1. Disability EqualEmployment OpportunityTara MullenChristopher Dixon2011Personal Law and Selection Psych 559-01

2. What Does the Term DisabilityMean? With Respect to anIndividual. a physical or mental impairment that substantially limitsone or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment major life activities include, but are not limited to, caringfor oneself, performing manual tasks, seeing, hearing,eating, sleeping, walking, standing, lifting, bending,speaking, breathing, learning, reading, concentrating,thinking, communicating, and working. 3. American Disabilities Act of1990To provide a national mandate to eliminate discriminationand create consistent and enforceable standards toaddress discrimination.Applies to employers with 15 or more employees.ADA Amendments Act of 2008 Signed into law Sept. 25, 2008 Favored a broader coverage of individuals protected. Effective Jan. 1, 2009 4. The Americans withDisabilities Act AmendmentsAct of 2008 On September 25, 2008, the President signed the Americanswith Disabilities Act Amendments Act of 2008 The Act emphasizes that the definition of disability should beconstrued in favor of broad coverage of individuals to themaximum extent permitted by the terms of the ADA andgenerally shall not require extensive analysis. Important changes to the definition of the term "disability" byrejecting the holdings in several Supreme Court decisions andportions of EEOCs ADA regulations. Easier for an individual seeking protection under the ADA toestablish that he or she has a disability within the meaning ofthe ADA 5. American Disabilities Act -TitlesThe Americans with Disabilities Act (ADA) is a comprehensivecivil rights law for people with disabilities. The Department ofJustice enforces the ADAs requirements in three areas --Title I: Employment practices by units of State and localgovernmentTitle II: Programs, services, and activities of State and localgovernmentTitle III: Public accommodations and commercial facilities 6. The Rehabilitation Act of 1973Section 503 of the Rehabilitation Act of 1973 prohibitsdiscrimination and requires employers with federal contracts orsubcontracts that exceed $10,000 to take affirmative action tohire, retain, and promote qualified individuals with disabilities.All covered contractors and subcontractors must also include aspecific equal opportunity clause in each of their nonexemptcontracts and subcontracts.This law is enforced by the Employment StandardsAdministrations Office of Federal Contract CompliancePrograms (OFCCP) within the U.S. Department of Labor. 7. The Equality Act 2010The primary purpose of the Act is to consolidate thecomplicated and numerous array of Acts and Regulations, whichformed the basis of anti-discrimination law in Great Britain. Thiswas, primarily, the Equal Pay Act 1970, the Sex DiscriminationAct 1975, the Race Relations Act 1976, the DisabilityDiscrimination Act 1995 It requires equal treatment in access toemployment as well as private and public services, regardless ofthe protected characteristics of age, disability, genderreassignment, marriage and civil partnership, race, religion orbelief, sex, and sexual orientationApril 6, 2010 8. Defining the DiscriminationWho does the American Disabilities Act protect? ADA Prohibits an employer from discriminating against aqualified individual with a disability. Protects people with current impairments or if they havea record of such an impairment or if the employer thinksthey have an impairment. Protects people who are tested positive for AIDS. Rehabilitated drug and alcohol users are protected, butcurrent drug abusers are NOT. 9. Qualified Individual What is a Qualified Individual? A person who is able toperform the essential or primary functions of a job with orwithout accommodation. 10. What is an Accommodation?According to the American Disabilities Act, employers arerequired to make reasonable accommodations for their disabledemployees. This is a requirement as long as it does not placeUndue Hardship on the employer.Examples: Modified work schedules Purchasing new equipment Making work spaces more accessible Modifying orientations and meetings for people with disabilities 11. Undue HardshipWhat is meant by Undue Hardship? Undue Hardship implies that there may necessarily be some hardship in accommodating someones disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate. Concrete evidence is required to establish undue hardship. May also refer to financial difficulty 12. Employer EtiquetteThere are legal ramifications to disability discrimination. Howdoes an employer avoid these: An employer(or prospective employer)cannot ask aboutcurrent disabilities, but they can infer that a disability mayaffect their performance of essential job duties.An example of how this would be done during an interview:You cannot askDo you have back problems?You can however state the job specific requirements.This job requires extensive walking for distances of more than35 ft. ..and let the individual make the decision. 13. More on Employer Etiquette Pre-employment physicals Company Policy Medical information must be kept separate(as perHIPPA). Alcohol and drug tests. Must apply to all employees 14. The U.S. Equal EmploymentOpportunity Commission(EEOC)The U.S. Equal Employment Opportunity Commission (EEOC) isresponsible for enforcing federal laws that make it illegal todiscriminate against a job applicant or an employee because of thepersons race, color, religion, sex (including pregnancy), national origin,age (40 or older), disability or genetic information. It is also illegal todiscriminate against a person because the person complained aboutdiscrimination, filed a charge of discrimination, or participated in anemployment discrimination investigation or lawsuit.Most employers with at least 15 employees are covered by EEOC laws(20 employees in age discrimination cases). Most labor unions andemployment agencies are also covered.The laws apply to all types of work situations, including hiring, firing,promotions, harassment, training, wages, and benefits. 15. Enforcement Department of Justice has achieved greater access forindividuals with disabilities in thousands of cases. Must first attempt settlement through negotiationsLitigationThe Department may file lawsuits in Federal court to enforce theADA and may obtain court orders including compensatorydamages and back pay to remedy discrimination. 16. Defenses Defense to a charge of discrimination application of qualification standards, tests, or selection criteriathat screen out or tend to screen out business necessity cannot be accomplished by reasonable accommodation. Qualification standards. - The term qualification standardsmay include a requirement that an individual shall not pose adirect threat to the health or safety of other individuals in theworkplace. 17. O.D.E.P.The Office of Disability Employment Policy (ODEP) wasauthorized by Congress in the Department of Labors FY 2001appropriation. Recognizing the need for a national policy toensure that people with disabilities are fully integrated into the21st Century workforce, the Secretary of Labor delegatedauthority and assigned responsibility to the Assistant Secretaryfor Disability Employment Policy. ODEP is a sub-cabinet levelpolicy agency in the Department of Labor. 18. EEOC v. AIC SecurityInvestigations, Ltd., and RuthVrdolyak 1995In this case, the first ADA employment case to be tried before a jury,the Commission alleged that AIC Security discharged an employeebecause he was battling cancer. The executive director of AIC, was diagnosed with inoperablemetastatic brain cancer, a terminal illness. He suffered a variety of effects from his cancer and treatment,including shortness of breath from having parts of his lungsremoved, nausea from radiation and chemotherapy, and somewhatreduced memory capacity due to the effects of brain tumors. He missed work at times, but he continued his employmentessentially full-time. The owner of the company, who knew that hehad cancer, fired him after taking over the company. Did AIC have the right to fire the Executive Director? No 19. Sutton v. United Airlines,Inc.(1999) Plaintiffs in Sutton are twin sisters who are commercial pilots. Theyare both severely myopic, with uncorrected vision of worse than20/200. They applied to be airline pilots and were turned down The airline required pilots to have uncorrected vision of 20/100 or better. The plaintiffs specific claim is not clear from the case because thecourt dismissed their case finding they were not covered by theADA. Was the uncorrected 20/100 standard discriminatory? Were they otherwise qualified regardless of their corrected vision? Dilemma: Qualified because of an accommodation: if the plaintiff shows thatthe accommodation eliminates the effect of the disability, thedefendant will then counter that the plaintiff is not covered by theADA 20. Toyota Motor Manufacturing,KY, Inc. v. Williams (2002) Respondent claimed to be disabled because of her carpaltunnel syndrome and other impairments. She sued heremployer for failing to provide her with reasonableaccommodations, required by the ADA. The US Supreme Courtruled that her impairments did not restrict the respondent inperforming tasks that are of central importance to mostpeoples daily lives and she was therefore not disabled. Result of the case narrowed the broad scope of protectionintended by the ADA. Standards created by the Supreme Court for substantiallylimits created an inappropriately high level of limitationnecessary to obtain coverage under the ADA. 21. Supreme Court - RAYTHEONCO. v. HERNANDEZ Joel Hernandez worked for Hughes Missile Systems for 25 yearswhen he was forced to resign after testing positive for cocaine. Hernandez applied to be rehired after 3 years as a recovering drugaddict, but was rejected. Hernandez filed charges with the EEOC claiming he wasdiscriminated against in violation of the ADA. Companys perspective: Company policy of not rehiring employeesterminated for violating code of conduct. Hernandez argued back against the policy, but not in a timelymanner. Disparate impact versus disparate treatment US Supreme Court ruling: ADA was not violated 22. Post-ADA Amendment Cases Verizon to Pay $20 Million to Settle Nationwide EEOCDisability Suit(2011)* EEOC v. Argo Distribution LLC, (5th Cir. Jan. 15, 2009)* Johnson v. Board of Trustees of Boundary County SchoolDistrict No. 101, et al(2010)* Hoffman v. Carefirst of Fort Wayne, Inc. (2009)* EEOC v. Sears, Roebuck & Co. (2009)* U.S. v. County of Ventura(2010)* 23. Hoffman v. Carefirst of FortWayne, Inc. (2009) Stephen Hoffman worked as a service technician in 2007. Hisoriginal hours were 9am-5pm on weekdays. Hoffman was diagnosed with Stage III cancer and receivedtreatment. Upon his return in Jan. 2009, he was told about anew contract that would require him to work up to 70 hours aweek. Hoffman asked to work from a home office but was deniedthat accommodation, leading him to voluntarily quit the job. Is Hoffman disabled under the ADAAA? an impairment that is episodic or in remission is a disability if itwould substantially limit a major life activity when active rendershis cancer in remission a disability. Employer did not show that the requested accommodation(working from home office) created an undue burden on theorganization. 24. EEOC v. Sears, Roebuck & Co.(consent decree entered 2009) EEOC brought this landmark disability discrimination lawsuit Sears maintained an inflexible workers compensation leave exhaustionpolicy and terminated employees instead of providing them withreasonable accommodations for their disabilities, Violation of the ADA. The case resulted in the largest monetary recovery in a settlement of asingle ADA lawsuit in EEOC history. The EEOC provided claim forms to certain Sears employees who hadbeen terminated under Sears workers compensation leave policy. Report to the EEOC, among other things, the extent of theirimpairments, their ability to return to work at Sears, and whether Searshad made any attempt to return them to work. Is this a case of disparate treatment? The EEOC found that 235 individuals were eligible to share in thesettlement. The average award was approximately $26,300, for a totalaward of approximately $6.2 million. 25. Johnson v. Board of Trustees ofBoundary County SchoolDistrict No. 101, et alOn July 28, 2010, the Department, along with the EqualEmployment Opportunity Commission, filed an amicus brief inthe U.S. Court of Appeals for the Ninth Circuit on behalf of theplaintiff in this case, a school teacher with bipolar disorder whowas fired from her teaching position after her request for areasonable accommodation was refused. The governmentsbrief argued that the district court was wrong to dismiss thelawsuit at the summary judgment stage.Amicus Curiae(Amicus Brief) Literally means, Friend of theCourt, a person with strong interest in or views on the subjectmatter of an action, but not a party to the action. 26. U.S. v. County of VenturaOn July 15, 2010, the U.S. District Court for the Central Districtof California entered a consent decree, jointly submitted by theparties, resolving this lawsuit against the County ofVentura, California, alleging that the county had discriminatedagainst an individual who is deaf who applied for a position as achildrens social service worker. Under the terms of thedecree, the county will adopt an employment policy prohibitingdiscrimination and explicitly acknowledging that reasonableaccommodations for an employee may include a qualified signlanguage interpreter; supervisory personnel in the humanservices and human resources department will receive trainingon the ADA; and the County will pay $45,000 in compensatorydamages to the charging party. 27. EEOC v. Argo Distribution LLC,(5th Cir. Jan. 15, 2009) Under a pre-Amendments analysis, the complainant was not ADA-disabled. Suffered from a condition which precluded his ability to perspire. Claimed he was substantially limited in the major life activity of regulating body temperature. The court assumed for purposes of the decision that regulating body temperature was a major life activity. EEOC failed to present evidence that he was substantially limited in that activity. Not disabled for ADA purposes. Mitigating measures on his life, drinking cold liquids sitting in front of a fan spraying himself with water. Not substantially limiting. Had the court applied the Amendments retroactively, Velez likely would havebeen disabled under the ADA, because the Amendments prohibit considerationof mitigating measures. 28. Verizon to Pay $20 Million toSettle Nationwide EEOCDisability Suit Largest ADA Settlement in EEOC History for Hundreds of Employees Largest disability discrimination settlement in a single lawsuit in EEOC history. Terminated or Disciplined Based on Rigid Attendance Policy Verizon Communications will pay $20 million and provide significant equitable relief Nationwide class disability discrimination lawsuit filed by the U.S. Equal EmploymentOpportunity Commission (EEOC) Filed against 24 named subsidiaries of Verizon Communications Refusing to make exceptions to its no fault attendance plans to accommodateemployees with disabilities. If an employee accumulated a designated number of chargeable absences, Verizonplaced the employee on a disciplinary step which could ultimately result in moreserious disciplinary consequences, including termination. 29. Problems and Issues withDisability EEO Corporate Misunderstanding and Lack ofEducation Public misunderstanding Security Refinement and Amendment of ADA 30. Controversial Issues EEOCs attempt to impose a list of per se disabilities, that neither the ADAAA provides, nor was expressly authorized by Congress for the EEOC to create, including: Deafness Epilepsy Blindness HIV/AIDS Intellectual disability (formerly Multiple sclerosisknown as mental retardation) Muscular dystrophy Partially or completely missing Major depressionlimbs Bipolar disorder Mobility impairments requiring use Post-traumatic stress disorderof a wheelchair (a mitigating Obsessive-compulsive disordermeasure) Schizophrenia Autism Cerebral palsy Cancer Diabetesper seAdverb - in itself, essentially, as such, in essence, by itself, of itself, bydefinition, intrinsically, by its very nature Im not opposed to capitalpunishment per se. 31. Current Political Issues Effects of ADAAA on employer: More individuals will qualify for coverage under the portion ofthe definition of disability that entitles them to request andreceive reasonable accommodations. Burden of proof in disability claims is shifted to employers. Higher costs for employer to accommodate workers. Cost of litigation for employer. Speculation that ADAAA will affect Social Security DisabilityInsurance (SSDI) According to the Social Security Administration, SSDI will runout of cash in approximately 5 years. Social Security beneficiaries in 2010: 489,488.Highest 1 yr. increase ever! 32. Current Political Issues Contd How this can affect the SSDI: The more friendly burden-of-proof for claimants againstemployers could impact the legal standard used to evaluate SSDIclaims. The protected group may be treated more cautiously by potentialemployers. Those with disabilities may file greater SDDI claimsonce they face unemployment. 33. ReferencesWebpages U.S. Equal Employment Opportunity Commission, Titles I andV of the Americans with Disabilities Act of 1990 (ADA)http://www.eeoc.gov/laws/statutes/ada.cfm U.S. Equal Employment Opportunity Commission, DisabilityDiscriminationhttp://www.eeoc.gov/laws/types/disability.cfm U.S. Equal Employment Opportunity Commission, Facts Aboutthe Americans with Disabilities Acthttp://www.eeoc.gov/eeoc/publications/fs-ada.cfm U.S. Department of Justice, ADA Home Pagehttp://www.ada.gov/ 34. U.S. Department of Justice, ADA Home Page, AMERICANSWITH DISABILITIES ACT OF 1990, AS AMENDEDhttp://www.ada.gov/pubs/ada.htm U.S. Department of Justice, Civil Rights Division, DisabilityRights Section, Enforcing the ADA, A Status Report from theDepartment of Justice, July - September 2010, Issue 3http://www.ada.gov/julysep10.htm Supreme Court of The United States, EEO DisabilityDiscriminationhttp://www.supremecourt.gov/search.aspx?Search=EEO+Disability+Discrimination&type=Site 35. References, cont.Court Cases EEOC v. AIC Security Investigations, Ltd., and Ruth Vrdolyak,55 F.3d 1276 (jury verdict upheld 1995) EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282.September 29, 2009 SUPREME COURT OF THE UNITED STATES, RAYTHEON CO. v.HERNANDEZ, CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE NINTH CIRCUIT, No. 02749. ArguedOctober 8, 2003Decided December 2, 2003 SUPREME COURT OF THE UNITED STATES, US AIRWAYS, INC.,v. ROBERT BARNETT, No. 00-1250, December 4, 2001 36. EEOC v. Argo Distribution LLC, 555 F.3d 462, 469 n. 8, (5th Cir.Jan. 15, 2009) U.S. v. County of Ventura, CV09-06413-MMM(CWx), July 15,2010 Johnson v. Board of Trustees of Boundary County SchoolDistrict No. 101, et al, 2:2009cv00061, July 28, 2010 Hoffman v. Carefirst of Fort Wayne, Inc., 1:2009cv00251(2009) Sutton v. United Airlines, Inc. (97-1943) 527 U.S. 471, (1999) Toyota Motor Manufacturing, KY, Inc. v. Williams, (00-1089)534 U.S. 184, (2002) 37. References, cont.Articles Brownyn Byrnes(2009, September), Improved protection ofdisability rights, Disability Discrimination Act 1992 amended.Law Society Journal, 44 45 Current Events and Commentary(July 2011) The ADAAAsUnintended Consequence On The Federal Budget, TheFulcrum InquiryText Books Casio, W. F. (7th Ed.)(2011). Applied Psychology In HumanResource Management. Upper Saddle River, NJ:PrenticeHall(pp 23 25)