Cobb & Cole
Americans with Disabilities Act Seminar
October 26, 2001
Outline of Written Materials
1. Overview of the Americans with Disabilities Act
2. Who's covered?
3. What is a "disability"?
a. Mental and psychiatric disabilities
b. Medically-controlled conditions
c. What is a "major life activity"?
d. What is "substantially limited"?
e. HIV / AIDS
f. "Perceived disability": the disability substitute
4. What is an "essential function"?
5. Disparate treatment and disparate impact
6. Prima facie case under the ADA
7. Other issues under the ADA
a. Employees who put others at risk 7
b. Pre-employment testing requirements
c. Privacy issues
d. Reasonable Accommodation
Mock Trial Fact Overview
1. Overview of the Americans with Disabilities Act
Congress passed the Americans with Disabilities Act (ADA) in 1990 to protect individuals with disabilities from job discrimination. The ADA, which became effective in July 1992, prohibits discrimination against disabled in employment, public accommodations, transportation and other public services.
Prior to the ADA's enactment, the primary law prohibiting discrimination on the basis of mental and physical disability was the Rehabilitation Act of 1973. However, the Rehabilitation Act only applied to the federal government and federal contractors and subcontractors. The ADA closed the gap by creating protection for employees of private employers. Because Congress borrowed language from the Rehabilitation Act in drafting the ADA, the existing case law interpreting the Rehabilitation Act is persuasive to judges when interpreting the ADA.
It should be noted that state laws on disability discrimination may apply more severe restrictions than the ADA. This outline, however, only discusses the ADA.
2. Who's covered?
Title I of the ADA contains the rules applicable to employers. Title I applies to all private employers who have "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." The ADA also applies to local government employers, labor organizations and employment agencies.
Previously, it was believed that the ADA applied to state employers, but the U.S. Supreme Court decided in February that suits in federal court by state employees to recover damages by reason of the state's failure to comply with Title I of the ADA are barred by the Eleventh Amendment. The ADA also does not apply to the federal government, a bona fide private membership club, or a corporation owned by the federal government or an Indian tribe.
The ADA provides protection to any "qualified individual with a disability." The term is defined in the statute as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the" job that he holds or desires. The employer's judgment as to what is "essential" is given consideration.
3. What is a "disability"?
A disability is a physical or mental impairment "that substantially limits one or more of the major life activities" of a person. What may be "life-limiting" in one situation or for one person, may not for another; courts will look at whether individuals are disabled on a case-by-case basis.
The law specifically excludes as disabilities: sexual behavior disorders and sexual identities, such as homosexuality, bisexualism and transvestism. The ADA also does not recognize as a disability illegal drug use, kleptomania, pyromania, and compulsive gambling. However, while current use of illegal drugs is not a disability, those who either have successfully completed or are undergoing a supervised drug rehabilitation program and are not currently using illegal drugs, and those who are mistakenly regarded as using, do fall within the purview of the ADA.
Temporary injuries - such as bone fractures - or other temporary, non-chronic conditions are not disabilities.
The EEOC defines that a physical impairment as one that affects a body system. A mental impairment would include mental retardation, organic brain syndrome, learning disabilities, or emotional or mental illness.
a. Mental and psychiatric disabilities
Like any other impairment, a mental impairment must be so severe as to substantially limit a major life activity. Moreover, if the condition is medically controllable, it may not qualify as a disability.
The EEOC has given several examples of mental illness which may be mental impairments sufficient for disabilities: "major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders."
The EEOC directed that the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) is relevant - although not conclusive - in determining these disorders. The EEOC also noted that individuals may seek professional counseling for emotional or mental problems that clearly do not rise to the level of a disability, such as family or marital problems.
The EEOC also said that certain traits or behaviors, such as stress, chronic tardiness, irritability, and poor judgment do not by themselves indicate a mental impairment.
b. Medically-controlled conditions
In determining whether a condition is a disability, courts now will take into consideration mitigating or corrective measures. Therefore, if a physical or mental condition is correctable to the point that the condition no longer qualifies as a disability, the condition is not covered under the ADA.
For example, in 1992 twins with 20/200 vision applied to work for United Airlines as pilots. With corrective measures, the twins were able to function as others. United, however, rejected the twins' applications because of their bad vision. The twins filed a lawsuit under the ADA, claiming they were discriminated against because of their disability. In 1999, the U.S. Supreme Court said the twins were not "disabled" under the ADA because they could fully correct their vision problems.
Likewise, UPS in 1994 hired a man as a mechanic / driver who had blood pressure so high it exceeded DOT standards. The man was fired, and he brought a suit under the ADA. The U.S. Supreme Court ruled in 1999 that the man did not have a disability because his doctor testified that when medicated, he functioned normally in everyday activities.
c. What is a "major life activity"?
To be a disability, an impairment must "substantially limit one or more of the major life activities of the individual." The Equal Employment Opportunity Commission has provided a list as a guideline to the activities that qualify as "major life activities." Those include:
caring for oneself
performing manual tasks
walking
seeing
hearing
speaking
breathing
learning
working
The U.S. Supreme Court has indicated that sexual matters and reproduction are also "major life activities."
d. What is "substantially limited"?
According to the EEOC, an impairment is sufficiently severe to substantially limit a major life activity if it prevents an individual from performing a major life activity or significantly restricts the condition, manner or duration under which an individual can perform a major life activity, as compared to the average person in the general population.
For a major life activity to be "substantially limited," courts will look at three factors:
1. the nature and severity of the impairment,
2. the duration or expected duration of the impairment, and
3. the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.
With respect to the major life activity of working, "substantially limits" means something more than being unable to perform only one function. The condition must limit employment generally, in other words, it must limit a class of jobs or a broad range of jobs. Where a condition hinders performance of some but not all jobs, the EEOC recommends looking to additional factors that may be considered in determining whether an individual is substantially limited in the major life activity of working include:
the geographical area that is reasonably accessible to the individual,
2. the job that the individual has been disqualified from because of an impairment, and the amount and types of positions within the individual's geographical area that utilize similar training, knowledge, skills or abilities, from which the individual is also disqualified because of the impairment (class of jobs), and
3. the job that the individual has been disqualified from because of an impairment, and the amount and types of other positions within the individual's geographical area that do not utilize similar training, knowledge, skills or abilities, from which the individual is also disqualified because of the impairment.
For example, a truck driver who had narcoleptic tendencies and was not able to drive long distances was not substantially limited in a life activity because he was potentially able to drive shorter routes, a federal appellate court ruled in 1998. In fact, the driver did later obtain a truck-driving job that did not require the same waking and sleeping duty as the long-distance driving route.
e. HIV / AIDS
The U.S. Supreme Court has ruled that HIV is a disability for purposes of the ADA because it is an impairment that substantially limits the major life activity of reproduction and therefore is a disability. The Court also ruled that the HIV infection must be regarded as a physiological disorder with an immediate, constant, and detrimental effect on the hemic and lymphatic systems.
f. "Perceived disability": the disability substitute
An employee who is perceived to have a disability may be treated as if he has the disability, even if he does not actually have the disability. Put another way, if an employer treats an employee or applicant as if he has a disability, this "perceived disability" may substitute for the requirement under the ADA that the employee actually have a disability.
The plaintiff still would need to prove that the employer based its decision on its perception that the plaintiff suffered from the disability. Congress added this feature to combat societal prejudices against the disabled.
4. What is an "essential function"?
Employers may not refuse to hire an applicant with a disability because the applicant's disability prevents him from performing marginal functions, but the prohibition does not apply where essential functions cannot be performed.
The concept of "essential functions" is thus important. A person who is not able to perform the essential functions of a position - either with or without accommodation - will not be protected by the ADA.
In determining whether a job's requirements are essential or marginal, a court will be guided by EEOC recommendations:
1. Whether the employer believes the function is essential to the job;
2. Whether the written job description prepared before advertising the job lists the job function;
3. How much time spent on the job would be performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of any applicable collective bargaining agreement;
6. The work experience of past incumbents in the job; and/or
7. The current work experience of incumbents in similar jobs.
The essential functions of the job are the essential functions of the job; an employer is not required to reassign the tasks of the job as an accommodation to a potential employee with a disability.
5. Disparate treatment and disparate impact
Discrimination is classified in two categories: disparate treatment and disparate impact.
Under a disparate treatment scenario, an employer intentionally treats people differently because of the condition at issue; under the ADA, it would be due to the person's disability.
Under a disparate impact scenario, the employer exercises a facially neutral policy that tends to deprive the employee of a right to equal employment opportunity. For example, an employer might require employment tests or other selection criteria that wind up screening out a class of people with a disability.
The majority of ADA claims will fall under the disparate treatment theory. Although less frequent, disparate impact claims are possible.
6. Prima facie case under the ADA
In order to establish a prima facie case of discrimination in violation of the ADA, a plaintiff must prove that
1. he has a disability;
he is a qualified individual; and
he was subjected to unlawful discrimination because of his disability.
An employer may not "discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
Discrimination means that the employer limits, segregates, or classifies an employee or applicant based on the disability. Thus, the plaintiff must demonstrate not only that he had a disability, but that there was a nexus between the disability and the employer's discriminatory action. In 1996, the federal circuit court encompassing Florida ruled that the plaintiff need not prove that the disability was the sole cause of the discriminatory action, it need only be a factor in the employer's decision, so long as the inclusion of that prohibited factor made the difference in the decision.
The nexus element also demonstrates that an employer must be aware of an employee's disability. If the employer was unaware, his actions cannot be said to have been based on the disability.
7. Other issues under the ADA
a. Employees who put others at risk
Although the ADA allows employers to defend a claim of disability discrimination by proving the employee posed a substantial risk of serious injury to the employee or to co-workers, this is a high standard to meet. Courts require that there be a "significant risk" to the health or safety of others before an employer may treat employees differently on the basis of the threat of injury. Typically, courts will look at four factors of whether the person poses a "significant risk":
1. the duration of the risk,
2. the nature and severity of the potential harm,
3. the likelihood that the potential harm will occur, and
4. the imminence of the potential harm.
Courts find that employees with mental or emotional impairments that could lead to workplace violence pose such a threat.
The employer can rely on objective evidence and may not consider subjective belief or speculation that there is a direct threat. The threat must also arise from the performance of an essential job function; if any non-essential job functions create the threat, those functions must be removed.
Where the risk to other employees is a communicable disease, the factors vary only slightly:
1. the nature of the risk (i.e., how the disease is transmitted),
2. the duration of the risk (i.e. how long the carrier is infectious),
3. the severity of the risk (i.e., the potential harm to third parties), and
4. the probabilities the disease will be transmitted and will cause varying degrees of harm.
The analysis may be viewed as a sliding scale: disparate conduct may be tolerated by a court where the risks for serious or permanent injury are great, even if the risk of transmission is low. Thus, in HIV/AIDS cases, courts are likely to uphold disparate conduct even where a risk of transmission is low.
For example, one court upheld disparate conduct in a case where an HIV-infected person worked as an orthopedic surgeon. Although the surgeon demonstrated that the risk of transmission was low - between 1/41,600 and 1/416,000 - the court said,
Even if the risk is 'exceedingly low,' as characterized by the [surgeon], the risk of blood-to-blood contact between the orthopedic surgeon and patient during an invasive procedure is a real one. Specifically, there is a danger of the surgeon cutting himself during an operation while working in the patient's body cavity. . . . there is some basis to characterize [the surgeon's] condition as a 'significant risk' even assuming that the probability of . . . transmitting the disease during surgery is low. . . . The severity of the harm is high.
Nonetheless, contact higher than ordinary human contact will be necessary for a court to find a direct threat to the safety of others. The federal circuit court that encompasses Florida stated that "the asserted danger of transfer must be rooted in sound medical opinion and not be speculative or fanciful." One court found that an HIV-positive ship entertainer posed no direct threat to passengers or crew. Another court held that the risk of transmission of HIV by a grocery produce clerk was negligible.
However, the risk of transmission would be sufficient where in invasive medical procedures or in a martial arts setting.
b. Pre-employment testing requirements
The ADA's general prohibitions against discrimination extend to medical examinations and testing for employees and job applicants.
Under the law, an employer may not inquire into the nature of a disability or require a pre-employment medical examination (other than for the presence of illegal drugs).
An employer may not ask prior to employment, for example, "Do you have AIDS?" or "Are you being treated for mental problems?" It is acceptable to ask whether a potential employee can perform the job's functions or the attendance requirements.
Physical agility tests and job demonstrations are not medical examinations, the EEOC has advised. Because of the potential for screening out an otherwise qualified individual who has a disability, an employer must be able to show that the test is "job-related and consistent with business necessity."
An employer may require a medical examination after the employment offer has been made but before commencement of employment and condition the offer on the results of the examination if three requirements are met:
1. all new employees are required to pass the examination,
2. information regarding the applicant's medical condition or history is treated confidentially and kept apart from other employment files and records, and
3. the results of the examination are used in accordance with the ADA.
In one case from Kansas, a woman was hired for a job that required heavy lifting. The woman did not tell the employer that she had a disability until two months after she had been hired. She was terminated, and she brought a claim under the ADA. The court ruled that terminating an employee for failing to disclose a physical disability was the same as inquiring into the disability before hire. However, the employer was entitled to inquire as to whether the woman could perform the job's functions to determine if she was, in fact, qualified.
c. Privacy issues
The ADA requires that employees' medical information be kept private. This is particularly true in HIV/AIDS cases; disclosure of such information by the employer could result in an invasion of privacy lawsuit.
When conducting a medical examination after an offer has been extended but prior to the commencement of work, a covered entity must keep forms and medical files confidential and separate from non-medical employment files. Safety personnel, supervisors and managers may be informed regarding necessary work restrictions or accommodations, but generally the information is to be kept private.
d. Reasonable Accommodation
In addition to its prohibitions against discrimination, the ADA also requires that employers accommodate persons with physical or mental disabilities so they can meaningfully achieve equal employment opportunities.
An accommodation is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."
The ADA lists some potential methods for accommodating someone with a disability:
making existing facilities used by employees readily accessible to and usable by individuals with disabilities
job restructuring
part-time or modified work schedules
reassignment to an appropriate vacant position, if one exists
acquisition or modification of equipment or devices
appropriate adjustment or modifications of examinations, training materials or policies
provision of qualified interpreters
other similar accommodations
An employer need not make an accommodation where doing so would be unreasonable, or in other words, where doing so would be an undue hardship on the employer. An undue hardship is one that is significantly costly or difficult.
The ADA recommends looking at several factors in determining whether an accommodation would be an undue hardship, including:
1. the nature and cost of the accommodation,
2. the financial ability of the employer,
3. the size of the employer,
4. the financial impact of making the accommodation on the employer,
5. the type of operations of the employer, and
6. the geographic, administrative or fiscal relationship of the employee's facility to the employer.
A court also will not require an employer to provide, as a "reasonable accommodation," personal benefits to an individual with a disability. Such personal benefits might include a wheelchair, a prosthetic limb, or prescription eyeglasses.
Cobb & Cole
Americans with Disabilities Act Seminar
October 26, 2001
Mock Trial Fact Overview
Victim: Beau Simpson a/k/a Vicki
Beau is a 40 year old male with a distinctly funny walk and bad posture. Beau's funny walk is easily corrected with certain orthopaedic footwear and his bad posture is substantially corrected with the use of a breast plate apparatus. All of his life, Beau dreamed of modeling lingerie on the runways of New York's fashion scene. Beau prefers to be called "Vicki" finding his given name, "Beau," to be an impediment to his desired career.
Undeterred by the obstacles before him, Beau trains daily preparing for his destiny. Each Monday, Beau dresses up in his best lingerie and practices his walk and runway turns at the local park, at least until the court order but that's another trial. Now Beau walks the plywood runway that he recently built in his front yard. Beau also regularly visits Victoria's Secret and maintains subscriptions to numerous high fashion magazines to stay up on the trends of his desired trade.
Beau spends the rest of his week toiling away at the local golf course painting stripes on range balls. He is married with two emotionally scarred children.
On October 31, 2000, Beau got the chance of a lifetime; an interview with the prestigious modeling firm of Haught, Tutrot & Bearlydresed. Beau met with Col. Giuseppe Martin. The interview did not go well.
Beau believes that Col. Martin denied him employment because of his funny walk and bad posture. He is very angry. Beau hired an attorney and sued Haught, Tutrot & Bearlydressed under the Americans with Disabilities Act.
Cobb & Cole
Americans with Disabilities Act Seminar
October 26, 2001
Mock Trial Fact Overview
Accused: Col. Giuseppe Martin of Haught, Tutrot & Bearlydresed
Col. Giuseppe Martin is a relatively young man with militaristic qualities. He served four (4) years in the Salvation Army where he attained the rank of Colonel. He prefers to be called Colonel to this day.
Upon leaving the Salvation Army, the Colonel was hired by Haught, Tutrot & Bearlydresed to reign in the free spirited fashion models and bring order to an otherwise orderless profession; a job the Colonel zealously embraced.
In October, the Colonel received a resume from one Vicki Simpson. The resume revealed a candidate dedicated to the industry with a training regiment fitting the Colonel's new fashion world order. The Colonel contacted the candidate and arranged an interview on October 31, 2000.
Vicki arrived at the palatial office's of HTB in a suit and tie, ten minutes late for the interview. The Colonel was shocked to discover that Vicki was a man. However, Vicki was well-spoken and had ambition matched by none.
The Colonel did not notice that Vicki had a funny walk and bad posture. At the end of the interview, Vicki revealed that his walk was considered funny by some and his posture was poor, but that these deficiencies were readily correctable with certain devices which would be undetectable given slight apparel modifications. The Colonel stated that although he wouldn't normally ask this of someone, he wanted Vicki to submit to a medical examination to determine the scope of the deficiencies.
Ultimately, the Colonel informed Vicki that no job offer was forthcoming because, as the Colonel put it, "you could hurt yourself up there on those runways." Vicki suggested that runways could be lowered to reduce the risk of injury, but the Colonel refused. Truth be known, the Colonel thought Vicki was crazy.
Issues for Direct/Cross of Beau Simpson and the Colonel
Background
Qualified Individual
Type of job sought
type of work/activities involved
Qualifications
with a Disability
Type of Disability (2: funny walk and bad posture)
Substantially limited:
nature and severity of the impairment;
duration of the impairment; and
permanent impact of the impairment.
Major life activity - walking, working
As to working:
ability to perform more than one function;
does the impairment limit a class of jobs;
what else can you do for a living (painting golf balls)
Able to perform the essential functions of the job
Function essential to the job;
Time spent performing the function at issue;
Is not performing the function a viable option;
Medically controllable
Corrective measures (demonstration)
Reasonable Accommodation
Modify lingerie to accommodate corrective device
Lower runway
Undue hardship on HTB.
Unlawful discrimination b/c of disability
Told he would hurt himself
Asked to get a medical examination prior to offer of employment
Substantial risk of injury to self or others
Duration of the risk;
Potential harm;
Likelihood of harm;
Imminence of harm.
Vicki
Major life activity
You say you're disabled b/c your funny walk and bad posture, right?
Is this your condition all of the time?
Can you walk? How long does it take you to get there?
Do you work? Any other jobs you could work at where you're funny walk and bad posture wouldn't substantially hinder your performance.
Can you work
Qualified individual with a disability
Primary function of a runway model? Model clothes on a runway
What do runway models do? Walk
Is that walk smooth, does it flow, do they glide down the runway
Do runway models stand up straight, or do they slouch over.
Can you stand up straight, glide to the end of the runway, make a fanciful turn and walk back?
Reasonable Accomodation
You applied for a job with HTB as a runway model, right?
You were going to model lingerie?
What does lingerie look like?
How would the corrective devices you use mesh with lingerie
BRING OUT MEDICALLY CORRECTIVE DEVICES
Interview
You met with Col.
How did that go?
He asked you to get med. Exam, didn't he? You agreed.
Subsequently, he told you that he couldn't give you a job didn't he, because you could hurt yourself up on the runways.
Runways
How high are the runways? Narrow?
Industry standard?
How much would it cost?
If you fell off the runway, you could hurt yourself couldn't you.
Who sits at the end of the runways, bigwigs right?
Could hurt one of them?
Colonel
Background
Runway models?
What do they do?
What must they be able to do?
How much time do they spend doing that?
Is there some other way to get to the end of the runway that would meet the needs and expectations of your clientele.
Describe runways
High, narrow
Do you know the plaintiff?
Oct. 31, 2000 - Interview
Med. Exam
Essential functions?
Why didn't you hire Vicki?
Reasonable accomodations?
Workable
Cost
