Overview of Disability Rights Laws

Overview of Disability Rights Laws Brian East Disability Rights Texas 2222 W. Braker Lane Austin, TX 78758 512.454.4816 p 512.454.3999 f beast@drtx.org

What Are the Main Federal Laws? • ADA (as amended in 2008) • Rehabilitation Act of 1973 (esp. sections 501‒504) • Fair Housing Act

What Does the ADA Cover? • Title I of the ADA covers employment discrimination • Title II covers discrimination by state & local governments (“public entities”) • Title III covers discrimination by private businesses (“public accommodations”) • Also covers discrimination in transportation and communications

What Does the Rehab Act Cover? • § 501 covers federal employment • § 503 covers employment by government contractors (no private suits; only administrative complaints with DOL) • § 504 covers disability discrimination of all kinds by recipients of federal financial assistance (i.e., federal aid or funding), e.g., most government agencies, colleges, hospitals, some non-profits, and doctors accepting Medicare/Medicaid

What Does the FHA Cover? • Housing discrimination

Who Is Protected? • Most claims require proof of “disability” • The disability definition is the same for all 3 laws • “Actual” disability: • Physical or mental impairment • That substantially limits • A major life activity. • “Record of” such an impairment • “Regarded as” disability • Some claims do not require proof of disability

ADA Amendments Act of 2008 • Pre-ADAAA, the disability definition was interpreted very narrowly • ADAAA made big changes in how the definition is interpreted; it is now much broader • ADAAA applies to discrimination on or after January 1, 2009 • Explicitly applies to ADA and Rehab Act claims • Unclear if it applies to the FHA, or to state laws that track the ADA • EEOC has issued ADAAA regs; DOJ to follow?

What does the ADAAA say? Remember 5 Key Points: • Broad construction of disability • Mitigating measures no longer considered • Conditions that are episodic or in remission are assessed in their active state • New major life activities of bodily functions • “Regarded as” only requires an impairment Note: ADAAA is not retroactive (i.e., does not apply to conduct occurring pre-2009)

Re the EEOC’s ADAAA regs, who said that? • “New ADA Regulations Just Issued—EEOC Rules Mean Virtually Everyone Is Disabled” • “…the ADAAA now renders everyone disabled …” Answer: Defense attorneys

What do the ADAAA regs actually say? My Top Ten List: • ADA must be broadly construed to achieve its remedial purpose. Cite: 29 C.F.R. Part 1630 App., § 1630.1(c).

What do the ADAAA regs actually say? My Top Ten List: • There is no minimum duration; condition lasting less than six months can be substantially limiting. Cite: 29 C.F.R. § 1630.2(j)(1)(ix); EEOC Q&A, Question 10.

What do the ADAAA regs actually say? My Top Ten List: • “Condition, manner, or duration” may be useful, but they are not required factors. Cite: 29 C.F.R. § 1630.2(j)(4)(iv); 29 C.F.R. Part 1630 App., § 1630.2(j)(4).

What do the ADAAA regs actually say? My Top Ten List: • One may be substantially limited in learning even with a history of academic success. Cite: 29 C.F.R. § 1630.2(j)(4)(iii); 29 C.F.R. Part 1630 App., § 1630.2(j).

What do the ADAAA regs actually say? My Top Ten List: • “Central importance to daily life” is NOT the standard for “major life activities.” Cite: 29 C.F.R. § 1630.2(i)(2).

What do the ADAAA regs actually say? My Top Ten List: • Only one major life activity need be affected, so an individual is not excluded from coverage because of an ability to do many things. Cite: 29 C.F.R. § 1630.2(j)(1)(viii); 29 C.F.R. § 1630.2(j)(4)(iii).

What do the ADAAA regs actually say? My Top Ten List: • A person with a “record of” disability is entitled to seek accommodations. Cite: 29 C.F.R. § 1630.2(k)(3).

What do the ADAAA regs actually say? My Top Ten List: • Except in failure-to-accommodate claims, “regarded as” is normally the first choice because it is the broadest; the terms “substantial limitation” and “major life activity” irrelevant to it. Cite: 29 C.F.R. § 1630.2(g)(3); 29 C.F.R. § 1630.2(j)(2); 29 C.F.R. Part 1630 App., § 1630.2(1).

What do the ADAAA regs actually say? My Top Ten List: • “Regarded as” just means taking adverse action because of an actual or perceived impairment (whether or not there is a defense). Cite: 29 C.F.R. § 1630.2(l)(2).

What do the ADAAA regs actually say? My Top Ten List: • In a “regarded as” claim, employer has the burden of proving impairment is both transitory and minor, measured objectively. Cite: 29 C.F.R. § 1630.15(f).

What do the ADAAA regs actually say? My Top Ten List: • “Actual disability” still requires an individualized assessment of “substantially limits,” but some kinds of impairments will “virtually always” satisfy. Cite: 29 C.F.R. § 1630.2(j)(3) (setting out list).

How are courts interpreting ADAAA?Actual quotes from recent cases…is there a pattern? • “Simplex strongly disputes whether Terry has demonstrated that she suffers from a disability within the meaning of the ADA. Nonetheless, for purposes of its [summary judgment] motion, Simplex does not contest that Terry is a disabled person under the ADA.”

Actual quotes from recent cases… • “For purposes of this motion, Defendant assumes that Plaintiff's decreased hearing constitutes a disability under the ADA…”

Actual quotes from recent cases… • The City “does not dispute that Plaintiff … suffered an on-the-job injury that rendered him disabled as that term is defined under the ADA.”

And these: • “… Safeway will assume for purposes of this Motion that his speech impediment substantially limits a major life activity, and thus, is a disability under the ADA.” • “… Bausch & Lomb has assumed for the purposes of this motion that Parinello suffers from a disability (clinical depression) within the meaning of the statute.” • “A prima facie showing also requires a plaintiff to be a qualifying individual with a disability, which defendant concedes plaintiff is.”

Rare? There were also these: • “… PMHCC makes no argument with respect to …” • “For purposes of summary judgment only, Parkwood admits …” • “Georgia–Pacific does not dispute …” • “Defendants do not dispute …” • “JetBlue does not contest …” • “Defendants do not contest …”

And a few others: • “Plaintiff and Defendant agree …” • “Defendant challenges only …” • “Defendant appears to concede …” • “Defendants do not dispute…” • “The Board concedes …” • “… Defendant MotorCity does not contest …” • “… St. Joseph does not dispute …” • “It appears that Defendants do not contest …” • “... defendant stipulates …” • “… the District does not dispute …” • “Defendant does not dispute …”

But wait! There’s more! • “… Kaluza alleges, and PNC does not dispute …” • “Morgan Stanley does not dispute …” • “... defendants have not raised any arguments …” • “Lehigh admits that …” • “Defendants do not seriously dispute …” • “Ann Taylor has not challenged …” • “… the parties do not dispute …” • “Defendants do not dispute …” • “… HealthEast has conceded …” • “The Defendant does not dispute …” • “Verizon Wireless does not dispute …” • “… the USPS Defendants do not directly dispute …” • “Illinois Bell concedes …” • “The City concedes …” • “NBME does not dispute …” • “… Defendant concedes …” • “… defendant does not contend …” • “… are not in dispute…” • “Defendants do not contest …” • “… it appears undisputed …” • “… Defendants do not dispute …” • “… Defendant Ford does not dispute …” • “The defendants do not contest …” • “Boeing does not dispute …” • “The defendants do not dispute …” • “… it did not contest …” • “District does not dispute …” • “There does not appear to be a dispute …” • “… the Fed assumes …” • “Swish Kenco concedes …” • “NYUCD does not contest the disability…” • “… there appears to be no dispute …” • “… no party disputes…” • “… undisputed …” • “… undisputed …”

Observations From Recent ADAAA Cases On the Issue of Disability • Defendants frequently do not contest disability • Summary judgment is commonly denied on the issue of disability • When summary judgment is granted on disability, it is usually because of: • lack of pleading • lack of evidence • lack of briefing

More Observations From Recent ADAAA Cases • “Regarded as” is the area of broadest coverage and biggest change • But “regarded as” is also the most misunderstood part of the ADAAA, both by lawyers and by the courts

“Regarded As” • Need not look at “substantially limited” or major life activities; it does not matter how severe perception was • Reasonable accommodation does not apply • It is a defense if impairment is both transitory and minor • Just need evidence of “impairment” (or perceived “impairment”) plus causation

“Regarded As” • Transitory • 6 months or less • Minor • Common meaning • E.g. not the cold or flu

Briefing errors: • Failing to mention the ADAAA • Mentioning the ADAAA but not explaining it • Failing to marshal the facts and evidence • Failing to apply the specifics of the ADAAA to the specific facts in the case

Drug or Alcohol Addiction • Drug addiction: • Current illegal drug use is not protected • “Current” means recent. Shirley v. Precision Castparts Corp., 726 F.3d 675 (5th Cir. 2013) • Past or rehabilitated addiction is likely protected (if not “current”) • Current alcoholism may be protected

So, What Are the New Battlegrounds in ADA Employment Cases? • “Qualified” • Pretext or causation • Safety defenses

Definition of “Qualified” (Employment) • Having the requisite skill, experience, education and other job-related requirements, and • Able to perform the essential functions of the job (EJFs) with or without a reasonable accommodation

Determining the Essential Functions • EEOC Resources • 29 C.F.R. § 1630.2(n) • 29 C.F.R. pt 1630 App. § 1630.2(n) • EEOC Technical Assistance Manual § 2.3, http://janweb.icdi.wvu.edu/links/ADAtam1.html • EEOC Q&As and other guidance document • Many cases begin analysis with review of EEOC regs (or guidance)

Essential Job Functions (cont’d) • Statute requires that courts give “consideration” to employer’s judgment. 42 U.S.C. § 12111(8) • Somehow, courts have turned that word into “deference” to the employer’s judgment • But deference is not absolute. See, e.g., Feldman v. Olin Corp., 692 F.3d 748 (7th Cir. 2012) (“We generally defer … [b]ut this does not mean that we completely abdicate independent review.”)

Reasonable Accommodation‒Definition in Employment Context • Modifications or adjustments to application process • Modifications or adjustments to environment, or to manner or circumstances a job is customarily performed, that enable individual to perform essential job functions • Modifications or adjustments that enable person to enjoy equal benefits and privileges of employment. Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013) (close-in parking)

Reasonable Accommodation • Request for accommodation normally required, but maybe not if, e.g.,: • Need for accommodation is obvious • Request for one would be futile • Employer is removing prior accommodation • Disability interferes with requesting one • Barnett—difference between reasonableness and undue hardship

Reasonable Accommodation • Be creative; JAN has good information • Participate in flexible interactive process in good faith • Don’t “just say no”

Reasonable Accommodation • Medical leave common; indefinite leave disfavored • Fixed-leave (“no fault” leave) policies at risk • “100% healed” policies at risk • General request to “avoid stress” disfavored • Telework more and more likely • Temporary accommodations vs. permanent ?

New Accommodation Cases • McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (case manager with schizophrenia; condition and medication side-effects caused morning grogginess and “tardiness”) • court defers to employer judgment on essential functions, but that is far from the only factor; analysis is fact specific • courts cannot rely on an assumption that attendance is an essential function of virtually all jobs; they must rely on evidence, not intuition

New Accommodation Cases • McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (cont’d) • There was evidence of past flexibility, and of a somewhat flexible policy • Sufficient evidence that plaintiff could work thru lunch and “bank” hours to offset late arrivals • Court agreed that it would be undue hardship to force supervisor to work late in order to supervise plaintiff working make-up time, but there was evidence that it would not be required

New Accommodation Cases • Keith v. County of Oakland, 703 F.3d 918 (6 th Cir. 2013) (fact issue whether deaf person was qualified to be lifeguard): • Employer cannot simply rely on its doctor, especially when evaluation was cursory • Ability to perform perfectly 100% of the time is an impossible standard • Fact issue whether sign-language interpreters for occasional training sessions was reasonable • Perhaps most compelling evidence was experience of other deaf lifeguards (experts)

New Accommodation Cases • Mary Jo C. v. New York State and Local Retirement System, 707 F.3d 144 (2d Cir. 2013) • Suggests that excusing untimely filing may be an accommodation or modification • Court continues recent trend in holding that Title II does not apply to employment claims

New Accommodation Cases • Wilson v. Dollar General Corp., 717 F.3d 337 (4th Cir. 2013) (plaintiff offered no evidence of other possible accommodation besides leave, and no evidence that would have worked) • Basden v. Professional Transp., Inc., 714 F.3d 1034 (7th Cir. 2013) (insufficient evidence that plaintiff was able to come to work regularly, or that leave she sought would have helped) • Olsen v. Capital Region Medical Center, 713 F.3d 1149 (8th Cir. 2013) (even with attempted accommodations, no evidence that tech could ensure patient safety because of seizures)

New Accommodation Cases • Majors v. General Elec. Co., 714 F.3d 527 (7th Cir. 2013) (20-pound lifting restriction prevented essential part of job; having another do essential lifting was not reasonable) • Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013) (employee did not ask for help with written work, so city not liable for failing to offer proofreading; but sufficient evidence of retaliation for requesting accommodation) • Smith v. Clark County School Dist., 727 F.3d 950 (9th Cir. 2013) (application for disability retirement not inconsistent with “qualified”)

Pretext or Causation • ADA and § 501 do not require proof of “sole” cause; § 504 arguably does • After Gross, does ADA require “but for” cause? • Pretext analysis often applied if employer denies its action based on disability or effects • Pretext analysis does not apply to accommodation claims. McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) • Disability-related misconduct has some special rules

Pretext or Causation―New Cases • Brown v. City of Jacksonville, 711 F.3d 883 (8th Cir. 2013) (comments were too far back) • Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013) (no evidence that performance problems were pretext; history of successful accommodations) • Kelley v. Correctional Medical Services, Inc., 707 F.3d 108 (1st Cir. 2013) (history of negative reactions to accommodation requests)

Medical inquiries • Generally, it is illegal to ask job applicant about the existence, nature, or severity of a disability • Once conditional offer is made, can ask anything as long as done uniformly • Can ask current employees if job-related and consistent with business necessity. See Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir. 2013) (fitness-for-duty justified by threats from employee)

Overview of Disability Rights Laws