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Standing and smelling impairments

not ADA disabilities


Decisions underscore the

impact of Toyota, other limiting cases


    Recently the Seventh Circuit and a Chicago federal district court have found no ADA violations where employees claimed disability status for impairments that failed the Toyota test.   In Williams v Excel Foundry & Machine Inc.,  489 F3d 309 (7th Cir.2007) the plaintiff, as a result of a hunting accident that had fractured his spine, could not balance on one leg and could not stand for more than thirty to forty-five minutes without a break.  In Robinson v. Morgan Stanley Dean Witter, an employee had an extreme sensitivity to perfumes and other fragrances, experiencing headaches, sore throats, and other maladies when exposed to them.

     In each case the employee failed to show that the employee was substantially limited in the ability to stand – or smell.

     After his hunting accident Williams had returned to work at Excel on light duty with a lifting restriction, and was permitted hourly breaks. He was fired for spreading a false rumor that cast another employee in a false light.  He charged that Excel discriminated against him because of his ADA-protected standing condition.  Excel admitted that standing was a major life activity and that the inability to stand for more than a fraction of an hour was an impairment, but denied he had an ADA disability.

     The appeals court noted that common afflictions such as back pain and excess weight impair the ability to stand, but that these were not disabilities.  The hundreds of thousands of Americans who have been assigned light duty from back pain, the court added, are not disabled.  Looking to the EEOC regulations that identify an ADA problem when a condition restricts walking to a “very brief” period of time, the court determined that Williams’s inability to stand for more than thirty to forty-five minutes did not represent a substantial impairment of his ability to stand, i.e., “very brief” was less than these periods of time.  Nor did his inability to balance on one leg.

     Williams had hinted that a lifting restriction – related to his back injury – was an ADA condition, but the court rejected this argument. It cited other cases for the proposition that generally, a doctor’s restriction on the amount the employee can lift implies a disability.  The courts have found that a twenty-five pound restriction, or even a ten-pound restriction, is evidence of an ADA disability, i.e., no substantial impairment of a major life activity.

     Judge Andersen in the Robinson case noted that the plaintiff’s allergy to fragrances put her (in her words) in a mental “fog” and thereby hampered her ability to walk, see, speak, breath, learn, and care for herself.  “Though Robinson may be temporarily limited in her ability to perform such activities as breathing and seeing when exposed to perfumes or fragrances because her throat may become restricted and her eyes water,” the court stated, “the 7th Circuit has held that ‘intermittent flare-ups’ do not establish that an impairment is a disability.”  It mattered that Robinson had  never been hospitalized for this condition and that despite this allergy her doctor had cleared her to work at any job.  As for an alleged failure to accommodate, Robinson was provided special seating arrangements, the use of a fragrance-free rented car, and intervention with specific employees that wore perfumes and other fragrances.