Chp 10 Disability Dr. Gilmore

Entities covered by the ada

All private, state, local, and municipal (not federal) employers affecting commerce with 15 or more employees in the current or prior year (the same as Title VII) Does not cover federal employers. Premise behind this decision is that federal employees already enjoy strong coverage under RE-73.

Failure to Reasonably Accommodate Disability

See picture As in Title VII, the ADA covers the terms, conditions, and privileges of employment, segregation and classification, and retaliation

Although an employer must do more than just consider a disabled employee for a vacant position, the obligation to reassign does not include:

reassigning a disabled employee to a position for which he or she is not qualified; bumping a non-disabled employee from the position he or she currently holds; creating a new position for the disabled employee; promoting a disabled employee; and violating legitimate seniority policies, transfer policies, provisions of a collective bargaining agreement, or the legitimate contract rights of non-disabled employees.

The acrophobic bridge worker

An employee worked as a "highway maintainer" on a bridge crew. His tasks included bridge work but also operating and repairing maintenance vehicles, directing traffic, and cutting grass. He informed his employer that he had a fear of heights and had occasional difficulty working high up in an unsecured environment. His problem was informally accommodated by trading off work assignments with coworkers, a common practice among the members of the bridge crew. On one occasion, he experienced a panic attack while attempting to change light bulbs on a bridge over the Mississippi River. He was immediately placed on sick leave and diagnosed with acrophobia—a fear of heights. He requested a return to work with the accommodation that he not be required to work at heights in excess of 25 feet. Despite statements from two independent psychiatrists that he was fit to return to work if not required to work at certain heights, his employer declined to reinstate him to the bridge crew or any other position. The employee sued for failure to reasonably accommodate. Is this a disabled employee with a right to receive the requested accommodation? (Miller v. Illinois Department of Transportation, 2011 U.S. App. LEXIS 9534 [7th Cir.]). This case was decided under the standards that existed prior to the ADA Amendments Act. The appeals court reversed the lower court's grant of summary judgment to the agency. The plaintiff brought the case under the "regarded as" prong of the definition of disability. The court found sufficient evidence that the employer regarded the plaintiff as being precluded from a substantial class of jobs due to his condition. After the plaintiff was formally diagnosed with acrophobia, IDOT immediately kept him from performing any bridge crew task, even those that could be performed from the ground (e.g., maintenance and operation of vehicles and equipment, spreading salt and gravel, cutting grass, and directing traffic). The plaintiff was placed on nonoccupational disability leave. Even after he was cleared by two psychiatrists to return to work without any significant restrictions, IDOT continued to restrict the plaintiff from returning to any tasks performed by the bridge crew. The court went on to conclude that a reasonable jury could find that Miller's request for accommodation—that other members of his team substitute for him when a task required working above 25 feet in an exposed or extreme position—was reasonable. In the court's view, this accommodation would be reasonable because it did not require the elimination of an essential function of the job. It was normal for members of the bridge crew to substitute and reassign tasks among themselves according to individual abilities, preferences, and limitations. The requested accommodation did not ask IDOT to do anything it had not already done. [The court did not take up the issue of whether any accommodation would be required for an employee perceived to be disabled, but not actually disabled. The regulations to the ADA Amendments Act (29 CFR § 1630.2 (o)(4)) clearly indicate that accommodation is not required when only a perceived disability is involved.] The court found sufficient evidence that the employer regarded the plaintiff as being precluded from a substantial class of jobs due to his condition. After the plaintiff was formally diagnosed with acrophobia, IDOT immediately kept him from performing any bridge crew task, even those that could be performed from the ground (e.g., maintenance and operation of vehicles and equipment, spreading salt and gravel, cutting grass, and directing traffic). Miller's request for accommodation—that other members of his team substitute for him when a task required working above 25 feet in an exposed or extreme position—was reasonable because it did not require the elimination of an essential function of the job. It was normal for members of the bridge crew to substitute and reassign tasks among themselves according to individual abilities, preferences, and limitations.

The teacher with seasonal affective disorder

A schoolteacher was successful at teaching kindergarten for five years. She requested to teach first grade and was then reassigned to a classroom that had no exterior windows. She told the school principal that she suffered from seasonal affective disorder, a form of depression. She made numerous requests to be moved to a classroom with natural light, but the school refused to do so. She also presented the school district with a letter from her psychologist stating that her depression was being exacerbated by the lack of natural light. Another teacher who had been assigned to a classroom with exterior windows had offered to switch rooms. There was also one vacant room with exterior windows, but this room was being reserved for the possible addition of another class section. The woman's health deteriorated. She suffered from significant inability to concentrate, organize her thoughts, retrieve words, make decisions, and focus on the needs of her students. She also experienced racing thoughts, panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide. She went on medical leave. Eventually, she quit and went to work elsewhere. Did this employer fail to reasonably accommodate this employee? (Ekstrand v. School District of Somerset, 583 F.3d 972 [7th Cir. 2009]). The appeals court reversed the district court's grant of summary judgment to the school district on the teacher's failure to reasonably accommodate disability claim. [However, summary judgment was affirmed on her additional claim that she was constructively discharged .] The parties apparently did not dispute that the teacher's seasonal affective disorder was a disability. On November 28, 2005, the plaintiff's doctor notified the school district's workers' compensation claims representative of "the importance of natural light for individuals with a history of this disorder" and that "Mrs. Eckstrand's current episode of depression was most likely directly related to a change in her work location, to a room lacking any [exterior] windows." Prior to then, the plaintiff had not provided the school district with anything more than her own belief that natural light was necessary to accommodate her. Thus, there was no evidence that the school district knew natural light therapy was the only way to accommodate the plaintiff before November 28. However, once the district became aware of the medical necessity of natural light, and having been informed by the plaintiff two weeks earlier that she was willing and able to return to work in a classroom with natural light, the school district was obligated to provide Ekstrand's specifically requested, medically necessary accommodation unless it "would impose an undue hardship" on the school district. "Little hardship would have been imposed in providing Ekstrand an available classroom." The school district would have experienced costs associated with switching the items in the two rooms and with performing any necessary readjustments specific to the teachers' respective curricula. If the teacher had been accommodated by providing the empty room, it would have experienced the costs of moving her items, plus the costs of switching and readjustment due to the room being needed for a new third-grade section reduced by the probability that creation of the third-grade section would not occur. These costs were judged to be modest. Once the school district became aware of the medical necessity of natural light, they were obligated to provide the accommodation unless it "would impose an undue hardship" on the school district. The court concluded that "little hardship would have been imposed" given there was an available classroom. The appeals court reversed the district court's grant of summary judgment to the school district on the teacher's failure to reasonably accommodate disability claim. [However, summary judgment was affirmed on her additional claim that she was constructively discharged .] The parties apparently did not dispute that the teacher's seasonal affective disorder was a disability.

Examples of covered medical conditions

Alcoholism Disfigured persons Persons with HIV/AIDS The ADA does not contain a list of covered disabilities. The assessment of disability under the ADA is based on an individualized assessment of the effects of disorders on functioning, rather than on diagnostic labels.

Workers compensation history and the ada

An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his/her condition or worker's compensation history.

Statistics on the disabled

In 2007, more than 15 years after the ADA was signed into law...... Of Working-age Individuals Employed 79.7% without disabilities 36.9% with disabilities Poverty Rate for Working-age Individuals 10% without disabilities 25% with disabilities

Examples of reasonable accommodation

Making facilities accessible Restructuring jobs Devising part time or modified work schedules Providing additional time on a test Providing voice recognition software Providing qualified readers or interpreters Achieving reasonable accommodation should be a continuing, interactive process between employer and employee.

The rehabilitation act

Prohibits discrimination in employment against handicapped workers who, with reasonable employer accommodation, could do the job.

ADA amendments

The ADA was most recently amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) Signed into law on September 25, 2008 Became effective on January 1, 2009

Possible disabilities excluded under the ada

Transvestitism, transexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual impairments, or other sexual behavior disorders Compulsive gambling, kleptomania, or pyromania Psychoactive substance use disorders resulting from current illegal drug use The ADA does not include a list of disabilities that are covered under protected classes However, there are unconditional exclusions:

The rehabilitated postal worker

A postal worker was terminated for misconduct after he showed up at work under the influence of alcohol, turned over a coworker's desk and attempted to hit her with a chair before being restrained. Five years later, after successfully completing a rehabilitation program, he applied for reinstatement and was rejected. He sued, claiming that the Postal Service was discriminating against him because of his past disability. Can the USPS refuse to hire him? The 6th Circuit Court of Appeals upheld the Postal Service's refusal to rehire the worker and reiterated that an employer may lawfully discipline and refuse to rehire an employee based on incidents of misconduct, even where such misconduct is alleged to have been caused by alcoholism. As stated by the court, the law "does not permit an employee who has fallen below acceptable performance or behavior standards to use the disability as a shield from retribution." However, a recovered alcoholic with no history of misconduct is generally protected as a qualified individual with a disability under the ADA if s/he can otherwise perform the essential functions of his job with or without a reasonable accommodation.

Proving substantial limitation

According to the EEOC's ADA Interpretive Guidelines: The determination . . . must be made on a case by case basis, without regard to mitigating measures Case by case ― no impairment is a disability as a matter of law Without mitigating measures ― requires assessment of impairments in their non-corrected state (except for ordinary eyeglasses or contact lenses intended to fully correct visual acuity)

Alcoholism and the ada

According to the EEOC, alcoholism is a physical impairment. Alcoholics are covered under the ADA. HOWEVER: an employer may discipline, discharge, or deny employment to an alcoholic whose current use of alcohol adversely affects job performance or conduct to the extent that s/he is not "qualified".

Laws providing employer obligation to accommodate disability

Americans with Disabilities Act of 1990 Covers private employers and state and local (not federal) government employees Amended by the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 The Rehabilitation Act of 1973 Covers federal government employers and federal government contractors and subcontractors (>$10,000)

Psychiatric disabilities and the ADA

An employee with a psychiatric disability works in a warehouse loading boxes onto pallets for shipment. He has no customer contact and does not come into regular contact with other employees. Over the course of several weeks, he has come to work appearing increasingly disheveled. His clothes are ill-fitting and often have tears in them. He also has become increasingly anti-social. Coworkers have complained that when they try to engage him in casual conversation, he walks away or gives a curt reply. When he has to talk to a coworker, he is abrupt and rude. His work, however, has not suffered. The employer's company handbook states that employees should have a neat appearance at all times. The handbook also states that employees should be courteous to each other. When told that he is being disciplined for his appearance and treatment of coworkers, the employee explains that his appearance and demeanor have deteriorated because of his disability which was exacerbated during this time period. Can the employer proceed with disciplinary action or does this situation require a "reasonable accommodation"?

According to the EEOC

An employer may discipline an individual with a psychiatric disability for violating a workplace conduct standard if: the workplace conduct standard is job-related for the position in question, and is consistent with business necessity. This employee has no customer contact and does not come into regular contact with other employees. Therefore, rigid application of the dress code and coworker courtesy rules to this employee would violate the ADA.

Workers compensation history and the ada

An employer may not inquire into an applicant's workers' compensation history before making a conditional offer. After making a conditional job offer, an employer may inquire about a person's workers compensation history in a medical inquiry or examination if all applicants in the same job category are required to have an examination.

Disqualification based on direct threat

An otherwise qualified disabled person who poses a "direct threat" to the health and safety of him/herself or others (which cannot be eliminated by reasonable accommodation) is not qualified under the ADA. The direct threat must be based on objective medical evidence Individual must currently pose a significant risk of significant harm The employer usually has the burden of proving a direct threat unless the job involves significant public safety functions To be protected by the ADA, a person must be not only disabled, but also qualified, having the necessary skills, education and experience. Most focus on probability of transmission Courts have routinely treated AIDS and other infectious diseases as an insurmountable barrier in jobs requiring invasive medical procedures and jobs involving sharp objects Doe v. Maryland (1995) Resident in surgery (Doe) was terminated after contracting HIV and refusing a transfer to a nonsurgical residency Bradley v. University of Texas (1993) Estate of Mauro v. Borgess Medical Center (1998) EEOC v. Prevo (1998) Importance of job context Lower Court Rulings on Other Impairments Key role of job context Darnell v. Thermafiber (2005) 7th circuit ruled that a diabetic applicant whose diabetes was not under control was a direct threat to safety because the job involved operating dangerous equipment Sarskycki v. UPS (1994) Sarskycki defeated UPS (1994) by making a facial showing that he could safely operate vehicles weighing less than 10,000 pounds (DOT rules covered only vehicles over 10,000 pounds), if he had access to food at all times Case-by-case test applicable here, but case-by-case test is inapplicable under Prong 1 when employer is compliant with federal agency regulations

Requirement to "flexibly interact"

Applicants and employees must flexibly interact with employers to help fashion reasonable accommodations Duty to flexibly interact includes responsiveness to employer requests for outside information, when needed Discuss Keith v. County of Oakland ADA covers only known disabilities Employers cannot be blindsided by unknown disabilities after the fact Employee must demonstrate s/he informed employer Applicants and employees must flexibly interact with employers to help fashion reasonable accommodations Duty to flexibly interact includes responsiveness to employer requests for outside information, when neededEmployee's Responsibility for "Interactive Process": Identification and Request of Reasonable Accommodation. 1. Once the request has been made, the employee has the responsibility to work with the employer to determine the most appropriate accommodation. 2. Failure of the employee to cooperate can preclude a claim under the ADA. 3. "The federal regulations implementing the ADA envision an interactive process that requires participation by both parties." This requirement of interaction would usually include meeting with the worker, obtaining as much information as possible about the condition, discussing alternatives, considering accommodations, and documenting the process. 4. The EEOC's Enforcement Guidance on reasonable accommodations specifically states that employers have a right to request medical documentation of disabilities in order to best satisfy their duty to reasonably accommodate. Employee's Responsibility for "Interactive Process": Identification and Request of Reasonable Accommodation. 1. Once the request has been made, the employee has the responsibility to work with the employer to determine the most appropriate accommodation. 2. Failure of the employee to cooperate can preclude a claim under the ADA. 3. "The federal regulations implementing the ADA envision an interactive process that requires participation by both parties." This requirement of interaction would usually include meeting with the worker, obtaining as much information as possible about the condition, discussing alternatives, considering accommodations, and documenting the process. 4. The EEOC's Enforcement Guidance on reasonable accommodations specifically states that employers have a right to request medical documentation of disabilities in order to best satisfy their duty to reasonably accommodate. Employee's Responsibility for "Interactive Process": Identification and Request of Reasonable Accommodation. 1. Once the request has been made, the employee has the responsibility to work with the employer to determine the most appropriate accommodation. 2. Failure of the employee to cooperate can preclude a claim under the ADA. 3. "The federal regulations implementing the ADA envision an interactive process that requires participation by both parties." This requirement of interaction would usually include meeting with the worker, obtaining as much information as possible about the condition, discussing alternatives, considering accommodations, and documenting the process. 4. The EEOC's Enforcement Guidance on reasonable accommodations specifically states that employers have a right to request medical documentation of disabilities in order to best satisfy their duty to reasonably accommodate.

Work as a major life activity

Broad Range Test Individuals claiming work as the major life activity must prove they are substantially limited with respect to a broad range of jobs compared to the average person who has comparable knowledge, skills, and abilities The inability to perform a single job would fail the "Broad Range Test" Work was not always viewed as a major life activity EEOC Interpretive Guidelines―work should be included as a major life activity Broad Range Test Individuals claiming work as the substantially limited major life activity must prove they are substantially limited with respect to a broad range of jobs Proving one is unable to perform a single job would fail the substantial limitation "Broad Range Test" In Thomas v. Avon Prods., Inc., the court held that migraine headaches caused by exposure to chemicals in the working environment did not constitute a disability. Since her condition only prevented her from participating in those jobs surrounded by certain odors, rather than "a broad range of jobs in various classes," she was "not substantially limited in a major life activity." (See Scenario 1.) Individuals who make this claim must demonstrate that they are substantially limited to a broad range of jobs (i.e., a class of jobs or various classes of jobs compared to the average person who has comparable knowledge, skills, and abilities). Rejected claims Too temporary (major surgery, heart attacks) Not severe compared to "average person test" (back injury, lifting 25 pounds) Other (infertility, test anxiety, fungus allergy With regard to work ... "The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working."―ADA Examples of rejected claims based on work hurdle Acrophobia and working on upper floors Hemophilia and firefighting Asthma and poor ventilation The ADAAA defines transitory as an impairment with an actual or expected duration of 6 months or less The average person test was not addressed by the ADAAA ADAAA endorses that illnesses that are episodic in nature must substantially limit a major life activity in its active state Since the average person test was not addressed it should be presumed to have the force and effect of law unless and until it is altered by the EEOC

Case example : Kallail v. Alliant Energy Corporate Services Inc., 8th Cir., No. 11-2202 (Sept. 4, 2012)

Terri Kallail was employed by Alliant Energy Corporate Services (AECS), as a resource coordinator at a distribution dispatch center (DDC) in Cedar Rapids, Iowa. Employees at the DDC monitor the distribution of electricity, gas and steam throughout a service area, and handle outages and other emergency situations to maintain the integrity of the systems. In order to provide adequate coverage, coordinators work schedules that rotate between 8 and 12 hour shifts, and between day and night shifts. The dual purposes of the rotating shifts were to provide adequate experience and training for the coordinators, and to enhance non-work life by spreading the less desirable shifts among all coordinators on a rotating basis.

ADAAA and perceived disability

The "Reasonable Mistake" Defense Employer may affirmatively prove the employee was responsible for the employer's erroneous perception and that the perception is not based on stereotypes of disabilities. Employers have no duty to provide a reasonable accommodation or reasonable modification to policies, practices, or procedures based solely on a perceived disability. Plaintiffs who would lose using Prong 1 because they could not pass the substantial limitation test, but who would win using Prong 3 Hollihan v. Lucky Stores (1996) Doane v. Omaha (1997) The ADAAA amended one aspect of Prong 3 Employers do not have to provide a reasonable accommodation or reasonable modification to policies, practices, or procedures based solely on Prong 3 ADAAA clarified the "reasonable mistake" defense Employer may affirmatively prove the employee was responsible for the employer's erroneous perception and that the perception is not based on stereotypes of disabilities Prong 3 claims regarding limited with respect to work, must still pass the broad range test Hollihan was terminated for severe outbursts. The organization forced the plaintiff to attend counseling for the outbursts. As a result of the mandated counseling, Hollihan was able to demonstrate prong 3, but would have failed prong 1 as ruled by the 9th circuit court. Doane v. Omaha (1997): a police chief excluded Doane because of blindness in one eye. The police chief testified that the blindness was not severely restrictive causing the 8th circuit court to rule in favor of Doane. That is, the police chief regarded Doane as having a disability. This amendment resolved a great deal of conflict between 6 circuit courts. For example, the 3rd and 11th circuits stated that employers do need to reasonably accommodate for prong 3, while the 5th, 6th, 8th, and 9th circuits disagreed. The third prong of the first hurdle states that an individual can claim he/she was regarded as physically or mentally handicapped (i.e., others misperceive an individual as being physically or mentally disabled as indicated by the attitude of others) This prong was included to protect individuals who experience adverse outcomes resulting from the attitudes exhibited by others Virtually all misclassification claims fall under Prong 3 Given that plaintiffs have to demonstrate a causal connection to a current adverse employment decisions, the majority of claims involving misclassification circumvent prong 2 of the first hurdle and are tried under prong 3 of the first hurdle. E.E. Black v. Marshall (1980) provides a good illustration Crosby had a history of back problems and was denied employment at a construction company After a pre-employment physical, a physician claimed Crosby was at risk for injury on the job when performing heavy lifting Crosby sought a second opinion for an orthopedic doctor Concluded if Crosby kept in shape there was no risk to safely perform the job Court ruled in favor of Crosby stating his impairment was misclassified as substantially limiting a major life activity Thus, Crosby would have lost the case if he used Prong 1 of the first hurdle because he did not have a current disability that substantially limited a major life activity, but won under Prong 3

What are the essential job functions?

The ADA's regulations' non-inclusive factors, continued: The consequences of not requiring the individual to perform the function The terms of a collective bargaining agreement The experience of past employees in the job The current work experience of employees in similar jobs Discuss Henschel v. Clare County Road Commission Employers must determine the essential functions of a job according to these criteria: The position exists to perform this function. Few other employees are available to perform this function. The function is highly specialized. Evidence of "essential functions" includes the employer's judgment, written job descriptions, and similar analyses. Focus on what needs to be accomplished rather than on how it is to be accomplished. In addition, an employer may not consider the possibility that an employee or applicant will become disabled or unqualified for the position in the future. If the applicant or employee is qualified at the time the adverse employment action is taken, the employer has violated the Acts.

Who is protected by the ADA?

Two initial requirements. The individual: Has a disability, AND Is qualified for the job in question

illegal drugs

Under ADA rules: Current users of illegal drugs are not protected Individuals with a record of addiction to illegal drugs are protected if not current users (i.e., rehabilitated) Under ADA rules Current users of illegal drugs are not protected under Prong 1 Individuals with a record of addiction to illegal drugs are protected if not current users (i.e., rehabilitated) Alcoholism is protected under Prong 1, but codified proscriptions related to consuming or being under the influence in the workplace Direct Threat may be raised for any other threat to worker or workplace safety that cannot be eliminated with reasonable accommodation

What are the essential functions of the job?

Under the ADA, a disabled person's ability to perform a job must be judged only in relation to the essential functions of the job. The ADA's regulations provide the following non-inclusive factors to determine if a function is essential: The employer's judgement as to which functions are essential Written job descriptions prepared before advertising or interviewing applicants for the job The amount of time spent on the job performing the function Employers must determine the essential functions of a job according to these criteria: The position exists to perform this function. Few other employees are available to perform this function. The function is highly specialized. Evidence of "essential functions" includes the employer's judgment, written job descriptions, and similar analyses. Focus on what needs to be accomplished rather than on how it is to be accomplished. In addition, an employer may not consider the possibility that an employee or applicant will become disabled or unqualified for the position in the future. If the applicant or employee is qualified at the time the adverse employment action is taken, the employer has violated the Acts.

What is a reasonable accommodation?

Under the ADA, employers are required to provide reasonable accommodation unless doing so would impose an undue hardship on the business. The accommodation would impose "significant difficulty or expense" in relation to the size of the company, its resources, and the nature of its operations. Accommodations that are unduly costly, extensive, substantial or disruptive or that would require fundamental alteration of the nature or operation of the business. The ADA codified and listed specific reasonable accommodations to enable the performance of essential job functions that could not otherwise be performed because of the disability Employers and employees/applicants must flexibly interact to discover accommodations Undue hardship may be determined by examining the following factors: 1)Nature and cost of the accommodation 2)Overall financial resources of the facility involved in the accommodation 3)Overall size of the employer 4)Type of operation of the employer 5)The EEOC guidelines add another requirement: the impact of the accommodation on the ability of the other employees' ability to do their jobs and on the facility to conduct its business.

The ADA and the EEOC

Charges of discrimination filed with the EEOC alleging violation of the ADA rose by 6% from 2014 to 2015. ADA claims surpassed gender discrimination as the third most common type of allegation behind only retaliation and race discrimination. As in Title VII, the ADA covers the terms, conditions, and privileges of employment, segregation and classification, and retaliation

Illegal drugs

Current Use vs. Rehabilitation Rehabilitation implies prior addiction casual drug use is not protected Current use refers to the illegal use of drugs that has occurred "recently enough to indicate that the individual is actively engaged in such conduct" - Focus of drug tests Salley v. Circuit City (1997)―3 weeks McDaniel v. Mississippi Baptist (1995)―6 weeks Collings v. Longview (1995)―several months ADA―not used drugs for a substantial amount of time EEOC―illegal drug use that has occurred recently enough to indicate the individual is actively engaged in such conduct Reasonable Accommodation Rehabilitated drug addicts can receive reasonable accommodations. In both cases the waived duties were deemed marginal Wallace v. Veterans Administration (1988) Nurse excused from drug administration duties Nisperos v. Buck (1989) Lawyer excused from trying drug cases Illegal drug proscription does not generally apply to legally prescribed drugs c. It is also important to recall the Supreme Court's decision in Raytheon Co. v. Hernandez, discussed earlier in this chapter, which held that disparate impact claims are available to workers who test positive for illegal drug use. In that case, the worker was fired after a positive result on a drug test. The employer had a no-rehire policy but the court left open the possibility that individuals with disabilities may be entitled to differential treatment under facially neutral policies. Accordingly, recovering drug addicts and/or recovering alcoholics may claim that they should not be covered by such a policy.

Case exmamples direct threat

Echazabal v. Chevron (2002) Chevron refused to hire Echazabal based on a medical exam that showed liver damage Chevron claimed this condition would worsen with exposure to chemicals in the plant Supreme Court held in favor of Chevron

Likely disabilities according to the eeoc

Deafness Blindness Intellectual disability (mental retardation) Partially or completely missing limbs Mobility impairments requiring use of a wheelchair Autism Cancer Cerebral palsy HIV infection Multiple sclerosis Muscular dystrophy Bipolar disorder Post-traumatic stress disorder Epilepsy, plus a few others Congress included an employee who is perceived as being disabled in the definition of disability because it was concerned with discrimination stemming from simple prejudice, and also from "archaic attitudes and laws" and from "the fact that the American people are simply unfamiliar and insensitive to the difficulties confront[ing] individuals with disabilities." In 2008, the ADAAA clarified that a plaintiff is regarded as having an impairment if she or he can demonstrate that "he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity."

Pre-Offer Inquiries About Reasonable accommodation

EEOC Policy Guidance permits discussion of reasonable accommodation at the pre-offer stage if impairment is obvious, self-disclosed, or if a request for accommodation is made.

Fundamental alterations

Employers are not required to make fundamental alterations to the job Section 302 (b)(2)(A)(ii) "Reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved." After the ADA was amended in 2008, employers no longer have to make fundamental alterations ADAAA Section 302 (b)(2)(A)(ii) states, "Nothing in this Act alters the provision of section 302 (b)(2)(A)(ii), specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved" (p. 50) This amendment implicates that employers cannot subjectively define essential job functions, otherwise employers would evade ADA litigation by making marginal functions essential functions. That is, essential job functions should be determined by job analyses.

Regarded as disabled

Individuals who are not disabled, but are subjected to discrimination because they are perceived as being physically or mentally disabled. Applies whether or not the impairment substantially limits or is perceived to substantially limit, a major life activity. Reasonable accommodation is not required when only a perceived disability is involved.

Requirement 2: Is qualified for the job

Has the knowledge, skills, education, experience and other job-related requirements to perform all essential job functions with or without reasonable accommodation Individuals must be able to perform all essential job functions Employers are not required to eliminate or alter essential job functions Individuals who cannot perform all essential job functions, even with accommodation, face an insurmountable barrier

The incontinent court reporter

Having suffered from incontinence since approximately 1991 as a result of pregnancy complications, Jeanne Gratzl obtained an electronic court reporting position in the control room at the DuPage County, Ill., courthouse. The control room position did not require in court reporting and, thus, provided her with the flexibility to go to the restroom whenever necessary in order to manage her medical condition. However, the State of Illinois issued a policy change in 2006 effectively eliminating the control room specialist as a separate position and required all court reporters to rotate through the courtrooms in order to evenly distribute the workload. After being made aware of her new job responsibilities, the employee requested an accommodation— exclusive assignment to the control room. The court offered several different accommodations that would assist her in providing in-court reporting services, including allowing her to avoid assignment to a courtroom in which a trial was scheduled, establishing a signal for her to alert the judge that she needed a break and not assigning her to courtrooms where she would not be in close proximity to a restroom. Despite the many offers, the employee refused to consider any accommodation that required in-court reporting and asserted that only the exclusive assignment position could successfully accommodate her disability. Her employment was ultimately terminated. Following her termination, the court reporter filed a federal lawsuit claiming violations of the ADA and the Rehabilitation Act for failing to accommodate her incontinence. Does the ADA's reasonable accommodation requirement include maintaining Gratzl's former position? The appeals court held that she failed to establish she was qualified for the new job. In doing so, the court emphasized that an employer is not required to create a new position, strip a job of its essential functions or maintain an existing position that, for legitimate reasons, it no longer believes is appropriate. Moreover, the appeals court ruled that the employer fulfilled its obligation to construct and offer a reasonable accommodation, which was flatly rejected by the court reporter. Professional Pointer: This case illustrates the importance of an employer's engagement in the interactive process of accommodation requests by an employee. Once an employer receives a request for a reasonable accommodation, it should open up a dialogue with the objective of finding a reasonable accommodation without creating undue hardship for the employer. This process leads to better decisions, which often results in a win-win solution allowing the disabled employee to perform the job's essential functions. Moreover, by engaging in this process, the employer is more likely to successfully defend against a claim for failure to reasonably accommodate.

HIV/AIDS

In most workplaces, people who are HIV positive do not pose a direct threat to themselves or others. HOWEVER, courts have routinely treated AIDS and other infectious diseases as an insurmountable barrier in jobs requiring invasive medical procedures and jobs involving sharp objects The EEOC recently issued guidance entitled "Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA" To be protected by the ADA, a person must be not only disabled, but also qualified, having the necessary skills, education and experience. Most focus on probability of transmission Courts have routinely treated AIDS and other infectious diseases as an insurmountable barrier in jobs requiring invasive medical procedures and jobs involving sharp objects Doe v. Maryland (1995) Resident in surgery (Doe) was terminated after contracting HIV and refusing a transfer to a nonsurgical residency Bradley v. University of Texas (1993) Estate of Mauro v. Borgess Medical Center (1998) EEOC v. Prevo (1998) Importance of job context Lower Court Rulings on Other Impairments Key role of job context Darnell v. Thermafiber (2005) 7th circuit ruled that a diabetic applicant whose diabetes was not under control was a direct threat to safety because the job involved operating dangerous equipment Sarskycki v. UPS (1994) Sarskycki defeated UPS (1994) by making a facial showing that he could safely operate vehicles weighing less than 10,000 pounds (DOT rules covered only vehicles over 10,000 pounds), if he had access to food at all times Case-by-case test applicable here, but case-by-case test is inapplicable under Prong 1 when employer is compliant with federal agency regulations

Major life activities

Including (but not limited to): Caring for oneself Performing manual tasks Seeing; hearing; eating; sleeping; walking; standing; sitting; lifting; bending; speaking; breathing Learning, reading; concentrating; thinking; communicating; interacting with others, and working The operation of "major bodily functions" such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine , and reproductive functions

Insurmountable Barrier

Individuals who cannot perform all essential functions of the position sought (with or without reasonable accommodation) face an insurmountable barrier. Sec. 101(8) of the ADA defines a qualified person with a disability as a person who, with or without reasonable accommodation, can perform all essential functions of a position (i.e., the Prewitt standard) It is unreasonable as a matter of law to expect employers to alter or eliminate the essential functions of the job that the incumbent or applicant cannot perform Accommodation―it is reasonable to eliminate marginal duties but not essential duties People who cannot perform essential duties with or without accommodation face an "insurmountable barrier" The Prewitt standard has been illustrated in several cases relating to the definition of being qualified White v. York (1995) Milton v. Scrivener (1995) Lloyd v. Hardin County, Iowa (2002) PGA v. Martin (2001) White had an ankle injury that prevented him from standing for four hours at a time and lifting a minimum of 15 pounds. The 10th circuit court ruled that once the plaintiff produces sufficient evidence of a facial showing that an accommodation is possible, the burden of production is on the defendant to demonstrate their inability to accommodate the plaintiff. White lost the case because he did not identify any reasonable accommodations. Two impaired employees were not meeting production standards and asked that the standards be lessened. The 10th circuit court ruled that this accommodation was not reasonable and that employers do not have to change standards of a job to change the essential functions of that job. The relaxation or alteration of essential job functions again arose in Lloyd. In this case a truck driver was injured on the job and was ultimately terminated because he could no longer meet production standards. The 8th circuit court's ruling was analogous to Milton v. Scrivener (1995). That is, Lloyd was collecting Social Security Disability Insurance on the grounds that he was totally disabled. The courts were divided with some courts arguing that when a plaintiff collects such funds the case should not be tried, while other courts took the opposite perspective. These discrepancies were settled in Cleveland v. Policy Management Systems (1999) when the Supreme Court ruled that when a plaintiff has collected Social Security Disability Insurance it does not prevent ADA claims if the plaintiff can demonstrate that he/she is able to perform the essential functions of the job.

Record of a disability

Individuals with a record of a disability are protected under the ADA. Employees are sometimes discriminated against on the basis of a past disability, perhaps because of the stigma attached to certain conditions (mental illness) or a fear that it will reoccur (cancer). Sometimes people are misclassified, but the diagnosis remains on their records

Kallail v. Alliant Energy Corporate Services Inc., cont'd

Kallail is a Type I insulin-dependent diabetic. Due to difficulties managing her diabetes while working the rotating shifts, Kallail's physician recommended that she be limited to straight day shifts permanently to protect her from medical risks and complications in the future. AECS offered numerous other positions to her, but she refused them. She filed a charge of discrimination with the EEOC, and then a lawsuit, alleging that AECS failed to provide her with a reasonable accommodation. Because courts allow companies to determine the most productive or efficient shift schedule for a facility, the 8th Circuit held that AECS had lawfully designated the rotating shift schedule as an essential function of the job. Because Kallail could not work a rotating shift, she was unable to prove she was "qualified individual with a disability."

Reasonable accommodation and reassignment

Most courts have ruled employers must consider reassignment for disabled employees who can no longer remain in their current position.

facial disfigurement

Ms. Robichaud was told she would never be promoted to a management position at a McDonald's restaurant because of her appearance. In order to be eligible for a management position, an employee must show proficiency in handling several areas of the restaurant, including the front counter serving customers. The restaurant had removed her from the front counter position because they thought she might offend customers.

The americans with disabilities act

On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act of 1990 (ADA) - the world's first comprehensive civil rights law for people with disabilities.

Can the academy refuse to hire her?

Patricia Kramer applied for a position as a high school history teacher with the Monroe Township Academy. Although her credentials are superior, she was passed over for another applicant. Patricia had had a cancerous kidney removed. The Academy feared that she might be a candidate for dialysis, which could cause its health costs to increase. Because the academy was operating within a tight budget, Patricia posed a potential financial risk that it did not want to take. No. Patricia would have been hired had it not been for her disability.

why the need for the ADAA?

Primarily to overturn two USSCt cases: Sutton v. United Air Lines, Inc. - Held that mitigating measures must be considered when determining disability - Now, mitigating measures are not considered, except for ordinary eyeglasses or contacts. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams - Held that the standard for determining coverage under the ADA must be demanding - Now, the definition of disability "shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act."

Case examples direct threat

School Board of Nassau County v. Arline (1987) Arline was discharged after a relapse of tuberculosis Ruling: individuals are not qualified if an infectious disease poses a significant risk that cannot be reasonably accommodated. Significant risk defined according to: 1) Nature of the risk―how a disease is transmitted 2) Duration of the risk 3) Nature and severity of potential harm to others 4) Probability of transmission―imminence of potential harm Determination of direct threat must be made on a case-by-case basis School Board of Nassau County v. Arline (1987) Arline was discharged after a relapse of tuberculosis Justice Brennan: Ruled that individuals are not qualified if an infectious disease poses a significant risk that cannot be reasonably accommodated. Brennan defined significant risk using four prongs: 1) Nature of the risk―how a disease is transmitted 2) Duration of the risk 3) Nature and severity of potential harm to others 4) Probability of transmission―imminence of potential harm ADA Interpretive Guidelines use the same four prongs Determination of direct threat must be made on a case-by-case basis

Practices covered

Section 102 of the ADA states: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms conditions, and privileges of employment. As in Title VII, the ADA covers the terms, conditions, and privileges of employment, segregation and classification, and retaliation

"Substantially limits"

When an individual's major life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people in the general population Impairment need not completely prevent or even "significantly restrict" the performance of a major life activity Impairments must be relatively permanent The ADAAA defines transitory as an impairment with an actual or expected duration of 6 months or less, but Impairments that are episodic or in remission are to be assessed in their active state. ADAAA endorses that illnesses that are episodic in nature must substantially limit a major life activity in its active state 11. Can impairments that are episodic or in remission be considered disabilities? Yes. The ADAAA and the final regulations specifically state that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. This means that chronic impairments with symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms or effects would only substantially limit a major life activity when the impairment is active. The Appendix provides examples of impairments that may be episodic, including epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but that may possibly return in a substantially limiting form will also be a disability under the ADAAA and the final regulations. [Section 1630.2(j)(1)(vii) and corresponding Appendix section]

Requirement 1: Has a disability

When enacting the ADAAA, Congress stated that: The definition of disability "shall be construed in favor of broad coverage under this Act." Contrary to prior experience under the ADA, the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations ... [while] the question of whether an individual's impairment is a disability ... should not demand extensive analysis." Can be satisfied in any of three ways: A physical or mental impairment that substantially limits one or more major life activities A record of such impairment Being regarded as having such an impairment The ADA also protects those who are not disabled, but are discriminated against because of their association with disabled persons. Congress included an employee who is perceived as being disabled in the definition of disability because it was concerned with discrimination stemming from simple prejudice, and also from "archaic attitudes and laws" and from "the fact that the American people are simply unfamiliar and insensitive to the difficulties confront[ing] individuals with disabilities." In 2008, the ADAAA clarified that a plaintiff is regarded as having an impairment if she or he can demonstrate that "he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity."