Welcome everyone to the 2008 legal issues Webinar series. Our session today is going to be on the topic of direct threat, and safety in the workplace. Our speakers are Barry Taylor and Alan Goldstein from Equipped for Equality, the protection and advocacy agency in the state of Illinois. Barry and Alan have been our speakers throughout this series this past year, and we thank them for their time and effort in this program and we hope that everyone enjoys the session today. Im going to go ahead and turn it over to them and let them take it at this time. So go ahead Alan and Barry.
Thanks, Robin. And if anybody has any difficulty hearing me, feel free to type that in, and Ill watch for those cues as were go along. As Robin mentioned, today''s topic is direct threat and safety in the workplace. And Alan and I are going to divide up the presentation. Were first going to start with an overview of what direct threat topics are, and here you will see them on your screen. Ill talk first about the foundations of direct threat, a case that was decided before the ADA was passed, called Arline then Ill talk a little about the ADA, and the regulations, what they say about direct threat. Well talk a little bit about the scope of direct threat; who it affects and what context it effects. Then at that point I will turn it over to Alan, to delve into some of the cases and issues that are relevant to direct threat, including individualized assessment of the person''s ability to do the job, medical judgment issues, and then after hes done with those two issues, well take a break, see if there are questions and then Ill resume with the last two topics, which are: when can reasonable accommodations reduce or eliminate a direct threat, what the case law has said on that, and also talk about a couple additional issues in direct threat case law that have been emerging. And then well open it up for further questions at that point. As I mentioned, the foundation of the ADA''s direct threat really is based on a Supreme Court case that was decided before the ADA was even passed. It was a case that was brought under the Rehabilitation Act that was passed in the 1970s. And Im sure as most of you know, that law was passed to protect people against discrimination in entities that receive federal funding. And so this was brought on behalf of a school teacher who worked for a school that received federal funding, and thats why it was applicable under section 504 of the Rehab. Act. As many of you know, the definition of disability is identical between the ADA and the Rehab. Act, and so a lot of the case law thats developed under the Rehab. Act has been very instructional for courts in deciding the ADA. This was a case brought by a teacher, as I said before, and she had tuberculosis, and interestingly she had originally had tuberculosis back in 1957, thats when it first showed up for her, but then it went into remission for about 20 years. It then became more active in the late 70s, and that''s when the school became concerned about possible danger in the workplace. Interestingly, the first issue is not really about direct threat, but whether or not tuberculosis was even a disability. At that point there really hadn''t been any case law about contagious diseases and whether those were really what they wanted to cover within disability for the Rehab. Act. And the court confirmed that yes, contagious diseases are disabilities and this sounds like something that should have been a real easy thing to solve, but it was groundbreaking in that this had never really been decided by a major court before, so that was important. The argument the other side had was, they were saying, that really what the Rehab. Act was intended to do was to protect against discrimination based on the effects on themselves, not on the effects of their disability and what they had on others, and the court rejected that. The other thing that was interesting in this case is that not only did she plead that she had an actual disability, but she also pleaded that because she had this history of disability; she was protected under the Rehab. Act as discrimination based on her record of disability. This is really the major Supreme Court case on record of disability. So when those issues come up it''s instructed to look at this case. And for those of you who are interested in the actual citation of the case, thats not listed on the slide, but its at 480 US 273 1987, so this case was decided three years before the ADA was passed. Ultimately the Supreme...Oh, um, I had the lock key on, but it wasnt working so Ill just hold the control key. Im not sure what the problem was, but Ill just continue to hold the key, Robin, thanks for letting me know you lost me. Um, Im not sure exactly when I went out, but basically I was getting to the point where we were describing the case. The case was about the woman, whether or not she was a threat in the workplace or not. And the Supreme Court ultimately found that the lower court did not do a proper analysis on direct threat. They said really, you should not be making decisions based on diagnosis alone. You have to do an individualized assessment. And as you see on the slide there, they said, you know, the fact that some people who have a contagious disease can pose health threats doesnt mean that you should assume that everybody does. And thats why you have to do this individualized assessment and how that particular persons disease or disability impacts them and the fact that they have a particular diagnosis isn''t enough information. They talked about really what discrimination law is about, is protecting the rights of the person to be free from discrimination and balancing that with avoiding exposing anybody to significant health and safety risks. The other thing that they said in this decision that was really important and youll see over and over in the ADA direct threat cases, is that you have to rely upon reasonable medical judgment of public health officials. They also said that you have to, even if somebody looks like they may pose a direct threat, before you make any adverse decision, you have to explore whether any reasonable accommodations are available before you make that adverse decision. Any reasonable accommodations that may reduce the threat that exists, and thats really key and the Supreme Court really laid the groundwork for the ADAs provisions on that. The other thing that it did that was significant, and youre going to see this over and over in the cases that we talk about, is they identified four important factors that courts need to look at when reviewing direct threat. The first one is the nature of the risk. By nature of the risk, they mean how the disease was transmitted, or would be transmitted. Then you look at the duration of the risk, and by that they just mean how long the person has been infectious, and how long they will continue to be infectious. The severity of the risk is the next factor and that really is when youre looking at the potential harm to other people. And then the last one would be the probability of the risk and the likelihood of the harm. So even if its severe risk, if it''s very unlikely to happen that would undercut the ability of being able to find it a direct threat. In this particular case, the court wasn''t able to determine whether this person met these four factors or not, because there werent enough facts determined by the trial court. So, they sent the case back, but what they did in doing so, before they sent it back, is they really just developed the framework that all ADA direct threat cases are now founded upon. And really this analysis in this case has been incorporated not only into the ADA and the regulations but all subsequent court decisions. Moving on to the next slide, thanks Alan. Youll see here, we have the direct definition of direct threat in the ADA and the definition of the direct threat under the EEOCs regulations, and it''s interesting that theyre not identical, and thats caused some confusion. The courts have cleared up that confusion a little, and well talk about that in a second, but I wanted to go over this real quickly with people because there are some differences. Youll see the definition of direct threat, it says, a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. But then you look at the EEOC''s definition, and they add some additional words. So instead of just saying a significant risk they say a significant risk of substantial harm. So what that means is, you dont have to - you not only have to show that there''s a risk, but a very high likelihood, I mean, not only that theres a likelihood of a problem, but that the problem that youre talking about is a substantial problem. So even if theres a high risk that something would happen, if it''s not that big a deal, if its not going to cause that much harm, it wouldnt be a direct threat. So that really narrows the definition of what''s considered a direct threat. Then they say, to the health or safety of the individual or others, and that actually expands the definition of direct threat beyond a threat to other people, but the threat to the person themselves, that their disability is somehow threatening themselves in the workplace. Then they say, That cannot be eliminated or reduced by reasonable accommodation. So the text of the ADA seemed to imply that you had to reduce, excuse me, eliminate the complete direct threat, but the EEOC tempers that a little bit and says you don''t necessarily have to eliminate it, but you have to at least reduce it to a level where its not a significant risk of substantial harm. So when these two things came out, there was a lot of confusion, I think, both for employers as well as people with disabilities, that really, which definition of disability or direct threat were the courts going to follow? Well see what the courts have done with that as we move forward. Youll also see that in the ADA regulations they adopted the four Arline factors we talked about, and Alan will talk about these more, so Im not going to go through those, but those are basically the same factors we talked about before. They also adopted some of the other reasoning in Arline about looking at using reasonable medical judgment in direct threat cases, as well as relying on current medical knowledge and objective evidence.
They also gave some guidance to employers, which I think is something that might be helpful as youre moving forward with these issues in your own workplace. They talk about how it''s important to identify the specific risk thats involved, not just make some generalizations about what possible risks there are, but really identify the specific risk. For people with mental illness they talk about identifying specific behavior thats involved, or with people with disabilities that are physical in nature, identifying the aspect of that disability that would pose a direct threat. It just continues to reaffirm that you need to be very specific in these kinds of cases when making any decisions based on direct threat.
They also give a little bit of other information about what employers should do. Not only based on individual factual data, but also they put specifically here, not to base it on fears, generalizations, or stereotypes, and also to consider the reasonable accommodations that were discussed in Arline. They also gave employers some ideas about how they can figure out whats the relevant evidence. These aren''t things employers have to do, but things the EEOC recommends that you do. Like getting input from the person with a disability, about what''s going on for them with their disability, learning about the disability, learning about what possible accommodations might be helpful for their particular disability, looking at the person''s experience in previous jobs or previous similar positions. Also, looking to medical professionals who understand the disability and also, people who have direct knowledge of the specific person and their disability. All that evidence can be helpful in the employer making a very objective and reasoned decision, rather than sort of a knee-jerk decision. One other thing I just wanted to mention is that if you look at all the ADA cases that are out there involving direct threat, it''s interesting that four disabilities seem to come up over and over again. Those four disabilities are HIV, epilepsy, mental illness and diabetes. And I dont think its a coincidence that those are the ones that are coming up. I mean, in my view, one of the reasons those four continue to come up is that those four tend to have a lot of stigma attached to them. There often is fear with respect to those particular disabilities and ignorance about those disabilities. So, especially in the early years of HIV there was a lot of fear about how HIV was transmitted, and a lot of ignorance about that. Certainly there continues to be a lot of stigma for people with HIV. Also I think a lot of fear and stigma regarding people with mental illness, epilepsy and even diabetes sometimes, and thats why we continue to see these coming up. Really thats why the ADA was passed, was to get past some of those fears and broad generalizations and stereotypes about particular disabilities, and why its so important to have individualized assessment and to rely upon objective evidence. What''s been troubling, at least from my perspective, is that even though the ADA sets up a clear standard, that you have to show a significant risk of substantial harm in these kinds of cases, in many cases the courts don''t necessarily follow that standard. In my previous position I did a lot of representation of people with HIV, and whenever we did any cases involving a person with HIV in the medical field, these cases were very hard to win. We had a case thats referenced here, the Estate of Mauro v. Borgess, a gentleman who worked at a hospital, and his job was, he was a medical assistant in the operating room, and his job was to hand over the different instruments to the doctors. They found out that he had HIV and they were concerned that somehow he might get pricked by one of the instruments, and somehow his blood would get into the patient and infect patients. And even though there were certainly precautions about what to do if you happened to get pricked by an instrument, and there was a lot of evidence that once HIV, if exposed to the air that it dies quickly, these were cases, and in this particular case, the court felt that the substantial harm of transmitting HIV, especially then before a lot of the drugs had come out, overwhelmed and really, sort of, subsumed the significant risk. So even though the risk was very low in these cases, the harm was viewed to be so big that that was enough for a direct threat, which again, it''s contrary to how the EEOC has laid out the standard. The next thing we want to talk about is the scope of direct threat. And really what we are looking at here is: who is encompassed within the direct threat and where is it involved? So when we talk about whom, the question is: does direct threat include threat to others, as is laid out in the statute, or does it also include threat to self? The fact that your disability would have an adverse impact on yourself in the workplace and then when were talking about where, were talking about does the direct threat have to occur only in the work place or can off-duty conduct also be considered when youre evaluating direct threat? So moving to the who piece of it all: as I mentioned before, theres a conflict between the way the direct threat is defined in the text of ADA, that its limited to threat to other people in the workplace, and the EEOC regulations which broadened direct threat to include threat to self as well as to others. And for years we had contrary court decisions going back and forth and then in 2002, you can go to the next slide, we had the Supreme Court resolve this issue. This was a case, Chevron versus Echazabal, and you see this citation there for this particular case. This was a gentleman, who had hepatitis C, and he worked in an area that had exposure to chemicals, and there was concern by the employer that he being exposed to these chemicals would be adverse to his own health. So this was not a situation where they were concerned about him transmitting hepatitis C to others, it was about his hepatitis C compromising his health when he was exposed to these chemicals. The employer had a doctor who said that it was a threat, and the employee put forth evidence of his doctor saying that it was not a threat, and he was ultimately fired, and he sued under the ADA. And the employer said he was a threat to himself, and relying upon EEOC regulations, said that should be enough. And the Supreme Court agreed with the employer and they said an employer may refuse to hire an applicant if performing the job would endanger their own health. And so, while people may agree or disagree, that''s what the Supreme Court said, and unless they overturn themselves later, which I think is highly unlikely, this expands direct threat defense for employers to not only cover threat to other people, but threats to themselves. This was a concern of the disability community, not just this specific case, but one of the concerns in disability advocacy is this whole view of paternalism, and people making decisions for people with disabilities, and making decisions about what decisions they make about their own disability, and what decisions they make about risks to their own health. And a lot of people were concerned that by giving this, expanding this definition, it really was going to undercut the ability for people with disabilities to make decisions about themselves in the workplace and that employers shouldnt have the ability to make that judgment for them. But again, because the Supreme Court has made that decision, we really dont have, I mean, that''s the law of the land, and thats where we are now. Moving on to the next topic, which is where? There''s been a question; too, does direct threat apply to actions that are outside of the employment setting? Do you as an employer have to only rely upon any kind of activity or problems that have happened in the employment setting, or can you look outside to other situations that have happened and use those in making your direct threat determination? Courts, and this has not come up a lot, but in those cases where it has come up, courts have found that if an employee has engaged in conduct that rises to the level of direct threat outside of the context of the employment situation, they can rely upon that in deeming someone a direct threat. Interestingly, the cases that are out there are very similar in that they usually involve people who have a disability of alcoholism and while theyre not having problems on the job related to their alcoholism, theyre having difficulties outside, getting involved in barroom brawls or some sort or other types of scuffles with people related to their alcohol. In most of these cases theyre involving people who have public service type of jobs, like police men, firemen, that sort of thing. And courts have said you can look at that off-duty conduct to make a decision about direct threat. So that gets us to our next topic, which is assessing the potential for harm. And Im going to turn it over to Alan to talk about those issues.
Ok, thank you, Barry and Robin. Im going to be trying with the lock-talk key, so if it fades out, if someone could let me know thatd be great, but otherwise I have to be clicking and turning pages. We see there a picture of something that probably would constitute a significant risk of substantial harm, and I think that the harm would be imminent and severe. Going to the next slide, again we have the four factors laid out in Arline that Barry talked about, the duration or the risk, the nature and severity of the harm, the likelihood the harm will occur and the imminence of the harm. And again, all direct threat decisions must be based on an individualized assessment and on a reasonable medical judgment that relies on the most current medical knowledge or the best available object of evidence. I think some of the key words in here, are obviously the best available objective evidence comes up, I think, in the case, maybe not explicitly, but you can see in the court ruling, where the evidence seems stronger on one side, the court usually goes to that side. And again, reasonable accommodations must always be examined to see if the direct threat can be reduced or eliminated before any adverse employment action is taken by the employer. First case we will talk about does a nice job going through the four factors weve just discussed. Brandon versus Snow, and this was someone who wanted to be an IRS criminal investigator, and we have there former treasury secretary John Snow. This employee had depression, and it says frequently missed work, but I think the real issue was that he was now applying for a new position within the IRS to be criminal investigator. I want to talk a little bit from the case - I think Im looking at the wrong slide. It says depression, and thats a mistake, it should be diabetes. I apologize for that error. But it should be diabetes, and I want to read a little. The court talks about his diabetes. He has Type-1 insulin dependent diabetes, which is a non-curable, metabolic condition characterized by elevated blood sugar, hypoglycemia. People with this condition use insulin to lower their blood sugar levels, although excessive use of insulin can cause problems as well. A person with mild to moderate hypoglycemia...thanks, Im sorry, I guess you lost me. But this person has Type 1 diabetes, which means hes insulin dependent and a person with mild to moderate hypoglycemia may experience various symptoms, including tremors, sweating and irritability, and Mr. Brandon did in fact have them from time to time, but he did not have any major hypoglycemic episodes. And a severe hypoglycemic episode can lead to unconsciousness and convulsions, and may be life threatening. The plaintiff, in this case Mr. Brandon, did use insulin, and he always keeps with him additional insulin, he monitors his blood sugar 4-5 times a day, and is able to correct any deviations is his blood sugar that needs correcting. He was in fact a 12 year employee with the IRS, at the time that he applied for the criminal investigator position. Hi, can people hear me now? Thats not coming up over here. What about now? Are people hearing me? Ok, sorry about that. I switched from the lap top key to holding down the control key and I guess there were still problems. So Im going to keep my finger down and please let me know. So going back to Mr. Brandon, Im not sure what was cut out, but he had worked for 12 years at the IRS. He did not have any major hypoglycemic episodes. He had some mild to moderate episodes which included sweating and tremors, but he was able to take insulin when needed, or have a snack and adjust his blood sugar. So he pretty much had it under control. And in this case, the court looked at the four factors identified in Arline and in the EEOC regulations and first they looked at the duration of the risk, and the IRS maintained that he had experienced significant long and short-term changes in his blood glucose levels that could affect his performance. And the plaintiff and his doctor said, well, yes, diabetes cannot be cured, but Mr. Brandon is able to effectively control his condition, so that there is no real duration of risk, and the facts bore out the fact he was able to control his condition. So, the court said, regarding duration of risk, it is not significant. The next factor the court looked at is the nature and severity of the risk. And the IRS maintained that drastic changes in his blood sugar could significantly degrade his abilities to function as special agent, potentially endangering him, Mr. Brandon, his colleagues and the public. And Mr. Brandon conceded that the risk of severe hypoglycemia can include incapacitation, confusion, coma and death, but he has never lost consciousness and never experienced any physical or mental incapacitation as a result of his mild hypoglycemia. And those other extreme reactions are for a more severe form of hypoglycemia. And the court concluded based on this conflicting evidence that a reasonable prior fact could conclude that any hypoglycemia experienced by Mr. Brandon will not impair him in the performance of his duties. Again, I think it was very important to the court, is just the facts of Mr. Brandon''s diabetes, he did have it under control, he did not have any of these severe episodes either at work or not at work, and I think that helped establish that he was not a severe risk in terms of this condition as well. Next the court looked at the likelihood of potential harm, and the IRS endocrinologist theorized that the employees program of intensive treatment was associated with an increased risk of severe hypoglycemia and that some of the job responsibilities may increase Mr. Brandons risk of experiencing severe hypoglycemia. The employees doctor gave a statistic which I assume was supportive of the risk of Mr. Brandon suffering a severe hypoglycemic reaction was only %.2 per year or .0002, a very small likelihood. And, while there was theoretically maybe some issues, as the IRS pointed out, for Mr. Brandon the risks seemed much smaller, and as the IRS did not have evidence to counter this statistical evidence presented by the employee, the court concluded that a reasonable jury could find that the likelihood of harm was quite low. And, the court keeps talking about a reasonable jury, just so everyone knows, a lot of these cases are decided on summary judgment, which in the anatomy of a lawsuit is after the size of uh, exchanged a lot of information, known as discovery, and then theres a motion, and essentially a side moving for summary judgment, usually the employer, is claiming theres no dispute of facts, a reasonable jury would find every fact in our favor, even giving the benefit of the doubt to the employee on any factual disputes. And the court here did not find for summary judgment, finding that in every factual situation, a reasonable jury could find in favor of the employee, and possibly the employer, but the court doesn''t supersede a jury, a court just sees if a reasonable fact finder, a reasonable jury, could find for the party who is actually resisting the summary judgment motion. So, I hope that procedural, technical aspect is somewhat clear. But when you hear the courts talking about a reasonable jury, theyre looking to see if a reasonable jury can interpret the facts using all reasonable inferences to decide for the employee. And if the facts do support such a conclusion, then the court will deny summary judgment, and then the jury gets to decide [indiscernible]. Looking at the fourth factor in this case, is the imminence of potential harm, Mr. Brandon mentions that he has never suffered any period of incapacitation or other hypoglycemic episode at work or elsewhere, and there is no medical evidence that he will do so in the future. Remember, it needs to be the best available objective evidence. And the IRS says, that''s not logical, and the court said, a reasonable trier of fact can conclude that Mr. Brandon can prevent severe hypoglycemia and in fact, I think has been preventing it, and eliminate any imminence with respect to the risk of harm. So the court said, there is a genuine issue of material fact to whether Mr. Brandon can perform the essential functions of his position without being a direct threat to health or safety, and since there was an issue as to material fact the employer, the IRS, loses on summary judgment and the case can proceed to a jury. Sorry, this next case is Darnell vs. Thermafiber, which was also from the 7th Circuit, and involved another individual with Type 1 diabetes, but in this time we had a very different result. Mr. Darnells diabetes was not under control, and a pre-employment physical was given to all incoming employees as required, found that his diabetes was not in control. In this case, the employer, or excuse me, the employees doctor even admitted that the diabetes was not under control, and the employee argued, well the employer only did one blood sugar glucose analysis, they didnt really do the best available objective testing necessary to come to that conclusion, but the court disagreed. And I think especially as the employee''s own doctor found that his diabetes was uncontrolled. The court held that where a person''s diabetes is uncontrolled in this situation could pose a direct threat, and they talked a lot about Thermafibers work environment, it could get up to 110-degrees in the workplace and so it was a very challenging work environment. And they held for Mr. Darnell, because his diabetes was not under control that he could pose a direct threat, especially with the dangerous machinery around and everything. And I think in this case there wasn''t as much of a factual dispute. And employers sometimes ask me, can we monitor employees? Can we make sure they take medication, and do what they need to help treat their condition? And generally employers should not be in the business of monitoring an employee''s treatment, but if an employee does not follow a treatment regiment, and their condition becomes to such a point where they do pose a direct threat, then they are no longer qualified, or they pose a direct threat, and adverse employment actions can be taken on the basis that they [indiscernible]...What is their condition? Are they able to do their job, function safely with the condition as it exists now? And theres another case, I have a C down there, for Rodriguez versus ConAgra, and this was, Rodriguez, briefly, was an individual with Type II diabetes, which is generally not quite as serious, but there the employer just knew of the diagnosis, and said, oh we think thats dangerous, we think its not controlled, which wasnt entirely accurate, therefore we wont hire Mr. Rodriguez. And the court again pointed out that the employer must conduct an independent individualized assessment, and not base decisions on generalizations and false beliefs. And I think even though those three cases all involved diabetes and went in different directions, I think that you can see that it really depends on what is the condition of the individual involved, how does it effect them, what are their particular job duties, what is their state or their condition, can they control their condition or not, is it unsafe or is it not, whats the evidence in terms of how they have been working with the condition. If theres there years of evidence that they have been able to work safely, I often find that to be somewhat persuasive. The next case were going to talk about is Hatzakos versus Acme American Refrigeration. This was an employee with depression, who frequently missed work, and the manager asked, theres a little dispute as to how the disclosure came about, but it sounds like at one point they might have just said, well do you have some type of mental illness, are you depressed? And the employee admitted that they did have depression, and immediately the manager put the person on leave, pending a medical review, to see if they were safe to work in the workplace. The doctor conducting the review indicating the employee was stable, and was not dangerous, but the employer said, well we want more than that, we actually want a guarantee -and the word guarantee is actually in the decision- that you can assure us that there is absolutely no threat. We want that kind of guarantee. And of course the doctor could not do that. I think that one thing that we need to keep in mind, is, well, you know, maybe it sounds wrong, but we are all human beings, and there''s no guarantee that any condition is going to stay as it is, or change. Someone can be healthy one minute, and suffer a heart attack, or have a stroke. Even healthy individuals can undergo situations that may be dangerous for them or others, but that''s the nature of health and the nature of life. To expect guarantees that no, I can guarantee this person won''t have a seizure, wont have a stroke, that''s just something thats not possible. So the doctor said, I think he''s stable, I think he can work safely, but I cannot guarantee that there''s absolutely no threat. And because of that the employer did not put him back to work. At that point he was left on medical leave for a long time, I believe 18 months, and then the manager discharged the employee for poor attendance and also for posing a safety risk, although there were really no safety-related complaints from any coworkers. The court found in this case that the defendants did not present any evidence that there was a significant risk of substantial harm. The defendants did not identify the nature of the risk posed by the plaintiff''s psychological condition, much less the likelihood of the imminence of any potential harm. The court reemphasized as we all know, that the ADA requires analysis on a case by case individualized basis. The probability of significant harm must be substantial, more than just a remote or slightly increased risk. In the picture we have, Acme makes refrigerators, but I think they also make rockets, as we can see, in the little cartoon. So those are the cases going through the individualized assessment, and the four factors outlined in Arline and the ADA regulations. A question that comes up a lot is: when can an employer seek medical information and how can an employer use medical information? And were going to talk a little about that now. As I mentioned before, the nature of medical evidence is important. Employers are generally on strong ground if there''s medical substantiation for their conclusion that the employee poses a direct threat to health and safety. However, when employers rely on the opinion of company doctors, or even worse on stereotypes, and just ignore contrary medical opinions, or in some cases well see, get the company doctor to try to persuade the other medical providers to change their opinions, courts are less likely to find to an employer. And courts are generally more willing to defer to a treating physician because they know that employees condition better than most other doctors and because of the individualized assessment the opinion of a treating physician is very important in these cases. The first case were going to look at is Ward versus Merck, which involved a pharmaceutical employee with mental illness, including anxiety and panic disorders. And this person was stressed and beginning to experience some problems at work. He requested and received a reduced work schedule, but the problems persisted. According to the record, the employee began to engage in strange behavior, including an episode in the Mercks cafeteria which was deemed as resulting from a brief psychotic disorder. Its actually funny in the appellant court just went out of their way not to mention what happened in the cafeteria, which of course made me a little curious as to what happened in the cafeteria. So I went back to the district court opinion just to see if they had more specific facts. The most we can get is, according to the police report, the employee backed himself up against the food tables and was screaming at people, telling them not to eat any of their vegetables, maybe kind of the opposite of what we were told by our parents years ago that we should eat our vegetables. Merck security called the police, and when they arrived the officers noted that the plaintiff seemed dazed, couldn''t tell them his last name, and incoherent. The individual was taken to the hospital, evaluated, at that time they also diagnosed schizophrenia and he was released. Other coworkers claim that the employee walked around like a zombie, their word not mine, and also had a temper tantrum, and I think more than one. Based on the employee''s conduct, and I think its important to emphasize, I think Merck''s decision was based on conduct, not just the diagnosis the employer requested a fitness for work evaluation with the company physician. The employee refused, saying you have no right to send me for the examination, was suspended without pay, sent a letter saying you have 48 hours to show for the examination, the employee did not, and was terminated, and then filed suit. Now the law that applies regarding medical examinations says that employers cannot require medical examinations or make medical inquiries of an employee unless the examination or inquiry is job related and consistent with business necessity. And sometimes youll hear talk of the business necessity defense and thats what this kind of falls under. In general, direct threat is seen as something, as an affirmative defense that employers have to prove. Employees do not have to prove an absence of direct threat rather employers have to prove the existence of direct threat. Although there is a split of the circuit, so were going to talk a little about that later. In this case, the courts said that Merck had the burden of showing a direct threat, but the court also said that the possible threat to employee safety, again, based on the employee''s conduct, not on the employees diagnosis alone, that these threats were sufficient to meet the business necessity element, and to allow Merck to require a fitness for work evaluation. Going on to the next case, it''s Taylor versus USF. This involved a fork-lift driver who experienced two seizures. And I believe that two unexplained seizures is one of the diagnostic criteria for epilepsy, which I believe the chief justice of the Supreme Court was diagnosed with, because he had two unexplained seizures, even though they were many years apart. For Mr. Taylor, a neurologist determined that his condition was consistent with seizure disorder, and Mr. Taylor told his employer that he had what he called infantile epilepsy. As a result the employee was put on leave, and not allowed to drive a fork lift or not allowed to work for 18 months. During this period while he was off work, the employee was examined by two other physicians, both of which cleared him to return to work, but after talking to the company doctor, these other physicians changed their position. I think the company doctor talked some about the job duties, because I think when doctors give medical opinions it''s important that they have a good understanding of the essential job functions and what the employees going to be doing on the job. And the company doctors kind of persuaded the physicians to change their opinion. Although I believe there were also other physicians who were not persuaded by the company doctor. There was a lot of cross medical evidence in this case. The court ruled that the employer''s refusal to let the employee return to work was based only on the assessment of the company doctors who were reporting to, and retained by the employer, and that the employer also used the company doctor to get the other doctors to change their medical opinions. Thus the court found that the employer based their decision not really on the best available objective medical evidence, it was clearly very subjective medical evidence. The court found that the employer actually regarded the employee as being disabled and held that it violated the ADA. And again, into the analysis part, I think one of the caveats are if the company doctor disagrees strongly with the treating physician, employers are maybe, maybe on shaky ground is the right word. It''s a lot harder to justify a direct threat defense when there is contrary medical opinion showing that there is no direct threat. So I think it''s very important to consider all medical opinions, again, reasonable medical judgment, best available, objective medical evidence. Last case I am going to talk about is the Justice versus Crown Cork and Seal, which involved an electrician who had a stroke resulting in vertigo. He appeared unsteady to others, but generally had no difficulty walking or standing. Some of his essential job functions included climbing ladders, walking on cat walks, using power presses and cutters. The medical report said that he should not work at unprotected heights, and the employer actually eliminated that job requirement, the then employee was able to work as electrician with no problem for two years or so before a new supervisor came onboard and had concerns. And just an aside, what we see as an advocacy agency, we see a lot of the cases that come through our door involve new supervisors. Generally it''s the kind of situation where the new supervisor doesn''t want to continue the accommodation put in place by the old supervisor. And I think that''s a tough decision for a company to uphold unless there''s intervening conduct or changes which justify terminating the reasonable accommodation. And I think employers can prevent a lot of these problems through ADA training, periodic training for all staff, but also providing training for new supervisors. Often the new supervisors come in with very little ADA knowledge, and that often is what leads them to remove or eliminate a reasonable accommodation that was in place. The employer, based on this new supervisor, requested several medical evaluations. And most of these cleared the employee to return to work. A physical therapist retained by the company initially cleared the employee to return to work with safety equipment, but then the supervisor took the physical therapist to the job site, convinced the physical therapist to change their opinion, and the therapist did an about-faced, said no, the employee should find a new safer job. The final evaluation from Crowns medical director restricted the employee, Mr. Justice, from jobs that required him to maintain balance, work at heights or work near moving equipment. Mr. Justice was reassigned to a janitorial position, which was kind of interesting, because even in the janitorial position he had to work around moving equipment, and the employer didn''t seem to be concerned about him working around moving equipment in a janitorial position, although they did seem to have concerns about him working around moving equipment as an electrician. The employee filed at the EEOC, and the court, one, looking at the disability issue, found that he was regarded as being disabled because Crown believed that Mr. Justices balance problems significantly restricted his ability to work at a broad range of jobs. And then, was he qualified to work as an electrician, or work safely as electrician. The court looked at the fact that he was able to work safely with the unprotected height restriction for several years, leading to the inference that he was able to continue to do the electrician job, despite this restriction. The court concluded that there is evidence that these hazards were imagined or exaggerated, and that Crowns purported reliance on Justice''s medical restrictions was a pretext masking Crowns irrational fears about Justices condition. And again, when the employer''s doctor is persuading other doctors, or sometimes very contrary to other doctors, and theres evidence on the ground, but the employee did, for two years prior to his being put on leave, I think the evidence of what the employee did up to the point where the employer refuses to let him work anymore is very strong. And in most cases where the employee is able to work safely up until the day the employer tells them they have to stop working, the employee I think in those cases has strong evidence that theyre able to do the job safely. And I think at this point were going to pause for questions. So Im going to remove my tired finger from the control key and open it up for questions.
Those of you interested in asking questions, you can do that by either typing it in or pressing the control key and speaking into your microphone. Well, it seems youve overwhelmed them with information here, so maybe you want to go ahead and keep going, or, Barry is going to be speaking at this time. Im not sure which one is taking over.
I think its my turn so Ill go ahead and talk about a couple more issues and well still have time at the end for you to ask questions, not only about the things I am going to cover now, but also all of the things that we have talked about during the session. So as weve talked about before, the next thing were going to be discussing is direct threat and reasonable accommodation. And as you remember we talked about in the Arline case, they said before you can make a decision that somebody is a direct threat, employers, you need to evaluate whether there are any reasonable accommodations that you can put in place that would lessen the possible threat to a level where it''s not a significant risk of substantial harm. While there are cases out there that talk about reasonable accommodation typically being the employee''s responsibility, I think direct threat raises sort of a different kind of context for employers. And there have been cases that say by not exploring reasonable accommodations, employer, you have not fulfilled your ADA responsibility. So this kind of turns the reasonable accommodation obligation a little bit around from what we are used to. Typically it''s on the responsibility of the employee, but I think there''s an argument that employers need to affirmatively evaluate possible reasonable accommodations before making a decision based on a perceived direct threat. And as we talked about at the beginning of the hour, one of the ways to get information about direct threat is talking to the person with the disability directly, and evaluating accommodations, talking to people about what they would need to lessen whatever threat might be available, and thats always a good practice to do. And I think courts would be very, much more deferential to employers if they did undergo that affirmative discussion with employees and discussion with medical professionals before making an adverse decision. So, something to keep in mind, its a little bit different than maybe some of the reasonable accommodation information youve received in the past. So the first case were going to be talking about is a recent case from the 8th circuit, EEOC versus Wal-Mart. And this is a gentleman who applied for a job, he had cerebral palsy, and he used crutches sometimes and he also used a wheelchair sometimes, and it sort of depended on what he was doing, feeling that day, that sort of thing. And he applied to be a greeter and cashier, and he wasn''t hired. And so he filed suit claiming that he wasn''t hired because of his disability. And in responding to that complaint, Wal-Mart said that they perceived him to be, for a lot of other reasons they said, they gave other reasons why they didnt hire him, but one of the things was, they said, they perceived him to be a safety risk, or in other words a direct threat under the ADA. And what they did was they showed that a doctor had reviewed his application after he had come in for an interview and found a variety of risks that would happen, and youll see those risks are listed there on the slide here. That his legs weren''t capable of holding him without arm support, and that people who had those kinds of impediments would fall. That he takes up a lot of room, he''s very wide as they say, when he used his crutches, and also that it would place him, Mr. Bradley, the plaintiff, the charging party in the case, would place him at risk. So this is not only risk to other people, but risks to himself, which as we learned earlier in the hour, is how the direct threat analysis has to go, you look at threat to self as well as threat to others. Moving on to the next slide, when the case went further, the doctor admitted that all of his opinions about Mr. Bradley was with him using his crutches and not a wheelchair. There''s some dispute on this, but one of the things that Mr. Bradley said was that they didn''t want somebody whos a greeter or a cashier to be in a wheelchair, in a seated position, because they didn''t allow other greeters and cashiers to sit down. And so thats why they were evaluating him on his crutches, but he was saying that, that''s a perception thing that shouldn''t be the basis for not having somebody in a wheelchair and in these two positions. And the doctor also admitted that when he was in his wheelchair he was stable and those threats that had been identified before really wouldnt make as much sense as when he was on his crutches. Essentially, what Wal-Mart ended up saying, was they failed to prove, that if you provided reasonable accommodations to him, like letting him do his job in a wheelchair, that he would be direct threat. And the EEOC hired an expert, which I think if youre a plaintiff lawyer in these kinds of cases, or youre an individual with a disability in these cases, if it''s at all possible, if you have the resources, it''s really important to have your own expert, because they not only looked at Wal-Mart''s expert the doctor, but they also looked at who the EEOC''s expert was, and the EEOCs expert identified a number of accommodations that would have addressed all the concerns Wal-Mart had: different types of assistive technology, a wheelchair that moved from sitting to standing position, maybe a scooter stool, a lighter weight wheelchair, one that wasnt as big, that took up as much room. So there were a lot of things the other side came up with that really made it difficult for Wal-Mart to continue its position that Mr. Bradley was a direct threat. Moving to the next case is Taylor versus Rice, and this was a case that was brought on behalf of an individual who wanted to be a foreign-service worker, and he had HIV. Interestingly, he had had HIV since 1985, and this case, as you see, is a 2006 case, so hed been HIV positive for 20 years, and he had a lot of evidence that while he had HIV throughout the period it was really for him a chronic, manageable condition, based on the medications that he had available. So this was not somebody who was having extreme responses to his HIV, this was somebody who had his HIV in relatively well-controlled. But he was rejected when he applied to be a foreign service officer, and the reason he was rejected was not anything specific about him or about his HIV, it was the fact that the State Department had a policy, that had a complete blanket policy, prohibiting hiring anybody with HIV for these positions, and this was a policy that was put in place very early when HIV first came around. As I talked about at the beginning of the session, there was a lot of fear, and certainly still some exists, but a lot of fear in the 80s and even in the 90s about HIV. And so you see a lot of policies like this, or you did, a lot of them are being removed, but a lot of policies that had these kinds of bars based on HIV, and because of some of the, I think, fear and ignorance about transmission of HIV and about how HIV effects different people. But basically the State Department''s position was that since foreign service means you are frequently going to be put into places that''s don''t have strong medical care, it would be a threat to Mr. Taylor for him to be placed out there, and that they needed to be, able to deploy him worldwide and that because of a lot of places he could potentially be deployed but not have the medical care he would need, it was a threat to his own safety. And there were a lot of disputes between the parties as far as really, what was, where the care was and where there wasnt. The State Department said that, I think, 65% of their placements were what they considered hardship locations, meaning there was a low quality of healthcare. Oftentimes junior people were put in these hardship positions because they didn''t have much seniority, and so it was likely that he would be put in this kind of place. There was other evidence put on by the plaintiff that said, well, you know, about 82% of the places he could have been put had sufficient medical care to handle HIV. And so, that was a factual dispute, but was part of the arguments that people were making back and forth. Moving to the next slide, the court looked at the Echazabal, which we talked about before, the Chevron case, which did make clear that threat to self is something you can raise under the ADA. The trial court said that yes, he would be a threat to himself if he was hired and deployed to a place that did not have adequate medical care. Mr. Taylor then appealed it up to the D.C. circuit court, and they reversed and found in his favor saying that there may be reasonable accommodations that could reduce any direct threat that he was having, and this goes to what I was saying before, that employers, including the state department, need to affirmatively look at their current policies and practices, and, before making a direct threat determination, decide whether there are possible accommodations that could reduce that potential direct threat. And on the next slide youll see, Mr. Taylor had actually come up with a couple of potential reasonable accommodations. The first one that he has come up with was that they could place him over seas in places that did not have the inadequate medical care, and again, he said 82% of the places had adequate medical care, so it wouldnt be that many places, but, they could do that. And the other side, the state department said, well, youre basically asking us to waive an essential job function. Mr. Taylors response to that was, well, wait a second, look, there are 12 other people that you have placed as employees who had asthma, and you place them in specific places that had medical care for asthma, and the fact that you accommodated other people and are not willing to accommodate me in having this blanket exclusion for HIV really undercuts your claim that its an essential function, and that if youre not making world wide deployment a requirement for other people, you shouldnt require it for people with HIV. So that really, I think, undercut the state departments argument in that situation. The other thing that he suggested is that you can send him to any overseas post, but just allow him time to seek the medical care he needs. And the state department said, well, that would be an undue hardship. It would take you weeks to go back and forth to get the medical care you would need. And he had his doctor say, you know, he only needs a checkup maybe twice a year and he had evidence that showed that he could get back and forth to get the medical care he needed within just a couple of days. And so the undue hardship argument was undercut there as well. Ok, and one thing that I just wanted to mention on the Taylor case is that after this case was decided in 2006, the State Department did lift their ban on hiring people with HIV, and so the ban that we talked about before, the blanket exclusion, no longer exists. So if somebody with HIV applies to be a foreign service officer, they can still have their own specific disability reviewed, and determine whether or not they would be a direct threat, but there is no longer an inherent ban on people with HIV from being in the foreign service, and I think this litigation certainly went a long way to resulting in that lifting of the blanket exclusion. So moving on to the next case, Dart vs. Curry, involved a gentleman who had epilepsy, and he had epilepsy since he was 16 years old, and he generally was able to control his epilepsy through medication. He would occasionally get what he called auras, which are feelings that are coming that would indicate that he might have a seizure. And typically, about half the time he would have an aura, he would have a seizure, and sometimes he wouldnt have a seizure, but it was very rare that he would have a seizure without an aura, so the aura was a really good indication that he might have a seizure. And he happened to be a construction worker, he worker with heavy equipment, and driving trucks, that sort of thing, and before he went to work one day he had an aura, but he went to work anyway and he didnt tell anybody in the workplace that he had had this aura, and that he might potentially have a seizure, which was something that I think was a problem for him and a problem for his employer. He ended up having a seizure while he was driving, blacked out. He was going at a slow rate, and so another employee was able to jump on the truck and bring it to a stop, but as you can imagine, it raised quite a concern by the employer, the fact that he had had this, and if he had been going faster somebody could have been hurt. And also the employer was very concerned that he had had an indication he was going to have a seizure and did not tell anybody and just continued to work, and so there was that concern as well. The employer had a neurologist evaluate the employee and the neurologist actually made some recommendations about some alternatives, said, well, maybe he shouldnt be in a position where he is driving, an he could be in this job, or this job, and even if he had a seizure it would not be a problem. The employer reviewed that, but ultimately decided that the employee was not qualified, posed a direct threat, and terminated him. And so moving to the next slide, youll see that, that the court ultimately found that there was a material issue of fact as to whether he was a direct threat and what they were basing it on was the fact that the employer really didnt explore what reasonable accommodation could have changed things for him. So, one of the things that the court said was, well, youve got your own doctor who says that this guy could do other jobs, so the reasonable accommodation of job reassignment is something that had been identified by the employers own doctor, and the employer had chosen to disregard. And I think even though what happened was very serious and certainly raised a lot of concerns about this particular persons ability to do that job, the fact that the employer did not explore reasonable accommodation when he had information about possible accommodations, it think really hurt him. The other thing that happened in this case that I think is very important for employers to think about is that we had a situation of misconduct here, at least arguable misconduct, in that the person had knowledge of a problem and didnt report it to anybody. And really the employer argued that the reason they fired him was not because of his disability, but because of his misconduct. But the problem with the employers argument was that they didnt fire him right after the misconduct, a failure to report that he was going to, that he might have a seizure. And so it really undercut the employers argument that it was based on the misconduct and not based on the seizure. And I think, if youre really going to rely on this misconduct as a basis for terminating somebody, you need to be very consistent in that, and be very clear thats the reason youre doing it, because, under the ADA, an employee doesnt have to show that the only reason they had an adverse action against them was because of disability, they just have to show that that was one of the reasons. So if the employee could show, well maybe it was misconduct but maybe it was also, in addition, related to my disability, thats typically going to be enough to move forward with the case. So I just think that if employers really think that misconduct is involved, they need to be consistent and act according with the policies and do whatever is necessary to make that determination. And by getting that evaluation, and getting that information about possible reassignment and then not acting on it, really undercut the employers argument. Ok, lets move on to the next case, and this is Jarvis vs. Potter. Mr. Jarvis was a gentleman, actually a Vietnam veteran, and I think maybe in the 70s or 80s, he learned that he had Post Traumatic Stress Disorder. And the way his Post Traumatic Stress Disorder materialized for him, was that when he was startled he would proceed as if somebody were attacking him, and it would take him back to the war and he would lose all reality and perception, and he would just react, often physically to almost any startling noise, thinking that somebody was attacking him, and it would really transfer him back to, I guess, the war, and would result in some actual violent actions that were happening. And this happened numerous times in the workplace, where something would startle him, or would just walk up from behind him and touch him on the shoulder, or thered be a loud noise or whatever, and when he would turn around and he would literally punch or kick or do sort of like a karate move, against the person who had startled him. And he did it several times with coworkers who understood his disability and were sympathetic to it, and so they did not report it. But then he did it one time to somebody who was less sympathetic, and it was reported to the supervisor, so there were real concerns about that. When this was brought to his attention he did make an accommodation request, and his accommodation request, as youll see on the slide, is that he requested that all of his coworkers be requested not to startle him or approach him from behind. And he said, well, you know, if nobody startles me or approaches me from behind, Im not going to have these reactions and Ill be fine in the workplace. The other thing that happened, though, before they made a decision on this, is that when he was interviewed by his employer he was very disclosive about his disability and gave him a lot of information. And he said, you know, that he though his Post Traumatic Stress Disorder was getting worse, that he really couldnt control himself when somebody approached him and that he thought that if, you know, he hit somebody in the right place he could actually kill them. And that he was concerned about him being safe in the workplace. Hearing that information and having the other information about the actual violence that he had done in the workplace, the employer, being the post office, placed him on leave and ultimately terminated him. So he ended up filing suit under the ADA. And as you can imagine, the post office said, actually, I think he probably filed suit under Section 504, because its a federal entity, but again, the same definition of disability. He filed under the Rehab. Act, and, an issue that I will talk about, in more detail in a few minutes, but it raised the issue of, whose burden is it to prove direct threat? Alan alluded to this before, and this is a tricky issue, the general rule is, is that it is the employer, because this is a defense that they employer raises, its the employers responsibility to put on enough evidence to prove direct threat. So generally, all the courts would say that. The main exception to that issue is when the essential functions of the job implicate safety issues. If you are involved in a job that has safety issues, so maybe youre a firefighter or a paramedic, or something like that, if the direct threat arises in those contexts, because of what you are doing really involves safety issues, it''s more likely that you as the employee are going to have to prove you are not a direct threat. But if it''s not a workplace job that involves safety issues, for the most part courts are saying it''s the employer''s responsibility to prove that. And so here, even though there were violence and safety issues involved, the inherent job itself, working in the mail at the post office, is not a job where you would typically think of involving safety issues. So the court said here, the exception to the general rule would not apply, therefore it is the employer''s responsibility to prove that Mr. Jarvis was a direct threat. So moving on to the next slide, the court went on to talk more about what kind of modifications, or accommodations could be made in the work department, in the work place, and how a court is going to review those issues. And they said, you know, generally the court is not going to take the role of independently assessing whether the employee posed a direct threat. Theyre not going to get involved in that level of detail. But at the same time, theyre not going to just say, you know, as long as the employer acted in good faith, that''s enough. Really, what youre going to do is look at some of the issues that weve talked about already. Did the employer look at the specific behavior that was involved? Did the employer look at available medical evidence about that particular disability or talk to a doctor who had examined that particular person or knew about that persons disability? And then, is it objectively reasonable? And if its objectively reasonable, typically, the employer is going to get the benefit of the doubt, even if, the employer was ultimately wrong, and its proven that, maybe that, all those assessments turned out not to be wrong, as long as the employer did what they needed to do, and the conclusion that they got to was a reasonable conclusion courts are generally going to be deferential to employers, in that situation. And in this case, moving to the next slide, the court found that the employer did meet the standard, that they did do what was necessary, they talked to the person with the disability about what was going on with his PTSD, he interviewed people that he had interacted with, and they found that they had made a decision that he did pose a direct threat and they found that the employer had reviewed accommodations, actually talked to the person about what accommodation would be necessary. But the employer ultimately decided, well, you know, instructing other employees not to approach somebody from behind and not to startle somebody, thats really not a reasonable accommodation, thats not, something that we think, can really work. In the post office area, youre moving around quite a bit, there are a lot of employees going back and forth, it''s just people are going to approach other people from behind just walking from behind them. That accommodation request, really they didn''t think would significantly reduce the level of threat. And I think the other thing is that there was a lot of evidence against Mr. Jarvis here. He had the prior incidences of violence, and he had his own statements that he had made, that, you know, if he had hit somebody in the right place he could kill them, and so the employer was on notice that this is a person who was having a difficult time, and was really a threat in the workplace. And the substantial harm here was great in that the employee himself said it might result in somebody''s death. So, the other thing Mr. Jarvis had said was that he thought his symptoms would last indefinitely, so this was not a situation where they could say, well, you know, why dont you take a couple weeks of medical leave, you know, and see how you feel and come back, he was saying, you know, this is something I think that is going to stay with me, its getting worse, I don''t think there''s anything you can do other than tell people not to startle me. And that just wasnt enough. You know, I think this case would have been very different if the employer just knew the person had a diagnosis of Post Traumatic Stress Disorder and then made an adverse decision based on that diagnosis alone. But that''s not what happened here, they had a lot of objective evidence, things that had happened in the workplace, and the employee''s own statements, but I think ultimately ended up with them reaching this decision. And so, youll see on the next slide, a couple of things the court said, and one was that the law doesn''t require the post service to wait for serious injury before eliminating a threat. They had enough information to make it, you dont have to wait for something more serious to happen to make an adverse decision. And I think thats really helpful for employers to know that, that if theyve got enough, they dont have to wait for the ultimate act to happen. If they have a significant risk that the substantial harm will happen. And again, they found that this request was not a reasonable accommodation request that the employer had to accommodate. I wanted to move to two final issues and then well open it up one last time for any questions. One is one that weve already talked about and that is the issue of burden of proof. And Ive sort of said some of this already, but most courts are going to require the employer to prove that the person is a direct threat, that they are a significant risk of substantial harm. The exception again, is if you are involved in a situation of a case that a job that has an essential function involving safety. But most courts are going to go in favor of the employer having to prove this. For those of you who aren''t lawyers, one of the things you might be asking, why does it really matter who has the burden of proof. Well, it really does matter, because if you have the burden of proof, it''s harder for you to prevail, because youre the one who has to put on all the evidence. So, its much easier to sort of win a case if the other side has the burden. So thats why, if you can have the burden on the other side, thats a better option for you in bringing a case. As far as issue, and I think this is an issue that weve alluded to already, and its probably one that people are familiar with already, but I think its important to talk about, and that is that blanket exclusions of particular disabilities from different jobs, almost universally, courts have found this to be a disfavored thing. While employers have won, you know, overwhelmingly in the courts in ADA cases, where they consistently lost cases is when they have these types of blanket exclusions or policies that are, just, are very rigid, that don''t take into account individualized situations of a person. They are making a decision, like in the, when we talked about the Taylor versus Rice case, automatically excluding all people with HIV from a particular job, that was a blanket exclusion, and the court found that that was unreasonable policy to have. Weve actually seen most of these cases involving people with diabetes, and often times they are people who have jobs that involve driving. And again, while there may be a basis, and Alan talked about one of these cases, where somebody who has, is insulin dependent diabetes has been found not to be qualified in a particular job involving driving. To have blanket exclusion that nobody, who is insulin dependent driving can work a particular job, is going to run a foul often, of the ADA. So I think if youre an employer, and youre listening, you should look and see if you have these kinds of policies, and if you have these blanket policies, I think you should really consider whether or not they need to be modified, and build in the individualized assessment or have some really strong evidence as to why somebody should automatically be banned because they have a particular disability or diagnosis. Im not sure what that would be, but if you really believe strongly in that, you need to have some sort of objective medical evidence support that. But I think the safer way to go, the better practice to go, is to really make clear what youre central functions are, and then really work on identifying why a particular person with a particular disability wouldnt be able to meet those essential functions. The only exception to the rule, I would say, in the courts, most courts have been very clear that if you have a blanket exclusion that you do not, that youre not usually going to win these cases. Its cases involving people with a history of substance abuse. And a lot of cases that have come in that kind of thing, they have a blanket exclusion saying, if you have a history of substance abuse you are not qualified for the job. Courts have held that up, not all courts, but some courts have held that up as saying that its a business necessity because of safety issues that are involved, and the history that somebody has, substance abuse, and that if they fell off the wagon so to speak, with their substance abuse, that they could hurt people, that it is reasonable for an employer to have that type of blanket exclusion. Not all courts have said that, but the only cases Ive seen where employers have been successful in maintaining a blanket exclusion has been when they have one involving substance abuse. So thats just additional information that you might have in evaluating your own policies. So that gets to the end of the substantive presentation. Weve got some resources listed here, of course you can always call your DBTAC, including the Great Lakes ADA Center, which has taken a lead here today, as well as we at Equip for Equality Protection and Advocacy could be a resource. You all know Illinois ADA project which is funded by the Great Lakes ADA Center is also a resource, particularly for people in Illinois. And then of course the Job Accommodation Network provides a lot of information through their website, about accommodations that could be provided for particular disabilities. EEOC obviously has a lot of guidance and information on topics regarding employment and the ADA. And then in addition to the Great Lakes ADA Center, therere all the other DBTACs around the country, theres the website link to get to your particular DBTAC. So I think at this point well just see if there are any questions that people have. And again if you have a question just press your control key, you can give it as an oral question, or you can type that in. And I see that you have a question about is there anything in the ADA Amendments Act that will impact todays topic? You know, I dont think so when it comes to direct threat. The ADA Amendments Act really is going to the definition of disability, and whether you have a disability or not, and whether or not using assistive devices or medication would affect that or how you prove disability. Whether you look at activities you do at home, or activities that are central to daily life, which was another Supreme Court case, the Williams case. But, at least in my view, I don''t think its really going to impact the direct threat analysis. Alan may have a different position on that and he can let you know. But since you brought up the ADA Amendments Act, I did want to mention, and Alan you can go on to the next slide, is that the next session that were going to have in October, October 28th, were going to actually talk about the ADA Amendments Act. Its going to be a session where we are talking about a couple things, one is the EEOC''s new information regarding performance and conduct issues and Sharon Rennert from the EEOC is going to talk about that. And then well also talk about the ADA Amendments Act, and what that means in moving forward.
I just had one point I wanted to Barrys. I agree that the ADA Amendments Act will not influence direct threat at all. But one thing that comes up, and I think it was in the Taylor case, is there are times when an employer perceives a person as being disabled, for example I believe it was in the Taylor case where the employer had a statement that, we think he can only work safely if in a rubber padded room with medical help right nearby. And the court took that extreme position to say well, gee, you regard him as being disabled and working anywhere, and therefore hes regarded as being disabled. And the ADA Amendments Act makes it a little easier for employees to show that they are regarded as being disabled, because you no longer have to show that the employer perceived a substantial limitation in a major life activity, just that they perceived that you are disabled, and then took an adverse employment action because of that. But other than that, I really think the Amendments Act will have no impact on the direct threat defense.
I see that it looks like we have a question regarding somebody taking a psychological profiling test. You know, I can answer that generally; I don''t know exactly what the test involved. Im not sure if the profiling issue gets to direct threat or if it gets to information about possible disabilities. There is clear restrictions on employers, on what they can conduct, whether they can conduct medical examinations or not. There''s a case that was brought here in Chicago that we were involved with, involving the MMPI, the Minnesota Multiphasic Personality Inventory that was given to people. And the court in that case found that the MMPI was a medical examination, it was not just a vocational test because it would potentially be used to identify a particular disability mental health issue. Now that''s only for the pre-employment. If after youve been deemed qualified, and if they give everybody the same test, employers can do that, even if it is a medical test. The only issue is that if they give everybody that test, and then they make an adverse decision, and I mean by adverse decision I mean withdrawing that offer, they have to show that the reason they withdraw it was based on job-related or business necessity. So finding out that information somehow relates to the job or makes it a necessity to withdraw that job offer. And thats sometimes a difficult standard to do. But youre right, that if they do have a test-post offer, they need to offer it consistently to everyone. And again, in this case, for you, you were hired, so the fact you were required to do this, and I assume it was post-offer, would likely not be an ADA violation.
And I just wanted to add, we just finished a draft of an article that touches on this issue for the ABA journal, which talks about the personality test, and looks whether it discriminates against people with disabilities, that, even beyond people with mental illness, and such like that. So, personally I think these tests are problematic for a number of reasons. If an employer uses it to disqualify an applicant, I think the employer still has to meet the job-related and consistent with business necessity standard. So I just wanted to throw that in also.
Alan, it looks like theres another question for you.
I see. Id have to double check. I think on one of them, there was a regarded as issue, but I think on the other ones, the court found that they had an actual disability but Im not 100% sure. Its interesting because you have to argue a substantial limitation in order to show you have a disability, but if your treatment regimen, for example with Mr. Brannon, his treatment regimen was helping him control his diabetes, so then is he not disabled. And in those cases we argue that hes actually limited as well in caring for him because of what he has to, the steps he has to take.
And you know, that just makes me think of, getting back to the previous question about whether the ADA Amendments Act is going to impact direct threat cases, I think... ok, Robin has instructed me to repeat the question. Well, let me answer this question and then we can repeat the question if, for future questions. But basically a previous question was: is there anything in the ADA Amendments Act that will impact todays topic of direct threat? And I think the general answer is, what weve said already, that its not going to impact it, although it may impact regarded as. But I think, getting back to what we talked about before, that so many of these direct threat cases involve people with mental illness, diabetes, epilepsy. One thing thats happened in these cases is that, in addition to challenging that they have a direct threat, theyve also challenged whether these people have a disability. And in a lot of these cases those disabilities, epilepsy, mental illness and diabetes, are people who take medication and so a lot of these people werent even getting past the disability stage. So I think the fact that itll be easier for some of these people to prove they have a disability, will get the case further, then some of the direct threat analysis will proceed, but some of these cases are getting thrown out not because of direct threat, but because they couldn''t prove they had a disability. Are there any final questions? I think were about at the end of our time.
Thank you, Barry and Alan. At this point we just want to say if there are any other questions, please make sure that you enter them either through the public chat section or you can just indicate you want to speak again, and we can take a question verbally from anyone. Were at the hour, at the point, half hour, so I want to remind people to please give us feedback on the session through the online evaluation form. There''s a link here, it will also be sent to you following the session, along with a copy of the PowerPoint presentation for you to have for future reference. I would just like to let you know that we are finalizing our schedule for the 2008/2009 webinar series. As you heard, Barry and Alan, our first session will be held October 28th. It will focus on performance and conduct issues, as well as update on the Americans with Disabilities Amendments Act of 2008. As you know were awaiting the signature of President Bush on that particular piece of legislation, which will become effective January 1, 2009. Just an FYI, even if President Bush were to decide, and we dont have any indication that he would not, but if he were to veto this particular piece of legislation, there''s some support in both the house and Senate to override any veto. So were pretty assured at this point that the legislation will move forward, the Equal Employment Opportunity Commission will begin its process of promulgating rules under the legislation. So join us on October 28th to learn more about the status of that piece of legislation as well as the discussion, as I said, about performance and conduct issues. For more information on the Webinar series can be found at WWW.ADA-AUDIO.ORG, or if you have questions and would like to speak with someone you can call us on our new 800 number specifically for our distance learning program, which is 877-232-1990 both voice and TTY. So thank you again for your time, thank you Barry, thank you Alan, and thank those that have joined us today, and at this time we will sign out.