Tenth Circuit: Non-Medical Evidence Insufficient to Establish Disability

On December 30, 2014, the Tenth Circuit Court of Appeals followed its prior holding in Felkins v. City of Lakewood (10th Cir. 2014) determining that non-medical evidence, testimony by the plaintiff, is insufficient to establish that the alleged substantial limitations in thinking were caused by his depression. That insufficiency in evidence meant that the plaintiff failed to prove he is “disabled” under the Americans with Disabilities Act, as amended in 2008. The court held that the plaintiff’s testimony simply described his symptoms rather than linking those symptoms to his depression. Enlow v. Covidien LP (10th Cir. 2014).

While it’s no surprise that a court follows its own precedent, employers should take note of these two cases. Employers engaging in the interactive process to identify a reasonable accommodation are sometimes reluctant to request medical documentation of the disability, given the Equal Employment Opportunity Commission published guidance that the definition of “disability” be construed broadly and that the determination of whether an individual has a “disability” generally should not require extensive analysis. It is often appropriate to seek expert medical advice to confirm that the employee is actually disabled and to identify the appropriate accommodation(s) for the employee.