Conference Speakers Examine ADA Trends, Provide Practical Guidance Under the Law

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

By C. Reilly Larson  


The effects that recent amendments to the Americans with Disabilities Act have had on disability discrimination litigation were discussed April 18 during a conference sponsored by the National Employment Law Institute.

Although there have been only a few appeals court decisions applying the changes made by the amendments, David Fram, director of ADA and equal employment opportunity services for NELI, said decisions on the issue of disability and whether an individual is qualified “surprisingly are not pro-employee” and have not been favoring a really broad expansion as “everybody was expecting” under the amendments.

However, Fram added, the issue of reasonable accommodation “is the one area” where court decisions have been favorable to employees, finding that “all kinds of things” could be possible accommodations, like leave, for example.

Attorney Paul Buchanan of Buchanan Angeli Altschul & Sullivan in Portland, Ore., said “the biggest trend” is “simply” that the ADA Amendments Act is having its “desired effect.” Employers and lawyers “are spending a lot less time” on the threshold issue of whether there is coverage, and instead focusing on “all these other parts” of the law, he said. “[T]hat's exactly I think what Congress had in mind,” he said.

The interactive process, “what did we do in the workplace” when it was discovered that an individual had a disability that was impacting the ability to do his or her job, is now a major focus, Buchanan said, as is whether the employee is qualified.

In fact, he said, although employers have not been focusing on the issue, cases still can be won on summary judgment if the employer can show that the employee is not qualified.

According to Buchanan, employers can take steps in the workplace to help make that argument, from developing proper job descriptions to maintaining performance evaluations, to the way the issue was handled “when it came up,” to show that a particular job function is essential and that the individual was unable to do it with or without a reasonable accommodation.

Importance of 'Process'

Sharon Rennert, a senior attorney adviser at the Equal Employment Opportunity Commission's national office, acknowledged that there have not been too many appellate decisions yet arising out of the ADAAA, but said the “vast majority” of district court cases are surviving summary judgment.

The ADAAA is “doing what people intended it to do,” she said, which was to make the focus in cases less on disability, with a much shorter analysis, and get into all the other issues under the law. To that extent, the act is happening as it was intended to happen, she said.

Rennert said it was “really striking” that in cases where courts do find that an individual still does not meet the definition of disability, the plaintiffs have provided “pretty much” no evidence of disability into the record. Courts seem to be saying that, although a great deal of evidence is not required, plaintiffs must still give them “something,” she said. Just asserting the existence of a medical condition to courts “is usually not going to cut it,” Rennert said.

However, the clear trend is that, once you are in litigation or before EEOC, it is “more likely than not” that the medical condition at issue is going to be found to be a disability, she said.

Rennert highlighted the importance of “process” in ADA analysis. The ADA was written to be about process, she said. The belief was that if employers went through a process of gathering objective information, assessing it, and making an informed decision, it would be far less likely for the decision to be grounded in some discriminatory motive, she said.

Courts, too, are going through that process, she said, by making chronological examinations of “who said what to whom,” what the parties did, what was said, and what was examined.

Narrowing of 'Regarded As' Prong

Fram cited the U.S. Court of Appeals for the Sixth Circuit's decision in Wurzel v. Whirlpool Corp., 26 AD Cases 521 (6th Cir. 2012) (63 BTM 149, 5/8/12), as one of the decisions that has “not been so good” for employees.

The decision involves analysis of the “regarded as” prong of the definition of disability. Under the ADA as amended, an individual meets the requirements of the “regarded as” prong if the individual can show that he or she has been subjected to an allegedly discriminatory action because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.

In Wurzel, essentially, the court determined that the action taken by the employer was not an allegedly discriminatory action because there was “a really good defense to it,” that the employee posed a direct threat because he was not able to safely do the job, even if the action was taken because of an impairment, Fram said.

“So this is about as narrow as you could possibly read the 'regarded as' language,” Fram added.

No one really foresaw that a court would take this position, but if this is how other courts read the “regarded as” language, “that would really be a narrowing of the whole 'regarded as' arena,” he said.

“EEOC is very concerned about this decision,” Rennert said. What constitutes taking an employment action because of an actual or perceived impairment is a “tremendously important issue” to EEOC, and “you can expect to see EEOC litigate this issue,” she said.

Concerns About Violence

Because of recent events in the news, such as the school shooting in Newtown, Conn., there has been increased concern about violence and threats of violence in public and in the workplace, Buchanan said. Thus, increasing numbers of employers have been wanting to be able to make use of direct threat as an affirmative defense, he said.

The hallmark of direct threat is that there has to be some significant risk of substantial harm that cannot be mitigated by reasonable accommodation, he said.

What the cases show is that when an employer relies on direct threat as an affirmative defense, the employer really has to have a “very compelling evidentiary basis” in order to at least get summary judgment, and probably to eventually win, he said.

“I find in these cases that generally” if you have a strong compelling argument that someone poses a direct threat by virtue of threatening comments and erratic behavior, and if you have that backed up by a psychiatrist or psychologist, you probably have a good direct threat case, he said.

But if you can show that the person, by virtue of making those threats and behaving in ways that are making people uncomfortable, is not qualified for the job, “that's actually a much easier and better way” to win that case than resting it on the high standard required in proving direct threat as an affirmative defense, he said.

High Standard to Meet

Rennert observed that EEOC recognized early on that direct threat is a high standard for an employer to meet. In its enforcement guidance on psychiatric disabilities, EEOC made clear that acts or threats of violence are issues of misconduct and can be handled as such, she said .

In fact, EEOC has said conduct rules forbidding violence or threats of violence are job-related and consistent with business necessity, Rennert said. So as long as employees with disabilities are treated the same as other employees, even if you have to fire an employee with a disability for violating, say, a zero tolerance policy, “that's legitimate” and you will not violate the ADA for carrying out the discipline, she said.

By C. Reilly Larson