First Lecture for Disability Discrimination (HRPO 2303)


welcome to this presentation relating to
disability discrimination we’re gonna do about the first half of the material in
this presentation in this particular lecture so let’s go ahead and get
started we’re going to cover several different topics and will basically be
covering this column here this this column in our first lecture we’re going
to do a very short introduction then we’re going to discuss the prima facia
framework for a DA claims and you’ll see that it is very very similar to the
prima facie framework that we’ve used in our title seven situations there’s a
couple of tweaks though that I do want to draw your attention to and then we’ll
talk about some key concepts after we complete the key concepts in this
lecture you will see that the reasonable accommodation topic which really is also
going to tie very closely to the undue hardship topic both of these are going
to roll over into our next section so we’ll kind of end on a reasonable
accommodation then our next lecture will begin on reasonable accommodation
because honestly that’s where the activity is in this topic we’re going to
talk about a lot of other stuff but really and truly 90% of the litigation
and 90% of the problems that HR professionals have are going to be in
this sweet spots where we see the the the case all develop and be a particular
interest and in our second presentation will cover our second column so let’s go
ahead get started we’re going to cover a bit of the history of disability
discrimination well I spend a lot of time on this because honestly who cares
by the history we care about what’s happening now but actually in this one
area is kind of useful to talk a little bit about the history because the
Americans with Disabilities Act which was passed in 1990 is really the second
discrimination statute that we had um you really don’t need to know very much
about the first one the first one is called the Rehabilitation Act and as we
can see it was passed in 1973 so this was passed just after we had all of the
activity in the 60s with Title 7 American age discrimination employment
at and equal pay at and all that stuff all that attitude this came at the tail
end of it but it was very restricted it provided pretty much the same goodies
to disabled individuals as the American Disabilities Act provides except it was
limited to people who work for the federal government and a few other folks
so the the scope of the benefits were about the same as what we see anything
marecus Disabilities Act but it was limited to federal employment you might
almost call it kind of a dry run a test hey how much of a problem is this gonna
be how awesome is it gonna be let’s do some almost test-marketing you could say
to see if this is really really going to work and the judgment that our Congress
made was that yes it does work and so it was expanded about seventeen years later
in 1990 to cover pretty much the entire US economy so you may say that’s maybe
interesting but how does it impact me well impacts you in this sense as you
dive into this practice area and you will see that many of the cases that we
we struggle with in this area are going to be rehabilitation act cases and in
the vast majority of cases um the a DEA just uses the Disability Act the
Rehabilitation Act cases so don’t be taken aback when you’re reading a case
in this area and see oh well gosh they’re interpreting the Rehabilitation
Act that’s not the statute that applies in my fact pattern I care by the
Americans Disabilities Act just know that for the most part Rehabilitation
Act equals Americans Disabilities Act in terms of statutory interpretation okay
so that’s pretty much all you need to know by the Rehabilitation Act the a da does required EEOC charge we’re
not really going to spend it really anytime on this topic because the EEOC
process works exactly the same for the Americans Disabilities Act as it works
for title seven type situations are going to have the charge file there’s
going to be that likely that mediation process the EEOC is going to investigate
it and will likely issue a right to sue letter the charging party has then 90
days to file a lawsuit if the charging party wants to same process that we have
under the ADA as we have under title seven and let’s talk about the two
titles in the ADEA the title that we care about in this class and by the way
title is just basically section of a particular statute
so title 1 of the American Disabilities Act has to do with employment title 2
has to do with public accommodation for example let’s say I’m in a wheelchair
and I want to see the Cowboys play in in our being I guess in Stadium and I find
when I get there that I can’t get my wheelchair to where my seats are well
that would be a title 2 violation and because I’m have a right to have access
to any places that the general public has access and even though I am in a
wheelchair or perhaps has some other type of issue this is one of the reasons
for example why why businesses can’t refuse to permit people who have service
animals to use those service animals as they shop or eat or whatever title 2
does not have to do with employment so we’re talk about tattoo or time in the
general public we’re not talking about employees or applicants or anything like
that many times HR professionals have to deal with title 2 issues if they happen
to have an employment situations where the general public is interacting for
example if you are at a retail store environment well you have to make sure
that your aisles have a certain width so that people who are in wheelchair
wheelchairs will be able to maneuver down those aisles are also fire code
issues and play there and so you have to be aware well that’s
a title to issue or that’s a title one issue but for the purposes of this class
the only thing we’re gonna focus on is titled I guess another area where title
two comes up is for access students here at Collin when you take a course here
let’s say you have a disability for example let’s say that you have dyslexia
and so you need additional time to take tests because the way that you read it
the way your brain organizes the written words a little different than the way
that a typical person experiences reading and therefore perhaps that
process takes a little bit more time for you and so the way that we accommodate
under title two is their access office and that may mean that you receive extra
time or that perhaps you have a reader read the questions or something along
those lines anyway so title two also relates to accommodations in the
educational scenario beyond just the physical access okay but now again we’re
gonna go back to title one and focus on that okay so let’s kind of get our big
toe in the water with the language we’re gonna spend a lot more time later on
this presentation with this but let’s kind of play around for a second in
order to be covered by title one of the ABA you have to be a qualified person
you probably hear that term and go ah groover you’re using language I know
because that’s what we talked about when we were talking about the prima facie
case that’s one of those four prongs well you if you caught on to that you
are doing great because that is absolutely a requirement under title
seven it’s a requirement under the Age Discrimination Employment Act and yet
again we see it under the immense distance that qualified is an important
concept in employment discrimination generally the person has to be qualified
if I’m not quite even if I’d haven’t gone to medical school and I applied to
for that brain surgeon position and I say oh I wasn’t considered because I’m
in a wheelchair well the hospital’s gonna say Gruber you go to medical
school first once you get your educational
credentials and the experience that you need for that then come back and see us
because then you will be qualified and then we’ll engage in a conversation
about but now you don’t even have the basics
and so we need to have that first before we even look and see if there’s a
disability discrimination argument so this is the definition a qualified
person with a disability means the individuals satisfies the skill
experience education and other job-related requirements for the
position with or without reasonable combination now you’re probably on board
I’m hoping you’re on board up until this point when we get to this point we need
to flip on over to reasonable accommodation and so we need to kind of
play around with that language and see kind of how that’s going to play out
reasonable accommodation means that well actually it’s a rather complicated term
and we’re going to be talking about it extensively later on so what I’m going
to do is I’m just going to kind of pause on that term and we’ll return to it
later on but just know that qualified means exactly what you think it means up
until this point and then when we get to reasonable accommodation we’ll get more
granular and figure out how these terms impact reasonable accommodation well
impacts qualification so in addition to examining whether a person is a
qualified person with a disability we also have to consider well whether the
employer is in some sense qualified what employers are covered by this you know I
already said that under the Rehabilitation Act we were really just
talking about the federal government and federal contractors so it’s a pretty
small universe but what the American Disabilities Act the universe became
huge I mean virtually everybody who isn’t a tiny tiny employer is covered by
the immense bill is that and in fact we see we have the same employment horizon
under a da’s we have under Title 7 I’m gonna break away right here for a second
and I’m gonna go into some statutes we haven’t done a lot with statutes I
apologize for not doing this earlier because this is super helpful so for
super awesome stuff to do here we go so here we have stuff this is the actual
statute you can see Americans with Disabilities Act of 1991
9 90 as amended we’ll see there was some
significant amendments in 2008 we’ll talk about those in a couple of minutes
so this is the latest and greatest format it has the original stuff that
wasn’t changed and then it’s got all the cool stuff that we added in 2008 so I’m
gonna scroll down here I’m gonna go down to just on a second ago here we go in center additional definitions is oh
here we have the definition of the employer
you know I throw around things all the time and I say this is this is what the
statute means and most students are very trusting and they just accept oh well
whoever said this what the statute means it must be what the statute means but
every now and again I’ll have a student who’s a little bit more skeptical which
is awesome because it means you’re thinking hard you’re considering this
you want to see the language you don’t you’re not satisfied just because I said
that that’s what it says and so for those amongst you who are skeptics or
who want the deeper dive or who want the greater level of understanding here we
go this is in fact the language that tells us whether someone is an employer
or not employer in general the term employer means a person and you may pass
up here and say wait a second gosh my employer is Exxon or my employer is
Toyota or whatever that’s not a person that’s a company well the term person in
the law includes entities that aren’t human beings it
includes legal entities like corporations like partnership so don’t
stumble over the word person in this context it really means a human being or
a business so the term lawyer the term employer means a person engaged in
industry affecting Commerce and Industry affecting commerce we’ll talk about that
in just a second so pause on that or put a little asterisk there now we’re going
to get to the next section the term employ employer means a person engaged
in in an industry affecting commerce who has 15 or more employees I didn’t lie
right but you can see well I didn’t lie I simplified it greatly so now I’m going
to show you the real definition this is the unvarnished complete deal okay so
this is the part that I usually edit out but and then in the interest of full
disclosure so you get that this is more complicated and something
make it seem let’s go back and start this from the beginning the term
employer means a person engaged in an industry affecting Commerce who has 15
or more employees for each working day in each of 20 or more calendar weeks in
the current or preceding calendar year and any agent of such person except that
for two years following the effective date of this subchapter an employer
means a person engaged in industry affecting commerce was 25 or more
employees for each working day in each of the 20 or more calendar weeks in the
current or preceding year in any agent a such person well of course we’re not in
1991 or 1992 so this exception here is no longer applicable and you can see
that the 15 or more employees is actually kind of more complicated that
because we have to technically look back 20 more we are 20 or more calendar weeks
either in this year last year to do the counting so a particular employer might
have less than 15 employees and yet if they have had more for at least 20 weeks
then they may still satisfy this definition so when I say 20 or more
employees that’s just the Cliff Notes version there’s a lot more complexity
sent as the issue but you know what if you’ve got a hundred employees you don’t
need to sweat this because you know you’re well over 15 so and only the
companies that are close to the line are you going to be interested in that I’m
also going to drill down a little bit on this qualified employee individual just
so you can see what the statutes doing in this area so we’re going to go back
up to the top and we’re going to look at qualification standards so we’re going
to go to defenses qualification standards ah well actually this isn’t what I
thought it was going to be we’ll visit that in a couple minutes okay or
actually in the next lecture okay so that’s where we are with this I wanted
to just show you when I say 15 or more employees we mean something a little bit
more subtle than that and now we have this language I’m sorry about that we
have this language that I said to put a little asterisk by industry affecting
interstate commerce gosh interstate commerce what’s that about a little bit
of constitutional law I’m going to sprinkle in here when the Congress acts
the Congress of course is the federal government whenever the Congress acts it
needs to point to an enumerated power in the Constitution that gives it the
authority to act so it has great power but its power is limited to particular
category so where it’s powerful it’s really powerful but when the
Constitution has not given Congress to act in a particular area
Congress is powerless it is impotent so it’s either highly potent or impotent
and so in that context the the Congress is is having to tell us or in statute
we’ll have it tell the public hey this is why and how we have the authority to
do this and so that language was really a signal to legal professionals yeah we
know we don’t have infinite power where the Congress were super powerful where
we’re powerful but we know it’s not infinite and so this is us limiting
ourselves to where we’re supposed to be and we can only affect interstate
commerce that’s in the Congress in the Constitution that’s why let me put this
way that’s one of the areas we have the power to affect interstate commerce and
so we’re going to restrict ourselves to interstate commerce it’s possible we
might have authority beyond interstate commerce if we’re maybe alleging taxing
power or some other type of power but well we think our basis for authority to
act in this way is the Commerce Clause the Constitution and so that’s why we
say industry affecting interstate Commerce you may think well what does
that mean well what basically it basically it
means everybody there’s almost or the very very few industries that are not
engaged interstate commerce imagine for a second that you happen to employ will
say 16 employees you’ve got a lawn service and everybody who works for your
business lives in Collin County and all the lawns that you’re mowing are in
Collin County you’re a texas-based corporation or maybe not even a
corporation maybe your sole proprietorship you think to yourself oh
gosh I don’t see how I’m interstate commerce at all except that you bought
these lawn mowers from Home Depot and guess what you buy gasoline for your
vehicles you know argue for your motor submit
your for your lawn mowers and many times those things were part of interstate
commerce oh and you accept checks from your customers and many times those
checks are written ain’t from banks that are in different states and when you
need service on your lawnmower and you take it in maybe to get the blade
sharpened or to get some repair work done maybe new spark plugs or something
you go to a shop that is actually incorporated in a different state and
you might say to yourself well yeah but those are kind of details you don’t need
a lot you do not need a lot under the Constitution to be considered to be
engaged interstate commerce so almost certainly if a business has 15 employees
it’s going to be involved in interstate commerce if it’s super small maybe not
but I usually once you get to 15 there’s gonna be sufficient interstate ecommerce
that you’re gonna find that yeah that’s a not a hurdle that you have to worry
about crossing okay so let’s continue on so we’ve kind of played around with our
definitions here we know from the statute what we mean by the
employer now okay there are some areas that are exempt from the ABA one is the
US government gee I wonder why they’re exempt because of that Rehabilitation
Act right Indian tribes are exempt probably the reason that they’re exempt
is that they really are in many senses autonomous nations within the country
just like the US government doesn’t pretend to tell Canada what to do or
Mexico what to do or France what to do it’s not usually going to be telling an
Indian tribes Indian nations what to do and then also another exception that we
see in many statutes is the bona fides private membership club exception and so
that’s again but these other than the federal government these are relatively
small populations okay so we have our first lesson to see three lists that
I’ve put into blue and I like to call this the three by threes this is our
first three and we see that the ABA requires reasonable accommodation in
three aspects of employment so we haven’t really talked about reasonable
accommodation yet but I’m gonna start the conversation right here so when we
accommodate someone we discuss this in the context of religious Reformation
when we accommodate somebody we’re giving them something extra that we
don’t give to other people so let’s imagine that I am vision impaired
I’m not blind but I’m vision impaired and so I need to really blow up the font
on my computer so I can read what’s on the computer and the nature of the job
that I’m seeking is one that I’m gonna have to be able to use a computer as a
result I may well need a much bigger monitor just to be able to see a
meaningful amount of the material and that monitor is gonna cost we’ll say
$4,000 the traditional monitor that this particular workplace uses the monitors
are four hundred dollars and so it’s a pretty significant higher price that my
cubicle mate has typical vision he needs the four hundred dollar monitor because
of my vision I need the four thousand dollar monitor you can see how that
would be an accommodate now once I get the four thousand dollar
monitor my my cubicle may might say gosh I’d love to have that that would be
somewhat fun to be easier to see everything it would be super cool and it
might well be super cool for him to have that but he isn’t going to be able to
require that the employer provide that because he doesn’t have the disability
that I have let’s say that he’s in a wheelchair
he doesn’t have vision problem and so he’s on Tod to the four thousand dollar
monitor but he might be entitled to having a larger space around his desk so
he can maneuver so maybe his half of our cubicle is significantly larger than my
half I think to myself I would love to have more real estate to kind of be able
to spread out more but again I don’t have a mobility limitation so I’m not
entitled to that type of reasonable accommodation so what would be a
reasonable accommodation for one disability or one employee might be very
different from another and again in order to be eligible for reasonable
accommodation ba you have to be disabled and we’ll talk about what that means
later on so I’m kind of gaining the cart before the horse so to speak so when am
I entitled to these types of reasonable accommodations if I am entitled one can
be in the application process let’s go back to my my cube mate we’ll call him
Bob Bob is in a wheelchair he is applying for a job in this particular
facility that is seeking candidates is is a brand new but their office building
hasn’t even opened up and so they’re interviewing people in a you know a
temporary building I mean it’s been rainy and muddy and so you know they
used to have a ramp but the ramp wasn’t working out it got stuck in the mud and
and all that kind of stuff and so all they have our stairs into the facility
Bob arrives for his interview but you know because he’s in a wheelchair he’s
not able to get inside the facility now at this point he isn’t an employee at
all it may well be that he’s not qualified for the job and he’ll never be
an employee but he is entitled to reasonable accommodation even through
the application in interview process so this is you could
say the pre-employment process candidates are entitled to that through
this process and actually I’m going to say this to you that while this is not
where most of the discrimination claims arise under the a da
this is the single trickiest area so that’s not probably the most it’s not
the most dangerous in the sense it’s most likely to result in charges and
legal exposure but it’s the most dangerous in the sense that it’s easiest
to mess this up and I would I would submit to you that this is the air and
that’s probably messed up most commonly in corporate America I’m going to show
you some resources what we’ll visit this a little bit later as well but I have
some resources that I want to bring to your attention here to kind of introduce
you to some of the stuff here this is a website urn that talks about many
different topics but one of the topics it talks about is the interviewing
process and when it when we’re considering the interviewing process you
know here you are you’re getting right to some interviews you don’t have any
reason to think that your next candidate is going to be disabled I mean people
don’t have to say oh by the way you may not know this but I’m disabled they can
just show up at the interview and you’re looking at somebody who’s in a
wheelchair or who is blind or who seems to have perhaps some kind maybe
psychiatric situation going on and you are like a deer in the headlights you
don’t know what you can say you don’t know what you can’t say you don’t have
any time to prep because they’re there and the interview is happening in fact
it may be in the middle of the interview when the person says to you oh by the
way I’m HIV positive or oh and by the way I am bipolar disorder or oh and by
the way I happen to have brain cancer and as a result I have seizures
regularly and so you don’t even necessarily you’re not always even able
to tell once they show up that that there is an issue that needs to be dealt
with and so because you haven’t had any time
to prep you’re having to do this on the fly now once the employment relationship
is established and maybe you get a request for reasonable combination you
have the ability to say okay thanks for letting me know let me look into it you
get back to them the next day or maybe the two days you’ve got time to talk to
the right people and get the right information nobody’s expecting you to be
all-knowing at that particular moment but there’s you have to do something you
have to continue the interview and you have to not mess up and that is a very
intimidating position for you to be in and so it’s useful to train for this but
if you are the HR person to train your staff so that they know what to do it’s
also useful to have regular repeats because again how many times are you
gonna have a disabled person show up who is in a wheelchair who is blind who is
deaf who shares a mental or a psychiatric issue that they may be
confronting it won’t happen every day it may not happen every year and so you
might forget what the thing with the things are you can ask what the things
are you can’t ask so it’s good to have a refresher another good approach would be
to have some kind of cheat sheet in your desk drawer that you can pull out when
you’re doing that interview to refresh yourself and of course you can assist me
assemble is thank you for your time I just need to review my notes for a
second and you can go over the notes you don’t have to let them see the notes so
that you can make sure that you are well prepared and well positioned for success
okay so let’s just go through a couple of points about what to do and what not
to do as we said before you want to make sure that your application forms and
your interviewing locations are accessible to people with disabilities
you may say well how can an application form be accessible with people with
disabilities well if it’s entered if it’s available on the Internet is is
your website designed that it is disability friendly that it will allow
disabled people perhaps to that there’s a function on it that will
disabled people to have have a reader read it for them or something along
those lines um it’s a good idea also to interview
applicants ahead of time so they know that they will need to do a particular
task so that if there is some special accommodation they need they can let you
know beforehand now you don’t just let the disabled individuals know about this
requirement you let everyone know about this requirement again because the
disabled person may not you may not be able to know ahead of time whether this
person is disabled or not and even if you were somehow are able magically to
know who’s disabled or not simply by the resume you shouldn’t treat applicants
differently in this regard and then you ought to make sure that all applicants
feel comfortable and have the opportunity to ask for any reasonable
accommodations that might come up for example if an applicant has a visual
impairment they may need assistance in completing paperwork so you or someone
else might need to fill in the blanks for them you might need to read it to
them and then fill in the answer is it becomes appropriate if somebody is deaf
then they may bring a interpreter or they may ask you to hire an interpreter
again that’s very appropriate for you to have those names already available and
have and if you don’t – then of course spring in – getting that process taken
care of and there may be some other types of distant disabilities that might
require some additional support and so as you as you get the requests you’re
going to need to kind of think through well how am I going to accomplish that
in a really awesome awesome tool for this is the job accommodation network
which is oftentimes called Jan this website gives a ton of information
accommodation search all this kind of stuff let me just kind of flip here and
say here we go let’s pick topic let’s say that’s good in our accommodation search
there might be a better one okay so let’s say your candidate is in a
wheel let’s say not to let you let’s say hearing-impaired and it will list all different kinds of
software and other things it will give you brand names and and various reviews
and information about it’s a tremendous resource to help with those things so
you don’t have to be all-knowing to be successful and accommodating there’s
lots of technologies that can help greatly so when you actually start the
interview whether you know beforehand or not one of the things of course you want
to do is make that applicant feel comfortable if you’re stressed because
you don’t know what to do think about how stressed the applicants gonna be oh
this person’s freaking out because I’m in a wheelchair and that’s not very
welcoming or inviting to that person an interviewee is nervous enough without
adding another layer to that and so as the interview starts you’re going to
want to focus on the job qualifications is this person the right fit for the job
putting aside whether they’re in a wheelchair not putting inside whether
hearing impaired or not your job isn’t to know all about the disability but to
know about the person and that who that person is obviously you’re gonna attract
treat that person at the same level of respect as you would any other candidate
you’re also gonna hold the person to disclose to the same standards that you
would with other candidates it’s okay for that person not to be the best
candidate imagine that you want somebody who has a bachelor’s degree this is a
disabled person has a bachelor’s degree but you get another candidate who has a
master’s degree that’s even better so you can hire the able-bodied person with
a master’s degree that’s not discriminatory to hire somebody who is
more qualified than the disabled person then you should ask only job related
questions yah – it’s human nature perhaps to wonder well exactly what is
the illness or how did that happen or what are the ins and outs of the
limitations this person has but that’s really none of our business and it’s not
the purpose of the interview to find out this
person’s private matters instead we’re focused upon job related questions so
the question is how will you be able to let’s say it’s a reception shop how will
you be able to answer phones how will you be able to speak to people who come
in how will you be able to do the tasks that are part of that position and so in
relation to that you want to focus upon the knowledge the skills the abilities
experiences another thing that consent has happen is that you who’ve never had
this disability may start thinking well gosh I don’t know how he would do that
and you you you don’t know because you’ve not been disabled so these these
are all categories of questions that you haven’t been in a position that you’ve
needed to work through there might be some really simple fixes or simple
approaches to making that helping or having that person do the tasks that you
aren’t going to think of so you’re saying thinking gosh I can’t imagine how
that person the wheelchair could possibly file in those top drawers and
so since I in my 30 seconds of thinking about it can’t come up with the answer
I’m just gonna assume there is no answer and not hire the person keep in mind
that this person has probably been living with this disability for a while
and even if this person hasn’t been living with disability for a while the
job accommodation network has people that will have been dealing with it
similar disability for quite a while and in many cases the solution or the fix
may be free or very inexpensive but even if it is a significant amount of money
is something that you’re not a very small company you’re going to need to
take on that responsibility if this person is the best qualified you don’t
want to have an employment test unless you require that everybody take that
employment test and of course you’re not going to ask people to take medical
tests in any event so here are some things you want to avoid you don’t want
to ask what happened to you how did you how did you how will you get to work
that’s not your business the businesses that they get to work what sort of
treatment are you gonna need what’s a long term prognosis
instead a good question is how would you perform this particular task you don’t
want to ask about leave that can be a reasonable accommodation so it’s really
not your business to ask about that but you can state the attendance rules in
your facility so it might be you know employees here get two weeks of vacation
a year and they have five days of sick pay that can be an appropriate way to
approach it so don’t ask about accommodations whether the employee will
need it or what kind they will need do wait if the employee raises that issue
there’s no need to get into something that may not even be appropriate or
relevant in this particular person’s a situation I have posted for your
information this document which is recruiting hiring retaining and
promoting people with disabilities a resource guide for employers this can be
a very helpful a starting point for exploring these issues and helping you
make good and wise choices in how you interact with applicants and employees
with disability so be sure to look this over and read it before it well as you
complete this module okay so we are back so we’ve talked about the
application process that’s our of our three by three this is our first three
of our three by three and this is our first element of our three the next one
is that we have to reasonably accommodate to enable a qualified person
with disability to perform the essential functions of a job this is the the big
one this is the one that you’re gonna spend most of your time dealing so
you’ve hired Bob he’s in a wheelchair he was the best qualified for the job now
his job is to file paperwork and then you’re trying to figure out well how is
Bob gonna find on that top cabinet what’s the right approach to that there
could be 50 different ways of addressing that issue and so you are going to be
engaging and interactive process you’re gonna be talking about because Bob is
probably an expert in how you manage with his particular circumstances
you may be networking with organizations like the job accommodation network to
figure out what other people who’ve had wheelchair-bound employees who do filing
how they’ve handled that situation and we’re also going to consider the
particulars of your space there may be certain fixes and certain challenges in
your particular space that don’t exist elsewhere and so you think through those
issues it should be a collaborative interactive process it’s probably not
going to be resolved in ten minutes although sometimes they are that quick
don’t expect them to be that easy and don’t expect them necessarily to work
out without some research but this is the most important the most usual
category that we see challenges and then our third prong of our three prong for
our first three prong set is going to be that the a da requires reasonable
accommodation to enable an employee with a disability to enjoy equal benefits and
privileges of employment this isn’t as common to get litigation but let me
explain to you what I mean about this this means we have to have a bathroom
for this person and if this person is in a wheelchair the bathroom that you
currently have may not its door stalls may be too narrow to allow him to or her
to use the bathroom facility there may be a break room and the only access to
that break room is stairs well that means that this employee can’t go to the
break room it may not be essential to his
employment to the particular job duties that he has that he can go to the break
room but that’s not good enough if there’s a break room for employees to
grab a snack or to put away stuff in their locker or to have lunch then this
disabled person has the same rights to participate in that that community or
that activity so he or she is entitled to access to that break room so it may
mean putting a ramp in or doing some other fix also this would relate to
things like employment benefits a health insurance life insurance those types of
things and so you have to make sure that you are providing those opportunities
for employees who are disabled just as you would with able-bodied employee let’s talk about another category this
that this one has to do with Association we talked about this with national
origin and race how somebody who is not mate will deployment with a condo
category so let’s say we have a Caucasian person and this Caucasian
person is married to a person of a different race or perhaps has a child of
a different race or perhaps has of a romantic partner of a different race or
has a roommate of a different race or who knows what the permutations are
sometimes that person might be discriminated against because of that
association we’re not being discriminating it’s because they’re
Caucasian they’re being discriminated against because they have this
connection to somebody else well this can happen the disability situation I
may be perfectly able-bodied but I have a disabled child or have a disabled
spouse or I have a disabled parent it’s not usually that my employer just hates
disabled people and therefore wants to be mean to me because it doesn’t it
doesn’t like that I happen to have a family member is disabled instead how
this oftentimes arises is that the employer starts thinking oh gosh
groovers healthy but she’s got a kid with a serious illness she’s gonna miss
a lot of time or she’s gonna be really distracted at work cuz she’s gonna be
worried about her kid I’d be worried if I were in her shoes I need somebody who
can be focused who can be here every day and gosh if you’re doing like that
you’re not gonna be as focused as I want so I’m gonna pass on griever and I’m
gonna hire Bob instead cuz Bob seems to not have any issues along those lines
that’s usually how associational disability discrimination plays out now
somebody who is a socio disabled person is entitled to protection from
discrimination under the ABA but they’re not entitled to any kind of reasonable
accommodation so let’s say that I am hired my will say my child has
a serious type of potentially fatal cancer and so I some hair another it’s
communicator maybe I’m applying for promotion they already know that I
happen to be confronted with this situation they decide to promote me
because I’m the best qualified person for that and I start missing work
because my child needs chemotherapy need surgery develops infections often
because of the treatment and cannot be I can in cannot be at home and so I am
taking the child to doctors appointments I’m keeping the child out of school and
I’m missing a lot of work as a result well the Americans disability the family
Medical Leave Act is probably going to provide me with some level of protection
but the ad a gives me squat there is no duty that the employer has to
accommodate reasonably or otherwise me because I am NOT disabled I’m merely
associated with someone who’s disabled so under the emeritus Disabilities Act I
can’t be discriminated against but the employer doesn’t have to give me you
know time off from work to help my family member or anything along those
lines again Family and Medical Leave Act will probably apply but that’s for
another chapter so let’s so there’s no D reasonably accommodate I’m and again
this is to protect us against stereotypes because again people have
this idea well if you have a disabled family member then it means you’re not
going to be able to perform consistently at work because you’re going to be
distracted you’re gonna have to often miss work another time that it comes up
and this was really a problem earlier in the AIDS HIV scare in the 1990s where
people would think ah bob has a significant other who has AIDS well Bob
is probably gonna get AIDS and therefore we’re gonna have Bob be disabled as well
bob says he’s not now maybe he is maybe he is it maybe he doesn’t even know and
so sometimes the concern can be well this person through his or her
so seizure disabled person may himself become disabled thinking that’s usually
through communicable diseases that is less of a hot-button issue today but
certainly it could still arise and under those circumstances Bob would be
protected from discrimination under the emergence Disabilities Act even though
he would not be titled reasonable accommodation now you might pause there
and think well gosh Gruber you told us earlier that sexual orientation is not a
protected category well that’s true but if it let’s say Bob is a gay and he has
a same-sex partner who is HIV positive well Bob does not have any statutory
protections based upon a sexual orientation but he would be protected
against discrimination based upon his association with somebody who is HIV so
he cannot be discriminated against because his partner is HIV now he could
be discriminating against because he happens to have a same-sex partner but
not because that same-sex partners HIV so that’s a kind of a fine point to that
analysis again I’m not recommending any type of sexual orientation
discrimination that probably isn’t a smart idea to do for the employer but
it’s not an unlawful thing to do so in this course we try to focus on what does
the law say today that may be good pilot policy may not be good public policy but
we’re focusing upon the law and then of course individual organizations can and
oftentimes do decide well that the law may only require we do X but we want to
do more than X because we think it’s a good business decision or because our
value system points us in a certain direction
okay so let’s consider this scenario Bob applies for a position as a fundraiser
in the Alumni relations department at Denton College during the interview he
mentions to marry the person who’s interviewing his wife has just been
diagnosed with leukemia in spite of Bob having eight years of fundraising
experience he’s denied the job Bob may well have an associational
discrimination claim under the ad a if he can prove that the employer assumed
his performance would be impaired because of
his association Sabre person again Oh Bob’s gonna be so distracted with his
wife he’s gonna take off time to help her with her treatment we just we want
somebody who doesn’t have those issues that would be an example of
associational discrimination so I said earlier that the a da which became law
in 1990 was amended in 2008 generally I don’t like to focus on all the
amendments these laws go through but this was an especially important one and
as you look through cases in this area it’s always a good idea to see whether
the case that you’re looking at was before 2008 or after 2008 because if
it’s before 2008 there’s a pretty good chance that that case may not be that
helpful because when the statute changed of course all of the cases that were
based upon that old statutory language are pretty useless now because that old
statutory language is no longer in effect and so that’s kind of a useful
point so you may say well why did Congress change the statute was a pretty
common event pretty common set of circumstances that causes Congress to
decide it changing event what happened is that the US Supreme Court issued a
couple of big decisions a Sutton and Toyota
these two are the big decisions I think it was during the same a term of the US
Supreme Court and what the US Supreme Court is it interpreted already existing
language in the statute the a da and in the the US Supreme Court interpreted
those terms narrowly and when I say narrowly what I mean is they interpret
it in such a way that fewer people were going to be covered by the a da then
some people thought was intended and originally by Congress then the US
Supreme Court in this rule is not there’s no constitutional aspect to it’s
just good ol fashioned statute interpretation well when these when the
Congress learned of these two decisions at the US Supreme Court may Congress was
quite unhappy and it said no US Supreme Court you
misinterpreted you did not understand what we intended in 1990 when they
passed the saw so we’re gonna solve this problem by changing the statute we’re
gonna rewrite the parts that you misinterpreted
so it’s crystal clear what we want you to do and so once the Congress changed
the laws that US Supreme Court decision I mean it’s still in the books but it’s
pretty useless because it’s interpreting a statutory language that doesn’t exist
anymore and whenever Congress changes the language that that was in his
opinion misinterpreted then really what the US Supreme Court did is is only for
historical reasons really useful now this doesn’t always work when we’re
talking about a constitutional aspect because of course the Congress doesn’t
have the power to change the US Constitution like you can a statue so
when the when the US Supreme Court is interpreting the Constitution it’s it’s
a little bit more of an enduring change then we’re looking at statutory
interpretations anyway there were two particular cases that really got
Congress kind of worked up and that was the first one was that in in the in this
case the US Supreme Court said you know what sometimes when you have a
disability there’s just a really easy fix to it for example I happen to her I
glasses I’m not legally blind or anything but I’m pretty disoriented
without my glasses on I would not be very effective doing too many things if
I didn’t have my glasses I get nauseated I really almost can’t read I have to get
it up to my nose to be able to read and so without my glasses I’m not
functioning too well but you know what all I have to do is put on my glasses
and my world is 20/20 problem solved I don’t have any issues so there is
something that mitigates or solves my problem pretty much completely and
sometimes there is something like that it may be some technology it may be some
device and suddenly everything is okay another example would be an insulin
dependent diabetic let’s say this person has well controlled well-managed
diabetes some people do some people don’t but in this case this person does
he or she remembers to take his or her shot test the insulin level maybe they
even have an insulin pump and so they don’t even have to do necessarily all of
the things that used to with the finger pricks and things like that and this
person their blood sugar works just fine and everything is hunky-dory
in many respects this kind of looks like they don’t have diabetes as long as the
system is working the mitigating measure that they’re using the insulin pump or
the insulin injections solve the problem and so with that what’s unsaid was one
that case this person really isn’t disabled as long as they have this fix
well that’s what got the Congress Dean the Congress said no a diabetic we ought
to evaluate without considering the mitigating measure a diabetic who is
insulin dependent who is denied insulin is gonna die because their pancreas
doesn’t work and so it’s it’s a death sentence for those individuals and so
obviously that qualifies as a disability so we shouldn’t evaluate a disability
looking at how easily or completely we can fix it we should look at the
disability in the untreated circumstance okay let me give you another example
let’s say I’ve schizophrenia I happen to have that very well managed with
medication and when I’m on my medication I’m just pretty typical person don’t
really have any issues but if I get off my medication I am hearing voices I am
just really not functioning so clearly without the mitigating circumstances I
am absolutely disabled under the Sutton US Supreme Court decision I would not be
disabled because of the mitigating measures but under the 2008 amendments
that the Congress passed I would be considered disabled now one thing that
the Congress did say was that we’re not going to consider eyeglasses I mean we
are going to consider eyeglasses so if the only reason you’re to say
is that you need your eyeglasses Congress says that’s the one mitigating
measure that we are going to allow the courts to consider but all the rest
hearing aids wheelchairs prostheses insulin medication all that stuff and
we’re going to consider the person without those conditions but when we
when we’re trying to determine whether disabled or not another thing that came
up or the second a round of issues was what did we at what was actually meant
by the term substantial and major life activities because we haven’t looked at
this yet but the definition of descent disability you know you can imagine it
being very broad or very narrow and so we’d have to kind of decide well what’s
gonna meet our definition disabled do we want it to be such that it has a very
broad category a lot of folks are covered or do we want it to cover just a
relatively small percentage of people well the US Supreme Court interpreted
some of the very important definitional terms related to disability in a
relatively narrow way which meant that the universe of people that satisfy the
definition was relatively small again Congress said no no no we want this to
applause apply to a relatively large category folks and so we’re going to
rewrite these these important terms the definitions the important terms so that
they cover more people and so these are the two big things that happen in 2008
so again you can see both of these changes were designed to increase the
number of people who would be covered by but we would be considered disabled and
therefore we would enjoy the protections on the a da okay
we have covered our three our first three or so we said there were three by
three and so we’ve covered our first of our three by of our three prong so this
is this is our our first three prong and now we’re going to do our second three
prong so our middle three by three we’re ready for and this one is the most
important for sure this is one we will return to several times in this
presentation this is really really important stuff I had over here
the term is substantially and major let me just go back here and shape those
terms actually appear right here what these terms mean is what was changed in
2008 so our second of our three prong tests we’re gonna look again this is the
main thing the term disability means a qualified person who meets any one of
the following so I can fit under this category or I can fit under this
category or I can fit under this category and oftentimes a particular
person will fit under two sometimes even three of these categories but by far the
most common the central one is going to be this this first one so let’s look at
the first one a little bit having a metaphysical or mental impairment that
substantially limits one or more of the major life activities of the individual
so we can see here that we have physical problems such as vision loss hearing
loss missing limb in a wheelchair cancer diabetes but we also have mental
impairment and these can be psychiatric issues such as bipolar depression
schizophrenia but it could also be intellectual limitations such as Down
syndrome or some other condition that has has caused there to be intellectual
limitations or intellectual differences such as learning different
so both of those categories can be covered or of course they can both be
present so we have some kind of impairment that substantially limits so
what is substantially mean and we’ll talk in more detail about what it means
now after 2008 substantially limits one or more the major life activities of the
individual what’s a major life activity again we’ll
see a list of these later on and the list actually grew significantly after
2008 so we’ll see how the list has evolved so this is category 1 categories
2 & 3 were not as changed by the amendments in 2008 but number 2 is
having a record of having such an impairment so I might have had cancer in
the past I am currently cancer-free so I’m no
longer disabled but my employer may be aware of my former disability so let’s
say I had cancer I almost died I am now in remission or perhaps I’ve even been
found to be cancer-free but my employer may still be reluctant to give me an
important role or a more demanding position because they may be afraid of
the cancer will return well I can’t say that I’m disabled because I I don’t mean
that definition at this moment but I have protection as having a record of
impairment and then finally I’m entitled to protection if the employer regards me
as as having an impairment maybe I never had an impairment but the employer
things that I have had the impairment let’s go back to our example Bob Bob is
in a romantic relationship with Chris and Chris is HIV positive Bob is not HIV
positive but the employer may regard Bob as being HIV positive incorrectly
because Bob’s partner is HIV positive so it’s an incorrect assumption Bob himself
is not disabled he doesn’t meet number-one have actually being disabled
he also doesn’t mean to because he’s never been disabled he’s never had HIV
or AIDS but now he’s being viewed having it simply because of some other
reason and so that can be a third
characteristic it’s not really so important being able to distinguish two
from three they as you can see there’s a lot of overlap between these two the big
distinction is between one and two or three and the big reason that you want
to make the distinction between one and then these second categories is that you
have to reasonably accommodate number ones but you don’t have to accommodate
twos and threes so again these are the three prongs of disability definition so
we’ve gone through that first set of prongs let me just refresh you about
when these answer the wind question pre-employment employment benefits and
now I just know you’ve provided our second of our three by three when we
define this disability we’ve seen the three prongs here we’ll have one more
coming up in a little bit so look out for that so they said before this
changing the law greatly expanded the definition ended up covering a lot more
employees in fact the Congress said is listen courts and up until today 2008 a
lot of these decisions seem to be turning on is this person disabled is
this person not disabled well Congress told the court said get over yourselves
we’re not interested in it you know these folks are usually going to be
disabled I mean we’re not gonna say a hundred percent maybe a hangnail or
something though you’re not say bold or you have halitosis no you’re not say oh
but I mean generally speaking we don’t want that to be what this laws about or
what the case law is about is whether the person’s disabled or not err on the
side of inclusion we want to see actual cases in which we try to figure out how
to accommodate not so much is this person disabled or not okay and this is
again a little bit more clarity because we’re talking before about the term
substantially limits walk in in the amendments in 2008 an impairment does
not need to prevent or severely or significantly restrict a major life
activity to be considered substantially limb
a major life activity so I might have for example limited vision but I can
still see some I may not be severely limited in my ability to see and still
find that I am substantially limited another thing that’s important to
remember is that I might have a variety of impairments and each one of those
individually may not meet this definition but when you call it collect
them and they may be related to each other and may be unrelated so that when
you start playing them together you know it’s like Casa or like a building or you
have one late layer and then another layer another layer eventually a
building gets pretty tall although each level itself isn’t particularly tall
because they compound each other well it’s only what you wait is you wait
to see well what are all the disabilities and then then you make a
judgment about whether one or more major life activities are being substantially
restricted so let’s consider a scenario bob has two disabilities it could well
be that neither one of them in and of themselves would qualify as being
substantially limiting of a major life activity but in this case both of them
together would qualify substantially than in a major life activity so bob has
a mild intellectual disability and he also has a mild form of ADHD though
other tests are difficult to perform Bob and joys and he’s accomplished at
gardening and so he’s become a professional gardener he applies for a
job Maine tells the interviewer that despite his impairment I guess I just
say impairments cuz he has to he has been able to work as a gardener in
private Gardens and estates and they’ve never had any issues for this work the
employer decides not to hire him fearing that the disability might affect other’s
work Bob might be a distraction for other workers maybe they’re concerned
that he’s gonna need more help and that he’s going to be too chatty that he’s
going to lack focus and so they decide not to give
a chance but in this case even though Bob’s two problems are mild in and of
themselves in combination they could easily substantially restrict a major
life activity and could therefore be considered a disability under the a DA
so again you have to be aware that some things that might at first glance seem
not so serious can actually trigger a DEA protection so we are done with
introduction now we’re going to go into prime aphasia case that’s our second
topic and let’s go begin okay so this these are our four elements you may have
recalled from our earlier lectures we had four requirements for the prima
facie case and these are going to track very closely with the four that we saw
seen before so the first one is that the person has a disability or more
correctly put going back here why it fits under one of these three prongs so
gonna be under one or two or three so it could be regarded as having a disability
or a record of having a disability you can see how this is very similar to the
title seven stuff into the Age Discrimination Employment Act stuff
because basically what we’re saying is that this person has to be a member of a
protected class that this statute protects and this statute is all about
protecting the disabled so before we’re talking about title seven we say well
this person has to be a member of a particular race this person has to be a
member of a particular gender this person has to be over the age of 40 so
they always have a qualification that puts that person in the protected class
now in many classes it may be obvious what class that person belongs to for
example in most cases this is pretty obvious whether the person is male or
female in many cases it’ll be pretty obvious
whether the person is over forty or or perhaps that person’s race might be be
obvious as well and so you know there’s really no discussion or reflection upon
one’s person fits this particular category not in the areas of disability
though many times disabilities are hidden
not obvious and so the burden is on the employee to prove that he or she is
disabled the employer doesn’t have any obligation to disprove a disability so
the burden is on the employee and that makes sense because after all the
employee is the plaintiff and the burden of the prima facie case is going to be
on the plaintiff now this isn’t again novel if there was
some dispute about my gender or my race in a title 7 case yes I would have the
responsibility to prove those aspects it’s just usually not a controversial
subject but it can be controversial under the Americas abilities Act the
second thing that the plaintiff is going to have to prove to establish a prima
facie case is that he or she is otherwise qualified for the position
putting aside the whole disability thing he is qualified for the position again
this is the exact same language that we’ve seen under Title 7 so there’s
nothing new here Under the Sun it’s the same thing we need to have somebody’s a
member of protected class we need to have them be qualified so 1 & 2 are
gonna be very familiar 3 is a little bit different this one here the second one
under 3 and we just need one or the other of these is what we expect is the
type of thing that we’ve seen talked about under Title 7 that he or she
suffered an adverse employment action such as a termination or demotion that’s
usually what we see in a title 7 case either they are failure to hire a
failure to promote fair decision to terminate a decision to demote and of
course when we do see those in disability cases and when we have that
we have satisfied our third element what’s new though is this first one
which is it’s an either-or situation so if you have this one you don’t need this
if you have this one you don’t need this and that is when a reasonable
accommodation is requested then the kind that the accommodation must learn for
this way that the employee has requested a reasonable accommodation it hasn’t
been provided and so the employee is being denied that reasonable
accommodation well obviously that’s relevant to an ad a case but under Title
7 except the areas of religion there is no duty
reasonable colony it doesn’t make any sense to say I’m going to reasonably
accommodate your national origin cuz I mean I’m gonna reasonably accommodate
your gender I don’t think you need common 8 my gender I’m gonna reasonably
accommodate your race again doesn’t really make sense but it makes sense
when we’re talking about religion because of the particular requirement
some religions have in terms of days off work or things along those lines and it
obviously also works with disability so this is the the wrinkle that’s that’s to
the front of facie case we haven’t seen before and then number four you may
recall any type of prima facie prima facie case before was kind of a
catch-all you needed one more piece of evidence than what we’ve talked about
and usually that fourth piece is somebody who isn’t in the same
protective cap protected class was hired instead or was put into your position
after you were dismissed but what the fourth element is can vary and so this
is the way that at least I’ve seen it written sometimes and that is the
decision was based upon discriminatory motive or if they were to reasonably
accommodate this is that fourth element that can be a little bit of
loosey-goosey element on all all the different categories of prima facie case
here’s another way of looking at the prima facie case analysis so they kind
of get to the same end point but this is just a different take on it let’s assume
that the employee is able to establish a prima facie case as I said before
usually establishing the prima facie case is not art this is you although in
the case of employment of scrimmage me display discrimination
proving or worrying about was person is actually disabled oftentimes does result
in some analysis so there’s a little bit more oomph behind the prima facie case
establishment in the situation the ad a under most title seven and a marriage
discrimination Employment Act the pro facie case is almost obvious it’s like
we don’t even really bother with this because that’s not where the game is the
game is after the program facie case is proven and that’s
often times gender disability discrimination so let’s assume that the
employee has proven the prima facie case well now just as we established under
title seven and age discrimination employment at the burden shifts to the
employer to establish a discriminatory legitimate non-discriminatory reason for
the employment action it could be that bob was not doing his job he was goofing
off or he wasn’t able to meet the reasonable employment expectations of
the employer so that certainly can be a basis for finding a non-discriminatory
reason for the employment action poor job performance is an excellent one and
there is no B F bfoq for disability free employees and we talked about with for
example religion if I happen to be running a meat processing plant and I
want to cater literally to the kosher customer base then I’m going to need to
have kosher processes set up to appeal to that community because they are only
going to want food that has been certified as kosher and I know I’m going
to have to hire a rabbi to accomplish that task and so a bfoq for at least one
member of my staff will be that he or she needs to be a rabbi you can have
that with religion you can have that with gender but you can’t have that with
disability you also can’t have it by the way for race so there is no bfoq defense
for disability free employees okay so we are now done with the prima facie case
now we’re going to go on and kind of do as you can see there’s lots of
sub-bullets here we’re going to kind of break down some of these vocabulary
terms we’ve been playing around with into a little bit more granularity and
let’s begin with that okay so when we talked about when we were you know when
we were dealing with our first ring prong approach we talked about you know
the pre-employment situation then we talked about the employment situation
then we talked about kind of the fringe benefit
situation we’ll call that the extra employment or the outside of strictly
the the workaday worlds type of employment we’re gonna get a little bit
more granular here we’re gonna break those those kind of three fairly broad
categories and kind of pick them apart and explore them a little bit more
detail one thing is we can’t segregate or classify employees and you know
disabled non-disabled or here’s our folks who need you know wheelchair
access and these are our folks who need vision help and here are folks who need
whatever that particular issue is so there’s a segregation or somehow sorting
of folks into these categories we can’t do that we can’t do that as applicants
we can’t do this as employees we need to make sure that the standards were using
in terms of either hiring people or maintaining employment are also not
discriminatory that our standards are reasonable and that they consider the
disabled the disabled status of the folks that work beyond we can’t exclude
or deny equal jobs or benefits to folks who are disabled we need to make sure
our selection criteria doesn’t tend to screen out again if we are screening
people for example let’s assume that the job is on a bus line and so it’d be very
easy for disabled people who are unable to drive to take the bus to work but you
actually interview folks for the position in a place that is not bus
accessible and so those same disabled people who would have had an easy way to
get to the employment position are not able to get to the interview that would
be an example of some method that is screening folks out and then of course
if you’re going to use employment test you want to make sure that they are
administered in a way that is not going to screen out people because of a
disability you may recall we talked about disability previously and there
was the example of the case where the applicant had dyslexia meaning that he
had a difficulty with reading the nature of the job was one that was going to
reading and so at least not a lot of reading and so therefore the test really
wasn’t measuring what the employer truly needed the employer truly needed
somebody who could do these particular tasks and know how to do it safely and
that could be done or tested through a normal test or maybe through a written
test that gave the applicant more time and really the written test the
applicant failed not so much because he didn’t know the answers but because the
format of the test the format wasn’t predictive of the success with this
particular employee would have so dyslexia would be an example and
potential disability that you have to think through in terms of your
employment tests okay so we’ve already seen this definition before it’s exactly
the same definition but I had in blue this is our second three prong
collection I’ve kind of covered this before but let me just touching this
correctable disabilities are covered so again we don’t consider mitigating
characteristics except of course for the whole eyeglasses or contacts
another issue that says comes up is when we have somebody who is it meets the
definition of being obese that condition can be qualified as a disability but
usually we’re looking to what has caused this person to become obese for example
perhaps this person has a genetic disorder that causes a range of systems
in the body not to function in a typical manner and one of the ways that it
manifests itself is through obesity and so that would be an example a person
whose only symptom of the disability is obesity is probably not going to be
successful under the American Disabilities Act now the term obesity is
defined by the medical community to include a range of diagnoses and the
term morbid obesity is the highest level where the person is sufficiently obese
that his or her health compromise in a significant way and so
that can sometimes qualify in and of itself we’re talking about people who
are very large not simply you know someone overweight or something along
those lines so let’s consider this scenario Mary is a kindergarten
assistant at a high school since Mary suffers from NBC’s obesity
she’s not able to use the chairs provided for teachers in the
kindergarten rooms they’re too small for her perhaps they aren’t able to support
her weight Mary requests a different share but her employer refuses Mary is
protected to the Americas displays that only a for obesity is due to
physiological condition so she can point to I’m obese because I happen to have
this disease if she is obese and she isn’t able to connect it to a
physiological condition then very likely she does not meet the ad a definition
now of course that doesn’t mean that the employer is making a good choice I would
argue that that would be a poor decision Mary is going to need to sit sometimes
she’s going to get tired she’s gonna have to sit as she’s working with the
students and somebody who is obese is likely to need to sit down more often
perhaps than somebody whose typical size and so is the employer really
accomplishing the goal of having the most productive employee by denying Mary
a seat when other individuals who were because kindergarten assistants are able
to sit down so yes the employer probably can legally refuse but is it a good idea
I’m not so sure about that sometimes we will have situations in which there’s a
disability plus a situation regarding hire so for example in this situation
maybe mary has Hashimoto’s syndrome I think that’s a disease that can have
serious repercussions plus it can lead to obesity as a symptom of the disease
and so in that situation a Mary might have Hashimoto’s disease plus obesity
but it may be that the the plus factor in this case obesity may not be eligible
for the accommodation even though the Hashimoto’s may be eligible for the
accommodation again this is a gray area differing perspectives might be on this
I would argue that a cautious employer is going to want to accommodate both the
disability and the disability plus the the additional thing let me give you
another example let’s say that I had an aneurysm and as a result of the aneurysm
my the the right side of my vision in both eyes I no longer have I can only
see out of both eyes the left side of my vision the left side of my vision is not
typical I am 50 years old and I have to wear bifocals so that I can see clearly
because of the natural process of aging most 50 year olds need to wear bifocals
or needed wear at least the the glasses to make things bigger so you could say
that I’m in a disability plus situation my vision problem putting aside the
bifocals is definitely going to qualify as disability the employer has to
accommodate that it does the employer have to accommodate my bifocal need
well because it’s an possibly not but possibly so so that’s a complicating
something to be aware I’ve been to think through probably in many cases it’s not
necessary but it’s not necessarily not a fight that many employers are going to
want to take on as we said before the the amendments in 2008 did significantly
increase the number individuals who are covered so if you receive training about
the ad a prior to 2008 and this is a good time to update it
because the what world really did kind of change in terms of a da at that time
so let’s look at some examples of disabilities most of these we probably
look at and go well yeah of course that’s a disability Chris has a
disability I wanted though flag a couple that might be a bit of a surprise one is
epilepsy this is kind of a hidden disability and certainly it can be a
serious situation that can raise important safety issues in the working
environment many times it’s a disability that isn’t identified as something that
this employee is experiencing until the seizure happens it may be the employee
himself or herself did not know that he or she had this condition at that until
the seizure happens or it could be that they chose not to share the information
and so that can be a specially challenging issue especially more when
we get to the direct threat situation it presents special issues another category
that can present special issues is HIV and AIDS or I guess the special issue
with that is that in some sense they oftentimes aren’t des specially HIV
isn’t really a disability somebody who is HIV positive may have zero symptoms
may be perfectly fit and may not actually progress to full-blown AIDS for
quite some time and I don’t even know for sure if everybody who has this test
positive for HIV always transitions to full-blown AIDS that’s a another issue
I’m just not fully aware of so you might say somebody with HIV Zameen what major
life activity is being significantly limited perhaps none but the American
Disabilities Act says tells us somebody’s HIV positive is covered in
part because of the stigma associated with that they certainly would meet the
second prong of being having a history of a disability and the third prong of
being regarded as disabled below here I have some examples of psychiatric
disabilities again somewhat somewhat like a bleb see
these are disabilities that are for the most part hidden disabilities you can’t
look at somebody and know that they happen to have these circumstances as a
result of the fact that they are to some degree hidden sometimes employees do not
share these diagnoses as soon as they become aware of them or are soon in the
process of kind of dealing with problems relating to this and so you have to be
aware that this can kind of come up relatively late in the game another
issue can be that the supervisor or the manager may not take these issues overly
seriously they might say well you know I don’t care what their mental health is I
care about whether they do this particular job but it could be that
their diagnosis is interfering with their ability to do the job and so it’s
important to have your managers know that we’re not we’re talking about the
idea we’re another time about people needing you know wheelchair or people
needing a hearing aid we’re talking about people needing lots of differing
approaches to helping that persons be successful in the employment scenario
these are definitely covered and these are just a sample there many other
diagnoses that could also be considered disabilities so let’s consider an HIV
situation Bob is a customer service representative miss airline he’s
confided to what his co-workers that he’s positive for HIV
unfortunately for Bob the co-workers a blabbermouth and has told lots of other
people assume he Bob is ostracized at work but I want to work with them he
sent me two verbal abuse so Bob reports this to a supervisor what does a
supervisor do fires and oh my gosh how terrible under these circumstances Bob
absolutely has a claim of disability discrimination as a hostile work
environment and also because I’m just flat-out discrimination so hostile work
environment and disparate treatment both of those theories a Bob would have a
good claim for so let’s consider some are about some things that the a DA has
specifically said these aren’t disabilities and when they say they’re
in displays they don’t really mean that they don’t meet the definition they may
well meet the definition a physical or mental impairment that substantially
limits one or more the major life activities of the individual so the
issue isn’t that they don’t meet the definition but the issue is that the
Congress specifically said no we’re not covering these for whatever policy
reason or political reason they’ve extent excluded them so for example
transvestitism transsexualism pedophilia exhibitionism voyeurism gender identity
disorders sometimes this is referred to as being transgender and that they’re
excluding for those people who are who have gender identity disorders who do
not also have some kind of physical impairment for example somebody who is
intersex that’s the term that is now used for
people who have genitals that are consistent with say both both genders or
people have had injuries to their genitals that those individuals could be
covered the American Disabilities Act but people have gendered just gender
identities orders who are not there isn’t a physical explanation for that
issue and other sexual behavior disorders also a compulsive damning
kleptomania pyromania and then psychiatric issues that are related to
illegal use of drugs that is current we’ll talk more about this going forward
in our second lecture and also homosexuality bisexuality are also not
considered impairments or disabilities under the Americans Disabilities Act so
again that’s not another path for advancing protections for people who are transgendered or who are gay or lesbian
there are some additional situation obviously there’s human variation and so
hair color can’t be considered a disability hair texture can’t be
considered as the eye color being left-handed isn’t a disability having a
particular height or weight that is within quote-unquote a normal range
having a predisposition to an illness so that can fall into the category of being
regarded as so let’s say that my mom has been diagnosed with Alzheimer’s my
employer might be concerned or maybe groomers going to get Alzheimer’s that
is ordinarily not going to be a protective reason unless it’s start the
employer stress regarding me as having Alzheimer’s pregnancy is not a
disability primarily frit well for two reasons one is it is right it’s going to
resolve itself in nine months right but also because we have the Pregnancy
Discrimination Act which amended title seven to include protections for
pregnant individuals also personality traits there’s natural variations and as
people are impulsive or they make bad decisions and those are and if they’re
not related again to a psychiatric or mental issue are not going to be
considered covered and then additionally people who have have experienced poverty
or have not advanced from an educational perspective or a prison record they are
not considered to say that might be the bein lack education because a disability
interfere with their ability to get an education for example perhaps they had
childhood cancer and they weren’t able to attend school for a significant
period of time or perhaps they had a learning difference such as dyslexia or
dyslexia that impeded their ability to acquire the education it would be their
disability the childhood cancer or the dyslexia that would be inside of
protection not the fact that they never got the
high school or college degree or something along those lines again it
could be that because this person had a will say oh maybe they were an alcoholic
that their alcoholism led them into a life of crime which led to a prison
record alcoholism is a disability but the prison record isn’t so you have to
separate these things these might be the results of the disability that the
disability is still going to be covered but they themselves are not disabilities
just as we saw with Age Discrimination Employment Act there is no reverse
discrimination claims if I am able bodied and I am just frustrated that my
employer is giving someone else in the obviously office a larger screen or more
breaks or whatever I want to participate in that even though I’m table body I’m
not going to be successful with that because I am able-bodied and so reverse
discrimination claims under the ADEA are not going to be permitted so here we
have again this is our three prongs for the disability definition so this is our
second of our three three prong items here we’ve already seen these before and
we’re gonna do a though for this time we’re going to do a bit more of a drill
down so we’re gonna focus on number one first again this is the definition we’ve
already talked about having a physical or mental impairment that substantially
limits one or more major life activities of the individual and this is what most
of us would probably think of when we think about disability so let’s drill
down here and talk a little bit more about this as I said before both
physical and mental impairments are covered we need to do an individualized
assessment so it could be that there could be somebody who has disease a and
they aren’t disabled but that same disease with this for Bob might mean
that they that Bob is disabled so we don’t see under the ad a a list of you
know 50 diseases okay this one’s Kyra this one’s not this one
this one’s about for example perhaps I suffer from migraines but I only get one
migraine a year it’s just one single day that I’m pretty miserable
I have migraines but I probably don’t meet the definition of disabled but Bob
also has migraines except he has you know at least one or two a week and they
last for at least a day and he can’t really do anything when he’s having it
he probably is going to meet the definition of disability disabled even
though we have the same diagnosis you have to do that individualized
assessment okay so let’s look at these terms we first of all talked about how
2008 they the Congress decided to amend it to cover these or to define these
terms all differently so examples of major life activities what is caring for
oneself a can this person dress himself or herself bathe himself or herself used
the bathroom himself or herself feed himself or herself those types of
self-care if it’s not possible for that person to do that then definitely they
are limited substantially limits a major life activity performing manual tasks
again we say manual were thinking about hands here can this person open doors
can this person wash dishes can this person do tasks with his or her hands
maybe the hands are missing maybe there’s paralysis of the hands those
would be think maybe severe arthritis makes the hand so sensitive to pain that
he cannot use those other examples of major life activities are seeing hearing
eating breathing speaking all of those major life activities so you can imagine
somebody who has severe asthma might be substantially limited in the major life
activity of breathing another person who has maybe a little bit of wheeze enos
once or twice a year maybe they meet the definition of asthma but they perhaps
are not substantially limited in the major life activity of breathing so
again it’s an individual analysis these oftentimes fall into new learning
differences category and trading thinking communicating these
can be examples of learning differences and also disabilities so this might be
ADHD or this might be ADHD this also could could involve intellectual
limitations communicating this could be dyslexia or perhaps this person has a
stuttering issue those can be disabilities as well
working is a really big category obviously and that can qualify as a
disability but not when a person is disqualified from a single job it really
needs to be from you know kind of a category of jobs so let’s say a
particular job requires that I be able to walk across a tightrope maybe I’m
going to me a tramp ii-era work for the circus and I don’t have a
good sense of balance and that might be a disability or at least a disability
not as it’s legal terms meaning but it’s it’s an impairment and as a result of
this impairment I cannot successfully walk on the tightrope but I am not
substantially limited in the major life activity of working because guess what
most jobs don’t require that I work on a tightrope and so I would not be
considered disabled simply because I’m excluded from one particular job so
examples would be standing lifting and bending in addition to major life
activities we also have that a person can be disabled because there’s they’re
substantially limited and one or more major bodily functions such as the brain
bladder normal cell growth this might mean for example leukemia the
reproductive system the immune system functioning all of these be major bodily
functions again that’s an addition from 2008 so let’s consider our scenario in
here so Mary experiences extensive verbal abuse and teasing it worked
because she stutters Mary wants to file a complaint of workplace harassment
under the ad a she can bring a claim for workplace harassment if she can show
that her speech impediment her stuttering affects a major life activity
or maybe she’s regarded as disabled and so that
would be a circumstance if she could be successful with that claim now you might
think to yourself oh gosh the Irish person wouldn’t consider studying to be
a mage to be a disability and that’s where it requires that the employer be
is sensitive and aware of these issues as they arise so we’ve talked about
we’ve talked about like a little father we’re still we’re still talking well
we’ve talked about major life activities and major bodily functions now we’re
going to focus on this part of our definition the substantially limits part
the ABA defines the term substantial immense to requires the term be
interpreted consistently with the finds and purpose of the Act and here we have
our definition substantially limited an individual does not need to have an
impairment that prevents her severely or significantly restricts a major life
activity because they’re substantially limited nor does the impairment need to
last for a set period of time in addition we can combine impairments as
we did with with bit with Bob who had the mild ADHD and the mild intellectual
limitation perhaps each one of them separately would not meet the definition
of substantially limited but in combination they might we’ve already
kind of done the major life activities and again they don’t have to relate to
job duties for example I think I would mix in the next slide here here we go I
have a couple thinking working and actually I guess I have another major
bodily functions reproductive functions well most jobs don’t require
reproductive functions right but let’s say that somebody is infertile or is
experiencing infertility they might need time off from work to undergo treatments
maybe surgery maybe other treatments to rectify that particular issue now the
employer probably doesn’t care one way or the other whether by
sallie reproduces or not but Bob or Sally would meet the definition of
disabled if he or she is infertile because that’s substantially limiting
the major life activity or the major bodily function of reproduction and we
can see some of these others I mean there’s lots of jobs where you don’t
have to read there’s lots of jobs where you don’t have to bend over but if you
are substantially limited in these major life activities even though it’s not
impacting your work performance it might mean that you need to take time off from
work to address those issues and the employer is required to reasonably
accommodate that in many cases okay um a temporary impairment though is not a
disability impairments lasting less than six months are usually considered
temporary there’s no magic bullet here it’s going to be the totality the
circumstances but six months is kind of usually considered a good cutoff time
certainly if it’s under that it’s probably not going to be considered a
disability six months in one day is probably still going to be considered
temporary but at some point not too far over that we’re in the area where we
probably are in the major life activity category where I talked about
individualized assessments you’ve talked about working again thinking is another
one this can fit into that learning differences category how you think how
you concentrate how you communicate and it gave me times people don’t think
about these as being disabilities but certainly a diagnosis like dyslexia ADHD
things along those lines can definitely qualify as disabilities under the ADA a okay um to be covered the impairment
must be severe chronic or expected to have a long term impact upon functioning so here we go now ready for that second
prong and let’s go back to our original slide so we’ve kind of checked this one
off now we’re going to our second one which is have a record of of an
impairment like this so in the pass this person was met this definition this
person no longer does thankfully they’ve gotten better which is awesome news but
they feel like they’re being discriminated against because of that
history so let’s see prong to what’s required there again people with a
record are also protected sometimes there’s a stigma associated so let’s say
somebody had a mental illness in the past well the employer might be
reluctant to hire that person or perhaps the person had cancer in the past the
employer might be concerned that the cancer will recur it could be the person
is miss miss classified the diagnosis was made at some point but it ended up
not being correct those types of things are going to protect this employee
because there’s a there appears to be a disability when in fact there isn’t
currently disability now this person is not entitled a reasonable accommodation
because he or she is not disabled so there’s these are really looking at it
from the standpoint of the prevention of discrimination and harassment not the
reasonable accommodation part of the protections under the emeritus abilities
act an hour up to that third requirement being regarded as having an impairment
again this is subtly different than this one so let’s go to our third prong the
employer does not need to accommodate a regarded as employee because he or she
is not disabled so perceived as regarded as so here’s an example of a regarded as
an employee with controlled high blood pressure is a sign sorry there’s a type
of there is a sign to a less desirable job to the employers incorrect belief
for the new job would be safer for the employee
so the employers is in some sense trying to be a good employer hey we want to
keep this person healthy so we’re going to put them in a safer job a better job
for them unfortunately it’s not the job the employee wants maybe doesn’t involve
as much pay or prestige or interesting work that would be an example of
regarding somebody who’s disabled who very possibly isn’t disabled a mildly
depressed employee is reassigned to a less desirable job to the employers
unfounded fears that he might go psycho or maybe he’ll kill himself or something
again a MOLLE depressed employee probably isn’t disabled but the employer
is going overboard addressing an issue that doesn’t need to be addressed in
that way as a result it’s usually a good idea to wait for the employee to come to
you and saying I need an accommodation my blood pressure isn’t being able to
minute being managed in this way I need Bubba law or I’m depressed I need some
assistance in this area certainly if if you want to approach the employee and
say hey you know this is an option you can do that but you ought to be also
prepare for the employees saying no thanks don’t need that now
so perceive disabilities can be sensitive topics there is no duty to
accommodate a perceived disability one related to the perceived disability is
when there are some physical signs of perhaps a disability disfiguring scars
as an example of that the person may not have any impairment at all but there’s
the concern or the identification this person has with my data disability let’s
consider a Lucy situation Lucy was severely burned in a house fire
when she was a child she has significant scarring on her face so it’s visible to
the German public she applies to be a cashier and she’s not hired even though
she’s very qualified because the employer is worried that customers will
be uncomfortable with Lucy scars under these circumstances the employer is
making disparately treating Lucy because of her does her perceived disability and
so therefore that would be a violation of the Act Lucy’s not entitled to a
reasonable accommodation because she’s not in fact disabled but she is entitled
to not be treated as if she is disabled and not to be disadvantaged because of
her just now generally speaking the law does not
protect people who are unattractive from discrimination so let’s say that Lucy
wasn’t burned in the fire she’s just not very attractive she’s got buck teeth
she’s got thin stringy hair she’s got a bump on her nose all of those not
looking too attractive the employer can perfectly lawfully say Lucy we’re not
hiring you because you’re not as attractive as Larry or Sally or somebody
else I don’t think that’s necessarily the best decision for the employer to
make but the employer could lawfully make that decision because the employer
is not perceiving Lucy as disabled just perceiving Lucy is not as attractive as
the other candidates okay so we are up to our third of our
three we I said before that we have a three by three our first of our three by
three our first one was well what zones of the employment circumstance do we
need to do employers need to provide protection to employees and we talked
about pre-employment during the application process we talked about
during the employment relationship and we talked about with respect to fringe
benefits then we talked about our second of our three prong was the three prong
definition of disability one is a physical or mental impairment that
substantially limits a major life activity or major bodily function we
talked about a record of having a disabilities our second prong we talked
about being perceived as disabled as our third prong so we’ve gotten through our
first two of our three three prong approaches that we’re ready for our
third so we’re getting well we’re making good progress the da da protects people
who are defined as disabled under the Act so this is our and we need to have
our three prongs here so any of the three with or without reasonable
accommodation who can perform the essential functions of the job so we’re
going to be loading up here with some important additional vocabulary so in
order for the person it’s it’s not enough for the person merely to be
disabled for example I might be in a coma somewhere clearly I’m disabled I
mean I have substantial limitations and lots of functions but there’s no job I
can do if I’m in a coma and so guess what the employer doesn’t have any
obligation to hire me into those circumstances so knowing that a
candidate is disabled doesn’t mean okay the employer has to do something we have
to look and see if the other two requirements of our three prong approach
actually are in effect so you do need to know all three parts of this definition
let’s first of all examine this essential functions thing
I mean how do you decide what is an essential function to a job this is
pretty tricky I’m not gonna lie t imagine for a second that you or want to
hire a receptionist the receptionist is supposed to sit at the place where the
doors to the public open and let’s say this is in a doctor’s office and this
receptionist is supposed to greet patients give them some forms to fill
out record that they are present and let the patient’s know when it’s time for
them to go back to an examining room let’s say those are the duties the
receptionist in this particular office isn’t responsible for answering the
phones or for doing any type of filing work or typing things along those lines
so the function is just what I said but once a week for lunch
the receptionist covers the phones while the telephone receptionist which is a
different position is at break maybe there’s four or five different people
who cover the phones and so this receptionist who is the greeter
receptionist once a week is supposed to cover the phone for that hour now I
would argue that that second responsibility for the greeter
receptionist is probably not an essential function and so let’s say that
the the greeter receptionist has a hearing disorder that makes it very
difficult use an excellent lip reader so she has no trouble seeing people face to
face and being able to communicate with them but the telephone there’s really
something that she’s not able to successfully use so assuming that that
once a week for an hour duty on the phone is a non-essential function then
it is very possible to accommodate her in the essential function of her job
which is the greeter in the reception area function but let’s imagine a
different role let’s say that this is an emergency room nurse you know in this
particular emergency room staff’s three nurses on a regular basis now the
emergency room doesn’t know what emergencies are going to come in to the
emergency room in a particular day there are some shifts where there’s you know
nothing more serious than somebody needing stitches and maybe having you
know fever and they need some ibuprofen but sometimes there’s really really
awful things and suddenly there’s five very ill people there may be gunshot
wounds may be heart attack all kinds of problems can come up and so all the
nurses have to be able to do all of the functions and they have to be able to do
it fast it’s just not going to always be enough time to call people in maybe for
other units and help them to resolve those issues and so in that situation
let’s say that this particular nurse has a restriction she can’t lift more than
15 pounds well if somebody is bleeding to death and they need to be lifted up
onto the car onto the gurney to be sent immediately down so that they can get a
blood transfusion they weigh more than 15 pounds and it’s just not possible to
say okay well we need to call Bob from you know the fifth floor to come down
and help me lift this person up know this person’s going to be dead before
Bob gets down and so in that situation you would say an essential function
would be that that nurse needs to be able to lift up that patient who comes
in that patient may weigh you know 150 pounds and so in that situation the
essential function might be quite a bit broader and so the way so you say well
how does how does the EOC how does the court decide what an essential function
is this is where a smart and sophisticated employer can really make
its life a lot easier and that is the employer gets to largely decide maybe
decides to be Shawn but largely gets to frame the issue
we should say it like that um it it’s evaluation of what the essential
functions of the job are it’s going to be given great weight by the court so if
the employer has position descriptions and many times they’ll be a separate
document called essential functions whatever that employer says in that is
going to be given great weight now it’s not the only game in town I mean an
employer can’t say well we’re going to be clever and we’re gonna really work
this system and and kind of engage in a bit of deception by saying things or
essential functions when they’re not that’s probably not gonna work but
things that are on the borderline you certainly can decide are you going to
call this an essential function are we not going to call this an essential
function and so a good job description is a useful tool in this process now
employers are divided about whether job or position descriptions are good ideas
in a perfect world where you have you kind of an infinite number of
sophisticated HR resources job descriptions are probably a really good
idea but we don’t live in a perfect world and once you’ve created a document
and yet the working environment changes but no one has gone back and changed the
document that’s not a good place to be because the document says this is what
Bob’s supposed to be doing but really that’s not what I was doing and you know
what people in Bob’s position haven’t been doing that since we changed the
programming system or since we reconfigured the office or whatever and
so we really have outdated documents and so that makes for a lot of confusion and
it creates a messy situation from a litigation standpoint so another thing
is if you have a large population or large you know many units or many
different supervisors so that’s the same position will be used in very different
ways for example you might have going back to the greeter receptionist some
let’s say this is a Multi office medical company or –
doctor’s office scenario and some of the offices the green reception
really just does greet thee the patient’s gifts in the form sends them
back to the treatment rooms but then there are other offices where maybe
they’re a little bit slower where they actually have the green receptionist do
some filing and they actually have the greeter receptionist cover the phones
significantly more than one hour a week but if you’re using the same physician
description in all of those places then how you define essential functions may
not at all me what you’re seeing there so it’s a strategic question to think
about what kind of Job Description or position description you’re going to
have if any and how you’re going to keep that up to date and especially in a
large organizations how are you going to enforce or control or manage the fact
that different managers are going to have their own spin on what needs to
happen okay so one thing that employer doesn’t have – so it doesn’t have to
justify the speed of production or the quality standards that are needed for a
particular job what it does need to do those needs to enforce whatever standard
it has so if Bob well let’s say the standard is ten blanks an hour whatever
the job is Bob’s supposed to do ten of these every hour or and not just Bob but
everybody in this position but you know Sally she regularly does eight and
nobody seems to care too much that she’s only doing eight and Theresa she only
does nine sometimes and no one seems to be that worried about Theresa but Bob
who’s in a wheelchair he drops to nine and everybody’s acting like could see
into the world oh my gosh well but if if you didn’t permit Theresa don’t do nine
why can’t you permit Bob don’t Lea do nothing so you can’t selectively enforce
a standard you get to pick what the standard is but then you need to be
fairly ruthless about applying that standard
now can you let’s say you have the standard of ten let’s say you are very
consistent anybody falls below ten they’re gonna
get disciplined for it then Bob comes on board he’s in a wheelchair and you can
decide it would be fine if you were to say listen Bob we’re okay with you only
doing eight so the employer has the option of lowering production levels
that’s fine what what the employer can’t do is hold Bob to a higher standard
either according to the written production rates or the actual practice
in the facility otherwise qualified let’s go back here
to our Terms here actually don’t have that term on our
list but that’s part of the definition for disabled the person is otherwise
qualified so let’s see what we mean when we talk about otherwise qualified an
employer may not so it what is otherwise qualified mean able to perform the
essential functions of his or her position I guess it has to do with the
essential functions so an employer may not consider the possibility that an
employee may become disabled in the future so let’s say that I have multiple
sclerosis which is oftentimes a progressive disorder I may be able to do
my job just fine now I apply for another job the employer might say well as soon
as we put over into this new job maybe it’s gonna get worse and then this job
is more demanding than the old job and maybe we don’t want to go there
no the employer needs to consider the employee in her or his current state
without considering how the disease might progress so let’s consider this
scenario Mary works as a stock clerk she’s been shortlisted for promotion
during her promotional interview she reveals that she’s going to have some
surgery and that if the surgery is successful or even whether the surgery
cysts were not very likely she’s not going to be able to have nearly as much
movement in order to treat her condition in her new position this merchandise
manager job she’s going to have to travel frequently between a units to
make sure everything that’s being displayed properly and it appears that
when Mary has a surgery she’s going to become otherwise qualified because she’s
not going to be able to go from one facility to the other because again
she’s going to her movement is going to be severely limited so it sounds like
she’s not gonna be able to drive but you know what today she can do it so well
that we’ll revisit it in ten months when we know in her situation is the employer
can’t say well you’re gonna be useless to us in ten months so we don’t want to
put you in a position she can do the job today we won’t
player can’t consider the ten months issue you we’ll talk about this is a topic having
to do with direct threat so we’ll save this one for when we get to the direct
threat section so to be qualified means to have the necessary skills education
experience for the job and of course related to that under the otherwise
qualified categories the person can’t be a direct threat to himself or herself
now direct threat sounds kind of new dangers right and and that can certainly
come up somebody who has a psychiatric issue can be a direct threat if this
person is you know possibly having some kind of a disorder that could result in
them being violent but most direct threats aren’t of that type at all so
the name I think is a little bit misleading let me give an example
imagine that I have epilepsy well if I am missing the nature of my
job requires that I climb ladders and let’s say that these letters are very
tall and so somebody who’s holding the ladder at the bottom well if I have an
epileptic seizure as I am high up I fall I could very seriously hurt myself
possibly kill myself and I could land on that other person and severely injure
that other person and so you can see how I pose a threat not because I want to
pose a threat but just because of the nature of the condition similarly I
could have some kind of communicable disease that possibly I could transmit
to somebody else again I don’t want to transmit it but possibly I could
transmit it so that’s what we’re timeout we’re talking about a direct threat
situation the issue the level of risk that the disabled person poses to
himself or herself or to others is often crucial determination where the
applicant is otherwise qualified for the position so you know it depends a matter
of degrees so for example let’s say we have an hiv-positive employee and we’re
not in the medical field well the reality is you don’t exchange bodily
fluids in the working environment let’s say this is an office environment so the
odds of that HIV blood this person has in his or her system affecting me
his coworker is very very small I mean is it possible to imagine a scenario
that could happen sure you know somebody comes in and stabs Bob the hiv-positive
employee and then uses that same knife to stab me and that knife on the blood
that went through Bob at first has HIV positive blood and I get HIV I mean it
could happen it’s super unlikely we would say that level of risk is very
very small and under those circumstances we would say there really is no direct
threat and so therefore Bob would be otherwise qualified for the job despite
his HIV diagnosis so if a requirement for position tends to screen out a
person with a disability the employer must be ready to prove that the
requirement is job-related and consistent with business necessity let’s
go back to the reading and writing test that was designed to test whether Bob
understood the safety protocol to use with the conveyor belt Bob needed to
know that to be a safe conveyor belt worker but he didn’t need to know how to
read and write to be successful at knowing that procedure and the nature of
the job doesn’t require that Bob know how to read and write well bob has
severe dyslexia and really has a great deal of difficulty reading and writing
even though he knows very well how to handle the safety issues that come up so
you could see how a test and the Amy only the only way that Bob can complete
the test is by being able to successfully read and write this test
that it would be difficult for the employer to argue that passing this
written test is truly an example of business necessity another example here
is possession of a driver’s license and that would be a requirement for certain
jobs let’s say I’m a I travel in business from location to location there
isn’t the opportunities mass transit given where these locations are
situation valid driver’s license would be appropriate but let’s say that the
nature of my job I could have someone drive me to work or I could use mass
transit because many people who are disabled aren’t able to have a driver’s
license because of a mobility issue maybe they’re missing a limb or maybe
their their vision isn’t okay or maybe they have epilepsy and therefore might
have a seizure if they’re behind the wheel of a car and therefore are able to
have the license under those circumstances the possession of a
driver’s license may not be appropriate for that the particular position ok so
let’s go back and think about so we’ve kind of gone through the whole topic of
essential functions and let’s look here about next we’ve kind of covered this a
little bit but let me be a little bit more granular here what is a definition
of essential functions those tasks that are fundamental meaning they’re not
marginal they’re not unnecessary to the fulfilment of the positions objectives
and a good way of approaching this is to consider would removing that particular
function fundamentally change the job again going back to the greeter
receptionist if we removed that one hour that she’s on the phone during lunch
would the would the job fundamentally change I would argue now but again if we
were to say to that nurse who has a 15 pound weight restriction would the job
fundamentally change if we allowed her not to lift anybody over 15 pounds well
there’s lots of patients that come in that need that emergency procedure she
really wouldn’t be able to satisfy that so she really wouldn’t be able to in
that urgent emergency situation satisfy the need so I would say that that would
be an essential function the job so when determining the essential function of
the job an employer must look at the means of performing that function not on
the function desired to be accomplished so it could be there could be a variety
of ways that the function would be performed so for example going back to
the example of the greeter receptionist let’s say that the employer decides that
that function for that hour really is essential well there might be ways of
buying amplification for the telephone or some other mechanism may be having a
translator you know be able to translate was being spoken through those TDD
translation for the phone systems that would allow the receptionist to function
as a telephone receptionist so the issue really isn’t is this person going to do
it the typical or expected way but it is really about well how will can this
person do it in some way even though the way may look very different than the way
we ordinarily expect it to look most jobs obviously do consider essential and
non-essential functions so word processing filing and answering phones
might well be essential for clerical jobs beginning coffee lifting boxes of
copier paper those probably aren’t essential functions of the job again we
can only consider the essential functions if a disabled person is not
able to do the non-essential functions then the employer cannot make a negative
decision based upon the non-essential functions because those non-essential
functions can be moved to an able-bodied person now obviously if if the
non-essential functions can be reasonably accommodated in such a way
that the disabled person can perform them then of course the disabled person
can continue to do those non-essential functions but not essential functions
that can’t be reasonably accommodated it can just be moved to somebody else and
taken off of the disabled person’s plate where I talked about the fact that the
employer has a lot of leeway in defining what are the essential functions for a
particular job ah now wrote for direct threat direct
threat is falls under that otherwise qualified category they were just
talking about so what is the direct threat a person who posed a direct
threat to their own safety or health or to the safety and health of others these
could be coworkers these could be members of the general public is not
qualified unless a threat can be eliminated by a reasonable accommodation
so example in the epileptic employees job requires climbing ladders that
person can’t be accommodated but perhaps the the stuff that that epileptic
employee is the reason that they’re climbing the ladder let’s say they’re
getting boxes up from high to work on whatever’s in there well perhaps they
could store the boxes on the ground level and so eliminating the need for
having that ladder at all so it could be that by moving whatever whatever the
reason is that the ladder was destined beginning with that we could move that
to another place it could also be that it’s not an essential function for the
epileptic employee to climb the ladder I mean it’s just something that he has to
do every now and again well then again it’s a non-essential function just move
it to another worker an employee employer can use the director a defense
in the case of an employee with a disease only if the defense is based
upon a reasonable medical judgement and an individualized assessment of
circumstances this is important especially with HIV because there’s been
so much hype about that that people start thinking oh I don’t even want to
be in the same room with somebody with that disease well that’s not a medical
judgment if a doctor says given the particular requirements of this job it’s
not safe for this person this person poses a direct threat that’s when you
have enough that the person has a fear co-worker has a fear or phobia about it
is not sufficient to qualify it as a direct threat if the disability claim by an employee
is based upon a disease the court will determine whether the employees
otherwise qualified by assessing the level of risk the employee poses to
himself or herself or to others so again it’s not just that subjective belief
again the direct threat can be to co-workers it has to be a substantial to
third parties customers for example or to the employee himself or herself this is an important case does the ad a
permit discrimination against this person whose own health would be
threatened by the conditions of the work and the answer is yes so remember here
we the way the statutory language reads it’s clear that coworkers are covered
it’s clear that third parties are covered but the wording language did not
include the employee himself or herself so we didn’t get that clarity on the
issue until we had this US Supreme Court case I said yeah if the disease is
dangerous to the worker himself or herself then the employer can do what
does not to consider that person otherwise qualified okay so now we’re
gonna talk a little bit about reasonable accommodation and we’re gonna talk about
reasonable accommodation a hand in hand with undue hardship and then in our next
lecture we’re going to talk in more detail about reasonable accommodation
and undue hardship in terms of the the approaches to the how you what the
process actually looks like but we’re not going to talk about the process
during this section nearly so much so what is reasonable accommodation it’s an
accommodation that’s reasonable right that makes sense
whenever we see the word reasonable in the law please stop and think to
yourself objective standard this is so important objective standard this isn’t
what’s in my mind because what I think is reasonable may be really different
than what you think is reasonable so we’re not using the standard of what you
think is reasonable or what I think is reasonable we’re kind of thinking about
kind of an average over the whole society about what people think is
reasonable so an accommodation to the individuals disability does not place an
undue burden or hardship upon the employer and then do is kind of like
reasonable it’s not just what one person thinks I mean honestly most employers
are going to think any bar burdens an undue burden right so really what a
reasonable accommodation is focused on is removing unnecessary restrictions or
barriers here’s some examples I’m moving the disabled employees workstation so
it’s closer to the stuff that he or she uses
frequently let’s say he or she has a mobility issue it might involve some new
equipment that has special features maybe again the bigger monitor maybe a
keyboard that has a different configuration perhaps additional
training so that the employee is able to use these new equipments it could also
involve moving non-essential parts of the job to other people’s plates we
talked about in the religious discrimination and accommodation section
that the burden on the employer was de minimis if it cost really any money then
the employer didn’t have to do it and the employer still could do it but the
employer was not legally required to do it the standard on the da da is
significantly different the employer is required to expend significant sums of
money to reasonably accommodate you may say what’s the difference the language
actually in the two statutes are identical
I think the difference has to do with when the laws were passed keep in mind
title soon was passed in 1964 and the American Disabilities Act was passed in
1990 now that’s a lot of years lots of values and the Society have changed and
evolved and so I think that’s one of the big reasons that courts have approached
this language in a different way because of different values in the culture and
so the requirement under the ADEA for reasonable accommodation is
significantly more onerous for the employer to don’t assume that the
religious accommodation requirements is similar to the disability combination
requirements let’s consider this scenario mary is a trained medical
secretary at the hospital she suffers from a condition that causes her to have
periodic severe headaches that could last anywhere from a couple of hours to
a few days there’s no cure for her condition and her pain is management
medication that makes her drowsy normally without a headache a headache
Mary is active and productive her request to work on a flex time basis is
denied by the hospital because it would be impossible to prepare a schedule for
a department without being sure whether or not she’ll be able to be there
these circumstances the hospital is not liable under the ad a because Mary’s
erratic unexplained absences are not reasonable even if they are due to a
disability this is correct but I caution you in this area if Mary remember if
there were other people that were also medical secretaries that could sub in
for Mary we would probably have a very different answer here this answer is
good when Mary is the only person who can do this job and so when Mary’s out
things can’t get done but if there’s another if Bob is also a trained medical
secretary in this department the answer starts looking different and certainly
if there’s more than Bob then it starts looking like the employer can handle her
erratic unexplained absences so this this requires a little bit more focus I
think to get to the right answer okay so the requirement of reasonable
accommodation does not mean creating an a job you don’t have to make up a job
for somebody and for example employers are not required to accommodate
employees by the lete lowering a production standard although employers
can but under the ADEA employers are permitted to accommodate by eliminating
an essential function of the job or lowering of production standards so
employers can do more than what is legally required for the disabled person
the one’s gonna come is out you can’t be nicer but they’re not required to also a
reasonable accommodation is not reducing the workload or the disabled person or
providing the disabled person with more rights to his/her job than the non sale
person now I might pause here and say that you know a reasonable accommodation
in some sense is more right so we’re not talking about the reasonable
accommodation analysis here also creating a new job
worldwide says we don’t need to create a new job if he or she is unable to
perform the essential functions of the job and we we our employers are also not
required to provide personally use items things that the employee would use
outside of the work environment for example if the employee needs
hearing-aid at work she also needs it outside of work if the employee needs a
wheelchair at work she probably needs it outside of work and so if it’s things
that she would need outside of words and the employers that require to provide it
on the other hand if the employee needs to have a large screen on her computer
at work that it would be an example not of a personally use item because she’s
not taking that home with her at night it’s staying at work okay so that’s what
we need it that’s what we mean we’re talking about reasonable accommodation
let’s contrast that with that undue hardship because as we said before our
definition we need to read me as an employer need to reasonably accommodate
up and to the point that it becomes an undue hardship that’s the point what you
know where we need to accommodate right up to this point and then we don’t have
to cross the line into undue hardship undue hardship it’s established if the
action would involve significant difficulty expense and relationship to
the size of the firm in its resources so what’s an undue hardship for one company
may not be one for another company the size of the company the relative
economic health of the company those are factors that are going to affect it if
you’re working for a large company there really is no a new hardship argument at
least it’s going to be very very unusual that you get to that point so if you’re
in a company with you know a few thousand employees don’t even don’t even
think in terms of expense being an undue hardship limitation I would say though
that scene if you get difficulty even when there’s expenses and a factor can
become an issue so for example let’s say an employee is saying well I can’t get
to that part of the building well it’s going to involve you know a lot of
hassle to remove everyone’s workplace so that this employee can get to this
particular area the facility and it’s going to involve maybe not a huge amount
of expense but could involve moving lots of people’s offices
it’s going to be very disruptive for the work environment the expense wouldn’t
necessarily be the problem but just the amount of a people that it causes that
could be an undue hardship it must be shown that the abbé the accommodation
will impose a significant obligation on the part of the employer and again
there’s all kinds of ways that the employer could approach this but I
showed you that the Jan network there’s also grants and tax breaks that are
available for reasonable accommodation efforts so what are the things that can
impact whether something is considered an undue hardship well the financial
difficulty again is especially helpful for smaller companies unduly costly
extensive substantial or disruptive and then it might fundamentally alter the
nature operation of the business when the costly accommodation would result in
undue hardship and outside funding is not available you should offer the
disabled employee the option of paying a portion of the cost itself himself or
herself obviously that’s not something you’re gonna do if you’re Exxon but it’s
something you could do if you have you know 20 employees and you just can’t
afford the special van that this person would need to operate or for that the
the special accommodation need to but maybe the employee is willing to do that
so again this is going to be a fact intensive individualized consideration
to decide when we cross over into the undue hardship territory so a small
employer may not be required to provide a specific reasonable accommodation
we’re disabled applicant whereas a large employer within the same industry may be
required to do so simply because the larger employer has more assets we’re
going to talk more about the reasonable accommodation process in our next
lecture but let’s go through one scenario here so Bob is a sales rep and
he is a very small company obviously has more than 15 employees but it’s just
maybe has 16 and this applies frozen foods to supermarkets he’s required to
travel to the stores to meet their managers to view their inventory after a
recent road accident Bob’s left hand has become severely impaired
only his right hand is functional Bob requests the company install a one hand
driving system unfortunately that cost thirty five to forty five thousand
dollars based upon the size of financial position in the company this cost is
more than it can afford now again this one for the purpose of this question
we’re assuming it’s the case but gosh this is a tough one to make an
assumption about you shouldn’ta sumptuous you need to have some legal
guidance on this that the business person on its own should not just assume
this this this is a tricky issue it’d have to be a really small company that
really is struggling for this to be too much
Arnett Fox should convey to Bob that it cannot make them request a combination
do defy undue hardship but see if there’s another open option for which
Bob could be qualified it also should give Bob the option of
paying for some or all of it himself I mean the first know that he can stay in
the job here’s another scenario Bob is a nurse and a private hospital he tests
hiv-positive during one of the regular screenings that they do in the hospital
whenever an employee whose job requires him to have direct contact with patients
test positive for a blood-borne disease the hospital shifts him or heard of a
desk job with no change in his salary but Bob refuses this arrangement he
instead requests that the Hospital hire a part-time nurse to follow him on his
shift to keep track of him to make sure he doesn’t do anything that could expose
patients to the blood-borne pathogen the hospital denies his request and fires
Bob because of his unwilling unwillingness to move to the desk job
given the very special nature of Bob’s job Bob’s requests can be lawfully
denied as it represents an undue hardship for the hospital but you know
because you know bob is obviously you know giving injections dealing with
opens wounds in the patient and things like that he’s dealing with with blood
and things like that it’s really just that very unusual nature of the job that
he is able that is possible for the hospital to exclude him from the job
based upon his HIV test the vast vast majority of jobs in the
United States don’t involve any type of situation where an HIV person would be
exposing co-workers or others to the HIV and so under those circumstances this is
fair and usual factual situation does allow the hospitals they know again for
the vast majority of jobs HIV says would not affect the employees ability to do
his or her job would not be an undue hardship the worker would not pose a
direct threat so we’ve covered introduction the prima facie case and
some key ABA concepts in this lecture in our second lecture we will discuss in
more detail the reasonable accommodation process will discuss some special
categories of disabilities will discuss the remedies that are available to
successful plaintiffs under the American Disabilities Act and we’ll discuss some
special topics some of which I’ve kind of touched on a little bit but we’ll do
a little bit deeper dive into hiring harassment contingent workers the topic
of retaliation workers compensation genetics and also leave issues I thank
you for your attention I hope that you’ve enjoyed this presentation that
you found value in it as always if you have questions don’t hesitate to call
and call me or to send me an email at sea groover at collins edu or better yet
come by my office hours so we can talk in more detail I look forward to hearing
from you I hope you have a great day thanks again bye-bye

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