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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.

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Overview of Disability Rights Laws

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  1. 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

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

  3. 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

  4. 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

  5. What Does the FHA Cover? • Housing discrimination

  6. 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

  7. 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?

  8. 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)

  9. 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

  10. 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).

  11. 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.

  12. 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).

  13. 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).

  14. 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).

  15. 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).

  16. 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).

  17. 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).

  18. 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).

  19. 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).

  20. 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).

  21. 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.”

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

  23. 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.”

  24. 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.”

  25. 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 …”

  26. 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 …”

  27. 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 …”

  28. 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

  29. 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

  30. “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

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

  32. 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

  33. 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

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

  35. 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

  36. 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)

  37. 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.”)

  38. 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)

  39. 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

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

  41. 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 ?

  42. 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

  43. 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

  44. 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)

  45. 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

  46. 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)

  47. 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”)

  48. 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

  49. 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)

  50. 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)

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