This is a firm and fast definition of what a disability is with regard to the work place, but the extent to which this definition is being utilized is still evolving.CD
TMMore on ADA Amendments Act:the concepts of “major life activities” and “substantially limits” are not relevant in evaluating a claim under the “regarded as” prong. Practically speaking, an employee suing under this prong need only show that that his/her employer regarded him/her as having a disability, and that the employer discriminated against the employee because of that perception.Although not going so far as to create a per se list of covered impairments, the new regulations significantly limit individualized assessments of an employee’s impairment and potentially increase employers’ exposure to liability.New regulations provide an expanded and non-exhaustive list of what constitutes a “major life activity” under the ADA. To illustrate, lifting is considered a major life activity by the new regulations, regardless of whether lifting is a central part of daily life to the individual claiming to be limited in lifting, or, indeed, to most people’s daily lives.
TMOn September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.This is important from a legal viewpoint, this gives greater definition to who is covered, and which disabilities are covered….however this has opened up the door to allowing the EEOC greater interpretational leeway.The only negative point is that the courts fail to take into account various mitigating circumstances involved in the disability, relying solely on their viewpoint.
CD To replace the Vocational REHABILITATION ACT, to extend and revise the authorization of grants to States for vocational REHABILITATION services, with special emphasis on services to those with the most severe handicaps, to expand special Federal responsibilities and research and training programs with respect to handicapped individuals, to establish special responsibilities in the Secretary of Health, Education, and Welfare for coordination of all programs with respect to handicapped individuals within the Department of Health, Education, and Welfare, and for other federal purposes. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act
CD Applies to England, and most English coloniesThis is the British version of the Civil Rights Act, and the Disability Discrimination Act appears to be their version of the ADA. The Labour Party included a commitment to an Equality Bill in its 2005 election manifesto. The Discrimination Law Review was established in 2005 to develop the legislation and was led by the Government Equalities Office. The review considered the findings of the Equalities Review Panel, chaired by Trevor Phillips, which reported in February 2007. The Act is intended to simplify the law by bringing together existing anti-discrimination legislation. The Equality Act 2010 has replaced the Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006.The Act extends until 2030 the exemption from sex discrimination law allowing political parties to select all women or all men candidate short-lists. The existing exemption until 2015 was created by the Sex Discrimination (Election Candidates) Act 2002.The Parliamentary process was completed following a debate, shortly after 11pm on 6 April 2010, when amendments by the House of Lords were accepted in full
TM An employer never has to provide any reasonable accommodation that causes undue hardship, meaning significant difficulty or expense. Undue hardship refers not only to financial difficulty, but also to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business.
TM An employer never has to provide any reasonable accommodation that causes undue hardship, meaning significant difficulty or expense. Undue hardship refers not only to financial difficulty, but also to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business.
CD Legal action must be filed within 180 days of the discrimination
CD Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first attempted to settle the dispute through negotiations.the court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this Act by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability.
CD (a) In general. - It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.(b) Qualification standards. - The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.
CD Don’t enforce, but work with the disabled people and to develop policy.
CD In this case, the first ADA employment case to be tried before a jury, the Commission alleged that AIC Security discharged an employee because he was battling cancer.Charles Wessel, the executive director of AIC, was diagnosed with inoperable metastatic brain cancer, a terminal illness. Between 1987 and 1992, Wessel suffered a variety of effects from his cancer and treatment, including shortness of breath from having parts of his lungs removed, nausea from radiation and chemotherapy, and somewhat reduced memory capacity due to the effects of brain tumors. He missed work at times, but he continued his employment essentially full-time. The owner of the company, who knew that Wessel had cancer, fired him after taking over the company.Wessel filed an EEOC complaint, and the Commission sued AIC and the company owner. The jury awarded $22,000 in back pay, $50,000 in compensatory damages, $250,000 in punitive damages against AIC, and $250,000 in punitive damages against the owner. (The total punitive damage award was reduced to $150,000 in light of the ADA’s statutory cap on damages.)The Seventh Circuit upheld the judgment in all respects except for the imposition of individual liability on the company owner, and remanded for a determination of whether its decision would impact the punitive damage award. On remand, the district court declined to reduce the total punitive damage award.In U.S. Equal Employment Opportunity Commission and Wessel v. AIC Security Investigations, Ltd. and Ruth Vrdolyak, 55 F.3d 1276 (7th Cir. 1995), the Court held that although the employing entity was liable for discrimination under the ADA, the individual employer (Mrs. Vrdolyak), named as a defendant, was not. This opinion reversed the decision rendered by the lower, district court which had sided with the Equal Employment Opportunity Commission's (EEOC) argument that both parties (AIC Security and Mrs. Vrdolyak) were liable for discrimination under the ADA.By holding in favor of Mrs. Vrdolyak, the Seventh Circuit noted that, in passing the ADA, Congress obviously wished to protect small entities (i.e., companies with 15 or less employees), which was evident in the Act's limited jurisdiction to companies with 15 or more employees. Such a lower limit existed, the Court stated, because Congress wished to establish, "a balance between the goal of stamping out all discrimination and the goal of protecting small entities from the hardship of litigating discrimination claims." In light of such logic, the Court reasoned that if Congress sought to protect small employers with limited resources from liability, it certainly would have intended to protect individual employees from civil liability under the ADA.
CD First, Plaintiffs do not claim any restrictions on their activities other than their inability to obtain employment as passenger airline pilots for United. Plaintiffs do not allege that they have any medical restrictions. Plaintiffs do not allege any activity that they are unable to perform that the average person in the general population can perform, nor do they state that they suffer from any significant restrictions in any activities as compared to the average person. Indeed, they are currently employed as commercial airline pilots. Plaintiffs concede that, with their corrective lenses, they are able to function identically to individuals without a similar impairment. An individual is not substantially limited in a major life activity if the limitation,does not amount to a significant restriction when compared with the abilities of the average person.This is case where the limitation dictate the disability, true these sisters were disabled, but due to there accommodation they were not considered to be disabled. But this is not the reason why they were turned down for employment…..it was because of United Airlines BFOQ “The airline required pilots to have uncorrected vision of 20/100 or better”, this was a qualification that was due to SAFETY, and that overrides any ADA legal requirements.
TM A worker tested positive for cocaine use and was forced to resign from company for violating workplace-conduct rules. Employee applied to be rehired after 3 years and said that he was in recovery, but he was rejected. Employee felt discriminated against in violation of the ADA and filed charge with the EEOC. He said the company rejected his application because of his drug addiction record and be he was regarded as being a drug addict. But company claimed they have a policy of not rehiring employees who were terminated for violating the company’s code of conduct. The worker then said that this no-rehire policy violated the ADA and there was disparate impact on recovering drug addicts. He didn’t raise this point until after the company’s motion for summary judgment.District Court ruled that the worker did not timely raise the disparate-impact claim and granted summary judgment to the company. The Court of Appeals then said that this policy did violate the ADA as applied to employees who were forced to resign for illegal drug use but were since rehabilitated. Then the US Supreme Court ruled that this policy did not go against the ADA and that the neutral no-rehire policy satisfies the company’s obligation to provide a legitimate nondiscriminatory reason for refusing to rehire the worker. The court of appeals analyzed a disparate treatment claim as a disparate impact claim by saying that this policy went against the ADA. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, nondiscriminatory reason under the ADA Liability in a disparate-treatment case “depends on whether the protected trait … actually motivated the employer’s decision.”disparate-impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.”
CD The Commission brought this landmark disability discrimination lawsuit alleging that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. The case resulted in the largest monetary recovery in a settlement of a single ADA lawsuit in EEOC history. Under the terms of the consent decree, the EEOC provided claim forms to certain Sears employees who had been terminated under Sears’ workers’ compensation leave policy. The claimants were asked to report to the EEOC, among other things, the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work. Based on these criteria, the EEOC found that 235 individuals were eligible to share in the settlement. The average award was approximately $26,300, for a total award of approximately $6.2 million. As with all EEOC litigation, none of the settlement fund will be retained by the EEOC; all of it will be distributed to affected employees. The EEOC is a government-funded division that is in place to service the disabled community as a representative body, and is never to retain any monetary awards through trial or negotiation.Attorneys: John C. Hendrickson (Chicago), Gregory Gochanour (Chicago), Aaron DeCamp (Chicago), Ethan M. Cohen (Chicago), Deborah Hamilton (Chicago), Laurie Elkin (Chicago)
CD This case involves the definition of a “qualified individual”. “Qualified individual” with a disability is a disabled individual “who, with or without reasonable accommodation, can perform the essential functions of the employment position.”
TM This is once again a case of a “Qualified Individual”, as according to the case the individual held the proper qualifications for the position as was denied employment with reasonable accommodations.
CDThis is a case where the original ADA would have permitted the courts to rule in favor of the complainant, because under the original act he met all of the definitions of being “disabled” , which are; a physical or mental impairment that substantially limits one or more major life activities of such individual;a record of such an impairment; orbeing regarded as having such an impairment…..regulating body temperature meets those requirements. However the amendments act determined that such a condition was not substantially limiting.the Fifth Circuit refused to apply the Amendments retroactively and found that, under a pre-Amendments analysis, the complainant was not ADA-disabled. In Argo, Henry Velez suffered from a condition which precluded his ability to perspire. He claimed he was substantially limited in the major life activity of regulating body temperature. The court assumed for purposes of the decision that “regulating body temperature” was a major life activity, but held that the EEOC failed to present evidence that Velez was “substantially limited” in that activity. Accordingly, he was not disabled for ADA purposes.In reaching that conclusion, the court stated that it was required to examine the impact of mitigating measures on Velez’s life, such as drinking cold liquids, sitting in front of a fan and spraying himself with water. These mitigating measures rendered his medical condition not substantially limiting. Had the court applied the Amendments retroactively, Velez likely would have been disabled under the ADA, because the Amendments prohibit consideration of mitigating measures.
CD Verizon to Pay $20 Million to Settle Nationwide EEOC Disability SuitLargest ADA Settlement in EEOC History for Hundreds of EmployeesTerminated or Disciplined Based on Rigid Attendance Policy Telecommunications giant Verizon Communications will pay $20 million and provide significant equitable relief to resolve a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The suit, filed against 24 named subsidiaries of Verizon Communications, said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans. 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. The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.The ADA prohibits discrimination based on disability. The law also requires an employer to provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer.“This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities,”
CD Problems and Issues with Disability EEO:One of the major problems involved in Disability Equal Employment Opportunities is the fact that major corporations(and sometimes not-so-major corporations)have a hard time keeping up with and understanding the laws and regulations involved, they just don’t realize who is disabled and who isn’t, and this get’s a lot of them into trouble when it comes to dealing with the disabled community.On the other hand, the general public often has a greater misunderstanding of the legal employment definition of “disability”, this often leads to entitlement where none is warranted. An individual may be disabled, but not by the legal employment definition.Security in dealing with medical records is important when dealing with any employee, but more so with the disabled community due to the size and complexity of their files. And if there is a further development in their disability that requires further accommodation, such records must be secured and maintained(and if there do happen to eventually be legal proceedings for any kind of discrimination case, such records can prove to be a protective asset to the corporation).As with the lack of education and corporate misunderstanding, the subsequent refinements and amendments to the ADA can cause confusion on the part of many in the business world and the general public.
TM One of the most controversial issues involved with Disability Equal Employment Opportunity is the issue of the definition of “who is disabled, and who isn’t?” This is a major concern for all parties involved, the major corporate entities, the disabled community, and of course the government regulating agencies (namely the EEOC). The definition of “Disability” is a concern because with its constant official evolution implemented by the EEOC and the Federal Government (through the ADA, and the ADAAA, and various court rulings) it makes it difficult for corporations to know just who should be treated as disabled and who shouldn’t (should someone who cannot regulate his body temperature EEOC v. Argo Distribution LLC be considered disabled?). This also applies to the disabled community, how can a disabled individual understand his or her rights if there is a constantly evolving definition as to what the term “disability” means when it comes to the work environment? Officially, Mr. Velez was correct that his inability to regulate his body temperature constitutes a “disability”, but legally, in the work place he would not be considered disabled. Obviously this controversy also continues within our government, as the EEOC continues to try to accommodate more and more people who have genuine disabilities, the halls of justice must adhere to the fair and legal definitions set out, “a physical or mental impairment that substantially limits one or more major life activities of such individual”, but this definition must be tempered with logic and wisdom. The politics regarding this issue are quite volatile, as the disabled community is constantly being redefined with every legal ruling and amendment to the ADA, the political entities involved are attempting to mediate the attempts by the EEOC, and the dictates of United States Law.
TM Studies of the consequences of the employment provisions of ADA show that the Act has led to less employment of disabled workers. cost of employing disabled workers to comply with the accommodation mandate of ADA has made those workers relatively unattractive to firms.SSDI is a payroll tax-funded federal insurance program of the United States government. Designed to provide income supplements to people who are physically restricted in their ability to be employed because of a notable disability, usually a physical disability. Since 2008, the SSDI fund has distributed more benefits than it obtained in tax receipts. Refer to graph at this point.
TM This can result since the definition of disability is now applied in a less restrictive manner. Burden of proof shifted to employers- employer needs to show why a worker does not require special accommodations, rather than employees proving that the measures are merited.
Disability EqualEmployment OpportunityTara MullenChristopher Dixon 2011Personal Law and Selection Psych 559-01
What Does the Term DisabilityMean? With Respect to anIndividual.• a physical or mental impairment that substantially limits one or more major life activities of such individual;• a record of such an impairment; or• being regarded as having such an impairment• major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
American Disabilities Act of1990To provide a national mandate to eliminate discriminationand create consistent and enforceable standards toaddress discrimination.Applies to employers with 15 or more employees.ADA Amendments Act of 2008• Signed into law Sept. 25, 2008• Favored a broader coverage of individuals protected.• Effective Jan. 1, 2009
The Americans withDisabilities Act AmendmentsAct of 2008• On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008• The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.• Important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOCs ADA regulations.• Easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA
American Disabilities Act -TitlesThe Americans with Disabilities Act (ADA) is a comprehensivecivil rights law for people with disabilities. The Department ofJustice enforces the ADAs requirements in three areas --Title I: Employment practices by units of State and localgovernmentTitle II: Programs, services, and activities of State and localgovernmentTitle III: Public accommodations and commercial facilities
The Rehabilitation Act of 1973Section 503 of the Rehabilitation Act of 1973 prohibitsdiscrimination and requires employers with federal contracts orsubcontracts that exceed $10,000 to take affirmative action tohire, retain, and promote qualified individuals with disabilities.All covered contractors and subcontractors must also include aspecific equal opportunity clause in each of their nonexemptcontracts and subcontracts.This law is enforced by the Employment StandardsAdministrations Office of Federal Contract CompliancePrograms (OFCCP) within the U.S. Department of Labor.
The Equality Act 2010The primary purpose of the Act is to consolidate thecomplicated and numerous array of Acts and Regulations, whichformed the basis of anti-discrimination law in Great Britain. Thiswas, primarily, the Equal Pay Act 1970, the Sex DiscriminationAct 1975, the Race Relations Act 1976, the DisabilityDiscrimination Act 1995 It requires equal treatment in access toemployment as well as private and public services, regardless ofthe protected characteristics of age, disability, genderreassignment, marriage and civil partnership, race, religion orbelief, sex, and sexual orientationApril 6, 2010
Defining the DiscriminationWho does the American Disabilities Act protect?• ADA Prohibits an employer from discriminating against a qualified individual with a disability.• Protects people with current impairments or if they have a record of such an impairment or if the employer thinks they have an impairment.• Protects people who are tested positive for AIDS.• Rehabilitated drug and alcohol users are protected, but current drug abusers are NOT.
Qualified Individual• What is a Qualified Individual? A person who is able to perform the essential or primary functions of a job with or without accommodation.
What is an Accommodation?According to the American Disabilities Act, employers arerequired to make reasonable accommodations for their disabledemployees. This is a requirement as long as it does not place“Undue Hardship” on the employer.Examples:• Modified work schedules• Purchasing new equipment• Making work spaces more accessible• Modifying orientations and meetings for people with disabilities
“Undue Hardship”What is meant by “Undue Hardship”? • “Undue Hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate…. Concrete evidence is required to establish undue hardship.” • May also refer to financial difficulty
Employer EtiquetteThere are legal ramifications to disability discrimination. Howdoes an employer avoid these:• An employer(or prospective employer)cannot ask about current disabilities, but they can infer that a disability may affect their performance of essential job duties.An example of how this would be done during an interview: You cannot ask “Do you have back problems?” You can however state the job specific requirements…. “This job requires extensive walking for distances of more than 35 ft. “ …..and let the individual make the decision.
More on Employer Etiquette• Pre-employment physicals • Company Policy• Medical information must be kept separate(as per HIPPA).• Alcohol and drug tests. • Must apply to all employees
The U.S. Equal EmploymentOpportunity Commission(EEOC)The U.S. Equal Employment Opportunity Commission (EEOC) isresponsible for enforcing federal laws that make it illegal todiscriminate against a job applicant or an employee because of thepersons race, color, religion, sex (including pregnancy), national origin,age (40 or older), disability or genetic information. It is also illegal todiscriminate against a person because the person complained aboutdiscrimination, filed a charge of discrimination, or participated in anemployment discrimination investigation or lawsuit.Most employers with at least 15 employees are covered by EEOC laws(20 employees in age discrimination cases). Most labor unions andemployment agencies are also covered.The laws apply to all types of work situations, including hiring, firing,promotions, harassment, training, wages, and benefits.
Enforcement• Department of Justice has achieved greater access for individuals with disabilities in thousands of cases.• Must first attempt settlement through negotiationsLitigationThe Department may file lawsuits in Federal court to enforce theADA and may obtain court orders including compensatorydamages and back pay to remedy discrimination.
Defenses• Defense to a charge of discrimination • application of qualification standards, tests, or selection criteria that screen out or tend to screen out • business necessity • cannot be accomplished by reasonable accommodation.• Qualification standards. - The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.
O.D.E.P.The Office of Disability Employment Policy (ODEP) wasauthorized by Congress in the Department of Labors FY 2001appropriation. Recognizing the need for a national policy toensure that people with disabilities are fully integrated into the21st Century workforce, the Secretary of Labor delegatedauthority and assigned responsibility to the Assistant Secretaryfor Disability Employment Policy. ODEP is a sub-cabinet levelpolicy agency in the Department of Labor.
EEOC v. AIC SecurityInvestigations, Ltd., and RuthVrdolyak 1995In this case, the first ADA employment case to be tried before a jury,the Commission alleged that AIC Security discharged an employeebecause he was battling cancer.• The executive director of AIC, was diagnosed with inoperable metastatic brain cancer, a terminal illness.• He suffered a variety of effects from his cancer and treatment, including shortness of breath from having parts of his lungs removed, nausea from radiation and chemotherapy, and somewhat reduced memory capacity due to the effects of brain tumors.• He missed work at times, but he continued his employment essentially full-time. The owner of the company, who knew that he had cancer, fired him after taking over the company.• Did AIC have the right to fire the Executive Director? No
Sutton v. United Airlines,Inc.(1999)• Plaintiffs in Sutton are twin sisters who are commercial pilots. They are both severely myopic, with uncorrected vision of worse than 20/200. They applied to be airline pilots and were turned down • The airline required pilots to have uncorrected vision of 20/100 or better.• The plaintiffs specific claim is not clear from the case because the court dismissed their case finding they were not covered by the ADA.• Was the uncorrected 20/100 standard discriminatory?• Were they otherwise qualified regardless of their corrected vision?• Dilemma:• Qualified because of an accommodation: if the plaintiff shows that the accommodation eliminates the effect of the disability, the defendant will then counter that the plaintiff is not covered by the ADA
Toyota Motor Manufacturing,KY, Inc. v. Williams (2002)• Respondent claimed to be disabled because of her carpal tunnel syndrome and other impairments. She sued her employer for failing to provide her with reasonable accommodations, required by the ADA. The US Supreme Court ruled that her impairments did not restrict the respondent in performing tasks that are of central importance to most people’s daily lives and she was therefore not “disabled”.• Result of the case narrowed the broad scope of protection intended by the ADA.• Standards created by the Supreme Court for “substantially limits” created an inappropriately high level of limitation necessary to obtain coverage under the ADA.
Supreme Court - RAYTHEONCO. v. HERNANDEZ• Joel Hernandez worked for Hughes Missile Systems for 25 years when he was forced to resign after testing positive for cocaine.• Hernandez applied to be rehired after 3 years as a recovering drug addict, but was rejected.• Hernandez filed charges with the EEOC claiming he was discriminated against in violation of the ADA.• Company’s perspective: Company policy of not rehiring employees terminated for violating code of conduct.• Hernandez argued back against the policy, but not in a timely manner.• Disparate impact versus disparate treatment• US Supreme Court ruling: ADA was not violated
Post-ADA Amendment Cases• Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit(2011)*• EEOC v. Argo Distribution LLC, (5th Cir. Jan. 15, 2009)*• Johnson v. Board of Trustees of Boundary County School District No. 101, et al(2010)*• Hoffman v. Carefirst of Fort Wayne, Inc. (2009)*• EEOC v. Sears, Roebuck & Co. (2009)*• U.S. v. County of Ventura(2010)*
Hoffman v. Carefirst of FortWayne, Inc. (2009)• Stephen Hoffman worked as a service technician in 2007. His original hours were 9am-5pm on weekdays.• Hoffman was diagnosed with Stage III cancer and received treatment. Upon his return in Jan. 2009, he was told about a new contract that would require him to work up to 70 hours a week.• Hoffman asked to work from a home office but was denied that accommodation, leading him to “voluntarily” quit the job.• Is Hoffman disabled under the ADAAA? • “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active” renders his cancer in remission a disability.• Employer did not show that the requested accommodation (working from home office) created an undue burden on the organization.
EEOC v. Sears, Roebuck & Co.(consent decree entered 2009)• EEOC brought this landmark disability discrimination lawsuit• Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities,• Violation of the ADA.• The case resulted in the largest monetary recovery in a settlement of a single ADA lawsuit in EEOC history.• The EEOC provided claim forms to certain Sears employees who had been terminated under Sears’ workers’ compensation leave policy.• Report to the EEOC, among other things, the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work.• Is this a case of disparate treatment?• The EEOC found that 235 individuals were eligible to share in the settlement. The average award was approximately $26,300, for a total award of approximately $6.2 million.
Johnson v. Board of Trustees ofBoundary County SchoolDistrict No. 101, et alOn July 28, 2010, the Department, along with the EqualEmployment Opportunity Commission, filed an amicus brief inthe U.S. Court of Appeals for the Ninth Circuit on behalf of theplaintiff in this case, a school teacher with bipolar disorder whowas fired from her teaching position after her request for areasonable accommodation was refused. The governmentsbrief argued that the district court was wrong to dismiss thelawsuit at the summary judgment stage.Amicus Curiae(Amicus Brief) – Literally means, Friend of theCourt, a person with strong interest in or views on the subjectmatter of an action, but not a party to the action.
U.S. v. County of VenturaOn July 15, 2010, the U.S. District Court for the Central Districtof California entered a consent decree, jointly submitted by theparties, resolving this lawsuit against the County ofVentura, California, alleging that the county had discriminatedagainst an individual who is deaf who applied for a position as achildrens social service worker. Under the terms of thedecree, the county will adopt an employment policy prohibitingdiscrimination and explicitly acknowledging that reasonableaccommodations for an employee may include a qualified signlanguage interpreter; supervisory personnel in the humanservices and human resources department will receive trainingon the ADA; and the County will pay $45,000 in compensatorydamages to the charging party.
EEOC v. Argo Distribution LLC,(5th Cir. Jan. 15, 2009)• Under a pre-Amendments analysis, the complainant was not ADA-disabled. • Suffered from a condition which precluded his ability to perspire. • Claimed he was substantially limited in the major life activity of regulating body temperature. • The court assumed for purposes of the decision that “regulating body temperature” was a major life activity. • EEOC failed to present evidence that he was “substantially limited” in that activity. • Not disabled for ADA purposes.• Mitigating measures on his life, • drinking cold liquids • sitting in front of a fan • spraying himself with water.• Not substantially limiting.• Had the court applied the Amendments retroactively, Velez likely would have been disabled under the ADA, because the Amendments prohibit consideration of mitigating measures.
Verizon to Pay $20 Million toSettle Nationwide EEOCDisability Suit• Largest ADA Settlement in EEOC History for Hundreds of Employees• Largest disability discrimination settlement in a single lawsuit in EEOC history.• Terminated or Disciplined Based on Rigid Attendance Policy• Verizon Communications will pay $20 million and provide significant equitable relief• Nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC)• Filed against 24 named subsidiaries of Verizon Communications• Refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities.• 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.
Problems and Issues withDisability EEO• Corporate Misunderstanding and Lack of Education• Public misunderstanding• Security• Refinement and Amendment of ADA
Controversial Issues EEOCs attempt to impose a list of per se disabilities, that neither the ADAAA provides, nor was expressly authorized by Congress for the EEOC to create, including:• Deafness • Epilepsy• Blindness • HIV/AIDS• Intellectual disability (formerly • Multiple sclerosis known as mental retardation) • Muscular dystrophy• Partially or completely missing • Major depression limbs • Bipolar disorder• Mobility impairments requiring use • Post-traumatic stress disorder of a wheelchair (a mitigating • Obsessive-compulsive disorder measure) • Schizophrenia• Autism • Cerebral palsy• Cancer • Diabetesper seAdverb - in itself, essentially, as such, in essence, by itself, of itself, bydefinition, intrinsically, by its very nature Im not opposed to capitalpunishment per se.
Current Political Issues• Effects of ADAAA on employer: • More individuals will qualify for coverage under the portion of the definition of disability that entitles them to request and receive reasonable accommodations. • Burden of proof in disability claims is shifted to employers. • Higher costs for employer to accommodate workers. • Cost of litigation for employer.• Speculation that ADAAA will affect Social Security Disability Insurance (SSDI)• According to the Social Security Administration, SSDI will run out of cash in approximately 5 years.• Social Security beneficiaries in 2010: 489,488. Highest 1 yr. increase ever!
Current Political Issues Cont’d• How this can affect the SSDI: • The more friendly burden-of-proof for claimants against employers could impact the legal standard used to evaluate SSDI claims. • The protected group may be treated more cautiously by potential employers. Those with disabilities may file greater SDDI claims once they face unemployment.
ReferencesWebpages• U.S. Equal Employment Opportunity Commission, Titles I and V of the Americans with Disabilities Act of 1990 (ADA) http://www.eeoc.gov/laws/statutes/ada.cfm• U.S. Equal Employment Opportunity Commission, Disability Discrimination http://www.eeoc.gov/laws/types/disability.cfm• U.S. Equal Employment Opportunity Commission, Facts About the Americans with Disabilities Act http://www.eeoc.gov/eeoc/publications/fs-ada.cfm• U.S. Department of Justice, ADA Home Page http://www.ada.gov/
• U.S. Department of Justice, ADA Home Page, AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED http://www.ada.gov/pubs/ada.htm• U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Enforcing the ADA, A Status Report from the Department of Justice, July - September 2010, Issue 3 http://www.ada.gov/julysep10.htm• Supreme Court of The United States, EEO Disability Discrimination http://www.supremecourt.gov/search.aspx?Search=EEO+Disa bility+Discrimination&type=Site
References, cont.Court Cases• EEOC v. AIC Security Investigations, Ltd., and Ruth Vrdolyak, 55 F.3d 1276 (jury verdict upheld 1995)• EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. September 29, 2009• SUPREME COURT OF THE UNITED STATES, RAYTHEON CO. v. HERNANDEZ, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, No. 02–749. Argued October 8, 2003—Decided December 2, 2003• SUPREME COURT OF THE UNITED STATES, US AIRWAYS, INC., v. ROBERT BARNETT, No. 00-1250, December 4, 2001
• EEOC v. Argo Distribution LLC, 555 F.3d 462, 469 n. 8, (5th Cir. Jan. 15, 2009)• U.S. v. County of Ventura, CV09-06413-MMM(CWx), July 15, 2010• Johnson v. Board of Trustees of Boundary County School District No. 101, et al, 2:2009cv00061, July 28, 2010• Hoffman v. Carefirst of Fort Wayne, Inc., 1:2009cv00251 (2009)• Sutton v. United Airlines, Inc. (97-1943) 527 U.S. 471, (1999)• Toyota Motor Manufacturing, KY, Inc. v. Williams, (00-1089) 534 U.S. 184, (2002)
References, cont.Articles• Brownyn Byrnes(2009, September), Improved protection of disability rights, Disability Discrimination Act 1992 amended. Law Society Journal, 44 – 45• Current Events and Commentary(July 2011) The ADAAAs Unintended Consequence On The Federal Budget, The Fulcrum InquiryText Books• Casio, W. F. (7th Ed.)(2011). Applied Psychology In Human Resource Management. Upper Saddle River, NJ:Prentice Hall(pp 23 – 25)