In Miller v. Illinois Department of Transportation, slip op., Case No. 09-3143 (7^th Cir. May 10, 2011), the Seventh Circuit Court of Appeals in Chicago allowed a bridge worker with a acrophobia – a chronic fear of heights - to maintain his lawsuit under the “old” ADA for disability discrimination, retaliation and a failure to accommodate him reasonably. The Illinois Department of Transportation (“IDOT”) had hired him in 2002 to work on bridge maintenance and repair. They also had allowed him, for about four years, to trade certain high-altitude tasks for others with his co-employees. He filed a grievance in March of 2006, alleging that IDOT had assigned him to unsafe work at a high altitude and, about two weeks later, suffered a panic attack while changing a light bulb on a bridge beam. IDOT placed him on sick leave as a result and ordered him to undergo a fitness-for-duty examination.

IDOT’s medical expert diagnosed the bridge worker as having acrophobia and concluded that he was unfit to do his job. The employee asked IDOT to continue to allow him to “trade” with co-employees to do the work he was afraid to perform as a result of his acrophobia, but IDOT said no. He filed another grievance over that issue, but was ordered to return to work on May 1, 2007. He did so. But, a month or so later, IDOT fired him for having commented to another employee that he would “like to knock the teeth out” of the mouth of a co-worker whom he apparently did not like.

The trial court did not address whether the bridge worker had a disability for ADA purposes. Instead, presuming he did, it granted IDOT summary judgment on all of his claims, concluding that his requested accommodation of having others perform certain of his job functions was unreasonable; that working at high altitudes was an essential function of his job; and that he could not establish that IDOT’s reason for having terminated him was a pretext for disability discrimination.

The Seventh Circuit disagreed and reversed. It concluded that the lower court should have left several factual questions to the jury for answers: 1) Had IDOT “regarded” the bridge worker as having been substantially limited in the major life activity of working; 2) was working at high altitudes really an essential function of his job, given that he had performed it for nearly four years without having to do so (and despite the terms of the written job description); 3) was IDOT really, as it claimed, unable to continue to accommodate the bridge worker as it had previously; and 4) did IDOT’s response to the employee’s grievances and his requests for accommodation constitute adequate evidence based upon which a jury might find that his termination had been retaliatory?

The Seventh Circuit’s decision was not decided under the new Guidelines, or, for that matter, under the ADAAA. But it is fair to infer that the Court had the terms of the ADAAA in mind. In any event, the decision is one that employers need to heed in light of the ADAAA’s and the new Guidelines’ more inclusive approach to “disability.” Employers also need to be certain that they consistently keep job descriptions updated and accurate and that they consistently apply their policies and procedures in dealing with employee job assignments and in responding to requests for reasonable accommodations.

Most important, employers need to manage disability accommodation aggressively. Had IDOT not allowed the bridge worker in Miller to escape doing high-altitude work for four years, the first three of the four issues the Seventh Circuit remanded for a jury trial arguably would not have been issues at all. Among other things, employers need to insist upon medical proof of diagnosis and specific restrictions; analyze the job in issue to ensure that modifications of its functions for accommodation purposes really is reasonable; insist upon the performance by all employees who do the job of that job’s essential functions – which may mean redefining which functions are essential; and resist allowing “temporary” accommodations (that is, accommodations of temporary limitations) to go on too long so as to compromise the position that the performance of certain job functions really is essential.