Good morning and afternoon to everyone depending on where you are joining us from, welcome to the legal Webinar series. My name is Celestine Willis and I will be serving as the moderator for this session. This program is a collaborative of the National Network of Disability and Business Technical Assistance Centers, also known as the DBTAC-Regional ADA Centers. The legal Webinar series is offered six times per year and covers a variety of topics related to employment and legal concepts under the ADA. Today''s session is titled Employer Defenses Under the ADA. And we are privileged to be joined by our speakers Barry Taylor and Alan Goldstein from Equip for Equality, the Protection and Advocacy Agency for the state of Illinois. We will introduce them fully shortly. Individuals who are joining us today from across the country will be able to hear the presenters and submit questions using the public chat area. This session is being recorded, and you will be archived on the www.ada-audio.org website within ten business days following this session. We are pleased to point out that the webinar system has been enhanced, and individuals are able to link to the real-time captioning directly from the webinar system. I direct your attention to the lower right-hand corner of your viewing area where you will see the international symbol for captioning. If you click on the icon, you will open up a dialogue box where captioning can be viewed. The window can be resized and moved anywhere on your screen. We hope that this will enhance the webinar experience for users. Our speakers will provide us with some valuable information today and will provide an opportunity for everyone to ask questions. As a reminder, questions should be submitted through the public chat area. You can submit them anytime during this session, and we will track them and make sure they are addressed when the Q and A portion is announced. Depending on the number of questions, we may not be able to address all of your issues or concerns today. And if that''s the case, we encourage you to follow-up with questions to your regional ADA Center at 800-949-4232. That''s voice and TTY Let me begin today''s session by introducing Barry Taylor and Alan Goldstein. Barry Taylor has been working as the legal advocacy director for Equip for Equality, Illinois Protection and Advocacy Agency since 1996. In this position he supervises legal services, self advocacy, and training programs. He is also overseeing litigation in many different discrimination cases including successful federal ADA suits against a variety of different organizations including the Medical Examiners Board, the Chicago Police Department, and the Chicago Transit Authority. He is currently council in a case action suit on behalf of people with developmental disabilities living in large private institutions who are seeking community services. He oversees the self advocacy training project which has trained over 23,000 people on ADA, guardianship, transportation, voting, employment, and special education. Barry provides a great deal of training on ADA across the country. From 1988 to 1993, Taylor was the litigation associate at the Chicago Firm of Preston and Ross. He is a graduate of the University of Illinois, Chicago of Law, where he also received his undergraduate degree. You can read more about Barry''s background and some of the areas that he has worked and some of the organization he''s worked with prior to joining Equip for Equality in his bio which is posted on our website; www.ada-audio.org. Alan Goldstein is a senior attorney with Equip for Equality the Illinois Protection and Advocacy Agency for People with Disabilities and manager of the Illinois ADA Project which is funded by the DBTAC Great Lakes ADA Center. Mr. Goldstein has been practicing law for over 20 years and has specialized in the area of disability rights for more than 15 years. Mr. Goldstein has provided Americans with disability acts employment related training to human resource professionals, businesses, judges, attorneys, service providers, people with disabilities, government agencies, and other organizations utilizing his experience as an attorney to provide practical information in his training. Alan collaborates with chamber of commerce, business leadership networks, and other professional organizations to understand and address employer''s concerns regarding the ADA. Well, without further ado since we have a lot of information to cover today, I will turn over the microphone to our presenters. Barry, you want to go ahead?
Thanks very much. It''s a pleasure to be with all of you today. Today''s session is entitled Employer Defenses Under the ADA. And at first glance you may think it''s a session on how employers can avoid their ADA obligations, and that''s not really what the plan is. Instead really our hope is to help employers understand their options and to help them better access possible ADA claims and defenses so they can make informed choices rather than maybe knee-jerk responses or putting out boilerplate defenses but instead can be thoughtful in working with employees. And then if it does get to litigation, understand what option they may have. We also hope that this session will help people with disabilities and their advocates to understand the potential hurdles they may face if they bring ADA litigation. We wanted to go over real quickly some overview, some terms so the people are clear on some terminology before we get started. One of the first things is that there are two types of defenses. Some defenses rebut the employee''s what''s called prima facie case, which is basically just the evidence that the person who''s brining the lawsuit has to put forth to make their claim. And the kind of things that the employee has to put out is that they are a person with disabilities. So a defense that can come up is that the person is not covered by the ADA, because they''re not a person a disability or that they''re not qualified, or perhaps maybe the employer is not covered by the ADA because they''re aren''t an efficient number of employees, or perhaps the person is not considered an employee because they''re an independent contractor or volunteer. So those are some of things that I''m going to be talking about in the first half of this session, and then we''ll take some time for some questions. And then I''ll be turning it over to Alan, and he''s going to look into other types of defenses which are what are called affirmative defenses. And these are things which are affirmatively or raised by the employer after the plaintiff or the person with disability has set forth their case and their basic claim. So these are things that are saying "Despite the fact the person is a person with a disability, despite the fact that we are an employer; were still not liable under the ADA because of something." And some of these examples might be that the employee''s reasonable accommodation would cause the employer an undo hardship or perhaps that the employee is a direct threat in the workplace to themselves or others, or perhaps the employee has missed the Statute of Limitations. And so Alan will be going through those and then taking some questions at the end. One other thing that''s important to understand is that depending on whether it''s a prima facie case issue that I explained before or in an affirmative defense often determines who really has what''s called the burden of proof, which means whose responsibility is it to prove to the court that they are correct and to persuade the court. And so generally the prima facie case issues have to be proven the burden of proof is on the individuals with the disability whereas the general defense is generally has to be proven or the burden of proof is on the employer. And the standard of proof in these kinds of cases is what''s called preponderance of the evidence. And as you see that, that''s just basically saying whether something is more probable than not. You may be familiar with another type of burden of proof, beyond a reasonable doubt which you''ve probably heard on TV. And that really applies to criminal cases. We''re talking about civil cases, and so the standard is lower which is a preponderance of the evidence. Some of the information we''re going to be providing is not as in depth as some information we''ve provided before on some of these topics. So for those of you have joined our webinars in the past, you''ll recall we''ve done a whole session on the affirmative defense of direct threat. And we''ve done a whole session on what it takes to show that you''re a qualified individual with a disability and possible reasonable accommodations that allowed you to be qualified in the workplace. We have a link at the bottom of this slide that if you want to get more in depth information, you can go to that link and see the previous briefs and webinars that we''ve presented on these issues that will provide more in-depth information. But today what we''re really trying to do is give you an overview of all the types of defenses that come up and how the courts interpreted those over the years. So what we''re going to move to next is who is covered under the ADA Looking at both employer and employee coverage. So, the first defense is that the employer is not covered by the ADA under Title I. And as you probably are all aware, the ADA defines an employer as someone who has an entity that has 15 or more employees for each working day and each of 20 in more calendar weeks in the current or proceeding calendar year. So it''s the current year or last year. You have to have 15 or more employees for 20 weeks. Now that''s the general rule that applies to private businesses, but remember that all state and local government employees are automatically covered. You don''t'' do that 15 number assessment, and also you should remember that even if you''re talking about a small employer or a private employer that doesn''t have 15 employees, there may be state or local laws that cover employers who have as few as one employee. And in Illinois we have the Illinois Human Rights Act. And if you have one employee then you are covered under state laws. So even if you''re not covered under federal law, employers should understand that there may be a prime that they have to meet under state and local laws. Also it''s important to remember that federal agencies covered by another law, the Rehabilitation Act Section 504. And these are organizations that receive federal financial assistance. You don''t have to be a federal agency, but if you receive federal funding you''re covered under the Rehab Act. And you may or may not be covered under the ADA as well depending on if you have the 15 employees. The other thing to remember is that what I was just referencing under the DA was Title I. There also may be potential liability under Title III. And we''ll talk about that in a second. You''ll recall that Title III covers places of public accommodation. And although Title I requires you to have 15 or more employees to be covered, Title III does not have a similar requirement. There is no minimum number of employees, so a business with fewer than 15 employees may not be covered under the ADA''s Title I for employment but still may have responsibilities under Title III as a public accommodation. And some of the cases we talk about will explain that in more details. So whether an employer has 15 employees or not seems like something that''s a pretty straight forward issue, right? But, you know, it can get kind of complicated. And in fact, the Supreme Court has issued two decisions on how you determine how many people, how many employees an employer has. The first case is the Clackamas Case on this slide. And this was a case where you had four physician shareholders who were also board of directors who owned a professional corporation. Rather than making a partnership, they formed what was called a professional corporation. And the question is whether you would count those four individuals in determining whether they had enough employees to be covered under the ADA. If you didn''t count those four, they only had 14 employees and, therefore, wouldn''t be covered. So whether they were considered employees or not was something that was critical, because it meant whether they were covered by the ADA or not. The lower court had said that they weren''t employees, but then the ninth circuit when it was appealed said, "Yes, they are employees," that they should not be able to, you know, reap the benefits of being a corporation but then escape ADA liability by claiming they were more like a partnership than a corporation. So then it came to the Supreme Court, and the Supreme Court didn''t really agree with either of those. They said really that it depends whether or not the partners here, these physician shareholders, were considered employees or not. And what they said is the Supreme Court said that you have to look at common law criteria in determining whether or not somebody is an employee. It''s called a master servant relationship. It''s from an old, old law. And basically this is the equal employment opportunities commission as well. So what you''ll see here on this slide are six factors that the court talked about, and these, again, are derived from the EEOC and from common law. And you''ll see that there''s factors like the degree of control, the extent of the organization''s supervision of the individual, whether this individual reports to someone higher in the organization, is the individual able to influence the organizations, the intent of the parties when they establish any written agreements, and whether the individual shared in the profits losses or liabilities. Those are some factors that the court will look at. The court went on and said that there are some other factors to look at as well. And you''ll see those four factors, three factors that are listed there on slide eight whether the work requires a high level of skill or expertise, whether the employer furnishes tools, material, and equipment, and whether the employer has the right to control when, where, and how the employee worker performs the job. Those are factors that the court will look at. In this particular case there were facts that seemed to indicate that these physicians were not employees. For instance, that they had a lot of control over the operation of the clinic, and they had a share in the profits, and they were personally liable for malpractice claims. Those weighed in favor of finding them not to be employees, and therefore not covered by the ADA. But then there were other factors as well. The fact that they received salaries, they had to comply with certain standards of the clinic and report it to personnel manager. They even admitted that they were employees for other laws such as the Federal ERISA Law and state workers compensation laws. And they also had employment contracts that could have been terminated. And so what the courts said was, "Look, there are factors going both ways. We''re going to send it back down to the trial court and have them weigh this decision and weigh these factors and make a decision whether the entity is covered by the ADA or not." Justice Ginsburg did find a dissent and said, "You know, I don''t think you need to send it back. I think that you should just go ahead and find that they are employees and covered by the ADA." She just felt like the doctors were trying to sort of have their cake and eat it too, I suppose. And you see the quote here where she says, "I see no reason to allow the doctors to escape from their choice of corporate form when the question to become whether they are employees for purposes of federal and discrimination statues." So she thought they were sort of playing fast and trying to get the benefits of being a corporation but then not taking the responsibilities of being covered by the ADA. In addition to the Clackamas Case, there was a second Supreme Court case that court decided. It actually wasn''t an ADA case. It was a Title Seven case involving gender discrimination. And you know it seems like counting how many employees an entity has should be pretty straight forward issue, but it really wasn''t settled until the Supreme Court case. Basically the issue was whether or not this particular employer had enough employees, and what they did was they had over 15 employees who were on the payroll. But all 15 of those employees were not working each working day for 20 or more weeks in the current or past year. And so there was split in the circuits. There was one group of courts that were saying, "What you should do is look at the payroll records. And if you''ve got 15 people on the payroll records for 20 weeks in this year or last year, that''s enough. And then there was this other method called the counting method that said, "You know what? You need to do more than that. You need to count and see if there are at least 15 people on each working day working in the business. And if they''re not 15 on every working day, it doesn''t meet the definition." So the Supreme Court ended up agreeing with the first method, the payroll method and said, "You know, as long as the employer has some sort of employment relationship with the individual, it doesn''t matter whether or not they have 15 people working on each specific day or not." So they went with the counting method. So, for instance, they gave an example. What if you have an employee who works regular hours and maybe they just work a few days a month? Do you count them or not. And they said, "Yes, you do, because the employer has an employment relationship even though they are not working on each single day." And the court went on to say that really all that they need to know about an employee is whether they started a random employment during that year and when they did it. And that''s enough. And there was a question whether or not this decision by the court negated the meaning of each working day. And the court said, "No, we''re not negating that meaning. They have an employment relationship each working day. It doesn''t mean that they actually have to be there." This may seem like some sort of a very specialized or transcendental issue. And it really isn''t. I actually had a case back in the ''90s where I was representing a gentleman with HIV. And he worked for a bar, and he was discriminated against because of his HIV. And we brought suit. This bar had 20 employees, but not everybody worked seven days a week. This bar was opened seven day a week, and they only had ten to 12 people working each day. So they had 20 people on the payroll, but only 10 to 12 people working each day. And so this became a real issue, and at the time the Supreme Court hadn''t ruled. So now the Supreme Court made it clear. All you have to do is look at what''s on the payroll, and then you can determine whether or not there are 15 or more. Now remember I said that the Walter''s Case was a Title Seven Case, gender discrimination. But since the definition of employer is the same exact language in the ADA, lower courts, the Fisherman and the Hosler case decided at the bottom of slide eleven have applied the Walter''s Case to the ADA. So there''s no question that the payroll method not only applies to Title VII cases but also to ADA cases. Another defense that can come up is that the employee themselves does not meet the ADA definition of disability. And before the ADA Amendments Acts was passed, this was something that really was the most common defense alleged by employers saying that people did not have a substantial limitation of one or more major life activities. But probably as all of you are aware, the Congress has passed the ADA amendment Act which says, "You know, courts, you don''t need to spend all this time determining whether somebody has a disability or not but really we want you to spend your time determining whether a covered entity has met their ADA obligations." And so they want courts to take a much more expansive view of who has the disability, and although before the Amendments Act was passed, many cases were dismissed because the employer alleged the person didn''t have an ADA disability. It''s anticipated that with this new amendment act passed by Congress that we''re not going to see that happen nearly as much. And so for any cases that are rising after January first of ''09, this broader more expansive standard of who has a disability will be applied by courts. Now remember the ADA Amendments Act is generally not going to be applied retroactively. So When I talk about case arising after January first, I mean the actual discrimination act has to occur after January first. If the alleged discrimination occurred before January first and the person files suit or files with the EEOC after, it''s still not going to be applied retroactively, because the actual alleged discrimination that we''re talking about has to occur after January first. So there''s going to be this time period where you have some cases that the alleged discrimination didn''t occur after January first where courts are free to apply the more restricted standard of disability. But as we''re looking forward, this is going to be defense we see less and less. Another possible defense that can come up is whether or not the individual is an independent contractor as opposed to an employee. Remember the ADA Title I talks about employees. And so a defense that can be raised there is they''re not an employee. They''re an independent contractor. And generally courts have said that if they are an independent contractor and not an employee then they are not covered by the ADA. And so again you''re going to look at these common law factors within master servant relationship that we talked about before in the Clackamas Case. One sort of exception to this is remembering that you can also bring under the ADA retaliation claims under Title V as opposed to Title I of the ADA. And these retaliation claims don''t actually require you to prove that you''re an employee or individual with a disability. Anybody can bring those, so this independent contractor issue applies really to Title I but doesn''t necessarily apply to Title V or for retaliation claims. You got an example of the Aberman Case which was a case involving a gentleman whose wife had lung cancer. And the company terminated him shortly after that disclosure, and he brought suit under the ADA. And the court said, "You know, you''re not an employee. You''re an independent contractor." And they looked at a lot of factors like the fact that he made sales calls for other companies. His tax returns listed earnings as business incomes instead of wages. There were indications that he had no vacation pay. He didn''t receive pension benefits or health benefits from the company. And so ultimately they said, "You''re not an employee. You''re an independent contractor; therefore, you cannot bring suit under the ADA." Now although the case law is generally settled that independent contractors aren''t covered under Title I of the ADA, there is still potential liability under either Title III of the ADA covering public accommodations or the Rehab Act. Remember Title III says that there is discrimination if the person shows that they did not receive full and equal enjoyment of the goods, services, or privileges of the public accommodation. The most famous case on this is another Supreme Court case, the PGA Tour versus Casey Martin. You might remember this case back in 2001. Casey Martin was a golfer with circulatory disorder that limited his walking. And he sought to use a golf cart when he was in the PGA tournaments. And the PGA denied his requests, and so he ended up suing trying to get the golf cart when he was on the golf course. And the issue was whether or not Title III covered golf tournament participation. And the PGA said, "No, you know, Title III is really only applying to customers. It''s not applying to people participating in golfing tournaments." And the Supreme Court disagreed. They said, "You know what? Participating in golf tournaments is itself a benefit and privilege under Title III and therefore reasonable modifications like a golf cart, of policies--a modification of policies like giving him a golf cart may be required." And the court went on and said, "You know, even if you are limiting Title III just to customers, we still would find that Casey Martin is a customer of the competition, because he has to pay a fee, you know, to get involved in the PGA." So the court said, "If he is a customer, he''s covered. And even if he''s not a customer, he potentially would be covered under Title III as well." And generally they were trying to make the point that the definition of public accommodation should be broadly and liberally construed. And he did have strong dissent in this case by Justice Scalia who said Title III should only apply to customers and not independent contractors. And see that Justice Scalia descent comes up with a couple cases coming up. Now people may say, "You know what? This golf tournament issue seems pretty much obscure. Is that really something that''s been applied by courts? And in fact it has. The Casey Martin case has been applied to a lot of common Title III entities, especially healthcare providers. And what it''s resulted in is ADA coverage even when the person can''t be covered under Title I as an employee. They can be covered under Title III as an independent contractor. And you''ve got a couple of examples there; the Menkowitz Case and the Haas Case, both involving surgeons who had had some sort of adverse treatment after it was learned they had disabilities. And in both of those courts--in both of those cases, the court said that they had been denied privileges which are available under Title III because of their disability. And therefore, they could bring a case under Title III against the medical provider even though they weren''t employees. So the fact that somebody is not an employee doesn''t necessarily mean they can''t bring suit under the ADA. They may be able to bring suit under Title III. Now the cases aren''t unanimous on this. You''ll see that there''s a case at the bottom of the slide, the Wojewski case, that says that no, that''s too broad a reading of Title III. Title III is really about customers going to businesses. It should not involve independent contractors. And curiously they sited Scalia''s descent, and usually you don''t site descent to support your position. But that''s what they did in this particular case from South Dakota. There has been a very recent case that was decided on the issue involving independent contractors not under Title III but under the Rehabilitation Act; just decided a couple weeks ago, the Fleming Case. And this was a case involving a doctor whose employment contract had been terminated after it was learned that he had sickle cell anemia. And, you know, clearly he was treated differently because of his disability, but the question before court was, "Is it actionable?" And, again, he wasn''t able to prove that he was an employee, so he wasn''t covered under Title I. But this particular medical center received federal funding. And so they were able to argue that they were--he was able to try to argue that he was covered under title--excuse me, under the Rehabilitation Act. And the court said, "Yes, the Rehabilitation Act does apply, because if you look at the language of the Rehabilitation Act, it talks about all individuals subjected to discrimination by entities receiving federal funding. It doesn''t say employee, employers." And so while the Rehabilitation Act incorporates sort of the substantive standards of Title I, it doesn''t cover some of the limitations on covered employers. And so this particular court that you can bring a case under the Rehabilitation Act even when you can''t bring it under Title I of the ADA. And that case agrees with another set of cases from the tenth circuit, but you''ll see there are cases going the other way from the sixth and eight circuits. So we do have a split in the courts, and often times when we have split that sometimes means the Supreme Court may ultimately resolve this issue. They haven''t decided it yet, but they may in the future. A related issue is volunteers. And that brings up another defense. If the individual is a volunteer, they''re not an employee. And therefore, they can''t bring suit under the ADA. And if you look at the EEOC Policy Guidance Manual, the general rule is that volunteers are not protected as employees unless they can show that there''s really other factors involved like they''ve received some really employee type benefits like pension plan, or life insurance, or workman''s comp, or maybe if they are, you know, staring out as volunteer regularly leads you to be a employee eventually. If those kinds of factors are present, you might be able to be covered under the ADA, but generally volunteers a not going to be considered covered under the ADA. There''s a case on the next slide the Haavistola case where the court actually found a volunteer to be an employee. It was somebody who was a volunteer firefighter. But you see in that case they did receive a lot of benefits. They received a disability pension, survivor''s benefits, and tuition reimbursement. So the court said, "You know, they''re really treating this person as an employee. This isn''t the kind of benefits you give to a standard volunteer." Therefore, that firefighter was allowed to bring suit under the ADA despite the fact that they were technically a volunteer. And again, like with independent contractors, although, volunteers generally aren''t covered under Title I as employees, they may be covered under Title III similar to the independent contractor language. And you''ll see the Bauer Case versus Muscular Dystrophy Association that they had a policy that all volunteers who worked at a particular camp had to be able to lift campers. And you had some actual people with muscular dystrophy who wanted to be volunteers who were deemed not to be eligible to be volunteers because they couldn''t lift other campers. And so the Muscular Dystrophy said, "Sorry, you can''t be a volunteer." These people who wanted to be volunteers then sued them under the ADA. And the question was can they bring suit under the ADA. And what they tired to argue was, "Okay, we might not be employees, but one of the benefits of the Muscular Dystrophy Association would be to volunteer and to be involved." And the court said, "Sorry, we don''t agree with that. We really see Title III being limited to customers and not to independent contractors or volunteers." And they relied on that same descent from the Casey Martin case. Now while this case did say that volunteers aren''t covered under Title III, this is a district court case from Kansas. And there really arent a lot of other cases out there, so it may be that other court cases are going to go the other way, but this particular court found that the person wasn''t covered under Title I or Title III. So let''s move to another defense, and that is that the person is not a qualified individual with a disability. This is a defense we''ve talked about a lot in previous webinars, and it''s sort of similar component of ADA litigation. Not only do you have to show you''re a person with a disability, but you also have to show that you''re qualified to do the job. And really qualified means a couple things, one is that you have the background, the sufficient skill, experience, education. Maybe a job requires a college degree or certain experience or training. And the other thing is whether or not the person can perform the essential functions of the job with or without reasonable accommodations. And it''s this second factor that really is the one we see litigated the most on whether somebody''s qualified or not. The general rule is that employees have to show that they''re qualified. That''s their burden; however, this can get a little blurry sometimes especially when it gets raised in other context like, "well, they''re not qualified because it would be an undue hardship to provide them what the accommodation they need to be qualified for, or they''re not qualified because they would be a direct threat in the workplace." Undue hardship and direct threat are affirmative defenses. If you remember the beginning, we talked about those. And affirmative defenses mean it''s the burden of the employer. So you''ve got a lot of cases going both ways on these issues. Is it whether they''re qualified or not, or is it an affirmative defense; undue hardship or direct threat. If it''s qualified, that means the burden is on the employee to prove the case. If its undue hardship or direct threat, generally that means it''s going to be the employer''s burden. So it really depends on that. And you see an example of the Jarvis Case at the bottom of this page saying that generally the ability to perform safely is only a qualified issue for positions of public safety; and otherwise it would be direct threat issue, and the burden would be on the employer. Moving on, remember that for qualified, the main thing you have to show that''s been litigated whether or not the person can perform the essential job functions. And remember that employers are not required to reallocate any essential functions. Obviously they can choose to do so, but they''re not required under the ADA. And you''ve got the factors the EEOC lists as to whether something is considered essential or not. Those are probably ones you''re familiar with. Move to the next slide. And then the next thing that we look at is whether or to what evidence you put forth could determine whether something is an essential function or not. For instance, the second fact, written job descriptions given before interviewing or maybe the terms of the collective borrowing agreement. All these are factors. Not one factor is determinative, but these are factors that courts will look at in determining whether something is an essential function or not and then whether the person is qualified and where that''s the defense the employer can raise in the ADA case. And there are some common essential functions that come up in a lot of cases like whether or not the person can meet the attendance requirements, whether or not the persons can stay awake on the job, if they can take down patients, do training. There''s conflict in the courts as to whether that''s essential function or not. Licensing is a very common essential function; particularly involving people who are truck drivers. So if you can''t meet these essential functions then the employer is going to be able to raise the defense that the person is not a qualified individual with a disability, and the case shouldn''t precede. Another common essential function issue is the common issue of rotating shifts or mandatory overtime. And you''ll see the rarest case there on slide 24. And basically the issue was whether or not rotating shifts was an essential function for a gentleman who worked at a warehouse who had diabetes. This particular warehouse required you to work 12, two 12 hours shifts, and then you were off the next day. And then like in two weeks if you worked a 12 hour shift like six a.m. to six p.m., in two weeks you have to work 6 p.m. to 6 a.m. So sometimes you''re working a 12 hour nightshift. Sometimes you''re working a 12 hour dayshift. And this was really wreaking havoc on this person''s disability, so they asked for an accommodation to not have to work this bizarre schedule but instead work more of a straight nine to five schedule. And although the employer had accommodated the individual temporarily, they didn''t want to do it long-term and said, "It''s an essential function. You have to be able to do this like everybody else." And the court agreed and said, "You know, this is an essential function in this particular workplace. If you provide an exception to the plaintiff, it was going to create more work for employees and create an undue hardship." The court did not hold against the employer the fact that they had temporarily accommodated the employee. And they said, "You know what? Essential functions aren''t just limited to job core requirements but can also involve flexible scheduling." You''ll also see a couple more cases on this page where they found that working overtime is an essential function and also that being on call was essential as well. But then there are cases that go the other way. So you have the Rohr case on slide 25 where, again, where another person with diabetes was seeking not to have to do the rotation of shifts. And the court there found that it was not an essential function. Some of the things they were asking him to do, working overtime and going to out of town field work, were things that weren''t very commonly done and so really weren''t essential functions, and so they said that at least a factual issue as to whether or not this is considered an essential function or not. And so the court denied summary judgment for the employer there and let he employee proceed with his case. And then finally on this issue, you''ll also see some cases where you have rotating shifts within a particular workplace. Often times you''ll have different stations, especially in like manufacturing plants. And like in the Turner Case you had two different stations where a person could do the job seated and then one station where they had to do it standing up. And this particular person because of their back impairment couldn''t do the standing up and asked to be accommodated. And initially the employer said, "That''s an essential function for you to rotate to all three. We''re not going to accommodate you." The court said, "No, it really isn''t an essential function not to rotate to all three. Or at least it''s a question of fact whether it''s an essential function. And we''re going to let you go to trial on that." The other essential function that comes up a lot is the issue of lifting, and you''ll see on slide 27 two cases that go both ways; the Fuzy case where they deemed that lifting was an essential function involving a pipe lifter and in the Puckett Case where they found that a waitress who was not able to life a tray without assistance of a cart that that was not an essential function. Lifting was not an essential function. The essential function was handling 30 pounds of a tray, but she could use a cart and still be able to do the job. So the lifting was not considered the essential function. So you''ll see that courts go both ways on that. And then the last slide on this issue is on lifting. You''ll see a couple of different cases both coming out in favor of the employee, both having lifting restrictions that couldn''t be met. The first person worked for Federal Express and the next person worked for Walgreens who could not do the lifting. And in both cases the courts found that lifting was not an essential function, and therefore the employees were qualified to do the job. And you''ll see in the Calef case in particular a huge jury verdict, 1.2 million for the employee. You''ll note that this case was not only under the ADA but also a case that was brought under state law, and that''s why she was allowed to collect the amount of damage she was. There''s one more defense I''m going to bring up, and then we''ll open it up for questions and then turn it over to Alan. And that''s what happens when somebody makes a statement that they''re not able to work in some form usually in the context of social security benefits and then later try to argue that they are able to do the job, that they are qualified. And the potential conflict that arises when somebody has made a statement that they can''t do, they can''t work and then file suit under the ADA and say they''re qualified to do the job. This is a concept called judicial estoppel. And basically the concept is the court is not going to allow. They are going to stop the person from making the argument that they are contradictory, because out of fairness. And so the issue that untimely came up to the Supreme Court was what happens when somebody makes a statement on the social security application that they''re not able to work and then later brings the claim under the ADA. Are they estoppel from bringing that ADA claim? And the courts were all over the place on this issue until the Supreme Court took it up. And what the Supreme Court said was, "Look, we''re not going to say that as a matter of law that if you make statements that you can''t work under social security that you''re automatically estoppel or precluded from bringing an ADA case. What you''re going to have to do through if you make these apparent contradictory statements is you have to give some sort of explanation as to why they aren''t inconsistent and why they shouldn''t be estopped from making that contrary argument under the ADA that you''re qualified after you''ve said that you can''t work for social security purposes." And there are a lot of factors that the court looked at, but probably the two most common ones are that the ADA considers reasonable accommodation when it determines whether someone is qualified whereas social security doesn''t take into account reasonable accommodations. So a person could actually be unable to work generally, but if they have an accommodation in the workplace, they could still be qualified to do the job. The other factor that comes up a lot is time that people''s disabilities change over time, and that at the time they applied for social security they may be able to work, but then during the time they are working later and are discriminated against in the workplace, their disability may have changed to the point where they aren''t contradictory. They just were at different stages. Their disability was at different manifestations at different time periods. So basically the general rule is that if there this alleged and consistent statement that the person with the disability has the burden to show to the court that there is a reason why they''re inconsistent or they''re different and that they can be brought together and not deemed inconsistent, that they can be disabled for social security purposes and still be qualified for ADA purposes. And you see on the next slide you''ve got two cases going each way; the Voeltz Case which stated that the person could proceed with their ADA claims despite the fact that they had applied for social security benefits, because there was evidence that despite the fact that they couldn''t work for social security purposes, they could have been qualified to do the job if the employer had provided the person with multiple sclerosis with an accommodation that had been requested, and so they ended up wining the case. Whereas the Butler Case, you had a person with really significant heart disease was a police officer, and they had told the pension board that he couldn''t walk, climb sitars, and actually used the words impossible to do is own job s a police officer, and then later tired to bring an ADA suit. And the police department said, "You''re not qualified to do the job. You said yourself it''s impossible to do the job with your heart condition." And the court ended up saying, "You have not been able to explain the inconsistency between saying that you''re able to do the job and your previous statement that it was impossible to do the job." So he lost his ADA case. So that gets us through all the defenses that relate to what is called the prima facie case. And before we move to the affirmative defenses then we referred to before, let''s open it up for questions. So what we''ll do is I''ll take my finger off the control button, and you can either press the control button or ask a question orally if you have a headset. Or you can type in a question, and Alan and I will try to answer it. And then once we determine there are no more questions, we''ll turn it back over to Alan. It looks like we have one question that said, "Can you cite cases about visual impairments?" And I''m not sure we have any cases with respect to the defenses that I referred to that involved visual impairments. There may be some cases that Alan is working on that he can talk about coming up.
I''m glad it''s working now. I''m going to talk about undue hardship. I just want to say a word before we do. If anyone has questions, they can type them in at any time, and we''ll try to get to them when we end. I just want to thank everyone who''s listening in today. We have a huge audience, some of the usual suspects and a lot of new people. And we have a lot of experts listening in. We have people from the EEOC, and travel accordions at work. And I certainly encourage everyone to feel free to pipe in if they want clarification or if we misspeak and they want to correct something, because we do have a lot of people here who have a lot of knowledge. So I''m going to move on to undue hardship. And so one possible defense is that an accommodation, a requested reasonable accommodation poses an undue hardship which is defined as significant difficulty or expense in light of the nature of that cost of the accommodation, the overall financial resources of the covered entity, the impact upon the operation of the facility including the ability of other employees to do their job, and the impact on the facility''s ability to conduct business. And so an accommodation would be an undue hardship if it''s unduly extensive, substantial, disruptive, or that fundamentally alters the nature of the business. And it''s kind of broken down into two components. I think there''s a cost undue hardship, and there''s also an administrative difficulty type of undue hardship. So here we''re going to see if the accommodation is significantly expensive, it doesn''t have to be provided, and that is the cost concept. And the other one is administratively burdensome or disruptive, which could be reallocating the essential job functions which employers are not required to do; although, they may choose to do so anyway. It requires creating a new position or at least new permanent position. I believe a temporary position might be an accommodation in some circumstances, but creating a new permanent position is generally not required or providing personal services or devices that will assist a person with their disability outside of the workplace. So a hearing aid might be an accommodation if used only at work, but if a person uses it all the time and at home then the employer is really not required to have to provide it then. And if the accommodation would not help an employee become qualified then it would be an undue hardship, and this generally applies to failure to hire and termination cases, but it could also apply to a failure to accommodate. And then we''re going to have the big topic of direct threat, and as Barry alluded to earlier, we did a whole webinar on direct threat that people can access through the archives. So the EEOC has some guidance and as you know we site EEOC guidance through the presentation. I think it''s a great starting point for anyone trying to asses an ADA issue. So the guidance points out that if there is an undue hardship, if you want an accommodation, the employers must explore other effective accommodations that would not pose an undue hardship. But an undue hardship cannot be based on another employee''s fears or prejudices towards an individual''s disability or the fear of customers. And sometimes they point to a case where someone may have some scarring, some facial scarring, or something like that. And under the EEOC Guidance that would not be a legitimate reason not to hire someone because customers might, you know, react negatively to that type of appearance or to someone who has speech impairment, for example. The EEOC also says that the only statutory limitation on employer''s obligation to provide reasonable accommodation is the undue hardship defense. I have a query there is that an accurate statement, and I think it''s accurate in some ways. It think also there are other things we talked about. Direct threat is an accommodation to a request. The official would oppose a direct threat even within an accommodation. They don''t have to be accommodated or employed. So while the undue hardship applies specifically to reasonable accommodation, other defenses; direct threat, et cetera, may also be used as defense for an accommodation request. And, again, and I think Barry referenced that, you know, employment lawyers, lawyers that represent employers often give a training about defenses. And we''re hoping to kind of bring a different perspective to not portray the issue as overly complex or confusing. Sometimes I''ve attended management attorney trainings, and the ADA is painted as a very confusing law and accommodations as being very difficult. And that has not been my experience in many years practicing in this area. But I think employer attorneys do agree that cost alone is rarely an undue hardship, because you don''t compare the cost of an accommodation to an employee''s salary, for example, or how much their position is worth to the company. You compare the cost of the accommodation to the resources of the employer. And as a plaintiff''s attorney when an employer raises cause of the defense, I actually get pretty happy, because right now all their financial information, all the employer''s financial information is now an issue and relevant for discovery purposes, et cetera. And it probably is not hard in many cases to find an independent accountant to analyze the financial data and find somebody for the accommodation. I also think it''s important for both employers and employees to keep in mind that local rehabilitation services, the state office may help to fray the cost of accommodations. And for employees to keep in mind that if VR pays for an accommodation, generally the employee would get to keep it; whereas, if an employer pays for the accommodation then it is the property of the employer, and they would keep it for things like computer software or such that may be a consideration as well. There been a few cases that have looked at the cost benefit type of analysis, but these have not really gained much traction. Most of the ones are somewhat dated, and I think it goes against the EEOC Guidance. And one important point I want to point out is that according to the job accommodation at work which is under the department of labor and great resource for both employers and employee, employers benefit ten dollars for every dollar spent on an accommodation, because whatever accommodation bought for ways to improve employee productive. And these benefits can be saved in training costs or saved benefits if someone is terminated or not accommodated. Of course, it has to do with job search as the person leaves employment, and there''s cost involved with that. And then I figured this benefit is ten dollars for every dollar spent on accommodation, and actually earlier research I believe indicated a much higher benefit per dollar spent on accommodations. The EEOC Guidance, again, points out it should be the net cost. So, enough preliminary information, we want to look at the Friends Case that involved an employee who worked for the Social Security Administration who is deaf. And the person wanted a full-time interpreter at her job. And social security--and sometimes that might be an accommodation and might not. Generally a full-time assistant is a little trickier to prove as a reasonable accommodation. But here SSA agreed to provide an interpreter, but due to one of their policies they did not want the employer using an interpreter when consulting or interviewing or working with the public. Social security claimed the cost was too high related to the time of interviews. And the court said, "As this is an affirmative defense, the burden is on social security to prove undue hardship." And I don''t think social security did a very good job in this case. Holding from the opinion it says, "Furthermore defendant," which is SSA, " has provided no evidence whatsoever regarding the net cost of the accommodation needed, the overall financial resources of the facility, the overall financial resources or overall size of SSA, or the impact of the accommodation upon the ability of other employees to perform their duties, or the impact upon SSA''s ability to conduct business." So maybe if SSA had put forth some evidence, they could have carried their burden to show undue hardship. But if an employer does not submit evidence to support their defense, it''s going to be very hard to require that burden. And then we just have that little tip down there that modifying policies such as the no interpreter as far as dealing with the public type of policy may need to be modified reasonably under the ADA. Another possible defense is that the requested accommodation would cause an administrative hardship. And this is generally a more effective defense for employers than the cost alone as I mentioned before. And this is often used in accommodations that require elimination in essential job functions that will significantly disrupt the business operations or the work of coworkers. And we''ve also seen it in indefinite leave requests. When an employee seeks leave, they must demonstrate an ability to perform the specific functions after they''ve returned from leave. And that is definitely seen by courts as an undue hardship or possibly as rendering the employee unqualified. And sometime those two types of defenses are a little bit combined. It''s important to remember that the burden is on the employee to prove that they''re qualified. The burden of the employer is to prove undue hardship. And we have a little asterisk there. If a request of accommodation would cause an administrative hardship, I don''t think that''s the end of the discussion from the employer''s point of view. The employer still must engage in the interactive process and explore whether there is other effective reasonable accommodations that might work. So if an employee requests an indefinite leave, an employer can say, "No, that''s an undue hardship." And they might be right on that, but then I think the employer still needs to investigate. "Well, maybe, limitedly we can''t give you indefinite lave. We can give you four months of leave or two months of leave, or we can let you work from home, or reassign some nonessential functions to other employees, or look at temporary part-time positions." We''re also using temporary workers to fill in the persons on leave. So the fact that the accommodation request would pose an undue hardship should not be the end of the discussion. Employers still must explore other effective accommodations. We have two cases here; an EEOC versus Amego. A nurse with depression could not administer drugs, which was considered to be an essential job faction. She requested to have another employee do that function for her, and the employer refused. And the court said, "No, it''s an essential function. It does not have to be reallocated to another employee; although, employers can, of course, do that if they desire." And then in the Borkowski case where a teacher''s aid, of course, had a teacher''s aid to assist a school librarian with classroom control maybe a reasonable accommodation. In that case, the school librarian only taught I believe one or two classes a week. She had incurred a traumatic brain injury with some ongoing neurological impairment and class control was difficult, and the court said, "Why it may be an undue hardship to have an aid there to assist with classroom control," they couldn''t say as a matter of law it was. They needed to do more factual development, and this case was on summary judgment where we see a lot of these cases are decided. In the summary judgment an employer usually asserts that there are no disputed facts. It''s really only questions of law left, but if there are questions of material acts that are unresolved, usually a case will survive summary judgment and be able to get before a jury. So in this case, a teacher''s aid to assist a school librarian may be a reasonable accommodation, but I think it could also go the other way. Once the facts are spelled out, it may not be, because the facts might be deemed as having someone do an essential function for someone else. And then we have a few cases here about working at home. In the Mason Case was deemed not reasonable for physical attendance at the worksite was required for a service coordinator which was a low-level position requiring supervision and teamwork. And in the Mobley Case, the courts came to the same conclusion. The persons needed to be at work for meetings and mediations; although, I think an argument can be made that now in this electronic age, maybe presence at a worksite isn''t necessary for meetings as people can participate by phone or web conferencing. And in the Mobley Case, the employer already did provide an accommodation of a distraction free environment. And the court said that was effective. Employers don''t need to give the accommodation requested. They only need to provide one that is effective. Coming down on the other side in the Humphrey Case, the court said, "Working at home might be reasonable for medical transcriptionists with obsessive compulsive disorder." And that in other cases it was allowed for other transcriptionists. And in this case it might be reasonable for this one, because workplace presence was not deemed essential. Another possible defense is in the Barnett Case that the requested accommodation caused an undue hardship due to inconsistently enforced seniority policy. And in Barnett, an employee sought reassignment, which may be a reasonable accommodation; although, it''s often seen as the accommodation of last resort. And the employer said, "No, we have a policy that we only provide reassignment to vacant positions by seniority, and we cannot put someone with a disability in a vacant position if they don''t meet the seniority requirement, and the Supreme Court said that requiring an employer to violate a consistently enforced seniority policy would be an undue hardship. And that the policy trumps the ADA, but if the employee controlling the seniority policy is not strictly followed is not consistently enforced then reassignment may be a reasonable accommodation." So it''s very important that if employers want to rely on a seniority policy or similar policy that it be a policy that is consistently enforced and not a policy where there are a lot of exceptions made. And now we''re going to move to direct threat. As Barry alluded to earlier, we have done a webinar on this, and that''s available on the archives. So we picked a few cases from that, because they''re very good examples of how the analysis works, and we''ve updated with some newer cases that we can see. Well, actually there''s under a direct threat with a picture on this slide. So direct threat is an affirmative defense when an employer says that the individual poses a direct threat to the health or safety to themselves or others which is defined as a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. And this assessment requires an individualized assessment, the direct threat assessment. It must be based on a reasonable medical judgment that relies on the most current medical knowledge or the best available objective evidence. And I see this as a high standard for employees to meet. In the first bullet point we have the words significant risks and substantial harm, which indicates a high level of risk and harm. And also the second bullet point shows the employers need to look at reasonable accommodations before finding that someone posed a direct threat. We had a case where an employer with multiple sclerosis was deemed to be a direct threat, because in that case it was admitted that he needed to drive for his job. And the employer said because of his MS and some limb weaknesses he wasn''t able to drive safely. And we argued in that case that the employer needed to look at reasonable accommodations. Would hand controls help? Would wider mirrors help, because the employee had limitations in turning their neck? And the case wasn''t resolved on those issues, but I think those were valid arguments that the employer needs to look at accommodations and the individualized assessment, you see a lot of employers tend to drop the ball on this. And it''s really important that employers rely on current medical knowledge and the best available objective evidence; again, I think creating a somewhat high standard. The regulations from the EEOC are based on an earlier Supreme Court case under the Rehabilitation Acts; the Board of Nassau County versus Arline. And you look at the duration of the risk, the nature and severity of the harm, the likelihood the harm will occur, and the imminence of the potential harm. And in the first case we look at, we''ll go through these in depth. And the EEOC also says that employers also need to identify the specific risks posed by the individual, identify the specific behavior on the part of the individual that would pose a direct threat, as well as identifying the aspect of the disability that would pose a direct threat. So again we see this is a difficult standard or difficult burden to meet in many cases. So now we''re on the Jakubowski Case which involved a resident in a hospital with Asperger Syndrome who alleged wrongful termination and failure to accommodate. And his recorded knowledge in the opinion, Asperger''s Syndrome limited the resident''s ability to communicate. Social interaction is how they labeled the limitation. And reading from the case, some of his performance reviews said that the plaintiff often got stuck on one diagnosis and did not explore other possibilities. As far as communication skills, nurses often did not know what he was trying to relate. He has difficulty when answering a phone call or taking a message and is often harsh and short on the phone to nurses as well as physician consultants. So imagine that, a physician who is occasionally harsh on the phone. But it sounds like there really were some communication issues here, and nothing against physicians. I was just--I just harsh and short on the phone--it''s hard to talk to a physician on the phone for a long, leisurely conversation sometimes. But I don''t mean to imply anything negative. In this case, the court found summary judgment for the hospital. The hospital did carry their burden of direct threat, and therefore there was no ADA violation. Obviously in the medical setting, the risk of harm is pretty significant, and the court felt that his lack of communication skills did pose a direct threat to the health and safety of patients. And additionally the accommodation requested by Jakubowski was admittedly not very helpful in knowledge and understanding of the hospital staff. They would know what types of triggers would affect him, and the court said that that type of accommodations would be a hard one to institute and wouldn''t adequately address any safety concerns anyways. So in that cast, the employer was able to carry the burden. In another case, EEOC versus Wal-Mart, an applicant with cerebral palsy applied for a job as a greeter or cashier. And Wal-Mart said that he would pose a direct threat citing many risks. And this person sometimes used crutches and sometimes used a wheelchair, because of their disability. Wal-Mart said that his legs were not capable of holding him without arm support with his crutches, because he would support himself and then going to the side. That would make him very wide, covering up a wide area twice the width of a average person posing an obstacle to customers. And they also said that the employee would be at great risk for recurring back and knee pain making it difficult for him to do the job. It''s kind of a paternalistic approach that many disability advocates are not very favorable about. Wal-Mart doctors opinion assumed the applicant would be using crutches and not a wheelchair. The doctor also admitted that he was very stable in a wheelchair and would be much less of a threat if he used wheelchair. And Wal-Mart never really addressed him using a wheelchair as a greeter. I think they have a preference that people stand, and that might be why. And Wal-Mart also did not explain how he would pose more of a threat than customers who use crutches or other mobility aid. And the court held that Wal-Mart failed to prove that using a wheelchair or other reasonable accommodation would not, you know, Wal-Mart failed to prove that using the accommodation would not eliminate the direct threat. In fact, using the wheelchair would eliminate the direct threat. It would be much less likely that he fall down, et cetera. And as I noted earlier, employers need to assess accommodations in determining direct threat. Here we have a case that was under the Rehab Act, an employee with the IRS, the Treasury Department. He had diabetes. And the question was did he pose a direct threat. This case does a really good job of the factors of analysis. So for durations of the risks, the IRS said, "Well, he had changes in blood glucose levels. It could affect his performance." But the employee in this position said, "Diabetes cannot be cured, but it can be controlled." So the duration of the risk was not real in the doctor''s word, and, of course, the court also found the duration of risk was not significant. For nature and severity, the IRS said it could degrade his abilities to function as a special agent endangering himself, his colleagues, and the public. And Mr. Branham said that the risks can include some serious conditions, incapacitation, concussion, coma, and death. Mr. Branham, looking at him as the individualized assessment has never lost consciousness. He''s never had any type of incapacitation from hypoglycemia. And the court said that they could find the patron''s risk was not a direct threat. In terms of the likelihood of potential harm, again, the employee''s doctor said the risk, and he put a number on it, was about point 2 percent per year which was very small. And the IRS presented no evidence, specific evidence, other than its associated risk due to increased risk due to job duties. And the court said that the likelihood of harm could also be found to be done by the jury. And regarding the imminence of the harm, Mr. Branham asserted that he has never suffered any period of incapacitation, and there was no evidence that he would do so in the future. The IRS said, "Well, that''s just not logical." And the court said, "Well, no. Based on the individualized assessment and it was logical." And therefore the imminence of harm was not there. And therefore the court said that there was no issue of fact as to whether Mr. Branham could safely perform his job or whether he posed a direct threat to health or safety. And I know I''m moving quickly, and I really appreciate it. I know the captioner is doing a great job keeping up. I want to make sure we get through things and save few minutes for questions. And people can certainly email us anytime with questions. In the Darnell Case, it was a employee with type one diabetes who was insulin dependent, and at the pre-employment physical the doctor said it was not controlled based on his interview and blood glucose test he did. And also the interview with Mr. Darnell related the history of core compliance, failure to seek medical attention. He said he hadn''t been with a doctor "in a number of months" and the last one he''d seen was not any good anyway. And when the doctor talked about his blood or sugar levels, Darnel angrily respond to the court that it was good enough. And based on this with a manufacturing plant with dangerous machinery, the court held that the employee could pose a direct threat due to his uncontrolled diabetes. On the other side of the issue, we have the Rodriguez case at the bottom of the slide where the employer came to the same conclusion, but this was an individual with type two diabetes who didn''t even say that they were a person with an actual disability. They only argued that they were regarded as having a disability. And said he had no limitations whatsoever from his diabetes, and in that case the employer lost, because the court said there was no independent individualized assessment. You regarded him as being unsafe, and there was no evidence of that based on his condition. And the doctor in the Rodriguez Case made statements saying something like, "The only safe place that Mr. Rodriguez would work would be in a padded room, and then he might fall down and break his neck." And I have to caution employers when you make a statement like that bold, you are essentially regarding an employee as being unable to work anywhere. That does make a strong regarding claim. So you see the court comes down on both sides of that. In Warren versus Merck, employee with anxiety and panic conditions was experiencing problems. They claimed she walked around like a zombie, had temper tantrums, had strange behaviors. There was unexplained behavior described as psychotic in a cafeteria. The employee was taken to the hospital, treated, and released. And then Merck required the treatment of fitness evaluation, and the employee refused, was suspended, and later terminated. The ADA requires employers--requires that any medical examination requested by employers be job related and consistent with business necessity. But in this case, Merck met that burden. The employee''s behavior did need the medical examination, and because the employee refused to provide the required medical information, the termination was upheld. And this is a defense also. We don''t have a separate category, but employees need to submit either medical information to support accommodation request or when properly requested for job related and business necessary reasons. The employee needs to comply with those requests and submit that information, or they might be deemed to be unqualified or for not engaging in the interactive process. On the Burlington Northern Case which was another interesting case, a conductor who had a below the knee leg amputation for a while was not released to return to work and then eventually was returned to work with no restrictions from his doctor. The employer consulted with company doctors and terminated his employment citing a direct threat, but these company paid doctors never examined the employee. They just assumed that he had an amputation and could not be a conductor. And this case also involved the issues from the social scarcity type in the Cleveland Case that Barry discussed, and the court went through all of those and said, "Here his condition did change overtime, and he was able to do the job, and an amputation is a listed impairment of social security." And here because the employer did not even examine the person and because the employee''s doctor released him unconditionally, the court found the employer did not base their direct threat defense on an individualized assessment. There''s a Hayne''s Case at the bottom where it was a similar conclusion. So the individualized assessment component is important, and EEOC Guidance points out that in general a treating doctor might know best about an employee''s condition. So there is some deference to treating doctors. In the Dvorak Case, an employee took narcotics for neck pain and migraines, and the employer placed him on leave impending medical evaluation saying, "We don''t want someone working here who''s taking narcotics." One supervisor said, "I wouldnt even put him behind a computer, much less in the filed." And the court said, "This is actually an issue here. The medication that the employee took was a mitigating measure that eliminated limitations from his impairment and allowed them to do a job, or was the medications something that caused direct threat to health and safety and compromised his ability to work safely?" And the court said, "That''s a question of fact. We can''t decide as a matter of law which way it goes. Employers have to balance responsibilities to provide accommodations with the duty to maintain a safe work environment." And, again, they''re regarded as a record of issues in this case as well. Moving on to a new type of defense, the employee waited too long after the alleged discrimination before filing a charge. And in the Title Seven case, a man who was African-American alleged the pattern of harassment, and discipline, and maltreatment. But some of the acts occurred more than 180 or 300 days before he filed the charge. And the question was the information under those acts relevant. And in the next slide we have the court saying that each discriminatory act generally is a separate violation. Once you file an EEOC chart and you only look back to 180 or 300 days. Unless there''s something called a continuing violation, and if all the separate acts are actually part impartial of one big act of discrimination than the 30 day limitation might not apply. And in this case, the court acknowledges that possibly there was a hostile work environment which was ongoing, and all the little episodes of harassment were part of that big hostile work environment, or continuing violation of a employer refuses to make an individualized assessment or continually has a glass ceiling on promotions; all these things may show up in continuing violations and allow an employee to get around the limitation of filing period. And just so everyone knows, if there''s no FEPA it''s called, Fair Employment Practices Agencies. So like in Illinois we have the Illinois Department of Human Rights, the EEOC filing deadline for ADA cases are 180 days if there is no FEPA. But if you a corresponding state agency, then you have 300 days to file with the EEOC; although, you might only have a lesser time like 180 days to file with the state agency. But you get more time to file with the EEOC if there''s a state agency in your area. Federal employees have a much tighter timeline. It''s not a filing timeline, but they must contact the equal employment opportunity officer at the agency within 45 days of any alleged discrimination. One recent case that came down is the Federal Express versus Holowecki where an employee filled out an intake questionnaire which was signed and filled out by the employee. But the EEOC did not in time prepare their charge of discrimination. They usually prepare their charge based on the information provided in the intake questionnaire. So the employee had to order that their intake questionnaire was the filing of the charge for purposes of the 300 days period. Or if it was 180 days, this was a case under the age discrimination employment act. And the court in that case held that the intake questionnaire could be considered coming to the EEOC and filing a chart within the deadline. So it''s not just the actual technical charge that needs to be filed, but an employee who files an intake questionnaire within the time period may be protected. And here we have the Ledbetter situation where the Supreme Court in 2007 said, "It''s not a new violation each time an employer issues a paycheck under a discriminatory policy." The discrimination occurred when the decision to pay, in this case, women less than man was made. Now each new check is not a new violation. And that ruling surprised many people. And, in fact Congress respond to it by passing the Fair Pay Act which says, "In regard to compensation, unlawful employment practices occur not only when the decision is made. The discriminatory compensation decision is made, but also when the individual is affected by it, which would be the issuance of the paycheck." And I think the Fair Pay Act would also apply to compensation claims of discrimination under the ADA. So now we have some practical tips, and then there will be a few minutes for questions. So I know we moved quickly, and provided a lot of information. So I''ll go through these and then take a little break. I always think it''s a good idea for employers to engage in the interactive process. Base decisions on an individualized assessment; if you''re going to have a doctor involved, have the doctor examine the person. Make sure you''re relying concurrent and not outdated job descriptions that you''re relying on objective medical evidence. But remember I always urge employers with medical evidence, there are a lot liabilities. The ADA has a confidentiality law. There''s HIPAA. There''s state and local confidentiality laws. So anytime an employer gets medical information, there''s a whole host of responsibilities that attach to it. And any deviation in that can lead to liability to that as well. So medical information can be a double-edged sword for employers, because it does give them greater duty to protect the confidentially of that information. They store it separately from the personnel file, et cetera. I think employers should document reasonable accommodation efforts. It''s fine to offer alterative accommodations as long as they''re effective. Always makes sure any test or selection criteria meet the job related and business necessity test. I think periodic training is--would be a huge benefit to employers, because I think a lot of the cases we see are new supervisors coming into a job don''t really understand the ADA, don''t want to continue an accommodations. And that''s what leads to the problems. So I think periodic training as well as training some new staff is a big help for employers. Again, based on due hardship decisions on objective criteria just saying it cost too much really opens up the company''s finances. Inflexible policy such as 100 percent heal to return to work have generally been found to be discriminatory as the ADA requires that they be reasonably modified. And we''ve also seen policies such as you must have a mental and emotional stability to do this job. And we see that as kind of being a vague requirement; although, I haven''t seen any court cases on that one yet. Again, employers should look through any available accommodations including any assignment before termination. And make sure they''re consistently following procedures. If you want to say, "We can''t reassign you because of a seniority policy," it''s important to make sure that policy has been followed in the past. And I think centralized decision making is a benefit as well, because then you don''t have one department perhaps granting accommodations where another department denied it an almost the similar factual situation. I know some other agencies, EEOC has some great guidance on best practices, and some employers have adopted the practices of contacting the Job Accommodation Network before they deny accommodations. And I think all those things are helpful. Some tips for employees. One thing that we see a lot of is a doctor writes a letter, "There''s no way they can do their job anymore. They need to have, you know, indefinite leave." And that can really kind of write you out of a job by writing you''re not qualified. So it''s important for doctors and medical people show the limitations and how the accommodations would help, but be careful of going too far and saying that having medical information that shows inability or a lack of ability to do the job. If there are issues with performance review, you''re allowed to submit in most days I believe evidence to show what you think something is inaccurate. Also make sure your job descriptions are somewhat accurate. Make sure for employees if you need an accommodation that you request it and do one properly. One thing we don''t say is that if someone doesn''t make a legitimate accommodation request then there''s no duty for the employer to provide an accommodation. An employer needs to know of a disability and the need for an accommodation before there''s a duty for an employer to provide one. And on the other hand, we encourage employees to be wary of disclosing any medical condition unless an accommodation is needed just because of the stereotypes and discrimination that still exists out there. And also in these situations, those are always tricky, because you''re saying I can''t do the work for a while, but I''ll be able to do it later. And look at other accommodations; working at home, temporary, part-time or issues like that. We have resources here. The DBTAC Great Lakes ADA Center, and we have the link there for the prior two webinar sessions on some of the sub issues we presented today. There is a general ADA DBTAC, Equip for Equality. That''s where you can contact Barry or myself if desired. And then some great federal agencies, Job Accommodation Network and the EEOC. And the next session is going to be the Impact of the Supreme Court''s ADA Decisions on February third. So I encourage all of you to stay tuned for that one. And there''s an evaluation form. We courage everyone to fill those out. I know we move quickly, but we''re hoping we got across a lot of the information and in a way that''s helpful for people. So I''m going to turn off my mike for a second and see if you have any questions in the few minutes remaining.
Alan, we have one question from Ron. He says, "What do you see as the minimal of participating in the interactive process by an employer?" Alan, are you able to hear me?
I''m not sure. It looks like Great Lakes was talking, but I couldn''t hear anything. So if you do have a question in a microphone, press the control key. And a little hand will raise next to your name, or if you want to type one in, that''s fine too.
Alan, you do have a question. The question that is before you is, "What do you see as the minimal of participating in the interactive process by an employer?"
Okay. Well, it appears that Alan is having a little difficulty hearing. So if you have any questions for him, if you could pass those on, we will pass on the ones that you''ve typed in, or you can feel free to email him later on. So this concludes today''s legal webinar series session. We realize that many of you may still have questions for our speaker and apologize once again if you did not get a chance to ask your question. You can also call us at the Regional ADA Center. 800-949-4232 or the national website at www.adata.org. We want to thank our speakers, Barry Taylor and Alan Goldstein for sharing their time and knowledge with us. We hope that everyone learned something that they can take away from this session and use in your job or personal situation. A reminder, of course, that the archive of today''s session will be available for viewing on the www.ada-wudio.org website within the next ten business days. Please join us for our next session, February third, 2010, titled Impact of the Supreme Court''s ADA Decisions. We encourage you to review the website and familiarize yourself with the full array of programs available during 2009 and 2010, Questions regarding the legal webinar series or other programs can be directed to 877-232-1990. That''s voice and TTY or by email to ADA conferences--c, o, n, f, e, r, e, n, c, e, s, at Adagreatlakes.org. Once again, thank you for joining us today. And have a good day. Please complete the evaluation for today''s program and submit per the instructions. A link to the online evaluation will be sent to you by email along with a copy of materials prepared for today''s session. Thank you again. It has been a pleasure serving as your moderator for the legal webinar series.