Module 12 Disability Discrimination

The ADA and the Vocational Rehabiliatation Act provide that, as long as the applicant or employee is __________, with or without reasonable accommodation, the employer is prohibited from making any adverse employment decision solely on the basis of the disability.

"otherwise qualified" for the job

The ADA applies to all employers (state and local government entities and private companies) that employ:

15 or more employees.

In what case did the court make the point that it is the responsibility of the employer, not the employee, to find a reasonable accommodation, in response to the employer who refused to accommodate a disabled employee who asked for an extra 15 minutes when returning from lunch.

EEOC v. Convergys Cust. Mgt. Group, Inc. (8th Cir., 2007)

The third factor in a prima facia case for disability disparate treatment is:

If an accommodation is required, the accommodation is reasonable.

In Kees v. Wallenstein (9th Cir., 1998), the issue was:

Is direct inmate contact in a prison an essential, or merely peripheral, function of a corrections officer position?

The Vocational Rehabilitation Act of 1973, §503

Prohibits federal contractors (those with contracts > $10,000 per year) from discriminating against qualified individuals with disabilities. It also requires affirmative action in the hiring, placement and advancement of people with disabilities by federal contractors.

The Vocational Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in:

Prohibits federal employers from discriminating against qualified individuals with disabilities. It also requires them to take affirmative action to hire and advance in employment qualified individuals with disabilities.

The Vocational Rehabilitation Act of 1973, §501

Prohibits federal employers from discriminating against qualified individuals with disabilities. It also requires them to take affirmative action to hire and advance in employment qualified individuals with disabilities.

What are impairments that are NOT "disabilities"?

Routine pregnancy, predispositions to a disease or illness, personality traits (such as a short temper) that are not part of an underlying psychological disorder, and advanced age.

The second step in the process involving a disability disparate treatment case is:

The burden shifts to the employer to prove that the same decision would have been made regardless of the discriminatory reason ("legitimate non-discriminatory reason").

A plaintiff must prove the following factors for a prima facia case for disparate treatment:

The employee belongs to the protected class (is disabled); the employee is otherwise qualified to perform the essential functions of the job; if an accommodation is required, the accommodation is reasonable; and the employee suffered an adverse employment action.

The third step in the process involving a disability disparate treatment case is:

The employee is given an opportunity to show that the employer's reason for the adverse employment action was a mere pretext in order to discriminate based on disability.

The first step in the process involving a disability disparate treatment case is:

The employee presents a prima facia case.

Disparate treatment defenses are:

The employer did not receive proper notice of the disability or a request for a reasonable accommodation; the accommodation is unreasonable because it would pose an undue hardship or burden on the employer; and LNDR: a rational, reasonable explanation for the adverse employment action that is not based on the disability.

If the disability is based on a disease, the employer must prove that there is a "direct threat" to the health and safety of the employee and to others, based on:

The nature of the risk (how is the disease transmitted); the duration of the risk (how long the carrier is contagious); the severity of the risk (the potential harm to others); the probability that the disease will be transmitted and will cause varying degrees of harm.

What evidence showed that direct inmate contact is an essential function of the CO position in Kees v. Wallenstein (9th Cir., 1998)?

The written job description identified direct inmate contact as a fundamental duty of the position and other COs testified that jail safety was jeopardized by the Plaintiffs' inability to respond to emergencies.

When is notice not necessary?

When the disability and the need for an accommodation is obvious (i.e., the employee's use of a wheelchair).

What was the issue in Huber v. WalMart Stores, Inc. (8th Cir., 2007)?

Whether an employer who has an established policy to fill vacant positions only with the most qualified applicants is required to reassign a qualified disabled employee to a vacant position even though she is not the most qualified applicant for the position?

In 2013 the OFCC issued a rule that establishes:

a "7% quota system" for contractors with at least 50 employees and at least $50,000 in annual government contracts

In TWA, Inc. v. Hardison, the US Supreme Court held that to require an employer to incur more than just a de minimis cost is an undue hardship, but the ADA has:

a higher threshold, and would require an employer to incur much more than just a de minimis cost.

The term disability means:

a physical or mental impairment that substantially limits one or more major life activities of such individual; or a record of having such an impairment; or being regarded as having such an impairment.

The ADA requires that notices of federal laws prohibiting job discrimination be made available in a location that is:

accessible to individuals with disabilities that limit mobility.

Medical exams may only be required after the employment offer has been extended, and only where:

all employees in that job category are subject to similar exams.

In Lowe v. American Eurocopter, LLC, N.D. Miss., 2010, the court denied the Defendant's motion to dismiss and held that as a result of the 2008 amendment:

an employee "now might be considered disabled due to obesity under the ADA if her employer perceived her weight as an impairment."

"Being regarded" also pertains to someone who is perceived to be disabled because of her "association or relationship" with someone who is disabled. For example:

an employer refusing to hire an individual because she has a child with a disability, based on the employer's belief that caring for the child will negatively impact her work attendance or performance

Options for employees who are faced with potential discrimination due to disability are:

an internal procedure, the EEOC, a state agency, a federal lawsuit, or a state lawsuit.

Undue burden is not determined by financial cost alone, but also includes:

any accommodation that would be unduly extensive, substantial or disruptive, or would fundamentally alter the operation of the business.

EEOC defines "impairment" as:

any physiological disorder or condition . . . affecting one or more of the following body systems: . . . or any mental or psychological disorder.

"Direct threat" is a defense available to an employer to avoid liability under the ADA or the Vocational Rehabilitation Act for having taken an adverse employment action, however, it is only available when:

based on reasonable medical judgment and an individualized assessment of the circumstances, not stereotypes and generalizations.

"Major life activities", while not defined, includes (but is not limited to) functions such as:

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, speaking, breathing, working, as well as major bodily functions, such as immune system, reproduction, respiratory, bladder and bowel functions.

Employers are not required to accommodate a disabled employee by:

creating a new job, changing a full-time job to a part-time job, eliminating an essential function of the job, lowering production standards that apply to all employees or providing personal use items such as prosthetic limbs or hearing aids.

Alcoholism is a disability under the ADA and an alcoholic is entitled to reasonable accommodation if she is otherwise qualified to perform the essential functions of the job, but an employer may:

discipline or discharge an alcoholic whose use of alcohol adversely affects job performance (alcoholism vs. alcohol-related misconduct).

The US Supreme Court held in Raytheon v. Hernandez, 540 US 44 (2003) that two types of discrimination exist under the ADA:

disparate treatment and disparate impact.

Reasonable accommodation requires the removal of unnecessary restrictions or barriers and making modifications that:

do not place an undue burden or hardship on the employer.

The remedy for ADA retaliation claims is limited to:

equitable relief (i.e., reinstatement, if the employee was fired).

"Being regarded" as having such an impairment means that:

even though the individual is not disabled, as long as he or she is perceived by the employer as being disabled, then the employee has a disability.

An employer's written job description prepared before advertising for the job or interviewing applicants is:

evidence of essential functions of the job.

The Americans with Disabilities Act of 1990 __________ provided by the Vocational Rehabilitation Act to employees in the private sector.

extends the protection

"Essential functions" of the job are those tasks that are:

fundamental, not "peripheral" or marginally related tasks.

HIV/AIDS is a covered disability because the US Supreme Court held in Bragdon v. Abbott, 524 US 624 (1998) that:

it is an impairment that substantially limits reproduction, and that reproduction (and the functioning of the immune system, which was added by the 2008 ADA amendment) is a major life activity under the ADA.

The 3rd element of proving a prima facia case is to show that if an accommodation is required, the accommodation is "reasonable." This may include:

making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.

The Genetic Information Nondiscrimination Act (GINA) is a 2008 federal statute that:

prohibits group health insurance plans and health insurance companies from denying coverage based on a genetic predisposition to developing a disease in the future, and prohibits employers with 15 or more employees from requesting genetic testing and using an applicant's or employee's genetic information when making employment decisions.

Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities may be considered:

reasonable accommodations.

Prior to the 2008 amendment to the ADA, the US Supreme Court held that the determination of whether an impairment "substantially limits" a major life activity must take into account any mitigating or corrective measures that can be used to offset the impairment. But as a result of the amendment, the determination:

shall be made without regard to mitigating or corrective measures (such as medication, prosthetic devices, hearing aids), but eyeglasses and contact lenses shall still be considered.

In Templeton v. Neodata Services, Inc. (10th Cir., 1998), where the Plaintiff's ADA claim was dismissed because:

she refused to provide the Defendant with requested medical documentation from her physician.

In Samper v. Provid. St. Vincent Med. Center (9th Cir., 2012), the court held that the Plaintiff was not "otherwise qualified" for the position because:

she was unable to comply with the Defendant's attendance policy.

An impairment that is episodic or in remission is a disability if it would:

substantially limit a major life activity when active.

In Huber v. WalMart Stores, Inc. (8th Cir., 2007) the court held for the defendant even though the ADA states that reasonable accommodation "may include . . . reassignment to a vacant position . . ." because:

the ADA is not an affirmative action statute and does not require an employer to reassign a disabled employee when such reassignment would violate a legitimate nondiscriminatory policy to hire only the most qualified candidate.

In Wilson v. Phoenix Spec. Manf. Co., Inc. (4th Cir., 2008), an employee with Parkinson's disease was fired after being told there was a reduction in the workforce, but the employer then re-assigned another employee and refused the Plaintiff's request for reassignment. The employer also gave bonuses to all its employees that year. The trial court in this case concluded that:

the Defendant's LNDR explanation to the EEOC (downturn in sales) was a mere pretext to discriminate against the Plaintiff.

In EEOC v. Convergys Cust. Mgt. Group, Inc. (8th Cir., 2007) the court held for the plaintiff because:

the disabled employee first asked for an accommodation and provided details as to why he required an accommodation, but the employer did not make a reasonable effort to determine the appropriate accommodation (i.e., identify potential effective accommodations).

The second factor in a prima facia case for disability disparate treatment is:

the employee is otherwise qualified to perform the essential functions of the job.

The EEOC and some federal circuit courts have held that employers can also be held liable for disability harassment under ADA by co-workers or non-employees if:

the employer knows or should have known about the harassment and failed to take immediate and appropriate corrective action.

An employer may request "reasonable documentation" in response to an accommodation request, meaning:

the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability requires a reasonable accommodation.

The law requires employers to post a notice describing:

the federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability or genetic information.

"The employee belongs to the protected class (is disabled)" is:

the first factor in a prima facia case for disability disparate treatment.

"The employee suffered an adverse employment action (i.e., not hired, pay cut, demotion, fired)" is:

the fourth factor in a prima facia case for disability disparate treatment.

There is no jury trial, no compensatory damages, and unlike the ADEA, no punitive damages permitted for:

ADA retaliation claims.

If a job offer is withdrawn due to the discovery of a disability, the disability must be:

related to job performance or business necessity and there must exist no reasonable accommodation.

Undue burden means an action requiring significant difficulty or expense, considering:

the nature and cost of the accommodation; the size and financial resources of the employer; the number of employees; the impact of such accommodation on the business and on the other employees; and if cost is the reason for the undue hardship, was the employee given the opportunity to pay the "undue burden" portion of the cost?

"Substantially limits" was narrowly defined prior to the 2008 amendment to the ADA, but after the amendment Congress stated:

the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.