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PSY 6430PSY 6430Unit 3 Unit 3

The Americans withThe Americans with

Disabilities ActDisabilities Act

Schedule:

Monday & Wednesday: LectureExam: Monday, Feb. 11

ScheduleSchedule Make-up exam: Monday, Feb. 18Make-up exam: Monday, Feb. 18 It will cover Units 1-3It will cover Units 1-3 I will hand out the study objectives I will hand out the study objectives

Wednesday, Feb. 13Wednesday, Feb. 13 Schedule is awkward because of the Schedule is awkward because of the

cancellation of class on 2/20: OBM Net and cancellation of class on 2/20: OBM Net and BAAM conferencesBAAM conferences

I can’t give you the study objectives until I I can’t give you the study objectives until I grade and hand back E3 on Wed., Feb. 13grade and hand back E3 on Wed., Feb. 13

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Make-up ExamMake-up Exam If you have missed an exam, you need to take If you have missed an exam, you need to take

this exam or your missing exam score will turn this exam or your missing exam score will turn into a zerointo a zero

If you have taken Es 1-3, but would like to try to If you have taken Es 1-3, but would like to try to replace one of your scores with ME1, you should replace one of your scores with ME1, you should take the examtake the exam If you get a lower grade on ME1, I will throw out the If you get a lower grade on ME1, I will throw out the

ME1 grade – ME1 can only help your grade, it cannot ME1 grade – ME1 can only help your grade, it cannot hurt ithurt it

If you are satisfied with your exam scores, you do If you are satisfied with your exam scores, you do not have to take the exam – you get the day off!not have to take the exam – you get the day off!

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IntroductionIntroduction ADA was passed in 1990, with the parts related to ADA was passed in 1990, with the parts related to

selection going into effect in 1992selection going into effect in 1992 Profound effect on selectionProfound effect on selection

Become one of the most controversial pieces of Become one of the most controversial pieces of legislation ever passedlegislation ever passed

Supreme Court started hearing cases in 1999, and Supreme Court started hearing cases in 1999, and made some clarifying decisionsmade some clarifying decisions

Many of those decisions have now been negated by the Many of those decisions have now been negated by the ADA Amendments Act of 2008ADA Amendments Act of 2008

Became effective Jan. 1, 2009Became effective Jan. 1, 2009

(no controversy over the goals of the Act, but in provisions/interpretations - very difficult for organizations to do the right thing; Don’t like the way the text handles this; ADA first as if the provisions still stand, then talk briefly about ADAAA, confusing: 4 major issues/problems)

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Four Major IssuesFour Major Issues

Who is actually covered by the Act?Who is actually covered by the Act? EEOC guidelines vs. Supreme Court decisionsEEOC guidelines vs. Supreme Court decisions Vague language about what “mental disabilities” Vague language about what “mental disabilities”

meansmeans Burden for companies because each and every Burden for companies because each and every

case must be handled on an individual basiscase must be handled on an individual basis

(list the four issues here, then look at each in more detail)

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SO1A: First Controversy: Who is covered?SO1A: First Controversy: Who is covered?

Has a physical or Has a physical or mentalmental impairment that impairment that substantiallysubstantially limits one or more limits one or more major life major life activitiesactivities,,

Has a record of such impairment, orHas a record of such impairment, or Is Is regardedregarded as having an impairment as having an impairment

If an organization assumes someone has AIDS who If an organization assumes someone has AIDS who does not, that person is covered by ADAdoes not, that person is covered by ADA

Case won by a person who was misdiagnosed as Case won by a person who was misdiagnosed as learning disabled; she was regarded as learning learning disabled; she was regarded as learning disabled by the company and thus was covereddisabled by the company and thus was covered

An individual who:

(have to start with definition, which I ask you to learn as SO2)

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SO1A, continuedSO1A, continued

Most of the lawsuits filed have been about Most of the lawsuits filed have been about who is covered by the actwho is covered by the act Who is actually considered to have a Who is actually considered to have a physical physical

or mentalor mental disability that disability that substantiallysubstantially limits one limits one or more or more majormajor life activity life activity

All of the italicized words have been issues of All of the italicized words have been issues of major court cases major court cases

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SO1B: Second Controversy: SO1B: Second Controversy: EEOC guidelines vs. Supreme CourtEEOC guidelines vs. Supreme Court

When new EEO legislation is passed, the EEOC always When new EEO legislation is passed, the EEOC always issues guidelines for companies to followissues guidelines for companies to follow

In the past, the courts have always given “great deference” In the past, the courts have always given “great deference” to those guidelines, basically using them as a checklist to those guidelines, basically using them as a checklist when making decisionswhen making decisions

EEOC guidelines took a strong advocate stance for EEOC guidelines took a strong advocate stance for individuals -VERY liberal guidelinesindividuals -VERY liberal guidelines

The Supreme Court narrowed ADA’s application, ruling a The Supreme Court narrowed ADA’s application, ruling a manner that decreased the number of individuals who were manner that decreased the number of individuals who were covered (conservative)covered (conservative)

NOT SO WITH ADA

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SO1B, continuedSO1B, continued

First, this caused mass confusion - companies had First, this caused mass confusion - companies had no clue about what was acceptable and what was no clue about what was acceptable and what was not (that is, who was covered and who was not)not (that is, who was covered and who was not)

Second, some district and circuit courts abided by Second, some district and circuit courts abided by the EEOC guidelines and some did notthe EEOC guidelines and some did not

Different laws in different parts of the countriesDifferent laws in different parts of the countries Lower courts that abided by EEOC, found decisions Lower courts that abided by EEOC, found decisions

overturnedoverturned Eventually, this led to the ADA Amendments ActEventually, this led to the ADA Amendments Act

Signed by President Bush (reluctantly) 9/28/08Signed by President Bush (reluctantly) 9/28/08 Took effect Jan. 1, 2009Took effect Jan. 1, 2009

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SO1C: SO1C: What does the ADA Amendments Act do? What does the ADA Amendments Act do? For the most part, the act negates the Supreme For the most part, the act negates the Supreme

Court decisions, which favored organizations, and Court decisions, which favored organizations, and broadens the coverage of ADA back to what its broadens the coverage of ADA back to what its framers called the “original intent” of ADAframers called the “original intent” of ADA

Most of the wording is consistent with the original Most of the wording is consistent with the original EEOC guidelines for ADAEEOC guidelines for ADA

Note that what happened here is similar to what Note that what happened here is similar to what happened with Title VII and the Supreme Court’s happened with Title VII and the Supreme Court’s rulings that led to the CRA of 1991rulings that led to the CRA of 1991

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NFE: But how coverage changed and the NFE: But how coverage changed and the impact of ADAAA on discrimination claimsimpact of ADAAA on discrimination claims

When ADA was passed, it was expected that it When ADA was passed, it was expected that it would protect the then estimated would protect the then estimated 43 million43 million Americans with physical and mental disabilitiesAmericans with physical and mental disabilities

After the Supreme Court decisions, coverage was After the Supreme Court decisions, coverage was narrowed to an estimated narrowed to an estimated 13.5 million13.5 million individuals individuals

Since ADAAA, with the scope of coverage restored, Since ADAAA, with the scope of coverage restored, claims of unfair discrimination under ADA have claims of unfair discrimination under ADA have increased by 42% (from 2009-2011)increased by 42% (from 2009-2011)

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Third Major Controversy: Mental DisabilityThird Major Controversy: Mental Disability

Framers included mental disabilities, howeverFramers included mental disabilities, however There isn’t any clarifying language about what a There isn’t any clarifying language about what a

mental disability ismental disability is Now, the highest number of cases filed are related to Now, the highest number of cases filed are related to

mental disabilities (SO1D) mental disabilities (SO1D) Hence, inclusion of the McDonald articleHence, inclusion of the McDonald article

““The Americans with Difficult Personalities Act”The Americans with Difficult Personalities Act” EEOC: Getting along with others - a major life activityEEOC: Getting along with others - a major life activity Sleeping, sex, and reproduction - major life activities that can be Sleeping, sex, and reproduction - major life activities that can be

affected by anti-depressant medicationaffected by anti-depressant medication ““My disability made me do it!”: rude and insubordinate behaviorMy disability made me do it!”: rude and insubordinate behavior

(Back to the four major controversies)

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SO1E: Fourth major issue, SO1E: Fourth major issue, individual considerationindividual consideration

Each and every case must be handled on an Each and every case must be handled on an individual basis. Why?individual basis. Why? Individuals who have the same disability are not Individuals who have the same disability are not

affected the same wayaffected the same way Degree of disability differsDegree of disability differs The extent to which the disability interferes with a The extent to which the disability interferes with a

major life activity differsmajor life activity differs Extent and nature of accommodations that Extent and nature of accommodations that

individuals require in the workplace differindividuals require in the workplace differ

(places considerable burden on the employer; plus the controversies I have just mentioned make it very difficult for companies to know when they areIn compliance)

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SO3: What percentage of workers are disabled SO3: What percentage of workers are disabled and how many disabilities covered?and how many disabilities covered?

According to the definitionAccording to the definition 25%25% of the labor force is covered by ADA of the labor force is covered by ADA At least At least 900900 different disabilities different disabilities

Those numbers make is clear why this Act is so Those numbers make is clear why this Act is so difficult for employers, given that each and every difficult for employers, given that each and every case must be handled on an individual basiscase must be handled on an individual basis

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SO4: (NFE) Who is excluded?SO4: (NFE) Who is excluded? ExclusionsExclusions

Homosexuals and bisexualsHomosexuals and bisexuals TransvestitesTransvestites TranssexualsTranssexuals PedophilesPedophiles ExhibitionistsExhibitionists VoyeursVoyeurs Others with any type of sexual behavior disordersOthers with any type of sexual behavior disorders Compulsive gamblersCompulsive gamblers KleptomaniacsKleptomaniacs PyromaniacsPyromaniacs Those currently using illegal drugs, hence drug testing IS legal Those currently using illegal drugs, hence drug testing IS legal

under ADA (if no longer using, covered) (medical marijuana, later)under ADA (if no longer using, covered) (medical marijuana, later) Active alcoholics Active alcoholics who cannot perform their job duties or who who cannot perform their job duties or who

present a threat to the safety or property of otherspresent a threat to the safety or property of others (otherwise (otherwise covered; and if no longer drinking, covered)covered; and if no longer drinking, covered)

(conservatives required this; Some states, particularly CA have state laws where some of these groups are included in a state ADA act)

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SO5: What in addition to a disability must be SO5: What in addition to a disability must be present for a person to be “disabled” under ADApresent for a person to be “disabled” under ADA

Disability must Disability must substantiallysubstantially limit one or more limit one or more major major life activitieslife activities

The ADAAA altered:The ADAAA altered: The definition of “substantially limits” (SO6A)The definition of “substantially limits” (SO6A) What constitutes a “major life activity” (SO6B)What constitutes a “major life activity” (SO6B)

Adopted the EEOC definitions that the Supreme Court had Adopted the EEOC definitions that the Supreme Court had made more restrictivemade more restrictive

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SO6A: Substantially LimitsSO6A: Substantially Limits

ADAAA defines “substantially limits” as “materially ADAAA defines “substantially limits” as “materially restricts”restricts” Did not change the wording, just defined itDid not change the wording, just defined it Difference seems subtle to us, but it is not from a legal Difference seems subtle to us, but it is not from a legal

perspectiveperspective

NFE: State laws can be more liberal and when that NFE: State laws can be more liberal and when that is the case, you must follow the state lawsis the case, you must follow the state laws CA and NJ: disability must only CA and NJ: disability must only limitlimit (not substantially (not substantially

limit or materially restrict)limit or materially restrict) Again, it’s a big difference from a legal perspectiveAgain, it’s a big difference from a legal perspective

(NFE - EEOC prefers state laws, this is why; laws can be more liberal, more inclusive, but they cannot be less inclusive)

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SO6B: Major Life ActivitySO6B: Major Life Activity

ADAAA ADAAA Expanded the definition to the activities identified by the Expanded the definition to the activities identified by the

EEOCEEOC Added bodily functions (virtually all of them)Added bodily functions (virtually all of them)

(specifics next slide)

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SO6B: Major Life Activity, this slide NFESO6B: Major Life Activity, this slide NFE

Partial list of major life activitiesPartial list of major life activities Caring for oneself, performing manual tasks, walking, seeing, Caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, sleeping, learning, working, sexual hearing, speaking, breathing, sleeping, learning, working, sexual function, reproduction, sitting, standing, bending, lifting, reaching, function, reproduction, sitting, standing, bending, lifting, reaching, thinking, concentrating, and interacting with othersthinking, concentrating, and interacting with others

Reproduction was used to justify the coverage of a woman who had Reproduction was used to justify the coverage of a woman who had asymptomatic HIVasymptomatic HIV

Partial list of bodily functionsPartial list of bodily functions immune system, normal cell growth, digestive, bowel, bladder, immune system, normal cell growth, digestive, bowel, bladder,

neurological, brain, circulatoryneurological, brain, circulatory

Note that some of these may occur outside of the work place and thus the Note that some of these may occur outside of the work place and thus the employer may have no clue about them - sleeping, cell growth, sexual employer may have no clue about them - sleeping, cell growth, sexual functioning, reproduction. Generally, it is up to the employee to disclose functioning, reproduction. Generally, it is up to the employee to disclose a disability and request accommodation, if necessary.a disability and request accommodation, if necessary.

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SO7: MitigationSO7: Mitigation 7A: What is mitigation under ADA?7A: What is mitigation under ADA?

Correction or amelioration of a disability due to prosthetic Correction or amelioration of a disability due to prosthetic devices or medicationdevices or medication Eyesight - corrected by glasses Eyesight - corrected by glasses Hearing - corrected by hearing aidsHearing - corrected by hearing aids High blood pressure - corrected by medicationHigh blood pressure - corrected by medication Depression - corrected by medicationDepression - corrected by medication

7B: Prior to ADAAA, what was (a) EEOC’s position and 7B: Prior to ADAAA, what was (a) EEOC’s position and what was the Supreme Court’s position?what was the Supreme Court’s position? EEOC guidelines: Disability must be considered in its EEOC guidelines: Disability must be considered in its unmitigatedunmitigated

state state Supreme Court: Disability must be considered in its Supreme Court: Disability must be considered in its mitigated mitigated statestate

If the disability is mitigated, then the person is not covered by ADAIf the disability is mitigated, then the person is not covered by ADA Supreme Court was more conservativeSupreme Court was more conservative

(This issue caused more than its fair share of trouble; two SC cases are described in the text)

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SO7: MitigationSO7: Mitigation

7C: Where does it stand today due to ADAAA?7C: Where does it stand today due to ADAAA?Mitigating measures other than ordinary eye Mitigating measures other than ordinary eye glasses and contact lenses shall not be glasses and contact lenses shall not be consideredconsidered

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SO9: Direct threat clauseSO9: Direct threat clause

9A: If a person has a disability as defined by 9A: If a person has a disability as defined by ADA, but the person poses a direct threat to the ADA, but the person poses a direct threat to the safety or health of others in the work place or for safety or health of others in the work place or for its customers, the employer can legitimately its customers, the employer can legitimately notnot hire that personhire that person

9B: How did the Supreme Court expand that 9B: How did the Supreme Court expand that ruling?ruling? The issue: Does the direct threat clause apply to the The issue: Does the direct threat clause apply to the

worker himself worker himself as well as to others?as well as to others?

(not in the text but has become critical – many original rulings of the courts did not take this direct threat clause into consideration; case is next)

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SO9: Direct threat clause case, SO9: Direct threat clause case, this slide NFEthis slide NFE

Chevron v. EchazabalChevron v. EchazabalMan with a liver problem applied to work at Chevron Man with a liver problem applied to work at Chevron where he would be exposed to chemicals/solvents that where he would be exposed to chemicals/solvents that could lead to further and more severe liver problems. could lead to further and more severe liver problems. Chevron did not hireChevron did not hire Interesting, if they hired, and he became seriously impaired, the Interesting, if they hired, and he became seriously impaired, the

company would have to pick up part of the tab through its health company would have to pick up part of the tab through its health coverage plan coverage plan

District Court and Court of Appeals for the Ninth Circuit: District Court and Court of Appeals for the Ninth Circuit: Ruled in favor of the workerRuled in favor of the worker

Supreme Court: Reversed in favor ChevronSupreme Court: Reversed in favor ChevronEmployer can deny a job to a person because of a direct threat to Employer can deny a job to a person because of a direct threat to the health or safety of the health or safety of that individualthat individual, not only to others in the , not only to others in the work place and its customerswork place and its customers

HOWEVER:HOWEVER:(not in text, but important issue; concludes next slide)

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SO9: (NFE) Direct threat, cont.SO9: (NFE) Direct threat, cont.

In another case, the Supreme Court ruled that the direct threat clause did not apply to hiring a pregnant applicant who would be exposed to lead which, of course, would pose a health threat to her unborn child.

The court said that was “too paternalistic.”

That’s why the lower courts originally ruled the way they did in the Chevron case - they thought this precedent/ruling also applied to the individual himself or herself as well.

(Click after paternalistic; so, you can expose your unborn child to serious health/safety risks but you cannot expose yourself to health/safety risks under ADA)

maternalistic????

SO10: Three other ADAAA issuesSO10: Three other ADAAA issues

If a disability is episodic or in remission it is If a disability is episodic or in remission it is covered, but temporary impairments such as covered, but temporary impairments such as knee problems or recovery from surgery are notknee problems or recovery from surgery are not

Reverse discrimination claims are “not Reverse discrimination claims are “not cognizable” (not possible)cognizable” (not possible) Discrimination against nondisabled individuals is not a Discrimination against nondisabled individuals is not a

violation of ADAAAviolation of ADAAA This clause was included due to reverse discrimination This clause was included due to reverse discrimination

cases brought under Title VIIcases brought under Title VII

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(white males brought lawsuits when they were disadvantaged)

SO10: Three other ADAAA issuesSO10: Three other ADAAA issues

Individuals covered only under the “regarded as” Individuals covered only under the “regarded as” prong/clause are not entitled to reasonable prong/clause are not entitled to reasonable accommodationaccommodation NFE, but I need to back up a bit:NFE, but I need to back up a bit:

In order to be covered by ADA, the individual must be In order to be covered by ADA, the individual must be able to perform the essential features of the job able to perform the essential features of the job with or with or without reasonable accommodationwithout reasonable accommodation

ADAAA provision makes sense: individuals covered ADAAA provision makes sense: individuals covered under “regarded as” prong aren’t really disabledunder “regarded as” prong aren’t really disabled

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SOs 14 & 15: Medical testsSOs 14 & 15: Medical tests

(Sos 11-13 are straightforward; 14&15 are related - medical testing and examinations; VERY IMPORTANT!!!!)

ADA prohibits pre-employment inquiries about a ADA prohibits pre-employment inquiries about a person’s disability, and/or the nature and severity person’s disability, and/or the nature and severity of the disability if the disability is obviousof the disability if the disability is obvious

SO14: Thus, any type of test that could reveal a SO14: Thus, any type of test that could reveal a disability, or the nature and severity of a disability disability, or the nature and severity of a disability is considered a “is considered a “medicalmedical” examination and ” examination and cannot cannot be administered before an offer is made……be administered before an offer is made……

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SOs 14 & 15: Medical testsSOs 14 & 15: Medical tests

(Sos 11-13 are straightforward; 14&15 are related - medical testing and examinations; VERY IMPORTANT!!!!)

SO15: SO15: However, the offer may be made However, the offer may be made contingent upon passing a medical examinationcontingent upon passing a medical examination If everyone is required to take the examIf everyone is required to take the exam If the results are kept confidential and maintained in a If the results are kept confidential and maintained in a

file that is separate from the person’s file that is separate from the person’s application/employment file*application/employment file*

*Assumes, of course, the test is job related or has business necessity as well

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SO16: Drug testingSO16: Drug testing

Drug testing is Drug testing is notnot considered a medical test considered a medical test under ADAunder ADA You can administer a drug test before an offer is You can administer a drug test before an offer is

mademade Why? Why?

Those using illegal drugs are excluded from Those using illegal drugs are excluded from coverage under ADA. Thus, while many would coverage under ADA. Thus, while many would consider drug testing a medical test, it is not consider drug testing a medical test, it is not considered a medical test considered a medical test under ADAunder ADA

(I dealt with this previously, but want you to learn this point now; so drug test away)

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SO16: NFE, medical marijuana and SO16: NFE, medical marijuana and drug testingdrug testing

18 states and the DC have passed medical 18 states and the DC have passed medical marijuana lawsmarijuana laws

If a person has a disability and uses medical If a person has a disability and uses medical marijuana, what about drug testing?marijuana, what about drug testing?

Many laws protect employers with clauses like Many laws protect employers with clauses like “employers are not required to accommodate the “employers are not required to accommodate the medical use of marijuana in any workplace.”medical use of marijuana in any workplace.”

However, laws are varied and there have not yet However, laws are varied and there have not yet been many cases but cases favor the been many cases but cases favor the organization when they have been testedorganization when they have been tested

(had sufficient cases, however, all ruled the same; but I have been wrong before…case summary next)

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SO16: NFE, medical marijuana and SO16: NFE, medical marijuana and drug testingdrug testing

California Supreme Court, 2008California Supreme Court, 2008 OK to fire a worker after drug testOK to fire a worker after drug test Employers are under no obligation to accommodate Employers are under no obligation to accommodate

medical marijuana on or off the jobmedical marijuana on or off the job The law protects the individual from criminal The law protects the individual from criminal

prosecution but provides no protection on the jobprosecution but provides no protection on the job Why? Marijuana remains classified as an illegal Why? Marijuana remains classified as an illegal

substance under federal lawsubstance under federal law

(one of the first…Michigan case next)

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SO16: NFE, medical marijuana and SO16: NFE, medical marijuana and drug testing, Michigan casedrug testing, Michigan case

66thth Circuit Court of Appeals, Sept. 2012 Circuit Court of Appeals, Sept. 2012 OK to fire a worker after drug testOK to fire a worker after drug test

Wal-Mart in Battle Creek fired an employee who has an Wal-Mart in Battle Creek fired an employee who has an inoperable brain tumor after he failed a drug testinoperable brain tumor after he failed a drug test

Employee was using marijuana legally under state lawEmployee was using marijuana legally under state law

Upheld the district court ruling made in 2011Upheld the district court ruling made in 2011 Same rationale as in CASame rationale as in CA

Employers are under no obligation to accommodate medical marijuana on or Employers are under no obligation to accommodate medical marijuana on or off the joboff the job

The law protects the individual from criminal prosecution but provides no The law protects the individual from criminal prosecution but provides no protection on the jobprotection on the job

Why? Marijuana remains classified as an illegal substance under federal lawWhy? Marijuana remains classified as an illegal substance under federal law

(one of the first…Washington case next)

Washington State Supreme CourtWashington State Supreme Court

Ok not to hire a customer service consultant for Ok not to hire a customer service consultant for her legal, at-home use of marijuanaher legal, at-home use of marijuana Applicant disclosed her use during the hiring processApplicant disclosed her use during the hiring process Gave the company a copy of her physician’s Gave the company a copy of her physician’s

authorizationauthorization Was not hired after a pre-employment drug screen Was not hired after a pre-employment drug screen

when she tested positive for THC.when she tested positive for THC.

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(all decisions have been consistent and based on the same rationale)

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SO17: “Psychological” tests (mental SO17: “Psychological” tests (mental disorder and personality tests)disorder and personality tests)

Are psychological tests medical examinations Are psychological tests medical examinations under ADA?under ADA? Their use is very controversial under ADATheir use is very controversial under ADA Sometimes psychological tests are medical Sometimes psychological tests are medical

examinations; sometimes they are not - and, experts examinations; sometimes they are not - and, experts don’t all agree with respect to which ones are don’t all agree with respect to which ones are “medical” tests and which ones are not“medical” tests and which ones are not

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SO17, cont: Psychological testsSO17, cont: Psychological tests 17A: If the test is designed to identify mental disabilities, 17A: If the test is designed to identify mental disabilities,

then the test is considered a medical test (MMPI and then the test is considered a medical test (MMPI and somesome personality tests) personality tests) California Personality Inventory (relatively popular in selection) deleted 28 California Personality Inventory (relatively popular in selection) deleted 28

items they felt might have posed problems (see article)items they felt might have posed problems (see article) Courts have not ruled whether such a test would be considered to be a test Courts have not ruled whether such a test would be considered to be a test

of pathologyof pathology

Why are tests of mental disability and pathology Why are tests of mental disability and pathology considered medical tests under ADA?considered medical tests under ADA?ADA protects individuals with mental disabilities and the employer is not ADA protects individuals with mental disabilities and the employer is not supposed to know whether or not the person is disabled or the extent of the supposed to know whether or not the person is disabled or the extent of the disability at the time of an offerdisability at the time of an offer

(used to be fairly common practice to administer MMPI to applicants for police and fire positions BEFORE interview - can’t do that anymore; 2 years ago I had a formerStudent drop by - he had applied for a position in the police academy in San Diego - he had passed the written exam, he was waiting for the interview, and told me that if he was offered the job, he would then have to take the MMPI - and the job was indeed contingent upon

his passing the MMPI.)

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SO17, cont: “Psychological” testsSO17, cont: “Psychological” tests

17B: What is the most cautious (best) approach 17B: What is the most cautious (best) approach to the administration of psychological tests as to the administration of psychological tests as selection tests?selection tests?Consider them all medical tests, and like other medical Consider them all medical tests, and like other medical tests,tests, administer them only post-offer, with the offer made administer them only post-offer, with the offer made contingent on the outcome of the examcontingent on the outcome of the exam. .

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SO 18: “Qualified” under ADASO 18: “Qualified” under ADA

ADA pertains ONLY to ADA pertains ONLY to qualifiedqualified individuals with individuals with disabilities - that is, individuals who are qualified to disabilities - that is, individuals who are qualified to perform the job in questionperform the job in question

SO18: How does the ADA define a “qualified SO18: How does the ADA define a “qualified individual?”individual?”A qualified individual is one who can perform the A qualified individual is one who can perform the essential functions of the jobessential functions of the job with or without with or without reasonable accommodationreasonable accommodation

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NFE: Strange case re essential functions of the job, NFE: Strange case re essential functions of the job, Cleveland v. Policy Management Systems, 1999Cleveland v. Policy Management Systems, 1999

Woman was receiving social security payments Woman was receiving social security payments for for total disabilitytotal disability on the grounds that she was on the grounds that she was completely unable to work because of her completely unable to work because of her disabilitydisability

She applied for a job at Policy Management She applied for a job at Policy Management SystemsSystems

Company denied hiring based on the fact that she Company denied hiring based on the fact that she was getting social security payments because she was getting social security payments because she could not work (and hence could not perform the could not work (and hence could not perform the essential functions of the job)essential functions of the job)

The issue: Would the court grant her a trial to The issue: Would the court grant her a trial to determine whether she was covered by ADA?determine whether she was covered by ADA?

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NFE: Strange case re essential NFE: Strange case re essential functions of the jobfunctions of the job

What did the court rule?

Yep, you guessed it - the court granted her a trialon the grounds that if she were not able to performthe essential features of the job, the company could (and had to) prove that.

(working is a major life activity and thus she was covered by ADA; the reason I am presenting these strange cases - burden placed on companies and while our sympathies may lie with the disabled generally, think of yourself as a selection specialist advising the company about what it should do)

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SO19: When doesn’t an employer have to SO19: When doesn’t an employer have to provide a “reasonable accommodation?”provide a “reasonable accommodation?”

When it causes When it causes undue hardshipundue hardship for the for the organizationorganization

Again, however, it’s pretty unclear what Again, however, it’s pretty unclear what “undue hardship” constitutes. “undue hardship” constitutes.

NFE: What factors influence “undue NFE: What factors influence “undue hardship?”hardship?”

Nature and cost of the accommodation; size, Nature and cost of the accommodation; size, type, and nature of the facility and its parent type, and nature of the facility and its parent companycompany

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NFENFE

Must an employer compromise performance Must an employer compromise performance standards as a reasonable accommodation?standards as a reasonable accommodation?

NO

(NFE) This issue is not addressed in ADA, but precedents have been set by the Rehabilitation Act of 1973 that the employer does not have to compromise “legitimate” performance standards

However, you better clearly state those standards and include them as essential functions of the job

Well, experts don’t think so, anyway!!

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SO20 NFE: ADA does not require SO20 NFE: ADA does not require preferences be given to disabled individualspreferences be given to disabled individuals

ADA is an EEO law administered by the ADA is an EEO law administered by the EEOC and as such does not require AA EEOC and as such does not require AA For example, the Supreme Court has ruled that For example, the Supreme Court has ruled that if there is a vacant position and if a union if there is a vacant position and if a union contract exists thatcontract exists that designates that seniority designates that seniority rights will be used to fill the position, the union rights will be used to fill the position, the union contract takes precedence over an individual contract takes precedence over an individual who has a disability as defined by ADA and has who has a disability as defined by ADA and has requested the job as a “reasonable requested the job as a “reasonable accommodation” accommodation”

(very recent controversy re preferences for a vacant job)

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SO 17: “Qualified” under ADASO 17: “Qualified” under ADA

What is an essential job function? (NFE)What is an essential job function? (NFE) The primary reason the job exists - very important The primary reason the job exists - very important

implications for job analysisimplications for job analysis Are others in the position required to perform it?Are others in the position required to perform it? Would removing the function fundamentally alter the Would removing the function fundamentally alter the

position?position? Most important: Did a job description exist before Most important: Did a job description exist before

advertising and interview begins that contains that advertising and interview begins that contains that function?function?

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SO22: Why the EEOC guidelines created chaos and SO22: Why the EEOC guidelines created chaos and how they differ from the what the framers intendedhow they differ from the what the framers intended

Framers intended that only mental disorders as Framers intended that only mental disorders as defined in the DSM (Diagnostic and Statistical defined in the DSM (Diagnostic and Statistical Manual of Mental Disorders) be considered Manual of Mental Disorders) be considered mental impairmentsmental impairments Clearly, McDonald questions some of these as well Clearly, McDonald questions some of these as well

(and I agree)(and I agree) EEOC guidelines stated that while the DSM is EEOC guidelines stated that while the DSM is

“relevant” other diagnoses can also be covered“relevant” other diagnoses can also be covered Chronic lateness syndromeChronic lateness syndrome Sexual impulse control disorderSexual impulse control disorder

(just a few SOs on the McDonald article)

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SO22: Why the EEOC guidelines created chaos and SO22: Why the EEOC guidelines created chaos and how they differ from the what the framers intendedhow they differ from the what the framers intended

Courts made some “bizarre rulings”Courts made some “bizarre rulings” One decision ruled against a company that had fired One decision ruled against a company that had fired

an employee for bringing a gun to work on the grounds an employee for bringing a gun to work on the grounds that carrying the gun resulted from a psychiatric that carrying the gun resulted from a psychiatric disturbancedisturbance

A mentally disabled individual who was discharged for A mentally disabled individual who was discharged for threatening to kill coworkers was granted a trial to threatening to kill coworkers was granted a trial to determine whether she was covered by ADA when she determine whether she was covered by ADA when she applied for reinstatement applied for reinstatement

This type of issue has now been settled under the This type of issue has now been settled under the “direct threat” clause of ADA“direct threat” clause of ADA If an individual is a danger to employees, customers, or If an individual is a danger to employees, customers, or

himself/herself, the person is not “qualified” himself/herself, the person is not “qualified”

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SO27: Emerging rule re rude, SO27: Emerging rule re rude, insubordinate and disruptive behaviorinsubordinate and disruptive behavior

If rude, insubordinate, or disruptive behavior If rude, insubordinate, or disruptive behavior can be attributed to a mental disorder, as long can be attributed to a mental disorder, as long as it does not involve violence or serious threats as it does not involve violence or serious threats of violence (the direct threat clause of ADA), it of violence (the direct threat clause of ADA), it is protected by ADA and must be is protected by ADA and must be accommodated.accommodated.This “emerging” rule does appear to be codified This “emerging” rule does appear to be codified now by ADAAA. now by ADAAA.

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SO28: How is the emerging rule relevant SO28: How is the emerging rule relevant to selection specialists?to selection specialists?

When you conduct a job analysis you cannot assume as When you conduct a job analysis you cannot assume as has been done in the past that “getting along with others” has been done in the past that “getting along with others” is a required KSAis a required KSA

You must list “getting along with colleagues, supervisors You must list “getting along with colleagues, supervisors and/or customers” as an and/or customers” as an essentialessential function of the job (if, of function of the job (if, of course, it is)course, it is)

Only individuals who can perform essential job functions Only individuals who can perform essential job functions (with or without reasonable accommodation) are covered (with or without reasonable accommodation) are covered by ADAby ADA

This is also true for attendance, because many court This is also true for attendance, because many court cases have ruled that absence from work is a “reasonable cases have ruled that absence from work is a “reasonable accommodation” (the extent/length of absence has not yet accommodation” (the extent/length of absence has not yet been clarified)been clarified)

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SO28: NFE, Attendance; essential job SO28: NFE, Attendance; essential job function and reasonable accommodationfunction and reasonable accommodation

All employers consider regular, predictable attendance to All employers consider regular, predictable attendance to be an essential job function, thus most do not list it in a job be an essential job function, thus most do not list it in a job descriptiondescription Some cases under the Rehabilitation Act state that attendance is an Some cases under the Rehabilitation Act state that attendance is an

essential job even if not stated in the job descriptionessential job even if not stated in the job description But these cases involve absenteeism on a scale that would astonish But these cases involve absenteeism on a scale that would astonish

most private employersmost private employers EEOC has claimed that absences are a “reasonable EEOC has claimed that absences are a “reasonable

accommodation”accommodation” EEOC maintains that absence from the job (due to a disability) is a EEOC maintains that absence from the job (due to a disability) is a

reasonable accommodation even if that absence extends six to reasonable accommodation even if that absence extends six to eight monthseight months

MostMost courts have made contradictory rulings, but no cases have courts have made contradictory rulings, but no cases have reached the Supreme Courtreached the Supreme Court

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SO28: NFE, Attendance, essential job SO28: NFE, Attendance, essential job function and reasonable accommodationfunction and reasonable accommodation

Even though regular, predictable attendance may be an Even though regular, predictable attendance may be an essential job function, a particularessential job function, a particular numerical level numerical level of of attendance may not beattendance may not be Accommodation of appointments with a psychologist is considered Accommodation of appointments with a psychologist is considered

to be a reasonable accommodationto be a reasonable accommodation Hospitalization is considered to be a reasonable accommodationHospitalization is considered to be a reasonable accommodation Leave of absence is considered to be a reasonable accommodationLeave of absence is considered to be a reasonable accommodation Attendance policies should be applied in a discretionary way, using Attendance policies should be applied in a discretionary way, using

# and frequency of absences, and patterns (adjacent to weekends # and frequency of absences, and patterns (adjacent to weekends or holidaysor holidays

Take-home point for selection specialists:Take-home point for selection specialists:You should include coming to work and attendance as essential You should include coming to work and attendance as essential functions of the job in the job analysis and job descriptions and notify all functions of the job in the job analysis and job descriptions and notify all applicants of its requirements.applicants of its requirements. Back it up with data from the job analysis, otherwise, you may lose Back it up with data from the job analysis, otherwise, you may lose

that challenge, even if you list it as an “essential job function.”that challenge, even if you list it as an “essential job function.”

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NFE: A case of essential functionsNFE: A case of essential functions at WMU at WMU

A professor who had a stroke claimed coverage A professor who had a stroke claimed coverage under ADA and asked for two teaching assistants under ADA and asked for two teaching assistants to teach many of his/her classes and to grade all to teach many of his/her classes and to grade all of the exams because he/she was unable to do so of the exams because he/she was unable to do so because of his/her disability.because of his/her disability.Is teaching an essential job of the professor and, Is teaching an essential job of the professor and, if so, was this a reasonable accommodation?if so, was this a reasonable accommodation?

(answer not on slide)

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NFE: Reasonable accommodation at NFE: Reasonable accommodation at WMU, Mr. Glenn’s system WMU, Mr. Glenn’s system

Is the individual covered by ADA?Is the individual covered by ADA? Submit medical records that address the following:Submit medical records that address the following:

Diagnosis?Diagnosis? Prognosis - is it a long-term or temporary condition?Prognosis - is it a long-term or temporary condition? Any known mitigating factors?Any known mitigating factors? Recommended accommodationsRecommended accommodations

If the individual does not submit the above, do not move If the individual does not submit the above, do not move forward with accommodationforward with accommodation

If individual submits the above, a high level committee If individual submits the above, a high level committee considers:considers: Is the individual covered by ADA?Is the individual covered by ADA? Are the accommodations “reasonable” as requestedAre the accommodations “reasonable” as requested If not, are there alternative accommodations?If not, are there alternative accommodations?

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End of Unit 3End of Unit 3

Questions/Comments???Questions/Comments???