The Chicago Employment Law Blog

Court Revives Employee's Sleep Apnea Disability Case

Meet David. David Feldman works for a brass-producing company. Back in 2007, his medical conditions of sleep apnea and fibromyalgia combined to make working night and swing shifts unfeasible, Courthouse News Service reports. The good news: He worked the day shift. The bad news: His position was eliminated.

David Feldman's employer, Olin Corp., offered him a rotating shift position that required him to work day, afternoon, and evening shifts, plus overtime. His doctor prescribed day shift only with no overtime. Though such positions existed, they were filled by more senior members of the staff.

David was laid off. But seven months later, a day shift spot finally opened up and he was rehired.

So does David Feldman have a case against Olin? According to the Seventh Circuit, he may. The court just overturned the dismissal of Feldman's case and sent it back to the lower court.

In disability discrimination cases, the plaintiff generally has to show:

  1. That he is disabled,
  2. That he is otherwise qualified to perform the essential functions of the job, and
  3. That the employer took an adverse job action against him because of his disability, or failed to make a reasonable accommodation.

Was David Feldman disabled? For cases arising prior to 2009's amendments to the ADA, someone is disabled when: 1) He has a disability that substantially limits one or more major life activities, 2) He has a record of the impairment, or 3) The employer regards him as having such an impairment.

There is case law indicating that sleep is a major life activity. Sleep apnea severely impacts one's ability to maintain sleep throughout the night. Though one has to show more than vague assertions of sleeplessness, David had doctor's notes and a sleep study that reflected his impairment. These could also serve as a "record" of his impairment.

The second part of the test is whether David could perform the "essential functions" of the job. Olin argues that overtime was an essential function, and that all other available jobs also required overtime. But David asserts that's not true. This is exactly the sort of fact-based scenario appropriate for a jury to decide.

As for the third part of the test, both sides agree that no reasonable accommodations were made.

If you're keeping tally, David Feldman has credible arguments to potentially prove a disability discrimination case. When the facts are in dispute, it's a matter for a jury to decide. The judge previously dismissed the case before trial, but the case will now be sent back for further proceedings.

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