PSY 6430 Unit 3

1. PSY 6430Unit 3 The Americans with Disabilities Act Schedule: Monday & Wednesday: Lecture Exam: Monday, Feb. 11

2. Schedule • Make-up exam: Monday, Feb. 18 • It will cover Units 1-3 • I will hand out the study objectives Wednesday, Feb. 13 • Schedule is awkward because of the cancellation of class on 2/20: OBM Net and BAAM conferences • I can’t give you the study objectives until I grade and hand back E3 on Wed., Feb. 13

3. Make-up Exam • If you have missed an exam, you need to take this exam or your missing exam score will turn into a zero • If you have taken Es 1-3, but would like to try to replace one of your scores with ME1, you should take the exam • If you get a lower grade on ME1, I will throw out the ME1 grade – ME1 can only help your grade, it cannot hurt it • If you are satisfied with your exam scores, you do not have to take the exam – you get the day off!

4. Introduction • ADA was passed in 1990, with the parts related to selection going into effect in 1992 • Profound effect on selection • Become one of the most controversial pieces of legislation ever passed • Supreme Court started hearing cases in 1999, and made some clarifying decisions • Many of those decisions have now been negated by the ADA Amendments Act of 2008 • Became effective Jan. 1, 2009 (no controversy over the goals of the Act, but in provisions/interpretations - very difficult for organizations to do the right thing; Don’t like the way the text handles this; ADA first as if the provisions still stand, then talk briefly about ADAAA, confusing: 4 major issues/problems)

5. Four Major Issues • Who is actually covered by the Act? • EEOC guidelines vs. Supreme Court decisions • Vague language about what “mental disabilities” means • Burden for companies because each and every case must be handled on an individual basis (list the four issues here, then look at each in more detail)

6. SO1A: First Controversy: Who is covered? An individual who: • Has a physical or mental impairment that substantially limits one or more major life activities, • Has a record of such impairment, or • Is regarded as having an impairment • If an organization assumes someone has AIDS who does not, that person is covered by ADA • Case won by a person who was misdiagnosed as learning disabled; she was regarded as learning disabled by the company and thus was covered (have to start with definition, which I ask you to learn as SO2)

7. SO1A, continued • Most of the lawsuits filed have been about who is covered by the act • Who is actually considered to have a physical or mental disability that substantially limits one or more major life activity • All of the italicized words have been issues of major court cases

8. SO1B: Second Controversy: EEOC guidelines vs. Supreme Court • When new EEO legislation is passed, the EEOC always issues guidelines for companies to follow • In the past, the courts have always given “great deference” to those guidelines, basically using them as a checklist when making decisions NOT SO WITH ADA • EEOC guidelines took a strong advocate stance for individuals -VERY liberal guidelines • The Supreme Court narrowed ADA’s application, ruling a manner that decreased the number of individuals who were covered (conservative)

9. SO1B, continued • First, this caused mass confusion - companies had no clue about what was acceptable and what was not (that is, who was covered and who was not) • Second, some district and circuit courts abided by the EEOC guidelines and some did not • Different laws in different parts of the countries • Lower courts that abided by EEOC, found decisions overturned • Eventually, this led to the ADA Amendments Act • Signed by President Bush (reluctantly) 9/28/08 • Took effect Jan. 1, 2009

10. SO1C: What does the ADA Amendments Act do? • For the most part, the act negates the Supreme Court decisions, which favored organizations, and broadens the coverage of ADA back to what its framers called the “original intent” of ADA • Most of the wording is consistent with the original EEOC guidelines for ADA • Note that what happened here is similar to what happened with Title VII and the Supreme Court’s rulings that led to the CRA of 1991

11. NFE: But how coverage changed and the impact of ADAAA on discrimination claims • When ADA was passed, it was expected that it would protect the then estimated 43 million Americans with physical and mental disabilities • After the Supreme Court decisions, coverage was narrowed to an estimated 13.5 million individuals • Since ADAAA, with the scope of coverage restored, claims of unfair discrimination under ADA have increased by 42% (from 2009-2011)

12. Third Major Controversy: Mental Disability • Framers included mental disabilities, however • There isn’t any clarifying language about what a mental disability is • Now, the highest number of cases filed are related to mental disabilities (SO1D) • Hence, inclusion of the McDonald article • “The Americans with Difficult Personalities Act” • EEOC: Getting along with others - a major life activity • Sleeping, sex, and reproduction - major life activities that can be affected by anti-depressant medication • “My disability made me do it!”: rude and insubordinate behavior (Back to the four major controversies)

13. SO1E: Fourth major issue, individual consideration • Each and every case must be handled on an individual basis. Why? • Individuals who have the same disability are not affected the same way • Degree of disability differs • The extent to which the disability interferes with a major life activity differs • Extent and nature of accommodations that individuals require in the workplace differ (places considerable burden on the employer; plus the controversies I have just mentioned make it very difficult for companies to know when they are In compliance)

14. SO3: What percentage of workers are disabled and how many disabilities covered? • According to the definition • 25% of the labor force is covered by ADA • At least 900 different disabilities • Those numbers make is clear why this Act is so difficult for employers, given that each and every case must be handled on an individual basis

15. SO4: (NFE) Who is excluded? • Exclusions • Homosexuals and bisexuals • Transvestites • Transsexuals • Pedophiles • Exhibitionists • Voyeurs • Others with any type of sexual behavior disorders • Compulsive gamblers • Kleptomaniacs • Pyromaniacs • Those currently using illegal drugs, hence drug testing IS legal under ADA (if no longer using, covered) (medical marijuana, later) • Active alcoholics who cannot perform their job duties or who present a threat to the safety or property of others (otherwise covered; and if no longer drinking, covered) (conservatives required this; Some states, particularly CA have state laws where some of these groups are included in a state ADA act)

16. SO5: What in addition to a disability must be present for a person to be “disabled” under ADA • Disability must substantially limit one or more major life activities • The ADAAA altered: • The definition of “substantially limits” (SO6A) • What constitutes a “major life activity” (SO6B) Adopted the EEOC definitions that the Supreme Court had made more restrictive

17. SO6A: Substantially Limits • ADAAA defines “substantially limits” as “materially restricts” • Did not change the wording, just defined it • Difference seems subtle to us, but it is not from a legal perspective • NFE: State laws can be more liberal and when that is the case, you must follow the state laws • CA and NJ: disability must only limit (not substantially limit or materially restrict) • Again, it’s a big difference from a legal perspective (NFE - EEOC prefers state laws, this is why; laws can be more liberal, more inclusive, but they cannot be less inclusive)

18. SO6B: Major Life Activity • ADAAA • Expanded the definition to the activities identified by the EEOC • Added bodily functions (virtually all of them) (specifics next slide)

19. SO6B: Major Life Activity, this slide NFE • Partial list of major life activities • Caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, sleeping, learning, working, sexual function, reproduction, sitting, standing, bending, lifting, reaching, thinking, concentrating, and interacting with others • Reproduction was used to justify the coverage of a woman who had asymptomatic HIV • Partial list of bodily functions • immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory Note that some of these may occur outside of the work place and thus the employer may have no clue about them - sleeping, cell growth, sexual functioning, reproduction. Generally, it is up to the employee to disclose a disability and request accommodation, if necessary.

20. SO7: Mitigation • 7A: What is mitigation under ADA? Correction or amelioration of a disability due to prosthetic devices or medication • Eyesight - corrected by glasses • Hearing - corrected by hearing aids • High blood pressure - corrected by medication • Depression - corrected by medication • 7B: Prior to ADAAA, what was (a) EEOC’s position and what was the Supreme Court’s position? • EEOC guidelines: Disability must be considered in its unmitigated state • Supreme Court: Disability must be considered in its mitigated state • If the disability is mitigated, then the person is not covered by ADA • Supreme Court was more conservative (This issue caused more than its fair share of trouble; two SC cases are described in the text)

21. SO7: Mitigation • 7C: Where does it stand today due to ADAAA? Mitigating measures other than ordinary eye glasses and contact lenses shall not be considered

22. SO9: Direct threat clause • 9A: If a person has a disability as defined by ADA, but the person poses a direct threat to the safety or health of others in the work place or for its customers, the employer can legitimately not hire that person • 9B: How did the Supreme Court expand that ruling? • The issue: Does the direct threat clause apply to the worker himself as well as to others? (not in the text but has become critical – many original rulings of the courts did not take this direct threat clause into consideration; case is next)

23. SO9: Direct threat clause case, this slide NFE • Chevron v. Echazabal Man with a liver problem applied to work at Chevron where he would be exposed to chemicals/solvents that could lead to further and more severe liver problems. Chevron did not hire • Interesting, if they hired, and he became seriously impaired, the company would have to pick up part of the tab through its health coverage plan • District Court and Court of Appeals for the Ninth Circuit: Ruled in favor of the worker • Supreme Court: Reversed in favor Chevron Employer can deny a job to a person because of a direct threat to the health or safety of that individual, not only to others in the work place and its customers HOWEVER: (not in text, but important issue; concludes next slide)

24. SO9: (NFE) Direct threat, cont. In another case, the Supreme Court ruled that the direct threat clause did not apply to hiring a pregnant applicant who would be exposed to lead which, of course, would pose a health threat to her unborn child. The court said that was “too paternalistic.” That’s why the lower courts originally ruled the way they did in the Chevron case - they thought this precedent/ruling also applied to the individual himself or herself as well. maternalistic???? (Click after paternalistic; so, you can expose your unborn child to serious health/safety risks but you cannot expose yourself to health/safety risks under ADA)

25. SO10: Three other ADAAA issues • If a disability is episodic or in remission it is covered, but temporary impairments such as knee problems or recovery from surgery are not • Reverse discrimination claims are “not cognizable” (not possible) • Discrimination against nondisabled individuals is not a violation of ADAAA • This clause was included due to reverse discrimination cases brought under Title VII (white males brought lawsuits when they were disadvantaged)

26. SO10: Three other ADAAA issues • Individuals covered only under the “regarded as” prong/clause are not entitled to reasonable accommodation • NFE, but I need to back up a bit: In order to be covered by ADA, the individual must be able to perform the essential features of the job with or without reasonable accommodation • ADAAA provision makes sense: individuals covered under “regarded as” prong aren’t really disabled

27. SOs 14 & 15: Medical tests ADA prohibits pre-employment inquiries about a person’s disability, and/or the nature and severity of the disability if the disability is obvious • SO14: Thus, any type of test that could reveal a disability, or the nature and severity of a disability is considered a “medical” examination and cannot be administered before an offer is made…… (Sos 11-13 are straightforward; 14&15 are related - medical testing and examinations; VERY IMPORTANT!!!!)

28. SOs 14 & 15: Medical tests • SO15: However, the offer may be made contingent upon passing a medical examination • If everyone is required to take the exam • If the results are kept confidential and maintained in a file that is separate from the person’s application/employment file* *Assumes, of course, the test is job related or has business necessity as well (Sos 11-13 are straightforward; 14&15 are related - medical testing and examinations; VERY IMPORTANT!!!!)

29. SO16: Drug testing • Drug testing is not considered a medical test under ADA • You can administer a drug test before an offer is made • Why? Those using illegal drugs are excluded from coverage under ADA. Thus, while many would consider drug testing a medical test, it is not considered a medical test under ADA (I dealt with this previously, but want you to learn this point now; so drug test away)

30. SO16: NFE, medical marijuana and drug testing • 18 states and the DC have passed medical marijuana laws • If a person has a disability and uses medical marijuana, what about drug testing? • Many laws protect employers with clauses like “employers are not required to accommodate the medical use of marijuana in any workplace.” • However, laws are varied and there have not yet been many cases but cases favor the organization when they have been tested (had sufficient cases, however, all ruled the same; but I have been wrong before…case summary next)

31. SO16: NFE, medical marijuana and drug testing • California Supreme Court, 2008 • OK to fire a worker after drug test • Employers are under no obligation to accommodate medical marijuana on or off the job • The law protects the individual from criminal prosecution but provides no protection on the job • Why? Marijuana remains classified as an illegal substance under federal law (one of the first…Michigan case next)

32. SO16: NFE, medical marijuana and drug testing, Michigan case • 6th Circuit Court of Appeals, Sept. 2012 • OK to fire a worker after drug test • Wal-Mart in Battle Creek fired an employee who has an inoperable brain tumor after he failed a drug test • Employee was using marijuana legally under state law • Upheld the district court ruling made in 2011 • Same rationale as in CA • Employers are under no obligation to accommodate medical marijuana on or off the job • The law protects the individual from criminal prosecution but provides no protection on the job • Why? Marijuana remains classified as an illegal substance under federal law (one of the first…Washington case next)

33. Washington State Supreme Court • Ok not to hire a customer service consultant for her legal, at-home use of marijuana • Applicant disclosed her use during the hiring process • Gave the company a copy of her physician’s authorization • Was not hired after a pre-employment drug screen when she tested positive for THC. (all decisions have been consistent and based on the same rationale)

34. SO17: “Psychological” tests (mental disorder and personality tests) • Are psychological tests medical examinations under ADA? • Their use is very controversial under ADA • Sometimes psychological tests are medical examinations; sometimes they are not - and, experts don’t all agree with respect to which ones are “medical” tests and which ones are not

35. SO17, cont: Psychological tests • 17A: If the test is designed to identify mental disabilities, then the test is considered a medical test (MMPI and some personality tests) • California Personality Inventory (relatively popular in selection) deleted 28 items they felt might have posed problems (see article) • Courts have not ruled whether such a test would be considered to be a test of pathology • Why are tests of mental disability and pathology considered medical tests under ADA? ADA protects individuals with mental disabilities and the employer is not supposed to know whether or not the person is disabled or the extent of the disability at the time of an offer (used to be fairly common practice to administer MMPI to applicants for police and fire positions BEFORE interview - can’t do that anymore; 2 years ago I had a former Student drop by - he had applied for a position in the police academy in San Diego - he had passed the written exam, he was waiting for the interview, and told me that if he was offered the job, he would then have to take the MMPI - and the job was indeed contingent upon his passing the MMPI.)

36. SO17, cont: “Psychological” tests • 17B: What is the most cautious (best) approach to the administration of psychological tests as selection tests? Consider them all medical tests, and like other medical tests,administer them only post-offer, with the offer made contingent on the outcome of the exam.

37. SO 18: “Qualified” under ADA ADA pertains ONLY to qualified individuals with disabilities - that is, individuals who are qualified to perform the job in question • SO18: How does the ADA define a “qualified individual?” A qualified individual is one who can perform the essential functions of the jobwith or without reasonable accommodation

38. NFE: Strange case re essential functions of the job, Cleveland v. Policy Management Systems, 1999 • Woman was receiving social security payments for total disability on the grounds that she was completely unable to work because of her disability • She applied for a job at Policy Management Systems • Company denied hiring based on the fact that she was getting social security payments because she could not work (and hence could not perform the essential functions of the job) • The issue: Would the court grant her a trial to determine whether she was covered by ADA?

39. NFE: Strange case re essential functions of the job What did the court rule? Yep, you guessed it - the court granted her a trial on the grounds that if she were not able to perform the essential features of the job, the company could (and had to) prove that. (working is a major life activity and thus she was covered by ADA; the reason I am presenting these strange cases - burden placed on companies and while our sympathies may lie with the disabled generally, think of yourself as a selection specialist advising the company about what it should do)

40. SO19: When doesn’t an employer have to provide a “reasonable accommodation?” • When it causes undue hardship for the organization Again, however, it’s pretty unclear what “undue hardship” constitutes. • NFE: What factors influence “undue hardship?” Nature and cost of the accommodation; size, type, and nature of the facility and its parent company

41. NFE Must an employer compromise performance standards as a reasonable accommodation? Well, experts don’t think so, anyway!! NO • (NFE) This issue is not addressed in ADA, but precedents have been set by the Rehabilitation Act of 1973 that the employer does not have to compromise “legitimate” performance standards • However, you better clearly state those standards and include them as essential functions of the job

42. SO20 NFE: ADA does not require preferences be given to disabled individuals • ADA is an EEO law administered by the EEOC and as such does not require AA For example, the Supreme Court has ruled that if there is a vacant position and if a union contract exists thatdesignates that seniority rights will be used to fill the position, the union contract takes precedence over an individual who has a disability as defined by ADA and has requested the job as a “reasonable accommodation” (very recent controversy re preferences for a vacant job)

43. SO 17: “Qualified” under ADA • What is an essential job function? (NFE) • The primary reason the job exists - very important implications for job analysis • Are others in the position required to perform it? • Would removing the function fundamentally alter the position? • Most important: Did a job description exist before advertising and interview begins that contains that function?

44. SO22: Why the EEOC guidelines created chaos and how they differ from the what the framers intended • Framers intended that only mental disorders as defined in the DSM (Diagnostic and Statistical Manual of Mental Disorders) be considered mental impairments • Clearly, McDonald questions some of these as well (and I agree) • EEOC guidelines stated that while the DSM is “relevant” other diagnoses can also be covered • Chronic lateness syndrome • Sexual impulse control disorder (just a few SOs on the McDonald article)

45. SO22: Why the EEOC guidelines created chaos and how they differ from the what the framers intended • Courts made some “bizarre rulings” • One decision ruled against a company that had fired an employee for bringing a gun to work on the grounds that carrying the gun resulted from a psychiatric disturbance • A mentally disabled individual who was discharged for threatening to kill coworkers was granted a trial to determine whether she was covered by ADA when she applied for reinstatement • This type of issue has now been settled under the “direct threat” clause of ADA • If an individual is a danger to employees, customers, or himself/herself, the person is not “qualified”

46. SO27: Emerging rule re rude, insubordinate and disruptive behavior If rude, insubordinate, or disruptive behavior can be attributed to a mental disorder, as long as it does not involve violence or serious threats of violence (the direct threat clause of ADA), it is protected by ADA and must be accommodated. This “emerging” rule does appear to be codified now by ADAAA.

47. SO28: How is the emerging rule relevant to selection specialists? • When you conduct a job analysis you cannot assume as has been done in the past that “getting along with others” is a required KSA • You must list “getting along with colleagues, supervisors and/or customers” as an essential function of the job (if, of course, it is) • Only individuals who can perform essential job functions (with or without reasonable accommodation) are covered by ADA • This is also true for attendance, because many court cases have ruled that absence from work is a “reasonable accommodation” (the extent/length of absence has not yet been clarified)

48. SO28: NFE, Attendance; essential job function and reasonable accommodation • All employers consider regular, predictable attendance to be an essential job function, thus most do not list it in a job description • Some cases under the Rehabilitation Act state that attendance is an essential job even if not stated in the job description • But these cases involve absenteeism on a scale that would astonish most private employers • EEOC has claimed that absences are a “reasonable accommodation” • EEOC maintains that absence from the job (due to a disability) is a reasonable accommodation even if that absence extends six to eight months • Most courts have made contradictory rulings, but no cases have reached the Supreme Court

49. SO28: NFE, Attendance, essential job function and reasonable accommodation • Even though regular, predictable attendance may be an essential job function, a particular numerical level of attendance may not be • Accommodation of appointments with a psychologist is considered to be a reasonable accommodation • Hospitalization is considered to be a reasonable accommodation • Leave of absence is considered to be a reasonable accommodation • Attendance policies should be applied in a discretionary way, using # and frequency of absences, and patterns (adjacent to weekends or holidays • Take-home point for selection specialists: You should include coming to work and attendance as essential functions of the job in the job analysis and job descriptions and notify all applicants of its requirements. • Back it up with data from the job analysis, otherwise, you may lose that challenge, even if you list it as an “essential job function.”

50. NFE: A case of essential functions at WMU A professor who had a stroke claimed coverage under ADA and asked for two teaching assistants to teach many of his/her classes and to grade all of the exams because he/she was unable to do so because of his/her disability. Is teaching an essential job of the professor and, if so, was this a reasonable accommodation? (answer not on slide)