DOJ

Why can’t more guidances be like this one?

November 17, 2014 by William Goren 5 Comments

I’m not a big fan of guidances for several reasons: I find that lawyers rely on them as a crutch unnecessarily in many cases; the guidances oftentimes push an agenda and are not based on case law or regulations; as guidances they are not regulations and so therefore are subject to being ignored by the courts; and are frequently unnecessary, though not always so. However, none of these statements apply to the recent joint guidance from the US Department of Justice and the US Department of Education on effective communication. I find that the guidance is extremely easy to read, is a fair interpretation of the law, extremely practical, and contains a lot of useful information. This particular blog entry will go over that guidance.

I have previously discussed the effective communication regulation, including here here and here.

The Guidance

1. The guidance does a nice job of explaining that k-12 school need to worry about three different laws: IDEA, ADA, and § 504 of the Rehabilitation Act, and notes that the requirements of each are not the same necessarily.

2. The guidance does say that as a general rule violations of § 504 the Rehabilitation Act also constitute violations of title II and therefore, it didn’t make any sense to discuss § 504 protection separately as it would not provide additional guidance to public schools, all of which are subject to both laws. That is absolutely true. However, it should be pointed out that a violation of the ADA is not necessarily a violation of § 504 the Rehabilitation Act because the causation standard is different between the two laws.

3. Title II of the ADA and its implementing regulations require that a public school ensure that communication with students with hearing, vision, or speech disability is as effective as communication with students without disabilities. That means schools must provide appropriate auxiliary aids and services (what is an auxiliary aid and service can be found at 42 U.S.C. § 12103(1) as well is in the implementing regulations), where necessary in order to provide effective communication.

4. The effective communication regulation requires that public schools give primary consideration to the auxiliary aid or service requested by the student with a disability when determining what is appropriate for that student because it is the person with a disability, or his or her appropriate family member, who is most familiar with his or her disability and can provide the best information about which aids or services are most effective. Further, the school has to honor the choice unless the school can prove that an alternative auxiliary aid or service provides communication that is as effective as that provided to students without disabilities.

5. If providing the particular auxiliary aid or service constitutes a fundamental alteration in the nature of the service, program, or activity or is an undue financial or administrative burden, the school did not have to provide that of auxiliary aid or service, but they still have to provide, to the maximum extent possible, an effective auxiliary aid or service.

6. Interpreters for the deaf must be qualified and any such communication must be conveyed effectively, accurately, and impartially, using any appropriate specialized vocabulary.

7. It is very interesting that when the guidance talks about how a person who is deaf or hard of hearing may or may not use ASL, that hearing aids aren’t even mentioned. Rather, cochlear implants are mentioned. Cochlear implants are not a substitute for hearing aids. They are used in different situations. Nevertheless, it shows just how prevalent cochlear implants have become.

8. Auxiliary aids or services have to be decided on a case-by-case basis. That is, don’t put people with the same kind of disability in the same box as they may go about their world completely differently.

9. The effective communication regulations of title II apply to all of a student’s school -related communications and not just to those of teachers or school personnel.

10. For a deaf or hard of hearing student, a sign language interpreter or computer-assisted real-time (CART) may be appropriate where student comments and discussions are part of the class experience for all students. This is going to come down to a matter of choice by the particular student. ASL interpreters and CART do different things. ASL is a language just like French is a language. CART, which I had the privilege of using at a recent American Bar Association convention, essentially acts as a real-time transcript of what is going on. If the class is one where people are constantly talking and oftentimes at once, CART could be extremely helpful in addition to or in lieu of an ASL interpreter. An ASL interpreter is simply not going to be able to keep up with the different conversations but CART can. Thus, in this situation, the school is going to have to assess with the particular student whether one or the other or both should be employed.

11. Any auxiliary aids and services necessary to ensure effective communication have to meet several requirements. They have to be provided in an accessible format, in a timely manner, and in such a way as to protect the privacy and independence of a student with a disability.

A. With respect to accessible format, just because a student is blind does not mean that they know how to read braille (you would be surprised how many blind students do not read braille). Therefore, supplying materials in braille would be no good for that student.

B. With respect to timely manner, once the student indicates the need for an auxiliary aid or service or requested a particular auxiliary aid or service, the public school must provide it as soon as possible.

C. The auxiliary aid or service has to be provided in a way that protects the privacy and independence of the student with a disability. The example used in the guidance is a bit unfortunate. The example used is someone who is deaf and uses ASL should have their conversation containing sensitive information conducted privately where other people in the environment understand ASL. Here is the problem with that. Of the kids who are deaf, it is frequently reported that 90% of them have hearing parents. Also, it is frequently reported that 90% of deaf parents have hearing kids. Thus, it is entirely possible that there may be a hearing person in the classroom that knows ASL and that fact may or may not be known to the school. The auxiliary aid or service must also be provided in a way that the tax the independence of the student. For example, an e-book might foster more independence than a reading aide.

12. Should a school district try to defend on the ground that the auxiliary aid or service is a fundamental alteration or constitute an undue financial or administrative burden after considering all resources available for use by the school district in the funding and operation of the service, program, or activity, the head of the school district or his or her designee must make that determination (you can find the certification requirement discussed here. With respect to whether the school district had could delegate the decision regarding the undue burden certification to a designee, that designee would have to be a person with the authority to make budgetary and spending decisions and must have the knowledge necessary to consider all resources available to the school district for use in the funding and operation of the service, program, or activity.

13. The effective communication obligations are not limited just to students. Rather, schools have the obligation to provide effective communication to all individuals seeking to participate in or benefit from the school district’s services, program, or activities.

14. Title II of the ADA regulations expressly prohibit a public school from requiring an individual with a disability to bring another person to interpret for him or her except in the case of an emergency involving an imminent threat to the safety or welfare of the individual or to the public where there is no interpreter available or where the person with a hearing, vision, or speak disability specifically make the request that an accompanying adult may interpret or facilitate communication providing the accompanying adult voluntarily agrees to provide the assistance and providing the school’s reliance on the accompanying adult is appropriate under the circumstances. Regarding the second exception, careful consideration to both elements is called for. The school wants to make sure that the consent of the adult it truly voluntary. Second, the school wants to make sure that relying on the accompanying adult is appropriate under the circumstances. It may not always be. For example, it would not be appropriate to rely on the adult if the situation was a due process hearing, § 504 planning meeting, meeting of the IEP team, etc. Some may be close calls. For example, certain information may be so critical so that it is essential that any errors be minimized, such as a medical emergency.

15. Unlike the Americans with Disabilities Act, IDEA does not require a district to ensure that the effectiveness of communication for student with a disability matches the effectiveness of communication for students without disabilities.

16. The provision of a free appropriate public education under IDEA does not limit a student’s right to effective communications under the ADA. Also, to be protected under title II and to utilize the effective communication regulations of that title, does not require eligibility under IDEA.

17. A best practice is for a district to proactively notify parents and students about the effective communication regulations under title II and let the students and parent know just whom that official is. As pointed out in the guidance, it makes sense that the responsibility could, though it doesn’t have to be, given to the § 504 or ADA coordinator.

18. Parents do not have to make a specific request for different or additional auxiliary aids. Rather, the school district has the affirmative obligation to provide effective communication regardless of whether the parent request specific auxiliary aids and services.

19. School districts have a continuing obligation to assess auxiliary aids and services that it is providing the students in need of those services in order to ensure that those students are receiving effective communication.

20. If a student is IDEA eligible, a school district can also decide that a parent’s request under title II will be addressed by the IEP team. However, while that may be the case, the IEP team would not be making the determination based upon whether the auxiliary aids and services were reasonably calculated to enable the child to receive meaningful educational benefit. Instead, they would have to make the decision based upon the effective communication regulations under title II, an entirely different question since it demands that communications be as effective as those for without disabilities. This means that the IEP team has to receive training on the effective communication regulations.

21. A school district cannot wait for the IEP process to run its course before providing necessary auxiliary aids and services.

22. Guidance points out that if a person has an IEP, they must exhaust that process first before proceeding to a lawsuit alleging violations of the ADA or § 504. You can find more of that discussion here.

23. IDEA funds may be used only for auxiliary aids and services under title II where those auxiliary aids and services are also required to be provided under IDEA. If auxiliary aids and services under title II are not included in the IEP, then IDEA funds may not be used to pay for those services. Here is my concern with that. Since money drives everything, the concern is that school districts will push students with disabilities into the IDEA system. That decision has significant legal and day-to-day implications and should not be done lightly.

In summary, for those familiar with the effective communication regulations, there isn’t anything that is surprising here. What it does do is reiterate that school systems need to be aware that their universe is more than just IDEA but also includes ADA and § 504. Whether the regulation create the incentive of pushing people into the special education system when that is not necessary is something that should be followed.

DOJ brings the hammer down on the State of Lousiana’s bar licensing authority

February 14, 2014 by William Goren 4 Comments

I’m going to be off next week, and so I thought I would blog on this one since it is something I have talked about before.

Previously, I blogged on a South Dakota Supreme Court case and talked about the difficulty a person with MH has in passing the character and fitness gauntlet. I also in a separate entry blogged about a letter from the Department of Justice to the Vermont Commission on Human Rights talking about how four questions that are routinely asked by attorney licensing authorities, who often use the character and fitness format of the national conference of bar examiners, are in violation of the ADA. Now comes this letter from the DOJ to the State of Louisiana telling them that their discriminatory practices have to end.

Full disclosure: I Am President of the National Association of Attorneys with Disabilities and our organization signed on to a letter from the Bazelon Mental Health Center asking the DOJ to take the position that the way the state of Louisiana treated attorneys and prospective attorneys with MH violated the ADA.

In particular, the Department of Justice found that the Louisiana attorney licensure system discriminated against bar applicants with disabilities in the following way: making discriminatory inquiries regarding bar applicant’s mental health diagnosis and treatment; subjecting bar applicant to burdensome supplemental investigation triggered by their mental health status or treatment as revealed during the character and fitness screening process; making discriminatory admissions recommendation based on stereotypes of persons with disabilities rather than upon the actual facts; imposing additional financial burdens on people with disabilities; failing to provide adequate confidentiality protections during the admission process; and implementing burdensome, intrusive, and unnecessary conditions on bar admission based on the individual’s mental health diagnosis or treatment.

The first part of the letter talks about those questions on the character and fitness exam that we talked about in our previous blog involving DOJ’s response to the Vermont Commission on Human Rights. The reader is referred to that particular blog entry discussing why those questions are in violation of the ADA.

However, the state of Louisiana went much further. In particular:
1) Oftentimes, the only justification given by the admission committee for further investigation when a mental health diagnosis or treatment was disclosed was the applicant’s diagnosis rather than any problematic conduct by the applicant. In fact, the DOJ had a smoking gun from five applicants where the admissions committee told them that further inquiry was necessary given the nature of their diagnosis;

2) upon receiving a disclosure of an MH diagnosis, it was not unusual for the admissions committee to insist on an independent medical examination complete with extensive records, all at the applicant’s expense;

3) the admissions committee frequently recommended conditional admission in the event of an MH history even where there was no evidence of conduct suggesting that conditional admission was warranted and even where medical evidence and/or successful years in practice in another jurisdiction were to the contrary. In fact, the state of Louisiana would treat people with substantial misconduct more favorably than people with a history of MH when it came to getting admitted to the bar.

4) the conditional admission was a standard set up and not based upon the facts of the individual applicant. That standard set up often was a longer term of duration than for those who had engaged in serious financial, criminal, or other misconduct.

5) the conditional admission process and the documentation supporting the conditional admission process was public information. Accordingly, private information about applicants who happened to have MH was fully available to the public.

6) the monitoring agreement that went along with the conditional admission was referred to as a probation agreement and the person doing the monitoring was referred to as a probation monitor creating the inference that the applicant had committed misconduct.

7) the standard agreement required certain medical monitoring regardless of whether the facts justified that.

The Department of Justice was not happy with these practices. In particular, they found:

1) the decision to request medical records appeared to be based purely on diagnosis rather than on conduct. Such a decision ignored the admissions committee own statutory mandate that required it to evaluate an applicant’s conduct. It also, since conduct was not an issue, engaged in impermissible stereotyping, which is prohibited by the ADA.

2) the investigations based solely on the diagnosis of MH also violated the ADA because it imposes unnecessary burdens on applicants with disabilities that were not imposed on others. In particular, MH treatment very often involves a discussion of intensely personal issues not related to the practice of law and yet the admissions committee wanted to see all of that in their deliberations. In other words, Louisiana applicants with disabilities, and particularly those with MH issues, are required to disclose information that is highly personal and potentially embarrassing simply because they reveal that they were a person with MH. In essence, what the admissions committee is doing, according to the Department of Justice, is requiring an additional investigation solely because of an applicant’s disability, which violates the ADA.

3) it violates the ADA when the admissions committee recommended conditional admission for applicants where there is no evidence of conduct that warrants such a decision, but is instead based upon a person’s MH diagnosis. The DOJ cited to one case where besides the MH diagnoses, the only negative response concerned a traffic ticket and falling behind on credit card payments. This particular person had been practicing law without incident in another jurisdiction for six years. Such a decision is one based on stereotypes about people with MH diagnosis and violates the ADA. Any such decisions has to be based upon an applicant’s record of conduct and not their MH history.

4) attorneys who were conditionally admitted based upon their MH diagnoses had much more difficulty finding employment, had to share information about their MH diagnoses with employers, were treated differently because their employers and colleagues were aware of their MH status, had to disclose client files and be distracted from the work by inflexible monitoring requests. Also, since the monitoring is so intrusive regardless of whether the actual facts demand it, attorneys with MH have been less than candid with their psychiatrist or have refrained from considering a full range of treatment options. They also have been forced into making career decisions based on their conditional admission status and monitoring requirements rather than on talents and interests.

5) the ADA requires if you are going to conditionally admit someone because of their disability, that an individual analysis be performed and the state of Louisiana did not do that.

6) title II of the ADA, DOJ cited to an appendix here, prohibits imposing additional burdens on persons with disabilities not imposed on others. The state of Louisiana was violating that as well because they required an applicant with an MH history to pay the cost of any independent medical examination required by the committee. Further, once the monitoring agreement is in place, all costs associated with the monitoring agreement has to be paid for by the applicant. In essence, what the state of Louisiana was doing here is that they were passing along the cost of any reasonable modifications along to the bar applicant in violation of the implementing regulations.

7) the public nature of the conditional admission forces a conditionally admitted attorney to disclose a disability to employers and colleagues in order to avoid a presumption that they were conditionally admitted because of criminal history, financial delinquency, or other misconduct. That potentially violates a liberty interest that the individual has in such information (as an aside, I note that employers under title I of the ADA are required to keep disability related information confidential and apart from personnel files). Further, publicizing an applicant’s medical information has disastrous effects. In particular, it enables prospective employers, clients, or opposing counsel to act on stereotyped notions about individuals with MH. It also creates a chilling effect by deterring individuals from pursuing the legal profession and/or seeking treatment, reduces employment opportunities available to lawyers with disabilities by allowing the prospective employers to access information about the disability to which employers would not otherwise be entitled.

DOJ after all this then threw down the hammer insisting that the state of Louisiana cleanup their act so to speak. In particular:

1) Louisiana needs to stop using the character and fitness questions that go to a person’s MH diagnoses;

2) Louisiana needs to focus on applicant conduct and not on their MH diagnosis or treatment for such diagnoses when considering their fitness to practice law;

3) a person’s MH history cannot be used as the basis for determining whether further investigation is warranted. Conduct is the key not diagnoses;

4) conditional admission should be based upon conduct and not based upon stereotypes;

5) conditions of admission must be individually tailored to address the specific situation;

6) Louisiana has to stop imposing additional burdens on applicants with MH, including impermissible costs;

7) Pending applications must be evaluated without consideration of any affirmative responses to the prohibited questions asking about MH history in the national conference of bar examiner report;

8) require Louisiana to go back in time and fix any problems. For example, Louisiana has to take immediate steps to terminate the conditional bar admissions unless there are conduct concerns not mitigated by the applicant’s voluntary disclosure of information related to MH diagnosis and treatment;

9) for individuals whose conditional admissions are terminated, the state of Louisiana has to expunge all documents and records relating to the conditional admission and ensure that any references to the conditional admission are not publicly available;

10) any conditional admissions that are currently in place for nondiscriminatory reason must be reevaluated to ensure that the conditional admissions are tailored to address only the conduct warranting conditional admission and ensure that any and all medical or health-related information is kept strictly confidential;

11) with respect to applicants denied admission as a result of disclosing MH diagnoses pursuant to the prohibited questions, the state of Louisiana has to reevaluate their original applications without consideration of their affirmative responses; invite qualified individual to update their application for admission to the Louisiana bar without additional expense; reevaluate and process the updated applications on a priority basis without considering the MH diagnoses or treatment for that diagnoses;

12) for those applicants who withdrew from the admission process because of their response to the prohibited questions, the state of Louisiana needs to inform those individuals of the revisions with respect to character and fitness and invite them to reapply for admission to the Louisiana bar without additional expense. Also, they need to consider their application without considering their MH diagnoses or treatment and focus only on conduct.

13) PAY COMPENSATORY DAMAGES TO INDIVIDUALS WITH MH SUBJECTED TO DISCRIMINATION DURING THE BAR ADMISSION PROCESS

14) provide to the United States following each admission ceremony for the next five years information regarding Louisiana’s ongoing efforts to comply with title II consistent with the DOJ letter of findings.

Takeaways:

One word WOW!

Seriously, WOW!!!!

1) That said, it is now very clear that states engaged in similar conduct to Louisiana may want to seriously reconsider how they go about their business. The Department of Justice in this letter makes it very clear that they will bring the full weight of the Department of Justice down on attorney licensing authorities engaged in discrimination in violation of the ADA.

2) it may not be so easy for licensing authorities to rely on otherwise qualified/qualified, which the South Dakota Supreme Court did, as a vehicle to undertake a freewheeling investigation of an applicant’s MH history in light of this letter to Louisiana. That said, if I were representing the licensing authorities and wanted to have more freedom with respect to MH investigations, it is certainly the otherwise qualified angle that I would rely on.

3) any entity that licenses professionals needs to read this letter to see how their practices comport with this letter.

4) notice that the Department of Justice is insisting on compensatory damages for bar applicant that were discriminated on the basis of their disability by the state of Louisiana.

5) Clearly the letter is a huge victory for applicants with MH seeking to become attorneys.

Finally, the views contained herein are my own and do not necessarily represent those of any organization that I am affiliated with or am a part of or of any clients that I may represent.

Temporary disabilities and the ADA

February 11, 2014 by William Goren 1 Comment

In the first and second editions of my book, understanding the ADA, I cited to the case of Burch v. Coca-Cola Company, 119 F.3d 305 (5th Cir. 1997), for the proposition that temporary disabilities are not protected by the ADA. However, I did say as a preventive manner, it made sense to treat temporary disabilities as you would a permanent disability since what was a temporary disability was uncertain. By the time of the fourth edition, which has just been published by the American Bar Association in the last few months, things were quite a bit different. I still say that a temporary disability is not covered under the Americans with Disabilities Act as amended. However, I go on to say that just how long a temporary disability has to go on to no longer be a temporary disability for purposes of the ADA is far from clear. The EEOC in their final regulations implementing the amendment to the Americans with Disabilities Act does say that it is possible for a disability to arise even if it lasts, or is expected to last, for less than six months. Their view is that the reference to disabilities that are transitory and minor (a natural or expected duration of six months or less), that appears in the amendments to the ADA (ADAAA) is restricted to claims alleging that the person was discriminated against by an employer who regarded him or her as having a disability. The Department of Justice in their recently proposed regulations implementing the ADAAA adopts this view as well.

So, what does the case law say?

Many people have commented on the decision of the Fourth Circuit of January 23, 2014, Summers v. Altarum Institute, Corporation,, _ F.3d_, 2014 WL 243425, which found that temporary disabilities of a certain severity can be protected under the ADAAA, including two people whose blogs are in my blogroll (Jon Hyman and Robin Shea). Since this decision is a huge decision in ADA jurisprudence, I thought I would add my own comments. As has been my practice lately, this blog entry is divided up into different sections: facts, issue, the court’s reasoning, and takeaways. The reader is free to zero in on any or all of the sections.

I
Facts

In this case, the plaintiff, Karl Summers, was a senior analyst for a government contractor, where he conducted statistical research, wrote reports, and made presentations. The defendant did have a policy of authorizing employees to work remotely if the client approved. The particular client that he was working for preferred people to work on site during business hours, but did permit people to work remotely from home when putting in extra time on a project. On October 17, 2011, the plaintiff fell and injured himself while exiting a commuter train on his way to work. He had a heavy bag slung over his shoulder and lost his footing and struck both of his knees against the train platform. He was taken to the hospital where doctors determined that he sustained serious injuries to both legs. In particular, he had fractured his left leg and tore the meniscus tendon in his left knee. He also had fractured his right ankle and ruptured the quadricep-patellar tendon in his right leg. Repairing the left leg fracture necessitated surgery to fit a metal plate, screws, and bone into his tibia. Repairing his ruptured right quadriceps required yet another surgery to drill a hole in the patella and re-fasten his tendons to the knee. His doctors forbade the plaintiff from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bedrest, pain medication, and physical therapy, the plaintiff alleged that he would likely not have been able to walk for more than a year after the accident. While hospitalized, the plaintiff contacted an HR representative of the defendant about obtaining short-term disability and working from home as he recovered. That representative agreed to discuss accommodations that would allow Summers to return to work but suggested that he take short-term disability and focus on getting well again. The plaintiff went ahead and sent emails to his supervisors at his company and at the company that his company was contracting for about how to return to work, even suggested a plan in which he would take short-term disability for a few weeks and then start working remotely part-time and gradually increasing until he was working full-time again. The defendant granted him short-term disability benefits but never followed up on the plaintiff’s request to discuss how he might successfully return to work. Neither did the defendant suggest any alternative reasonable accommodations or even engage in the interactive process with Summers, the plaintiff. For that matter, they didn’t tell the plaintiff that they had any problem with the plan for a graduated return to work, rather on November 30, the defendant simply terminated the plaintiff’s employment in order to place another analyst in his role at the company he was contracted out to. The district court dismissed his claim and the plaintiff appealed to the Fourth Circuit.

II
The Issue

Can a person with a sufficiently severe temporary impairment have a disability under the Americans with Disabilities Act as amended (ADAAA)?

III
The Court’s Reasoning finding that a temporary impairment can constitute a disability under the ADA as amended:

1. The court refers to the definition of a disability under the ADA. It then notes that the ADAAA broaden the definition of disability by explicitly stating that the amendments were meant to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams 534 U.S. 184 (2002), which adopted a strict construction of what a disability is under the ADA and also suggested that a temporary impairment does not qualify as a disability under the ADA (as mentioned above, other cases had held prior to that that a temporary disability was not protected under the ADA). In particular, the ADAAA specifically stated that Congress believed that Toyota Motor set the standard too high as to what constituted a disability for purposes of coverage under the ADA and goes on to say that the definition of disability has to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted.

2. The ADAAA also goes on to say that the term substantially limits has to be interpreted consistently with the liberalized purposes of the amendment to the ADA and instructed the EEOC to effectuate that. The regulations issued by the EEOC implementing the ADAAA said that substantially limits has to be construed broadly in favor of expansive coverage and that the term is not a demanding standard (the DOJ in their proposed regulations implementing the ADAAA takes the same position). The final EEOC regulations (for that matter, the DOJ proposed regulations as well), says that an impairment lasting or is expected to last fewer than six months can be substantially limiting for purposes of proving an actual disability if sufficiently severe, which the plaintiff’s temporary impairment certainly was. After all, the plaintiff was left unable for seven months to walk. Further, without surgery, pain medication, and physical therapy, it would have been far longer.

3. Prior case law of the Fourth Circuit has never suggested that the ADAAA excluded temporary impairments from the definition of disability.

4. Another factor in the plaintiff’s favor that a temporary disability of sufficient severity is protected under the ADAAA, is that the ADAAA as well as the final regulations implementing that act, requires that a disability has to be considered without regard to mitigating measures such as medication, mobility devices, and physical therapy.

5. Interestingly enough, the plaintiff chose not to challenge the dismissal of his failure to accommodate claim. Nevertheless, the court addressed the issue because the issue of whether the plaintiff was otherwise qualified was likely to arise on remand of the plaintiff’s wrongful discharge claim. The court notes that an employee’s accommodation request, even an unreasonable one, typically triggers an employer’s duty to engage in the interactive process to determine a reasonable accommodation in collaboration with the employee.

A few things of note here. First, the court mentioned that even an unreasonable request for reasonable accommodation triggers the interactive process. Therefore, employers do not want to dismiss an accommodation request, however unreasonable it might be, once it is made. Instead, they need to take that as an initial offer. Second, the Fourth Circuit appears to be one of those circuits where there is a separate cause of action for failing to engage in an interactive process. Finally, it would seem on remand, that the defense is in big trouble here because they did not engage in the interactive process with the plaintiff, did not suggest any alternative reasonable accommodations, did not even tell the plaintiff that they had any problem with the plan for graduated return to work before terminating him.

6. While the ADAAA does impose a six month requirement with respect to regarding someone as having a disability, there is no durational requirement for actual disabilities. Accordingly, that suggested no such requirement was intended and not having such a requirement was consistent with legislative intent.

7. Also, the final EEOC regulations were a reasonable interpretation of the ADAAA. In particular, defining disability to include severe temporary impairments is consistent with purposes of the amendment to the ADA since the stated goal of the amendments was to expand the scope of protection available under the ADA as broadly as the text of the ADA permitted. Encompassing temporary disabilities advances that goal. Further, prohibiting employers from discrimination against persons with temporary disability is a burden on the employer for only as long as the temporary disability lasts. That is, temporary disabilities require only temporary accommodations.

8. In light of paragraph 6 and paragraph 7 above, the EEOC’s final regulations implementing the ADAAA were entitled to deference per Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

9. How a person suffers a disability is irrelevant to the analysis of whether a person has a disability under the ADAAA. Further, nothing in the EEOC regulations would suggest that an injury cannot be an impairment and in any event, would most certainly include broken bones and torn tendons, which would substantially limits the major life activity of walking.

III

Takeaways:

1. The Department of Justice proposed regulations implementing the ADAAA, which I discussed last week and which echo the EEOC final regulations with respect to temporary disabilities, would also likely, in light of this decision, be entitled to Chevron deference.

2. How a person becomes a person with a disability under the ADA is completely irrelevant to whether the person has a disability. The only question is whether a person meets one of the definitions of having a disability under the ADA as amended.

3. A request for a reasonable accommodation, however unreasonable that request might be, triggers the interactive process.

4. There seem to be a trend developing that failure to engage in the interactive process is a separate cause of action.

5. A temporary disability of sufficient severity can be protected under the ADA’s actual disability prong.

6. I have said this before, but in light of this decision, it becomes even more imperative for a plaintiff to allege actual disability if they are also alleging regarded as having a disability in their complaint, and especially so if the disability is a temporary one.

6. So what is an employer to do? Good question. It is absolutely true that an impairment that is both transitory and minor lasting less than six months is not protected if a person is alleging that they were regarded as having a disability. That said, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified and so that needs to be factored in as well. Finally, another way/approach is to say that a disability that is transitory AND minor is not protected by the ADA as amended providing the term “minor,” refers to an individual that is not substantially limited in a major life activity as defined by the ADAAA, regardless of how long the impairment is expected to last. The only difference between the two approaches is one of terminology and not of substance since under this approach, “minor,” is being narrowly defined as to whether a person is substantially limited in a major life activity as defined by the amendments to the ADA.

DOJ

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