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Cihon/Castagnera, Employment & Labor Law, 7e Ch 10

Chapter 10: DISCRIMINATION BASED ON DISABILITY INTRODUCTION

Instructor’s Manual 1

This chapter discusses the EEO legislation prohibiting discrimination based on disability, which is illegal under Americans with Disabilities Act and the Rehabilitation Act. There have been many recent changes in the area of disability discrimination law. At the time of the publishing of this chapter, the EEOC is soliciting comments for its proposed regulations and guidelines for the ADAA, an expansion of the ADA.

OUTLINE

I. Americans with Disabilities Act

A. Title II of the ADA deals with discrimination in public services, programs, and activities and Title III of the ADA requires that places of public accommodations should be accessible to disabled persons. The U.S. Courts of Appeals are split on whether Title II of the ADA allows suits for disability discrimination in employment by public employers [Unless otherwise noted, the discussion of the ADA here will focus on Title I.]

B. Coverage

1. The ADA applies to private and public sector employers with fifteen or more employees. It does not apply to most federal government employers, American Indian Tribes, or bona fide private membership clubs.

2. Together, the Congressional Accountability Act and Presidential and Executive Office Accountability Act extended ADA and Rehabilitation Act coverage to a host of federal employees.

3. In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court held that the 11th Amendment precludes ADEA suits for damages by individuals against state governments.

4. U S firms employing U S citizens abroad are covered, unless compliance would violate the law of the country where the workplace is located.

C. Provisions

1. The ADA prohibits employment discrimination on the grounds of disability against an otherwise qualified individual with a disability in regards to all aspects of employment.

2. The ADA defines "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."

3. Also protected are those who are known to associate with those with a disability.

4. The ADA also prohibits retaliation.

II. Qualified Individual with a Disability*

A. Both the ADA and the Rehabilitation Act use the term “qualified individual with a disability.”

B. According to Southeastern Community College v. Davis, a person “is a qualified individual with a disability if the person is able to meet all … requirements in spite of his

It’s

Cihon/Castagnera, Employment & Labor Law, 7e Ch 10

disability.”

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C. The ADA defines “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” When determining what the essential functions of a job are, the court or the E.E.O.C., which administers and enforces the ADA, is to give consideration to the employer's judgment.

D. The employer determines what the essential functions of the job are. If there is a written job description, it is to be considered evidence of the essential functions of the job.

E. Application or qualification for Social Security disability benefits does not disqualify one from eligibility for ADA protection. See Cleveland v. Policy Management System.

*Qualified Individual with a Disability: An individual with a disability who is able to perform, with reasonable accommodation, the requirements of the job in question, despite disability.

III. Definition of Disability

The ADA defines disability very broadly.

A. It includes "(a) a physical or mental impairment that substantially limits one or more of the major life activities; (b) a record of such an impairment; or (c) being regarded as having such an impairment."

IV. ADA Amendments Act (ADAA)

A. The ADA was amended, effective Jan 1, 2009. The definition of disability is to be construed broadly. Major life activities include a host of activities and bodily functions controlled by the autonomic nervous system.

B. “Regarded as having an impairment” can be established if the employee can show that the employer treats the employee as though the employee has a physical or mental impairment, regardless of whether the employee actually has an impairment.

C. The Americans with Disabilities Act Amendment Act (ADAAA) nullifies the prior Supreme Court decisions in Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

D. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. Also, impairments that are episodic or in remission still count as disabilities under the ADAAA. The court is not to take into consideration any steps that might lessen the effects of the disability, other than eyeglasses or contact lenses.

E. Employees who use illegal drugs are not protected by the ADA, nor are alcoholics who use alcohol at their workplace, or who are under the influence of alcohol at the workplace.

F. Individuals who are former drug users, or recovering drug users, including those persons participating in a supervised rehabilitation program, and individuals "erroneously regarded" as using drugs, but who do not use drugs, are protected under the ADA.

G. Disability includes infection or contagious diseases, unless the disease presents a direct threat to the health or safety of others and that threat cannot be eliminated by reasonable accommodation.

H. Temporary or short-term non-chronic conditions, transitory (lasting 6 months or less) are not considered disabilities.

Cihon/Castagnera, Employment & Labor Law, 7e Ch 10

Instructor’s Manual 3

CASE 10.1 CHALFANT v. TITAN DISTRIBUTION, INC.

475 F. 3d 982 (8th Cir. 2007)

Background: Chalfant worked at Quintack as a second shift supervisor. Titan Distributing took over operations at Quintack. All Quintack employees were required to reapply for their jobs. Chalfant reapplied and underwent a physical examination. He was cleared to drive a forklift. Chalfant self identified as disabled, due to a prior history of heart bypass surgery, arthritis, and carpal tunnel surgery. He was initially informed that he would be hired by Titan, but subsequently informed him that he was not eligible due to having failed the physical. Chalfant subsequently took a job, at another company, requiring more physical demands than the second shift supervisor job he was performing.

Issue: Has Chalfant demonstrated sufficient evidence to establish that Titan regarded him as disabled under the ADA.

Decision: Yes. Titan mistakenly believed that Chalfants’s physical ailments substantially limited his ability to work in a broad range of jobs. Titan had knowledge of his medical history because of his selfreport. The physician who administered the physical did not say that Chalfant failed the test. Chalfant was already performing the job for which he applied, without problem. Additionally, Titan’s inconsistent behavior in first offering then denying the job lends credibility to the claim that Titan knew it might be acting in violation of federal law.

V. Medical Exams and Test

A. The ADA limits the ability of an employer to test for or inquire into the disabilities of job applicants and employees.

B. Employers are prohibited from asking about the existence, nature, or severity of a disability.

C. An employer may ask about the individual's ability to perform the essential functions and requirements of the job.

D. Employers are not permitted to require pre-employment medical examinations of applicants; but, once a job offer has been extended to an applicant, they can require a medical exam, provided such exam is required of all entering employees.

E. Current employees are similarly protected from inquiries or exams, unless those requirements can be shown to be "job-related and consistent with business necessity.”

F. In Kroll v. White Lake Ambulance Authority, 1 the U.S. Court of Appeals for the Sixth Circuit listed several factors to be considered in determining whether a procedure or test is a medical examination.

G. The EEOC defines “medical examination” as “a procedure or test that seeks information about an individual's physical or mental impairments or health.”

H. The ADA does not consider a drug test to be a medical examination, and it does not prohibit an employer from administering drug tests to its employees or from making employment decisions based on the results of such tests.

1 2012 WL 3590284 (6th Cir. Aug. 22, 2012). The court held that a requirement that an employee undergo mental health counseling as a condition of continued employment could be considered a medical examination under the ADA.

Cihon/Castagnera, Employment & Labor Law, 7e Ch 10

VI. Reasonable Accommodation

Instructor’s Manual 4

1. Employers are required to make reasonable accommodation to an otherwise qualified employee's or applicant's disability unless it would impose undue hardship. Failure to make reasonable accommodation that would not impose undue hardship is included in definition of illegal discrimination under the ADA.

2. Reasonable accommodation includes, in part, minimal realignment of job duties, schedules, modifying equipment, or provision of assistance devices. What constitutes reasonable accommodation is to be determined on a case-by-case basis. Generally, the accommodation is based on the employee’s need and the employer’s resources. The more resources available to the employer, the higher the obligation is on the employer’s part.

3. The ADA sets out a number of factors to be considered to determine whether the accommodation would impose undue hardship.

a) Extended leave beyond that allowed by the Family Medical Leave may be a reasonable accommodation, if it does not create an undue hardship.

b) An employer is not required to violate a collective bargaining agreement, in order to provide an accommodation, however there may be exceptions.

CASE 10.2 HUMPHREY v. MEMORIAL HOSPITALS ASSOCIATION

239 F. 3d 1128 (9th Cir. 2001)

Background: Humphrey was a medical transcriptionist. Due to an obsessive-compulsive disorder, she developed morning rituals that caused her to be chronically late for work. Once officially diagnosed with the disorder, the employer offered her a reasonable accommodation of a flexible workday. However, Humphrey was unable to avoid being late to work, even under the flexible schedule. Humphrey requested that she be allowed to work from home, as other persons in her job category were. She was denied based on her record of tardiness and absences. Eventually, she was fired. Upon termination of her employment she requested a leave of absence and was denied.

Issue: Did Memorial Hospital Association violate the ADA by refusing to accommodate Humphrey’s disability?

Decision: Yes. An employer has an obligation to actively engage in a process to determine an appropriate accommodation. This is an ongoing obligation, and not satisfied by the first offer of accommodation, especially when it is apparent that the offered accommodation is not sufficient to meet the employee’s needs. The employer allows other transcriptionists to work from home; therefore working from the office is not an essential function of the job. Humphrey’s request to work from home was unreasonably denied because it was based on her attendance record, which was negatively affected expressly due to her disability. Additionally, the employer did not offer any suggestion, but merely summarily rejected her request.

ANSWERS TO CASE QUESTIONS

HUMPHREY v. MEMORIAL HOSPITALS ASSOCIATION

239 F. 3d 1128 (9th Cir. 2001)

1. Her disability interfered with her ability to leave her house, thus making her late or absent for work. Humphrey was otherwise qualified because she possessed the skills to perform the essential function of the job, which was medical transcription.

Cihon/Castagnera, Employment & Labor Law, 7e Ch 10

Instructor’s Manual 5

2. The initial accommodation was a flexible work schedule. This was not effective because Humphrey continued to be late and absent.

3. Humphrey requested to work from home. She was denied because working from home was a privilege granted to employees with clean disciplinary records. Her disciplinary record was not clean due to the tardiness and absences caused by her disability.

4. The decision to terminate her employment was a violation of the ADA because the employer did not engage in a process to identify a reasonable accommodation that would not create an undue hardship. It offered only one type of accommodation, which was not effective. It refused to offer a subsequent accommodation that would not have created an undue hardship, and did not offer any other alternatives.

c) Whether or not an employer must allow an employee to work from home is dependent on the situation. Generally, if the employee requires supervision, to work in a team, or the work is not conducive to being done at home, the courts will not require this accommodation. However, as technology changes, this, too, may change.

B. Undue Hardship*

1. An employer need not make an accommodation that creates an undue hardship. The question of what constitutes an undue hardship has a complicated answer. The touchstone is the impact on the employer. If the accommodation requires significant difficulty or expense, these factors are measured against the overall financial of the company, the type of business it is, and the type of operations involved.

*Undue Hardship: An accommodation that requires significant difficulty or expense for the employer.

VII. Defenses under the ADA

A. The ADA sets out four other possible defenses for employers:

1. Direct Threat to Safety or Health of Others. Employers may refuse to hire or accommodate an individual where individual's condition poses a "direct threat" to the health or safety of others in the workplace.

a) "Direct threat" is defined as a "significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."

b) The definition of disability under the ADA includes infectious or contagious diseases; in determining if such a disease presents a direct threat to others, the employer's considerations must be based on objective and accepted public health guidelines, not on stereotypes or public attitudes or fears.

2. Job-Related Criteria. Employers may hire, select or promote individuals based on tests, standards, or criteria that are job-related, consistent with business necessity, and that performance of the job cannot be accomplished by reasonable accommodation.

3. Food Handler Defense. An employer in the food service industry may refuse to assign or transfer to a job involving food handling any individual who has an infectious or communicable disease that is transmitted to others through the handling of food and cannot be eliminated by reasonable accommodation.

a) The ADA requires Secretary of the Federal Dept. of Health & Human Services to develop a list of diseases that can be transmitted through food handling. Only those diseases on that list (which is to be updated annually) may