Workplace Prof Blog

Upcoming Disability Law Conferences

Thanks to Paul Harpur (T.C. Beirne in Brisbane) for sending word of two upcoming disability law conferences:

• Berkeley Law Disability Rights Symposium, March 22-23, 2012.
• Pacific Rim International Conference on Disability & Diversity, March 26-27, 2012, Honolulu Hawai'i.

rb

Tomorrow's Argument in Coleman v. Maryland Ct. of Appeals

Although this Supreme Court term has fewer employment and labor cases or at least fewer foundation-shaking employment and labor cases than the last few terms, that does not mean that there is nothing to pay attention to. Case in point: Coleman v. Maryland Court of Appeals, which will be argued tomorrow on FMLA leave for state employees.

It's a case that brings together two of my favorite topics, family and medical leave and the 11th Amendment. But wait, you might be thinking, didn't the Court already deal with the FMLA and the 11th Amendment in Nevada Dep't of Human Resources v. Hibbs, and didn't the Court find that Congress could subject the states to suits for damages for FMLA violations? The answer would be, yes, but . . . 

You might recall that the plaintiff in Hibbs was a state employee who took leave to care for his sick spouse. He was fired after he exhausted his leave, and he sued under the FMLA's cause of action allowing an employee to sue for damages for interference with, restraint of, or the denial of exercise of FMLA rights. Generally, the 11th Amendment (really actually Article III, but that's kind of a technical federal courts argument that I won't go into here) prohibits suits against unconsenting states for money damages. Congress can abrogate that immunity when it acts validly under the 14th Amendment. In Hibbs, the Court found that the FMLA was validly enacted under the 14th Amendment because it was designed to promote women's equality by ensuring that leave could be taken by both sexes and by encouraging both sexes to take that leave. Traditionally, women have engaged in the bulk of caregiving for young children or adult family members with serious health needs.

That didn't necessarily end the issue, though. Since Hibbs, the Court has increasingly taken an "as applied" approach in its abrogation cases. You might be familiar with Tennessee v. Lane for example, where the Court found that Congress had validly abrogated state sovereign immunity in Title II of the ADA at least insofar as it provided damages actions against states for not providing access to the courts or for inflicting cruel and unusual punishment on prisoners. This stood in stark contrast to Bd. of Trustees of the University of Alabama v. Garrett, where the Court held that Title I of the ADA was not validly enacted under the 14th Amendment, and so Congress could not subject the states to suits for violations of the act.

Which sets the stage for Coleman. The plaintiff in Hibbs took leave to care for his spouse--an act that is still somewhat unusual for men and certainly not consistent with stereotyped expectations of male gender behavior. The FMLA is the Family and Medical Leave Act, though. It mandates leave for people to care for their own serious health conditions as well. The self-care provision might seem more analogous to disabilities and things protected by the Americans with Disabilities Act (not valid under the 14th Amendment) rather than a part of an effort to disrupt discriminatory patterns on the basis of sex (valid under the 14th Amendment).

The plaintiff has argued that the self-care leave is a part of the effort to disrupt discriminatory patterns on the basis of sex, pointing to employer hesitation to hire women because of a perception that they would be more likely to need leave for their own pregnancy-related health issues. The state of Maryland argues that the self-care provision is designed to prohibit discrimination against those with serious health issues, more like the ADA, and even if it were related to sex discrimination, such a remedy is not congruent and proportional to what the 14th Amendment would provide and so not within Congress's abrogation powers.

It will be interesting to see whether the changes in membership on the Court since Hibbs change the tenor of the argument or the Court's approach.

Update: Here's the transcript. No real surprises, although you can see the Justices arguing with each other through their questions more than usual.

MM

Cox on Pregnancy & the ADA

Jeannette Cox (Dayton) has just posted on SSRN her article (forthcoming Boston College L. Rev.) Pregnancy as 'Disability' and the Amended Americans with Disabilities Act.  Here's the abstract:

The recent expansion of the ADA’s protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect.

Drawing on the social model of disability, this article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social model defines “disability” not as an impairment located within an individual’s body but as the interaction between the individual’s body and her social environment. Within this framework, workers may experience pregnancy, a healthy biological state, as a workplace “disability.” Accordingly, now that workers with temporary physical limitations comparable to pregnancy may receive ADA accommodations, courts should conclude that the ADA’s goal to reshape the workplace to accommodate previously excluded persons extends to pregnancy.

rb

ABA Directory for Disability Rights

Carol Furnish (NKU Chase) sends word of the new ABA Directory for Disability Rights.  This first-of-its-kind online directory provides information about state and local bar associations that: (1) offer support to lawyers with disabilities or disability diversity, or (2) handle substantive areas of disability law.

rb

The Impact of DSM Revisions on Labor/Employment Laws

David Foley over at LaborRelated has a terrific post about the ongoing process of revising the American Psychiatric Association's Diagnostic and Statistical Manual (DSM).  David explains that

the debate about the [proposed] changes is a good thing to keep an eye on because although inclusion of a condition in the DSM-IV has not been completely synonymous with coverage under various employment laws, the courts have often looked to it for guidance.  Among others, the changes in the DSM-V could impact Americans with Disabilities Act claims (is the plaintiff disabled, what is a reasonable accommodation, etc), Family Medical Leave Act claims (does plaintiff suffer from a serious illness) and workers compensation laws (does plaintiff have an illness and was it caused by work).

David's post is extensive, discusses several of the proposed changes, and is worth a close read.

rb

Amicus Signing Opportunity in Hosanna-Tabor

Leslie Griffin (Houston) and Caroline Mala Corbin (Miami) have drafted an amicus brief and are looking for signatories.  Here's their description (from Feminist Law Professors; hat tip Jessica Roberts):

We have drafted an amicus brief for law professors in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.

Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired.  Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.

Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister.  If she is not a minister, she would probably win.   After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses.  She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.
The ministerial exception grants religious organizations immunity from employment discrimination suits brought by “ministerial” employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination.  The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it

The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.

We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply.  Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.

As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes.   In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.

If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us.

rb

Senn on Discriminatory Paternalism

Craig Senn (Loyola - New Orleans) has just posted his article (58 UCLA L. Rev. 947) Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law.  I saw his abstract last November, and have been looking forward to the opportunity to read the entire article.  It was worth the wait.  Here's the abstract:

At present, our federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism – the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally-protected characteristic(s). Under Title VII of the Civil Rights Act of 1964, the courts and the EEOC reject such paternalism, demanding that the applicant alone decide whether to pursue (and accept) a job that poses risks related to his or her sex, race, color, religion, or national origin. In contrast, under the Americans with Disabilities Act of 1990, the courts and the EEOC allow applicant-specific paternalism, thereby permitting an employer to seize decision-making power from a disabled applicant.

Consequently, the validity of an excluded applicant’s employment discrimination claim regrettably depends on a single factor or variable: the at-issue protected characteristic. The "favored" characteristic (i.e., a Title VII characteristic) yields a viable claim. But, the "disfavored" characteristic (i.e., an ADA disability) produces a losing claim.

This Article proposes a new approach – termed “informational paternalism” – that brings needed uniformity and consistency of legal protection in the area of applicant-specific paternalism. This middle-ground approach has two features: a blanket prohibition of applicant-specific paternalism, and a job-related risk notification requirement. Together, these two features are justified because they: (a) reflect a longstanding philosophy of both Congress and the Supreme Court that rejects an employer’s applicant-specific protective purpose as an unacceptable basis for excluding an applicant; (b) serve to fully advance federal anti-discrimination policy; and (c) embrace a philosophy shared by Congress and the Occupational Safety and Health Administration that seeks to protect workers by providing them with information relevant to their employment-related decisions (rather than by seizing their decision-making power).

rb

Verizon Settles EEOC Disability Suit Based on No-Fault Attendance Policy

The EEOC reports that Verizon has settled for $20 million a nationwide suit filed by the EEOC alleging that the company's no-fault attendance policy violates the ADA.  Here's an excerpt from the EEOC press release:

The consent decree settling the suit, which is pending judicial approval, represents the largest disability discrimination settlement in a single lawsuit in EEOC history.  The EEOC charged that Verizon violated the Americans With Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities.  Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

***

In addition to the $20 million in monetary relief, the three-year decree includes injunctions against engaging in any discrimination or retaliation based on disability, and requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences.  Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans.  The company will report to the EEOC about all employee complaints of disability discrimination relating to the attendance policy and about Verizon’s compliance with the consent decree.  The company also agreed to post a notice about the settlement.  Finally, Verizon will appoint an internal consent decree monitor to ensure its compliance.  The settlement applies to certain Verizon wireline operations nationwide which employ union-represented employees.

rb

Areheart on Disability as a Social Construct

Brad Areheart (Visiting at Stetson) has just posted on SSRN his article (forthcoming Yale Law & Policy Rev.) Disability Trouble.  His topic is dear to my heart -- it's one that I cut my teeth on in one of my first articles, shortly after the ADA became law (dates me, I know).  Here's the abstract:

In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections.

An almost identical binary exists for disability, the disablement/ impairment binary, in which writers characterize disablement as the social construct, and impairment as the disabled person’s body. This disability binary has received sparse critical attention; while few legal scholars have provided ringing endorsements, none have provided a systematic critique of the binary or examined the legal implications attendant to such a critique. Yet, just as with legal scholarship on gender and sex, there are important legal implications to making further sense of the meaning of disability.

In this Article, I make disability trouble by arguing disability is more socially constructed than acknowledged. In particular, and contrary to most literature, I argue that biological impairment is itself a social concept. Initially, I explain how impairment, according to those who coined the disability binary, appears to be little more than diagnosis. From there, I argue, using concrete examples, that both the creation of diagnoses and acts of diagnosis are social processes. Finally, I examine the legal implications of disability trouble.

rb

Important ADA Case on Working as a Major Life Activity, Regarded As, and Retaliation

Although we're winding down on pre-amendment ADA cases, the Seventh Circuit just issued one that may have significant implications for post-amendment cases as well. In Miller v. Ill. Dep't of Trans., the court considered when work can be considered a major life activity, when an employee will be considered to be regarded as disabled, whether a proposed accommodation was reasonable, and whether there was an issue of material fact on the plaintiff's retaliation claim. Most of these issues will continue to be at least as important (and maybe more so) under the amendments, although they might be framed a little differently, so the case is worth analyzing in some depth.

The plaintiff, Darrell Miller, worked for IDOT for five years as a highway maintainer on a bridge crew before he was discharged. Miller had a serious fear of heights, later diagnosed as acrophobia, and he notified his supervisor that he would not be able to work unsecured in extreme positions above certain heights. The supervisor accommodated this limitation, and accommodated the limitations of other members of the crew too. Each member would do work they could and fill in where other members could not. Miller could do about 97% of all of the work the crew did, and there was only one occasion in which he was not able to perform a task. That occasion led to his discharge and this lawsuit.

After a number of years without any problems, Miller's supervisor ordered him to do a task that he would have to stand unsecured on a bridge beam for. Miller tried but had a panic attack and couldn't complete the task. He was taken by ambulance to a hospital. After this incident, Miller was diagnosed with acrophobia, and Miller characterized his limitation as not being able to work above 20 feet in an unsecured, extreme position. IDOT treated him, though, as if he could never work above 20 feet or where he might think he was above 20 feet. Something he had been doing fine (as long as he was secured) for years. A memo to the IDOT personnel department interpreted this already broad limitation even more broadly to include any work in which a person might be able to see that they were significantly higher than a surface below them (able to see through holes in a bridge's road surface, on a steep hill, etc.). The memo suggested that there was no IDOT highway job that Miller could do.

The court of appeals found that Miller had created a material issue of fact on whether IDOT considered him disabled from working. To be disabled from working, a person must be disabled from a broad class of jobs, not just the particular job at issue. The key here was that the "regarded as" standard is subjective, and IDOT essentially admitted that it perceived Miller to be disabled from a broad class of jobs in its memo. Thus, it regarded him as substantially impaired and unable to work generally.

On the accommodations request, the court found that a reasonable jury could either find that the work Miller could not do was not an essential function of his job or that the accommodation to have other members of the bridge crew do it was reasonable since that was how the crew as a whole had been functioning for years.

On the retaliation claim, when Miller had requested an accommodation, a personnel employee told him that the IDOT did not grant requests, and she denied the accommodation. Miller was ordered back to work, though, and when he returned to work, he called the personnel employee who had refused his accommodation request "Arch Enemy Number 1," and while he said he had never hit a woman before, he commented that he "sometimes . . . would like to knock her teeth out." Miller was fired for insubordination. This may sound bad, but Miller produced evidence that his supervisor had threatened coworkers a number of times and even threatened to kill three of them, but was never disciplined. That plus the timing of his discharge--his first day back--was enough to create a genuine issue of material fact on the reason for his termination.

Post amendment implications: Miller likely had to go with the "regarded as" prong for his ADA case because he might not have been considered disabled under the definitions that had been established under the statute. Under the amended version, he likely would be considered disabled from working at a broad class of jobs his training suited him for, or perhaps from maintaining cognitive and appropriate physical functions regardless of height. The expansive definition of a disability and the explicit inclusion of working as a major life activity would likely cover him, making the regarded as claim unnecessary. If Miller was only regarded as disabled, though, he might have a problem under the amendments. The duty to accommodate does not seem to apply to individuals who are only regarded as disabled, and so if Miller was only regarded as disabled under the amendments, he would not be entitled to an accommodation that he be relieved from some of the duties of the bridge crew. Still, the essential functions and reasonable accommodations analysis (if he would be disabled under the amendments) gives some guidance to how those should be analyzed under the amendments, since they did not change.

Hat tip: Mark Weber

MM

EEOC Comm'rs on New ADAAA Regs Wednesday

The ABA is hosting a live webinar on Wednesday, May 4 on the new ADAAA regulations. Chai Feldblum and Victoria Lipnic, two of the commissioners, are on the panel, joined by Michael Subit and L. Julius Turman.

According to the notice,

This CLE will focus on how to apply the new regulations including:

• provisions on types of impairments that should easily be concluded to be substantially limiting;

• when and how to consider "condition, manner, or duration;" and

• the scope of the "transitory and minor" defense to "regarded as" coverage, indicating key examples.

Registrants that take this program will receive strategic guidance from our panelists, compliance advice for their clients, and the ability to pose questions to the faculty live.

The webinar begins at 1 PM Eastern time, and you can click the program page for more information and to register.

MM

Hamline Symposium on Disability Law

Hamline Law Review is hosting Friday a symposium on Disability Discrimination in the New Millenium: Triumphs and Setbacks in Education and Employment.  Here's a copy of the symposium schedule.  I'm very much looking forward to it -- among other things, it'll give me a chance to reconnect with Robert Bird (Connecticut) and David Larson (Hamline), and to escape Northern Kentucky into the warm climes of St. Paul!

rb

EEOC Issues Final ADAAA Regs

The EEOC has just released the final regulations to the ADA Amendments Act.  The EEOC conveniently has collected at one site the ADAAA, the new regs, a Q&A on the ADAAA, and a fact sheet on the new regs.

rb

Weber on The Common Law of Disability Discrimination

Congratulations to Mark Weber (DePaul), becoming quite the writing machine, for publication of his new piece in the Utah Law Review: The Common Law of Disability Discrimination.

Here is the abstract:
  
In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination.

On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked. Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases.

Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.

I had the pleasure of reading this article in its earlier form and it is a must read for anyone interested in finding additional rights in the law for those with disabilities, both within and outside of the workplace. Mark writes beuatifully and he explains the concepts so well and effortlessly.

Check it out!

PS

National Federation of the Blind Jacobus tenBroek Disability Law Sympsosium

Thanks to Mark Weber (DePaul) for bringing to my attention an interesting upcoming Symposium.  The National Federation of the Blind has just announced its 2011 Jacobus tenBroek Disability Law Symposium, which takes place April 14-15. 

Lou Ann Blake at NFB is the contact person. The relevant link is: http://www.nfb.org/nfb/Law_Symposium.asp.

Mark comments that this is a truly useful conference for anyone involved in legal issues that pertain to disability.  More importantly, my good friend, Michael Waterstone (Loyola-LA), among others, will be speaking!

PS

Hamline Symposium on Disability Discrimination

Hamline Law Review will host its 2011 Symposium on disability discrimination and the changes in the law since the implementation of the Americans with Disabilities Act Amendments Act.  The Symposium will be held April 1, 2011, and the proceedngs will be published in 34(3) Hamline Law Review.  For more information, contact Symposium Editor Kathryn A. Fodness.

rb

Porter on Reasonable Accommodation

Nicole Porter (Toledo) has just posted on SSRN her book reveiew (forthcoming 20 Cornell J. L. & Pub. Pol. 2011) Relieving (Most of) the Tension: A Review Essay of Samuel R. Bagenstos, Law & the Contradictions of the Disability Rights Movement.  Here's the abstract: 

In this Review Essay, I reveal the considerable contribution made by Professor Samuel Bagenstos in his book, Law & the Contradictions of the Disability Rights Movement, where he acknowledges and tackles most of the contradictions and tensions within the disability law field. Instead of repeating familiar arguments about a backlash against the Americans with Disabilities Act (ADA), Bagenstos recognizes and explains that much of the lack of success of the ADA can be attributed to tensions in the goals and projects of the disability rights movement. He makes a very convincing argument that the anti-discrimination and accommodation model of the ADA, while worthwhile and therefore worth preserving and reinforcing, has limitations that cannot be overcome simply by amending the ADA. Instead, Bagenstos argues that we need to explore social welfare interventions and we need to tailor them in such a way as to avoid “unnecessary paternalism and dependence.”

While Bagenstos does an admirable job exploring and suggesting solutions to most of the tensions in the disability law area, the one that he does not explore is a conflict that I believe will be pivotal as courts begin deciding cases after the ADA Amendments Act of 2008. Because the Amendments have made it easier for individuals to pass the threshold issue of coverage, more courts will be forced to analyze the underdeveloped reasonable accommodation provision in the ADA. Many of these cases will involve the tension that arises when the accommodation needed by an individual with a disability conflicts with the rights or interests of other employees in the workplace. This Review will discuss this conflict, exploring a resolution that draws support from the lessons learned in Bagenstos’s book, while infusing the discussion with a communitarian influence.

rb

Recently Published Scholarship: NKLR on the ADAAA

Northern Kentucky Law Review
Volume 37 No. 4 (2010)
ADA Amendments Issue

Articles

• Paul Harpur & Richard Bales, The Positive Impact of the Convention on the Rights of Persons with Disabilities:  A Case Study on the South Pacific and Lessons From the U.S. Experience, p. 363.
• Kathryn M. Smith & Richard Bales, Education for Americans with Disabilities:  Reconciling IDEA with the 2008 ADA Amendments, p. 389

Notes

• Robert Adair, Monkeys and Ferrets...Oh My!  Non-Traditional Service Animals Under the ADA, p. 415.
• Danielle J. Ravencraft, Why the 'New ADA' Requires an Individualized Inquiry as to What Qualifies as a 'Major Life Activity', p. 441.
• MyLinda K. Sims, When Pigs Fly:  Does the ADA Cover Individuals with Communicable Diseases such as Novel H1N1 Influenza, 'Swine Flu'? p. 463.

rb

New ADA Regulations for Titles II and III

Many thanks to Richard Diaz (Blank Rome in Philly) for alerting us that the official text of the new ADA regulations (to Titles II and III) was published in today's Federal Register.  I haven't yet had a chance to review the new regs, but here they are.  We're still waiting on the regs to Title I.

rb

Ninth Circuit Reverses Summary Judgment in Reasonable Accommodations Case

As anyone who has read more than one or two ADA cases knows, the vast majority of litigation has focused on whether a person is a qualified individual with a disability--and more specifically, whether a major life activity is substantially impaired under the meaning of the statute. That is one reason for the ADA Amendments Act, loosening the definitions the courts had imposed on the ADA. In fact, there are still an awful lot of cases involving conduct engaged in before the amendments went into effect, so we're still in that world to some extent.  

Which is why it's refreshing to see a case that focuses on a different portion of the statute--the duty of reasonable accommodation. In EEOC v. UPS, the Ninth Circuit had to consider when an accommodation that an employer actually provided would be considered reasonable enough that it need not do more. And because reasonableness is usually a question of whether the employer has to provide something that is costly or difficult for the employer, this case is better framed as when a purported accommodation is actually an accommodation.

The employee in this case could not hear and had been born that way. His first and primary language was American Sign Language, which is not co-extensive with English. There are signs we have no English words for and words there are no signs for. As a result of this being his second language and a fundamentally different manner of communicating, the employee had limited capacity to read and write in English; he read and wrote at about a 4th grade level. There was no question that he could perform most of the duties of his job. The dispute arose about things connected to work outside of those primary duties: mandatory weekly and monthly meetings; training; and understanding policies and potential disciplinary actions.

The employee had requested an ASL interpreter to translate all of these thing, but UPS provided one only some of the time. Other times it relied on written communications that were either incomplete, not contemporaneous with the speaking, or written at a level above the employee's competency. When the employee stated that he didn't understand something in writing, UPS generally told him to look it up in a dictionary. When that didn't help, UPS provided nothing further. The Ninth Circuit found that at the very least there were contested facts about whether the attempted accommodations actually accommodated the employee and whether UPS even tried to explore accommodations in good faith. So the court reversed the district court's grant of summary judgment for UPS.

In the court's words, 

In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

Interestingly, UPS does not appear to have provided any reason for not employing an ASL interpreter--not even the obvious, that it was too expensive. It's possible that the company will raise that at trial on remand, but it would likely be better off settling this one.

MM