Merrily S. Archer, Esq., M.S.W. EEO Legal Solutions LLC

1. Who’s Qualified?Defending Essential Functions, Qualification Standards and Performance Requirements Under the ADA Merrily S. Archer, Esq., M.S.W. EEO Legal Solutions LLC

2. About Merrily . . . • Ms. Chief, EEO Legal Solutions and WorkplaceTrainingHub.com • JD/MSW Washington University in St. Louis • EEOC Trial Attorney, 1997-2000, Denver • Biglaw employment defense attorney, 2000-2012 (e.g., Jackson Lewis, Fisher & Phillips) • SuperLawyer: employment litigation defense • Defended EEOC v. Picture People • 2012: top 10 most powerful Colorado attorneys, Denver Business Journal • Dances in grocery stores, plays guitar (badly), huge embarrassment to daughters

3. WorkplaceTrainingHub.com is an online training marketplace that brings together experts from a variety of workplace disciplines to offer affordable, accessible, and accredited programs that are also fun and engaging

4. Buckets of Expertise

5. The Point • The EEOC and employee-side attorneys have aggressively substituted their judgment for employers’ regarding • Knowledge, skills, and abilities required to perform job • What “successful” job performance looks like • What accommodations are “reasonable” or even possible • Prepare to defend . . . NOW

6. The Plan • ADA: Where We Started • EEOC ADA Enforcement Trends • Basic “Qualified” Analysis • EEOC “Qualified” Analysis in Litigation • Prepare-to-Defend Action Plan • Litigation Tips

7. A Brief History of the ADA 1990: Congress passes ADA 2008: Congress passes ADAA, defining disability to include MOST conditions 1999: SCOTUS decides Sutton Triology, narrowing class of “disabled” people 2011: EEOC issues BROAD regulations and increases prosecutions against employers

8. Promises, Promises The Committee wishes to emphasize again that this legislation does not require an employer to make any modification, adjustment, or change in a job description or policy that an employer can demonstrate would fundamentally alter the essential functions of the job in question. H.Rep. No. 101-485 (II) at 64, House Committee on Education and Labor

9. Under this legislation an employer may still devise physical and other job criteria and tests for a job as long as the criteria or tests are job-related and consistent with business necessity. H.Rep. No. 101-485 (II) at 56

10. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. §12111(8)

11. The EEOC’s Interpretation • An employer is not required to restructure the essential functions of a position to fit the skills of an individual with a disability. 29 C.F.R. pt. 1630, App., §1630.2(o) and §1630.9, ¶ 3

12. Types of EEOC Charges in FY2014 Retaliation outranks all other charges ADA cases continue to climb Liberalized “disability” definition

13. ADA Charge Trends

14. Failure to Accommodate

15. Risky Business

16. EEOC ADA Prosecutions • ADA prosecutions in FY2014 fell slightly from FY2013 • 34% in FY2014 • 36% in FY2013 • Cause determination rate of 4.5%, no reasonable cause of 62.6%

17. Basic “Qualified” Analysis • “Qualified”: a PwD “who, with or without reasonable accommodation, can perform the essential functions of the employment position that [s/he] holds or desires.” • See also 29 C.F.R. §1630.2(m) • “Otherwise Qualified” • If a reasonable accommodation would enable the PwD to perform essential job functions, s/he is “qualified” under the ADA

18. Essential Job Functions29 C.F.R. §1630.2(m) Standard Evidence The employer's judgment; Written job descriptions prepared before advertising or interviewing applicants for the job; The amount of time spent on the job performing the function; The consequences of not requiring the incumbent to perform the function (e.g., firefighter); The terms of a collective bargaining agreement; The work experience of past incumbents in the job; and/or The current work experience of incumbents in similar jobs. • The position exists is to perform that function; • There is limited number of employees available among whom the performance of that job function can be distributed; and/or • The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

19. Major Sticking Points

20. Connecting the Dots . . . though many of the market responses to CRA 1991 were foreseeable.

21. Overarching Themes

22. EEOC: Eliminate an “Essential Function” of the Job • EEOC v. Womble Carlyle Sandridge & Rice, LLP, (M.D.N.C. June 26, 2014) • Law firm assistant with breast cancer unable to lift 75 lbs., 20 lbs. regularly • EEOC: 75 lbs. not an “essential function,” her position could have been redefined to exclude heavy lifting as “reasonable accommodation” • Court: ADA does not require employer to reallocate essential functions or create new position around employee’s limitations as a “reasonable accommodation”

23. EEOC: Just “Fundamentally Alter” the Job • EEOC v. Picture People, 684 F.3d 981, 983–84 (10th Cir. 2012) • EEOC demanded that retailer specializing in children’s portrait photography eliminate its “strong verbal communication skills” requirement and allow deaf/mute PwD perform job via written notes, gestures, text messaging as a “reasonable accommodation” • Fundamental alteration in job, customer experience, business model • Fit job to CP’s limitations, regardless of impact on customer experience

24. How EEOC Investigators Evaluate “Qualified” • Rare EEOC responses to “contention interrogatories” in EEOC v. Picture Peopleprovide insight into how EEOC determined a deaf/mute PwD was “qualified” in the investigation, reasonable cause determination, and prosecution • CP said she could do “most” of the job • Terminated employee said CP was a “good worker” • CP had no performance discipline in her file • Employed eight (8) weeks • Picture People HIREDCP • “Picture People did exactly what the law requires: they gave the Charging Party an OPPORTUNITY.”

25. EEOC ADA Class Actions • EEOC v. Fed Ex Ground • 10-10-14: EEOC sued FedEx Ground for class-based discrimination against deaf and hard-of-hearing applicants and employees • FedEx has longstanding policy of hiring deaf and hard-of-hearing applicants but failed to provide as “reasonable accommodations” • ASL interpreters • Closed captioned TV • Equipment that vibrates/flashes instead of beeps

26. Wait . . . With ADA’s required “individualized assessment” and wide functional variations with the deaf community, are all members of the class entitled to the same reasonable accommodations?

27. EEOC: Workplaces as Extension of Vocational Rehabilitation • EEOC v. Papa John’s • EEOC: rural Papa John’s “successfully employed” CP with Down Syndrome • Who gets to decide? What would “managers on the ground” say? • EEOC: CP with Down Syndrome could perform position with a “job coach” from a local social service agency as a “reasonable accommodation” • What does need to “job coach” reveal about CP’s ability to perform essential job functions without EXTENSIVE supervision? • Is one-on-one supervision a “reasonable” accommodation?

28. Restoring the ADA’s Careful Balances

29. Prepare to Defend: An Action Plan

30. The Ground Game:Documentation

31. Elimination/Fundamental AlterationDefense Documentation • Customer complaints (written/documented) • EEOC, employee-side very focused on ABSENCE of this evidence • Observations of other employees/managers • Written logs, emails, IM’s • Expert testimony • Objectively changing the product • Customer experience as part of employers’ product • Safety concerns, incidents, near misses (direct threat) • Medical testimony • Loss of revenue, clients

32. Documenting Undue Hardship

33. Documenting Undue Hardship

34. Fighting Back

35. Winning Litigation Tips • Get vocational rehabilitation records • Depose vocational rehabilitation caseworker • Obtain Social Security records • Consider videotaping the job • Avoid testifying experts • Use a consulting expert to depose/eviscerate EEOC expert • Make CP describe or demonstrate how s/he would perform essential job functions at deposition, trial

36. Your Takeaways • Prepare to defend “essential job functions” and qualification standards NOW • Update job descriptions, training/evaluation materials • She who has the most paper wins • Push back • Judiciary tempers EEOC over-reach • ADA prosecutions do not require an entourage of lawyers

37. Final Questions/Issues Merrily Archer, Esq., M.S.W. (303) 248-3769 (direct) (303) 915-5486 (cell) archerm@eeolegalsolutions.comwww.eeolegalsolutions.com Twitter: @EEOLegal

46. Apps for ‘Dat https://www.tsheets.com/