Chapter 13 - Disability Discrimination

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Disclaimer: The Treatise is based upon federal appellate court decisions from 1996 to 2008. We are currently in the process of updating the Treatise. Until that update is complete, it is possible that certain cases cited in the Treatise may no longer represent current law. ------------------------- Chapter 13 - Disability Discrimination Overview 13.100 Introduction to ADA and Rehabilitation Act 13.200 Disability 13.300 Qualified individual / otherwise qualified 13.400 Issues in disparate treatment claims 13.500 Medical inquiries 13.600 Benefits 13.700 [Reserved] 13.800 Drug and alcohol issues 13.900 Miscellaneous Detail 13.100 Introduction to ADA and Rehabilitation Act 13.110 Overview 13.111 Similarities and differences between the ADA and the Rehabilitation Act 13.111.10 Federal employees 13.111.20 Rehabilitation Act's receipt of federal funds requirement 13.111.30 Affirmative action requirements 13.112 Issues unique to the ADA 13.112.10 Title VII as precedent for ADA cases 13.112.20 Does Title II of ADA apply to employment claims? 13.113 Issues unique to the Rehabilitation Act 13.113.10 Federal employees: Section 501 or Section 504 13.113.11 Rehabilitation Act (not ADA) applies to federal employees 13.113.12 ADA standards apply to Rehabilitation Act claims of federal employees 13.113.13 Affirmative action requirement under Section 501 13.113.20 Prima facie case under the Rehabilitation Act 13.113.21 Section 501 13.113.22 Section 504 13.114 Proving "because of disability" claims verses "reasonable accommodation" claims 13.114.10 Whether a claim is a reasonable accommodation claim 13.114.20 Are "because of disability" claims and "reasonable accommodation" claims actually two separate claims or two means of proving the same statutory claim? 13.114.30 Plaintiff must be clear as to which claim he or she is pursuing 13.115 Employer cannot rely on stereotypes to make decision that employee or applicant cannot perform a job based on a disability 13.116 Employer's reliance on medical advice in making its employment decision 13.117 Whether the EEOC's ADA regulations are binding 13.118 Rehabilitation Act regulations are not binding, but . . . 13.119 Plaintiff must plead or prove the major life activities at issue 13.120 Proving disparate treatment (or "because of disability") claims 13.121 Statutory authority 13.122 Direct and indirect methods of proof 13.123 McDonnell Douglas analysis 13.123.10 Prima facie case 13.123.11 Rehabilitation Act prima facie case 13.123.20 Second and third prongs of McDonnell Douglas 13.123.30 When McDonnell Douglas should be used 13.124 "Because of disability" requirement under ADA 13.125 "Solely" because of disability requirement under the Rehabilitation Act 13.126 Adverse employment action requirement 13.126.10 "Denial of training" is an adverse action under the ADA 13.127 Different types of adverse employment actions 13.130 Proving reasonable accommodation claims 13.131 Statutory authority 13.132 Employee's burden to establish a prima facie case 13.133 Generic prima facie case 13.133.10 ADA 13.133.20 Rehabilitation Act 13.134 Evidence of discriminatory animus unnecessary 13.140 Disparate impact cases 13.150 Associational claims 13.151 Statutory authority 13.160 Interaction with the Family and Medical Leave Act 13.161 "Disability" under the ADA and "serious health condition" under the FMLA are different standards 13.162 Person must be able to perform essential functions in order to qualify for intermittent or reduced schedule FMLA leave 13.170 Whether disability-related misconduct is protected [TOP] 13.200 Disability 13.210 Three alternative definitions of disability 13.211 Statutory authority 13.212 Regulations addressing whether someone is disabled 13.212.10 Regulations addressing whether someone is disabled from the major life activity of working 13.212.20 EEOC Interpretative Guidance suggests consideration of major life activity of working as a last resort 13.213 Regulations addressing whether someone is regarded as disabled 13.214 Regulations addressing whether someone has a record of a disability 13.220 Person with a disability 13.221 Existence of impairment 13.221.10 Definition of impairment 13.221.20 Plaintiff's duty to identify impairment 13.221.30 Determination is a question of law 13.221.40 Obesity as an impairment 13.222 Major life activity 13.222.10 Definition of major life activity 13.222.20 Teachings of Bragdon v. Abbott 13.222.30 Plaintiff's duty to identify major life activity affected by impairment 13.222.40 Determination is a question of law 13.223 Specific major life activities 13.223.01 Bending 13.223.02 Bodily functions 13.223.02.01 Bladder function 13.223.02.02 Bowel function 13.223.02.03 Brain function 13.223.02.04 Cell growth 13.223.02.05 Circulatory function 13.223.02.06 Cleansing and eliminating waste from blood 13.223.02.07 Digestive function 13.223.02.08 Endocrine function 13.223.02.09 Immune system function 13.223.02.10 Neurological function 13.223.02.11 Reproductive function 13.223.02.12 Respiratory function 13.223.03 Breathing 13.223.04 Caring for oneself 13.223.05 Caring for others 13.223.06 Climbing 13.223.07 Communicating 13.223.08 Concentrating and remembering 13.223.09 Driving 13.223.10 Eating 13.223.11 Everyday mobility 13.223.12 Hearing 13.223.13 Household chores 13.223.14 Interacting with others 13.223.14.10 Getting along with others is different from interacting with others 13.223.15 Learning 13.223.16 Lifting 13.223.17 Manual tasks 13.223.18 Physical exertion 13.223.19 Reaching 13.223.20 Reading 13.223.21 Seeing 13.223.22 Sexual activity 13.223.23 Sitting 13.223.24 Sleeping 13.223.25 Speaking 13.223.26 Standing 13.223.27 Thinking 13.223.28 Travel (including air travel) 13.223.29 Walking 13.223.29.10 Walking up stairs 13.223.30 Working 13.224 Whether impairment substantially limits a major life activity 13.224.10 Regulatory definition 13.224.20 Courts' interpretation of substantially limits 13.224.30 Definition of substantially limits with regards to major life activity of working 13.224.40 Determination is a question of fact 13.224.41 Employee has burden of proving disability 13.224.50 Determination requires individualized inquiry 13.224.60 Consideration of corrective measures 13.224.61 Corrective measure may substantially limit a major life activity 13.224.70 Types of proof 13.224.71 Necessity of medical proof 13.224.72 Necessity of comparative evidence 13.224.73 Necessity of vocational expert proof 13.224.80 Miscellaneous issues concerning whether impairment substantially limits 13.224.81 Health problems triggered by single workplace are not sufficient to substantially limit a major life activity 13.225 Whether an impairment substantially limits the following major life activities 13.225.01 Bladder condition 13.225.02 Breathing 13.225.03 Caring for oneself 13.225.04 Caring for others 13.225.05 Cleansing and eliminating waste from blood 13.225.06 Climbing 13.225.07 Concentrating and remembering 13.225.08 Driving 13.225.09 Eating 13.225.10 Eliminating waste from body 13.225.11 Everyday mobility 13.225.12 Hearing 13.225.13 Household chores 13.225.14 Interacting with others 13.225.15 Kidney condition 13.225.16 Learning 13.225.17 Lifting 13.225.18 Liver function 13.225.19 Manual tasks 13.225.20 Physical exertion 13.225.21 Procreation / Reproduction 13.225.22 Reaching 13.225.23 Reading 13.225.24 Seeing 13.225.25 Sexual activity 13.225.26 Sitting 13.225.27 Sleeping 13.225.28 Speaking 13.225.29 Thinking 13.225.30 Travel 13.225.31 Walking 13.225.32 Working 13.225.32.10 Definition of "broad range of jobs" or "class of jobs" 13.225.32.20 Whether certain jobs constitute a "broad range of jobs" or a "class of jobs" 13.225.32.21 OTR truck driver 13.225.32.22 Police officer 13.225.32.30 Whether the inability to work overtime constitutes a substantial limitation 13.225.32.40 Employee not disabled based on inability to work for particular supervisor 13.225.32.41 Supervisor could trigger a disability 13.230 Person regarded as having such an impairment 13.231 Standard for proving "regarded as" claims 13.231.10 Regarded as disabled re working 13.232 General principles 13.232.10 Employer's knowledge of medical condition is insufficient to establish "regarded as disabled" 13.232.20 Can evidence of pretext be considered as part of prima facie case to establish "regard as" disabled? 13.232.30 Whether offer of accommodation is evidence that employer regarded employee as disabled? 13.232.40 Person who cannot meet DOT regulations is not regarded as disabled 13.232.50 Employer's request for IME is insufficient to establish "regarded as disabled" 13.232.60 Employer's reliance on medical advice 13.232.70 Employee who was fine when hired is more likely to be regarded as disabled if an illness or injury develops 13.232.80 Repetitive motion screening test 13.233 No "good faith" defense, but . . . 13.240 Person with a record of such an impairment 13.241 Hospital stay not sufficient 13.250 Cases addressing particular medical impairments or conditions 13.251 List of impairments or conditions 13.251.01 AIDS / HIV positive 13.251.02 Alcohol addiction or alcoholism 13.251.03 Allergies 13.251.04 Anxiety or stress disorder 13.251.05 Asthma 13.251.06 Attention Deficit Disorder 13.251.07 Bell's Palsy 13.251.08 Bipolar disorder 13.251.09 Bladder condition 13.251.10 Cancer 13.251.10.10 Prostate cancer 13.251.11 Cerebral Palsy 13.251.12 Depression 13.251.13 Diabetes 13.251.14 Drug addiction 13.251.15 Epilepsy 13.251.16 Hearing or deafness 13.251.17 Heart conditions 13.251.17.10 Heart attack 13.251.17.20 Pacemaker 13.251.18 Incontinence 13.251.19 Irritable Bowel Syndrome 13.251.20 Lymphoma 13.251.21 Meniere's disease 13.251.22 Pancreatitis 13.251.23 Panic disorder or attacks 13.251.24 Phobia about driving in unfamiliar places 13.251.25 Post Traumatic Stress Disorder 13.251.26 Psoriasis 13.251.27 Reproductive issues 13.251.27.10 Infertility 13.251.27.20 Pregnancy 13.251.28 Sleep apnea 13.251.29 Vision problems 13.251.29.10 Congenital nystagmus 13.251.29.20 Macular degeneration 13.251.29.30 Monocular vision 13.260 Employer must know of disability 13.270 Requirement that disability be permanent or long-term 13.271 EEOC regulation 13.272 Case law [TOP] 13.300 Qualified individual / otherwise qualified 13.310 Statute and regulation 13.320 General principles 13.321 Proving who is a qualified individual 13.321.10 Plaintiff bears burden of proof 13.321.20 Cases addressing what plaintiff must prove 13.322 Definition of qualified individual 13.322.10 Qualified individual includes job employee holds or desires 13.322.20 Time of employment action governs determination 13.322.21 Court relies, in part, on subsequent events to support finding that plaintiff was disabled 13.322.30 Employee who rejects offer of reasonable accommodation is no longer qualified individual 13.322.40 Employee who poses threat of intentional harm is not a qualified individual 13.323 Specific situations 13.323.10 Former employee not qualified due to prior job performance issues 13.323.20 Truck driver must meet DOT minimum requirements 13.323.21 Truck driver must exhaust DOT administrative remedies 13.323.30 Totally disabled employee cannot be a qualified individual 13.323.40 "100% healed" policy 13.323.50 Disability retiree is not a qualified individual 13.330 Essential functions 13.331 Statutory definition 13.332 Regulation 13.333 General principles 13.333.10 What constitutes an essential job function? 13.333.11 Determination is normally a question of fact for jury 13.333.12 Who has burden of proof as to which job functions are essential? 13.333.13 Job functions performed only sometimes or even rarely can still be essential 13.333.20 Does judge or jury determine whether plaintiff can perform the essential functions of the job? 13.333.30 Employee's self-serving affidavit that he is able to perform essential job functions may not create a jury question 13.334 Regular attendance 13.335 Whether particular tasks are essential functions 13.335.01 Ability to work full time 13.335.02 Ability to work overtime 13.335.03 Arriving at work on time 13.335.04 Handle stress 13.335.05 Job rotation 13.335.06 Physical presence at the plant 13.335.07 Vacuuming by hotel housekeeper 13.335.08 Work well with others 13.336 Whether informal accommodations should be considered 13.340 Reasonable accommodations 13.341 Statutory definition 13.342 Regulation 13.343 General principles 13.343.10 Determining reasonableness of accommodation 13.343.11 Reasonableness of accommodation is a question of fact 13.343.20 An accommodation does not become "reasonable" (meaning required under the law) just because the employer chose to voluntarily provide that accommodation for a period of time 13.343.30 Duty to accommodate is continuing -- one effort may not be enough 13.343.31 However, no duty to continue offering accommodations where employee has refused a reasonable accommodation 13.343.40 Delay in providing an accommodation may be actionable 13.343.50 No duty to provide employee the accommodation of his or her choice 13.343.51 No duty to reassign employee to position of employee's preference 13.344 Employee's duty to request accommodation 13.344.10 Employees with mental disabilities 13.344.20 Who can request an accommodation 13.344.30 Accommodation requested must be linked to employee's disability 13.345 Duty to engage in interactive process 13.345.10 Statute 13.345.20 Regulation 13.345.30 EEOC Interpretive Guidance 13.345.40 Explanation of "interactive process" requirement 13.345.41 Whether employer must involve employee's attorney or expert 13.345.50 Proof necessary to show failure to engage in interactive process 13.345.51 Failure to engage in interactive process as prima facie evidence of bad faith 13.345.60 Whether failure to engage in interactive process is a basis for liability in and of itself 13.345.70 Whether failure to engage in interactive process results in automatic denial of summary judgment 13.345.80 Employee can fail to engage in the interactive process 13.345.81 No duty to offer additional accommodations after employee fails to engage in interactive process 13.345.90 Different ways employer can satisfy duty to engage in interactive process 13.346 Duty to restructure or create position 13.346.10 No duty to create position 13.346.11 No duty to create part-time position 13.346.20 No duty to eliminate or restructure essential job functions 13.346.21 No duty to restructure temporary light duty position into permanent position 13.347 Duty to transfer to vacant position 13.347.10 Duty to transfer is an accommodation of last resort 13.347.20 What must employee do to trigger duty? 13.347.30 Position must already exist and be vacant 13.347.31 Employee bears burden of proof that a position existed and was vacant 13.347.32 Duty to transfer to position that will become vacant in near future 13.347.40 Plaintiff must be qualified for position 13.347.50 What vacant positions must the employer consider? 13.347.51 No duty to promote 13.347.52 Transfer to an inferior position can be a reasonable accommodation 13.347.53 No duty to reassign employee to position of employee's preference 13.347.60 Is disabled employee entitled to preference over non-disabled employee seeking vacant position? 13.347.70 No duty to transfer if it would create an undue hardship 13.348 Possible accommodations 13.348.10 Intermittent, additional or unpaid leave 13.348.20 Change supervisors 13.348.30 Modification of work environment 13.348.31 Stress-free work environment 13.348.40 Working from home or from remote location 13.348.50 Returning to work on trial basis 13.349 Miscellaneous issues 13.349.10 Right to accommodation where employee is only regarded as disabled 13.349.20 Rights of co-workers / seniority system 13.349.30 No duty to accommodate misconduct of alcoholic or illegal drug user 13.350 Reasonable accommodation vs. undue hardship 13.351 Interaction between "reasonable accommodation" and "undue hardship 13.352 Undue hardship 13.352.10 Statutory authority 13.352.20 Regulation 13.352.30 Cases explaining "undue hardship" 13.360 Employer's defenses 13.361 Statutory authority 13.362 Regulations 13.362.10 Qualification standards, tests or selection criteria 13.362.20 Direct threat to health or safety 13.362.30 Religious entities 13.362.40 Infectious diseases and food handling 13.363 Qualification standards, tests or selection criteria 13.363.10 Proving business necessity defense 13.363.11 Employer has burden of proof 13.363.20 Cases addressing business necessity defense 13.364 Direct threat to health or safety 13.364.10 Proving direct threat 13.364.11 Which party has burden of proof 13.364.12 Individualized assessment 13.364.13 Employer entitled to obtain medical exam 13.364.20 Direct threat means threat to individuals or others 13.364.30 Direct threat cases by type 13.364.31 Alcohol 13.364.32 Diabetic 13.364.33 Heart condition 13.364.34 HIV-positive 13.364.35 Mental problems 13.364.36 Off-duty conduct 13.364.40 Direct threat in the context of associational discrimination claims [TOP] 13.400 Issues in disparate treatment claims 13.410 Employee's failure to take corrective measures [TOP] 13.500 Medical inquiries 13.510 Statute on medical examinations and inquiries 13.520 General principles 13.521 Whether person must be "disabled" in order to bring a claim for an improper medical inquiry 13.522 Whether person must be able to prove cognizable injury 13.530 Pre-employment inquiries 13.531 Whether MMPI is a medical exam 13.540 Employee entrance examinations 13.541 Permissibility of mental health examinations 13.542 Basis for withdrawing a conditional offer of employment 13.550 Fitness for duty exams or inquiries of current employees 13.551 Request for exam as constituting evidence of discrimination 13.552 Determination of business necessity 13.552.10 Mental or physical exam as precondition of returning to work 13.553 Drug tests of former substance abusers 13.554 Does employee or employer pay for fitness for duty exam? 13.555 If employer is a governmental entity, is the Fourth Amendment implicated? 13.560 Fitness for duty exams or inquiries of former employees 13.570 Confidentiality 13.571 Employee entrance examinations 13.572 IMEs or inquiries of current employees 13.573 Alleged violations of confidentiality requirement [TOP] 13.600 Benefits 13.610 In general 13.620 Health insurance 13.630 Disability benefits 13.631 Whether plaintiff must be a "qualified individual with a disability? 13.632 Whether providing greater benefits for physical disabilities as opposed to mental disabilities violates the ADA or Rehabilitation Act? 13.633 Whether providing coverage for some types of transplants, but not others, violates the ADA? [TOP] 13.700 [Reserved] [TOP] 13.800 Drug and alcohol issues 13.810 Statutory authority 13.820 Statutory overview 13.821 Qualified individual 13.821.10 Qualified individual does not include someone "currently" using illegal drugs 13.821.11 Definition of "currently" 13.821.20 Employee's safe harbor provision 13.821.21 Can employee prevent termination by enrolling in drug treatment program? 13.822 Drugs and alcohol in the workplace 13.823 Drug testing not a medical exam 13.823.10 Drug testing and DOT regulations 13.830 Decisions by circuit [TOP] 13.900 Miscellaneous 13.910 Last Chance Agreements 13.920 [Reserved] 13.930 [Reserved] 13.940 [Reserved] 13.950 [Reserved] 13.960 [Reserved] 13.970 [Reserved] 13.980 Issues unique to ADA 13.990 Issues unique to the Rehabilitation Act 13.991 Federal employees 13.991.10 Interaction Rehabiltation Act with Federal Employees' Compensation Act [TOP]


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