Okay, this is Claudia Diaz from the Great Lakes ADA Center. I just want to welcome everyone to our second session in the legal issues webinar series. We will be starting in a couple of minutes, just doing a test one more time.
Hi, this is Alan testing, testing 1, 2, 3...
That sounds good and clear, Alan. Barry, can we test yours one more time.
Hi, this is Barry.
Okay. I think we are good to get started. We are at the top of the hour and we have a really interesting subject today. It is, we are addressing the interplay between the Disparate Treatment and -- sorry there. I dropped my mike. Today''s topic is Disparate Treatment and Disparate Impact claims under the ADA: What are they and why are they important? As you all know and those are participants Barry Taylor from Equip for Equality, as the Legal Advocacy Director and Alan Goldstein from Equip for Equality Senior Attorney will be our speakers today. So, I would like to remind everyone, if they have any questions to hold off until the question and answer portion. We encourage people to type their questions in the chat area over to the right and we will be reading those for our Captioner during that time. So, at this point, I am going to turn it over to Alan and Barry.
Thanks Claudia. Welcome everyone. I am Barry Taylor and I am going to start and then Alan is going to follow up. You will see in the webinar outline in front of you, but first I am going to give you a very brief overview of employment discrimination law and then stop briefly to see if you have any questions after that and then I think some, the more meaty part of the presentation I will turn over to Alan to talk about disparate impact under the ADA and then he will also talk about some cases that have multiple issues. He has created the Name that Claim Game as a way to make sure we are all in the same page as far as what the differences between disparate impact and disparate treatment. One of the reasons we want to do these sessions is that I know some of you maybe lawyers, but I know that a lot of you are not, but you are still reading ADA cases and ADA summaries and a lot of times they will throw out terms like disparate treatment, disparate impact and it is unclear often what those terms mean. And so we wanted to make sure you understood what they meant because these are really important to employers, as well as employees to understand what these mean and because the terminology is really important and can make the difference and how these cases play out both in court, as well as in the workplace. So, first we are going to start with an overview of employment discrimination law and Alan is going to be turning the slides for me. We can go on to next slide and as I am sure all of you know that in order to be covered under civil rights law you have to show that you are within a protected class and most of the civil rights laws were passed in the 1960s covering a variety of protected classes that you see on your screen. And then of course ADA was added to this list in 1990 when it was passed and is now considered protected class as well. And then within any employment discrimination case including disability employment discrimination cases there are always two different legal theories and sometimes three depending on what the protected class is. The first one is, it is always a possibility under any protected class is the most classic discrimination kind of claim and that is disparate treatment and basically that means you are claiming that you had some sort of adverse employment action because you belong to one of those protected classes that we looked at. And examples of case that I handled here at Equip for Equality, there was a woman who was the supervisor and she kept a diary about all of her employees and she wrote in the diary about one of her employees who had a heart disease that if we keep her in this job for too much longer our insurance rates are going to go way up. And they ended up terminating her right after they had written that down and so that is a classic case of disparate treatment where you are treating somebody differently because of their disability and not because of anything like performance. A trickier one is disparate impact and that is when the person claims not that they are being treated directly identifying a problem within disability, but that there is some sort of work place rule or policy that is neutral on its face. It doesn''t mention disability, but it has an impact, a discriminatory impact on the people within that protected class. One of the first cases I ever handled involving disability discrimination involved a woman with multiple sclerosis who was a secretary and she worked at a law firm. And the law firm had one of those neutral policies and the neutral policy was they wanted all the secretaries at the end of every day to take any files they have been working on and take them to a central location for filing at night. There was concern about confidentiality and that sort of thing and because of her disability she had a very hard time lifting things including the heavy files that the lawyers were creating for her. And so, she was getting, she was having, she was experiencing problems in the work place because she wasn''t able to do that and people were saying, well, you are not following this policy. We got involved and really from, said, look, this is a policy that discriminates against her. The impact is discriminatory and you, we gave them a couple options. One was we said, you know this lifting isn''t really an essential function of a secretary to play. It is more about filing and typing and that sort of thing and this is something you could reassign to someone else because you can reassign not a central functions or perhaps you get a reasonable accommodation of providing her a cart and then she can move the files herself and without the lifting problems. And that is what they ended up doing, but you looked at that policy on its face, it has nothing to do with disability when you look at it, but it did have a discriminatory impact on her specifically. *****Program was disconnected for a brief period of time, we apologize for the technical difficulties.
Claudia, I see that you are back. Can you advise when we should start again? And Claudia, it seems like some people aren''t able to see the power point and some people are, if you have any suggestions on what people should do to try and adjust that.
Hi Claudia. When I came back it was gone so I reloaded it up but I can see it now and I have refreshed it a few times but what is interesting when it shows a slide number at the bottom when you are turning the slides, it keeps going back to zero which makes me think the system might be losing the power point or something.
I need you to go to the administration and send the current page and turn on Follow Me so everybody can be following with you.
How is that? Barry Taylor I can see it now, great. So I think we are going to go ahead and start and if people have any problems just type it in and I will try to respond to those more appropriately. I appreciate your patience. I think when we were all cut off we were on slide number 6 and I was talking about disparate treatment, disparate impact and Alan said that I was finishing my example of the secretary who had an disparate impact when she was required to lift heavy files as part of her job, that was a policy in the workplace and ultimately was able to get a reasonable accommodation. The third theory, and again I apologize if I am repeating this for anybody but the third theory that comes up in religious discrimination and disability cases is that they provide a reasonable accommodation and that can arise in a variety of contexts like modifying people''s work schedules, providing with alternate formats, assistive technology, that kind of thing. The reasonable accommodation can also be used to address disparate impact policy, a policy that has a disparate impact like I just suggested with respect to the secretary in the law firm. The accommodation was to allow her to have a cart to carry the files at night. So in essence they were able to keep the policy but as long as they modified that policy for people with disabilities it was fine to keep it in. One practical tip you will see at the bottom of this slide is that it is really important to identify your theory of the case if you happen to be an advocate or a person with disability because often times courts will say if you don''t identify your theory then you may lose your ability to bring that theory as the case progresses. So just like when we talk about different types of the different prongs in disability like factual disability versus regarded as and record of disability. If you are able to bring, if you have facts to support a disparate treatment claim as well as a disparate impact claim as well as a reasonable accommodation claim it is okay to plead all three of them in the alternative. Let''s go to the next slide please. A couple other terms, one term that comes up a lot in cases you will see is the term prima facie case which is a Latin term that talks about you just need to put enough evidence to support your claim and that if no one contradicts your claim you have said enough to prove the case. And there is lots of cases out there that talk about how prima facie cases are what you put on to flexible judges especially with respect to people who sue without lawyers and really aren''t familiar with certain terms. Judges are usually much more flexible with those folks. And a prima facie case really depends on the particular case, often times they vary depending on the claims that you are bringing but basically it is just to bring forth that the person is a person of disability, that is qualified, that has had an adverse act because of their disability and the adverse act was by an entity that is covered by the ADA, that would mean an employer that has 15 or more employees. Next slide please. A few other terms you will see in cases, burden of proof. Basically that is your burden to persuade either the jury or the judge that you have met the elements of your case so that you are a person with a disability, that you do that you are qualified and that you have been treated differently because of your disability. All cases start with the employee having that first burden to prove those elements of their prima facie case that we talked about before. And that point then shifts to the employer to show there was a non-discriminatory reason for the adverse action that is being alleged or perhaps the person doesn''t have a disability under the ADA or things like that. And we will talk about that in a just a minute. The other thing, two other things listed on this slide, one is the standard of proof that you have to show in these kinds of cases, it is called Preponderance of the Evidence and that means, more likely than not. You are probably familiar with the term, beyond a reasonable doubt and that has really confined to criminal cases and we are not talking about that. We are talking about civil cases so the judge or the jury have to determine whether or not it is more likely than not that the employee is correct and that they were discriminated against in the workplace. And then the final term that you will see a lot in these cases is called pretext. And basically what you are saying is that to cover up the real discriminatory motive the defendant is putting forth some sort of false reason as to why they acted adversely towards the employee. So a classic example, if the person was terminated because of poor performance but it turns out that the real motive was the person has a disability like HIV or epilepsy or mental illness that the employee wasn''t comfortable with and did not want them in the workplace once it was discovered the person had the disability. So the pretext is the person wasn''t performing well but in actuality the real motive was based on the person''s disability. So now let''s move on to disparate treatment under the ADA and the next slide has the quote from one of our Supreme Court Justices, Justice Stewart, who is no longer on the bench, but he talked about how disparate treatment, as I referred to before, is really sort of the classic discrimination where the employer treats somebody differently just because they are in a protected class. Back then when Justice Stewart said this it was before the ADA but obviously the ADA is now added to those other protected classes that are listed in his quote. And then the proof of discriminatory motive is also critical. A lot of times people think you have to show direct evidence of discriminatory motive but you can show it through inferring that there is some sort of discriminatory motive. So perhaps somebody was terminated, an employer terminates somebody for not meeting the attendance policy and they terminate somebody who happens to have a disability and then someone else in the workplace who doesn''t have a disability was not terminated when they violated the attendance policy, you would infer that the reason one was terminated and one wasn''t, the only difference there they both violated the policy the only difference is one person has a disability and the other one doesn''t. The plaintiff could allege that inferring from these facts that there was a discriminatory motive and then it is up to the judge or the jury to decide whether in fact there was discrimination. Next slide please. And then how you actually prove a case under the ADA. The prima facie case you have to, as I said, show whether the actual motivation of the employers decision was based on disability and we referred to this already but just so we are on the same page, you have to show as the employee that you have the disability under the ADA, which is obviously a little easier to do these days now that we have the Americans with Disabilities Amendment Act, then you have to show the employees a qualified individual subject to an adverse action and then this gets to where the preponderance of the evidence standard that the circumstances indicate that it is more likely than not that disability was the reason why they were treated differently in the workplace. So that is what the employee has to show in bringing a discrimination claim for disparate treatment. And then after the prima facie is established by the employee that is when we have that shifting of burden that I referred to before. And that is when the employer gets a chance to tell their side of the story to show that no, there wasn''t discrimination here. There was a legitimate reason for the adverse action. A legitimate reason why the person wasn''t hired or the reason why the person wasn''t promoted or the reason why the person was terminated was not related to disability. And it can be for a variety of reasons, one is maybe the person doesn''t have a disability or maybe they weren''t qualified or there is no reasonable accommodation that would enable them to be qualified. You will see some examples under there. Perhaps the person poses a direct threat and so the safety issues were so vital it was important to take some sort of adverse action. And maybe the person was terminated because they were laying off a bunch of people because we have a bad economy, a reduction in force and it just happens to be that one of the people laid off happen to be a person of a disability. That would be the kind of thing that the employer would respond when the burden shifts over to them. Next slide. And then once the burden is met by the employer the presumption is that there was no intentional discrimination generally. However there is still a possibility for the employee and this is something I refer to when we are talking about the terms and that is that there was some sort of actual discriminatory motive and that the motive the employers put forth is pretextual, is actually false and it is covering up the real discriminatory motive underneath there. And you will see a quote from the 10th Circuit which talks about pretext. So real quickly we are going to talk about in the next slide proving pretext. And one thing I just want to mention if you feel like this is going too fast we are having a whole session in September that talks about pretext. There is a whole huge line of cases about pretext and so we are going to give you just a little bit of understanding what it is so that it makes sense in the context of disparate treatment and disparate impact but we want to delve into this in more detail in the September webinar that we have coming up. But real quickly step one, improving pretext''s is you have to show the adverse action that we talked about and it can be failure to hire, it can be termination, retaliation, that sort of thing. And then that moves to step two on the next slide where the employer can rebut the disparate treatment by showing the legitimate non-discriminatory motive that we talked about before and then the third part is really where the pretext comes up and that is when the plaintiff, again the burden shifts back to them to prove that the employer''s explanation is not true. It is a pretext. And you can prove pretext in a lot of different ways. It can be people testifying, maybe co-workers who testify or you can cross examine the witness who claimed it was a reason and then say, well isn''t it true that in fact it was done for this? And giving evidence and trying to get it out from the person who put out the first reason of non-discrimination or non-discriminatory motive. You can also put forth documentary evidence. So that diary that was, that the supervisor was keeping about the woman with the heart ailment, that was documentary evidence that would prove that it wasn''t that the person was terminated because of poor performance but was terminated because of the concern of them staying in the workplace and raising their insurance rate. Next slide. So when you prove disparate treatment you can show what is called direct evidence and indirect evidence and so the direct evidence, and again we have referred to these already, are other employee comments, memos, any kind of observations in the workplace, things that actually happen within the workplace but oftentimes you don''t have that kind of evidence and so you need to prove your case through what is called indirect evidence or circumstantial evidence and this evidence is just as good as direct evidence as far as what it takes to prove an ADA case but it does require somebody to infer something based on what you have put forth. So for instance if you have inconsistent discipline where you provide a higher degree of discipline against an employee with a disability then you do with an employee without a disability that would be indirect evidence. Or perhaps you have had ten openings in the last year and people with disabilities applying for every one of those openings and no people with disabilities were hired, that would be indirect evidence of failure to hire people with disabilities. Now of course then the employer can say, well the reason we didn''t hire those people with disabilities is because in every case we had somebody who is more qualified and then it would be a factual determination by the jury and the judge. Unfair negative performance reviews related to disability, increased oversight after somebody asked for reasonable accommodation, all those are examples of indirect evidence that can also be put forth. And then a third factor that can come up is what is called a mixed motive for a decision and this is a pretty complicated area of law but basically what mixed motive is that there has been proof that there was a non-discriminatory reason and a discriminatory reason for the adverse action. So maybe there were some performance problems but there was also evidence that the person was terminated because of their disability. That is a mixed motive. And then it goes to the jury or the judge to decide, well really how much of the decision was based on the disability and how much of it was based on other things that were not discriminatory like poor performance? And that is something the judge and jury decides in weighing the evidence. And then that can translate to, maybe if you say well a quarter of the reason why they did it was based on disability but really most of it was on the basis of poor performance. Well that would affect the persons damages that they could receive because most of the reason why the person wasn''t kept on in the workplace was not related to their disability but some was and so they might be entitled to some damages. But if there is enough of a reason maybe to terminate somebody based on something other than disability then the employer would have a strong argument that they, the employee, would not be entitled to reinstatement because even though there may have been some discrimination in the decision to terminate, if there was enough discrimination to terminate them based on non-discriminatory factors like poor performance then the employer would be likely successful in arguing that the person would not be entitled to be reinstated. Next slide. A real quick example of a case involving disparate treatment and policies, a lot of times when I referred to before I talked about disparate impact that it was a mutual policy. Well it is possible to also have a policy that is not mutual on its face and that can be discriminatory. And if you have a policy that is not mutual on its face and it''s discriminatory, that is disparage treatment even though it is a policy as opposed to some sort of action in the workplace. The Taylor versus Rice case is a really good example. In that case Mr. Taylor wanted to be an officer with the Foreign Service. He disclosed that he had HIV and at the time the United States had a policy that you cannot be in the Foreign Service if you had HIV. And the rational was you needed to be deployed on a world wide basis and that you could be deployed to places that did not have sufficient medical support for somebody with HIV. But rather than sort of examining that person and the particular countries they are going to and that sort of thing to be qualified, it was more of a blanket policy and everybody with HIV was excluded from this particular position. And originally the trial court had thought that the person would be a direct threat to themselves and therefore the employer''s policy was not going to be deemed discrimination under the ADA. But when it was appealed up to the DC Circuit Court they said that the employer failed to address any sort of reasonable accommodations that would reduce this direct threat and that on the face of it you had a policy that was treating this person differently than people without disabilities and than if you were able to accommodate them then that person could still be a Foreign Service officer. So one thing would maybe limit their assignments to places where there would be sufficient medical support. Or perhaps allow the person leave from the particular country they were in that didn''t have the medical support to go to a country that did have medical support. And so even though if you read that case they probably don''t use the word disparate treatment throughout the whole case, it is a disparate treatment case because if you look at the policy it talks about treating someone with HIV differently than somebody else. It is not a neutral policy. It is clearly directed to one type of disability in a protective class. So real briefly I am going to just go over a couple of tips for employees, next slide. One of the first tips is that it is really important for employees with disabilities and advocates who are advising them to address the employers conduct and complain to the supervisors, especially in case of harassment by co-workers and that to address the conduct that is offensive or potentially discriminatory in a contemporaneous manner so don''t wait too long to bring it up. It is better evidence if you do it right away. Also keeping good documentation of any type of conduct that seems to be discriminatory and doing that in a timely fashion is also important. If there is any kind of injury that arises from the wrongful conduct in a workplace providing that proof to the employer to show what happened so that the employer can''t say they weren''t on notice. Also should be aware of statue of limitations. Generally the rule is that you need to file within 180 days of the adverse action if you are in a state that has what is called a work share agreement with your local human rights department. That number of days can be extended up to 300 days. And as I alleged before, it is important to allege all possible claims as a plaintiff, as an employee. And we cite the Timmons case which said that they failed to bring up the failure to accommodate claim sufficiently and therefore it was deemed waved because it wasn''t raised clearly in the original complaint. And then some quick tips for the employer''s, next slide please. One is, and this is really important, making sure that managers are trained on the ADA especially new hires so that they know what the law is and what they are responsibilities are under the ADA. In addition to training I think it is important to retrain, especially when there are new developments coming out. We have the new ADA Amendments Act that just came out and I think it is important for people to be retrained because it really has changed the, how the law is going to be interpreted by the courts because of what congress has done. Really important also that employers properly define the essential job functions so it is clear what is essential, what is not. Making sure that you are not having things in your job policies that don''t relate to an essential function, like lifting requirements we talked about. Modifying any anti-discrimination or anti-harassment training that you have to include disability training. A lot of times you will have sexual harassment trainings that are done but there is a lot of potential disability harassment issues that can arise too and so broadening any kind of training that you are doing to include disabilities is important. Making sure that the disability accommodation harassment policies are in place and have appropriate grievance procedures and then that they are followed. There is, it is really problematic for employers to have policies in place that aren''t followed. So it is important to have the policies and then have training and then follow through that the policies are complied with as set forth. Important to obviously document any performance and safety issues in case there is a potential direct threat claim. And then also I think probably this is along with retraining and training, being consistent is really important, especially when it comes to disparate treatment. We talked about how you can prove disparate treatment through indirect evidence and one of those examples of indirect evidence is when the employer is inconsistent. They treat maybe a person with disability differently than they treat people without disabilities and that is a good example of indirect evidence and leads to an inference of disparate treatment. So again if you are not consistent with enforcing an attendance policy or some other policy and you are adversely enforcing it against a person with disability that could be deemed disparate treatment against you. Just really important to be ready to make those reasonable accommodations that we discussed, engage in interactive process and do it in a timely manner and then one other tip that I skipped over is when we are talking about consistency sometimes the consistency is not that the one person is inconsistent but that you have inconsistent actions by different managers. And so one way to avoid that is to be centralized in decision makings that have to come up with things like reasonable accommodations and enforcement of attendance policies and that sort of thing and that way you have consistent decisions across an organization. So with that I will just open up and see if there is any quick questions on disparate treatment and then we will move to disparate impact. As you can see Alan''s got a good visual for you for disparate impact and we will continue on with the meat of the program. Any questions for so far? Ok with that I will turn it over to Alan and if people have questions later on disparate treatment, at the end we will have time for questions as well. Alan.
Okay, thank you Barry and thank you Claudia. And if at any time the mike goes out or anything please type in or something so I am aware of it because otherwise I will just be going ahead helter skelter. So we are going to talk about disparate impact. Barry did a really nice job laying out disparate treatment where really the motive is the key and then the second type of discrimination is disparate impact which we will talk about. The third type as we pointed out earlier was reasonable accommodation and we are not going to have a separate topic for that but that really ties in to disparate impact. And we will see in some of these cases it is clear that a policy is facially neutral and that it may have a disparate impact. Other policies may be a disparate treatment policy like the one in the case involving the state department in people who are HIV positive. That was a policy that was not facially neutral. And some of them could be a bit of a grey area. And towards the end of the presentation we will see that courts have somewhat wrestled with plugging the ADA into these disparate impact, disparate treatment types of theories which are really from title seven civil rights act litigation. And then courts have kind of been fashioning an ADA approach to these issues. But for now we are going to talk about disparate impact which involves employment practices that are facially neutral in their treatment of different groups but have a significantly adverse impact or effect on a protected group compared to others. Motive, a discriminatory motive is not required. These could be well meaning policies with no intent at all to discriminate but they still might have the effect of discriminating through a disparate impact. And like Barry talked about with the burden shifting there is a very similar three part proof process that was codified on the Civil Rights Act of 1991 and it is very similar. First the employee has to establish that there is a disparate impact on a protective class. Once they make out that prima facie case then the burden shifts and the employer now must come forward and demonstrate a business necessity for the practice or policy or procedure. And by business necessity, especially under the ADA it is defined as being job related and mandated by business necessity. So it is going to be a factual, specific inquiry in terms of whether the policy is in effect for that particular position that the person holds. And if the employer shows that there is a business necessity for that practice then the burden shifts back to the plaintiff to show that the reason is pretext. Well they say it is a neutral policy but really it is really setting up some type of discrimination. Or a person can also show in an ADA case that there is an alternative process that is equally effective that does not have a disparate impact or that a reasonable accommodation when put into this policy will enable someone with a disability to not suffer disparate impact based on the policy. So we are going to look at an old Title VII case from 1971, Griggs versus Duke Power and this kind of lays out, excuse me, how disparate impact looks. And in this case an employer required job applicants for certain positions to either have a high school degree or to pass a standard intelligence test. And for this position African American''s were disqualified at a substantially higher rate than white applicants due to this policy. Also looking at the position historically only white employees have held those jobs. But there was no showing whatsoever that the policy was put in place for a discriminatory purpose. There was no motive to discriminate. That may be questionable but on its face it is a neutral policy. But there is also no showing that the standard or the policy was really significantly related to successful job performance and that is where we get into the job related nature of the analysis. In this case the lower courts found no discrimination because there was no discriminatory intent. The employer basically put forth the position we are the employer. We can set forth the policies we think we need to set forth and unless we have an intent and a motive to discriminate, those policies should be upheld by the courts. And the lower court in this situation agreed with that but when it got to the Supreme Court the Supreme Court reversed both the district court and the appellate court. And Chief Justice Berger writing for the Supreme Court wrote and I quote, good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as built in headwinds for minority groups and are unrelated to measuring job capability. So the Chief Justice said motive does not matter in disparate impact. If it has the effect of discriminating, that is enough to raise a discrimination claim, a very, very important decision for employees and for employers. And then looking at the ADA, the ADA actually had the provision which relates specifically to disparate impact. It says employers may not use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard test or other selection criteria as used by the covered entity is shown to be job related for the position in question and is consistent with business necessity. So what its saying is if a policy screens out or tends to screen out people disabilities, it is still okay if the employer can show that it is consistent with business necessity and related to the job in question. But unless the employer can show that then that policy or that selection criteria or that employment test would not be okay. There is some EEOC guidance on the use of selection criteria. Under the resources I have a couple of links to some information from the EEOC in this area. And it says the purpose is really to ensure a fit between the job criteria and an applicant or employees actual ability to do the job. And the EEOC inserts that even job criteria that unintentionally screen out individuals with disabilities should not be used unless those criteria are used in a manner that is job related to the position and are consistent with business necessity. Selection criteria that do not concern an essential job function, according to the EEOC, would never be consistent with business necessity. It must relate to an essential job function in order to satisfy the job related and business necessity criteria. And we have here some policies that may have a disparate impact if not reasonably modified, for example a facility that requires a driver''s license as a form of identification when driving is not part of the job. It is not an essential function. They just want the license as an ID. And in some cases the employers will refuse to accept, for example, an official state ID instead of a drivers license and courts and the EEOC guidance says well even though this policy is neutral on its face it has an impact of discriminating against people with disabilities because many people with disabilities might not be able to drive due to their disability. So that can be modified by accepting some other official type of identification. In a case that our agency, Equip for Equality, worked on Karraker versus Rent-A-Center. Rent-A-Center used the Minnesota Multiphasic Personality Inventory personality test for job applicants and the court said that test has the effect of discriminating against people with mental illness and it is also possible these tests might discriminate against people with other types of disabilities, for example cognitive disabilities. And what is interesting is our agency wrote an amicus brief, a friend of the court brief on this case and we had a whole section, I pulled up our brief to look it over again, we had a whole section talking about disparate impact. And even though the court sided with our position in the case, in the court decision they never mention disparate impact in the analysis. They really just look to see whether there is an effect of discrimination and it could be an argue that since it is a personality test it might would be more of a discriminatory, disparate treatment because it is going to personality which can again relate to mental illness. Another policy which courts have found to be violative of the ADA are when businesses have 100 percent healed or fully healed policy you return to work usually after medical leave or something like that. The courts have found that these are not acceptable under the ADA. They do not leave room for an individualized assessment. And even though these are often looked at as disparate impact because you are talking about healed in a physical condition it might be possible to say that some of these might have a disparate treatment type of affect as well. Another similar policy that has been found to violate the ADA are policies that tell employees either return to work after one year on leave or you are terminated. These policies too have been found to violate the ADA. And as note in the bottom many times a court use an ADA or reasonable accommodation type of analysis should the policy be modified, even if it does fit into a disparate impact situation. And then we have some policies listed here, we are going to look at some cases that involve these very policies but very briefly, what about a policy that grants reassignment based on seniority? Obviously a neutral policy but could that have a discriminatory impact? Or a policy forbidding hiring or re-hiring former employee''s who were terminated for cause or resigned in lieu of termination, could that have a disparate impact? A standard that drivers of smaller trucks must meet a hearing standard the department of transportation sets for larger trucks. And that could be a disparate impact analysis although that might fit more under disparate treatment because it is looking directly at hearing. But then the question comes how do you analyze this type of policy? There is a policy in a case involving America Online where they require that tech support staff be able to work online and offer tech support and on the phone and offer tech support, even if they don''t have to do any phone work for the online support. Even if some positions require absolutely no phone work, AOL required that everyone who does non phone tech support must have has phone experience and that had an impact against people who are deaf or hard of hearing. Policy that prison chaplains meet physical fitness requirements, we will look at that in terms of disparate impact. One facility assigned workstations on a first come first serve basis but an employee with a wheelchair was often late getting to work and getting back from lunch do to a lack of accessible parking and because this place also had a strict tardiness policy this employee was disciplined. And he argued that the first come first serve workstation policy had a disparate impact on him. And one thing, we don''t have a case on this but this is something I think that is important and should be in everyone''s mind, now when people apply online for jobs even it is a very basic entry level position often people have to complete a lengthy, somewhat complex, online pre-employment test which really doesn''t seem to be specifically related to the job, whether it is bagging groceries or doing custodial work the test doesn''t really seem to talk about any of that and it is often very long. It can take a half an hour or more to fill out and one question we wonder is under the courts decision in character which really called into question whether these tests can be job related and consistent with business necessity one question that comes up is are these requiring that applicants fill out these tests, is that policy that applicants must fill it out, does that have a disparate impact on people with disabilities? So first we will look at the Barnett case, this is a U.S. Supreme Court case and many of you may be familiar with it but this isn''t based on a collective bargaining agreement but U.S. Airways had a policy where the give or where they bid positions, open positions based on seniority. And a person who due to their disability was no longer able to do their current job and wanted to be re-assigned even though they lacked the necessary seniority. And the question is must a policy granting reassignment based on seniority be modified as a reasonable accommodation? And the court said not necessarily but sometimes. And the court said neutral rules, which this is, do not automatically trump reasonable accommodation requests and they look at the congressional intent behind the ADA. They said, however if the policy is uniformly applied and the company consistently applies the seniority policy then they do not have to modify it as a reasonable accommodation. However if the individual seeking the new position can show that the policy with the seniority provision was not strictly followed in other cases and there were a lot of exceptions then the company may need to modify their seniority policy. If not then the seniority policy, if it is consistently applied, will trump a request for reassignment. In this decision the court refers to accommodations, reasonable accommodations as special and preferential and basically they never mention disparate impact even though they do mention specifically that this is a neutral workplace rule which I found interesting. And they really went through a reasonable accommodation type of analysis. And the court also went out of its way to point out some problems of allowing neutral workplace rules to have veto power over accommodations and they just threw out some examples. For example, neutral office assignment rules will provide accommodations of an employee whose limitations require work on the ground floor. Or neutral break from work rules will provide the accommodation of an individual who need extra breaks from work either for medical visits or someone with diabetes to monitor their blood sugar or something like that. The court even point out that neutral furniture rules might prevent the accommodation of an individual who needs a different kind of chair or desk based on disability. And so that is the Barnett case and that comes from the Supreme Court. Another case I wanted to discuss which had a whole host of policies is Hendricks-Robinson versus Excel and this is a meat company, a meat packing company. They had the following policies, reserving light duty positions for employees with temporary, key word, medical restrictions. Once an employee was in one of these light duty positions and their restrictions would deemed permanent, they were removed from the light duty position even though they were doing it fine and forced onto medical leave. Then after they were on medical leave for one year they were terminated due to a policy terminating people on leave one year. The company also had a no rehire policy that they don''t rehire former employees. And then they also had a policy that job applicants must meet the qualifications of the job and have equal physical fitness, as other candidates. That policy was in question. And the company also was seemingly playing some games telling employees they were automatically bid for the non-production lighter jobs, which wasn''t the case. The non-production jobs were only posted in the plant which employees on leave did not have access to and then they were only posted for two days. So it was really impossible for an employee on leave who needed a lighter job to bid on these non-production jobs. I just wanted to read a short excerpt from the case about meat packing. This is a case, and in some of these cases we will see the essential functions are quite important. Excels, and this is from the case, Excels meat packing plant in Beardstown, Illinois slaughters, cuts and packages approximately 15,000 hogs daily. They have between 1600 and 1800 employees, 85 percent of whom are on production lines slaughtering hogs and those on the production lines work hard usually under uncomfortable condition. The tasks are often heavy and include much repetitive hand work that must be performed quickly and precisely and the rate of injuries among such workers is not unexpectedly high. The court says a nice example of understatement. So then the court looked at all these policies. So one, reserving light duty positions for employees with temporary medical restrictions. The court actually said that policy is okay. And there has been some litigation on this issue in various cases and I think the tip for employers on this is if you want to have a position that is designated as temporary as people recover from work injuries or from other medical conditions but you want it to be a temporary condition, it is really best to make sure that these positions are designated as temporary and everyone knows up front it is temporary. In this case the employees were sometimes pulled from job to job and never knew that their position at a lighter job was temporary and were shocked to learn that because their limitations were deemed permanent they were taken off the job, which they were doing fine, due to their inability to perform their previous job which they were not able to do due to limitations. The court looked at the company policy of forcing working employees who were able to do their current jobs into medical leave. The court held that that violated the ADA. They also looked at the policy requiring that applicants have equal physical fitness as other candidates and the court said that was not okay. The applicants were already deemed to be qualified so adding that extra step of physical fitness which one, is vague and two, not really allow for an individualized assessment, was not allowed. And while most of these policies might be some disparate impact this one seems to be more of a disparate treatment type of policy which kind of showing how some of these cases get blended together. However legitimate weight lifting, legitimate job requirements are okay. We have a case here, I am not sure if it is pronounced Foozy or Fuzzy but in that case the employer had a weight lifting requirement that a pipe fitter needed to lift 100 pounds. And that requirement was based on Department of Labor standards and the court said that is fine to have a requirement. If someone can''t lift 100 pounds, even if it is because of a disability and no accommodation will let them lift that weight, then they are not qualified. And I would raise the issue whether a Department of Labor standard really is an individualized assessment of the job in question but the court didn''t address that issue and held that 100 pound requirement was fine. And then getting back to Hendricks-Robinson the court also said that terminating employees after one year on leave also violated the ADA. It is interesting the court used a reasonable accommodation analysis in reaching its conclusions. It also noted, fairly strongly, that the employer did not engage in the interactive process and at some point seemed to actually mislead people. Employees had no access to the non-production jobs and the employees were deceived about being automatically bid for non-production jobs. They were told they would be bid for them but they weren''t. And just so I complete my essential function litany, some of the non-production jobs or some of the regular production jobs that were deemed lighter duty, which these people were not able to get, were jobs such as trimming thyroids, turning hogs, trimming butts, tens skinner, front foot cut off, ham boning and combo makeup. So those were some of the lighter jobs. In this tough economy if people are looking for new jobs and feel like doing some ham boning I guess Excel might be a place to go. And then real quickly I want to look at the Convergys case, I alluded to this earlier, they had a strict tardiness policy and also allocated workstations first come first serve. An employee used a wheelchair, was often late, there was no accessible parking. The stations were filled when he got there. He just wanted to be accommodated by coming back late for lunch or a little extra time to return from lunch. For example instead of saying I have to be back at 1:00, can you make it I have to be back at 1:15? And the court held implying the employee an extra 15 minutes to return from lunch did not require eliminating an essential function, punctuality. It only created a different time for measuring punctuality. But again a reasonable accommodation analysis was used there. And as I mentioned, sometimes there is a combination of issues and it is hard to plug it into disparate treatment, disparate impact, reasonable accommodation because it can be in more than one category. The Supreme Court decision in Raytheon versus Hernandez, an employee was forced to resign after testing positive for cocaine in violation of workplace rules. More than two years later, after successful rehabilitation, he applied to be rehired and the employer says no. We have an unwritten policy against rehiring employees terminated for misconduct or quit in lieu of termination. And sometimes it is interesting maybe is the fact that an advocate but whenever I hear an unwritten policy asserted once a lawsuits filed I also wonder was it really a policy or is it just something that they are saying now to justify their conduct? And in this case it is not really clear which. Just a note here the ADA does not protect individuals due to current use of illegal drugs but people with a history of illegal drug use may be protected if they meet the ADA''s or one of the ADA''s definitions of disability. In the Raytheon case it was interesting because the HR decision maker who rejected Mr. Hernandez application said I never even knew he had used drugs. I just saw that he had resigned in lieu of discharge before and knew that we couldn''t hire him. But the Supreme Court didn''t really go into the facts of this. I looked at the Appellate Court decision and the Appellate Court noted the decision maker, even though she said she didn''t know that he had used drugs in the past, the decision maker pulled his entire personnel file so the information was in the personnel file. The drug test results were in the personnel file. And interestingly the recent application that the employee submitted to be rehired had a reference letter from a counselor at Alcoholics Anonymous yet the Supreme Court seemed to buy the company position that we had no idea that he was a person with a disability. Even more interesting in this case the manager of diversity development for Raytheon said to the EEOC that the application was rejected based on the demonstrated drug use and the complete lack of evidence indicating successful drug rehabilitation. In fact there was evidence indicating successful rehab. The diversity director also said the company maintains its right to deny reemployment employees terminated for violation of company rules. And then the employee of course filed an EEOC which is why the diversity director got to speak to the EEOC claiming that he was protected of having either a record of drug addiction or being regarded as being a drug user. The EEOC, after their investigation, found reasonable cause that a violation occurred. Regarding the disparate impact claim the court held that it was barred the employee raised disparate impact, disparate treatment and request for an accommodation. The court held that it was barred the disparate impact claim because it was not raised prior to the close of discovery. But again looking back in this case the employer never mentioned that they had this unwritten policy of not rehiring people terminated for cause until the case was before the court in summary judgment after all discovery and information was exchanged. And that is when the employee first said, well if that is what they are saying then that policy has a disparate impact. And the court said, well no, you are raising disparate impact too late and barred the employee from pursuing that. But I don''t know how the employee could have raised it earlier because they never knew about the policy until summary judgment. And then the court said they were only going to look at disparate treatment in this case. We are looking at the Appellate Court now. We are going to look at disparate treatment now. He raised a prima facie case of disparate treatment but because the neutral unwritten policy can result in discrimination it can never be a legitimate non-discriminatory reason for its rejection. That is the second step of the disparate treatment analysis. And that is the Appellate Court. And then when it gets to the Supreme Court Justice Thomas framed the issue as whether the ADA confers preferential hiring rights, rehire rights on disabled employees who were lawfully terminated. I am not sure if that really is a proper phrasing of the issue. It seems like it is a little sternly worded I think. I don''t know if he is really looking for preferential rehiring rights. He has just looking to not be discriminated against based on his status as a person of disability. And the court held both disparate treatment and disparate impact claims are cognizable under the ADA. It agreed with the Appellate Court that the disparate impact claim was raised too late but it disagreed and said the Appellate Court improperly applied a disparate impact analysis to a disparate treatment claim. So it looked at the effect of the policy, the policy had the effect of discriminating against people who had used drugs but was it really the motive behind it. The court said if you are looking at disparate treatment you don''t look at the effect you look at the motive. And the court went on to say that that policy is a quintessential legitimate non-discriminatory reason. And then I have some questions about this case. Did the diversity manage a statement saying we have a right not to hire people who use drugs? Isn''t that showing a disparate treatment motive? The court never addressed the diversity manager''s statements and the fact his statements weren''t in the Supreme Court decision or the Appellate Court decision. And what I raised before, when should Hernandez have raised a disparate impact claim if he didn''t know about the written policy until summary judgment? I am not sure what the answer is. We will see in one decision the court says the employee just needs to raise it whether they know that there was a reason behind the termination or even if they were just told, I am sorry the position was filled. The court sometimes put the onus on the person with disability to raise that claim or risk having the statute of limitations run. Would Hernandez have won if they looked at disparate impact? That of course is not addressed. The court said we won''t even look at that issue but it is a possibility. And then for employees who are not hired and failure to hire, how can an employee ever know the real motivation for a decision? And then was the employer really insulated from liability because he claimed the decision maker didn''t even know the disability. As I mentioned the Supreme Court decision kind of glossed over that but looking at the Appellate Court decision it is possible the HR decision maker did know of his disability since she pulled the whole file and there was a reference from Alcoholics Anonymous. So I found the case somewhat troubling for these reasons, as you can probably tell. Again this was after the Barnett case. Barnett may not have raised disparate impact. The Supreme Court didn''t even decide until the Hernandez Raytheon case whether disparate impact, disparate treatment applied to ADA cases. Then once it said that they did courts found other trouble in trying to analyze these cases. In the AOL case jobs available for external hire and tech support were only voice phone positions. This was because they found that call centers in the Philippines which did non-voice phone, the online typing type of tech support and they wanted to do that in the Philippines and didn''t want to hire anyone new for that. So in 1997 AOL changed their policy that only non-voice phone positions would be in the Philippines which then required that anyone who wanted to work on voice phone would of had to have some voice phone experience. And the question was with voice phone experience was it really the essential function for working on the non-voice phone positions. And again by non-voice phone I just mean mostly typing on the computer. Before 1997 people who were deaf handled both or I am sorry handled the non-voice phone position without a problem. An applicant whose deaf desired one of the tech support non-voice phone positions and AOL said that is only available internally and the question is voice phone experience an essential function of the non-voice phone positions? And the court again looked at the three types of discrimination that Barry outlined, treating a qualified individual with disability differently because of the disability. That is disparate treatment. Qualifications standards that screen out or tend to screen out people with disabilities, that is disparate impact and then not making reasonable accommodations. And the court said that no matter what theory used the first thing a person has to do is establish they are qualified. And the court said this is a disparate treatment case and again maybe it is possible to say its disparate impact because they are saying you need voice phone experience to do non-voice phone work which would impact someone who is deaf. But the court said to them there was more obviously disparate treatment that showed some type of motive. So they looked at it as a disparate treatment case where McDonald Douglas burden shifting generally applies. There was an also disparate impact I think possibly but the court didn''t delve into that. I am sorry I am trying to go a little quickly here. We are running a little late because of glitches before but we are certainly leave enough time for questions and everything. So the court said generally McDonald Douglas burden shifting applies to disparate treatment but in this case it is really unnecessary. The employer admits that you know someone who is deaf could never do the non-voice phone work because they now require the non-voice phone people to have voice phone experience. So it really doesn''t have to go back and forth in terms of pretext. So the court said the key to our decision is whether Davidson is a qualified individual and that is a factual dispute resolved in traditional methods of proof. And I think that is the key of this decision. On these ADA cases plugging them into disparate impact treatment is hard. Let''s look at an ADA analysis. Are they qualified? One thing too, AOL asserted well the non-voice positions weren''t even available for outside people but the ADA says that an applicant or an employee who feels they have been discriminated against in applying for a job that they hold or a job that they desire can raise that. And the court said well he desired the non-voice phone positions and the fact that they were not available externally was only due to AOL''s policy. So the court went through a qualified analysis and really that brings in all the ADA issues we have talked about it. It brings in reasonable accommodation because the person must be qualified to perform the essential job functions with or without reasonable accommodations. So that brings in accommodation issues, job function issues and it can also bring in safety concern if those are evident. And then another case, one thing I want to mention too, this case is Jeffrey versus Ashcroft and was the Bureau of Prisons and places involving federal employees were analyzed under the Rehabilitation Act which has the same analysis as the ADA but it is a different law ostensibly so it is important to keep that in mind. Here the Bureau of Prisons terminated a chaplain with chronic pulmonary disease because he failed a physical abilities test. The court notes both parties have struggled to present it in either disparate treatment or disparate impact and the court said, well neither one is really pertinent here. I mean it is a policy but it is a disparate treatment type of policy because it is a physical abilities test. But the court, you know, looked at the AOL decision and said you know really neither analysis works here. The criteria is not facially neutral for disparate impact but for disparate treatment the burden shifting approach doesn''t make sense either where the employee''s reliance on the employer''s physical or mental impairments is obvious. So the court used the AOL framework, reasonable accommodation qualifying analysis framework. It looked at treatment of others in the same position. There was insufficient evidence to show that passing the test was related to an essential job function in terms of having done the voice phone, I am sorry the physical abilities test was related to essential function. It doesn''t come up to much for chaplains. Chaplains hired before 1997 weren''t required to take it. I think for this chaplain they waved it when he first applied and it was waved for other applicants. That is relevant. So I think for all those reasons the court looked at the analysis and said well the chaplain should not have been terminated. Now I wanted to look at UPS versus Bates. This is where UPS used the Department of Transportation standards for large trucks, the hearing standards for drivers of larger trucks over 10,000 pounds and took those standards and then applied it to their drivers who drove smaller trucks. So there is no Department of Transportation hearing standard for the smaller trucks but UPS just adopted the larger truck standard and used it in their company. And this is a class action. Hard of hearing and deaf employees and applicants challenged the policy and won in district court. UPS was barred from using the blanket policy and the court said you have to do an individualized assessment. UPS said, well it is a safety standard. People who can''t meet this hearing standard can''t drive safely no matter what the size of the truck. And the district court said well that is a blanket policy. The ADA requires individualized assessment. That is what you need to do. And then the case went up to the Appellate Court and the court said the ADA''s business necessity defense, remember the job related consistent with business necessity. It can be asserted against any kind of claim, disparate treatment, disparate impact, failure to accommodate and it said as the other case when something is facially discriminatory as in here the burden shifting approach just doesn''t work. The employer instead must show the standard tested criteria are job related and consistent with business necessity and that performance cannot be accomplished by reasonable accommodation. Court further noted the business necessity standard is quite high. It is not just mere expediency. It is not just the business saying we wanted to do it so we did it. And it is a fact intensive analysis that requires a close look and because UPS has linked hearing with safe driving because it was a safety issue kind of getting into the direct threat type of issue. Even though the employee normally has to show they are qualified because it is a safety direct threat type of situation the burden was put on UPS to show that their policy, their hearing requirement was linked with safe driving. And the court again used a direct threat analysis because it is a safety requirement. And in direct threat that is a defense so that the burden for those situations does fall on the employer under the statute. The employer must validate the test or exam for job relatedness to the specific skills and physical requirements of the position. We will talk a little bit about validating. That is a whole other ballgame in terms of validating tests which requires extensive analysis but it is up to the employer to do that. They must show that the qualifications standard fairly and accurately measures the individual''s actual ability to perform essential functions. An employer must demonstrate a predictive or significant correlation between the qualification and performance of the essential functions and must also put forth evidence establishing those functions and why they''re essential. The standard must substantially promote the business needs and the fact that UPS used a government standard even though for a different truck size, it is some evidence. It has some relevance for the court said it wasn''t the end of the game. You can''t just take one standard that''s used for one size truck and then just adopt it for another size truck and then say it automatically applies. There needs to be that analysis there. The employees must still show they are qualified to perform the essential function of safely driving, whether or not they meet that hearing standard. This is something the district court did not really make a finding about. It was sent back to the lower courts to do that. And it says the employee does not bear the burden to invalidate the safety based on qualification standard. Rather the employer bears the burden to validate it. The employee doesn''t have to invalidate it. I am sorry if I said that before. But the employee does not have to invalidate the safety standard. The employer has the burden of validating it. And here looked at the basic qualifications for a package car driver position and it says an employee who meets it enough seniority, 21 years of age, a valid driver''s license and they can drive a package car safely. They have a clean driving record. They can pass the driving test. Then they are otherwise qualified. End of story. Now we are going to have some tips for employees with disabilities regarding disparate impact. One, inform employers if it negatively impacts you and you can ask that the policy be rescinded or more often than not it is usually ask that the policy be reasonably modified to avoid discrimination. I think it is worthwhile to explain why a person''s negatively impacted by the policy. If the disability or the need for the accommodation is not obvious the person with the disability may need to submit additional medical documentation, limited in scope which is showing an ADA disability and a reasonable accommodation. And it is always a good idea when communicating with management in accommodation situations to ask for a timely response, for example two weeks and of course be abreast and aware of time filing requirements and deadlines. One thing too for federal employees it is not the 180 days or the 300 days Barry talked about. Federal employees don''t have to file something within 45 days but they need to report it to their EEO officer or the EEO equal employment officer within 45 days. So for federal employees it is a much, much shorter timeline. Some more tips for employees, again allege all possible claims. In the Timmons case you don''t want the court to say oh you allege disparate treatment but it''s a failure to accommodate case. You want to allege everything that applies to the facts. So and a charge alleging an employer says we don''t hire disabled people is really disparate treatment so if you wanted to raise an accommodation claim you need to put that in the case as well. This is from the Boldridge case where they were not allowed to raise an accommodation claim because it was disparate treatment. We don''t hire disabled people. And it held that statement was not reasonably related to charges of disparate impact failure to hire, accommodate or prohibit inquiries. The person only put that one line in their EEOC charge and were later held to be deemed limited to only raising a disparate treatment claim. And again due to exhaustive requirements charges not raised at the appropriate stage are waived and this is true even if the investigation lists other violations. So make sure when you file an EEOC charge that you list every possible type of claim. And now some tips for employers, one I think it is best to look at the ADA cases under a qualified reasonable accommodation type of analysis. You can also be aware of the disparate impact, disparate treatment stuff but really focus on the ADA and individualized assessment, essential functions, reasonable accommodation, is the person qualified? Is the accommodation request reasonable? Is the employer''s reason for denying it job related in consistent with business necessity? And again employers must be ready to show either a decision or a test or criteria meets that job related business necessity standard and the same thing with disparate impact. Policy must meet that standard. And it is good for employers to document the reasons for a policy and document its effectiveness and employers need to be prepared to reasonably modify or rescind policies even if they have a discriminatory effect, even if the effect is totally inadvertent and unexpected. And then I talked about validation and this EEOC fact sheet on employment test and selection procedures which says you must ensure that these are validated for the positions and purposes and there is uniform guidelines and employee selection procedures that should be reviewed. The task of selection procedure again must be job related and this is shown by demonstrating successful completion of the task is necessary to the safe and efficient performance of the job and that the task is predictive of success. Employers should also ensure that task and selection procedures are not adopted casually by managers who know little about the process and that a test for selection procedure can be an effective management tool but should not be implemented without understanding its effectiveness, its limitations, its appropriateness for a specific job and whether it can be appropriately administered in a way that does not have an adverse impact. If it does then an employer, does have an adverse impact then an employer needs to look at an equally effective alternative selection procedure. And now I am going to try and be a little bit interactive, if that is possible here. We are going to have the Name That Claim game where I have a few types of situations and I want to see if people can say whether it is disparate impact, disparate treatment, failure to accommodate, whether it is a few things, so I will read through these policies. If anyone wants to stop typing or if they want to start talking, if they have a microphone, raise your hand. But here are some of these policies for the Name that Claim game. A person with a disability is denied reassignment due to a seniority policy. Workers supervisor often calls him a blind bastard. An employer says we don''t hire disabled people. An employer refuses access to a job coach as only employees are allowed on company property. Where a job applicant who is deaf is told he cannot do a dishwashing job as it is a verbal position. So I will wait a second and see if anyone wants to offer some input or thoughts about any of these policies before I go through and give my thoughts. It is a hard thing about the webinar, I assume everyone is still there and paying attention, so feel free to type or raise your hand and I will, ah there we go, saying, disparate impact. Are you talking about the first one, I assume, the reassignment seniority policy? If so that is absolutely correct and that was the first case we talked about in US Airways versus Barnett. What about the employee who is called a blind bastard? This was a case we actually handled. An employee with a vision impairment, disparate treatment, exactly. Harassment is kind of the quintessential type or one of the quintessential types of disparate treatment. We don''t hire disabled people. That would also be disparate treatment. I wish we had a prize for who is answering all these questions, so let''s not see the same hands all the time. Next one, an employer refuses access to a job coach as only employees are allowed on company policy so feel free. I am not trying to discourage you. We have something from indirect evidence to show a legitimate of the discrimination occur. I am sorry, I just can''t quite get that whole question. But says the job coach one is both. Yeah, I think that is, well actually I think you are close. And now says disparate impact. Yeah it is a neutral policy. You have to be an employee to be on company policy so yes it is disparate impact. And is there another claim? What is the resolution? I think the person wants that policy waved for their job coach so I think it is also an accommodation claim. I want the policy to be reasonably modified so my job coach can come on property, company property. The deaf job applicant whose told dishwashing is a verbal position, I think that is pretty obviously disparate treatment and that again is taken from an actual case that we handled and I am happy to say the person is now working in the dishwashing position. And I have a few more in the next slide, we will play a few more and then we will throw it open for general questions. An employee seeks to work at home but there is no policy allowing it. A related thing, what if a company does not require that accessible software be purchased even though an employee requires it? This is kind of, what is an absence of policies? So we looked at neutral policies or non-neutral policies, here there is no policy. How do we look at those cases? Any thoughts? Disparate impact? Possibly but disparate impact is really a neutral policy and that is coming from. I think this kind of situation, it is, got it. It is an accommodation issue. If there is no policy and the EEOC fact sheet for example on working at home that says if a company has no policy then they need to see if it is reasonable for that person. If they have a policy then more likely it is reasonable but even if there is no policy they need to look at accommodating the person by allowing it. A policy requires a fitness for duty exam for all persons returning from medical leave. And this may be I mean it seems like it could be a disparate treatment type of policy. And the courts have generally held that it is fine to require a fitness duty exam for all persons returning from leave as long as it is done for every person returning from leave for that position. As long as it is consistently done the fitness for duty is fine. The next one is a person with MS, and this is taken from another case that we handled, for whom driving is an essential function, they are ask to under go a disparate for duty after they have an accident with their scooter. Any thoughts as to that? Neither, yeah I think, I think it kind of falls into a disparate treatment and then I think it also comes up into reasonable accommodation. Yeah it is direct threat as well. I think, and that is why these get blurred. I think here in this case and again this was taken from a case we worked on and in fact that is the Timmons case we talked about earlier. In this case we argued that, it was raising a safety direct threat issue. The burden was on the employee or employer to show the employee was not able to drive. And while the fitness for duty may have been okay the employer still needed to look at reasonable accommodations because the ADA says it is a direct threat which is significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation. There is a long answer here. Oh, Barry is answering it now. Thanks Barry. I will take a look at that in a second. Then the last one, a person with mental illness requests a modified work schedule but it is denied. What kind of case is that? It depends. I think so. I think that is generally again you know if they have a policy to never give modified work schedule you can make it a disparate impact argument but I think got it. It is really an accommodation issue. Let''s look at the accommodation. Are they qualified? Is the request reasonable? Is it an undue hardship? Is the reason for denying it job related and consistent with business necessity? I think those are the issues that need to be looked at. I think for a lot of these, I know a lot of people in the room have strong ADA knowledge so I don''t think you really have to worry a lot about the Title VII disparate impact, disparate treatment dividing line so much. I think you know it is important to allege the type of claim it is but I think on these ADA cases it often comes down to qualified and reasonable accommodation issues. And here are some resources I just wanted to show everyone. The DBTAC - Great Lakes ADA Center of course our host for this webinar, Equipped for Equality, the Illinois Protection and Advocacy Agency for people with disabilities where Barry and I are employed and the Illinois ADA Project which is funded by the Great Lakes ADA Center and managed by Equipped for Equality. The EEOC has some great fact sheets on this, on the ADA in general and I have links there to two of them. One is the first one is the EEOC factsheet on testing and employment and selection procedures that I talked about and the second one is just a informal opinion letter that the EEOC wrote but in that letter they discussed disparate treatment, disparate impact and the ADA. So I think those two links are helpful for people. The Job Accommodation Network of course is always helpful in terms of ADA accommodation issues and the ADA technical assistance line. So before we throw it open for questions I just want to show everyone here our next seminar remember April 28. This is a major life activity update. And for people who just can''t get enough pretext, in September we will be doing a whole webinar on pretext. And here is the link for the evaluation. I request that everyone please fill out the evaluations and let us know comments pro or con and anything we can do to help make these presentations better. So I will now unlock the talk key and throw it open for questions. Any questions? Thanks Barry, was asking about how you show indirect evidence in the failure to hire case and Barry was saying, well you can show that the employer consistently has not hired people with disabilities who are as qualified or more qualified than people without disabilities. That would be indirect evidence. Direct evidence would be we don''t hire people with disabilities. So thanks for answering that question. And there is a question here from, if jail correction officers are required to meet certain physical conditions and cannot be in a wheelchair does the staff areas, oh that is an interesting question. Does, what you are asking I think is if a correction officer works at a prison and is in a wheelchair but they really can''t work at the correctional facility in a wheelchair then does the detention center have to be wheelchair accessible. And that raises a few issues. One, any area open to the public under Title II of the ADA must be accessible and also if there is any modification, whether it is a staff area or a public area, that should probably be made accessible as well. But generally the employee needs to be qualified to request an accommodation and generally requesting that staff areas only be made wheelchair accessible would be a reasonable accommodation request coming from the employee but they need to show they are qualified. So if the fact that they are in a wheelchair means that they are not able to perform the essential functions of the position with or without an accommodation then they would probably be unqualified and it would probably mean the Bureau of Prisons or the detention center does not have to make the staff areas accessible until either they are renovated or a qualified employee with a disability needs them to be accessible. Barry, please feel free to let me know if you feel anything differently. I will take a look at the other question.
Yeah, I think, your point is good and I mean it just sort of goes beyond what Alan said about if anybody else needs access to the staff area, other than staff where you wouldn''t have to look at the qualified issues like cleaning personnel or other people who might be interacting with the prison in some way in that staff area. Then the accessibility requirements would be involved.
I just had one more thought about that. I want to add the thought whether it is really impossible for someone who uses a wheelchair to be a correction officer. I think there are some desk jobs where you look at video cameras or things like that. I think that would get into an essential function determination whether someone is really qualified or not to do that job in a wheelchair. That also depends on who would use the showers or toilets, anyone who has access to them. So if it is possible somebody with a disability might need access to it then it might need to be modified. And then there is a question from, if the terms disparate impact and treatment are not used and I mentioned that they are not used in some of the decisions even though they seem to fit. But I think what you really need to do in complaints is allege facts that give rise to them so I think you could allege you were treated differently because of a disability. I think specifically saying failure to accommodate is fine to preserve an accommodation claim or retaliation. I think it is good to do that. But if you allege a failure to accommodate and they raise disparate impact I think you might still get by even though you didn''t raise a disparate impact claim because you still asked that they accommodate. But then the fear is that the Supreme Court decision where they said it wasn''t disparate impact and even though the policy had an effect of discriminating we don''t look at that as disparate treatment. We need a motive. In that case the person didn''t raise the accommodation claim. So I think if you are looking to have a workplace rule modified as an accommodation, it is probably best to raise all three depending on the rule. If it is a neutral rule raise disparate impact and accommodation. If it is a rule that obviously specifically impact people with disability then maybe raise disparate treatment and accommodation.
It looks like we are at the bottom of the hour so we need to wrap up but, says with the ADA available why do we need these claims? I think maybe we weren''t clear enough at the beginning, disparate treatment and disparate impact and accommodation claims are all ADA claims. They are all civil rights claims and including the ADA. So if that wasn''t clear we have been talking about these claims as they pertain to the ADA. These are general employment discrimination claims and really whether it''s ADA or Title VII depends on which protected class you are in.
Oh and one more thing, thank you. Updated our information so that employee restrooms and showers are considered common areas for new construction in the ADA standards therefore if there is new construction they must be designed accessibly. I still didn''t get to the retrofitting issue but thank you for that information.
So I think we are at the end. If people have other questions feel free to email us or contact the Great Lakes ADA Center with follow up questions. You will be emailed the power point and the evaluation form. And just a plug for next webinar on major life activities, this is going to be I think a hopefully a useful one because we do have a new ADA Amendments Act that really gives us a lot more information about major life activities and maybe between now and then we will even have a few court cases that help us with interpreting those new provisions. So with that I will turn it back over to Claudia to close things up. Thanks everyone.
Okay, I would just like to thank Barry and Alan. And I apologize to everybody and actually thank everybody for your understanding for the technical glitches we had there in a minute. But this is a really interesting session that covers a lot. If people have more questions and comments that they would like to think through I would like to encourage everyone to call the Great Lake Center at 877-232-1990 and we can answer your questions and any other items that were not addressed in the session today. So with that I just want to say thank you and have a good afternoon everyone.