Welcome everyone to the 2010 Legal Webinar Series. This is Robin Jones and I am going to be your moderator today and I am the director of the DBTAC Great Lake ADA Center. This program is part of the variety of programs offered as collaboration with the ADA national network which is comprised of the 10 regional ADA technical assistance center. Our speakers today are Barry Taylor and Alan Goldstein. Both of them are with Equip for Equality which is the Protection and Advocacy agency in the State of Illinois. You can read more on their bios. I will not take up time reading either of their bios but their bios are available on the website www.ada-audio.org. Just a few technical things regarding our session today so that everyone is aware again, as I mentioned earlier, captioning is available by clicking on the closed captioning link in the lower right hand corner and you will be able to follow along with the captioning. You can resize that box and it will allow you to follow along with the session. This session is being recorded so that a recording of the session, all of the slides and PowerPoints and such will be available following the section on our archive''s page as well as an edited transcript of the session will accompany that. At the conclusion of the program today, you will receive an email to the email that you registered under for the session. That email will contain a link to our evaluation. We ask your feedback at the end of the session and also will contain a copy of the PowerPoint presentation from today as well as a legal brief that accompanies this presentation with the specific citations and more in-depth information regarding the court cases and things that are associated with this particular topic. So, you can look at those--for those things as attachments to your email that will again be sent at the conclusion of this program. So, I am going to go ahead and I''m going to turn it over to our speakers and again, our speakers today are Barry Taylor and Alan Goldstein. Go ahead Barry and Alan.
Hi. This is Alan. I''m going to be going first today. Thank you, Robin, for the introduction. And today we''re going to be covering invisible disabilities and the ADA. And just a word before we start, we kind of wrestled with the definition of invisible disabilities because in some ways unless you''re looking at cells under a microscope, all disabilities are invisible. It''s really the effects of a disability that become apparent. But we wanted in this seminar to focus on issues relating to the fact that a disability might be invisible. It might not be apparent to the employer. But usually when talking about invisible disabilities, the disabilities most thought of are conditions like diabetes, epilepsy, mental illness. It could also include a positive HIV status, cancer and even in some ways orthopedic type of injuries as well as many other traumatic brain injuries. We have a variety of different impairments involved in the seminar today. Here''s a brief overview of the seminar. The first session is going to be about the ADA Amendments Act and how that might change the case law in this area. People with invisible disabilities had a very tough time off in showing that their disability was even covered by the ADA, something that hopefully should be changing under the ADA Amendments Act. So we''re going to go through cases involving medical inquiries, examination and disclosures, and we have the issues listed there: pre-employment testing, personality testing, fitness for duty exams, drug testing, what medical information employers can seek as well as disclosure and qualified issues. And then I''m going to turn it over to Barry and Barry''s going to address confidentiality issues. The fact that disabilities must be known by an employer before there can be a finding of disability base discrimination and also disability harassment. So the first issue we''re going to talk about is the ADA Amendments Act and how the ADA Amendments Act will affect people with invisible disabilities. So as many of you know the ADA Amendments Act went into effect January 1st of 2009, and the EEOC has issued the NPRM which stands for Notice of Proposed Rule Making which has not been finalized or approved yet so that might change before it reaches its final state, but we''re going to talk some about what''s in the act itself and then a little bit about what''s in the NPRM. In the act itself, it says the definition of disability shall be construed in favor of broad coverage to the maximum extent permitted by the act and important changes for people with invisible disabilities are one, episodic conditions are examined when active. For example, there are only a couple of cases I believe with people with epilepsy and think that''s probably because prior to the ADA Amendments Act most people with epilepsy where found not to be covered under the ADA due to the episodic nature of their condition. Now when the conditions are examined when active, for example, when someone is experiencing a seizure, it will be clearer that they are substantially limited in a major life activity at that time. Additionally, under the old ADA, mitigating measures were not including when assessing the substantial limitation, I''m sorry, mitigating measures were included when assessing a substantial limitation, but under the Amendments Act mitigating measures will not be looked at. So if medication, or learned behavioral adaptations, or equipment help mitigate the limitations caused by a disability, the person is going to be examined in their unmitigated state to see if there is in fact a substantial limitation and this again will bring more people with invisible disabilities under the protection of the ADA. And often, people with episodic conditions or conditions controlled by mitigating measures like diabetes, epilepsy, cancer, and mental illness would have no recourse under the ADA prior to the amendments going in to effect. So, there were some new major life activities added to the Amendments Act and I''m not going to go through all the major life activities that are already listed by the EEOC under the prior reading of the ADA but some new ones that should benefit people with invisible disabilities are reading, bending, communicating, and then one that''s not in the Amendments Act but it is in the EEOC and Notice of Proposed Rule Making that is not final yet, that also included the major life activity of interacting with others. In addition, the ADA Amendments Act added a whole new category of major bodily functions. And these include the immune system, normal cell growth, neurological brain functions, digestive, respiratory, bowel, circulatory, bladder, endocrine, and reproductive functions and the then EEOC''s proposed rule making added a bunch more that I have listed there including genitourinary functions, cardiovascular, functions of the hemic or lymphatic symptoms, special sense organs, and skin and musculoskeletal. And just keep in mind that none of these lists are intended to be exhaustive. There''s no negative implication by omission of some major life activity or major bodily function in the list. So here, we have a slide number 8 that shows some types of invisible disabilities that will benefit by the inclusion of major bodily functions. So people with HIV or AIDS or lupus will benefit. They can just now say, my immune system, the major bodily function of my immune system is substantially limited or normal cell growth or something with cancer. And as you can see, we have the list there., I won''t read them all but digestive system would be Crohn''s disease or celiac disease, bladder functions, reproductive functions, brain functions can be people with intellectual disabilities, mental illness, schizophrenia, people with asthma can go under the respiratory major bodily function, heart disease, high blood pressure under the circulatory major bodily function, and importantly people with diabetes can go under saying their endocrine functions are substantially limited. So again, this new category will really be a benefit to people with invisible disabilities. Moving on to the EEOC''s proposed rule making, I have highlighted them blue. Some of the invisible disabilities, the EEOC what they do, is they came up with three lists of categories of impairments. We''re just going to talk about the first two. One impairment that will consistently be found to be substantially limiting and here--and these can include autism, cancer, diabetes, epilepsy, HIV or AIDS as well as major depression. And the EEOC made a point of pointing differentiating between major depression and other forms or depression, bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder, or schizophrenia and that''s the first list in the proposed rule making. The second list contains impairments that may be disabling for some but not others and the EEOC says this may require more analysis but not extensive analysis. I''ll leave that to brighter people than me to debate whether that really provides a lot of guidance for people. It still can be a quick analysis but some impairments on the second list include high blood pressure, hyperthyroidism, learning disabilities, carpal tunnel. I have hyperthyroidism twice, sorry about that. And certain psychiatric impairments such as panic disorder, anxiety disorder, or forms of depression, other than major depression. And now, we are going to move on to medical inquiries, examinations and disclosure. Actually, I just want to take one brief detour before we get there just to give note on a case I handled which involved in the individual of epilepsy. As I mentioned, there are very few cases that are in the brief which is also going to be a brief that''s part of this PowerPoint or the webinar for people with epilepsy and my theory is because people with epilepsy will often be found not protected by the ADA, so I think there will be a lot more case law for people with epilepsy, diabetes, and mental illness. But a couple of issues came in a case, I had a client with epilepsy who had what are called complex partial seizures which aren''t really like muscle spasms but they just sit there and just kind of stare off into space. They''re not really responsive. They look awake and alert but they''re not really able to interact and when talking with my client, I had them explain the condition in depth not because I''m nosy but just because I wanted to get an understanding of his condition, and the types of seizures, and the frequency, and the triggers and he was seeking an adjusted work environment in which he can have a regular work schedule rather than having different shifts at different times. He wanted to be in one location instead of moving to different locations, and when he disclosed his epilepsy as often happens to people with invisible disabilities, his employer I think reacted more to misperceptions or stereotypes and immediately placed him on medical leave to come off from work and ask for some more medical information. He filed an EEOC chart and then we got involved for the EEOC mediation. Preparing for this, I visited the Epilepsy Foundation and other websites to learn more about the disability and then at the mediation, my client actually had one of these seizures while everyone was in the room, although I don''t think the other people, the mediator nor the company attorneys noticed but I did and immediately just asked for a break for--you know just ask if we could take a break now and after about 5 minutes, my client was able to participate again but even though technically, I don''t think the fact that he had a seizure at the mediation should have affected him with his case. Practically, I had a concern that it would and the other issue Barry is going to talk about confidentiality. In that case they asked him to fill out this whole form and his doctor to say yes or no for any possible bodily functions to see if it''s affected and we just wanted to say my client was affected in sleeping, eating, caring for himself, interacting with others. We also used the life--major life activity of being seizure-free and working which is the last resort, major life activity but my client didn''t want to answer questions about sexual activity, reproduction activity, but the problem came up because the employer wanted him to say yes or no to each of these activities and if my client didn''t want to disclose but know on the form that he would have been in a Catch-22 because he would have been given false information which by itself could be reason for discharge, when in reality all he wanted to do is to protect his confidentiality. So, as you can see a lot of these issues can come together in invisible disability case and we ended up settling the case and it worked out fine but it was quite a process. So that was my brief digression and now we''ll move on to the slides. The first case we have up here is O''Neal versus City of Albany. This involved a police applicant and the pre-employment physical showed that he may have heart problems. As you may know the EOC divides the employment process into three stages for purposes of seeking medical information or med--taking medical inquiries and employees can do nothing at the first stage before giving, extending a conditional job offer. Once employees extend that conditional job offer, then they can seek far ranging medical information and take medical examinations as long as they do it for all applicants for the position and then if they use those criteria to disqualify someone, they need to show that their reasons are job-related and consistent with business necessity. So my client in the pre-exam or pre-employment physical, the employer came back and said we''re worried about some coronary disease. Can you give us more information? The client then submitted a note from his doctor showing no coronary disease but the medical board doctors still refused to certify him for the job without the client undergoing or without the individual undergoing more tasks which would cost 1,500 dollars which they wanted him to pay out of his pocket. The client refused and he was not hired. And the court held that the exam was proper. A post offer once the job offer was extended, the examination itself does not have to be job related or consistent with business necessity. However, if you choose to exclude someone, the results must be used in a way that is job related and consistent with business necessity and the court held that this was complied with. The plaintiff had completed all non-medical screening so it was a bona fide conditional job offer. All employees had to take it. The information was protected by confidentiality which Barry will explore at more depth later. And the use of the tests not wanting police officers who do have heart problems was considered job related and consistent with business necessity so the City of New Albany won that case on summary judgment as their exam request was proper even though they wanted the individual to foot the bill and the court didn''t really discuss the money issue so much. The next case is an interesting one, Birch versus Jennico 2, and this would involve an individual or a person living with HIV and cancer who was actually employed by JobsPlus, a temporary placement employment firm, and through JobsPlus, he was working at Jennico 2 as a temp, in a temporary position. Jennico 2 then wanted to hire him for a position called a batch maker which involved working with quantities of toxic and potentially hazardous chemicals and Mr. Birch was to undergo a two to three-week training to see whether he can do the job and whether he liked it. If so, he would become an employee of Jennico 2 and will no longer be an employee of the placement firm, JobsPlus. While undergoing the training program, the owner of Jennico 2 heard that Mr. Birch was receiving chemotherapy cancer treatments and was worried that he might not be able to do the job safely and the owner of Jennico 2 contacted JobsPlus and said, "We want him to undergo a medical evaluation." And the client did not want to go through that and he was terminated at the middle of the training program. And it actually says after the examination, plaintiff was not hired. He actually submitted some information but then wouldn''t go for the additional exam and was not hired. The biggest issue in this case is who the employer was. If it was the temporary or if it was the employment placement agency JobsPlus, then he was already an employee and they could not request a medical exam absent some reason that was job related and consistent with business necessity. If the employer was actually Jennico 2, he was seen as a job applicant and if he was--and there could be no medical exams unless he was first extended a conditional offer of employment and both Jennico 2 and JobsPlus, they could not agree who was the employer at that time. So, that was one of the issues in the case, was it really a pre-employment examination or was it a post-employment examination. If it was post-employment then was it job related and consistent with business necessity, was there a direct threat issue, was he qualified. And because there was this factual dispute as to who the employer actually was and because that affected what type of medical information could be sought, the court denied defendant''s motion for summary judgment and said if he was not yet hired, if Jennico 2 was really going to be the employer, he was an applicant not an employee, and if requesting him medical exam then the ADA may have been violated. The exams must be a separate second step of the selection process after an individual meets all other criteria. Next, in Leonel versus American Airlines, three applicants who were HIV positive alleged that they were subject to unlawful pre-employment medical exams. The employer extended the job offer contingent on the results of the medical examination but also contingent on how the background checks including employment verification and criminal history checks panned out. The court held that this was a possible violation of the ADA. Employers can only seek medical information or exams as a last step of the application and only after making a real bona fide conditional job offer and what they really meant is the employers needed to do the employment verification and the criminal history background checks first and then make the conditional offer and then ask for the medical information. Because the employer lumped it all together and included non-medical as well as medical information in terms of what was being sought, the court ruled that it wasn''t a bona fide real conditional job offer. The court said the company, if they could establish a reasonable basis for not doing the background checks it might have been okay but the company could present no evidence or any basis for skipping that step. The next case is one that''s near and dear to me, Karraker versus Rent-A-Center in personality testing. To date and as far as we know this is still the only appellate court decision involving personality testing and was handled here in the Seventh Circuit which covers Illinois, Indiana and Wisconsin and in fact our agency Equip for Equality wrote an amicus, a friend of the court, brief on this case. And it''s one of the few cases where the Seventh Circuit decided in favor of the employee with the disability which is why the case is near and dear to me. The facts very briefly, Rent-A-Center used the Minnesota Multiphasic Personality Inventory for job applicants. And the question before the court is, is the MMPI, the Minnesota Multiphasic Personality Inventory, a medical examination or is it a personality test. The EEOC says personality tests are not medical examinations and then they have some criteria to determine if something is a medical examination whether it''s administered or interpreted by healthcare professionals, whether a test is designed to reveal an impairment of physical or mental health, whether it''s invasive, whether it''s measuring how an employee performs a task or his physiological responses to performing a task. For example, can you lift 50 pounds or what''s your heart rate when you''re lifting 50 pounds as well as whether the test is given in the medical setting or medical equipment is used? And the EEOC says any one of those criteria can make something qualify as a medical examination. So the court looked at some of the MMPI questions which we have here. I see things or animals that people around me do not see, I hear voices without knowing where they are coming from, I have fits of laughing and crying that I cannot control, my soul sometimes leave my body, I feel like I''m doing things because I''m hypnotized, or I have habits of counting things that are not important such light bulbs and electrical signs, cracks in side walks or the 114 people listening in on this webinar. And it seems pretty obvious the company is really trying to see if someone has any signs of mental illness. And the court, I don''t know if people read a lot of court decisions, they''re usually not very entertaining, this one was. And I decided it''s more extensively than usual from the court decision here and I''ll read this. The court first cited the EEOC guidance; psychological tests that are designed to identify a mental disorder or impairment qualify as medical examinations. But psychological tests that measure personality traits which is honesty, preferences and habits do not. Rent-A-Center argued and for people who don''t know, Rent-A-Center is a place where when you have people over for Thanksgiving or Passover and you want to rent tables and chairs and table clothes and silverware, you go to Rent-A-Center, and Rent-A-Center obviously thought there was a need to make sure everyone who rented out that equipment could pass the MMPI. Rent-A-Center argued that the test only measured the extent to which the test subject is experiencing the kinds of feelings of depression that everyone feels from time to time, for example, when their favorite team loses the World Series. The court didn''t really buy that argument. The court said although that particular example seems odd to us, can an Illinois chain really fill its management positions if it won''t promote disgruntled Cubs fans, remember the court sits in Chicago. The logic behind it doesn''t seem to add up either. And the court said either the MMPI was a very poor predictor, and I think that language is very important and they note that Rent-A-Center no longer used it, or it was actually designed to measure more than just an applicant''s mood on a given day, meaning Rent-A-Center was just trying to see if someone had mental illness, and the court held that the MMPI is best categorized as a medical examination ''cause it was designed to diagnose medical illness. Rent-A-Center said, "Well, we use a vocational grading scale and a vocational grader." The court said it didn''t matter, it was designed to discover mental illness, to diagnose mental illness, and that''s enough to make it a medical examination. And the court said obviously, it had, that using the test had--likely had the effect of excluding people with mental illness. So we have a couple of queries here. One, excuse me, would the MMPI be lawful if given after a job offer. Here, he was an applicant so you cannot give any medical exams. What if the test was given after a bona fide job offer was made? And I think the answer is this. I think its okay to give the test after a job offer but if the test has the effect of screening out people with mental illness, then the employers needs to show that using the test is job related and consistent with business necessity. And as the Seventh Circuit point out the test was possibly a very poor predictor which I think would negate any ability to show that it was in fact job related. Another issue with these wasn''t addressed by the court but this, the MMPI and similar tests ask the same question with very subtle changes of language and sentence structure because they realize it''s not really hard to figure out what the question is asking, you know, whether it would be turning in someone else for cheating or lying or things like that, and they''re really afraid against people giving what they perceive was the right answer rather than answering honestly or from the heart so they ask the questions many different types of ways to see if there is consistent answers given by the applicant. But I think this can cause discrimination against people with variety type of situations. I think people with intellectual disabilities or cognitive or learning impairments would have difficulty understanding the subtle shifts of language in answering the questions. People whose primary language is not English, if their deaf and their primary language is American sign language, there could be communication barriers for taking the test which would mean the test would not be a good predictor for them. And of course, people with limited English schools or from different cultures might be disadvantaged at those tests too. They ask a lot about turning in co-workers and that could be a cultural issue. Or of course someone who does not have a strong ability to speak English wouldn''t be at a disadvantage taking the test as well. So as you can see, I think there are numerous issues with personality testing. I think the next line of attack we''re seeing now that employers are giving this long pre-employment test and they''re not called the MMPI or personality test. But they contain some questions that seem similar to the MMPI. And I think there may be issues with those tests too and someday they may be tested in the court and we''ll see what happens. Next, we''re going to talk about fitness for duty tests and this is something which either someone is returning from leave or there''s reasons to think that they pose a direct threat or they''re having performance issues to see if they''re able to handle or if they''re fit for duty. In this Shannon case, an employer requested a mental health exam based on employee statements after a co-worker suicide and there was a strong dispute as to what the employee actually said. The plaintiff claimed he stated, "I thought his suicide was a waste of life and you would think that if things were bothering him that much, he would find other ways to deal with it and eliminate the problem." In contrast, the defendant claimed that the employee said, "What a waste of life. If someone was bothering me, I would go postal and that would solve the problem and I would laugh from my jail cell." As you see, obviously a strong factual dispute, whenever there''s a strong factual dispute it''s hard for a court to grant summary judgment in the case because factual disputes are something that juries need to resolve. And the court held that the mental fitness for duty exam may be required when an employee exhibits threatening behavior. So even though there was a dispute as to what the employee actually said, the courts had the employer based on what they thought he said, had a reasonable basis to request the exam. If the employee was later terminated because of what the exam showed, then that would be a separate issue. But in this case the court held the fitness for duty was proper based on the employer''s perception of what was said by the employee that it could be considered threatening behavior. The next case is Thomas versus Corwin which involved a fitness for duty for a juvenile police officer who went to the emergency room for an anxiety attack related to workplace stress and anxiety and this officer, she had a very difficult job. She worked with parents or guardians of troubled children, assisted the detectives, and worked in a backup capacity, and the court held that that fitness for duty in that exam based on the fact that she went to an emergency room for workplace stress, a fitness for duty was proper and the employer did have a job-related reason for seeking it. And sometimes this issue regarding conduct at the workplace versus conduct outside the workplace, but here because the emergency room visit was related to work, that wasn''t really as much an issue in this case. And the court held that the fitness for duty was proper based on her seeking treatment because of anxiety and stress that was work related. And the Menchaca versus Maricopa Community College case, a school counselor had a mental impairment due to a traumatic brain injury and traumatic brain injury is defined as some exterior force that causes a brain injury and you probably heard the statistics, it can come from a variety of ways, motorcycle accidents, et cetera, and a lot of returning service veterans are showing signs of having a traumatic brain injury. The counselor had a meeting with the supervisor and she was somewhat chastised and told the supervisor well, if you report me, I''m going to come back and kick your ass. I''m sorry for the language but that''s what she said. So a fitness for duty was required and she actually had to go to two fitness for duties, the first one was inconclusive but the second one showed narcissistic personality disorder and the doctor concluded the counselor was unable to function as a counselor opining that she lacked the empathy necessary to understand what the concern or trouble a student might feel, and also noting that she might get angry and give the student an explosive reaction totally out of context and much greater than the student would expect or deserve. And in this case the court held that the examinations themselves were lawful but when the counselor was terminated, the court disagreed with how--disagreed with the termination. So while giving the exam was not unlawful, the court ruled that terminating the school counselor based on the exam was in fact unlawful for two reasons. One, the employer did not sufficiently explore the possibility of reasonable accommodations and here the counselor suggested a job coach that if you think I''m having problems, then give me a job coach that can help me stay focused and on task and maintain my cool. And the school didn''t do that and for--to find someone not qualified, you have to make sure there are no reasonable combinations that will allow them to be qualified and the school missed that step. The second reason is a much more rare reason and really as far as I know only exist in the Ninth Circuit and Ninth--most places rule that conduct is conduct whether it comes from a disability or not, people have to comply with workplace rules have to be qualified to do their job. The Ninth Circuit has a different rule which says that conduct resulting from a disability is considered to be part of the disability and is not a separate basis for termination. So therefore the court ruled that the outburst was not a legitimate non-discriminatory reason for the termination. So for those two reasons although the exam itself was lawful terminating the counselor based on the exam was not found to be job related or consistent with business necessity. Next, we''re going to move on to an issue near and dear to a lot of employers and that involves drug tests. Generally, drug tests are not examination--not considered medical examinations but if the results are used to exclude someone then you move to a different provision of the ADA regarding selection criteria. And that says that employers cannot use qualification standards, employment tests or other selection criteria that screen out or tend to screen an individual with a disability unless the criteria is shown to be job related and consistent with business necessity for the position in question. And in addition, the employer must show that the criterion cannot be satisfied and the essential functions cannot be performed with reasonable accommodation. And throughout the slide you noticed we give links or not links but we provide information about EEOC guidance that may be relevant. And there''s also a series of legal briefs including one in invisible disabilities which I think will be distributed after the webinar that Equip for Equality wrote with--on behalf of the DBTAC Great Lakes ADA Center and that''s available on the website, on the Great Lakes website. So there are a lot of legal briefs as well on these various issues that will be helpful. So the first drug test case we''ll look at is Connolly versus First National Bank. In this case, the applicant took a legally prescribed controlled substance. He had a back condition and was given an epidural injection of phenobarbital. They failed the drug test and the individual said well, look, here is my doctor''s note. I have a prescription for it, it''s lawful, I can take this drug. The bank rescinded its job offer to the person and didn''t even open the envelope containing the documentation of the prescription. And the bank denied or I''m sorry, the courts denied the bank''s summary judgment motion saying that although pre-employment drug test do not rally the ADA testing for illegal drugs. When the tests cover legally prescribed drugs and are used to make employment decisions beyond the prohibition of illicit or illegal drug use, then those tests can violate the ADA. I think the caveat here for employers is if someone fails a drug test and they have information showing they''re taking the drugs legally, then I think that''s very relevant and should be looked at before making a decision to terminate the person. Another case on drug testing is Bates versus Dura Automotive Systems, and in this case it was several employees who had to submit to drug testing and this time it wasn''t an applicant, it was sitting employees but the employer had concerns about drug use in the workplace. And then after the drug testing, several employees were removed due to the use of the prescription drug. None of the employees were found to have recurrent disability although some did show a record of disability and the named plaintiff, Velma Sue Bates, did suffer or did have depression, bipolar disorder, back pain and attention deficit hyperactivity disorder. I think why the court said none of them had a current disability is because it was examining these conditions under the old ADA. I think under the ADA that''s amended, the conditions of Ms. Bates would be considered a disability. In this case also the employee submitted information showing they were on the drugs legally and they were able to do the job. And the question before the court was that the test unlawfully screen out a class of people with disabilities without showing the selection criteria was job related and consistent with business necessity. And the court held the test did unlawfully screen out people with disabilities. The employer''s policy was inflexible and they had to tend to screen out people with disabilities and that was the question that needed to be resolved at trial. And again this case points out the same point that if drugs are used legally, it''s probably not a basis for termination unless there are some other, you know, side effects from the medication that makes a person unable to do their job or something like that. And the court said and I''m sorry, going back, the court said in Bates. They described the policy as "utterly inflexible" and that combined with the tendency to screen out people with disabilities meant the case needed to go for trial and the employer could not win on summary judgment. Now we''re going to move on to limitations on seeking medical information. As you may recall from prior webinars EEOC says in response, for example to an accommodation request, employers can ask for limited medical information if the disability or need for accommodation is that apparent or if there''s a job-related reason to seek information from a sitting employee that is they are having performance issues or safety concerns then the employer can seek limited medical information. Generally, and we fought many of these cases, employers are not entitled to a general release for medical information, they''re not entitled to 10 years of medical records. It has to be very limited and very specific. In this case, a manager asks the employee, you know what''s wrong with you? You''re not performing well, what''s going on? And generally, we think it''s the best practice to throw out performance issues. The best thing for an employer to do is not to jump to a disability type of thing. Oh, is your depression acting up again or something like that. It''s best to say I''ve noticed you''re having performance problems, you''re missing deadlines when you never used to, you''re missing work when you used to have great attendance, is there any thing we can do to help, is there anything, you know, that can help you at work. And I think that''s a safer method than just to jump right through a disability connection. But in this case, the manager I think asks an open-ended question although wasn''t sure and the person responded by saying, oh I have depression. And you know, for people with invisible disabilities, disclosure''s a huge issue. You never have to disclose a disability unless or until you need a reasonable accommodation or if the employer''s seeking information for one of those job-related reasons. But here the employee disclosed and the employer immediately placed them on leave pending a medical review. And this case like the prior case, Menchaca, the court held the medical review was lawful because the depression was revealed and it might affect his job duties which involve working with heavy machines and things like that. The medical review was lawful but the employer when talking to the individual''s doctor asked the doctor to guarantee that no threat existed and the doctor said, well, his condition is stable. He''s qualified to do all the job functions, but you know, I can''t guarantee that no threat existed. You know, this is the real world. There are no guarantees. But the employer said oh, no guarantee, then he''s out the door and the court held no, you can''t insist that there be some type of guarantee that was not a job related consistent with business necessity-based reason. The lack of a guarantee of absolutely no threat as long as the medical information shows the person is stable and qualified to do the job, then that''s enough for them to keep the job. The next case Rivera vs. Smith a doctor at a hospital started stalking a nurse after she ended their romantic relationship and the hospital requested a psychological examination which the doctor refused to take, and he was terminated, and the court upheld the termination. The courts held that stalking was a job related reason to ask for the psychological exam and then in that case, the employee''s refusal to take it was ground for termination. So the tip for employees here is if there is a legitimate basis for an employer to seek more medical information, then the employee needs to comply with that. A couple more cases on this slide, we have the Wyland case. This involved medication that may affect an employee''s ability to drive and the court held that medical inquiries in that case were proper although I would assert that oftentimes it''s not driving that''s the essential function, it''s traveling. And in the Greene case, a waitress needed functional capacity evaluations when returning from leave and they made her undergo three. The third one was very strenuous. It included activities not related to her job. She refused to perform those activities and was terminated and the court held the employer could not insist that she perform activities unrelated to her job as part of the functional capacity evaluation. Again, it has to be job related consistent with business necessity. And I''m going to quickly go through some of the direct threat issues. The Chevron case we discussed before by the US Supreme Court. Plaintiff was offered a job contingent on passing a medical exam which revealed hepatitis C and the Supreme Court said that direct threat includes direct threat to self or others, and therefore, the employer was justified in not hiring that person. And there''s a note here, many cases with people with invisible disabilities seem to show stereotype. The employer learns of a disability and Barry will talk about a bunch of diabetes cases, and then the employer said oh, diabetes. Forget it. You can''t work here and you really need--the employers really need to do an individualized assessment and there''s a link to direct threat brief at the Great Lakes DBTAC. In this case we''ve talked about before so I''m going to go somewhat quickly. This was a pharmaceutical company chemist with mental illness who was terminated after failing to go for a fitness for duty and fitness for duty was requested because she began to engage in "strange behavior, having attention problem, a brief psychotic disorder, walking around like a zombie" and the court held while Merck the employer had the point of showing direct threat here was lawful as it were bona fide threats to employees'' safety which meant the business necessity element of the ADA and the request was based on an individualized assessment. The Darnell case and I''m going to go through this one quickly ''cause this is interesting, was someone with type 1 diabetes which he admitted was not under control and even though he had no episodes for his 10 months there, the physician said his diabetes was not under control. The employee admitted it. The risk of harm was significant and very likelihood. There was a reasonable medical certainty that Darnell would pass out on the job and the doctor said, "Sooner or later, he''s going to pass out." And the court noting that accommodations were considered by the doctor informing the opinion upheld a discharge, but another case of diabetes, Branham versus Snow, the same court, the Seventh Circuit, in the same year found that the person with type 1 diabetes was qualified to be an IRS investigator even though it required handling firearms, et cetera, because his condition was under control and he could do the job safely, and then the Kapache case. Here, the FBI claimed that the person''s type 1 diabetes was not under control, but the employee''s doctor said it was under control and he could use an insulin pen and the FBI doctor wanted him to use a pump instead of a pen, but the court said no. The employee showed enough to show you he was able to do the job. And then we have two other cases there, Rodriguez which involved uncontrolled type 2 diabetes which is significantly limiting, but the employer didn''t do the independent individualized assessment, and then Holiday versus Chattanooga, a police officer with HIV was denied a police job based on the "unsubstantiated and cursory medical opinion with no individualized assessment." And again, the EEOC guidance on direct threat needs to be looked at when looking at those situations. So now, hopefully, I didn''t take too much time. I''m going to turn it over to Barry to talk about confidentiality.
Thanks, Alan. We''re going to go ahead, just proceed, and try to get all the information out, and then save some time at the end for questions. Confidentiality is really a huge issue for people with invisible disabilities because a lot of people with invisible disabilities keeping their disability confidential and private is really important because there''s a lot of stigma that''s associated with certain disability such as mental illness, HIV, and epilepsy, and Congress obviously recognized this by building confidentiality into the ADA and the EEOC in its regulations and guidance. Next slide Okay. I''m going to keep going. I don''t see the next slide yet, but that might be my computer so we''re on slide 30? Okay. For some reason, I''m not seeing it and everybody else is. So I''ll just go ahead and proceed. So this is slide 30, the ADA Statute on Regulations on Confidentiality and as you''ll see, the ADA Statute specifically addresses this issue of confidentiality. And says that employers, when they collect disability right information, need to keep that information on separate forms and in separate medical files, and they do give some exceptions to that as far as managers and supervisors being able to know and other folks as well but generally, the rule is that this must be kept confidential, and there are regulations as well that set out different times this will apply like entrance examinations, job related and consistent business necessity exams like Alan talked about, and information for voluntary health programs. And then the EEOC guidance goes even further and says that confidentiality also applies to any type of medical information that''s voluntarily disclosed by an employee and we''ll talk about what voluntarily means and how other courts have reacted to the EEOC''s guidance. Okay. Again, I''m still seeing slide 30 so I''m just going to zoom, everybody''s on slide 31. What information is protected from disclosure? And here are examples of a few cases where this issue came up about what is protected and in the O''Neal case, the court said, it''s okay to disclose exam results that were given to the local pension board because in the way these folks were hired in this particular city. The pension board had to sign off on hiring process and so it was seen like they were decision makers and therefore, wasn''t an improper disclosure. And then the Cash case and the Grimsley case raised the issue of the voluntariness that I mentioned before. Remember, I said that the EEOC said that even voluntarily disclosed information about disability must be kept confidential, but a lot of the courts including these two cases said that if the employee voluntarily discloses their disability, in the first case it being diabetes and the second it being mental illness, that takes away the confidentiality requirements of the ADA, and so in both of those cases, the plaintiffs lost. Now, there aren''t many cases on these issue so you could argue that these cases may not have been correctly decided and we may see more cases, but these are a couple of examples where the EEOC guidance was not followed by the courts. Next slide okay, so, the Tucker case went differently though. This was a case involving somebody who had had some kind of medical condition that wasn''t disclosed in the case where they required some sort of corrective device and the employee, during a work-related physical examination disclosed the condition and subsequently, another company acquired this particular business, and for some reason after the employee injured her back, the new employer sent an email to all the employees worldwide disclosing the person''s medical condition and the corrective device, and also asserted that the recent injury was caused by her preexisting condition. This was all information that she thought should have been kept confidential and the court said that this was a different kind of case than the ones before that would allow the employee to continue with their claim under the ADA found that this was confidential medical information that should not have been disclosed, and I think, here, the extreme nature of disclosing worldwide this information certainly played a part in the court''s holding. Next slide. Now, people with disability would have a stronger claim if they can show that it''s not a voluntary disclosure and it''s work related. And here we have a case involving someone with HIV, EEOC versus Ford Motor Credit. And in this particular case, the person with HIV needed to take leave under the Family Medical Leave Act and disclosed his HIV status to his supervisor and wanted to keep the information private from everybody else. But the supervisor disclosed the condition to other coworkers and he filed soon under the ADA claiming a violation of the ADA''s confidentiality provisions. And the court agreed with the plaintiff here saying that the disclosure was not voluntary and it was job related. And therefore the employer had a strict responsibility to keep that information confidential. And the Doe case is very similar, another HIV case, where the person asked for FMLA leave and the court found that to be confidential. One thing to remember though when we''re talking about confidentiality, sometimes there is more than the ADA that employers need to consider. There may be HIPAA issues. There also may be state law confidentiality laws. So for instance here in Illinois, we have a specific law on AIDS confidentiality that would have applied to these two cases on this slide. Oftentimes states will also have confidentiality laws regarding mental illness and other disabilities as well. Next slide confidentiality can also come up when we''re talking about an accommodation that''s provided. The EEOC provides guidance to us that says the disclosure of reasonable accommodations usually amounts to disclosure with disability, right, because only people with disabilities are entitled to reasonable accommodations. So if you say, well this person has a reasonable accommodation, you''re inherently saying that they have some kind of disability. And the EEOC versus ESAB Group is an example of this where the employer posted a schedule to all the HR, human resources department figuring that they had a need to know as well as some supervisors that designated who was getting accommodations and who had a non-occupational disability. They''d literally wrote ADA and DIS next to the people''s names. Well, as you can imagine, even though it was supposed to be kept within this group, this information got out to other people. And an employee with diabetes who had been getting accommodations started getting harassed by his coworkers saying that he was getting preferential treatment. And it got pretty ugly. You can see here on the slide that they, the coworker referred to ADA designation as you know, I''ll just read it because this is what the language is on the case, the American Dickhead Association. So, obviously, not a lot of respect for the ADA and reasonable accommodation process here. And also a company nurse also disclosed the diabetes to a coworker. Despite all that information, the court said that this was not confidential information and therefore there wasn''t a violation of the ADA. The court disregarded the EEOC guidance and said, "If you look at the regulations of the ADA on this point, and this was back on slide 30, there''s really only three times when employers have to keep this confidential. Entrance exams, job-related and consistent with business necessity exams and information for voluntary health programs and so this court said reasonable accommodation isn''t one of those three categories. Therefore, it''s not required to keep it confidential. Now, even though the plaintiff lost in this case, I think, you know certainly this isn''t a best practice. You don''t want employees doing this kind of thing getting this kind of information. So, I would caution employers not to rely upon this case because even though the employer won this case, the best practice would be obviously to keep information including reasonable accommodation information confidential. Next slide the Ross case is another situation where information about the person''s accommodation was disclosed by a supervisor to another employee. This was a person who had a bipolar disorder and his accommodation was adjusted schedule. And for some reason the plaintiff here didn''t raise confidentiality, she made a claim of retaliation. And the employee then admitted that disclosure violated company policy but the court said despite that there was no evidence showing that the disclosure violated the ADA. They found that the disclosure was ill-mannered but nothing that--nothing in the ADA requires employers to keep reasonable accommodation information confidential so again another case where the court disregarded the views of the EEOC. Next slide not all cases go that way. There is another example here on the--that the EEOC brought against Teamsters Local 804 in New York. And this was a situation where the union official that was alleged to disclose a person''s HIV status to another coworker. What had happened was the coworker was trans--requested to transfer to another job as an accommodation and the employer felt that they had to tell the union why they were giving this person an accommodation because of the collective bargaining agreement. And then it was alleged that once the union got that information they disclosed this to another employee and disclosed the person''s HIV status which was not public at the time. And the court here said that the plaintiff could continue with the case because there were questions as to whether or not this was an improper disclosure under the ADA. But I think this is an important issue to look at as far as third parties confidentiality duties. The EEOC takes the position that if an employer discloses the information to a third party, especially one that would be involved in workplace decisions like a union, then they have the same requirement of confidentiality that the employer would have. Obviously, the union argued otherwise and the court didn''t decide this issue ultimately. They just let the case go on. But, I think it''s an important thing for employers as well as those receiving information from employers to think about possible liability regarding confidentiality and how that duty may transfer to a third party. Next slide so, I mentioned before the need to know that''s oftentimes an issue, you know who needs to know this information. Usually it''s limited to supervisors. The Medlin case out of New York involved a person who had a back condition and was sent for a functional capacity evaluation and the information about his evaluation got to a coworker. In fact, the coworker told him about the results of the examination before he even heard it from the doctor or the supervisor and so he sued under the ADA saying that this was a violation of his confidentiality rights. And the courts said that there was, you know, a possibility that was an ADA violation and let the case continue. It was unclear whether or not the person who had been disclosed this information did have a need to know. Again, usually, it was for supervisors and was a little vague in this case where the person who had gotten this information was classified. And so one thing employers may want to think about is really making it clear who is considered the supervisor who has a need to know and then stick with that once you''ve made those decisions and I think, of course, it would be much more differential to employers. Next case many employers find it really challenging to keep disability related information confidential and the reasonable accommodation context. The reason is, is because oftentimes employees who don''t know that is a reasonable accommodation perceive that the person with the disability is getting some sort of special treatment and they don''t understand why, you know, so and so gets to live earlier, so and so doesn''t have to do this, and oftentimes it''s because the person has a disability that''s not apparent and they''re getting an accommodation which hasn''t been disclosed and so employers still really, like this is a real challenge for them in trying to navigate this issue. And the Williams case is an example of what the EEOC says to do in this kind of dilemma. And you will see here in the slide it says the employer might explain that it has a policy of assisting any employee who encounters difficulties in the workplace and that many of the issues are personal and that it''s an employer''s policy to respect employee privacy. And so that''s what the EEOC recommends employers say when people say why is the person getting preferential treatment than instead of saying well, we''re giving it to them because they have a disability and they are entitled to reasonable accommodation, that they make a broader statement about assisting people with difficulties in the workplace and keeping employee information private. Whether that''s, you know, the best way to address it, I don''t know. It''s a really counting situation and certainly employers should try this as opposed to disclosing the information. But certainly it''s not the easiest thing to navigate because of the two sort of competing issues. The Dozbush case is a little bit of a twist on that, another EEOC case. And here the EEOC made clear that you know disclosing a person, an employee''s diagnosis or symptoms, those have to be kept confidential. But the EEOC did say that you can tell other employees that the reason they''re not doing something is because they''re medically disqualified. And the EEOC believes that this is different, this is really a disclosure of work status and not really a specific disclosure of disability. So that may be another thing that employers may want to consider. I''m not sure I see much of a difference between saying somebody is medically disqualified and somebody has a disability. But the position the EEOC has that this is a broader classification than somebody just having a disability. Okay. So, we should be on slide 39. Again, I can''t see the slides but I''m hoping that''s where we are. The confidentiality of medical information from doctors, the EEOC gives guidance on this issue as well, that employers can''t just go straight to a doctor to get the information that they can''t get directly from the individual. They still have to get a release from the individual to get this information. And many people think its better both for the employee and the employer for the employee to go directly to the doctor and get this information rather than the employer getting in the middle of it all. But, if the employer does want to get that information, certainly the employer needs to get a release from the employee. But the general, you know, belief is the fact that the information is from the doctor instead of the person with the disability is not relevant and still considered confidential information and you see a link there to the EEOC guidance on this issue. So moving onto the next slide, for the cases that interpret this issue you have the Barger case out of Idaho and this was a situation where an employee had stress-related issues related to his anxiety, apparently a mental illness that had not necessarily been diagnosed. And the employer recognized the stress that the person was going through and so they sent the employee to the employee assistance program that they had a doctor there. And the doctor ultimately recommended that the employee be discharged because of the problematic aspects that were happening in the workplace and didn''t see that anything was going to change. And after being discharged the employee claimed that the employer violated the ADA when the company doctor disclosed the information to this personnel action advisory group. And the court said, well first of all, they didn''t disclose disability information just objective observations about the person''s behavior like that they had a very explosive temperament and had maybe sort of an outstanding over inflated view of themselves. But also they were disclosing it to a group that the court found--felt within that need to know category that we talked about before and that exception applied here and so it was not a violation of the ADA. Next slide so, a case going the other way, the Fleming case again out New York raises another sort of interesting issue about third parties. This involved a doctor who was during his residency had sickle cell anemia and he disclosed it to the director of his residency program. And then several years later when he was applying for a job post residency, the potential employer called the residency director for a reference check and said you know, I noticed this person, you know, hospitalized or they have that information and wanted more information. And the residency director disclosed that the doctor had sickle cell anemia. And so the doctor ended up suing not only the perspective employer but also the director of the residency program who gave that information. And ultimately the court found that the confidentiality provisions were violated by the residency director here. And it was really in response to a medical inquiry that violated the ADA. So the fact that the information was provided through a reference check still could fall within the provisions of the ADA. And so, one of the main tips I would say that this case provides is that employers need to train staff not only about how they handle confidentiality of current employees but also how to handle the confidentiality of past employees when they get reference checks. And at least under Fleming case, you would--there is a strong argument that the confidentiality requirements are the same for current employees and past employees where there are reference checks involved, so an important thing to keep in mind. Next slide so we''re moving now to another area which is the concept of employers having to know about the disability before the ADA violation can be involved and this sounds sort of basic but there''s been a lot of cases on this issue. I mean the general rule is obviously employers can''t be held liable under the ADA if they''re not aware of a disability and so for people with invisible disabilities, this is really a core issue because many people can, you know, live their lives and work in the workplace without somebody knowing their disability. But when there comes a time where the person needs an accommodation and that kind of thing, then there is the issue of disclosing the disability and that''s where the issues of knowledge of disability can come up. So, there is a real tension sometimes between the confidentiality rights that people with disabilities have the right not to disclose. And the assistance that some people with disabilities need in a workplace which does require disclosure of the disability in order to kick in the reasonable accommodation requirements under the ADA. So we''re now on slide 43, invisible disabilities and the Cordoba case and this was a situation where the employee had requested reduced hours. It was--she had some heart palpitations and ultimately was diagnosed with a congenital cardiac condition. But the court found that she did not have an ADA case because the employer did not have any actual knowledge of the disability. And she couldn''t show that there was actual knowledge and this is a case where the court really talks about what invisible disability is and that many times disability is as they say generally invisible to the naked eye. And so what this case talks about is how important it is for plaintiffs if you do need an accommodation to be very clear with your employer that the request you''re making isn''t just some sort of favor in the workplace. But it''s because you have a disability and you need some sort of change. The plaintiff here had argued that she had talked to other employees, her direct supervisor that she knew this accommodation. But the court said that those were considered low-level employees and even though it was the person''s supervisor, because that person wasn''t a corporate decision maker they would not impute that knowledge to the ultimate person who made the decision to terminate her because of her bad attendance and performance issues. I think this is a case where employers need to be careful not to rely on it too carefully ''cause I think other courts might say that a direct supervisor even if not considered a corporate decision maker might be enough to impute knowledge to the employer if they learn of the person''s disability. So, obviously people with disabilities need to give that information to the corporate decision maker if they can, but in some situations because there are so many different levels, you just would tell it to your direct supervisor. And in some cases courts have said that''s enough, other courts, like in this case, have said it''s not enough. Moving on to the next case, the Rask case on slide 44. This was somebody who had depression and let her employer know that she was having problems and she might miss a day here and there because of it. She was subsequently terminated for attendance problems and sued for failure to accommodate. And the court said that''s not enough information to tell the employer that you have a disability saying that you''re having problems and might miss some days, gave them no notice that she actually had a disability and so the employer was not held liable. One thing that you note at the bottom here, the court said that the plaintiff has to go even beyond identifying diagnosis if it''s not readily apparent. But also talk about their symptoms and the accommodations that we need to address the disability. So, this court at least places a pretty high burden on the employee to give the information to the employer in order to get protections under the ADA. Next slide 45 is just three examples where the court found that there wasn''t sufficient information to trigger the ADA''s protection. The Smith case, the person just said they had leg pain and couldn''t stand on it much longer, court said that''s not enough to show that the person has a disability and they need an accommodation. The Burkhart case, the person said that they had some sort of mental illness stress related disability and the court said that wasn''t enough to put the defendant on notice that they had posttraumatic stress disorder. I think other courts might disagree because they do use the word disability but this court said that wasn''t enough ''cause it wasn''t specific enough from the diagnosis. And then the last case, the person just said I got to leave right away but didn''t mention that she had to leave because of her bipolar condition and the court said that''s clearly not enough to put the employer on notice. Next slide on 46 there are actually three more examples of people not giving enough information to the employer to put the employer on notice. Those are pretty repetitive so why don''t we skip to save time and go to the next slide. So we''re on slide 47, the Boice case. And these are cases where the court went the other way and found that there was enough information to the employer to put them on notice and these are a little bit different because these are cases in which the employer knows about the disability. And the question is whether they really understood that the person wanted an accommodation. So in the Boise case, the person asked to have--be on a different shift for their diabetes and a closer parking spot and the employer claimed well, we knew about the diabetes but we didn''t understand there was a link between the diabetes and the need for the shift change. And so we shouldn''t be held liable and the court said, yeah, you should. You should have been able to put two and two together. And the Bultemeyer case is the same way where the employer knew about the person''s mental illness and when they requested a less stressful environment, the court said you should have understood that they wanted a reassignment to a different position and the employer was held liable there. So the tip for the employers is that if it is unclear whether there is an accommodation being requested or the medical information is vague or contradictory, they should feel like they can go ahead and ask for additional information to make it clear. And the tip for employees here is to identify the specific limitations and accommodations if at all possible. Okay, the next case, the Taylor case we talked about actually in our last webinar and so basically I won''t go into a lot of detail with this case but we just wanted to point this out. It''s a case involving making sure that an employer once they get information from a doctor that shows that an accommodation is absolutely medically necessary that they take that seriously. Here, the employer received information that the person needed to be moved to a different classroom with light because of their mental illness of seasonal affective disorder. And then employer basically blew off that and the court said you know, while employers don''t have to be mind readers or intuitive about what the connection is, they do once they have good solid information from a doctor act appropriately. And so they had a different obligation once they found out the accommodation was actually medically necessary and not more for preference for the person with the disability. Okay, Alan, if we could just skip. I think a lot of these next cases are repetitive. If we could skip to slide 52 the Trafton case we wanted to tell you about this case ''cause it''s a little bit different scenario. The ADA not only covers actual disabilities but also will cover discrimination based on record of disability. So, somebody has a history of being substantially limited in major life activity, they can be covered by the ADA as well. And in this case the person was terminated and she claimed that she was terminated not because she had a current disability but because of her record of having past depression and posttraumatic stress disorder and the employer had made a lot of comments in the workplace that she said showed that the employer knew she had a disability and that she had mental illness. They said that, you know, the job was too much for her, that she was unstable, she tends to get out of control and she also said that she had visible scars on her arms from suicide attempts. But on the next slide you''ll see the court said that, you know that isn''t enough to put the employer on notice and there was no actual knowledge that showed that the employer knew that she had this record of a disability. She had received treatment from a company physician but there was no evidence that the physician had ever informed the employer of her disability and so ultimately, she was found not to be able to bring a claim on disclosure of her record of disability. So, that leaves us to our last category which is disability harassment, slide 54. Again, unfortunately, I cannot see the slide so I don''t know if we''re there or not. So, in slide 54, you''ll see that there''s a picture of Mark Weber, his book Disability Harassment and for anybody who''s interested in disability harassment issues, this is an outstanding text and it''s one I would recommend that really goes into a lot of detail in the cases. There''s also a previous brief that we did that''s on the adagreatlakes.org website under the publication section that goes into more detail in disability harassment as well as the brief that you''ll be receiving. So, disability harassment, next slide please, is something that has not been addressed by the supreme court yet but harassment has been recognized under title 7 for racial harassment and sex harassment and all the lower courts that have looked at this issue have found that disability harassment is covered within the discrimination prohibiting terms and conditions and privileges of employment. So even though the supreme court hasn''t spoken on this issue yet, it''s certainly, the lower courts are finding that disability harassment is recognized under the ADA and this issue is really important for people with invisible disabilities because so many harassment cases involve people with invisible disabilities often because of the stigma that arises from mental illness or epilepsy as Alan alluded to and so often the claim of a confidentiality breach becomes so extreme that it rises at the level of disability harassment. And then on slide 56, it lays out the different requirements for harassment. The person has to show that they''re qualified person with the disability, that they''re subjected to unwelcomed harassment, that the harassment was based on the plaintiff''s disability and then the most important factor, number 4, that the harassment was sufficiently severe or pervasive to alter that term, condition or privilege in employment. And then you have to have some sort of nexus, some sort of factual basis to show that the employer knew or should have known of the harassment and failed to do anything about it. But really factor 4 here is the hardest one for employees to prove that the harassment was severe and pervasive enough to rise the level of discrimination. So, real quickly I''m just going to go through a few cases that talk about what is considered severe and pervasive. So, we should be on slide 57, the Flowers case. And this is an older case. It was actually one of the first major cases to recognize disability harassment as a cause of action on the ADA. And this case involved a woman who was good friends with her supervisor but once she disclosed that she had HIV, the supervisor''s treatment of her changed dramatically. They stopped socializing, that her supervisor, you know, wouldn''t even shake her hand, real extreme kind of things going on and then once she was disclosing her disability she had all of a sudden had four random drug tests within a week and you know a couple of years before she''d only had one random drug test all over that whole period, so some real change in behavior as a result of her disclosure of HIV. And so she sued not only for termination but also for disability harassment and the court ultimate found in her favor and found that it was severe and pervasive enough to be considered disability harassment. However, next slide please these cases usually are very hard for plaintiffs to win. That''s a case where the plaintiff won but the next case, slide 58, Shaver''s case although it had very extreme facts the court found was not severe and pervasive. This is a case involving a gentleman with epilepsy who because of his epilepsy had had part of his brain removed and replaced with a metal plate and this was something that was learned by his coworkers that was disclosed by his supervisor and all of a sudden the supervisor and the coworkers were calling him plate head and stupid and not playing with a full deck. And they actually called him plate head instead of using his own name and he sued for disability harassment and the court said that it wasn''t severe and pervasive enough. They said this was just a nickname and that while the conduct was rude and abrasive, it didn''t rise to the level of being severe and pervasive. And therefore, the disclosure did not rise to a level of a hostile work environment. It''s hard for me to imagine something that could be much more hostile than calling somebody plate head everyday but that''s the way the court went in this particular case. The next case is on page 59, you''ll see a couple more examples where they found it wasn''t severe and pervasive enough, a gentleman with HIV who was harassed, he was moved to a different shift. There were statements that people with AIDS are getting what they deserve and the court found that was not harassment. That was religious teasing and didn''t rise to the level of being severe and pervasive. And another case, the Ferraro case, involving a woman with breast cancer who felt like she was being harassed in the workplace and the court found that while the supervisor was certainly not kind to her it wasn''t motivated by discrimination. One thing that the Ferraro case points out that''s not on the slide is that once the harassment was complained about and known by the employer, the employer took immediate action to remedy it and so that goes that fifth factor that we talked about that whether the employer addresses the issue or not. And here the employer addressed and I think that undercut the plaintiff''s claim here. And just a couple of final cases on slide 60 where the employee was able to prove that it was severe and pervasive enough, the Quiles-Quiles case involving a person with depression who ultimately was hospitalized because he had gotten so much harassment in the workplace. He''d been called crazy and it was interesting the employer said, you know, this is a situation where boys will be boys and it''s a blue collar workplace and people call each other all kinds of things and the court said no, that''s, you know, this person ended up going to the hospital as a result of all the treatment he had in the workplace and so therefore he was able to proceed with his harassment claim. The Luby''s case is another example where a person, this person had intellectual disabilities and was called all kinds of names and even had some physical violence in the workplace by the supervisor as well the coworkers and the courts here said, you know, the employer was aware of the disability, they actually participate in some of the harassing conduct, failed to address it and therefore it was enough to move forth with the case. And then the final case is another case with very extreme situation but the plaintiff own, the--on slide 61, Arrieta-Colon. This was a case involving a gentlemen who had what''s called Peyronie''s disease and that''s a disease where you can''t have sexual intercourse and so he had gotten penile implant and his employer learned of the penile implant and disclosed that to other people within the workplace and he got teased, not just teased, harassed mercilessly by not only his coworkers but by his employer as well. They even talked about his penile implant over the pager system. I mean just really extreme stuff. And here again the coworkers said the supervisors knew about the harassment and failed to do anything about it and had disclosed this information without the employee''s consent and so here the court said that there was sufficient evidence of harassment. So we have a few practice tips and we''ll open up for questions on page, slide 63. Generally, employers should do as much ADA training as possible, especially when you have new hires to make sure they''re aware of their responsibilities under the ADA like when they do these kinds of reference checks that I mentioned in one of those cases. Also important for the employer to engage in interactive process once invisible disability is disclosed by the employee its important to have policies in place as well as to enforce those policies on reasonable accommodation, confidentiality, harassment and retaliation. Critical also for the employer is to document everything that happens and remember to keep that documentation in a separate medical file. And to use objective evidence when you''re doing direct threat offenses that Alan talked about. And then finally, employers need to act quickly when any kind of harassment complaints are raised in the workplace. And then some tips for employees sort of balancing those confidentiality concerns, knowing as an employee with an invisible disability, you don''t have to disclose that information to your employer either in the hiring process or when you''re on the job. But if you get in a situation where it looks like you may not be able to do the essential function of the job without an accommodation, you may have to disclose that disability and the need for an accommodation to the employer if that''s not an apparent disability or an apparent accommodation. So, that''s really a personal decision that employees have to make themselves when they have to make the disclosure but know that they don''t have to if they don''t feel like it''s appropriate. Employees should also document everything. Keep contemporaneous records about their accommodation requests, any medical disclosures, and any harassment. They should follow procedures if there''s an internal procedure for harassment or accommodations go through that. They should provide the medical information when it''s appropriate. If they withhold that medical information, usually employees lose. And if possible, the employee should work with a doctor directly as opposed to have the employer do that and that''s when a lot of these confidentiality problems can arise. And then on the next slide, 65, we got some disability specific resources for people who have particular invisible disabilities like the Epilepsy Foundation, American Diabetes Association, and the National Alliance for Mental Illness, American Cancer Society and also some resources for people with HIV and AIDS through the Centers for Disease Control. And in the next slide, we just have our more general ADA resources, national ADA, DBTACs, as well as the Great Lakes DBTAC, Equip for Equality, for Job Accommodation Network and the EEOC, all those resources are there. So, that''s the end of our presentation. We''ll open up for questions. We just want to remind people that we do have another session coming up in August where we''ll be talking about the EEOC and the ADA and then just the last slide, we can leave this on, is that there is an evaluation form that Robin mentioned to you that you''ll be getting emailed to you and it really is very helpful both for the Great Lakes DBTAC as well as Alan and I to get your feedback and learn about what information is useful to you and any changes or suggestions you might have for future presentation. So with that, I''ll turn over to Robin for questions.
Great. And addressed to everybody, the text area is now open. I see we already have somebody who submitted their question or has a question that''s shown up here so at this point we will entertain your questions and go ahead and type them into the chat area and our speakers will review them and respond accordingly. So, either Alan or Barry, you want to take your first question here?
Alright, this is Alan. I''ll take this one and Barry, please feel free to add anything. What we often advise people going through drug screening is to contact their doctor and they''re also able to get information from the employer regarding what lab will be doing the screening. And often we''ll be able to have the doctor contact the lab directly and offer what medication is prescribed and then what the lab can do is submit information to the employer saying there were no unlawful substances that are being used without a prescription. I''m sorry and that''s probably the only way to do it without revealing the person''s disability. If the employer does know that the person is on Adderall and then asked then I think they''ll need something from the doctor saying, you know, that they''re able to do the essential functions of the job, et cetera, but going, finding out the lab and then having the doctor contact them is something we''ve recommended.
And in answering Gary''s question, yes, we do have experience in transportation. We''ve actually brought some ADA litigation on transportation in the Chicago area. That''s not related to this particular webinar so if you want to talk to us about transportation, feel free to contact us at the information listed on the slide.
And regarding Bob''s question does the EEOC deal with the conflict between ADA''s right not to disclose and Department of Transportation requirements. There''s actually a provision in the ADA. I think it''s the regulation so maybe in the statute saying that if other regulations, federal regulations are not necessarily superseded by the ADA and there''s been big issues in the Department of Transportation ''cause they have limits in terms of driving trucks over 10,000 pounds for example and generally, the Department of Transportation regulations have been upheld even if they seem to conflict with the ADA. The one exception has been where an employers use DOT regulations for something that doesn''t apply so if they use regulations regarding trucks weighing over 10,000 pounds and apply it to someone who''s driving a truck weighing less than 10,000 pounds then the ADA might supersede the DOT, Department of Transportation regulation.
Okay, Barry, we have a question. I think I just want to clarify for people that Trina did indicate that JAN''s website has changed and their address now is askjan.org. So for people who need to--the old still works but that''s their new address that they have now, so.
Thank you for that update. Sorry about using the old address. The statute of limitation on ADA claims generally follows--it varies state by state ''cause there''s nothing listed and generally it follows the personal injury statute in the state. But for employment claims, it''s different. You have 180 days to file with either your state, human rights commission, or if there is a state human rights commission and you have, it expands to 300 days to file with the EEOC. So, for employment cases there is that strict 180 days or 300 days statute there for filing with an agency like the EEOC or comparable state agency not necessarily in federal court. She also was talking about schedule A, schedule A, generally have to disclose just to be considered under schedule A ''cause that''s the only way you can qualify. It says here that the supervisor would know about this. Generally, it''s best to keep that separate and that''s why the people doing the schedule A managers generally shouldn''t disclose the disability I think to the manager. So it is possible that if the disclosure to this hiring manager is legitimate but the disclosure then to the direct supervisor would have to fit in to the need to know exception, I believe, under confidentiality. John has a question about treating different people with different disabilities differently and you know it''s hard to give a precise question to that. Oftentimes you want to have to look at the person''s particular job functions, what their disability is, what the accommodation request is, what the doctors says they need. So, generally employers should be consistent with how they provide accommodations to people with different types of disabilities but I wouldn''t say that they have to be exactly the same because there can be so many other variables at play.
Barry and Alan, there were some earlier questions that I''m not sure that you met or looked at. Specifically, you have one that says what accommodation related to a participation at clinical experience is part of a radiology degree program be dealt with in similar fashion to employment cases or would that be dealt with differently as part of the educational program.
I think generally that would be considered something under title 3 not necessarily employment situation. I mean sometimes clinical programs can--people can be treated as employees but in many cases you know, they''re not, maybe they''re deemed contractors but whether it''s title 1 or title 3, there would be a requirement to provide some sort of accommodation as well or modification to a policy and the confidentiality provisions have been recognized to apply not just in title 1 but throughout the ADA.
And one thing that I want to add too. Generally, the confidentiality provisions are only found in title 1 and I think some courts have found similar requirements under title 3 but I don''t think I can say that it''s explicit under the other titles of the ADA other than title 1. And the ADA law, how does it work in the right to work state? I''m not quite sure how to answer that. I know it still applies. We always hear in the, you know, employment at will states and the ADA does still apply. That''s a limit on employment for termination at will but I''m not sure about the right to work states so, Barry, do you have anything?
I don''t have any information on that as well, sorry.
There''s also a question that somebody was asking related to one of the cases and I can''t remember the name off the top of my head. The case that you discussed of the officer in the ER, that had an ER visit and the employer knew about the ER visit. They''re asking about how did the employer know about the ER visit and I don''t know if you saw that particular question Barry and Alan. It was an earlier one right after the right to work state question.
I didn''t see that question. Thanks, Robin. It''s hard ''cause as they come up, it all scrolls up so we''re missing some questions. And I don''t recall that being discussed in the opinion. I can track--again, if the person wants to email me directly, my email is alan@equipforequality.org I''ll take another look at the case. I have a feeling that it might have just been through talking in the workplace. I''m not sure whether the ER disclosed and you''re right that would be HIPAA violations or possibly state law violations. We had one case here where a coworker was related to a doctor who someone saw and then the doctor revealed the information to the relative who''s the coworker and we thought that certainly raised HIPAA concerns. But you''re right, if it came from the ER to the employer, there''s definitely HIPAA issues involved and I can double check the case, so please email me and I''ll do that.
And I just wanted to respond to people about the archive issue. Yes, all sessions are archived including the materials, the briefs and handouts and things that are part of that session, so you can got to the www.ada-audio.org website and go to the legal webinar series in the archives and you''ll be able to access all previous sessions as well as the materials that were used that''s part of that session. I''m just going to try to see and make sure that we got any of the questions or got all of the questions that had been submitted here. Barry and Alan, are you tracking them as well?
Yeah, I tried to look at them all. I didn''t see that we missed any but we might have missed some. I''m not sure.
Okay, anyway, we are at the bottom of the hour. Oh, I guess we have one more question to take before we sign off. Getting back to the medically disqualified, why didn''t they say disqualified instead of medically? That''s for Barry or Alan.
John, I think that''s a much better way to do it is to say they were disqualified as opposed to medically disqualified ''cause that raises more of an application of disability, so like I said, I didn''t see a real difference between medically disqualified and disability and saying disqualified for a variety of reasons with little and more vague and provide more confidentiality protections for the person with the disability so, I think that''s a great suggestion.
I do want to thank Peter--Alan and Barry for their presentation today. I do see we have a couple of other questions. I''m going to ask Barry and Alan to give their contact information out if they--people would like to ''cause we could probably keep going and going and going but we are at the bottom of the hour. I do want to respect people''s time relationship to the webinar series. We do invite you back to join us on August 4th 2010 for the EEOC and the ADA webinar program. And again, the archive of this session will be up within the next 10 business days with all of the recording, transcript and everything for you to be able to refer back to. As Barry had indicated, we do remind you to fill out the evaluation form. It does give us feedback to help us improve and enhance the program and you''ll also get your materials emailed to you along with the link to the evaluation. So again, thank you Barry, thank you Alan, for your time and I hope everyone has a great day today and thank you for joining us. Thank you very much. Take care.