Don't Judge a Book by Its Cover! The Sixth Circuit Provides Employers With A Roadmap For Hiring Persons With Disabilities

Posted on January 24, 2013 by Lisa Whittaker

The Sixth Circuit Court of Appeals reversed the Michigan district court's ruling in Keith v. County of Oakland, finding a deaf applicant's rights under the Americans with Disabilities Act ("ADA") may have been violated when Oakland County ("the County") revoked its job offer to hire him as a lifeguard.

Nicholas Keith, who was born deaf, trained and successfully completed the County's lifeguard training program in 2007. After receiving his lifeguard certification, Keith applied for a lifeguard position at Oakland County's wave pool. The job announcement required each applicant be at least 16 years of age and pass the County water safety test and lifeguard training program. The announcement also included a condition of employment which stated, "[a]ll persons hired by Oakland County must take and pass a medical examination from a county-appointed physician, at no cost to the applicant."

Recreation specialist Katherine Stavale offered Keith a part-time position and scheduled his medical examination. Keith and his mother met with Dr. Paul Work, D.O. shortly thereafter. Upon entering the examination room, Dr. Work stated, "[h]e's deaf; he can't be a lifeguard." Mrs. Keith asked, "[a]re you telling me you're going to fail him because he is deaf[?]". Dr. Work responded, "[w]ell, I have to." Dr. Work informed Ms. Stavale that Keith could not function independently as a lifeguard...unless he was "constantly accommodated."

After receiving Dr. Work's report, Ms. Stavale placed Keith's employment on hold, and contacted the client manager for aquatic safety and risk management. Ms. Stavale was directed to perform a job-task analysis to determine whether Keith could perform the job with or without reasonable accommodation. After preparing an outline of potential accommodations, Ms. Stavale concluded that Keith would successfully integrate into the lifeguard position. After reviewing Ms. Stavale's memo, the client manager still did not believe Keith could perform the job. Based on the advice from the client manager, Ms. Stavale revoked the offer of employment.

In 2008, Keith applied for and was denied another lifeguard position. Keith filed a complaint in the Michigan district court alleging violations of the ADA and the Rehabilitation Act. The County filed a motion for summary judgment arguing Keith was not "otherwise qualified" to be a lifeguard, because he could not effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons. Keith responded he was "otherwise qualified", but the district court granted the County's motion. Keith appealed to the Sixth Circuit Court of Appeals arguing the district court erred on four points:

  1. The County did not make an individualized inquiry regarding his abilities;
  2. He is "otherwise qualified";
  3. His requested accommodations were reasonable; and
  4. The County failed to engage in the interactive process.

The Court first evaluated whether the County had conducted an individualized inquiry, which required consideration of the applicant's personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. The Court stated, "The ADA requires employers to act, not based on stereotypes and generalizations about a disability, but based on the actual disability and the effect that disability has on the particular individual's ability to perform the job." The Court found Dr. Work made no effort to determine whether, despite his deafness, Keith could nonetheless perform the essential functions of the position, either with or without reasonable accommodation.

Next, the Court analyzed whether the ability to hear is an essential function of a lifeguard position. An individual is "otherwise qualified" if he or she can perform the "essential functions" of the job with or without reasonable accommodation. The Court held the ability to effectively communicate is an essential function of being a lifeguard for the County, and Keith had presented evidence that he can communicate effectively with a distressed swimmer, other lifeguards, patrons, and during emergency situations. Keith also presented evidence from experts with knowledge, education, and experience regarding the ability for deaf individuals to serve as lifeguards, that he was "otherwise qualified". In light of the evidence presented, the Court found the district court erred when it decided Keith's deafness disqualified him from the position as a matter of law.

In determining whether Keith's accommodations were objectively reasonable, the Court stated the question of reasonableness is generally a question of fact. In response to Keith's request to have an interpreter present during staff meetings and further classroom instruction, the Court stated, "[t]he inclusion of interpreters among the list of enumerated reasonable accommodations suggests to us that the provision of an interpreter will often be reasonable, particularly when the interpreter is needed only on occasion, in this instance, just staff meetings and training." The Court found the grant of summary judgment by the district court inappropriate because the County has not stated the accommodation would impose an undue hardship on the operation, and a reasonable jury could find the request for an interpreter during staff meetings and classroom instruction objectively reasonable.

Lastly, the Court turned to the ADA requirement that an employer engage in the interactive process. The purpose of the interactive process is to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. Keith provided evidence that the County failed to contact or otherwise interact with him before revoking the offer of employment. The Sixth Circuit again found the district court's ruling erroneous, as Keith has met the burden to show that a reasonable accommodation was possible. Having found genuine issues of fact remaining as to whether Keith is otherwise qualified to be a lifeguard, with or without reasonable accommodation, the Sixth Circuit reversed the district court's ruling and remanded the case.

Key Points for Employers:

  • Make sure your hiring personnel are familiar with the mandatory requirements of the ADA.
  • Evaluate each disabled applicant based on his/her personal characteristics, actual medical condition, and the effect, if any, the condition will have on his/her ability to perform the job.
  • Consider creating a list of essential functions for each job. This list can be used when starting to determine whether a person is "otherwise qualified" for the position.
  • Evaluate all requested and any additional potential accommodations to determine whether any are reasonable and/or would cause an undue hardship.
  • Communicate with the disabled prospective-employee to identify his/her precise limitations and the potential reasonable accommodations that could overcome those limitations.
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Eighth Circuit Holds Shift Rotation Can Be An Essential Job Function

Posted on September 13, 2012 by Brian Hall

Two of the more difficult reasonable accommodation requests that employers see are requests to be excused from shift and/or job rotation requirements. Last week, the federal Eighth Circuit Court of Appeals held in Kallail v. Alliant Energy Corporate Services, Inc. that an employer's shift rotation requirement was an essential job function that permitted the employer to deny an employee's request to be excused from the requirement as a reasonable accommodation for her Type I diabetes. In Kallail, the plaintiff was responsible for monitoring the distribution of electricity, gas, and steam throughout the company's service territory, scheduling and routing resources to respond to routine and emergency work, and handling outage and other emergency situations so as to restore service and maintain system integrity. To provide coverage 24 hours per day, seven days a week, the employer required the plaintiff and others in her position to work an irregular rotating schedule. The plaintiff, however, alleged that working the rotating schedule was causing her to experience erratic changes in blood pressure and blood sugar, which put her at a higher risk for diabetic complications and death.

Armed with a medical recommendation that she only be assigned to the day shift, the plaintiff sought a reasonable accommodation, which was denied. As an alternative accommodation, the company said it would consider reassignment “to another vacant position with a straight day shift for which she was qualified.” When informed of three available positions, the plaintiff rejected them because one required walking, which she was unable to do, one paid less than her current position, and one would have required her to relocate or to commute a significant distance to work. One month later, the plaintiff underwent leg surgery and was placed on FMLA leave. While on leave, she applied for another position that had a straight eight-hour day shift schedule and was two job grades higher than her current position. She was one of six applicants to receive an interview, but the company hired another candidate. Upon the expiration of her leave, the plaintiff returned to work in a temporary day shift assignment, but went back on – and remained on -- leave when she and the company were unable to find a mutually agreeable position into which she could transfer.

Plaintiff then filed suit alleging that the company failed to provide her a reasonable accommodation for her disability. The district court concluded that the ability to work a rotating shift was an essential function of her job that did not need to be reasonably accommodated. On appeal, the Eighth Circuit agreed. Noting that the analysis was very fact specific, the Eighth Circuit found persuasive the fact that the job description included the rotating shift requirement, which it noted enhanced the workers' ability to respond to emergency situations and spread out the undesirable night and weekend shifts among all of the workers. Choosing not to second guess the company's business decisions, the court rejected each of the plaintiff's factual contentions attempting to explain how her job could be performed without a rotating shift. The court then considered whether the company satisfied its reasonable accommodation obligations by offering to reassign the plaintiff to other positions. The court concluded that the company's offer of reassignment to a Customer Operations Assistant II position met its reasonable accommodation obligation because the plaintiff failed to respond with evidence showing both that the position offered was inferior to her former job and that a comparable position for which the employee was qualified was open.

The Kallail decision underscores that employers seeking to justify rotating job schedules and other job shift requirements as essential job functions will be subject to factually intensive scrutiny. The Kallail court certainly found it helpful that the requirement was included in the job descriptions, but employers will have to do more to demonstrate that the shift or schedule requirement can't be reasonably accommodated. Where employers frequently slip up is by permitting exceptions to the requirement for non-medical reasons. Here, there was no evidence presented that the employer strayed from the requirement.

A very similar analysis will also come into play when an employer attempts to justify a job rotation requirement as an essential function. The relatively few cases decided on this point illustrate potential pitfalls for employers trying to include the ability to rotate among jobs as an essential job function. Courts will focus on the written job descriptions, the collective bargaining agreement (if one is in place), and the actual practice of the employer. Uniform, consistent application of the policy is key to defining the ability to rotate as an essential job function. Allowing employees to swap tasks, allowing one department to exclude itself from the rotation system, or relying upon job requirements that aren’t truly necessary could lead to problems in demonstrating that a job rotation is an essential job function.
 
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Employer Refusal to Provide a "Fragrance-Free" Workplace May Violate ADA

Posted on August 6, 2012 by Mike Underwood

Presume for a moment an employee complains to Human Resources that a co-worker's perfume makes her want to choke. The workplace sometimes brings us "closer" together and one worker's scent can be another worker's source of distraction or even discomfort. If the complaining employee's problem is just a matter of personal preference, then the employer has no legal duty to take action, but may want to explore a diplomatic way to resolve the dispute. On the other hand, a recent decision by the United States District Court for the Southern District of Ohio shows that, in some circumstances, this issue can result in a legal challenge.

In Core v. Champaign Cty. Board of County Commissioners, (S.D. Ohio No. 3:11-CV-00166), an employee sued the County under the Americans with Disabilities Act (ADA) and under Ohio disability discrimination law for not accommodating her request for a "fragrance-free" workplace policy. The employee suffered from severe asthma and chemical sensitivity to certain perfumes and other scents. She began experiencing difficulty breathing at work when co-workers in her proximity were wearing a perfume called "Japanese Cherry Blossom." According to the Complaint, her initial request that the employer ask employees to refrain from wearing that perfume went unheeded. Her symptoms became more severe and eventually she had to have emergency medical treatment.

Shortly after the employee sought medical treatment, co-workers began to mock her, including in Facebook posts making fun of her condition. She also alleges that employees began to wear the perfume intentionally around her and that the employer took no action to stop this conduct.

The employee presented a request to the employer signed by a nurse practitioner asking that co-workers be advised of the employee's sensitivity and that they be asked to avoid use of the perfume. The employer apparently communicated by email to employees asking that they not approach the employee personally, and instead communicate with her only by telephone or email. The employer also asked the employee to attempt to have face-to-face conversations with staff only in well-ventilated, open areas of the office.

The employee eventually went on leave because her symptoms continued. She then asked to work from home as an accommodation and the employer rejected that request. The employer did agree eventually to request that employees not wear Japanese Cherry Blossom perfume while at work and volunteered to consider any additional information that the employee might submit from a pulmonologist. However, by that time, the employee had altered her request for accommodation. She now requested a specific written policy prohibiting co-workers from wearing any fragrance in her proximity.

The case was before the court on a motion by the employer to throw the Complaint out before it ever reached a trial. The employer argued it was impossible to provide the employee a fragrance-free workplace since her job required that she be exposed to members of the public. The court denied the employer's motion, saying that the requested accommodation of requiring employees to be fragrance-free would at least minimize and limit the employee's exposure to perfumes, even if it did not eliminate all fragrances. The court also rejected the employer's argument that it had already adequately granted a reasonable accommodation by requesting employees not to wear Japanese Cherry Blossom. The court noted that the request for an official policy banning all fragrances might be reasonable, particularly in light of the objectionable conduct engaged in earlier by the co-workers and the allegation that the employer took no steps to stop the conduct. As a result of the court denying the employer's motion, the case can go forward to trial and, if it reaches that stage, the employee will have the chance to convince a jury that her requested accommodation was reasonable.

There are a number of important lessons in the case. First, the question of whether an employee's requested accommodation is "reasonable" can be specific to that employee. In this case, the employee had a medical condition which, although unique, apparently caused her significant problems at work. Second, the mere fact that a requested accommodation might be unpopular among co-workers does not, standing alone, mean that the accommodation is unreasonable. In this case, the court leaves to the trial stage the question of whether imposing a fragrance-free policy was an unreasonable imposition on co-workers. A third important message is that the court in this case seems to have been influenced, in part, by the employee's claims that the employer did not take any action to prevent the objectionable and harassing conduct by co-workers. All in all, the case illustrates the importance for early interaction and open dialog with employees with apparent disabilities and intervention to prevent improper conduct by co-workers.

There is an interesting side note in the case. Speaking of the employee's request for working at home as an accommodation, the court signaled that requests to work from home will be viewed in a different light today than perhaps they were some years ago. In the past, an employee faced a heavy burden in trying to convince a court that the employee should be allowed to work from home to accommodate a disability. Employers more often than not prevailed in arguments about providing work at home as a reasonable accommodation. In this case, the court did not have to reach the question whether this employee's request to work from home was reasonable, leaving that question for the trial. But, the court did say: "Certainly, communications technology has advanced to such a state that the proposition of employees working from home is not quite as burdensome or untenable as it perhaps was in 1995 [the year in which one of the first cases about work-at-home accommodation was addressed]. Today, in this court's view, it may not 'take a very extraordinary case for the employee to be able to create a triable issue of the employer's failure to allow the employee to work at home.'" In other words, expect courts these days to be more open to the argument that an employee can adequately perform a job from home where doing so is otherwise necessary as a reasonable accommodation.
 
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Sixth Circuit Rejects FMLA Retaliation Claim Based On Employer's Honest Belief That Employee Had Committed Fraud

Posted on May 11, 2012 by Brian Hall

Employers often defend against discrimination and retaliation claims by arguing that courts should not act like super human resources managers who second guess their employment decisions. A panel of the Sixth Circuit took that argument to heart in its May 8th decision in Seeger v. Cincinnati Bell Telephone Co., in which the court upheld summary judgment in favor of the employer on the ground that the employer had an "honest belief" that the plaintiff had engaged in disability fraud.

Tom Seeger was on FMLA leave for aback injury when he was spotted at the Cincinnati Oktoterfest by several of his co-workers. One of the employees contacted human resources to say at Seeger was able to walk 50 to 75 feet, seemingly unimpaired. During the employer's investigation, however, others remarked that Seeger seemed to to be in pain. The employer's investigation investigation also included an interview of Seeger and a review of his medical records, disability file and employment history. Seeger was suspended and was given an opportunity to submit a statement as well as a statement from his physician. After considering all of this information, the employer decided that Seeger's activity at Oktoberfest was inconsistent with his claimed disability and terminated him for disability fraud.

Seeger filed suit for interference with his FMLA rights and for retaliation in violation of the FMLA. With respect to the interference claim, the court concluded that Seeger had been given all of the FMLA leave he had requested since he had actually returned to full duty during the course of the investigation. With respect to the retaliation claim, the court noted the closeness in time between the FMLA leave and the termination, but concluded that CBT made a “reasonably informed and considered decision” before it terminated Seeger, and that Seeger has failed to show that CBT's decision-making process was unworthy of credence.

In reaching this conclusion, the court noted that the determinative question was not whether Seeger actually committed fraud, but whether CBT reasonably and honestly believed that he did. The court also noted that in order to take advantage of this "honest belief" defense, the employer's investigation need not leave no stone unturned. An employer's invocation of the honest belief rule, however, does not automatically shield it, because the employee must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is “too obvious to be unintentional.”

The dissent argued that the summary judgment order for the employer should be overturned because the employer focused on what it described as "flimsy evidence while ignoring strong contrary evidence." In addition, the dissent faulted the employer for not obtaining an independent medical expert opinion to process all of the information in its possession. At a minimum, the dissent contended that Seeger had presented sufficient evidence to permit a reasonable jury to conclude that the employer's investigation was so one-sided that it was unworthy of credence.

Employers should welcome the Sixth Circuit's Seeger decision, but should not get carried away. As noted, courts will not automatically rubber stamp an employer's decision unless it is supported by a thorough, well thought out investigation. In FMLA and ADA cases, I should note that human resources professionals and lawyers are particularly ill suited to make medical judgments and appropriate medical advice should be sought. 
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Fourth Circuit Rejects EEOC Position That Supreme Court Cleveland Decision Does Not Apply To Enforcement Actions

Posted on May 2, 2012 by Brian Hall

In 1999, in Cleveland v. Policy Mgmt. Sys. Corp., the U.S. Supreme Court held that in order to avoid summary judgment in a disability discrimination case brought under the ADA, a plaintiff must provide a "sufficient" explanation regarding any conflicting statements made in a Social Security disability application.  According to the Supreme Court, that explanation must be "sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.'"

Last week, in EEOC v. Greater Baltimore Medical Center, Inc., the Fourth Circuit federal appeals court rejected the EEOC's position that Cleveland does not apply in enforcement actions brought by the EEOC on behalf of an individual claimant.  While acknowledging that the EEOC has a governmental interest in an enforcement action that is not merely derivative of the individual claimant's interest, the court concluded that "this does not mean that a claimant's statements to other government agencies are somehow less relevant to an enforcement action on behalf of the claimant than they are for an action pursued by the claimant himself."

In concluding that the EEOC and the claimant in GBMC did not meet this burden, the Court noted multiple comments from the claimant indicating his total inability to work and his failure to notify the Social Security Administration of his agreement to notify it if his condition improved to the point where he would be able to return to work.  While noting that it "did not condone" and was "deeply concerned" about the employer's failure to reinstate the individual claimant when the medical evidence demonstrated he was capable of working, the court granted the employer's motion for summary judgment stating that it was constrained to do so based on the plain language of the ADA and relevant case law.

GBMC found that reliance on the Cleveland decision was a great litigation strategy to avoid potential ADA liability, but there may be another lesson for employers to take from the GBMC case prior to litigation.  When an employee is seeking reinstatement from a lengthy leave of absence, employers should make sure they know whether the employee has applied for benefits that may be inconsistent with the request to return to work.  Doing so will help inform any reasonable accommodation process and will help employers ensure that they do not return employees to work who may not be able to work safely.  

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EEOC Issues Revised Publication on Employment of Veterans with Disabilities

Posted on April 25, 2012 by Jamie LaPlante

The EEOC recently issued a revised publication on the employment of veterans with disabilities. According to the EEOC, the publication reflects changes in the law made by the ADA Amendments Act of 2008 (ADAAA), which made it easier for persons, including veterans, to establish they meet the definition of “disability.” The wide range of impairments covered by the ADAAA include those that are often not well understood, including post-traumatic stress disorder (PTSD), major depressive disorder, and traumatic brain injuries, as well as deafness, blindness, partial or missing limbs, and mobility impairments. This is an issue that will become of increasing relevance as large numbers of veterans return from Iraq and Afghanistan.

Employers should be aware that the ADAAA and the Uniformed Services Employment Reemployment Rights Act (USERRA) protect disabled veterans from discrimination in different ways. USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment to become qualified for a job, whether or not the veteran has a service-connected disability, often through training or retraining. Veterans may have up to two years from the date of completion of service to return to their jobs or apply for reemployment under USERRA. USERRA also applies to all employers, regardless of size, whereas the ADA applies to employers with 15 or more employees. Employers may be required to accommodate a disabled veteran under USERRA where they would not otherwise be required under the ADAAA.

The link to the updated guide on employment of disabled veterans is: http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

Highlighting some of the guidance provided by the EEOC:

  • Employers may not make assumptions about the veteran’s ability to do the job based on the fact that the veteran has a disability rating from the U.S. Department of Veterans Affairs (VA).
  • Employers may, for affirmative action purposes (in accordance with rules regarding applicant self-identification for federal contractors and subcontractors), ask applicants to voluntarily identify as a disabled veteran prior to making an offer. This is an exception to the ordinary rule prohibiting employers from asking for medical information prior to making an offer.
  • Employers may also ask for suitable candidates from organizations that help veterans or veterans with disabilities find employment. Federal contractors and subcontractors are required to take affirmative action to employ and advance qualified disabled veterans.
  • The ADAAA does not prohibit employers from giving special preference to veterans with disabilities, but employers may not discriminate against individuals with disabilities, including disabled veterans.
  • Employers should keep in mind that some veterans with service-related disabilities may require reasonable accommodations during the application process.

 

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Refresher on Alcohol Testing and the ADA

Posted on December 22, 2011 by Leigh Anne Benedic

Many employers may be surprised to learn that the ADA's prohibition of medical examinations treat alcohol tests differently from tests for illegal drugs.

Under the ADA, employers may not require employees to undergo medical examinations or inquiries unless they are job-related and consistent with business necessity. Unlike tests for illegal drug use, the EEOCs' enforcement guidance considers "blood, urine, and breath analyses to check for alcohol use" to be a medical examination under the ADA. Case law is sparse, but courts have generally followed the EEOC guidance.

So, if employers want to ensure their workers aren't under the influence of alcohol, what should they do? 

  • The ADA allows employers to administer alcohol tests or other medical examinations where required by another federal law or regulation. An often-cited example is Department of Transportation (DOT) regulations that require safety-sensitive transportation employees undergo regular drug and alcohol testing.
  • Even if their employees don't fall within an exception like the DOT regs, employers may still implement and enforce policies that prohibit employees from working under the influence of alcohol. They may administer alcohol tests to enforce such a policy when "job related and consistent with business necessity."
  • Medical examinations like alcohol tests are job related and consistent with business necessity when the employer has objective medical evidence or reasonable suspicion that the employee's ability to perform his essential job functions is impaired, or the employee is a direct threat to himself or others.
  • When conducting an investigation into an employee's use of alcohol on the job, an employer may always ask the employee if he has been drinking. If an employee admits to drinking in violation of the employer's policy, it may not be necessary to administer an alcohol test.

To stay within the strictures of the ADA when testing for alcohol use, employers are best-served by treating each situation case-by-case and avoiding blanket "one-size-fits-all" testing policies. Consideration should be given to the signs of the employee's impairment, any observed impact on their essential job functions or performance, and what else may explain his behavior beyond alcohol use. Internal guidance and training on the signs of alcohol impairment may also be appropriate.
 

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Sixth Circuit Orders Reinstatement and Overturns $4.4 Million Front Pay Award In Vet's Disability Discrimination Case

Posted on December 19, 2011 by Lisa Whittaker

The recent Sixth Circuit case of McKelvey v. Secretary of United States Army highlights the plight of many disabled veterans returning to the civilian work force and presents a lesson for employers on how not to address those issues.

James McKelvey, an Army veteran who lost his right hand and suffered other serious injuries while trying to defuse a roadside bomb in Iraq in February 2004, returned to work at the Detroit Arsenal where he claimed his supervisors and co-workers at the armory constantly harassed him by calling him "cripple," and "worthless," and not assigning him an equal workload. McKelvey complained to two supervisors, the equal employment opportunity counselor, and a human resources specialist. McKelvey was told, "things aren't going to change." He was also told, "[All] I can tell you is if you don't like the way you're being treated, go find another job."

After McKelvey was offered a position with the Oakland County Sheriff's Department, he resigned from the armory on February 16, 2007.

In October 2007, McKelvey filed suit against the Secretary of the United States Army in federal district court, claiming failure to make reasonable accommodations, retaliation, hostile work environment and constructive discharge. The hostile work environment and constructive discharge claims survived summary judgment. Following a trial in October 2009, a jury ruled for McKelvey on both claims, awarding no compensatory damages on hostile work environment, but $4.4 million in front pay on the constructive-discharge claim.

After the trial, the Secretary filed motions for judgment as a matter of law on the constructive-discharge claim and to vacate the award of front pay. The district court granted both motions in January 2010. The court held that McKelvey had presented insufficient evidence to sustain a finding of constructive discharge, and in the alternative, that the proper remedy for a constructive discharge would be an order reinstating McKelvey to a job at the armory, not front pay.

On appeal, the Sixth Circuit Court of Appeals held that the district court improperly granted the employer's post-trial motion on the constructive discharge claim. The Court held McKelvey had presented sufficient evidence that a reasonable person in his position would have felt forced to quit, supporting a finding of constructive discharge. The Court also rejected the Secretary's argument that McKelvey waited too long to resign, holding other courts have permitted findings of constructive discharge for time gaps as long or longer than McKelvey's.

The Sixth Circuit then reviewed the district court's decision to deny front pay and found there was no abuse of discretion. Reinstatement is the preferred remedy when an employee is unlawfully discharged, and McKelvey provided no evidence that persuaded the Court to rule otherwise. Indeed, the Court found that the fact that McKelvey had obtained new employment in the interim made no difference. The Court noted that the Army had offered him immediate reinstatement at a higher salary, under a new supervisor and without any disruption to the operations at the armory or the need to displace another employee. In fact, the Court noted that upon returning to work, four out six of McKelvey's co-workers would be new, with no connection to the harassment he had suffered.

The Court found determining front pay would be highly speculative at McKelvey's young age, 38. The Court remanded the case to the district court to calculate the amount McKelvey should receive in back pay for the period between his discharge and reinstatement.

The McKelvey case is instructive to Ohio employers on both the constructive discharge and reinstatement issues, but it is also instructive with respect to the fact that harassment based on disability status is a viable cause of action under the ADA. Employers that learn of employee allegations of harassment based on a disability would be wise to investigate immediately and put a stop to it if it in fact is occurring.
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EEOC's Informal Discussion Letter Merits Re-Evaluation of High School Diploma Requirements

Posted on December 9, 2011 by Lisa Whittaker

Employers frequently require a high school diploma as a condition of employment. Employers not only look to hire individuals who possess basic skills in reading, writing and math, but also believe that having a high school diploma demonstrates a level of maturity and perseverance.

That requirement seems reasonable -- except when it "screens out" individuals based on their protected status. For instance, the EEOC has long taken the position, upheld by the courts, that high school diploma requirements have an adverse impact on minorities and therefore can be used only when a high school diploma can be shown to be job related and consistent with business necessity.

On November 17, 2011, the EEOC posted an informal discussion letter on its website indicating that high school diploma requirements likewise may have a disparate impact on individuals with disabilities. According to the EEOC, some individuals with learning disabilities have difficulty passing end-of-course assessments and cannot obtain a high school diploma; therefore, they cannot obtain jobs which require the applicant have a high school diploma.

The EEOC considered the possible impact of high school diploma requirements under the ADA and provided the following advice to employers:

[I]f an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation.

It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job’s essential functions during the application process. If the individual can perform the job’s essential functions, with or without a reasonable accommodation, despite the inability to meet the standard, the employer may not use the high school diploma requirement to exclude the applicant.

The EEOC informal discussion letters are not binding as law and certainly are not binding on courts. There is room for good faith argument about whether the EEOC has properly applied the disparate impact theory of discrimination to this issue. Nevertheless, the discussion letter does indicate how the EEOC will likely rule in a charge on these facts. Therefore, employers are wise to evaluate whether a high school diploma really is necessary to perform the essential functions of any job for which it is being required. Even in those situations where the high school diploma requirement can be justified, employers will still need to consider in any case where a person is being excluded for not having a diploma and information is brought to light that a disability may be the reason whether a reasonable accommodation can be provided that would permit otherwise qualified individuals with disabilities to perform those essential functions.

Of course employers should continue to be cautious about the use of high school diploma and similar educational screening tools in light of the possibility of race discrimination claims.
 

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Verizon Consent Decree Provides Road Map For Surviving EEOC Scrutiny of No Fault Attendance and Leave of Absence Policies

Posted on July 22, 2011 by Brian Hall

On July 6, 2011, the EEOC announced a settlement with Verizon of a nationwide class action lawsuit alleging that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. According to the EEOC's press release, Verizon violated the ADA by failing to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations. In addition to requiring the payment of $20 million in monetary relief to affected employees, the Consent Decree filed with the federal district court in Maryland requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences.

Interestingly, the Consent Decree provides a step by step analysis that the EEOC expects Verizon (and presumably all covered employers) to go through before considering an employee's absence to be a "chargeable absence" subject to discipline under the company's attendance policy. Specifically, Paragraph 20.03 provides:

In determining whether a Current Associate's absence should be "nonchargeable," Verizon is required to evaluate on an individual case-by-case basis whether each of the following is satisfied:

(a) the Current Associate has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA, and for the period on and after January 1,2009, as amended through the ADA Amendments Act of 2008;

(b) the Current Associate's absence was caused by a disability;

(c) the Current Associate or someone else on the Current Associate's behalf requested through the Company's designated process a period of time off from work due to a disability;

(d) the Current Associate's absences have not been unreasonably unpredictable, repeated, frequent or chronic;

(e) the Current Associate's absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic;

(f) Verizon was able to determine, from the request by or on behalf of the Current Associate or through the interactive reasonable accommodation process, a definite or reasonably certain period of time off that the Current Associate would need because of a disability; and

(g) the Current Associate's need for time off from work as a reasonable accommodation does not pose a significant difficulty or expense for Verizon' s business.

Paragraph 20.03 goes on to say that "[i]f each of the foregoing is satisfied a Current Associate's absence shall be "nonchargeable." If (a), (b), (c), (d), (e), (f), or (g) is not satisfied, Verizon may, as Verizon deems appropriate, determine that an absence is "chargeable." In other words, using the Verizon Consent Decree as guidance, employers will have a better chance of avoiding liability for an attendance-based termination under the ADA by showing that the employee's attendance was and is expected to be unreasonably unpredictable, repeated, frequent or chronic. A properly drafted job description, noting where appropriate the importance of predictable attendance, can be an employer's first defense in this regard.

Believe it or not, while courts have generally adhered to the principle that some degree of regular attendance is usually an essential function in most employment settings, regular attendance is not a per se essential function of all jobs. Rather, courts consider the circumstances of each individual job at issue to decide if regular attendance is essential. Courts have been more likely to find regular predictable attendance to be an essential job function where:

  1. the job requires a level of specialization or creates other circumstances where it is difficult to replace the employee,
  2. the job requires performance at the place of employment,
  3. the employment tasks are time sensitive,
  4. the performance requires teamwork,
  5. the work is critical, and failure to be present would adversely affect the entire company,
  6. the number of available employees to cover absences in limited, and
  7. the employer has strictly enforced its attendance policy -- in other words, the employer has a history of treating attendance as an essential job function.

Certainly, a large number of employers will not be able to follow this road map and, for those, the Verizon Consent Decree gives most employers significant reason to revisit their no fault attendance and leave of absence policies. But, many employers, such as those in the health care and manufacturing industries, should be able to take advantage of the analysis contained in the Consent Decree to help uphold those policies.
 
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EEOC Releases Final Rule on ADAAA-Expect Continued Increase in Disability Charges

Posted on March 25, 2011 by Jenni Edwards

Yesterday, the EEOC released its Final Rule implementing the American with Disabilities Act Amendments Act, which we discussed back in September 2008 and which was signed by President George W. Bush on September 25, 2008. The Final Rule, which runs 202 pages long, includes many revisions. But the most significant revisions as discussed in the EEOC's Fact Sheet are:

  • The definition of disability should be interpreted broadly in favor of broad coverage of individuals, in direct contradiction to several Supreme Court decisions that had, according to Congress, too narrowly interpreted the definition of "disability;"
  • The determination of whether an individual is disabled should not require an extensive analysis;
  • The adoption of "rules of construction" that are to be used when determining whether an individual is "substantially limited" in performing a major life activity. Specifically, "substantially limits":
    • Does not mean an impairment that prevents or severely or significantly restricts a major life activity;
    • Is to be construed broadly;
    • Must be assessed on an individualized basis;
    • Must be assessed without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids (with the notable exception of "ordinary eyeglasses or contact lenses" which may be considered); and
    • May include an impairment that is episodic or in remission if it would substantially limit a major life activity when active.
  • A refocusing of the analysis of whether an individual was "regarded as" disabled form what the employer may have believed about the nature of the individual's impairment to how a person has been treated because of a physical or mental impairment (that is not transitory or minor); and
  • The clarification that an individual must have an actual disability or a record of disability to qualify for a reasonable accommodation.

The express purpose of the ADAAA is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. This purpose was not lost on employees and applicants. As we previously noted, the ADAAA resulted in an immediate increase in disability discrimination charges. We expect this trend to continue.

This makes it all the more important that employers engage in good faith in the interactive process to determine whether a reasonable accommodation exists for applicants or employees with alleged disabilities. The interactive process will often result in the discovery of workable accommodations, but perhaps more importantly it also frequently results in employees and applicants feeling satisfied that no reasonable accommodation actually exists. This satisfaction alone can significantly contribute to an individual's decision not to file a charge of discrimination.
 

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EEOC Report On Charge Statistics Provides Lessons For Employers

Posted on January 7, 2010 by Brian Hall

 Yesterday, the EEOC released its charge statistics report for its 2009 fiscal year, which ended on September 30, 2009. Not surprisingly, during an economically difficult period, the statistics show a near record number of charges filed -- 93,277 -- which is second only to the 2008 fiscal year when 95,402 charges were filed.

As usual, sex and race discrimination charges led the pack, but they also showed a slight decline from the previous fiscal year. Somewhat surprisingly, during a period that saw extensive reductions-in-force, age discrimination charges were significantly down. On the other hand, disability discrimination and retaliation charges showed the sharpest increase, both numerically and statistically.

The increase in disability discrimination charges likely can be tied directly to the enactment of the Americans with Disabilities Act Amendments Act (ADAAA) which makes it significantly easier for applicants and employees to establish that they have a protected disability. Employers can reduce the likelihood of being targeted for a disability discrimination charge by recognizing this new reality and engaging in good faith in the interactive process to determine whether a reasonable accommodation exists for applicants or employees with alleged disabilities. Frequently, the give and take of the interactive process if conducted in good faith will either result in finding an accommodation that both sides can live with or demonstrating to the applicant or employee's satisfaction that no reasonable accommodations actually exist. Remember, the ADA, even as amended by the ADAAA, still does not require the employer to provide applicants or employees with the accommodation they want -- only a reasonable one.

With respect to retaliation charges, as we have preached in previous posts both here and here, employers must be careful to treat employees who have filed discrimination charges or lawsuits as they would treat any other employee -- no better, no worse. In fact, the U.S. Supreme Court's decision in Crawford v. Metro. Gov’t of Nashville and Davidson County early in the 2009 term held that the retaliation protection provided by Title VII extend to employees who speak out about discrimination during the employer’s investigation into another employee’s internal complaint of discrimination. The Crawford decision, therefore, underscores employers' need to protect themselves from potential retaliation cases in this context as well by following up on any employees who claim "me too" in the course of internal discrimination investigations.

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EEOC Publication Summarizes Requirements for Discrimination Waivers

Posted on July 16, 2009 by Marc Fleischauer

On July 15, 2009, the EEOC published “Understanding Waivers of Discrimination Claims in Employee Severance Agreements,” a document directed to employees facing layoffs. The publication is not apparently intended to change existing regulations, but rather to summarize the legal requirements for severance agreements under the ADA, Title VII, the Equal Pay Act, and, separately, the Age Discrimination in Employment Act.

As noted by the EEOC’s summary, in order to minimize the risk of potential litigation, many employers provide laid-off employees with optional severance agreements, by which employees may obtain certain compensation or benefits in exchange for releasing the employer from liability. The EEOC document specifically addresses the validity of such releases, and it is therefore useful reading for employers as well.

 

Summary of Release Requirements for Discrimination Claims

According to the EEOC summary, all federal discrimination statutes require that any valid release:

  • be “knowing and voluntary” on the part of the employee (this term of art has been construed differently for the different discrimination statutes);
  • be exchanged for valid consideration, such as additional compensation to which the employee would not otherwise be entitled; and
  • not require an employee to waive any future rights – i.e., for claims arising after the agreement is signed.

In determining whether a release is “knowing and voluntary,” the EEOC’s summary correctly points out that courts typically consider whether a given release:

  • is written in a way that is clear and specific, so that an employee can understand it (the EEOC cautions against “technical jargon and long, complex sentences”);
  • has been induced by fraud or duress initiated by the employer;
  • provides the employee with sufficient time for consideration before signing;
  • encourages or discourages review by the employee’s attorney; and
  • is subject to input from the employee before signing.

For releases that include waivers of federal age discrimination claims under the ADEA, the EEOC’s summary notes additional specific requirements for validity dictated by the federal Older Workers Benefit Protection Act:

  • Specific reference to release of employee rights under the ADEA by name;
  • Advice in writing that the employee should consult an attorney before signing;
  • A 21-day period to consider the employer’s offer before signing (45 days in the event of a “group layoff” consisting of two or more employees);
  • A seven-day period during which the employee may revoke his or her signature after signing; and
  • For a group layoff, the employer must also provide the employee with information in writing about the “decisional unit” from which the employee was selected for the layoff, eligibility factors for the layoff program, any time limits, and the titles and ages for all employees within the decisional unit who were either selected or not selected for layoff.

The summary correctly notes (with citations to the EEOC’s “Enforcement Guidance” from April 1997 and to 29 C.F.R. § 1625.22(i)(2)) that a release cannot lawfully prevent an employee from bringing a later charge of discrimination with the EEOC nor prevent an employee from participating as a witness in an EEOC investigation. In fact, the EEOC takes the position that obtaining such a promise from an employee constitutes unlawful “retaliation” against the employee.

 

Some Overreaching Apparent

The EEOC’s summary includes an appendix with a suggested “Employee Checklist” for employer severance agreements containing releases. For the most part, the checklist merely rehashes the same validity requirements outlined above for the statutes administered by the EEOC. Readers should be cautioned, however, that the appendix appears to overreach by providing employees with gratuitous “tips” falling outside the EEOC’s normal area jurisdiction, with questionable results. These comments are unfortunate because they are likely to confuse employees and make them unduly suspicious of properly drafted agreements and well-intentioned efforts to resolve matters.  Specifically, in the final sentence of the appendix, the EEOC document advises:

"Make sure that your employer is not asking you to release your claims for unemployment compensation benefits, workers compensation benefits, claims under the Fair Labor Standards Act, health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA), or claims with regard to vested benefits under a retirement plan governed by the Employee Retirement Income Security Act (ERISA).”

Unemployment and workers compensation benefits are creatures of state law, and while many states (including Ohio) prohibit voluntary waivers of these rights, the EEOC’s broad assertion to a national audience, on a topic generally outside the bounds of equal employment opportunity, probably assumes too much.

 

The EEOC’s glib dismissal of proposed waivers for COBRA rights seems similarly flawed. The U.S. Department of Labor, which has primary responsibility for administering COBRA and which has published is own set of “FAQs for Employees About COBRA Continuation Health Coverage,” specifically contemplates what happens “if a qualified beneficiary waives COBRA coverage,” including methods for later revoking such waivers. Certainly employees might want to think twice before signing such a waiver, but the EEOC’s attempt to give employees advice outside its area of expertise is both unusual and inaccurate. 

 

Finally, the EEOC’s suggestion that employees should reject a release that waives ERISA claims does not seem to be based on any actual legal restriction prohibiting such waivers.   ERISA does prohibit certain types of waivers, and rights arising in the future cannot be waived. But it is well established that potential ERISA claims can be waived by releases that are knowing and voluntary – the same requirement used by the EEOC for the statutes it actually administers. See, e.g., Leavitt v. Nw. Bell Tel. Co., 921 F.2d 160, 162 (8th Cir. 1990).

 

With these exceptions, the EEOC’s new publication is a useful compilation. As always, employers are well-advised to obtain help from a qualified professional before drafting their own release agreements for use in reductions in force or other employment terminations.
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EEOC Issues Technical Guidance on ADA-Compliant Employer Preparedness for the H1N1 Flu Virus

Posted on May 11, 2009 by Brian Hall

We have been receiving more and more questions from human resources professionals asking how the ADA might impact their preparation for a potential pandemic flu. Now the EEOC has issued technical guidance on the topic, focused primarily on employers’ rights to make medical inquiries and require medical examinations of applicants and employees.  With respect to applicants, the EEOC notes that the ADA operates normally to preclude all disability-related questions and medical exams until after a conditional offer has been made.  With respect to current employees, who can be required to respond to medical inquiries or undergo medical exams only if they are job-related and consistent with business necessity, however, the EEOC recommended a model survey of employees that could be issued to all employees in preparation for a pandemic. The model survey is reprinted below:

ADA-Compliant Pre-Pandemic Employee Survey:

 

Directions:   Answer “yes” to the whole question without specifying the reason or reasons that apply to you.  Simply check “yes” or “no” at the bottom.

 

In the event of a pandemic, would you be unable to come to work because of any of the following reasons:
 

*    If schools or day-care centers were closed, you would need to care for a child; 

*    If other services were unavailable, you would need to care for other dependents;

*    If public transport were sporadic or unavailable, you would be unable to travel to work,  and/or:

*      If you or a member of your household fall into one of the categories identified by CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer:   YES __________   NO __________
 

The EEOC’s guidance also clarifies its position that employers may enforce rules requiring employees to behave in a hygienically appropriate manner to avoid the spread of the flu, to wear personal protective gear such as face masks, and to require employees to work from home.
 

In a separate release cryptically titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu),” the EEOC reminds us that Title VII “prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans.” The “guidance” states nothing else as it relates to Title VII. Presumably, the EEOC wants to remind employers not to direct any employment actions at workers of Mexican descent out of a fear or concern that they may be more likely to carry the H1N1 flu virus.

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Disabled Former Employees Lack Standing to Sue under ADA

Posted on December 9, 2008 by Christy Pate

The Sixth Circuit weighed in on an issue that has split the federal courts and has joined the Seventh and Ninth Circuits in holding that disabled former employees lack standing to sue under Title I of the Americans with Disabilities Act. McKnight v. Gen. Motors Corp., No. 07-1479 (6th Cir., Dec. 4, 2008). The Court found that three General Motors Corp. retirees lacked standing under the ADA to challenge the reduction of their pension benefits when they started receiving Social Security disability benefits. 

According to the court, the former employees are not covered by Title I because they are not “qualified individuals” under the ADA. The Court pointed to the statute’s use of present-tense verbs in the definition of “qualified individual,” including “can perform,” “holds,” and “desires,” and held that “Title I is unambiguous; by its plain language, it does not apply to former employees who are unable to perform the essential functions of their jobs.” Finally, the Court agreed with the Ninth Circuit that ERISA, “which seeks to police . . . fringe benefit abuses” partially fills any resulting gap. 

In contrast, the Second and Third Circuits have held that former employees who are totally disabled can be considered “qualified individuals” with standing to file suit under Title I. Unlike the Sixth, Seventh and Ninth Circuits, the Second and Third Circuits found that Title I is ambiguous with respect to the definition of a “qualified individual with a disability” and therefore concluded that a broader interpretation, including disabled former employees, was consistent with the purposes of the statute. 

In light of this conflict among the federal appellate courts, it would not be surprising if the Supreme Court grants certiorari to hear any appeal that may be filed.
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President Bush Signs the ADA Amendments Act

Posted on September 29, 2008 by Christy Pate

President Bush signed the ADA Amendments Act (S. 3406) into law Thursday, September 25. The new provisions, intended to clarify and strengthen protections Congress intended to guarantee in the original ADA, go into effect on January 1, 2009. For more information on the provisions of the new law and what the law means for employers, please read our previous postings where these issues are discussed in more detail.

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ADA Amendments Act Passed by House and Senate; President Expected to Sign Bill

Posted on September 19, 2008 by Christy Pate

On Wednesday, September 17, by voice vote, the House of Representatives approved the Senate version of the ADA Amendments Act (ADAAA) (S.3406), which the Senate had unanimously approved last week. The White House immediately issued a statement that President Bush looks forward to signing the bill into law. Once signed, the ADAAA will take effect on January 1, 2009.

The Senate bill differed slightly from the previously passed House version. For employers, the most significant difference between the two bills is the decision to eliminate a definition for “substantially limits,” which was included in the House bill. Instead, the new bill directs the EEOC to abandon its current regulation – a regulation that the bill specifically finds too restrictive – and to create a new rule that provides broader coverage.  

As previously reported, other key provisions of the ADAAA include:

  • "Substantially limits" loosened:
    -  Congress rejected several U.S. Supreme Court cases that have narrowly interpreted the ADA, including the court-fashioned requirement that an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to daily life in order to be considered substantially limited.

    -  In addition, an impairment that substantially limits one major life activity does not have to limit any other major life activities.
     
  • Major life activities” expanded:   “Major life activity” is broadly defined, includes specific examples of major life activities, and extends the phrase to include “major bodily functions.”
     
  • Consideration of mitigating measures largely eliminated:  Employers cannot consider the ameliorative effects of mitigating measures in determining whether an individual has a disability. The only exception is that glasses and contact lenses can still be considered.
     
  • Remission or episodic impairments counted: Impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active.
     
  • Limit to life activity not applied to “regarded as” provision: An individual does not have to establish that the impairment limits or is perceived to limit a major life activity under “regarded as” disabled provisions.
     
  • Minor or transitory conditions excluded: Minor or transitory conditions lasting six months or less are excluded from “regarded as” claims.
     
  • No accommodation required under “regarded as” provision: Employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled.

Congress’s clear intent is to provide ADA coverage to more people and to require courts to apply a less demanding standard in determining whether a person is covered by the ADA. Instead, Congress wants courts to focus on whether discrimination based on disability actually occurred. This likely means an increase in the number of employees and applicants who are considered disabled and places greater importance on employer efforts to reasonably accommodate those individuals. Indeed, the legislation strongly suggests that employers will need to reasonably accommodate individuals even if they are fully able to perform their job duties while taking medication or using prescribed medical devices. 

Though some believe that the ADAAA will not cause an increase in litigation, we believe that there will be a rise in the number of cases filed because the bill will make it easier to state a claim and because people initially will seek to test the new provisions. Additionally, under the current ADA and standards, many cases were dismissed before trial because plaintiffs could not meet the high standard of proving that they are disabled. The ADAAA makes this outcome much less likely. As a result, we expect a rise in jury trials as it becomes more difficult for employers to win at the summary judgment stage.
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House Overwhelmingly Approves ADA Amendments Act

Posted on July 11, 2008 by Christy Pate

The U.S. House of Representatives overwhelmingly passed the ADA Amendments Act, H.R. 3195, by a vote of 402-17. The bill would amend the Americans with Disabilities Act (ADA) and reject several U.S. Supreme Court decisions that have narrowed the scope of the ADA’s protection. If enacted, the bill would be effective January 1, 2009.

The intent of the bill is to restore the broad scope of protection available under the ADA.  The legislation includes the following key provisions:

  • The definition of disability is to be construed broadly.
  • Clarifies the definition of “disability” by:
    • Defining “substantially limits” to mean materially restricts (rather than the current standard of prevents or severely restricts);
    • Defining “major life activity” broadly and including within that definition “major bodily functions”;
    • Clarifying that an impairment substantially limits one major life activity does not have to limit any other major life activities;
    • Clarifying that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active;
    • Prohibiting consideration of the ameliorative effects of mitigating measures in determining whether an individual has a disability; 
    • Stating that an individual does not have to establish that the impairment limits or is perceived to limit a major life activity under “regarded as” disabled provisions. 
  • Provides that employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled.

Having received broad bipartisan support, the bill moved quickly through the House. The Amendments also have the support of both leading employer and disability groups. The legislation is now in the Senate, where it is expected to pass by the end of the year. Some media reports suggest that the Senate may actually take action before Congress takes its August recess.     It is not clear whether the legislation will be signed by President Bush. The Bush Administration expressed its general support for the bill, but has expressed concern that certain provisions are too broad, would be difficult to implement, and would lead to increased litigation.

From a policy and practical standpoint for employers, the clarified definition of what constitutes a disability is expected to increase the overall number of people considered disabled and in turn may require employer to accommodate a larger number of employees. Indeed, the legislation can be read to require reasonable accommodations to be provided to people who are fully able to perform their job duties when they are taking medication or using prescribed medical devices.

From a litigation standpoint, the Amendments generally are not expected to mean significantly more litigation. The Amendments may, however, make it more difficult for employers to win these cases on summary judgment, resulting in more “employee-friendly decisions” and potentially larger settlements.

We will continue to monitor the progress of this bill and will report back here if and when the bill is presented to President Bush for his signature.
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