Genetic Discrimination - Job Accommodation Network

JAN welcomes Jeanne Goldberg, Senior Attorney Advisor,
from the U.S. Equal Employment Opportunity Commission.
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
ADA Update
Quick Recap: Basic ADA Provisions That
Apply to Individuals with Disabilities
 No disparate treatment (actions based on disability
permissible if individual not qualified or poses direct
threat to safety)
 No use of qualification standards that screen out
based on disability unless job-related and consistent
with business necessity
 No harassment
 No denial of reasonable accommodation absent
undue hardship
ADA Update
Quick Recap: Basic ADA Provisions That
Apply to Individuals with Disabilities
 No Retaliation
 No Improper Disability-Related Inquiries or Medical
 No Improper Disclosure of Confidential Medical
ADA Update
Does the Individual Have a Substantially
Limiting Impairment?
When considering if an individual who has requested
accommodation has or had an impairment that
“substantially limits a major life activity,” remember
the changes made by the ADA Amendments Act of
2008 (ADAAA).
ADAAA: The definition of disability “shall be
construed in favor of broad coverage” and “should
not demand extensive analysis.”
Definition is much easier to meet.
ADA Update
When it enacted the ADAAA, Congress made
4 changes to “substantially limited in a major
life activity”:
Need not prevent, or significantly or severely restrict,
a major life activity
Major life activities include “major bodily functions”
Ameliorative effects of mitigating measures not
Impairments that are “episodic” or “in remission” are
substantially limiting if they would be when active
ADA Update
EEOC Notice of Rights Under the ADA
Amendments Act of 2008 (ADAAA):
ADA Update
How have courts been interpreting and
applying the ADAAA?
For the most part, courts are applying the ADAAA to
easily find that individuals with a wide range of
conditions previously unprotected now meet the
“substantially limited” standard.
The turn-around in the case law is especially notable
with respect to cancer, as well as HIV, multiple
sclerosis, diabetes, and psychiatric conditions.
ADA Update
Recent Examples of Disability Coverage
Under ADAAA Standards
Diabetes: Willoughby v. Connecticut Container Corp.,
2013 WL 6198210 (D. Conn. Nov. 27, 2013). Citing 29
C.F.R. § 1630.2(j)(3)(iii): “diabetes substantially limits
endocrine function,” an example of impairments that
“should easily be concluded” to meet disability definition;
testimony and medical documentation established
symptoms and complications, and medication regimen
ADA Update
Recent Examples of Disability Coverage
Under ADAAA Standards, cont.
Cancer: Haley v. Community Mercy Health Partners,
2013 WL 322493 (S.D. Ohio Jan. 28, 2013). Six-week
absence for cancer surgery and recuperation; “when
active,” the cancer substantially limited major life
activities of “normal cell growth”
Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d
1173 (E.D. Tex. 2011). “Cancer at any stage
‘substantially limits’ the ‘major life activity’ of ‘normal cell
ADA Update
More Examples – New Rules Applied
Gogos v. AMS Mechanical Systems, Inc.,
737 F.3d 1170 (7th Cir. 2013)
Court applies new rules re: major bodily functions,
“episodic or in remission,” and mitigating measures
Chronic high blood pressure, which caused vision
loss for several minutes when it spiked, could
substantially limit circulatory function or eyesight
“when active”
Moreover, Plaintiff’s chronic high blood pressure
could be substantially limiting even if due to the
benefits of medication, he had never experienced
any substantial limitation
ADA Update
“Temporary” Impairments
Summers v. Altarum Institute, Corp.,
740 F.3d 325 (4th Cir. 2014)
 Plaintiff fractured his left leg, tore a tendon in his
left knee, fractured his right ankle, and ruptured
a tendon in his right leg. Following two
surgeries, his doctors restricted him from putting
any weight on his left leg for six weeks, and
estimated that he would not be able to walk
normally for at least seven months
 District court: too temporary to be substantially
ADA Update
“Temporary” Impairments, cont.
Summers v. Altarum Institute, Corp.,
740 F.3d 325 (4th Cir. 2014)
Fourth Circuit reversed: under ADAAA, even
“temporary” impairments may be substantially limiting
“effects of an impairment lasting or expected to last
fewer than six months can be substantially limiting”
29 C.F.R. § 1630.2j)(1)(ix)
Duration of an impairment is relevant, but not
ADA Update
Substantially Limited – Pain During MLAs
Mazzeo v. Color Resolutions Int'l, LLC,
746 F.3d 1264 (11th Cir. 2014)
 Herniated disc and resulting pain—which had lasted for
years and was serious enough to require surgery—
substantially limited plaintiff’s ability to walk, bend, sleep,
and lift more than ten pounds
 Relevant facts may include: difficulty, effort, or time
required to perform the major life activity; pain experienced
while performing it; length of time, or the extent to which, it
can be performed; effect on the operation of a major bodily
function, etc.
 See also Barlow v. Walgreen, 2012 WL 868807 (M.D. Fla.
March 14, 2012) (back impairments could be shown to
substantially limit musculoskeletal function).
ADA Update
Substantially Limited – Pain During MLAs
Eastman v. Research Pharmaceuticals, Inc., 2013 WL
3949236 (E.D. Pa. Aug. 1, 2013) (herniated disc and
related impairments)
 Citing 29 C.F.R. § 1630.2(j)(4)(iii): “the focus is on
how a major life activity is substantially limited, and
not on what outcomes an individual can achieve.”
Held: “although plaintiff may have been able to drive
and work, plaintiff put forth evidence from which a fact
finder could reasonably conclude that these activities
were more difficult for her as compared to most
people in the general population because they caused
her significant pain”
ADA Update
Supporting Medical Information
When and how much medical information can the
employer ask for in support of an
accommodation request? ADAAA has not
changed the rule:
If not obvious or already known, an employer may obtain
reasonable documentation that an employee has a
disability and needs the accommodation requested.
ADA Update
Supporting Medical Information
Employer may ask employee to obtain the supporting
medical information from employee’s treating health
care provider, or ask employee to sign limited release
allowing employer to contact the health care provider
For example, employer might seek to verify diagnosis
and limitations, follow up to clarify limitations as well
as what accommodation might be effective, and for
how long it may be needed.
ADA Update
Effect of Genetic Information
Nondiscrimination Act (GINA) on Employer
Requests for Medical Documentation
Title II of GINA prohibits employers from requesting,
requiring, or purchasing genetic information (which
includes family medical history) of applicants and
Inadvertent acquisition of genetic information does
not violate Title II of GINA
When employer requests medical documentation to
support accommodation, it should warn not to
provide genetic information. If it does so, any receipt
of genetic information by the employer will be
deemed inadvertent.
ADA Update
Genetic Information Non-Discrimination Act
(GINA) – EEOC Settlements
Post-offer medical exams may comply with the ADA
but nevertheless violate GINA if genetic information
is requested by employer or its contract physician
EEOC v. Founders Pavilion, Inc., Case No. 13-cv06250 (W.D.N.Y. consent decree entered Jan. 13,
2014) (EEOC alleged nursing and rehabilitation
center requested family medical history in post-offer
medical exams in violation of GINA, and also
rescinded offers in violation of the ADA; systemic
case resolved for $370,000 and other relief for 138
ADA Update
Genetic Information Non-Discrimination Act
(GINA) – EEOC Settlements, cont.
EEOC v. Fabricut, Inc., Case No. 13-CV-248-CVEPJC (N.D. Okla. consent decree May 7, 2013)
(EEOC alleged that contract medical examiner
requested family medical history in post-offer medical
exam in violation of GINA; case settled for $50,000)
ADA Update
Examples of Common Accommodations
physical modifications to building or workspace;
sign language interpreters and readers;
assistive technology and modification of equipment
and devices;
modified work schedules;
making exceptions to policies;
job restructuring (swap/eliminate marginal functions);
changing supervisory methods;
allowing a job coach to participate;
reassignment to a vacant position.
ADA Update
What if Employee Asks for Poor Performance
or Misconduct to Be Excused as an
Employer is NOT required to lower production or
performance standards, or to modify performance
appraisal, as an accommodation
Employer is NOT required to excuse violations of
uniformly-applied conduct rules that are job related
and consistent with business necessity
ADA Update
Performance and Conduct, cont.
But if employee who requests accommodation has a
substantially limiting impairment and will continue to
be employed (i.e., result of poor appraisal or
discipline is not termination), the employer must offer
an alternative prospective accommodation, if
available, absent undue hardship.
ADA Update
Performance and Conduct, cont.
Is there something that can assist the employee to
meet the standard going forward?
If accommodation provided but problems continue, is
it because of the disability (e.g., the accommodation
provided was not effective, and a different
accommodation or reassignment must be
considered), or is it for reasons unrelated to the
ADA Update
Recap: Actions Not Required as an
Lowering production or performance standards
(though pro-rate production requirements for period
of leave as an accommodation)
Excusing violations of conduct rules that are jobrelated and consistent with business necessity
Removing an essential function
Monitoring an employee’s use of medication
ADA Update
Other Actions Not Required as an
 Providing personal use items
 Changing someone’s supervisor (though changing
supervisory methods may be required)
 Actions that would result in undue hardship
(significant difficulty or expense)
ADA Update
Choosing an Accommodation
Primary consideration should be given to the
employee’s requested accommodation
But an employer has the discretion to choose among
equally effective alternatives, as long as the
accommodation provided is effective
Act promptly to avoid undue delay
ADA Update
Keys to the Interactive Process
 Communicate, exchange information, search for
solutions, consult resources as needed.
 If requestor only knows the problem, not the
solution, employer is still obligated to provide an
accommodation if available. Search for possible
 If requestor asks for a particular accommodation,
but it is one that legally need not be provided
(e.g., request to lower production standards),
employer must provide an alternative if available.
Search for and consider alternative
ADA Update
Frequent Questions: Telework
As a reasonable accommodation for an individual
with a substantially limiting impairment, an employer
may need to permit more frequent telework than is
otherwise allowed under its regular telework policy.
Fact-specific determination based on particulars of
position: Telework as accommodation need not be
granted as an accommodation if not feasible or
poses an undue hardship.
Employee can be held to same performance and
production standards as working on-site. Managers
can require daily accomplishment reports or use
other management methods for all teleworking
Work From Home/Telework as a Reasonable
ADA Update
EEOC v. Ford Motor Co.,
2014 WL 1584674 (6th Cir. April 22, 2014)
 With modern advances in technology and the
increasing prevalence of telework agreements,
“attendance at the workplace can no longer be
assumed to mean attendance at the employer’s
physical location. Instead, the law must respond to
the advance of technology in the employment
context, as it has in other areas of modern life, and
recognize that the ‘workplace’ is anywhere that an
employee can perform her job duties.”
ADA Update
Access to Benefits of Employment
Feist v. Louisiana Dept. of Justice,
730 F.3d 450 (5th Cir. 2013)
 Employer provided employee parking; employee
requested as a reasonable accommodation for
arthritis a reserved space closer than the one she
had been assigned
 Held: reasonable accommodation is not limited to
accommodations related to performing essential
functions of the job; district court erred in requiring
a nexus between the two
ADA Update
Reasonable Accommodation – Interactive
Horn v. Knight Facilities Management-GM, Inc., 2014
WL 715711 (6th Cir. Feb. 25, 2014)
 Plaintiff, a janitor, proposed accommodations for her
chemical sensitivity to cleaning products, but they
were not objectively reasonable
ADA Update
Interactive Process, cont.
Horn v. Knight Facilities Management-GM, Inc., 2014
WL 715711 (6th Cir. Feb. 25, 2014)
 The employer’s actions, including modifying the
employee’s cleaning route to accommodate her initial
restriction from exposure to bathroom cleaning
chemicals, and follow up conversations with the
employee’s physician and the employee to explore
any alternative accommodations, satisfied the
employer’s obligation
 The interactive process does not have to follow a
particular format. Employer’s separate
conversations with employee, her treating physician,
and union representative were sufficient
ADA Update
Reasonable Accommodation: Interactive
Spurling v. C&M Finepack, Inc., 2014 WL 107968
(7th Cir. 2014)
 Plaintiff, a Forming Inspector/Packer, began
periodically falling asleep at work.
 She received progressive discipline and was
issued a Final Warning/Suspension on April 5,
 However, the employer invited her to provide
medical information to avoid termination.
ADA Update
Interactive Process, cont.
Spurling v. C&M Finepack, Inc., 2014 WL 107968
(7th Cir. 2014)
 She provided a doctor's note indicating that she
had a disability, which was causing her
wakefulness problem, and that she was receiving
further treatment, and the employer then
terminated her.
 Appellate court held that the employer may have
violated the ADA when it ceased the interactive
process it initiated, and terminated her for prior
misconduct upon learning of her medical condition.
 Employer could have terminated her for the
misconduct when it occurred.
ADA Update
Federal Contractors - Disability Self
Associated Builders & Contractors, Inc. v. Shiu,
__ F. Supp. 2d __, 2014 WL 1100779 (D.D.C. March
21, 2014)
 Federal contractors do not violate Title I of the ADA
by complying with mandatory data collection
requirements in the new OFCCP regulations
promulgated under Section 503 of the Rehab Act
 ADA legislative history makes clear Congress
intended to permit contractors to invite applicants to
voluntarily self-identify as individuals with disability
when done for affirmative action purposes under
Section 503 of the Rehab Act
ADA Update
Disability Self Identification, cont.
Associated Builders & Contractors, Inc. v. Shiu,
__ F. Supp. 2d __, 2014 WL 1100779 (D.D.C. March
21, 2014)
 Court cites Opinion Letter from EEOC Legal Counsel
providing additional reasons why compliance with the
OFCCP requirements will not violate the ADA
 Contractors must still otherwise comply with all ADA
prohibitions regarding pre-offer disability-related
Contact Information
Jeanne Goldberg
Senior Attorney Advisor
Office of Legal Counsel
U.S. Equal Employment Opportunity Commission
ADA Update
 (800)526-7234 (V)
(877)781-9403 (TTY)
 (304)216-8189 via Text
 janconsultants via Skype