Working with Migraine is challenging. During an attack, few people can actually work. If they do manage to stay on the job, their work productivity is often compromised. In most cases, a Migraine attack will force us to leave early, come in late, or miss the day altogether. When those absences start piling up, and our paid time off disappears, our jobs can be in jeopardy. Then again, missing an important day or running afoul of the wrong supervisor can also cost us our jobs.
Fortunately, we do have some protections through the Americans with Disabilities Act (ADA). Because Migraine is not specifically mentioned as a disability (most disabilities are not), it is up to the courts to decide on a case-by-case basis which individuals are disabled by Migraine and which employment situations rise to the level of disability discrimination. These decisions are not always in favor of Migraine patients.
A recent decision by the U.S. District Court is good news for employed Migraine patients. The plaintiff was fired from her job at Westar Energy because of excessive absences. According to allegations in the original filing, after informing Human Resources that her absences were due to Migraine, she was told that Migraine attacks, “are not a cognizable disability, and that she had no right to any reasonable accommodations.” In response, she filed a suit against her former employer, claiming disability discrimination on the basis that Westar had refused her request for reasonable accommodations.
The attorney for Westar filed a motion to dismiss the case on the grounds that the plaintiff failed to submit enough fact to establish that her claim of discrimination was plausible. The submission of facts is a requirement in order to make a claim of discrimination. Essentially, the plaintiff has to tell the court what happened and why he or she believes it was discriminatory. If the plaintiff doesn’t offer facts to support the claim or if the claim is not plausible, then the case can be dismissed.
The judge ruled that the plaintiff did present sufficient facts to support a plausible claim. He denied Westar’s petition for dismissal. This means that the judge has determined that Westar may be guilty of disability discrimination. However, he did not rule that the plaintiff is disabled due to Migraine. Instead, this judgment allows the case to move forward.
Proving disability discrimination
In order to succeed in court, the plaintiff must now prove three things:
Plaintiff has a qualifying disability.
In order be considered a qualifying disability under ADA, the impairment must “substantially limit” one or more major life activities. The ability to work is considered a “major life activity.” The Department of Labor clarifies these definitions in Title 29 of the US Code:2
“An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.”
It goes on to state that, “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” In other words, the impairment need not be continuous in order to be a qualifying disability.
Plaintiff is a qualified person.
The Americans with Disabilities Act3 defines a “qualified person” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
Westar Energy is guilty of disability discrimination.
The Americans with Disabilities Act3 defines disability discrimination to include “not making reasonable accommodation to the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”
Case law is divided on whether Migraine is a qualifying disability and the burden of proof lies with the plaintiff. The outcome of this case could have lasting implications on workplace accommodations for anyone with Migraine. Updates will continue as this case progresses.
More helpful information:
1 Bethscheider V. Westar Energy, Case No. 16-4006-CM (D. Kan. Jan. 13, 2017).
2 Office of the Secretary of Labor. Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act - Definitions. Title 29, Subtitle B, Chapter XIV, Part 1630, § 1630.2. Washington, D.C.: Department of Labor, 1991.
3 Titles I and V of The Americans With Disabilities Act Of 1990 (ADA). Eeoc.gov. 2017. Accessed: March 8, 2017.
Reviewed by David Watson, MD.
© Tammy Rome, 2017.
Headache disorders advocate, blogger, and mental health therapist, Tammy maintains a private practice specializing in behavioral pain management, as well as writing for her own blog, Brain Storm. She also volunteers as Vice Chair of the American Headache and Migraine Association and as President of The Cluster Headache Support Group. You can read more of Tammy’s work on her blog and follow her on Facebook, Twitter, StumbleUpon, Pinterest, LinkedIn, and Google+.
Headache disorders advocate and patient expert, blogger, and mental health therapist, Tammy Rome maintains a private practice specializing in behavioral pain management, as well as writing for her own blog, Brain Storm. She also volunteers as vice chair of the American Headache and Migraine Association and as president of The Cluster Headache Support Group. You can read more of Tammy’s work on her blog and follow her on Facebook, Twitter, StumbleUpon, Pinterest, LinkedIn, and Google+.