In order to get damages under title I of the ADA, you have to show intentional discrimination. In order to get damages under title II of the ADA, you have to show deliberate indifference. But what does intentional discrimination mean with respect to a regarded as claim? Must there be discriminatory animus or can there
Recent EEOC guidances and a recent fact sheet
By William Goren on
It has been a little while since we talked about employment law here. Now, it is time to get back to it. Recently the EEOC issued four guidances on four different disabilities, diabetes, intellectual disability, cancer, and epilepsy. They also issued a fact sheet on the mental health provider’s role in…
Class-action and persons with disabilities R.I.P.?
By William Goren on
Here’s a fact. No two disabilities even the same ones are the same. Accordingly, it makes perfect sense that the ADA requires an individual analysis throughout. Further, under both title I and title II of the Americans With Disabilities Act, in addition to having a disability, the person must be qualified. That is, capable of…
ADA and the Applicable Statute of Limitations
By William Goren on
The whole idea of the statute of limitations is to prevent stale claims. Just about everything has a statute of limitations (the only two exceptions that I can think of our claims arising under USERRA and capital murder claims). The ADA does have statute of limitations to deal with, though it is not stated in…
Before doing a postemployment medical exam, do you need reasonable suspicion, probable cause, good cause, none of the above?
By William Goren on
Posted in Federal Cases, Title I
The ADA requires that an entity subject to the act cannot require a medical examination and cannot make inquiries of an employee as to whether that employee is an individual with a disability or as to the nature of the severity of the employee’s disability unless that examination or inquiry is job-related and consistent with…
Title II, employment, and essential eligibility requirements
By William Goren on
Before we get started on the blog entry, I want to thank everyone for their readership. This week, we should surpass the 1000 visitor mark. Also, we have now surpassed the 10,000 view mark. Thanks!!!!!!!!!!!
This blog entry explores whether title II of the ADA applies to employment issues, and how do you go about…
Intersection between the FMLA and the ADA as amended: how it can get you in trouble
By William Goren on
Over the years, lots of people have written about the intersection between Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA), myself included. You simply cannot deal with the ADA and not be aware of the FMLA and vice-versa. Some of the things to be aware of is that the FMLA…
All by myself (with apologies to Eric Carmen): to file suit under title III of the ADA, do you have to first exhaust administrative remedies?
By William Goren on
Title I of the Americans With Disabilities Act requires that a person seeking to file a claim for employment discrimination must first file a claim with the EEOC or a substantially equivalent state agency and receive a right to sue letter before proceeding in court. What if you wish to file a claim under title…
Does the obligation to keep information confidential extend beyond medical exams and medical inquiries?
By William Goren on
Posted in Federal Cases, Title I
Previously, I have written that, “the Americans with Disabilities Act requires that medical information obtained on an employee or prospective employee be kept confidential.” See Understanding the Americans with Disabilities Act, third edition at p. 40. However, in light of EEOC v. Thrivent Financial for Lutherans , _F.3d_, 2012 WL 5846208 (7th Cir. November 20,…
“Regarded as” and title II and are there different rules for “direct threat” depending upon the context
By William Goren on
Recently, I read a case out of the Western District of Pennsylvania which I found absolutely fascinating. In this particular case, the court dealt with three issues. First, does the plaintiff have a disability at all? Second, does “regarded as” even apply outside of the title I context? Finally, was the plaintiff a direct threat…