Ladies and gentlemen, thank you for standing by. Welcome to the definition of disability conference call. At this time all participants are in listen only mode. Later we will conduct an question and answer session instructions will be given at that time. If you require assistance during the call press star 0. This conference is being recorded. I would like to turn this over to our host, Jennifer.
Good afternoon and welcome. This program is currently being hosted by the Mid-Atlantic, Great Lakes, Great Plains, Southwest and Pacific Disability and Business Technical Assistance Centers. Today''s topic is on the definition of disability. And if you have questions in advance, please feel free to fax them to the Great Lakes DBTAC. The number is 312-413-1856. This session is also currently being real-time captioned on the Great Lakes web site in the ADA forum. You can access the room at www.adagreatlakes.org. We will take questions in the ADA chat room as well. And later in the session we will open that up for on line questions as well. Many of you joined us in July for a session with John Wodatch, following the Supreme Court decisions and much of the discussion that spurred out of that particular session was further looking at the definition of disability, and especially looking at some cases that have evolved since the Supreme Court decisions. Today we are excited to have with us David Fram. David is Director of EEO and ADA Services for the National Employment Law Institute. He serves as a trainer for employers, manufacturers, service providers, colleges and universities, law firms and bar associations, and state and local governments. He performs independent investigations, provides consultation on difficult workplace situations. He is also served as an expert witness during administrative proceedings before EEOC, state and local EEO agencies and federal and state courts. David was formerly a policy attorney with the EEOC and he is also the author of Resolving ADA Workplace Questions, which we will tell you more about that publication at the end of today''s session. David, we are thrilled to have you with us today and to learn from you and hopefully get some more insight into the definition of disability. So I will go ahead and turn that over to you.
Thank you, Jennifer, it''s me that is thrilled to be here to talk to you all about what has really been the interesting legal question of the whole year under the ADA: What is and what isn''t a disability under the law. Over the past year there have been literally hundreds and hundreds of court of appeals cases, the level just below the Supreme Court, focusing in on this issue. Also of course, we have the three Supreme Court cases from June that we will be talking about: Sutton v. United Airlines, Albertson''s v. Kirkingburg and Murphy v. U.S. Now I''m not going to be giving you facts and holdings of each case. Instead what I would like to do is talk about the cases in the context of how any human resource person or attorney, whether it''s plaintiff''s attorney or the government or a management attorney, would actually be analyzing an ADA issue. What are the questions that you would be asking? What order should you be asking those questions? And then, of course, what are the courts doing on each of these issues? The first question that you get to in virtually every ADA case is whether the person has a disability, whether that person is either protected by the law. Which means you have to ask "does a person have an impairment that substantially limits a major life activity?" You don''t need to go through this analysis if the disability is obvious. I mean, if the person is totally blind or the person is totally deaf, you don''t need to be asking these questions to figure out if a person has a disability. But most of the cases that come up under the law, you really do need to go through these questions. Let''s go through the questions starting off with the person has an impairment; then moving on to whether that impairment affects a major life activity; and then asking whether the impairment substantially limits a major life activity. Again in a context of these issues, I''m going to be talking about the Supreme Court cases and court of appeal cases. The first issue is whether there is an impairment. Over the past year there have been very few cases really dealing with the issue of whether there is an impairment. In the past there had been loads of cases dealing with whether there is an impairment. Remember impairment is any disorder. It''s a very broad definition: any kind of disorder, mental or physical is going to be an impairment. The reason that there haven''t been many cases over the past year on this issue is that there really haven''t been many of the marginal cases that there were in earlier years. For example in earlier years, people used to bring cases saying "I''m stressed out, therefore I''m covered under the ADA." The courts were throwing out those cases. There was a case where a guy came into court, Duda v. Board of Education of Franklin Park Public School District No. 84 (133 F. 3 d 1054, 7th Cir. 1998), and said, "Judge I''m irritable." The judge said "So am I - get out." Irritability is not an impairment under the law. A case called Watson v. City of Miami (177 F. 3 d 932, 11th Cir. 1999) where the person was saying "I''m being regarded as disgruntel and difficult." The court said those things are not even impairments. The first question that anybody needs to get to in analyzing an ADA issue is whether there is an impairment. Now it''s important to remember that there are lots of other things that are not impairments. Pregnancy, although you could have an impairment caused by the pregnancy, is not an impairment. Lack of education is not an impairment. Personal characteristics are not impairments. Homosexuality, bisexuality are not impairments. It''s not that any of these things are excluded from the law, it''s not they are impairments to begin with. The first thing you have to have is an impairment. One thing that''s important to remember when talking about this first issue is that it doesn''t matter where the impairment came from. The origin is irrelevant. One of the things that when a HR person is training in-house, which of course you need to do in-house training on this, when you are training a union you need to explain to them that it doesn''t matter whether it was on the job or off the job injury, if it''s an impairmen-t''s impairment. Once we know there is an impairment the next question is "whether that impairment is affecting some major life activity." The major life activities according to the EEOC and the courts really are the big ones. Seeing, speaking, hearing, walking. But over the years EEOC and courts have added to this list of major life activities. For example, over the years the EEOC has added things like sleeping, eating, controlling one''s bowels. They have taken that position for example in a court case that controlling your bowels is a major life activity. And generally, interestingly, courts have agreed with virtually everything that EEOC has said are major life activities. In fact, courts have added to the list of major life activities. For example, last year the first Supreme Court case on the ADA called Bragdon v. Abbott, dealt with an individual who had asymptomatic HIV. It was not an employment case, but certainly affects a disability for employment as well as the other ADA titles. Sidney Abbott had asymptotic HIV. Her dentist, Randon Bragdon, refused to treat her in his office. What the Supreme Court had to deal with was does she have a disability if she has asymptomatic HIV. So first they said is it an impairment? Surprisingly some courts had said it''s not impairment up to this point. Of course the Supreme Court said it is. But the next question they got to was "well, if it is an impairment, what major life activity is it affecting?" And that is when the Supreme Court said "reproduction may be a major life activity." EEOC had not talked about reproduction up to that point. Most courts had not talked about reproduction. But the Supreme Court said reproduction is a major life activity. So they said that "she, having asymptomatic HIV was substantially limited in major life activity of reproduction." Interestingly, when they said that, they also talked about sexual dynamics surrounding reproduction and said "sexual dynamics surrounding reproduction are essential to life itself." Which certainly suggested to some people that just plain sex may be a major life activity. Well, interestingly, about a month ago one of the courts of appeals in a case called McAlindin v. County of San Diego (1999 U.S. App.LEXIS 22352, 9th Cir. 1999), actually dealt with that issue of just plain sex. They said that "sex itself is a major life activity." The Court in rationalizing why that is true said of course "reproduction is a major life activity" and they went on to say that "the number of people who engage in sex is plainly larger than the number of people who choose to reproduce." So they concluded that sex was a major life activity. Now, one thing that is important to remember is that we are not yet talking about the job. Lots of people hear cases like this and say "why are we talking about sex when we are talking about a federal EEO law?" The reason we are talking about sex right now is that we are only talking about whether the person has a disability-which means a substantial limitation of any major life activity. Now of course there are going to have to be some connections to the job later on in terms of what the person needs on the job. For example, the person who is substantially limited in sex might say "I need leave to get treatment for my sexual disorder." So the leave is the connection to the job. But in any case, the Supreme Court said "reproduction," this McAlindin court said "sex." One of the cases from this summer, the Sutton v. United Airlines case, also added to the list of major life activities. This is something that very few people are paying attention to. The Sutton case you might remember dealt with two sisters who were applying to be pilots at United Airlines. They wore glasses and with their glasses they could see fine. Without their glasses they couldn''t see so well. United rejected them from the job because they didn''t meet United''s uncorrected vision standard. So the question that the Supreme Court dealt with was not even whether the United uncorrected vision standard was discriminatory. The question the Supreme Court dealt with was "do they even have a disability under the law if when they use their glasses they can see just fine?" We are going to talk about that issue in just a minute. The reason I''m raising it here, is that in the Supreme Court decision they talk about someone who is substantially limited in walking or running as having a disability. Now, what they did in that sentence is they added, yet again, to the list of major life activities. They added running to the list. When you say "if somebody is substantially limited in running, they have a disability," what you mean is that running is a major life activity. Now, was running an issue in the Sutton case? No. Has anybody ever argued that running is a major life activity? Not that I''m aware of. But the Supreme Court said it was in this decision. I think they inadvertently said it. I think if they had thought more about it they probably would not have written that. But that''s now in the established Supreme Court decision. So someone can make a very good arguments that running is a major life activity. And frankly, this opens up the door to argue lots of other things are major life activities. For example, if running is a major life activity, is exercise a major life activity? Is driving a major life activity? Is commuting a major life activity? These are questions that I think the Sutton case actually opens up. Other things that courts have said are major life activities: Reading was a major life activity in a case called Bartlett v New York State Board of Law Examiners (2d Cir. 1998). Now, just as an example of why that is important - if you had an employee who came in and said "I''m having trouble reading." The first question one would ask "Is it an impairment that''s causing the inability to read?" It might or might not be. It might be dyslexia, a vision impairment or lack of education. If it''s lack of education, it''s not a disability. If it''s dyslexia or vision impairment, the next question is whether reading is a major life activity. The Bartlett case says it is, therefore the person may well have a disability. So courts have added to the list of major activities which is why when you are analyzing an issue you really need to know what it is this person can and can''t do in life. In terms of whether-what they can''t do is or is not a major life activity. So now we have looked at the cases dealing with impairment. We have looked at the cases as to what is a major life activity. The next issue and the toughest issue, and frankly the issue that most of the Supreme Court cases dealt with is this third issue, whether there is a substantial limitation of the major life activity. So what does that mean? What it means is the person can''t do the activity at all. Well that''s easy, isn''t it? But it also means that the person is significantly restricted compared to the average person in doing the activity. For example, a case called Vonderheide v. U.S. Post Office (1998 U.S. App. LEXIS 16885. 6th Cir 1998)(unpublished), the guy said "I can''t work more than 40 hour work weeks because of my organic brain syndrome." The Court said "the average person doesn''t work more than 40 hour work weeks so you are not substantially limited compared to the average person." It is important to know what it is the person can and cannot do and how this compares to the average person''s ability to do that activity. Courts are routinely saying we are not going to assume anything. They want a plaintiff to tell them in English exactly what the person can and cannot do. Some of the courts are saying "we want you to tell us not only what you can and cannot do, but also what the average person can and cannot do." For example, a case called Pack v. K-Mart (166 F. 3 d 1300. 10th Cir. 1999), the woman said "my depression substantially limits my major life activity of sleeping." The Court said "you have not given us evidence as to what the average person can and cannot do." Now courts are split on how much evidence the plaintiff has to present as to the average person''s abilities. Courts are split on how much evidence you have to present. But to be safe, what a plaintiff or what the EEOC should do in court is be prepared to show not only this person''s ability, but also the average person''s ability. In another case, Gibbs v. Saint Anthony Hospital (1997 U.S. App. LEXIS 2362. 10th Cir.)(unpublished) the woman said "I have a substantial limitation in lifting." Again the Court said "you have not presented evidence as to the average person''s ability to lift." There have been loads of cases dealing with people who say "I have such and such percentage of restriction." For example a case called Barzen v. Carlson Company (1999 U.S. App. LEXIS 3605. 8th Cir 1999)(unpublished), "I had a 10 percent permanent partial disability." The court said "we don''t know what that means. We cannot tell whether you are substantially limited in a major life activity. These percentages mean nothing. We need more information." So, the first sub-issue in terms of whether there is substantial limitation is "what exactly can you do, what can you NOT do and how does that compare to the average person?" The second sub-issue is "how long is this condition going to last?" Short term conditions generally are not covered. Long term conditions might be covered if they substantially limit major life activities. That is why, for example, the flu is not an impairment. Yes, it might affect a major life activity but it does not substantially limit the life activity because it is only a short-term condition. So right now listeners might be saying to themselves "what does it mean to be short term versus long term?" And I have to tell you, courts have been all over the place in terms of what short term means, what long term means. For example, a case called EEOC v. Joslyn Manufacturing (5 AD Cases 1220. N.D. Ill 1996) said "six weeks might be long term." Other cases have said "a year is only short term." So courts have been all over the place. What EEOC says on this, and I think is good advice to follow, is "several months. If something lasts at least several months it''s no longer short term." Now as far as EEOC has not given any number of days, but I use a 90-day rule of thumb. If something lasts for at least 90 days then I would say that''s no longer short term. Of course nothing that I''m saying in this conversation today is legal advice. But I believe that human resource people when making decisions need some standard to go with. Yes, it is true that ADA is very much a case-by-case statute. But you need some standard for your company to be using to apply to the actual facts you have. And whether something is short or long term, that standard shouldn''t be varying by the facts at issue. So I use a 90-day rule of thumb. I know some people use six months. My point is you should have some type of rule of thumb for your HR people to be using. So, when we are looking at whether something substantially limits, the first question asked is "what can the person do, what can the person not do." Next question is "how long is the condition going to last" and the third question is "should we be looking at this person''s condition as medicated or as unmedicated." Should we be looking at this person''s condition with the use of a prosthetic device or without. This is the issue that the three Supreme Court cases from this summer really dealt with. How should we be looking at this person''s condition? Now just a brief bit of history. Up to this point, I''d say 90 percent of the courts agreed with the EEOC and the Department of Justice in saying that "they should look at the person''s condition as unmedicated or without the use of a prosthetic device or without behavioral modification in figuring out whether the condition was substantially limiting." The reason they said to do it this way was, they said "we don''t want to discourage people from taking their medication." We don''t want to say to people, "if you take your medication, if you take care of yourself, you are not going to be covered under this EEO law." "If you don''t take care of yourself and you are in really bad shape because of that, then you will be covered." We didn''t want to do that. This summer, the Supreme Court changed the rules. Again, the Sutton case dealt with the two sisters who wore glasses. The real issue in that case, "should we be looking at these sisters'' ability to see with or without their glasses?" Most people that I know of, said "glasses are different from other types of mitigating measures." But unfortunately the EEOC filed a brief in that case on behalf of the Sutton sisters saying that "glasses are no different and you should look at the person without glasses." The Supreme Court agreed with them in saying "glasses are no different." But disagreed in terms of whether they should look at the person without glasses. The Supreme Court said glasses are no different from any type of mitigating measure or medication and from now on they want courts to look at the person as controlled with their medication, as controlled with their mitigating measure if the person is using a mitigating measure or is using the medication. So, the Sutton v. United Airlines case, the Murphy v. U.S.case, say "let''s look at the person''s condition as controlled, as corrected, with the medication or mitigating measure." What this means is that if somebody is taking depression medication and can function just fine with the depression medication, is not substantially limited because they are taking their medication that person is no longer covered under the current actual disability category. Somebody with insulin dependent diabetes, if that person when taking insulin functions just fine and is not substantially limited in any major life activity when taking insulin they may not be covered under the actual current disability category. Of course somebody with insulin dependent diabetes might still be substantially limited in some other major life activity like eating. But if they are not, because they take their insulin, then they may not be covered under the current actual disability category. So what these cases do is really limit who it is that is covered under the actual disability category. Now one question that comes up here is "are these people now out of luck?" Is the person who takes his medication for depression but may still need to go to therapy, is that person no longer covered under the ADA and therefore no longer even entitled to go to therapy treatments? Is the person who takes insulin for his insulin dependent diabetes and can function just fine with his insulin, is he no longer entitled as a matter of federal law to bring in a refrigerator to store insulin? Does it mean these people are out of luck? I think it does not mean these people are out of luck. The reason is, what the Supreme Court said to do of course is look at this person''s condition as controlled with the medication or if the person is not taking medication look at the person''s condition without the use of medication. It''s important to remember that the ADA covers not only people who actually have disabilities, but also people who have a record of a disability and somebody who is regarded as having a disability. Chances are very, very good that somebody who is currently taking a mitigating measure to control their condition at some time in the past was not taking that mitigating measure or using that medication. That person can very well come into the protection of the law under the record of category from now on. For example, the person who takes his depression medication and who is not substantially limited in anything because he is taking his medicatio-f you look back at this person''s record, at this person''s history, the person may well have a history of being substantially limited during a time when he was not yet on his depression medication. Same thing for the person with insulin dependent diabetes, same thing for a person who may wear a hearing aid. There probably was a time history when that person was not using the mitigating measure when the person was substantially limited. So I don''t think these people are out of luck. I think they still can get protection under the law. It''s just going to mean bringing the lawsuit under a different category. Instead of bringing it under the actual disability category, it''s going to mean bringing it under the record of category. Now this of course raises another issue that''s a really important issue for human resource people, "do you have to give a reasonable accommodation in a record of case?" So far there is very little out there in terms of whether you have to give a reasonable accommodation in a "record of" case. There are two courts of appeals that have looked at the issue. One says you get it, you do get a reasonable accommodation, one court says you probably do not get a reasonable accommodation in a record of case. The EEOC came out with a friend of the court brief in a case back in March that says you do get reasonable accommodation in a record of case. So right now a safe approach for a human resource person is to give a reasonable accommodation in a record of case, if that person has some ongoing limitation that flows from the disability. For example, that person with depression who needs to go to therapy. That would be an ongoing limitation resulting from this record of a disability. Or the same thing for somebody who needs to bring in a refrigerator to store insulin. It''s also important to remember that the Sutton case says "in addition to looking at the person''s condition as controlled with medication," they also say that "in some cases the medication or the mitigating measure itself might be the reason the person is substantially limited in a major life activity." So the Sutton, Murphy and Albertson''s cases all say "look at the person as they are-in terms of whether they actually have a disability, including looking at what that person''s medication itself is doing to the person''s ability to do major life activities." One important question that comes up here, "is the mutibility of the condition relevant-the fact that the person could take medication, could control this condition, is that relevant?" My reading of Sutton, Murphy and Albertson''s is that it''s irrelevant. It doesn''t matter that the person could go get treatment or could take medication. Because what the Sutton case, in particular, says is that "we are going to look at the person''s condition as it is, not what it might, could, or would be. Instead we are going to look at what that person''s condition actually is." On a whole other point, the Sutton case talks about the major life activity of working. We have talked about a whole bunch of major life activities including speaking, seeing, and sex, as a major life activity. Working is just one of the list. The Sutton case questions whether working is even a major life activity. Specifically it says we don''t necessarily think that the EEOC even had the right to issue the regulations saying that working is a major life activity. Now, anybody who read the Abbott case last year might really be wondering why the Supreme Court said that, especially in light of the fact that in Abbott the Supreme Court relies very heavily on the EEOC''s regulations. As well as on its compliance manual section on the definition of disability. This year they questioned whether the EEOC even had the right to issue those regulations and they questioned whether working is a major life activity. In fact what they are doing is inviting a lawsuit to come up to them so they can ultimately decide that issue. Cases that have come out since Sutton, EEOC v. RJ Gallagher, say "yes, we understand the Supreme Court is questioning whether working is a major life activity-but really is there any doubt that it is?" The case was in one of the most conservative circuits in the country saying that working is a major life activity. That is a question, whether working is or is not a major live activity? What the Supreme Court says they are going to do in working cases, effectively eliminates it as an useful major life activity for people to argue. Because what they say they are going to ask is: 1. Is this person unable to do a class or a broad range of jobs? Which is the same thing that EEOC and courts have been saying all alon-ou have to be limited in more than just your particular job, you have to be limited in a job or broad range of jobs. 2. Is the person nonetheless able to do other jobs? And that is the real killer for a lot of plaintiffs. For example, in both Murphy and Sutton, the Supreme Court says that these people could do lots of other jobs despite the fact or even if there were a class of broad range of jobs. In those cases they concluded there wasn''t a class or broad range of jobs to begin with. For example, in Sutton it was the women couldn''t be global airline pilots. In Murphy, the guy couldn''t be a mechanic when the mechanic job required a commercial driver''s license. But in any case, what the Court says they are going to do is even if there is a class or broad range they are still going to look at whether there are lots of other things. Which really effectively means that they are going to look at whether the person is precluded from working in general. There had been some courts that said that even over the years, but what the Supreme Court really does in these cases says "that''s what we are going to look at from now on." So, to show that you are precluded from working in general, if you are effectively able to show that, it is going to be very difficult to then show that you are qualified to do the job. Which I think really means that working is almost an useless major life activity for people to argue in the future. But again, there are two things that someone would have to argue after Sutton: 1. Unable to do a class or broad range of jobs. 2. There are really not many other things I can do. Those are the big issues that have come up from Sutton, Murphy, Albertson''s, and some of the other cases. If I could just spend a couple of short minutes talking about how I think this affects certain types of conditions like AIDS. Do I think these cases affect AIDS at all? No. Do I think they affect HIV at all? No. The reason I don''t think these cases affect asymptomatic HIV-remember the major life activity that was at issue when we were talking about it was reproduction-there is still no medication or prosthetic device that somebody can use in order to safely reproduce. So I don''t think that Sutton, Murphy and Albertson''s affect AIDS. I don''t think they affect HIV. I do think they affect diabetes. Remember in the past, courts have almost uniformly said "insulin dependent diabetes is always covered as an actual disability category because we look at the person without the insulin." From now on, since courts are going to look at the person with the use of insulin, I think far fewer insulin dependent diabetics will be covered under the actual disability category. I think they will now seek protection under the record of category or the regarded as category. Other issues, obesity, is that covered? Being a little over weight, being unable to meet a weight standard is not an impairment, so it''s not covered. For example, Andrews v. Ohio (104 F.3d 803. 6th Cir. 1997) and Francis v. City of Meriden (129 F.3d 281. 2d Cir. 1997) said "a person couldn''t meet a particular weight standard, the person was not covered." But if the person had severe obesity the person would have an impairment and the question would be whether it affects a major life activity. Drug addicts? Alcoholics? Remember to be covered you still have to be a recovering drug addict. Alcoholics the Courts continue to say, do have a disability. There are some courts that say alcoholism may not always be a disability. In cases like Birch v. Coca Cola, Wallen v. Minnesota Department of Corrections, say "we are going to look at alcoholism case by case." Pregnancy, we said is not an impairment. A pregnancy-related impairment would be an impairment if the question could be answered to it affecting major life activity, most importantly, whether it''s a long-term condition. Carpal tunnel, back impairments, are going to be case by case issues. First question "is there truly an impairment?" Is the employer entitled to documentation of it if the person is asking for reasonable accommodation. The answer is "of course, if it is not an obvious disability." But does it substantially limit a person''s major life activity? That''s going to be the real key in carpal tunnel and back impairment cases. What the Supreme Court cases this summer tell us is we need to look at this person''s condition as medicated or with a corrective device if that person is using a corrective device. That pretty well summarizes the existing law. I could go on and on, for hours to talk about this. Why don''t we open it up for questions.
Great, David. Our first question is from Equip for Equality. David if you could go back to those two cases that you had given examples of using the record of impairment. Can you actually give us the names of those cases?
If you ask me the next question I''m going to look for those while we are talking.
Okay. Our next question comes from Southwest DBTAC, go ahead.
This is Julie. My question is in terms of the record of impairment. To take that to court in an employment situation, wouldn''t you need to show that the discrimination somehow is related to the record of the impairment? The leap has to be made, for instance I was discriminated against because I have a record of, not because I''m presently.
Well, there are two different types-there are lots of different types of discrimination claims. If the person is saying "you are not hiring me or firing me because of a record of impairment," they have to show there was knowledge of the record of the impairment. But if the person is asking for a reasonable accommodation, "I need to leave because I need to go to therapy." Then I think it will be the employer''s burden to get into whether this person had a disability. Remember, what triggers the interactive process is the person telling you they need some workplace modification because of some condition that''s a disability. Now if the employer chooses to ignore the record of a disability, just focuses on the actual disability, and doesn''t get into whether this person may have had some history of a disability, I think they do that at their own peril. Because if EEOC investigation find there was a record of disability and the person asks for accommodation to the ongoing limitations, I would see they would find liability. I could also see a court doing it.
Let me ask you though in the Sutton case the Supreme Court rejected the record of impairment or even regarded as.
In the Sutton case being the eyeglasses case. I don''t think it was effectively argued. I mean, I think the Sutton sisters were saying they actually had disabilities-because look at their condition as it was. I mean, as it would be without the glasses. So that was really the major issue in that case. By the way, I do have the two cases on the record of. The case saying that you do not get reasonable accommodation in a record of case is Gilday v. Mecosta County (124 F.3d 760. 6th Cir. Amended 7AD Cases 1268. 6th Cir. 1997). The case saying they are not sure, but looks like you do get reasonable accommodation is Davidson v. Midelfort Clinic. Then the EEOC''s position came out on March 24, 1999. It was a brief they filed in a case called Bizelli v Parker Amchem and Henkel Corp. (EEOC Amicus Curiae Brief, 8th Cir, 3/24/99), and their position is on page 18 of that brief. So right now I think it''s pretty risky for an employer to not give an accommodation in a record of case.
David I have another faxed question here and it seems that there might be some people that need clarification on what the EEOC regulation and DOJ regulation previously said about mitigating measures-at what point you look at the mitigating measures? And how it would be that the Supreme Court would interpret or ignoring the EEOC regulations.
Well, the EEOC said that you should look at whether somebody''s condition is substantially limiting without the person''s use of mitigating measures or medication. And the reason they said to do this is because they wouldn''t want to discourage people from taking medication. So they said look at the person''s depression as if he or she were not using depression medication. They said look at the person''s high blood pressure and whether it would be substantially limiting as if that person were not using the high blood pressure medication. And the fact is most courts, I''d say at least 90 percent of the courts, agreed. Up until this summer when the Supreme Court decided the issue otherwise. That was the issue that the Supreme Court was deciding. One of the issues they were deciding in these cases: do we agree with EEOC that you should look at the person''s condition as if. And the Supreme Court said "no, we are not going to look at somebody''s hypothetical condition, we are going to look at it as it is if the person is taking medication, using some behavioral modification." For example in one of the Supreme Court cases involving where a person could only see out of one eye, the question was is he substantially limited in seeing. He had certain behavioral medications where he, as I recall, shifted his head frequently so he didn''t have depth perception problems or peripheral vision problems. EEOC''s position "look at him without the behavioral modification." The Supreme Court said "no, if he is modifying behavior and can see okay with this modification that''s how we are going to look at him." So this person wouldn''t be covered under the actual disability category because he is not actually substantially limited in a major life activity. But again in lots of these cases the people are going to be covered under the record of.
I think getting back to, if I can recall the Supreme Court decision, them going back to EEOC to say that they did not actually have authority to define definition of disability
Right. Yes. That''s right. The Supreme Court says that "we don''t even think that the EEOC necessarily had the authority to issue these regulations on the definition of disability because in the statute no particular agency was given the power to define disability." Now, again, so what they do is, they say "we are not sure that these regulations had any force and effect at all." But what''s so interesting about that is the case just last year, the Bragdon case, said almost exactly the opposite. I mean they relied almost exclusively on the regulations which led lots of people to lots of confusion, " how could you say that in Bragdon and say the opposite in Sutton?" But that''s the Supreme Court''s current position that those regulations might have no force and effect on the definition of disability.
Great, thanks David.
This is from Chicago office, Illinois Department of Human Rights. I had a question, I have heard a plaintiff attorney that gave a summary of these cases and indicated that they thought maybe one of the weaknesses of the case was that they didn''t say the functional limitation was seeing. And might there have been a different outcome because they claim working was their substantial limitation? If they had claimed seeing, might there have been another outcome? Do you have an opinion?
I don''t think in these cases it would have made a difference, whether they were saying seeing or working. Because the Supreme Court said "we are going to look at the person as corrected with eyeglasses." So I don''t think that it would have made any difference at all. I think the problem for plaintiffs was that the Supreme Court took these cases. I mean, you know, come on. How many people have all that much sympathy for somebody who wears eyeglasses? Is that person really supposed to be protected under the federal civil rights law on the basis of disability? I think it was the facts of this particular case. And frankly I think that the EEOC made a mistake in arguing that glasses are like every other mitigating measure, that glasses are like insulin. Because really what wound up happening is it was an all or nothing approach. And they got nothing. I think it would have been more prudent to say that glasses are somehow different from insulin. Probably because so many people wear glasses and remember, substantial limitation looks at the person''s condition compared to the average person. So you could have had an argument that the average person doesn''t have perfect vision, therefore glasses are different from insulin or hearing aids or a prosthetic limb.
We had a second question if we could. I would like to ask the question if a person is documented a case of epilepsy, and the doctor is indicating that they should not drive more than 15 miles at a time, but yet the job requires substantial driving, are we required to provide them reasonable accommodations about having them find a job that doesn''t have driving as a central job function?
Okay. Well that question raises a whole bunch of issues. It gives us a chance to sort of focus on several things. The first part of that question, in light of what we have been talking about today should be, does that person even have a disability? Because remember, ADA doesn''t list any conditions as being per se disabilities or being-actually there are some that are excluded, most of the sort of sexual identity disorders are excluded. But it doesn''t list things that are disabilities. So, the first question I would have in that case is "does that person even have a disability?" If the only restriction is that I can''t drive more than 15 miles, Is that a substantial limitation of a major life activity? So, the first thing I would want to know is more about whether there is some other major life activity that is affected and that is substantially limited by the epilepsy. For example, some people, epilepsy results in having gran mal seizures where they are unconscious. Some people get a blank stare for a couple of seconds. Some people get a gran mal seizure two or three times a day. Other people get it once a year. It is going to depend on this person''s condition and how bad the epilepsy is. Having said that, once you determine the person has a disability, even as medicated, the next question is "is the person qualified for the job?" You said the job involves extensive driving and this person can''t drive. What I would want to start off with is, "what really are the functions of this job?" and then "what are the essential functions of the job?" Can you tell me anything more about what it is this person is doing on this job? Is the person a driver? Is the person a salesperson?
The person is a social worker who has been going out to homes, visiting clients, taking babies to places. He is saying he can''t do because of his epilepsy.
What I think you should start off with is-again, remember this is not legal advice. But I would start off by looking at whether driving is really even a function of that job. Because the way you were just describing it, it sounds like you are not paying the person to drive. You are paying the person to get from point A to point B to point C. The reason I point that out, there are certain jobs where you really are paying somebody to drive. I mean a bus driver, you are paying a person to drive. This person-you are paying him or her to do something. When he gets or she gets to point A or B or point C. So, driving is probably not an essential part of that job. Which means you might have to figure out some other way of the person getting from point A to point B to point C if he or she''s disability causes the inability to get from point A to B to C. So it might be letting the person take public transportation or letting the person take a cab or something else that doesn''t cause an undue hardship. Because it doesn''t sound like driving was an essential function.
Thanks, David.
Yes, this is from the Statewide Coalition. I''d like to present a scenario of someone from Delaware. I would like to present a scenario of a person who was deaf with a hearing loss, had a hearing loss and was severely to profoundly deaf and had an implant put in. So essentially the person heard very, very well and was able to do the job fine. But then developed an infection and was no longer able to do a particular job. Then if that were the case, would the employer then be able to disqualify them if their hearing was an essential function on the job? So you have a situation where a person was accommodated and then again the accommodation didn''t work but the person was terminated on the basis of whether the cochlear implant was not working.
I would start off by pointing out, when you say the person was accommodated, are you saying through the implant they were accommodated?
Yes, in other words they had the surgery and the surgery was successful but then later on they developed an infection and could no longer have the cochlear implant and therefore the job changed.
To begin with remember the person getting the implant is not an accommodation. The accommodation-to sort of be technically correct, the accommodation the employer gave was probably giving the person leave to go get the cochlear implant. I point that because I''m frequently asked whether we can require this person to get treatment and call that accommodation. The answer is no. The implant is not accommodation, that''s just how this person chose to deal with his or her condition. So now the question is if the person can''t do the job. And this, the analysis would be the same as we just went through in the prior question. I would want to know, assuming that this person does have a disability and it might be the hearing loss that''s the disability, or it might be the infection that was caused by the cochlear implant, but assuming that there is a disability, I would want to know what is the person''s job? What are the functions of that job, and what are the essential functions? And, you know, the hair got raised on the back of my neck when you said hearing is an essential function of that person''s job. There are not a lot of jobs where hearing is really the essential function. There are some. But there are not a lot. If someone is a relay operator, then yes hearing may be an essential function. What does this person do?
Classroom teacher.
You know what, there are lots of deaf teachers. The teacher may not have to hear as an essential function of the job. There could well be certain types of teachers where the person really does have to hear. If the person reads lips he or she might be just as good. I would call it communicating is the essential function.
A lot of deaf teachers teach in schools for the deaf but not in hearing schools. In this case it was a teacher who taught a classroom of children who heard.
I have actually heard of teachers who were hard of hearing who have taught in schools. It is not as common, that''s right. In any case I would change around the function of the job from hearing to communicating. But then assuming that we are talking communicating as the essential function and assuming this person can''t do it without some accommodation-what you need to focus on, is there some other way this person could do the communicating function like through an interpreter. Or does that cause an undue hardship? Now of course you have the right to focus on performance. But before you would fire this person or reassign her, which is of course what you should look at, whether she can be reassigned before you terminate her employment, I would look at with whether there is some accommodation so she could stay in the classroom with the kids.
And in this case this person never had signed. So when she got the implant and then lost the hearing she was not able. She never knew ASL, so therefore they needed to either learn it or have an interpreter or find some other way
How did she communicate before the implant?
Basically by writing. Having people write things down. And some limited lip reading.
And was she a teacher before that?
Yes.
Why couldn''t she do that again?
Well, before this person was a tutor, then when she got the implant she went back to classroom teaching and then subsequently lost her hearing.
Because of the infection.
I see. Well, just to kind of finish up. If you have determined that this person simply can''t do the communication necessary, what I would do before you make that determination is I would sit down with that person. I would be sure to call the Job Accommodation Network. I would be sure to call everybody you can think of who might be able to come up with some ideas and document all the things you are doing. And if you can''t come up with something, I''d go back to the person again, and say you know we haven''t been able to come up with anything. Do you have any other ideas? In other words, really effectively engage in this interactive process before you make that determination that the person can''t do the job. And then I would definitely - because courts are saying to do this - I would look to see if if person could be reassigned to something else, including going back to being a tutor
We have time for one more question on line.
This is Julie again. Let me just ask you: When I go out and talk to people, a lot of this seems very circular to them. In other words like in the Murphy case of the high blood pressure. And I know that there were federal regulations that complicated the issues there. But in terms of he couldn''t stay on the job because of his high blood pressure because of federal regulations not allowing that. So he was let go because of his high blood pressure but then because he mitigated his blood pressure he was not considered under the definition of ADA as disabled. And so the circular thought there is very confusing to most people who don''t study these cases, who are just trying to understand what their rights may or may not be. Is it that you approach it in that he should have argued it as being a record of and then he could have at least gotten under the definition and could have at least argued his case under the ADA? How do I go out and help people get off this merry-go-round?
Absolutely. What you just said is exactly what my answer would be. That the only way to get off the merry-go-round is to argue some other theory like record of. What you are saying is exactly what disability rights advocates said when the cases first came out. They said "wait a second if somebody takes care of the condition well enough so they can do major life activities and can work, that means the person can also be discriminated against." You know what, under the actual disability category that''s correct. But, that''s why in the future EEOC and plaintiffs'' attorneys have to argue these cases as record of cases-what you are discriminating against me because I have a record of a condition that you want to accommodate, if accommodation is even the issue. So it''s got to be brought under the record of or the regarded as category. But the reason record of is so much better than regarded as, is: 1. It''s much easier to prove because you have some record to point to. And 2. most courts are saying that you don''t get accommodation in regarded as cases. But you do, they are split on whether you get in record of cases. So record of is definitely a better category to argue
It''s a real back door kinds of entry, isn''t it?
Absolutely.
Thanks. David I will throw it back to you in just a second if you have a brief closing comment. I know there were a number of people out there that didn''t get to ask their questions. So I would definitely encourage you if you have specific scenarios that you would like to work out, to call your regional Disability and Business Technical Assistance Center. That number is 800-949-4232. If you have more questions on the definition of disability. And David, if you have any other last closing thoughts for us.
I guess my closing thought would be don''t get confused by all of these cases. Instead, use these cases, put them in the context of the issues and the questions that you are asking. Be disciplined, go step by step. Starting off with whether there is a disability. Start off with impairment, then ask is it a major life activity, then ask if there is a substantial limitation. That''s where the Supreme Court cases fit in. Next, ask whether the person is qualified. And you saw a couple of questions dealt with this. Does the person have the background, the skills, next what are the job functions, which of those are essential functions and can this person with a disability do those functions either without accommodation or with some accommodation and that''s where you get into the interactive process. What do we have to provide, what can we provide to help this person do the essential functions.
Great, thanks David. I''d like to remind people that David''s book is also available through the National Employment Law Institute. The name of the book is called "Resolving ADA Workplace Questions." You can order that from (303)861-5600. David, I would really like to thank you for joining us today. You have brought us a wealth of information. We would like to thank you for your time here today.
Thank you, Jennifer.
We hope to you all back next month. On behalf of the Mid-Atlantic, Great Lakes, Great Plains, Southwest and Pacific Disability and Business technical assistance centers, I would like to thank you all for joining us for today''s call.