• Less adequate protections (connected to Title VI) and no statutory reference to
reasonable accommodation or affirmative action
•
•
Early cases (Carmi v. Metro and SE Community College v. Davis) defined otherwise
qualified as to be qualified in spite of a handicap; performing essential job functions
without reasonable accommodations
Later decisions (e.g., School Board v. Arline, 1987): reasonable accommodations are
required unless these impose undue hardships ($, administrative costs, fundamental
Why The ADA?
Because
Sec.504 provides weaker protection for Non-Federal
entities than Sec. 501 provides for Federal entities.
Therefore ADA strengthened and codified regulations
in Sec. 504 into the ADA to correct this disparity (e.g.,
Title VII protections, reasonable accommodation).
Americans With Disabilities Act (ADA, 1990)
Americans With Disabilities Amendments Act
(ADAAA, 2008)
Overall Purpose: To eliminate barriers to employment for
the estimated 43 million Americans with disabilities
Organizations with 15 or more employees must comply with
the Act
 The ADA is arguably the most complicated employment
law on the books
 Lots of criteria used to define key terms
ADA Basics
What Counts as a Disability?
Forming a Prima Facie Case Within the ADA
1) The individual has a disability within the framework of the ADA
2) The person can perform the essential functions of the job in
question with or without a reasonable accommodation (is qualified)
3) Must show that a negative employment decision was made
because of one’s disability
Unconditional Exclusions Under the ADA
 Transvestitism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual impairments or other sexual behavior
disorders
 Compulsive gambling, kleptomania, or pyromania
 Psychoactive substance use disorders resulting from current
illegal use of drugs
Are All Individuals Diagnosed With a Diability
Covered Under the ADA?
No. Limitations must be proven by each individual, NOT how an impairment
affects people in general
Example:
Person A: Diagnosis of depression and is substantially limited in a major life
activity
Person B: Diagnosis of depression and is NOT substantially limited in a
major life activity
Person A is disabled within the meaning of the ADA and Person B is not
EEOC Case-By-Case Test:
Limitations must be proven by each individual, regardless of how an impairment affects people in general. Thus,
if two people are depressed, and the depression is substantially limiting for one but not the other, the
substantially limited person is disabled within the meaning of the ADA and the counterpart is not
~ Substantial Limitation ~
• Not trivial, not severe; not temporary (Permanence Test)
• Significantly more severe than that experienced by the average person
(Average Person Test)
Pre-ADAAA Guidance (EEOC)
The determination of whether an individual is substantially limited in a
major life activity must be made on a case by case basis, WITHOUT regard to
mitigating measures such as medicines, or assistive or prosthetic devices.
Some Average Person Test Failures
•
•
•
•
•
•
•
•
Fungus allergy (Byrne v. Bd. of Education, 1992)
Inability to life 25 pounds (Williams v. Channel Master, 1996)
Infertility (Krauel v. Iowa Methodist, 1996)
Moderate difficulty in walking (Penny v. UPS, 1997)
Depression & social interactions (Breiland v. Advance Circuits, 1997)
Depression & sexual appetite (Johnson v. NY Medical College, 1997)
Test anxiety (Mcguinnes v. University of New Mexico, 1998)
Breathing/sensitivity to dust and fumes due to pneumonia
(Rinehimer v. Cemcolift, 2002)
• Eye problems causing reading difficulties (Szmaj v. AT&T, 2002)
An Example --- Penny v. UPS (1997)
Although the record clearly indicates that Penny suffers an impairment that
affects to some degree his ability to walk, he has not adduced sufficient
evidence from which a factfinder reasonably could conclude that the nature
and severity of his injury significantly restricted his ability to walk as
compared with an average person in the general population
~ Permanence Test ~
EEOC Guidence
In deciding whether an individual is substantially limited in a major life
activity, courts should consider the nature and severity of the impairment;
the duration or expected duration of the impairment; and the permanent
or long term impact, or expected permanent or long term impact, of the
impairment
PRE-ADAAA
Permanence Test (Failures)
•
•
•
•
•
Back injuries (Halperin v. Abacus Tech, 1997)
Abdominal surgery (McDonald v. Pennsylvania, 1998)
Wrist and elbow surgery (Gutridge v. Clure, 1998)
Back surgery (Pollard v. High's of Baltimore, 2002)
Major heart attacks (Katz v. City Metal, 1996)
In Halperin, the 4th Circuit ruled it is evident that the term
‘disability’ does not include temporary medical conditions, even
if those conditions require extended leaves of absence from work
But …..
Summers v. Altarium Institute Corp. (2014)
Background: Summers received serious injuries in October 2011 while taking a
commuter train to work (e.g., 2 surgeries to repair bones and tendons in his legs)
• Doctors prohibited him from putting weight on his left leg for 6 weeks
• Expected to be a minimum of 7 weeks before he could walk normally
Summers emailed company about an accommodation:
1) Take short-term disability 2) part-time work remotely 3) full-time remotely
Company did not respond or offer any accommodations; fired Summers
(effective date of 12/1/11)
Summers filed suit due to being fired and failure to accommodate:
District Court: Dismissed suit. Temporary condition, year or less, so NOT
disabled, and work at home accommodation was unreasonable
Summers v. Altarium Institute Corp. (cont.)
Court of Appeals (4th Circuit): “A sufficiently severe temporary impairment
may constitute a disability under the ADAAA”
Consistent with EEOC ADAA regulations (“effects of an impairment lasting or
expected to last fewer that six months can be substantially limiting”) and
expansive nature of the ADAAA
EEOC – duration is one factor in determining if an impairment is substantially
limiting
Transitory (6 months or less) is relevant to “regarded as” prong: From the ADAAA: “SEC. 3. DEFINITION OF
DISABILITY.
“(3) REGARDED AS HAVING SUCH AN IMPAIRMENT.—For purposes of paragraph (1)(C):
“(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of 6 months or less.
An accommodation request – even if it is unreasonable – triggers an
interactive process (not part of CA decision – Summers dropped failure to
accommodate pat of suit)
Mitigation of Impairments
EEOC Non-Mitigation Principle
Requires assessment of impairments in the non-corrected state. Thus,
impairments such as depression, diabetes, epilepsy, and hypertension should
be assessed assuming the individual is not medicated, and impairments
involving loss of limbs should be assessed without corrective effects of
prosthetic devices
What are Major Life Activities?
Some Examples:
• Caring for oneself (e.g., brushing teeth, washing)
• Performing manual tasks
• Seeing, hearing, eating, sleeping, speaking, communicating
• Walking, standing, lifting, bending
• Learning, reading, concentrating, thinking
• Operation of bodily functions (e.g., immune and digestive systems
cell growth, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, reproductive)
• Working
Working as Major Life Activity
EEOC’s Broad Range Test
With respect to the major life activity of working--The term
substantially limits means significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable
training, skills and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the major
life activity of working
McKay v. Toyota
Pamela McKay, had carpal tunnel syndrome (a valid
impairment)
But, she failed the broad range test because her educational
background qualified her to perform jobs more advanced than
the one for which she was excluded
How Do You Know an Individual is Qualified?
• An individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment
position that such individual holds or desires
• Consideration shall be given to the employer's judgment as to what functions
of a job are essential, and if an employer has prepared a written description
before advertising or interviewing applicants for the job, this description shall be
considered evidence [although not conclusive evidence] of the essential
functions of the job
Although the ADA does not require employers to have job descriptions, the best preparation for challenges to
essential duties and/or KSAs is to have a well-written job description based on a well-performed job analysis.
The job description should specify major duty areas, important job tasks within each duty area, KSAs associated
with those job tasks, and a summary of working conditions
• Generally, the company must generate a factual basis for the essential job
functions
>>> A job analysis is invaluable in this regard!!!
Qualified Individual (cont.)
Can an organization consider health & safety issues in
determining whether or not an individual is qualified?
Yes. Individuals are unqualified if companies present evidence
that one’s disability poses a “direct threat” to the health and
safety of others (and cannot be offset with a reasonable
accommodation)
The ADA permits employers to establish qualification standards that will exclude
individuals who pose a direct threat -- i.e., a significant risk of substantial harm -- to
the health or safety of the individual or of others, if that risk cannot be eliminated or
reduced below the level of a direct threat by reasonable accommodation. However, an
employer may not simply assume that a threat exists; the employer must establish
through objective, medically supportable methods that there is significant risk that
substantial harm could occur in the workplace.
>>> Infectious diseases (nature of risk, duration, severity,
What is a reasonable accommodation?
Ones that do NOT impose a direct hardship on an organization
Some Key Factors:
• Cost of accommodations
• Company resources
• Nature and structure of organizations
Examples of Common Reasonable Accommodations:
•
•
•
•
•
Restructuring job tasks
Altering work schedules
Buying or modifying equipment
Modifying exams or training program
Medical leave (must be time-barred)
Organizations are Not Required to:
• Reallocate essential job duties
• Give preference to disabled applicants/employees
• Create a new position [There is no obligation to find a
position for an applicant who is not qualified for the position
sought]
• Lower production/quality performance standards
[Employers are not required to lower quality or quantity
standards as an accommodation]
• Allow work at home (attendance often ruled as essential)
• Give applicants their preferred accommodation
Do companies have to accommodate disabilities whether they
knew or should have known about their existence?
No. Companies only have to accommodate "known"
disabilities (flexible interaction requirement)
• Some disabilities are obvious (e.g., loss of a limb, person seated
in a wheelchair)
• Cannot ask if an applicant has a disability
Can ask people to indicate whether they are a “disabled veteran” if the
information is being requested for affirmative action purposes [see:
http://www.eeoc.gov/facts/veterans-disabilities.html]
• Can ask applicants if they can perform essential, job-related
functions and/or to perform essential job duties
Reasonable Accommodation (cont.)
• The requirement generally will be triggered by a request from an
individual with a disability, who frequently will be able to suggest an
appropriate accommodation
• Accommodations must be made on an individual basis, because the nature
and extent of a disabling condition and the requirements of a job will vary in
each case
• If the individual does not request an accommodation, the employer is
NOT obligated to provide one except where an individual's known disability
impairs his/her ability to know of, or effectively communicate a need for, an
accommodation that is obvious to the employer
Recommendations for the Flexible Interactive Process
 Creation of an open climate of communication that encourages dialog*
 Identify and record the essential functions of jobs (e.g., a job analysis)
 Documentation of ADA-related communication between employees and company
(including final accommodation decision)
 Development of a written accommodation request form
 Supervisor training (e.g., on ADA , communication style, conflict resolution)
 Guarantee privacy of employee’s disability and disability-related requests
 Individualized assessment of employee’s disability limitations by the company;
establish relationships with outside agencies to identify accommodation options
 Consideration of employee’s preference(s) regarding accommodations
Questions
May someone other than the person with a disability request a reasonable
accommodation? Yes.
Do requests for reasonable accommodations need to be in writing? No.
Examples of accommodation requests:
• An employee tells her supervisor that she is having trouble getting to work at the
scheduled time because of medical treatments she is undergoing.
• An employee tells his supervisor that he needs 6 weeks off to get treatment for a
back problem.
• A new employee, who uses a wheelchair, informs her supervisor that her
wheelchair does not fit under her office desk.
Questions (cont.)
May an employer ask for documentation to justify reasonable accommodation? Yes.
When the disability and/or the need for accommodation is not obvious, the employer may ask the
individual for reasonable documentation about his/her disability and functional limitations. The employer
is entitled to know that the individual has a covered disability for which s/he needs a reasonable
accommodation. The employer may ask the employee for documentation describing the impairment; the
nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and
the extent to which the impairment limits the employee's ability to perform the activity or activities
Limited information:
Reasonable documentation means that the employer may require only the documentation that is needed to
establish that a person has an ADA disability, and that the disability necessitates a reasonable
accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for
documentation that is unrelated to determining the existence of a disability and the necessity for an
accommodation. This means that in most situations an employer cannot request a person's complete
medical records because they are likely to contain information unrelated to the disability at issue and the
need for accommodation. If an individual has more than one disability, an employer can request information
pertaining only to the disability that requires a reasonable accommodation.
An employer may require that the documentation about the disability and the functional limitations come
from an appropriate health care or rehabilitation professional. The appropriate professional in any particular
situation will depend on the disability and the type of functional limitation it imposes.
Questions (cont.)
Is an employer required to provide the reasonable accommodation that
the individual wants?
NO. The employer may choose among reasonable accommodations as long as
the chosen accommodation is effective. The employer may offer alternative
suggestions for reasonable accommodations and discuss their effectiveness in
removing the workplace barrier that is impeding the individual with a disability.
If there are two possible reasonable accommodations, and one costs more or
is more burdensome than the other, the employer may choose the less
expensive or burdensome accommodation as long as it is effective (e.g., it would
remove a workplace barrier, thereby providing the individual with an equal
opportunity to apply for a position, to perform the essential functions of a
position, or to gain equal access to a benefit or privilege of employment)
1999 Supreme Court Rulings
• Sutton v. UAL
• Murphy v. UPS
• Albertsons v. Kirkingburg
Supreme Court endorses case-by-case test, but uses it as
a major reason for striking down the non-mitigation
principle
Sutton v. United Airlines (1999)
• UAL policy of 20/100 uncorrected vision exceeds FAA standard
• EEOC regulation non-mitigation principle is rejected by Supreme
Court
• Working, not vision is cited as severely restricted major life activity however, the twins were already working as pilots
• O’Connor challenges the validity of working as a major life activity, but
does not strike it down because twins fail the broad range test
O’Connor’s Warning on Working
(as a major life activity)
Because parties accept …. “major life activities” includes
working, we do not determine the validity of the cited
regulations. We note, however, that there may be some
conceptual difficulty in defining “major life activities”
to include work, for its seems “to argue in a circle to say
that if one is excluded ... that the exclusion constitutes an
impairment, when the question you’re asking is, whether
the exclusion itself is by reason of handicap”
Major Mistake by Sutton Twins
• They should have claimed seeing, not working as the major life
activity in a prong 3 claim. Or as stated by Justice O’Connor:
– Petitioners did not make the obvious argument that they are
regarded due to their impairments as substantially limited in the
major life activity of seeing. They contend only that respondent
mistakenly believes their physical impairments substantially limit
them on the major life activity of working.
Murphy v. United Parcel Service (1999)
• Murphy is excluded from mechanics job because DOT regulation on
high blood pressure precludes him from driving the trucks he services
• No substantial limitations for prong 1 because blood pressure is
normal with medication (i.e., mitigation)
• Working as major life activity is not possible because Murphy is
eligible for non-driving mechanics jobs
• Prong 3 claim is precluded because Murphy is excluded by federal
(DOT) regulation, not company policy
Murphy’s Mistake
• Assumed high BP is a disability as a matter of law - never showed
how high BP impacts himself. O’Connor implies a claim that
Murphy could have made, but didn't:
– Because the question whether petitioner is disabled when taking
medication is not before us, we have no occasion here to consider
whether petitioner is “disabled” due to limitations that persist
despite his medication or the negative side effects of his
medication.
• Souter makes a similar statement in Kirkingburg (next)
Albertsons v. Kirkingburg (1999)
• Kirkingburg excluded by DOT regulation on amblyopia (also known
as lazy eye – it’s a vision disorder in which an eye fails to achieve
normal visual acuity, even with prescription glasses or contact lenses)
takes physician’s advice and obtains freshly minted DOT waiver
based on his excellent driving record
• Prong 1 claim struck down due to excellent driving record (indicates
self-mitigation). Also, “significant difference” in viewing the world
does not equate to “significant restriction”
• DOT waiver is struck down because it is “experimental”
• As in Murphy, the prong 3 claim is precluded because exclusion is
based on federal regulation, not company policy
Kirkingburg’s Mistake
• Kirkingburg assumed amblyopia is disability as a matter of law
(same as Murphy). Justice Souter states the following:
– This is not to suggest that monocular individuals have an onerous
burden ... our brief examination of some of the medical literature
leaves us sharing the Government’s judgment that people with
monocular vision “ordinarily” will meet the Act’s definition of
disability. ... We simply hold that the Act requires … [plaintiffs]
… to prove ... the extent of the limitation in terms of their own
experience, as in loss of depth perception and visual field, is
substantial
Failing The Severity Test
(Same fate as Murphy & Kirkingburg)
• Krocka v. Chicago: 203 F.3d 507 (CA 7, 2000)
– Severe depression mitigated by Prozac
• Taylor v. Nimock’s Oil: 214 F.3d 957 (CA 8, 2000)
– Medication permits heart patient to work full time
• Doyle v. Oklahoma: 213 F.3d 492 (CA 10, 2001)
– No disability when sleep medication causes too much sleep
• Spades v. Walnut Ridge: 186 F.3d 897 (CA 8, 1999)
– Medication & counseling mitigates depression
• Hill v. Kansas City: 181F.3d 891 (CA 8, 1999)
– No disability when condition does not compel medication
Krocka v. Chicago (2000)
While Krocka’s depression may have affected his interactions with
others, it does not appear to have impacted his ability to perform the
duties of a Chicago police officer. Furthermore ….. When taking
Prozac he exhibits no symptoms of depression and is able to
perform the duties of the job adequately
Spades v. Walnut Ridge (1999)
The record shows that Spades took medication and received
counseling for his alleged disability of depression. He concedes that
resort to medicines and counseling “allow him to function without
limitation”. Thus, his depression is corrected and cannot
substantially limited a major life activity - a requirement for
finding than an individual is disabled within the meaning of the ADA
PGA v. Martin (2001)
Brief Facts: Casey Martin has a rare, degenerative circulatory
disorder [Klippel-Trenaunay-Weber Syndrome], that has left
him with a withered right leg. He may eventually face amputation. The disorder
makes it extremely difficult and painful for him to walk golf courses
He requested an accommodation of using a golf cart while playing golf
The PGA refused citing that:
• Using a golf cart would "fundamentally alter the nature" of the game
• Walking is an essential part of the game
PGA v. Martin (cont.)
Key Supreme Court Findings: The ADA prohibits the PGA from denying
Martin equal access to its tours on the basis of his disability
Allowing the use of a cart would not significantly alter the game, the key aspect
of which is shot making, not walking
“There is nothing in the Rules of Golf that either forbids the use of carts, or
penalizes a player for using a cart. That set of rules, as we have observed, is
widely accepted in both the amateur and professional golf world as the rules of
the game. The walking rule that is contained in petitioner’s hard cards, based on
an optional condition buried in an appendix to the Rules of Golf is not an
essential attribute of the game itself.
PGA v. Martin (2001)
• The NCAA waived its walking rule for Martin
• Carts are allowed for the first 2 rounds of the PGA Tour qualifying (Q) school
• Until 1997, carts were allowed in the third stage of the Q-School
• PGA Champions Tour (those 50 & over) allows the optional use of carts
Even if petitioner’s factual predicate is accepted, its legal position is fatally
flawed because its refusal to consider Martin’s personal circumstances in
deciding whether to accommodate his disability runs counter to the ADA’s
requirement that an individualized inquiry be conducted.
Some (misinformed) Reactions
"What next?" asked a as quoted by Cybercast News Service: "Stilts for midgets
who want to play professional basketball? How about rowboats for Olympic
swimmers who suffer from aquaphobia? How about a 20-yard head start for slow
people in the Olympic 100-yard dash? ---Spokesperson for the Libertarian
Party
Hal Sutton, a golfer who also is a member of the tour's policy board, said
many pros have bad backs and might now apply to use a cart. Sutton
himself has had back problems.
Jack Nicklaus took issue with the justices' opinion that walking was not
a fundamental part of the sport."I think we ought to take them all out
and play golf," Nicklaus said. "I think they'd change their minds. I
promise you, it's fundamental."
~ Threats to Workplace Safety ~
• Current users of illegal drugs are not protected under
Prong 1
• Individuals with a record of addiction to illegal drugs
are protected if not current users (i.e., rehabilitated)
• Direct Threat may be raised for any other threat to
worker or workplace safety that cannot be eliminated
with reasonable accommodation
Current Use vs. Rehabilitation
Rehabilitation implies prior addiction; casual drug use is
not protected
Current use refers to the illegal use of drugs that has
occurred “recently enough to indicate that the individual is
actively engaged in such conduct”
• ADA -- not used drugs for a substantial amount of time
• EEOC -- illegal drug use that has occurred recently
enough to indicate the individual is actively
engaged in such conduct
• Salley v. Circuit City (1997) ― 3 weeks
• McDaniel v. Mississippi Baptist (1995) ― 6 weeks
• Collings v. Longview (1995) ― several months
Drug Use, Alcoholism and the ADA
• While a current illegal user of drugs is not protected by the
ADA if an employer acts on the basis of such use, a person who
currently uses alcohol is not automatically denied protection.
An alcoholic is a person with a disability and is protected by the
ADA if s/he is qualified to perform the essential functions of
the job. An employer may be required to provide an
accommodation to an alcoholic. However, an employer can
discipline, discharge or deny employment to an alcoholic whose use
of alcohol adversely affects job performance or conduct
Direct Threat
• Direct threat -- a significant risk of substantial harm to the
health and safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation
• ADA generalizes direct threat beyond infectious diseases. It
applies to any protected physical or mental condition
Bragdon v. Abbott (1998)
Can a doctor refuse care or alter treatment of a patient with HIV?
Brief Facts: Bragdon refused to fill a cavity in his office after Abbott informed
him that she was positive for HIV.
He offered to perform the procedure at a hospital for no extra charge, other
than ones associated with use of the hospital facility
Key Supreme Court Findings:
Abbott qualified as having a disability since she was significantly limited with
respect to the major life activity of reproduction
The ADA bans discrimination against individual "on the basis of disability in the
enjoyment of the services of any place of public accommodation by any person who
operates [such] a place."
The ADA does not require treating those who pose a direct threat to the health or
safety of others
Bragdon v. Abbott (cont.)
Direct Threat to Safety: The Court decided that individuals in the health-care
profession were in the best position to decide on whether treating an HIV positive
person poses a "direct threat" to themselves or others.
Plaintiff presented insufficient evidence that sufficient risk existed by treating
Abbott in dentist office versus hospital setting.
Court of Appeals relied on 1993 CDC Dentistry Guidelines and the 1991
American Dental Association Policy on HIV (e.g., procedures to reduce the
transmission of disease in dental environment); but these are recommendations
not a risk assessment
Case was remanded for additional risk assessment based on objective medical
evidence or risk
Gave CA opportunity to determine whether some of the studies and data cited by
Bragdon (e.g., CDC report that 7 dental workers were exposed to HIV but unsure
as to transmission) would change its conclusion that petitioner presented neither
objective evidence nor a triable issue of fact on the question of risk.
School Board of Nassau County v. Arline (1987)
[Direct Threat]
• Arline was discharged after a relapse of tuberculosis
• Justice Brennan: Ruled that individuals are not qualified if
an infectious disease poses a significant risk that cannot
be reasonably accommodated. Brennan defined significant
risk using four prongs:
1) Nature of the risk―how a disease is transmitted
2) Duration of the risk
3) Nature and severity of potential harm to others
4) Probability of transmission―imminence of potential harm
• ADA Interpretive Guidelines use the same four prongs
• Determination of direct threat must be made on a caseby-case basis
Direct Threat
Echazabal v. Chevron (2002)
• Chevron refused to hire Echazabal based on a
medical exam that showed liver damage
• Chevron claimed this condition would worsen
with exposure to chemicals in the plant
• Supreme Court ruled in favor of Chevron
• No direct language in ADA regarding threat to
self, however it is now upheld
Medical examinations & inquiries about disabilities
• May not require a job applicant to take a medical examination
before making a job offer (post-offer is okay)
If an individual is not hired because a post-offer medical
examination or inquiry reveals a disability, the reason(s) for not
hiring must be:
• Job-related and consistent with business necessity
•The employer also must show that no reasonable accommodation
was available that would enable the individual to perform the
essential job functions, or that accommodation would impose an
undue hardship
Tests for illegal use of drugs are not medical examinations
Neither are physical ability/agility tests. But, tests that measure
physical capacity (e.g., heart rate, blood pressure, max. VO2, etc.) are
not allowed in pre-offer stage – considered as medical tests
Medical examinations & inquiries (cont.)
• Recall, a company cannot make any pre-employment inquiry
about a disability or the nature or severity of a disability
Okay to ask questions about the ability to perform specific job
functions and may ask an individual to describe or demonstrate how
s/he would perform these functions
MMPI and the ADA
Karraker v. Rent-A-Center, Inc. 411 F, 3rd 831 (7th Cir. 2005)
The MMPI fits the definition of a “medical examination” --- a
“procedure or test that seeks information about an individual’s physical or
mental impairments or health.”
They held that the MMPI was designed to reveal mental
impairments/disorders --- thus it was a violation of the ADA
HIV and AIDS and the ADA
• Persons with HIV disease, both symptomatic and asyptomatic, have
physical impairments that substantially limit one or more major life
activities, and are protected under the ADA
• If an employee does not want to disclose that he or she has HIV or
AIDS, it may be sufficient for the employee to say that he or she has an
illness or disability covered by the ADA, that the illness of
disability may cause certain problems at work, and that the employee
wants reasonable accommodation [An employer can require medical
documentation of the employee’s disability and the limitations resulting
from that disability]
• Employers cannot choose to hire a qualified person because they
fear the worker will become too ill to work in the future. The
hiring decision must be based on how well the individual can perform
the job at the present time
Eight Reasonable Accommodations Codified in the ADA
• Accommodation 1: Making facilities available
• Accommodation 2: Job restructuring
• Accommodation 3: Use of part-time or modified work schedules
• Accommodation 4: Reassignment of a disabled person to a
vacant position
• Accommodation 5: Using or modifying equipment used to
perform job functions
• Accommodation 6: Modifying employment tests, training
materials, and/or work policies
• Accommodation 7: Providing readers or interpreters
• Accommodation 8: Other similar accommodations
EEOC v. Waffle House (2002)
Plaintiff signed an agreement to settle future claims
against the company by binding arbitration
• 16 days into his job, the plaintiff suffered a seizure and was
fired
• Filed an ADA case with the EEOC
• Company countered that the plaintiff had no right to
sue; that he had to submit to arbitration (given his signed
agreement)
EEOC v. Waffle House (2002)
District Court ruled in favor of the plaintiff
Court of Appeals sided with the company (arbitration
agreement was valid and binding -- plaintiff had waived his
right to sue)
Supreme Court decision:
Plaintiff had the right to sue via the EEOC; did not have
to resort to binding arbitration as his only option
Implication: EEOC may be likely challenge future
attempts to force arbitration agreements as a condition of
employment
Toyota v. Williams (2002)
• Williams performs 2 of 4 essential job duties without pain
- claims it is reasonable to limit her job to those 2 duties
• 6th Circuit rules she is substantially limited in manual tasks
due to pain associated with other 2 tasks
• Supreme Court accepts manual tasks as major life activity,
but rules that such tasks must be central to daily life
• Because Williams can perform manual tasks central to her
daily life (e.g., bathing, brushing teeth, etc.), the 6th Circuit
Court ruling favoring Williams is overturned
~ The ADAAA ~
Why Amend ADA?
Sec.(2)(3) of the ADAAA
“While Congress expected that the definition of disability under the
ADA would be interpreted consistently with how courts had applied
the definition of a handicapped individual under the Rehabilitation
Act of 1973, that expectation has not been fulfilled”
(4) the holdings of the Supreme Court in Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the
broad scope of protection intended to be afforded by the ADA, thus
eliminating protection for many individuals whom Congress intended
to protect;
(5) the holding of the Supreme Court in Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the
broad scope of protection intended to be afforded by the ADA;
~ ADAAA Summary ~
 Disorders that are episodic or in remission (e.g., tuberculosis) must be
considered when they are in their active state (consistent with SC decision
in School Board v. Arline regarding RE-73)
 Disabilities must be considered in their uncorrected state -- exception
is the use of regular eyeglasses or contact lenses. This overturns:
Murphy v. UPS [medication is OK to use] and
Albertsons v. Kirkingburg [use of monocular cues constitutes a
learned behavioral adaptation]
Partially overturns Sutton v. UAL; their method of mitigation is not
supported (i.e., use of regular eye glasses)
Sec.(3)(4)(E) of the ADAAA
(I) medication, medical supplies, equipment, or appliances, low-vision
devices (which do not include ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aids and cochlear
implants or other implantable hearing devices, mobility devices, or oxygen
therapy equipment and supplies; (II) use of assistive technology ;(III)
reasonable accommodations or auxiliary aids or services; or (IV) learned
behavioral or adaptive neurological modifications
~ ADAAA Summary ~
 To be substantially limited, the recovery period for an individual with an
transitory impairment (e.g., heart attack) must be > 6 months
Sec.3(3)(B) of the ADAAA defines as transitory any impairment with
an actual or expected duration of six months or less. Therefore,
many earlier rulings are overturned including, for example, the 4th
Circuit ruling in Halperin where the expected or actual recuperation
period was longer than nine months. – But, implications of Summers
v. Altarum?
 Working is included as a major life activity
 Separated the major activities of performing manual tasks and caring for
oneself (overturns Toyota v. Williams, 2002)
(A)
In general.------- major life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working
SUPREME COURT RULINGS ADDRESSED IN THE ADAAA
School Board v. Arline (1987)
Sutton v. UAL (1999)
Murphy v. UPS (1999)
Albertsons v. Kirkingburg (1999)
Toyota v. Williams (2002)
Supreme Court rules that Episodic illness (Tuberculosis) qualifies
for protection under RE-73 rules. Ruling is endorsed in the
ADAAA with respect to episodic illnesses.
Supreme Court supports employer rule requiring pilots to have
uncorrected 20-100 vision in each eye is upheld. Ruling is
partially reversed in the ADAAA.
Supreme Court supports Federal agency regulation requiring
normal blood pressure for commercial truck drivers without
medication. Ruling is reversed in the ADAAA.
Supreme Court supports Federal agency regulation on monocular
& binocular acuity standards for commercial truck drivers.
Ruling is reversed in the ADAAA.
Supreme Court limits major life activity of manual tasks to those
central to daily life (e.g., household chores, brushing teeth,
bathing). Ruling is reversed in the ADAAA.
ADAAA Overturns Toyota v. Williams
By defining working, caring for oneself and manual tasks as
separable major life activities, Ella Williams to qualify as a disabled
person within the meaning of the ADA
However, there are always caveats. She would likely lose on being
qualified
The two tasks she could not perform pain free were likely essential
job functions. Thus, it would be an insurmountable barrier
Annual ADA Changes Filed With EEOC
29,000
27,000
25,165
25,000
25,742
26,379
25,957
25,369
23,000
21,451
21,000
19,000
17,000
15,000
2009
2010
2011
2012
2013
2014