Okay. Well I would like to welcome everyone to today''s session. My name is Claudia Diaz, and I am the Associate Director at the Great Lakes ADA Center. And we host the legal webinar employment in ADA series. This program is funded by the National Institute on the Disability and Rehabilitation and Research, out of the U.S. Department of Education. And today our speakers are Alan Goldstein and Barry Taylor from Equip for Equality. They will introduce themselves as they begin the session today. We will be taking turns during the presentation between speakers to cover and address the full range of this topic today. There will be materials provided with this session, and that will be distributed at the end of the session via email. And that will include a copy of the presentation as well as a legal brief that Barry prepared for this particular session. And also want to send the evaluation form so you can go ahead and send us your feedback. So with that, I am gonna go ahead and pass it over to Alan and Barry so they can begin the presentation.
Great. Thanks Claudia. Okay, sorry had a little technical difficulty there. My name is Barry Taylor, I am the Legal Director at Equip for Equality, and Alan Goldstein who is a Senior Attorney at our organization are going to be the speakers today. And we are gonna divide up our presentation between us. We will be talking about three different topics. The first one would be disability harassment, the second one retaliation, and the third one discipline. And I will be covering the first two, disability harassment, and retaliation, and then Alan will cover the third topic of discipline. These are not your typical kind of ADA issues, but they are emerging in the case law, and they are ones that are very much more present than they were maybe originally when the ADA was passed. And so we thought it was important to have a discussion about how the courts are interpreting these various causes of action under the ADA. The first topic we will be discussing is the disability harassment, and as you see on Slide 3 there are various topics within disability harassment that we will be discussing. First we will be talking about how disability harassment claims can be brought under Title I of the ADA, the legal standard for bringing a harassment claim. We will also talk about two of the first cases that recognized a claim for disability harassment in 2001, and then we will be talking about cases that have developed since those, both ones that have allowed harassment cases to proceed, and those cases that have dismissed disability harassment claims. We will also talk about a different way of bringing a harassment claim, not under Title I of the ADA, but instead under Title V of the ADA. And we will also provide some tips for both employees with disabilities, and employers. After we finish talking about harassment, then we will move into talking about retaliation. And when we talk about retaliation, we will be focusing on a variety of topics as well. First we will be talking about who can bring suit for retaliation, what constitutes an adverse employment action, which is required in bringing a retaliation claim. We will also talk about cases where they talk about was there a non-retaliatory cause for the adverse action. Then we will talk about whether their employee had engaged in protected activity, which is another requirement for a retaliation claim. We will discuss whether there is a causal connection between the employee''s exercise of that protected activity and the employer''s adverse action. We will discuss whether courts have said whether retaliation claims are limited to current employers. And then we will talk about whether you can get damages in ADA retaliation cases. And then the final topic Alan will discuss will be employee discipline related to disability, and first he will be looking at the issue of whether there is knowledge of disability prior to instituting discipline, talk about employer''s workplace conduct rules, talking about the consistent enforcement of discipline, and also rescinding discipline as a policy modification. So as we discussed, we will be first starting with disability harassment. And you know, for disability harassment, there is a pretty high bar for bringing this kind of claim. And you will see that disability harassment is primarily derived from Title I of the ADA, and on Slide 7 you will see the language under the ADA where this comes from. Excuse me. You will notice that the ADA language that you see there is the typical language that we talk about bringing a cause of action for discrimination. But typically when we talk about discrimination under this section of the ADA, it is usually regarding job application procedures, or failure to hire, or discharging employees, that kind of thing. But there is a provision at the end of this section that says you can also be discriminated against based on the terms, conditions, and privileges of employment. And that is really where disability harassment arises from, and says that the harassment really alters your employment, the condition of your employment, because the harassment is so severe. And so that is where the cause of action for harassment derives from. And this is not an original thought. What this came from is an analogy from Title VII, Civil Rights Act that was passed in the 60s that covers race discrimination, gender discrimination, national origin discrimination, religious discrimination. And it has pretty much the exact same language as the ADA. And when the Supreme Court found that harassment was a cause of action under Title VII, and again it is not explicitly listed in Title VII, just like it is not explicitly listed in the ADA, they relied on the same terminology of terms, conditions, and privileges of employment, and found that a hostile work force, excuse me, a hostile work environment based on the treatment that somebody''s receiving because of their race or their gender, was altering their employment. And that gave rise to a claim for harassment, just like it has given rise to a claim of harassment under the ADA. And so the standards for filing a disability harassment claim again, derives from, excuse me, the Title VII analysis that the courts have done. And they have really focused on five different factors that a plaintiff has to prove. First, that the plaintiff has to prove that they are a qualified individual with a disability, so they have to show that they have a physical or mental impairment, they are substantially limited in a major life activity, I am sure all of you are familiar with that. Then they have to show that they were welcome to some kind of unwelcome harassment. Then third, you have to show some sort of link, that the harassment that they experienced was based on the person''s disability. So it is just basically being treated badly, but it is not related to the disability, then you are not going to be able to bring a disability harassment claim. Then number four you have to show that the harassment was sufficiently severe or pervasive to alter the term, condition, or privilege of employment that we talked about before. And this factor number four is really where most of the litigation has arisen, and has been the most difficult thing for plaintiffs to prove in the courts. There is a very high bar on meeting that sufficiently severe or pervasive standard. And then the fifth factor that you have to show is some factual basis to impute or require the, impute the liability for the harassment to the employer. So the employer had to know, or should have known of the harassment, and then failed to take any kind of action that would have remedied the situation. And so that is how the liability extends to the employer. So what should be clear on this number five is that it doesn''t have to be the employer or the supervisor who is actually doing the harassment. It can be a co-worker. But the employer does become liable if they fail to take appropriate action in the situation of harassment by a co-worker. Now let''s move to the court decisions that have come down. And I guess before I get to the actual cases, I wanted to say something first. And that is that these cases are actually pretty challenging to analyze sometimes, because they are very fact specific and even sometimes when the facts seem to suggest that the action by the employer or by the co-workers are severe and pervasive, sometimes the plaintiffs haven''t won. And so courts have been you know, very different in their analysis. And again, sometimes you will see cases with similar facts, and courts will rule different ways. So these are hard sometimes to predict. But they are very specific to the facts. There are some trends, and one of the trends is that a court is more likely to find a cause of action for disability harassment, and liability for that cause of action if there was some sort of tangible injury that the plaintiff experienced in the workplace as a result of the harassment. Now that doesn''t mean that it is necessarily acquired. Some courts have said it is, and some courts have said it isn''t required, but in cases where there is an injury it is much more likely that the defendant will be held liable. And some people have felt that it really, this is an unfair additional requirement. It is not listed in the five factors that we have seen under Title VII, and feel that disability plaintiffs are really having to prove more than people who are bringing claims for sexual harassment or racial harassment. And so it is interesting to watch the development of the case law in the ADA, and that it is a bit different than some of the case law under Title VII because of this added requirement that some courts have put in to show some sort of tangible injury. The other thing I wanted to mention is that some of the cases we are going to be talking about are not ADA cases, but are Section 504 cases under the Rehabilitation Act. And these are cases that were brought by federal employees. And it is important to note that there is a cause of action for disability harassment under Section 504, just like under the ADA, because they use the same language, the terms, conditions, and benefits of employment. And so if you are a federal employee you still have the opportunity to bring a disability harassment claim under Section 504. So really before 2001 we didn''t have a circuit court of appeals decision on disability harassment that explicitly analyzed whether there is a cause of action under the ADA. But then in 2001 interestingly, we have two cases that were decided within a couple of weeks of each other, the Fox case out of the 4th Circuit, and the Flowers case out of the 5th Circuit. And I think it is also interesting that these are traditionally two of the most conservative circuits out there, and both of them did recognize a cause of action for disability harassment, even though it is not explicitly written into the ADA. They made that analogy from Title VII as we spoke about before. Now several other circuit courts have since then recognized a cause of action, and others have sort of presumed a cause of action for disability harassment. We don''t have a supreme court case yet that makes it absolutely clear, but I think one thing that is significant is there is no circuit court of appeals that has rejected the fact that you can bring a case for disability harassment under the ADA. Now some courts will recognize there is a cause of action and then say that the person isn''t liable, that there isn''t enough evidence there. But there is no court that says you can''t even bring a case for disability harassment to the ADA. So I think it is generally presumed that disability harassment is gonna be recognized as a cause of action under the ADA, and then it is just a matter of proving the different factors. So let''s first talk about the Fox case. And this was a case an employee brought against General Motors out of the 4th Circuit. And at General Motors at the time there were a group of people who were all working on light duty. And there was a particular foreman who was really not happy about the fact that these people were on light duty. And he called them pretty horrific names, he called them handicapped MFs, he called them 911 hospital people. And he was just very abusive, and he was particularly abusive to Mr. Fox and not sure why that was. But as a result of the abuse that he experienced, Mr. Fox was verbally abused, he was ostracized by the other employees, pursuant to the foreman''s instructions they wouldn''t bring him supplies. The foreman made Fox work at a table that was too low, which ended up re-aggravating his back injury. And he also refused to allow Fox to apply for a truck driver position. And that was an important position, because it met Mr. Fox''s medical restrictions, and he would have been qualified to do that and leave light duty. And for some reason the foreman just did not make it easy for Mr. Fox to do a variety of things, including providing him, allowing him to apply for this position. As a result, Mr. Fox experienced emotional injuries and physical injuries as well. It exacerbated his back injury, but he also became very depressed and anxious as a result, from an emotional standpoint as a result of the abuse. And the, Mr. Fox analogized his situation to Title VII, and the court recognized that Title VII analysis was applicable to the ADA. And as you will see, and one of the reasons was is that they really do have the same purpose of trying to eradicate discrimination for people in protected classes. And as you will see on the Slide 12 there, the juries ended up awarding Mr. Fox $200,000 in compensatory damages, as well as some funding for, or excuse me, damages for medical expenses and lost overtime. And the 4th Circuit affirmed the jury''s verdict, except for I think the lost overtime. But $203,000 were affirmed by the 4th Circuit. And as I said before, the court recognized disability harassment as a cause of action under the ADA, and did adopt Title VII''s five factor test. So that is very significant. They also relied upon regulations from the Equal Employment Opportunity Commission that referred to harassment. And I didn''t mention this before, but you are, I think Claudia mentioned it. But you are going to be getting a brief that has much more detailed analysis, a lot of things that we talk about that aren''t expressly set forth in the PowerPoint will be in the legal brief. And you will see a lot of cases in here that don''t necessarily have the case citation, but all those case citations will be in the legal brief too. But these EEOC regulations specifically refer to harassment, and I will read you the quote a bit. It says it is unlawful to coerce, intimidate, threaten, harass, or interfere with any individual in the exercise of or enjoyment of any right granted or protected by the employment provisions of the ADA. So even though the word harassment is not in the text of the ADA, it is in the EEOC''s regulations, and the 4th Circuit here deferred to the EEOC regulations in finding that there was a cause of action for disability harassment. They also found that the harassment, that fourth factor we talked about, was severe and pervasive in Mr. Fox''s case. And so he met that bar. And when they talked about whether something was severe or pervasive, they talked about a few factors. And first of all they said that disability harassment is an objective not a subjective task, so they are not looking at the mind of Mr. Fox but instead looking at sort of an ordinarily person what would they feel in this situation and so the factors they looked at was first what was the frequency of the discriminatory conduct, was this something that was happening at a lot or was it just maybe one harassing incident? The severities of the discriminatory conduct, whether there was physical threatening or humiliation or were these just what they call mere offensive utterances? And then they also said, did the harassment reasonably interfere with the employees performance? So in Mr. Foxs case they applied that standard and found that it certainly did because he did suffered physical and emotional injuries. There was medical testimony that there was a worsening of his back injury and the psychiatrist testified that there was emotional injury and a reasonable link between the harassment and those physical and emotional injuries. And the court really found it important that the plaintiff had medical and psychological experts to show the worsening of the conditions because of the harassment. And so I think in cases that plaintiffs bring having expert witnesses to support that maybe very critical. Now we will turn to the Flowers case which is the other case decided in 2001 recognizing disability harassment as a cause for action. And in the Flowers case, you have a woman who has been working for 6 years as a medical assistant. She has disclosed that she has HIV in the workplace and the supervisor who was her supervisor at the time really changed dramatically when she heard about the HIV. These two people were very close, they were close socially, they had drinks after work and they went to movies, they even went to Mardi Gras together. And once Ms. Flowers disclosed her HIV status, the supervisor completely stops socializing with her. Even refused to shake her hand and was intercepting her phone calls, eavesdropping on conversations, it was a very, very dramatic change. Also another thing that happened was in the 6 years she had worked there, she was required to take one random drug test and once she disclosed her HIV, she was required to take four random drug tests all in one week. And they were all negative but I think that indicates that perhaps the employer or the supervisor was concerned on how this woman got HIV and the fact that she might have got it under thorough illegal drug use. Ultimately, Ms. Flowers was discharged after being placed on probation and being really significantly harassed, written up, called all kinds of names by not only her supervisor but also the president of the organization. And she was ultimately terminated. It is really interesting that often the scenario in harassment cases is that the harassers tried to make the workplace so intolerable to force the person with disabilities to quit and some people feel like that protects them from an ADA claim because there is no termination. But in fact if all that harassing that you do rises up to the level of severe and pervasive, you can be liable under the ADA for harassment. So like the 4th Circuit, the 5th Circuit recognized in this case that disability harassment was a cause of action and they also adopted Title VIIs five factor test. They also found that the harassment was severe and pervasive but that the physical impact of the harassment only arose after the termination. And the trial court had awarded $350,000 in damages to Ms. Flowers; it was actually reduced to $100,000 because of the statutory limits. But when it got up on appeal, the court said that there wasnt an actual injury here and you cant presume emotional harm from discrimination. And because there wasnt any actual injury to support the jury award and really the only injury she could show were after she had left, so she had shown that she had lost weight, had nausea, diarrhea, wasnt sleeping, the court said you know that could be related to her HIV and not necessary related to her harassment that she had experienced. And so they vacated the jurys award of damages from $100,000 down to $1. They said you know, the jurys testimony of damages while she was an employee, all she showed was that they had taken away her self respect and dignity and the doctor had provided some general testimony that the harassment could adversely affect her HIV but had no real evidence that it happened in this particular case. Interestingly in addition to vacating the damages, she also subsequently was not allowed to recover attorneys fees even though she was the prevailing party because she had only received nominal damages. So both of these cases are significant because they recognize that disability harassment is a claim you can bring under the ADA but they are also significant in that the first one the plaintiff received extensive damages and the second one they didnt because they couldnt prove an actual injury or damages that arose as a result of the harassment in the workplace. So lets go on to some more cases and we will first focus on a group of cases where the disability harassment cases were allowed to proceed and again the citations for all these cases are in the legal brief that you will be receiving. The first case is the EEOC versus BobRich Enterprises case, it is the Subway sandwiches franchise and you have a hard of hearing employee who is repeatedly mocked in the workplace by her supervisors. They are always saying can you hear now? Do you have your ears on? Read my lips. And it was just really horrible and she ultimately felt like she had to resign because of her disability harassment in the workplace. The trial court jury awarded her $165,000 in damages and so that was a significant award and I think what it does is that it showed that a jury is sympathetic to disability harassment cases if you can get there and get past that severe and pervasive requirement that we talked about before. And here there was no evidence of physical injury but they still found that it was severe and pervasive. So this is a good example of a case where actual injury was not required. The next case, the Arrieta-Colon case is out of Puerto Rico against Wal-Mart, was a case involving some very horrible facts. You have a gentleman who had a disability called disease, I am not sure if I am pronouncing that right but it results in sexual dysfunction. He has had a penile implant and his co-workers found out about it and he received extensive harassment in the workplace by his co-workers about the penile implant. They even made harassing comments over the stores P.A. system, so there is a confidentiality issue. And the employer did not take any action to address the harassment which goes back to that factor five we talked about where the employer will be liable if they dont do something once they learned of the harassment and the employer clearly knew about the harassment here. And so the jury awarded him $76,000 in compensatory damages and $160,000 in punitive damages. And so the other thing I just want to mention was the employer tried to rely upon on a grievance policy they had but the court found that that was not consistently used. The other thing that the employer tried to say is that you know, this is just the way men behave in a workplace and the court said you know, we dont believe that is a basis for defending a disability harassment case, and this goes beyond how men behave in the workplace. So, he was able to show an emotional injury that he was ultimately not able to have kids as a result of some harassment that he underwent. So he was successful in that aspect of things. The EEOC versus Lubys case is an employee with a mental impairment. He had developmental disabilities, he was barked at, called a retard, they were threatening him with violence, even was slapped around by somebody, they hid his bike in the mens room, they treated him really horribly and they found that that was severe and pervasive and he was able to pursue with his case. And then the Quiles-Quiles case, another case out of Puerto Rico, involved a postal worker with mental illness and he was harassed by his supervisor and co-workers. He was called crazy in front of other co-workers and even in front of customers. They disclosed that he was under psychiatric care. So they violated his confidentiality in saying that to other customers. They made comments that his psych meds that he was on affected his sexual performance. They talked about him being a great risk in the workplace because of his disability. Ultimately he was hospitalized for his depression. And again the court rejected the defendants argument that this kind of language and treatment is common in blue collar workplaces. The court said that is not a valid defense, this is harassment and there is a cause of action for that under the ADA. More commonly disability harassment cases have been dismissed, so I mentioned the ones that have proceeded and while there have been some that have proceeded and succeeded in good jury awards, there are most of the cases the plaintiffs have lost. And so I just want to review some of those. One of the more egregious fact is probably the Shaver case, involving a gentleman with epilepsy who had had a brain surgery and had a metal plate put in his head. And he was subjected to really horrific constant name calling including this name that they call him platehead all the time for over two years and they would never stop. And the defendant tried to argue that this was not related to his disability, was just a nickname that they had and the court bought it. They said you know this conduct is just rude and it is abrasive and it is unkind but it is not severe and pervasive. And the court also unlike some of the other cases we just talked about, they say this kind of name calling and ridicule is common in the workplace and has not rise to the level of harassment. I think the important thing in this case is the court said they did not want to be the arbiter of human relations issues and they just didnt think that was the role of the court and so they dismissed the case. The Meszes versus Porter case involves a gentleman with HIV AIDS and his supervisor had said some derogatory things to him, said that you know when he got AIDS, he was getting what he deserved because he happened to be gay and they also reassigned him to the graveyard shift. And the court said we are going to dismiss this hostile environment claim, they found that it was just simple teasing and off hand comments. But the main thing they found was that is was isolated and that there wasnt sufficient frequency. And if you remember when we talked about how you determine whether something is severe and pervasive, one of the things we talked about was whether or not it was frequent. And in this case while it was offensive, it wasnt frequent, and therefore the case was not allowed to proceed. The Rozier-Thompson versus Burlington Coat Factory case involved a person with physical arthritic disabilities and degenerative joint disease. And the supervisor just said a lot of really cruel things, you know, they told her that she was stupid for trying to get pregnant because of her disability, they called her cripple all the time, they said she should quit and go on disability, that she was no good to the company. And again the court rejected the harassment claim based on the fact that the comments werent frequent enough; there were 3 incidences over a 2 year period. They also said that there were no physically threatening or deeply repugnant comments here. And we can all decide you know for ourselves what the comments mentioned are deeply repugnant, at least this court found that they were not. And finally the Mason versus Wyeth case, the court found again that there was no harassment to proceed with because it was simply a prank not harassment. This was a supervisor who would do a lot of pranks in the workplace and for this particular plaintiff who was hard of hearing and had post traumatic stress disorder, the supervisor was very active in his pranks and would sneak up behind him because the person couldnt hear him because of a hearing disability and then yell and scream and surprise him. And because of the PTSD, the stress was, the person had very low threshold for stress, and so it was really a very damaging thing for the plaintiff in the workplace. But the court found it, that it wasnt harassment. And I think the key to this one was unlike that Wal-Mart case we talked about before, here it was very strong evidence that the management responded appropriately once they found out about the disability harassing comments that were going on. So this is a very good example of employer really responding quickly and avoiding liability. Now what we have been talking about so far is bringing a harassment case under Title I and that is where almost all the cases have been. However, there is a school of thought that there is a different way to bring harassment case under the ADA, under Title V of the ADA. And Professor Mark Weber is somebody who has pushed this idea and he has a book out right now call Disability Harassment that was just published under New York University Press, and it is a terrific book and he has a special section just on possibly bringing harassment cases under Title V. And if you look at Title V, there is a provision there that said that it is unlawful to coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of any right granted or protected by this chapter of the ADA. And so what the thinking is, is that the coercion and intimidation referred here could include verbal insults that dont necessary rise to the level of severe and pervasive which is required under Title I. So his thoughts are that this would be an easier way to prove a disability harassment case under Title V of the ADA. Now we dont really have any cases, there is a Brown case, the Brown case which is in the materials you will receive. But while that case recognizes that you can bring a Title V action, the facts in the case did not support the claims. So we dont have a case where somebody was actually victorious under Title V claim, so I think this is something to watch for but currently is not one that has been recognized by the court. Another benefit of bringing a case under Title V is you would not be required to proof disability because Title V doesnt talk about qualified individual with a disability but instead refers to person or individual, so that is another advantage. And then real quickly, I just wanted to talk about some tips for employees with disabilities as well as employers. If you are an employee or you are representing somebody who is an employee, it is really important that you address the harassers conduct and complain to the supervisor. If you bring this up after termination or after you quit, it is going to be much harder to prove that the employer was aware of that and failed to take action as result of the complain. It is always very important to keep good documentation of harassment. We talked about how the frequency is important and if you could only document that it happened twice but you know, you have a feeling that it happened a lot more; it is going to be harder to prove. So as hard as it can be sometimes, it is important to try to write down notes when things like this happened so that you can then show how frequent the situation was. Also important to keep aware of the statute of limitations, 180 days under the Title I or if you are in a state that has a work sharing agreement with your states Human Rights Division it could be up to 300 days. And then also if there is any way to provide proof of a physical injury that arose from the harassment that was incurred during the employment that is definitely preferable if you can do that. Some courts arent requiring it but some courts are, and certainly those courts that have recognize disability harassment liability have been much more likely to do so when there has been proof of physical injuries. And then on the other side, tips for employers; employers should look at their current harassment trainings or discrimination trainings that they have and make sure that disability is incorporated into that, to show that they are training their employees and their supervisors on this issue. So that they can be aware that this is an issue in addition to the race and sexual harassment trainings that is going on also if you have disability harassment policy, excuse me, if you have harassment policy it is important to make sure that disability harassment is included in that or maybe create a harassment policy if there is not one already. And also make sure that there is appropriate grievance procedure to report workplace harassment. And not only there is a procedure in placed but also that that procedure is followed and acted upon promptly. And finally, training supervisors to respond promptly to an internal complaint or harassment is key under that factor five that we talked about. So that concludes the presentation on harassment. We are now going to move to the second issue and that is retaliation under the ADA. Now, retaliation is a cause of action that has also been recognized under Title VII with respect to retaliation for people exercising their Title VII rights and it is also in the ADA. And you will see that like we were talking before, Title V is where retaliation can be found under the ADA, it is Section 12203 Subpart A. And it really tracks the same language is a lot like other civil rights laws. And it says that no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted or participated in any manner, in any investigation, proceeding or hearing under this Act. So, basically being retaliated against for exercising your rights under the ADA is what Title V says in the section. And the rationale is it provides protection for employees who want to exercise their civil rights. So there is some different issues there in recent retaliation cases in the last several years. One is, who can bring a retaliation claim? And interestingly most of the courts have said it is not limited to people with disabilities. Under Title I, you always have to show that you are a qualified individual with a disability. But that is not necessary required under retaliation because that section talks about person and individual rather than qualified individual with a disability. So, if a person is exercising their rights under the ADA, and they have maybe a physical impairment but it doesnt rises to the level of a disability, they may not be able to bring a discrimination claim saying that they were treated because of their disability. But if they were retaliated for filing that claim with the EEOC, they can still bring an independent claim for retaliation even if they cant proof that they have a disability. And the Shellenberger case is sort of the typical case where the court has said that Title V does not required proof of disability to bring a retaliation claim. The next issue that comes up in retaliation cases is whether or not the employee had some sort of adverse action. You cant bring a claim for retaliation if you have no adverse actions against you for exercising your civil rights. And for a while it was unclear what that adverse action had to be. Some courts had said that you were only able to bring a retaliation claim if you can show sort of the ultimate adverse action, termination. And if you couldnt show termination, there wasnt a basis for retaliation. And other courts found differently and said that you know if you are treated differently in the workplace because you exercise your civil rights that should be enough. Well, fortunately the Supreme Court a couple of years ago resolved this issue in a case that you will see in Slide 24, called Burlington Northern versus Santa Fe Railway Company. And this was a gender discrimination claim but because Title VII and the ADA have the same language for retaliation, courts have felt that this case establishes standard for all civil rights retaliation claims not just gender discrimination, so it has been applied in retaliation claims under the ADA. So it is a very important case. And in this case you had a woman who filed with the EEOC after she had been retaliated she had been accused of insubordination and suspended without pay. And she added retaliation claim after she was suspended for exercising her civil rights. And the courts said make clear that you do not have to termination but that suspended without pay or being demoted would be sufficient for proving an adverse action for retaliation claim. So now here there are a few cases since that Burlington Northern case that have applied that standard with respect to adverse employment action the first one being that Norden case that came out of the District of Columbia federal court. And this was somebody who had filed EEO complaint, and when I say EEO that is because they are federal employee, they file with the Equal Employment Office rather than the EEOC and after they filed this complaint for improper leave, the person wanted to return to work but the employer said that returning to work would require that a condition to be met and that would be that the person would sign an agreement to waive future complaints that they might have. And the court found that this proposal to waive your future complaints arose from him exercising his civil rights in the first place when he filed the EEO complaint. And so they found that requiring him to sign that was an adverse action and was sufficient enough to bring a retaliation claim. The Gilmore versus Potter case is another case involving a federal employee. And this was somebody who had, after he had filed the EEO complaint, when he was brought back to work, he was isolated in a small room, actually it was a woman, she was isolated in a small room and threatened with termination. The employer called her worthless and told her not to talk to co-workers, and they found that that was not an adverse action but they found that being put in an isolated room was really just a minor annoyance and some of the comments that were made against her were a lack of good manners but that it wasnt an adverse employment action. And then the Serino case, was sort of similar in that the employee was on medical leave and when she returned, she was transferred to a new unit and the person didnt like the new position and she thought it was a retaliation for her request for reasonable accommodation of leave. But the court said, no, they were just reassigning you to a position that was available, in fact, they were trying to accommodate you under Section 504, and therefore, they found that it was not an adverse action in that case. The next issue that can come up for retaliation cases is whether there is a non-retaliatory cause for the adverse action. So if the employer can show that the reason that they did some adverse action, whether it be termination, demotion, or otherwise, was because of something that was not related to the disability or the exercising of the civil rights, then that can be a basis for not being held liable for retaliation. So the Ozlek case is the first one that is cited there and that is a case out of 3rd Circuit from 2007. And this is a sort of a very complicated case, factually, but basically, the employee claimed that the reassignment that she had been given and she was denied some leave issues and denied some transfer issues and ultimately, was not scheduled to work. She found that that was, she was claiming that that was retaliation because she had sought leave under the Family Medical Leave Act. And the court said, no, there was another reason why they put you on this non-scheduled status. Because they had resolved some issues that were coming up in the workplace regarding your medical status and your inappropriate behavior and trying to figure that out and that was not a retaliatory reason but it was actually a legitimate business purpose there. So they rejected the retaliation claim. The Hughes case is a case, again, where the retaliation claim failed because there was a legitimate reason for the termination. And here, the legitimate reason was not because the person had exercised the civil rights but actually had been found to be calling in sick when they actually were in Las Vegas partying away. So the person lost a lot of credibility, I think, on the retaliation claim because there was a legitimate reason why they were terminated, and basically, it was for calling in sick under false pretenses. And then, the last case here is Mitchell versus GE Healthcare, and again, it was an employer had a valid reason for referring the person to the employee assistance program. It wasn''t in retaliation for exercising their civil rights but because they had been disruptive and intimidating in the workplace. This was a wild case involving radios in the workplace where people were turning them up and turning them down and the plaintiff was saying that this was harassing her and it was disrupting her disability, inducing stress headaches and migraines. And because she had exercised her ADA civil rights before she thought it was retaliation and the courts said that was not retaliation that they really had a legitimate purpose for referring her to the employee assistance program because of some of the disruptive and intimidating conduct that she was alleged to have done in the workplace. The next issue to talk about is was the employee engaged in a protected activity? So, were they exercising their civil rights because if they weren''t exercising their civil rights, they have no basis for retaliation claims? So, figuring out whether the activity that they are complaining about or that they allege they engaged in is protected activity is what these cases are about. So the Bloch case is the first case here and this is an employee who was fired after opposing the employer''s request for health information. Basically, what was happening was the employer was trying to get information as they were looking for an employee insurance policy and the employer was requiring all employees to file or to sign off on a two and a half year authorization of medical information. And the employee was concerned that this medical information would be used adversely and confidentiality would be breached. And he was later disciplined in the workplace, and terminated eventually, and he claimed it was in retaliation because he had objected about this request for health information and the courts said, no, it wasn''t retaliation. First of all, they found that the employee had engaged in a lot of improper conduct in the workplace so there was a non-retaliatory reason as we just talked about. But they also found that complaining about the health information disclosure was not a protected activity. They were obtaining needed medical information and it wasn''t unlawful and it wasn''t being used adversely and they had confidentiality protections in place. And so, he lost on that because he could not show he was engaged in a protected activity. In the Mosley versus Potter case, the person claimed that they were retaliated against because they filed for worker''s compensation. This was a federal worker''s compensation statute that he filed under and the court found that it was also not a protected activity. It may be protected under state law but it wasn''t protected with respect to retaliation for ADA purposes. And then, the Sanchez case is an employee who was terminated after requesting a reasonable accommodation and the court confirmed that requesting a reasonable accommodation and being treated adversely after requesting the accommodation is a protected activity. And that is, I think people probably were pretty clear on that but it is nice to have a case that is clear that engaging in asking for reasonable accommodation, and then retaliation based on that request is protected and can be a basis for a retaliation claim under the ADA. The next thing you have to do in most retaliation cases is show a causal connection between the protected activity that we talked about of the employee and the employer''s adverse action. So there has to be a connection between the two. If you can just, if you show that you had a protected activity you engaged in and it was an employer''s adverse action but you can''t show that the two are related or connected in any way, then, you are going to have a hard time proving your case. And so, in the background on the slide, it says, like, filing an EEOC claim and the employer''s adverse action of termination after that, it had to show connection in order to succeed on a retaliation claim. And most of these cases talk about a concept called temporal proximity. And so that means they are going to look at how much time lapsed between the two events. So did the protected activity that you engaged in, did that occur a day before the adverse action or was there a period of two years? And a lot of times, that time frame between the exercise of protected activity and the employer''s adverse action will be critical in whether a court is going to find that there is a causal connection. And there is some cases that examine this issue. The Satchel case is a good example where they found that retaliation was not present because there was two years between the protected activity and the adverse action. And so, they couldn''t show that causal connection that you need to show. The Erbel case against the Department of Agriculture was a claim for retaliation that was allowed to proceed because the supervisor''s behavior had changed so dramatically right after the plaintiff had filed the EEOC. So it is very similar to the Flowers case we talked about where the supervisor, her behavior changed dramatically after the employee disclosed HIV. That is what happened in the Erbel case, and so, they found that there was a causal connection there and allowed it to proceed. And then, the Travis case against the United States Postal Service, this was a situation where the employee was disciplined for attendance problems and altercations with co-workers and he had filed with the EEOC but the problem was that the discipline occurred before he filed with the EEOC rather than after. And so, that was a problem for him. You need to have the protected activity first, and then, the adverse action, and here in Travis, you had the exact opposite. Now, when we talk about causal connection, that is what is important to prove in a, what we call a direct retaliation claim. So in a direct retaliation claim, you have to show three things, first, like we said before, that you engaged in a protected activity, second, that you suffered an adverse action, and third, that you have a causal connection between those two. There are some courts that have recognized what we call an indirect retaliation claim and that is when you don''t have a real clear causal connection. And in those cases, again, you have to show that you are engaged in a protected activity. You then have to show that you were performing your job, that you were meeting job expectations. Then, you show that despite the job performance, you suffered an adverse action, and then lastly, that you were treated less favorably than similarly situated employees who did not engage in the protected activities that you engaged in. Okay? So that is a little different that what we talked about before. It is indirect you don''t have to show that causal connection. You are just comparing yourself with other employees who are similar to you who did not engage in protected activity and the fact that you are being treated differently and the only difference between the two of you or you and the other employees is that you engaged in the protected activity that may raise an inference that retaliation is incurred, and therefore, that is an indirect retaliation claim that you can bring. Not a lot of courts have recognized that but some courts have. So if there is not strong evidence of direct causal connection, this indirect, comparing yourself with other employees is probably the best way to go. Another issue that has come up is whether or not retaliation claims are limited to current employers. So the typical scenario is that the employer is going to retaliate against you after you engaged in some sort of activity while you were still an employee. So you asked for a reasonable accommodation, and then, you are fired. You file with the EEOC, and then you are demoted. It all happens while you are a current employee. But the question rises, can a retaliation claim be brought by a former employee? And at least one case, the Carr versus Morgan County School District case said, yes. And these probably aren''t typical facts but I think it could happen in other situations. And here, you had a person who is a teacher, filed with the EEOC, had had an adverse action, and then, they filed an ADA claim for retaliation. They ended up settling that case. Then the school administrator, excuse me, then the person left the workplace, and then, later, the principal or the school administrator was contacted by another employer about this employee. And during that reference check, the school administrator revealed that there had been previous problems with the employee and giving inference that this person was a problem employee. And the person was really a problem employee because he had exercised his civil rights under the ADA. And the employee somehow found out about what the employer had said during the reference check and the court found that he could proceed with his retaliation claim, even though he wasn''t a current employee. And the court found that adverse action for retaliation purposes would include harm to a former employee''s future employment prospects. So I think this is really an important lesson for employers. When you are giving employment references, you don''t ever want to talk about somebody being a problem employee or that they filed some sort of civil rights action. It is just not something that is going to be something that is going to help you and it is only going to hurt you. And so, that is the kind of thing that you would never want to disclose during a reference check and it is just something that is going to open you up for a lot of liability, especially now that we have a case on point on that issue. Then, the final thing I just wanted to cover is whether or not there are damages available in the ADA under retaliation cases. And you will see in the brief that the courts are split on this and you have got citations for cases where the courts have found there are damages available and cases that have found that there are not damages available. And, you know, the reason why this has come up is because monetary damages, historically, were not available under civil rights cases. But when the Civil Rights Act of 1991 was passed, they did provide for damages when the defendant was engaged in an unlawful and tensional discrimination. And some courts have narrowly viewed this provision to only include Title I when they talk about unlawful discrimination and don''t include Title V which talks about retaliation cause they don''t use that term unlawful intentional discrimination. It is more, you know, adverse treatment because of exercising of civil rights. And so, a lot of courts had said, okay, you can get damages under Title I cases but you can''t get them under Title V cases. And other courts have held the other way and said, nope, you can get them under both and that when the Civil Rights Act was passed, it was really to have a broad remedy of damages to prevent future adverse actions against people with disabilities. And so, it really depends on which court you are in as to whether or not you can get damages for retaliation cases. The other thing is that if you can''t get damages, you may likely be denied a jury trial as well because, in most situations, you are only allowed a jury trial when a case has damages as part of its relief. If you are only seeking injunctive relief, typically, you don''t get a jury for that kind of case. So, that concludes, I think, the provisions that we were going to talk about for disability harassment and for retaliation under the ADA. I am now going to turn it over to Alan to talk about discipline under the ADA.
Thank you, Barry. In talking about discipline under the ADA, one thing I want to stress is the point that Barry mentioned and in every ADA situation, an individualized assessment is required. It is a factually specific inquiry regarding that employee, their disability, the limitations that they experience resulting from the disability, and also, it is individualized as to the employer and the job and what the employee''s essential functions are in the job that he does. In discipline issues, often, these involve, one, an employee''s violation of workplace rules. In essence, employers are stating that an employee is not qualified to do the job and they are terminated or they are disciplined, not able to comply with the workplace conduct rules. And if the issue or the conduct is related to disability which is sometimes difficult to assess, the employer must be able to show that the workplace rule is job related and consistent with business necessity. The EEOC phrases it in their guidance that an employer never has to excuse a violation of the uniformly applied conduct rule that is job related and consistent with business necessity. Of course, if the conduct is totally unrelated to disability and that is clear, then the ADA is not involved. Going on to the next slide, the standard is that prior to instituting discipline that the disability is known to the employer and reasonable accommodations should be considered to enable a qualified employee to comply with reasonable workplace and conduct rules. And we are looking at Slide 33 now, if we could move ahead, please. And there is a case, before we get to the case, the EEOC phrases it in their guidance that an employer must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship except where the punishment for the violation is termination. So employers never have to forgive or excuse past conduct but if they know of a disability and the need of an accommodation in order to help facilitate compliance with workplace rules, then the employer may need to institute that reasonable accommodation prior to instituting conduct in the future. Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct, even it results from an individual disability. And possible accommodations that can be included include adjustments to starting times, specified breaks, and leave on an intermitted basis or for a period of time and this enable the employee to comply with the conduct rules. The case illustrating this is Bultemeyer versus Fort Wayne Community Schools. Bultemeyer involved a custodian with a significant mental illness who was returning after a one year medical leave from work related to his disability. Before going on leave, he was provided with accommodations of not having to work in a big high school, he worked in one of the smaller schools in the district, and also, not having to perform some specific duties such as cleaning classrooms or, I believe, locker rooms as well. When he was allowed to return to work after his leave, he was informed by Human Resources that he would be transferred to a different high school, in fact, the biggest high school in the community and that none of the other accommodations would be provided either. He would have to do the full duties or he would not be excused from cleaning specific areas. Mr. Bultemeyer went to the school of his foreman and they both agreed that he would not be able to do the job at this bigger school if his accommodations were not continued. He submitted a note, he was supposed to report, before I get to that, he was supposed to report for a fitness for duty examination but he feared he would report for the fitness for duty, would be found able to return to work, but then, without the accommodations, he would not be able to do a good job and would be terminated for not doing the job which he would attribute to a lack of accommodations. So he did not report to his fitness for duty, but instead, went to his psychiatrist who wrote a note that Mr. Bultemeyer should work in a less stressful environment. He submitted the note to the school district but he submitted it after they had already decided to terminate him and sent Mr. Bultemeyer a letter to that effect which he had not yet received. The school district did not respond to the note from the psychiatrist and terminated Mr. Bultemeyer. The court looked at this case and felt that the school district did not engage in good faith in the interactive process and Mr. Bultemeyer''s note did constitute an accommodation request with a note from his psychiatrist. And the court held that the employer''s implementation of discipline, in this case, terminating Mr. Bultemeyer, was inappropriate as it knew, as it has past knowledge of Mr. Bultemeyer''s disabilities and had knowledge of what accommodations he needed and their discontinuance of accommodations, the employer''s discontinuance of the accommodations and refusal to engage in the interactive process were problematic for the court and Mr. Bultemeyer was allowed to go to trial on those issues. Moving on to the next case involving knowledge of disability prior to instituting discipline, this case was interesting as well, Taylor versus Phoenixville School District. It involved, I believe it involved a secretary who had worked at a school for twenty years and was hospitalized for bi-polar disorder. She had been an exemplary employee during that time, had never been disciplined, but unfortunately, her bi-polar disorder arrived at the same time that a new principal arrived at the school. And upon her return to work, this principal wanted a lot of changes, which the court acknowledged is normal for a new principal coming to a school, but the court took issue with the way that the new principal instituted the changes. Mrs. Taylor sought accommodations which were denied. The family sought them on her behalf. And based on the advice of an administrative assistant, the supervisor started following Mrs. Taylor around, closely scrutinizing her work, going through her garbage, moving things in her desk, increased the number of her job duties from twenty-three to forty-two in what the court described as an abrupt manner. He did not provide her time to learn the new job duties. He did not provide her additional time for training which she requested. And even though Mrs. Taylor had not been disciplined in her twenty years with the school district, she began, she was forced then to have formal discipline on almost a monthly basis with the principal who would have a bullet pointed list of all her typographic errors, mis-filings, and any other mistakes that he deemed she made. And in fact, it seems that because of her disability, the employer put her under a microscope, and while harassment wasn''t discussed in this case, in some ways, the employer''s conduct can be viewed as harassing. And one fact is, too, I think this case makes it obvious it is never a good practice for an employer to put an employee with a disability under a microscope. So, for example, if an employee with a disability has a job modification of a different work time and they need to start a half hour late, say, at 9:30 instead of 9:00 o''clock, and then they work a half hour later at the end of the day, they should not be put under a microscope for their discipline for arriving five minutes late when employees who do not have the modification are not disciplined for arriving five minutes late. So it is important to make sure that discipline is uniformly provided. And the court held that the employer''s actions in Taylor versus Phoenixville School District in disciplining and terminating the plaintiff while denying her accommodations may have constituted discrimination under the ADA and the court held that accommodations such as more time for learning training, more gradual changes to the job duties, more informal discussions about job performance rather than formal discipline were all changes that could be made. Moving on to the next slide regarding workplace conduct rules, the standard says it is permissible for employers to have workplace conduct rules on a variety of issues, including drug and alcohol use, workplace safety, and workplace violence and attendance. And employers may hold all employees, disabled and those who are not disabled, to the same performance and conduct standards. And there is a Supreme Court case which upheld a workplace conduct rule in Raytheon versus Hernandez. In Raytheon, Mr. Hernandez had previously been terminated by Raytheon for violating the rules regarding drug use, specifically, cocaine use. He later sought reinstatement to the workplace and Raytheon said, we have a workplace rule that we do not rehire employees who are discharged for misconduct. And the court held that that standard, when applied uniformly, was an acceptable standard for the employer to follow, even though the employee argued that he was being discriminated against as individuals who have a history of past drug use are protected by the ADA. But the court held in this case that the conduct rule, uniformly applied, was compliant with the ADA. Moving on to the next slide, we have Sever versus Henderson. Sever involved a postal worker with post traumatic stress disorder who made threats of violence in the workplace and was terminated. Some of the things that Mr. Sever would do is he would point his fingers in the shape of a gun at his coworkers and make sounds such as pow, pow. And the court held that an employer is not prohibited from discharging an employee for violating workplace conduct rules, even if that misconduct is related to his disability. And, of course, the standard, as we discussed earlier, if the misconduct is related to disability, then the employer must show that the workplace rule is uniformly applied and is job related and consistent with business necessity. If the employer can show that, then, an employee can be disciplined or terminated for misconduct, even if it is related to disability. The other case here, it seems we have a pair of postal, post office cases on this page, Fullman versus Henderson says that the ADA was not violated when an employee was discharged for filing a false workers compensation claim. In this case, the court deemed the conduct unrelated to disability. It is possible, I think, that some of these cases for the argument to have been made that, perhaps, failing to file, perhaps filing a false charge can be related to a disability but it was not raised in this case and the court held that the filing of false claim was misconduct. It was not related to the individual''s disability, and therefore, the discharge was upheld by the court. The next case is Darcangelo versus Verizon, and in Darcangelo involved an employee who was violating workplace courtesy rules regarding treatment of their coworkers. The court deemed their conduct to be threatening, abusive, and harassing. And the court discussed the importance the case involved issues of direct threat, qualified issues, and of course, discipline, whether the individual could comply with the workplace courtesy rule. And the courts held, look at conduct and disability in that relationship and stated with fewer exceptions, conduct resulting from a disability is considered to be part of a disability rather than a separate basis for termination. And the court pointed out that one of those exceptions is the ADA''s explicit authorization for discharge on the basis of alcoholism and illegal drug use. And the court also suggested an additional exception might be in the case of egregious and criminal conduct. And the court held that even though the employee''s case, the employee''s abusive behavior in this case may have been related to her bi-polar disorder and her misconduct of hanging up on coworkers, posting her supervisor''s picture on a target, walking out of meetings, the court held even though that this conduct may have been related to her bi-polar disorder, the employer was still justified in terminating her for failing to comply with the workplace rules. The employee sought a reasonable accommodation of a sympathetic supervisor but the court held that that wouldn''t be effective. Even a sympathetic supervisor would not be able to change how the employee treated her coworkers. The other case, Sena versus Weyerhaeuser, if I am pronouncing that correct, held that even if unsatisfactory performance or behavior is related to drug use or alcoholism, the employer may hold the employee to its regular workplace standards of conduct. Again, as long as those standards of conduct are uniformly applied and job related and consistent with business necessity. The next slide, we have a statement from the EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities which states that if misconduct resulted from a disability, the employee must be prepared to demonstrate the conduct rule is job related and consistent with business necessity. And this case, Dark versus Curry involved a truck driver with epilepsy who had his first seizure, epilepsy related seizure, in sixteen years on the job. He had what is called a pre-seizure aura which was a sense that he might be prone to a seizure but he went to work anyway, in fact, did have a seizure. An accident was avoided when a coworker grabbed the wheel but the court, I am sorry, but the employer discharged the truck driver for going to work after having this seizure for not reporting, or after having the aura, for not reporting the aura and for going to work when he was prone to have a seizure or likely to have a seizure. And the seizure in this case was actually related to a medication change which explains why he had had only one episode in sixteen years. Again, the court looked at conduct and how it relates to disability and said, in this case, the conduct of not reporting an aura was obviously related to his disability, and therefore, the employer had to show that the conduct rule was job related and consistent with business necessity. The court showed a good understanding of epilepsy and held that the employer should not have terminated the truck driver without looking at possible reasonable accommodations and the court itemized reassignment or leave, temporary leave, to make sure that the medication was adjusted properly as possible reasonable accommodations the employer should have considered prior to terminating the employee. The next page, we have the case of Nielson versus Moroni Feed Company. And in that case, the court stated that disability caused misconduct is subject to performance criteria that are job related and consistent with business necessity so long as the disabled employee is given the opportunity to meet the performance criteria by providing, by being provided a reasonable accommodation. In this case, Mr. Nielson went around to various board members'' houses between 8 and 19 times, uninvited, and was actually charged with breaking and entering on, I think, at least two of those occasions. And he was regarded, that the court held that he was regarded as abusing prescription medication which is what the company thought was causing his conduct. But the court said that his misconduct, even if it was related to disability, the criteria of not going around to board members'' houses at all hours of the day and night is a job related and consistent with business necessity. And the court also looked at reasonable accommodations and did not find any that would enable the employee to comply with the workplace rules. The next slide talks about an issue we have discussed, when an employee''s misconduct is related to his disability, however, an employee''s misconduct is not related to the disability, then discipline may be appropriate. So in Davila versus Qwest case, an employee with a case of recently diagnosed bi-polar disorder failed to report an accident. Although the employee was previously diagnosed with depression, the court held, however, that the misconduct in failing to report an accident was unrelated to the employee''s disability so the employer did not violate the ADA in disciplining the employee. The next case we have is Russell versus T. G. Missouri. In that case, an employee with bi-polar disorder, which the employer knew about, left work without permission. However, the employee did not indicate that they were leaving work for any medical reason or any reason related to her disability. Instead, the employee said, I have to leave and I have to leave right now. The employer instituted workplace discipline and terminated her and the court held the discipline was warranted as the employee failed to request a reasonable accommodation as she did not request any medical basis for her statement that she needed to leave right away. I think if the employee had said, I need to leave and I need to leave right now because I am stressed or anxious, then, it might have been a different result. So even though, in this case, the employer knew of the employee''s disability prior to instituting discipline, they had no reason to know that the employee''s misconduct in leaving work without permission was related to her disability as the employee did not mention a medical basis for her need to leave. On the next slide, we have a tip for employers, that employers must enforce conduct rules and impose discipline in a consistent manner. If an employer imposes a greater degree of discipline against an employee with a disability, then the employer may be subject to a disparate treatment claim which would allege that they are treating a person with a disability, and employee with a disability, different than the way the employer treats employees without disabilities. A case on this is Moore versus the County of Cook where the plaintiff missed work for reasons related to her disability and was later terminated for failing to meet the work production standards and, I believe, attendance standards as well. A non-disabled employee who failed to meet the same work production standards was not terminated but was only given a three day suspension and the court held that in this case, the sufficient evidence that there was harsher discipline for the plaintiff because she had a disability, we had two employees who had committed the same misconduct, but in this case, it was obvious to the court that the employee with the disability was treated more harshly for the same misconduct that an employee without a disability. The next slide involves rescinding discipline as a policy modification. And as we mentioned, employers are not required to excuse past misconduct as reasonable accommodation is always proactive and if the reason behind it is that an employer generally must provide a reasonable accommodation only after it is requested. And the employer does not have to rescind any warnings imposed prior to an accommodation request. Of course, we discussed the exception to that case to the possible exception in, for example, the Bultemeyer case where the employer knows of a disability and the need for an accommodation prior to instituting discipline. And the employer should think about providing a reasonable accommodation or may need to provide a reasonable accommodation if it would be affective before instituting discipline. So if an employer has that knowledge of the discipline and has a reasonable basis to think an accommodation is needed, the employer should investigate the accommodation and the possibility of accommodation before instituting discipline. And, of course, even though past misconduct does not have to be excused, in the future, employers must make reasonable accommodations to enable an employee with a disability to meet the conduct standard in the future. In a few cases that illustrate this, some of this we have discussed before, in the Davila case, the employer was not required to retroactively excuse the misconduct once the employer learned of the employee''s mental illness. Likewise, in Hill versus Kansas City Area Transportation Authority, the court held that an employer was not required to give a second chance to a bus driver who twice fell asleep in her bus, even though she alleged that her drowsiness was caused by her hypertension medication. And the third case is the Bultemeyer case which we have discussed, that the employer only had, in that case, the court held the employer did have a duty to rescind the termination. As you may recall, the employer sent the termination letter prior to receiving the employee''s accommodation request but the court noted that the employer knew of the employee''s disability and knew of her need for an accommodation before terminating the employee, and therefore, the court held the employer had a duty to rescind the termination as it knew of the disability and the need for reasonable accommodations. The next slide, we have resources one of course the host for our session today, the DBTAC - Great Lakes ADA Center. We also have Equip for Equality where both Barry and I work. And if you live in Illinois, we have the Illinois ADA Project which is funded by the DBTAC - Great Lakes ADA Center and Equip for Equality serves as the fiscal agent for the Illinois ADA Project. The second page of resources, we have the Job Accommodation Network, an excellent resource for both employers and employees who are investigating the possibility of accommodations. They can be very helpful. They have an excellent website and provide service over the phone. The Equal Employment Opportunity Commission who, of course, enforces ADA and other employment provisions. And they also institute some guidance and ADA regulations. And I think the EEOC guidance is very helpful to both employers and employees in navigating the ADA. And the final resource listed there is the ADA Disability and Business Technical Assistance Center. And that reaches the end of the presentation portion. We have information coming up about the next webinar and that will be on June 3rd, 2008 and the subject will be Qualified as Related to Reasonable Accommodations such as Leave, Reassignment, and Job Modifications. So some of the cases and issues we talked about today will be related to the next presentation but we will see how does the need for leave make an employee unqualified, do the need for certain accommodations make an employee unqualified or must the employer provide those accommodations to the employee? So we will look at, focus on the accommodations of leave reassignment and job modifications. So, I will turn it back over to Claudia. Thank you.
Thank you. I want to send my appreciation to Barry and Alan for their presentation today and to thank everyone for participating in the program. I hope the information that you guys received in this session was helpful. And also, like Alan''s showing on the slide here, I want to remind everyone to complete the evaluation form and send us your feedback so we can improve the program or address any other topics that you would like to learn more about. If you have any questions that were not addressed in the session, you can call your Regional Disability and Business Technical Assistant Center at 800-949-4232 or you can contact us through the website at www.ada-audio.org. I also want to remind everyone that we will be sending a copy of the presentation and the legal brief out via e-mail and that should be sent out within the week of the session. So, once again, I want to thank the presenters, Alan and Barry, and everyone for participating and hope you have a good day.