ADA news news reviews to peruse.

              ADA NEWS
1997
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" News Reviews to Peruse"
Number 35 January 15, 1997
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinions expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Comments, contributions or questions, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- THE PRESIDENT'S COMMISSION ON EMPLOYMENT OF PEOPLE WITH DISABILITIES has a new website at www. pcepd. gov. Information for employers and employees in a variety of employment- related areas is offered, including fact sheets on job accommodations, the ADA, interviewing and communications, and a listing of state contacts.
- TITLE II AWARD - In one of the highest awards ever under Title II of the ADA, a 5th U. S. Circuit Court of Appeals ( TX, LA, MS) jury awarded $ 362,000 to a college student expelled from Southeastern Louisiana University. The student, who was a candidate for an elementary education degree, allegedly was expelled because she is deaf. Some members of the school administration had expressed doubts that a deaf person could adequately teach elementary students. ( Grantham v. Moffett, C. A. No. 93- 4007- N- 3, 5th Cir. 1996)
- MIXED- MOTIVE CASE - In discrimination law, courts often have to decide " mixed motive cases" - where discrimination was a reason for an adverse personnel action, but not the only reason, e. g., a worker who is not hired because she is not the most suitable candidate, but where evidence of disability- based bias in the hiring process also exists. In Title VII cases, some courts follow the rule that an action caused partially by an impermissible reason is invalid; others use a rule ( the " Mt. Healthy" rule) that the employee must show that the impermissible reason was a " substantial factor" in the action and, if the employee succeeds, the employer must show that it would have taken the action regardless of the impermissible reason. A few courts have required the employee prove that the impermissible reason was the sole reason for the adverse action. Finally, the 1991 Civil Rights Act, which amended Title VII, provides that where an employer can prove that the action would have been taken absent the impermissible reason, it will not have to pay compensatory or punitive damages or back pay, or reinstate, hire or promote the employee.
Now, the 11th U. S. Circuit Court of Appeals ( AL, GA, FL) has ruled that an ADA plaintiff does not have to show that his disability was the only reason an employer took an adverse personnel action in order to succeed in an ADA lawsuit. The decision reversed the trial court, which had ruled against the plaintiff because he had not proved that he was discharged solely for his disability. The appellate court held that the plaintiff could prevail if he proved that discrimination was the deciding factor in the decision, i. e., when the discrimination makes the difference in the employer's decision. ( McNely v. Ocala Star- Banner Corp., 99 F. 3d 1068, 6 ADCases 78, 11th Cir. 1996)
- SUBSTANTIAL LIMITATION - An employee who was fired while undergoing chemotherapy treatment did not have a claim under the ADA because his condition was not " substantially limiting" and did not amount to a disability under the Act, according to the 11th Circuit court in another case. In reversing the trial court, the appellate court recognized that the treatments resulted in side effects such as weakness, hair loss and nausea, but that his physician had said he was able " to continue with his normal activities." The employee was fired after a dispute with his supervisor, and brought suit under the ADA. ( Gordon v. Hamm & Assoc., CA11, No. 95- 3077, 12/ 4/ 96)
- " BOSSECTOMY" DENIED - The 7th U. S. Circuit Court of Appeals ( WI, IL, IN) has affirmed a lower court's grant of summary judgment in a case in which an employee had claimed that her anxiety, depression and temporary mandibular joint disorder were caused by job stress created by her supervisor. The employer granted the employee leave for therapy, gave her short- term disability leave and offered her the opportunity to bid on other jobs, but denied her request to be placed with a different supervisor. According to the court, an employer is not required to place an employee with another supervisor in order to accommodate her disability. ( Weiler v. Household Finance Corp., CA7, No. 95- 3063, 11/ 27/ 96)
- IMPORTANCE OF ESSENTIAL FUNCTIONS - A recent decision by the 5th U. S. Circuit Court of Appeals emphasizes the importance of clear, complete essential job functions. The Court reversed a grant of summary judgment in favor of the employer, where the employer was unable to show that meeting intermediate project milestones was an essential job function of a terminated employee. Evidence indicated that the employee had no trouble meeting final deadlines, but that his disability - diabetes with vision and renal system problems, causing severe fatigue - interfered just with his ability to meet intermediate deadlines. The employer claimed that the employee was fired for not meeting the intermediate deadlines, which the court found was pretext. ( Riel v. Electronic Data Systems Corp., 6 ADCases, CA5, 11/ 1/ 96)
- INTERACTIVE PROCESS NECESSARY - An employer must engage in " a flexible, interactive process" with a mentally ill employee in order to reach an accommodation, according to the U. S. Circuit Court of Appeals for the 7th Circuit. In a case decided late last year, a public school custodian with severe mental illness was assigned to work at a large school upon his return from an extended disability leave, and was required to take a return- to- work physical. He was also told that he " would not be accommodated as he was at his former assignments." After a tour of the new school, the custodian feared he was not up to the job and failed to report for the physical or for work. The custodian was fired, but a few hours later delivered a letter from his psychiatrist to the school system requesting that he be assigned to a " less stressful" school. The appellate court found that the letter was sufficient to require the school system to engage the custodian or his psychiatrist in a discussion about a job accommodation. The school system was aware of his disability but gave him no chance to prove he could perform his job with an accommodation. The court held that the custodian's difficulty in requesting an accommodation, caused by his mental illness, did not relieve the employer of its responsibility to accommodate him. ( Bultemeyer v. Fort Wayne Community Schools, 6 ADCases 67, CA7, 1996)
- MILLION- DOLLAR AWARD IN HIV CASE - A New York jury has awarded $ 1.4 million to a hotel bartender who was discharged after his employer learned the bartender is HIV- positive. After learning of his condition, the hotel took unwarranted disciplinary actions against the bartender in order to justify his eventual termination. The award included $ 1 million in punitive damages. ( Greenway v. Buffalo Hilton Hotel, DC WNY, No. 94- CV- 878A, 10/ 18/ 96)
- REASSIGNMENT ACCOMMODATIONS - The 7th and 8th U. S. Circuit Courts of Appeals have handed down decisions regarding employers' responsibility under the ADA to offer reassignment as a job accommodation. In the 7th Circuit case, the court held that " the ADA may require an employer to reassign a disabled employee to a different position as a reasonable accommodation where the employee can no longer perform the essential functions of their current position." The appellate court found that the lower court erred when it held that the Act only requires reassignment to a position for which the employee is qualified in the same department or in a job to which the employee had previously requested reassignment. ( Gile v. United Airlines, Inc., 95 F. 3d 492, 5 ADCases 1466, 7th Cir. 1996)
In the 8th Circuit, the Circuit Court similarly held that an employer's duty to reasonably accommodate an employee may include reassignment to a position the employee is otherwise qualified to perform, even if the reassignment means reallocating the marginal tasks of the new job. The court specifically rejected the employer's argument that, because the employee was no longer qualified to perform the essential job functions of the mechanic's position to which he was assigned, the employee was therefore unable to perform in any mechanic position. ( Benson v. Northwest Airlines, Inc., 62 F. 3d 1108, 4 ADCases 1234, 8th Cir. 1995)
- VIOLENT TEMPER NOT A DISABILITY - A federal district court in Kansas has decided that a fired employee's violent temper does not entitle him to ADA protection. After a co- worker ended a romantic relationship, the employee stalked her, continuing despite warnings from management that such conduct could result in discharge. After the co- worker filed battery charges based on a stalking incident which ended in an assault, the employer resolved to fire the employee. The employee quit before he was fired, then brought suit under the ADA, claiming protection because he was perceived as dangerous, a threat to other employees, unstable, and that he may " go postal" or " go ballistic." The court found that the employee had demonstrated " poor judgment, irresponsible behavior, and poor impulse control," but that he failed to show that there was a perception that he was mentally or emotionally impaired. Even if he had, the court continued, he failed to prove that the employer's stated reason for discharge - his violent behavior and the disruption of the workforce - were pretext. ( Fenton v. Pritchard Corp., USDCKan, No. 95- 2156, 5/ 30/ 96)
- ATTACHMENTS - Attached you can find two articles pulled from " Information Technology and Disability," a magazine on the Web:
1. " Job Accommodation," by Joseph Lazarro
2. " Online Information and Networking News," by Steve Noble
I hope 1997 is a happy and healthy year for all of you! - Ed. JOB ACCOMMODATIONS
EDITED BY JOSEPH J. LAZZARO
LAZZARO@ WORLD. STD. COM
Access to Windows and Windows 95 continues to be at the forefront of vocational rehabilitation for the blind and visually impaired. The disability community has long been aware of the problems that the graphical user interface has presented for computer users with limited vision. In order to solve the accessibility problem, Microsoft has created Active Accessibility, a series of hooks that will enable adaptive hardware and software to more easily communicate with the Windows 95 operating system. Active Accessibility holds the promise of increased reliability, stability, and increased efficiency in general. It should be noted that several screen reader developers have indicated publicly and privately that they will be supporting Active Accessibility in their screen reader software programs. Microsoft has also incorporated many of the features from their older Windows Access Pack, and have made them part of the default Windows 95 installation. It should be noted with pride that many of the utilities now available in Windows 3.1, 95, Macintosh, and Unix began life at the Trace Research & Development Center in Madison Wisconsin. Funded by NIDRR, the Trace Center is responsible for increasing access across the board, although it is not widely known. With all this in mind, we bring you two articles that were previously published in Byte Magazine. The first article describes the basic accessibility features that are currently built into Windows 95. The second article appeared in the December 1996 issue, and describes two accessible web browsers -- Microsoft Internet Explorer, and Productivity Works PWWebSpeak. Internet Explorer is the first Microsoft product to have Active Accessibility hooks built- in, and works with Windows 95 based screen readers. PWWebSpeak is a talking Internet browser that provides both speech and enlarged video output.
Copyright ( c) 1995 - 1996, McGraw Hill Inc.
WINDOWS 95: AIDING THE DISABLED
NEW WINDOWS 95 FEATURES ASSIST COMPUTER USERS WHO HAVE DISABILITIES
Joseph J. Lazzaro
If you run an office staffed with more than 15 employees, you must comply with the Americans with Disabilities Act. This may require that you provide adaptive hardware and software on office workers' computers. Such equipment enables workers with disabilities to accomplish many tasks independently. For example, if you are blind, it can transform on- screen text to synthesized speech or braille. If you can't hear, adaptive hardware transforms a computer's audible cues into a visual format. So far, adaptive technology has consisted of third- party add- ons to OSes, with the exception of the Mac. This has resulted in adaptive equipment that only sometimes works. Fortunately, because of lobbying by the disabled community, OS vendors have begun to embed adaptive- access features directly into their OSes. This makes such features widely available right out of the box, more reliable, and a lot less expensive. Microsoft began to build a suite of disability- access features starting with Windows 3. x. Win 95 offers access to a built- in set of utilities that accommodate users with hearing, motor, and some visual disabilities. Furthermore, the Win 95 Help system includes information on these built- in accessibility features. The control and configuration of most of these features are centralized in an Accessibility Options Control Panel, as shown in the screen. This Control Panel lets you activate or deactivate specific access features and customize timings and feedback for certain utilities. It also lets you set hot keys so that you can activate these features quickly.
Keyboard and Mouse
Using a keyboard requires a significant amount of hand dexterity, particularly when using the modifier keys, such as Shift, Control, and Alt. For persons unable to use a standard keyboard or mouse easily -- if at all -- several Win 95 utilities can help by altering the keyboard's behavior. You can configure these utilities in a pane on the Accessibility Options Control Panel. The StickyKeys utility, for instance, helps you type capital letters or manage complex key sequences, like Control- Alt- Delete, that require the use of both hands. StickyKeys lets you press one key at a time in a sequence instead of pressing multiple keys simultaneously. Another powerful utility, FilterKeys, helps users who accidentally strike keys by filtering out those keystrokes that do not fall under a user- definable time duration. In other words, for a key press to become a valid keystroke, it must be held down long enough to register. Any keystrokes that don't last for the specified duration are discarded. ToggleKeys is a utility that provides audio feedback for certain keystrokes. This is a useful tool for computer users who are unable to determine the status of the keyboard's modifier keys by using any other method. The ToggleKeys utility provides both high- and low- pitched beeps that indicate the current status of the Caps Lock, Num Lock, and Scroll Lock keys. Driving a mouse demands strong hand/ eye coordination and good hand/ arm agility. It's a prerequisite for using the GUIs on many of today's desktop computers. MouseKeys assists users who have difficulty pointing the rodent. The program lets you use the arrow keys on the keyboard's numeric keypad to move the mouse pointer around the screen and emulate mouse actions, such as clicking, double- clicking, dragging, and dropping. Holding down the Control key accelerates pointer movement, while holding down the Shift key propels the pointer a pixel at a time, offering fine- grained control.
Video and Sound
For persons who have difficulty seeing images on a standard computer screen, Win 95 offers several features that make the monitor easier to see. Some of these features are simply a matter of adjusting certain Control Panel settings. For example, if you are visually impaired, you can use the Display Panel to scale the size of various user- interface elements, such as window titles, scroll bars, borders, menu text, and icons. The Mouse Control Panel allows you to adjust the mouse pointer's characteristics. You can select from among several sizes ( small, medium, and large), which is valuable for users with limited vision or learning disabilities. You can also adjust the pointer's color and apply animation effects to increase its recognition factor and visibility. For users with limited vision, color plays an important role in their ability to read comfortably -- or at all. Again, Win 95' s built- in customization features enable you to modify the color scheme of the environment. You can select a high- contrast mode or choose from several ready- made appearance schemes that make it easier for users with limited vision to focus on the screen. The Accessibility Options Control Panel allows you to set a global flag that instructs your applications to employ the high- contrast color scheme, as shown in the screen. It also enables you to avoid schemes that are difficult to see, such as text that's displayed over pictures. For users who are deaf or hearing- impaired, Microsoft has implemented several useful features into Win 95 that increase access to the computer and its data. This is of vital importance as many applications begin to use text- to- speech or audio playback. Win 95' s SoundSentry lets you have sounds presented in an alternative format, such as visually or through text captions. ShowSounds lets you set a global flag that displays sounds in a visual format. This can be accomplished by several methods, depending on your preference. For instance, you can have the active window flash every time a sound is generated or display text captions that represent the sounds.
Third- Party Speech- Access Products
Despite all these improvements, Win 95 still lacks critical support for users who are totally blind and must rely on speech- synthesis systems to read the information on a computer screen. Microsoft plans to implement an off- screen model that captures on- screen information so that special- purpose software can perform a text- to- speech conversion on it or drive a braille- output device. Unfortunately, the hooks to this mechanism might still be unavailable when this article sees print. This sorry state of affairs presents an opportunity for third- party access technology, chief among them speech- and braille- output packages designed to read the screen.
( Readers Note: Since the publication of this article, Active Accessibility has shipped to independent software developers, and several developers have publicly and privately stated support for Active Accessibility. the proof of the pudding now lays in the hands of the independent software developers and Microsoft as Active Accessibility continues to evolve.)
The Automatic Screen Access program for Windows ( ASAW), from MicroTalk, is one of the latest Win 95 screen readers to enter the market. ASAW works with Win 3. x and Win 95 applications. Biolink's ProTalk32 is a screen reader for Win 95. A Win 3. x and NT version is also available. Winvision, from Arctic Technologies, runs on both Win 3. x and 95 and supports several commercially available speech synthesizers. Winvision also drives braille displays, providing a tactile representation of Windows screens. Syntha- Voice's Window Bridge, which runs under Win 3. x, Win 95, and DOS, was the first Windows- based screen reader to enter the adaptive market. Computers play a major role in our society; they're used at home, at school, and on the job. It only makes sense for OSes to provide adaptive- access features. This makes the computer accessible to everyone, no matter what their abilities, so they can make a contribution in the workplace. Microsoft has done a commendable job so far with much- needed improvements to Win 95. But the company still has a lot of work to do if Windows is going to provide OS- level support for blind computer users.
Where to Find:
Arctic Technologies Troy, MI Phone: ( 810) 588- 7370 Fax: ( 810) 588- 2650
Biolink North Vancouver, British Columbia, Canada Phone: ( 604) 984- 4099 Fax: ( 604) 985- 8493 Internet: http:// biz. bct6l. net/ biolink
MicroTalk Texarkana, TX Phone: ( 903) 792- 2570 Fax: ( 903) 792- 5140 Internet: http:// www. screenaccess. com
Syntha- Voice Stoney Creek, Ontario, Canada Phone: ( 905) 662- 0565 Internet: http:// www. synthavoice. on. ca/~ davidk
BROWSE THE WEB WITH YOUR EYES CLOSED
Surfing the Internet's World Wide Web can be extra challenging if you can't see the screen. For thousands of blind or visually impaired computer users, the Web is accessed using speech, braille, or screen- enlargement hardware/ software. If you have a PC and a visual disability, it is possible for you to access the Web, but most Web sites won't work well with your adaptive equipment.
Webmasters who don't add descriptive tags to elements in their pages make it more difficult for adaptive programs to describe to a blind user what's on the screen. But the good news is that awareness about adaptive technology is increasing in the computer industry. Microsoft is leading an ambitious effort to make adaptive technology more mainstream, and Netscape is investigating ways to make its software better support accessibility products. Microsoft's Active Accessibility program will make future versions of Windows and its applications more accessible to users with vision impairments. Software developers can use the Accessibility SDK, slated to ship in November, to write adaptive programs that run on top of Windows.
The flagship Active Accessibility product is Microsoft Internet Explorer ( MSIE) Version 3.0, which has hooks to enable screenreader software used by the blind community. MSIE works more effectively with synthesizers, braille displays, large print programs, and other assistive technology.
The Productivity Works ( 609- 984- 8044 or info@ prodworks. com) wrote its Web browser for the blind from scratch. PWWebSpeak has its own built- in speech processor, and does not require a separate screen reader program. PWWebSpeak parses a Web page's HTML code to present the information in a more speech- friendly manner. You can browse through pages by word, sentence, paragraph, or link units. The program also presents the Web page in enlarged format at the same time. PWWebSpeak can drive a wide variety of speech synthesizers, including the SoundBlaster voice card.
With increasing awareness of adaptive technology among mainstream software developers, the future may loom a bit brighter for computer users with disabilities.
Joseph J. Lazzaro is the author of Adapting PCS for Disabilities ( Addison- Wesley, 1996). He is also project director of the Adaptive Technology Program at the Massachusetts Commission for the Blind in Boston. You can reach him at lazzaro@ world. std. com or at lazzaro@ bix. com. ONLINE INFORMATION AND NETWORKING NEWS
Steve Noble, Recording for the Blind and Dyslexic slnobl01@ ulkyvm. louisville. edu
ONLINE INFORMATION SYSTEMS
DIAL- JAN Bulletin Board
The President's Committee on Employment of People with Disabilities' Job Accommodation Network announces the re- opening of its electronic bulletin board DIAL- JAN. The Job Accommodation Network is a consulting and referral service providing information about accommodating people with disabilities. This online bulletin board can be accessed by dialing 1- 800- DIAL- JAN ( 1- 800- 3425- 526). The bulletin board will now be open from 10am to 10pm, Eastern time. If you have any questions, please call 1- 800- 526- 7234 in the US or 1- 800- 526- 2262 in Canada, or you may direct e- mail to jan@ jan. icdi. wvu. edu.
PEOPLE WITH SPEECH DISABILITIES NOW HAVE A TELEPHONE SUPPORT SERVICE
If you are a Californian with a speech disability ( but can hear) you can now use a new, free telephone assistance service 24 hours a day. This service, called Speech- to- Speech, provides human voicers for people who have difficulty being understood by the public on the telephone. You can dial 800- 854- 7784 to reach a trained operator who makes telephone calls for you and repeats your words exactly.
Users now make about 3,000 calls a month. Speech- to- Speech is also useful if you use a speech synthesizer. Speech- to- Speech is the only way for many people to telephone others not accustomed to their speech. Many Speech- to- Speech users are people with Parkinson's disease or cerebral palsy.
If you would like to use this free service, please make your first call by dialing 800- 854- 7784 and then asking the operator who answers to connect you to 916- 927- 3794. If enough people identify themselves as users, the California Public Utilities Commission will make Speech- to- Speech permanent. Callers from other states may also use Speech- to- Speech to connect to telephone numbers within California following the same procedure.
For further information on Speech- to- Speech, contact Bob Segalman or Cindy Gooch at 916- 927- 3787 V/ TT; 916- 649- 1665 FAX; or Toll Free at 1- 888- 3SPEECH. You may also address email to: Bob. Segalman@ deaftek. sprint. com
DISTANCE LEARNING OPPORTUNITY
George Brown College offers a home- study Certified Electronics Technician CD- ROM program and presently has many students with disabilities enrolled. The CD- ROM consists of 23 courses and a laboratory software simulation package called Electronics Workbench that allows students to complete over 400 laboratory projects at home, using a computer. Each course contains videos, animations, photographs, text, illustrations, and computer- based testing and evaluation. Students who complete the program will receive a Certificate as an Electronics Technician. To find out if this program can be adapted for your specific disability and computer access environment, as well as pricing and other information, please contact Dr. Colin Simpson, Director, Learning Innovations, George Brown College, Toronto, Canada. You may direct E- mail enquiries to csimpson@ gbrownc. on. ca
DISCUSSION LISTS
BASR- L
The Browser and Screen Reader Listserv, BASR- L, is a professional mailing list for the discussion of access to the World Wide Web for individuals who use screen readers. The main focus of this mailing list is to improve access for Web users who are blind.
To subscribe to the list, send E- mail to listproc@ trace. wisc. edu with a blank subject line and the following line in the body of the text:
subscribe basr- l < your first and last name>
PLLD- L
The Public Libraries Learning Disabilities Initiative Listserv, PLLD- L, is an outgrowth of the American Library Association's project called Roads to Learning, and is intended to be a forum for people who want to learn more about learning disabilities and their implications for public library services and collections.
To subscribe to the list, send E- mail to listproc@ ala1. ala. org with a blank subject line and the following line in the body of the text: subscribe plld- l < your first and last name>
AFB
The American Foundation for the Blind, AFB, has established two new listservs. AFB's aging- vision listserv will be used to disseminate updates from AFB's National Aging and Vision Network, as well as legislative alerts, conference announcements, policy and program changes, and other related information. The other new listserv, brl- help, has been established to promote discussion about braille instruction in educational settings. To subscribe to either listserv, send an E- mail message to majordomo@ afb. org with a blank subject line and the following line in the body of the text: subscribe aging- vision or subscribe brl- help
SCiE
Students for Computers in Education, SCiE, is a new student group advocating the improvement of the education process through the use of computer technology. SCiE ( pronounced ' sky') is still a small group, and still needs members to make it grow. SciE is working closely with several software developing initiatives to make computer based learning more popular. Students with disabilities are encouraged to join and add important input on computer access issues.
One particular project, the Personal Knowledge System ( PKS), is being developed to become the standard in computer based learning. SCiE members can influence the development of this exciting project and will even have access to early software releases.
SCiE is currently running three mailing lists: SCiE- News -- The first mailing list is an announcement list. It is designed to keep all SCiE members informed of current developments, and software releases. It functions as an organization newsletter and no postings will be admitted to this list. The output of this list will probably not exceed one or two messages per week. If you decide to join SCiE it is recommended that you join at least this mailing list.
SCiE- PKS -- There is also a PKS discussion list. This list receives messages, and sends them to all members. This is the list for giving input, getting ideas, and some good old fashioned arguing. Contributing to this list is the way to share your ideas and influence the development of the PKS.
SciE- Gen -- This list is designed for other ideas on how the education process could be improved through computers. For this, there is a more general discussion list. This list is an open forum, on all ideas for computers in education.
To join a SCiE list:
Send an e- mail to listserv@ listserv. readadp. com and in the body of the message put the following line: sub < listname> < your name> In place of < listname> use one of the following: SCiE- News -- for the newsletter mailing list SCiE- PKS -- for the PKS discussion group SCiE- Gen -- for the open SCiE discussion group In place of < your name> type in your first and last name. For Example: sub SCiE- Gen Bill Clinton
To get more information about SCiE and the Personal Knowledge System, visit the SCiE homepage at: http:// www2. readadp. com/ scie/
WORLD WIDE WEB
INDIE
The Integrated Network of Disability Information, INDIE, is designed to be a comprehensive one- stop resource for products, services, and information for the world- wide disability community. To connect to INDIE, use the following URL: http:// www. indie. ca
FCC Disabilities Task Force The Federal Communications Commission's Disabilities Issues Task Force now operates a WWW site that contains information about telecommunications issues pertaining to persons with disabilities. To connect to their Web site, use t
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" News Reviews to Peruse"
Number 36 February 15, 1996
Items regarding the Americans with Disabilities Act which may
be of interest to you. Please share this information with
colleagues, supervisors and subordinates. The views and opinions
expressed herein are solely those of the editor, except where
noted, and do not represent the views of the Office of Chief
Counsel or the Department of Environmental Protection. Comments,
contributions or questions, including requests for accommodations
needed to receive or apprehend this publication, should be
addressed to Patrick H. Bair ( Ed.).
- ADAPTIVE SOFTWARE REQUIRED - The Office of Civil Rights of the
U. S. Department of Education has notified San Jose State
University that the University's practice of providing readers to
accommodate sight- impaired students using school computers is not
adequate to satisfy the requirement for reasonable accommodation
under the ADA. Based on the propositions that computers and the
World Wide Web are vital research tools for the modern student and
that sight- impaired students should be able to use computers " with
the same spontaneous flexibility that is enjoyed by other
nondisabled computer users," the OCR stated that adaptive software
to make computers accessible effectively achieves Title II's
objectives.
- PERCEPTION, BUT NO DISABILITY - The Third U. S. Circuit Court of Appeals ( PA, NJ, DE) recently reversed an order of a district
court granting summary judgment to General Electric Astrospace
( GEA) in a refusal to hire case brought under the ADA. The
applicant, a former employee of GEA who had been hospitalized for
depression, claimed that GEA refused to rehire him because of his
disability, his record of disability or a perception of
disability. The lower court dismissed all of the charges against
GEA. On appeal, the circuit court agreed that the applicant's
depression did not substantially limit any major life activity.
However, the Court returned the case to the lower court for
testimony on whether GEA perceived the applicant as having a
disability. Olson v. General Electric Astrospace, 1996 U. S. App.
LEXIS 31232 ( 3rd Cir. 1996)
- TITLE II = REGULATORY AUTHORITY? - Here's one to give you
nightmares: A federal trial court in Iowa has determined that the
term " program" as used in Title II of the ADA may include any
activity that a governmental entity can regulate. As you know, a
governmental entity must provide reasonable accommodations to
persons with disabilities in its programs and activities. In this
case, the city of Mallard, Iowa was sued by a 14- year old girl
with severe respiratory and cardiac conditions, who sought to
force the city to ban or restrict the burning of yard waste by
residents. The girl claimed that she had to stay indoors or leave
town whenever neighbors burned yard waste. The city moved to
dismiss her claim, claiming that backyard burning is not a
" program or service" of the city, as the city does not burn yard
waste or require its citizens to do so. The city's position was
supported by a U. S. Department of Justice advisory letter.
Nevertheless, the court held that Title II covered Mallard if its
regulation ( or lack of) of open burning had a " discriminatory
effect on the ability of people with disabilities to take
advantage of city services, programs or facilities." Look for this
case to be appealed. ( Can you imagine the effect of a similar
ruling on DEP?) Heather K. v. City of Mallard, 887 F. Supp. 1249
( 1995)
- DISABILITY OR CRIMINAL RECORD? - Polk County, Iowa did not
violate the ADA when it refused to rehire a stenographer who had
been fired for shoplifting, according to the U. S. Court of Appeals
for the Eighth Circuit ( ND, SD, NE, IA, MN, MO, AR). The
stenographer, who was fired from the county attorney's office
following her conviction of shoplifting charges, claimed that her
shoplifting was caused by mental health problems which had since
been resolved. She sued the county when it refused to rehire her
based on her criminal record. The court found the county's policy
of not hiring persons with criminal records to be reasonable and
consistent. In addition, the court stated that the ADA does not
require employers to overlook infractions of the law, and " may
hold disabled employees to the same standard of law- abiding conduct as all other employees." Harris v. Polk County, Iowa, CA8,
No. 96- 1476SI, 12/ 31/ 96.
- DIRECT THREAT ( OR NOT?) - Recent decisions in two federal
circuits give different views of what constitutes a " direct
threat" under the ADA. In the Fifth Circuit ( TX, LA, MS), the
U. S. Court of Appeals affirmed a lower court's judgment that an
employee of a chemical company who has insulin- dependent diabetes
posed a direct threat to himself and others and, thus, was not
qualified for his position. The employee was fired for repeatedly
not following company procedures, and sued the employer for
failure to accommodate. He admitted that at times his diabetes
adversely affected his ability to perform essential functions of
his position such as walking, climbing and concentrating. The
Court noted that the employee was required to work with
" complicated machinery and dangerous chemicals," and observed that
he had two accidents in two months which seriously jeopardized his
safety and that of others. There is no accommodation the employer
could make which would allow the employee to do his job, according
to the Court, including granting the employee's request to move to
permanent day shift. Turco v. Hoechst Celanese Chemical Group,
CA5, No. 96- 40038, 12/ 23/ 96.
Meanwhile, a federal jury in Detroit awarded a record $ 5.5
million ($ 4.3 million in punitive damages) to an employee with
epilepsy who sued his employer for failure to accommodate. The
employee was barred by federal transportation regulations from his
on- the- road job, then was subsequently rejected by the employer
for a job doing off- the- road yard work. The employer claimed that
the employee's epilepsy constituted a direct threat to himself and
others, stating that the job required him to climb " 18- foot
ladders." The jury concluded that the employer refused to
accommodate the employee, and added that they were " baffled by the
company's lack of any attempt to accommodate the plaintiff in any
regard." The EEOC prosecuted the claim on behalf of the employee.
EEOC v. Complete Auto Transit Inc., DC EMich, No. 95- 73427,
1/ 6/ 97.
- PANIC DISORDER NOT PROTECTED - The U. S. Court of Appeals for the
Tenth Circuit ( WY, UT, CO, KS, OK, NM) has decided that an
insurance company employee who experienced anxiety disorder from
the stress of advising customers by telephone of the denial of
their benefits is not a qualified employee. Responding to
telephone inquiries is an essential function of the position which
could not be accommodated or eliminated, according to the Court.
Smith v. Blue Cross Blue Shield of Kansas, CA10, No. 95- 3306,
12/ 17/ 96.
- MORE LOTTERY CASES - Add California to the list of states that
have been sued under the ADA by persons or organizations seeking to make lottery sales locations more accessible. Previously
are Pennsylvania, Texas, New Mexico and West Virginia. Ripley v.
California State Lottery, DC NCalif, No. C 96- 04666 MMC, 12/ 30/ 96.
- SUPREME COURT ADOPTS " PAYROLL" METHOD - What is an " employer"
for purposes of anti- discrimination law? Under Title VII and the
ADA, that determination depends on the number of employees the
employer has. Title VII and the ADA cover employers of " 15 or more
employees." Neither statute, however, defines " employee." Lower
courts have differed on the meaning of " employee" and the method
of counting employees. In an important case recently decided by
the U. S. Supreme Court, that Court has decided that the proper
method of counting employees is to use the so- called " payroll"
method. Under that method, an employee is counted if s/ he is a
full or part time employee on the employer's payroll at any time
during the time in question. ( For example, if the discrimination
alleged took place in February 1997, the number of employees is
the total number of all full and part time employees on the
employer's payroll at any time during the month. If the total is
greater than fifteen for Title VII and the ADA, the employer is
covered by the law.) The Court rejected the alternative
" day- to- day" method, which counts hourly or part time workers only
on days they are physically present at work or on paid leave
( resulting in a lower number of total employees and, thus, fewer
covered employers). " Ultimately crucial," stated the Court, is the
existence of an employment relationship, observing that any other
method would result in an " incredibly complex and expensive
factual inquiry." Walters v. Metropolitan Educational Enterprises,
USSCt., 72 FEP Cases 1211, 1997.
- RESIDENCY REQUIREMENTS UNDER FIRE - A federal trial court in
Massachusetts has allowed two fired city employees to proceed with
their ADA claims against the city of Boston. The employees - who
live outside the city limits in breach of the city's residency
requirement - contend that the requirement is discriminatory and
that the city refused to accommodate them by providing a waiver.
One employee lived in another city with family because she needed
help after kidney dialysis; the other, who is blind and uses a
wheelchair, moved to another city that provided wheelchair-
accessible housing. The Court found that the city failed to prove
it would incur undue hardship by granting a reasonable
accommodation. McDonald v. Menino, DCMass, No. 96- 10825, 1/ 3/ 97.
- SUBSTANTIALLY IMPAIRED? - This case was mentioned very briefly
in December's newsletter, but I now have more details which may be
of interest. The case involved an employee whose performance
deteriorated, despite several warnings, after his new supervisor
denied him a raise. After a final warning was issued, the employee
was diagnosed with clinical depression, and his psychologist
recommended his duties be restricted " to avoid responsibilities which require significant interaction with other employees" and
advised that he " should not be ridiculed, provoked or startled by
or in front of supervisors or other employees." When the
employee's performance failed to improve, he was fired and sued
under the ADA, claiming that he was substantially impaired in a
major life activity - the ability to get along with others. The
First U. S. Circuit Court of Appeals ( ME, MA, NH, RI, PR) on appeal
agreed that the employee had a mental impairment, and allowed that
" the ability to get along with others" might be a major life
activity; however, since the employee did not demonstrate that he
had difficulty interacting with anyone other than his supervisor,
he was not substantially impaired in any major life activity.
Soileau v. Guilford of Maine, CA1, No. 96- 17961, 1/ 23/ 97.
- LIFTING RESTRICTIONS - How restricted must a person's ability to
lift be before it indicates a " disability" under the ADA, i. e., a
substantial limitation on a major life function? Two federal
appellate courts have recently spoken on the issue and, though
there are other factors involved, there seems to be some
disagreement. The 4th U. S. Circuit Court of Appeals ( MD, VA, WV,
NC, SC) found " as a matter of law, that a 25- pound lifting
limitation - particularly when compared to an average person's
abilities - does not constitute a significant restriction on one's
ability to lift, work or perform any other major life activity."
Williams v. Channel Master Satellite Systems, 1996 U. S. App. LEXIS
30888 ( 4th Cir. 1996). Across the country, the 10th Circuit
determined that questions still remained about whether an employee
with multiple sclerosis, who has a 15- pound lifting restriction,
has a disability. Lowe v. Angelo's Italian Foods, 87 F. 3d 1170
( 10th Cir. 1996) So, somewhere between 15 and 25 pounds?
- ATTACHMENTS
1. Tips on accommodating people with psychiatric disabilities
from the Job Accommodation Network ( JAN)
2. A message from Tony Coehlo, Chairman of the President's
Committee on Employment of People With Disabilities
3. " Diversity and Disability," from the President's Committee
on Employment of People With Disabilities
Accommodating people with psychiatric disabilities
Many people with psychiatric disabilities ( e. g., depression, bipolar disorder, obsessive- compulsive disorder, panic disorder) perform the essential functions of their positions effectively without reasonable accommodation, yet some require accommodation. The following list outlines possible solutions to workplace problems for some people with psychiatric disabilities.
Employers must remember that deciding on effective accommodations is a case- by- case process, keeping in mind that functional limitations caused by psychiatric disabilities vary among individuals. In addition, whether an accommodation is reasonable or will pose an undue burden will depend on an employer's size, needs and resources.
___________________________________________________________________
Problem Possible accommodations
__________________________________________________________________
Maintaining stamina * Provide flexible scheduling.
during the workday * Allow longer or more frequent work breaks.
* Permit telecommuting.
* Allow job sharing.
* Permit time off for counseling.
__________________________________________________________________
Maintaining * Reduce distractions in the work area
concentration * Provide space enclosures or a private office.
* Allow for use of white noise or environmental
sound machines.
* Divide large assignments into smaller tasks.
___________________________________________________________________
Difficulty staying * Make daily to- do lists and check items off organized and as they are completed.
meeting deadlines * Use several calendars to mark meetings and
deadlines.
* Allow phone calls during work hours to doctors and others for need support.
___________________________________________________________________
Working effectively * Provide positive feedback.
with supervisors * Given written job instructions.
* Write clear expectations of responsibilities
and consequences of not meeting them.
* Allow for open communication to managers and
supervisors.
___________________________________________________________________
Handling change * Recognize that a change in the office
environment or of supervisors may be difficult for a person with a psychiatric disability.
* Maintain open communication between the
employee and the new and old supervisors.
* Provide weekly or monthly meetings with the
employee to discuss workplace issues and
production levels.
___________________________________________________________________
[ Source: Job Accommodation Network's ( JAN) pamphlet, " Accommodation Ideas for Persons with Psychiatric Disabilities." JAN can be reached at 918 Chestnut Ridge Road, Suite 1, West Virginia University, P. O. Box 6080, Morgantown, WV. 26506- 6080, ( 800) 526- 7234 ( voice or TTY), http:// janweb. icdi. wvu. edu.] Message From Chairman Tony Coelho
" Ability for Hire": The theme we have selected for this year's
awareness and educational program is more than a mere slogan; it is a statement of fact, an assertion of pride, and an advertisement to industry. It is a bold announcement that America's 49 million people with disabilities have boundless talents to contribute to our economy, vastly diversified skills to be utilized, and abundant energy for whatever work needs to be done.
We need to communicate to corporate executives, business leaders, entrepreneurs, government officials, and others with hiring authority something we all know to be true: The major challenges to productive employment of qualified people with disabilities are attitudinal barriers and narrow- minded assumptions about what people can and can not do.
What people with disabilities can do is be productive. There are people who are blind working as machinists. There are people who are amputees working on shipping platforms, loading and unloading cargo from trucks. There are sports announcers who cannot see, teachers who are deaf, business executives who are paraplegic, and employees with mental retardation packaging goods for catalogue companies and other major shippers.
They are working on Main Street and on Wall Street, in finance and high fashion, in the suburbs and in cities across the country. In high- profile jobs on network television and in routine, everyday jobs in thousands of ordinary workplace settings, people with disabilities are proving day after day that they have the talent, skill, and ability to do the job.
Whatever the challenge, people with disabilities have demonstrated an indomitable attitude and a will to meet the challenge. They have excelled at every level of industry and government. In the darkest days of World War II, the American people looked for inspiration to President Franklin Delano Roosevelt, a man with a disability.
Yet, 50 years later for far too many of us, the door to employment opportunity remains closed. While the ADA now forbids open discrimination against people with disabilities, prejudice has not disappeared from the marketplace. Prohibition of overt discrimination has not eliminated a more subtle level of bias. Too many qualified applicants still encounter doubt, distrust and discouragement. In too many offices, factories and retail shops, there's a hidden message in help- wanted signs that says, " No one with disabilities need apply."
Laws can require compliance by business and public accommodations, but legislation by itself cannot enforce fairness. We can build ramps and widen doorways, but we won't get the access we need and gain full admittance to the job market until we eliminate doubts about our ability and eliminate mindless discrimination in the workplace. The ramps we need to build are ramps to the mind.
Recent surveys tell us things are getting better. But not fast enough to make a difference to millions of unemployed Americans with disabilities. Signs of incremental progress offer encouragement, but provide little comfort to individuals who are locked out of jobs. We have succeeded in making overt discrimination illegal, but we have a long way to go before people with disabilities are offered equal opportunities. Equality based on ability remains an ideal rather than a reality.
We can change that. Your efforts to develop awareness and educate the public can help close the gap and bring reality into line with our expectations of liberty and justice for all.
Tony Coelho Diversity and Disabilities
Diversity Includes Disability
Workforce diversity has become a major management strategy for many employers in the 1990' s because it makes good business sense. A diverse workforce gives companies a competitive advantage by enabling them to better meet the needs of their customers, successfully compete in the global marketplace, and hire from an expanded labor pool.
Managing diversity involves the creation of an open, supportive, and responsive organization in which diversity is acknowledged and valued. Diversity is defined as all of the ways in which we differ. Some of these dimensions are race, gender, age, language, physical characteristics, disability, religion, sexual orientation, and other differences irrelevant to one's capacity to perform a job.
Why Do I Need To Know about Diversity and People with Disabilities?
According to recent studies, America's workforce is changing and rapidly growing more diverse. Over the next few decades, the largest percentage of new growth will be composed of women, ethnic minorities, and immigrants. The number of employees with disabilities will also increase. The current generation of Americans with disabilities is well prepared to be tapped for the job market and able to provide an added solution for the labor shortages facing American business.
People with disabilities are the nation's largest minority, and the only one that any person can join at any time. If you do not currently have a disability, you have about a 20% chance of becoming disabled at some point during your work life. People with disabilities cross all racial, gender, educational, socioeconomic, and organizational lines.
Companies that include people with disabilities in their diversity programs increase their competitive advantage. People with disabilities add to the variety of viewpoints needed to be successful and bring effective solutions to today's business challenges. The American economy is made stronger when all segments of the population are included in the workforce and in the customer base.
How Can My Company Support Diversity, Including Employees with
Disabilities?
Educate Yourself
+ Before moving ahead, study the issue.
+ Learn more about people with disabilities. A good way to start is to contact disability- related organizations for information.
+ Contact your local Governor's Committee on Employment of People with Disabilities, Centers for Independent Living,
State/ Local Vocational Rehabilitation Agencies, and
organizations and agencies that serve or represent specific
disabilities. Many of these organizations want to assist the
business sector, and some provide free training and
literature.
+ Talk to people with disabilities in your company and ask for their ideas and input.
Develop A Plan
+ Establish a system for educating and sensitizing all levels of your workforce on the value of hiring people with
disabilities.
+ If you have a diversity training program, make sure that employees with disabilities are included in this effort.
Consider The Following Action Items:
Recruitment and Outreach
+ Even before positions open, seek out opportunities to develop relationships with organizations, agencies, and programs that represent or train people with disabilities.
+ Participate or increase participation in summer internships or similar programs to increase the flow of qualified individuals with disabilities in the " pipeline."
+ When a position is approved for external hire, seek out qualified professional organizations that represent and serve people with disabilities.
+ When contracting with a retainer or contingency search firm, develop the contract to include qualified people with disabilities in the search. The contract should outline the steps that will be implemented to locate qualified people with disabilities.
Development and Planning
+ When task forces or other special committees are established, they should include people with disabilities.
+ Monitor to ensure that internal developmental programs are available to employees with disabilities.
+ Provide employees with disabilities candid and prompt
feedback on their performance.
+ When providing training or other off- site activities, make sure that they are accessible to employees with disabilities.
Compensation and Recognition
+ Monitor bonuses and stock awards so that consistent job- related standards are applied.
+ Monitor appraisal and total compensation systems so individuals with disabilities are treated without discrimination.
Where Can I Obtain Additional Information?
President's Committee on Employment of People with Disabilities ( 202) 376- 6200 ( VOICE), ( 202) 376- 6205 ( TTY/ TDD), ( 202) 376- 6219 ( FAX)
President's Committee on Employment of People with Disabilities' Job Accommodation Network ( JAN) ( 800) 526- 7234 ( VOICE/ TTY/ TOD), ( 304) 293- 5407( FAX) jan@ jan. icdi. wvu. edu ( e- mail)
Disability and Business Technical Assistance Centers ( DBTACs) ( 800) 949- 4232 ( VOICE/ TTY/ TOD), ( 703) 525- 6835 ( FAX) @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@@
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" News Reviews to Peruse"
Number 37 March 15, 1997
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinions expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Comments, contributions or questions, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- CLEARING THE AIR - Two cases - one in Pennsylvania - have recently examined the question whether an employer is responsible for providing clean air which does not exacerbate an employee's disability as a reasonable accommodation. In Geuss v. Pfizer, Inc., the federal court for the Eastern District of Pennsylvania refused to grant a new trial to an employer after a jury found it violated the ADA by refusing to accommodate an employee. The employee's asthma was aggravated when a new supervisor required him to do lab work different from that done previously. The jury found that transfer back to the previous supervisor would have been a reasonable accommodation. The court admitted that the question whether the employee was substantially limited in the major
activity of breathing was " a close one." Geuss v. Pfizer, Inc., 1996 U. S. Dist. LEXIS 18784 ( E. D. Pa. 1996).
In a separate decision, a federal trial court in Virginia rejected the claim of an employee who wanted to remain as a reasonable accommodation in a building after his department moved. The employee believed the new building had poorer air quality than the old, which he claimed aggravated his allergies. The employer had placed the employee on short- term disability leave, during which the air in both buildings was tested and found to be equivalent. The employer also made other efforts to ensure the cleanliness of the air in the new building, none of which satisfied the employee. The court found the employee had been reasonably accommodated. EEOC v. Newport News Shipbuilding & Drydock Co., 1996 U. S. Dist. LEXIS 18979 ( E. D. Va. 1996).
- ACCESSIBLE DISNEY - Disney has agreed to a Justice Department settlement of a complaint against its theme parks which charges that the rides, parades and staged events are not fully accessible to deaf and hard- of- hearing patrons. Under the agreement, Disney has agreed to provide regular interpreter services at designated attractions, interpreter services on specific request, and captioning.
- MERE OVERWEIGHT NOT A DISABILITY - A federal appellate court has decided that Ohio law enforcement officers who are overweight but not severely obese ( i. e., body weight exceeding the norm by more than 100 percent) do not have a claim under the ADA. The suit, which challenged Ohio's mandatory weight limits for troopers, had been dismissed by the trial court. The appellate court stated that " physical characteristics that are ` not the result of a physiological disorder' are not considered ` impairments' for the purposes of determining either actual or perceived disability." Andrews v. Ohio, 1997 U. S. App. LEXIS 457 ( 6th Cir. 1997)
- ATTACHMENTS -
1. " The Americans with Disabilities Act and Preventive Law:
An Ideal Fit"
2. " Diversity and Disabilities"
3. " Dispelling Myths about the Americans with Disabilities
Act"
THE AMERICANS WITH DISABILITIES ACT AND PREVENTIVE LAW:
AN IDEAL FIT
Copyright, 1995, by William D. Goren, Esq.
All Rights Reserved
It is the thesis of this paper that the Americans With Disabilities Act, hereafter the ADA, is an act made for preventive lawyering. By preventive lawyering, Professor Dauer has stated that there are three aspects to preventive lawyering. They are: 1) preventing problems before they happen; 2) minimizing problems so that small problems do not become big problems; and 3) when a problem does occur cutting your losses in a manner where everybody wins.
This article will explore various aspects of Titles I- III of
the Americans With Disabilities Act of 1990 ( ADA) and suggest ways
those provisions can be dealt with in the context of preventive
law. The approach for dealing with the ADA will necessarily
encompass all three aspects of preventive lawyering. More
specifically, after preliminary remarks, the article will be
divided into three categories. First, a preliminary comment about
what the practitioner should be thinking about when approaching
the ADA in a preventive law context. Second, various issues under
the ADA will be explored with the aim of offering suggestions on
how problems may be prevented. Third, various issues under the
ADA will be explored with the aim of offering suggestions on how
problems can be minimized so that they do not become large
problems. Finally, the article will explore why ADR, more
specifically mediation, is ideal for resolving ADA disputes that
might otherwise lead to expensive courtroom battles.
I. PRELIMINARY REMARKS
In order to engage in quality preventive lawyering with
respect to the ADA, understanding what drives the ADA is
absolutely critical. Without that understanding, ADA preventive
lawyering is simply not possible. What lies behind the ADA, in
this author's opinion, is the simple premise that persons who are otherwise able to work, access programs or facilities receive the
necessary accommodations so that they can get to the same starting
line as everyone else or equally enjoy the same programs and
facilities available to persons without disabilities.
II. PREVENTING PROBLEMS FROM OCCURRING
Whenever engaging in preventive lawyering, this author has
found it helpful to think outside the box, or, alternatively, do
not make it more complicated than it has to be. For example, let
us look at the area of job descriptions. By way of background, in order for a person to be protected under the ADA with respect to
employment, they must be a person with a disability as defined by
the ADA and they must be otherwise qualified. With respect to
employment, a person is deemed to be otherwise qualified where an
individual with a disabling condition satisfies the requisite
skill, experience and education requirements of the employment
position the individual holds or desires, and who, with or without
reasonable accommodation, can perform the essential functions of
the job. The EEOC lists several factors that are considered in
determining whether a job function is essential, and these factors
should be very helpful in helping the employer decide what is an
essential function.
While this author does not mean to suggest that these
guidelines should be ignored, it is suggested that good preventive lawyering means viewing essential functions of the job in a very
simple manner, i. e. what job functions are fundamental to carrying
out the particular job demanded of the employee. With regards to
essential functions, two points are critical if the practitioner
wishes to prevent problems arising under the ADA. First,
essential functions and major life activities are not necessarily synonymous. For example, for a softball umpire, hearing the game is not the essential function of the job rather the essential
function of the job is being able to call the balls and strikes
accurately and call safe or out accurately. Second, essential
functions are not the equivalent to tasks, and the lawyer would do
well to advise their client that job descriptions should stick to
functions and not tasks.
Sometimes preventing problems means understanding how other
laws interrelate with each other. One example, to be discussed
shortly, is Workers Compensation. Another example is the Family
and Medical Leave Act. The Family and Medical Leave Act allows an
employee of a company with more than fifty employees to take a
leave of absence where the employee has a serious health condition
and is unable to perform the functions of the job. This is different from the ADA; the ADA requires, as mentioned above, that
the employee be able to perform the essential functions of the job
with or without reasonable accommodations. A key difference
between the two acts is that FMLA speaks of functions ( the regulations do refer to essential functions) while the ADA speaks
in terms of essential functions of the job with or without
reasonable accommodations. In light of this, preventive law
demands considering the approval of leave or the return to work
by the employee taken for his or her own serious health condition
in terms of the employee being able to perform the essential
functions of the job with or without reasonable accommodations for
several reasons. First, the regulations implementing the Family
and Medical Leave Act talk about the need to evaluate the person's
condition in terms of essential functions, though they do not mention with or without reasonable accommodations. Second, it
removes the discrepancy between the Family and Medical Leave Act
and the ADA. Third, it is practical because an employee when
faced with the choice of working with or without reasonable
accommodations and between taking a leave of absence with at least
some lost of pay, will likely choose working with or without
reasonable accommodations. Finally, by the employee choosing to
work with or without reasonable accommodations, the employer
retains the ongoing services of a valued employee.
Turning our attention to public entities, public entities
have two unique problems to deal with when it comes to the ADA.
Both of these problems stem from the rules for accessibility being
different for public entities than they are for commercial
facilities and places of public accommodations. Each facility of
a public entity does not have to be accessible so long as the
program is accessible. However, the programs must be modified to
accommodate a person with a disability unless to do so would constitute an undue burden. Whereas, if the facility is a place
of public accommodation, modification of an existing facility is
governed by a readily achievable standard unless auxiliary aids
and services are involved, which are governed by an undue burden
standard.
Thus, there are two easy steps that can be taken to head off
problems. First, a clause specifying ADA responsibility should be
mandatory in all leases of a public entity, particularly where the
parties involve a public entity and a private entity. Second,
there needs to be a common sense approach to determining what the
programs of the public entities are. In making such a
determination for a public entity, the self- evaluation process
required of public entities by the ADA may be of some help. Also,
in determining what constitutes a program, the practitioner may
want to consider: 1) commonalities in the delivery of the
particular service; and 2) common usage of the term ," program" to
people in the governmental entity. It may be fairly obvious to
the people in the governmental entity as to what their particular
program is.
The area of Worker's Compensation is ripe for preventive
lawyering on two fronts and makes a nice transition from this
section of the article to the next section. First, easy steps can
be taken to prevent future problems. Second, some of the
employees may already be a problem and taking preventive steps
will prevent that person from becoming a bigger problem than he or
she already is. First, asking for Worker's Compensation history
in a pre- employment inquiry may be legal in some states , however
it is expressly prohibited by the ADA. Second, an entity must not
insist on a full and complete release before it allows the
employee to return to work. With the ADA, the issue is whether that person can perform the essential functions of the job with or
without reasonable accommodations given the person's physical or
mental condition. Finally, before terminating someone for
business necessity, evaluate whether the person can do the
essential functions of the job with or without reasonable accommodations. Failure to take this step prior to a business
necessity termination will probably not result in liability for
retaliation for filing a Worker's Compensation claim, but well could result in liability for violating the ADA.
III. PREVENTING A SMALL PROBLEM FROM BECOMING A LARGER ONE
In certain situations, preventive lawyering means going
beyond the letter of the law. For example, temporary disabilities
are not covered by the ADA. However, no one really knows just a disability ceases to be temporary and becomes permanent.
Accordingly, preventive lawyering demands that temporary
disabilities be treated as if they were permanent disabilities.
While not required by the ADA, the advantage to this approach is
that the employer retains a valued employee and maintains that
employee's productivity. The employer will also see the
employee's morale improve because the employer is demonstrating to
that employee its desire to do what it can to retain him or her.
The area of reasonable accommodations is an area of the ADA
replete with small problems that can become larger problems very
easily. It is also tailor made for preventive lawyering. In this
author's opinion, preventive lawyering in this area involves some
simple common sense steps. First, be creative and flexible: anything goes. Second, communicate with the employee so that you know what needs to be done. The person with a disability usually know what he or she needs to do the job effectively.
This second item is especially critical because no two
disabilities, even the same ones, are exactly the same. Lastly,
carefully document all attempts at reasonable accommodations.
Whenever a grievance exists, there is at least a small
problem. One way to keep these problems small is to have an ADA
grievance procedure. Such a procedure should be considered for the
following reasons. First, if a public entity is involved and it
has over fifty employees, an internal grievance procedure for
handling complaints of disability discrimination and designating a person to be the ADA coordinator are mandatory. If the entity
does not have an ADA grievance procedure, whether it be public private, such a procedure could well be good preventive lawyering
for the following reasons. First, it gives the entity a chance
to resolve the dispute before it escalates into a courtroom fight.
Second, it gives the public entity the chance to discover the
concerns of the aggrieved employee; the need to vent in these
cases is a particularly strong one. Finally, if a public entity is involved, it may represent the only chance for the public
entity to head off a courtroom battle because: 1) a person does
have a private cause of action under Title II of the ADA; 2)
Title II of the ADA covers employment discrimination for all
public entities regardless of size; and 3) a plaintiff does not
have to exhaust administrative remedies before filing suit under
Title II of the ADA.
IV. CUTTING LOSSES WHERE EVERYBODY WINS
Finally, sometimes problems occur. Preventive law means, in
this author's opinion, being able to cut your losses in those
situations in a manner where everybody's needs are satisfied.
Thus, ADR is a necessary component of preventive lawyering in the
context of the ADA for several reasons. First, the ADA is
extremely malleable and mediation is ideal where the law involved
contains considerable room for flexibility. Second, the plaintiff
with a disability is likely to be very upset and mediation
provides an ideal way for the plaintiff to vent. Third, by
venting the employer may see why the plaintiff feels the way he
or she does. It has been my experience that employers do not
realize how a person with a disability may feel demeaned by not
having their disability accommodated and by forcing the person
with a disability to go through an elaborate accommodation
process. This venting also provides an opportunity for the
mediator to educate the employer on the purpose behind the ADA:
namely to get people to the same starting line and not to bestow
any special benefits. Fourth, the venting process and the give
and take of mediation allows for the plaintiff to realize that the
ADA is much more than the plaintiff gets whatever they want; the
interests of the employer must also be taken into account.
Finally, since the ADA contains so many variables within it,
mediation offers both sides the opportunity to settle a case
fairly and avoid a very unpredictable environment at trial the only certainty is considerable expense incurred by both sides.
I hope by this paper that I have offered some practical steps
and suggestions that can be used by the practitioner to problems from occurring with respect to the ADA.
Diversity and Disabilities
Diversity Includes Disability
Workforce diversity has become a major management strategy for many employers in the 1990' s because it makes good business sense. A diverse workforce gives companies a competitive advantage by enabling them to better meet the needs of their customers, successfully compete in the global marketplace, and hire from an expanded labor pool.
Managing diversity involves the creation of an open, supportive, and responsive organization in which diversity is acknowledged and valued. Diversity is defined as all of the ways in which we differ. Some of these dimensions are race, gender, age, language, physical characteristics, disability, religion, sexual orientation, and other differences irrelevant to one's capacity to perform a job.
Why Do I Need To Know about Diversity and People with Disabilities?
According to recent studies, America's workforce is changing and rapidly growing more diverse. Over the next few decades, the largest percentage of new growth will be composed of women, ethnic minorities, and immigrants. The number of employees with disabilities will also increase. The current generation of Americans with disabilities is well prepared to be tapped for the job market and able to provide an added solution for the labor shortages facing American business.
People with disabilities are the nation's largest minority, and the only one that any person can join at any time. If you do not currently have a disability, you have about a 20% chance of becoming disabled at some point during your work life. People with disabilities cross all racial, gender, educational, socioeconomic, and organizational lines.
Companies that include people with disabilities in their diversity programs increase their competitive advantage. People with disabilities add to the variety of viewpoints needed to be successful and bring effective solutions to today's business challenges. The American economy is made stronger when all segments of the population are included in the workforce and in the customer base.
How Can My Company Support Diversity, Including Employees with
Disabilities?
Educate Yourself
+ Before moving ahead, study the issue.
+ Learn more about people with disabilities. A good way to start is to contact disability- related organizations for
information. + Contact your local Governor's Committee on Employment of People with Disabilities, Centers for Independent Living,
State/ Local Vocational Rehabilitation Agencies, and
organizations and agencies that serve or represent specific
disabilities. Many of these organizations want to assist the
business sector, and some provide free training and
literature.
+ Talk to people with disabilities in your company and ask for their ideas and input.
Develop A Plan
+ Establish a system for educating and sensitizing all levels of your workforce on the value of hiring people with
disabilities.
+ If you have a diversity training program, make sure that employees with disabilities are included in this effort.
Consider The Following Action Items:
Recruitment and Outreach
+ Even before positions open, seek out opportunities to develop relationships with organizations, agencies, and programs that represent or train people with disabilities.
+ Participate or increase participation in summer internships or similar programs to increase the flow of qualified
individuals with disabilities in the " pipeline."
+ When a position is approved for external hire, seek out
qualified professional organizations that represent and serve
people with disabilities.
+ When contracting with a retainer or contingency search firm, develop the contract to include qualified people with
disabilities in the search. The contract should outline the
steps that will be implemented to locate qualified people
with disabilities.
Development and Planning
+ When task forces or other special committees are established, they should include people with disabilities.
+ Monitor to ensure that internal developmental programs are available to employees with disabilities.
+ Provide employees with disabilities candid and prompt
feedback on their performance.
+ When providing training or other off- site activities, make sure that they are accessible to employees with disabilities.
Compensation and Recognition
+ Monitor bonuses and stock awards so that job- related standards are applied.
+ Monitor appraisal and total compensation systems so
individuals with disabilities are treated without
discrimination.
Where Can I Obtain Additional Information?
President's Committee on Employment of People with Disabilities
( 202) 376- 6200 ( VOICE), ( 202) 376- 6205 ( TTY/ TTD),
( 202) 376- 6219 ( FAX)
President's Committee on Employment of People with Disabilities'
Job Accommodation Network ( JAN)
( 800) 526- 7234 ( VOICE/ TTY/ TTD), ( 304) 293- 5407( FAX)
jan@ jan. icdi. wvu. edu ( e- mail)
Disability and Business Technical Assistance Centers ( DBTACs)
( 800) 949- 4232 ( VOICE/ TTY/ TTD), ( 703) 525- 6835 ( FAX)
Dispelling Myths about the Americans with Disabilities Act
The Americans with Disabilities Act ( ADA) is a civil rights law that is opening doors to the mainstream of life for the 49 million Americans with disabilities. There are many misconceptions surrounding the ADA. Listed below are the most commonly heard myths and the facts.
_________________________________________________________________
Assumption: ADA suits are flooding the courts.
Fact: The ADA has resulted in a surprisingly small number of
lawsuits- only about 650 nationwide in five years. That is tiny
compared to 6 million businesses, 666,000 public and private
employers, and 80,000 units of state and local governments that must comply.
Assumption: The ADA's definition of disability is broad and vague and has resulted in " bizarre and arcane" discrimination claims that are wasting the time of the EEOC and the courts.
Fact: As with any new statute, there is a period during which
employers and employees learn about their rights and obligations under the law. While individuals have the right to file charges, not all charges are meritorious. The job of the EEOC investigator is to separate the wheat from the chaff. Further, the flexibility provided by the ADA definition of " disability" means that there will be individuals who bring claims for conditions that do not satisfy the statutory standards, and the claim will be dismissed.
Assumption: The ADA forces business and government to spend lots of money hiring unqualified people with disabilities.
Fact: To be protected by the ADA an individual must be qualified. No unqualified job applicant or employee with a disability can claim employment discrimination under the ADA. Employees or job applicants must meet all the necessary requirements of the job and perform the essential functions of the job with or without reasonable accommodation. No accommodation must be provided if it would result in an undue hardship on the employer.
Assumption: The ADA, along with other laws such as the FMLA and Workers' Compensation, are squeezing out small businesses that cannot afford to hire human resource specialists to advise them regarding the complexities of these laws.
Fact: Truly small businesses, those with fewer than 15 employees, are not covered by the ADA. ( The FMLA only applies to employers with 50 or more employees.) For employers who are covered, the ADA provides an undue hardship defense for reasonable accommodations that are unduly costly or burdensome. Smaller employers can more easily establish undue hardship because they have fewer resources.
Assumption: The ADA is being misused by people alleging mental and neurological impairments.
Fact: The ADA covers individuals with physical or mental impairments that substantially limit major life activities because individuals with such impairments have traditionally been subjected to pervasive employment discrimination. Just as the ADA excludes people with temporary physical problems, so does it exclude people with mild or short- term mental health problems. Neurological impairments are conditions or diseases involving the nervous system, including the brain, spinal cord, ganglia, nerves, and nerve centers. ADA charges indicate that there is significant discrimination against persons with neurological impairments. Psychiatric impairments involve a biological, social, or psychological dysfunction. Individuals with psychiatric disabilities have traditionally been subjected to discrimination, not because they are unable to successfully perform job duties, but because of myths, fears, and stereotypes associated with such impairments.
Assumption: The ADA is rigid and requires businesses to spend lots of money to make their existing facilities accessible.
Fact: The ADA is based on common sense. The law recognizes that altering existing structures is more costly than making new
construction accessible. The law only requires that public
accommodations ( e. g., stores, banks, hotels, and restaurants) remove architectural barriers in existing facilities when it is " readily achievable" ( i. e., it can be done " without much difficulty or expense"). Inexpensive, easy steps that can be taken include ramping one step, installing a bathroom grab bar, lowering a paper towel dispenser, rearranging furniture, installing offset hinges to widen a doorway, or painting new lines to create an accessible parking space.
Assumption: ADA requires that sign language interpreters be used in all situations involving persons who are deaf.
Fact: The ADA only requires that effective communication not exclude people with disabilities- which in many situations means providing written materials or exchanging notes. The law does not require any measure that would cause an undue financial or administrative hardship.
Assumption: The ADA requires extensive renovations of all state and local government buildings to make them accessible.
Fact: The ADA requires all government programs, not all government buildings, to be accessible. " Program accessibility" is a very flexible requirement and does not require a local government to do anything that would result in an undue financial or administrative burden. Local governments have been subject to this requirement for many years under Title 5 of the Rehabilitation Act of 1973. Not every building, nor each part of every building needs to be accessible.
Structural modifications are required only when there is no alterative available for providing program access. Let's say a town library has an inaccessible second floor. No elevator is needed if it provides " program accessibility" for persons using wheelchairs by having staff retrieve books.
Assumption: Everyone claims to be covered under the ADA.
Fact: To be protected under the law, a person must have an impairment that substantially limits a major life activity, must have a record of such an impairment, or must be regarded as having such an impairment.
While people have the right to file charges, not all charges are meritorious. EEOC investigators are instructed to analyze whether a charging party has an ADA- protected disability. If an individual does not have a substantially limiting impairment ( and does not allege " record of" or " regarded as" discrimination), the complaint is dismissed.
The information in this fact sheet came from the following sources:
The U. S. Equal Employment Opportunity Commission and the U. S. Justice Department.
July, 1996
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" News Reviews to Peruse"
Number 38 April 15, 1997
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinions expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Comments, contributions or questions, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- ILLEGAL ? CAN COST YOU - $ 157,500 dollars. The question: " What current or past medical problem might limit your ability to do a job?" A New Mexico man who had lost his arm won the above award after a Walmart interviewer, in violation of company policy, asked interview questions that violated the ADA. EEOC v. Walmart Stores, DC NM No. 95- 1199, 2/ 21/ 97
- SMOKING/ TOBACCO ADDICTION NOT A DISABILITY - An appellate court in Michigan recently found that an employer's termination of an employee for violating company no smoking policies did not violate the state disability statute, the Michigan Handicappers Act ( sic). The court found that smoking and nicotine addiction did not limit any major life activity. Stevens v. Inland Waters, Inc., 1996 Mich. App. LEXIS 384 ( 1996)
- DISABILITY GROUPS PROTEST ASSISTED SUICIDE - The U. S. Supreme Court recently heard arguments opposed to and in favor of physician- assisted suicide. A general right to physician- assisted suicide is opposed by many disability- rights advocates, who believe that the practice would be used to hasten the deaths of persons with disabilities and those of advanced age. The Court is expected to rule on the issue this summer, though some justices appeared reluctant to proceed based on a perception that there is an insufficient record of experience with the issue.
- WAIVER OF CONFIDENTIALITY - A Pennsylvania woman, who contended that her discharge violated the ADA because it was caused by her depression, waived any privilege of confidentiality in her medical records, which had been subpoenaed by the defending company. According to the court, a party waives the psychotherapist- patient privilege by placing her mental condition at issue. The woman is claiming that the medication which she takes for her depression makes it hard to wake up in the morning and, thus, her termination for frequent tardiness violates the ADA. Sarko v. Penn- Del Directory Co., EDPa, No. 96- 4428, 1/ 22/ 97.
- U. S. SUPREME COURT DENIES REVIEW OF TWO ADA CASES - The U. S. Supreme Court has refused to review the decisions of two lower appellate courts in disability- related cases. In the first, the U. S. Circuit Court of Appeals for the Fourth Circuit, in an unpublished decision, approved the dismissal of the claim of a U. S. Marshal who was diagnosed as paranoid and unable to carry a firearm. The Circuit Court found the marshal not qualified for his job because he could not perform an essential function. In the second case, the Fifth Circuit Court of Appeals upheld a city's denial of a firefighter's job to an applicant with a mild form of hemophilia. That court found that the applicant did not have a qualifying disability. ( Lassiter v. Reno, USSCt No. 96- 660, 1/ 21/ 97; Bridges v. Bossier, USSCt No. 96- 793, 1/ 21/ 97) The Court is presently considering whether to review cases involving the burden of proof in a direct threat case, and the psychological effect of cancer surgery. Moses v. American Nonwovens, 5 ADCases 1651, 11th Cir., 9/ 27/ 96; Sanders v. Arneson Products, 5 ADCases 1292, 9th Cir., 8/ 6/ 96.
- MARK YOUR CALENDARS - The President's Committee on Employment of People with Disabilities annual conference will be held in Washington, D. C. from June 4 through 6. The conference will mark the organization's 50th anniversary, and promises a huge exhibition of workplace accommodations and products, an employment fair and sessions on emerging workplace issues. More information can be gotten by calling ( 202) 376- 6200, or via E- mail to cdunlap@ pcepd. gov/
- ACCESSIBLE POLLING PLACES? - Voting in the last Presidential election among the community of persons with disabilities was approximately 33 percent, compared with 49 percent among the general population, according to a Lou Harris survey. While this could be due to a number of factors, action is being taken in some jurisdictions to make polling places more accessible and to provide voting assistance to persons with disabilities.
In a related case, the U. S. District Court for Western Michigan has decided that the ADA does not require that blind voters cast their ballots free from third- party assistance. The case arose when a group of registered, blind voters sued the state asserting that it violated Title II by failing to allow them a method to cast a secret ballot. Michigan provided that blind voters could be assisted in completing their ballots by an adult of their choice or family member. A U. S. District court in Texas, in Lightbourn v. County of El Paso, found that blind voters have a right to unassisted voting. Nelson v. Miller, 1996 U. S. Dist. LEXIS 19061, W. D. Mich. 1996.
- WEB DOCUMENTS - The Telecommunications Access Advisory Committee has presented its final report to the Access Board, recommending several accessibility requirements for manufacturers of telecommunications equipment. The report can be viewed on the World Wide Web at http:// trace. wisc. edu/ taac/ workdoc. htm. The Federal Communications Commission has published a proposed rule for closed caption requirements for video programming, which can be found at: http:// www. fcc. gov/ Bureaus/ Cable/ Notices/ 1997/ fcc97004. txt/.
- ATTACHMENTS
1) " Costs and Benefits of Accommodations"
2) " What Businesses Really Think About the ADA"
See you next month!
Cost And Benefits Of Accommodations
The President's Committee's Job Accommodation Network ( JAN), a toll- free service, has been advising businesses and individuals about job accommodations since 1984. With the passage of the Americans with Disabilities Act ( ADA) in 1990, JAN expanded to include information about the ADA. During the fiscal year that began October 1, 1994 and ended September 30, 1995, JAN received more than 80,000 calls from individuals and businesses in 50 states, the District of Columbia and Puerto Rico. Following is information related to these calls for advice, as well as examples of accommodations that were implemented as a result of the advice.
Major Issues of Concern
Percentage of Cases
Understanding the ADA 34%
Impact of Accommodation 13%
Conflict between Employer/ Employee 13%
Cost of Accommodation 3%
Concerns related to Federal and State Agencies 6%
Other 31%
_________________________________________________________________
Top Five States Using JAN
Number of Calls
California 10,079
Texas 4,776
Virginia 4,547
Pennsylvania 4,196
New York 3,921
_________________________________________________________________
Accommodation Costs Reported by Businesses
That Used JAN
Percentage
No cost 19%
Between $ 1 and $ 500 50%
Between $ 501 and $ 1,000 12%
Between $ 1,001 and $ 2,000 7%
Between $ 2,001 and $ 5,000 9% Greater than $ 5,000 3%
_________________________________________________________________
Company Savings Because Accommodations Were Made
Percentage
Value unknown 4%
Between $ 1 and $ 5,000 34%
Between $ 5,001 and $ 10,000 16%
Between $ 10,001 and $ 20,000 19%
Between $ 20,001 and $ 100,000 25%
Greater than $ 100,000 2%
_________________________________________________________________
Companies reported an average return of $ 28.69 in benefits for every dollar invested in making an accommodation.
Accommodations Implemented by JAN Callers
Situation: A production worker with mental retardation, who has limited fine motor dexterity, must use tweezers and a magnifying glass to perform the job. The worker had difficulty holding the tweezers.
Solution: Giant tweezers were purchased. Cost: $ 5.
Situation: A teacher with bipolar disorder, who works in a home- based instruction program, experienced reduced concentration, short term memory, and task sequencing problems.
Solution: At one of their weekly meetings the employee and the supervisor jointly developed a check list. This check list showed both the week's work and the following week's activities. Forms were adapted so that they would be easy to complete, and structured steps were developed so that paper work could be completed at the end of each teaching session. An unintended bonus to the company was the value of the weekly check- off forms in training new staff. Cost: $ 0.
Situation: A garage mechanic with epilepsy was unable to drive vehicles.
Solution: The employer negotiated with the employee's union and reached an agreement that any qualified employee, regardless of job held, could drive the vehicles to the mechanic's work station. Cost: $ 0.
Situation: An individual with a neck injury, who worked in a lab, had difficulty bending his neck to use the microscope.
Solution: A periscope was attached to the microscope. Cost: $ 2,400.
Situation: A catalog salesperson, who had a spinal cord injury, had problems using the catalog due to difficulty with finger dexterity.
Solution: The employer purchased a motorized catalog rack, controlled by a single switch via the mouthstick, and provided an angled computer keyboard stand for better accessibility. Cost: $ 1,500.
Situation: A field geologist who was deaf and worked alone in remote areas was unable to use two- way radio communication to report his findings.
Solution: Text telephone technology was used to allow the geologist to communicate using a cellular telephone. Cost: $ 400 plus monthly service fee for the phone.
Situation: A saw operator with a learning disability had difficulty measuring to the fraction of an inch.
Solution: The employee was provided with a wallet- sized card on which the fractions were listed on an enlarged picture of an inch. This allowed the employee to compare the card with the location on the ruler to identify the correct fraction. Cost: $ 5.
Situation: An accountant with HIV was experiencing sensitivity to fluorescent light. As a result, she was not able to see her computer screen or written materials clearly.
Solution: The employer lowered the wattage in overhead lights, provided task lighting and a computer screen glare guard. Cost: $ 80.
Situation: A custodian with low vision was having difficulty seeing the carpeted area he was vacuuming.
Solution: A fluorescent lighting system was mounted on his industrial vacuum cleaner. Cost: $ 240
For additional information contact:
President's Committee Job Accommodation Network
( 800) 526- 7236 ( Voice/ TDD/ TTY)
jan@ jan. icdi. wvu. edu ( e- mail)
July, 1996
What Does Business Really Think About The ADA?
Despite statements in the media and elsewhere that business does not support the Americans with Disabilities Act ( ADA), several recent surveys challenge that perception. In fact, based on these surveys, there is a great deal of support for ADA in critical American industries. Following is what has been learned regarding industries support of ADA and employment of persons with disabilities.
Global Strategy Group, Inc., Survey- October 1995
The findings of a nationwide random sample of 300 CEOs and human resource managers in Fortune 5000 companies related to manufacturing, technology and communications are outlined below.
Key general findings:
* 73% of the top industries across the United States are hiring people with disabilities.
* 87% of companies with more than 200 employees are hiring people with disabilities.
* 75% of companies employing 51- 200 people are hiring people with disabilities.
* 58% of companies employing fewer than 50 people are hiring people with disabilities.
* 54% of the people who make hiring decisions for these companies say that the ADA has had a positive impact on their corporations.
Key findings by regions of the country:
* 59% of the top industries surveyed in the East found the ADA to have a positive impact on their corporations.
* 51% of the top industries surveyed in the South found the ADA to have a positive impact on their companies.
* 47% of top industries surveyed in the Midwest/ West found the ADA to have a positive impact on their industries.
Key findings by industry:
* 66% of executives in the technology industry believe the ADA has had a positive impact on their corporations.
* 76% of technology- based industries are hiring people with
disabilities.
* 52% of executives in the communications industry believe the ADA has had a positive impact on their corporations.
* 69% of companies in the communications industry are hiring people with disabilities.
* 46% of human resource managers in manufacturing companies think the ADA has made a positive impact on companies across the United States.
* 74% of the companies in the manufacturing industry are hiring people with disabilities.
( Survey conducted for President's Committee on Employment of People with Disabilities)
Mason- Dixon Poll- January 1995
The results of a poll of 309 randomly selected Florida Chamber of Commerce members ( owners, CEOs, or top managers) with at least 15 full- time employees is outlined below.
* 94% of executives said their businesses were very or somewhat familiar with the ADA.
* 38% of the businesses reported hiring at least one person with a disability over the last three years.
* 72% of businesses that reported hiring persons with disabilities said that the employment of people with disabilities has had a favorable effect on their business.
* 87% of businesses that reported hiring persons with disabilities said that, in view of their experience, they would encourage other employers to hire persons with disabilities.
( Survey funded by the Florida Chamber of Commerce Foundation's
Disability Awareness Project)
Louis Harris And Associates, Inc. Survey- July 1995
The findings of a nationwide survey of 404 senior corporate executives regarding the acceptance of the ADA by America's corporate employers are outlined below.
* 70% of the executives surveyed support the ADA and do not favor weakening the law in any way.
* 8% said that the ADA should be strengthened.
* 64% of the companies are hiring people with disabilities.
* 89% of the employers and their employees supported policies to increase the number of people with disabilities in their companies.
* 75% of managers said they are likely to make greater efforts to hire people with disabilities in the next three years.
( Survey conducted for The National Organization on Disability)
University Of Michigan- Dearborn Study- 1994
The findings of a nationwide survey of 408 human resource management professionals and general managers in companies ranging in size from 15 to 300,000+ employees, with a median number of 843 employees is outlined below.
* 45% of the human resource managers said hiring people with disabilities results in productivity gains for their companies.
* 63% of those companies rejected the idea that the costs of the ADA will adversely affect the ability of their companies to compete.
* 63% of the resource managers said their companies rejected the idea that the ADA will result in higher costs with few benefits to the firm.
( Study conducted by University of Michigan- Dearborn, School of
Management and School of Education)
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" News Reviews to Peruse"
Number 39 May 15, 1997
Items regarding the Americans with Disabilities Act which may be of interest to you. Please share this information with colleagues, supervisors and subordinates. The views and opinions expressed herein are solely those of the editor, except where noted, and do not represent the views of the Office of Chief Counsel or the Department of Environmental Protection. Comments, contributions or questions, including requests for accommodations needed to receive or apprehend this publication, should be addressed to Patrick H. Bair ( Ed.).
- NEW EEOC GUIDELINES - The Equal Employment Opportunity Commission has advised that statements made in connection with an application for disability benefits should not be an automatic bar to a claim under the ADA. ( See previous issues for examples of cases where this has barred recovery, e. g., McNemar v. Disney Stores, 1995 U. S. Dist., LEXIS 9454 ( E. D. Pa. 1995), first mentioned in issue No. 21, 11/ 17/ 95.) In " Enforcement Guidance on the Effect of Representations Made in Applications for Disability Benefits on the Determination of Whether a Person is a ` Qualified Person with a Disability' under ADA," the EEOC explains that the ADA's purposes and standards are fundamentally different from those of other disability benefits programs such as Social Security, worker's compensation and disability insurance, and that an application for disability benefits is not necessarily inconsistent with a claim that one is a " qualified person with a disability."
You'll recall that last year a federal trial judge in New York rejected an employer's argument that a former employee is barred from proceeding with his ADA claim because he applied for Social Security benefits. The case is one that should be familiar to " News" readers - Mohamed v. Marriott International Inc. The law in Pennsylvania is set by the Third Circuit court's decision in McNemar, i. e., the doctrine of " judicial estoppel" bars a plaintiff from suing because claims under the ADA and Social Security are contradictory. The Second Circuit Court of Appeals ( NY, CN, VT) also recognizes the doctrine of " judicial estoppel," unlike the Tenth and D. C. circuits.
- EEOC GUIDELINES ON PSYCHIATRIC DISABILITY - The EEOC has also issued official policy guidance concerning the application of the ADA to persons with psychiatric disabilities. Entitled " The Americans with Disabilities Act and Psychiatric Disabilities," the document addresses the issue of what constitutes a psychiatric disability under the ADA. The guidance can be found on the brand new web site of the EEOC, www. eeoc. gov; a copy is also attached to this issue. Some highlights of the guidance are:
· employers may not consider the effects of medications when deciding if an impairment substantially limits a major life activity
· sleep is a major life activity
· a family member, friend, health professional or other representative may request a reasonable accommodation on someone's behalf
· an employer may not insist on medical documentation if the employee withdraws his/ her request for accommodation
· monitoring an employee's medication is not a reasonable accommodation.
- ARBITRATION AND ADA - The Seventh Circuit U. S. Court of Appeals has affirmed the decision of the lower court to deny an employer's motion to interpose a collective bargaining agreement's mandatory arbitration clause in an ADA case. The case, Pryner v. Tractor Supply Co. first reported in " ADA News" Number 31, September 15, 1996, puts the Seventh Circuit ( WI, IL, IN) in the corner of those courts which have refused to enforce arbitration clauses in similar situations ( see, e. g., Riley v. Weyerhauser, first reported in Number 21, November 17, 1995); other circuits have held that such clauses do require arbitration before litigation of ADA claims. See, e. g., Austin v. Owens- Brockway Glass Container, Number 12, February 15, 1995.
- HIV RULED COVERED DISABILITY - The First U. S. Court of Appeals ( ME, NH, PR, MA, RI), in a Title II case, has ruled that the ADA applies to an individual with HIV because HIV substantially limits the major life activity of reproduction. The claimant, who was seeking routine dental care from her dentist, sued when she was denied based on her HIV status. The opinion criticized the decision of the Eighth Circuit in Krauel v. Iowa Methodist Medical Center, in which that court found reproduction not to be a major life activity. The Court also found that the claimant did not constitute a direct threat. Abbot v. Bragdon, 912 F. Supp. 580 ( D. Maine 1995), aff'd, 1997 U. S. App. LEXIS 3870 ( 1st Cir. 1997).
- SERVICE ANIMAL ACCESS - Service animals must be given the widest feasible access in all places of public accommodation, according to a recent decision by the Fourth U. S. Circuit Court of Appeals. The case emanated from a brewery's refusal to allow a blind man's guide dog to accompany the man on a public tour, citing food safety laws. Such a restriction violates Title III of the Act, according to the Court, which affirmed the lower court's decision. Johnson v. Gambrinus Co./ Spoetzl Brewery, 898 F. Supp. 324 ( W. D. N. C. 1995), aff'd, 77 F. 3d 470 ( 4th Cir. 1997).
- DOJ FILM - A US Department of Justice- funded film titled " My Country" will air on public television in July. James DePriest profiles three people who have been active in the disability rights movement. DePriest is the nephew of contralto Marian Anderson, who was denied the opportunity to sing at Constitution Hall in 1939 because of a policy banning black performers. DePriest, a polio survivor and symphony conductor, faced architectural barriers at Constitution Hall recently.
A full description of the show is available on the DOJ's ADA home page, on pages 12- 13 of the Jan- Mar 1997 status report:
http:// www. usdoj. gov/ crt/ ada/ janmar97. htm
- MORE ACCESSIBLE TELECOMMUNICATIONS - Bell Atlantic and NYNEX Corp., the merging telecommunications companies, have announced plans to make their services more accessible to people with disabilities. The new company will service 39 million access lines in thirteen states.
- DISABILITY DEPENDS ON DEFINITION - A New York woman who was found by a federal judge not to be disabled under the ADA may still be entitled to sue her former employer under state or local disability statutes. The woman claims she was fired because of her obesity, which she alleges as her disability. The claimant has been diagnosed as " morbidly obese" by her physician. The federal judge ruled that, though her obesity " affects her ability to engage in everyday activities," she was not substantially limited in any major life activity. The New York disability statute covers individuals who have a " physical impairment" that is " demonstrable by medically acceptable techniques." Hazeldine v. Beverage Media Ltd., No. 94- 3466, DC SNY, 1/ 29/ 97.
- AIRPORT ACCESSIBILITY - The Eastern Paralyzed Veterans Association has brought suit against the U. S. Department of Transportation which, the EPVA claims, is not making airport accessibility a priority. The EPVA claims that the DOT's new regulations implementing the Air Carrier Access Act 0f 1986 actually relaxes the standards for airport accessibility. DOT has issued a standard denial of the charges. Eastern Paralyzed Veterans Association v. Fedrico Pena, CV 96- 5837, EDNY, 11/ 27/ 96.
- SMOKING BAN - A Kentucky physician has filed an ADA claim with the Department of Justice on behalf of a patient, seeking to ban smoking at Rupp Arena. The management company which runs the arena allows clients who use the arena to determine whether smoking is permitted. The patient had an asthma attack after being exposed to smoke at a concession stand during a University of Kentucky basketball game. The University does not permit smoking in the stands, but does allow it in the concourse and lobby areas.
- EXCESSIVE ABSENTEEISM DISQUALIFIES DRIVER - The verdict of a trial court, which found a light vehicle driver with mild mental retardation to be unqualified for his position due to excessive absenteeism, was affirmed by the appellate court. Following an injury in January 1993, the driver worked only 4.5 hours in March and just four of fifteen workdays between April 1 and 21. The driver alleged he resigned " under duress" after being counseled regarding his attendance problems. The reviewing court agreed that the driver's rate of absenteeism rendered him unable to perform the essential functions of his position. Wilson v. State Insurance Fund, No. 96- 6100, 9 NDLR ¶ 98.
- INABILITY TO GET ALONG WITH OTHERS NOT A DISABILITY - You may remember the case Soileau v. Guilford of Maine discussed in February's edition. That case dealt with an individual's claim thathis inability to get along with others constituted a disability under the ADA. Now another court has decided a similar case.
Shortly after being appointed as a team leader, the claimant began to exhibit erratic behaviors that led to conflicts with other employees. After the claimant was diagnosed with hypomania and manic- depression, the employer accommodated him by restructuring his work so that he had to spend as little time interacting with co- workers as possible and reduced the number of employees he supervised. Nevertheless, he again became disruptive and erratic. After searching unsuccessfully for another position to which he could be reassigned, the employer discharged the claimant. He sued, alleging disability discrimination. The trial court found that no reasonable accommodation was possible, and entered judgment for the employer. The appellate court agreed, finding that it is a " job- related requirement" that an employee be able to get along with co- workers. Devor v. Blue Cross & Blue Shield of Kansas City, No. WD 52169, 1997 Mo. App. LEXIS 154.
- NO CONSTRUCTIVE DISCHARGE - An employee with HIV resigned her job with a restaurant after being told by her supervisor that a customer had threatened to never return and to tell other customers about the employee's HIV status. The supervisor told the employee that she was a good worker, that he knew he could not fire her, but that his business would be destroyed if she continued to work there. The employee agreed to quit and her resignation was treated as a layoff. The employee sued, claiming she had been constructively discharged in violation of the State's anti- discrimination statute. The trial court, affirmed on appeal, found that her resignation was voluntary. Doe v. Denny's Inc., No. CA A89182, 1997 Ore. App. LEXIS 72.
- INDEFINITE LEAVE/ HOMEWORK NOT REASONABLE - The Seventh Circuit U. S. Court of Appeals has affirmed the dismissal of an executive secretary disabled by depression, holding that neither indefinite leave nor working at home was a reasonable accommodation. The Court's holding regarding homework was in accord with its earlier decision in Vande Zande v. State of Wisconsin Dept. of Administration ( see issue No. 12, 2/ 95), in which the Court found that working at home is not a reasonable accommodation. Johnson v. Foulds, 1997 U. S. App. LEXIS 3386 ( 1997).
- EMPLOYEE MUST PERFORM ALL ESSENTIAL FUNCTIONS - An employee must be capable of performing all of the essential functions of her position, even when some functions are performed on a rotating basis. Bobbi Miller, a correctional officer who is severely visuallyimpaired, was discharged after prison officials determined that she was no longer qualified. She could perform some but not all of the essential functions of her position. The Seventh Circuit affirmed the lower court's ruling that the prison was not required to assign her permanently to those duties she could perform while keeping her in the corrections officer position. Miller had refused a reassignment offered by the prison unless she could retain her corrections officer salary. Miller v. Illinois Dept. of Corrections, 1997 U. S. App. LEXIS 2815 ( 7th Cir. 1997).
- ATTACHMENT - Attached you will find the " EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities" referred to in the article above.
EEOC NOTICE
Number 915.002
Date 3- 25- 97
1. SUBJECT: EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities
2. PURPOSE: This enforcement guidance sets forth the Commission's
position on the application of Title I of the Americans with Disabilities Act of 1990 to individuals with psychiatric disabilities.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a( 5), this Notice will remain in effect until rescinded or superseded.
5. ORIGINATOR: ADA Division, Office of Legal Counsel.
6. INSTRUCTIONS: File after Section 902 of Volume II of the Compliance their employer under the ADA.
3- 25- 97 / S/
______________ _____________________________________
Date Gilbert F. Casellas
Chairman TABLE OF CONTENTS
INTRODUCTION
WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA
DISCLOSURE OF DISABILITY
REQUESTING REASONABLE ACCOMMODATION
SELECTED TYPES OF REASONABLE ACCOMMODATION
CONDUCT
DIRECT THREAT
PROFESSIONAL LICENSING
INDEX
---------------------------------
Enforcement Guidance: The Americans With Disabilities Act and Psychiatric Disabilities
INTRODUCTION
The workforce includes many individuals with psychiatric disabilities who face employment discrimination because their disabilities are stigmatized or misunderstood. Congress intended Title I of the Americans with Disabilities Act ( ADA)\ 1 to combat such employment discrimination as well as the myths, fears, and stereotypes upon which it is based.\ 2
The Equal Employment Opportunity Commission (" EEOC" or " Commission") receives a large number of charges under the ADA alleging employment discrimination based on psychiatric disability.\ 3 These charges raise a wide array of legal issues including, for example, whether an individual has a psychiatric disability as defined by the ADA and whether an employer may ask about an individual's psychiatric disability. People with psychiatric disabilities and employers also have posed numerous questions to the EEOC about this topic.
This guidance is designed to:
- facilitate the full enforcement of the ADA with respect to individuals alleging employment discrimination based on psychiatric disability;
- respond to questions and concerns expressed by individuals with psychiatric disabilities regarding the ADA; and
- answer questions posed by employers about how principles of ADA analysis apply in the context of psychiatric disabilities.\ 4
WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA?
Under the ADA, the term " disability" means: "( a) A physical or mental impairment that substantially limits one or more of the major life activities of [ an] individual; ( b) a record of such an impairment; or ( c) being regarded as having such an impairment."\ 5
This guidance focuses on the first prong of the ADA's definition of " disability" because of the great number of questions about how it is applied in the context of psychiatric conditions.
Impairment
1. What is a " mental impairment" under the ADA?
The ADA rule defines " mental impairment" to include "[ a] ny mental or psychological disorder, such as . . . emotional or mental illness."\ 6
Examples of " emotional or mental illness[ es]" include major depression, bipolar disorder, anxiety disorders ( which include panic disorder, obsessive compulsive disorder, and post- traumatic stress disorder), schizophrenia, and personality disorders. The current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ( now the fourth edition, DSM- IV) is relevant for identifying these disorders. The DSM- IV has been recognized as an important reference by courts\ 7 and is widely used by American mental health professionals for diagnostic and insurance reimbursement purposes.
Not all conditions listed in the DSM- IV, however, are disabilities, or even impairments, for purposes of the ADA. For example, the DSM- IV lists several conditions that Congress expressly excluded from the ADA's definition of " disability."\ 8 While DSM- IV covers conditions involving drug abuse, the ADA provides that the term " individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of that use.\ 9 The DSM- IV also includes conditions that are not mental disorders but for which people may seek treatment ( for example, problems with a spouse or child).\ 10 Because these conditions are not disorders, they are not impairments under the ADA.\ 11
Even if a condition is an impairment, it is not automatically a
" disability." To rise to the level of a " disability," an impairment must " substantially limit" one or more major life activities of the individual.\ 12
2. Are traits or behaviors in themselves mental impairments?
No. Traits or behaviors are not, in themselves, mental impairments. For example, stress, in itself, is not automatically a mental impairment. Stress, however, may be shown to be related to a mental or physical impairment. Similarly, traits like irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments, although they may be linked to mental impairments.\ 13
Major Life Activities
An impairment must substantially limit one or more major life activities to rise to the level of a " disability" under the ADA.\ 14
3. What major life activities are limited by mental impairments?
The major life activities limited by mental impairments differ from person to person. There is no exhaustive list of major life activities. For some people, mental impairments restrict major life activities such as learning, thinking, concentrating, interacting with others,\ 15 caring for oneself, speaking, performing manual tasks, or working. Sleeping is also a major life activity that may be limited by mental impairments.\ 16
4. To establish a psychiatric disability, must an individual always showthat s/ he is substantially limited in working?
No. The first question is whether an individual is substantially
limited in a major life activity other than working ( e. g., sleeping, concentrating, caring for oneself). Working should be analyzed only if no other major life activity is substantially limited by an impairment.\ 17
Substantial Limitation
Under the ADA, an impairment rises to the level of a disability if it substantially limits a major life activity.\ 18 " Substantial limitation" is evaluated in terms of the severity of the limitation and the length of time it restricts a major life activity.\ 19 The determination that a particular individual has a substantially limiting impairment should be based on information about how the impairment affects that individual and not on generalizations about the condition. Relevant evidence for EEOC
investigators includes descriptions of an individual's typical level of functioning at home, at work, and in other settings, as well as evidence showing that the individual's functional limitations are linked to his/ her impairment. Expert testimony about substantial limitation is not necessarily required. Credible testimony from the individual with a disability and his/ her family members, friends, or coworkers may suffice.
5. When is an impairment sufficiently severe to substantially limit a major life activity?
An impairment is sufficiently severe to substantially limit a major life activity if it prevents an individual from performing a major life activity or significantly restricts the condition, manner, or duration under which an individual can perform a major life activity, as compared to the average person in the general population.\ 20 An impairment does not significantly restrict major life activities if it results in only mild limitations.
6. Should the corrective effects of medications be considered when deciding if an impairment is so severe that it substantially limits a major life activity?
No. The ADA legislative history unequivocally states that the extent to which an impairment limits performance of a major life activity is assessed without regard to mitigating measures, including medications.\ 21 Thus, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity.\ 22 Relevant evidence for EEOC investigators includes, for example, a description of how an individual's condition changed when s/ he went off medication\ 23 or needed to have dosages adjusted, or a description of his/ her condition before starting medication.\ 24
7. How long does a mental impairment have to last to be substantially limiting?
An impairment is substantially limiting if it lasts for more than several months and significantly restricts the performance of one or more major life activities during that time. It is not substantially limiting if it lasts for only a brief time or does not significantly restrict an individual's ability to perform a major life activity.\ 25 Whether the impairment is substantially limiting is assessed without regard to mitigating measures such as medication.
Example A: An employee has had major depression for almost a
year. He has been intensely sad and socially withdrawn ( except for going to work), has developed serious insomnia, and has had severe problems concentrating. This employee has an impairment ( major depression) that significantly restricts his ability to interact with others, sleep, and concentrate. The effects of this impairment are severe and have lasted long enough to be substantially limiting.
In addition, some conditions may be long- term, or potentially long- term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute disabilities.\ 26
Example B: An employee has taken medication for bipolar disorder for a few months. For some time before starting medication, he experienced increasingly severe and frequent cycles of depression and mania; at times, he became extremely withdrawn socially or had difficulty caring for himself. His symptoms have abated with medication, but his doctor says that the duration and course of his bipolar disorder is indefinite, although it is potentially long- term. This employee's impairment ( bipolar disorder) significantly restricts his major life activities of interacting with others and caring for himself, when considered without medication. The effects of his impairment are severe,
and their duration is indefinite and potentially long- term.
However, conditions that are temporary and have no permanent or long- term effects on an individual's major life activities are not substantially limiting.
Example C: An employee was distressed by the end of a
romantic relationship. Although he continued his daily routine, he sometimes became agitated at work. He was most distressed for about a month during and immediately after the breakup. He sought counseling and his mood improved within weeks. His counselor gave him a diagnosis of " adjustment disorder" and stated that he was not expected to experience any long- term problems associated with this event. While he has an impairment ( adjustment disorder), his impairment was short- term, did not significantly restrict major life activities during that time, and was not expected to have permanent or long- term effects. This employee does not have a disability for purposes of the ADA.
8. Can chronic, episodic disorders be substantially limiting?
Yes. Chronic, episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurrence in substantially limiting forms. For some individuals, psychiatric impairments such as bipolar disorder, major depression, and schizophrenia may remit and intensify, sometimes repeatedly, over the course of several months or several years.\ 27
9. When does an impairment substantially limit an individual's ability to interact with others?
An impairment substantially limits an individual's ability to interact with others if, due to the impairment, s/ he is significantly restricted as compared to the average person in the general population. Some unfriendliness with coworkers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others. An individual would be substantially limited, however, if his/ her relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.
These limitations must be long- term or potentia