EEOC publishes technical assistance document on artificial intelligence and the ADA

Not official use.

What if an employer uses a "chatbot" to screen applicants? And, let's say the chatbot is programmed to screen out applicants who have a gap in their resumes. But, wait! What if the gap was caused by the applicant having a disability and needing time off for treatment? That could raise some ADA issues!

That's just one of the examples provided by the EEOC in its latest technical assistance document: The ADA and AI: Applicants and Employees. Employers who use software, algorithms, and AI to assess job applicants and employees should check out this document. It's mostly a high-level overview, but some good food for thought. 

EEOC updates guidance to address COVID-19 and the definition of "disability"

The EEOC just keeps updating the ol' What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance, most recently by adding a new section called COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act.

Not official use.

So, is COVID-19 a disability under the ADA? Get ready for it, because we've got an attorney's hall of fame all-time classic coming up... it depends!

An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

What? Did you think the ADA would suddenly be clear and easy to apply to your circumstances in the case of COVID-19? 

Look, these issues can be tricky. This new EEOC guidance may be helpful. At the risk of sounding too self-serving, employers may wish to contact their trusted employment lawyer for advice. 

EEOC updates guidance on COVID-19 vaccinations

Not official use.

 Just a quick post to note that the EEOC updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (specifically, Section K Vaccinations). You can tell which subsections were updated because it will say "Updated 10/13/2021" (subsections K1, 3, 4, 9, 13, 15, 16, 17, 18). 

Some of the new guidance specifically covers permissible incentives for getting the vaccine. Particularly noteworthy: the guidance states that there are no limits on the value of incentives (under either GINA or ADA) for employees get vaccinated by a health care provider that is not affiliated with the employer. 

HT (plus more info): Eric Meyer at The Employer Handbook.  

Applying an employment law perspective to Naomi Osaka

Tennis star Naomi Osaka recently withdrew from the French Open, citing mental health issues that specifically precluded her from participating in press events. I thought it would be a helpful lesson for employers to view this situation through an employment law lens, and specifically the Americans with Disabilities Act (ADA). 

Caveat: I doubt that a French tennis tournament is a covered employer under the U.S. ADA, I have no idea whether the players are even employees (as opposed to contractors), and presumably there are contract provisions at play here too - think of this as an educational exercise, not actual analysis of her situation. 

Can "invisible" illnesses be disabilities?

Absolutely! The ADA defines a disability to include mental impairments that substantially limit a major life activity. And, major life activities include things like sleeping, eating, concentrating, thinking, communicating, and working... things that can be substantially limited due to severe mental illness. Here, we really don't know the extent of her mental health issues - but they could very well rise to the level of a disability under the ADA.

Would her employer have a duty to accommodate her? 

Attribution

This question highlights one of the employee's obligations - an employee generally has an obligation to provide the employer with notice that they have limitations that prevent them from fully performing their job, and then participating in the interactive process (i.e. talking to the employer to help identify reasonable accommodations). This may be a problem in Osaka's situation, because it appears she just announced on social media that she was not participating in press conferences (recognizing that talks may well have taken place behind the scenes). After notice, the employer also picks up an obligation to participate in the interactive process. 

Would missing the press conferences be a reasonable accommodation?

Assuming Osaka's mental health issues rise to the level of a disability, and that she notified the tournament of her need for an accommodation, would they have a duty to accommodate her? Under the ADA an employer would be required to provide her with a reasonable accommodation that enables her to perform the essential functions of her job. 

Here's where I think a lot of the commentary on this issue is missing the mark. Professional athletes are not just playing sports - they are professional entertainers. Yes, playing the tennis matches is obviously an essential function. But, many commentators have been far too dismissive of the argument that the press conferences are also an essential function of the job. Without more information, I cannot conclude that the press conferences are definitely an essential function - but I find it plausible that press conferences are an essential part of what is ultimately an entertainment endeavor. 

Bottom line

Subject to a lot of "ifs":

• IF her mental health issues rise to the level of a disability;
• IF the employer had notice of the need for an accommodation and she engaged in the interactive process; and
• IF she could miss the press conferences and still perform the essential functions of her job (i.e. the press conferences are not an essential function of the job); 
• THEN she may be entitled to an accommodation under the ADA - like playing in the tournament but without participating in the press conferences. 

New EEOC guidance on COVID vaccines: employer mandates and incentives

At long last, we have the updated EEOC guidance on COVID-19 vaccinations. The two big questions I keep getting are:

• Can employers require employees to get the vaccine? 
• Can employers incentivize employees to get the vaccine. 

The answers are generally yes and yes - but, as always, with a few caveats. 

Mandates (where the employer is *not* administering or contracting with someone else to administer the vaccine to the employee)

Not official use.

• Employees who cannot get the vaccine due to a disability or religious belief may be entitled to an accommodation;
• Some possible accommodations: "an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment;"
• Generally, employers have a defense to an accommodation claim where the employee poses a "direct threat" to health and safety - in this situation, the EEOC noted some factors: up-to-date CDC guidance, and "whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing;"
• Note that it gets more complicated where the employer is administering the vaccine, or contracting with someone else to administer the vaccine, to the employees. 

Incentives

• Full-throated "yes" from the EEOC on whether employers can offer incentives to employees and their family members to get vaccinated by their own doctor or pharmacy;
• But, if the vaccination is administered by the employer or its agent, then the incentive must not be "so substantial as to be coercive" (and good luck finding a good definition of what that means); and 
• GINA prohibits offering an incentive to the employee for the employee's family member to get vaccinated because it may require disclosure of the employee's family medical history.

Odd and Ends

• "[T]he employer is required to keep vaccination information confidential pursuant to the ADA;" and
• As you can probably tell from above, it is much more convoluted and difficult if the employer (or its agent) administers the vaccine.

As always, read the full guidance for additional information. 

Justices Gorsuch and Alito on inconsistent application of "undue hardship" under ADA and Title VII

I was juuuust talking about this in my employment law course. As luck would have it, we discussed both disability accommodation (under the ADA) and religious accommodation (under Title VII). I, of course, explained that an employer is not required to accommodate an employee (under either statute) if the accommodation would impose an "undue hardship" on the employer.  

Now, here's the weird part . . . under the ADA, "undue hardship" means "significant difficulty or expense in light of the employer's financial resources, the number of individuals it employs, and the nature of its operations and facilities." Under Title VII, it means "more than a de minimis cost." Same phrase. Different meanings. (quotes from Small, link below).

The miniscule bar for religious accommodations under Title VII was placed by the Supreme Court in Trans World Airlines, Inc. v. Hardison. The end result is that employers face a far more demanding obligation to accommodate disability compared to religion. Notably, both USERRA (in addressing an employer's obligation to restore a returning servicemember to their prior position) and the ACA (providing breaks for nursing mothers) utilize the ADA standard.  

Yesterday, the Supreme Court denied certiorari in (decided not to hear) Small v. Memphis Light, Gas & Water. Justices Gorsuch and Alito penned a dissent from denial of cert. They wanted SCOTUS to take this religious accommodation case and "correct" the "mistake" of Hardison. The de minimis standard remains the definition of "undue hardship" for religious accommodations... for now. The current SCOTUS lineup seems pretty favorable to religious accommodations though, so the de minimis standard's days may be numbered. 

Everybody panic! The EEOC just released its entirely unremarkable COVID vaccine guidance.

The long-awaited EEOC guidance on COVID-19 vaccines is here. Can employers require employees to get the brand new COVID-19 vaccine? Yes, but.... (you knew there was going to be a "but" right?).

Disability-Related Inquiries

If an employer administers the vaccine to its employees (or contracts with a third party to do it), then there's a small problem. The screening questions include disability-related inquiries. Employers (or their contractors) can only request such information if the questions are "job-related and consistent with business necessity." "To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others." We'll address that "direct threat" analysis below.

Two ways to avoid this issue altogether:

1. Make the screening questions (and therefore the vaccine) voluntary; or

2. Require the employee to show proof of vaccination from a third party that does not have a contract with the employer to administer the vaccine (like a pharmacy or health care provider).

Reasonable Accommodations and Direct Threat Analysis

Surely you saw this issue coming? Individuals with a disability or sincerely held religious belief that precludes them from getting vaccinated may be entitled to an accommodation. The ADA provides an exception if the employee with a disability (and therefore without a vaccine) would pose a direct threat to the health or safety of others, which cannot be eliminated or reduced by a reasonable accommodation. 

What's a "direct threat?" The EEOC identifies four factors:

1. the duration of the risk; 

2. the nature and severity of the potential harm; 

3. the likelihood that the potential harm will occur; and 

4. the imminence of the potential harm.

"A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite." By contrast, Title VII provides an exception for an employee with a religious objection if the accommodation imposes more than a "de minimis" cost or burden. 

If no accommodation is possible without posing a direct threat (disability) or more than de minimis cost (religion), then the employer may exclude the employee from the workplace. But, the EEOC notes, "This does not mean the employer may automatically terminate the worker." The guidance points to other EEO laws and rights - perhaps a hint at telework as an accommodation? Or, perhaps just a reminder that employers have obligations outside of the ADA and Title VII. 

Genetic Information Nondiscrimination Act (GINA)

Finally, it is not clear if the screening questions will include requests for genetic information covered by GINA. Juts one more thing to worry about for employers who administer the vaccines themselves (or through a contractor). 

Grocery store's mask requirements survive ADA legal challenge

An interesting decision from the Western District of Pennsylvania, in Pletcher v. Giant Eagle. One of the plaintiff's, Josiah Kostek, sought a preliminary injunction against Giant Eagle grocery store claiming that its mask requirements violated the ADA. 

The plaintiff has been diagnosed with numerous mental impairments: "anxiety disorder; panic disorder; post-traumatic stress disorder; and, an adjustment disorder with mixed anxiety and a depressed mood." But, he failed to provide any medical records establishing that he could not wear a mask in the grocery store. Further, Giant Eagle allows shoppers to wear face shields instead of masks, and Kostek had no evidence that he was unable to wear a shield. 

The plaintiff managed to trip over the low bar of establishing a prima facie case. Of course, even if he had cleared that initial hurdle, Giant Eagle would still have an opportunity to present a defense - like, ya know, they're trying to avoid the further spread of a global pandemic that's already killed a few hundred thousand Americans. The Court did not directly rule on that issue, but sent a crystal clear message:

[T]he Court need not evaluate Giant Eagle's well-taken defenses that its face covering policy is a legitimate safety requirement during the COVID-19 pandemic and that Kostek presented a direct threat to the health and safety of others, including customers and employees.

I understand people's frustration with mask requirements, but it appears to be an uphill legal battle to challenge store policies requiring them.  

Judge Barrett and the case of the Zamboni driver with a disability

 Back with another employment law opinion from Judge Barrett, this time in Graham v. Arctic Zone Iceplex, LLC. 

Graham was a Zamboni driver at Arctic Zone who got injured on the job. He did not work for a few months, and when he returned, he had certain medical restrictions. Specifically, he could only work sitting down. So, the employer tried to accommodate him by assigning him to sharpen skates. The employee disagreed - and claimed that he could not do the job sitting down. Here's the kicker though - "he did not inform Arctic Zone of his belief that skate sharpening did not meet his restrictions." 

Ask anyone who has attended one of my classes or presentations on the ADA - do I hammer on the importance of the "interactive process?" I hammer on the importance of the interactive process. And, the interactive process (as the name would suggest) is a two way street requiring interaction from both sides:

This is a textbook example of an employee “not provid[ing] sufficient information to the employer to determine the necessary accommodations.” Id. (citations omitted). Because he failed to uphold his end of the interactive process, we affirm the district court’s grant of summary judgment on the accommodation issue.

The employee also eventually got fired. So, Judge Barrett next turned to the employer's proffered legitimate non-discriminatory reasons for the termination. A few notes from that portion of the analysis:

• The employer was not required to provide prior written notice or discipline of the employee's "apparent bad attitude, inability to complete work on time, and insubordination."

• Judge Barrett derided the employee's "gotcha" argument - The employer argued that the employee did not handle his "change of position" well but also argued that the employee's "position" never changed. The reality was that the employee's schedule changed, so the semantics of calling it a "change of position" in one context and maintaining that it was the same position but just at a different time later was not viewed as contradictory. 

• Oh, the employee also caused a Zamboni accident that created a dangerous condition for customers at the ice rink. 

So, Judge Barrett affirmed summary judgment for the employer. 

Sidenote: I've read a few of Judge Barrett's opinions now, and she is an excellent writer. She clearly explains the relevant facts and analysis, and she presents them in an easily readable "plain English" style. She is not, however, "folksy" (contra Justice Gorsuch). 

HT: Eric Meyer, Supreme Court nominee Amy Coney Barrett on the ADA. Plus, Bill Murray’s attorney responds to that cease and desist 👀.

Lawffice Links: COVID-19 guidance still trickling in

The guidance just keeps comin' folks:

• EEOC updated What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws - New Q&A on pregnancy, age discrimination, accommodations, and more; 
  
• DOL OSHA FAQs on face coverings;
• Joint Statement by Treasury Secretary Steven T. Mnuchin and SBA Administrator Jovita Carranza Regarding Enactment of the Paycheck Protection Program Flexibility Act;
• Not agency guidance, but a nice article addressing agency guidance: What to Expect When You’re Expecting OSHA to Visit Your Reopened Workplace;
• If you go to OSHA.gov, you can see a COVID-19 Tip of the Day (subscribe here) - Some nice bite-sized tips, but sometimes a little obvious. For example, today's is "Replace face-to-face meetings with video conferencing." Ohhhhh, hey thanks, never thought of that!

Enjoy!

Update and reminder: EEOC guidance on COVID-19 and the ADA

The EEOC updated its guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. See G.3 and G.4 for new guidance on handling employees who have medical conditions that the CDC says may put them at higher risk for severe illness. In particular, the ADA may require that employers reasonably accommodate such employees if they request an accommodation. On the flip side, some employers are concerned about allowing such people back to work (out of concern for the health or safety of the employee. Can the employer exclude them? Generally not - unless their condition poses a "direct threat" to their health that cannot be eliminated by a reasonable accommodation. 

As businesses begin to reopen their physical locations, employers may also be interested in the prior guidance regarding employees who cannot wear masks:

G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.

Stay tuned. As we shift gears to the re-opening phase, no doubt more issues will pop up (and so will more guidance).  

EEOC: May an employer test employees for COVID-19?

The EEOC continues to update its guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Yesterday they added Question A6:

May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?

Short answer: Yes. Longer answer:

The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity."  Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. 

Based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. 

EEOC expands its COVID-19 guidance

The EEOC issued a new and improved guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This "expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers to anticipating return to work situations, making reasonable accommodations, and harassment."

The EEOC has helpfully added dates to the Q&A so that readers can quickly discern which content is new.

EEOC on ADA and COVID-19 - Can you check your employee's temperature?

I was out of the office last week and came back to pandemic pandemonium. And, by "came back," I mean working from home (on the plus side, I get to attend a court conference in pajamas for the first time!). I'll do my best to keep employers (and employees) posted on the latest developments.

For starters, enjoy this ADA guidance from the EEOC: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19. Some great info there, and I'll highlight the Q&A, which hits on some major issues:

• How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

  

  Not official use.

  • During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
• When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
  • Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
• Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? 
  • Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
• When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty? 
  • Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

How to lose an ADA "regarded as" disability reasonable accommodation case

Once upon a time, waaaay back before 2008, there was a circuit split on the issue of whether the ADA required employers to reasonably accommodate an employee who was "regarded as" having a disability (but, did not meet either of the other two covered definitions of "disability" - actually having a disability, or having a record of a disability). Here in the Third Circuit, we did allow employees to proceed on a "regarded as" disability reasonable accommodation claim.

Not official use.

Then, in 2008, the ADA was amended by the ADAAA. The ADAAA makes very clear that employers “need not provide a reasonable accommodation . . . to an individual who meets the definition of disability in [Section 12102(1)(C) - the subsection defining "disability" to include an individual "regarded as" having a disability].” 42 U.S.C. § 12201(h).

Welp, that's the background for a Third Circuit opinion from earlier this year, Robinson v. First State Community Action Agency. The jury ruled in favor of the employee on her reasonable accommodation claim. The jury instructions included an instruction that the Plaintiff could prove her case by establishing only that the employer "regarded [her] as dyslexic." Well, clearly she should have lost this claim because the ADAAA does not require an employer to accommodate an employee who is merely regarded as having a disability.

The employer, however, proceeded under this theory of the case throughout litigation, trial, and post-trial briefing. The objection to the jury instruction (or this theory of the case, generally) came only on appeal to the Third Circuit. Per this opinion, that is simply too late. The issue had been waived. That's a pretty harsh outcome for a failure to object earlier - but it does serve as a strong cautionary tale.

One interesting side issue here. The employee argued that the trial court could not have erred because it relied on the Third Circuit Model Jury Instructions (or "Model Civil Jury Instructions for the District Courts of the Third Circuit"). No dice.

[W]e have never held that use of such an instruction cannot constitute error, and a model jury instruction itself is neither law nor precedential . . . . Model instructions are designed to help litigants and trial courts, not to replace their shared obligation to distill the law correctly when drafting proposed jury instructions. Thus, the existence of the antiquated model jury instruction here, which regrettably does not yet reflect the 2008 Amendments, fails to provide a second justification for our decision to not review the relevant jury instruction.

The model instructions are a great resource - but litigators still need to check them.

Accommodation claim survives close shave at the Third Circuit

"Close shave" - It's a case about a guy with a skin condition, pseudofolliculitis barbae (PFB), who sought an accommodation to not have to shave his face or neck - get it? Full not precedential opinion here: Lewis v. Univ. of Penn.

The Plaintiff/Appellant succeeded in reversing summary judgment on three interesting issues (the Court hit even more issues, but these are just the highlights):

Constructive Discharge

Not official use. 

Constructive discharge is a resignation that is treated like an involuntary firing under the law. Courts look for an abusive and intolerable environment in which a reasonable person would feel compelled to resign. In Lewis, the Court held that evidence of the following was sufficient for a constructive discharge claim to survive summary judgment:

Lewis’s superiors disciplined him, altered his job responsibilities, removed him from a preferred assignment, and threatened Lewis with discharge.

Interactive Process

I try to emphasize this point with employers - yes, there are a bunch of technical requirements about what counts as a disability, what is a reasonable accommodation, when an accommodation constitutes an undue hardship . . . but the ADA requires that employers participate in an interactive process. So, make an effort to engage with the employee to see what you can do to help. As the Court described it, the employer must "engage in a good faith interactive process to identify accommodations."

The trial court dismissed the ADA claim because Lewis never expressly requested his desired accommodation (exemption from a medical certificate requirement). The Third Circuit reversed because Lewis had requested a related accommodation and the employer knew about his disability. This triggered their obligation to engage in the interactive process to identify a reasonable accommodation. Lewis claims he just got a flat denial with no effort to communicate about his needs.

Medical certificate counts as "disability-related inquiry"

Subject to some exceptions, the ADA generally prohibits disability-related medical examinations  and inquiries. Interestingly, the Court relied on EEOC Enforcement Guidance for the definition. "Disability-related inquiries may include . . . asking an employee to provide medical documentation regarding his/her disability." Here, the employer required some kind of medical certificate, so the trial court on remand will have to address whether it was for a legitimate purpose.

Does the cost of a sign language interpreter constitute an undue hardship under the ADA?

First, check out this great article: How Reasonable is That Accommodation? Case Studies Evaluating the Reasonableness of Workplace Accommodations Under the Americans With Disabilities Act. The article provides three "case studies" for reasonable accommodations under the ADA, including Searls v. Johns Hopkins Hosp.

In Searls, a deaf nurse sought a reasonable accommodation under the ADA - an American Sign Language (ASL) interpreter. The nurse's salary was about $60,000/year, and the ASL interpreter would have cost up to $120,000/year. The hospital argued that it would effectively have to layoff two other nurses to account for the ASL interpreter in the budget. That sounds like a pretty good setup for an undue hardship defense, huh?

Not so fast! The Court declined to enter summary judgment for the employer, mostly because the $120,000 cost was only 0.007% of the hospital's budget. And, that right there is one of the difficulties in analyzing an employer's duty to accommodate employees with disabilities under the ADA.

You really have to examine circumstances. Did Johns Hopkins fail to get summary judgment on a $120,000 cost that was twice the employee's salary? Yeah. Does that mean your business has to provide such an accommodation? Well . . . wait for it . . . classic attorney punchline coming . . . that depends.

[Loud groaning and booing from the audience]. "Can you at least tell us what it depends on?" Fine. Per the ADA, here is a nonexhaustive (I know, I know - yes, there might be even more factors that aren't even listed) list:

(i) the nature and cost of the accommodation needed under this chapter; 

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and 

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 

42 U.S.C. § 12111(10)(B).

MORE Miles on Service Animals and the ADA

Great news! Bloomberg BNA used some of my interview for a second piece on the ADA implications of service animals in the workplace: Helping Workers Who Rely on Animals Without Making a Mess. Enjoy!

Third Circuit on Title VII, ADA, and 1983 claims

Yesterday, the Third Circuit issued a precedential opinion in Williams v. PHRC.

Williams sued the PHRC for allegedly discriminating against her based on her race and disability. Generally, under 42 U.S.C. §1983, people can sue state actors for violating their federal rights - like constitutional rights, or statutory rights. Williams sued under Title VII (race discrimination) and under §1983, claiming violation of her rights under Title VII and the ADA (disability discrimination).

Not official use.

Here's the rub . . . plaintiffs cannot bring §1983 claims where Congress has created a "comprehensive enforcement scheme" to enforce the rights at issue. And, it certainly seems like Congress has done so with Title VII and the ADA. Thus, the Court concluded:

[P]laintiffs may not seek damages under § 1983 for stand-alone violations of either Title VII or the ADA.

Plaintiffs must instead proceed under Title VII and the ADA, not under §1983.

Why does this matter? It matters because discrimination claims under Title VII and the ADA generally require exhaustion of administrative remedies. In other words, Plaintiffs have to submit a charge of discrimination to the EEOC (and the state-equivalent, in PA the PHRC) before going to Court. This often involves informal resolution procedures too. For §1983 claims, plaintiffs can just go straight to court. Also, the time to file a §1983 claim is much longer than the time to file a charge with the EEOC. The Court sums it up nicely:

Given these respective statutes, Congress’s intent is clear. Allowing pure Title VII and ADA claims under § 1983 would thwart Congress’s carefully crafted administrative scheme by throwing open a back door to the federal courthouse when the front door is purposefully fortified.

Other circuits have held similarly.

Transgender ADA claim survives motion to dismiss

In Blatt v. Cabela's Retail, Inc., a Pennsylvania transgender employee filed an ADA discrimination and retaliation claim. She alleged that "she requested a female nametag and uniform and use of the female restroom as accommodations for her disability." Her alleged disability was "Gender Dysphoria, also known as Gender Identity Disorder."

Here's the problem . . . the ADA specifically excludes "gender identity disorders" from  the definition of "disability." 42 U.S. Code § 12211. The defendant contended that her case should be dismissed because her alleged disability is specifically excluded by the statute. The plaintiff claimed that this exclusion is unconstitutional because it violates her equal protection rights.

The Court applied the "constitutional-avoidance canon" - the idea being that courts should try to interpret statutes in a way that avoids resolving constitutional issues - to conclude:

In view of these considerations, it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life activities of interacting with others, reproducing, and social and occupational functioning.

In other words, the Court interpreted the statutory exclusion of "gender identity disorders" so narrowly as to not cover what the plaintiff herself pleaded was a "Gender Identity Disorder." The Court went on to deny the motion to dismiss. The decision is likely not immediately appealable, but it's an issue that may find its way to the Third Circuit eventually.