April 25, 2013
Hooter's Waitress Alleges That Brain Surgery Resulted In Her Losing To Her Job
A waitress at a Missouri Hooter's restaurant alleges that her post-brain surgery appearance cost her her job. Following the removal of a brain tumor, her bosses at Hooters ordered her to wear a wig to cover up her bald head and surgical scar. She responded that she couldn't afford a wig (Hooter's didn't offer to pay for it) and when she tried to wear a borrowed one, it hurt her healing wound. Then, according the the waitress, her hours were reduced so much that she had to quit. Our own Marcia McCormick was quoted on her ADA suit in the ABC News story:
Marcia McCormick, an associate professor of law at St. Louis University, said Lupo's surgery to remove a brain mass qualifies as a disability, but that Hooters could argue that her appearance was a bona fide qualification for her job.
"In the disability context, if Hooters is to say she's not as attractive now without this wig, if they're selling her attractiveness that might be a real function of her job and mean she isn't qualified by the Americans With Disabilities Act," McCormick said.
"Most companies can't say something like this, but Hooters sells this experience," she said.
There's at least something of a good ending, no matter what happens to the case, as the waitress, who was a nursing student at the time, is now employed as a trauma nurse.
Hat Tip: Joe Seiner
March 29, 2013
Barry on Exactly What Congress Intended? (ADAAA)
Kevin Barry (Quinnipiac University - School of Law) has posted on SSRN his article in the Employee Rights and Employment Policy Journal (Vol. 17, No. 1, 2013): Exactly What Congress Intended?
Here is the abstract:
The Americans with Disabilities Act (ADA) was passed by Congress and signed into law in 1990 with tremendous bipartisan support and high hopes. When President George H.W. Bush signed it, he called the law a "sledgehammer" to shatter a "shameful wall of exclusion". Unfortunately, for many people with disabilities experiencing discrimination on the job, the ADA turned out to be more of a rubber mallet. The Supreme Court, in a series of decisions in 1999 and 2002, gutted the ADA by narrowly interpreting its definition of "disability". In 2008, Congress fired back by passing the ADA Amendments Act [ADAAA] of 2008. This Article discusses the Congress-courts dialectic surrounding the ADA: from its passage in 1990, to the pit of Supreme Court jurisprudence, to the advocacy effort that swung the pendulum back to Congress. While judicial interpretations of the Amendments are just beginning to surface, they are, for the most part, exactly what Congress intended.
Kevin tells us that this piece is part of a larger education and outreach effort among several law school clinics, employee-side attorneys, and other interested groups, which is working to respond to some issues with respect to the ADAAA's implementation. Looks to be a short, user-friendly article that tells the story of the ADA's passage, its amendment in 2008, and its current interpretation by courts post-ADAAA. Check it out!
March 06, 2013
Travis on ADAAA "Impairment"
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the status of an independent protected class under federal antidiscrimination law. The ADAAA's effective elevation of impairment to protected class status demands a deeper understanding of the ways in which impairment discrimination - as distinct from disability discrimination - manifests itself in the workplace. This Article explores one aspect of that larger inquiry by analyzing whether impairment discrimination encompasses employment decisionmaking based on the symptoms of an impairment or on the mitigating measures that one uses for an impairment. This Article demonstrates that understanding symptom-based and mitigation-based decisionmaking as a form of impairment discrimination is not only consistent with the statutory language and legislative intent, but also accurately reflects the social, medical, and practical reality of what it means to be "impaired."
February 13, 2013
Porter on Disability & Caregiving
Nicole Porter (Toledo; visiting Denver) has been busy -- she's just posted to SSRN her second article within a week. Her newest is Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities. Here's the abstract:
This paper explores the marginalization of two groups of employees — individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. In fact, however, while not perfectly aligned, these two groups of individuals have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal worker norm. This causes both groups of employees to suffer from “special treatment stigma,” which manifests itself in resentment by co-workers because of the special benefits these employees receive and in employers’ reluctance to hire individuals belonging to these groups because of the real or perceived increased costs of employing such individuals. Despite these similarities, the law has dealt with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities.
In this paper, I will explore why the law treats these groups of employees differently. I will address many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and are therefore used to justify their different treatment under the law. But I will ultimately conclude that these distinctions, once unpacked, do not justify the law’s different treatment of these two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together — the special treatment stigma. Thus, I will explore whether a combined legal and theoretical approach to eliminating the special treatment stigma is feasible and defensible. Specifically, I seek to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities.
February 05, 2013
Final FMLA Rule on Military and Flight Crews Expansion to Be Published Tomorrow
Kenneth Shiotani (National Disability Rights Network) gives us the news that the Department of Labor will be publishing its final rule on the recent amendments to the FMLA that expanded coverage to flight crews and family members of those in the military--for a refresher on those expansions, see here, here and here.
February 5, 2013 in Beltway Developments, Disability, Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Worklife Issues | Permalink | Comments (0) | TrackBack
Happy 20th Anniversary FMLA
And for some reform links, from the add paid leave camp: National Partnership for Women and Families Agenda for the 113th Congress. And from the reform abuse of leave camp: The U.S. Chamber of Commerce's Absence abuse and Medical Leave.
January 05, 2013
ADA Amendments Retroactivity
There's a recent ADA case from the Fourth Circuit of note. In Reynolds v. American Red Cross, the court joins most of the other circuit courts in holding that the ADA Amendments do not apply retroactively—an issue that is on its way to being mooted by the passage of time. One interesting issue that was effectively mooted by that holding was the district court's willingness to aggregate defendants the American Red Cross and the relevant local affiliate for purposes of meeting the ADA's minimum number of employees. That's obviously significant for many larger entities, so we'll have to stay tuned for the court's take on this issue.
Hat Tip: Jonathon Harkavy
September 29, 2012
Hass on DSM-5 & Employment Law
Douglas Hass (Franczet Radelet) has just posted on SSRN his article (presented at the 2012 LEL Colloquium earlier this month in Chicago) Could the American Psychiatric Association Cause You Headaches? The Dangerous Interaction between the DSM-5 and Employment Law. Here's the abstract:
Since its first publication in 1952, the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) has long served not only as the primary reference for mental health disorders for medical practitioners, but also as a primary authority for the legal community. In May 2013, for the first time in nearly 20 years, the American Psychiatric Association plans to publish an entirely new edition. As proposed, the DSM-5 would significantly expand a number of existing psychological disorders and add several new ones. The new Manual is still a work in progress, published only as proposed diagnostic criteria and assessment instruments on the DSM-5 website. However, the significant proposed revisions to a wide range of mental impairments mean that the legal community’s relationship with the DSM may be forced to change given the implications that changes in the DSM-5 may have for claims under laws like the Americans with Disabilities Act (claims of “disability,” requests for reasonable accommodations), Family Medical Leave Act (definitions of a “serious illness”), the Age Discrimination in Employment Act, and even state statutes and workers compensation laws (whether an illness is work related).
This paper discusses the major role that the DSM standards play for legal practitioners and the danger that overly expansive definitions of mental disorders could pose to employers and employees. First, the paper discusses the history and background of the DSM and its development into a de-facto legal treatise. In Part II, the paper highlights the strengths and weaknesses of the DSM-IV as a legal text. Next, the article explains the dangerous interaction between the ADA Amendments Act and the proposed DSM-5. In Part IV, the article highlights the challenges and difficulties that certain changes — from a proposed “Mild Neurocognitive Disorder” to the inclusion of deviant behavior in the definition of a mental disorder — could cause employers, employees, courts, and even federal agencies in applying employment and disability laws, and the ADA in particular. Finally, to reduce the possible unintended consequences of overly-expansive definitions, Part V summarizes specific approaches that courts, employers, employees, and legal practitioners should rely on to reduce the potential confusion and burdens caused by the impending release of the DSM-5.
Although the ADA and other employment statutes do not incorporate DSM (and indeed often define "disability" inconsistently with each other), as this article illustrates, the new DSM-5 widens even further the gulf between the APA and the ADA.
September 10, 2012
Seventh Circuit Holds Reassignment Likely to Be Reasonable Accommodation under ADA
The Seventh Circuit issued an important decision on Friday in EEOC v. United Airlines, No. 11-1774. Through an unusual procedural device, the court overruled prior precedent and held that under the ADA, reassignment of an employee who becomes disabled can be a reasonable accommodation that the employer must provide. The prior case was EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), in which the court had held that the ADA did not require that a vacant position be given to an employee with a disability where a better qualified employee also wanted it because the ADA was only a "nondiscrimination" statute, and not a "mandatory preference" statute. Two years later, the Supreme Court decided US Airways v. Barnett, 535 U.S. 391 (2002), holding that, in fact, sometimes the ADA did require what looked like preferential treatment of employees with disabilities to put them on an even playing field.
In EEOC v. UAL, the court remanded the matter to the district court to apply the two part test that Barnett requires: 1. Is mandatory reassignment, ordinarily, in the run of cases, a reasonable accommodation; and if so, 2. are there fact-specific considerations particular to this employer's employment system that would create an undue hardship and render mandatory reassignment unreasonable? There is an alternative test, too. If the court answers "no" to number 1, then the plaintiff has a chance to prove at step 2 that special factors make mandatory reassignment reasonable in this case. The court also gave some guidance on when mandatory reassignment will not be reasonable, i.e. in a workplace with a bona fide seniority system, something the court called rather rare and which it noted was absent here. The court suggested that it was extremely likely that the district court would find that mandatory reassignment will be reasonable in the run of cases at United Airlines.
With this decision, the 7th Circuit joined the 10th and D.C. Circuits (both of which had issued opinions en banc before Barnett) in holding that mandatory reassignment was required unless it would create an undue hardship for an employer. The 8th Circuit, which had relied on Humiston-Keeling, may want to rethink its position.
h/t Mark Weber (DePaul)
September 05, 2012
EEOC Seeks Input on Draft Strategic Plan
The U.S. Equal Employment Opportunity Commission (EEOC) has released for public comment a draft of its Strategic Enforcement Plan (SEP). Comments must be submitted by 5:00 pm ET on September 18, 2012 at firstname.lastname@example.org or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.
. . .
For general inquiries about the plan, please email email@example.com or call (202) 663-4070/(TTY: 202-663-4494). For press inquiries, please contact the Office of Communications and Legislative Affairs at (202) 663-4191 or firstname.lastname@example.org. If you are seeking EEOC information, please call (202) 663-4900 or email@example.com. Further information about the EEOC is available on its web site at www.eeoc.gov.
And I got word of this from Commissioner Feldblum's twitter feed. If you don't follow her, you should: @chaifeldblum.
August 13, 2012
Duhl on Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life
With all the serious and timely discussion of job security in the law professiorate and what-not, it appears particularly appropriate to bring to blog readers' attention this essay by Greg Duhl (William Mitchell): Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life.
It is part book review, part narrative, and part analytical. Here is the abstract:
This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
I happy to help Greg to spread the message on the importance of integrating faculty with mental illness. I believe this should be of interest to many readers of this blog and hopefully will spur a serious discussion on this topic.
July 14, 2012
Recently Published Scholarship
- Charles P. Mileski, Those Lost but Not Forgotten: Applicants with Severe Disabilities, Title I of the ADA, and Retail Corporations, 40 Hofstra L. Rev. 553 (2011).
July 02, 2012
Recently Published Scholarship
- Jeanette Cox, Pregnancy as "Disability" and the Amended Americans with Disabilities Act, liii Boston College L. Rev. 443 (2012).
- Charles P. Mileski, The Lost but Not Forgotten: Applicants with Severe Disabilities, Title I of the ADA, and Retail Corporations, 40 Hofstra L. Rev. 553 (2012).
March 21, 2012
Wasserman on Hosanna-Tabor and Jurisdiction
And in keeping with the federal courts/Supreme Court theme, Howard Wasserman (Florida International) has a really interesting essay on the Supreme Court's holding in Hosanna-Tabor Lutheran School v. EEOC that the ministerial exception is not jurisdictional in PENNumbra: Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exception. From the introduction:
Hosanna-Tabor correctly characterized the ministerial exemption as a limitation on the merits of the employment discrimination claim. I repeatedly argued for this position before the Court entered the mix, including in this Essay, which was written and accepted for publication in October 2011 (before the Court discovered unanimity and thus was able to decide the case fairly quickly). But the Court’s jurisdictionality footnote was entirely conclusory, failing to explain why the issue controls whether the plaintiff’s allegations entitle him to relief rather than whether the court has power to hear the case.
It thus remains to unpack why the exemption is, in fact, a merits doctrine. First, doing so demonstrates the correctness of the conclusion in Hosanna-Tabor, putting to rest any normative dispute on the issue. Second, mischaracterization of the ministerial exemption resulted from the same category errors that plague characterization of other legal issues; this issue illustrates nicely the routine conflation of jurisdiction and merits and courts’ failure to maintain clean lines between doctrines and underlying concepts. While the Court’s conclu-sion that the exemption is merits-based might be enough to signal lower courts on future jurisdictionality issues, actual analysis and explanation may better enable them to understand and recognize the limits of what goes to jurisdiction and, inversely, the breadth of what goes to substantive merits.
This Essay, I hope, provides that analysis.
I haven't had a chance yet to read the whole thing carefully, but what I've seen so far is a great discussion of an issue vexing to courts, litigants, and scholars alike.
March 09, 2012
4th Circuit ADHD-as-Disability Opinion
Long-term blog reader Jon Harkavy (Patterson & Harkavy) sends us word of this Fourth Circuit decision. I'm stealing his description of the case:
[Halpern v. Wake Forest University Health Sciences is a ] Fourth Circuit decision issued earlier this week involving the discharge from medical school of a student afflicted with ADHD. The panel unanimously rejected his ADA claim, holding that he was not "qualified" with or without accommodation of his disability. The opinion is noteworthy for its clarity on how this kind of claim is to be analyzed and for its definition of the degree of deference to be shown to a medical school's decision about allowing its students to pursue a degree in order to become a physician.
March 07, 2012
Seventh Circuit Invites En Banc Petition for ADA Case of Accommodation
Some highlights from Sam's post on his blog, the Disbaility Law Blog, entitled: Seventh Circuit Panel Invites En Banc Petition Regarding Reassignment:
As ADA mavens know, there is a persistent conflict in the circuits regarding the scope of an employer's duty, as a reasonable accommodation, to reassign an employee with a disability to a vacant position. The Tenth and D.C. Circuits have held that, when an employee acquires a disability that makes her unable to perform the essential functions of her current position even with a reasonable accommodation, the employer has a duty to reassign the employee to an equivalent, vacant position for which she is qualified -- whether or not she is the "most" qualified applicant for that position. The Seventh and Eighth Circuits have held that the reassignment duty is satisfied so long as the employer gives the employee the opportunity to apply for a vacant, equivalent position, but that the employer may refuse to give the new position to the employee if she is not the most qualified applicant. The Supreme Court granted cert. to resolve this conflict in Huber v. Wal-Mart Stores in 2007, but it dismissed the writ of certiorari after the parties settled. (Disclosure: I was one of Huber's counsel in the Supreme Court.)
Today, a panel of the Seventh Circuit issued an opinion that invited an en banc petition asking it to change its position on this issue. Here's the key language, from a case entitled EEOC v. United Air Lines, Inc.:
In this case, the Equal Employment Opportunity Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The EEOC contends that the ADA requires employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified. However, this court has already held, in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000), that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undermines Humiston-Keeling. Several courts in this circuit have relied on Humiston-Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston-Keeling’s continued vitality. In accordance with this circuit’s case law, we affirm the district court’s holding that the ADA does not mandate reassignment. However, this circuit might reconsider the impact of Barnett on Humiston-Keeling.
Should be an interesting case to watch out for.
February 22, 2012
EREPJ Call for Papers on Disability Discrimination
The Employee Rights & Employment Policy Journal is sponsoring a symposium issue dedicated to disability discrimination and the law. Although all papers within this topical area will be considered, papers with particular emphasis on the ADA Amendments will be given special consideration. The symposium issue is scheduled for publication as the first issue of 2013. The symposium editor is Professor Ramona L. Paetzold of Texas A & M University. Please submit all manuscripts to her no later than Friday, August 24, for consideration in the symposium issue. Papers should be submitted in Word via email attachment to Prof. Paetzold. Please direct all questions to this email address as well.
February 19, 2012
Porter on ADA Coverage
Nicole Porter (Toledo) has just posted on SSRN her article Martinizing Title I of the Americans with Disabilities Act. Here's the abstract:
Prior to the ADA Amendments Act of 2008, relatively few cases proceeded past the initial inquiry of whether the plaintiff was covered by the ADA. Consequently, the scope of an employer’s obligation to provide a reasonable accommodation to an individual with a disability remains under-developed and under-theorized. Now that the Amendments have made it easier for a plaintiff to prove he has a disability under the ADA, we can expect to see more courts struggling with many difficult reasonable accommodation issues. The current case law is chaotic, providing little guidance to employers and courts in determining whether an accommodation is reasonable, and making it impossible to discern any unified principle to explain the chaotic results. This Article does just that. It identifies the scope of an employer’s obligation to reasonably accommodate its employees by proposing a unified approach to the reasonable accommodation provision.
I am facilitated in this endeavor by relying on a case under Title III, the public accommodations Title of the ADA. In PGA Tour, Inc. v. Martin, ...
February 09, 2012
OFCCP Extends Comment Period/Promoting Employment of People with Disabilities
The Office of Federal Contracts Compliance Programs has extended the comment period for for its proposed rule to revise regulations implementing Section 503 of the Rehabilitation Act of 1973, which obligates most federal contractors and subcontractors to ensure equal employment opportunity for qualified workers with disabilities.
From the press release:
On Dec. 9, 2011, OFCCP published a notice of proposed rulemaking in 76 Federal Register 77056 with a comment period originally set to end on Feb. 7, 2012. After reviewing requests for an extension, OFCCP has extended the comment period by 14 days until Tuesday, Feb. 21. This action will provide additional time for interested parties to analyze the issues raised in the proposal and to provide their comments. Individuals and organizations who already have submitted comments may use the extension period to revise or add to their original comments.
To learn more about the proposed rule and submit comments, visit http://www.dol.gov/ofccp/503. The rule proposed by OFCCP would strengthen the affirmative action and reporting obligations of federal contractors by requiring them to set a hiring goal of having 7 percent of their employees be qualified workers with disabilities. The proposed changes also detail mandatory actions contractors would have to take in the areas of recruitment, training, record-keeping and dissemination of affirmative action policies ‒ obligations similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations of contractors by providing specific guidance on how to comply with the law.
Parties who filed comments previously may supplement or submit additional comments during the extended comment period. Parties interested in commenting can view the NPRM and submit comments by using the Federal eRulemaking Portal www.regulations.gov and referencing RIN 1250-AA02. This is another great opportunity to have students participate in the rulemaking process.
Hat tip: Patricia Schaeffer, EEOIMPACT LLC
February 06, 2012
Defining Disability Under the ADAAA