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| Not official use. |
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.
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| Not official use. |
[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.
(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).
We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U. S. C. §§12102(1)–(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.So, how about it? Employers must accommodate pregnant employees under the ADA? Not so fast!
Some impairments of the reproductive system may make a pregnancy more difficult and thus necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth. Disorders of the uterus and cervix may be causes of these complications. For instance, someone with a diagnosis of cervical insufficiency may require bed rest during pregnancy. One court has concluded that multiple physiological impairments of the reproductive system requiring an employee to give birth by cesarean section may be disabilities for which an employee was entitled to a reasonable accommodation.
Impairments involving other major bodily functions can also result in pregnancy-related limitations. Some examples include pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); pregnancy-related carpal tunnel syndrome (affecting neurological function); gestational diabetes (affecting endocrine function); nausea that can cause severe dehydration (affecting digestive or genitourinary function); abnormal heart rhythms that may require treatment (affecting cardiovascular function); swelling, especially in the legs, due to limited circulation (affecting circulatory function); and depression (affecting brain function).
In applying the ADA as amended, a number of courts have concluded that pregnancy-related impairments may be disabilities within the meaning of the ADA, including: pelvic inflammation causing severe pain and difficulty walking and resulting in a doctor's recommendation that an employee have certain work restrictions and take early pregnancy-related medical leave; symphysis pubis dysfunction causing post-partum complications and requiring physical therapy; and complications related to a pregnancy in a breech presentation that required visits to the emergency room and bed rest. In another case, the court concluded that there was a triable issue on the question of whether the plaintiff had a disability within the meaning of the amended ADA, where her doctor characterized the pregnancy as "high risk" and recommended that the plaintiff limit her work hours and not lift heavy objects, even though the doctor did not identify a specific impairment.So, the pregnancy itself is not a disability... but a pregnancy-related impairment may be a disability.
Although we have never had occasion to address specifically what constitutes invocation of one’s right to return to work, Budhun has adduced enough evidence such that a reasonable jury could find that she did so here. Her “fitness-for-duty” certification clearly stated that she could return to work with “no restrictions.” Prior to permitting an employee to return to work, an employer may request that an employee provide such a certification, see id. § 825.312, as Reading required of Budhun here. In it, an employee’s healthcare provider must merely certify that the employee is able to resume work. Id. § 825.312(b); see also Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1003-04 (6th Cir. 2005) (interpreting a similar version of the regulation to require only a statement that the employee can return to work, nothing more). An employer may require that this certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave. 29 C.F.R. § 825.312(b). It is undisputed that Reading did not provide Budhun a list of essential functions for her to present to Dr. Battista. Because Reading did not provide Budhun with such a list, Dr. Battista’s fitness-for-duty certification was based only on the description of the job that Budhun would have supplied him . . . .
The regulations contemplate just this kind of situation. They state that if the employer requires clarification of the fitness-for-duty certification, the employer can contact the employee’s health care provider (as long as the employee gives the employer permission to do so, which Budhun did here). Id. § 825.312(b). However, the “employer may not delay the employee’s return to work while contact with the health care provider is being made.” Id. Instead of following the regulations, Spinka (who is not a doctor) seemingly overruled Dr. Battista’s conclusion (albeit reached without an employer-provided list of essential job functions) by telling Budhun that if she was “truly unrestricted,” she “would have full use of all of [her] digits.” App. 267. The record is sufficient to allow a reasonable jury to conclude that Budhun attempted to invoke her right to return to work, and that Reading interfered with it when it told Budhun that she could not.Annnnd so the employer lost the summary judgment that the district court had granted. This case has a lot of twists and turns that are just too in-depth for a blog post. If you practice employment law (specifically FMLA and ADA) then give the whole opinion a read.
[T]he Court believes that its rulings above can, and should, be informed by the jurisprudence recognizing the untenable position presented by an employee who remains dependent on alcohol or drugs after repeated, unsuccessful rehabilitation attempts . . . . Although providing an employee with an opportunity to rehabilitate himself is consonant with both the law and the greater public good, there comes a point where demanding an employer to offer multiple, if not unlimited, opportunities for recovery veers outside the realm of reasonableness.The Court had additional concerns, including whether the employee had actually requested an accommodation and whether any breakdown in the interactive process was actually the employer's fault.
Until January 1, 2009, when amendments to 42 U.S.C § 12102 went into effect, see ADA Amendments Act of 2008, Pub. L. 110-325,§§ 4(a), 8, 122 Stat. 3555, (2008) . . . Hilton would not have been able to demonstrate that he was "disabled" within the meaning of the ADA . . . . [U]nder the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether [Defendants] regarded him personally as being substantially limited in a major life activity. [In this case, applying the ADAAA standard,] it is clear that he was only required to raise a genuine issue of material fact about whether [Defendants] regarded him as having a mental or physical impairment. Hilton was not required to present evidence of how or to what degree they believed the impairment affected him.The Court provides absolutely no analysis of whether the ADAAA should be applied retroactively. But, they apply the new standard to an old claim. And, the opinion notes that "both parties" thought Hilton needed to establish that he was regarded as "being substantially limited in a major life activity" (the "old regime" standard).
BAE refused to engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job, the EEOC said. The suit asserts that BAE replaced Kratz with someone who was not morbidly obese.But wait, since when is weight a protected class?
[T]he "primary object of attention" in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations. As noted above, this means, for example, examining whether an employer has discriminated against an employee, including whether an employer has fulfilled its obligations with respect to providing a "reasonable accommodation" to an individual with a disability; or whether an employee has met his or her responsibilities under the ADA with respect to engaging in the reasonable accommodation "interactive process."This marks a shift from the old practice of litigating over whether the individual qualified for protection under the ADA. The new focus is on whether the person was discriminated against, or whether the employer met its obligation to engage in the interactive process to identify reasonable accommodations.
I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We've all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we've been committed to containing the costs that may be incurred.... Let the shameful wall of exclusion finally come tumbling down.As CNN informs us, the ADA debate rages on, even after 20 years. One thing I find amusing about the article is its use of "internet chat board sampling" as the basis for its main point.
