Approximately 30 million Americans suffer from migraines, including nearly one in five American women. The Rehabilitation Act and the Americans with Disabilities Act were likely not intended to cover all of these people, and many federal and EEOC cases have found some individuals’ migraines “not serious enough to interfere with major life activities.” See, e.g., Reiter v. Coughlin, 1992 WL 1370192 (EEOC).
In order to show a substantial limitation on the life activity of working, for example, a complainant must show that he or she is limited across a broad class of jobs. Therefore, it is not enough to show that an employee has a migraine condition which is triggered by the inability to perform the peculiarities of a specific position or job. In the EEOC case of Mossburg v. Potter (USPS), Appeal Nos. 01995641, 01996254 (2002), the complainant was unable to establish that she was an individual with a disability where she was unable to function during the course of a migraine but suffered few migraines outside work. The complainant attempted to argue that she was substantially limited in the major life activity of working because she would not work near four, hanging fluorescent lights in the Computer Forwarding Unit of the Kokomo Post Office, which triggered her migraines. She suggested that she should be accommodated by being allowed to work without the lights or in another location on the workroom floor. She could only identify avoidance of fluorescent lighting as a limitation on her activities outside the workplace. The EEOC found that she was not entitled to accommodations because “[n]ot being able to work as a clerk in one location in the Kokomo Post Office does not constitute a substantial limitation on the major life activity of working.”
Likewise, in Barfield v. Bell South Telecommunications, 886 F.Supp. 1321 (S.D.Miss. 1995), a plaintiff who could not talk on the telephone while sitting at her computer while experiencing a migraine was unable to show that she was precluded from performing a wide range of jobs. In Henderson v. England (Dept. of Navy), EEOC Appeal No. 03A00113 (2002), the petitioner faced a different problem: showing that the migraine condition was a permanent or long-term one. Facing adverse consequences of unapproved absences, the petitioner inadequately documented that the migraines caused a substantial limitation in any major life activity. The relevant doctor’s note said the employee should not return to work because of migraines stemming from unfair treatment-related stress. However, the migraine condition arose only one month before the employee’s absences.
On the other hand, though a migraine condition must be a permanent or longstanding one to constitute a legally-cognizable disability, it need not be debilitating all the time. In Dutton v. Johnson County Bd., 859 F.Supp. 498 (D.Kan. 1995), the plaintiff, a migraine sufferer, created a genuine issue of material fact as to whether he was disabled within the ADA’s meaning because his headaches were severe and debilitating when they occurred. He suffered such migraines intermittently for over 20 years. While experiencing a headache, the Dutton plaintiff was unable to drive or carry on most normal, everyday tasks that an unimpaired individual is able to do – including doing any type of work.
Because an essential function of nearly every job is reliable attendance, a severe migraine condition can be substantially limiting in working if it causes unpredictable absences at a rate that (without reasonable accommodations) would limit an employee’s ability to hold any type of job. In this sense, severe migraines are like several other disabilities, such as severe epilepsy or severe ulcerative colitis. An employee who has such a condition can only prove he or she is a “qualified individual with a disability” when provided reasonable accommodations, because someone who is excessively absent from work is not “qualified” unless he/she is allowed flexibility as to the employer’s attendance policy. See, e.g., Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994). As to the reasonable accommodations, an employee can request, for example:
- that an agency accommodate his/her disability by allowing use of vacation time for unscheduled absences due to illness when he/she has exhausted available sick leave;
- a transfer to a less stressful team (if this will not impose an undue hardship on the employer);
- altered work hours and a reduced work day; or
- that he or she be allowed to work from home several days a week.
However, as with all reasonable accommodation requests, a migraine-afflicted employee will need to show that the accommodations requested will not impose any undue hardship on the agency. Generally, for example, a receptionist will not be allowed to work from home as an accommodation for a migraine condition, because he or she must be present in the office to greet visitors and answer the phone.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
