Employment Nondiscrimination Update

1. Employment Nondiscrimination Update University of Vermont Legal Issues in Higher Education October 2010 Barbara A. Lee, J.D., Ph.D. Rutgers University and Edwards Angell Palmer & Dodge

2. GINA • Employment provisions became effective November 21,2009 • Amended Title VII and applies to all employers covered by Title VII • Prohibits employers from using genetic information to make employment decisions about applicants or employees

3. GINA • Genetic information is: • The results of genetic tests • Analysis of DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes • Family medical history up to and including a fourth degree relative: • 1st degree relative: employee’s parent or child • 2nd degree relative: employee’s grandparent, sibling, grandchild • 3rd degree relative: employee’s great grandparent, aunt or uncle, niece or nephew, great grandchild • 4th degree relative: employee’s great great grandparent, great aunt or uncle, first cousin, grand-niece or –nephew, or great great grandchild

4. GINA • Exceptions to prohibition: • If employer uses information for genetic monitoring o workplace toxic substances • If employer provides genetic services through wellness program, with employee’s prior consent • For compliance with FMLA certification provisions • Even if an exception applies, genetic information still cannot be used for employment decisions

5. GINA • Genetic information must be kept confidential • Disclosure may be made only to: • Employee • In order to comply with FMLA certification • Court order

6. GINA • Employees must file complaint with EEOC within 180 days of alleged violation • EEOC has 180 days to resolve the complaint • Employee may request right-to-sue letter after 180 days of EEOC filing • Title VII’s damage caps apply to GINA claims; maximum compensatory/punitive damage award is $300,000. Equitable remedies, attorney fees, and back pay are available.

7. Americans With Disabilities Act of 1990 Protects an individual with • Physical or mental disorder that • Substantially limits • One or more major life activities • And cannot be accommodated without causing “undue hardship” to the employer • OR—has a record of a disability • OR—is regarded as disabled • OR—has a relationship with an individual with a disability

8. Disabled individual must be “qualified” with or without reasonable accommodation • In order to be qualified, individual must be able to: • If an employee, perform essential functions of the position • If a student, meet the academic and technical standards of the program or course • E.g., nursing program may require students to be able to hear instructions or to use stethoscope; aviation technology may have vision requirements for students

9. A reasonable accommodation may include: • Making existing facilities used by students or employees readily accessible to and usable by individuals with disabilities • The acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of qualified readers and interpreters, and other similar accommodations for individuals with disabilities.

10. What the College Should Do • Request that the student or employee provide documentation of the disability and the requested accommodations to a central office • Engage in an interactive process with the student or employee • Make the final determination as to what accommodation(s), if any, will be provided • Periodically evaluate whether the accommodation is still necessary or needs to be changed or eliminated

11. Legal Issues Related to Disabled Students • Inadequate or suspect documentation • Demands for accommodations that are unnecessary, expensive, disruptive, or require changes in the academic program • Inconsistent treatment of disabled students when faculty members grant accommodations without consulting the college’s disability services office • Difficulties in clinical settings, on trips, or in other off-campus situations

12. ADA Amendments Act • Signed into law on September 25, 2008 by former president Bush • Became effective January 1, 2009 • Made changes in certain definitions (e.g. “substantially limits” and “major life activities”) but left definition of disability unchanged • Negated several U.S. Supreme Court rulings that made it very difficult for an individual to meet the definition of “disability” in the law

13. Directs that the term “disability” be construed broadly by courts • Will result in far fewer dismissals of lawsuits before trial, as they were prior to the ADAAA, on the basis that the individual was “not disabled” • In 2004, plaintiffs lost 97% of ADA employment discrimination claims that went to trial, often due to the strict and narrow interpretation of “disability”

14. The ADAAA now • States that an impairment that substantially limits one major life activity need not limit othermajor life activities to be a disability • States that individuals who suffer from episodic impairments or impairments that are in remission, such as cancer or epilepsy, will still be protected under the Act so long as the impairment would substantially limit a major life activity when active

15. Mitigating Measures • The ADAAA overturned the “mitigating measures” analysis from the Supreme Court’s Sutton trilogy of cases. • Before passage of the ADAAA, Sutton provided that mitigating measures should be considered when determining whether a student or employee was disabled • Under the ADAAA, mitigating measures are no longer considered in evaluating whether an individual meets the ADA’s definition of disability

16. What does this change mean? • Colleges must ignore mitigating measures (other than vision-correcting eyeglasses or contact lenses) when determining whether an individual has a disability • Such measures could include hearing aids, medications, or learned behavioral modifications to the effects of an impairment (such as compensating for impaired vision in one eye by changes in how the brain perceives sight from the other eye)

17. Major Life Activities • Changes to “major life activities” • The ADA did not define “major life activity” • The ADAAA includes a lengthy list of activities that now constitute a “major life activity” • Eating, working, thinking, concentrating, caring for oneself, performing manual tasks, seeing, hearing, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, and communicating • Major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

18. The ADAAA states that only one major life activity need be limited in order to meet the definition of “disability” • This means that many more students and employees will be considered disabled, and thus protected under the ADA

19. Regarded as Disabled • To be “regarded as” disabled under the ADAAA, an employee or student need only show that he or she has been discriminated against because of an actual or perceived physical or mental impairment • There is no requirement that the impairment actually limit, or be perceived to limit, a major life activity • A regarded-as disability will not support a failure to accommodate claim

20. The impairment cannot be something that is both transitory and minor • Transitory means lasting less than six months • Minor is not defined in the statute, but the legislative history suggests that it refers to trivial impairments such as the common cold, stomach aches, mild seasonal allergies, an infected finger or hangnail

21. Employee ADA Cases • Disorder must substantially limit a major life function • Lindsay v. Penn State Univ.—difficulty walking long distances and lifting heavy luggage not a disability • Mastrolillo v. State of Connecticut—telling administrator that she was under psychiatric care was not sufficient evidence of a disability; no evidence of substantial interference with major life function

22. Accommodations for Faculty • Windhauser v. Board of Supervisors for Louisiana State University—requiring that faculty meetings last 20 minutes or less is not a reasonable accommodation • Professor whose performance was satisfactory when she had a job coach, but whose traumatic brain injury caused occasional angry outbursts, could take case to trial. It was possible that denying her the job coach was unreasonable

23. No Discrimination if • College does not renew contract because faculty member falls asleep in class, has difficulty dealing with students, and is a poor teacher • Plaintiff engaged in sexual harassment and attributed it to ADHD • Plaintiff terminated because his commercial driver’s license expired while on medical leave and his job required the license • Employee had unsatisfactory job performance so was not qualified

24. Possible Discrimination • Chauffer for president of university with bowel disorder should have been allowed to stop for bathroom breaks without being disciplined/terminated for doing so. • College should have allowed security guard with work-related injury to use cane

25. Student ADA Cases • Student disclosed disability after dismissal decision was made—courts typically award summary judgment to the institution. • Student’s behavior in clinical portion of professional program is problematic and/or violates professional standards—even if misconduct is related to the disability, institution may dismiss the student • Halpern v. Wake Forest University Health Sciences—student not qualified to be medical student because of rude and aggressive behavior, despite ADHD

26. Student ADA Cases • Courts typically defer to college’s decision re: type of accommodation that is appropriate. • Strahl v. Trustees of Purdue Univ.—student with Asperger’s syndrome received appropriate accommodations re: foreign language requirement; it was up to the university, not the court, to decide which courses were appropriate • But—if college’s decision strikes the court as arbitrary, it may allow the case to go to trial. • Yount v. Regent University—refusing to give student incomplete when there was no written policy could be discriminatory

27. Retaliation Claims • Retaliation claims have skyrocketed in the last decade • Increased by 46.5 percent between 1997 and 2009 • Retaliation claims were 36 percent of all discrimination claims filed with EEOC in 2009 • Two U.S. Supreme Court decisions have made it easier for plaintiffs to state retaliation claims and to prevail

28. Retaliation Claims • Osher v. University of Maine System—faculty member with back disability claimed that her request for accommodation made department chair resent her and led to tenure denial. She claimed that her request to human resources department that she be accommodated--a request that was granted—led to retaliation by department chair. Court denied summary judgment to university, saying case must be tried.

29. Implications of ADAAA • For dealing with students: • More students will be able to meet the definition of “disability”; more requests for accommodation • Judges more likely to scrutinize academic accommodations and student claims that accommodations were insufficient • Student who did well in the past academically will no longer be disadvantaged by a finding that they have mitigated their impairment • Expect more retaliation complaints

30. Implications of ADAAA • For dealing with students: • Increased need to engage in “interactive process” with students and, possibly, their health care provider • There is NO requirement that you modify program requirements to accommodate a disability if those requirements are significant (e.g., a required internship or practicum, required clinical activities, required trips), but attempts should be made, where possible, to provide accommodations • The college still has the right to require documentation from students

31. Implications of ADAAA • For dealing with employees: • Employer still has the right to require documentation • Employee must be able to perform the essential functions of the position, with or without accommodation (e.g. do you require all faculty to teach?) • Employer is the judge of what is the most appropriate accommodation, as long as it enables employee to perform essential functions • Indefinite leave is not a reasonable accommodation

32. How to Respond to ADAAA—Student Issues • Ask academic programs to review their academic and technical requirements to ensure that they are current and have an academic basis (for example, must students physically be able to use certain equipment, hear well enough to take blood pressure, etc.)? • Make sure that a process is in place for the academic program to consider student requests for exemption from academic requirements (such as student with “math anxiety” asking for waiver of calculus requirement)

33. How to Respond to ADAAA • Ensure that faculty understand that they are not the sole judge of the need for or suitability of an accommodation that is approved by the college’s office of disability services. • Ensure that faculty understand that they are not to make their own accommodations for students without requiring students to go through the college’s process • Train support staff to deal appropriately with student requests for accommodation • Make sure that accommodation requests and decisions are documented

34. How to Respond to ADAAA—Employee Issues • Ensure that all job descriptions include a list of essential functions—including job descriptions for faculty • Ensure that chairs and deans understand the process of considering accommodation requests, asking for assistance, and getting HR or other appropriate office to sign off on accommodations • Require chairs, deans, etc. to document requests for accommodation and what accommodations were provided

35. Have a system of reviewing accommodations periodically to see if they are still needed and/or effective • Do not give chairs and deans access to medical/psychiatric information about employees. Only the accommodation needs of the employee should be disclosed to the chair/dean, etc. • Expect more requests for accommodations and more conflict concerning alleged disabilities, including more litigation

36. What the ADAAA Does NOT Require • Tolerating unprofessional or disruptive conduct by either students or employees • Excusing performance problems that the employee claims are a manifestation of the disability • Agreeing to lengthy, indefinite leaves of absence with no estimated date of return (unless your policy or practice has already allowed this) • Moving another employee out of a position so an employee with a disability can take that position (unless contract or policy requires this)

37. Examples • Sue has been hired as a visiting professor of biology for one year. When she arrives on campus, she tells the department chair that she has a “stress disorder” and that sometimes she simply cannot teach because of the “stress disorder.” She says the problem occurs unexpectedly so she may be able to give only 30 to 60 minutes notice. She suggests that the department provide her with a full-time teaching assistant (most faculty do not have such assistants) who can teach her class when she is unexpectedly unavailable.

38. Harry has taught marketing for fifteen years and is tenured. Over the past two years, several students have complained to the department chair that Harry talks about his personal life, including his sex life, in class, and encourages students to reciprocate. When the chair mentions this to Harry, he replies that he is teaching students how to “market themselves” by giving examples from his own life. He also mentions that he has “disinhibition disorder” which causes him to make “possibly inappropriate comments” from time to time.

39. Clem has returned from active military duty and has provided documentation of PTSD. He is taking a required course in political science. He says that he needs to sit in the back of the room where he can see everyone and requests to be exempted from the required group project on because the topic of the group project, “torture as a moral issue,” is “too upsetting” to him. He also has asked to be relieved of the requirement to read one of the required texts about the political climate of the US during the Vietnam War.

40. Charlene is doing her required internship during the last semester of her undergraduate program in Social Work at an after school youth center. She is having difficulty getting along with her internship supervisor, who believes that Charlene is not strict enough with the children and is immature herself. After Charlene is asked to leave the internship (required for graduation), she discloses that she has ADHD and asks that she not be required to complete an internship in order to graduate, saying that the internship supervisor was “a bully and very unprofessional.”

41. Steve is a third-year student majoring in chemistry. He has a documented anxiety disorder and has been allowed to have his dog in the residence hall as a “comfort animal.” Steve has requested that he be allowed to bring the dog to chemistry lab because the lab is 2 ½ hours long and he doesn’t want to leave the dog alone for a lengthy period of time. He says that the dog is well behaved and that he will pay for any damage (which he says is virtually impossible) that the dog might cause.