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Expert testimony not required to prove a “disability,” some of the times

The Tenth Circuit held that a plaintiff doesn’t always need to have a medical expert to confirm the plaintiff’s medical condition rises to the level of a “disability” protected by the Americans with Disabilities Act.

When is a medical expert required? “(W)]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof,” and that question needs to be asked by each court in each individual case. This seemingly circular standard — expert medical testimony is required when it is necessary to understand the medical condition — was somewhat clarified by the Tenth Circuit when the Court contrasted such cases, at least, against those where the disability is “obvious.”

In short, the Tenth Circuit’s decision makes clear that expert medical testimony is likely always helpful to a plaintiff, might sometimes be required but isn’t always, and no plaintiff, or defendant, will know until the trial court, after undertaking a case-by-case analysis decides in any given case.

Source: Tesone v. Empire Marketing Strategies, case no. 19-1026 (10th Cir. 11/8/19).

Tenth Circuit reaffirms Adverse Employment Action element of discrimination claims, including failure-to-accommodate claims under the ADA

The Tenth Circuit reaffirmed that plaintiffs must prove they suffered an Adverse Employment Action in all discrimination claims, including claims alleging a failure to accommodate under the ADA.

(A)n adverse employment action is an element of a failure-to-accommodate claim 
To establish an Adverse Employment Action, the plaintiff must prove more than that she suffered a “a mere inconvenience or an alteration of job responsibilities.” Rather, the Tenth Circuit held she must prove that she suffered harm to “a term, condition, or privilege of employment.”