NELI Workshop Examines Evolving Disability Bias Standards

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By Katarina E. Klenner

Sept. 8 — Federal courts interpreting the Americans with Disabilities Act in the past year have been “much more progressive on lots of issues,” an EEO consultant, trainer and lecturer said Aug. 31.

“It's really been a year of toss ups and flip flops around the country. Some of the most pro-employer circuits have come out with some of the most pro-employee decisions, and some of the most pro-employee circuits—like the Ninth Circuit—have come out with some incredibly pro-employer cases,” David Fram told participants at the National Employment Law Institute's 20th Annual ADA Workshop. Fram is the longtime director of NELI's ADA and EEO Services.

As to what may be spurring changes in some of the courts, Fram said, “There have been a whole bunch of new judges appointed to the district courts, to the courts of appeals over the past seven years, so we're seeing real differences in some of the circuits, and it's important to understand where they're going.”

Fram said courts have been helpful to employers on the question of disability and have been balanced in their determinations on whether an individual with a disability is qualified for employment. He said courts have been more pro-employer in determining what are and aren't essential functions, and more pro-employee on deciding qualification standards. On reasonable accommodations, courts have tended to favor employers on the basic definition of “reasonable” but have been very favorable to employees on certain accommodations, such as leave, modified schedules and telework.

Based on these legal developments, Fram responded to participants' questions about how to avoid regarded-as claims, which job functions are essential, and when to enforce conduct rules and argue direct threat.

Lack of Knowledge as Best Defense

Fram said some courts are applying the incorrect “regarded as” standard for cases arising on or after Jan. 1, 2009, which is when the ADA Amendments Act took effect.

Under the ADAAA, claimants must show they've been subject to an alleged discriminatory employment action because of an actual or perceived impairment, but don't have to show that the impairment substantially limits a major life activity.

But certain judges are still using the pre-Amendments Act definition of “regarded as” disabled—perceived as having a substantially limiting impairment, Fram said. “What the Amendments Act changed isn't the words; it changed the meaning of the words,” he said. Surprisingly, the new regarded as case law isn't very pro-employee, he added.

For disability discrimination cases under the regarded as prong, employer knowledge of employee impairments is relevant. “Lack of knowledge is a beautiful defense,” Fram said, because it suggests an employer couldn't have discriminated based on disability. “We couldn't take an action against you because of what we didn't know,” he said.

Fram said decisions from the U.S. courts of appeal for the Fifth, Seventh and Eighth circuits are illustrative, includingBurton v. Freescale Semiconductor, Inc., 31 AD Cases 1533 (5th Cir. 2015); Silk v. Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524, 31 AD Cases 1548, (7th Cir., 2015); Fischer v. Minneapolis Pub. Sch., 792 F.3d 985, 31 AD Cases 1341 (8th Cir. 2015); Jackson v. City of Hot Springs, 751 F.3d 855, 29 AD Cases 1329, (8th Cir. 2014); Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 29 AD Cases 17 (7th Cir. 2014).

Additionally, Fram highlighted the Sixth Circuit's decision in Arthur v. American Showa, Inc., 2015 BL 261816 (6th Cir. 2015), in which an employee with spina bifida occulta couldn't establish a prima facie case of discriminatory discharge where the individual who made the termination decision didn't have knowledge of the disability and was unaware why work restrictions were imposed.

To preserve this lack of knowledge defense, Fram urged employers to “keep your supervisors and managers out of medical stuff.”

By contrast, the transitory and minor exception “isn't such a great defense,” Fram said. The Seventh Circuit's recent Silk decision highlights that it's the employer's burden to prove a perceived impairment was actually transitory and minor—not merely that this was the employer's subjective belief, Fram said. Under the ADAAA, the “regarded as” prong doesn't apply to impairments that are both transitory and minor, he said.

Although federal disability law doesn't require employers to accommodate employees who meet the regarded as definition, California law does, Fram added.

‘Substantially Limits' Standard in Flux

Federal courts have been “very expansive” in defining major life activities and are beginning to flesh out what “substantially limits” means under the ADAAA.

Fram said the Equal Employment Opportunity Commission provided no definition for the term in its ADAAA regulations and that the commission's justification for the omission is it “[did]n't want anybody focused on the issue.”

As a result, courts “are coming up with their own definitions” and “are all over the place because they have no definition to work with,” he stated.

Fram scrutinized the EEOC's post-Amendments Act regulation at 29 C.F.R. § 1630.2(j)(4)(iii), which he said states “the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve.” He said he could see how an investigator or court could read the regulation to say “don't look at what the person can do, just look at what the person can't do.”

But the EEOC has stated orally that employers have the right to look at what an individual can and can't do. “Frankly, I wish they would put that in writing,” Fram said.

Duration of Impairment Still an Issue

The ADAAA doesn't specify how long a condition must last to be substantially limiting. But Fram said, “Don't use six months anymore—I wouldn't use more than three months as my general rule.” The EEOC says a condition lasting less than three months could be substantially limiting “if it's really bad,” he added.

The pro-employee Ninth Circuit found an employee didn't have a substantially limiting condition in Hosea v. Donley, where the person had acute work-related stress for just over two months with no continuing impairments or limitations (584 F. App'x 608, 2014 BL 231749 (9th Cir. 2014)). Fram also discussed the Tenth Circuit's ruling on the issue in Tadlock v. Marshall County HMA, LLC, 603 F. App'x 693, 31 AD Cases 642, (10th Cir. 2015), which said an allegation of a long-term condition is required.

“Most of the courts in terms of duration—except for one Seventh Circuit case—are saying [the condition] still has to be long-term. What's long-term mean? Again, I would use no more than three months,” Fram asserted.

Recognizing the ADAAA's expanded coverage, the Seventh Circuit held that transitory and minor impairments could be protected under the actual disability category since Congress excluded them from the regarded as definition (Gogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170, 28 AD Cases 1775 (7th Cir. 2013).

Identifying What's Essential

To determine whether a person with a disability is qualified for a particular job, courts examine the individual's background and whether he or she can perform essential job functions.

The EEOC's 2014 federal sector decision in Petitioner v. Johnson (EEOC Petition No. 0320110053) involving a Customs and Border Patrol officer with sleep apnea “really rocks the earth” on what qualified means, Fram said. According to the EEOC, he said, the appropriate inquiry is “whether that person can perform the essential functions of the job when at work.”

In view of this ruling, don't argue to the EEOC that attendance is essential, rather say “regular, reliable, predictable performance of these tasks is what's essential,” Fram recommended, emphasizing “performance.”

To say that a determination of being qualified revolves around the individual's duties and outcomes—when at work—is “really dramatic” for certain issues, Fram said, noting the implications of the EEOC's decision on determining whether attendance and the ability to work overtime and shifts are essential functions.

Although the EEOC's official and unequivocal position is that “none of those things is essential,” Fram said, courts have different views. Federal appellate courts have held that regular attendance and the ability to work specific shifts or rotating assignments are essential, and that punctuality and the ability to work full-time or overtime may be essential for particular jobs.

Attendance, Interaction Remain Important

Fram highlighted a recent D.C. Circuit opinion concluding that physical presence was essential for a Coast Guard management analyst who needed access to sensitive documents (Doak v. Johnson, 31 AD Cases 1633, (D.C. Cir. 2015).

Based on their position that regular attendance is an essential function, most courts have concluded an employer isn't obligated to provide leave as an accommodation for an employee who can't maintain predictable attendance, Fram added later in the program.

Fram also mentioned a recent pro-employer decision on the ability to handle stress and to get along with others. In a case involving death threats in the workplace, the Ninth Circuit said “an essential function of almost every job is the ability to appropriately handle stress and interact with others,” Fram said, quoting the decision (Mayo v. PCC Structurals, Inc., 31 AD Cases 1556, (9th Cir. 2015). “The language of the case is terrific for employers,” but “the facts of the case are less helpful just because the facts are so egregious,” Fram said.

Avoid Direct Threat Defense

“As an employer, you never ever ever want to be arguing direct threat, if you can help it. And most of the time you can help it,” Fram said.

If a person threatens violence in the workplace, he urged employers to enforce their conduct rules. Save the direct threat defense for the “pretty rare situation” where the person hasn't broken any safety, conduct or professionalism rules, but is in a safety-sensitive job and what you learn about the person leads to safety concerns, Fram advised.

“So much is going to depend on the type of job we're talking about. If we're talking about a forklift driver that's really different than if we're talking about a clerical worker,” Fram said. “It's got to be something about this job that's causing the significant risk of substantial harm that can't be accommodated.”

To show a significant risk of substantial harm and that there is no accommodation that will reduce the risk or the harm “is such a tough burden—you can't just say this person poses safety risks in the workplace,” Fram said. “That's not going to be enough,” he said.

Most courts and the EEOC say the employer has the burden to show direct threat. However, a few older cases suggest an employee may have to show that he or she isn't a direct threat if the job implicates safety, Fram said.

‘Infinitesimal' Risk Isn't Direct Threat

According to Fram, court decisions that are of help to employers, such as EEOC v. Exxon Corp., 203 F.3d 871, 10 AD Cases 225 (5th Cir. 2000), distinguish general safety-based qualification standards for a position, which must be job-related and consistent with business necessity, from direct threat cases that focus on an individual employee with a disability and assess whether the individual can safely perform a job.

“It's not going to be a direct threat case if we're not just screening out this person. These courts have said it becomes direct threat when I'm saying I think you can't safely do this job,” Fram said.

A pro-employer case out of the U.S. Court of Appeals for the Third Circuit that is “at odds with most of the direct threat cases”—Coleman v. Pa. State Police, 561 F. App'x 138, 29 AD Cases 1000 (3d Cir. 2014)—affirmed a district court's ruling that a state police cadet with recurrent seizures posed a direct threat to public safety. The court found an individualized assessment as to whether the candidate's employment posed a direct threat wasn't required where a seizure protocol screened the individual out.

Fram said: “This is one of the most recent direct threat cases, one of the only court of appeals direct threat cases this year—terrific case for employers—but it wouldn't be one of those cases that if I was an employer, even in a public safety job, that I would rely on. I would still want to do an individualized assessment of this person in this job.”

A new case from the Tenth Circuit that rejected an employer's direct threat defense, Osborne v. Baxter Healthcare Corp., 2015 BL 271770 (10th Cir. 2015), weighed in on what constitutes a “significant” risk of substantial harm, Fram said. The circuit court stated that an “infinitesimal” health or safety risk doesn't constitute a direct threat under the ADA. The appellant, a hearing-impaired person, had filed a disability bias claim after a plasma center rescinded its job offer.

Distinguishing risk of harm to self from risk of harm to others, Fram added that he thinks courts are requiring “a lot more risk if the harm is just to self” rather than to co-workers or the public.

Enforce Your Conduct Rules

In discussing conduct rules, Fram said courts, including the Ninth Circuit, are saying employers can enforce their conduct rules, even if an employee breaks a rule because of a disability—“as long as that's what you would do for anybody else in the workplace.”

Specifically, he said, employers can enforce rules concerning alcohol in the workplace and rules prohibiting workplace violence, threats of violence, theft and destruction of property.

Most courts have held that employers can enforce workplace rules on professionalism, Fram said.

According to Fram, a Ninth Circuit decision issued last month said, in effect, “Even if somebody's behavioral issues were caused by his medications you can enforce your rules on behavior in the workplace” (Cordero v. Miraval Holding, LLC, 2015 BL 266973 (9th Cir. 2015)).

The EEOC's position on the issue is “slightly different” but “very workable,” he said. If an individual's misconduct was caused by a disability, “just be ready to show that the rule that you're enforcing is job-related and consistent with business necessity,” Fram said.

“Do you ever have to rescind the discipline as an accommodation? No—not if the person asks for the discipline to be rescinded after they've broken the rules,” Fram said. “You don't have to excuse the misconduct.”

Protection for Medical Marijuana Users?

Fram briefly highlighted potential issues regarding employees with disabilities who are certified medical marijuana users.

“My concern, from an employer's perspective, isn't about federal law—it's what if the person is lawfully using the drug of marijuana under state law and then doesn't bring an ADA or Rehab Act claim but just brings a state disability law claim,” he said. “Could the employer in that state say this is still illegal use?”

He noted, “There have been a couple of cases—one in Colorado, one in California—where courts, even under state law, have still said it's illegal use”.

Further, he pondered, “If an employer is asking about marijuana use in California, it's going to be per a prescription, so doesn't that turn it into a disability-related question? I think it does.”

Cautioning employers not to make disability-related inquiries at the pre-offer stage, Fram said to be careful about asking applicants to authorize release of medical information in jurisdictions where marijuana is legal under prescription. “If I'm in one of those jurisdictions and I ask ‘Do you use marijuana?' ” Fram said, “isn't that close to asking whether or not you have some medical condition?”

To contact the reporter on this story: Katarina E. Klenner in Washington at

To contact the editor responsible for this story: Heather Bodell at