Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Currently featured on the Equal Employment Opportunity Commission’s Web site (www.EEOC.gov) is information on a lawsuit recently filed by the Commission claiming that a McDonald’s employee was discriminatorily denied a promotion due to her Sturge Weber Syndrome, the principal symptom of which is a “cosmetic disfigurement” known as a “Port Wine Stain.” A Port Wine Stain is a facial birthmark, usually involving at least one upper eyelid and the forehead. The EEOC’s Web site features a picture of Samantha Robichaud (standing with her attorney outside the McDonald’s in question) and it is apparent that she has skin discoloration. The lawsuit claims that Robichaud began her employment with McDonald’s as a cook, but believed that she had been promised the opportunity to be promoted to management. In order to be eligible for a management position, a McDonald’s employee must work in various areas of the restaurant, including the front counter. It is alleged that Robichaud was removed by McDonald’s from the front counter because of her appearance. The Commission claims that Robichaud was later constructively discharged from her employment when she was told that she would never be promoted to a management position because of her appearance. DISABLED UNDER THE ADA? Any analysis under this ADA begins with the statute itself. The ADA defines a “disability” as, in part, having “a physical or mental impairment that substantially limits one or more of the major life activities of such individual … .” The EEOC’s regulations define impairment to include “any … cosmetic disfigurement … affecting one or more … body systems [including] skin.” Under the EEOC’s regulations, therefore, Robichaud’s “Port Wine Stain” would be a cosmetic disfigurement affecting her skin. The U.S. Supreme Court, however, has viewed the EEOC’s definition of the “disability” with skepticism. In both Sutton v. United Airlines and Toyota v. Williams, the Court has noted that “no agency has been given authority to issue regulations interpreting the term ‘disability’ in the ADA. Nonetheless, the EEOC has done so.” This language practically invites lower courts to disregard the EEOC’s regulations that define “disability” in such a broad manner. Even assuming that Robichaud has an “impairment” under the ADA, the question arises as to whether it has the effect of substantially limiting her major life activities. WORKING AS A MAJOR LIFE ACTIVITY The only conceivable major life activity affected would be that of “working.” In Sutton v. United Airlines, the Supreme Court noted that “there may be some conceptual difficulty in defining ‘major life activities’ to include work.” At a minimum, however, “to be substantially limited in the major life activity of working — one must be precluded from more than one type of job, a specialized job or a particular job of choice.” Applying the Court’s restrictive definition of “substantial limitation” and its skepticism of “working” as a major life activity, it is difficult to see a viable claim for Robichaud. In fact, a similar issue was addressed by the 7th U.S. Circuit Court of Appeals in Talanda v. KFC National Management Co., 140 F.3d 1090 (7th Cir. 1998). Although the Talanda case involved a retaliation claim brought by the manager of a counterperson with missing front teeth, the court discussed at length whether the counterperson (who was missing teeth) was disabled under the ADA. Not surprisingly, the 7th Circuit found that the counterperson’s missing teeth “did not limit her in performance of a major life activity.” This, despite the fact that KFC openly admitted that it did not want the counterperson to be working because her smile “was not a professional image that we wanted to portray” and “was not an appetizing situation.” TREATMENT IS AVAILABLE Robichaud’s claim also raises the question of whether a court may take into consideration the fact that there are treatments available for “Port Wine Stains” and, it appears, Robichaud has not taken advantage of these treatments. The Sutton decision seems to preclude the consideration of possible treatments in determining whether an employee is “disabled.” Two post-Sutton decisions seem to emphasize this point. In Nawrot v. CBC International, 277 F.3d 896 (7th Cir. 2002), the court found that, based on Sutton, courts may not “meander in �would, could, or should-have’ land.” Instead, the court may “consider only the measures actually taken and consequences that actually follow.” Similarly, in McKellips v. Fife Public Dist., 2001 U.S. App. LEXIS 17172 (9th Cir. 2001), the court noted that following Sutton, “we must take the person’s condition as it now is rather than as it could have been.” Nevertheless, it is difficult to see how the EEOC can establish Robichaud is disabled under the ADA. The facts set forth on the commission’s Web site would seem to not even come close to setting forth the elements necessary for such a claim. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.