by on February 19, 2012 Leave a Comment

Has the EEOC gone too far?

In an informal discussion letter, http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html , the EEOC said that using high school graduation as an automatic cut off for a job could lead to a situation where persons with disabilities are able to successfully claim that the requirement is unlawfully screening them out from the position since for a variety of reasons some persons with disabilities simply cannot obtain the high school diploma. This letter was expanded upon in a recent question-and-answer guidance, http://www.eeoc.gov/eeoc/newsroom/wysk_high_school_ada.cfm .

The question is whether the EEOC has gone too far. An argument can be made that it has.

EEOC in their informal discussion letter based their decision on the Code of Federal Regulations. The applicable Code of Federal Regulations say that selection criterion that screen out individuals or class of individuals on the basis of disability must be job-related for the position and consistent with business necessity. It also says that a qualification standard is job-related and consistent with business necessity if it accurately measures the ability to perform the jobs essential functions (fundamental duties). Finally, even where a challenged qualification standard, test, or other selection criterion is job-related and consistent with business necessity, it screens out a person on the basis of disability, the employer must also demonstrate that the standard or criterion cannot be met and the job cannot be performed with a reasonable accommodation. From this, the EEOC letter concludes that using high school graduation as a requirement for certain jobs may unlawfully screen out persons with disabilities. Therefore, the employer should figure out another way to ensure that all persons have a right to access that job.

My thoughts are as follows:

1. There can be no quibble with the regulations cited by EEOC. Regulations and rules promulgated by federal agencies or state agencies go through a very specific commenting process before becoming finalized. As such, once they are finalized they become part of the legal landscape and courts have to take them very seriously, assuming those regulations are within the authority of the agency in the first place. This particular discussion letter from the EEOC and its subsequent question-and-answer guidance are not regulations of any sort. Accordingly, the courts have almost complete flexibility as to how persuasive such a letter may be when reviewing a case. This flexibility is even more so if an argument can be successfully made, which we will see is possible in this case, that the agency has exceeded the authority of the law in its position.

2. The EEOC focuses on the essential functions of the job and whether a high school degree is necessary to perform them. However, the EEOC does not seem to be paying as much attention to the complete definition of otherwise qualified under title I of the ADA. In order to be protected under the ADA, you both have to have a disability and be otherwise qualified. For purposes of title I, otherwise qualified defined as where a person with a disability satisfies the requisite skill, experience and education requirements (emphasis added), of the position and can with or without reasonable accommodation perform the essential functions of the job. 29 C.F.R. § 1630.2(m). Clearly, from the EEOC’s own regulations, education can be an essential eligibility requirement.

3. If the EEOC is saying that an essential education requirement really should be essential, then there is no problem with that. That is much the same as saying you shouldn’t have a 60 words per minute typing speed requirement when 45 words per minute will do. Therefore, an employer would be well served by analyzing their jobs to ensure that a high school degree is indeed necessary for the jobs that the employer demand such a degree for.

4. It is curious that an individual with a disability would find it impossible to achieve a high school diploma. If reasonable accommodations are being made under title II of the Americans With Disabilities Act or the person is subject to the Individual Disabilities Education Act, one wonders why the accommodations would not be available so as to enable a person with a disability to get that high school diploma. Unless, it is a situation where even with accommodations under whatever law is applicable (ABA, 504, IDEA), the person still could not receive the high school diploma (a person with intellectual disabilities perhaps), in which case the diploma granting authority would be under no obligation to grant it.

5. It is hard to fathom why it is the employer’s responsibility to require the applicant to demonstrate that disability actually prevents the applicant from meeting the requirement. After all, the entities giving students high school diplomas are subject to federal antidiscrimination laws and they should be making the necessary accommodations to ensure that that student is given the best opportunity to obtain that diploma. This leads to another question which is whether the EEOC is making new law here. They claim that they are not. However, an argument can be made that they are. That is, if an employer reasonably believes that a high school diploma is an essential requirement for the particular job, asking the employer to ignore that requirement is akin to asking that employer to modify or waive an essential eligibility requirement, which they do not have to do. For example, case law exists saying that a governmental entity does not have to change the essential eligibility requirements for its programs to accommodate a person with a disability. Such a change would fundamentally be altering the nature program and is not required by the Americans with Disabilities Act.

6. The reference to the nursing assistant case in the EEOC question-and-answer is interesting because it creates the question as to why the individual referenced could not get the GED degree even with reasonable accommodations.

7. In determining essential functions of a job, the EEOC says in the regulations that they will look to several factors, including the employer’s judgment. One wonders why insisting on an educational credential would not be within the employer’s judgment.

So what does this all mean?

1. An employer should evaluate whether the jobs requiring a high school diploma do indeed actually require a high school diploma for the essential functions of the job to be performed. If those jobs do not require high school diploma to perform the essential functions, then it is recommended that the employer get rid of the high school diploma requirement or treat the high school diploma requirement as something that could be satisfied in another way (akin to waving a marginal function of the job). If a high school diploma is required, then the employer is faced with a choice. Do they want to assume that the EEOC view here will carry the day or do they want to argue that a high school diploma is an essential eligibility requirement and it therefore, is not something that the ADA mandates an employer waive. If the employer does not adopt the EEOC view, there may be litigation that follows. However, the employer could well be within their rights under the law to take this position especially if they have done an analysis and have determined that a high school degree is necessary for the essential functions of that particular job to be performed.

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Filed Under: General, Title I
by on February 9, 2012 Leave a Comment

Ripped from the headlines: direct threat

http://articles.philly.com/2012-02-08/news/31038138_1_hiv-positive-safety-of-other-students-admission

The above link involves the AIDS Law Project of Pennsylvania filing a suit in Philadelphia in December arguing that a boarding school discriminated against an HIV-positive teenager who applied to a school that served low-income families. The school is a residential boarding school. The teenager appeared to meet the initial minimum qualification for admission. After the school learned the teenager was HIV-positive it discontinued processing the application, which led to the lawsuit. The school claims that their denial is justified because the teenager poses a direct threat. However, the AIDS Law Project of Pennsylvania says that the school failed to make an individualized assessment as to whether the teenager was a direct threat.

The first question is whether the school is subject to the Americans With Disabilities Act at all. Clearly, it is as places of education are places of public accommodation under title III of the Americans With Disabilities Act.

In dealing with this case, what kind of things will the court need to be thinking about? First, they are going to have to think about the concept of direct threat. Direct threat comes from the Supreme Court case of School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). That case considered whether a teacher with tuberculosis was a direct threat to the kids she taught. The Supreme Court said that whether a person is a direct threat depends upon: the nature of the risk; the duration of the risk; the severity of the risk; and the probability the disease will be transmitted and will cause varying degrees of harm. Id. at 288. In Chevron USA Inc. v. Echazabal 536 U.S. 73 (2002) the Supreme Court extended this concept to being a direct threat to self. In Chevron, the United States Supreme Court noted that where a direct threat defense is claimed, you have to meet a fairly compelling standard. Id. at 85-86. That is, the direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Id. at 86. Furthermore, the assessment of direct threat must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job ( Chevron was an employment case). Id. The Department of Justice is responsible for enforcing title III of the Americans With Disabilities Act and their regulation is very similar to what is described here. In particular, in determining direct threat, one must look to the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. The direct threat assessment must be based upon reasonable judgment relying on current medical knowledge from the best available objective evidence and must be based on an individualized assessment. 28 C.F.R. 36.208.

It is very hard to say how this case is going to work out. On the one hand, you have to be sympathetic to the school’s concerns. For example, the school would be prohibited by HIV confidentiality laws from disclosing the teenager’s disability to others. On the other hand, in the United States, there are people with HIV who don’t even know they have it and the school is probably not screening all of its students for HIV. Also, a person with HIV even prior to the ADAAA, and certainly now, is a person with a disability. Finally, what is very curious about the facts described in the link above is the allegations that an individualized assessment was not made. While Chevron was an employment case, there is no reason to believe that even in the title III context an individualized assessment would not be required, certainly the Department of Justice, no doubt basing its view on the Supreme Court decisions mentioned above, believes so.

Therefore, what can we expect going forward. It wouldn’t be surprising if an individualized assessment was ordered in light of the Supreme Court decisions and the Department of Justice regulations. Even so, once that assessment is ordered, assuming it is, the party could well be in the same exact place that they are now with the plaintiff alleging discrimination and the school alleging direct threat that cannot be mitigated with reasonable modifications of policies, practices, or procedures of the school. This case bears closely following in the future.

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Filed Under: Federal Cases, Final Federal Regulations, Title I, Title III
by on February 5, 2012 Leave a Comment

Affirmative-action and people with disabilities

The promise of the Americans with Disabilities Act was that it would improve the workforce participation of persons with disabilities. It hasn’t happened. Therefore, the federal government is beginning to go further. Recently, the Office of Federal Contract Compliance Programs issued proposed regulations mandating affirmative-action for persons with disabilities for every government contractor that has 50 or more employees in a contract of $50,000 or more. They also amended the nondiscrimination rules so as to be consistent with the Americans with Disabilities Act Amendments Act. The nondiscrimination rules apply to all government contracts and subcontracts in excess of $10,000 for the purchase, sale or use of personal property or nonpersonal services (including construction). Nonpersonal services include, but is not limited to: Utility, construction, transportation, research, insurance, and fund depository.

A detailed look at the proposed regulations would be way beyond the scope of this blog. However, we can highlight.  First, the proposed regulations are divided into five parts, A-E plus an appendix . Part A, B, D, E , and the appendix apply to everyone (government contractors in excess of $10,000). Part C, the affirmative-action obligations, as noted above , only applies to government contractors with 50 or more employees in a contract of $50,000 or more. Second, the substantive changes in the regulations are really straightforward. The changes are made to be consistent with the Americans with Disabilities Act Amendments Act and will not be a surprise to anyone familiar with the regulations implementing that act issued by the Equal Employment Opportunity Commission. Third, the proposed regulations only apply to employment activities within the United States and not to employment activities abroad. Finally, a mandated equal opportunity for workers with disability statement must be used and must be in the form required by the Office of Federal Contract Compliance Programs. Interestingly enough, the very first paragraph of that form uses language that was in the Americans with Disabilities Act and was stricken from the Americans with Disabilities Act as amended. More specifically, the first paragraph of this statement says, “the contractor will not discriminate against any employee or applicant for employment because (emphasis added) of physical or mental disability…” However, the Americans with Disabilities Act Amendments act deleted the word, “because” in favor of, “on the basis of.” The difference is more than academic as the change to, “on the basis of” allows for the argument that a plaintiff may be able to use the mixed motive line of attack in a case. Whereas, the, “because” language has been held to prohibit a plaintiff from being able to use the mixed motive line of attack. See Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (Seventh Circuit 2010). Hopefully, in the final regulation, the office of Federal Contract Compliance Programs will see the error and use, “on the basis,” especially since they use, “on the basis” as the standard in another part of the proposed regulation.

For those contractors subject to the affirmative-action rules, what used to be encouraged, is now required and then some. Some of the highlights include. First, a government contractor subject to the affirmative-action requirements will now have to do an annual survey of employees with disabilities.

Second, they are mandated to take affirmative-action to advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.

Third, that information collected is to be in the data analysis file and not in other places. Fourth, while affirmative-action is mandated, the process must ensure that individuals with disabilities are not stereotyped. This is not a small concern. Back in college, I did work for the state of Illinois with respect to section 504 to Rehabilitation Act and was involved in assessing whether the affirmative-action program was working. What we found was that the program was not working because when a person saw that a person had a disability on their form, they immediately went into stereotype mode and wrote the person with a disability off. That was many years ago and society was different. Hopefully, the same issues would not arise now and an affirmative-action program can be set up to get around that problem.

Fourth, The Office of Federal Compliance Contract Programs mandates that the personnel process contain various steps, such as but not limited to a written notification of any rejection and an annual review of essential functions with respect to any physical and mental requirements so as to ensure those requirements are specific to a particular job and that they are job-related and consistent with business necessity.

Fifth, a governmental contractor subject to the affirmative-action requirements has the obligation to activate the ADA. That is, the way it typically works is an employer only has to make a reasonable accommodation once they have been notified (it can be complex at what notify might mean). However, here an employer has the affirmative obligation, if it is reasonable to conclude that a disability is getting in the way of performance problems, to notify the employee of the performance problem and inquire whether the problem is related to the employees disability. If the employee says yes to that question, the contractor must confidentially inquire whether the employee is in need of a reasonable accommodation.

Sixth, electronic or online job application systems must be compatible with assistive technology (such as screen readers and voice dictation).

Seventh, an employer subject to the affirmative-action requirements, must consider an applicant with a disability for any available position they qualify for within the company when the position that they did apply for is unavailable.

Eighth, specific data collection requirements are mandated and minimum requirements for reasonable accommodation procedures are set forth.

Ninth, time frames are set forth for processing reasonable accommodation request.

Tenth, utilization goals are set. That is a percentage, 7 %, is set as a goal for the government contractor to meet with respect to persons with disabilities being in their workforce. Furthermore, it is broken down by specific jobs rather than an aggregate.

Eleventh, employers subject to the affirmative-action requirements, are encourage to voluntarily develop and implement programs that provide priority consideration to individual disabilities in recruitment and/or hiring. The office of Federal Contract Compliance Programs says that such a system could include assigning a weighted value or additional points to job applicants who self identify as being an individual with a disability. Such a point system is very interesting in light of the United States Supreme Court decision finding that the University of Michigan undergraduate program violated the U.S. Constitution with such a point system with respect to racial preferences. That said, this particular issue would be extraordinarily complicated with respect to persons with disabilities as it would deal with terms of the Americans with Disabilities Act itself, which specifically say that reverse discrimination suits aren’t going to work, and with the very confusing way persons with disabilities are classified for purposes of the equal protection clause of the United States Constitution. Also, interestingly enough disability-related information from the applicant and/or employee self identification request can be used by the employer to help figure out who would benefit from a priority consideration program. This is also very interesting because it is a very complex question for a person with a disability as to when they will disclose their disability as part of the hiring process.

Finally, the proposed regulations have provisions in there for dealing with what must be in the complaint, a process of conciliation, and when a show cause order will be sought by the Solicitor of Labor with respect to any enforcement proceedings.

Again, none of this is meant to be all-inclusive (the proposed regulation goes on for 45 pages). Also, keep in mind that these regulations are just proposed in the final regulation may change some. However, this is a start. Anybody needing specific advice on this should seek competent legal counsel.

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Filed Under: Proposed Federal Regulations, Title I
by on February 1, 2012 Leave a Comment

Disability related inquiries, conditional job offers, medical exams, and drug testing

It is really important to know that the Americans with disabilities act deals with disability related inquiries, medical exams and drug testing in very distinct ways. Basically the way it works, is that disability related inquiries and medical exams prior to a conditional job offer are prohibited, though you can address essential functions of the job. Everything is on the table after a conditional job offer. For example, an employer can make a conditional job offer subject to the person taking the physical. However, if employment is denied to an individual based on that exam, that denial must be job-related and consistent with business necessity and the performance of the job must not be able to be accomplished with reasonable accommodations. If the person is already an employee, the employer has the right to insist on a medical exam providing it is job-related and consistent with business necessity. Drug testing is okay. Finally, the ADA requires that medical information obtained on an employee or a prospective employee be kept confidential.

You do not want to confuse any of this. If you do, you may wind up in legal liability. In Harrison v. Benchmark Electronics Huntsville, Incorporated, 593 F.3d 1206 (11 Cir. 2010) an employer wound up raising a question of fact as to whether the employer had turned a permissible drug test and conditional job offer subject to a physical into an impermissible disability related inquiry. In this case, the plaintiff was a temporary employee. The company had a practice of screening temporary employee for potential permanent employment. The plaintiff was encouraged to apply for employment and consented to a drug test. The plaintiff was a lifelong epileptic and took barbiturates to control it. When the drug test came back positive, he was asked to explain in detail to the medical review officer with his supervisor in the room why the drug test came back positive. He did so stating that he had had epilepsy since he was two years old and took barbiturates to control it. He also stated the amount of the dosage and answered a series of questions. During that meeting, the supervisor he worked with as a temporary employee and desired to work for as a permanent employee was in the room as well. After this conversation, things went from bad to worse. The plaintiff did not get the job and subsequently sued the company.

In reversing the trial court awarding summary judgment to the defendant (summary judgment is where the court decides who wins or loses without going to a jury trial because it believed there is no genuine issue of material fact and can decide the case on the law), the court held a few things that are important here. First, a person does not have to have a disability under the Americans with Disabilities Act to be able to pursue a claim that the prohibition on disability related inquiries made prior to employment was violated (EEOC using prior amendments act rules had found that the plaintiff did not have a disability).. Second, a private cause of action exists for violation of the prohibition on preemployment disability related inquiries. Finally, a drug test is okay, but in this situation, a question of fact existed as to whether the drug test morphed into a prohibited preemployment disability related inquiry because the additional series of questions in the context that they occurred in were questions that were likely to elicit information about disability.

So where does this leave things:

First, this case illustrates the principle that the permissibility of disability related inquiries are very much dependent upon when they occur and that each opportunity to use disability related inquiries has its own set of rules with that and they should be observed.

Second, you should bulletproof your hiring process from disability related inquiries. For example, recently in the Chronicle of Higher Education a person noted that they used personality testing as part of the hiring process (from the article, it seemed pretty clear that it was done preemployment and not part of a conditional job offer). It is entirely possible that the questions in that personality testing were either questions likely to elicit information about a disability and therefore prohibited prior to a conditional job offer, or, alternatively, depending on how the questions were scored and by whom, were an impermissible preemployment medical exam.  For instance, many years ago, I had the opportunity to review a personality test. That test had questions on it such as, “are you frequently sad”.  A question like that could well elicit information about a person with clinical depression. Therefore, if you want to use such things as personality test as part of the hiring process, you would want to go over each question on that test to see if there any questions likely to elicit disability related information. If so, you might want to eliminate those questions. Of course, limiting those questions might jeopardize the tool itself. In that situation, the employer would have a choice as to whether it wants to risk ADA liability utilizing a tool with disability related inquiries in it or junk the test to prevent an issue of ADA liability.

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Filed Under: Federal Cases, Title I
by on January 24, 2012 Leave a Comment

Licensing regulations and the Americans With Disabilities Act

http://www.nytimes.com/2011/12/24/nyregion/taxi-fleet-in-new-york-is-inadequate-for-wheelchair-users-judge-rules.html

Recently, at the above link, the New York Times reported that a federal judge ruled that the city of New York must start approving medallions so that more taxis were wheelchair accessible. After reading the article, I decided to go to the case itself, Noel V. New York City Taxi and Limousine Commission, 2011 WL 6747466 (S.D. N.Y. December 23, 2011). In this case, the plaintiffs sued the New York City Taxi and Limousine Commission because their regulations were not set up to approve a sufficient number of taxis that were wheelchair accessible. Interestingly enough, the Commission defended on the grounds that title II of the ADA did not apply to them. There were two possible ways title II could apply.  First, there is a section of title II that applies to public entities operating a demand responsive system. Second, and more common, is that title II demands that governmental entities be accessible to persons with disabilities. With respect to the first issue, the court decided that the Commission was not operating a demand responsive system (which would have required that each and every taxi be wheelchair accessible), and therefore, the provisions of the Americans with Disabilities Act pertaining to a demand responsive system did not apply. However, the court did find that the Commission was a public entity subject to title II of the Americans with Disabilities Act, and therefore, its operations must be accessible to persons with disabilities. The Commission admitted that it had both the ability and authority to provide more wheelchair accessible vehicles but simply had chosen not to do so. Therefore, only 232 taxi cabs in New York out of 13,237 were accessible to individuals using wheelchairs. The court held that the Commission did not provide meaningful access to this public benefit. Therefore the court ordered that the Commission to propose a comprehensive plan that provides meaningful access to taxi services for passengers using wheelchairs. The plan must include targeted goals and standards as well as anticipated measurable results. Furthermore, until such a plan was proposed and approved by the court, all new taxi medallions sold or new street hail livery licenses or permits issued by the Commission must be for wheelchair accessible vehicles. No doubt this is a great victory for persons with disabilities.

However the question becomes where did the “meaningful access” standard come from? That, is an interesting story. Noel relies on another case, Henrietta D v. Guilani, 119 F. Supp. 2d 181 (E.D.N.Y. 2000), where the court held that a city program that provided federal and state benefits for individuals suffering from AIDS was run in such a way that the beneficiaries of that program lacked meaningful access to it. This decision relied on Alexander v. Choate, 469 U.S. 287 (1985), a Rehabilitation Act case, which upheld a Tennessee reduction of annual inpatient hospital days that the Tennessee Medicaid program would pay. It is there that the, “meaningful access” phrase first appears. It appears in the context of saying that the reduction in hospital stays is a neutral decision and does not impact upon whether a person with a disability had meaningful access to the program. Therefore, one can see that in Noel the term, “meaningful access” is being used quite a bit differently than what it had been used in prior case law.

What does this all mean? It is very strange in a way. The Commission never argued at the lower level that summary judgment should be denied because a question of fact existed as to whether the program and activities of the Commission were accessible to persons with disabilities or whether there were other ways that could be formulated so that the program and activities of the Commission could be accessible to persons with disabilities, wheelchair users in this case. Perhaps, an appeal might claim that the lower court did not apply the proper legal standard (that is, “meaningful access” is being used in this case in a way different than existing precedent, and therefore, the argument goes that an appellate court should send the case back down with the correct legal standard, whatever that may be).

At any rate, a deceptively complex case, that bears following in the future. It also serves notice on regulatory bodies that their regulations should be formulated in such a way that they do not have a disparate impact on (screen out) persons with disabilities. Failure to do so, could subject the agency to a title II suit along the lines described here.

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Filed Under: Title II
by on January 17, 2012 Leave a Comment

Laws do not exist in a vacuum (FHA v ADA, FMLA v ADA)

One of the things that’s easy to do is forget that laws do not exist in a vacuum. On the employment side, you see this all the time. For example, under the Americans with Disabilities Act, the critical question is whether a person can perform the essential functions of the job with or without reasonable accommodations. However, let’s say that that person takes leave to deal with a serious medical condition under the Family and Medical Leave Act. When seeking to come back, the employer can require that the person be certified as being able to come back. However, that analysis of whether the person can come back after family and medical act leave, specifically does not talk about whether the person can do the essential functions of the job with or without reasonable accommodations. Therefore, as I have written in the past, an employer might make the mistake of saying well you can’t come back from family and medical leave because you are not certified, but under the Americans with Disabilities Act that person could do the job with or without reasonable accommodations. In that situation, the employer might be satisfying the terms of the Family and Medical Leave Act but at the same time be violating the Americans with Disabilities Act. Of course, I am assuming that the person for purposes of this discussion that the person has a disability under the Americans with Disabilities Act.

A similar issue exist with the Americans with Disabilities Act and the Fair Housing Act. Final regulations implementing title II and title III of the Americans with Disabilities Act make it quite clear that service animals are restricted to trained dogs, and while trained miniature horses are not considered service animals, they count as well. However, what if you have a student in a dormitory that uses an animal to accommodate a disability and that animal is not specially trained? In that eventuality, does the college have to allow that animal? Only the courts will know for sure. However, it may well depend upon whether the Fair Housing Act is involved or the Americans with Disabilities Act is involved. Cases do hold that the Fair Housing Act applies to rooms in a college dormitory. Thus, a college that says no to an animal that is neither a service animals under the Americans with Disabilities Act nor a trained miniature horse with respect to that student’s ability to effectively access his or her dormitory room, may or may not be okay under the Americans with Disabilities Act but may well run into problems under the Fair Housing Act.

A case that illustrates the difference between the Americans with Disabilities Act and Fair Housing Act is Fair Housing of the Dakotas Inc. v. Goldmark Property Management, Inc., 778 F. Supp. 2d 1028 (D. North Dakota 2011). In that case, Goldmark property management Incorporated had a policy whereby they waived additional fees regarding people who had specially trained assistance animals but would not waive those fees with respect to people who did not have trained assistance animals, but who did have other animals that were used to accommodate their disabilities. The people who did not have specially trained animals but needed other animals to accommodate their disabilities filed a claim against the defendant arguing that the policy violated the Fair Housing Act. In agreeing with the plaintiff that a disparate impact claim could survive a motion for summary judgment, the court noted as follows. First, the court recognized that the Americans with Disabilities Act implementing regulations focused on service animals and the specialized training that they need. However, the Fair Housing Act does no such thing. Second, the court noted that the Fair Housing Act, which applies to dwellings, and the Americans With Disabilities Act, which applies to employment, accessing governmental entities, and places of public accommodations have different purposes (one to help a person live in their home and the other to accommodate a person out in the world) and therefore, it wouldn’t be unexpected that different rules would cover the different situations. Third, the Department of Justice has specifically said that while emotional support animals do not qualify as service animals under the Americans with Disabilities Act regulations, they may nevertheless qualify as a reasonable accommodations for persons with disabilities under the Fair Housing Act. Finally, the Department of Housing and Urban Development has made it clear in its regulations that the Fair Housing Act applies to support and therapy animals in addition to service animals as defined in the Americans with Disabilities Act regulations. The court then went on to say that the plaintiffs had satisfied what was necessary to defeat a summary judgment motion.

The purpose of this discussion is not to give to give a treatise on the fair housing act. Rather, the purpose of this discussion it to illustrate that the same factual scenario may give rise to multiple causes of action with different rules.

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Filed Under: Federal Cases, Final Federal Regulations, Title I, Title II, Title III
by on January 12, 2012 1 Comment

I wanna be a lifeguard with apologies to blotto

Keith v. Oakland County, 2011 WL 3862329 (Eastern District of Michigan September 1, 2011), is a fascinating case containing several very important points. In this case, a deaf person trained to be a lifeguard. During the training process he received a variety of accommodations and was able to complete the training successfully. However, when he applied for an actual lifeguard job with Oakland County, he was given a conditional job offer and had to take a physical. At the physical, the doctor stopped the exam once he knew the person was deaf and said that deaf people cannot be a lifeguard. Oakland County then investigated the matter further in conjunction with consultants and decided that this particular individual could not be a lifeguard and withdrew the offer. Keith, the plaintiff, then sued alleging violation of the Americans With Disabilities Act. The key question faced by the court was whether the plaintiff was otherwise qualified for the job. That is, could the plaintiff perform the job’s essential functions with or without reasonable accommodations.

In granting summary judgment for Oakland County, the court reasoned as follows. First, the Dr. who examined the plaintiff as part of the physical subsequent to the conditional job offer messed up by not making an individual analysis of the plaintiff and just jumping to a general conclusion. Second, Oakland County did not mess up with regard to the way it followed up on the physical conducted by the Doctor because Oakland County then engaged in a very detailed analysis, including consulting with its consultants, regarding whether the plaintiff had the ability to do the essential functions of the job with or without reasonable accommodations.

Third, the court said that it was simply unreasonable to accommodate an individual by requiring an employer to hire an additional person to assist the individual in his or her job duties. Another way they said it, is that employers are not required to assign existing employees or higher new employees to either perform certain functions or perform the duties of a disabled employee’s job when that employee cannot perform those duties by virtue of his disability. It is this particular reasoning that is potentially very troublesome. It implies that an employer may well be within their rights to just make an assumption that a person with a disability cannot do a particular job. Also, the statements are more nuanced than at first they may appear. Obviously, the Americans with Disabilities Act would not require that another person be the person responsible for performing the applicant’s job duties. However, accommodating the applicant is not the same as performing those job duties. For example, if the applicant is still the one processing the information, making the individual calls, and executing based on that information, then the individual that is communicating the information is not performing the job duties at all rather they are just passing along the information. Another issue is whether the accommodations would be such that the applicant would be a direct threat to himself or others but this was an issue that the court did not address or deal with. One wonders if the record could have been broadened upon denial of a summary judgment motion so that the necessary facts could be brought in to see whether the accommodation where such that they were in essence enabling someone to do another person’s job or even with the accommodations the applicant would’ve been a direct threat. However, since summary judgment was granted, one it just left to wonder what future facts may have revealed.

What can we take away from this case? Three very important items. First, the mandate of the Americans with Disabilities Act to engage in individual analysis applies throughout the entire process. If Oakland County had just relied on the Dr. without doing its own independent detailed analysis, Oakland County would have been in trouble.

Second, there is a huge distinction between training for program or a job and then actually getting the job. I have seen situations whereby a program might say, for example, well since this person can’t be a lifeguard, we don’t have to accommodate them in the training to be a lifeguard. To Oakland County’s credit, they did not make this mistake. Their training was quite accessible and then when it came to the job, they reached a different conclusion.

Third, if you are an advocate for a plaintiff in this type of situation, you are going to have to be very aggressive to advocate that accommodating a person with a disability is not necessarily the same thing as hiring a person to do that person’s job. Facts are needed to establish whether the person is a conduit or whether that person is actually doing the person’s job. This is going to be critical or it could potentially lead to a situation that allow stereotypes to prevent persons with disabilities who are otherwise qualified from employment.

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Filed Under: Federal Cases, Title I, Title II
by on December 26, 2011 1 Comment

Commuting and the duty to accommodate

In tort law, there such a thing as the coming and going rule. That is, if an employee acts negligently while commuting to work or coming from work, the employer is not liable for those actions. The Internal Revenue Service has a similar rule. That is, you can’t take off your mileage when you are commuting to and from work. Would the same rule apply with respect to the duty to accommodate under the Americans With Disabilities Act?

In one of the blogs in my blogroll, I believe it was labor and employment law (not tx), there was a case whereby the Second Circuit Court of Appeals held that the duty to accommodate could expand to a person getting to and from work. In light of the rules in the first paragraph that seemed a little bit odd. Therefore, I went ahead and read that case, Nixon-tinkelman v. New York City Department of Health and mental hygiene, 434 federal appendix 17 (a decision not published in the federal reporter), but it turns out that there is little independent reasoning in that case. Basically, that case says they are relying on Lyons v. legal aid Society, 68 F.3d 1512 (second Cir. 1995). Therefore, I read the Lyons case and it is that case that we will talk about here.

In Lyons, an attorney who worked for legal aid Society of New York was severely injured upon leaving her parked car. As a result of those injuries, she underwent multiple surgeries. She was eventually able to return to work, though she had to use walking devices, wear a brace on her left knee, could not stand for extended periods, and could not climb or descend stairs without difficulty. She was simply unable to walk long distances either at one time during the course of a day and her general physical stamina was significantly less than normal. Before returning to work Lyons asked legal aid to accommodate her disability by paying for parking space near office and the courts in which she would practice. She said that she would not be able to take public transportation because such commuting require her to walk distances, climb stairs, and on occasion remain standing for extended periods of time thereby overtaxing her limited physical capabilities. Her physician provided legal aid a letter that said that the parking space was necessary to enable her to return to work. Legal aid informed her that they would not pay for parking space. Accordingly, Lyons spent $300-$520 a month (1990s dollars) representing 15 to 22% of her monthly net salary for a parking space adjacent to her office building. Legal aid claimed that it did not provide parking assistance for commuting to non-disabled employees and therefore accommodating Lyons in that way would be outside the scope of the federal disability statutes (Americans with Disabilities Act and rehabilitation act).

Legal aid’s claim about how it treats other employees with respect to parking spaces was thrown out by the court because it went beyond the face of the complaint and as such was not suitable for the basis of a dismissal for failure to state a claim. The court then proceeded to address whether reasonably accommodating a commute was reasonable under the Americans with Disabilities Act/rehabilitation act. The court turned to the legislative history which said that a qualified person with a disability seeking employment at a store located in inaccessible mall would be entitled to reasonable accommodations in helping them get to the job site. Also, the court mentioned that the EEOC in an interpretive guidance had said that required accommodations were not exclusive to those specifically listed in the statute and that accommodation might include making employer-provided transportation accessible and providing reserve parking spaces. In short, the court believed they could not throw out the suggested accommodation as a matter of law, rather it would come down to the typical ways you decide whether an accommodation is reasonable and that would be a question of fact. In sum, the court concluded that there was nothing inherently unreasonable given the legislative history and the view of agencies overseeing the federal disability statutes, to require an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work. It then became a question of whether legal aid could develop the factual record to show that the accommodation was unreasonable.

Will this case hold up? As noted above, the Second Circuit in August of this year followed this case. That said, the case seems counterintuitive in light of such things at the coming and going rule and the IRS view of commuting. Also, the legislative history mentioned by the court is capable of more than one meaning. For example, reasonably accommodating someone with respect to getting to a store in an inaccessible mall could be done in a variety of ways outside of stepping in with the commute. Also, the phrase “making employer-provided transportation accessible,” could be argued that it refers to a situation where the employer already provides transportation. Finally, “providing reserve parking spaces,” could be argued to apply to the situation where a parking lot need to have a certain number reserve parking spaces due to the architectural guidelines that must be followed. Also, the phrase, “making employer-provided transportation accessible and providing reserve parking spaces,” comes from an EEOC interpretive guidance. Such guidances do not go through the same rulemaking process and therefore, and courts have noted as such, are not given the same credibility when it comes to interpreting a statute as federal regulations would be.

In short, this is a fascinating case. It is going to take a variety of decisions from the appellate courts and perhaps a final answer from the US Supreme Court to figure out whether the duty to accommodate extends to the commute. As a result, how a particular entity reacts when faced with this situation will be an individual call with different risks associated with either decision (eg. concerns about precedent, willingness to litigate, the entities individual view about preventive law, and the jurisprudence in the controlling jurisdiction).

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Filed Under: Federal Cases, Title I
by on December 18, 2011 4 Comments

full return to work R.I.P.

Are full return to work policies kosher? A full return to work policy is a policy that says you cannot come back to work unless you are 100%. It is commonly seen in workers compensation areas. I have written for years that this policy is very problematic under the Americans with Disabilities Act. But what do the cases say? A case that just came down from the Seventh Circuit on December 15, 2011 is very instructive. The case is Powers v. USF Holland Incorporated, docket number 07CV 246 (seventh Cir. December 15, 2011).

 

In this case, the plaintiff was a  long-haul truck driver who injured his back while driving his truck . Following a workers compensation leave, he successfully returned to work as a long-haul truck driver and worked without incident for two years . As the birth of his child neared, he asked to switch to being a city driver .  After the switch, he began having problems with his back due to the physical requirements of the city driver position and asked to switch back . However the collective bargaining agreement did not allow for another change within the year so the employer denied the request. The plaintiff then took a medical leave of absence and later tried to return to work as a long-haul driver presenting the employer with a medical release that limited him to road driver work and limited dock work. The employer would not allow him to return saying that it needed clarification on his medical restrictions and that he could not return to work as a truck driver  unless the employer received a medical release without restrictions.  The plaintiff then sued alleging violations of the Americans with Disabilities Act because of the 100% healed policy.

This is a case that turned on the rules that were in existence before the ADAAA went into effect . The result of which is that the court found that the plaintiff did not have a disability under those rules .  What is important for our purposes is that the court spent significant time talking about 100% healed policies and how they play out under the Americans with Disabilities Act and how they might play out under the Americans with Disabilities Act as amended . The court noted that while 100% healed policies may be problematic under the Americans with Disabilities Act and under the ADAAA, the person who is making those allegations has to be a person a disability first .  Since the plaintiff was found not to have a disability, the plaintiff did not have the ability to allege that the hundred percent healed policy violated the act .  However, the court noted that it would be a different story if the plaintiff was actually disabled .

But what if the ADAAA rules were in effect? (which they are now)  100% return to work policies, which were problematic to begin with,  are now going to be extremely difficult to be  enforced under the Americans with Disabilities Act as amended for two reasons .  First, it is now much easier to be considered a person with a disability under the Americans with Disabilities Act as amended . Second, as the court noted in this case, the ADAAA changed the definition of regarded as having a disability.   No doubt, the court was referring to the fact that under the ADAAA  all the employer needs to do to suffer liability under the act with respect to a regarded as claim is to regard a person as having a physical or mental impairment . With the advent of the ADAAA, it is no longer necessary to show that the employer regarded the employee as having a substantial limitation on a major life activity . Therefore, it logically follows that if an employer has a 100% return to work policy, they must be assuming that the employee has a physical or mental impairment or they would not be insisting on a release at all. Such an assumption would lead to the employee having the right to claim that the employer is regarding  them as having a disability under the Americans with Disabilities Act as amended.

In short, 100% return to work policies, which were never a good idea since the Americans with Disabilities Act went into effect, are certainly not to be recommended now. The only issue should be whether that particular person can perform with or without reasonable accommodations the essential functions of the job.

Finally, the Americans with Disabilities Act is such a comprehensive law and is so all-encompassing it is so critical to make sure you are receiving advice and information that is reliable. Take a look at http://www.riskandinsurance.com/story.jsp?storyId=533345049 , which I just saw today, February 14, 2012. It is accurate as far as it goes. However, for an employer to rely on it as a defense to any adverse action occurring after January 1, 2009, for the reasons stated in this particular blog entry, would be very problematic.

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Filed Under: Federal Cases, Title I
by on December 4, 2011 1 Comment

Our first case

The first case we will talk about is Klene v. Trustees of Indiana University, 413 Fed. Appx. 919 (7th Cir. 2011). It is an unpublished decision and so before using it, you’ll want to check your rules on that as restrictions exist on how you can use unpublished decisions depending upon the jurisdiction you are in. That said, it is a very useful case for our first one. In this case, a student in the school of social work was required to complete a practicum, which included a classroom component and a semester long placement at an outside agency. After being rejected from two agencies, the student suggested that the school allow her to complete a modified practicum through that agency anyway. More specifically, the student proposed that she work from home under remote supervision of the agency and participate as a social worker at meetings unaffiliated with the agency. The school rejected that idea because it would not satisfy the essential purpose of the course. The student then tried a third agency but that agency ended the placement after a few weeks. The school then allowed her to try a fourth agency but that didn’t work out either. Subsequently, the school informed the student that she failed the course because she did not complete the placement component, which meant under the school policy that she was removed from the school of social work altogether. The student then brought suit alleging failure to accommodate her under the Americans With Disabilities Act and section 504 of the rehabilitation act. For our purposes, what is critical is that the Seventh Circuit said that the court should show great respect for the faculty’s professional judgment when it comes to genuinely academic decisions.

Thus, the question becomes what practical steps can be put in place so that a court can be convinced that the essential eligibility requirements that a school has for a particular program or activity are the result of sound professional judgment and a genuinely academic decision that should be respected.  Some of the steps might include: 1. Ensuring that the department and/or program understand what essential eligibility requirements are; 2. Ensuring that the department and/or program is responsible for developing those essential eligibility requirements; 3. Those essential eligibility requirements of the program and/or activity are then reviewed by a person knowledgeable about the Americans with Disabilities Act and its requirements; 4.  Ensuring that the essential eligibility requirements of the program and/or activity are based on what is fundamental to those programs and/or activity and are not set up in such a way as to suggest a disparate impact claim ( i.e screen out people with disabilities). 5. The person responsible for reviewing the essential eligibility requirements defers to the judgment of the faculty in that department with respect to that particular program and/or activity essential eligibility requirements. Of course, there may be some negotiation between the department or program and the person responsible for reviewing the essential eligibility requirements. 7. Once the negotiations are complete and the essential eligibility requirements are in final form, those requirments are posted generally and a copy is sent down to the school disability services office, where will serve as the basis for deciding what reasonable accommodations are possible.

In this way, the school would be showing that people with subject matter expertise were responsible for coming up with the essential eligibility requirements of the activity and/or the program  and that great care was taken in in developing those essential eligibility requirements.

 

Bill Goren

 

 

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Filed Under: Federal Cases, Title II
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