Contrary to prevailing wisdom, the Fifth Circuit is not in the tank for employers. In actuality, its baseline is incremental change, cautious approaches and aspirational fairness. Law, like life, is measured on continuums, not absolute endpoints. To frame the discussion in Shakespearean terms, the Fifth Circuit is more conflicted Hamlet than scheming Macbeth.

Here is a recent illustration from July 21, Mueck v. La Grange Acquisitions, L.P., broadly interpreting the Americans with Disabilities Act. While the plaintiff lost his unlawful termination claim, the Court’s opinion was one small litigation defeat for a single plaintiff, one giant leap for all plaintiffs. In holding that the plaintiff’s impairment (alcoholism) was a protected disability, the Court adopted a new rule that short-term and temporary impairments are, in fact, ADA disabilities, provided the impairment substantially impacts a major life function(s). Here, an inability to think clearly and to engage in basic self-care. That these manifestations occur episodically is irrelevant to whether there is ADA  protection. Medical condition causes blindness for only three months? Covered. Six months to recover from a severely broken leg? Covered. High blood pressure spikes sporadically? Covered. The consequence of disability status is important: If a disability is covered, both employers and employees must engage in mutual negotiations to explore potential reasonable accommodations to eliminate the disadvantages caused by the impairment.