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EMT's disability lawsuit over counseling for affair reinstated on appeal

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EMT's disability lawsuit over counseling for affair reinstated on appeal

A former emergency medical technician who was fired after she refused psychological counseling that was required by a supervisor concerned about her “immoral” sexual conduct because of her affair with a married man, can pursue her Americans with Disabilities Act lawsuit, says an appeals court, in reversing a lower court ruling.

Emily Kroll, who was hired as an EMT by Whitehall, Michigan-based White Lake Ambulance Authority in 2003, began an affair with a married co-worker in 2007, according to Tuesday's ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Emily C. Kroll v. White Lake Ambulance Authority.

Their relationship was rocky and punctuated by frequent arguments, according to the ruling. Her supervisor, Brian Binns, told her she needed counseling because of her “immoral personal behavior,” according to the ruling. When she refused treatment because she could not afford to pay for it, she was terminated.

Ms. Kroll filed suit, charging violation of the Americans with Disabilities Act because she had been required to submit to a medical examination that was not “shown to be job-related and consistent with business necessity,” which is a prerequisite under the law.

This week's ruling is the second in the case by the 6th Circuit. In the first instance, the appellate court overturned a ruling by the U.S. District Court in Grand Rapids, Michigan, and held that psychological counseling could constitute a medical examination under the ADA. It then remanded the case back to the district court.

In this latest case, the appellate court considered whether the required counseling was job-related and consistent with business necessity. It overturned the District Court's ruling again and held it was not.

The counseling required could be justified only if Mr. Binns “had a reasonable basis for believing that Kroll was unable to perform the essential functions of her job,” said the ruling by a unanimous three-judge panel of the 6th Circuit.

While there is “ample evidence that Kroll began displaying aberrant emotional behavior after she became embroiled in her relationship” with the co-worker, this behavior is relevant only “to the extent it interfered with her ability to administer basic medical care and safely transport patients to the hospital. A reasonable jury could find that Kroll's emotional outbursts outside of work hours and not in the presence of patients did not impair her ability to perform essential job functions,” said the ruling.

Two isolated job incidents, one in which she used her cell phone while driving and another in which she refused to administer oxygen to a patient, did not “support the conclusion that Kroll was experiencing an emotional or psychological problem that interfered with her ability to perform her job functions,” said the ruling.

The only evidence relating to Mr. Binns' decision-making process “strongly suggests that he made his decision based on moral convictions rather than medical concerns,” said the ruling.

“This open admission that an employer ordered a medical examination based on moralistic condemnation of an employer's private behavior is troubling to say the least. A jury could easily conclude from Binns' own testimony that he did not base a conclusion that Kroll posed a direct threat on a 'reasonable medical judgment,'” said the court, in reinstating the lawsuit and remanding the case for further proceedings.

Last month, an appeals court reinstated a sex discrimination and hostile work environment claims filed by a former Indiana prison substance abuse counselor who was fired because she had an affair with a co-worker.

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