Transcript History Behind the ADAAA

Breaking Down the Barriers:
An Introduction to the Americans with
Disabilities Act of 1990 from an
Employer’s Perspective
Chicago Metro AEYC Opening Minds Conference
Kim A. Leffert
Linda Boachie-Ansah
January 2012
(312) 701-8344
[email protected]
Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United
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The Americans with Disabilities Act of 1990
(“ADA”)
• Many Americans with physical or mental
disabilities have been prevented from fully
participating in all aspects of society because of
discrimination
– These individuals have historically been denied access
to things we take for granted: jobs, public
transportation, office buildings
• The purpose of the ADA is to provide civil-rights
protection to individuals with disabilities that are
similar to those provided to individuals on the
basis of race, sex, age, and religion
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Areas Covered by the ADA
• The ADA consists of 5 sections or titles:
– Title I prohibits discrimination in employment
– Title II prohibits discrimination in the provision of public services,
especially with regard to public transportation
– Title III guarantees that public accommodations, like hotels,
assembly halls, restaurants, and office buildings, are made
available to persons with disabilities
– Title IV insures that telecommunications devices are available
for persons with hearing and speech impairments
– Title V prohibits retaliation against an individual for opposing any
unlawful practice or for attempting to use the provisions of the Act
• State laws also prohibit discrimination against persons
with disabilities
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Entities Covered by the ADA
• Employers with more than 15 employees
• Employment agencies (“Temp” agencies)
• Labor organizations
• Joint labor-management committees
• State and local governments
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Disability Defined
• Under the ADA, the term “disability” means:
– A physical or mental impairment that substantially limits one or more major life
activities of an individual, such as;
• Diseases
• Infections
• Cerebral palsy
• Mental Illness
– A record of such impairment;
• This provision covers, for example, a person who has recovered from cancer
– Being regarded as having such an impairment
• For example, a person whose face is severely disfigured cannot be denied
employment on the ground that customers would reactive negatively toward
the employee
• The ADA Amendments Act of 2008 (“ADAAA”) specifies that the term
disability “shall be construed in favor of broad coverage of individuals
under this Act”
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History Behind the ADAAA
• The ADA originally was meant to provide broad coverage for
qualified individuals with disabilities, but a number of Supreme
Court cases narrowly interpreted the definition of “disability”
– For instance, in Sutton v. United Air Lines, 527 U.S. 471 (1999), the Court held
that an employee would not be considered disabled if she was able to control her
impairment
– Based on the Court’s interpretation, an employee whose illness could be corrected
by taking medication—including individuals with impairments like epilepsy and
cancer—was not considered disabled
• These holdings were contrary to Congress’s intent in enacting
the ADA. Therefore, the ADAAA, which became effective on
January 1, 2009, was passed to ensure a more generous
interpretation of the definition of disability. The U.S. Equal
Opportunity Commission (EEOC) published final regulations to
reflect changes made by the ADAAA on March 25, 2011
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Substantially Limits
• Under the ADAAA, the term “substantially limits” means materially
restricts
• The level of the restriction created by the impairment, rather than the
severity of the impairment, is the determining factor
– A person with mild mental retardation would be considered materially
restricted in the major life activities of thinking and learning
– Impairments that are episodic or in remission are considered disabilities if
the impairment would substantially limit a major life activity when in its
active state
– But, minor or “transitory” disabilities, impairments that are expected to
last less than 6 months, are typically excluded
• Substantial limitations do not include things such as
– Hair or eye color
– Sexual behavior disorders such as pedophilia
– Substance abuse disorders resulting from current illegal drug use
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Major Life Activity
• A major life activity includes activities such as
– Caring for oneself
– Performing manual tasks
– Seeing
– Hearing
– Walking
– Standing
– Lifting
– Bending
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Major Life Activity - continued
• A major life activity, as amended by the ADAAA,
also includes the operation of a “major bodily
function,” such as
– The functions of the immune system
– Normal cell growth, or
– Neurological, respiratory, and reproductive functions
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Major Life Activity - continued
• An individual with an impairment that substantially
limits at least one major life activity is not
excluded from coverage just because she can
perform other activities
– A person with cerebral palsy whose ability to speak is
affected may be considered disabled though she is
able to perform other tasks like eating, or buttoning her
clothes
– The ameliorative effects of mitigating measures
(except glasses or contact lenses) should not be
considered in determining whether an individual has
an impairment that substantially limits a major life
activity
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Record of Impairment
• A person does not have to be currently disabled to
be protected under the ADA
• A person with a past record of disability is also
protected and an employer cannot discriminate
against him
– For instance, an employer cannot refuse to hire a
person because of a former back injury if the person
can presently perform the job with or without
reasonable accommodations
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Regarded as Having an Impairment
• If the employer “regards” a person as having an
impairment, that person may have a protected disability
under the ADA
• Under the ADAAA and EEOC regulations, an employer
regards an individual as having a disability if it takes an
action prohibited by the ADA (for example, failure to hire)
based on an individual’s impairment or an impairment that
the employer believes the individual has.
– An employee with a skin condition may be able to show that her
employer discriminates against her because he believes it to be
an impairment
• “Regarded as” protections do not apply to impairments that
have an actual or expected duration of less than 6 months
duration of less than 6 months
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Types of Employment Decisions Prohibited:
• The ADA bans discrimination against a “qualified individual” with a
disability in virtually every area of employment:
– Hiring
– Firing
– Promotion
– Compensation
– Training
• A qualified individual with a disability is defined as one who, with or
without reasonable accommodation, can perform the essential
functions of the job
– It is important to distinguish between “essential” and non-essential” job
functions
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Essential v. Non-essential Job Functions
• Essential job functions are those that are fundamental
duties of the job
– For a French teacher, it is essential to speak French
– For a secretary, an essential job function may be the ability to
type
• Non-essential job functions are those that are seen as
peripheral or marginal
– For a science teacher, the ability to speak French is not essential
– For a secretary, the ability to drive (in order to pick up packages)
may not be essential
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Reasonable Accommodation
• A reasonable accommodation is a modification
or adjustment that allows a person with a
disability to perform her job
– The ADA requires employers to determine and provide
a reasonable accommodation unless doing so would
impose an undue hardship on the employer’s business
– What constitutes an appropriate accommodation
will be determined on a case-by-case basis
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Examples of Reasonable Accommodation
• Ramps
• Larger Bathrooms
• Wider Aisles and Doorways
• Job restructuring
• Modifying work schedules
• Acquiring or modifying equipment such as
electronic visual aids or Braille devices
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Schopmeyer v. Plainfield Juvenile Correctional
Facilities
• Schopmeyer, a teacher, suffered from major depression
• He was originally assigned to a small classroom with less
disruptive students
• After he reported another teacher’s inappropriate behavior,
he was transferred to a larger, rowdier classroom
• His depressive symptoms worsened and he requested a
transfer back to a smaller classroom
• His request for an accommodation was refused without
any explanation
• Schopmeyer filed a lawsuit, and the court determined that
his employer may have violated the Act by refusing him a
reasonable accommodation
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Undue Hardship
• To be reasonable, an accommodation must not
impose an undue hardship on the operation of the
business of the employer
• Factors to consider in determining an undue
hardship
– The nature and cost of the accommodation
– The financial resources of the employer
– The overall financial resources of the facility
– The composition, structure, and functions of the work
force
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Discriminatory Activities
• An employer is not allowed to
– Refuse to make a reasonable accommodation to a known
physical or mental disability
– Limit, segregate, or classify job applicants or employees because
of their disability
– Impose “neutral” requirements which have an adverse impact on
disabled persons
– Enter into a contract that has the effect of discriminating against
disabled employees
– Exclude or deny a job because of relationship with a disabled
person (i.e. person who lives with a person who has AIDS)
– Issue employment tests or rules that are unrelated to the job and
disproportionately affect individuals with disabilities
– Retaliate against those who are opposed to unlawful acts
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Johnson v. Board of Trustees of Boundary
County School District
• Johnson, who had a history of bipolar disorder and depression,
had been a special education teacher in Idaho for a decade.
• Under Idaho law, teachers are required to complete at least six
hours of professional development training during a five-year
period to renew their teaching certificate.
• Johnson failed to do so for four-and-a-half years, and then, right
before her certificate was set to expire, she had a major
depressive episode and could not complete the required
courses.
• When her teaching certificate expired, Johnson was terminated.
• She filed a lawsuit under the ADA, but the court ruled that
because Johnson did not have a valid teaching certificate, she
was not a “qualified individual with a disability,” and thus,
Johnson was not entitled to a reasonable accommodation.
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Acceptable Pre-employment inquiries
• An employer may ask any questions that are
related to applicant’s ability to perform essential
job functions
– Whether applicant can lift a certain amount
– Whether applicant can operate a computer
– Whether applicant has a driver’s license
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Unacceptable Pre-employment inquiries
• An employer may not ask an applicant whether
she has a disability, or about the nature or
severity of a disability
– Whether applicant has a back injury
– Whether applicant is able to read a computer screen
– Whether applicant is visually impaired
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Medical Examinations
• Pre-employment inquiries into an applicant’s medical
history violate the ADA
• After a conditional offer of employment, employers may
conduct a physical examination if
– All new employees are subject to examination regardless of
disability
– Medical information is kept separate from the personnel file
– Medical information is kept confidential, except from supervisors if
accommodations are needed, or in the event of an emergency
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Results of Examination
• An applicant may be rejected if the test shows his physical
inability to perform the essential elements of the job
– Employees must pose a direct threat to the health to safety of
others
• Considerable debate in Congress over whether food
handlers with AIDS posed this type of threat
• The employer must also show that no reasonable
accommodations exist
• Under the IHRA and other state laws, medical evidence
must show a current inability to perform the job
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Drug and Alcohol Testing
• Drug testing is not considered a medical
examination under the ADA
• A current drug user is not considered disabled
and is not protected by the ADA
– If current use or abuse affects the job performance,
disability protection is lost
• But, a participant in a rehabilitation program that
no longer uses drugs or alcohol is protected
– An employer is permitted to have screening programs
to determine who is a current user
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Liability under Title I of the ADA
• An employer who is found to have violated the
ADA may be subjected to penalties such as
– Back pay
– Reinstatement
– Compensatory and punitive damages up to $300,000
for the largest employers
• Damages are less likely if employer made a good
faith effort to provide a reasonable accommodation
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Lawsuits That are Not in Good Faith May Result
in Penalties
• In EEOC v. Agro Distribution, the employee (a manual laborer) had a
medical condition that prevented him from perspiring
• One day the employee refused to help lift 20 lb. items on a hot day
and his position was terminated
• The employee claimed that his employer violated the ADA
• The court found that the employee was not disabled because his
impairment did not substantially limit a major life activity
• Also, the court found that the employer could have reasonably
accommodated him, and thus he was not allowed to simply refuse to
work
• The court determined that the lawsuit was frivolous and therefore
awarded attorney’s fees to the employer
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Genetic Information Nondiscrimination Act of
2008 (“GINA”)
• The ADA prohibits discrimination against persons with either a past or
present record of impairment, or those who are regarded as having a
present impairment
• With advances in genetic testing, scientists are able to find genetic
variation that may signal or control diseases
• This knowledge may help further the development of preventative
medicine, but Congress found that genetic information could
potentially be used as a ground to discriminate
• To prevent discrimination by both insurance companies and
employers, Congress enacted GINA, which became effective on
November 21, 2009
– Similar laws that prohibit discrimination on the basis of genetic information
have been passed in more than half of the states, including Illinois
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State of the law prior to GINA
• In EEOC v. Burlington Northern, 2002 WL 32155386 (E.D. Wis.
May 8, 2002), certain of defendant’s employees had developed
work-related carpal tunnel syndrome
• Before defendant processed their claims, it asked these
employees to submit to a medical examination that included a
diagnostic blood test to see whether the employees were
genetically predisposed to carpal tunnel syndrome
• Defendant also threatened to fire employees who refused to
submit a blood sample for a genetic test
• The EEOC filed this lawsuit against the employer under the
ADA’s “regarded as” prong, but it is not clear that this type of
discrimination was on the basis of a disability
• The case settled prior to any substantive rulings
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GINA – Title II
• Title II of GINA prohibits employment discrimination on the basis of
genetic information
– Genetic information is:
• The individual’s genetic tests (defined as an analysis of human DNA, RNA,
chromosomes, proteins, or metabolites that detects genotypes, mutations, or
chromosomal changes)
• The genetic tests of family members of the individual
• The manifestation of a disease or disorder in family members of the individual
(either a dependent or up to fourth-degree relative, e.g., great aunt/uncle)
• GINA applies to:
– Private or state and local government employers with 15 or more employees
– Employment agencies (“Temp” agencies)
– Labor unions
– Joint labor-management training programs
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Prohibited Activities under GINA
• Under GINA, an employer is not allowed to:
– Fail/refuse to hire, or discharge, or otherwise discriminate against an
employee with respect to payment, terms, conditions, or privileges of
employment because of genetic information of the employee
– Limit or classify the employee in a way that would deprive the
employee of employment opportunities because of genetic
information; or
• For example, an employer could not reassign an employee whom it
learned has a family medical history of heart disease to a less stressful
task
– Request, require, or purchase genetic information of the employee or
a family member
• There are several exceptions to the prohibition on acquiring genetic
information, including:
– Inadvertent acquisition of genetic information “the water cooler problem”
– Acquisition as part of FMLA certification process, where an employee
seeks leave to care for a family member with a serious health condition
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Confidentiality under GINA
• Any genetic information that employer possesses
must be kept in files that are separate from the
employee’s personnel files
• This is not a burdensome requirement because,
as discussed earlier, under the ADA employers
are already maintaining separate files for the
employee’s medical information; genetic
information can be placed in the same file
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Penalties under GINA
• An employee who prevails in a lawsuit under
GINA can recover damages which may include:
– Hiring or promotion
– Compensatory and punitive damages
• These damages would be capped at $300,000 or lower
depending on the employer’s total number of employees
– Attorney’s fees
– Back pay
– Front pay
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Conclusion
• Disabled persons represent a huge, largely
untapped, and often highly motivated workforce
• By prohibiting discrimination on the basis of a
disability, the ADA and now GINA protect workers
and help employers (and others) to see their value
of their contributions in the workplace
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