Befort Empirically Analyzes Case Outcomes Under the ADAAA

New on SSRN: Stephen F. Befort, An Empirical Analysis of Case Outcomes Under the ADA Amendments Act, 70 Wash. & Lee L. Rev. ___ (forthcoming).  The abstract:

Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines all reported federal court summary judgment decisions arising under Title I of the ADA for a forty-month period extending from January 1, 2010 to April 30, 2013. The study coded the pre-ADAAA and post-ADAAA decisions for both disability standing determinations and for rulings on whether the plaintiff was qualified for the job in question. These preliminary data show that the federal courts are granting employers a significantly smaller proportion of summary judgment rulings under the ADAAA on the basis of a lack of disability status. In addition, the ADAAA decisions exhibit a greater prevalence of rulings on the issue of whether the plaintiff is a qualified individual. On the other hand, the post-amendment decisions show an increased tendency for the courts to find that the plaintiff is not qualified. While the rate of increase in plaintiff victories on the disability issue is outpacing the rate of increase in plaintiff losses on the qualified issue, the latter phenomenon suggest a continuing judicial unease with disability discrimination claims generally and with reasonable accommodation requests more specifically.

Stein, Silvers, Areheart, and Francis on Accommodating Every Body

The all-star crew of Michael Stein, Anita Silvers, Brad Areheart, and Leslie Francis has this new piece forthcoming in the University of Chicago Law Review entitled Accommodating Every Body.  Check out the abstract:

This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes “accommodating every body” by extending an Americans with Disabilities Act reasonable accommodation mandate to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because everyone hopes to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.

I make a similar argument at points in my book (check the link on the right), so I'm obviously sympathetic to the argument.  Check it out!

New Wellness Regulations

See this story in the New York Times, which begins:

The Obama administration issued a final rule on Wednesday that gives employers greater leeway to use employee wellness programs, with financial rewards and penalties for workers worth up to 50 percent of the premium as an incentive to exercise, quit smoking, lose weight, eat more healthful food and lower cholesterol and blood pressure. 

Tens of millions of workers could be affected. More than 90 percent of employers with 200 or more employees have programs to promote healthful behavior or prevent disease, the Labor Department says. 

The rule allows employers to reward or penalize employees who meet specific standards related to their health. Such “outcome-based wellness programs” could, for example, reward employees who do not use tobacco or who achieve a specific cholesterol level, weight or body mass index. 

However, an employer-sponsored health plan must provide “a reasonable alternative standard” so that employees can qualify for rewards if they fail to meet the initial standard.

I'll have some analysis of the rule in the next week or so.

Eleventh Circuit Rules on Medical Examinations for Current Employees

Yesterday, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Owusu-Ansah v. Coca-Cola Company.  At the time at issue in the case, Owusu-Ansah worked for Coca-Cola as a quality assurance person for customer service representatives in the company's call center ("your call is being monitored for quality assurance").  In this position, he worked mostly from home.  In December 2007, however, he went to the office for a routine management meeting with his supervisor. At the meeting, according to the record as reviewed by the court, Owusu-Ansah complained about a number of instances of national origin discrimination and harassment he said he had experienced at the hands of his supervisors and coworkers.  His supervisor "observed that Mr. Owusu-Ansah became agitated during the meeting, banged his hand on the table where they sat, and said that someone was 'going to pay for this.'"  

Concerned about that behavior (Owusu-Ansah's, not the behavior of those who allegedly discriminated against Owusu-Ansah), company management asked him to be interviewed by a consulting psychologist.  After the interview, the company placed Owusu-Ansah on paid leave to enable him to be further evaluated as a potential safety threat.  The company directed Owusu-Ansah to undergo a psychiatric evaluation, which included taking the Minnesota Multiphasic Personality Inventory (MMPI).  He first refused to take the MMPI, but eventually took the test in March 2008.  After reviewing the results of the test, Coca-Cola allowed Owusu-Ansah to return to work in April.

Owusu-Ansah sued under the ADA, which prohibits employers from requiring current workers to undergo medical examinations or inquiries "unless such examination or inquiry is shown to be job-related and consistent with business necessity."  42 U.S.C. 12112(d)(4)(A).  The district court granted summary judgment to the company, and the Eleventh Circuit yesterday affirmed.

The court of appeals held that the psychological evaluation, including the requirement that Owusu-Ansah take the MMPI, was "job-related and consistent with business necessity" (I've omitted citations and footnotes):

The evaluation was "job-related" because an "employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position." [Quoting an earlier Eleventh Circuit case] Ms. Cabral reported that Mr. Owusu-Ansah – in the course of complaining about discrimination and harassment – banged his fist on the table and said in a raised voice that someone was "going to pay for this." When he was deposed, Mr. Owusu-Ansah denied having behaved that way during his meeting with Ms. Cabral, and he now points out that there were no prior incidents showing that he had a propensity for workplace violence. That, however, is not dispositive. Although Coca-Cola apparently never asked Mr. Owusu-Ansah for his version of what happened at the meeting, it did not rely solely on Ms. Cabral's account in ordering the evaluation. Coca-Cola knew that Mr. Owusu-Ansah had refused to speak to Ms. Welsh and Dr. Riddell about his workplace problems. In addition, Dr. McElhaney – the consulting psychologist – expressed "significant concerns" to Coca-Cola about Mr. Owusu-Ansah's emotional and psychological stability, and recommended a psychiatric/psychological fitness-for-duty evaluation.

On this record, we conclude that Coca-Cola had a reasonable, objective concern about Mr. Owusu-Ansah's mental state, which affected job performance and potentially threatened the safety of its other employees. Though Mr. Owusu- Ansah worked from home, he had access to and was required to attend meetings at the Dunwoody call center.

For basically the same reasons, the evaluation was also "consistent with business necessity." Though it may not be one of the traditional canons of statutory construction, common sense is not irrelevant in construing statutes,4 and in our view an employer can lawfully require a psychiatric/psychological fitness- for-duty evaluation under § 12112(d)(4)(A) if it has information suggesting that an employee is unstable and may pose a danger to others.

This case doesn't look to have been the best litigated by plaintiffs' counsel (who apparently failed to object to the factual aspects of the magistrate judge's recommended ruling in the district court), but the opinion is nonetheless troubling in the low bar it sets for a psychological evaluation.  How many folks have raised their voices and banged on the table when complaining about workplace mistreatment without being a safety risk?  I would bet it's a lot.

Hoffman on Sheltered Workshops

Just out: Laura C. Hoffman, An Employment Opportunity or a Discrimination Dilemma? Sheltered Workshops and the Employment of the Disabled, 16 U. Pa. J. L. & Soc. Change 151 (2013).  From the introduction:

In January 2011, a U.S. disability rights organization, National Disability Rights Network (NDRN), published a report that criticizes the use of certain employment practices involving people with disabilities. Within the report, NDRN argues that the continued use of these practices amounts to the systemic discrimination of the disabled in employment, rather than to the assured provision of civil rights protections for the disabled. One of these practices is the use of sheltered workshops, which are “facility-based day programs attended by adults with disabilities as an alternative to working in the open labor market.” By providing relatively simple work activities and customized educational programs, these workshops may be designed to assist the disabled with finding long-term employment or transitioning into the open labor market. However, according to the Executive Director of NDRN, “[s]heltered workshops are not what they promise to be, and sometimes serve as an unsettling example of how good intentions can lead to terrible outcomes.” This report was only the beginning for NDRN on this issue; the organization released another report in April 2012 containing even more criticism for the use of sheltered workshops as an employment option for people with disabilities, bringing even greater attention to this issue both within the disability community and across the United States.  

The U.S. also has a number of federal laws designed to ensure equal opportunity in employment for people with disabilities. Most notably, Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against the disabled in all aspects of employment for covered entities. Despite these protections, many of the employment practices implemented for the benefit of the disabled do not actually result in additional equal employment opportunities. Recent statistics released by the Bureau of Labor Statistics (BLS) at the U.S. Department of Labor paint a dismal picture for the overall employment prospects of people with disabilities. According to the BLS report, “[i]n 2011, 17.8 percent of persons with a disability were employed . . . . [i]n contrast, the employment-population ratio for persons without a disability was 63.6 percent.” Moreover, the disabled population continued to show greater joblessness than the non-disabled population through June 2012, according to statistics compiled on a monthly basis for U.S. employment overall.  

Given these troubling statistics, it is necessary to ask whether sheltered workshops are a relevant and successful means of encouraging the employment for the disabled today. Do sheltered workshops represent an antiquated view of people with disabilities and continue what was thought to be an outdated mentality concerning those with disabilities and their ability to participate in society, especially in terms of employment? Or, do sheltered workshops provide something of value and worth to the disabled, by at least providing the opportunity for employment? This Article reexamines the use of sheltered workshops for the employment of the disabled and what this use means for the current legal protections in employment available to individuals with disabilities.

Jury Awards $240 Million in Henry's Turkey Case

Wow.  See this article, hot off the internets, from the Des Moines Register:

In a decision that legal experts are calling "stunning," an Iowa jury this morning awarded $240 million to the 32 mentally disabled men who faced decades of discrimination and abuse while working for Henry's Turkey Service in Atalissa. 

When jurors announced the judgment, after less than eight hours of deliberation, Sherri Brown, the sister of one of the 32 men, broke down in tears inside the Davenport courtroom. 

"I totally lost it," she said later. "I wanted the jury to make a statement so that my brother Keith and all of those men would know that someone had heard them. And if this isn't a statement, I don't know what is." 

The $240 million judgment reflects $2 million in punitive damages for each of the 32 men, plus $5.5 million in compensatory damages for each of the men.

Fast Food Franchisee Pays $100K to Settle EEOC Disability Discrimination Suit

See this press release, which begins:

Alia Corporation, a franchisee with over 20 fast-food chain restaurants throughout Central California, agreed to pay $100,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. 

The EEOC originally filed suit against the Merced, Calif.-based company in 2011 on behalf of Derrick Morgan, a former floor supervisor with an intellectual disability (EEOC v. Alia Corporation, Case No. 1:11-cv-01549-LJO-BAM, U.S. District Court, Eastern District of California). Morgan was known to be a good employee and promoted by previous management from crew member to super­visor in 2008. The EEOC contends that once Alia took over, Alia management demoted Morgan to a janitorial position, cut his hours and reduced his hourly wages, thereby forcing him to find other employment and resign by June 2009. The EEOC's lawsuit argued that Alia Corporation thus engaged in disability discrimination that violated the Americans with Disabilities Act (ADA). 

As part of the settlement announced today, the parties entered into a three-year consent decree requiring Alia to hire an equal employment opportunity (EEO) monitor to create anti-discrimination policies and procedures; a complaint process and impartial investigations; a centralized tracking system for discrimination complaints; a system to hold employees accountable for discrimination; and, annual live disability discrimination training for all management and human resources employees. The $100,000 in monetary relief shall be paid entirely to Morgan. The EEOC will monitor compliance with the agreement.

EEOC Sues Florida Hospital for Discriminating Against Doctor with Epilepsy

See this press release, which begins:

Baptist Health South Florida, a Miami-based hospital system, violated federal law when it refused a reasonable scheduling request from a newly hired physician with epilepsy at its Doctor's Hospital location in Coral Gables, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. 

According to the EEOC's suit, a new hire, Dr. Lianette Campos-Sackley, applied for a position at Doctor's Hospital's Gamma Knife Center as a general medical practitioner under the direction of Dr. Aizik Wolf. During her initial interview with Dr. Wolf, Dr. Campos-Sackley notified him that she had epilepsy, which required her to not exceed an eight-hour work day. Dr. Wolf agreed to Dr. Campos-Sackley's scheduling request and, after she interviewed with other members of the Doctor's Hospital staff, she was ultimately hired.

However, as soon as she began working, Dr. Wolf altered the pre-determined schedule and demanded that Dr. Campos-Sackley work additional hours, which caused her health to rapidly deteriorate. Dr. Campos-Sackley consulted with hospital management and renewed her request for a reasonable accommodation in the form of a modified work schedule, but the request was denied. Within a few days, Dr. Campos-Sackley was terminated.

AP Report on the Henry's Turkey Trial

See this story, which begins:

A Texas company profited from dozens of mentally disabled men working at a turkey processing plant in rural Iowa where they were physically and verbally abused and forced to live in filthy, rodent-infested conditions, a government attorney told jurors on Tuesday. 

Employees of Henry’s Turkey Service engaged in “shocking and disturbing employment actions” that violated not only the Americans with Disabilities Act, but a code of basic human decency, said Equal Employment Opportunity Commission attorney Robert Canino. 

He said the company should compensate 32 former employees who were mistreated while Henry’s supplied them as contract workers to West Liberty Foods in West Liberty, Iowa.

Blind Government Attorney Sues Department of Homeland Security for Inaccessible Technology

Last week, the ace disability rights law firm of Brown, Goldstein & Levy filed this lawsuit in the United States District Court for the District of Columbia.  The plaintiff is Michael Leiterman, an attorney who has worked at the Department of Homeland Security since 2006.  The complaint alleges that Leiterman, who is blind and uses JAWS as a screen reader, has faced numerous barriers at work, including an inaccessible travel-booking system, inaccessible software, inaccessible intranet pages, an inaccessible telephone, inaccessible telecommuting technology, and inaccessible training modules.  As a consequence, Leiterman alleges, he was denied a promotion.  He claims that DHS's conduct in this regard violates his rights under Sections 501 and 508 of the Rehabilitation Act.  The Section 508 claim should be particularly interesting to watch.

Anderson on Causation and Reasonable Accommodation After Gross

Just out: Cheryl L. Anderson, Unification of Standards in Discrimination Law: The Conundrum of Causation and Reasonable Accommodation Under the ADA, 82 Miss. L.J. 67 (2013).  From the introduction:

In the post-Gross regime, causation could similarly creep into another aspect of reasonable accommodation analysis--as a requirement that plaintiffs show their disability is a but-for cause of their need for the accommodation. There is case law rejecting ADA Title I employment claims because the plaintiffs could not show they needed the requested accommodations in order to do their job. The but-for test could take it a step further and require plaintiffs to show their disability is the but-for reason the accommodation itself is necessary. Although not directly the issue decided in Gross, such a rule may be a fairly simple extension of Gross's understanding of the default rules of causation. At least in the Seventh Circuit, a similar but-for standard has already crept into ADA Title II analysis. The Seventh Circuit requires Title II plaintiffs establish that their need for accommodation is based on something that is not a characteristic shared with the general public. The leap from Title II to Title I for applying such a standard may not be too large. 

Why might courts make this leap? As has been extensively discussed in the literature, reasonable accommodation law has an uneasy fit into our understanding of discrimination law. Reasonable accommodation claims do not require proof of intent to discriminate. They also do not require proof of an adverse effect on an entire group of individuals.  Courts have shown themselves uneasy about interpreting the law in a way that appears to give preference to a particular individual. This unease has been especially apparent in circumstances when an employee with a disability seeks reassignment to a vacant position as a reasonable accommodation and the employer asserts another employee is entitled to or more qualified for that position. Focusing on causation may mitigate that unease, because it seems to distinguish between those whose disadvantage is related to their disability and those who will receive an unfair advantage over others. 

In general, the Gross but-for standard eases courts' concerns about discrimination claims because it requires plaintiffs to carry the burden of proof throughout the process of proving discrimination. That stands in contrast to the statutory provisions setting out the ADA's reasonable accommodation mandate, which requires plaintiffs establish only that an accommodation is reasonable and then shifts the burden to employers to prove the accommodation poses an undue hardship on the business. It has been suggested that Gross is the product of a Court majority hostile to imposing burdens on the employer, perhaps out of fear that doing so will make it too easy for undeserving plaintiffs to prevail. Thus, Gross insists that the risk of sorting out whether discrimination was in fact the reason for an action rests firmly with the plaintiff. The Court could apply a similar construct to accommodation claims and do an end run around the undue hardship burden-shift: The plaintiff could be required to show that what she seeks is indeed related to her disability in a way that distinguishes her limitations from the barriers faced by the general public. Otherwise, much as the “motivating factor” standard in a mixed-motive claim is (arguably) overbroad in finding discrimination when legitimate factors predominate, the reasonable accommodation standard would be (arguably) overbroad in providing accommodations to individuals not actually burdened by their disability but by the same burdens everyone else faces. As this Article will demonstrate, however, that reasoning misconstrues the reasonable accommodation mandate.

US DOJ Moves to Intervene in Olmstead Challenge to Oregon's Reliance on Sheltered Workshops

I have blogged before about Lane v. Kitzhaber, the pending case in which plaintiffs allege that Oregon's reliance on sheltered workshops, at the expense of integrated employment services, for people with various disabilities violates the ADA's integration mandate as interpreted in the Supreme Court's Olmstead decision.  Late last week, the U.S. Department of Justice moved to intervene as a plaintiff in the case.  This development is hardly a shock.  Last summer, DOJ issued a letter to the state, which informed the state of DOJ's finding that Oregon's reliance on sheltered workshops violated Olmstead.  But subsequent settlement negotiations did not lead to a satisfactory resolution, so the Department chose to intervene.

EEOC Sues Toys "R" Us for Discriminating Against Deaf Applicant

See this press release, which begins:

Toys "R" Us, Inc., one of the world's largest retailers of toys and juvenile products, violated federal law when it first refused to provide an interpreter for a deaf applicant and then failed to hire her, the U.S Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

The EEOC charged that Shakirra Thomas, who is deaf, applied for a team member position at the retailer's Columbia, Md., store in October 2011. Thomas communicates by using American Sign Language, reading lips and through written word. When the company contacted Thomas to attend a group interview, Thomas' mother advised that Thomas was deaf and requested the company to provide an interpreter for the interview. The retailer refused and said that if Thomas wished to attend a group interview in November 2011, then she would have to provide her own interpreter, the EEOC alleges.

Thomas's mother interpreted for her during a group interview, but the company refused to hire Thomas despite her qualifications for and ability to perform the team member position, with or without a reasonable accommodation, the EEOC said in its lawsuit.

Nice to see EEOC bringing failure-to-hire suits!

AP on Disability and Employment

See this story, which begins:

Whether it means opening school track meets to a deaf child or developing a new lunch menu with safe alternatives for students with food allergies, recent Obama administration decisions could significantly affect Americans with disabilities. But there’s been little progress in one of the most stubborn challenges: employing the disabled. 

According to government labor data, of the 29 million working-age Americans with a disability — those who are 16 years and older — 5.2 million are employed. That’s 18 percent of the disabled population and is down from 20 percent four years ago. The employment rate for people without a disability was 63 percent in February.

The job numbers for the disabled haven’t budged much since the passage of the Americans with Disabilities Act of 1990, which gave millions of disabled people civil rights protections and guaranteed equal opportunity in employment, public accommodations, transportation, government services and more.

In These Times on the Subminimum Wage

See this interesting article, which begins:

In his State of the Union address earlier this year, President Barack Obama called for increasing the minimum wage from $7.25 an hour to $9 an hour. On Tuesday, Congressional Democrats did him one better, unveiling a plan to raise the minimum wage to $10.10 an hour, as well as raise the subminimum wage for tipped workers from $2.13 an hour to 70 percent of the minimum wage. 

Their proposal, however, would not cover the 420,000 Americans with disabilities who are currently paid a subminimum wage of as little as a few cents per hour in some state-sponsored "sheltered workshops," such as Goodwill. These programs, licensed under provision 14c of the Fair Labor Standards Act of 1938, are intended to be for training, but many workers wind up as perpetual “trainees,” employed in sheltered workshops for years earning subminimium wage rates; thus becoming stuck in a cycle of poverty. While advocates have repeatedly tried to address this issue divides within both the Democratic Party and the disability community have so far prevented these laws from being sensibly revised.

Travis on Impairment Discrimination

Up on SSRN: Michelle A. Travis, The Part and Parcel of Impairment Discrimination, __ Emp. Rts. & Emp. Pol'y J. ___ (forthcoming).  The abstract:

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."

Second Circuit Holds Timely Arrival at Work Not Necessarily an Essential Job Function

Earlier this week, the United States Court of Appeals for the Second Circuit issued an opinion in McMillan v. City of New York, --- F.3d ----, 2013 WL 779742 (2d Cir., Mar. 4, 2013).  Early in the opinion, Judge Walker summarizes the major take-away from the case:

It is undisputed that Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day. In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff's inability to arrive on time would result in his failure to establish a fundamental element of aprima facie case of employment discrimination. But if we draw all reasonable inferences in McMillan's favor—as we must at summary judgment—it is not evident that a timely arrival at work is an essential function of McMillan's job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job.

McMillan, who works for the city, has schizophrenia, which he manages with medication.  But the medication unfortunately can make him extremely drowsy in the mornings.  "As a result, he often arrives late to work, sometimes after 11:00 a.m. The City makes no allegations that McMillan malingers; instead, it is undisputed that his inability to arrive at work by a specific time is the result of the treatment for his disability."  For at least ten years, the city explicitly or implicitly approved McMillan's late arrivals, provided he made up his hours at the end of the day.  But in 2008, the city shifted course and stopped approving them.  At that point, McMillan made a number of requests for the city to approve his late arrivals once more, but his supervisors refused.  

McMillan sued under, among other statutes, the ADA.  Judge Rakoff of the United States District Court for the Southern District of New York granted summary judgment to the city.  Judge Rakoff deferred to the city's determination that arrival at work within a one-hour time frame was an essential function of McMillan's job.  He thus concluded that McMillan's requested accommodation (to arrive as late as 11, while making up the hours later) was unreasonable.

The Second Circuit reversed.  Here is the nub of its analysis:

The district court appears to have relied heavily on its assumption that physical presence is “an essential requirement of virtually all employment” and on the City's representation that arriving at a consistent time was an essential function of McMillan's position. While the district court's conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m.—or at any consistent time—may not have been an essential requirement of McMillan's particular job. For many years prior to 2008, McMillan's late arrivals were explicitly or implicitly approved. Similarly, the fact that the City's flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan's favor, along with his long work history, whether McMillan's late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute. 

This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here.

Paul Mollica has commentary on the case here.

Widiss on the Pregnancy Discrimination Act and the ADA

New on SSRN:  Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act (U.C. Davis L. Rev., forthcoming).  The abstract:

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work. 

This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by some courts interpreting the PDA risks relegating pregnancy once again to the basement.

Widiss is a really terrific young employment discrimination scholar, and the issue addressed in this very nice paper is exceptionally important.  Very much worth a read.

Porter on Accommodating Caregiving

Just up on SSRN: Nicole B. Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities.  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.

Sixth Circuit Issues Strong Opinion on Accommodation of Deaf Lifeguard

Yesterday, the United States Court of Appeals for the Sixth Circuit issued an opinion in Keith v. County of Oakland, ___ F.3d ___, 2013 WL 115647 (6th Cir., Jan. 10, 2013).  Keith, the plaintiff, applied to work as a lifeguard at a wave pool operated by Oakland County, Michigan (an excellent wave pool, by the way -- my kids and I enjoy it very much!).  Keith has been deaf since birth.  Although he can detect noises through a cochlear implant, he principally communicates by using American Sign Language.  Keith completed lifeguard training (using an ASL interpreter to relay verbal instructions to him, but not to assist him with lifesaving tasks) and was certified as a lifeguard.  He applied for a lifeguard position at the wave pool.  The County extended him an offer of employment conditioned on passing a medical examination.  The examining doctor approved Keith for employment, but only "if his deafness was 'constantly accommodated.'"  

The County's recreation specialist, Katherine Stavale, contacted a risk management consultant, Wayne Crokus, to discuss whether Keith's deafness could be safely accommodated.  The court's opinion describes what happened next:

After these discussions, Stavale prepared a six-page outline setting forth the accommodations that she believed could successfully integrate Keith, and she sent it to Crokus for feedback. Stavale explained:

1. Keith will carry laminated note cards in the pocket of his swim trunks to communicate with guests in non-emergency situations.
2. Keith does not need to hear to recognize and rescue a distressed swimmer; experience reveals that distressed swimmers do not cry out for help.
3. Keith will use his whistle and shake his head “no” to enforce pool rules.
4. Keith will briefly look at other lifeguards on duty when scanning his zone to see if they enter the pool for a save.
5. Because Keith cannot use the megaphone or radio, another lifeguard will have this responsibility when Keith is working.
6. Keith will not work the slide rotation, which should not be a problem because this is one of the favorite rotations and many lifeguards like to work more than one slide rotation.
7. The Emergency Action Plan (“EAP”) will be modified, regardless of whether Keith is scheduled. To initiate the EAP, lifeguards will be required to signal with a fist in the air, opening and closing it like a siren. This will accommodate Keith and improve the effectiveness of the EAP for the entire team.

Crokus questioned Stavale on several of these accommodations and remained concerned about Keith’s ability to function effectively as a lifeguard. He stated, “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Ultimately, Stavale and her supervisors decided to revoke the offer of employment.

Keith sued under the ADA and the Rehabilitation Act.  Although Keith offered an impressive array of expert evidence tending to demonstrate that his deafness would not impair his ability to perform the duties of a lifeguard, the district court granted the County's motion for summary judgment.

The Sixth Circuit reversed.  The appellate court first concluded that neither the County's doctor nor its risk consultant made an individualized inquiry into the nature of Keith's particular limitations and the possibility of accommodation.  It therefore questioned the district court's conclusion that the County had itself made a sufficiently individualized inquiry:  "Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider these questions on remand."

Next, in the most significant part of its opinion, the court of appeals concluded that Keith had presented sufficient evidence to create a triable issue regarding whether he could perform the essential functions of the lifeguard position.  I'll quote it extensively to show what a good job the plaintiff's lawyer did here:

With regard to supervising water activities and lifesaving, Keith has presented evidence from which a jury could reasonably find that he can communicate effectively despite his deafness. Like other lifeguards, Keith can adhere to the “10/20 standard of zone protection,” a scanning technique taught to lifeguards in which they must scan their entire zone every ten seconds and be able to reach any part of their zone within twenty seconds. This method is purely visual. Further, by passing Oakland County’s lifeguard training program and earning his lifeguard certification, Keith demonstrated his ability to detect distressed swimmers, which several experts testified is almost completely visually based.

In addition to communicating with distressed swimmers, there is evidence that Keith can effectively communicate with other lifeguards during lifesaving. Because he cannot hear another lifeguard’s whistle blow before going in for a save, as a modest modification, he could briefly look at the other lifeguards when scanning his zone.

Likewise, Keith has presented evidence that he can enforce safety rules. Verbal enforcement is usually impractical in a noisy water park, and most lifeguards rely on their whistle and various physical gestures, including shaking their head “no” for patrons to stop engaging in horseplay, motioning their hand backward for a patron to get behind the red line, and signaling the number one with their finger for “one person per tube.” Keith can use these same methods of enforcement.

Keith has also presented evidence that he can communicate effectively during emergencies with a modification to the EAP. To activate the EAP, lifeguards would signal with a fist in the air, opening and closing their fist in repetition. According to Stavale, this would improve the EAP for everyone, not just Keith. It would allow other lifeguards and staff to see the EAP visually if they are not in a position to hear it. Once activated, other lifeguards who are required to maintain their position would put their fist in the air and make the same signal.

Further, Keith has presented evidence that he can respond to patrons who approach him, at least at a level that may be considered essential for a lifeguard. He would carry a few laminated note cards in the pocket of his swim trunks with basic phrases such as, “I am deaf. I will get someone to assist you. Wait here.” He can also provide first aid in situations in which he can see the ailment requiring attention. Although there may be situations in which verbal communication is necessary, attendants are posted throughout the water park to assist patrons with basic needs and inquiries, suggesting that this is not an essential function of lifeguards, or at least reasonable minds could differ on this point. In addition, staff members are required to respond whenever a whistle is blown to signal a save.

Perhaps the most compelling evidence that Keith is “otherwise qualified” comes from his experts who have knowledge, education, and experience regarding the ability of deaf individuals to serve as lifeguards. They all opine that the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard. The world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career. One also cannot ignore that the American Red Cross certifies deaf lifeguards, and Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals, has a lifeguard certification program.

Finally, the court of appeals concluded that Keith had presented sufficient evidence that a reasonable accommodation was possible, and it directed the district court to consider on remand whether the County had properly engaged in an interactive process with him.

It's not easy to win a case on behalf of a plaintiff with a disability seeking a public safety job.  This is a very significant victory for a deaf plaintiff against what seems to have been a reflexive and stereotype-infused exclusion.