1.Pat Karowan applied for a position with Etrade. With superior credentials, she was passed up for a younger applicant. Pat also had a cancerous kidney removed. Etrade feared she would cause their health costs to increase so Etrade did not want to take that risk.
The legal issues at hand are, did Etrade violate the ADA and/or the ADEA? Pat Karowan has a disability and may have been discriminated against because of her disability. She was also passed up for a younger candidate; she could have been discriminated against because of her age and have a claim.
We don’t know the potential financial risk or the cost that her cancerous kidney has on Etrade. It would be helpful to know what that risk was to see if it created an undo hardship on Etrade. For the Americans with Disabilities Act: “Plaintiff must prove by a preponderance of the evidence that [he/she] had a “disability.” A person had a disability if [he/she], at the time of the employment decision affecting [him][her],
[Had a physical or mental impairment that substantially limited one or more of the major life activities of the person] [or]
[Had a record of having a physical or mental impairment that substantially limited one or more major life activities] [or]
[Was regarded as having a physical or mental impairment that substantially limited one or more major life activities.]” (legal research information 33).
In order to maintain a claim under the ADA, the Plaintiff must prove that, at the time of the employment decision affecting the Plaintiff:
I She was disabled within the meaning of the ADA;
II. She was otherwise qualified for the position desired and was able to perform the essential functions of that position with or without reasonable accommodation; and
III. The Defendant discriminated against her in its employment decisions because of her alleged disability.
The authority for this came from 42 U.S.C. § 12112(a); 29 C.F.R. § 1630.2(m); Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1203-04 (10th Cir. 2003); Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1257 and n.4 (10th Cir. 2001)
Pat could prove that having a cancerous kidneys removed limits a major life activity. We don’t know exactly what it limits Pat from doing but I am assuming she cannot do everything a healthy human can do with two kidneys. In Treiber v. Lindbergh School Dist., it was held that a teacher's breast cancer was an “impairment” for the purpose of the Americans with Disabilities Act of 1990. She can definitely provide documentation from her surgery with her medical records if she wanted to. Even though Pat has a disability, she could still perform the essential functions of the job with or without a reasonable accommodation. She is qualified and it does not create an undo hardship on Etrade. Etrade has more than 15 employees so the ADA would apply to the company. Pat has 180 days to file with the CCRD and 300 days to file her discrimination charges with the EEOC.
Pat should also file a disparate treatment claim, under Age Discrimination in Employment Act (ADEA). Pat can assert she was not hired because of her age being 52 years old. For the ADEA in order for the Plaintiff to establish a claim of age discrimination, Pat must prove by a preponderance of the evidence that her age was a “determining factor” in the Defendant’s decision to not hire her at Etrade. Age is a “determining factor” if a defendant’s decision to not hire her was based upon the Plaintiff’s age. Pat is not required to prove that her age was the sole or primary motivation for the Defendant’s decision. Rather, age is a “determining factor” if the Plaintiff’s age made a difference in the Defendant’s decision; that is, but for the Plaintiff’s age, the Defendant would not have not been hired (legal research information 22). The Authority comes from Jones v. Unisys Corp., 54 F.3d 624, 630-31 (10th Cir. 1995); Hazen Paper Co. v. Biggins, 507 U.S.