This page contains entries under the topic: "Disability - Definition" | Main
Redefining "disability"
July 07, 2006
It was a long road. Among cries of judicial legislation, the Washington Supreme Court adopted a new definition of "disability" - the same definition used by the federal Americans with Disabilities Act (ADA). The court split 5-4.
The past:
Washington courts have struggled to define "disability" under the Washington Law Against Discrimination (WLAD). The Washington State Human Rights Commission provided a definition in Washington Administrative Code (WAC) 162-22-020, which defines "disability" as "the presence of any sensory, mental, or physical disability .... " Under WAC 162-22-020, "[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question ... or [was] discriminated against .... "
A circular and confusing definition.
In Doe v. Boeing Co., 846 P.2d 531 (1993), the court noted that this definition is circular because it requires a factual finding that the employee was discriminated against "because of the condition in order to determine whether the condition is a [disability]." Similarly, the court has noted that "WAC 162-22-020 ... conflicts with much of our antidiscrimination jurisprudence because the regulation would require a disability discrimination plaintiff to prove that he has been discriminated against because of his condition to prove that he is 'disabled' in the first place."
The court sees the light. McClarty v. Totem Electric (Washington 07/06/2006) (5-4).
The court adopted a new definition of "disability" under WLAD, stating
"We adopt the definition of disability set forth in the federal ADA [(Americans with Disabilities Act )]."
"We hold that a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment."
The dissent sees darkness.
In a DISSENTING opinion Judge Alexander accused the majority of "legislating from the bench," and noted that the majority adopted a definition of "disability" not advocated by either party.
In a separate DISSENTING opinion Judge Owens leveled similar criticisms, observing "[r]ather than answering the narrow question before us, the majority has usurped the authority of the legislature and enacted a new law...."
|
|
Reasonable Accommodations For Attorneys With Disabilities
May 23, 2006
The EEOC has published a lengthy and detailed fact sheet [Reasonable Accommodations For Attorneys With Disabilities] addressing the application of the reasonable accommodation obligation under the Americans with Disabilities Act (ADA) to attorneys with disabilities and their employers.
This fact sheet is full of examples and legal citations, and should be enormously useful.
The bulk of the principles discussed in this fact sheet can be applied equally to any workplace - not just lawyers.
|
|
State's definition of "disability" does not require a substantial limitation on a major life activity
April 13, 2006
States often adopt definitions of basic concepts that are different from the federal definitions. "Disability" is one.
The federal Americans with Disabilities Act (ADA) says that to be "disabled" one must show that an impairment results in a substantial limitation on a major life activity.
The State of Maine is different. Maine did not adopt the federal standard, so a substantial limitation on a major life activity is not something that has to be demonstrated.
True, even though the Maine Human Rights Commission adopted a regulation that tracked the federal standard. That regulation was invalid.
Not that the Maine Supreme Judicial Court was unanimous. They split 4-3.
Whitney v. Wal-Mart (Maine 04/11/2006).
| Employment Law Memo notified its readers about this case on 04/14/2006. |
So the message is clear. Always check out the local laws. Sometimes the definitions are different, often more employee-friendly. Sometime the remedies are different. Sometimes the statutes apply to smaller employers than the federal statutes reach.
|
|
States' best practices regarding individuals with disabilities
October 31, 2005
The EEOC has issued a report detailing what it considers best practices that promote the hiring, retention, and advancement of individuals with disabilities in state government jobs. The focus is on nine states: Florida, Maryland, Vermont, Washington, Kansas, Missouri, New Hampshire, New Mexico, and Utah.
Final Report on Best Practices For the Employment of People with Disabilities In State Government
A goldmine of useful information and ideas.
|
|
EEOC discusses blindness and visual impairments
October 26, 2005
Application of the Americans with Disabilities Act (ADA) to persons who are blind or have visual impairments is the subject of a new EEOC publication: Questions and Answers About Blindness and Vision Impairments in the Workplace and the Americans with Disabilities Act.
This document covers:
- when a vision impairment is a disability under the ADA;
- under what circumstances an employer may ask an applicant or employee questions about a vision impairment;
- what types of reasonable accommodations employees with visual disabilities may need;
- how an employer can prevent harassment of employees with visual disabilities or any other disability.
|
|
Associating with disabled individuals
October 19, 2005
A lesser-known provision of the Americans with Disabilities Act (ADA) is the one that forbids discrimination based on one's association with or relationship to a an individual with a disability.
The EEOC has published Questions and Answers About the Association Provision of the Americans with Disabilities Act.
Examples of unlawful discrimination:
- refusing to hire someone because of an unfounded fear that the individual will be excessively absent or unproductive because of the need to care for a child with a disability.
- firing or refusing to hire someone based on concerns that the individual will acquire a condition from a family member or other individual with whom he has a relationship.
- refusing to provide health insurance for an employee's family member with a disability when the employer generally provides health insurance for employee dependents.
- harassing someone based on the individual's association with a person with a disability.
- providing lesser benefits to someone who has a relationship or association with an individual with a disability than it provides to all other employees.
- firing, refusing to hire, or denying any benefit or privilege of employment to someone because of concern that the employer's image will be negatively affected by an applicant's or employee's association with individuals with disabilities - for example, discriminating against an employee who provides volunteer services for people with HIV/AIDS or psychiatric disabilities is prohibited.
|
|
Monocular vision was a disability
September 25, 2005
Employees with monocular vision were denied driving positions with UPS because the employer's "vision protocol" required some central vision and some peripheral vision in each eye.
The 9th Circuit decided that (1) the employees were disabled under California's Fair Employment and Housing Act (FEHA) [although not under the federal ADA], but (2) the employer satisfied the FEHA's safety-of-others defense. EEOC v. United Parcel Service (9th Cir 09/15/2005).
The court noted that while the ADA required that the employee's condition substantially limit a major life activity, the FEHA required only that the employee's condition limit a major life activity.
(1) With respect to the major life activity of seeing, the court found that the trial court erred by comparing monocular vision employees with farsighted employees. Under the FEHA the court found that a limitation in vision was sufficient. With respect to the major life activity of working, the court pointed out that the FEHA expressly recognized working as a major life activity and further provided that this was so regardless of whether the actual or perceived working limitation implicated a particular employment or a class or broad range of employments. The court found the employees demonstrated that they were limited in working as commercial delivery drivers, not only because they were excluded from working as full-time package car drivers for the employer, but also because they were excluded from any commercial driving position that required Department of Transportation (DOT) or state certification.
(2) The court was persuaded that the employer prevailed on its safety-of-others defense (Cal Gov't Code Section 12940(a)(1)) because the employer's vision protocol rested on objective and statistical evidence that monocular drivers were involved in somewhat more accidents than binocular drivers, because the risk of harm to others was high, because the employer's standard did not categorically exclude monocular individuals from working as full-time package car drivers, and because the application of the vision protocol was individualized to each employee and applicant.
My view: A reminder that --
- State statutes often have more expansive definitions of "disability" than the federal ADA.
- Employers who do their homework can successfully defend on the ground that a disabled person presents a threat to the safety of others.
|
|
Does "regarded as" disabled employee get accommodation?
September 03, 2005
If an employee is not actually disabled, but is "regarded as" disabled, the ADA defines that employee as disabled. And the big question is whether such an employee has a right to a reasonable accommodation.
Circuit courts are split on this fundamental question under the Americans with Disabilities Act (ADA).
- Holding no right to an accommodation: 5th, 6th, 8th, and 9th Circuits.
- Holding there is a right to an accommodation: 3rd, 10th, 11th, and (perhaps) 1st.
Two recent cases that have answered "Yes" are worth reading:
- D'Angelo v. Conagra Foods (11th Cir 08/30/2005)
- Kelly v. Metallics West (10th Cir 06/07/2005)
My view: I used to think it was odd that a court would require an employer to reasonably accommodate an employee who was not in fact disabled. But the recent cases have got me persuaded for two reasons.
- The text of the ADA does not support treating "regarded as" disabled employees differently than actually disabled employees.
- An employer that has stereotypical views of an employee's abilities is placing artificial limitations on the employee, and should be prepared to accommodate those limitations.
|
|
Substantial limitation on walking
August 13, 2005
The EEOC beat back the argument that the Toyota case heightened the standard for determining whether an individual is "disabled" under the ADA.
Employee Keane claimed she had a substantial limitation of her major life activity of walking. After Toyota Motor Manufacturing, Kentucky v. Williams, 534 US 184 (2002), the question was whether the Supreme Court had raised the standard of proof for plaintiffs.
Here were the choices:
- She must prove an impairment that "prevents or severely restricts" walking.
- She must prove a "substantial limitation compared to the walking most people do daily."
Keane was a department store sales associate who suffered leg numbness brought on by neuropathy (nerve damage). The EEOC's evidence was that Keane was unable to walk the equivalent of one city block without her right leg and feet becoming numb, and when leaving the store she would hold onto the wall for support.
In EEOC v. Sears, Roebuck & Co (7th Cir 08/10/2005) the 7th Circuit held:
- When the Supreme Court used the phrase "prevents or severely restricts," it was referring only to the major life activity of "performing manual tasks." Keane's case involves the major life activity of "walking," and she need not meet a "severely restricts" standard. A reasonable jury could find that Keane's difficulty was "a substantial limitation compared to the walking most people do daily."
- A reasonable jury could conclude that the employer's accommodations were not reasonable. Keane was allowed to park in the disabled zone, but that did not reduce the distance she had to walk. She was allowed to eat lunch in a stockroom, and allowed to use another stockroom as a shortcut. However, these accommodations were either rescinded or Keane faced a reprimand when she tried to use them.
- A reasonable jury could find that the employer was aware of Keane's disability. She gave the employer notes from two doctors, and told three levels of supervisors that she wanted to use a shortcut. That obligated the employer to engage in an interactive process. Although Keane quit her job, a reasonable jury could find that the employer caused the interactive process to break down. An employer cannot reject a request for one accommodation without offering another suggestion or offering to continue discussions.
My view: Correct on all three points.
|
|
Diabetic was a direct threat to safety
July 30, 2005
An employer can refuse to hire a disabled person who poses a direct threat to safety. A diabetic who had a history of not taking care of his disease fit that description.
Brent Darnell was a Type I insulin-dependent diabetic who worked for Thermafiber as a temp for 10 months without a problem. Then he left, and returned and applied for full-time work. The company offer him a job contingent on passing a physical.
A doctor's exam consisted of a urine glucose test and an interview. From that the doctor decided Darnell's diabetes was not under control, and that he could not perform the physical aspects of the job. The doctor did not review Darnell's medical chart or conduct any other tests.
Is that enough of a medical exam for an employer to conclude that a person is a direct threat? Yes, says the 7th Circuit. Darnell v. Thermafiber (7th Cir 07/29/2005).
Darnell thought the medical exam was not an adequate "individualized assessment" required by the Americans with Disabilities Act (ADA). (See Chevron USA v. Echazabal, 535 US 73 (2002).
But the interview established that Darnell had a history of poor compliance and failure to seek medical attention, that his blood sugar levels were too high, that he hadn't checked in with a doctor in several months, and that he was disinterested in regulating his condition.
Based on that information, it was not necessary to conduct more tests or look into his prior medical history. Neither of these items would refute the fact that Darnell was not motivated to control his diabetes.
My view: The conclusion that Darnell was a direct threat was based on very little medical investigation. But, as the court pointed out, further medical investigation that might be necessary in many other cases was not needed here because of Darnell's noncompliance.
|
|
ADA - Medical evidence not needed at summary judgment stage
July 11, 2005
You would think an ADA plaintiff would need to have some medical evidence. In the 9th Circuit it's not needed at the summary judgment stage. Head v. Glacier Northwest (9th Cir 07/06/2005).
Matthew Head sued his former employer under the Americans with Disabilities Act (ADA). The court came out with three items:
- Medical evidence is not needed at the summary judgment stage. The court held that "Ninth Circuit precedent does not require comparative or medical evidence to establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage." The court noted that "our precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact." The court also noted, however, that "[w]e hasten to add that our holding in no way impugns our longstanding precedent that conclusory declarations are insufficient to raise a question of material fact .... an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment."
- Reading is a major life activity. Noting that the 9th Circuit had not previously addressed the issue, the court held that "reading is a major life activity." Noting additionally that the 2nd Circuit has come to the same conclusion, the court reasoned "[t]he ability to read is necessary in many instances to perform major life activities such as caring for oneself, learning, and working."
- "Motivating factor" adopted. The court held that the appropriate standard for establishing causation in ADA cases is provided by the "motivating factor" standard. Agreeing with seven other circuits, the court concluded that the "sole cause" standard is inapplicable under the ADA. The court reasoned that "a 'motivating factor' standard is most consistent with the plain language of the statute and the purposes of the ADA."
My view:
- Going to court without medical evidence seems minimalist, if not dangerous. I would want to have some, especially at the trial stage where the jury will want to have something more tangible than the plaintiff's testimony.
- Of course reading is a major life activity.
- "Motivating factor" rather than sole cause is the right standard.
|
|
Employer regarded alcoholic as being disabled
February 14, 2005
If 10 percent of the population is alcoholic, that's enough to populate the nation's top 15 cities. And a lot of these folks are in the work force.
Are alcoholics "disabled" under the ADA? Some are and some are not. It's an individual thing. To be disabled, the individual must (1) have a physical or mental impairment that (2) substantially limits (3) one or more of the major life activities of that individual. Under that definition, a huge number of alcoholics are not disabled. They may have an impairment, but that impairment does not substantially limit a major life activity. They can walk, see, hear, work, and so on. Maybe not perfectly, and maybe not all the time, but enough so they are not "substantially limited."
It is noteworthy that the ADA protects not only those who are actually disabled, but also those who are "regarded as" being disabled. That means the employer regarded the employee as fitting all three of the numbered items above.
That was one of the issues in Moorer v. Baptist Memorial Health Care System [Full text pdf] (6th Cir 02/11/2005), involving the discharge of a hospital administrator. Did the employer regard William Moorer as being disabled? After a bench trial, the trial court answered "yes," and the 6th Circuit affirmed. The court's answer to that question is quite revealing both as to the employer's thought process and the trial judge's thought process.
First, Moorer's supervisor clearly believed Moorer was an alcoholic. The bigger question was whether the supervisor perceived Moorer as being substantially limited in his ability to work, that is, unable to work in a broad class of jobs or a broad class of jobs (not just the specific job he had).
Second, the trial court found that the supervisor believed that alcoholism was the root cause of Moorer's inability to perform his current job - hospital administrator. Of course that established only a belief that there was an inability to perform one job.
Third, the court used interesting logic to reach the conclusion that the employer regarded Moorer as unable to perform a broad range of jobs. The trial court found substantial evidence that the employer "concocted pretextual justifications" for firing Moorer. The supervisor testified that she relied on a written report from a fire marshal plus a written report from another government agency, reports written after the discharge took place. The supervisor testified that she relied on a letter from the chief of the medical staff at one of Moorer's hospitals, but Moorer's name was not mentioned in the letter, and the author testified that he did not intend the letter to be critical of Moorer's administration of the hospital.
So there was pretext, but there was one more step in the logic. The trial judge decided that by showing that the employer perceived Moorer as being unable to perform managerial work for the employer, that indicated that the employer perceived him as unable to perform a broad class of work. As the 6th Circuit put it, the fact that the employer "believed Moorer's alcoholism made him unable to perform his hospital administrator job, which required a broad range of managerial skills, permits the reasonable inference that [the employer] believed that Moorer's alcoholism rendered him incapable of performing a substantial number of managerial jobs."
This case shows that there is plenty of room for education about alcoholism and other disabilities.
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
