CHAPTER 5
Disability Discrimination
CHAPTER 5 DISABILITY DISCRIMINATION
SYNOPSIS
§ 5.1 I. RECENT TRENDS & DEVELOPMENTS
§ 5.1.1 A. INTRODUCTION
§ 5.1.1(a) The Americans with Disabilities Act & the ADA Amendments Act of 2008
§ 5.1.1(a)(i) EEOC's Regulations Under the ADAAA
§ 5.1.1(b) The Genetic Information Nondiscrimination Act of 2008
§ 5.1.2 B. RECENT DISABILITY DISCRIMINATION CASES
§ 5.1.2(a) What Is a Disability?
§ 5.1.2(a)(i) The ADAAA Rejects the Supreme Court’s Strict Interpretation of the ADA
§ 5.1.2(a)(ii) Side Effects of Medication May Render an Individual “Disabled”
§ 5.1.2(b) What Are Major Life Activities Under the ADAAA?
§ 5.1.2(c) What Are the Essential Functions of a Job?
§ 5.1.2(c)(i) Attendance is an Essential Function, But Employer Must Consider Potential Accommodations
§ 5.1.2(c)(ii) The Functions Must Be Essential, Not Merely “Typical”
§ 5.1.2(c)(iii) Inconsistent Representations in Social Security Disability Claim May Destroy Employee’s
Claim
§ 5.1.2(d) Requests for Accommodation & the Interactive Process
§ 5.1.2(d)(i) Assistance with Commuting to and from Work as a Reasonable Accommodation
§ 5.1.3 C. MEDICAL USE OF MARIJUANA CASES
§ 5.2 II. OVERVIEW OF DISABILITY DISCRIMINATION LAW
§ 5.2.1 A. EMPLOYERS SUBJECT TO THE ADA
§ 5.2.1(a) Public Employers
§ 5.2.1(b) Supervisors
§ 5.2.2 B. PERSONS PROTECTED BY THE ADA
§ 5.2.2(a) Contingent Workers as Employees
§ 5.2.2(b) Retirees & Former Employees
§ 5.2.2(c) Independent Contractors Are Not “Employees” for Purposes of the ADA
§ 5.2.2(d) Volunteers as Employees
§ 5.2.3 C. WHAT IS A DISABILITY?
§ 5.2.3(a) “Substantially Limits” Defined
§ 5.2.3(b) Temporary Impairments
§ 5.2.3(c) Physical Impairments Defined
§ 5.2.3(d) Voluntary Impairments Defined
§ 5.2.3(e) Mental Impairments Defined
§ 5.2.3(e)(i) EEOC’s Guidance on Mental Disabilities
§ 5.2.3(e)(ii) Cases Analyzing Mental Disabilities
§ 5.2.3(f) Individuals with a “Record of an Impairment” Covered by ADA
§ 5.2.3(g) “Regarded as Having” an Impairment Defined
§ 5.2.3(g)(i) Cases Analyzing “Regarded As” Disabilities
§ 5.2.3(g)(ii) Supreme Court Declines to Take Sides on “Regarded As” Issue
§ 5.2.3(h) Conditions Excluded from the Definition of Disabled
§ 5.2.3(i) Employees with a Relationship or Association with a Disabled Person Also Covered by the ADA
§ 5.2.4 D. WHAT ARE MAJOR LIFE ACTIVITIES UNDER THE ADA?
§ 5.2.4(a) Working
§ 5.2.4(b) Sleeping
§ 5.2.4(c) Caring for Oneself
§ 5.2.4(d) Thinking, Concentrating, & Interacting with Others
§ 5.2.4(e) Reproduction & Sexual Functioning
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written consent of Littler Mendelson. Published by LexisNexis.
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§ 5.2.4(f) Eating
§ 5.2.4(g) Speaking as a Major Life Activity
§ 5.2.4(h) Ability to Eliminate Bodily Waste
§ 5.2.4(i) Reading as a Major Life Activity
§ 5.2.4(j) Attending Religious Services Is Not a Major Life Activity
§ 5.2.4(k) Driving Is Not a Major Life Activity
§ 5.2.5 E. EMPLOYMENT PRACTICES REGULATED BY THE ADA
§ 5.2.5(a) The Hiring & Interview Process
§ 5.2.5(a)(i) EEOC Guidance on Preemployment Inquiries Under the ADA
§ 5.2.5(a)(ii) Reemployment of Former Disabled Employee
§ 5.2.5(a)(iii) Discretion Retained to Hire Applicant Without a Disability
§ 5.2.5(a)(iv) Pre-Offer Job Performance Testing
§ 5.2.5(a)(v) Staffing Agencies & Their Clients
§ 5.2.5(b) Job Related Qualification Standards
§ 5.2.5(b)(i) Business Necessity Criteria
§ 5.2.6 F. DISABILITY INQUIRIES & MEDICAL EXAMINATIONS OF CURRENT EMPLOYEES
§ 5.2.6(a) Inquiries Must Be Job-Related & Consistent with “Business Necessity”
§ 5.2.6(a)(i) Job Changes Within a Company
§ 5.2.7 G. HEALTH & SAFETY STANDARDS
§ 5.2.7(a) Direct Threat Analysis
§ 5.2.8 H. WHO IS A QUALIFIED INDIVIDUAL WITH A DISABILITY?
§ 5.2.8(a) What Are the Essential Functions of a Job?
§ 5.2.8(a)(i) Cases Defining Essential Functions
§ 5.2.9 I. THE REASONABLE ACCOMMODATION OBLIGATION
§ 5.2.9(a) Requests for Accommodation & the Interactive Process
§ 5.2.9(b) Types of Accommodations
§ 5.2.9(b)(i) The EEOC’s Guidance on Reasonable Accommodation & Undue Hardship
§ 5.2.9(b)(ii) Indefinite Leaves & Transfers as Reasonable Accommodations
§ 5.2.9(b)(iii) Job Restructuring & Working at Home
§ 5.2.9(b)(iv) Use of Job Coaches as a Reasonable Accommodation
§ 5.2.9(b)(v) Use of Emotional Support Animals as a Reasonable Accommodation
§ 5.2.9(b)(vi) Assistance with Commuting to and from Work as a Reasonable Accommodation
§ 5.2.9(c) Accommodations Must Be Effective & Consider Employee Preference
§ 5.2.9(d) Unionized Employers & Seniority Systems
§ 5.2.10 J. RETALIATION
§ 5.2.11 K. DISABILITY HARASSMENT
§ 5.2.12 L. DEFENSES TO ADA CLAIMS
§ 5.2.12(a) Business Necessity
§ 5.2.12(b) Ministerial Exception
§ 5.2.12(c) Accommodation Requested Is an Undue Hardship
§ 5.2.12(d) Determination of Social Security Disability May Not Be a Defense to an ADA Claim
§ 5.2.12(e) Employee Making a Threat Is Not the Same as Posing a Threat Under the ADA
§ 5.2.12(f) Agency’s Placement of an Employee in a Rehabilitation Position Does Not Automatically
Establish that the Employee Was Disabled
§ 5.2.13 M. ALCOHOLISM & DRUG ADDICTION
§ 5.2.14 N. DRUG & ALCOHOL TESTING
§ 5.2.15 O. DISPARATE TREATMENT & DISPARATE IMPACT
§ 5.2.16 P. INSURANCE COVERAGE
§ 5.2.17 Q. RELATIONSHIP BETWEEN WORKERS’ COMPENSATION, WORK-RELATED INJURIES & LIGHT DUTY
ASSIGNMENTS
§ 5.2.17(a) Light-Duty Assignments
§ 5.2.18 R. REMEDIES AVAILABLE UNDER THE ADA
§ 5.3 III. PRACTICAL RECOMMENDATIONS FOR THE HR PROFESSIONAL
§ 5.3.1 A. THE INTERACTIVE PROCESS: STEP-BY-STEP GUIDANCE FOR HR PROFESSIONALS
§ 5.3.1(a) Step 1: Acknowledge the Request in Writing
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
§ 5.3.1(b) Step 2: Disability Status Determination
§ 5.3.1(c) Step 3: Informing the Worker of the Disability Status Determination & Scheduling the Meet &
Confer Session
§ 5.3.1(d) Step 4: Homework for the Meet & Confer Session
§ 5.3.1(e) Step 5: Conducting the Meet & Confer Session
§ 5.3.1(f) Step 6: Follow-up Letter After Meet & Confer Session
§ 5.3.1(g) Step 7: Final Response
§ 5.3.1(h) Ongoing Duty to Accommodate
§ 5.4 IV. ESSENTIAL TOOLS FOR ADMINISTERING REASONABLE ACCOMMODATION POLICIES
§ 5.4.1 A. SAMPLE ACCOMMODATION POLICY
§ 5.4.2 B. ACCOMMODATION WORKSHEET
§ 5.4.3 C. SAMPLE CORRESPONDENCE
§ 5.4.3(a) Letter Acknowledging Request for Accommodation
§ 5.4.3(b) Sample Letter Summarizing Meet & Confer Session
§ 5.1 I. RECENT TRENDS & DEVELOPMENTS
I. RECENT TRENDS & DEVELOPMENTS
§ 5.1.1 A. INTRODUCTION
A. INTRODUCTION
§ 5.1.1(a) The Americans with Disabilities Act & the ADA
Amendments Act of 2008
In 1990, Congress enacted the Americans with Disabilities Act (ADA) to ensure that the disabled
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have equal access to employment opportunities. The ADA requires covered employers to
provide reasonable accommodations to qualified disabled individuals. The ADA underwent
significant review and was amended by the ADA Amendments Act of 2008 (ADAAA). Effective
January 1, 2009, the ADAAA directly overturned several seminal decisions of the U.S. Supreme
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Court.
The ADAAA sent an unmistakable message to the courts that the concept of disability is to be
broadly construed. For employers, the primary consequence is that far more people fall within the
definition of having a disability under the ADA.
Specifically, the measures increase coverage and strengthen employee protections under the ADA
by:
1
Other provisions of the ADA seek to guarantee access to public facilities. This Chapter focuses on the
duties found in Title I of the ADA that impose on employers the duty to provide the disabled with equal
access to employment.
2
The ADAAA overturns the Supreme Court decisions in Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999), Murphy v. United Parcel Serv., 527 U.S. 516 (1999), and Albertson’s, Inc. v. Kirkingburg, 527 U.S.
555 (1999), in which the Court held that consideration must be given to mitigating measures that help
individuals control impairments when determining whether persons are disabled under the ADA. However,
at least one U.S. district court has ruled that the ADAAA is not retroactive, and, thus, disability
discrimination claims arising before January 1, 2009, arguably cannot be evaluated under the standards
enunciated in the ADAAA. See Brooks v. Kirby Risk Corp., 2009 U.S. Dist. LEXIS 86420 (N.D. Ind. Oct.
5, 2009) (as amended).
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• rejecting the strict interpretation of the ADA that defines disability as an impairment
that prevents or severely restricts an individual from doing activities that are of central
importance to one’s daily life;
• prohibiting the consideration of almost all measures that reduce or mitigate the impact
of an impairment in the determination of whether an individual is disabled;3 and
• allowing persons who are discriminated against on the basis of a perceived disability to
pursue a claim under the ADA regardless of whether the perceived impairment limits or
is perceived to limit a major life activity.4 However, the ADAAA excludes from the
definition of disability those impairments that are transitory and minor.5
With the 2008 amendments, persons with disabilities whom nevertheless have successfully
managed disabilities are covered by the ADA. One result is that employers need to concentrate
less on the threshold issue of disability and focus more on their duty to provide reasonable
accommodations.
Additionally, the ADAAA makes clear that an employer’s duty to accommodate does not extend
to those individuals who make discrimination claims under the “regarded as” prong of the
definition of disability. Before the enactment of ADAAA, there was a split among the federal
courts as to whether the ADA’s reasonable accommodation requirement applied to the “regarded
as” category of disabled individuals. The ADAAA makes clear that employers have no duty to
accommodate these individuals.
Finally, the ADAAA states that there can be no claim of “reverse discrimination” under the ADA.
Specifically, the ADAAA states that the ADA does not provide for a claim that an “individual
was subject to discrimination because of the individual’s lack of disability.” “Reverse
discrimination” claims have arisen in the context of an employer providing reasonable
accommodation. This means that nondisabled persons cannot claim discrimination because they
were treated less favorably or were not given the same accommodations.
§ 5.1.1(a)(i) EEOC's Regulations Under the ADAAA
On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) belatedly
issued its final rule implementing regulations under the ADAAA. The 2011 regulations became
effective approximately two months later, on May 24, 2011.
While the EEOC did address some of the concerns raised by employers with the proposed rules,
the final rule ultimately hews close to the ADAAA. Additionally, in its changes to the
Interpretive Guidance, the EEOC took the opportunity to repudiate explicitly specific case
precedent and concepts formerly used by employers to defend against claims of disability
discrimination.
3
42 U.S.C. § 12102(4)(E).
Adverse treatment includes job application procedures, hiring, advancement, discharge, compensation, job
training, and other terms, conditions, and privileges of employment.
5
Transitory is defined as “an impairment with an actual or expected duration of six months or less.” 42
U.S.C. § 12102(3).
4
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
The central concept in the ADAAA (and the new rules) is a significant expansion of the definition
of “disability” under the law. This expanded definition means that many more workers will be
covered by the law, and the number of claims of disability discrimination may be expected to
grow. This major change in the definition of disability is accomplished by expanding the
definition of the components of the definition of disability and by simplifying the definition of
disability for those “regarded as” disabled. The overall objective is repeatedly emphasized by the
EEOC: the focus for employers and the courts is not on the threshold question of whether a
disability exists, but on engaging in the interactive process and providing reasonable
accommodations.
While the ADAAA and the rules still provide that a disability is an impairment that substantially
limits a major life activity, the definitions of major life activity and substantially limits are
changed. While the exact phrases have stayed the same, the meanings have changed and going
forward employers must use, with great caution, all cases on these issues decided under the ADA
before amendment.
“Major Life Activity” Redefined
Major life activity is now defined under the rules to encompass all those activities formerly
included, as well as additional activities (such as “interacting with others.” While employer
advocates opposed this specific inclusion, the disability rights advocates prevailed. Inclusion of
the activity of “interacting with others” will pose a continuing challenge for employers if
confronted with claims that problematic employee conduct was caused by mental disabilities. The
ADAAA also added the operation of a major bodily function as a major life activity, and the
EEOC added to the statutory definitions virtually every physiological function. Thus, major life
activities now include the functioning of the immune, musculoskeletal, neurological, brain,
genitourinary, circulatory, and reproductive systems, and all major organs.
A “major life activity” need not be determined by reference to whether it is of central importance
to daily life. Nor is the degree of impairment to be confused with whether a particular activity is a
major life activity. The EEOC makes it plain that the intention is to include virtually all physical
and mental conditions, except those that have never been considered impairments, such as genetic
predisposition to a disease (now covered by the Genetic Information Nondiscrimination Act),
pregnancy (but not pregnancy-related disability), eye color, left-handedness, and personality traits
(such as a bad temper).
The EEOC’s rules also purport to clarify the standard required for determining whether an
individual is substantially limited in the major life activity of “working.” The sweep of the
definition of major life activity is such that the EEOC eliminated its former regulations and
guidance regarding the major life activity of working. The EEOC cautions, however, that because
a person is most likely to have a limitation on another major life activity, there may be little
occasion to focus on the major life activity of working in and of itself. The EEOC also noted in its
amended Interpretive Guidance that many of the cases formerly analyzed in terms of whether the
employee was substantially limited in the major life activity of working will be analyzed under
the “regarded as” prong of the definition of disability. Nonetheless, in the Interpretive Guidance,
the EEOC retained the existing familiar language of “class or broad range of jobs” and said,
“[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job
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is not sufficient to establish that a person is substantially limited in the major life activity of
working.”
“Substantially Limits” Redefined
In the ADAAA, Congress gave the EEOC express authority to revise its regulations defining
“substantially limits” to be consistent with the ADA’s purpose. However, in the final rule, the
EEOC explicitly declined to redefine substantially limits. Rather, it created nine “rules of
construction,” derived from the ADAAA language and legislative history to be applied to make a
determination of substantially limits. The net effect of these rules of construction is effectively to
write the word “substantially” out of the law. These rules are:
1. Substantially limits is to be construed as broadly as the ADA allows.
2. The impairment need only substantially limit the ability to perform a major life activity
compared to most people in the general population. It need not prevent, or significantly or
severely restrict, the individual from performing the major life activity. This is
noteworthy as “substantially” evidently means something less than “significantly.” This
may be the subject of future litigation.
3. The focus of analysis is on whether employers have complied, not on whether the
impairment substantially limits a major life activity. This rule is ancillary to rule number
one.
4. The determination of whether an impairment substantially limits a major life activity
requires an individualized assessment. The degree of limitation is lower than it was preADAAA. And, while the EEOC eliminated its previously proposed list of impairments
that would “consistently,” “sometimes,” or “usually not” be disabilities, as well as its
recommended list of “per se” disabilities, it introduced a new concept resulting in much
the same outcome. The final rules contain the concept of predictable assessments,
meaning that by applying its new rules of construction, there are impairments that in
virtually all cases will be considered disabilities, such as: deafness, blindness, intellectual
disability (formerly called mental retardation), missing limbs, autism, cerebral palsy,
cancer, diabetes, HIV infection, multiple sclerosis, muscular dystrophy, major depressive
disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder,
and schizophrenia. As a result, in many cases, the “individualized assessment” will be
perfunctory.
5. The comparison of an individual’s performance of a major life activity to that of the
general population will not usually require scientific, medical, or statistical analysis,
although such analysis may still be used. For those with learning disabilities, the
comparison is still with those without the learning disability, even though the usual
method of diagnosis may be in terms of the difference between actual and expected
achievement of the individual. Further, success in school does not mean that the person
does not have a protected disability.
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
6. The ameliorative effects of mitigating measures are ignored for the purposes of
determining substantial impairment. In contrast, the negative effects of mitigating
measures, such as the side effects of medications, should be considered. While the EEOC
eliminated the confusing proposed inclusion of surgical interventions, the final rule added
psychotherapy, and behavioral and physical therapy as examples of mitigating measures.
The ADAAA made an exception for “ordinary eyeglasses or contact lenses,” which may
be taken into account in determining whether or not a person has a disability. Consistent
with the ADAAA, aids for those with “low vision” are not “ordinary eyeglasses.” The
EEOC declined to include more detail in the definition of ordinary eyeglasses or contact
lenses or low vision devices, leaving that determination to case-by-case analysis. The
EEOC said in its amended Interpretive Guidance that, if any employer imposes a
qualification standard that requires uncorrected vision, adversely affected applicants or
employees may challenge that standard, and the employer will be required to demonstrate
that the qualification standard is job related and consistent with business necessity. If a
person has mitigating means available and fails to use them, that fact may affect the
determination as to whether the individual is qualified or poses a direct threat.
7. An impairment that is episodic or in remission is a disability, even if not active or in
remission. This applies to a broad range of episodic conditions, conditions with “flare
ups,” and conditions that may be at least temporarily cured. As noted above, the EEOC
removed a provision in its proposed regulations addressing impairments permanently
fixed by surgery as “confusing.”
8. Only one major life activity need be substantially limited. In the amended Interpretive
Guidance, the EEOC uses the example of a person with a 20-pound lifting restriction that
lasts for several months. That restriction is sufficient to substantially limit a major life
activity without any showing that the person is unable to perform other activities of daily
living. Without referencing the several cases litigated by the EEOC on the subject, the
EEOC also cites the example of a person with monocular vision who has adjusted to the
condition as someone who has a substantial impairment on the major life activity of
seeing.
9. For the purposes of determining whether an individual has an actual disability (prong
one of the tripartite definition of covered persons), or has a record of a disability (prong
two of the tripartite definition), impairments that last or are expected to last less than six
months may be substantially limiting. This is notable as the EEOC specifically declined
to create a bright-line exclusion for short-term limitations, reacting to strong comments
from disability rights advocates who argued that short term conditions can impose very
significant limitations on a major life activity. The final rule retains the concepts of
“condition, manner, or duration” as factors that may be relevant to the determination of
whether an impairment substantially limits a major life activity. Thus, duration is just a
factor, along with severity, and it is likely that this signals the development of a “sliding
scale” standard: the more severe, the less lengthy the duration need be, and vice versa.
Using the “Regarded As” Disabled Prong to Prove Discrimination
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Under the ADAAA and the rules, persons who are “regarded as” disabled need not show that they
have a substantial limitation on a major life activity, but only that:
1. they were regarded by the employer has having a disability; and
2. because of that, they were subject to an adverse employment action.
These are the elements of the prima facie case of a regarded as claim. An exception is provided
by the ADAAA for impairments that are “transitory and minor.” Transitory means lasting or
expected to last six months or less. The EEOC rules make this exception an affirmative defense,
and place the burden of proof on the employer. Whether the impairment is transitory and minor
must be determined objectively, not subjectively by the employer.
As the employer has only very limited access to medical information about candidates for
employment (and none about applicants) and employees, employers may have considerable
difficulty using this defense.
The EEOC eliminated the language from its former Interpretive Guidance about “myths, fears,
and stereotypes” as having the wrong focus. The EEOC explains that it does not matter whether
myths, fears, or stereotypes motivated the employer’s decision, only whether the employer’s
decision was based on an actual or perceived impairment.
The final rule eliminated the proposed guidance that actions taken because of an impairment’s
symptoms or because of the use of mitigating measures could qualify as regarded as actions.
However, the EEOC stated that, “[n]o negative inference concerning the merits of this issue
should be drawn from this deletion.” Thus, employers should be aware that they could be subject
to claims of violation of the ADA when disciplining employees for violating a workplace rule
where they have knowledge of an underlying impairment.
The EEOC also explains that the regarded as prong should be the primary means of establishing
coverage under the ADA in cases that do not involve the need for reasonable accommodations.
Individuals who do not have need for accommodation are better served asserting these claims
under the regarded as prong (prong three) of covered persons as their burden of proof is minimal.
Claims under prong three are already standard in most disability lawsuits. In the future, this claim
will become a more important focus for employee advocates.
The EEOC rules incorporate the clarification provided by the ADAAA that persons who are
regarded as disabled, but who do not claim to have an actual disability or a record of disability,
need not be provided with reasonable accommodations. Thus, there is no interactive process duty
with respect to these persons.
Other Points of Note
The EEOC acknowledged receiving many requests from employers to clarify what evidence of
disability an employer may request or rely upon. The EEOC declined to address this issue, saying
that its earlier guidance on the subject is sufficient, and that the ADAAA did not change the
requirements.
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
The EEOC eliminated the term “qualified individual with a disability” from the regulations and
Interpretive Guidance, as the ADAAA no longer uses this term, but the simpler “individual with a
disability.” This change does not appear to modify or reduce the plaintiff’s burden to demonstrate
that he or she is qualified for the position in question. Finally, the EEOC adopted the term “actual
disability” to refer to persons claiming protection under prong one of the definition of covered
persons. The EEOC’s final rule ultimately underlines the new era of the ADA as one that
emphasizes what employers must do for disabled employees, and not whether the employees are
disabled in the first instance.
§ 5.1.1(b) The Genetic Information Nondiscrimination Act of 2008
The Genetic Information Nondiscrimination Act of 2008 (GINA) was signed into law in May
2008, and in November 2009, Title II of GINA (which prohibits genetic information
discrimination in employment) took effect. Under GINA, genetic information is information
about an individual’s genetic tests and the genetic tests of an individual’s family members, as
6
well as information about any disease or disorder of an individual’s family members. GINA
prohibits private and state and local government employers with 15 or more employees,
employment agencies, and labor unions from discriminating against employees or applicants
because of genetic information, including using genetic information in making decisions related
to any terms, conditions, or privileges of employment, and intentionally acquiring genetic
7
information, except under certain circumstances. GINA also maintains an antiretaliation
provision, protecting employees or applicants that oppose any practice made unlawful by GINA
8
from adverse employment actions. Additionally, under GINA, employers that have genetic
information on certain employees or applicants are required to maintain the confidentiality of the
information and treat it as part of the employees’ or applicants’ confidential medical
9
information. GINA does not prohibit inadvertent acquisitions of genetic information. Some
disclosures—for example, those pursuant to a company-sponsored wellness program (meeting
specific requirements) or those made in connection with a request for a leave of absence under the
10
FMLA—may not violate GINA. Nonetheless, employers should exercise great caution in
requesting medical information of its employees or applicants, and should ensure that any
requests fall within a statutory exception outlined by GINA. For example, an employer that is
engaging in the interactive process with an employee or applicant to determine an appropriate
reasonable accommodation should be careful to ensure compliance with GINA.
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At this time, individuals cannot bring a cause of action for disparate impact under GINA.
6
Pub. L. No. 110-233, § 201(4) 122 Stat. 881 (codified at 42 U.S.C. §§ 2000ff et seq.). Under the final
regulations, the term genetic information is defined as information about: (1) an individual’s genetic tests;
(2) the genetic test of that individual’s family members; (3) family medical history; (4) an individual’s
request for, or receipt of, genetic services, or the participation in clinical research that includes genetic
services by the individual or family member of the individual; or (5) genetic information of a fetus carried
by an individual or by a pregnant woman who is a family member of the individual and the genetic
information of any embryo legally held by the individual using an assisted reproductive technology. See 75
Fed. Reg. 68912 (Nov. 9, 2010).
7
Pub. L. No. 110-233, §§ 202 et seq.
8
Pub. L. No. 110-233, § 207.
9
Pub. L. No. 110-233, § 206.
10
Pub. L. No. 110-233, § 205.
11
Pub. L. No. 110-233, § 208.
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However, GINA expressly requires that, within six years from the enactment of GINA, a
commission be formed to evaluate whether a disparate impact cause of action should be allowable
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under GINA.
Nearly a year after GINA’s employment provisions took effect, in November 2010, the EEOC
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issued a final rule implementing Title II. Additionally, the EEOC adopted a final rule extending
certain recordkeeping and reporting requirements to entities covered by Title II of GINA in early
2012. The final recordkeeping rule, which is effective April 3, 2012, “does not require the
creation of any documents or impose any reporting requirements” but rather amends current Title
VII and ADA recordkeeping regulations to add references to GINA. The recordkeeping
regulations under Title VII and the ADA “require all covered entities to preserve all employment
and personnel records that they make or keep for a specified period of time, and to preserve all
records relevant to a Title VII or ADA charge until the charge is resolved.” The same obligations
are now applicable for GINA-related charges. For additional information regarding GINA, see
Chapter 19, “Employee Privacy Rights,” of THE NATIONAL EMPLOYER®.
§ 5.1.2 B. RECENT DISABILITY DISCRIMINATION CASES
B. RECENT DISABILITY DISCRIMINATION CASES
§ 5.1.2(a) What Is a Disability?
§ 5.1.2(a)(i) The ADAAA Rejects the Supreme Court’s Strict
Interpretation of the ADA
Prior to the enactment of the ADAAA, the U.S. Supreme Court issued two significant decisions
14
that strictly interpreted the definition of a disability under the ADA. In Sutton v. United Air
Lines, Inc., the Supreme Court held that severely myopic twin sisters were not disabled under the
15
ADA because they could fully correct their vision with mitigating measures. Thus, courts were
instructed to evaluate an individual’s limitations in their “corrected” state to determine whether
16
that individual was substantially limited in any major life activity.
In Toyota Motor Manufacturing, Kentucky, Inc., the Supreme Court held that the court of appeals
applied the wrong standard in determining whether an employee’s carpal tunnel syndrome caused
her to be substantially limited in major life activity of performing manual tasks, when it focused
on her inability to perform manual tasks associated only with her job and her inability to do
17
repetitive work. Instead, the high court held that for an employee to be substantially limited in
performing manual tasks, the individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of central importance to most people’s daily
18
lives.
12
Pub. L. No. 110-233, § 208.
See 75 Fed. Reg. 68,912 (Nov. 9, 2010).
14
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184 (2002).
15
Sutton, 527 U.S. at 471.
16
527 U.S. at 472.
17
534 U.S. at 184.
18
534 U.S. at 184.
13
10
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
Both the Sutton and Toyota holdings were expressly rejected by Congress. The ADAAA specifies
that an individual is to be evaluated for a disability without regard to whether the individual can
19
manage his or her impairment with a mitigating measure. For example, the ADAAA would
include as disabled those persons who have an impairment that is episodic or in remission, if the
impairment would substantially limit a major life activity when it is active.
As discussed above, the ADAAA also clarifies that the definition of substantially limited is not
“significantly restricted” as previously defined by the EEOC. In particular, the ADAAA redirects
courts to focus upon whether employers have complied with their accommodation obligations.
Congress also intended to convey that the question of whether an individual’s impairment is a
disability under the ADA should not demand extensive analysis. Finally, the ADAAA states that
an impairment that substantially limits one major life activity is sufficient to meet the protection
afforded under the ADA.
With more employees qualifying as disabled, employers will be more heavily scrutinized for their
efforts in engaging in the interactive process, providing reasonable accommodations, and
avoiding the perception of regarding employees as disabled.
§ 5.1.2(a)(ii) Side Effects of Medication May Render an Individual
“Disabled”
In April 2010, the Third Circuit Court of Appeals held that side effects of medication may render
an individual “disabled” within the meaning of the ADA, even though the underlying condition
20
for which the medication was prescribed does not. In Sulima v. Tobyhanna Army Depot L.L.C.,
the Third Circuit adopted the criteria used by the Seventh Circuit in determining whether to find
that the effects of a medication or treatment for a condition that is not itself disabling render an
individual disabled; specifically, whether the plaintiff can show that:
• the medication is required “in the prudent judgment of the medical profession;”
• the medication is truly necessary with no other available, equally effective alternative
that lacks similarly disabling side effects; and
• the medication is not required solely in anticipation of an impairment resulting from the
plaintiff’s voluntary choices.21
Thus, where the plaintiff cannot demonstrate that the problem-causing medications were
medically necessary, their side effects cannot be considered as impairments within the meaning of
the ADA. In Sulima, the Third Circuit ultimately found that the plaintiff did not establish that the
side effects of his medication rendered him disabled, because his physician had ceased
19
42 U.S.C. § 12102(4)(E).
602 F.3d 177 (3d Cir. 2010). Other circuit courts are in agreement. See Hill v. Kansas City Area Transp.
Auth., 181 F.3d 891, 894 (8th Cir. 1999); Christian v. St. Anthony Med. Ctr., 117 F.3d 1051, 1051–52 (7th
Cir. 1997); Gordon v. E.L. Hamm & Assocs., 100 F.3d 907, 912 (11th Cir. 1996).
21
Sulima, 602 F.3d at 186–87.
20
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11
22
prescribing the medication two months after the side effects began. Importantly, the cessation of
treatment clearly indicated to the court that the medication was not “necessary” or “in the prudent
23
judgment of the medical profession.”
§ 5.1.2(b) What Are Major Life Activities Under the ADAAA?
A disability under the ADA is defined as a “physical or mental impairment that substantially
24
limits one or more major life activities of such individual.” The EEOC, under the ADA, defines
major life activities to include “functions such as caring for oneself, performing manual tasks,
25
walking, seeing, hearing, speaking, breathing, learning, and working.” Courts have also found
that, under the ADA, “waste elimination,” “reproduction,” “reading,” “eating,” and “interacting
with others” are major life activities.
Under the ADAAA, major life activities include such things as: caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and
26
working. Furthermore, Congress expanded this definition to include the operation of major
bodily functions, including, but not limited to, functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions. The EEOC further expanded the definition to include nearly every
physiological function, including functioning of the immune, musculoskeletal, neurological,
brain, genitourinary, circulatory, and reproductive systems, and all major organs.
Following the EEOC’s publication of its final rule implementing the ADAAA, which
encompasses significantly more major life activities than before, the courts will now have an
opportunity to further clarify and define what constitutes a major life activity.
§ 5.1.2(c) What Are the Essential Functions of a Job?
§ 5.1.2(c)(i) Attendance is an Essential Function, But Employer Must
Consider Potential Accommodations
27
In Valle-Arce v. Puerto Rico Ports Authority, a human resources employee with Chronic
Fatigue Syndrome (CFS) sought a flexible schedule as an accommodation. At first, her employer
granted her request. However, when the employee received a new supervisor, the supervisor
began to question the flexible schedule and scrutinize the employee’s hours and absences.
Subsequently, the employee made additional formal requests for, among other things, flexibility
in her daily start time and flexibility in her schedule to permit her to attend medical appointments.
After receiving no response to her requests, the employee received notice of an intent to terminate
and responded by filing a charge with the EEOC, alleging discrimination and retaliation. The
employer then partly granted her requests for accommodation. However, she was not granted her
requests pertaining to a range of start times or the ability to work fewer hours one day by making
22
602 F.3d at 187.
602 F.3d at 187.
24
42 U.S.C. § 12102.
25
29 C.F.R § 1630.2(i).
26
42 U.S.C. § 12102(2).
27
651 F.3d 190, 200 (1st Cir. 2011).
23
12
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
the hours up during other days of the week. The employee was later terminated for issues
unrelated to attendance.
At trial, a district court granted the employer’s motion for judgment as a matter of law, holding
that the employee was not a “qualified individual” under the ADA because work attendance is an
“essential function” of any job and the employee’s extensive absences prevented her from
28
fulfilling the essential functions of her job. The First Circuit Court of Appeals reversed and held
that while attendance is an essential function of any job, employers must consider
29
accommodations that would allow disabled employees to satisfy the attendance requirements.
The court ruled that a jury should determine whether the flexible work schedule requested by the
employee was a reasonable accommodation that would have allowed her to fulfill the attendance
requirements of her job.
§ 5.1.2(c)(ii) The Functions Must Be Essential, Not Merely “Typical”
In November 2010, a federal district court in Michigan denied summary judgment to an
employer, holding that the employer failed to establish that its cited “essential functions” were
30
actually essential to the plaintiff’s job. In Alastra v. National City Corp., a part-time bank teller
31
with epilepsy was terminated after she accumulated ten absences in less than one year. The
plaintiff had asked the bank to accommodate her epilepsy by giving her a later start time, which
would allow her to sleep later, and, in turn, would allegedly help prevent her seizures and the
32
33
need for days off work. The employer never granted the plaintiff’s accommodation request.
According to the employer, the plaintiff could not perform her essential job functions, namely: (1)
the ability to work on a consistent basis (i.e., less than ten absences per year); and (2) filling in for
absent full-time tellers whose shifts began before 9:00 A.M.
The district court denied the employer’s motion for summary judgment, holding that the plaintiff
had provided sufficient evidence to establish that she was a qualified individual with a disability,
because the employer’s cited essential functions, although “typical,” were not proven to be
34
essential. In determining that the ability to work on a consistent basis, as defined by the
employer, was not an essential function of the position, the court focused on three pieces of
evidence: (1) the statements in the employee handbook that employees should be terminated after
accruing ten absences in one year—not that they must be—and that the manager has discretion in
dealing with excessive absences; (2) the terminating manager needed Human Resources’
“approval” before terminating the plaintiff’s employment; and (3) that another part-time
employee had been allowed to accrue more than ten absences in one year before being
35
terminated. Together, the court ruled, these indicated that the ability not to incur ten absences in
28
651 F.3d at 197.
651 F.3d at 200 (citing Rios-Jimenez v. Sec’y of Veterans Affairs, 520 F.3d 31 (1st Cir. 2008)).
30
Alastra v. National City Corp., 2010 U.S. Dist. LEXIS 121038 (E.D. Mich. Nov. 16, 2010).
31
2010 U.S. Dist. LEXIS 121038, at *9.
32
2010 U.S. Dist. LEXIS 121038, at *8.
33
2010 U.S. Dist. LEXIS 121038, at *8.
34
2010 U.S. Dist. LEXIS 121038, at **20–24.
35
2010 U.S. Dist. LEXIS 121038, at **20–22.
29
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13
36
one year was not an essential function of the part-time teller position. When striking down the
second cited essential function, the court focused on witness testimony stating that the plaintiff
could have been given a later start time, and that the employer had provided no job description
actually listing the ability to provide coverage for full-time employees in morning shifts as an
37
essential function. For those reasons, the court found that the plaintiff was a qualified individual
38
with a disability.
§ 5.1.2(c)(iii) Inconsistent Representations in Social Security
Disability Claim May Destroy Employee’s Claim
The U.S. Supreme Court has squarely addressed the proper approach to cases in which an ADA
plaintiff has also filed an application for Social Security Disability Insurance benefits (SSDI). In
39
Cleveland v. Policy Management System Corp., the Court determined that the law does not
automatically stop the recipient of SSDI benefits from pursuing an ADA claim. Thus, a claim for
benefits asserting that an applicant cannot perform his or her job, within the Social Security
Administration’s (SSA) rules, is not necessarily inconsistent with a claim under the ADA that the
plaintiff can perform the essential functions of the job with a reasonable accommodation.
Nonetheless, the Court acknowledged that a claim for SSDI in which an applicant claims that she
is unable to work appears to negate an essential element of her ADA claim. The Court held that
an ADA plaintiff cannot ignore this apparent contradiction. Rather, the plaintiff must offer a
40
“sufficient” explanation to avoid dismissal of his or her claims.
In 2011, the Eleventh Circuit Court of Appeals, following Cleveland, affirmed summary
judgment for an employer on an employee’s ADA claim. In Kurzweg v. SCP Distributors,
41
L.L.C., the plaintiff worked as a delivery truck driver for SCP. After multiple medical leaves,
the plaintiff failed to return to work despite receiving clearance to return to work with no
restrictions. Consequently, SCP terminated his employment. The plaintiff then filed an
application for SSDI, including on his application that he “became unable to work because of
42
[his] disabling condition” on June 9, 2008, which was the date of his employment termination.
At the summary judgment stage, the plaintiff attempted to explain that the SSA used the June 9
termination date as the disability onset because that was the last day he had worked. However, the
plaintiff maintained that on that date he was able to perform the essential functions of his job and
that he only became disabled thereafter, based in part on the deterioration of his mental health
36
2010 U.S. Dist. LEXIS 121038, at **20–22.
2010 U.S. Dist. LEXIS 121038, at **22–23.
38
2010 U.S. Dist. LEXIS 121038, at *24.
39
526 U.S. 795 (1999).
40
See also EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000) (following the Cleveland
decision, the Fourth Circuit allowed the EEOC to bring an ADA suit so long as the plaintiff “proffer[s] a
sufficient explanation for any apparent contradiction between the [ADA and the SSDI] claims”); but see
Disanto v. McGraw-Hill, Inc., 220 F.3d 61 (2d Cir. 2000) (plaintiff who was unable to reconcile
inconsistent statements to the SSA was not entitled to the $1.2 million verdict awarded to him by the jury);
Reed v. Petroleum Helicopters, Inc., 218 F.3d 477 (5th Cir. 2000); Motley v. New Jersey State Police, 196
F.3d 160 (3d Cir. 1999), cert. denied, 529 U.S. 1087 (2000). (plaintiff who applied for disability retirement
benefits failed “to proffer a reasonable explanation of his inconsistent statements”).
41
424 F. App’x 840 (11th Cir. 2011).
42
424 F. App’x at 842.
37
14
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
43
condition after learning of his termination.
The Eleventh Circuit did not find plaintiff’s explanation satisfactory. Specifically, the plaintiff
failed to argue that he could have continued his job with his former employer with a reasonable
accommodation. Instead, the plaintiff “essentially argued that the SSA erroneously (and without
his objection) used his termination date, when in fact he was fully able to do his job on that
44
date.” As such, the Court found that the plaintiff was estopped from asserting in his ADA action
that he was able to perform the essential functions of his job.
§ 5.1.2(d) Requests for Accommodation & the Interactive Process
§ 5.1.2(d)(i) Assistance with Commuting to and from Work as a
Reasonable Accommodation
Although several circuit courts have held that commuting to and from work falls outside the
45
scope of employers’ accommodation obligations under the ADA, in Nixon-Tinkelman v. New
46
York City Department of Health & Mental Hygiene, the Second Circuit Court of Appeals
reiterated that an employer may be required to assist with an employee’s commute to work
because “‘there is nothing inherently unreasonable … in requiring an employer to furnish an
47
otherwise qualified disabled employee with assistance related to her ability to get to work.’ ”
The plaintiff, who was hearing-impaired and suffered from cancer, heart problems and asthma,
requested assistance with her commute when her duty station was reassigned to Manhattan, rather
than Queens, where she previously worked for some time.
In remanding the case to the district court, the Second Circuit instructed that several factors
should be considered when determining the reasonableness of a possible accommodation,
including the number and location of the employer’s offices and whether plaintiff could be
transferred to a more convenient office without unduly burdening the employer. The court stated
that while a determination of whether a particular commuting accommodation is reasonable is a
fact specific inquiry, in this case, accommodations to consider included transferring plaintiff to a
location closer to her home, allowing plaintiff to work from home, or providing plaintiff with a
car or parking permit.
48
Similarly, in Colwell v. Rite Aid Corp., the Third Circuit Court of Appeals ruled that the ADA
can obligate an employer to accommodate an employee’s disability-related difficulties in getting
to work if the request is reasonable. In Colwell, the plaintiff, whose vision impairment prevented
her from driving at night, requested that she only be scheduled for day shifts. In reversing
summary judgment for the employer, the Third Circuit held that changing the plaintiff’s work
43
424 F. App’x at 842.
424 F. App’x at 844.
45
See, e.g., Kimble v. Potter, 390 F. App’x 601 (7th Cir. 2010) (plaintiff, whose vertigo prevented her from
driving to work, was not protected by the ADA because she could access other jobs in Chicago by foot or
public transportation); Carlson v. Liberty Mut. Ins. Co., 237 F. App’x 446 (11th Cir. 2007) (plaintiff whose
epilepsy interfered with her ability to drive to work, but had no impact on her ability to perform her job
duties, was not protected by the ADA).
46
434 F. App’x 17 (2d Cir. 2011).
47
434 F. App’x at 19 (quoting Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 1517 (2d Cir. 1995)).
48
602 F.3d 495 (3d Cir. 2010).
44
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
15
schedule to assist with her commute to work is an accommodation contemplated by the ADA. On
similar facts, the Ninth Circuit Court of Appeals also ruled that shift changes that accommodate a
49
disabled employee’s ability to commute to and from work can be reasonable accommodations.
§ 5.1.3 C. MEDICAL USE OF MARIJUANA CASES
C. MEDICAL USE OF MARIJUANA CASES
50
In 2011, in Roe v. TeleTech Customer Care Management (Colorado), L.L.C., the Washington
State Supreme Court held that the state’s Medical Use of Marijuana Act (MUMA) neither
prohibits an employer from discharging an employee for medical marijuana use nor provides a
civil remedy for such a discharge. The court further held that the statute does not “proclaim a
sufficient public policy to give rise to a tort action for wrongful termination for authorized use of
51
52
53
medical marijuana.” Similar results have occurred in prior cases in California, Montana and
54
Oregon.
Washington’s MUMA statute, which was enacted in 1998, provides an affirmative defense to a
physician authorizing the use of medical marijuana and to qualified patients and caregivers
engaging in the medical use of marijuana who are accused of marijuana-related crimes in
55
Washington. The law expressly provides that employers are not required to accommodate “any
56
medical marijuana use in any place of employment … .” In 2007, MUMA was amended to
clarify that employers are not required to accommodate any “on-site” use of medical marijuana in
57
the workplace.
In Roe, the plaintiff, who used a pseudonym in the case because use of medical marijuana,
remains illegal under federal law, suffered debilitating migraine headaches. A physician issued
her a written authorization under MUMA to use marijuana for medical purposes. Subsequently,
the defendant-company hired the plaintiff as a customer service representative. The job offer was
contingent on a negative drug test. She informed the company of her use of medical marijuana
outside the workplace and subsequently failed the drug test. As a result, the company fired her.
She filed suit against the company, asserting that the company terminated her violation of
MUMA and wrongfully discharged her in violation of public policy. The trial court granted
summary judgment in the company’s favor, and the Washington Court of Appeals upheld the
decision.
The Washington Supreme Court affirmed. In doing so, the court held that the MUMA statute
unambiguously provides only an affirmative defense to a criminal marijuana charge, not a civil
49
Livingston v. Fred Meyer Stores, Inc., 388 F. App’x 738 (9th Cir. 2010).
257 P.3d 586 (Wash. 2011).
51
257 P.3d at 597.
52
Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, 929 (2008).
53
Johnson v. Columbia Falls Aluminum Co. L.L.C., 2009 Mont. LEXIS 120 (Mar. 31, 2009) (unpublished).
54
Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., 230 P.3d 518 (Or. 2010).
55
WASH. REV. CODE §§ 69.51A.005 et seq.
56
WASH. REV. CODE § 69.51A.060.
57
WASH. REV. CODE § 69.51A.060; see also Roe, 257 P.3d at 598.
50
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58
claim against an employer. The court further explained that the language of the MUMA “do[es]
not recognize a broad policy that would remove any impediment to medical marijuana use or
impose an employer accommodation obligation,” and that “Washington patients have no legal
59
right to use marijuana under federal law.”
Currently, 18 states (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii,
Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode
Island, Vermont, and Washington) and the District of Columbia have some form of MUMA
statute. Several additional states (Illinois, New Hampshire, New York, Ohio, and Pennsylvania)
60
have introduced MUMA legislation or have such legislation currently pending.
§ 5.2 II. OVERVIEW OF DISABILITY DISCRIMINATION LAW
The ADA sets minimum standards of protection for employees, while many state laws often
provide a greater level of protection. In light of the ADAAA, the ADA may now offer greater
protection than the (formally more expansive) state disability discrimination laws.
§ 5.2.1 A. EMPLOYERS SUBJECT TO THE ADA
A. EMPLOYERS SUBJECT TO THE ADA
The employment provisions of the ADA apply to all employers—engaged in an industry affecting
commerce that have 15 or more employees for each working day in each of 20 or more calendar
61
weeks in the current or preceding calendar year. The ADA also applies to labor organizations,
62
employment agencies, and joint labor-management committees.
Employers of fewer than 15 employees should be aware that most states and many municipalities
have laws prohibiting discrimination against disabled employees or applicants. For example, in
the District of Columbia, an employer with one or more employees is subject to local
antidiscrimination provisions, and some states have coverage thresholds as low as two to six
employees.
In considering who counts as an “employee” for determining whether an entity employs the
threshold number of employees to be covered under the ADA, the U.S. Supreme Court, in
Clackamas Gastroenterology Associates, P.C. v. Wells, determined that the common-law master63
servant element of control should be the guidepost. The Supreme Court remanded the case to
the lower courts to determine whether the clinic’s shareholder-directors should be counted as
employees for purposes of ADA coverage. The Court noted that the following factors should be
considered, with no one factor controlling: the organization’s ability to hire and fire the
individual; the organization’s level of supervisory control over the individual; whether the
individual must report to a higher authority; the individual’s level of influence in the
58
Roe, 257 P.3d at 591.
Roe, 257 P.3d at 597.
60
For more information on state medical marijuana laws, see Littler’s state and regional titles in The
Employer Book series, at http://www.lexisnexis.com/littler/.
61
This is the same coverage test used under Title VII of the Civil Rights Act of 1964 (42 U.S. Code
§§ 2000e et seq.).
62
42 U.S. Code §§ 12111(2).
63
538 U.S. 440, 448 (2003).
59
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17
organization; the intent of the parties involved; and whether the individual shares in the profits,
64
losses and liabilities of the organization. The Court specified that each situation must be
evaluated on a case-by-case basis, and that the list of factors is not exhaustive. The mere fact that
an individual has a specific title such as partner, director, or vice president should not determine
whether an employment relationship exists.
Likewise, in determining who qualifies as an “employer” under the ADA, courts will generally
65
focus on the employer’s control over the individual employee.
Religious institutions may not be subject to the provisions of the ADA, with regard to their
“ministerial” employees. In a 2012 decision, EEOC v. Hosanna-Tabor Evangelical Lutheran
Church & School, the U.S. Supreme Court held that a former employee’s disability
discrimination claims under the ADA against the church were barred by the Free Exercise and
66
Establishment Clauses of the First Amendment. Religious institutions must raise the ministerial
67
exception as an affirmative defense; it is not a jurisdictional bar to filing a claim against them.
§ 5.2.1(a) Public Employers
Public employees are limited in their ability to bring claims under the ADA. The federal
68
Government is entirely excluded from coverage as an “employer” under the ADA. Likewise, in
69
a 2001 five to four decision, the U.S. Supreme Court held that a private individual may not sue
a state or state agency to recover monetary relief for employment discrimination under Title I of
the ADA, because the states are protected from such suits by sovereign immunity under the
Eleventh Amendment. According to the Court: “[I]n order to authorize private individuals to
recover money damages against the States, there must be a pattern of discrimination by the States
… and the remedy imposed by Congress must be congruent and proportional to the targeted
70
violation.” Notwithstanding this limitation, private individuals may still sue state officials for
71
prospective, injunctive relief. Additionally, the federal government may continue to sue states
for injunctive relief and monetary damages under Title I, and private individuals can still file
charges of disability discrimination with the EEOC or state enforcement agency, or file a private
suit under various state and local laws. Furthermore, local government agencies, such as
72
municipal police and fire departments, are not immunized against private lawsuits.
64
538 U.S. at 449–50.
See Satterfield v. Tennessee., 295 F.3d 611, 617 (6th Cir. 2002) (finding “employer” relationship where
“employer” has ability to control job performance and employment opportunities, is an agent delegated to
make employment decisions, or significantly affects access of individual to employment opportunities).
66
132 S. Ct. 694, 706 (2012).
67
132 S. Ct. at 709, n.4.
68
See 42 U.S. Code §§ 12111(5)(B)(i); Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003). However,
disability discrimination claims may be brought by federal employees under the Rehabilitation Act of 1973,
as amended, 29 U.S.C. §§ 791 et seq., which prohibits discrimination on the basis of disability in federal
employment as well as in programs conducted by federal agencies, in programs receiving federal financial
assistance, and in the employment practices of federal contractors. Employees of state agencies that receive
federal funding may also bring claims under the Rehabilitation Act.
69
Board of Trustees v. Garrett, 531 U.S. 356 (2001).
70
Garrett, 531 U.S. at 374.
71
See Maizner v. Hawaii Dep’t of Educ., 405 F. Supp. 2d 1225, 1231 (D. Haw. 2005).
72
See, e.g., Beentjes v. Placer County Air Pollution Control Dist., 397 F.3d 775 (9th Cir. 2005)
65
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§ 5.2.1(b) Supervisors
Courts in most circuits have held that there is no individual liability for supervisors who do not
73
independently qualify as “employers” for violations of the ADA. However, as previously noted,
individuals may bring suit for prospective, injunctive relief against state officials if they violate
74
the ADA while acting in their official capacity.
§ 5.2.2 B. PERSONS PROTECTED BY THE ADA
B. PERSONS PROTECTED BY THE ADA
The ADA protects qualified individuals with a disability, which is defined as a person with a
disability who, with or without reasonable accommodation, can perform the essential functions of
the job in question. A disabled individual is one who:
• has a physical or mental impairment that substantially limits one or more major life
activities;
• has a record of such impairment; or
• is regarded as having such an impairment.75
§ 5.2.2(a) Contingent Workers as Employees
The EEOC takes the position that staffing firms and their clients (i.e., employers) both have
76
obligations under the ADA. Staffing firms include temporary agencies, contract firms, facilities
staffing firms, lease-back firms and welfare to work programs. Staffing firms, and their clients,
may be liable for their own discrimination against a worker, and, potentially, discrimination by
the other entity if either participates in the discrimination or knew or should have known of the
discrimination and failure to take corrective action within its control.
A prospective worker enlisting him or herself with a staffing firm or agency does not establish an
employment relationship with that agency or a client until an offer of a work assignment has been
made and accepted. However, in the application and interview process, both entities must comply
with the requirements of the ADA. For further discussion see § 5.2.5(a) below, “Employment
(recognizing that an air pollution control district was too localized to be considered an arm of the state, and
thus was not immune from a former employee’s ADA claim).
73
Roman-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43 (1st Cir. 2011); Butler v. City of Prairie
Vill., 172 F.3d 736 (10th Cir. 1999); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995);
Mason v. Stallings, 82 F.3d 1007 (11th Cir. 1996).
74
Grey v. Wilburn, 270 F.3d 607 (8th Cir. 2001) (Eleventh Amendment does not bar suits against
individuals in their official capacity where the plaintiff seeks injunctive relief under the ADA and the
allegations on the whole are clearly directed against individuals rather than the state agency); Frazier v.
Simmons, 254 F.3d 1247 (10th Cir. 2001) (state department of corrections official could be sued under the
ADA by a former employee).
75
42 U.S.C. § 12101(2)(A)–(C).
76
EEOC Guidance of Application of Americans with Disabilities Act to Contingent Workers, EEOC
Compliance Manual N:3331 (Jan. 2002). Guidance published from the EEOC does not have the same force
as regulations issued by the EEOC and the law will continue to be defined in the courts. The EEOC
publications referred to in this Chapter can be found on the EEOC’s website at www.eeoc.gov.
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
19
Practices Regulated by the ADA.”
§ 5.2.2(b) Retirees & Former Employees
There is a split of authority as to whether the ADA protects retired employees. Some courts have
held that retired and other former employees are not protected under the ADA, because an
individual must be qualified to perform essential job functions of the job held or sought at the
time they bring suit under the ADA. At the time retirees bring suit, they typically are unable to
77
perform essential job functions and they do not have, and are not seeking, any job. Other courts
have held that the ADA does protect retirees and other former employees because to do otherwise
78
would lead to unfair results that are inconsistent with the ADA.
In joining the Seventh and Ninth Circuits, the Sixth Circuit Court of Appeals held in McKnight v.
General Motors Corp. that three disabled General Motors Corp. retirees lacked standing to sue
79
under the ADA. In rejecting the Second and Third Circuit’s broad interpretation, the Sixth
Circuit reasoned that the relevant ADA language uses present-tense verbs and unambiguously
excludes disabled retirees—“qualified individuals” who “can perform” the essential functions of
a job with or without a reasonable accommodation. Further, the Sixth Circuit found that the
Employee Retirement Income Security Act (ERISA), not the ADA, addressed the provision of
benefits to former employees who can no longer work.
§ 5.2.2(c) Independent Contractors Are Not “Employees” for
Purposes of the ADA
Generally, legitimately independent contractors are not covered by the provisions of the ADA. In
80
Lerohl v. Friends of Minnesota Sinfonia, the Eighth Circuit Court of Appeals held that
musicians with the Minnesota Sinfonia chamber orchestra were independent contractors, not
employees, for purposes of the ADA. The orchestra is comprised of 25 to 30 professional,
freelance musicians. When a new series of concerts is scheduled, the conductor of the group
contacts eligible “regular” or “first call” players to check on their availability before contacting
other musicians. To be a “regular” or “first call” player, the musician must accept the vast
majority of work offered.
The district court dismissed the plaintiff’s complaint, finding her to be an independent contractor
and therefore not protected by the ADA. The Eighth Circuit affirmed this decision because the
musicians were professionals who retained control over the extent to which they were available
for concerts. Also significant was the fact that the organization did not withhold income or FICA
taxes, documented payments to the musicians on 1099s, and provided no employee benefits other
81
than contributions to a union pension fund.
77
Morgan v. Joint Admin. Bd., 268 F.3d 456 (7th Cir. 2001); Weyer v. Twentieth Century Fox Film Corp.,
198 F.3d 1104 (9th Cir. 2000).
78
Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999);
Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998), cert. denied, 525 U.S. 820 (1998); see also
Fletcher v. Tufts Univ., 367 F. Supp. 2d 99 (D. Mass. 2005) (recognizing that former employees can be
considered qualified individuals).
79
550 F.3d 519 (6th Cir. 2008).
80
322 F.3d 486 (8th Cir. 2003), cert. denied, 540 U.S. 983 (2003).
81
322 F.3d at 492; see also Ratledge v. Science Applications Int’l Corp., 2011 U.S. Dist. LEXIS 13799
(E.D. Va. Feb. 10, 2011) (holding that that ADA does not protect independent contractors), aff’d, 2011 U.S.
20
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However, in some circuits, independent contractors may be able to bring disability claims under
82
the Rehabilitation Act of 1973.
§ 5.2.2(d) Volunteers as Employees
83
Generally, courts have held that volunteers are not employees for ADA purposes. Whether a
person is an “employee” depends on whether the person is economically dependent on the entity
to which the person renders service. For example, in Tawes v. Frankford Volunteer Fire Co., the
court held that a volunteer fireman was not an employee of the fire company because the line-ofduty benefits, discounts with a wireless carrier, and pension system provided by the fire company
84
did not render him sufficiently economically benefited to be considered an employee.
Moreover, the court recognized that the parties viewed their relationship as strictly voluntary.
“Volunteers are not motivated to join the Fire Company for economic reasons,” but for the “pride
85
and intangible benefits” that they associate with being a member. Consequently, the “economic
86
reality” test proved the volunteer fireman was not an employee. However, a “volunteer” may be
considered an employee of a particular entity if he or she receives benefits such as a pension,
group life insurance, workers’ compensation, and access to professional certification, even if the
87
benefits are provided by a third party. Furthermore, a volunteer may be covered by the ADA if
the volunteer work is required for regular employment or regularly leads to regular employment
88
with the same entity.
App. LEXIS 21510 (4th Cir. Oct. 24, 2011).
82
Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938 (9th Cir. 2009), cert. denied, 130 S. Ct. 3468 (2010);
Schrader v. Ray, 296 F.3d 968 (10th Cir. 2002). The Sixth and Eighth Circuits, however, have concluded
otherwise, precluding independent contractors from asserting disability discrimination claims under the
Rehabilitation Act. See Wojewski v. Rapid City Reg’l Hosp., 450 F.3d 338 (8th Cir. 2006); Hiler v. Brown,
177 F.3d 542 (6th Cir. 1999).
83
See, e.g., Graves v. Women’s Professional Rodeo Ass’n, 907 F.2d 71 (8th Cir. 1990) (recognizing that a
member of a rodeo association, who accrued benefits but received no compensation, could not be
considered an “employee”).
84
2005 U.S. Dist. LEXIS 786 (D. Del. Jan. 13, 2005).
85
2005 U.S. Dist. LEXIS 786, at **160–17.
86
2005 U.S. Dist. LEXIS 786. But see Haavistola v. Community Fire Co., 6 F.3d 211 (4th Cir. 1993). In
Haavistola, a volunteer firefighter was found to have an employment relationship with the fire company.
First, being a member of the fire company gave the plaintiff an opportunity to qualify as an Emergency
Medical Technician-Paramedic. Further, the plaintiff received benefits such as reimbursement for training
and group health insurance for being a member of the fire company. The court viewed these benefits,
namely of exchanging work for training and employment certification, to be sufficiently significant to find
a potential employment relationship. The court, thus, remanded the issue, as the district court had held that,
as matter of principle, a volunteer could not be considered an employee. See also Bryson v. Middlefield
Volunteer Fire Dep’t, Inc., 656 F.3d 348 (6th Cir. 2011) (rejecting district court’s conclusion that plaintiff
must first establish receipt of significant remuneration before applying common law agency test).
87
E.g., Pietras v. Board of Fire Comm’rs, 180 F.3d 468, 473 (2d Cir. 1999) (finding coverage under Title
VII even when the putative employee receives no salary so long as he or she gets numerous job-related
benefits).
88
See Section II: Threshold Issues, EEOC Compliance Manual (May 2000) (citing Charlton v. Paramus
Bd. of Educ., 25 F.3d 194, 198 n.4 (3d Cir.) (Title VII reaches discrimination by any covered employer that
has “the ability to directly affect a plaintiff’s employment opportunities”), cert. denied, 513 U.S. 1022
(1994)).
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
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§ 5.2.3 C. WHAT IS A DISABILITY?
C. WHAT IS A DISABILITY?
Under the ADA and its 2008 amendments, an individual with a disability is a person who:
• has a physical or mental impairment that substantially limits one or more major life
activities (actual impairment);
• has a record of such an impairment (record of); or
• is regarded as having such an impairment (regarded as having).89
The definition of “disability” is now to be construed broadly under the Act. The ADAAA was
enacted to specifically increase coverage and strengthen employee protections under the ADA by
rejecting the strict interpretation of the ADA that defines disability to be an impairment that
prevents or severely restricts an individual from doing activities that are of central importance to
one’s daily life. The ADAAA also prohibits consideration of almost all measures that reduce or
mitigate the impact of an impairment in the determination of whether an individual is disabled.
The standard for a disability is not uniform under state and federal law. Likewise, the definition
of disability used in the ADAAA should not be confused with the definitions used in other types
of laws, such as state workers’ compensation laws or other federal and state laws that provide
benefits for people with disabilities or disabled veterans.
§ 5.2.3(a) “Substantially Limits” Defined
Under the ADAAA, an individual is not disabled unless he or she is substantially limited in one
90
or more major life activities. Major life activities include, but are not limited to, such things as:
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,
91
interacting with others, and working. A major life activity also includes the operation of a major
bodily function, including but not limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions. Physiological functions are also included, such as the functioning of the
immune, musculoskeletal, neurological, brain, genitourinary, circulatory, and reproductive
92
systems, and all major organs.
After the enactment of the ADA in 1990, both the U.S. Supreme Court and the EEOC issued
decisions and regulations that created a highly restrictive interpretation of the statute’s definition
93
of disability. The EEOC and the Court interpreted the term “substantially limits” to require a
89
42 U.S.C. § 12102(1)(A)–(C); Pub. L. No. 110-325, 122 Stat. 3559 (2008).
42 U.S.C. § 12102(2)(A); Pub. L. No. 110-325, 122 Stat. 3559 (2008).
91
42 U.S.C. § 12102(2)(A); Pub. L. No. 110-325, 122 Stat. 3559 (2008).
92
42 U.S.C. § 12102(2)(B).
93
See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002); Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999); Murphy v. United Parcel Serv., 527 U.S. 516 (1999); Albertson’s, Inc. v.
90
22
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
significant degree of limitation that was inconsistent with Congress’s original intent.
Under the ADAAA, disabled individuals include those persons with an impairment that is
episodic or in remission if the impairment would substantially limit a major life activity when
active. Based on this language, in 2010 a federal court—in one of the first cases to rule on the
extent to which the ADAAA broadens what conditions are considered disabilities—ruled that a
plaintiff’s past bout with cancer is considered a disability despite the fact that the cancer had been
94
in remission and plaintiff had been working with no restrictions.
The ADAAA further provides that the determination of whether an individual is substantially
limited in a major life activity shall be made without regard to the ameliorative effects of
mitigating measures such as medication, medical supplies, equipment, or appliances, low-vision
95
devices, prosthetics, hearing aids and cochlear implants, mobility devices, oxygen therapy
equipment, the use of assistive technology, reasonable accommodations or auxiliary aids or
services, or learned behavioral or adaptive neurological modifications.
This means that the ADA now protects individuals whose cancer is in remission, whose diabetes
is controlled by medication, whose seizures are prevented by medication, and who can function at
a high level with learning disabilities. The ADAAA further clarifies that an impairment need only
96
limit one major life activity to qualify for protection. As noted above, this is a marked and
significant departure from the definition of “substantially limited” under the ADA and prior
Supreme Court precedent.
§ 5.2.3(b) Temporary Impairments
The ADAAA covers individuals with a disability that is episodic or in remission so long as the
97
impairment would substantially limit a major life activity when active. The enactment of the
ADAAA did not change that temporary, nonchronic impairments that have little or no long term
impact, such as broken limbs, sprained joints, concussions, appendicitis, pneumonia, and
98
influenza usually are not viewed as disabilities. Today these conditions would likely only
qualify for disability protection if the residual impact of the temporary impairment (even with
99
mitigating measures) would result in the substantial limitation of a major life activity. Thus, an
100
improperly healed broken leg, resulting in a permanent limp, might be considered a disability.
Employers should be aware that it may be risky to conclusively classify a condition as permanent
or temporary before the employee has provided proper medical documentation. Regardless of
whether the condition is temporary or permanent, the employer may have overlapping obligations
Kirkingburg, 527 U.S. 555 (1999); 29 C.F.R. § 1630.2(j)(1).
94
See Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Healthcare, 2010 U.S. Dist. LEXIS 90879
(N.D. Ind. Aug. 31, 2010).
95
Low vision devices means devices that magnify, enhance, or otherwise augment a visual image. 42
U.S.C. § 12102(4)(E)(iii)(II); Pub. L. No. 110-325, 122 Stat. 3559 (2008).
96
42 U.S.C. § 12102(4)(B); Pub. L. No. 110-325.
97
42 U.S.C. § 12102(4)(D); Pub. L. No. 110-325.
98
42 U.S.C. § 12102(4)(3)(B).
99
29 C.F.R. § 1630.2(j)(ix).
100
EEOC Technical Assistance Manual § 2.2(a)(iii).
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23
under the federal Family and Medical Leave Act (FMLA) and applicable state laws.
§ 5.2.3(c) Physical Impairments Defined
A physical impairment is any physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
Chronic conditions, diseases and infections may be physical impairments. Such conditions
include orthopedic, visual, speech, and hearing impairments, as well as cerebral palsy, epilepsy,
muscular dystrophy, multiple sclerosis, human immunodeficiency virus (HIV) infection, cancer,
heart disease, or diabetes. On the other hand, simple physical characteristics such as eye or hair
color that are within normal range and are not the result of a physiological disorder are not
physical impairments.
101
For example, in Dale v. Wynne, a business flight chief for the Air Force, who was 5 feet, 3
inches in height and weighed at least 300 pounds, had a history of very favorable performance
evaluations during her employment with the Air Force. Both before and after the plaintiff
completed gastric bypass surgery and filed a discrimination complaint, she suspected that her
supervisors were discriminating against her by regarding her as disabled due to her weight. The
district court dismissed her claim against the Department of Defense on summary judgment
because there was simply no evidence that the employee’s excessive weight was the result of a
physiological condition. Moreover, the employee never offered any evidence to suggest that her
supervisors regarded her as having a physiological condition that resulted in excess weight.
Having failed to prove that she suffered from a disability or was regarded as having one, the court
concluded she simply had no claim.
§ 5.2.3(d) Voluntary Impairments Defined
The ADA also applies to what some commentators have called voluntary impairments: conditions
resulting from an employee’s freely chosen activities. For example, studies indicate that smoking
increases the risk of lung cancer and that unprotected sexual relations increase the risk of AIDS,
but cancer and AIDS both are impairments protected under the ADA, regardless of how they
developed. Alcoholism and drug addiction can also be disabilities even when the addiction stems
from the individual’s voluntary use of these substances. Once the addiction develops, the
individual’s craving for the substance is involuntary and constitutes an impairment. Current
illegal use of drugs, however, is not protected by the ADA. For further discussion see § 5.2.13
below, “Alcoholism & Drug Addiction.”
§ 5.2.3(e) Mental Impairments Defined
A mental impairment is any mental or psychological disorder, such as intellectual disability,
organic brain syndrome, emotional or mental illness, and specific learning disabilities. Common
personality traits such as a quick temper are not impairments where such traits are not symptoms
of a mental or psychological disorder.
§ 5.2.3(e)(i) EEOC’s Guidance on Mental Disabilities
In 1997 and 2004, the EEOC issued its Guidance on the application of the ADA to persons with
101
24
497 F. Supp. 2d 1337 (M.D. Ala. 2007).
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
mental disabilities. Specifically, the Guidance appears to broaden mental impairment by
suggesting that conditions not identified in the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders (DSM) may qualify for treatment as mental
impairments. The DSM is a compilation of accepted psychiatric conditions, widely used in the
medical profession for diagnoses and to classify disorders for purposes of insurance
reimbursement. The current Guidance also provides that “personality disorders” described in the
DSM may qualify as mental impairments. Because these personality disorders (e.g., paranoid
personality disorder, antisocial personality disorder, histrionic personality disorder) are
characterized by conduct that is outside societal norms, the current Guidance has caused concern
that employees who engage in misconduct or other disruptive behavior will seek to shield
themselves from disciplinary action by reliance on the ADA.
The ADAAA has also broadened the definition of major life activities to include learning,
102
reading, concentrating, thinking and communicating. This indicates that proof that the
individual is substantially limited in the performance of these functions need not come from
medical personnel, but may be established by the testimony of the individual and his or her
family and friends, and may include information about the individual’s functioning at home and
away from work. The ADA recognizes, however, that an employer is entitled to ascertain whether
an employee can perform essential job functions. The mere request that an employee submit to a
psychiatric evaluation has been held to be insufficient to prove that the employer considered the
103
employee to be mentally impaired as a matter of law.
§ 5.2.3(e)(ii) Cases Analyzing Mental Disabilities
104
In Gaul v. Lucent Technologies, Inc., an employee who had interpersonal difficulties at work
claimed to have a personality disorder, and suggested that he should be accommodated by being
assigned to positions that would be free from prolonged and inordinate stress. The court rejected
this suggestion, finding that such an accommodation would place unreasonable administrative
burdens on the employer and entangle the court in personnel decisions selecting coworkers and
assignments, all of which are far more than what is required under the ADA.
105
Similarly, in Palmer v. Circuit Court, the court determined that a mere personality conflict
between employee and supervisor is not a disability, even if it results in anxiety and depression,
because it can be resolved if the employee secures a new job and, therefore, does not substantially
limit a major life activity. If such a personality conflict triggers serious mental illness, as it did
with Palmer, the condition may be disabling. The court nonetheless found that the employee’s
discharge, for threatening her supervisor, was not a violation of the ADA, even assuming that her
mental illness was the cause of her threats. The court held that employers are not required to
retain potentially violent employees because such persons cannot be considered qualified for
continued employment.
106
In Reed v. Lepage Bakeries, Inc., the court did not rule out the possibility that employers may
have some duty to reasonably accommodate those whose disability requires them to be permitted
102
42 U.S.C. §12102(2)(A); Pub. L. No. 110-325, 122 Stat. 3559 (2008).
See Vosatka v. Columbia Univ., 2005 U.S. Dist. LEXIS 18139 (S.D.N.Y. Aug. 24, 2005).
104
134 F.3d 576 (3d Cir. 1998).
105
117 F.3d 351 (7th Cir. 1997), cert. denied, 522 U.S. 1096 (1998).
106
244 F.3d 254 (1st Cir. 2001).
103
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to walk away from stressful situations. After an altercation with a coworker, the plaintiff’s
supervisor advised her to walk away from such disputes before they escalated out of control.
Subsequently, in a meeting with her supervisor and the human resources manager, the plaintiff
lost control, burst into profanity, was escorted from the building and discharged the following
day. The plaintiff sued, claiming that her bipolar condition required her to be able to leave
stressful situations and that she had, in fact, been given prior accommodation to walk away from
such situations. The employer argued that the plaintiff was fired because of her misconduct, not
her disability. On appeal, the court affirmed summary judgment for the employer, finding that the
plaintiff had not adequately notified her employer of her disability or her need for a specific
accommodation. The court noted that the employer has “no duty to divine the need” for
accommodation. Even if the plaintiff could have substantiated her claim that she had been denied
the previously granted reasonable accommodation of walking away from coworker conflict, the
court stated that it is a “vastly different matter for an employee to walk away from a supervisor
engaged in the act of supervision” than to permit an employee to follow the commonplace advice
to walk away from confrontational situations with fellow employees. The “ADA is not a license
107
for insubordination.”
The Ninth Circuit Court of Appeals takes a different view, holding that “interacting with others”
108
is a major life activity. It cautioned, however, that employees who are merely “cantankerous”
are not substantially limited in this major life activity. To be disabled an individual must have
severe problems, such as social withdrawal, consistently high levels of hostility or a failure to
communicate when needed.
§ 5.2.3(f) Individuals with a “Record of an Impairment” Covered by
ADA
Individuals with a record of impairment have a history of, or have been misclassified as having, a
mental or physical impairment that substantially limits one or more major life activities. This
provision was included in the ADA, in part, to protect individuals who have recovered from a
physical or mental impairment that previously substantially limited them in a major life activity.
Frequently occurring examples include persons with histories of mental or emotional illness,
heart disease, or cancer, as well as persons misclassified as mentally retarded.
A record of impairment may be irrelevant, however, if unknown to the employer. For example, in
109
Szymanska v. Abbott Laboratories, the court rejected an employee’s claim that she had been
discharged due to a record of impairment (cancer), because she offered no evidence that anyone
involved in the decision to terminate her employment had access to any of her medical records.
§ 5.2.3(g) “Regarded as Having” an Impairment Defined
With the enactment of the ADAAA, individuals regarded as having a covered impairment
include those who can establish they have been subjected to an action prohibited under the ADA
because of an actual or perceived physical or mental impairment whether or not the impairment
107
244 F.3d at 262.
McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999), reh’g en banc denied, 201 F.3d 1211
(9th Cir. 1999), cert. denied, 530 U.S. 1243 (2000).
109
1994 U.S. Dist. LEXIS 3830 (N.D. Ill. Mar. 29, 1994) (unpublished).
108
26
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
110
limits or is perceived to limit a major life activity. Simply stated, the law prohibits
discrimination against an individual who is treated as if he or she was disabled.
Courts have confirmed that an employer’s decision to reasonably accommodate an employee does
111
not mean that the employer “regards” the individual has having a disability under the ADA.
Courts have recognized that to hold otherwise might result in employers being less inclined to
voluntarily assist employees in their ability to perform the essential functions of the position.
The ADAAA specifically excludes from its definition of “regarded as having” a disability those
112
impairments that are transitory and minor. A transitory impairment is an impairment with an
113
actual or expected duration of six months or less.
§ 5.2.3(g)(i) Cases Analyzing “Regarded As” Disabilities
114
In Haulbrook v. Michelin North America, Inc., the court found that an employer’s efforts to put
an employee who suffered from respiratory problems back to work was persuasive in defeating a
regarded as claim. The court noted that the employee, who had refused repeated requests from
his employer for information on his condition, could not use the ADA as a “sword” to then claim
that the employer’s lack of information was evidence that the employer regarded him as disabled.
115
In contrast, in Johnson v. Paradise Valley Unified School District, an employer would not
allow a custodian who suffered a leg injury to return to work without a full release.
In reversing a summary judgment motion in favor of the employer, the Ninth Circuit Court of
Appeals stressed evidence that the employer’s “100% healthy” policy supported an inference that
the employer viewed the plaintiff as unable to perform any job.
116
Likewise, it was improper for the employer in EEOC v. Texas Bus Lines to refuse to hire a
morbidly obese applicant who had qualified to be an airport van driver, based on assumptions
about impaired mobility that were not founded on objective medical evidence, but on a very
limited medical examination. The medical examiner had rendered an opinion concerning the
applicant’s ability to move swiftly in the event of an accident that was inconsistent with
regulations of the Department of Transportation (DOT), which contained no weight restrictions
for bus drivers. Accordingly, the medical examination report could not be used as a justification
to circumvent the antidiscrimination mandate of the ADA.
As discussed above, temporary injuries do not normally constitute a substantial impairment as
117
defined in the ADA. In Schulz v. Rental Services Corp., the plaintiff argued that his employer
110
42 U.S.C. § 12102(1)(C); Pub. L. No. 110-325, 122 Stat. 3559 (2008).
See Bell v. Mericle Dev. Corp., 2007 U.S. Dist. LEXIS 8006 (M.D. Pa. Feb. 5, 2007) (merely relieving
an employee of certain job duties after the employee suffers an on-the-job injury does not, by itself, equate
to a finding that the employer regarded the employee as disabled).
112
42 U.S.C. § 12102(3)(B); Pub. L. No. 110-325, 122 Stat. 3559 (2008).
113
42 U.S.C. § 12102(3)(B); Pub. L. No. 110-325.
114
252 F.3d 696 (4th Cir. 2001).
115
251 F.3d 1222 (9th Cir. 2001), cert. denied, 534 U.S. 1055 (2001).
116
923 F. Supp. 965 (S.D. Tex. 1996).
117
200 F. App’x 616 (8th Cir. 2006).
111
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27
nevertheless considered his temporary injury a disability because it viewed his injury as more
limiting than he did. The plaintiff was released to return to work with light duty restrictions.
Nevertheless, the company first instructed the plaintiff not to report back to work until he was
fully released and then terminated his employment. In response, the plaintiff filed an ADA
lawsuit alleging that the company mistakenly believed that his broken wrist posed a safety hazard
118
and prevented him from performing the essential functions of his sales coordinator job. In
rejecting his claim, the Eighth Circuit Court of Appeals held that the mere fact that the company
considered the injury more limiting than the plaintiff did not mean that the company regarded him
119
as being disabled within the meaning of the ADA. Instead, the deciding factor was that the
company, despite its mistaken belief regarding the severity of the wrist injury, never regarded the
120
broken wrist as more than a temporary condition.
§ 5.2.3(g)(ii) Supreme Court Declines to Take Sides on “Regarded
As” Issue
Prior to the passage of the ADAAA, federal appellate courts were split on the issue of whether an
employee “regarded as” disabled by his employer is entitled to a reasonable accommodation. The
ADAAA clarifies that employers need not engage in the reasonable accommodation process with
persons regarded as disabled.
To the extent this issue is raised in pre-ADAAA litigation, however, below is a brief discussion
on whether an employee regarded as disabled may nevertheless be entitled to a reasonable
accommodation.
121
In Williams v. Philadelphia Housing Authority Police Department, the U.S. Supreme Court
refused to decide whether an employee regarded as disabled by his employer was entitled to a
reasonable accommodation. The plaintiff, a severely depressed former police officer, took two
leaves of absences from his job with the Philadelphia Housing Authority. He claimed that the
Housing Authority thereafter regarded him as unable to return to his job because of his mental
instability. Joining the First Circuit, the Third Circuit Court of Appeals determined that the
plaintiff was entitled to an accommodation to return to a job in law enforcement. On appeal, the
Supreme Court refused to reexamine the Third Circuit’s holding.
The Third Circuit recognized that the Fifth, Sixth, Eighth, and Ninth Circuits had reached the
opposite conclusion, finding that “regarded as” employees are not entitled to a reasonable
accommodation. The Third Circuit labeled this reasoning as “incorrect.” The court did, however,
limit its holding, stating that not every situation will permit an accommodation for “regarded as”
employees, but there was no reason to enact a bright-line rule forbidding it in every situation.
§ 5.2.3(h) Conditions Excluded from the Definition of Disabled
The text of the ADA sets forth a list of conditions or practices that are excluded from the
definition of disability. These include: homosexuality, bisexuality, transvestitism, transsexualism,
pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical
impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania,
118
200 F. App’x 616.
200 F. App’x at 617.
120
200 F. App’x at 617.
121
380 F.3d 751 (3d Cir. 2004), cert. denied, 544 U.S. 961 (2005).
119
28
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
and psychoactive substance use disorders resulting from current illegal use of drugs.
122
Environmental, cultural, and economic disadvantages are not in themselves covered.
Several courts have determined that a normal pregnancy, without complications, is not a
123
disability. This holding was clearly stated in Gabriel v. City of Chicago. “Consistent with the
EEOC’s Interpretive Guidance, many courts have held that pregnancy, absent abnormal or
124
unusual circumstances, is not a disability.” However, the court noted that conditions that cause
or result in abnormal reproductive functioning may substantially limit a major life activity and
125
thus may meet the ADA’s definition of disability. For further discussion, see § 5.2.4(e) below,
“Reproduction and Sexual Functioning.”
Employers should note that federal law protects against pregnancy discrimination in
126
employment and a number of states have separate statutes covering pregnancy disability under
which employers may be required to provide accommodation, leave and reinstatement.
§ 5.2.3(i) Employees with a Relationship or Association with a
Disabled Person Also Covered by the ADA
The ADA also prohibits discrimination against employees known to have a relationship or
association with a disabled person. For example, it would be unlawful for an employer to
discharge an employee because the employee associates with or is related to a person with AIDS.
Similarly, the EEOC’s Interpretive Guidelines forbid employment decisions based on
assumptions that an employee will miss work in order to care for a disabled person. This does not
mean, however, that absences caused by caring for a disabled person are always protected under
127
the ADA. For example, in Tyndall v. National Educational Centers, an employee with lupus
missed substantial periods of work because of her own illness and to care for her disabled son.
When she was discharged for absenteeism, she brought suit under the ADA. The court dismissed
her lawsuit because her discharge was not based on any assumption regarding future absences,
but instead resulted from her actual attendance record. The court held that the employee’s failure
to meet the attendance requirements of the job meant that she was not a “qualified” individual
protected by the ADA. Such employees may, however, be protected under the FMLA.
The ADA’s prohibition on discrimination against employees with a relationship or association
with a disabled person is intended to protect persons with close familial, social, or physical
128
relationships with disabled persons. In O’Connell v. Isocor Corp., a human resources manager
claimed Isocor discriminated against her after her HIV positive counterpart in another region was
laid off (he sued, alleging disability discrimination). When O’Connell herself was laid off, she
sued under the ADA, claiming that her termination resulted from her “association” with her HIVpositive former coworker. The court rejected her claim, noting that she had no familial, social or
physical relationship with her former colleague, and that her termination would have no chilling
122
29 C.F.R. § 1630.3(d).
9 F. Supp. 2d 974 (N.D. Ill. 1998).
124
9 F. Supp. 2d at 980–81.
125
See also Gudenkauf v. Stauffer Commc’ns, 922 F. Supp. 465, 473 (D. Kan. 1996), aff’d, 158 F.3d 1074
(10th Cir. 1998).
126
42 U.S.C. § 2000e(k).
127
31 F.3d 209 (4th Cir. 1994).
128
56 F. Supp. 2d 649 (E.D. Va. 1999).
123
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29
effect on his receipt of care or companionship.
§ 5.2.4 D. WHAT ARE MAJOR LIFE ACTIVITIES UNDER THE ADA?
D. WHAT ARE MAJOR LIFE ACTIVITIES UNDER THE ADA?
The ADA, as amended by the ADAAA, defines major life activities to include, without
limitation, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
129
thinking, communicating, and working.” Additionally, major life activities include the
“operation of a major bodily function[s],” including, without limitation, the “functions of the
immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,
130
circulatory, endocrine, and reproductive functions.”
Additionally, the EEOC’s final rule expanded the statutory list of major life activities to include
131
interacting with others. Similarly, the final rule expanded the list of major bodily functions to
include the functioning of special sense organs and skin, and the genitourinary, cardiovascular,
132
hemic, lymphatic, and musculoskeletal systems.
Once a major life activity has been identified, the crucial issue is whether an individual has a
disabling impairment that substantially limits the major life activity without regard to the
133
ameliorative effects of mitigating measures. If an impairment creates a substantial limitation of
134
a “major life activity,” the individual will be considered disabled. If no other major life activity
is affected by an individual’s impairment, courts will consider whether the impairment
substantially limits an individual’s ability to engage in the major life activity of working.
§ 5.2.4(a) Working
In the EEOC’s final rule, “[a]n individual with a disability will usually be substantially limited in
another major life activity, therefore generally making it unnecessary to consider whether the
135
individual is substantially limited in working.” Nevertheless, an impairment substantially
limits the major life activity of working if it substantially limits an individual’s ability to perform,
136
or to meet the qualifications for, the type of work at issue. The EEOC’s final rule also included
the familiar language of “class or broad range of jobs,” and continues to maintain that
129
42 U.S.C. § 12102(2)(A).
42 U.S.C. §§ 12102(2)(B).
131
29 C.F.R. § 1630.2(i)(1)(i).
132
29 C.F.R. § 1630.2(i)(1)(ii).
133
42 U.S.C. § 12102(4)(E); Pub. L. No. 110-325, § 3, 122 Stat. 3553 (2008) (“The determination of
whether an impairment substantially limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures such as … medication[.]”). Since most of the court cases cited
in this section focused on whether an individual’s impairment substantially limited a major life activity
with the use of mitigating measures, such as medication, and that is no longer the law following the
enactment of the ADAAA, practitioners should be cautious if citing to these cases for authority.
134
Congress has expanded the list of major life activities to include: caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating and working. 42 U.S.C. § 12102(2)(A); Pub. L. No. 110325, 122 Stat. 3559 (2008).
135
74 Fed. Reg. at 48,442 (proposed amendment to 29 C.F.R. § 1630.2(j)(1)).
136
74 Fed. Reg. at 48,442.
130
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“[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job
is not sufficient to establish that a person is substantially limited in the major life activity of
137
working.”
Many courts have addressed whether an inability to work overtime is a substantial limitation on
138
the major life activity of working. At least three circuits have rejected the contention. The
rationale behind this conclusion is that an employee is not disabled for ADA purposes when the
impairment merely requires that the hours worked by the employee are limited, but does not limit
the employee from working at jobs in which overtime is not a requirement. The First Circuit
supported this reasoning, noting that “there are vast employment opportunities available which
139
require only 40-hour workweeks.”
§ 5.2.4(b) Sleeping
While many courts have held that “sleeping” is a major life activity, the ADAAA expressly
includes it as one. The factual issue is whether a plaintiff’s impairment substantially limits his or
140
her ability to sleep. In Traxler v. Multnomah County, the plaintiff argued that her impairments
of depressive disorder, anxiety disorder, panic disorder, post-traumatic stress disorder, and
obsessive-compulsive disorder substantially affected the major life activities of sleeping,
thinking, and interacting with others. The plaintiff alleged that she could sleep only two to four
hours a night on most nights and felt drowsy at work. The district court held that the plaintiff’s
ability to sleep was not substantially limited because there was no evidence that she needed to
take naps to catch up on her sleep, and that she presumably had normal sleep patterns the
remainder of the week.
Similarly, in Verhoff v. Time Warner Cable, Inc., the Sixth Circuit Court of Appeals held that the
evidence presented by the plaintiff did not establish that his moderate insomnia substantially
141
limited him in the major life activity of sleeping. The plaintiff’s eczema limited him to roughly
five hours of sleep per evening. The appeals court found that although less than five hours is not
optimal, it is not significantly restricted in comparison to the average person in the general
142
population. Although the plaintiff argued that his sleep is not restful, the court, relying on
143
Sutton v. United Air Lines, Inc., noted that the plaintiff had medication to treat his sleep
difficulty.
However, the Fifth Circuit Court of Appeals reached a different result in EEOC v. Chevron
137
74 Fed. Reg. at 48,442.
See, e.g., Cotter v. Ajilon Servs., Inc., 287 F.3d 593 (6th Cir. 2002), rev’d on other grounds by Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012); Kellogg v. Union Pac. R.R., 233 F.3d 1083 (8th
Cir. 2000); Tardie v. Rehabilitation Hosp. of R.I., 168 F.3d 538 (1st Cir. 1999).
139
Tardie, 168 F.3d at 542.
140
2008 U.S. Dist. LEXIS 7456 (D. Or. Jan. 29, 2008), rev’d in part on other grounds, 2008 U.S. Dist.
LEXIS 50953 (D. Or. July 1, 2008), rev’d in part on other grounds, 596 F. 3d 1007 (9th Cir. 2010).
141
299 F. App’x 488 (6th Cir. 2008); see Nadler v. Harvey, 2007 U.S. App. LEXIS 20272 (11th Cir. Aug.
24, 2007) (unpublished) (Court found the plaintiff’s was not substantially limited in sleeping because he
was getting between four and seven-and-a-half hours of sleep a night, with an average of five-and-a-half to
six-and-a-half hours per night.)
142
Verhoff, 299 F. App’x at 492.
143
527 U.S. 471, 482 (1999).
138
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31
144
Phillips Chemical Co. In that case, the court believed that a reasonable jury could find that the
employee’s sleep impairment substantially limited her in the major life activity of sleeping
because, during the relevant time period, she got no more than one or two hours of sleep per night
for six or seven days in a row, and then three or four hours of sleep per night on the remaining
days, often waking up every hour. Once per month, the employee would sleep for up to 17 hours
at a time; during the day she was often so tired that she fell asleep while driving, she needed to
rest during lunch, and experienced fatigue and brain fog.
Under the ADAAA, however, a court may not take into account the effects of ameliorative
medications and devices, and thus it is likely that the court would have found that plaintiff’s
impairment substantially limited his ability to sleep.
§ 5.2.4(c) Caring for Oneself
145
146
Caring for oneself is a major life activity. In Verhoff v. Time Warner Cable, Inc., the
plaintiff argued that his eczema substantially limited his ability to care for himself because he
could not take routine showers or clean around the house due to his skin’s extreme sensitivity to
soap, and claimed that he could not wear clothes or shoes normally because of the constant
contact with his skin. The Sixth Circuit Court of Appeals held he needed to meet a “high
147
148
standard” and was not persuaded because his disease was not “life threatening.”
149
The Fifth Circuit Court of Appeals in Chevron Phillips Chemical Co. also addressed the issue
of caring for oneself and found that that the employee had raised an issue of fact concerning her
ability to care for herself because “she often did not shower for several days because contact with
the water was painful and because her arms hurt too much to raise them to wash herself or dry her
hair. When she did shower, she needed to rest afterwards. She was [also] unable to cook, shop for
food, zip up her own clothes, or even use the bathroom without her sister’s assistance.”
§ 5.2.4(d) Thinking, Concentrating, & Interacting with Others
150
In Traxler v. Multnomah County, plaintiff argued that her depression affected her ability to
concentrate, remember things, and focus. She also claimed that her concentration problems
sometimes happened every day at work and that she experienced headaches three or four times a
week. However, the district court held that plaintiff had not raised a factual issue because she
never received any negative feedback at work, and mitigated her thinking problems by keeping
extensive notes.
144
570 F.3d 606 (5th Cir. 2009).
29 C.F.R. § 1630.2(i); Pub. L. No. 110-325, § 3, 122 Stat. 3553 (2008).
146
299 F. App’x at 492; see also 570 F.3d. 606, 616 (5th Cir. 2009) (same).
147
Under the ADAAA, facts similar to this case may be decided differently. See ADAAA, 42 U.S.C.
§12102(4)(A); Pub. L. No. 110-325, § 4(4)(A) (Congress has instructed courts that the “definition of
disability in [the ADA] shall be construed in favor of broad coverage of individuals under this Act.”).
148
Verhoff, 299 F. App’x at 493.
149
570 F. 3d at 606.
150
2008 U.S. Dist. LEXIS 7456, at **27–28 (D. Or. Jan. 29, 2008), rev’d in part on other grounds, 2008
U.S. Dist. LEXIS 50953 (D. Or. July 1, 2008), rev’d in part on other grounds, 596 F. 3d 1007 (9th Cir.
2010).
145
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151
In EEOC v. Chevron Phillips Chemical Co., however, the Fifth Circuit Court of Appeals found
that the employee had raised a jury question with respect to her ability to think because she often
forgot her own son’s name and forgot how to perform routine tasks.
The EEOC’s final rule implementing the ADAAA, included “interacting with others” as a major
152
life activity. Courts have also found that it is a major life activity. The plaintiff in Traxler
claimed that she felt disinclined to participate in social interactions and office recreations such as
potluck; felt anxiety, depression, and fear; wanted to hold back, and was a little shy. The plaintiff
did, however, join others for lunch a couple of times a week. Because there was “no evidence that
153
[plaintiff] hid in her home or avoided phone calls at all,” the court held she was not
substantially limited in this major life activity.
154
In Linder v. Potter, a former U.S. Postal Service (USPS) employee claimed that he suffered
from post-traumatic stress disorder, depression, and anxiety disorder, which substantially limited
his ability to think, concentrate, and interact with others. He filed suit alleging that the USPS
failed to accommodate his disability, constructively discharged him on the basis of his disability,
and subjected him to a disability-based hostile work environment. In analyzing the plaintiff’s
claims, the court stated that the Ninth Circuit Court of Appeals has recognized thinking and
interaction with others as major life activities, but the issue of whether concentration was a major
life activity in and of itself remained unsettled. The appellate court then recognized that a split
existed amongst various circuits as to whether concentrating should be considered a major life
activity in and of itself, or if it should be thought of as a component of other major life activities
such as learning and working. Without deciding whether concentration is a major life activity, the
court granted summary judgment to USPS because the plaintiff failed to carry his burden that his
impairment substantially limited his ability to think, concentrate, or interact with others. Now,
under the ADAAA, “concentration” is a major life activity.
The district court also noted in Linder that because the plaintiff successfully worked for USPS as
a supervisor for 14 years, his past performance contradicted his claims of impairment. The court
then found that, while the plaintiff did offer conclusory expert opinion stating that he was,
“severely restricted as compared to the average person,” these statements were not supported by
facts and no evidence was offered concerning the extent, duration, or manner in which the
plaintiff’s mental health limited his ability to think or concentrate. The plaintiff also failed to
explain how he had difficulty interacting with others or provide examples in this regard. The
appeals court ended its analysis by stating, “mere trouble getting along with coworkers is not
sufficient to show a substantial limitation.”
§ 5.2.4(e) Reproduction & Sexual Functioning
155
Reproduction is a major life activity. In Bragdon v. Abbott, the Supreme Court ruled that an
asymptomatic individual with HIV infection was disabled because she suffered an impairment
that interfered with the major life activity of reproduction. The Court rejected the argument that
151
570 F. 3d at 617–18.
Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1060 (9th Cir. 2005).
153
Traxler, 2008 U.S. Dist. LEXIS 7456, at *30.
154
2007 U.S. Dist. LEXIS 12734 (E.D. Wash. Feb. 23, 2007), rev’d by Linder v. Potter, 304 F. App’x 570
(9th Cir. 2008).
155
524 U.S. 624 (1998).
152
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coverage of the ADA was not intended to apply to activities that have no public or economic
aspect.
As expected, Bragdon has been followed in several ADA cases brought by employees claiming to
be substantially impaired in a private activity in no way related to work. The federal courts have
split on the question of whether sexual intercourse is a major life activity. In Qualls v. Lack’s
156
Stores, Inc., a furniture salesman was fired after repeated insubordination. He sued, claiming
that his termination was a violation of the ADA because it was the result of discrimination against
him because he suffered from Hepatitis C and had to refrain from unprotected sexual intercourse.
The court dismissed his claims, holding that sexual intercourse is not a major life activity. The
Ninth Circuit Court of Appeals has reached a contrary conclusion. In McAlindin v. County of San
157
Diego, the court held that an employee suffering from anxiety, panic, and somatoform
disorders was disabled because the impairments substantially limited the major life activities of
sexual intercourse, sleeping, and interacting with others.
The Fifth Circuit ruled that an HIV positive man was not disabled. He claimed he was disabled
because his HIV status substantially limited him in the major life activity of reproduction. The
appeals court was not persuaded, citing to evidence that showed that the plaintiff did not want to
158
159
have children. HIV is now defined as a disability under the ADAAA.
§ 5.2.4(f) Eating
Before the ADAAA, it was unclear whether eating was a major life activity. However, Congress
160
specifically identified “major life activities” in the ADAAA to include eating.
Even prior to the ADAAA’s enactment, a federal district court had concluded that eating “is
unquestionably a major life activity because of its necessity in daily life and the ease with which
161
most people can consume food and drink.” Because the plaintiff no longer had an esophagus
and presented evidence that her stomach was small, which often lead to excessive diarrhea,
nausea, and vomiting, the court found that her ability to eat was permanently and substantially
162
limited.
§ 5.2.4(g) Speaking as a Major Life Activity
In Stalter v. Board of Cooperative Educational Services (BOCES),
163
the plaintiff, a custodian for
156
1999 U.S. Dist. LEXIS 5731 (N.D. Tex. Mar. 31, 1999) (unpublished), aff’d, 210 F.3d 369 (5th Cir.
2000).
157
192 F.3d 1226 (9th Cir. 1999), reh’g en banc denied, 201 F.3d 1211 (9th Cir. 1999), cert. denied, 530
U.S. 1243 (2000).
158
Blanks v. Southwestern Bell Commc’ns, Inc., 310 F.3d 398 (5th Cir. 2002).
159
29 C.F.R. §1630.2(j)(3)(iii)
160
42 U.S.C. § 12102(2)(A).
161
Fink v. Richmond, 2009 U.S. Dist. LEXIS 89853, at **16–17 (D. Md. Sept. 29, 2009).
162
Notably, the district court was not persuaded by defendant’s argument that the “addition of digestive
impairments to the definition of major bodily functions in the ADA Amendments Act of 2008”
demonstrated that the plaintiff’s digestive system impairments were not covered under the pre-amendment
ADA. 2009 U.S. Dist. LEXIS 89853, at *17. The court noted that defendant’s argument overlooked that
eating was a major life activity under the ADA. 2009 U.S. Dist. LEXIS 89853, at *17.
163
235 F. Supp. 2d 323 (S.D.N.Y. 2002).
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
BOCES, alleged that BOCES discriminated against him because of his cerebral palsy, which
limited his ability to speak coherently. The plaintiff communicated through audible sounds,
written signs, hand spelling and directional movements. He alleged that BOCES discriminated
against him by restricting him to working at an undesirable location, giving him less overtime
than other custodians, and denying a shift change even though a less senior, not disabled
custodian was assigned to a more desirable shift. The district court held that the plaintiff was
substantially limited in the major life activity of speaking even though he was able to
communicate using gestures, sounds and a special device. The court rejected BOCES’s argument
that the remedial device and techniques used by the plaintiff to communicate removed him from
the ADA’s coverage, holding that he was still unable to speak and that evidence existed that he
was regarded as disabled by the employer.
§ 5.2.4(h) Ability to Eliminate Bodily Waste
The Fourth Circuit Court of Appeals in Heiko v. Colombo Savings Bank held that the elimination
164
of bodily waste was a major life activity within the meaning of the ADA. In Heiko, the
plaintiff worked for the bank in various positions. Shortly following a promotion, the plaintiff’s
polycystic kidney disease condition deteriorated, and he was diagnosed with end stage renal
disease. As a result, he was required to leave work and undergo dialysis three afternoons a week
for four hours per session. He was later placed on a kidney transplant list and his employer was
fearful that he would require a substantial amount of leave time following the transplant. In his
lawsuit, the plaintiff alleged that the bank discriminated against him on the basis of his kidney
failure by not promoting him and reducing his responsibilities with the bank. The parties did not
dispute that end-stage renal disease constituted a physical impairment; rather, the dispute centered
on whether the plaintiff’s kidney failure and his body’s inability to properly eliminate toxins
165
constituted a major life activity within the meaning of the ADA.
In granting the bank’s motion for summary judgment, the district court concluded that waste
166
elimination was not a major life activity; it was merely a characteristic of the kidney failure.
The Fourth Circuit Court of Appeals disagreed, reasoning that the “impairment” is “[the
plaintiff’s] kidney failure” while the “[t]he effect of this impairment is an inability to eliminate
167
waste naturally.” The Fourth Circuit further reasoned that following the district court’s
rational, “the ADA would not cover major life activities that are closely linked with a serious
168
disability.”
Two federal district courts have also found that Crohn’s disease, which affects an individual’s
ability to control bowel movement, could substantially limit a major life activity. In Duncan v.
169
Quality Steel Products, Inc., the plaintiff claimed that her employer had failed to make
reasonable accommodations for her disability by not allowing her leave and frequent bathroom
164
434 F.3d 249 (4th Cir. 2006) (the plaintiff filed suit alleging disability discrimination under the
Montgomery County Code but the parties stipulated the code was to be interpreted consistent with the
ADA.).
165
434 F.3d at 254.
166
434 F.3d at 255.
167
434 F.3d at 255.
168
434 F.3d at 255–56.
169
2007 U.S. Dist. LEXIS 53626 (E.D. Mich. July 25, 2007).
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170
breaks. In Moore v. Epperson Underwriting Co., the plaintiff claimed that he was terminated
because of his Crohn’s disease and related ailments. In both cases, the employers argued that the
employees’ Crohn’s disease did not limit any major life activity. Both federal district courts
denied the employers’ motions for summary judgment, finding that a factual issue existed as to
whether the conditions substantially limited the employees’ major life activities of eliminating
waste.
Since Congress has now expanded the definition of major life activity to include the operation of
major bodily functions, such as bowel and bladder functions, the issue will now be, for example,
whether a plaintiff that has Crohn’s disease can demonstrate that his specific symptoms
substantially limit this major life activity.
§ 5.2.4(i) Reading as a Major Life Activity
171
In Head v. Glacier, the plaintiff worked as a barge offloader for Glacier when he was
diagnosed as depressed or bipolar. The plaintiff told the company about his illness and of his
doctor’s restrictions on the hours he could work. The company reduced his workload, but later
fired him for allegedly violating its equipment abuse policy after a loader the plaintiff was
operating became stuck in the mud. The plaintiff sued, claiming retaliation for requesting an
accommodation. The district court dismissed the plaintiff’s claims, citing a lack of proof that his
illness substantially impaired him in any major life activities.
However, the appellate court reached a different conclusion, holding that the plaintiff had
proffered sufficient evidence that his condition resulted in a substantial impairment of the well
established major life activities of sleeping, interacting with others and thinking. Perhaps most
notably, the court held that reading meets the U.S. Supreme Court’s test for determining what
qualifies as a major life activity. While reading is not “essential to survival,” it is “of central
importance to most people’s daily lives.” Reading is often necessary to perform other major life
activities, such as learning and working, and thus is crucial in the functioning of the majority of
people. The plaintiff’s allegations that he was unable to read for more than three to five minutes
at any one time before becoming confused were sufficient to demonstrate that his ability to read
was substantially impaired. The appellate court remanded the issue to the trial court to determine
the merits of the plaintiff’s other claims in light of its findings.
§ 5.2.4(j) Attending Religious Services Is Not a Major Life Activity
172
In an unpublished decision, Bear v. Exxon Mobil Corp., the plaintiff claimed that injuries
preventing him from attending church rendered him substantially limited in his ability to
undertake a major life activity. The plaintiff was a machinist for Exxon who suffered a neck
injury in an on-the-job accident, which worsened when he incurred another injury two years later.
After he was rendered unable to work, he claimed that Exxon violated the ADA by failing to
reasonably accommodate his disability. The plaintiff claimed he was “disabled” under the ADA
because his impairments severely restricted his performance of a number of activities, including
173
attending church. Specifically, the plaintiff alleged that his injury allowed him to go to church
170
2007 U.S. Dist. LEXIS 59796 (D. Minn. Aug. 15, 2007).
413 F.3d 1053 (9th Cir. 2005).
172
2004 U.S. Dist. LEXIS 23278 (E.D. La. Nov. 12, 2004) (unpublished).
173
Other activities plaintiff claimed to be substantially limited in due to his injuries included: engaging in
recreational sports, washing his car or bathtub, doing yard work, maintaining his house, and going grocery
171
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only once or twice per month, as opposed to the three times per week he had gone before his
injury. The court rejected the plaintiff’s assertion. It noted that “attending religious services
certainly is important to many people.” However, the court found it did not have “the same legal
significance to daily life” as the other activities identified by the regulations, such as “breathing,
174
seeing, walking, bathing, brushing one’s teeth and working.”
§ 5.2.4(k) Driving Is Not a Major Life Activity
Notably, Congress, via the ADAAA, has chosen not to define “driving” as a major life activity. In
175
agreement, many circuits have held that driving is not a major life activity.
In 2008, the Tenth Circuit Court of Appeals noted that while driving is an extremely important
daily activity, the activities enumerated by the EEOC, i.e., caring for oneself, performing manual
176
tasks, walking, etc., “are all profoundly more important in and of themselves than is driving.”
Moreover, the court found that, “the importance of the enumerated activities is not dependent on
where one lives; they are valued as much by the resident of a major metropolitan area as by an
177
isolated rural resident.
However, an impairment that substantially limits a major life activity may manifest itself
primarily as a limitation on an employee’s ability to drive. For example, in Livingston v. Fred
178
Meyer Stores, Inc., the employee suffered from a vision impairment that prevented her from
safely driving after dark. The Ninth Circuit Court of Appeals held that the employee’s vision
impairment could substantially limit the major life activity of seeing given its effect on her ability
179
to drive.
§ 5.2.5 E. EMPLOYMENT PRACTICES REGULATED BY THE ADA
E. EMPLOYMENT PRACTICES REGULATED BY THE ADA
§ 5.2.5(a) The Hiring & Interview Process
While an applicant’s race, sex, or age is usually apparent, this is not true of many disabilities.
Before the enactment of the ADA, job seekers were often asked about their medical conditions
when they applied for work, and were often required to submit to medical examinations to verify
fitness and health before an offer of employment was extended. Medical information revealing
the existence of a hidden disability might then result in a decision not to extend an offer of
employment to an otherwise qualified applicant. The ADA prohibits an employer from making
shopping. 2004 U.S. Dist. LEXIS 23278.
174
2004 U.S. Dist. LEXIS 23278, at **18–19.
175
See, e.g., Yindee v. Commerce Clearing House, 2005 U.S. Dist. LEXIS 12769 (N.D. Ill. June 16, 2005),
aff’d by Yindee v. Commerce Clearing House, Inc., 458 F.3d 599 (7th Cir. 2006); Capobianco v. City of
New York, 422 F.3d 47 (2d Cir. 2005); Chenoweth v. Hillsborough County, 250 F.3d 1328 (11th Cir. 2001),
cert. denied, 534 U.S. 1131 (2002); Acevedo-Lopez v. Police Dep’t of P.R., 81 F. Supp. 2d 293, 296–97
(D.P.R. 1999), aff’d on other grounds, 247 F.3d 26 (1st Cir. 2001).
176
Kellogg v. Energy Safety Servs., Inc., 544 F.3d 1121, 1125 (10th Cir. 2008).
177
544 F.3d at 1125.
178
2010 U.S. App. LEXIS 15044 (9th Cir. July 21, 2010).
179
2010 U.S. App. LEXIS 15044, at **3–4; see also Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir.
2010) (holding that a reasonable jury could find that plaintiff with monocular blindness was substantially
limited in her ability to see because she could not drive at night).
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37
certain inquiries and conducting medical examinations before making an offer of employment,
reflecting Congress’s concern about employer efforts to uncover hidden disabilities. However, a
job offer may be conditioned upon successful completion of a medical examination.
An individual may be able to maintain an ADA claim based upon an unlawful prehire medical
inquiry regardless of whether the individual is disabled within the meaning of the law. The
measure of damages to remedy an alleged improper prehire medical inquiry, however, is unclear,
and may depend largely on whether the employer withdrew a conditional job offer in conjunction
with the alleged improper inquiry. The Tenth Circuit Court of Appeals has affirmed that the
employer’s “technical violation” of the preemployment inquiry regulations could not support an
180
award of compensatory or punitive damages as a matter of law. The plaintiff in Griffin v.
Steeltek, Inc. claimed, among other things, that the employer violated the ADA by asking two
medical questions in its employment application: (1) “Have you received Worker’s
Compensation or Disability Income payments? If yes, describe”; and (2) “Have you physical
defects which preclude you from performing certain jobs? If yes, describe.” In affirming
judgment for the employer, the court emphasized the jury’s factual finding that the plaintiff did
not suffer any injury from being asked the prohibited questions. Likewise, in O’Neal v. City of
New Albany, the plaintiff claimed he was subjected to an unlawful preemployment medical
examination. He alleged the examination was designed to uncover information about
181
disabilities. The court rejected his claims, noting that, while he failed the exam, he could not
show the City had used the results improperly or that he had suffered tangible injury.
In Ward v. Merck & Co., the plaintiff, a former employee, was terminated for refusing to submit
182
to a medical evaluation. The plaintiff began to engage in strange behavior starting with an
episode in the company cafeteria, which led to the plaintiff being taken to a hospital where he was
diagnosed with schizophrenia. Based upon employee observations and a review of his conduct by
a doctor with Merck’s Health Services, Merck requested that the plaintiff make an appointment
for an evaluation. After the plaintiff ignored several verbal and written requests to make an
appointment for a medical evaluation, he was suspended and then terminated. The plaintiff then
filed a lawsuit claiming he was terminated as a result of his disability without any effort at
accommodation. The Third Circuit Court of Appeals upheld the district court’s judgment for
Merck, finding that the plaintiff’s behavior and performance supported Merck’s decision to
require him to submit to a fitness-for-duty examination.
In Tomao v. Abbott Laboratories, Inc., the plaintiff prevailed on her claims that her former
183
employer discriminated against her on the basis of her medical condition. While working as a
184
contract asset technician, the plaintiff was diagnosed with several medical conditions. After a
permanent asset technician position became available, the plaintiff was passed over for the
position. The interviewer failed to ask a single question during the interview about her
experience, knowledge, or qualifications for the position because the interviewer claimed to
already know the plaintiff’s qualifications based upon his previous supervision of her. During the
180
Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. 2001).
293 F.3d 998 (7th Cir. 2002).
182
226 F. App’x 131 (3d Cir. 2007).
183
2007 U.S. Dist. LEXIS 55820 (N.D. Ill. July 31, 2007).
184
Plaintiff was diagnosed with Lupus (a disease that causes the immune system to start attacking the
body’s healthy tissue); Sjogren’s syndrome (a condition that causes dry eyes and dry mouth); and
fibromyalgia (a chronic musculoskeletal pain condition). Tomao, 2007 U.S. Dist. LEXIS 55820
181
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interview, the interviewer did ask the plaintiff if she thought she could “go out there and climb
around anymore” and also made the comment that, “we all like to feel as if we can do the things
that were able to do when we were younger.” The company ultimately claimed that it had hired a
more qualified candidate. Nevertheless, the court denied the company’s motion for summary
judgment on the plaintiff’s discriminatory failure to hire claim, and the jury subsequently
awarded the plaintiff $6 million in compensatory and punitive damages. The court later reduced
the total award to $797,984.
§ 5.2.5(a)(i) EEOC Guidance on Preemployment Inquiries Under the
ADA
185
In 1995, the EEOC issued guidelines for preemployment inquiries under the ADA. According
to the EEOC’s Guidance, for example, an employer may ask an applicant, “How many days were
you absent from work last year?” but may not follow up this inquiry by asking, “How many of
those days were you sick?” Nor may an employer ask an applicant how much time off the
applicant needs on account of a disability or medical treatment for a disability. An employer may
ask, “How well can you handle stress?” However, the employer cannot follow up that inquiry by
asking, “Have you sought treatment for your inability to handle stress?” The prohibited follow up
questions may elicit information about disabilities.
At the initial interview stage employers may ask limited questions concerning reasonable
accommodation if:
• the employer reasonably believes the applicant will need a reasonable accommodation
because of an obvious disability;
• the employer reasonably believes the applicant will need reasonable accommodation
because of a hidden disability that the applicant has voluntarily disclosed to the
employer; or
• the applicant has voluntarily disclosed to the employer that he or she needs reasonable
accommodation to perform the job.
Employers must still be very careful when asking questions concerning disability on employment
applications. In general, the application form may not ask whether an employee will require
reasonable accommodation to perform a job. Because questions on employment applications
usually apply to all applicants, the inquiry would not fall within the three exceptions delineated
by the EEOC’s Guidance.
§ 5.2.5(a)(ii) Reemployment of Former Disabled Employee
When a disabled individual applies for reemployment, an employer is not required to ignore
information already known about the applicant’s disability. In Grenier v. Cyanamid Plastics, Inc.,
185
Enforcement Guidance On Preemployment Inquiries Under the Americans with Disabilities Act, EEOC
Compliance Manual N:2319 (Oct. 10, 1995); see also EEOC, Enforcement Guidance on Disability-Related
Inquiries & Medical Examinations of Employees Under the ADA (July 2000), available at
http://www.eeoc.gov/policy/docs/guidance-inquiries.html.
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
39
the court found that a situation in which a former employee left his job due to his disability and
186
later sought reemployment is similar to that of an employee returning from a disability leave.
The employer, therefore, has the right to inquire about the employee’s ability to perform the job
and to require a medical certification either that he could perform the functions of the job without
restrictions or that he would require reasonable accommodation. An employer is not required to
feign “amnesia” about a former employee’s disabilities, but may undertake the “logical and legal”
inquiry to determine what accommodation, if any, the applicant may require, and to request a
187
medical release from the applicant’s treating physician.
188
Likewise, in Raytheon Co. v. Hernandez, an employee brought suit alleging that Raytheon
violated the ADA by refusing to rehire him after he successfully rehabilitated himself from drug
use. Raytheon said its decision was based on an unwritten company policy against rehiring
employees who were fired for misconduct. The Supreme Court held that a neutral no rehire policy
could be a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of
discrimination. The Court remanded the case to the Ninth Circuit for a determination of whether
the employee could present sufficient evidence to demonstrate that Raytheon’s stated reason for
rejecting him was pretext.
§ 5.2.5(a)(iii) Discretion Retained to Hire Applicant Without a
Disability
An employer may hire an applicant who does not have a disability over one with a disability if the
nondisabled individual is more qualified for the job in question, and if the determination of
superior qualifications was not based on criteria that discriminate on the basis of disability. For
example, if a job requires a minimum of three years of experience and the disabled applicant
meets this minimum requirement, but another applicant has more relevant experience, the
selection of the more experienced candidate would not be discriminatory. However, an employer
cannot reject an applicant who requires a reasonable accommodation in favor of one who does
not because of the first applicant’s need for the reasonable accommodation. For example, an
employer cannot refuse to hire a typist who requires a special chair in favor of an equally
qualified typist who does not require such an accommodation.
An employer may not have the same discretion when it comes to current employees if the
employer is making a job reassignment as part of an accommodation for a qualifying disability.
For further discussion see § 5.2.9(b)(i) below, “EEOC’s Guidance on Reasonable
Accommodation & Undue Hardship.”
§ 5.2.5(a)(iv) Pre-Offer Job Performance Testing
As part of the pre-offer hiring process, an employer may ask all applicants applying for a
particular job to demonstrate or describe how they would perform a job-related function. For
example, an employer may ask applicants to demonstrate their ability to lift 25 pound buckets of
paint, if such lifting is an actual job duty. If an applicant responds by saying that he or she needs a
reasonable accommodation to perform the function, the employer must provide such
accommodation for the testing process. Alternatively, the employer may allow the applicant to
simply describe how he or she would perform the job function.
186
70 F.3d 667 (1st Cir. 1995).
Harris v. Harris & Hart, Inc., 206 F.3d 838 (9th Cir. 2000).
188
540 U.S. 44 (2003).
187
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Employers that choose to make demonstration a part of the job interview process should adhere to
the following:
• the advertisement for the position and/or the application itself should advise applicants
that they will be required, as part of the interview, to perform the particular job function
as a test;
• the notice should ask applicants to alert the employer in advance of any accommodation
necessary to perform the job function or test;
• the demonstration test must be required of all applicants for the particular job, without
exception; and
• the demonstration should not be coupled with any medical examination.
In addition to demonstrations, employers may also require applicants to take physical fitness or
psychological tests designed to measure an individual’s capacity to perform a job successfully.
For example, a police department may require applicants to run through an obstacle course
designed to simulate a suspect chase in an urban setting. A messenger service may require an
applicant to ride a bicycle a certain distance in a certain length of time.
In each case, the employer must reasonably accommodate an applicant taking the test.
Similarly, psychological examinations designed to test IQ, aptitude, personality and/or honesty
are permissible under the ADA so long as the psychological examination is not likely to provide
evidence concerning an applicant’s mental disorder or impairment, as categorized in the
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders
(DSM). However, such tests may raise other issues, such as invasion of privacy or job-relatedness
189
under other discrimination laws.
Under the ADA, post-offer questions and/or medical examinations do not have to be related to the
specific job, but may cover prior work history as well. The EEOC’s Guidance also addresses
questions that employers may ask after a conditional job offer is made. According to the EEOC,
at the post-offer stage, an employer may ask about an individual’s workers’ compensation history,
prior sick leave usage, illnesses, diseases, impairments, and general physical and mental health.
However, many states also have disability discrimination statutes that limit such inquiries, and
employers should be extremely cautious in asking such questions.
During the course of a post-offer medical examination, a physician may make inquiries. But if the
medical examination discloses a disability and if the employer fails to hire the applicant because
of that disability, the employer must show that the disability cannot be reasonably
189
See Staples v. Rent-A-Center, Inc., 2000 U.S. Dist. LEXIS 11394 (N.D. Cal. July 7, 2000) (unpublished)
(approving settlement of a class action lawsuit where applicants and current employees were required to
pass a written psychological test which included invasive personal questions about the test-takers’ sexual
and religious beliefs).
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
41
accommodated.
In 2008, the U.S. District Court for the Southern District of Texas in EEOC v. Lyondell-Citgo
Refining, L.P. ruled that an oil refining firm that withdrew a job offer to an applicant who passed
190
a physical ability test did not violate the ADA. After the applicant was given a conditional
offer for passing the physical test, however, a contract physician for the company determined that
the applicant could not safely perform the operator’s position. The physician said the applicant
could not safely climb ladders because of his right-side weakness and therefore was not medically
qualified for the operator’s job. Although the court found that the applicant had a history of both
seizures and right-side weakness that potentially could seriously affect major life activities, the
EEOC (on behalf of the applicant) presented “no evidence that these impairments actually posed
substantial limitations to [the plaintiff’s] ability to walk, stand, balance, or, indeed, to engage in
any recognized major life activity.” The district court emphasized that climbing is not a major life
activity.
§ 5.2.5(a)(v) Staffing Agencies & Their Clients
Staffing firms and their employer clients must employ nondiscriminatory job standards, testing
and selection processes that are consistent with business necessity. To the extent that each
controls the hiring environment, they must make reasonable accommodations for disabled
applicants, unless doing so would create an undue hardship. For example, an agency might easily
provide a reader to assist a blind applicant in completing necessary employment application
forms. A client might reasonably accommodate a prospective worker by removing a nonessential
function from the job duties assigned to that position. Furthermore, a staffing agency may have a
duty as an individual’s employer to shield that individual from disability bias by its employer
191
clients.
Post-offer, the agency or the client may ask questions or require a medical examination as long as
it does so for all individuals in the same job category. Medical inquiries and physical
requirements must be job-related and consistent with business necessity. As with regular, full
time employment offers, the offer of a temporary work assignment may be conditioned on the
results of such inquiries or medical examination. An offer may also be withdrawn for safety
reasons, provided the employer can show that the individual poses a “direct threat” to the safety
of others.
The performance of job functions is implicitly included among the factors that demonstrate that
an employment relationship exists. Once the qualified applicant has received and accepted an
offer of work from the agency and is engaged at the client’s facility, a “joint” employer
relationship may exist. While the agency generally provides compensation and benefits to the
worker, the client controls the hours and methods of work. The agency and the client are
responsible for providing a reasonable accommodation to a worker who is otherwise qualified for
the position and both may be liable for violations of the ADA. If it is unclear which party is
190
2008 U.S. Dist. LEXIS 28981 (S.D. Tex. Apr. 9, 2008).
See EEOC v. Olsten Staffing Servs. Corp., 2009 U.S. Dist. LEXIS 88903 (W.D. Wis. Sept. 28, 2009)
(denying staffing agency’s motion for summary judgment where staffing agency told employer that
plaintiff’s deafness was an area of hesitation and concern and where employer then rejected plaintiff for a
job; reasonable jury could find that both the agency’s statements regarding plaintiff’s deafness and the
agency’s failure to take corrective action when employer failed to hire plaintiff without explanation
constituted discrimination pursuant to the ADA).
191
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
required to provide a necessary accommodation, the agency and the client may need to jointly
engage in the interactive process with the disabled worker in making that determination. They
may then have joint financial responsibility for providing the reasonable accommodation,
provided it does not impose an undue hardship. To avoid this, the parties may specify in their
contract which entity will be responsible for making necessary accommodations. This may help
to limit liability, but will not eliminate either party’s obligations under the ADA.
The nature of temporary assignments often requires the availability of a worker on very short
notice and for a limited time. A disabled worker may need an accommodation that requires time
to implement, or an adaptive device that is not readily obtainable in order to perform the essential
functions of the job. In this situation, joint employers may establish undue hardship by showing
that the work assignment had to be filled on short notice and that the accommodation could not be
provided quickly enough to enable the prospective worker to timely begin the assignment.
However, having a short period of time to provide the accommodation alone is not an undue
hardship. For instance, it is often possible to quickly provide sign language interpreters for those
people who are deaf. Staffing agencies and their clients should anticipate and plan for these types
of hiring situations and accommodation requests so that they can comply with their obligations
under the ADA in regard to contingent workers.
§ 5.2.5(b) Job Related Qualification Standards
The ADA permits an employer to establish job-related qualification standards, including
education, skills, work experience, and physical and mental standards necessary for job
performance, health, and safety. However, those standards must not screen out, or tend to screen
out, individuals on the basis of a disability unless they are job-related and consistent with
192
business necessity. For example, the Tenth Circuit Court of Appeals has held that an employer
may require that a truck driver employee meet the safety guidelines of the Department of
193
Transportation. At the same time, the ADA precludes an employer from having a rule that bans
all people with hearing impairments from the job of a bus driver. Such a rule would be invalid
under the ADA because it would be based solely on a disability and on the misconception that
hearing deficiencies cannot be sufficiently corrected by hearing aids to allow for safe driving.
Thus, even a qualification standard that is related to an essential job function may not be used to
exclude an individual with a disability if that individual could satisfy the qualification standard
with reasonable accommodation.
To be job-related, the qualification standard and selection criterion must be a legitimate measure
of qualification for the specific job. For example, the ability to take shorthand dictation would not
be a job-related qualification standard for a secretarial position if the person in the particular
secretarial job actually transcribes taped dictation. The ADA does not require that a qualification
standard or selection criterion apply only to the essential functions of a job. Employers may
evaluate and measure applicants on all functions of a job and may continue to select people who
can perform all of these functions.
However, when an individual’s disability prevents or impedes performance of marginal job
functions, the ADA requires an employer to evaluate the individual’s qualifications based solely
on his or her ability to perform the essential functions of the job, with or without an
accommodation. For example, the position of administrative assistant will typically include
192
193
29 C.F.R. § 1630.10.
Tate v. Farmland Indus., Inc., 268 F.3d 989 (10th Cir. 2001).
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
43
essential administrative and organizational functions. On occasion, typing has been part of the
job, but other clerks are available to perform this marginal job function. If one applicant has a
disability that makes typing difficult, but another has no disability, the employer may only refuse
to hire the first applicant based on a job decision on the relative ability of each applicant to
perform the essential administrative and organizational job functions, with or without
accommodation. The applicant’s relevant disability cannot be considered in the decision to hire.
§ 5.2.5(b)(i) Business Necessity Criteria
The term business necessity is interpreted under the ADA as it has been interpreted by courts
under the federal Rehabilitation Act. Tests and other selection criteria that exclude an individual
with a disability because of a disability, and do not relate to the essential functions of the job, are
inconsistent with business necessity. For example, an employer may require candidates for a
clerical job to possess a valid driver’s license because it would be desirable to have a person who
could occasionally run errands or take packages to the post office in an emergency. However,
because running errands is an incidental job function rather than an essential one, the employer
could not claim that possessing a driver’s license was a business necessity. Thus, the employer
could not refuse to hire an applicant simply because the applicant’s disability prevented him from
obtaining a valid driver’s license.
In addition to the job-relatedness and consistent with business necessity requirements, there is an
additional requirement specific to the ADA for the business necessity defense. To validly exclude
a disabled employee from a particular job, a qualification standard must be incapable of
modification through a reasonable accommodation that would permit a disabled employee to
meet the standard.
In Morton v. United Parcel Service, the plaintiff’s profound hearing impairment precluded her
194
from obtaining DOT certification. The plaintiff applied for, but was not promoted, to a
package car driver position. Her request to be hired for a position driving only non-DOT vehicles
was also denied. Some package car driver assignments involved the use of non-DOT vehicles.
However, UPS had a policy of filling driving positions with individuals who had DOT
certification. The district court dismissed the plaintiff’s ADA claims, but the Ninth Circuit
reversed, holding the evidence raised triable issues concerning whether UPS could: (1)
accommodate the plaintiff with a full-time position driving non-DOT vehicles; and (2) justify its
hiring policy under the business necessity defense. In regard to the latter, the court acknowledged
UPS’s “undeniable interest in hiring safe drivers,” but concluded there was insufficient evidence
that UPS’s across-the-board exclusion was necessary to alleviate an unacceptable risk.
Nonetheless, employers are not required to adopt reduced production standards to accommodate
disabled employees. In Milton v. Scrivner, Inc., disabled grocery store employees were
discharged when they were unable to meet their employer’s new production standards, which
195
required employees to move items more quickly. Although the new standards screened out
disabled employees, they were justified as “job-related and consistent with business necessity”
because they were implemented to improve employee efficiency and productivity, and the
employer’s competitiveness in the marketplace.
194
272 F.3d 1249 (9th Cir. 2001), cert. denied, 535 U.S. 1054 (2002), overruled in part on other grounds
by 511 F.3d 974 (9th Cir. 2007); see also Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001).
195
53 F.3d 1118 (10th Cir. 1995).
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
§ 5.2.6 F. DISABILITY INQUIRIES & MEDICAL EXAMINATIONS OF CURRENT
EMPLOYEES
F. DISABILITY INQUIRIES & MEDICAL EXAMINATIONS
Under the ADA, a medical examination procedure or test must be job-related and consistent with
business necessity. Medical tests or procedures are those that: measure physiological responses to
activity, such as blood pressure or heart rate; procedures that are invasive and/or require taking a
sample of bodily fluids or breath; and tests that are routinely performed by medical personnel or
196
in a medical setting. Generally, physical fitness tests alone, i.e., those that measure endurance
or agility, are not medical examinations. A disability-related inquiry is one that is likely to elicit
197
information about a disability. The EEOC guidelines indicate that questions likely to elicit
information regarding a disability are prohibited under the ADA, even if such questioning could
198
also elicit information regarding non-disability related issues.
§ 5.2.6(a) Inquiries Must Be Job-Related & Consistent with “Business
Necessity”
An employer’s disability-related inquiries of its employees must be job-related and consistent
with business necessity. An employer may ask questions and/or require a medical examination if
it has reason to question whether an employee’s ability to perform essential job functions will be
impaired by a medical condition, or whether the employee can perform the job without posing a
199
direct threat of harm.
The employer’s concerns must be reasonable and supported by objective evidence. The employer
may seek medical information to follow up on a request for accommodation when the disability
or need for accommodation is not known or obvious, or when an employee is returning to work
and the employer has a reasonable belief that the employee’s present ability to perform essential
job functions will be impaired by a medical condition. While the employer should ask the
employee to voluntarily supply such medical information, the employer can require an
examination at its own expense if the employee fails to do so or, having provided incomplete
information, fails to cure the deficiency.
§ 5.2.6(a)(i) Job Changes Within a Company
Employees who apply for new jobs under a competitive hiring process within the company must
be treated like regular job applicants. An employer may not ask any disability-related questions
and may not require a medical examination unless and until it makes a conditional job offer. This
rule does not apply to situations where an employee is automatically entitled to another position
196
See, e.g., Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009) (examination administered
by an occupational therapist that measured plaintiff’s heart rate, breathing, and aerobic fitness (which was
wholly unnecessary to determine if she was physically capable of performing the task at hand) was a
medical examination under the ADA).
197
Horgan v. Simmons, 2010 U.S. Dist. LEXIS 36915 (N.D. Ill. Apr. 12, 2010) (Plaintiff sufficiently pled a
claim for impermissible inquiry under the ADA where he alleged that his supervisor demanded to know
whether something medical was going on and continued to insist there was something physical or mental
affecting plaintiff, eventually compelling plaintiff to disclose that he was HIV positive.).
198
2010 U.S. Dist. LEXIS 36915, at *15.
199
EEOC, Enforcement Guidance on Disability-Related Inquiries & Medical Examinations Under the
ADA, Questions 11–12 (July 2000), available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
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because of seniority or satisfactory job performance.
§ 5.2.7 G. HEALTH & SAFETY STANDARDS
G. HEALTH & SAFETY STANDARDS
Some courts have held that a general safety requirement for a position is no different from other
job requirements (such as lifting, walking, etc.) that are defended under the ADA’s “business
necessity” defense. To evaluate whether a safety-based standard is justified as a “business
necessity,” the employer must consider the magnitude of possible harm as well as the probability
of its occurrence. An acceptable probability of an incident involving a small risk, e.g., breakdown
of an assembly line, will generally be higher than the acceptable probability of an incident that
would result in very serious harm, e.g., a nuclear power plant explosion.
The Fourth, Fifth and Eleventh Circuits have ruled that a neurosurgeon, surgical technician and
dental hygienist who were HIV positive were not otherwise qualified for their positions with or
without reasonable accommodations. The small risk of a catastrophic accident was sufficient to
make these medical personnel not otherwise qualified for their jobs, which required them to be in
close proximity to open wounds, to handle sharp instruments, and to place their hands in patients’
200
body cavities.
Courts have looked skeptically at blanket exclusions that bar employment to anyone having a
201
specific disability. For example, the Fifth Circuit Court of Appeals considered claims of an
insulin dependent diabetic police cadet applicant who was rejected for employment because of his
202
impairment. The court determined that advances in the treatment of the disease and changes in
regulations promulgated by the DOT required a reexamination of its own past rulings holding that
insulin-dependent diabetic drivers are not qualified individuals with a disability under the ADA
because of the safety risks posed by their condition. However, the Sixth Circuit permitted a
blanket exclusion of persons taking Dexedrine because any exclusion from work was based on a
203
medication, not on an applicant’s attention deficit disorder.
§ 5.2.7(a) Direct Threat Analysis
A direct threat is a situation presenting a significant risk of substantial harm to the health or
safety of the employee or others that cannot be eliminated or reduced by a reasonable
accommodation. An employer may require that an individual not pose a direct threat so long as
that qualification standard is applied to all applicants for a particular job. The assessment of
whether the individual poses a significant risk of substantial harm must be based on objective,
scientific evidence, not on subjective perceptions, irrational fears, or stereotypes. Relevant
evidence may include input from the employee and opinions of medical doctors, rehabilitation
counselors or physical therapists that have expertise in the disability or direct knowledge of the
individual with a disability. An employer must raise the direct threat affirmative defense early on
in litigation. If the employer fails to do so, the employer is precluded from later raising the
200
Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265–66 (4th Cir. 1995); Waddell v. Valley Forge
Dental Assocs., 276 F.3d 1275 (11th Cir. 2001), cert. denied, 535 U.S. 1096 (2002).
201
See Bombrys v. City of Toledo, 849 F. Supp. 1210, 1221 (N.D. Ohio 1993) (rejecting automatic
exclusion of insulin-dependent individuals from police positions).
202
Kapche v. City of San Antonio, 176 F.3d 840, 846–47 (5th Cir. 1999).
203
King v. Mrs. Grissom’s Salads, Inc., 1999 U.S. App. LEXIS 17944, at **8–9 (6th Cir. July 22, 1999).
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204
defense, and it will be considered waived.
The determination that a particular individual with a disability poses a direct threat to himself or
others must be made on a case-by-case basis. The employer must be prepared to show a high
probability of substantial harm if the person were employed in the position at issue. For example,
205
in Hutton v. Elf Atochem North America, Inc., the Ninth Circuit held that a diabetic employee
who suffered from periodic seizures posed a direct threat to coworkers given the “catastrophic”
nature of the risk of chlorine spillage. The employer must also show that it took into
consideration the duration of the risk, the nature and severity of the potential harm, the likelihood
that the potential harm would occur, and the imminence of potential harm. The risk must be
206
current, not speculative or remote.
Once the effects of a disability pose an actual threat to safety, the ADA does not require
employers to give disabled employees a second or third chance that would not be given to a
207
nondisabled employee. For example, in Siefken v. Village of Arlington Heights, an insulindependent police officer had a hypoglycemic reaction while driving his squad car; he began
driving at high rates of speed in an erratic manner, and had to be stopped by police officers from
neighboring towns. The court held that the employee’s inability to prevent the safety risk
demonstrated an actual threat to safety and justified the employer’s decision not to give him a
second chance to control his disability.
A federal court in Virginia considered the claim of a shoe store clerk with uncontrolled epileptic
208
seizures in EEOC v. Kinney Shoe Corp. The court rejected the employer’s argument that the
employee posed a direct threat of injury to himself or others; the store had placed stock on lower
shelves, thereby eliminating the risk that the salesman would fall from a ladder if stricken by a
seizure. Although the employee could hurt himself when falling to the floor during a seizure, the
court noted that he had not been injured in the past, the duration of the risk was “fleeting,” and
the “nature and severity of the potential harm” was not “overwhelming.” Nonetheless, in a
strange conclusion, the court dismissed the salesman’s case because his employer did not act with
204
See Andresen v. Fuddruckers, Inc., 2004 U.S. Dist. LEXIS 25373, at *25 (D. Minn. Dec. 14, 2004)
(holding that if an employer fails to raise the direct threat affirmative defense in its answer to an
employee’s ADA claim against it, Federal Rule of Civil Procedure 8(c) will operate to preclude the
employer from raising it later).
205
273 F.3d 884, 894–95 (9th Cir. 2001).
206
See Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. 2000), reh’g en banc denied, 2000
U.S. App. LEXIS 29061 (7th Cir. Nov. 14, 2000), cert. denied, 532 U.S. 972 (2001) (a doctor that smelled
of alcohol was not a qualified person with a disability under the ADA because she posed a direct threat to
the health and safety of her patients); Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1294–95 (10th
Cir. 2000) (a mentally impaired mine blaster who threatened suicide and displayed anxiety and depression
posed a direct threat to others in the workplace and could not bring a claim against his employer under the
ADA for firing him); Onken v. McNeilus Truck & Mfg., Inc., 639 F. Supp. 2d 966 (N.D. Iowa 2009)
(diabetic employee who was terminated after a low-blood sugar episode made him aggressive toward his
coworkers has no ADA claim because he posed a direct threat to the safety of others); but see Rizzo v.
Children’s World Learning Ctrs., Inc., 213 F.3d 209, 214 (5th Cir. 2000) (affirming $100,000 verdict for
hearing-impaired childcare worker relieved of job duty of transporting children to and from school after it
was found that hearing impairment did not pose a direct threat to children in the van).
207
65 F.3d 664, 666 (7th Cir. 1995).
208
917 F. Supp. 419, 422 (W.D. Va. 1996), aff’d sub nom., Martinson v. Kinney Shoe Corp., 104 F.3d 683
(4th Cir. 1997).
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47
discriminatory animus or on the basis of general stereotypes about people with epilepsy. Rather,
the employer based its decision to terminate the salesman on its belief that his seizures
undermined the proper functioning of the store, which dispelled any inference of discriminatory
motivation.
209
In EEOC v. Exxon Corp., the court rejected the EEOC’s position that safety-related work
standards must satisfy the “direct threat” test and be applied solely on an individual basis.
Partially in response to the Exxon Valdez oil spill, Exxon adopted a policy barring individuals
that had undergone treatment for substance abuse from employment in certain safety sensitive
positions where employees receive little supervision. The EEOC claimed that this policy, on its
face, violated the ADA and that it must be subjected to analysis under the “direct threat” test on
an individualized basis, rather than under the “business necessity” test for across-the-board job
requirements. The court disagreed. It determined that the business necessity defense could be
raised in connection with Exxon’s new policy, which was an “across-the-board” rule.
210
The U.S. Supreme Court held in Chevron U.S.A., Inc. v. Echazabal that employers may defend
against an ADA claim on the ground that the complaining employee would pose a direct threat to
himself, as opposed to his coworkers. In that case, Chevron denied a refinery position to
Echazabal after a medical examination revealed that he had liver damage from Hepatitis C. The
job he wanted would expose him to chemicals that would pose a direct threat to his health, given
his liver damage. Echazabal insisted he wanted the job anyway. The Ninth Circuit ruled in his
favor, finding that the ADA did not address the issue of a job posing a direct threat to the
employee himself. The Supreme Court disagreed, finding that the ADA allowed the employer to
use the “direct threat” defense where the employee himself is threatened.
§ 5.2.8 H. WHO IS A QUALIFIED INDIVIDUAL WITH A DISABILITY?
H. WHO IS A QUALIFIED INDIVIDUAL WITH A DISABILITY?
To be protected by the ADA, a person must not only have a disability, but also must be qualified
for the position in question. A qualified individual with a disability is a person who has the skill,
experience, education, and other job related requirements of the position and who, with or
without reasonable accommodation, can perform the essential functions of the position.
211
There are two basic steps in determining whether an individual is qualified under the ADA.
First, it must be determined that the individual meets the necessary prerequisites for the job, such
as education, work experience, training, skills, licenses, certificates, and other job related
212
requirements. In an example used by the EEOC, an applicant who has cerebral palsy may be
qualified for a certified public accountant position only if the person is a licensed certified public
accountant. If the person is not a licensed accountant, then he or she is not qualified for the
position.
Next, if the individual meets all of the job prerequisites except for those that he or she cannot
209
203 F.3d 871, 875 (5th Cir. 2000).
536 U.S. 73, 76 (2002).
211
29 C.F.R. § 1630.2(m).
212
See, e.g., Budde v. Kane County Forest Preserve, 597 F.3d 860, 862 (7th Cir. 2010) (plaintiff, a police
officer, was not a qualified individual under the ADA because, even assuming he was disabled, he violated
clearly established work rules when he drove drunk and caused a car accident resulting in injuries).
210
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meet because of a disability, an employer must determine whether a reasonable accommodation
would permit the individual to perform the essential functions of the job. For example, if the
applicant who has cerebral palsy is a licensed accountant but cannot type his own reports because
of his condition, the employer must consider whether the ability to type is an essential function of
the job and whether the applicant can perform that function with reasonable accommodation. If
the ability to type is not an essential function of the job, or if the applicant can perform that
function with reasonable accommodation, by dictating the reports for example, then the applicant
would be qualified for the position.
Federal appellate courts are currently split as to whether former employees can be considered
213
qualified individuals with a disability under the ADA. However, employers must notify job
applicants and current employees of their obligation to provide accommodation to qualified
individuals with disabilities and must post notices containing the ADA’s provisions. Information
about the reasonable accommodation obligation may also be included in application forms, job
vacancy notices, personnel manuals, or may be communicated orally.
§ 5.2.8(a) What Are the Essential Functions of a Job?
The essential functions of a job must be identified to determine whether a disabled individual is
qualified for the job. The essential functions of a job are defined as the fundamental job duties of
the employment position. A job function is essential if the job exists to perform that function. For
example, for a position as a proofreader, the ability to proofread documents accurately is an
essential function because that is the reason the position exists. Additionally, a job function may
be essential because of the limited number of employees available to perform the function, or
among whom the function can be distributed. Thus, it may be an essential function for a file clerk
to answer the telephone if there are only three employees in a busy office and each employee has
to perform many different tasks including answering the telephone.
214
In Moritz v. Frontier Airlines, Inc., a station agent with multiple sclerosis was held unqualified
for the job. She could not perform the essential functions required of her position, including
departure gate duties such as passenger assistance. Because Frontier Airlines had just started its
operations at the facility where the agent was employed, and because there were so few
employees at the facility, the court determined that the ability to assist passengers in deplaning
was an essential job function under the circumstances.
The ADA does not limit an employer’s right to define the job and those functions that are
required to perform it. The ADA simply requires that a disabled person’s qualifications be
evaluated in relation to the job’s essential functions. Moreover, when an employer has made
arrangements to accommodate an employee’s disability, a court must evaluate the essential
213
Compare Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir. 2000) (holding
that a former employee was not a qualified individual capable of suing under the ADA since she was no
longer an employee and was disabled from doing her job); Morgan v. Joint Admin. Bd., 268 F.3d 456, 457–
58 (7th Cir. 2001) (holding that retired employees are not protected by the ADA) with Ford v. ScheringPlough Corp., 145 F.3d 601, 607 (3d Cir. 1998) (former employees are included in the definition of the
term “employee” based on the ADA’s rationale of providing a clear and comprehensive national mandate
for the elimination of disability discrimination); Castellano v. City of New York, 142 F.3d 58, 69 (2d Cir.
1998) (same).
214
147 F.3d 784, 787–88 (8th Cir. 1998).
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215
functions of the job without considering the effect of the special arrangements.
The ADA does not require an employer to develop or maintain job descriptions. However, a
written job description, prepared before advertising the position or interviewing applicants for a
job, will be considered as evidence along with all other relevant factors in determining the
essential functions of the position. The EEOC states that a job description will be evidence that a
function is essential, but, if individuals currently performing the job do not in fact perform this
function, or perform it infrequently, a review of the actual work performed by those filling the
position will have greater weight than the job description. Therefore, it is extremely important
that the written job description accurately reflects the actual functions of the job. Assuming that
they are, in fact, essential to the job in question, employers should not forget to include such
things as predictable and regular attendance, the ability to work cooperatively with others, to deal
politely with members of the public, to juggle several tasks at once, to arrive at work on time, to
work onsite, or to work in a stressful atmosphere.
The work experience of employees that have performed the job in the past, and the work
experience of those currently performing similar jobs, can be evidence of the essential duties of a
position. Other relevant factors include the nature of the work operation and the employer’s
216
organizational structure. In Smith v. Burlington County, the court held that overtime was an
essential function of a job as a Burlington County corrections officer. The court relied on
testimony of supervisors and noted that the written Standard Operating Policies and collective
217
bargaining agreement provided that overtime was required for corrections officers.
The amount of time spent performing the function is also considered in determining whether a
function is essential. For example, if an employee spends most of the time operating a machine,
this would be evidence that operating the machine is an essential job function. However, even a
job duty that is performed infrequently may be essential if there are serious consequences if that
function is not performed. For example, a firefighter may only occasionally have to carry a
person from a burning building, but his inability to perform this task could have drastic, even
fatal, consequences.
The EEOC’s regulations make it clear that analysis of the essential functions of the job is not to
218
be used as a vehicle to second guess the employer or require a company to lower its standards.
219
In Mason v. Avaya Communications, Inc., the court dismissed Mason’s ADA claim because
Avaya presented sufficient evidence that: (1) it considered attendance at the administration
215
Mulloy v. Acushnet Co., 460 F.3d 141, 147–48 (1st Cir. 2006).
2004 U.S. Dist. LEXIS 18032 (D.N.J. July 27, 2004).
217
See also Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538, 544 (1st Cir. 1999) (recognizing overtime as an
essential function of the director of human resources position); Dropinski v. Douglas County, 2001 U.S.
Dist. LEXIS 20164, at *6 (D. Neb. Dec. 5, 2001), aff’d, 298 F.3d 704 (8th Cir. 2002) (holding that
overtime is an essential function of a snow plow operator’s job); Rios v. Indiana Bayer Corp., 965 F. Supp.
919, 923–24 (S.D. Tex. 1997) (finding overtime to be an essential function of a production technician’s
position).
218
29 C.F.R. § 1630, App. 1630.2(n); see also Jakubowski v. Christ Hosp., Inc., 2010 U.S. App. LEXIS
24997, at *15 (6th Cir. Dec. 8, 2010) (noting that the hospital identified “communicating with professional
colleagues and patients in ways that ensure patient safety” as an essential function of a resident’s job, and
that the hospital’s identification of this essential function must be given consideration).
219
357 F.3d 1114, 1120 (10th Cir. 2004).
216
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
center, supervision, and teamwork as essential functions of Mason’s position as a service
coordinator; (2) all of its service coordinators work their entire shift at the administration centers;
(3) it had never permitted a service coordinator to work anywhere other than an administration
center; and (4) service coordinators could not be adequately trained or supervised if they were not
at the administration center.
However, an employer’s judgment is not always dispositive. When an employee challenges an
assertion that a task is an “essential function” of the job, the employer bears the burden of
showing that the task is, in fact, essential. In the case of a manufacturing job where few
employees fully rotated tasks, the court held that job rotation was not an essential job function.
Furthermore, the employer might reasonably accommodate a disabled employee with a position
220
assignment that did not require full-job rotation.
In a case analyzing the employer’s burden to produce evidence of the essential functions of the
job, in 2007, the Ninth Circuit Court of Appeals vacated a lower court injunction against an
221
employer, holding that the trial court misapplied the ADA. In Bates v. United Parcel Service,
five deaf employees sued defendant-company claiming that it unfairly applied the Department of
Transportation (DOT) hearing standard for all driving jobs. The district court found that the
company violated the ADA and issued a permanent injunction ordering the company to perform
an individualized assessment of each hearing-impaired employee’s ability to drive a company
vehicle with or without accommodations. The company appealed to the Ninth Circuit, arguing
that the employees were not qualified individuals capable of performing the essential functions of
a driving position because they could not meet the company’s requirement that all drivers satisfy
the DOT hearing standard.
The Ninth Circuit determined that it is the employer’s burden of production to come forward with
222
evidence of the essential functions of the job at issue. Specifically, “the employer—not the
employee—bears the burden of showing that the higher qualification standard is job related and
consistent with business necessity, and that performance cannot be achieved through reasonable
accommodation.” The Ninth Circuit found that the DOT certification was not an essential
function and employees were merely required to establish that they met the essential function of
safe driving.
§ 5.2.8(a)(i) Cases Defining Essential Functions
A number of cases have considered whether uniform performance criteria and rules of expected
workplace behavior that all employees are expected to meet are essential functions or whether
these are areas in which employers must offer some flexibility to disabled employees. In general,
disabled employees may be held to the same performance criteria as other employees, provided
those criteria are job-related and consistent with business necessity, and the employee is afforded
223
the opportunity to meet the employer’s performance standards by reasonable accommodations.
For example, employees who pose a direct threat to their coworkers or engage in emotional or
220
Kiphart v. Saturn Corp., 251 F.3d 573, 585–86 (6th Cir. 2001).
Bates v. UPS, 511 F.3d 974 (9th Cir. 2007).
222
511 F.3d at 990–91.
223
See 42 U.S.C. § 12113(a); see also EEOC, The ADA: Applying Performance and Conduct Standards to
Employees with Disabilities, Sept. 2008, available at http://www.eeoc.gov/ facts/performanceconduct.html.
221
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224
violent outbursts may be disciplined in the same manner as other offenders.
Several federal courts have held an employee who cannot meet the attendance requirements of a
job cannot be considered a qualified individual protected by the ADA. For example, in EEOC v.
225
Yellow Freight System, an employee suffering from AIDS related cancer was not a qualified
individual under the ADA because he could not attend work on a regular basis. The employee’s
226
request for unlimited sick days was not reasonable.
In Valle-Arce v. Puerto Rico Ports Authority, the First Circuit Court of Appeals reaffirmed its
previous holding that while attendance is an essential function of any job, employers must
consider accommodations that would allow disabled employees to satisfy the attendance
227
requirements. The court ruled that a jury should determine whether the flexible work schedule
requested by a human resources employee was a reasonable accommodation that would have
allowed her to fulfill the attendance requirements of her job.
The Third Circuit Court of Appeals addressed this issue in Fogleman v. Greater Hazleton Health
228
Alliance. A pharmacy technician was terminated for excessive absences and a failure to contact
her employer. The court ruled that a leave of absence may be a reasonable accommodation, as
long as the absence is likely to lead to the employee’s ability to perform the essential functions of
his or her job in the near future.
However, in some jurisdictions, an employee’s erratic attendance may need to be accommodated
224
See, e.g., Carrozza v. Howard County, 847 F. Supp. 365, 367–68 (D. Md. 1994), aff’d, 45 F.3d 425 (4th
Cir. 1995) (discharge of bipolar employee was lawful because the ability of employees to cope with
inherent sources of stress was an essential function of the job); Gordon v. Runyon, 1994 U.S. Dist. LEXIS
4959, at *13 (E.D. Pa. Apr. 21, 1994) (unpublished), aff’d, 43 F.3d 1461 (3d Cir. 1994) (despite postal
employee’s mental disability, the employer was justified in terminating his employment because the need
to accept criticism and to deal with his coworkers in a civil manner was an essential function of the
employee’s job).
225
253 F.3d 943, 950–51 (7th Cir. 2001).
226
See also Mulloy v. Acushnet Co., 460 F.3d 141, 147–48 (1st Cir. 2006) (holding that it was essential for
engineers in the plaintiff’s position to be physically present to see the machines and interact with the
personnel at the plant, thus allowing the plaintiff to work via webcam was unreasonable because it would
eliminate essential functions of the position); Rogers v. International Marine Terminals, 87 F.3d 755, 759
(5th Cir. 1996) (mechanic was not a qualified individual with a disability due to his inability to work for
over one year because an essential element of any job is the ability to appear for work); Carr v. Reno, 23
F.3d 525, 530 (D.C. Cir. 1994) (employee’s ear condition that caused her to be absent from work for long
periods of time without warning meant that she was not a qualified individual with a disability because
reporting to work regularly is an essential function of any job); Pickens v. Soo Line R.R., 264 F.3d 773,
777–78 (8th Cir. 2001), cert. denied, 535 U.S. 1057 (2002) (accommodation of “working only when he felt
like it,” was unreasonable as a matter of law); Earl v. Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000)
(punctuality is an essential job function for an employee suffering from obsessive-compulsive disorder,
whose principal responsibilities include preparing for the retail store’s opening each morning); Tyndall v.
National Educ. Ctrs., 31 F.3d 209, 213–14 (4th Cir. 1994) (teacher’s attendance problems rendered her
unable to fulfill the essential functions of her job).
227
651 F.3d 190, 200 (1st Cir. 2011) (citing Rios-Jimenez v. Sec'y of Veterans Affairs, 520 F.3d 31 (1st Cir.
2008)).
228
122 F. App’x 581, 585–86 (3d Cir. 2004).
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
because the employee’s attendance is not always an essential function of the job. In Humphrey v.
229
Memorial Hospital Association, an employee’s obsessive compulsive disorder caused her to be
excessively tardy and absent. Her employer denied her request to work at home but provided her
with a flexible work schedule. The court held that the employee’s disciplinary record was not
appropriate evidence because the discipline was based on conduct caused by the disability.
Furthermore, the determination of whether regular and predictable attendance is an essential
230
function must be evaluated on a case by case basis.
The Sixth Circuit also declined to adopt a presumption that consistent attendance is an essential
job requirement and held that a medical leave of absence may constitute a reasonable
231
accommodation. In Cehrs v. Northeast Ohio Alzheimer’s Research Center, the court held that
such a presumption: (1) “eviscerates” the individualized attention required to determine if a
disability can be reasonably accommodated; (2) frees the employer from ever having to show that
such a leave would impose an undue hardship; and (3) leaves disabled employees in a worse state
232
than nondisabled employees who may benefit from the company’s leave policies.
An employer’s agreement not to count the employee’s absences (as violations of the company’s
attendance policy) may be an admission that these absences did not render the employee unfit for
233
his job. In Fritz, a designer of motor vehicle components experienced significant tardiness and
absenteeism due to diabetes. The company required the designer to bring doctors’ notes to verify
that his absences were diabetes-related and such absences were then excused from consideration
as violations of the company’s attendance policy. The court found that the employer’s
arrangements with the employee were a tacit admission that his absences did not render him unfit
234
for his job.
The ADA does not require an employer to make any modification, adjustment, or change in a job
if the employer can demonstrate that the change would fundamentally alter the essential functions
229
239 F.3d 1128, 1130 (9th Cir. 2001), cert. denied, 535 U.S. 1011 (2002).
See also Ward v. Massachusetts Health Research Inst., Inc., 209 F.3d 29, 35 (1st Cir. 2000) (holding
that punctuality was not an essential job function for an arthritic employee holding a data-entry position
despite the fact that the employer enforced the attendance policy on all its employees).
231
155 F.3d 775, 782–83 (6th Cir. 1998), reh’g en banc denied, 1998 U.S. App. LEXIS 29662 (6th Cir.
Oct. 16, 1998).
232
Cehrs, 155 F.3d at 782–83 see also Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 649–50
(1st Cir. 2000) (employer that failed to provide any evidence of undue hardship, violated the ADA in
refusing to provide an extended medical leave to an employee recovering from cancer as a form of
reasonable accommodation); Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998) (employer’s denial of
leave to disabled employee as reasonable accommodation was violation of the ADA); Alastra v. National
City Corp., 2010 U.S. Dist. LEXIS 121038, at *21 (E.D. Mich. Nov. 16, 2010) (the fact that managers had
discretion in dealing with absences, even when ten had been incurred, undermined defendant’s claim that
the ability not to incur ten absences in one year was an essential function of the job); Norris v. Allied-Sysco
Food Servs., Inc., 948 F. Supp. 1418, 1439 (N.D. Cal. 1996), aff’d on other grounds, 191 F.3d 1043 (9th
Cir. 1999) (“[i]t is possible that an unpaid leave of an indefinite or very long duration, even as long as one
year, could be a reasonable accommodation in some circumstances”).
233
Fritz v. Mascotech Auto. Sys. Group, 914 F. Supp. 1481, 1484–85 (E.D. Mich. 1996).
234
See also Skerski v. Time Warner Cable Co., 257 F.3d 273, 283 (3d Cir. 2001) (placing an installer
technician who suffered from a panic and anxiety disorder on nonclimbing duty for three years raised an
issue of whether climbing was an essential job function).
230
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235
of the job in question. For example, in Larkins v. CIBA Vision Corp., a customer service
representative, disabled after continual panic attacks, asserted that she could no longer handle
intense and frequent telephone calls. She claimed her employer had a duty to eliminate or reduce
the amount of time she had to spend handling customer telephone calls. The court rejected this
claim, holding that fielding telephone calls from customers was an essential function of the
employee’s job and that the employer had no legal obligation to eliminate that essential function.
§ 5.2.9 I. THE REASONABLE ACCOMMODATION OBLIGATION
I. THE REASONABLE ACCOMMODATION OBLIGATION
§ 5.2.9(a) Requests for Accommodation & the Interactive Process
At the core of the ADA is the employer’s obligation to provide reasonable accommodation to
qualified disabled individuals. Disabled individuals need not use any magic words to request an
accommodation and do not have to submit anything in writing. Other people may also seek an
accommodation for the disabled individual.
Employers should begin the “interactive process” of determining if an accommodation is needed
once employees provide sufficient information to let the employer know that they are having
difficulty performing their jobs because of a physical or mental impairment that may constitute a
disability under the ADA. An employee does not have to specifically request an effective
accommodation to invoke the employer’s obligation to accommodate. In EEOC v. Convergys
236
Customer Management Group, the Eighth Circuit Court of Appeals affirmed a jury verdict
against the employer because the company never developed a well-thought-out plan to address
the plaintiff’s needs despite its obvious awareness of the problems he encountered at work.
On the other hand, an employer is only obligated to make accommodations to known limitations
of an otherwise qualified individual with a disability. In the leading case of Hedberg v. Indiana
237
Bell Telephone Co., an employee was terminated because his employer believed him to be lazy
and to lack a work ethic. The employee sued under the ADA, alleging that those characteristics
were symptoms of primary amyloidosis, a frequently fatal disease. The employee claimed that his
employer was liable even though it was unaware of his impairment. The Seventh Circuit Court of
Appeals rejected his argument, explaining that the ADA does not require employers to be
“clairvoyant” or to retain unproductive employees because some of them may have a disability.
Similarly, an employer is under no obligation to investigate whether an employee’s condition has
235
858 F. Supp. 1572, 1581–83 (N.D. Ga. 1994); see also Johnston v. Morrison, Inc., 849 F. Supp. 777,
779–80 (N.D. Ala. 1994) (finding that where a food server suffering from panic disorder could not handle
busy evenings or daily menu changes, the court held that these abilities were essential job functions that
could not be reduced in any meaningful way). But see Sheehan v. Marr, 207 F.3d 35, 38, 41–42 (1st Cir.
2000) (police department, in subjecting a police officer with hypertension to involuntary retirement may
have failed to reasonably accommodate him by providing breaks or reassigning to a less stressful position).
236
491 F.3d 790 (8th Cir. 2007).
237
47 F.3d 928 (7th Cir. 1995); see also Larson v. Koch Ref Co., 920 F. Supp. 1000 (D. Minn. 1995)
(rejecting alcoholic employee’s argument that his employer had been put on notice concerning his
alcoholism because of his missed work around St. Patrick’s Day and one conversation with his supervisor
in which he stated that his wife would not reconcile with him unless he did something about his drinking
problem despite the fact that employee had previously denied having any problem).
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
238
improved. In Wurzbach v. City of Tacoma, an employee was given a different position as
accommodation for his disability and later sued under the Washington state disability law (which
is similar to the ADA). The employee alleged that his disease was in remission and the City of
Tacoma had to consider him for a position that his disability had previously precluded him from
holding. The employee, however, never informed his employer that his disease was in remission.
A Washington State appellate court held that the City was justified in relying on the employee’s
original diagnosis in failing to consider him for the new position.
Step by step guidance for conducting and documenting the interactive process is set forth in the
239
Practical Recommendations section of this Chapter. The process must be conducted on an
240
individualized basis. It involves:
• exchanging information with the disabled individual about his or her disability and
work restrictions;
• identifying the appropriate workplace accommodations; and
• reaching a mutually satisfactory decision about the reasonable accommodation to be
provided.
Employers should note that while they are expected to take the lead role in this process, disabled
individuals who request an accommodation are obligated to cooperate in the accommodation
process in a timely and responsible manner. In the seminal case of Beck v. University of
241
Wisconsin Board of Regents, the Seventh Circuit Court of Appeals explained that:
[C]ourts should look for signs of failure to participate in good
faith or failure by one of the parties to make reasonable efforts to
help the other party determine what specific accommodations are
necessary. A party that obstructs or delays the interactive process
is not acting in good faith. A party that fails to communicate, by
way of initiation or response, may also be acting in bad faith. In
essence, courts should attempt to isolate the cause of the
242
breakdown and then assign responsibility.
243
An employee’s failure to cooperate can have grave consequences. For example, in Haulbrook
244
v. Michelin North America, Inc., the plaintiff, a chemical engineer, suffered from respiratory
problems. He contacted his employer regarding his condition, but repeatedly refused to speak
with the appropriate individual and only provided requested information about his condition
238
17 P.3d 707 (Wash. Ct. App. 2001).
See § 5.3 below.
240
29 C.F.R. § 1630.
241
75 F.3d 1130 (7th Cir. 1996).
242
75 F.3d at 1135.
243
See Bellino v. Peters, 530 F.3d 543 (7th Cir. 2008) (finding employee with knee injury who declined a
transfer to a sit-down job could not bring claim under the Rehabilitation Act).
244
252 F.3d 696 (4th Cir. 2001).
239
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55
through a series of cryptic, late night faxes. After repeated refusals to provide information, the
plaintiff was eventually terminated. In affirming summary judgment for the employer, the court
held that an employee may not refuse reasonable requests for information from his or her
employer and then later claim that the employer’s lack of information was evidence of “regarded
as” discrimination.
The accommodation dialogue should be conducted promptly, although it does not have to take
priority over all other legitimate business considerations. In Selenke v. Medical Imaging of
245
Colorado, the Tenth Circuit Court of Appeals rejected the plaintiff’s argument that her
employer violated the ADA by delaying office modifications for her sinus problems because
there was no evidence that the delay was in bad faith. The employer had made several
246
accommodations for the plaintiff, but delayed further accommodations pending a move.
In contrast, the Seventh Circuit Court of Appeals reversed a decision granting summary judgment
247
to an employer in Johns v. Laidlaw Education Services. In Johns the plaintiff, a school bus
driver, sought medical treatment after she was injured on the job. She was eventually released by
her doctor to return to limited duty, but was prohibited from operating a commercial vehicle. Her
employer referred her for a second opinion, which concluded plaintiff could return to work
without restriction. Based on that release, the employer informed plaintiff she was no longer
eligible for light duty and required her to complete training for a commercial drivers’ license by a
specified date or face possible termination. The plaintiff did not complete the training because,
during the same month as the second opinion, the plaintiff’s physician performed an evaluation
concluding that plaintiff needed to remain on light duty, and stated his findings in a letter to the
employer. The employer claimed it never received the letter, so when the plaintiff did not comply
with its terms, she was terminated. The court determined that the plaintiff was not necessarily
responsible for the breakdown in the interactive process; rather, it was the employer’s
responsibility to request further information based on the differing medical opinions before
requiring the plaintiff to return to work.
The Ninth Circuit Court of Appeals has held that a nondisabled employee regarded as disabled
248
because of two misdiagnoses of his condition was not entitled to a reasonable accommodation.
To hold otherwise, the court said, would frustrate the ADA’s policies of dispelling stereotypes
regarding the individual abilities of the disabled and encouraging “regarded as” employees to
educate employers about their capabilities. Instead, such a holding would reward employees that
perpetuate their employer’s misperception of them as disabled, while wasting employer resources
on unneeded accommodations that could be better used assisting those who truly are disabled.
245
248 F.3d 1249 (10th Cir. 2001).
See also Whelan v. Teledyne Metalworking Prods., 226 F. App’x 141 (3d Cir. 2007) (finding that
employer lawfully terminated employee who discontinued the interactive process after the company
refused to accept the employee’s proposed accommodation); Loulseged v. Akzo Nobel, Inc., 178 F.3d 731
(5th Cir. 1999) (employer is usually free to move at whatever pace it chooses, unless the situation calls for
more immediate action, such as when disabled employee’s return to work is imminent); Rennie v. United
Parcel Serv., 139 F. Supp. 2d 159 (D. Mass. 2001); Krocka v. Riegler, 958 F. Supp. 1333 (N.D. Ill. 1997)
(delay can rise to the level of an ADA violation depending on length of the delay, the reasons for it,
whether alternate accommodations were offered in the interim, and whether there was bad faith on the
employer’s part).
247
199 F. App’x 568 (7th Cir. 2006).
248
Kaplan v. City of N. Las Vegas, 323 F.3d 1226 (9th Cir. 2003), cert. denied, 540 U.S. 1049 (2003).
246
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Employers should also note that under the Civil Rights Act of 1991, pursuing accommodation
negotiations earnestly and in good faith provides a defense against claims for compensatory and
punitive damages. Compensatory and punitive damages may not be awarded against an employer
successfully demonstrating “good faith efforts, in consultation with the person with the disability
who has informed the [employer] that accommodation is needed, to identify and make reasonable
249
accommodation.” Courts consider a variety of factors to determine whether an employer met
250
its burden of demonstrating good faith.
Finally, a 2008 case suggests that an employer’s initial failure to engage in the interactive process
can be overcome by the employer’s eventual accommodation. In Mobley v. Allstate Insurance
251
Co., the Seventh Circuit Court of Appeals denied the plaintiff’s failure to accommodate claim
because, although it was “an admittedly laborious process,” the employer ultimately provided her
with a reasonable accommodation. In that case, for about six months the plaintiff “wrangled with
her supervisors over workplace accommodations” for her sleep disorder. Eventually, the
employer allowed her to regularly perform her work in a private room rather than in her cubicle,
which helped her to concentrate. The plaintiff’s earlier, temporary assignment to the room had
improved her performance, but her permanent placement there never caused her to reach the
“meets” expectations level on her annual review. Because she failed to meet the employer’s
expectations, she was terminated as part of a reduction in force six months after the permanent
accommodation was made.
The Seventh Circuit held that the employer’s initial failure to engage in the interactive process
was by itself insufficient to establish a failure to accommodate claim when, in the end, a
252
reasonable accommodation was provided. The fact that the accommodation was less effective
than it had been previously did not subject the employer to liability where the plaintiff never
suggested that she required additional accommodations.
§ 5.2.9(b) Types of Accommodations
Under the ADA, an employer must reasonably accommodate an individual with a disability. The
duty to make reasonable accommodations applies to all aspects of employment.
A “reasonable accommodation,” according to the ADA, is any accommodation that the employer
253
can adopt without undue hardship that will enable the employee to perform the essential
functions of the job either presently or in the immediate future.
A reasonable accommodation may include any of the following:
249
42 U.S.C. § 1981a(a)(3).
EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103 (9th Cir. 2010) (finding that a trier of fact could
conclude that UPS failed to explore possible accommodations in good faith because, where an employee
requested a sign language interpreter to be present at meetings, UPS did not consider the nature of the
information being communicated in a particular meeting or the length of the meeting, but instead relied on
relatively arbitrary considerations).
251
531 F.3d 539 (7th Cir. 2008).
252
531 F.3d at 546.
253
29 C.F.R. § 1630.9(a).
250
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57
• making existing facilities used by employees readily accessible to and usable by
individuals with disabilities;
• job restructuring;
• part-time or modified work schedules;
• reassigning a disabled individual to a vacant position;
• acquiring or modifying equipment or devices;
• appropriately adjusting or modifying examinations, training materials, or policies;
• providing qualified readers or interpreters;
• hiring a job coach to help the employee in his or her job for a temporary period of time;
and
• other similar accommodations for individuals with disabilities.
The duty to make reasonable accommodations extends to: the application process; on the job
training, whether offered directly by the employer or through a vendor or consultant; the
employee’s ability to enjoy employer-sponsored social activities; and other conditions of
254
employment not strictly related to the ability to perform the job. For example, an employer that
offers an optional CPR training program to its employees must provide a sign language
255
interpreter should a deaf employee wish to take advantage of the training.
§ 5.2.9(b)(i) The EEOC’s Guidance on Reasonable Accommodation
& Undue Hardship
In 1999, the EEOC published its Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, which was later updated in 2002.
The Guidance provides examples that the EEOC believes illustrate the correct application of the
requirements of the ADA in a variety of situations.
The Guidance confirms several points that are the subject of frequent inquiry from employers.
For example, the employer may enforce rules of conduct that are grounded in “business
necessity” and need not tolerate violence, theft or threats of violence or theft, even when the
employee asserts that these behaviors are the result of a disabling condition. Likewise, employers
need not lower standards of production, as to either quantity or quality, to accommodate
individuals with a disability. The Guidance discusses the employer’s obligations to reasonably
accommodate individuals with a disability by permitting them to transfer to other positions for
254
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, EEOC Compliance Manual N:915.002 (Oct. 17, 2002).
255
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, EEOC Compliance Manual N:915.002.
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256
which they are qualified if their own job cannot be restructured without undue hardship. The
EEOC provides that an indefinite leave of absence may be a reasonable accommodation, unless
257
the employer makes a showing of undue hardship.
The EEOC’s Guidance also states that an individual with a disability must be transferred to a
more suitable position if qualified to perform the essential functions of the job; again, with or
258
without a reasonable accommodation, even if other candidates have better qualifications.
In some jurisdictions, though the employer is obligated to consider such a transfer, it may not be
in violation of the ADA if the employee fails to request a transfer to a new job for which she is
259
qualified. An employer has no obligation, however, to create a position, or to bump existing
260
employees from their jobs to create an opening. Under analogous state laws, employers may be
found to have failed in their obligation to reasonably accommodate an employee with a disability
if they do not affirmatively search for an alternate position, even when the employee makes no
261
such request.
The Seventh Circuit has rejected the EEOC’s interpretation and held that the ADA does not
require the employer to advance minimally qualified disabled employees over more qualified
nondisabled employees. According to the court, there is a principled difference between clearing
the way to hire the most qualified applicant, who might happen to be disabled, and requiring
employers to hire inferior applicants because they are disabled. The latter is “affirmative action
with a vengeance.” The ADA does not require “employers to give bonus points to people with
262
disabilities much as veterans’ preference statutes do.” The Seventh Circuit has similarly held
263
that an employer is not required to provide training needed to qualify for a position.
The EEOC’s Guidance also provides a useful discussion of the interaction between the Family
and Medical Leave Act (FMLA) and the ADA with respect to leaves of absence and the
employee’s right to return to his or her former position (under the FMLA) or the same or an
“equivalent” position (under the ADA). On a similar note, the Guidance states the EEOC’s
position that employers may not apply a “no fault” absenteeism policy to the detriment of
256
Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000) (employer that took no action other than to
reject the depressed and insomniac employee’s request for a shift change failed to reasonably accommodate
her by transferring her out of the night shift).
257
Walsh v. UPS, 201 F.3d 718 (6th Cir. 2000).
258
See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999); Smith v. Midland Brake, Inc., 180
F.3d 1154 (10th Cir. 1999).
259
See Hines v. Chrysler Corp., 2000 U.S. App. LEXIS 11338 (10th Cir. May 19, 2000) (unpublished) (it
is the employer’s duty, as part of the interactive process, to identify any open positions to which a disabled
employee may be possibly reassigned).
260
See Lucas v W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001); Smith v. Midland Brake, Inc., 180
F.3d 1154 (10th Cir. 1999); see also US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (employer is under
no obligation to retain a less senior disabled employee in violation of the employer’s seniority system as a
reasonable accommodation because violation of such system is ordinarily per se unreasonable and no case
by case analysis would be required).
261
Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935 (1997).
262
EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000).
263
Williams v. United Ins. Co. of Am., 253 F.3d 280 (7th Cir. 2001), cert. denied, 534 U.S. 1023 (2001).
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individuals with a disability, and states the EEOC’s interpretation of the requirements with
respect to indefinite leaves of absence and the need to consider relaxing the requirements of
collective bargaining agreements.
Executive Order No. 13164 requires federal agencies to establish effective written procedures for
the processing of requests for reasonable accommodations. In October 2000, in response to
Executive Order No. 13164, the EEOC issued a Guidance entitled, “Establishing Procedures to
Facilitate the Provision of Reasonable Accommodation,” which provided further insight into the
reasonable accommodation obligation.
§ 5.2.9(b)(ii) Indefinite Leaves & Transfers as Reasonable
Accommodations
Providing employees with an “open-ended, work when able” schedule is not a reasonable
264
accommodation. For example, the Eighth Circuit Court of Appeals held that a proposed leave
of absence accommodation by a clerical employee suffering from sinusitis was not reasonable.
The employee’s attacks (burning sensations, swelling face, wheezing, etc.) were triggered by
perfumes, smoke, nail polish, glue, and adhesives. His employer accommodated him by creating a
workstation in a room with better ventilation and prohibited the use of nail polish in his
department. After making exceptions to its attendance policy for the employee, the company
agreed with the employee that he could sign off his phone, notify a supervisor and leave the area
if he believed he was going to be exposed to irritants while the company investigated and sought
a remedy. Despite this further accommodation, the employee did not just leave the area when he
feared exposure to irritants—he went home. The court concluded that the employee’s requested
accommodation seeking “an irritant-free work environment” and “additional unpaid sick time”
was unreasonable. The court noted that an employer can provide only so much avoidance of
265
irritants before it finds itself “providing a bubble for the employee to work in.”
Likewise, an employer need not transfer an employee to a position that would not have been
available for similarly situated nondisabled employees to apply for and obtain. In Duvall v.
Georgia-Pacific Consumer Products, the Tenth Circuit Court of Appeals considered when a
266
position was “vacant” for purposes of reasonable accommodation under the ADA. The
plaintiff requested, as a reasonable accommodation, reassignment to his old position—then
occupied by a temporary contract worker pending permanent outsourcing of the department. The
court affirmed summary judgment for the employer because the plaintiff could not establish that
the position in question was a vacant position open to employees, rather than temporary workers.
267
In Tobin v. Liberty Mutual Insurance Co., a bipolar employee repeatedly requested that Liberty
transfer him to a sales position with different accounts, after receiving several performance
warning for failing to meet quotas in his own department. The plaintiff claimed that this
264
Barfield v. BellSouth Telecomms., Inc., 886 F. Supp. 1321 (S.D. Miss. 1995); see also Walsh v. UPS,
201 F.3d 718 (6th Cir. 2000) (dismissing pilot’s ADA claims holding that suggested accommodation of
indefinite leave of more than one year was not reasonable).
265
Buckles v. First Data Res., Inc., 176 F.3d 1098 (8th Cir. 1999). But see Davis v. Utah State Tax
Comm’n, 96 F. Supp. 2d 1271 (D. Utah 2000) (chemically-sensitive employee—who could be found by a
jury to be limited in the major life activity of breathing—could proceed with ADA claim against employer
that refused to move her desk away from a coworker who wore scented hand lotion).
266
607 F.3d 1255 (10th Cir. 2010).
267
433 F.3d 100 (1st Cir. 2005), aff’d, 553 F.3d 121 (1st Cir. 2009).
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reassignment would have enabled him to meet his quotas. Liberty asserted that it was not required
to provide the accommodation because the accounts the plaintiff requested were assigned by
merit. Since the plaintiff’s performance did not meet company expectations, giving him new
accounts would have “altered the nature of Tobin’s job requirements and the essential functions
268
of his employment.” The First Circuit Court of Appeals disagreed based on Tobin’s argument
that the accounts he requested were not solely assigned based on merit, but rather an analysis of
several factors. As such, the court could not determine that reassignment was an unreasonable
accommodation.
§ 5.2.9(b)(iii) Job Restructuring & Working at Home
The term job restructuring refers to modifying a job so that a person with a disability can perform
the essential functions of the position. Barriers to performance may be removed by eliminating
nonessential elements of the job, reassigning nonessential tasks, exchanging assignments with
other employees, and redesigning procedures.
Employers also must determine whether working at home is an option for a disabled employee.
269
For example, in Langon v. Department of Health & Human Services, a computer programmer
with multiple sclerosis asked for permission to work at home when her condition deteriorated.
The employee explained, and her physician concurred, that her symptoms of fatigue and
weakness were exacerbated by her commute to and from work. The Department denied her
request and subsequently terminated her for poor performance. The court ordered the case to
proceed to trial on the issue of whether the employer made reasonable accommodation. In a
similar case, a federal court held that a claims adjuster’s request to work at home was not
unreasonable as a matter of law, particularly where the employer had allowed other employees to
270
work out of their homes on occasion.
271
However, in Vande Zande v. Wisconsin Department of Administration, the Seventh Circuit
found an employee’s work-from-home request to be unreasonable. The plaintiff, a paraplegic
clerical employee, suffered complications that required her to be at home for several weeks. She
argued that her employer was required to accommodate her disability by supplying her with a
desktop computer at home so that she could work full-time and not be required to use any sick
leave. Her supervisor refused, saying he could only provide her with 15 to 20 hours of work she
could perform at home. The court noted that most jobs require teamwork under supervision, and
that cannot generally be replaced with unsupervised work at home without a substantial reduction
in the quality of the employee’s performance. Similarly, in Smith v. Ameritech, the Sixth Circuit
Court of Appeals held that the sales representative plaintiff’s request to work from home was
unreasonable because he could not demonstrate that he was one of the “exceptional cases” where
he could perform all of his work from home without a reduction in the quality of his job
272
performance.
268
Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 136 (1st Cir. 2009).
959 F.2d 1053 (D.C. Cir. 1992).
270
Anzalone v. Allstate Ins. Co., 1995 U.S. Dist. LEXIS 1272 (E.D. La. Jan. 30, 1995) (unpublished); see
also Humphrey v. Memorial Hosps. Ass’n, 239 F.3d 1128 (9th Cir. 2001) (disabled transcriptionist might
have been able to perform the essential functions of her job with the accommodation of a work-at-home
position, and thus, employer was not entitled to a judgment as a matter of law).
271
44 F.3d 538 (7th Cir. 1995).
272
129 F.3d 857, 867 (6th Cir. 1997).
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§ 5.2.9(b)(iv) Use of Job Coaches as a Reasonable Accommodation
Perhaps signaling a trend to employers, a New York federal district court in 2005 approved the
273
use of a job coach to help a disabled employee perform her job. A developmentally challenged
sales associate sued her retail employer, claiming it discriminated against her in violation of the
ADA. Specifically, the employee claimed that her employer denied her request for an
accommodation in the form of a state-paid job coach to help her perform her job successfully.
The parties reached a novel settlement. The employer agreed to implement a national policy of
using job coaches to help disabled employees “go about their daily routines in [the] store.” The
intended role of the job coach is to “spend just enough time (and no more)” to support the
employee. The job coach’s presence at the store is to decrease gradually as the employee becomes
more proficient.
While other cases have seemed to approve the use of a job coach to help disabled employees
adjust to a job, employers should be aware that the job coach’s role must not be overemphasized.
A coach that essentially performs the employee’s job can no longer be considered a reasonable
274
accommodation.
§ 5.2.9(b)(v) Use of Emotional Support Animals as a Reasonable
Accommodation
Another trend of which employers should be aware is the use of emotional support animals to aid
mentally impaired individuals. Animals trained to be emotional support pets have been proven to
275
help alleviate symptoms of depression, social anxiety, and post-traumatic stress disorder. In
276
Edwards v. U.S. Environmental Protection Agency., the court addressed the issue of whether
an employer was required to allow an employee suffering from partial paralysis and colitis to
bring his ten-week-old puppy to work as a reasonable accommodation. The plaintiff presented a
letter from his physician, which stated that the plaintiff’s proposal “certainly cannot hurt,” but
failed to comment on whether his holistic and experimental plan would actually work. The court
found the plaintiff failed to present objective evidence of the effectiveness of having his puppy at
work by analyzing cases arising under the Fair Housing Act. In those cases, courts have been
asked to resolve disputes between landlords and tenants that seek to avoid “no pet” policies by
demonstrating that the animal is more like a disability aid (thus, required as a reasonable
277
accommodation for a disabled tenant) than a mere pet. Depending upon the specific facts,
some courts have forced landlords to accept these emotional support animals while others have
273
EEOC v. Home Depot USA, Inc., No. 03-4860 (E.D.N.Y. Oct. 17, 2005).
See, e.g., EEOC v. Dollar Gen. Corp., 252 F. Supp. 2d 277 (M.D.N.C. 2003) (temporary job coach who
helped an employee learn to perform a job by herself would be a reasonable accommodation, but one who
performed all job tasks for the employee would not).
275
See, e.g., Wells v. State Manufactured Homes, Inc., 2005 U.S. Dist. LEXIS 6048 (D. Me. Mar. 11,
2005).
276
456 F. Supp. 2d 72 (D.D.C. 2006).
277
See Rebecca J. Huss, No Pets Allowed: Housing Issues & Companion Animals, 11 ANIMAL L. 69, 72–75
(2005) (describing the difference between a “service animal,” which is trained to work for the disabled
person’s benefit and cannot be prohibited, and a “companion animal,” which does not meet this definition,
and may be prohibited from locations that prohibit animals); see also JoAnne Nesta Burnett, Prescription
Pets: Medical Necessity or Personal Preference, 36 NOVA L. REV. 451 (2012).
274
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278
determined there is no such duty owed.
§ 5.2.9(b)(vi) Assistance with Commuting to and from Work as a
Reasonable Accommodation
Although several circuit courts have held that commuting to and from work falls outside the
279
scope of employers’ accommodation obligations under the ADA, in Nixon-Tinkelman v. N.Y.
City Department of Health & Mental Hygiene, the Second Circuit Court of Appeals reiterated that
an employer may be required to assist with an employee’s commute to work because “ ‘there is
nothing inherently unreasonable … in requiring an employer to furnish an otherwise qualified
280
disabled employee with assistance related to her ability to get to work.’ ” The plaintiff, who
was hearing-impaired and suffered from cancer, heart problems and asthma, requested assistance
with her commute when her duty station was reassigned to Manhattan, rather than Queens, where
she previously worked for some time. In remanding the case to the district court, the Second
Circuit instructed that several factors should be considered when determining the reasonableness
of a possible accommodation, including the number and location of the employer’s offices and
whether plaintiff could be transferred to a more convenient office without unduly burdening the
employer. The court stated that while a determination of whether a particular commuting
accommodation is reasonable is a fact specific inquiry, in this case, accommodations to consider
included transferring plaintiff to a location closer to her home, allowing plaintiff to work from
home, or providing plaintiff with a car or parking permit.
Similarly, in Colwell v. Rite Aid Corp., the Third Circuit Court of Appeals ruled that the ADA
can obligate an employer to accommodate an employee’s disability-related difficulties in getting
281
to work if the request is reasonable. In Colwell, the plaintiff, whose vision impairment
prevented her from driving at night, requested that she only be scheduled for day shifts. In
reversing summary judgment for the employee, the Third Circuit held that changing the plaintiff’s
work schedule to assist with her commute to work is an accommodation contemplated by the
ADA. On similar facts, the Ninth Circuit Court of Appeals also ruled that shift changes that
accommodate a disabled employee’s ability to commute to and from work can be reasonable
282
accommodations.
278
See, e.g., Mark Faas, Dog-as-Therapy Argument Doesn’t Sit Well With Judge, Nov. 18, 2005, available
at http://www.law.com/jsp/article.jsp?id=1100535357392 (describing a judge’s refusal to allow a little girl
to keep a dog in an apartment because there was insufficient evidence to show that the dog’s presence on
the premises was “required for [her] to use and enjoy the premises, thus necessitating a ‘reasonable
accommodation’ by [the landlord]”). See also Wells v. State Manufactured Homes, Inc., 2005 U.S. Dist.
LEXIS 6048 (D. Me. Mar. 11, 2005). In Wells, the plaintiff sought to force her landlord to allow her
emotional support pet to remain in her mobile home. She claimed the landlord’s order that she move out
because she had violated the no-pet policy in her lease violated the ADA. The court found that the
plaintiff’s depression did not rise to the level of a mental disability, and for that reason court denied her
ADA claim.
279
See, e.g., Kimble v. Potter, 390 F. App’x 601 (7th Cir. 2010) (plaintiff whose vertigo prevented her from
driving to work was not protected by the ADA because she could access other jobs in Chicago by foot or
public transportation; Carlson v. Liberty Mut. Ins. Co., 237 F. App’x 446 (11th Cir. 2007) (plaintiff whose
epilepsy interfered with her ability to drive to work but had no impact on her ability to perform her job
duties was not protected by the ADA).
280
434 F. App’x 17 (2d Cir. 2011) (quoting Lyons v. Legal Aid Soc’y, 68 F.3d 1512, 1517 (2d Cir. 1995)).
281
602 F.3d 495 (3d Cir. 2010).
282
Livingston v. Fred Meyer Stores, Inc., 388 F. App’x 738 (9th Cir. 2010).
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§ 5.2.9(c) Accommodations Must Be Effective & Consider Employee
Preference
283
An accommodation must be effective. If there are several effective accommodations, the
employer should consider the preference of the individual and select the accommodation that best
serves the needs of the individual and the employer. However, the employer is free to choose
among effective accommodations and may choose one that is less expensive or easier to provide
than the one suggested by the employee.
284
For example, in Keever v. City of Middletown, a city was not required to offer a night patrol
shift or detective position to a police officer whose physical injuries and depression prevented
him from attending work on a regular basis. The city determined that because the plaintiff’s
attendance was so erratic he would instead be offered a desk position at the same seniority level
and with the same pay and benefits. The court rejected the plaintiff’s ADA claim, noting that an
employer retains the ultimate discretion to choose among effective accommodations. The
employee is not required to accept an accommodation, but where that employee cannot perform
the essential functions of the position absent accommodation, he usually will not be considered a
285
qualified individual with a disability under the ADA if he rejects a reasonable accommodation.
286
A similar result was reached in Kiel v. Select Artificials, Inc. There, the employer was not
required to hire an interpreter for a deaf employee. It provided an equally effective
accommodation by minimizing the number of telephone calls he needed to make and providing
an interpreter for a training session.
§ 5.2.9(d) Unionized Employers & Seniority Systems
The terms of a collective bargaining agreement may be relevant in determining whether a given
accommodation imposes an undue hardship.
287
In Eckles v. CONRAIL, a yard master, working under a collective bargaining agreement,
demanded certain accommodations under the ADA for his epilepsy. The collective bargaining
agreement potentially permitted him to displace a more senior employee to obtain a job that
would satisfy his new restrictions, but only with the consent of both the employer and the union.
The yard master sued both the employer and the union under the ADA. The court found that the
ADA does not require that collectively bargained seniority rights be compromised to reasonably
accommodate a disabled individual, stating that “collectively bargained seniority rights have a
preexisting special status in the law and that Congress to date has shown no intent to alter this
283
See Service v. Union Pac. R.R. Co., 153 F. Supp. 2d 1187 (E.D. Cal. 2001) (finding a triable issue of
whether the employer reasonably accommodated the asthmatic employee by providing an air freshener and
banning smoking in his presence, where the plaintiff claimed that the measures did not alleviate his
problems).
284
145 F.3d 809 (6th Cir. 1998), cert. denied, 525 U.S. 963 (1998).
285
See also Davis-Durnil v. Village of Carpentersville, 128 F. Supp. 2d 575 (N.D. Ill. 2001) (police
department, in transferring an officer suffering from post-traumatic stress disorder to a desk job, did not
violate the ADA because such a transfer was reasonable in light of the officer’s fitness for duty).
286
169 F.3d 1131 (8th Cir. 1999), cert. denied, 528 U.S. 818 (1999).
287
94 F.3d 1041 (7th Cir. 1996), cert. denied, 520 U.S. 1146 (1997).
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288
status by the duties created under the ADA.”
Even in a nonunion setting, an employer can demonstrate that a requested accommodation is not
“reasonable” if it shows that it will violate an established seniority system. While employees may
succeed if they prove extraordinary circumstances dictate a different result, it will ordinarily be
sufficient for the employer to show that the employee’s requested accommodation violates a
289
seniority system. No case by case analysis is required.
§ 5.2.10 J. RETALIATION
J. RETALIATION
Like virtually all other antidiscrimination laws, the ADA has a separate provision making it
unlawful for an employer to penalize an employee for invoking his or her rights under the ADA.
To make out a retaliation claim, a plaintiff must show: (1) that the plaintiff engaged in protected
activity; (2) that an adverse action was taken against him or her; and (3) a causal connection
between the adverse action and the protected activity.
Importantly, nondisabled employees can sue their employers for retaliation. In Keating v.
290
Gaffney, an employee brought an ADA suit claiming he was denied a reasonable
accommodation. The employee suffered from a condition whereby he reacted negatively to
prolonged heat and sun exposure. The employer denied the employee’s request to be transferred
to a position involving no heat or sun exposure. The district court granted the employer’s motion
for summary judgment on the discrimination claim, holding the employee was not disabled in his
ability to work. However, the court refused to dismiss the employee’s retaliation claim, holding
that the employee’s request for an accommodation was a protected activity because his request
for an accommodation was made in good faith, and the employer’s refusal to reassign the
employee to another position was enough evidence of its alleged retaliatory motive to require a
trial. Because a retaliation plaintiff only has to show that he or she had a good faith belief that he
or she was entitled to a reasonable accommodation based on what he or she thought was a
disability (, not that he or she had an actual disability), the class of individuals who have standing
to assert such claims is much broader than most other ADA claims.
291
In Barker v. Riverside County Office of Education, the Ninth Circuit Court of Appeals ruled
that a special education teacher alleging she was constructively discharged may pursue retaliation
claims under both the ADA and section 504 of the Rehabilitation Act. The county education
office hired the plaintiff in 2002 as a roving special education specialist for students with
disabilities. She began as early as 2003 to express concerns to the county that its special
education services did not comply with state or federal law. In May 2005, the teacher and a
coworker filed a class discrimination complaint with the federal Department of Education’s
288
See also EEOC v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001) (even where there is no collective
bargaining agreement, employer is not required to deviate from its seniority system to accommodate an
employee under the ADA); Boersig v. Union Elec. Co., 219 F.3d 816 (8th Cir. 2000), cert. denied, 531 U.S.
1113 (2001) (employer not required to give a promotion as an accommodation to a disabled employee
under the ADA if doing so would violate a bona fide seniority system under a collective bargaining
agreement).
289
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002).
290
182 F. Supp. 2d 278 (E.D.N.Y. 2001).
291
584 F.3d 821 (9th Cir. 2009).
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65
Office of Civil Rights, alleging that Riverside County was denying disabled students the “free
appropriate public education” required under federal and state laws. After supervisors in the
county education office learned about the federal complaint, the county allegedly retaliated in
several ways: the supervisors intimidated the teacher; failed to respond to her telephone e-mails
or calls; excluded her from staff meetings; changed her work assignments to ones farther from her
home; reduced her caseload; and refused to allow her to fill in for other teachers. Although the
teacher was not disabled and did not have a “close relationship to a disabled person,” the court
concluded that the anti-retaliation provisions of the ADA and the Rehabilitation Act both grant
standing to “any individual” who “has opposed any act or practice made unlawful” by the ADA,
not solely disabled persons.
Ordinarily, a plaintiff will have to demonstrate that his or her employer had actual or constructive
292
knowledge of the plaintiff’s alleged protected activity. In Jones v. United Parcel Service, Inc.,
the Tenth Circuit Court of Appeals affirmed the district court’s grant of summary judgment in
favor of the defendant-employer on the plaintiff’s retaliation claim. The district court held that the
plaintiff’s retaliation claim failed because he was unable to establish a causal link between the
adverse action and his alleged protected activity. Specifically, the district court rejected the
plaintiff’s argument that he engaged in protected activities when he filed grievances with the
union because the grievances did not contain allegations of discrimination. The plaintiff also
argued that he had engaged in protected activity when he requested to return to work, arguing that
they were actually requests for an accommodation via assignment to a different job. The Tenth
Circuit affirmed the district court ruling, holding that, although a plaintiff’s request to return to
work or to be reassigned can constitute a protected activity, it was not a protected activity in this
case because there was no evidence that the employer was aware of the plaintiff’s belief that he
was entitled to a reasonable accommodation. Without such knowledge, the employer could not
interpret his requests to return to work as requests for an accommodation.
Third parties may also be protected from retaliation under the ADA. In Fogleman v. Mercy
293
Hospital, Inc., the Third Circuit Court of Appeals held that the plaintiff could maintain his
action against Mercy Hospital for retaliation under the ADA even though he had not personally
participated in a protected activity. The plaintiff was fired from his job as a security guard for
Mercy Hospital, and he alleged that he was fired because his father had filed a lawsuit against the
hospital for disability discrimination, and the hospital believed that he was assisting his father
with the lawsuit. The court noted that there was split of authority on whether a third-party’s claim
294
of retaliation was actionable. In reviewing the two relevant provisions of the ADA, the court
focused on the second retaliation provision, which prohibits an employer from coercing or
intimidating an individual for having aided or encouraged any other individual in the exercise or
295
enjoyment of their rights. The court found that the broad language of this retaliation section
supported the plaintiff’s third-party claim of retaliation, even if his claim was only based on a
292
502 F.3d 1176 (10th Cir. 2007).
283 F.3d 561 (3d Cir. 2002), cert. denied, 537 U.S. 824 (2002) abrogated on other grounds by
Thompson v. North Am. Stainless, L.P., 131 S. Ct. 863 (2011) (holding that a plaintiff may bring a thirdparty retaliation claim under Title VII).
294
See Smith v. Riceland Foods, 151 F.3d 813, 819 (8th Cir. 1998) (holding plaintiff may not present a
retaliation claim without personally participating in protected activity); Holt v. JTM Indus., 89 F.3d 1224
(5th Cir. 1996) (same); but see EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206 (E.D. Cal. 1998).
(Title VII retaliation provision does not extend to third parties).
295
42 U.S.C. § 12112(a).
293
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perception that the plaintiff was helping his father.
§ 5.2.11 K. DISABILITY HARASSMENT
K. DISABILITY HARASSMENT
The ADA guarantees disabled employees equal treatment in the “terms, conditions, and privileges
296
of employment,” which many courts have interpreted to include the right to work in a
297
workplace free from disability-based harassment. While minor quarrels between a disabled
employee and a nondisabled coworker would likely not subject an employer to damages for a
disability harassment claim, serious conflicts in the workplace might.
The evaluation of a disability-based harassment claim begins with the same analysis as that for
other types of harassment cases. A plaintiff must prove that:
• he or she belongs to a protected group;
• he or she was subjected to severe or pervasive harassment;
• the harassment complained of was based on his or her disability or disabilities;
• the harassment complained of affected a term, condition, or privilege of employment;
and
• the employer knew of the alleged harassment but failed to take prompt remedial
action.298
• However, in some jurisdictions, ADA claims add an additional element:
• A plaintiff must prove that he or she is a qualified individual with a disability and, at the
time of the alleged harassment, was able to perform the essential functions of his or her
job, with or without reasonable accommodation.
• In Flowers v. Southern Regional Physician Services,299 an employee succeeded on her
claim of disability harassment when, within one month of learning of her HIV-positive
status, her employer suddenly became dissatisfied with her work performance, began
296
42 U.S.C. § 12112(a).
Compare Flowers v. Southern Reg’l Physician Servs., 247 F.3d 229, 235 (5th Cir. 2001) (finding a
cause of action for disability harassment under the ADA), with Aina v. City of N.Y., 2007 U.S. Dist. LEXIS
8396, at *9, n.2 (S.D.N.Y. Feb. 6, 2007) (noting that “the Second Circuit has yet to recognize a cause of
action for hostile work environment pursuant to the ADA”).
298
Flowers, 247 F.3d at 235–36; Hamera v. County of Berks, 248 F. App’x 422, 425 (3d Cir. 2007)
(affirming summary judgment for defendant on grounds that nine comments over 16 months, though
“insensitive,” did not rise to the level of “severe or pervasive”).
299
247 F.3d 229 (5th Cir. 2001).
297
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intercepting her telephone calls and eavesdropping on her conversations, and lured her
into disciplinary meetings under false pretenses.300
Employers are advised to take allegations of harassment by disabled employees seriously,
focusing on the alleged harasser’s knowledge of the complaining employee’s disability, the
nature and extent of the alleged harassment, the nature of the complaining employee’s
relationship with other employees, and with the alleged harasser in particular, and take
appropriate action as necessary. For further discussion on harassment, see Chapter 4 of THE
NATIONAL EMPLOYER®.
§ 5.2.12 L. DEFENSES TO ADA CLAIMS
L. DEFENSES TO ADA CLAIMS
§ 5.2.12(a) Business Necessity
The ADA specifically gives employers an affirmative defense for action taken pursuant to a
qualification standard “shown to be job-related for the position in question and … consistent with
301
business necessity.” The business necessity defense may be asserted to defend against disparate
302
treatment, disparate impact, and failure to accommodate claims. To assert the business
necessity defense, an employer must show that the qualification standard is: (1) job-related; (2)
consistent with business necessity, and (3) that performance cannot be accomplished by
reasonable accommodation.
303
In Fraterrigo v. Akal Security, Inc., the district court found that the defendant’s annual hearing
test was a “business necessity” because having a minimum level of hearing proficiency was
necessary for performing the essential job functions of the plaintiff’s position, as determined by
an outside expert retained by the defendant to make recommendations for changing its medical
standards. In Fraterrigo, the plaintiff failed the annual hearing test without an accommodation.
The plaintiff claimed that he could have passed the test if the defendant had permitted him to use
a hearing aid; he alleged that he should have been permitted to use the hearing aid as a reasonable
accommodation of his hearing impairment. In granting summary judgment for the defendant, the
court found that a minimum level of hearing proficiency without a hearing aid was a “business
necessity” because it was necessary for employees in the plaintiff’s position to perform their
essential job functions. As demonstrated by Fraterrigo, an employer can successfully assert the
business necessity defense where the qualification standard ensures that the employee has the
requisite functionality to perform the essential functions of a job.
300
See also Fox v. GMC, 247 F.3d 169 (4th Cir. 2001) (employee with limitations due to a back injury
succeeded on a hostile work environment disability harassment claim because during a period of over ten
months, a supervisor required the disabled employee to perform tasks beyond his medical restrictions,
berated and harassed the employee and other disabled workers, and encouraged other employees to
ostracize disabled workers).
301
42 U.S.C. § 12113(a).
302
Bates v. UPS, 511 F.3d 974, 995 (9th Cir. 2007); see also Chevron U.S.A. v. Echazabal, 536 U.S. 73
(2002) (holding that an EEOC regulation recognizing a harm-to-self aspect of the business necessity
defense as permissible under the ADA).
303
2008 U.S. Dist. LEXIS 87451 (S.D. N.Y. 2008), aff’d, , 376 F. App’x 40 (2d Cir. 2010).
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§ 5.2.12(b) Ministerial Exception
The ADA permits religious employers to give preference in employment “to individuals of a
304
particular religion to perform work connected with the carrying on” of the religious employer.
Although an employee must be a “minister” for this exception to apply, the U.S. Supreme Court
has read “minister” liberally and granted courts broad discretion to determine whether an
305
employee is a minister.
In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court
examined whether a church employee, who was terminated after threatening to take legal action
against the church for alleged ADA violations, was a “minister” within the purview of the
ministerial exception to the ADA. In determining that the employee was a minister, the Court
relied on the fact that the employee was given the title of commissioned minister, the church
congregation periodically reviewed the employee’s “skills of ministry” and “ministerial
responsibilities,” and was formally called by the church’s congregation to teach. Despite the
employee spending just 45 minutes per day on her religious duties, and the remainder on secular
teaching activities, the Court refused to limit the ministerial exception to employees who
“perform exclusively religious functions.”
§ 5.2.12(c) Accommodation Requested Is an Undue Hardship
The ADA only requires an employer to reasonably accommodate an individual with a disability.
An employer is not required to undergo undue hardship to make such accommodations. The
ADA defines an undue hardship as an action that would require significant difficulty or expense
306
to the employer when considered in light of the following factors:
• the nature and cost of the accommodation needed;
• the overall financial resources of the facility or facilities involved;
• the number of persons employed at the facility;
• the effect on expenses and resources;
• the overall financial resources of the covered entity;
• the overall size of the business and number of its employees;
• the number, type, and location of its facilities;
• the type of operation or operations of the covered entity;
• the composition, structure, and functions of the workforce;
304
42 U.S.C. § 12113(d)(1).
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC.
306
29 C.F.R. § 1630.2(p)(2).
305
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69
• the geographic separateness of the relevant facilities;
• the administrative or fiscal relationship of the facility or facilities to the covered entity;
and
• the impact of the accommodation upon the operation of the facility and its ability to
conduct business
Whether a particular accommodation will impose an undue hardship is determined on a case bycase basis. In general, a larger employer will be expected to undertake greater efforts and expense
307
to make accommodations than a smaller employer. The EEOC states that the concept of undue
hardship includes any action that is unduly costly, extensive, or substantial to the particular
employer or that would fundamentally alter the nature or operation of the business.
§ 5.2.12(d) Determination of Social Security Disability May Not Be a
Defense to an ADA Claim
The Supreme Court has squarely addressed the proper approach to cases in which an ADA
plaintiff has also filed an application for Social Security Disability Insurance benefits (SSDI). In
308
Cleveland v. Policy Management System Corp., the Court determined that the law does not
automatically stop the recipient of SSDI benefits from pursuing an ADA claim. The Court
examined the differences in the two remedial schemes. It noted that the Social Security
Administration (SSA) deals with an extremely high volume of claims and does not take into
account the possibility of a reasonable accommodation when determining if the applicant is able
to work. Thus, a claim for benefits asserting that an applicant cannot perform his or her job,
within the SSA’s rules, is not necessarily inconsistent with a claim under the ADA that the
plaintiff can perform the essential functions of the job with a reasonable accommodation.
Nonetheless, the Court acknowledged that a claim for SSDI in which an applicant claims that she
is unable to work appears to negate an essential element of her ADA claim. The Court held that
an ADA plaintiff cannot ignore this apparent contradiction. Rather, the plaintiff must offer a
309
“sufficient” explanation in order to avoid dismissal of his or her claims.
307
See Reigel v. Kaiser Found. Health Plan, 859 F. Supp. 963 (E.D.N.C. 1994) (a physician’s
accommodation request to restrict her duties to administration and supervision was unreasonable because it
would have depleted the employer’s active physician base while unnecessarily increasing its administrative
staff); see also Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538, 542 (7th Cir. 1995) (“To
‘accommodate’ a disability is to make some change that will enable the disabled person to work … [and] at
the very least, the cost could not be disproportionate to the benefit.”); EEOC v. Sara Lee Corp., 237 F.3d
349, 355 (4th Cir. 2001) (holding that the ADA does not require reassignment “when it would mandate that
the employer bump another employee out of a particular position”); Daugherty v. City of El Paso, 56 F.3d
695, 700 (5th Cir. 1995) (“[W]e do not read the ADA as requiring affirmative action in favor of individuals
with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment
over those who are not disabled.”).
308
526 U.S. 795 (1999).
309
See also EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000) (following the Cleveland
decision, the Fourth Circuit allowed the EEOC to bring an ADA suit so long as the plaintiff “proffer[s] a
sufficient explanation for any apparent contradiction between the [ADA and the SSDI] claims”); but see
Disanto v. McGraw-Hill, Inc., 220 F.3d 61 (2d Cir. 2000) (plaintiff who was unable to reconcile
inconsistent statements to the SSA was not entitled to the $1.2 million verdict awarded to him by the jury);
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
In the Cleveland decision, the Court stressed that it was making no ruling concerning situations
where a plaintiff has made inconsistent statements of pure fact (for example, claiming, with
respect to the same time period, “I have no lifting restrictions” versus “I cannot lift more than ten
310
pounds”). Such contradictory statements may result in dismissal of ADA claims.
§ 5.2.12(e) Employee Making a Threat Is Not the Same as Posing a
Threat Under the ADA
An employer has a defense against an ADA claim where the plaintiff posed a direct threat to
311
others that cannot be eliminated by a reasonable accommodation. However, where an
employee actually threatens a supervisor, that threat should not be treated in the same manner as
posing a direct threat pursuant to the ADA.
The Second Circuit addressed this issue when an employee was placed on paid FMLA leave after
312
threatening a supervisor in Sista v. CDC Ixis North America, Inc. CDC did not allow the
plaintiff to return to work after the leave and terminated the plaintiff because of the supervisor’s
concern for his own safety. The appellate court affirmed the district court’s grant of summary
judgment for CDC on the plaintiff’s ADA claim, but held that the district court should not have
considered the plaintiff’s actual threat against his supervisor at the prima facie stage of the case in
determining whether the plaintiff was “otherwise qualified” for his managerial position. In doing
so, the court distinguished between an employee “making” a physical threat versus “posing” a
threat as contemplated by the ADA’s direct threat defense. The court held that when a plaintiff
makes an actual threat, that threat can be the basis for finding a legitimate, nondiscriminatory
basis for the adverse employment action, not as a basis for finding that the employee posed a
direct threat under the ADA.
§ 5.2.12(f) Agency’s Placement of an Employee in a Rehabilitation
Position Does Not Automatically Establish that the Employee Was
Disabled
313
In Rolland v. Potter, the employee argued that, because he was eligible to participate in the
U.S. Postal Service’s (USPS) rehabilitation program pursuant to the Federal Employees
Compensation Act, he was “disabled” for purposes of the Rehabilitation Act. The district court
rejected this argument and held that the plaintiff failed to present evidence that he had a disability
within the meaning of the Rehabilitation Act. The First Circuit Court of Appeals affirmed the
district court’s grant of summary judgment in favor of the USPS, holding that even though the
Reed v. Petroleum Helicopters, Inc., 218 F.3d 477 (5th Cir. 2000); Motley v. New Jersey State Police, 196
F.3d 160 (3d Cir. 1999), cert. denied, 529 U.S. 1087 (2000). (plaintiff who applied for disability retirement
benefits failed “to proffer a reasonable explanation of his inconsistent statements”).
310
See Kurzweg v. SCP Distribs., L.L.C., 424 F. App’x 840 (11th Cir. 2011) (following Cleveland and
affirming summary judgment for employer on employee’s ADA claim because plaintiff’s statement to the
SSA that he was unable to work because of his disability showed that he could not perform the essential
functions of his job).
311
42 U.S.C. § 12111(3).
312
445 F.3d 161 (2d Cir. 2006).
313
492 F.3d 45 (1st Cir. 2007) (noting that the phrase “individual with a disability” is defined substantially
the same in the ADA and the Rehabilitation Act).
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71
USPS had determined that the plaintiff had a permanent partial disability, USPS was not estopped
from arguing that the plaintiff was not disabled within the meaning of the Rehabilitation Act. The
court added that any argument that the plaintiff “had a record of an impairment” or “was regarded
314
as having an impairment” was equally unpersuasive.
§ 5.2.13 M. ALCOHOLISM & DRUG ADDICTION
M. ALCOHOLISM & DRUG ADDICTION
One of the ADA’s most difficult areas of application concerns alcoholism and drug addiction.
The ADA recognizes alcoholism and past drug addiction as disabilities, but also recognizes an
employer’s legitimate interest in preventing the current use of illegal drugs by its employees.
Moreover, because the use of alcohol is lawful, the ADA treats alcoholism and drug addiction
slightly differently. An employer may implement rules and regulations establishing discipline, up
315
to and including termination, for the use of alcohol during working hours or in the workplace.
Because it is not unlawful to use alcohol away from the workplace, the ADA does not address
that issue. However, the ADA permits an employer to discipline or terminate an employee or
refuse to hire an applicant who is currently engaging in the illegal use of drugs. The Tenth Circuit
Court of Appeals has held that an employer’s refusal to reinstate an employee to his former
position after the employee had completed a one-month inpatient rehabilitation program did not
316
violate the ADA. It is not necessary for an employer to prove that the drug use occurred during
working hours or at the employer’s workplace.
A federal appeals court rejected the ADA claims of employees fired after an undercover
investigation showed that they were buying, selling or using drugs at work, and/or reporting to
work while under the influence. The employees claimed they were protected under the ADA
because they were not currently engaging in the illegal use of drugs, having taken and passed
drug tests shortly after they were terminated. The court found that currently engaging in illegal
drug use is not limited to use on the day of, or even weeks before, the employment action in
question. The admissions by the employees that they had engaged in drug use during the weeks
and months before their discharge showed that they were recently involved in drug-related
317
misconduct and so were not protected under the ADA.
314
See also Smith v. Bank of Stanly, 2011 U.S. Dist. LEXIS 14538 (M.D.N.C. Feb. 11, 2011) (holding that
plaintiff could not maintain her ADA claim based on her husband’s alleged disability because, even though
her husband received workers’ compensation, she failed to present any evidence that he was disabled
within the meaning of the ADA).
315
See Ames v. Home Depot USA, Inc., 629 F.3d 665 (7th Cir. 2011) (granting employer summary
judgment on employee’s ADA claim where employee signed an employee assistance agreement that
subjected her to immediate termination if she “refuse[d] to take a required drug and/or alcohol test or fail a
drug and/or alcohol test at any time during the course of [her] employment at Home Depot” and then
subsequently reported to work under the influence of alcohol); Den Hartog v. Wasatch Acad., 129 F.3d
1076 (10th Cir. 1997) (where misconduct is caused by drug or alcohol abuse employer may apply exactly
the same standard of conduct as expected of all employees).
316
Mauerhan v. Wagner Corp., 649 F.3d 1180 (10th Cir. 2011) (discussing the “currently engaging”
exception to the ADA); but see Picarazzi v. John Crane, Inc., 2011 U.S. Dist. LEXIS 11432 (S.D. Tex.
Feb. 7, 2011) (employer denied summary judgment on former employee’s ADA claim that company
discriminated against him in disciplining him for absences from work as a result of his FMLA-approved
treatment for alcoholism).
317
Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995), cert. denied, 516 U.S. 1048 (1996). See
also Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001) (employee arrested for drunk driving and
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
The ADA is neutral with respect to drug testing of job applicants or employees; it neither
prohibits nor specifically protects any particular testing program. However, an applicant’s past
use of illegal drugs can only be used as a basis for not hiring the applicant if the employer can
show that the applicant’s use of drugs did not result in a disability—i.e., the applicant is not a
recovering addict. For example, a city police department did not violate the ADA when it refused
318
to offer a position to an applicant who admitted past use of illegal drugs. The court concluded
that the applicant’s past casual use of small amounts of marijuana and cocaine did not make him a
person with a disability because his drug use did not cause him to be addicted, nor did it
substantially limit any of his major life activities.
The ADA provides that an employer may hold an alcoholic or recovering drug addict to the same
qualification standards for employment, or job performance and behavior, as other employees,
even if unsatisfactory performance or behavior is related to the employee’s drug addiction or
alcoholism. For example, if an individual with alcoholism is repeatedly late to work or is unable
to perform the responsibilities of the job, an employer can take disciplinary action on the basis of
319
poor job performance or behavioral problems.
In a series of cases, federal courts rejected disability discrimination claims by employees
discharged for insubordination, disruptive behavior, and/or illegal conduct. In Newland v.
320
Dalton, a civilian employee of the Navy was fired for “notoriously disgraceful conduct” after
he attempted to fire an assault rifle at individuals in a bar. The employee filed suit under the
Rehabilitation Act of 1973, alleging that his “drunken rampage” was the direct result of being an
alcoholic. The Ninth Circuit Court of Appeals affirmed the trial court’s dismissal of the action,
concluding that the termination did not violate the Rehabilitation Act because it was based on the
321
employee’s misconduct, not his disability. Similarly, in Williams v. Widnall, an employee was
terminated after making threats against his supervisors and coworkers. The employee claimed
that his actions were the result of his alcoholism. The court found that employers are not required
to accept the egregious behavior of an alcoholic when the same behavior, if exhibited by a
322
nondisabled employee, would result in termination.
The employer’s duty of reasonable accommodation applies to alcoholism and drug addiction in
drug possession while off-duty and terminated because she was a “no-call, no show,” had not refrained
from drug use for a sufficient amount of time prior to her termination to claim protection of the ADA); Hall
v. Jewish Hosp. of Cincinnati, 2000 Ohio App. LEXIS 2312 (Ohio Ct. App. Hamilton County June 2,
2000) (the employer did not violate the ADA by firing an employee addicted to pain medications; it was
not enough that the employee, who admitted to using drugs “up until the day that he was fired,” was
“arranging” to enter a treatment program at the time of his discharge because “arranging to get into a
program is not the same as having completed a program or being currently enrolled in a program”); Zenor
v. El Paso Healthcare Sys., Ltd., 176 F.3d 847 (5th Cir. 1999) (the fact that employee “self-reported” his
cocaine addiction and voluntarily entered a rehabilitation program before he was terminated did not bring
him within ADA’s “safe harbor” provisions for drug users).
318
Hartman v. City of Petaluma, 841 F. Supp. 946 (N.D. Cal. 1994).
319
Larson v. Koch Ref. Co., 920 F. Supp. 1000 (D. Minn. 1995).
320
81 F.3d 904 (9th Cir. 1996).
321
79 F.3d 1003 (10th Cir. 1996).
322
See also Pernice v. City of Chicago, 237 F.3d 783 (7th Cir. 2001) (drug-possessing employee’s
termination was because of his violation of work rules and was unrelated to his alleged disability of drug
addiction).
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73
the same manner as any disability. One such accommodation may be a leave of absence to attend
a rehabilitation program or undergo rehabilitation treatments. Although there is no automatic
requirement that an employer permit leave in these circumstances, the employer may deny the
request for leave only if it can show that the leave of absence will cause an undue hardship on its
business or operations. However, some states have separate laws requiring accommodation of
such requests for treatment. The employer’s duty of reasonable accommodation has other
limitations as well. For example, the Oregon Supreme Court ruled that Oregon employers have no
duty to accommodate medical marijuana use in the workplace and may take adverse employment
323
action against employees currently using medical marijuana.
Courts have been relatively protective of employees who enter rehabilitation programs. For
324
example, in Anderson v. Martin Brower Co., the court refused to dismiss an employee’s
lawsuit alleging he was terminated because he was an alcoholic. Because the employee left work
to attend an alcohol detoxification program, and a question of fact existed as to whether the
employee had returned to work promptly after the treatment, the court allowed the case to
proceed to trial.
325
In Schmidt v. Safeway Inc., a truck driver tested positive for alcohol and was terminated. The
employee brought an action under the ADA asserting that he should have been accommodated by
being given a leave of absence to enter rehabilitation. The court concluded a leave would have
been a reasonable accommodation. The employer could not defend its actions on the basis that the
employee would have been a safety threat had he returned to work, because there was no
evidence he would not have successfully completed the rehabilitation program. The court also
rejected the employer’s argument that the results of the alcohol test required that the driver be
discharged in accordance with DOT regulations. Instead, the court found that the DOT
regulations required only the temporary removal of the driver from active duty.
In contrast, a federal court rejected an employee’s failure-to-accommodate claim when he refused
to take a drug test after completing a rehabilitation program. In Sechler v. Modular Space
326
Corp., the employee had a history of receiving treatment for alcohol dependence, but remained
sober from 1998 to 2008. In late 2008, the employee began drinking alcohol again and his job
performance declined. In 2009, the employee sought leave to obtain outpatient treatment for
alcoholism, which the employer approved. Upon completing outpatient treatment, the employee
returned to work and signed a return-to-work agreement. The agreement required the employee to
submit to at-will drug and alcohol tests. On two days, the employee’s coworkers reported to
company officials that he was behaving oddly and appeared to be intoxicated. The employer then
required the employee to take a drug and alcohol test, and required that he allow someone to drive
him to the testing location. The employee refused to go to the testing location unless he could
drive himself, and the employer subsequently terminated his employment. The employee brought
a failure-to-accommodate claim, but the court held that the employee’s claim failed because the
employer had granted his accommodation request for leave to obtain treatment.
323
Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus., 230 P.3d 518 (Or. 2010).
1994 U.S. Dist. LEXIS 9196 (D. Kan. June 9, 1994) (unpublished).
325
864 F. Supp. 991 (D. Or. 1994).
326
2012 U.S. Dist. LEXIS 54478 (S.D. Tex. Apr. 18, 2012).
324
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
§ 5.2.14 N. DRUG & ALCOHOL TESTING
N. DRUG & ALCOHOL TESTING
The ADA does not prohibit an employer from conducting drug testing in order to determine
whether or not an employee is illegally using drugs, and such tests are not considered to be
medical examinations. If an employer wishes to conduct drug tests even before a conditional offer
is made to an applicant, it may do so, but the test must be designed to accurately reveal the use of
illegal drugs. Moreover, the employer may adopt or administer reasonable policies or procedures,
including drug testing, designed to ensure that the applicant or employee stating he or she has
successfully completed a supervised drug rehabilitation program, or is participating in such a
327
program, is actually refraining from the illegal use of drugs.
The ADA also protects applicants or employees mistakenly regarded as alcoholics or drug
addicts. Such individuals are not excluded from the definitions of “disability” and “qualified
individual with a disability.” If an individual is able to establish that he or she was mistakenly
regarded as a drug addict or an alcoholic, then the individual is protected from discrimination
328
under the ADA.
Any information obtained from a drug test about an individual’s medical condition must be
treated as a confidential medical record. For example, if a drug test reveals the use of a drug that
is prescribed to treat a particular medical condition, that information must be maintained
separately and treated as confidential.
An employee who tests positive for an illegal drug cannot enter a drug rehabilitation program for
329
the purpose of avoiding discipline or termination. For example, in Taub v. Frank, the court
dismissed the claim of a postal service clerk discharged after being arrested for possession of
heroin with intent to distribute. The court held that the clerk’s criminal conduct was not protected
under the Rehabilitation Act and that the postal service was not required to offer him drug
rehabilitation services as a reasonable accommodation.
330
On the other hand, in McDaniel v. Mississippi Baptist Medical Center, an employee with drug
addiction problems relapsed and informed his employer that he needed to enter a drug
rehabilitation program. In response, the employer terminated his employment. While the court
found that the employee used drugs illegally, it also found that it was unclear whether the
employer had waited until after the employee entered the drug rehabilitation program before
terminating him. The court held that it could not dismiss the case because there was some
evidence that the employee had stopped using drugs before entering the rehabilitation program
and had not used drugs while in the program. Thus, the court held that the employee could have
been protected as a person with a disability and that his discharge could have violated the ADA.
Numerous states have enacted medical marijuana laws, including Arizona, Connecticut,
Michigan, and Washington. While some of the state’s laws specifically forbid employers from
327
See Buckley v. Consolidated Edison Co., 155 F.3d 150 (2d Cir. 1998) (holding that an employer’s
practice of randomly testing former substance abusers more frequently than those employees not previously
identified as substance abusers did not constitute discrimination under the ADA).
328
29 C.F.R. 1630, appendix.
329
957 F.2d 8 (1st Cir. 1992).
330
869 F. Supp. 445 (S.D. Miss. 1994), aff’d, 74 F.3d 1238 (5th Cir. 1995).
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
75
taking adverse employment action against an employee for using medical marijuana, employers
may prohibit employees who use medical marijuana from smoking marijuana while at work and
331
may discipline employees for working under the influence of marijuana. Other state medical
marijuana laws are silent on the issue and have been left to court interpretation. For example, in
332
Casias v. Wal-Mart Stores, Inc., an employee in Michigan obtained a medical marijuana
registry card after being diagnosed with an inoperable brain tumor. Under Michigan’s Medical
Marihuana Act (MMMA), which was passed in 2008, a “qualifying patient” to whom the state
has issued a registry card may use medical marijuana. After obtaining a registry card, the
employee injured his knee on-the-job and sought medical treatment at the hospital. There, the
employee was administered a standard drug test pursuant to the employer’s policy for workplace
injuries. The employee’s drug test came back positive for marijuana. The employee showed his
manager his registry card and informed his manager he had never reported to work under the
influence of marijuana or used marijuana while at work. However, the employer terminated the
employee due to his drug test results. The court agreed with the district court’s conclusion that the
MMMA addressed only criminal prosecution; therefore, it could not be interpreted to require
private employers to accommodate employee’s medical marijuana use or to protect private
employees from disciplinary action due to medical marijuana use.
§ 5.2.15 O. DISPARATE TREATMENT & DISPARATE IMPACT
O. DISPARATE TREATMENT & DISPARATE IMPACT
An employer may defend against a disparate treatment charge by showing that the individual was
not treated differently because of a disability, but for legitimate and nondiscriminatory reasons
unrelated to the disability. An employer’s showing that the individual’s disability is not covered
by the employer’s insurance, or will cause the employer’s premiums to increase, is not a
legitimate, nondiscriminatory reason justifying disparate treatment of a disabled individual. A
plaintiff can successfully rebut an employer’s defense if he or she can show that an alternative
and effective business practice exists that would have a less discriminatory impact and the
employer refuses to adopt the alternative practice, or that the nondiscriminatory reason offered by
333
the employer is pretextual.
With respect to the ADA, disparate impact means that uniformly applied job criteria have an
adverse impact on individuals with a disability or a disproportionately negative impact on a class
of individuals with disabilities. Employers may use selection criteria that screen or tends to screen
out individuals with disabilities only when they are job-related and consistent with business
necessity. For instance, an employer may require that candidates be sighted to be hired as a truck
driver. This requirement will screen out blind candidates, but the employer can show that sight is
a job-related requirement for driving a truck. However, an employer may insist on sighted
candidates only if sight is an essential function of the position. For example, it might be more
convenient to have sighted clerical employees with drivers’ licenses who could occasionally run
office errands, but unless driving is an essential requirement of the clerical position, the employer
must consider visually impaired candidates if they are otherwise qualified to perform all essential
334
functions of the job.
331
For more information regarding state-specific medical marijuana laws, see Littler’s state and regional
titles in The Employer Book series, at http://www.lexisnexis.com/littler/.
332
695 F.3d 428 (6th Cir. 2012).
333
See 29 C.F.R. § 1630.15(a).
334
29 C.F.R. § 1630.15(b).
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On May 19, 2010, the EEOC issued an informal discussion letter regarding whether an
employer’s requirement that a job applicant possess knowledge, skills, or abilities (KSAs) that
could be acquired or mastered in eight or fewer hours to be hired for a job could have an adverse
impact on applicants. The letter concluded that, although Title VII, the ADEA and the ADA
“prohibit employment practices that have a disparate impact against individuals on some
protected basis … none of [the statutes] generally prohibits employers from requiring the
possession of certain KSAs simply because they can be acquired or mastered in eight or fewer
335
hours.”
For further discussion of discrimination in employment see Chapter 3 of THE NATIONAL
EMPLOYER®.
§ 5.2.16 P. INSURANCE COVERAGE
P. INSURANCE COVERAGE
The expansion of ADA coverage into the field of mental impairments has significant implications
for employee disability benefit plans. Federal appellate courts generally agree that employee
disability benefit plans that provide less coverage for mental impairments than for physical
impairments do not violate the ADA.
The Sixth Circuit Court of Appeals, for example, upheld an employer’s long-term disability plan
that distinguished between the amount of coverage provided for mental versus physical
336
disabilities. In Parker, the court rejected the ADA claims of an employee diagnosed with
depression who received only two years of disability benefits because her employer’s plan capped
coverage at two years for mental disabilities. In denying her ADA claim, the court held that the
ADA merely prohibits discrimination between disabled versus nondisabled persons but does not
prohibit differentiating between different types of disabilities, such as mental and physical.
Additionally, the court found that a long-term disability plan provided by an employer is not
covered under Title III of the ADA because Title III governs only the provision of benefits by a
337
“place of public accommodation.”
335
EEOC Informal Discussion Letter, Title VII: ADEA, & ADA: Qualification Standards and Disparate
Impact (May 19, 2010).
336
Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997), cert. denied, 522 U.S. 1084 (1998).
But see Fletcher v. Tufts Univ., 367 F. Supp. 2d 99, 110 (D. Mass. 2005) (striking employer’s benefit plan
where employer failed to offer evidence showing that it had legitimate reasons for distinguishing between
mentally and physically disabled participants); cf. Colonial Life & Accident Ins. Co. v. Medley, 572 F.3d 22
(1st Cir. 2009) (noting division among district courts as to “whether the ADA prohibits as discriminatory
an employer’s decision to provide short-term disability benefits to individuals with physical disabilities, but
not to those with mental disabilities”).
337
See also Lenox v. Healthwise of Ky., Ltd, 149 F.3d 453 (6th Cir. 1998) (no ADA violation where
employer’s disability benefits plan provided coverage for certain organ transplants but not heart
transplants); EEOC v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000) (agreeing that “so long as every
employee is offered the same plan regardless of the employee’s contemporary or future disability status,
then no discrimination has occurred even if the plan offers different coverage for various disabilities
[citations omitted]"); Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998) (the ADA does not
require that employers provide the same kind of coverage for all disabilities, so long as all employees are
offered the same benefit plan regardless of their status as disabled or not); Lewis v. Kmart Corp., 180 F.3d
166 (4th Cir. 1999), cert. denied, 528 U.S. 1136 (2000) (a long-term disability plan that provided different
benefit periods for mental and physical disabilities did not violate the ADA); Whaley v. United States, 82 F.
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77
338
In Weyer v. Twentieth Century Fox Film Corp., the Ninth Circuit Court of Appeals found that
the plaintiff, a former employee receiving disability benefits because she was entirely unable to
work, was not a “qualified individual with a disability.” It also held that the insurance company
administering the company’s disability policy is not a “place of public accommodation” under
Title III of the ADA, and, even if it were, providing different coverage for mental disabilities than
physical disabilities would not violate the ADA and would be protected by the “safe harbor”
339
provisions of section 501 (c) of the ADA.
Congress stepped into this debate to a limited degree by passing the Mental Health Parity Act of
1996 (MHPA). The law required health plans to provide coverage for mental illnesses on par with
other physical illnesses for purposes of lifetime and annual benefits after January 1, 1998. On
October 3, 2008, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction
340
Equity Act of 2008 (MHPAEA) was signed into law. This Act amends provisions of ERISA,
the Public Health Service Act and the Internal Revenue Code, which require “parity” or balanced
treatment in the offering of mental health benefits under private group health benefit plans. The
341
MHPAEA, effective October 3, 2009, requires private group health benefit plans to provide
mental health and substance use disorder benefits in which applicable financial, treatment and
coverage requirements are “no less restrictive than the predominant treatment limitations applied
to substantially all medical and surgical benefits.” As a result, plan participants have greater
access to “benefits with respect to service for mental health conditions” and “benefits with respect
to services for substance use disorders” as those terms are defined under the plan and in
accordance with applicable federal and state laws, and plan sponsors will likely have to
implement a number of changes to existing group health benefit plans. In the beginning of 2010,
the Employee Benefits Security Administration (EBSA), Internal Revenue Service (IRS) and the
Department of Health and Human Services (HHS) issued interim final rules under the MHPAEA.
These interim final regulations replace prior regulations, make conforming changes to reflect
modifications the MHPAEA made to the original Mental Health Parity Act (MHPA) of 1996
definitions and provisions regarding parity in aggregate lifetime and annual dollar limits, and
incorporate new parity standards. The interim final regulations became effective April 5, 2010,
and generally apply to group health plans and group health insurance issuers for plan years
beginning on or after July 1, 2010.
Similar to the MHPA, the MHPAEA has exemptions for small employers as well as a cost
exemption. First, the MHPAEA exempts from its provisions an employer that employs on
average at least two (or, in states that permit small groups to include an individual, one) but not
more than 50 employees in the preceding calendar year. This is a significant change from the
MHPA, which determines a small employer based on the number of employees that are employed
Supp. 2d 1060 (D. Neb. 2000) (same).
338
198 F.3d 1104 (9th Cir. 2000). But see Arizona ex rel. Goddard v. Harkins Amusement Enters., 603
F.3d 666 (9th Cir. 2010) (explaining and distinguishing Weyer).
339
Weyer, 198 F.3d at 1106. See also EEOC v. Aramark Corp., 208 F.3d 266 (D.C. Cir. 2000) (a long-term
disability plan which provided greater benefits for physical disabilities than mental disabilities did not
violate the ADA because it was protected by its “safe harbor” provision); Brewster v. Cooley
Assocs./Counseling & Consulting Servs., 1997 U.S. Dist. LEXIS 21434 (D.N.M. Nov. 25, 1997)
340
H.R. 1424-117. (October 3, 2008).
341
For calendar year plans, the Act’s effective date was January 1, 2010.
78
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
on the first day of the plan year. Second, the MHPAEA also provides an increased cost exemption
for a group health benefit plan. A group health may be eligible for this exemption upon a showing
that compliance with the MHPAEA would increase the total cost of coverage under the group
health benefit plan by 2% or more in the first year that the MHPAEA applies to the plan or at
least 1% in subsequent plan years. Both the total cost of coverage under the group health benefit
plan and any increased cost percentages must be timely determined in writing by a certified and
licensed actuary and reported to the Internal Revenue Service, applicable state agencies, plan
participants and beneficiaries. Unlike the MHPA, self-insured plans are no longer exempt from
the parity rules.
Because the MHPAEA may require significant changes in plan design, will likely increase overall
plan costs, and does not require employers to provide either mental health or substance use
disorder benefits, employers will need to determine whether they are willing or able to provide
342
these types of benefits.
Additionally, in October 2000, the EEOC issued section 3 of its Compliance Manual on
“Employee Benefits.” The Manual is intended to guide EEOC employees in the investigation of
complaints and enforcement of the ADA. It recognizes that employers may offer various levels of
coverage for mental or physical impairments or other broad categories of conditions. However, it
states the EEOC position that “disability based discriminations” (singling out particular
disabilities, e.g., HIV; or group disabilities e.g., cancers, for different treatment) will violate the
ADA unless they can be justified for various reasons set out in the Manual; these include sound
actuarial data as to the risk and cost of claims, or that the distinctions are needed to maintain the
financial solvency of the plan.
§ 5.2.17 Q. RELATIONSHIP BETWEEN WORKERS’ COMPENSATION, WORKRELATED INJURIES & LIGHT DUTY ASSIGNMENTS
Q. WORKERS’ COMPENSATION, WORK-RELATED INJURIES & LIGHT DUTY
The interaction of the ADA with state workers’ compensation laws is often confusing. In
343
September 1996, the EEOC issued guidelines regarding the interrelationship between the two.
The EEOC notes that while the purposes of the two laws are not in conflict, their simultaneous
application often raises questions. The 1996 guidelines specifically address issues concerning:
• whether an occupational injury is a disability as defined by the ADA;
• the hiring of persons with a history of occupational injury;
• reasonable accommodations for persons with occupational injuries;
• light-duty issues; and
342
The Patient Protection and Affordable Care Act (PPACA), which does not become effective until 2014,
currently defines coverage for mental health and substance use disorder benefits and services, including
behavioral health treatment, as “essential” health benefits, for which insurance coverage offered by large
employers (50 or more full-time employees and full-time equivalents) must be equal to coverage provided
for other medical conditions. See PPACA, Pub. L. No. 111-148, § 1302(b).
343
EEOC, Enforcement Guidance: Workers’ Compensation & ADA, Notice No. 915.002 (Sept. 3, 1996).
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
79
• exclusive-remedy provisions in workers’ compensation laws.
The guidelines also state that the exclusive-remedy provisions in many workers’ compensation
laws do not bar employees from pursuing ADA claims.
The definition of disability under the ADA is applied no differently when the employee in
question has claims under workers’ compensation laws. Accordingly, whether a worker injured
on the job is protected by the ADA will depend upon whether he or she meets the ADA’s
definition of an individual with a disability, including the 2008 amendments to the ADA.
However, the filing of a workers’ compensation claim does not automatically establish that the
employee has a record of a disability for purposes of the ADA. Similarly, an employee with an
occupational injury does not automatically satisfy the regarded as portion of the ADA. Rather, he
must satisfy the ADA requirements independent from his workers’ compensation claim or
344
award.
With respect to the interview process, the EEOC guidelines state that, under certain
circumstances, an employer may ask questions and require either an initial or follow-up medical
examination concerning prior workers’ compensation claims and occupational injuries. First, the
same questions and medical examination requests must be asked of all entering employees in the
same job category. Second, the questions and requests can only be made after making a
conditional offer of employment and before actual employment has begun. Any information that
the employer could not lawfully obtain from the applicant may not be obtained from third parties.
In making hiring decisions, an employer can refuse to hire a person with a disability that poses a
direct threat, but cannot refuse to hire a person with a disability simply because he sustained a
345
prior occupational injury. Likewise, the EEOC guidelines state that in making return-to-work
decisions, an employer cannot refuse to return an employee with an occupational injury to work
simply because there has been a workers’ compensation determination that the person is totally
disabled; workers’ compensation laws and the ADA may utilize different standards for such
determinations.
Most workers’ compensation laws do not require an employer to make a reasonable
accommodation for a disability. Thus, a finding that an employee is disabled as the result of a
work-related injury and unable to perform his or her customary job duties might trigger the
ADA’s reasonable-accommodation obligation, even though there would be no such obligation
under the workers’ compensation laws. An employer cannot refuse to return an employee with a
disability to work before he is fully recovered from the work-related injury, unless the employer
can show that the employee cannot perform the essential functions of the job in question with or
without reasonable accommodation, or that the employee would pose a direct threat. The EEOC
has determined that an employer cannot always satisfy its ADA obligation to provide reasonable
344
See Baffoe v. W. H. Stewart Co., 2000 U.S. App. LEXIS 7531 (10th Cir. Apr. 24, 2000) (unpublished)
(an employee’s workers’ compensation records cannot serve as the basis for his claims that he was
regarded as disabled or that he had a record of a disability); see also Jones v. UPS, 214 F.3d 402 (3d Cir.
2000) (employee who was “fully recovered” from work-related injuries could be considered disabled under
the ADA).
345
For further information regarding the direct threat analysis, see § 5.2.7(a) above.
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
accommodation for an employee with an occupational injury by placing that person in a workers’
compensation vocational rehabilitation program, because an employee’s rights under the ADA
are separate from workers’ compensation entitlements. Thus, the ADA requires an employer,
absent undue hardship, to accommodate an employee in his or her current position through job
restructuring or some other modification. On the other hand, according to the EEOC, vocational
rehabilitation services through the workers’ compensation system can be a reasonable
accommodation if all parties agree to proceed in that manner.
§ 5.2.17(a) Light-Duty Assignments
An employer has no legal obligation to create a new position for a disabled worker. Therefore, if
an employer does not have light-duty jobs, an employee who becomes disabled during his
employment is not entitled to such a position. Similarly, if an employer’s practice is to provide
light-duty work solely as a temporary measure for employees recovering from temporary injuries,
the employer may argue that no permanent light-duty position is available to an employee who
cannot perform the essential functions of his or her regular job. A disabled employee’s
entitlement to regular light-duty work may depend upon the employer’s past practice regarding
such assignments, particularly assignments to nondisabled employees, and employers should be
aware of the risks associated with providing such assignments. In addition, the EEOC has found
that where an employer reserves light-duty positions for employees with occupational injuries,
the ADA requires the employer to consider reassigning an employee with a disability who is not
occupationally injured to such a position as a reasonable accommodation.
346
For example, in Tuck v. HCA Health Services of Tennessee, Inc., a registered nurse suffered a
back injury, was restricted from heavy lifting, bending, pushing, or pulling, and was reassigned to
a less demanding shift where other nurses could assist her. When she was terminated because
other nurses complained of having to help her perform her job, she sued. The court agreed that
the nurse could not perform all the essential duties of her job, but it nonetheless held the
discharge to be unlawful. The nurse’s inability to lift could have been accommodated, as proven
by the light-duty assignment and by the fact that the hospital advertised for openings in less
demanding positions at the same time it terminated the nurse.
347
However, in McCollough v. Atlantic Beverage Co., the court found in the employer’s favor.
The employee had acknowledged that the light-duty assignment he received after his initial back
injury was temporary in nature. Thus, the court found that the employer had the right to terminate
him upon learning that his subsequent back surgery resulted in permanent physical restrictions.
§ 5.2.18 R. REMEDIES AVAILABLE UNDER THE ADA
R. REMEDIES AVAILABLE UNDER THE ADA
The remedies available to a plaintiff who successfully proves a violation of the ADA are many
and varied. Courts have broad authority to remedy violations of the Act, and have awarded
injunctive relief, back pay, reinstatement and promotion. Courts can also order affirmative relief,
for example, directing the offending employer to change or abolish certain employment practices.
Courts may also award reasonable attorneys’ fees and costs to a successful or prevailing plaintiff.
An employer should also be aware that the EEOC has the authority to seek similar relief on
346
347
842 F. Supp. 988 (M.D. Tenn. 1992), aff’d, 7 F.3d 465 (6th Cir. 1993).
929 F. Supp. 1489 (N.D. Ga. 1996).
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81
behalf of an individual plaintiff even if he or she does not wish to pursue the claim, and even if
348
the individual employee is bound by an arbitration agreement.
The Civil Rights Act of 1991 amended Title VII, the Rehabilitation Act and the ADA to allow for
awards of compensatory and punitive damages. Punitive damages are limited, however, to cases
in which the employer has violated the ADA and the plaintiff proves by clear and convincing
evidence that the employer acted “with malice or with reckless indifference” to the rights
protected by federal law. In determining whether an employer has acted with malice or reckless
indifference, courts must focus on an individual’s state of mind, determining whether the
349
employer had knowledge that it might be acting in violation of federal law. In Battle v. United
350
Parcel Service, Inc., the Eighth Circuit Court of Appeals affirmed the jury’s award of lost
wages and compensatory damages to the employee, but denied the employee’s requests for
punitive damages on his failure to accommodate claim. The court refused to reverse the denial of
punitive damages to the plaintiff, reasoning that there was sufficient evidence for the district court
to determine that UPS did not have a maliciously discriminatory policy of requiring employees to
be fully healed before returning to work. For more information regarding defenses to punitive
damages claims, see Chapters 3 and 4 of THE NATIONAL EMPLOYER®.
Employers should note that the ADA immunizes an employer from punitive damages in cases
where the plaintiff asserts a claim for failure to provide reasonable accommodation and the
employer counters with persuasive evidence of a good faith effort to accommodate the plaintiff’s
disability. On the other hand, an employer may not avoid punitive damages based upon a
perfunctory effort to provide reasonable accommodation.
The Seventh Circuit was the first federal appellate court to consider what types of damages were
available under the ADA retaliation provisions. In Kramer v. Banc of American Securities.,
L.L.C., the court held that only equitable remedies, not compensatory or punitive damages, are
351
available as remedies for claims of retaliation under the ADA. Because only equitable
remedies are available, plaintiffs have no right to a jury trial, according to the court. The court’s
352
reasoning was later adopted by the Ninth Circuit in Alvarado v. Cajun Operating Co. Although
it recognized that various district courts had reached conclusions opposite to the Seventh Circuit,
and the lack of uniformity among federal district courts, the Ninth Circuit adopted the Seventh
Circuit’s interpretation, based on the plain and unambiguous language of the damages statute.
The Fourth Circuit, citing Kramer has also held that compensatory and punitive damages were
353
unavailable under the ADA antiretaliation provisions.
348
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).
Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999).
350
438 F.3d 856 (8th Cir. 2006).
351
355 F.3d 961 (7th Cir. 2004), cert denied, 542 U.S. 932 (2004).
352
588 F.3d 1261 (9th Cir. 2009).
353
See Bowles v. Carolina Cargo, Inc., 100 F. App’x 889 (4th Cir. 2004); Rhoads v. Federal Deposit Ins.
Corp., 94 F. App’x 187 (4th Cir. 2004).
349
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§ 5.3 III. PRACTICAL RECOMMENDATIONS FOR THE HR PROFESSIONAL
§ 5.3.1 A. THE INTERACTIVE PROCESS: STEP-BY-STEP GUIDANCE FOR HR
PROFESSIONALS
A. THE INTERACTIVE PROCESS
With the passage of the ADAAA, the “interactive process” takes on greater importance for
employers. The process requires an interactive dialogue and exchange of information between an
employer and a qualified disabled employee in connection with efforts to reasonably
accommodate the employee’s limitations. The process envisions meaningful participation and
timely cooperation by both parties. Unreasonable delay by the worker in responding to
management’s legitimate requests for pertinent information can be a very serious matter. So is a
refusal by the worker to provide the employer with the information. Detailed documentation of
the employer’s efforts related to the interactive process is absolutely essential.
Employers can standardize the accommodation analysis and some of the paperwork to minimize
the associated administrative burdens and workplace disruptions. Managers and supervisors
should be trained to recognize when to commence the interactive process to avoid inadvertent
oversights and unnecessary delays. Suggested steps for the basic interactive process are
summarized below.
Unless the employee’s disability is obvious or known to management, the first stage in this
process usually involves a determination of whether the employee is disabled within the meaning
of the ADA. This determination should be made by the HR Manager in consultation with the
other members of the management team, as appropriate.
#Comment Begins
Key Concepts
• A request for accommodation can be made at any time.
• Legal words (e.g., “reasonable accommodation,” the “Americans With Disabilities
Act,” etc.) are not necessary to request accommodation.
• The request can be written or oral.
• Other people may seek accommodation for the worker.
• No request may be needed in some extraordinary circumstances.
#Comment Ends
§ 5.3.1(a) Step 1: Acknowledge the Request in Writing
When an accommodation is requested (whether written or verbal), the HR Manager should
document the initial contact (e.g., date and substance of conversation) and acknowledge the
worker’s request for the accommodation in writing.
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
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§ 5.3.1(b) Step 2: Disability Status Determination
#Comment Begins
Key Concept: The Disability Status Determination
Making an accurate disability status determination is important. The HR Manager should make
every effort to collect the pertinent information. Also, it is important for the HR Manager to
document efforts to collect the pertinent information.
#Comment Ends
Disabled:
Management should accommodate qualified disabled workers that request accommodations
unless doing so would impose an undue hardship or create a direct threat. Proceed directly to the
next step.
Possibly disabled, further investigation needed:
If further investigation is needed, the HR Manager may consider:
□ Requesting additional medical information from the worker, such as documentation
regarding the worker’s impairment and work restrictions;
□ Seeking clarification of doctor’s notes and work restrictions;
□ Arranging a medical examination.
Medical information is highly confidential. If additional medical information is needed from the
employee’s health care provider, the employee should sign an appropriate medical release
authorizing release of needed medical information. When requesting medical information from
the employee’s health care provider, provide the health care provider with information identifying
the employee’s essential job functions.
It is unlawful to place documents with medical information in a regular personnel file. It belongs
in a separate file, preferably one with restricted access (i.e., under lock and key). A nonexhaustive
list of confidential documents includes:
Doctors’ notes, charts, reports and billing
statements
Counselors’ (therapists; psychologists;
□
psychiatrists) notes, charts, reports and
□
84
□ X-rays or other medical records
□
Correspondence with the employee
regarding his or her medical condition
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
billing statements
or limitations
Workers’ compensation claims, reports
□ Correspondence with doctors or counselors □
and related forms
Statements from the employee (e.g.,
□
 Insurance forms
requests for accommodation)
Managers that gain knowledge of any medical information of an employee should be trained to
understand the sensitive nature of this information and be instructed to treat the information as
personal and confidential.
The process of gathering medical information should not be a boundless free-for-all into the
employee’s medical history. Requests for information should be narrowly focused on the
employee’s impairment and his or her ability to perform the essential functions of the job.
Not disabled:
A reasonable accommodation is only available to qualified disabled workers. Nevertheless,
nondisabled workers may be entitled to workers’ compensation benefits or may have rights under
the federal and/or state family and medical leave laws. Consider all rights carefully.
§ 5.3.1(c) Step 3: Informing the Worker of the Disability Status
Determination & Scheduling the Meet & Confer Session
Management usually needs to meet with the worker to discuss accommodation options. To many,
this meet and confer process is a familiar part of administering workers’ compensation claims.
The worker should be contacted to arrange a convenient date for the session.
A letter should be sent to the worker with notice of the disability status determination. The tone
should be civil and the worker should be invited to submit any additional information that he or
she believes will be of further assistance to management in regard to the request.
§ 5.3.1(d) Step 4: Homework for the Meet & Confer Session
The HR Manager should be prepared to fully address the worker’s request at the meet and confer
session. Some homework is usually necessary. The following issues should be considered, in
consultation with the other members of the management team and Human Resources, as
appropriate:
□ Can the worker perform the “essential” functions of his or her job without any
accommodation?
□ Can the worker perform the “essential” functions of his or her job with reasonable
accommodation?
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85
□ If reasonable accommodation is needed, can management provide the worker with the
accommodation s/he has requested? Would a different reasonable accommodation be
better or less expensive?
□ If the worker cannot perform the “essential” functions of his or her job even with
accommodation, can the worker be reassigned to a suitable, vacant, equivalent alternative
position?
□ If a suitable, vacant, equivalent alternative position is not available, is a suitable,
vacant, lower-level position available?
□ Would a leave of absence or further leave be appropriate?
At least two management representatives should be present during the meet and confer session.
One of the management representatives should be assigned the task of taking notes of the
meeting. Check to make sure the date is convenient for all of the participants.
The meet and confer session should be conducted in a private place. Make sure a private room is
available. If appropriate, consider notifying the vocational rehabilitation counselor and the union
leadership of the date for the session.
Unreasonable delay by the worker in responding to management’s efforts to schedule the meet
and confer session can be a very serious matter. A refusal by the worker to participate in the
session is also a serious problem. Documentation of the reasons for the delay and efforts to work
together with the worker cooperatively is essential.
#Comment Begins
Key Concepts: Reassignment as a Reasonable Accommodation
• The worker should be reassigned to a vacant position for which s/he is “qualified”
despite the disability.
• Search for positions that are equivalent to the worker’s original job (e.g., same salary,
same shift, same level of responsibility, same promotional opportunities, etc.).
• If an equivalent position cannot be located, search for vacant lower-level positions.
• A worker reassigned to a lower-level position should be paid the usual salary for that
position, unless nondisabled workers have been reassigned under similar circumstances
without a loss of pay.
#Comment Ends
Reassignment
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If reassignment is being considered, or if it has been requested by the worker, bring copies of
each job description/job analysis to the meet and confer session. Send them to the worker in
advance, if possible.
§ 5.3.1(e) Step 5: Conducting the Meet & Confer Session
Ideally, the meet and confer session will be cordial and professional. If the worker is
uncooperative, explain that the worker’s cooperation is needed. Consider ending the session if the
worker (or his or her representative) continues to be uncooperative, or if the worker becomes
rude, belligerent or angry. When conducting the meet and confer session, consider the following:
Never:
□ Raise your voice □ Be provoked into an argument
□ Lose your temper □ Make promises you can’t keep
Always:
□ Take thorough notes
□ Be professional
Encourage the worker to fully
Agree to a reasonable request for additional
□
□
participate
information or additional time
§ 5.3.1(f) Step 6: Follow-up Letter After Meet & Confer Session
After the session:
□ A summary of the session should be sent to the worker, inviting his or her comments;
□ The HR Manager should conduct further investigation into the matters discussed at the
session, as needed.
Where appropriate, the summary letter may be combined with the letter responding to the
worker’s request for accommodation. See Step 7.
§ 5.3.1(g) Step 7: Final Response
Management’s final response should be communicated to the worker in writing. The final
response should be formulated by the HR Manager in consultation with the other members of the
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87
management team, as appropriate. The following response usually will consist of one of the
following:
□ accommodate the worker in his or her current job with the requested accommodation;
□ accommodate the worker in his or her current job with a different accommodation;
□ offer to reassign the worker to the suitable, vacant position that s/he requested;
□ offer to reassign the worker to a different suitable, vacant position;
□ offer the worker additional leave or an interim accommodation in anticipation of an
impending vacancy for a suitable, alternative position;
□ offer the worker additional leave to obtain treatment for a disability;
□ vocational rehabilitation benefits (only work-related disabilities); or
□ separation from employment, if absolutely no reasonable accommodation is
available.354
§ 5.3.1(h) Ongoing Duty to Accommodate
The duty of reasonable accommodation is not necessarily exhausted by making one
accommodation. For example, a progression of the worker’s disability may require the parties to
revisit the accommodation provided. A qualified disabled worker might be entitled to:
□ more than one type of accommodation;
□ different accommodations at different times; or
□ no accommodation part of the time and some accommodation at other times.
If there are multiple requests for accommodation, follow the procedures above for each request. If
it is clear that a disabled employee is still having difficulties even with accommodation, consider
initiating a discussion about alternate accommodations. Monitoring accommodations by soliciting
feedback from the employee is usually a good idea.
§ 5.4 IV. ESSENTIAL TOOLS FOR ADMINISTERING REASONABLE
ACCOMMODATION POLICIES
IV. ADMINISTERING REASONABLE ACCOMMODATION POLICIES
Provided below is a sample policy to be included in an employee handbook or manual. The
354
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The decision to separate a worker usually must be approved by senior management.
THE NATIONAL EMPLOYER® — 2013/2014 EDITION
accommodation worksheet provided should be provided to managers and supervisors.
355
§ 5.4.1 A. SAMPLE ACCOMMODATION POLICY356
A. SAMPLE ACCOMMODATION POLICY
#Comment Begins
ACCOMMODATION POLICY
To comply with applicable laws ensuring equal employment opportunities to qualified individuals
with disabilities, the Company will make reasonable accommodations for the known physical or
mental limitations of an otherwise qualified individual with a disability who is an applicant or an
employee unless undue hardship or a direct threat would result therefrom.
Any applicant or employee who requires an accommodation in order to perform the essential
functions of the job he or she holds or desires should contact the [insert title of the appropriate
Company representative] and request such an accommodation. The accommodation request can
be written or oral and can be made by the employee or by someone else on the employee’s behalf.
The accommodation request should specify the accommodation the employee needs to perform
the job. If the requested accommodation is reasonable and will not impose an undue hardship or a
direct threat, the Company will make the accommodation in accordance with applicable law. The
Company may propose an alternative to the requested accommodation or substitute one
reasonable accommodation for another, but the Company retains the ultimate discretion to choose
between reasonable accommodations.
Employees are expected to fully cooperate in the accommodation process. The duty to cooperate
includes making every effort to provide management with current medical information.
Employees who do not meaningfully cooperate in the accommodation process will waive the
right to accommodation.
#Comment Ends
§ 5.4.2 B. ACCOMMODATION WORKSHEET
B. ACCOMMODATION WORKSHEET
355
The policies and forms provided are samples only and do not constitute and are not a substitution for
consultation with legal counsel. The law in this area constantly changes and must be reviewed before
implementing any policy in this regard. These sample policies and forms should not be implemented or
executed except on advice of counsel.
356
The following is a sample policy only and does not constitute and is not a substitution for consultation
with legal counsel. The law in this area constantly changes and must be reviewed before implementing any
policy in this regard. This sample policy should not be implemented or executed except on advice of
counsel.
© 2013 LITTLER MENDELSON, P.C. ALL RIGHTS RESERVED.
89
Employee/Applicant Name: __________________________
Position Desired/Held: __________________________
Date of Request: __________________________
Prior Requests?
Has the employee requested accommodation before?
If the answer to this question is “Yes”, then you must
specify the details of the prior request on a separate page
(e.g., date of request, type of accommodation requested,
whether accommodation provided/refused, etc.). Staple the
extra page to this worksheet.
Does the employee have a mental and/or physical
impairment that substantially limits at least one major life
Disabled?
activity?
If the answer to this question is “Yes,” then the employee is
disabled. If the answer is “No,” then you must still answer
the next question.
Does the employee have a “record of” a mental and/or
physical impairment that substantially limits at least one
major life activity?
If the answer to either of the above 2 questions is “Yes,”
then he or she is disabled.
The employee is not disabled because (check off all that
Reason Not
apply):
Disabled?
Impairment was/is temporary
Impairment was/is not limiting
Impairment did/does not affect any major life activity
Can the employee perform all of the essential functions of
his or her current job or of a suitable vacant alternative job
“Qualified?”
without a reasonable accommodation?
If the answer to this question is “Yes,” then the employee is
qualified. If the answer is “No,” then you must still answer
the next question.
Can the employee perform all of the essential functions of
his or her current job or of a suitable vacant alternative job
with a reasonable accommodation?
If the answer to this question is “Yes,” the employee is
qualified.
Accommodation? The accommodation needed is (check off all that apply):
Making facilities accessible
Job restructuring
Part-time or modified work
90
□ Yes □
No
□ Yes □
No
□ Yes □
No
□
□
□
□ Yes □
No
□ Yes □
No
□
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
Modifying/purchasing equipment
Modifying policies
Reassigning nonessential job functions
Reassignment to a permanent, suitable and vacant position
Other (attach an extra page if necessary):
__________________________
__________________________
Did the employee request this accommodation?
□
□
□
□
□
□ Yes □
No
If the answer to this question is “No,” then you must answer
the next question.
Did the employee request a different accommodation?
□
□
□
□
□
□
□
□
□
□
□
□
□
□ Yes □
No
If the answer to this question is “Yes,” then you must
answer the next question.
The accommodation requested by the employee is not being
provided because:
__________________________
__________________________
This accommodation was mutually agreed upon.
The accommodation required elimination of essential job
functions.
The accommodation required reassignment of essential job
functions to others.
The accommodation was a personal use item.
The accommodation was an amenity.
The accommodation required the creation of a new job.
The accommodation was a promotion.
The accommodation required permanent light duty.
The accommodation required management to change the
employee’s supervisor.
The accommodation conflicted with the terms of a seniority
system or collective bargaining agreement.
The cost of the accommodation was extraordinary.
The accommodation was not consistent with the employee’s
work restrictions.
Other (attach an extra page if necessary):
__________________________
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Reassignment?
Industrial?
Miscellaneous:
Did management attempt to accommodate the employee in
his or her current job?
If there was more than one suitable vacant position, did
management reassign the employee to the job that was most
closely equivalent to the employee’s last job?
Is the employee disabled because of an impairment that
resulted from an industrial injury?
If the answer to this question is “Yes,” then you should
promptly notify the Company’s workers’ compensation
insurance carrier.
Is accommodation being denied because there was a break
down process?
If the answer to this question is “Yes,” then you must attach
a separate sheet explaining precisely what happened.
□ □
Yes No
□ □
Yes No
□ □
Yes No
□ □
Yes No
□ □
Yes No
§ 5.4.3 C. SAMPLE CORRESPONDENCE
C. SAMPLE CORRESPONDENCE
§ 5.4.3(a) Letter Acknowledging Request for Accommodation
5.4.3(a) Letter Acknowledging Request for Accommodation
Personal & Confidential
___________[Date]___________[Employee’s name and address]
Re: Your Request For Reasonable Accommodation
Dear ___________[employee’s name]:
On ___________, ___________, [state the date that management was
notified of the triggering event], [either] [you notified ___________ (state
the name of the individual who was notified of the triggering event)] [or if
notice was given by someone other than the employee]
[___________(state the name of the individual who was notified of the
triggering event) was notified by ___________(state name of individual
who notified management of the triggering event—e.g., the
employee’s spouse
or
doctor
)] that you [include all that apply]:
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THE NATIONAL EMPLOYER® — 2013/2014 EDITION
Were injured at work
□
Were injured away from work
□
Are suffering from an illness
□
Have a physical impairment
□
Have a mental impairment
□
Other (specify): ___________
□
___________
and are requesting reasonable accommodation. [If the employee has
requested a specific accommodation, include the next sentence: More
particularly, you are requesting _______________________ (specify
requested accommodation—e.g., “six months of disability leave, starting on
the first of next month”).]
Management is evaluating your request and will contact you to discuss
your situation. If you have questions, you should feel free to contact me at
___________[insert telephone number with area code].
What Happens Next?
Management is gathering the information needed to make a decision about
how to respond to your request. Your cooperation in this process is
indispensable. Once management has gathered the preliminary
information, your request will be classified in one of the following
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93
categories: “disabled;” “possibly disabled, further investigation needed;” or,
“not disabled.” Based on the classification, you may be entitled to
reasonable accommodation.
What Is Your Role in the Process?
You play an indispensable role in the process. For example, please do not
assume that management has all of the pertinent information; for whatever
reason, some information might come to you directly. Accordingly, please
forward to me any information you believe will assist management in
responding to your request, including any pertinent information from your
doctor. If you mail any information to me, please call me to let me know
that the information is coming. That way I know to look for the information
in my mail. Please supplement information related to your request as
appropriate.
Please keep me apprised of your current home telephone number(s) and
residential address. Someone from management or human resources may
need to speak with you. Your cooperation will help us ensure a prompt
response to your request.
Note that, under the law, all medical information is confidential.
Management will only disclose such confidential information on a restricted,
need-to-know basis.
Note further that, under the law, your refusal to cooperate with
management can have serious consequences including, but not limited to,
delaying management’s response to your request for accommodation or
denial of your request.
The Company Prohibits Retaliation
The Company prohibits retaliation against an employee who has a mental
or physical impairment who requests reasonable accommodation. Notify
someone in management immediately if you believe that you have suffered
any such retaliation. If you are not comfortable speaking to someone at the
facility, contact the human resources department directly. Their telephone
number is [insert telephone number with area code].
Conclusion
Again, you should always feel free to contact me directly with comments,
questions or concerns.
Sincerely,
___________[Your name and title]
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§ 5.4.3(b) Sample Letter Summarizing Meet & Confer Session
Personal & Confidential
___________[Date]___________[Employee’s name and address]
Re: Status of Your Request for Reasonable Accommodation
Dear ___________[employee's name]: ___________
Thank you for participating in the meet and confer session on
___________. I appreciate your cooperation. This letter summarizes the
substance of our discussion at the meet and confer session for everyone’s
convenience. If you believe that anything in this letter is incomplete or
inaccurate, please contact me as soon as possible. If I do not hear from
you or anyone speaking on your behalf, I will assume that you do not feel
that any changes are necessary.
___________[State the time of the session and identify all of the
participants.] We met at ___________ a.m./ p.m. in ___________’s office.
The following individuals were present at the meet and confer session:
___________[employee]; ___________, Safety Manager; and,
___________, Vocational Rehabilitation Counselor.
___________[State the substance of the discussion; include all pertinent
details.] According to your doctor, ___________, M.D., you are presently
restricted from lifting more than ___________ lbs. because of a workrelated back lower back injury and cannot return to your current job as a
___________, even with modifications to your job. The purpose of the
meet and confer session was to discuss the possibility of placing you in an
alternate job assignment.
On ___________, I notified you that the Company has openings for the
following positions: [list all open positions]. My ___________ letter included
a written job description for each position.
You expressed interest in a position as an Administrative Assistant. You
also stated that you have both the required computer skills (for example,
the ability to use Word and Excel software applications) and the required
typing skills, specifically, the ability to type at least 40 words per minute. On
___________, your doctor indicated that the “essential functions” of this
position are consistent with your permanent work restrictions.
We have agreed to consider you for this vacant position, subject to a
standard typing test and interview. You have agreed to take a typing test by
___________. We will not fill this position until you have an interview and
receive your test results; however, we will continue to accept applications
for this position so that we can select another candidate if necessary. If you
pass the typing test, you will be reassigned to this position. Your salary and
benefits will remain the same. Your workweek will be Monday through
Friday, from ___________ a.m. to ___________ p.m.
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Please contact ___________[insert the name of the appropriate manager]
as soon as possible to arrange a time for your interview. You should also
feel free to contact me with comments, questions or concerns.
Very truly yours,
___________[Your name and title]
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