Law and People with Disabilities

10 October

• Jody Hannah: employment law for people with disability (Title I of the ADA).
• All of the litigation is about the definition of disability. If an employer can show that an employee doesn't fit that description, the employee can't use the law to protect themselves.
• The Sutton trilogy. Sutton was about national airline pilots who wanted to be international pilots, but who had contacts. They're not disabled with contacts.

  So there are groups of people who congress intended to protect, but whose mitigating measures takes them out from under the ADA. Thus, a one-eyed truck driver is not disabled because his body mitigates by allowing him to turn his head.

• So most of this gets done in summary judgment. And it's really difficult to say much about psychiatric disability: does medication "work" enough to make someone non-disabled, or can the side effects be disabilities themselves?
• Is "working" a major life activity? You need to show that you can't do your job but that you could with some accomodation, if you want the law to help.

  And this was really hard (Toyota). So that's why we get the ADA amendments.

• One good thing about the original ADA is that it dealt with people as individuals, not listings (as in social security law). The inquiry is case-by-case, not an extensive definitional analysis.
• The ADA amendments try to clarify "major life activities," and "substantially limits." And it covers people associated with someone with a disability (e.g., parent of a child with a disability) from discrimination. But most importantly, it rejects the Sutton mitigation analysis: you look at a person without regard to their efforts to mitigate. Plus it expressly disapproves of Toyote.
• Caring for one's self, performing manual tasks, seeing, hearing, learning, reading, concentrating, lifting, sleeping, communicating, etc., are major life activities nowadays. And so now someone with, say, autism doesn't need to start from scratch: communication is a major life activity. And so are the operations of major body systems. But, it seems driving is not.
• The ADA amendments also address disabilities that are episodic or in remission.
• So you can have a disability even though you're not symptomatic, but regular glasses and contacts won't count. "Transitory" (less than 6 months) and "minor" (definition not yet set by caselaw) disabilities don't qualify.
• And a big piece of this is the employer's state of mind: was the discriminatory decision based on disability?
• The next frontier is about what is "reasonable" versus "unreasonable" in terms of accomodation.
• Orr:
  A lot of the decisions are sort of strange and tortured like this. Orr went on to be a very public person who went around the country speaking about how the ADA didn't help him.

  "Undue hardship" is a defense, and therefore must be proven by the employer. And the employer's resources might be a factor (i.e., Wal-Mart has more to work with than a small stand-alone pharmacy).

  "Direct threat" is likewise, but it's an individual inquiry, not a broad assessment.

• The ADA doesn't protect someone currently engaged in the illegal use of drugs or alcohol. So drug tests at work are OK, and you can't assert that you're an addict as an ADA-based defense to your termination.

  On the other hand, being an addict who isn't currently using (i.e., you've rehabilitated yourself) might count (record of a disability or perceived as having a disability).

• ADA amendments passed in 2008, some of it went into effect in 2009, so we're just seeing the cases now.
• The reasonable accomodation process
  Making facilities accessible, modifying a schedule, modifying a job, extra training, etc. Anything that a person with a disability needs to overcome a symptom or impairment or other obstacle to the performance of their job.

  The accomodation has to address a problem that the person has related to their disability.

  It's an interactive process: the person with the disability comes forward and makes a request. So this means that a person has to disclose their disability. Should you do this in the hiring process? If you do, it's very easy to make an argument about why you weren't selected. Of course, maybe you need an accomodation in the interview process (moving it to someplace accessible, getting an interpreter, etc.).

  Next the employer proposes accomodations. It's not up to the employee to pick what they want. The employer can decide how best to accomodate. And then there's back-and-forth.

• The ADA covers employers with 15 or more employees. But it covers all aspects: recruiting, promotion, assignments, compensation, etc. Private employers, labor unions, local governments, etc. But not the federal government (they have their own laws).
• As long as the person is able to perform the "essential functions" of the job, they're protected. So there can be debate over what the "essentials" are. This is why job descriptions say things like how much you need to lift, etc.
• An employer can ask for medical verification. And it's pretty hard to get a good letter from a doctor (and, in the doctors' defense, it's not practicing medicine, it borders on advocacy). The first letter is usually not that helpful, and pretty open-ended. So then the employer will ask a bunch of clever questions of the doctor.

  Lots of litigation here in trucking. Trucking leads to bad backs. Also police officers. Things where you need licenses and stuff.

• You have to exhaust your administrative remedies first. Most cases settle (conciliation/remediation). It can take a long time (9 months to a year). And EEOC could decide to litigate a case itself (enforcing the law for the citizens), but that is rare-ish. What most people are waiting for is their right-to-sue letter: this doesn't mean there has/hasn't been discrimination, most often it just means they don't have time to investigate fully. And once you've got that, you need to file within 90 days.
• After a discriminatory incident (under state or federal law), you have to file your report within 300 days.
• But finding a lawyer can be hard too (because even if they're ultimately going to be paid by an attorney fee award, there are start-up costs, so some retainer will be required).
• WI law: Wisconsin Fair Employment Act. This covers every employer, even those too small for ADA. The definitions here are different from the ADA as well, and arguably there's less that has to be proved. The duty to accomodate is also stronger; there's still the undue hardship defense, but the ranges of accomodations considered reasonable are broader (there are no "per se unreasonable accomodations," and the employer has to show unreasonableness if that's their defense). And we don't have "essential functions:" accomodations could be made in any aspect of the job. If you file with DWD, it's cross-filed with EEOC, and vice-versa.
• "Front pay:" paying someone during the time it takes them to find a job. This is available, but courts are reluctant.
• "Clemency and forbearance" is a requirement in WI: temporary violation of of policies (e.g., not sleeping at desk). Target Stores v. LIRC,.
• We have until 12/23 to turn in paper. 4:30 12/23.