be decided by a jury (Dewitt v. Proctor Hospital, 2008).
Discussion This legal case analysis confirmed research findings that nurses with disabilities undergo discrimination Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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(Neal-Boylan, 2012, 2014; Neal-Boylan et al., 2012). The case review sought to determine which types of claims tend to be successful and which do not. To answer this question, it is important to understand that the legal process often takes years to result in a final decision. Thus, most of the cases discussed in this article have reached the level of “summary judgment.” This means that one of the parties, usually the defendant, has moved the court for a judgment in their favor based on a showing that the opposing party has not adduced sufficient evidence to win at trial. Prior to the ADAAA, defendant employers often moved the court for summary judgment, arguing that the plaintiff nurse could not prove she or he was disabled under the law. Therefore, we define a case as successful where the plaintiff has survived summary judgment, that is, has clearly demonstrated that the plaintiff (the nurse) has a disability. Proving this was very difficult prior to the ADAAA. The Amendment of 2008 has made proving a disability significantly easier than it had been. Conversely, those cases that have not been successful thus far are those that have not sufficiently demonstrated that the nurse has a disability under the law. Once these cases have reached the final decision phase, the matter of “essential job function” may be at issue. It will be important for nurses to be aware of how essential job functions are viewed under the amended law. The second question asked whether legal action is effective against job discrimination. This study revealed that the answer to this question largely depends on the definition of “effective,” which will vary from nurse to nurse depending on the goal of the lawsuit. For example, for some nurses, keeping one’s job, reinstatement, or transfer to a new position within an organization may be considered sufficiently effective. For others, a monetary award is the goal in bringing the claim. However, for the profession as a whole, deterrence is the larger goal. Legal claims against acts of discrimination will hopefully deter administrators and others from discriminating against nurses with disabilities. The final decisions on these cases are likely to have overarching impact. Increased awareness of the ADAAA should help prevent discrimination, and the publication of this study is one method by which to increase awareness. The final question pertains to the impact of the ADAAA on legal action brought by nurses with disabilities. Based on the summary judgment of these cases, the answer is a resounding yes. Cases filed by nurses with disabilities are likely to be more successful than they would have been under the original law.
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Implications Nurses must become more knowledgeable about their rights and responsibilities related to their disability and chronic conditions under the ADAAA. In addition, the profession should develop resources that support nurses in accessing and consulting with attorneys who are qualified in the area of disability discrimination under the ADAAA. National nursing organizations should consider offering legal consultation or listing resources nurses can access for further information, including lists of attorneys who specialize in disability law. The attorney can ensure that all that should be done is done so the nurse can remain in the job or advise that the nurse seek a job elsewhere within the profession. In most situations, nurses with disabilities do not need to leave the profession because of their disability or chronic condition. The study revealed that in most of the cases, there was deferment of judgment to employers as the “recognized experts” in healthcare issues. In most of the litigation involving nurses with disabilities, physicians determined whether the nurse was disabled and able to practice nursing. As cases brought by nurses with disabilities become more prevalent, the profession will have the opportunity to convince the courts that a nurse, not a physician, should be the one to judge the impact. The profession also has the opportunity to clarify that nursing, like law enforcement, offers a variety of jobs that qualify as nursing and that nursing should not be considered a job only but a class of jobs under the law. The ADAAA changed how employers must view disability. It is imperative that nurse leaders, executives, and administrators recognize that a clear understanding of the law is the only way to ensure against inadvertent discrimination. Increased awareness by nurses and nurse leaders is key to recognizing that nurses with physical disabilities need not leave the profession. Moreover, if concerted efforts according to the law are not made to retain nurses with disabilities within their organizations, administrators could face stiff penalties.
Acknowledgments The authors would like to acknowledge the assistance of Dr. Beth Marks and Claryn Spies for their assistance with the manuscript. The authors are grateful to the Quinnipiac University School of Nursing for providing funding for this work.
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r r r r r r r
The Americans with Disabilities Act: www.ADA. gov/ Disability.gov is a federal government website that provides information on disability programs and services. The National Organization of Nurses with Disabilities: http://nond.org/ Social Security Administration: www.ssa.gov/ disability/ U.S. Department of Housing and Urban Development: www.portal.hud.gov/ U.S. Department of Labor, Office of Disability Employment Policy: http://www.dol.gov/odep/ U.S. Equal Employment Opportunity Commission: www.eeoc.gov/
References ADA Amendments Act (ADAAA) of 2008, Pub. L. No. 110–325, 122 Stat. 3553 (2008). Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). Americans With Disabilites Act (ADA) of 1990, 42 U.S.C.A. § 12101 et seq. (West 2014). Azzam v. Baptist Healthcare Affiliates, Inc., 855 F.Supp.2d 653–661 (W.D. Ky. 2012). ` Bjelland, M. J., Bruyere, S. M., von Schrader, S., Houtenville, A. J., Ruiz-Quantanilla, A., & Webber, D. A. (2010). Age and disability employment discrimination: Occupational rehabilitation implications. Journal of Occupational Rehabilitation, 20(4), 456–471. Brown v. Cox, 286 F.3d 1040–1046 (8th Cir. 2002). Bryant v. Caritas Norwood Hospital, 345 F. Supp. 2d 155–166 (D. Mass. 2004). Camerino, D., Cesana, G. C., Molteni, G., De Vito, G., Evaristi, C., & Latocca, R. (2001). Job strain and musculoskeletal disorders of Italian nurses. Occupational Ergonomics, 2, 215–223. Centers for Disease Control and Prevention. (2014). FastStats: Disability and functioning. Retrieved from www.cdc.gov/ nchs/fastats/disabilit,/.htm Clapp v. Northern Cumberland Memorial Hospital, 964 F. Supp. 503–505 (D. Me. 1997). Conrad v. Board of Johnson County Commissioners, 237 F. Supp. 2d 1204–1242 (D. Kan. 2002). Currier, K. A., & Eimermann, T. E. (2013). The study of law (3rd ed.). New York, NY: Wolters Kluwer Law & Business. Deane v. Pocono Medical Center, 142 F.3d 138 (3rd Cir. 1998).
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Dewitt v. Proctor Hospital, 517 F.3d 944 948 (7th Cir. 2008). Donnelly v. St. John’s Mercy Medical Center, 635 F. Supp. 2d 970 (E.D. Mo. 2009[NLJ13][NLJ14][NLJ15][NLJ16>]). Drohan, J. P. (2011). The Americans With Disabilities Act and Section 504 Update. Touro Law Review, 26, 1173– 1178. Erickson, W., Lee, C., & von Schrader, S. (2014). 2012 Disability status report: United States. Ithaca, NY: Cornell University Employment and Disability. Fox v. The Gates Corporation, 179 F.R.D. 303 (D. Colo. 1998). Gordon v. MCG Health, Inc., 301 F. Supp. 2d 1333–1339 (S.D. Ga. 2003). Guneratne v. St. Mary’s Hospital, 943 F. Supp. 771–774 (S.D. Tex. 1996). Hamner v. Community Hospitals of Indiana, Inc., 92 F. Supp. 2d 803–806 (S.D. Ind. 2000). Hedrick v. Western Reserve Care System, 355 F.3d 444–459 (6th Cir. 2004). Johnson, S. (2012). The ADAAA: Congress breathes new life into the Americans with Disabilities Act. Journal of the Kansas Bar Association, 81, 22–29. Johnson-Parks v. D.C. Chartered Health Plan, 925 F. Supp. 2d 102, 116–18 (D.D.C. 2013). Jones v. Family Health Center, Inc., 323 F. Supp. 2d 681–688 (D.S.C. 2003). Lewis v. Humboldt Acquisition Corporation, Inc., 681 F.3d 312, 313–22 (6th Cir. 2012). Lopez-Cruz v. Instituto de Gastroenterologia de Puerto Rico, 960 F. Supp. 2d 367–372 (D.P.R. 2013). Mowat-Chesney v. Children’s Hospital, 917 F. Supp. 746 (D. Colorado 1996). Neal-Boylan, L. (2014). Nurses with disabilities: Their job descriptions and work expectations. Rehabilitation Nursing, 34, 169–177. Neal-Boylan, L., Hopkins, A., Skeete, R., Hartmann, S. B., Iezzoni, L. I., & Nunez-Smith, M. (2012). The career trajectories of health care professionals practicing with permanent disabilities. Academic Medicine, 87(2), 172– 178. Neal-Boylan, L. J. (2012). An exploration and comparison of the worklife experiences of registered nurses and physicians with permanent physical and/or sensory disabilities. Rehabilitation Nursing, 37(1), 3–10. Niccolini, R. R. & Basu, N. (2009). Disability and accommodation in the healthcare workplace. Journal of Health & Life Sciences Law, 2(3), 93–98. Norville v. Staten Island University Hospital, 196 F.3d 8998–8999 (2nd Cir. 1999). Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001). Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177–185 (D.N.H. 2002). Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012).
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Schmidt v. Methodist Hospital of Indiana, Inc., 89 F.3d 342–345 (7th Cir. 1996). Sherrer v. Hamilton County Board of Health, 747 F. Supp. 2d 924–997 (S.D. Ohio 2010). Sorenson v. University of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999). Squibb v. Memorial Medical Center, 497 F.3d 775–785 (7th Cir. 2007). Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). Sydnor v. Fairfax County, VA, 681 F.3d 591–593 (4th Cir. 2012). Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184–198 (2002).
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U.S. Department of Health and Human Services Health Resources Services Administration. (2013). The U. S. nursing workforce: Trends in supply and education. Washington, DC: Health Resources Services Administration Bureau of Health Professions National Center for Health Workforce Analysis. Webster v. Methodist Occupational Health Centers, Inc., 141 F3d 1236 (7th Cir. 1998). Wells v. Cincinnati Children’s Hospital Medical Center, 860 F. Supp. 2d 469–481 (S.D. Ohio 2012). Wisneski v. Nassau Care Corp., 296 F. Supp. 2d 90 (E.D.N.Y. 2003). Wynes v. Kaiser Permanente Hospitals, 936 F. Supp. 2d 1171 (E.D. Cal. 2013).
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Registered Nurses With Disabilities: Legal Rights and Responsibilities Leslie Neal-Boylan, PhD, APRN, CRRN, FAAN1 & Michelle D. Miller, JD, MPH, RN2 1 Tau Rho, Dean, College of Nursing, University of Wisconsin—Oshkosh, Oshkosh, WI, USA 2 Assistant Professor of Legal Studies, Quinnipiac University, Hamden, CT, USA
Key words Nurses with disabilities, legal, discrimination, rights Correspondence Dr. Leslie Neal-Boylan, University of Wisconsin Oshkosh, College of Nursing, 800 Algoma Blvd., Oshkosh, WI 54901 8660. E-mail: [email protected] Accepted: December 23, 2014 doi: 10.1111/jnu.12128
Abstract Purpose: The purpose of this legal case review and analysis was to determine what kinds of cases involving nurses with disabilities are typically brought to attorneys, which cases tend to be successful, and how and when a nurse with a disability should pursue legal action. Design: The review used the standard legal case analysis method to analyze legal cases that have been brought by registered nurses (RNs) with physical or sensory disabilities from 1995 to 2013. The cases span the period following the enactment of the Americans With Disabilities Act (ADA) of 1990 through the ADA Amendments Act (ADAAA) of 2008. Methods: A nurse attorney reviewed the background material to find every case involving an RN with a disability, excluding those with mental health disabilities or substance abuse issues. Case analysis was conducted using standard legal case analysis procedures. Fifty-six cases were analyzed. Findings: The cases were categorized into five types of legal claims: (a) disability discrimination (84%); (b) failure to accommodate (46%); (c) retaliation (12.5%); (d) association (3.6%); and (e) hostile work environment (7%). The cases were largely unsuccessful, particularly those brought under the ADA instead of the ADAAA. Conclusions: The case analysis revealed that several cases brought by RNs with disabilities using the ADA might have been successful under the ADAAA. In addition, the case analysis has provided vital information for administrators, leaders, and clinical nurses regarding when a case is appropriate for legal action. These findings from this review will help nurses recognize when they are being treated in a discriminatory way in the workplace, what their legal rights and responsibilities are, and at what point they should pursue legal action. Clinical Relevance: This review has relevance to all RNs working in clinical and academic settings who may have a congenital or acquired physical or sensory disability.
Research to date on the work life experiences of registered nurses (RN) with physical or sensory disabilities has demonstrated that these nurses tend to feel discriminated against by supervisors and colleagues. Many nurses with disabilities leave the profession because they worry they will jeopardize patient safety or because they feel pushed out (Neal-Boylan, Hopkins, Skeete, Hartmann, Iezzoni, & Nunez-Smith 2012; Neal-Boylan, 2014; Neal-Boylan, 248
2012). Common themes in the research have included the tendency to try to hide the disability if possible, the feeling that she or he is being treated differently from others, difficulty meeting the expectations of others, concern for patient safety, the decision to go back to school and sometimes change career goals, and compensation for what the nurse cannot do in the usual way. Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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Interestingly, literature regarding nurses with physical disabilities in countries outside of the United States is scant. Camerino et al. (2001) studied 1,159 Italian nurses regarding musculoskeletal symptoms related to the work environment and nursing tasks. They found that female nurses were more likely to suffer from musculoskeletal disorders related to physical exertion and job seniority than were male nurses. Nurses who reported being disabled by their musculoskeletal disorders perceived less social support rather than increased workload or intensity. This was supported in the studies cited in the preceding paragraph by nurses with disabilities who frequently described supportive colleagues and administrators as making a difference in their work life experience. In addition, research data regarding nurses in the United States have revealed a lack of awareness among nurses with disabilities regarding their legal rights and the unlikelihood of pursuing legal recourse in the presence of a good legal case. It seemed logical, therefore, to analyze legal cases involving RNs with disabilities since the Americans With Disabilities Act (ADA) of 1990 was enacted. The purposes of this case law review then were as follows: (a) to determine what kinds of cases involving RNs with physical or sensory disabilities typically pursue legal action, which are successful, and the factors contributing to their success, and (b) to discuss how recent changes to the ADA made by the ADA Amendments Act (ADAAA) of 2008 might impact similar cases in the future. The intention is to support nurses with disabilities to recognize when they are being treated in a discriminatory way in the workplace, what their legal rights and responsibilities are, and at what point they should pursue legal action. This analysis of legal cases sought to answer the following questions: 1. What is typical of claims successfully brought and those that are not successful? 2. Is legal action effective against job discrimination for the nurse with a physical and/or sensory disability? 3. How does the ADAAA impact the potential success of legal action for RNs with physical and/or sensory disabilities?
Background According to the 2012 Disability Status Report (Erickson, Lee, & von Schrader, 2014), 10.4% of individuals between the ages of 21 and 64 years and 25% of individuals between the ages of 65 and 74 years have a disability. The precise number of nurses who have disabilities is unknown; however, working RNs fall into both these age groups. In 2012, the Centers for Disease Control and Prevention (CDC) estimated that 74 million Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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people in the United States had disabilities (CDC, 2014). According to the CDC, out of the 74 million, approximately 17 million had disabilities related to mobility, 38 million related to hearing, and 21 million related to vision. Approximately 34% of working age adults with disabilities were employed in 2012 (Erickson et al., 2014). The nursing workforce is continuing to age (U.S. Department of Health and Human Services Health Resources Services Administration, 2013), with a subsequent increase in the incidence of chronic illness and disability (Bjelland et al., 2010). It is important to all nurses that just and legal consideration be given nurses with disabilities because it is not inconceivable that many nurses will eventually find themselves with some level of disability and will want to continue to work as nurses. In addition, people with disabilities are a diverse group, and nurses should be aware of the issues surrounding disability. The ADA (1990) was enacted to combat discrimination against disabled Americans by various actors: Title I applies to employers, Title II applies to state instrumentalities, and Title III covers public accommodations. As it applies to employment, the ADA specifically prohibits employers with 15 or more employees from taking an adverse employment action against a qualified individual with a disability because of that employee’s disability. A nurse bringing an action against her or his employer for a violation of the ADA must show that (a) she or he has a disability as defined by the law; (b) she or he is “otherwise qualified”; and (c) she or he experienced an adverse employment action because of the disability (Deane v. Pocono Medical Center, 1998). A person is disabled under the statutes if she or he has a physical or mental impairment that substantially limits one or more major life activities, a record exists of such impairment, or she or he is regarded as having an impairment by her or his employer (ADA, 1990). Thus, the first hurdle for a prospective plaintiff is proving that she or he is disabled within the meaning of the law. Beginning in 1999, the Supreme Court greatly restricted the definition of “disability” in a trilogy of cases (Albertson’s, Inc. v. Kirkingburg, 1999 is one such case). One way in which the Court accomplished this was to hold that the ameliorating effect of treatment must be considered when deciding whether a person is disabled (Sutton v. United Airlines, Inc., 1999). So, for example, if a nurse was able to control her or his diabetes by taking insulin, she or he did not have a disability. Congress expressly rejected the Court’s narrow interpretation of the ADA when it amended the law by passing the ADAAA (2008). In addition, the ADAAA also shifts the focus away from whether a nurse has a disability and making accommodations for 249
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the nurse to ensuring equal employment opportunities (www.govtrack.us/congress/bills/110/s3406/text). Interestingly, Congress did not change the definition of disability in the law. Instead, they added rules of construction, which had the effect of enabling more people to make a showing of being disabled under the law. First, Congress mandated that the ameliorating effect of treatment not be taken into consideration when determining if a person has a disability. Congress also explained that even if an impairment is episodic or may at times go into remission, it can still qualify as a disability if it would substantially limit at least one major life activity when it is active (ADAAA, 2008). Moreover, Congress made it clear that the courts had too narrowly construed “substantially limit” and “major life activity.” The U.S. Supreme Court had found that in order to substantially limit a major life function, the impairment must be one that prevents or severely restricts an activity of central importance to most people’s lives on a daily basis (Toyota Motor Mfg., Kentucky, Inc. v. Williams, 2002). Congress stated in the ADAAA that such a restrictive reading of these two concepts must be abandoned in favor of a broad reading that conforms to the purposes of the law (Niccolini & Basu, 2009). Congress also expressly expanded the concept of major life activity to include “major bodily functions,” such as normal cell growth, digestion, and reproduction, as well as providing a nonexhaustive list that includes activities such as performing manual tasks, seeing, hearing, eating, walking, and concentrating (Drohan, 2011). Another crucial change made to the ADA relates to the “regarded as” showing of disability. For purposes of the law, an employee can show that she or he is disabled if her or his employer regards her or him as disabled (ADA, 1990). The courts had interpreted this to require the employee to prove that her or his employer regarded her or him as having an impairment that substantially limits one or more major life activities. In the ADAAA, Congress clarified that a person can make the requisite showing under the “regarded as” test as long as the employee can prove that the employer believed her or him to have an impairment that was not “transitory and minor,” that is, 6 months or less in duration (ADAAA, 2008). Taken together, the changes made to the ADA in 2008 demonstrate that Congress meant for the focus of the law to be on the question of whether a disabled person had been discriminated against, not on whether a person is disabled in the first place (Johnson, 2012). The ADA requires that before bringing a legal action against an employer, an employee must first exhaust her or his administrative remedies. This means that the employee must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), 250
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the federal agency charged with administering Title I of the ADA. A charge of discrimination also serves to provide an employer with reasonable notice of the claim(s) the employee is bringing against them (Sydnor v. Fairfax County, VA, 2012). The employee must name all of the persons against whom the charge is being made or potentially lose the opportunity to name them as defendants in a later court action (Sydnor v. Fairfax County, VA, 2012). If an employee decides to pursue a civil action in court, there are several types of claims that an employee plaintiff can bring against an employer under the ADA. The most common involves an accusation that the employee suffered an adverse employment action because of her or his disability. An employee can also bring a claim that an employer failed to reasonably accommodate the employee. Further, an employee can claim that an employer retaliated against her or him because the employee participated in an activity protected under the ADA. The protected activity in these cases is usually the filing of a disability charge with the EEOC. In some federal circuits, the employee may also make the claim that the employer created a hostile working environment for the employee because of the disability. Finally, an employee can claim that an employer subjected them to an adverse employment action because of the employee’s relationship or association with disabled persons. The employee plaintiff may assert one or more of these claims in her or his complaint filed in court.
Case Analysis Method Although this was not a research study, this case analysis was reviewed and approved by the university institutional review board. A nurse attorney read the statute (the ADA as amended by the ADAAA) and reviewed background material that applied to the law (Table 1). This background material included law review articles about the ADA and the ADAAA as applied to employees. She then gathered every case involving an RN or advanced practice registered nurse (APRN) who brought a disability employment discrimination action in federal court under the ADA from 1995 to 2013. After a law is enacted, it typically takes several years to reach a decision on a case. The first case to meet the sample criteria was published in 1995 (not every judge publishes her or his cases, and it is only possible to access a case if a judge has it published). Similarly, the ADAAA was passed in 2008 and became effective in 2009. Our case analysis includes only a few post-Amendment cases because very few have yet moved through the lengthy legal process. The analysis ended with 2013 because in that year the most recent case that met the sample criteria was published. While cases were brought in different states, state law did not Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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Table 1. Case Analysis Process
Table 2. Procedure for Filing an Americans With Disabilities Act Case
1. Read the statute (law). 2. Review background material: law review articles about the ADA and the ADAAA as applied to employees. 3. Pull every case involving an RN or APRN who brought a disability employment discrimination action under the ADA from 1995 to 2014. 4. Read all of these cases. Analyze the cases for the following: A. Which court heard the case (federal district or circuit court)? The circuit court is the appellate court. B. Examine the "procedural posture" of the case, i.e., at what step is the case in the trial process (see Table 2)? C. Look at the facts of the case that were agreed on by both parties. D. Look at the ADA claims section of the case: What part of the ADA is the plaintiff (nurse with disability) claiming was violated? E. Review the definition of disability according to the ADA to see if the plaintiff fits the description. 1. If the plaintiff is disabled by law, was otherwise qualified for the position, and suffered an adverse employment action, then the case proceeds. 2. If the plaintiff cannot provide sufficient evidence of these three facts, that is the end of the case. F. Look at what, specifically, the plaintiff is claiming. G. Look at the defendant’s "burden of production." Did the defendant (employer) clearly show that their action against the plaintiff was not because of the disability? H. Look at the employee’s case: Does she or he clearly show that the defendant’s reason for their action was just a pretext and that the actual reason for the adverse employment action is disability discrimination? I. Review the court’s opinion: In a motion for summary judgment, if the judge agrees that the employee adduced sufficient evidence that a reasonable jury could find for the plaintiff, then the case goes to trial. J. Look at the final judgment of the case. K. Compare and assess all cases for commonality. Are courts handling the cases in the same way?
Nurse with a disability decides to pursue legal action. The nurse must file a charge with the EEOC. The EEOC issues a "right to sue" letter. The nurse hires or does not hire a lawyer. The nurse files a complaint in federal district court (or the EEOC files on the plaintiff’s behalf, if the agency decides to pursue the case). The defendant is required to answer the complaint. Discovery: The attorneys for the plaintiff and defendant take depositions and gather materials and research. Usually at some point during discovery, a motion for summary judgment is filed by the defendant arguing that there is "no genuine issue of material fact" and, therefore, the defendant should have judgment entered into their favor as a matter of law. The judge determines if there are any materially factual issues in dispute between the two parties. If yes, then the judge denies the motion and the case goes to trial. If no, then the judge grants the motion and the case is finished. If the nurse loses on summary judgment, she or he can then appeal to the circuit court, which will then determine if the case goes to trial or the court affirms the summary judgment.
Note. ADA, Americans With Disabilities Act of 1990; ADAAA, ADA Amendments Act of 2008; APRN, advanced practice registered nurse; RN, registered nurse. From Currier, K. A., & Eimermann, T. E. (2013). The study of law (3rd ed.). New York: Wolters Kluwer Law & Business.
Note. EEOC, Equal Employment Opportunity Commission.
health, cognitive, or substance abuse impairments were not included. All of the cases dated from 1995 to 2013. Forty-one (71%) of the cases were decided based on the original ADA (1990) and 15 (27%) were decided based on the ADAAA (2008). Five of the plaintiffs were men and 51 were women. Eleven (20%) of the cases included injuries that occurred in the workplace (back injuries in nine cases and wrist injuries in two cases). In addition, one case related to a nurse who had an allergy to a cleaning agent and one case involved a nurse with an allergy to latex.
Results Disability Discrimination Claims
play a role in these cases since the ADA and its Amendment constitute federal law. A nurse attorney conducted the case review and analyses. Table 1 lists the process the nurse attorney used to review and analyze the cases and is the standard method by which attorneys review and analyze cases (Currier & Eimermann, 2013). Table 2 includes the procedure for filing a case if a nurse believes she or he has been discriminated against under the ADA or the ADAAA.
Sample A total of 56 cases were reviewed. Only cases dealing with an RN or APRN with a physical or sensory disability (Table 3) were included. Cases of nurses with mental Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
Of the 56 cases analyzed, 47 (84%) contained a claim that the employee plaintiff experienced discrimination (i.e., suffered an adverse employment action) because of a disability. The ADA provides in pertinent part, “[n]o covered entity shall discriminate against a qualified individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment” (ADA, 1990). In order to prevail on a claim that the employer violated the ADA, the plaintiff employee must, as an initial matter, be able to show that (a) she or he is disabled as defined by the ADA; (b) she or he is qualified (i.e., that with or without reasonable accommodation, she or he is able to perform the essential functions of the job); and (c) the employer 251
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Table 3. Demographics of the Sample, 1995–2013 (N = 56) Gender
Disability
Male = 5
Work-related conditions Back injury = 9 Wrist injury = 2 Allergies = 2
Female = 51
Non-work-related conditions Knee issues = 4 Breast cancer = 3 Multiple sclerosis = 3 Diabetes = 2 Seizure disorder = 2 Back injury = 2 Mobility issues (nonspecific) = 2 Fibromyalgia = 2 Asthma = 2 Insomnia = 2 Disabled family members = 2 Gastrointestinal problems = 1 Shoulder injury = 1 Vitamin B deficiency = 1 Foot surgery = 1 Symptomatic atrial fibrillation = 1 Kidney surgery = 1 Central serous retinopathy = 1 Myofascial pain syndrome = 1 Rheumatoid arthritis = 1 Cytomegalovirus = 1 Hepatitis C = 1 Cerebrovascular accident = 1 Pregnancy complications = 1 Infertility = 1 Hearing impairment = 1 Retaliation for complaining about treatment of a disabled patient = 1 Undisclosed = 1
Pre- or Post-ADAAA
Employer
Location
Pre = 41
Hospital = 34 County = 5
1st Circ. = 2 MA = 2 NH = 2 PR = 2 ME = 1
Post = 13
SNF = 4 Clinic = 3
2nd Circ. = 1 NY = 3
Health plan = 3
3rd Circ. = 1
Company = 2
4th Circ. = 1 MD = 1 SC = 1 VA = 1
State = 1 HMO = 1
TX = 3 HHA = 1 Veterans Administration = 1 Nursing school = 1
6th Circ. = 4 OH = 3 KY = 1 7th Circ. = 6 IL = 2 IN = 1 8th Circ. = 4 MO = 1 IA = 1 9th Circ. = 2 CA = 1 CO = 2 KS = 1 UT = 1 11th Circ. = 1 GA = 2 DC = 2
Note. CA, California; Circ., circuit court; CO, Colorado; DC, District of Columbia; GA, Georgia; HHA, home health agency; HMO, health maintenance organization; IA, Iowa; IL, Illinois; IN, Indiana; KS, Kansas; KY, Kentucky; MA, Massachusetts; MD, Maryland; ME, Maine; MO, Missouri; NH, New Hampshire; NY, New York; OH, Ohio; PR, Puerto Rico; SC, South Carolina; SNF, skilled nursing facility; TX, Texas; UT, Utah; VA, Virginia.
subjected her or him to an adverse employment action because of her or his disability (Mowat-Chesney v. Children’s Hospital, 1996). Under the ADA, an individual may be disabled in one of three ways. A person is disabled if she or he has “a physical or mental impairment that substantially limits one or more major life activities of such individual”; a “record of” such impairment (Gordon v. MCG Health, Inc., 2003); or “being regarded as having such impairment . . . whether or not the impairment limits or is perceived to limit a major life activity” (ADA, 1990). Under 252
the first two definitions, the employee must have made the employer aware that she or he had a disability (Clapp v. Northern Cumberland Memorial Hospital, 1997). However, there appear to be very few cases brought under the “record of” option. Indeed, this is not surprising; if you cannot prove that you have a disability, then you cannot prove that you have a record of a disability. Before the ADA was amended in 2008, it was difficult for an employee to prove that she or he was disabled as defined by the law. The U.S. Supreme Court had held that in order to substantially limit a major life activity, the Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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impairment must be one that prevents or severely restricts an activity of central importance to most people’s lives on a daily basis (Toyota Motor Mfg., Kentucky, Inc. v. Williams, 2002). So, for example, courts found that intermittent multiple sclerosis symptoms do not constitute a disability (Sorensen v. University of Utah Hospital, 1999) and that breast cancer in remission is not a disability (Pimental v. Dartmouth-Hitchcock Clinic, 2002). With the ADAAA, Congress clarified that an employee does not have to prove that the employer perceived the impairment as substantially limiting a major life activity in order to prove that an employer regards the employee as disabled (Lopez-Cruz v. Instituto de Gastroenterologia de Puerto Rico, 2013). Moreover, it appears that employers may be less apt now to dispute the presence of a disability (Wynes v. Kaiser Permanente Hospitals, 2013). Such a trend is to be expected since Congress stated in the ADAAA that the U.S. Supreme Court’s restrictive reading of the two concepts “substantially limits” and “major life activity” must be abandoned in favor of a broad reading that conforms to the purposes of the law (Niccolini & Basu, 2009). One thing that did not change under the ADAAA is the showing plaintiffs need to make to establish that their impairment substantially limits the major life activity of “working” (Azzam v. Baptist Healthcare Affiliates, Inc., 2012). Courts have held since the beginning that in order to prove that their ability to work is substantially limited, plaintiffs must demonstrate that they are restricted in performing either a class of jobs or a broad range of jobs (Squibb v. Memorial Medical Center, 2007). This standard is extremely difficult for a nurse to meet since nursing does not constitute a class of jobs (Conrad v. Board of Johnson County Commissioners, 2002) or a broad range of jobs in various classes. The court views nursing as one job, as opposed to law enforcement, which it views as a class of jobs. While nurses know that one can be a nurse and perform a variety of different roles, the court does not recognize this. Thus, if the employer offers the employee a different nursing position as a reasonable accommodation, it becomes impossible for the employee to prove that her or his impairment substantially limits the major life activity of working (Bryant v. Caritas Norwood Hospital, 2004). After the plaintiff has shown that she or he is disabled under the law, she or he must prove that she or he is “otherwise qualified” for the job (i.e., that she or he can perform the essential job functions of the position with or without reasonable accommodation; ADA, 1990). In determining whether a function is essential, courts will consider (a) the employer’s judgment; (b) a written job description; (c) the amount of time spent on that particular function; (d) the consequences of not requiring Journal of Nursing Scholarship, 2015; 47:3, 248–257. C 2015 Sigma Theta Tau International
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that the employee be able to perform the function; (e) the terms of any collective bargaining agreement; (f) the work experience of those who have held the position previously; and (g) the work experience of those who currently hold similar jobs (Guneratne v. St. Mary’s Hospital, 1996). However, in practice, courts seem often to defer to healthcare employers (usually physicians) as to what constitutes an essential job function. Thus, for example, courts almost always agree with the employer that lifting (Bryant v. Caritas Norwood Hospital, 2004) and shift work (Samper v. Providence St. Vincent Medical Center, 2012) are essential to a position filled by an RN or an APRN. Similarly, courts have often held that no reasonable accommodation exists that would allow a nurse to perform these essential job functions (Bryant v. Caritas Norwood Hospital, 2004; Guneratne v. St. Mary’s Hospital, 1996). Beyond asserting that an employee could not perform the essential functions of a job, an employer may also defend their actions based on the argument that the employee was not otherwise qualified because she or he presented a “direct threat” (ADA, 1990) to the safety of patients that could be eliminated or reduced by a reasonable accommodation. This defense must be based on an individualized assessment of the employee’s current medical condition, taking into consideration (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the harm will occur; and (d) the imminence of the potential harm (Wells v. Cincinnati Children’s Hospital Medical Center, 2012). The plaintiff must next demonstrate that the employer subjected her or him to an adverse employment action. An adverse employment action is any that carries a reduction in salary, benefits, seniority, or other advantages when compared to the position held by the employee at the time of the discrimination (Norville v. Staten Island University Hospital, 1999). Thus, minor changes that are merely inconvenient do not rise to the level of an adverse employment action (Donnelly v. St. John’s Mercy Medical Center, 2009). However, such a reassignment may be considered adverse if it harmed the plaintiff’s future job prospects or prevented her or him from using her or his professional nursing skills (e.g., reassigning an operating room nurse to the surgical supply room; Brown v. Cox, 2002). Finally, the defendant hospital must then offer a legitimate, nondiscriminatory reason for having taken the adverse employment action. It is then up to the employee to prove that the proffered reason is a pretext (i.e., that the employer was actually motivated by discriminatory animus; Johnson-Parks v. D.C. Chartered Health Plan, 2013). The employee need not prove that discrimination was the sole cause for the action. However, the employee 253
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must show by a preponderance of the evidence that it was more than simply a factor in the decision (Lewis v. Humboldt Acquisition Corporation, Inc., 2012).
Failure to Accommodate Claims An employee may also assert a claim under the ADA that the employer failed to provide a reasonable accommodation as required by the law (ADA, 1990). Out of the 56 cases analyzed, 26 (46%) of them contained a failure to accommodate claim. It must be noted that the onus is on the employee to request a reasonable accommodation of the employer, after which the two parties are required to engage in an interactive process to fashion a suitable accommodation (Donnelly v. St. John’s Mercy Medical Center, 2009). An employee is not entitled to the particular accommodation requested, just a reasonable one (Jones v. Family Health Center, Inc., 2003). Thus, for example, a nurse who was hard of hearing was not entitled to be reassigned from the dialysis unit to orthopedics as he had requested when the hospital offered him additional training in the dialysis unit (Schmidt v. Methodist Hospital of Indiana, Inc., 1996). Indeed, once an employer offers a reasonable accommodation, the employee must either show why it was not reasonable or accept the offer (Hedrick v. Western Reserve Care System, 2004). An employer need not accept an accommodation request that would cause an undue hardship. Thus, for example, it was not required for an occupational health center to provide supervision for a nurse who had suffered a stroke (Webster v. Methodist Occupational Health Centers, Inc., 1998). Likewise, a hospital was not obliged to accept the plaintiff’s proposed job-sharing arrangement to accommodate her lifting restriction (Phelps v. Optima Health, Inc., 2001). Neither does an indefinite leave of absence comprise a reasonable accommodation. In the case of a university, courts have held that the school is not required to eliminate or diminish course requirements necessary for the degree pursued (Wisneski v. Nassau Care Corp., 2003).
Retaliation Claims The ADA also makes it unlawful to retaliate against a person for participating in activities protected by the statute (ADA, 1990), such as filing a charge with the EEOC. Seven (12.5%) of the 56 cases considered included a retaliation claim. A plaintiff bringing such a claim must prove that (a) she or he participated in an activity protected by the ADA, (b) she or he suffered an adverse employment action, and (c) the adverse employment action was a result of such participation (Squibb v. Memorial Medical Center, 2007). As a prerequisite, the employer 254
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must have had reason to know about the protected activity (Hamner v. Community Hospitals of Indiana, Inc., 2000). Moreover, the retaliation must have taken a form severe enough to have a harmful impact on her or his employment (Donnelly v. St. John’s Mercy Medical Center, 2009). Although it can be difficult to prove that the alleged retaliatory action was caused by the plaintiff’s participation in a protected activity (Wells v. Cincinnati Children’s Hospital Medical Center, 2012), a jury may infer causation if the adverse employment action took place directly after the protected activity (Sherrer v. Hamilton County Board of Health, 2010).
Hostile Work Environment Claims Some federal circuit courts have also allowed plaintiffs to proceed with harassment or hostile work environment claims under the ADA. To prevail, a plaintiff must show that (a) she or he is a member of the class of persons protected by the statute; (b) she or he was subjected to harassment; (c) the harassment was due to her or his membership in the protected class; and (d) the harassment was severe enough to create a working environment so hostile that it affected the conditions of her or his employment (Sherrer v. Hamilton County Board of Health, 2010). Only 4 (7%) out of the 56 cases analyzed for this study included a hostile work environment claim based on the ADA.
Association Claims Finally, the ADA prohibits an employer from taking an adverse employment action against an employee because the employee has a known relationship or association with a person the employer knows to have a disability (ADA, 1990). This is a cause of action seldom brought, as evidenced by the fact that only 2 (3.6%) cases of the 56 analyzed contained an association claim. In one of these two cases, the plaintiff claimed that she had not been hired as a nurse because of her two disabled sons (Fox v. The Gates Corporation, 1998). The other case involved a nurse whose husband was ill with prostate cancer. After making several statements about the high cost of her husband’s medical bills, the nurse’s supervisors fired her without explanation. On appeal, the Seventh Circuit Court held that the plaintiff had provided adequate evidence in the record for the question of whether she had been fired due to her relationship with a disabled person to be decided by a jury (Dewitt v. Proctor Hospital, 2008).
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(Neal-Boylan, 2012, 2014; Neal-Boylan et al., 2012). The case review sought to determine which types of claims tend to be successful and which do not. To answer this question, it is important to understand that the legal process often takes years to result in a final decision. Thus, most of the cases discussed in this article have reached the level of “summary judgment.” This means that one of the parties, usually the defendant, has moved the court for a judgment in their favor based on a showing that the opposing party has not adduced sufficient evidence to win at trial. Prior to the ADAAA, defendant employers often moved the court for summary judgment, arguing that the plaintiff nurse could not prove she or he was disabled under the law. Therefore, we define a case as successful where the plaintiff has survived summary judgment, that is, has clearly demonstrated that the plaintiff (the nurse) has a disability. Proving this was very difficult prior to the ADAAA. The Amendment of 2008 has made proving a disability significantly easier than it had been. Conversely, those cases that have not been successful thus far are those that have not sufficiently demonstrated that the nurse has a disability under the law. Once these cases have reached the final decision phase, the matter of “essential job function” may be at issue. It will be important for nurses to be aware of how essential job functions are viewed under the amended law. The second question asked whether legal action is effective against job discrimination. This study revealed that the answer to this question largely depends on the definition of “effective,” which will vary from nurse to nurse depending on the goal of the lawsuit. For example, for some nurses, keeping one’s job, reinstatement, or transfer to a new position within an organization may be considered sufficiently effective. For others, a monetary award is the goal in bringing the claim. However, for the profession as a whole, deterrence is the larger goal. Legal claims against acts of discrimination will hopefully deter administrators and others from discriminating against nurses with disabilities. The final decisions on these cases are likely to have overarching impact. Increased awareness of the ADAAA should help prevent discrimination, and the publication of this study is one method by which to increase awareness. The final question pertains to the impact of the ADAAA on legal action brought by nurses with disabilities. Based on the summary judgment of these cases, the answer is a resounding yes. Cases filed by nurses with disabilities are likely to be more successful than they would have been under the original law.
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Implications Nurses must become more knowledgeable about their rights and responsibilities related to their disability and chronic conditions under the ADAAA. In addition, the profession should develop resources that support nurses in accessing and consulting with attorneys who are qualified in the area of disability discrimination under the ADAAA. National nursing organizations should consider offering legal consultation or listing resources nurses can access for further information, including lists of attorneys who specialize in disability law. The attorney can ensure that all that should be done is done so the nurse can remain in the job or advise that the nurse seek a job elsewhere within the profession. In most situations, nurses with disabilities do not need to leave the profession because of their disability or chronic condition. The study revealed that in most of the cases, there was deferment of judgment to employers as the “recognized experts” in healthcare issues. In most of the litigation involving nurses with disabilities, physicians determined whether the nurse was disabled and able to practice nursing. As cases brought by nurses with disabilities become more prevalent, the profession will have the opportunity to convince the courts that a nurse, not a physician, should be the one to judge the impact. The profession also has the opportunity to clarify that nursing, like law enforcement, offers a variety of jobs that qualify as nursing and that nursing should not be considered a job only but a class of jobs under the law. The ADAAA changed how employers must view disability. It is imperative that nurse leaders, executives, and administrators recognize that a clear understanding of the law is the only way to ensure against inadvertent discrimination. Increased awareness by nurses and nurse leaders is key to recognizing that nurses with physical disabilities need not leave the profession. Moreover, if concerted efforts according to the law are not made to retain nurses with disabilities within their organizations, administrators could face stiff penalties.
Acknowledgments The authors would like to acknowledge the assistance of Dr. Beth Marks and Claryn Spies for their assistance with the manuscript. The authors are grateful to the Quinnipiac University School of Nursing for providing funding for this work.
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Clinical Resources
r r r r r r r
The Americans with Disabilities Act: www.ADA. gov/ Disability.gov is a federal government website that provides information on disability programs and services. The National Organization of Nurses with Disabilities: http://nond.org/ Social Security Administration: www.ssa.gov/ disability/ U.S. Department of Housing and Urban Development: www.portal.hud.gov/ U.S. Department of Labor, Office of Disability Employment Policy: http://www.dol.gov/odep/ U.S. Equal Employment Opportunity Commission: www.eeoc.gov/
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Dewitt v. Proctor Hospital, 517 F.3d 944 948 (7th Cir. 2008). Donnelly v. St. John’s Mercy Medical Center, 635 F. Supp. 2d 970 (E.D. Mo. 2009[NLJ13][NLJ14][NLJ15][NLJ16>]). Drohan, J. P. (2011). The Americans With Disabilities Act and Section 504 Update. Touro Law Review, 26, 1173– 1178. Erickson, W., Lee, C., & von Schrader, S. (2014). 2012 Disability status report: United States. Ithaca, NY: Cornell University Employment and Disability. Fox v. The Gates Corporation, 179 F.R.D. 303 (D. Colo. 1998). Gordon v. MCG Health, Inc., 301 F. Supp. 2d 1333–1339 (S.D. Ga. 2003). Guneratne v. St. Mary’s Hospital, 943 F. Supp. 771–774 (S.D. Tex. 1996). Hamner v. Community Hospitals of Indiana, Inc., 92 F. Supp. 2d 803–806 (S.D. Ind. 2000). Hedrick v. Western Reserve Care System, 355 F.3d 444–459 (6th Cir. 2004). Johnson, S. (2012). The ADAAA: Congress breathes new life into the Americans with Disabilities Act. Journal of the Kansas Bar Association, 81, 22–29. Johnson-Parks v. D.C. Chartered Health Plan, 925 F. Supp. 2d 102, 116–18 (D.D.C. 2013). Jones v. Family Health Center, Inc., 323 F. Supp. 2d 681–688 (D.S.C. 2003). Lewis v. Humboldt Acquisition Corporation, Inc., 681 F.3d 312, 313–22 (6th Cir. 2012). Lopez-Cruz v. Instituto de Gastroenterologia de Puerto Rico, 960 F. Supp. 2d 367–372 (D.P.R. 2013). Mowat-Chesney v. Children’s Hospital, 917 F. Supp. 746 (D. Colorado 1996). Neal-Boylan, L. (2014). Nurses with disabilities: Their job descriptions and work expectations. Rehabilitation Nursing, 34, 169–177. Neal-Boylan, L., Hopkins, A., Skeete, R., Hartmann, S. B., Iezzoni, L. I., & Nunez-Smith, M. (2012). The career trajectories of health care professionals practicing with permanent disabilities. Academic Medicine, 87(2), 172– 178. Neal-Boylan, L. J. (2012). An exploration and comparison of the worklife experiences of registered nurses and physicians with permanent physical and/or sensory disabilities. Rehabilitation Nursing, 37(1), 3–10. Niccolini, R. R. & Basu, N. (2009). Disability and accommodation in the healthcare workplace. Journal of Health & Life Sciences Law, 2(3), 93–98. Norville v. Staten Island University Hospital, 196 F.3d 8998–8999 (2nd Cir. 1999). Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001). Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177–185 (D.N.H. 2002). Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012).
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Schmidt v. Methodist Hospital of Indiana, Inc., 89 F.3d 342–345 (7th Cir. 1996). Sherrer v. Hamilton County Board of Health, 747 F. Supp. 2d 924–997 (S.D. Ohio 2010). Sorenson v. University of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999). Squibb v. Memorial Medical Center, 497 F.3d 775–785 (7th Cir. 2007). Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). Sydnor v. Fairfax County, VA, 681 F.3d 591–593 (4th Cir. 2012). Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184–198 (2002).
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U.S. Department of Health and Human Services Health Resources Services Administration. (2013). The U. S. nursing workforce: Trends in supply and education. Washington, DC: Health Resources Services Administration Bureau of Health Professions National Center for Health Workforce Analysis. Webster v. Methodist Occupational Health Centers, Inc., 141 F3d 1236 (7th Cir. 1998). Wells v. Cincinnati Children’s Hospital Medical Center, 860 F. Supp. 2d 469–481 (S.D. Ohio 2012). Wisneski v. Nassau Care Corp., 296 F. Supp. 2d 90 (E.D.N.Y. 2003). Wynes v. Kaiser Permanente Hospitals, 936 F. Supp. 2d 1171 (E.D. Cal. 2013).
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