by on March 20, 2012 3 Comments

Did the Second Circuit really do that? Is the ADA retroactive

Since the changes are so radical between the Americans with Disabilities Act and the ADAAA in many ways, a question comes up as to whether those changes are retroactive to pending ADA cases where the facts occurred entirely before January of 2009. There are two U.S. Supreme Court cases out there that strongly suggest that the answer is no. Those cases are Landgraf v. USF Film Products, 511 U.S. 244 (1994) and Rivers v. Roadway Express Inc., 511 U.S. 298 (1994). In those cases, the United States Supreme Court said that statutes are not going to be retroactive unless Congress manifests a very clear intent to do so. Furthermore, Congress overruling judicial interpretation of a statute is also not going to be retroactive absent that same very clear intent. With respect to the ADAAA, you have a situation where Congress overruled judicial interpretation of the statute. Rivers strongly suggests that the ADAAA would not be retroactive since that clear intent is absent from the ADAAA. It isn’t even a close call and in fact case law as well as the EEOC in their final regulations have said that the ADAAA is not retroactive.

That brings us to the case of Hilton v. Wright, _ F.3d _, 2012 WL 752546 (Second Cir. March 9, 2012). In this case, Hilton, a former state prisoner infected with hepatitis C, sued the Associate Commissioner and Chief Medical Officer for the New York State Department correctional services as well as the New York State Department of correctional services for disability discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act alleging that an eligibility requirement for receiving hepatitis C treatment was without medical justification and unlawfully screened out former drug users that were in recovery. He also alleged violation of the eighth amendment prohibition on cruel and unusual punishment. The court remanded for further proceedings whether the eighth amendment was violated and whether sovereign immunity, under the 11th amendment, prevented the suit from going forward.

However, our concern is with Second Circuit’s analysis of the Americans with Disabilities Act. What is interesting about this case is that there appears to be nothing in the facts themselves to suggest that any of the facts occurred after January 1, 2009. Nevertheless, the court appeared to say that the lower court on remand only needed to consider whether the defendants regarded the plaintiff as having a mental or physical impairment and not evidence of how or to what degree the defendant believed the impairment affected the plaintiff (the ADAAA standards and not the standard prior to the ADAAA). All of this without extended analysis as to whether the ADA is retroactive (i.e., for example, no citation or discussion of the cases mentioned at the top of this blog entry).

All this said, did they really hold that the ADAAA is retroactive? It is hard to say. First, as mentioned previously, there is no extended analysis of Landgraf or Rivers. Second, the court in a footnote referred to current Department of Justice regulations that say a person could be regarded as having a disability if they were treated by a public entity as having a drug addiction but in fact did not. Third, the Second Circuit also told the lower court that they had to consider whether the defendant’s actions violated the eighth amendment and whether sovereign immunity prevented a lawsuit from going forward. In short, there are lots of possibilities on remand for the court to consider without having to deal with the issue of whether the ADA is retroactive.

This will be an interesting case to follow. To my knowledge, all of the cases to date with the exception of one for injunctive relief (this is a case for damages), have held that the ADAAA is not retroactive. The possible eighth amendment, cruel and unusual punishment claim, and 11th amendment sovereign immunity questions also bear watching.

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by on March 8, 2012 Leave a Comment

Reassignment of employees… Eventually headed to the US Supreme Court

Yesterday, in EEOC v. United Airlines, Incorporated, (docket number 11-1774, March 7, 2012 (Seventh Circuit)), the United States Court of Appeals for the Seventh Circuit came down with a decision saying that United Air Lines was under no obligation to guarantee a reassignment to a vacant position for an employee that could no longer do the job they were currently in because of a disability, but could with or without reasonable accommodation do the job of a vacant position. The Seventh Circuit relied upon a prior case from 2000, EEOC v. Humiston-Keeling, Inc. 227 F.3d 1024 (7th Cir. 2000) saying that the Americans With Disabilities Act was not violated where the company had a competitive transfer policy.

In this case, EEOC v. United Air Lines had a reasonable accommodation guideline that said an employee who because of their disability can no longer do the essential functions of their current job even with reasonable accommodation could be transferred to an equivalent or lower level vacant position as a reasonable accommodation. However, that process at United Air Lines is competitive. That is, while employees needing accommodations are given preference (they can submit an unlimited number transfer applications, are guaranteed an interview, and receive priority consideration over similarly qualified applicant), the reassignment is not automatic. That is, United Air Lines is free to hire a different individual should there be a superior applicant to the person with a disability. In essence, the Seventh Circuit said that their hands were tied because of prior precedent from 2000. However, this panel of judges invited the entire Seventh Circuit to hear this case, a rehearing en banc, because this panel had doubts as to whether the decision relied upon here was still good law in light of United States Airways Inc. v. Barnett, 535 U.S. 391 (2002)

Thus, the question becomes what did United States Airways Inc. v. Barnett have to say about whether an assignment of a person with a disability to another position is something mandated by the Americans with Disabilities Act. The problem is that United States Airways Inc. v. Barnett is all over the place with respect to whether an employer with a seniority system has the obligation to reassign a person with a disability to another position they are otherwise qualified to do within the company. Depending upon which opinion you read in Barnett you get different answers. For example, Justice Breyer’s opinion in which Chief Justice Rehnquist, Justice Stevens, Justice O’Connor and Justice Kennedy joined said that it would be a very unusual set of circumstances that would require an employer to override a seniority system and mandate that the employer transfer an individual with a disability to another position that they could perform with or without reasonable accommodations. It is not clear how the majority view applies to this case being discussed here since nothing in EEOC v. United Airlines indicates that a seniority system is involved.

Justice O’Connor and Justice Scalia have opinions that are a bit broader in scope than the majority opinion. Justice O’Connor’s concurring opinion with respect to determining when in her opinion an employer would have the obligation to reassign a person with a disability to a position that they could do with or without reasonable accommodation, focused upon whether that position was vacant. That is, if a position was vacant, a position which no employee currently worked in and to which no individual had a legal entitlement, then to Justice O’Connor the employer would have the obligation despite a seniority system to reasonably accommodate the person with a disability by the transfer. Therefore, application of this rule to the case being discussed here would result in the person with the disability being able to transfer into that position as a matter of right, assuming that position was vacant.

Justice Scalia’s dissenting opinion in which Justice Thomas joined has another view on the matter. In his dissenting opinion he said that the Americans with Disabilities Act envisions the elimination of the obstacle of the current position when there was an alternate position freely available. That is, if the person with a disability was qualified for the position he or she was seeking reassignment to and no one else was seeking it or no one else seeking it was better qualified, then the Americans with Disabilities Act demanded that the person with the disability be given that position. In other words, an employer does not have to reassign a person with a disability to an open position if another person has superior qualifications to the person with a disability. In short, if Justice Scalia’s view prevails, then United Air Lines competitive transfer policy, which gives a preference but not an entitlement to the person with a disability would be upheld.

So where does this leave things. It really comes down to whether at some point the United States Supreme Court adopts the view of Justice O’Connor, no longer on the court, or Justice Scalia, which justice Thomas joined. I long ago gave up predicting how the United States Supreme Court might rule on a matter involving the Americans with Disabilities Act. As a matter of preventive law and good employee relations, Justice O’Connor’s approach bears serious consideration. That said, there is something intuitive about Justice Scalia’s view and considering the changes in the United States Supreme Court, his view could well prevail, though one never knows.

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by on February 28, 2012 Leave a Comment

Are your sick leave Policies kosher?: A preventive law approach

In a recent case, EEOC v. Dillard’s Incorporated (United States District Court of the Southern District of California, Docket number 08cv1780-IEG (PCL)), the court held that an employer’s policy stating that an employee’s health related absence would not be excused unless the employee furnished a note from his or her doctor stating the condition being treated, violated the Americans with Disabilities Act prohibition on disability related inquiries of employees. The Americans with Disabilities Act prohibits medical inquiries of employees unless they are job-related and consistent with business necessity, though the employer can make inquiries into the ability of the employee to perform job-related functions.

There are three questions that arise. First, what is a disability related inquiry? The court relying on another case, discussed below, that cited to EEOC guidelines, held that a disability related inquiry is a question that is likely to elicit information about a disability, such as asking employees about whether they ever have had or do have a disability, the kinds of prescription medications they take, and the results of any genetic test they had, etc. Clearly, a policy requiring a doctor to state the condition being treated is something that is quite likely to elicit information about a disability.

Therefore, the only question that remained for the court to consider was whether Dillard’s policy was job-related and consistent with business necessity. On that, the decision was a bit more muddled. From reading this particular decision, it is hard to determine how the court defined job-related and consistent with business necessity. The court did note that Dillard’s did not furnish any evidence that they needed to know the nature of the employee’s medical condition because of excessive absences so as to, for example, protect the health and safety of its other employees. Dillard’s also did not make any attempt to explain why it was necessary for the doctor’s note to state the medical condition that the employee was being treated for. Dillard’s also did not explain why they thought it was necessary to identify the underlying medical condition. Finally, the court noted that Dillard’s rescinded the policy of requiring doctor’s notes in July of 2007. Therefore, the court had a hard time believing how this policy could be job-related and a matter of business necessity since they continued to operate without the policy.

Particularly if you get a person with a disability involved in the process of determining what might be a disability related inquiry (an inquiry likely to elicit information about disability), the disability related inquiries piece can be easily managed, but the more difficult question is when can the employer defend a disability related inquiry as being job-related and consistent with business necessity. Dillard’s doesn’t offer much guidance on that.

However, this decision relied on another decision from the second circuit in 2003, Conroy v.. New York Department of Correctional Services (Docket # 02-7415, second Cir. 2003), in which the Second Circuit interpreted a virtually identical sick leave policy. That court also held that the sick leave policy at issue in that case, extremely similar to the one in Dillard’s, was a prohibited disability related inquiry. However, more importantly for employers, they did give some guidance as to what is job-related and consistent with business necessity. Several things that the Conroy court said are instructive. First, they said that employer must show more than that the inquiries are convenient or beneficial to its business. Rather, the employer must first show that the business necessity is vital to the business. Second, vital to the business can include such things as ensuring that the workplace is safe and secure or cutting down on excessive absences. Third, the disability related inquiry must be no broader nor more intrusive than necessary. Finally, the disability related inquiry or examination must be a reasonably effective method of achieving the employer’s goals. The Conroy court noted that business necessity will be found by the courts where it can be shown that the inquiry or medical examination was necessary to determine whether the employee could perform job-related duties where the employer identifies legitimate nondiscriminatory reason to doubt the employee’s ability to perform his or her duties; or whether employees absence or request for an absence is due to legitimate medical reasons where the employer has reason to suspect abuse of the attendance policy. The Conroy court noted that there might be other business necessity reasons as well and that these were not exclusive.

So what is an employer to do? First, the employer should review their sick leave policies in order to determine whether the policy is set up in a way that it is likely to elicit information about a disability. Getting a person with a disability involved in that assessment could be very helpful to that process due to their heightened sensitivity about what might reveal a disability. If the assessment reveals that the process is likely to elicit information about a person’s disability, the employer is running a considerable risk of losing Americans with Disabilities Act lawsuit and particularly so since as the Conroy court noted, a person does not have to have a disability to challenge a sick leave policy that runs afoul of the prohibition on disability related inquiries. Second, the employer should consider adopting a system so as to target disability related inquiries to situations where the employer has a reasonable concern about whether the employee can perform the essential functions of the job or the employer has a legitimate concern about whether the attendance policy is being abused. Miry or examination must be a reasonably effective method of achieving the employer’s goals. The Conroy court noted that business necessity will be found by the courts where it can be shown that the inquiry or medical examination was necessary to determine whether the employee could perform job-related duties where the employer identifies legitimate nondiscriminatory reason to doubt the employee’s ability to perform his or her duties; or whether employees absence or request for an absence is due to legitimate medical reasons where the employer has reason to suspect abuse of the attendance policy. The Conroy court noted that there might be other business necessity reasons as well and that these were not exclusive.

So what is an employer to do? First, the employer should review their sick leave policies in order to determine whether the policy is set up in a way that it is likely to elicit information about a disability. Getting a person with a disability involved in that assessment could be very helpful to that process due to their heightened sensitivity about what might reveal a disability. If the assessment reveals that the process is likely to elicit information about a person’s disability, the employer is running a considerable risk of losing Americans with Disabilities Act lawsuit and particularly so since as the Conroy court noted, a person does not have to have a disability to challenge a sick leave policy that runs afoul of the prohibition on disability related inquiries. Second, the employer should consider adopting a system so as to target disability related inquiries to situations where the employer has a reasonable concern about whether the employee can perform the essential functions of the job or the employer has a legitimate concern about whether the attendance policy is being abused. In short, a preventive law approach, would demand that job-related focus on the essential functions of the job and that business necessity focus on such vital interests to the business as the ones discussed here.

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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. ยง 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.

8. Perhaps my problem is more with language than anything else. For example, if the EEOC were to say that where education is not an essential requirement to perform the essential functions of the job, then the employer cannot insist on the education qualification being met, that would be one thing. In essence, in that situation, it would be akin to waving a nonessential function of the job as discussed in paragraph 3 above. However, if the EEOC is saying that education may not be an essential eligibility requirement of the job, that is a whole different matter.

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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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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