Okay I think we''re going to go ahead and get started we''re at the top of the hour at this time and I want to welcome everyone to today''s session. My name is Robin Jones and I am the Director of the DBTAC - Great Lakes ADA Center and we are the host organization for this particular program today. This program is being brought to you through a program that is founded by the National Institute on Disability Rehabilitation and Research out of the US Department of Education. And our speakers today are Alan Goldstein and Barry Taylor and they will introduce themselves as they begin the session today. They will be taking turns during this particular session how we are going to be able to work this today is we''re going to have it be such that the presenters provide some information they will stop that periodically and allow people to be able to ask questions. If you do not have a microphone you can ask your questions by just typing it into the chat box and hitting enter and that will show up and I''ll be monitoring that as well as will the speakers to be able to take your questions. There are materials that will be provided to you at the end of the session we will send them to you as an email attachment it includes a copy of the presentation as well as the resource documents that you will be able to use as a follow up to this particular session. So I''m going to go ahead at this time and turn things over to both Alan and Barry, thank you very much.
Hi everyone I''m Barry Taylor. I''m going to start the presentation, I am the Legal Director here of Equip for Equality and I''m going to be joined by Alan Goldstein whose the Senior Attorney at Equip for Equality and he''s going to be doing part of the presentation and I''m going to be doing part of the presentation. What we are going to do is break the presentation up into two different parts and we''ll have questions between the two parts. So, this is just the title page here with our name and information about the funding and these are the topics we''re going to be discussing. And I''m going to be covering the first three giving an overview of disability related inquires and medical examinations and then I will be talking about some of the case law, interpreting these provisions of the ADA. Then I''m also going to talk about who can bring suit under these provisions of the ADA because it''s a little different than some of the other parts of the ADA make sure every body understands that. Then we''ll take a break and see if theres any question and then after that Alan will proceed with talking about some other topics. First, he''ll be talking about whether personality tests are considered medical examinations he''ll also be talking about physical agility and ability testing and how that interplays with the ADA''s requirements regarding reemployment inquires in medical exams. He''ll also touch on reasonable accommodations within examinations and testing and finally he will focus on confidentiality the requirements to keep information that is provided that''s related to a disability. The employer''s responsibility to provide keep that information confidential and then we''ll open it for questions on those sessions and any final questions that people may have. So we will go ahead and move on. So first of all just wanted to very, very briefly just make sure that we''re all on the same page and that is that historically many employers had asked applicants or employees to provide medical information or disability related information as part of the application process or during the employment process. And as a result of this many people with disabilities were excluded especially people with invisible disabilities such as mental illness or epilepsy or diabetes, heart disease, cancer those types of things. And so when the ADA was passed, Congress recognized that this was a barrier for employment for many people with disabilities or maintaining employment and so what they did was they set up this new process that really separated disability related inquiries from all other inquiries on the job. What you''ll see here in the next slide is that the Congress has really divided out the employment process into three different stages. The first one being pre-employment and that''s we''ll talk about that in a second then after a conditional job offer has been provided and then once you''re on the job and there are different requirements for each of these three different stages that we''re going to go through and then talk about how these have been interpreted. As Robin mentioned we are going to be providing you some documents after this session and you''ll see some documents that are referred to at the bottom of this slide. The documents provided are power point; we also have a legal brief analyzing the cases in more of a narrative form. We also have some information about the EEOC guidance that''s referenced throughout the power point on these different issues. We''ve also developed a fact sheet on personality testing the topic that Alan is going to focus on and also a frequently ask question on disability disclosure that was developed as part of the Illinois ADA Project funded by Great Lakes. So pre-employment inquiries that''s really the first stage that we are talking about and as many of you already know employers are not allowed to ask about any assistance or the nature or severity of the disability as a pre-employment stage so this is when somebody first applies for a job. Now you are certainly able to ask whether the person is qualified to do the job asking about whether they have an ability to perform these simple functions with or with out a reasonable accommodation. You can even actually request people to perform those as part of the pre-employment stage that''s not considered disability related. One of the tips here is to make sure you are uniform in your practice for all applicants. And then the EEOC has given us some guidance on what questions are permissible and what questions aren''t. So when you ask about obviously asking somebody directly about a disability is not permissible, but also things that would end directly to information about a person''s disability is asking them about past use of or whether they''re using any certain prescription drugs. And a persons says yes I''m taking Prozac that would tend to reveal that they had a mental illness, so you''re not asking directly whether they have a mental illness, but asking a question that could lead to that. Asking other kinds of questions like workers compensation history, genetic information, how many sick days they took in the past employment that they have are all questions that could lead to disability related information and therefore not permissible. Now you can ask other types of questions like we said whether or not the person can perform the essential functions of the job. You can ask about whether they can meet the attendance requirements the EEOC has made a distinction between meeting the attendance requirements and past use of sick time as a difference between whether or not they are questions that are disability related or not. You can also ask about somebody their current illegal use of drugs, because that is not covered under the disability. You also can ask just general questions about the well being how are you, how are you doing. You know if somebody is pregnant asking how they are feeling and when the babies due you know sort of just generally related questions to the employees well being and status as opposed to something that goes to disability, but all these things are permitted. Sorry I had it locked and I guess that locks not working so I''m just going to make sure I hold down the control key I apologize. Sorry about that so I''m going to start back on this slide if I need to go back, Robin can you let me know if I need to go to the previous slide. Okay I''m not hearing that so I need to go back so I''m going to stay with this slide. I apologize for the lock not working. In any event at this point the second stages after a conditional job offer has been given then things change. You can ask whether or not you can ask disability related questions of the applicant. You can have them perform certain medical examinations I guess I would just as a practice note caution people about doing this even though it''s permitted. You would have this duty that if you know once you do have people engage in these medical exams or answer additional question that are related to disability. If you decide to withdraw that job offer you would then be required to show that the withdrawal is based on business necessity or is related to the job as to why you rescinded the job offer. So it''s a tough burden to meet and so unless it''s really necessary in order to determine the persons qualifications for the job I think asking disability related questions and conducting medical examinations after the conditional offer is a risk to employers and should really be done very carefully and judiciously. Now, once a person is on the job there it''s even much more limited than once the conditional offer is provided. And that is you really need to only be asking disability related questions. If you have some sort of reasonable bases and is again consistent with business necessity and job related and some of the things that could come up as to why you would have a reasonable bases is you some how have determined the person is no longer qualified to do the job. Maybe you observed them unable to perform certain essential functions or their productivity has dropped significantly and it looks like it may be related to some sort of impairment, or if you perceive them as needing some sort of reasonable accommodation. Or a third factor is if somehow there''s been some sort of change were as now you perceived that the person may be a threat to the health or safety of either themselves or others in the work place. So if those kinds of factors arise then you as an employer are certainly entitled to then have disability related inquires or potential medical exams. But you need to make sure that you have some of these factors one of these factors present in order to ask the question you should not be asking disability related questions to employees unless one of these factors is present. So we talked about pre-employment inquiries and medical inquiries it''s very similar. Generally it''s the EEOC has been very clear that employers regardless of when they are unable to ask for information should not be asking for general medical information. They really should be asking about things that are related to the job and then again asking in a way that is job related and consistent with business necessity. Even if in the scenario that we were talking about before where you perceive somebody as needing an accommodation or perceive that there is something disability related. What you would be able to ask for is information that is related to the disability and possibly the accommodation you wouldn''t say wow this persons not performing I''d like to have their entire medical file. The EEOC does not support that and the case law has been deferential to the EEOC on that. Some of this we''ve already talked about before, but the medical exam can''t be required before making the conditional offer. And then here''s how the EEOC defines medical examination as a procedure or test that seeks information about an individuals health. The physical or mental impairments or health and if given if a medical examination is given after conditional offer of employment the medical exams must be given to all applicants for the position who are extended job offers. So the consistency of medical examinations is very important and again as we said before it needs to be job related and consistent with the business necessity. One other thing that most of you probably know already is that a drug test is specifically stated that it is not a medical examination. The trickier areas about personality testing and that''s something that Alan will cover in his portion in a few minutes. So what the EEOC has done is provided the employers with some guidance as to whether something is a medical examination or not, because sometimes it''s not clear. There''s a lot of testing that''s going on of employees and whether that crosses the line into medical exam is something that employers need to be aware of and so what the EEOC has done is given employers some guidance by providing some factors. What they haven''t done is said okay if it meets factor two and factor three then it needs medical exam. Instead, you have to take and look at all these seven there''s three on this slide and four on the next slide and look at all these different factors. And while there is some interpretation that''s saying one of these factors is enough it really is sort of depends on the circumstances and of the particular job and particular tests. But let''s go over the seven that EEOC has listed so the first factor is whether the test is administered by a health care professional that would make it more likely to be a medical examination, whether the test is interpreted by a health care professional. Whether the test is designed to reveal an impairment of physical or mental health, whether the test is invasive, whether the test measures an employee''s performance of a task or measures his or her physiological responses to performing the task, and that''s important when we get to the physical ability testing that Alan will be talking about, whether the test is normally given in a medical setting and whether medical equipment is used. And so these are all factors that employers should look at. If any of the testing you''re doing would trigger one of these factors or more then you''re potentially liable of performing a medical test and should conceder whether or not that''s something you want to be doing. And if so and you''re using it then understand that if you then withdraw a job offer after administering such a test that you have to show that it''s job related and consistent with business necessity as we talked about before. I mentioned this already, but just to make clear there''s been some parts of the ADA where the Equal Employment Opportunity Commission their guidance has not been well received by the court. And courts have essentially ignored it and so for instance, the definition disability the EEOC was very clear that mitigating measures should not be taken in account for definition of disability. However, for these parts of the ADA, involving disability related inquires and medical examinations courts actually have been rather differential to the EEOC. So I think the guidance that we''ll be providing to you as part of the documents for this test or for this webinar will be very helpful to employers and is something that maybe you can rely on a little bit more strongly than some of the other EEOC guidance''s out there that the courts have not been deferential to. So now what we want to do is look at some of the court decisions that have interpreted these disabilities related inquires and medical examinations. The first case we have here is the Leonel case, Leonel versus American Airlines and this is a case a couple of years ago out of the 9th Circuit and it involved three airline pilots or applicants to be airline pilots for American Airlines. All three of them happened to be HIV positive and what they did was they underwent some pre-employment questioning and that were not disability related and they were told that now what they needed to do was need to fly to Texas and have further part of the application process. Americans position was at that point they had given them conditional offers of employment what happen though was a little tricky is that they didn''t do everything that they needed to do before they engaged in the medical examinations. What they did was they held off two things one is they held of the medical examinations as they should have, but they also held off the background checks for people which they did for all employees. And so the concern that was raised was that it wasn''t a real job offer because there were these background checks that were being done. And so the argument would be that it''s not a real job offer until you do everything accept the things that would be after conditional offer like the medical exam or disability related inquiries. Interestingly what they had them do was when they went through the medical exams they asked them questions and they asked them if they had serious impairments and they actually had questions relating to HIV. And these three individuals did not answer that did not reveal their HIV on those medical examinations or medical inquiries. And then once they did that then they were asked to submit blood tests and when they asked about what the blood tests were going to be used for, they were told that it was only to test anemia. But when some they received some elevated information on those blood tests they then called and said do you happen to have HIV because people who have these elevated they are called these mean corpuscle volumes in their blood test often have HIV and then at that point the three individuals did reveal that they had HIV. Once they revealed that they had HIV, then the job offers were withdrawn and what the three applicants said was they were withdrawn because they had HIV. What Americans said was no we didn''t withdraw because you had HIV, we withdrew the job offers because you were not truthful on the application, the medical inquiry application that they underwent. And so what it really boils down to in this case was whether or not the questions were appropriately to be asked at that point. And what the Court ended up finding was that it was it did not appear that it was a real job offer, because they had withheld certain portions of the job inquiry process particularly the background checks. And therefore by not doing that part of the test before they did the disability related inquiry it wasn''t a real job offer and therefore asking any kind of disability related questions at that point was impermissible. So it would have been interesting what would have happened if they would have done those background checks and then asked the information. And if the person would have answered it truthfully, what American would have done, because what they said was they didn''t withdraw the job offer because the person had HIV but because they were not telling the truth. And if they had revealed the HIV whether or not American would have withdrawn the job offers any way then trying to show that having HIV was made them no longer qualified to do the job, which I think would have been a tough thing for them to meet. But really the Court didn''t get to that issue ultimately because they decided that there wasn''t a real job offer because they had not conducted a background check which is part of the non-medical component of what they do. And then we have another case that goes sort of the other way where they found that it was a real job offer this is the O''Neal versus City of New Albany case. A few years older from the 7th Circuit and in this case what you have is a police officer applicant who is required to take medical test. He had gotten a conditional offer and then have been asked about some medical information he had actually been reviewed by the company doctor. They had found some heart problems then he went back to his own doctor and had his doctor say you know he has a heart condition, but it''s okay he''s taking medication there really are no problems and at that point the City of New Albany asked for the applicant to undergo further evaluation of his heart and it would have cost him fifteen hundred dollars to undergo that additional examination and he refused to do that and then sued under the ADA. What the Court held here was that the plaintiff had actually done all the non-medical screening tests and therefore it was a real job offer and in this case they actually had the applicant sign what was called a statement of understanding that confirmed for both sides that the person had provided a conditional offer of employment. So basically they got the applicant to sign off that it was in fact a conditional offer of employment so that there wouldn''t be any question. And so ultimately the 7th Circuit found that the City of New Albany had not violated the ADA. It was a real job offer. And so the medical inquiries about the officers heart were something that was permissible. One thing that the applicant didn''t challenge, which I think he could have challenged, was the fact that he was being required to pay for the additional medical inquiries and the EEOC guidelines says that if the employer wants additional medical information after the person has provided that through his own doctor, then that''s something that the employer should pay for. Reading the case it doesn''t appear that the plaintiff raised that concern and the Court really focused on whether that was a conditional job offer or not. We recently found a new case that I just wanted to bring up because it''s something I hadn''t seen before, and that is whether or not an employer can waive their ADA liability as part of the job application process. So in the case that you have sited here, the Nilsson versus City of Mesa case, what they did was they had the applicant; all applicants sign a waiver saying that they would not sue if there was any violation of laws during the application process. And this gentleman had gone through, it''s another person who''s seeking to become a police officer, and during the, he signed the document, the waiver and then during the investigation, or the application process they did an investigation and they learned about, that he had worker''s comp claims from the past. And I said he, actually the person was a female that applied for this, and ultimately the City of Mesa didn''t hire her. And the other thing that they found was past EEOC claims that they had filed, although the EEOC claims had been filed were based on gender discrimination, not on disability discrimination. So the applicant here, Ms. Nilsson challenged this waiver and said that it was not permissible under either the ADA or under Title VII, which covers gender discrimination. And what the Court held was they said the waiver was permissible for ADA purposes because they found that the worker''s compensation information was something that was okay to waive under the waiver that was there. They did not find that it was permissible to waive any investigation into EEOC claims, which went to the gender discrimination. So the gender discrimination claim was able to proceed but the ADA discrimination claim was not able to proceed because it was deemed to be under the waiver. What was a little bit, I think, unfortunate in this case as far as the plaintiff''s position is her real argument that she made was that she didn''t understand the waiver. So her challenge to the waiver was more on not understanding it as a lay person, rather than saying that the waiver itself violated the ADA or violated Title VII. So I think this is really a strange kind of case and I just would, although the waiver was upheld in this case, I think employers should be really cautious in trying to obtain information prior to a conditional offer of employment and thinking that you can do that because you have somebody sign a waiver. I just think that''s a really dangerous practice and because the challenge here against the employer''s practices did not go to sort of the discriminatory aspect, but really went to understanding a waiver, I don''t think the Court really had a chance to grabble with the potential discrimination of having somebody sign away their ADA rights, so this is sort of a point of information that is out there. And if you''ve heard about this case, I just wanted you to know sort of what the case relates to, that it''s not a case that I would say means that waivers are permissible and everybody should do it. It worked on this case for the employer, at least on the disability claim, but I think it has some inherent problems. And then the last topic that I''m going to cover is who can bring suit. So the question here is do you have to show that you have a disability in order to challenge the ADA''s restrictions on disability related inquiries and medical examinations. So does it protect only people with disabilities, or would it also protect anybody who is a job applicant or current employee? And the majority of Courts have said that you don''t have to show that you have a disability in order to challenge this part of the ADA or to bring suit under this part of the ADA. You only have to show that you''re a job applicant or an employee, depending upon when this happened. And for people with disabilities, I think this is, or people with impairments, I think this is, this is a beneficial view by the courts because what''s happened is that as we talked about before, many people with impairments that were thought to be disabilities have been deemed not to have a disability under the ADA, but under this provision somebody that has maybe an impairment with, such as diabetes but uses insulin and therefore may be not substantially limited in a major life activity, if they''re asked about their diabetes during the job application process, what the majority of the Courts say is that they could still challenge that inquiry, despite the fact that they, themselves, could not prove that they have a disability. The main case that people cite is an older case from 1997. This is the first one, I think, that really grappled with this issue and it''s Roe versus Cheyenne Mountain from the 10th Circuit and basically you had an employee who filed suit against her employer for requiring the employee''s to report their use of prescription drugs. And this particular person did not necessarily have an ADA disability and the employer was saying well, you can''t challenge the fact that we''re asking you to disclose your prescription drugs and the court said you don''t have to prove it, that you have a disability under the ADA in order to make this sort of challenge. And I''m going to explain why the Courts said that in a second, but just to show that, in case you are from other places around the country, these are the leading cases where they have found that proving a disability is not required. So you see that we have cases from the 2nd Circuit, the 8th Circuit, the 9th Circuit, the 10th Circuit, there are a lot of district court cases, including one from the northern district of Illinois, as well. But really there''s sort of three rationales as to why you do not require someone to show that they have an ADA disability in order to challenge a disability related inquiry or a medical examination. And the first one is the actual text of the ADA. Congress used the term job applicant and employee in this part instead of saying qualified individual with a disability. So if you look at other parts of the ADA, it talks about a qualified individual with a disability cannot be discriminated against and you know, within the work place, or you know, can''t be, it''s just woven throughout the rests of the ADA. But in the provisions that talk about limitations on disability related inquiries and medical examinations they use the word job applicants and employees, so what the Courts have said is this is an intentional use of language, that if they really wanted this provision of the ADA to cover people with disabilities and to show that they have an ADA disability, they would have used qualified individual with a disability there, instead of just job applicant or just employee, or they could have said job applicant with a disability or employee with a disability, but since Congress didn''t put that language in, Courts have interpreted that to be an intentional difference and therefore broadened the scope of who can bring an ADA claim. They also, Courts interpreting this provision, have also said that a broader interpretation to supports the ADA''s purpose of ending disability discrimination and that really the goal here is to allow, is to ensure that employers are not asking questions they shouldn''t be asking or conducting medical examinations they shouldn''t be conducting. And by broadening who can bring suit you are able to meet this broader goal. And then the third thing is sort of its just circular to require a plaintiff to demonstrate that they have a disability in order to prevent the employer from inquiring about a disability and it just doesn''t seem right that you have to prove something that you''re trying to prevent an employer from learning about. So those are really the basis for these cases that say you don''t have to prove you have a disability in order to bring suit under these particular provisions of the ADA. I did want to point out that there is one court case out there at the Circuit Court level that has gone the other way. So this is from the 6th Circuit, which would be Michigan and Kentucky and Tennessee and Ohio, I believe. Those are the states within the 6th Circuit. And this is an unpublished opinion and it''s also one where the court did not do a lot of detailed analysis. They just sort of assumed that you have to have an ADA disability in order to challenge these provisions under the ADA to bring suits under the ADA. The Court did not do a detailed analysis and this case is rather old, but it hasn''t been overturned in the 6th Circuit, so I just wanted to point that out, that it''s not unanimous. I also wanted to point out that the EEOC''s most recent guidance on disability related inquiries doesn''t adopt the majority opinion. So the EEOC is also believes that people who cannot prove they have a disability can challenge under these provisions. And, as I''ve said before, the ADA, excuse me, the Courts have been rather differential to the EEOC''s deference under these provisions of the ADA, so in addition to the majority of Courts, you also have the EEOC adopting this position. So that gets us to the end of the first section. We''re about a half hour through. So why don''t we open it up for questions, and as Robin may have explained, you can ask questions in a couple of ways. One is you can type it into the text box and we''ll answer that as best we can. Or, if you have a microphone, what you would do is you would press the control key, wait a second, and then ask your question and then let go of the control key after you finish your question and then either myself or Alan will jump in with that. So with that, let''s open it up for questions.
Again, if you have a question, just go ahead and type it into the box or hold the control key down if you have a microphone and hold it down while you''re speaking and then release it. Barry, it looks like we don''t have any questions at this time, so why don''t we go ahead and keep going?
All right. This is Alan Goldstein, Senior Attorney of Equip for Equality and I''ll continue with the presentation. I think we jumped ahead in the slides. So, we''re going to talk about personality tests and whether personality tests are medical examinations and on this slide we see an inkblot, which is either a space alien doing jumping jacks or maybe it''s a Cubs victory parade. I''m not quite sure. But the lead in case on this is from the 7th Circuit, which coves Illinois, Indiana and Wisconsin, which is Karraker versus Rent-A-Center. And this involves someone who was an employee at Rent-A-Center who was applying for a new, higher level position. In this case, Rent-A-Center stipulated that he would be viewed as a job applicant, so when we look at the three stages of employment under the EEOC guidance he''d be seen as an applicant, which means that no medical inquiries can be undertaken prior to giving the conditional job offer. In this case Rent-A-Center used the Minnesota Multiphasic Personality Inventory - MMPI, which many people may remember from the Psych 101, which was originally designed to diagnose mental illness. In this case, Rent-A-Center used it in a vocational capacity, using a vocational rating scale and a vocational grader, person grading the test was a medical person. And the issue before the Court was whether the MMPI was a medical examination, even using this vocational grading system. Next slide. And the Court held that the MMPI is a medical examination and going back to the different conditions where one factor might be enough, the court said the MMPI was designed to diagnose mental illness and therefore, even if a vocational grading scale was used, the exam was still considered a medical examination because it was used and designed to diagnose mental illness and it would definitely have the effect of screening out people with mental illness. The next slide has some of the MMPI questions. I hear voices without knowing where they are coming from. I have fits of laughing and crying that I cannot control. I have a habit of counting things that are not important, such as light bulbs on electric signs and so forth. And I don''t think you need a psychiatry degree to see part of what it''s getting at. It''s looking for psychoses or perhaps depression or obsessive compulsive disorder in these few questions. And in the Karraker, Court cited the EEOC guidance that states psychological tests that are designed to identify a mental disorder or impairment qualify as medical examinations, but psychological tests that measure personality traits, such as honesty, preferences and habits do not. I see there''s a request about going back to slide 25. Is that, are we all caught up? And the MMPI is the Minnesota Multiphasic Personality Inventory. And when you talk about tests that measure personality traits, a test that comes up for I havent seen litigation is the Myers Briggs, which is used mostly to determine if somebody is introvert or an extrovert, which is a different type of test than the Minnesota Multiphasic Personality Inventory. But for reasons which we''ll talk about, I think their concern is with that type of testing as well. So, next slide, Karraker Court said that Rent-A-Center, RAC, argues that the test only measured the extent to which the subject has experienced such kinds of feelings as depression that everyone feels from time to time, and being a Chicago centered court, for example, when their favorite team loses the World Series, assuming your favorite team can even make it to the World Series. And the Court says although that example seems odd to us, does it, are they not going to fill their management positions with or promote disgruntled Cubs fans, the court also went beyond and said the logic behind it doesn''t seem to add up either. So assuming that taking Rent-A-Center''s argument at face value that they''re just measuring someone''s mood on a particular day, the question then is how is that test job related or consistent with business necessity separately going to one of the job functions and measuring performance of that function? And the court continued that either the Minnesota Multiphasic Personality Inventory-MMPI was a very poor predictor and they noted that Rent-A-Center stopped using it soon after this lawsuit was filed, or that Rent-A-Center''s argument that they were just measuring someone''s mood was not true, that they were actually trying to measure more than a person''s mood on a given day, which seems to make sense. Then the court concluded that for all these reasons, the MMPI is best characterized as a medical examination. Some of the ramifications from Karraker, I think, and again, just in terms of jurisdiction, a case decided by the 7th Circuit Court, the Federal Appellate Court for the 7th Circuit really is the law for Illinois, Indiana, and Wisconsin and it''s not necessarily the law in other states, but given the fact that the 7th Circuit is generally viewed as a conservative Court that often fights for the employer in ADA situations very often, I think great weight would be attached to the fact that in this case, the 7th Circuit came down on the side of the employee, so if other Circuits are reviewing personality testing, the MMPI, I think this decision law, while maybe not legally binding, would be persuasive on other courts. And one thing too, which I noted, the Court went beyond, that even in general these personality test may not be job related or consistent with business necessity, which again is the criteria that businesses must follow when utilizing information gained from medical inquiries. And I did want to point out the nice use of sarcasm by the 7th Circuit. If you read a lot of ADA cases, like Barry and I and Robin do, and any attempts at humor or sarcasm are usually greatly appreciated, especially when it helps to establish the point of the case, as I think it did here. And Equip for Equality actually played a role in this case in that we wrote an amicus brief, a friend of the court brief, in support of the employee''s position. And then I think there''s other issues which are very important for employers to think about in using personality testing. One, are these test really beneficial in evaluating applicants? Are they really job related and consistent with business necessity? And if you think they are, do the benefits outweigh the risks of litigation? As most people know or can imagine, litigation can be a very expensive proposition for the winner and of course especially for the side that does not win. So I think businesses, it behooves businesses to examine to re-examine their use of personality testing. There''s also issues regarding privacy rights and confidentiality and I''m going to talk some about the ADA confidentiality provisions toward the end of this seminar. And again, are there other, less risky, more effective ways for evaluating employees? Another question to be asking for individuals, what do you do when asked to take a test? And often, that''s a tough one to answer. But I think if a person refuses to take the test they won''t be hired, so the attorney in me says the best thing to probably do is to take the test and see what happens. And then if you want to challenge how the test was used by the employer, that''s your prerogative. I really think this field warrants much more examination because these tests are very widespread, maybe not the MMPI, but it seems that elements or similar questions are used on a lot of pre-employment job applications. And one other issue, it''s clear that personality tests may discriminate against people with mental illness, because that''s what they''re designed to examine for, but when you look at these tests, often questions are repeated multiple times, with very subtle changes of phrase. So there are other issues too. These tests can also not be effective, for example, someone with a cognitive disability or learning impairment may have difficulty with these tests or someone with a developmental disability. Or someone who has a communication barrier, someone whose primary language is American sign language and not English might have a very different time with this test because American sign language is a very different language than English and some of the subtleties of phrase within the bases of the test might be lost on the person taking this test through a sign language interpreter. And just a side note, one of the reasons that many of the questions on these personality tests are repeated is to design against people feeding, in effect giving the answer they think is the right answer rather than the answer that reflects how they really feel. So, just for some of these answers you can kind of imagine what type of answer the employer''s looking for. So, within the test there''s ways to try to design against people doing that. And of course, people from different ethnic backgrounds or who don''t have good English skills or from different cultures, they also have problems with this test in terms of answering the question and performing satisfactorily. So, I think there''s a whole host of issues attached to personality testing and requires examination by employers who use this. We''re now going to move into the area of physical ability testing. And there is EEOC enforcement guidance on disability related inquiries and medical examination of employees under the ADA. And then defining a physical ability test, the EEOC differentiates between tests that measure an applicants physiological or biological response, which would make it a medical examination. Or a physical ability test that to just measure the ability to perform an actual assimilated job task, which would make it not a medical examination. So, if you''re just measuring a job task that is perfectly acceptable. It''s not a medical examination; it can be given at any stage of employment. If you''re measuring heart rate, breathing rate, then it becomes a medical exam and it can only be given then after a conditional job offer has been made. And there''s a practice tip that employers remember that administering a physical ability test at time automatically violate the ADA. You can give medical exams once a conditional job offers made. But it is always a best practice to make sure that any test given whether it''s before a job offer or after, really demonstrate and reflect the job functions and the applicant''s ability to perform those job functions. One case that demonstrates this I''m not sure if it''s about fuzzy or foozy. But I''ll go with fuzzy, which involved an applicant for a pipe fitting position who is one of the test required for that position was you had to lift 100 pounds. In this case, Mr. Fuzy was only able to lift 92 pounds, which I guess was not close enough for the employer in this case. And one thing that''s interesting about this case is the 100 pound requirement is from the Department of Labor''s Dictionary of Occupational Titles. And the job of pipe fitter is in the heavy category, which with a physical demand level of lifting 100 pounds unassisted. This case is brief but some things weren''t examined as to whether the job of pipe fitter for S and B engineers was actually the same as the general description in the Department of Labors Dictionary of Occupational Titles. And I think it''s very possible that the broad category in the Department of Labor might not be applicable for different pipe fitters working at different companies. So, I think it the Court didn''t really look at this issue but rather than seeing an employer rely on the Department of Labor standards, I think it''s also advisable to make sure that these standards accurately reflect the job being examined in that case. In this case, the court held that the 100 pound lifting requirement was part of doing the job of pipe fitter. It was a heavy labor job. And therefore, the test was job related, it was consistent with business necessity. It was permissible and since the applicant wasn''t able to lift 100 pounds, he was not qualified for the position. The next case we''re going to look at is Jeffery versus Ashcroft, which involved a chaplain with the Bureau of Prisons. First of all, I just want to point out that for cases involving federal agencies or recipients for federal funding it is actually a case under the Rehabilitation Act and not an ADA case although the analysis is essentially the same under either law. In this case, a chaplain who had chronic pulmonary disease was terminated after failing a physical abilities test and he filed suit under the ADA. In this case, the job description did have as one of the requirements the ability to respond to emergencies, he was a chaplain in a prison. But in other descriptions of a job, the requirement for responding to emergencies was omitted. So, the Court was faced with the issue was if something was in the job description does that necessarily make it an essential job function. And the Court look at the EEOC requirements of the essential job functions and went beyond just the plain writing of the job description. And found that this physical test was not related to an essential job function. The Court stated that well of course the thing was that their examination of the facts did not compel the conclusion that this function was essential to the jobs job even though other chaplains in other prisons have had to respond to emergencies on occasion. What the Court based a lot of weight in is in this case chaplains hired before 1997 or for this prison system chaplains hired before 1997 were not required to take the physical test. And the Court held it could be waved for some chaplains and it obviously was not an essential job function because the other chaplains were evidently or would presumably have the same age response emergencies as Mr. Jeffery. Now we''re going to look at some reasonable accommodation issues related to examinations and testing. And the EEOC guidance provides that when the employers give examinations or testing they''re required to provide reasonable accommodations for the testing process. So, reasonable accommodations need to be provided to job applicants as well as just sitting employees. And one case that demonstrates this is the Van Buskirk case, which involved a dispatcher with a childhood polio and post polio syndrome who was terminated after failing a typing test. And he filed suit under the ADA. And this case also involved a similar issue to the Jeffery case as to how much weight is given to an employer''s position regarding what is an essential function. And the Court in Van Buskirk said that though a court must be appropriately deferential to an employer''s job criteria it is not obligated to blindly accept a stated requirement when the record show no rational connection between the requirement and adequate performance of the job. In this case, there were a lot of issues beyond the medical examination issue because there was some examination of whether assistive technology or reasonable accommodations could help the person fulfill the typing requirement. But the main issue here was the typing test given was similar to a typing test one would give to an administrative assistant. But the dispatchers, their type of typing that they did was very different than an administrative assistant would do, as there were many key stroke short cuts. So, typing addresses only a few key strokes would be needed rather than typing out the full name. And the Court really emphasized the fact that the typing test given to the applicant in this case was not a good indicator of the typing he would actually have to do on the job. In additionally this was not an applicant this was a sitting employee. Additionally the Court placed a great amount of weight on the fact that for seven years the plaintiff was successfully performing the job. He had good performance reviews. There had been no issues with typing. The concerns arose when the City of Indianapolis was looking at moving to a new system for entering dispatching and one of the supervisors was afraid that the employee wouldn''t be able to do the necessary typing. And actually, it turned out that I think the new system would''ve been very accommodating for assistive technology. So even if typing would''ve been a problem reasonable accommodation I think would''ve allowed the employee to do those essential functions. And here the Court look at the fact also that because the employer had accommodated the plaintiff during the application process by waiving the typing test that that again was evidence that the job, the function of typing was not essential to the position. I think it''s important to know when someone''s on the job for a period of time, especially seven years, and doing the job satisfactorily I think it''s a tough argument for an employer to make that there''s concerns that they won''t be able to do it anymore or even, even I think the fact of giving the test in the first place may have been questionable as to whether there was really a need. Was there a reasonable basis to think the employee was unqualified or not? And that issue wasn''t examined as much. The Court essentially said the requirement was waived, the plaintiff did a good job, and therefore he was a qualified employee for the job. Next, we''re going to look at confidentiality of information. And under the ADA by statute all information, all medical inquiries, all medical information, must be kept confidential. And what this means it must be collected and maintained on separate forms kept in separate medical files, which means apart from the personnel file. The EEOC does not like it when they order personnel file and see medical records or medical information in that personnel file. It should be kept separate and treated as a confidential medical record. The only people who can know about it in the workplace are people who need to know. If someone for example if someone has a modified work schedule and starts working an hour later and makes up the time maybe by working an hour later other employees are going to notice that that person is coming in later undoubtedly and ask the employer, you know, what''s up. Why is, why is Joe coming in at 10:30 and I''m here at 9? And really, employers are in a tight position there because you''re not really allowed to say obviously oh Joe''s on the ADA didn''t you know that. Really, that cannot be said at all. Really all an employer can say is that they are doing something for legitimate business reasons or to comply with federal law and that''s about it. And sometimes that does create some type of jealousy situation in the workplace. But no disability information can be given to that coworker it''s only people who need to know, probably direct supervisory staff. And I think that''s one reason to help to make sure all employees know that ADA information is confidential. So when someone asks a question why their coworker has a staggered work schedule and their told we''re doing it for a legitimate business reason, at least they have some inkling that the information''s confidential and essentially none of their business. Next we''re going to look at the case, the Cripe case which is also a Rehabilitation Act case because it involved someone working for the Department of Transportation. And in this case the attorney of an employee who had, who was HIV positive, the attorney sent a letter to the employer regarding work place accommodations and referenced the employees HIV status in the letter. And what the employer did is they left the letter sitting on their desk without an envelope and I assume sitting on top of the pile. And as a result, other workers in the workplace saw the letter and learned of the plaintiff''s HIV status, which caused him some embarrassment and some humiliation in the workplace. And it was really confidential information even if he didn''t experience this. Confidential information is done to protect privacy. And this person''s privacy was violated. The employer argued that it wasn''t marked as confidential and therefore it didn''t have to be protected as confidential. And the court did not buy that. Essentially the court said that under the ADA if you have medical information you keep it confidential. It doesn''t have to be marked top secret, confidential, do not open under pain of death. Really when an employer has medical information, the ADA duties require confidentiality kick in automatically. Also next, we''re talking about a case. This isn''t a published decision. This is a case that was just recently filed and it was file by the EEOC. The Equal Employment Opportunity Commission sometimes files cases on behalf of the public but in a case involving individuals. And here the EEOC filed a case against 7-11 of Hawaii. And the issue involved medical information given in response to reference checks on a former employees. So I think again employers should be careful if their going to give out medical information to perspective new employers again that information should not be given out, the medical information should not be shared with perspective employers. The confidentiality provisions still apply in those cases. There was another case I wanted to mention. This was not in the PowerPoint slides. But we just learned of this recently which is Equal Opportunity Employment Commission versus Ford Motor Credit, which involved the case were someone was applying for leave under the Family Medical Leave Act, the FMLA and submitted medical information to support their FMLA leave. And the question for the Court was whether the ADA confidentiality provisions apply to information obtained under the FMLA. And the Court held that it that it did. In this case, this person was HIV positive. And he was forced by his manager to provide this diagnosis to his direct supervisor in connection to his FMLA request. And the direct supervisor told his coworkers causing the plaintiff; I''m quoting from the summary, to feel humiliation, shame and depression. And the Court found that the medical information obtained under the FMLA still had the obligations of confidentiality as required through the ADA. So even medical information that''s not connected to the ADA initially if it''s not connected to a reasonable accommodation request, if it''s requested to sick leave or FMLA leave under this decision I think it shows that that medical information no matter how it''s obtained must be kept confidential under the ADA. And I wanted to mention one other thing, which we haven''t discussed, involves use of the medical information as part of emergency evacuation procedures. The EEOC has a fact sheet on this topic title the Fact Sheet on Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures. And it does allow employers to voluntarily seek information from employees regarding emergency evacuation procedures. And this information, although it must be kept confidential, it can be shared with people who need to know whether that''s floor captains or other people involved in safety in emergency situations. So, if that information is sought as part of the emergency evacuation procedure again that is permissible. It does not have to be disclosed but an employ can disclose it if they want to. And that information should again be kept confidential as required under the ADA. The next few slides we have some resource information of course, our host for the webinar the DBTAC-Disability Business Technical Assistant Center Great Lakes ADA Center, Equip for Equality where Barry and I work. For those of you in Illinois there''s the Illinois ADA Project. And then we have more resources on the next slide, the Department of Justice has some information more concerning service of customers. The Job Accommodation Network I think is a very useful resource for both employers and employees regarding accommodations. And the most useful information in terms of the medical inquiry requirements comes from the Equal Employment Opportunity Commission and they have a lot of fact sheets and guidance at eeoc.gov. So, we''re right about at two o''clock and I think we''ll see if anyone has any questions at this point.
Great, and thank you Barry and Alan. If you have questions at this time for our speakers or would like to ask any specifics, please go ahead and type in your questions into the check box or if you have a microphone you can go ahead and again hit the control key and speak your question and then let up the control key so that the speakers can respond. So, at this time if you have any questions please go ahead and type in the questions at, the questions now. And Barry while we''re waiting for people to weigh in if they have any questions or anything at this time, with the whole issue of the personality testing and the way that the courts and things have gone at this time around this issue, with, obviously it''s been something about the MMPI that the controversy has been raised. But the rule of thumb as to whether or not the personality test or any testing whatsoever would be permissible under the ADA as a quote unquote legal test, do you have any really, just really quick guidelines that you would say to an employer if they''re using some other type of form of testing with their employers that they could you know give some thoughts to and as they review those things. And then even determining, you know, if they want need or need to use the personality testing. Again, you hear so much about bias on these things and such of any testing of whether it''s the issue of, you know, I want a perky personality or I''m looking for, you know, truthfulness, or something of that nature.
I''ll start and then Barry can pipe in if desired. Well, there''s actually a couple of issues involved with it. One, whether it''s a medical examination or not, that was the information on slides 11 and 12. Examining the criteria pending on whether the test is administered by health care interpretive whether it''s invasive or designed to reveal a disability. And then I think there''s a second issue involved where even if something is not a medical examination because the EEOC guidance says something that just measures personality tests might not be a medical examination. But then there''s another, or another issue in terms of whether that task even if it''s not a medical examination whether it has the effect of discriminating against people with disabilities. And that''s where I think the key word for employers to follow is the test itself must be job related and consistent with business necessities. So if you''re testing for someone with an outgoing extraverted bubbly personality that might be appropriate if the person''s for example in customer service. It might not be appropriate if the person is in data processing and has little interaction with others. So I think the job related criteria in consistent with business necessity are some of the important guidelines for businesses to follow in any of these testing cases whether or not it''s a medical examination.
Okay, it looks like we have a couple of folks that have weighed in on some questions. One I''ll try to answer and then I''ll refer the other two to our speakers. One of the people has asked the question about the types of the PowerPoint presentation. At the conclusion of this session today, you will receive via email a copy of the PowerPoint presentations as well as some resources that Barry and Alan have pulled together in regards to that issue. So that will come to you via an email at the conclusion of this session. So just, stay tuned for that particular issue. I see that Alan''s looking up something right now with another person''s question. But, why don''t we go to the next one, which is if an employee requests FMLA but really needs a reasonable accommodation how should the employer proceed? Alan do you want to go ahead and take that question while Barry is looking up the Ford case one?
That''s a good question I just put in the site there that I have maybe Barry can find a westlaw cite as well. The criterion for what constitutes a reasonable accommodation request is very broad and liberal. Essentially, it''s any statement that indicates an accommodation might be needed. So, it, the person does not have to mention the ADA or disability or accommodation in a request. So, if someone is requesting FMLA leave that might be called to be seen as an ADA request for leave as a reasonable accommodation. But the EEOC guidance says that when an employee requests leave that you look at the law that affords the most protection for the employee which is usually the FMLA. So, the interaction between the FMLA and ADA is very complicated. But essentially if someone wants leave under the FMLA and they meet the requirements in terms of working the employer, working with the employer for more than a year and they have I think it''s 1350 hours and the employer has more than 50 employees so their covered. Under the FMLA if someone meets the requirements and the employer meets the requirements they get the leave no questions asked and they get up to 12 weeks of leave. Under the ADA, it''s a different analyses. You look to see if the leave is reasonable. And under the ADA, the employer can choose among effective accommodations. If the person wants the accommodation of leave and the employer says instead of that we''re going to transfer you to a part time job that may be in some cases acceptable under the ADA because the employer has discretion among various types of accommodations. But if someone seeks leave under the FMLA, I think that''s the first law that should be looked at. I don''t think an employer could say you want FMLA leave; we''re not going to give you that. We''re going to accommodate you under the ADA by some other means. So, if the initial request is for the FMLA it could be seen as an accommodation request. But the law offering the broadest protections which is usually the FMLA should be looked at first. But if there are other accommodations unrelated to leave that might be reasonably connected to the leave request, I think the employer may have a duty to investigate those as well whether it''s a staggered work schedule or whether the person might even need some technology or rest time at work or something like that. I think those are the issues that might arise from, from an FMLA leave request even though they would be considered under the ADA.
Alan just to chime in there on that though I think at the same to you would want to make sure people understood that it was clear that if someone has exhausted their FMLA leave but they still are in need of leave then it may then convert itself over to consideration of leave as a reasonable accommodation under the ADA at that point as well.
Thanks Robin for pointing that out. That''s absolutely true. If a person requests FMLA leave and their FMLA leave is up I think if an employer says sorry, you''re out of leave we''re done talking. That would be problematic. I think then that would almost convert it into an ADA leave request where again the employer would have some discretion where accommodation is given.
So, in an effort to answer question regarding the site for the case we talked about the Ford Motor Credit case that Alan mentioned regarding the FMLA request and where that was discussed among other employees to be a violation of the ADA, that''s a case from the middle district of Tennessee. It doesn''t have an official cite yet but we do have a westlaw cite. And so it''s called EEOC versus Ford Motor Credit and the cite is 2008 West Law 152780 and it was decided on January 14th of 08.
Great, thanks Barry for that and that''ll be recorded in the transcripts as well. I think we also have another question here from somebody who has asked what is the liability of an employer when a job candidate reveals his disability to an interviewer?
Well, it says liability of an employer when a job candidate reveals the disability to the interviewer. I mean about, an employee, a job candidate can voluntarily disclose their disability to an interviewer and sometimes when they do that they may be saying, you know, I have vision issues. And then an employer actually has no liability if they ask questions related. Maybe there are issues where you have to do some sort of reading on the job or computer work. An employer can then inquire a bit about whether the person can perform the essential functions now that they know about some of the disability related information that they hadn''t known before. So if it''s voluntarily given then there really is no liability. If it''s hard to know exactly if that''s what you question is since we''re not able to talk back and forth. If you question is different and is actually asking whether or not, what the liability is if an employer impermissibly obtains disability information you would really be able to get that kind of relief that''s available to other aspects of the ADA. So you could get compensatory damages if you could show there was some sort of intentional or reckless disregard of the person''s rights. Potentially, you could get some punitive damages. And that, that would often come if maybe somebody had done it in the past and they had been cited for doing it and they did it anyway again. That would be maybe the person could be liable for punitive damages. If the person wasn''t hired after the person, if the applicant wasn''t hired after they were given, they were forced to provide disability related information then potentially the person could get the job that they didn''t get. That''s not really job reinstatement but they could potentially be forced to, an employer could be forced to put the person into a job or if that job''s been filled any other related job that the person would be qualified to do. Potentially there could be damages regarding the loss of income that was involved. There''s even a possibility that depending on how the information is used you could get emotional distress damages. Alan talked about a case where there was emotional humiliation because of spreading disability information on somebody''s HIV. If an employer has violated the ADA under these provisions you''re really entitled to all the relief that''s involved. The only thing I didn''t mention is that employers are also liable, if the plaintiff is the prevailing party, they''re liable for the plaintiff''s attorney''s fees as well. So, that would be another potential liability the employer would be subjected to.
I think also just for clarification because I think that the asker just clarified that that was the particular in her issue, her question was in response to voluntary offering and what happens when a job candidate voluntarily offers. The EEOC guidance on this particular issue is fairly clear and gives some good guidelines in relationship to the circumstances and the situations where employers may, employees may disclose or applicants may disclose information and how employers may respond to those things. And you know, you have those situations where an employee, applicant, I''m sorry, may have a visible disability, you know, that you have seen or view in the interview. And the employer may have concerns about that person''s performance or a specific need for reasonable accommodation. The situation where someone reveals that they have a disability during the interview process or the situation where the individual discloses the need for a reasonable accommodation during the interview process each of these are dealt with separately in the Equal Employment Opportunity Commission guidance. But I think the role of thumb in the message that comes out throughout that guidance document is the fact that the employer needs to make sure that they''re focusing not on the disability per say or the specifics of the disability. So, for example it would not give you carte blanche because I''ve revealed it voluntarily to start asking me about the disability itself. But if I reveal a particular disability which you the employer may believe may require a reasonable accommodation or it brings up concerns of the employer about my ability to do certain job tasks associated with the position I''m seeking I would be able to ask that candidate specific questions about their ability to perform specific tasks related to the job. So for example, if I disclosed the fact that I might have a seizure disorder voluntarily during the interview and the employer knows the job requires this individual to be climbing up on 10 foot, 12 foot ladders and they hadn''t really talked about it previously in the interview this would not prohibit the employer from asking specifically again back to the job tasks and the job functions specific questions about that person''s ability to carry out those tasks and things where they may not have previously asked those questions. So, again the focus should always be on the job and the job duties. Getting that information through voluntary disclosure by the individual is something that does happen on a regular basis. So it doesn''t need to be fearful of it just make sure that you''re double checking yourself as employers and not using that information or the fact that that''s been quote unquote voluntarily disclosed as a reason or a rational for you to be able to ask disability specific questions. Keep the questions related to the job and the job tasks themselves. Barry or Alan, I don''t know if you want to say anything additional?
I think that is exactly right and the only other thing I would add is that despite the fact that the person has voluntarily given that information there are cases that we talked about that you still need to keep that, that information confidential. So, the person may ultimately, you know, be, be willing to share that information in the workplace. That may be a decision they make. But, until they make that decision the fact that they revealed it during the job application process doesn''t mean that they''ve given you the ability to share that with others in the workplace because of, as Robin said, they may be seeking a reasonable accommodation or they may just be trying to make sure that you understand they''re able to do the job despite the fact that they may have a particular disability. But, the confidentiality provisions would, would still apply.
And I just want to add one point also just from the other end. Generally our agency doesn''t feel it''s a good idea to voluntarily disclose if you''re the job applicant voluntarily disclose, to voluntarily disclose disability information for non-apparent disabilities especially until after at least the conditional job offer has been received. Maybe that''s the nature of our work. But, often there are problems when people voluntarily disclose. Also, in many employees minds there are all these concerns. We have to pay for accommodations, attendance issues. So we generally try to dissuade people from voluntarily disclosing. Even though people do it in a good way and they want to be forthright with the perspective employer, it often can come back to haunt them as well. And no one has the duty to disclose any disability until they need an accommodation or until they need that reasonable accommodation. And often you don''t know that until you are actually on the job because the job described at the interview might be different than the job you''re doing your first day there, which might be different from the job you''re doing three months down the road. So, so we urge caution when people voluntarily disclose disability information.
It definitely does happen though and people don''t always have the counsel of organizations and entities and such to, to tell them otherwise. So I think it''s just employers have to be very aware if they do have those situations occur or individuals who may be working with advocates and have an opportunity to provide them some insight and counseling. At this point, any other questions from the audience that we might be able to direct towards our speakers today. I think we''ve dealt with all of those that were typed in up to this point.
I was just going to say while we''re waiting for any additional questions, one, one topic that we haven''t really talked about is when an employer gets information from someone else in the workplace about potentially disability related information. And there haven''t really been any cases on this but I just wanted to mention it is, it is talked about a bit in the EEOC''s guidance. So the standard here is that if information comes to an employer that''s reliable and would give reasonable believe that the employee''s ability to perform the central functions would be impaired by the medical condition or potentially pose a direct threat then an employer may make disability related inquiries based or require a medical examination based on the information they may get from another employee. So, the EEOC gives a couple of examples that can help in analyzing this because it''s a tricky area. One is when you''ve got a couple of people and coworkers and one person reveals to the other that, that he has tuberculosis or had a skin test a positive skin test, a reaction to a skin test indicating tuberculosis which can be contagious. And, so the coworker reveals that to the employer. And the employer gets that information, he knows the persons are friends and therefore it does not necessarily, you don''t have the person giving unreliable information and also he''s giving information that shows there''s potentially a direct threat in the workplace. So that would give rise to an employer making an inquiry based on this information from another employee. Whereas another example they give involves a woman who had a family member passed away and was off and asked for additional time off. And there was a rumor going around that the person was depressed and that''s why she wasn''t returning. And then somebody took that information and sort of turned it in, well then that person because of their depression they may have concerns about safety because of, you know, stereotypes about people who have depression being unsafe in the workplace. And because the employer just got all that information that, you know this person''s depressed and may not be safe in the workplace but have not observed anything as far as strange behavior or anything that would be consistent with this allegation of potential safety risk. That would not give rise for the employer to make an inquiry into the person''s possible disability related issues.
Great, thank you Barry for that addition information clarification. Again, at this point, if there are any questions for individuals from the audience please go ahead and type them into the box. And otherwise we will go ahead through the process here of wrapping up this session. So we''ll give you a second here if you have any additional questions and then we''ll go ahead and close off the session. Okay I guess seeing none. Everyone''s silent out there today. We''ll go ahead and Barry if I could ask you to go ahead and advance to the next slide. We would just like to let people know that the next session in this series is April 26th of 2008. Again Tuesday, same time, same location, the topic for this session is Disability Harassment, Retaliation and Discipline another area under the ADA which has been getting increased attention to both the enforcement arena as well as just the attention in general from people as this is becoming more and more of an issue coming to the forefront by people. And then also information about this session or detail about it is on the ada-audio.org website. We also have an online evaluation form that we would ask, we''re going to ask people to please fill out for us. This will be something that you''ll get emailed to you the link and we just ask you to fill out that application that evaluation so we can get some feedback about this particular session to help us improve our program and let us know what, what you think and such. So again I want to appreciate, send my appreciation to Barry and Alan for their presentation today and I want to thank all of you for your participation in the program today. I hope that the information that was provided was useful to you. And let''s see, go ahead and, Barry can you go back one slide they want the date and time of the program. The next program is April 26th and it''s titled Disability Harassment, Retaliation and Discipline. So okay, again thank you everybody for your time and efforts today and we will hopefully connect with you again in the future. If you have, any questions please feel free to contact us. You can contact us through our website ada-audio.org or by calling the toll free number 800-949-4232 to reach your regional disability and business technical assistance center. Good day. Woops, I guess I''m getting here that that date''s incorrect. I don''t know I want to ask Barry and those guys if they prepared this particular slide. I should have probably checked that. Sorry about that. Let''s see if we got the wrong date. Maybe it''s if that''s a Saturday then I guess that would be that would be the 22nd. Barry or Alan do you know? I can''t assess that immediately off the top of my head here. So it should be April 29th, okay I guess I''m seeing that it should be April 29th instead of the 26th. So I have a typo. Thank you the 22nd and 29th, so I guess Barry''s right wing and since he''s the speaker that it is. Oh, alright thanks a lot Barry. Barry''s going to further confuse us. And we''ll make sure this is clarified in the emails to everybody. And the actual date of that session is April 22nd. I apologize that I wasn''t prepared for that I thought that our slide here was correct. I didn''t double check it, my error and I should''ve done that. So we''ll send that out and clarify that in our email. But the next session is Tuesday April 22nd and thanks for those that caught that by looking at your calendar right off. Again, thank you everybody and have a good day.