Disability/FMLA Discrimination

Americans With Disabilities Act

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Briefly distinguish the ADA (Americans With Disabilities Act) from the Family and Medical Leave Act (FMLA). Regarding a request for accommodation under the ADA, explain what is involved in the interactive process, including the responsibilities of both the employer and the employee. What documentation may the employer expect from the employee?
Analyze Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012), summarized on pages 646–648 of your text, and explain why the court found in favor of the employer.

Courts have also faced difficulty in determining what constitutes a major life activity. For example, consider the dilemma faced by some courts regarding an impairment that substantially limits interactivity with others. The First Circuit has held that “getting along with others” is not a major life activity under the ADA,44 whereas the Ninth Circuit has found that “interacting with others” is a major life activity.45 Other circuits eschew answering the question as to whether “interacting with others” is, in itself, a “major life activity” within the meaning of the ADA.46 The impact of this confusing legal landscape for employers confronted with impairment claims that have not yet been clearly defined by the courts is discussed later in this chapter, in the section entitled “Mental or Emotional Impairments.”

Substantially Limited

The standard to be applied to determine whether a worker is disabled is whether she or he is substantially limited in a major life activity. In a 2002 case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,47 the U.S. Supreme Court articulated a demanding standard for the terms substantially limited and major life activity in defining disability under the ADA. It held that “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives” and was seen as highly restrictive.

substantially limited

An individual does not need to have an impairment that prevents or severely or significantly restricts a major life activity to be considered to be “substantially limited,” nor does the impairment need to last for a set period of time. Multiple impairments that, together, substantially restrict a major life activity may also constitute a disability.

A specific consequence of the ADAAA was to overrule the narrow standard articulated by the Toyota decision, which had resulted in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. In enacting the ADAAA, Congress explained that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis,”48 and thus made it easier for an individual seeking protection to establish that he or she has a disability by ensuring that the definition of disability should be construed more broadly.

The EEOC has emphasized that the term substantially limited now requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered substantially limiting, nor does it need to last for a set duration of time. Multiple impairments that together substantially restrict a major life activity may also constitute a disability. The ADAAA sets a lower standard that provides broad coverage, so that the burden of showing that an impairment limits one’s ability to perform common activities is not onerous. In other words, the term substantially limits is not meant to be a demanding standard. The new regulations also make clear that, contrary to what many employers had assumed, an impairment need not last at least six months to qualify as substantially limiting. However, the regulations do not provide any guidance as to how long the impairment must last to qualify. Moreover, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Nonetheless, not every impairment will constitute a disability under the ADAAA.
page 647
The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.

Another important effect of the ADAAA was largely to invalidate the “mitigating measures” rule, imposed by the U.S. Supreme Court in Sutton v. United Air Lines Inc.,49 which held originally that the determination of whether a person has a disability must consider any mitigating or corrective measures that can be used to offset the impairment. The most obvious example, and the one at issue in Sutton, was to consider that an employee with poor vision was not disabled because the impairment could be corrected with glasses. However, the mitigating measures rule was extended to include medications and even an individual’s own natural or learned ability to compensate for the effects of an impairment. As a result of the holding in Sutton, numerous individuals with fairly severe physical or cognitive impairments were found not to have a disability under the ADA. After the 2008 Amendments, with the exception of “ordinary eyeglasses or contact lenses,” the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.

Courts have also determined that a disability must substantially limit an individual’s ability to participate in a major life activity generally, not just in a specific work environment. A person who is substantially limited in performing the unique aspects of a single, specific job will not be deemed substantially limited in the major life activity of working. In Thomas v. Avon Prods., Inc.,50 the court held that migraine headaches caused by exposure to chemicals in the working environment did not constitute a disability. In Allen v. SouthCrest Hosp.,51 the Tenth Circuit found that, even after the passing of the ADAAA, a discharged employee is still required “to demonstrate that she was substantially limited in performing class of jobs or broad range of jobs in various classes as compared to most people with comparable training, skills, and abilities in order to show that her alleged migraine headaches substantially limited major life activity of working, as would support finding that she was disabled within [the ADAAA].”

Otherwise Qualified

The acts state that an employer may not terminate or refuse to hire an employee with a disability who is “otherwise qualified” to perform the essential requirements of his or her position. The determination of a position’s essential functions ensures that disabled persons are not disqualified simply because they may have difficulty in performing tasks that bear only a marginal relationship to a particular job. At the same time, employers are protected from liability where a worker is unable to perform the essential functions of a job and are able to most effectively utilize their human resources.

In one case, the court held that a civilian employee of the Navy failed to establish that she was qualified for her position due to her chronic fatigue syndrome. The court noted that “the accommodation plaintiff seeks is simply to be allowed to work only when her illness permits.” The court held that the employee was not otherwise qualified because she was not prepared to pull her full weight. In addition, an employer may not consider the possibility that an employee or applicant
page 648
will become disabled or unqualified for the position in the future. If the applicant or employee is qualified at the time the adverse employment action is taken, the employer has violated the acts.52 Courts “weigh heavily the employer’s judgment regarding whether a job function is essential.”53 However, though courts usually give deference to an employer’s adoption of qualifications based on its judgment and experience, courts caution that “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.”54

It is important to note that the ADA Amendments prohibit the use of any qualification test or other selection criteria to determine whether someone is “otherwise qualified” based on that individual’s unmitigated or uncorrected disability, unless it can be shown that it is a business necessity.

Direct Threat

Where the claim of disability is based on a disease, the court in the Arline case (discussed earlier) held that the determination of whether an individual is “otherwise qualified” should be based on the following factors:

The nature of the risk (how the disease is transmitted).

The duration of the risk (how long the carrier is infectious).

The severity of the risk (potential harm to third parties).

The probability that the disease will be transmitted and will cause varying degrees of harm.

HIV and AIDS have presented questions to employers, and therefore to the courts, with regard to the ADA. The Supreme Court’s decision in the Arline case is important because it serves, by implication, as a proclamation that the act safeguards the rights of employees with HIV or AIDS. Subsequent to Arline, the Supreme Court decided Bragdon v. Abbott,55 in which it held that HIV represented an impairment that substantially limits reproduction, and that reproduction is a major life activity under the ADA. The 2008 Amendments further clarified that HIV/AIDS is a covered disability. Horgan v. Simmons,56 one of the first cases to apply the ADAAA to a HIV discrimination case, involved an employee who was terminated the day after disclosing his HIV status. Horgan’s employer argued that HIV was not a disability since it was not a “limitation of a major life activity.” However, the court rejected this argument, given the clarification of congressional intent and the explicit inclusion of the functioning of the immune system as a major life activity in the ADA Amendments Act.

The Department of Justice has clarified that individuals with HIV have physical impairments that substantially limit one or more major life activities or major bodily functions and are, therefore, protected by the ADAAA. This coverage protects people, regardless of whether they present symptoms, and even if the person is merely regarded as having HIV or AIDS. Moreover, the ADA protects persons who are discriminated against because they have a known association or relationship with an individual who has HIV.57 This clarification is especially significant,

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