It is crystal clear that under the ADA that a student in the classroom as a reasonable accommodation would have the right to tape record or otherwise record the class. See 28 C.F.R. § 35.104(2),(3). However, you may want to look at your state’s eavesdropping statute to see if there aren’t some unintended consequences of that. For example, in Illinois there is a very strict recording eavesdropping statute, which would prohibit recording a class unless everybody in the class consents. Further, violation of the statute is a felony and the person allowing and/or doing the recording may be subject to a claim for actual and punitive damages (720 ILCS 5/14-1(b),5/14-2(a)(1), 5/14-4(a), 5/14-6(a-e). There is case law in Illinois to suggest that recording in the classroom would be allowed. However, that case law was before the Illinois eavesdropping statute was amended so as to clearly take away that possibility, at least as the statute is literally written. Therefore, it is possible that a person who records or allows the recording of a class as a reasonable accommodation could be prosecuted. While it is hard to believe that a prosecutor would undertake such a prosecution, it is more within the realm of possibility that a student might sue for actual and punitive damages because the recording was made without his or her consent.

So what is the school to do? If the school does nothing, it is faced with the possibility that a professor or a person doing the recording could be prosecuted for violating the Illinois eavesdropping statute. It is also possible that the professor or person doing the recording could be sued for actual and punitive damages. What the school can do for a few different things. First, administration could make it a part of the student contract with the school that says as a condition of taking any particular class, the student hereby consents that the class may be recorded for a variety of reasons, including as a reasonable accommodation to persons with disabilities. The other approach would be for each instructor to put in their syllabi that the student by taking the class consents to recording. The problem with the latter approach is that not all professors are amenable to the class being recorded. Whereas, if it comes down from administration, then the individual teacher probably doesn’t have a choice. Finally, it probably makes the most sense if the legislature would just amend the law so as to allow recording in a class room or to exempt such activity from the reach of the law. In short, Illinois eavesdropping statute is very unusual, but you may want to check your own eavesdropping statute to see if there is not a potential problem there.

Since the changes are so radical between the Americans with Disabilities Act and the ADAAA in many ways, a question comes up as to whether those changes are retroactive to pending ADA cases where the facts occurred entirely before January of 2009. There are two U.S. Supreme Court cases out there that strongly suggest that the answer is no. Those cases are Landgraf v. USF Film Products, 511 U.S. 244 (1994) and Rivers v. Roadway Express Inc., 511 U.S. 298 (1994). In those cases, the United States Supreme Court said that statutes are not going to be retroactive unless Congress manifests a very clear intent to do so. Furthermore, Congress overruling judicial interpretation of a statute is also not going to be retroactive absent that same very clear intent. With respect to the ADAAA, you have a situation where Congress overruled judicial interpretation of the statute. Rivers strongly suggests that the ADAAA would not be retroactive since that clear intent is absent from the ADAAA. It isn’t even a close call and in fact case law as well as the EEOC in their final regulations have said that the ADAAA is not retroactive.

That brings us to the case of Hilton v. Wright, _ F.3d _, 2012 WL 752546 (Second Cir. March 9, 2012). In this case, Hilton, a former state prisoner infected with hepatitis C, sued the Associate Commissioner and Chief Medical Officer for the New York State Department correctional services as well as the New York State Department of correctional services for disability discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act alleging that an eligibility requirement for receiving hepatitis C treatment was without medical justification and unlawfully screened out former drug users that were in recovery. He also alleged violation of the eighth amendment prohibition on cruel and unusual punishment. The court remanded for further proceedings whether the eighth amendment was violated and whether sovereign immunity, under the 11th amendment, prevented the suit from going forward.

However, our concern is with Second Circuit’s analysis of the Americans with Disabilities Act. What is interesting about this case is that there appears to be nothing in the facts themselves to suggest that any of the facts occurred after January 1, 2009. Nevertheless, the court appeared to say that the lower court on remand only needed to consider whether the defendants regarded the plaintiff as having a mental or physical impairment and not evidence of how or to what degree the defendant believed the impairment affected the plaintiff (the ADAAA standards and not the standard prior to the ADAAA). All of this without extended analysis as to whether the ADA is retroactive (i.e., for example, no citation or discussion of the cases mentioned at the top of this blog entry).

All this said, did they really hold that the ADAAA is retroactive? It is hard to say. First, as mentioned previously, there is no extended analysis of Landgraf or Rivers. Second, the court in a footnote referred to current Department of Justice regulations that say a person could be regarded as having a disability if they were treated by a public entity as having a drug addiction but in fact did not. Third, the Second Circuit also told the lower court that they had to consider whether the defendant’s actions violated the eighth amendment and whether sovereign immunity prevented a lawsuit from going forward. In short, there are lots of possibilities on remand for the court to consider without having to deal with the issue of whether the ADA is retroactive.

This will be an interesting case to follow. To my knowledge, all of the cases to date with the exception of one for injunctive relief (this is a case for damages), have held that the ADAAA is not retroactive. The possible eighth amendment, cruel and unusual punishment claim, and 11th amendment sovereign immunity questions also bear watching.

Yesterday, in EEOC v. United Airlines, Incorporated, (docket number 11-1774, March 7, 2012 (Seventh Circuit)), the United States Court of Appeals for the Seventh Circuit came down with a decision saying that United Air Lines was under no obligation to guarantee a reassignment to a vacant position for an employee that could no longer do the job they were currently in because of a disability, but could with or without reasonable accommodation do the job of a vacant position. The Seventh Circuit relied upon a prior case from 2000, EEOC v. Humiston-Keeling, Inc. 227 F.3d 1024 (7th Cir. 2000) saying that the Americans With Disabilities Act was not violated where the company had a competitive transfer policy.

In this case, EEOC v. United Air Lines had a reasonable accommodation guideline that said an employee who because of their disability can no longer do the essential functions of their current job even with reasonable accommodation could be transferred to an equivalent or lower level vacant position as a reasonable accommodation. However, that process at United Air Lines is competitive. That is, while employees needing accommodations are given preference (they can submit an unlimited number transfer applications, are guaranteed an interview, and receive priority consideration over similarly qualified applicant), the reassignment is not automatic. That is, United Air Lines is free to hire a different individual should there be a superior applicant to the person with a disability. In essence, the Seventh Circuit said that their hands were tied because of prior precedent from 2000. However, this panel of judges invited the entire Seventh Circuit to hear this case, a rehearing en banc, because this panel had doubts as to whether the decision relied upon here was still good law in light of United States Airways Inc. v. Barnett, 535 U.S. 391 (2002)

Thus, the question becomes what did United States Airways Inc. v. Barnett have to say about whether an assignment of a person with a disability to another position is something mandated by the Americans with Disabilities Act. The problem is that United States Airways Inc. v. Barnett is all over the place with respect to whether an employer with a seniority system has the obligation to reassign a person with a disability to another position they are otherwise qualified to do within the company. Depending upon which opinion you read in Barnett you get different answers. For example, Justice Breyer’s opinion in which Chief Justice Rehnquist, Justice Stevens, Justice O’Connor and Justice Kennedy joined said that it would be a very unusual set of circumstances that would require an employer to override a seniority system and mandate that the employer transfer an individual with a disability to another position that they could perform with or without reasonable accommodations. It is not clear how the majority view applies to this case being discussed here since nothing in EEOC v. United Airlines indicates that a seniority system is involved.

Justice O’Connor and Justice Scalia have opinions that are a bit broader in scope than the majority opinion. Justice O’Connor’s concurring opinion with respect to determining when in her opinion an employer would have the obligation to reassign a person with a disability to a position that they could do with or without reasonable accommodation, focused upon whether that position was vacant. That is, if a position was vacant, a position which no employee currently worked in and to which no individual had a legal entitlement, then to Justice O’Connor the employer would have the obligation despite a seniority system to reasonably accommodate the person with a disability by the transfer. Therefore, application of this rule to the case being discussed here would result in the person with the disability being able to transfer into that position as a matter of right, assuming that position was vacant.

Justice Scalia’s dissenting opinion in which Justice Thomas joined has another view on the matter. In his dissenting opinion he said that the Americans with Disabilities Act envisions the elimination of the obstacle of the current position when there was an alternate position freely available. That is, if the person with a disability was qualified for the position he or she was seeking reassignment to and no one else was seeking it or no one else seeking it was better qualified, then the Americans with Disabilities Act demanded that the person with the disability be given that position. In other words, an employer does not have to reassign a person with a disability to an open position if another person has superior qualifications to the person with a disability. In short, if Justice Scalia’s view prevails, then United Air Lines competitive transfer policy, which gives a preference but not an entitlement to the person with a disability would be upheld.

I just heard a CLE (6/18/ 2012) where an EEOC commissioner said that it was their view that a person with a disability seeking reassignment who was otherwise qualified would not have to compete for a job if the job was equal to or lower than their current job. We will see if the courts go along with this.

So where does this leave things. It really comes down to whether at some point the United States Supreme Court adopts the view of Justice O’Connor, no longer on the court, or Justice Scalia, which justice Thomas joined. I long ago gave up predicting how the United States Supreme Court might rule on a matter involving the Americans with Disabilities Act. As a matter of preventive law and good employee relations, Justice O’Connor’s approach bears serious consideration. That said, there is something intuitive about Justice Scalia’s view and considering the changes in the United States Supreme Court, his view could well prevail, though one never knows.

In a recent case, EEOC v. Dillard’s Incorporated (United States District Court of the Southern District of California, Docket number 08cv1780-IEG (PCL)), the court held that an employer’s policy stating that an employee’s health related absence would not be excused unless the employee furnished a note from his or her doctor stating the condition being treated, violated the Americans with Disabilities Act prohibition on disability related inquiries of employees. The Americans with Disabilities Act prohibits medical inquiries of employees unless they are job-related and consistent with business necessity, though the employer can make inquiries into the ability of the employee to perform job-related functions.

There are three questions that arise. First, what is a disability related inquiry? The court relying on another case, discussed below, that cited to EEOC guidelines, held that a disability related inquiry is a question that is likely to elicit information about a disability, such as asking employees about whether they ever have had or do have a disability, the kinds of prescription medications they take, and the results of any genetic test they had, etc. Clearly, a policy requiring a doctor to state the condition being treated is something that is quite likely to elicit information about a disability.

Therefore, the only question that remained for the court to consider was whether Dillard’s policy was job-related and consistent with business necessity. On that, the decision was a bit more muddled. From reading this particular decision, it is hard to determine how the court defined job-related and consistent with business necessity. The court did note that Dillard’s did not furnish any evidence that they needed to know the nature of the employee’s medical condition because of excessive absences so as to, for example, protect the health and safety of its other employees. Dillard’s also did not make any attempt to explain why it was necessary for the doctor’s note to state the medical condition that the employee was being treated for. Dillard’s also did not explain why they thought it was necessary to identify the underlying medical condition. Finally, the court noted that Dillard’s rescinded the policy of requiring doctor’s notes in July of 2007. Therefore, the court had a hard time believing how this policy could be job-related and a matter of business necessity since they continued to operate without the policy.

Particularly if you get a person with a disability involved in the process of determining what might be a disability related inquiry (an inquiry likely to elicit information about disability), the disability related inquiries piece can be easily managed, but the more difficult question is when can the employer defend a disability related inquiry as being job-related and consistent with business necessity. Dillard’s doesn’t offer much guidance on that.

However, this decision relied on another decision from the second circuit in 2003, Conroy v.. New York Department of Correctional Services (Docket # 02-7415, second Cir. 2003), in which the Second Circuit interpreted a virtually identical sick leave policy. That court also held that the sick leave policy at issue in that case, extremely similar to the one in Dillard’s, was a prohibited disability related inquiry. However, more importantly for employers, they did give some guidance as to what is job-related and consistent with business necessity. Several things that the Conroy court said are instructive. First, they said that employer must show more than that the inquiries are convenient or beneficial to its business. Rather, the employer must first show that the business necessity is vital to the business. Second, vital to the business can include such things as ensuring that the workplace is safe and secure or cutting down on excessive absences. Third, the disability related inquiry must be no broader nor more intrusive than necessary. Finally, the disability related inquiry or examination must be a reasonably effective method of achieving the employer’s goals. The Conroy court noted that business necessity will be found by the courts where it can be shown that the inquiry or medical examination was necessary to determine whether the employee could perform job-related duties where the employer identifies legitimate nondiscriminatory reason to doubt the employee’s ability to perform his or her duties; or whether employees absence or request for an absence is due to legitimate medical reasons where the employer has reason to suspect abuse of the attendance policy. The Conroy court noted that there might be other business necessity reasons as well and that these were not exclusive.

So what is an employer to do? First, the employer should review their sick leave policies in order to determine whether the policy is set up in a way that it is likely to elicit information about a disability. Getting a person with a disability involved in that assessment could be very helpful to that process due to their heightened sensitivity about what might reveal a disability. If the assessment reveals that the process is likely to elicit information about a person’s disability, the employer is running a considerable risk of losing Americans with Disabilities Act lawsuit and particularly so since as the Conroy court noted, a person does not have to have a disability to challenge a sick leave policy that runs afoul of the prohibition on disability related inquiries. Second, the employer should consider adopting a system so as to target disability related inquiries to situations where the employer has a reasonable concern about whether the employee can perform the essential functions of the job or the employer has a legitimate concern about whether the attendance policy is being abused. Miry or examination must be a reasonably effective method of achieving the employer’s goals. The Conroy court noted that business necessity will be found by the courts where it can be shown that the inquiry or medical examination was necessary to determine whether the employee could perform job-related duties where the employer identifies legitimate nondiscriminatory reason to doubt the employee’s ability to perform his or her duties; or whether employees absence or request for an absence is due to legitimate medical reasons where the employer has reason to suspect abuse of the attendance policy. The Conroy court noted that there might be other business necessity reasons as well and that these were not exclusive.

So what is an employer to do? First, the employer should review their sick leave policies in order to determine whether the policy is set up in a way that it is likely to elicit information about a disability. Getting a person with a disability involved in that assessment could be very helpful to that process due to their heightened sensitivity about what might reveal a disability. If the assessment reveals that the process is likely to elicit information about a person’s disability, the employer is running a considerable risk of losing Americans with Disabilities Act lawsuit and particularly so since as the Conroy court noted, a person does not have to have a disability to challenge a sick leave policy that runs afoul of the prohibition on disability related inquiries. Second, the employer should consider adopting a system so as to target disability related inquiries to situations where the employer has a reasonable concern about whether the employee can perform the essential functions of the job or the employer has a legitimate concern about whether the attendance policy is being abused. In short, a preventive law approach, would demand that job-related focus on the essential functions of the job and that business necessity focus on such vital interests to the business as the ones discussed here.

In an informal discussion letter, http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html , the EEOC said that using high school graduation as an automatic cut off for a job could lead to a situation where persons with disabilities are able to successfully claim that the requirement is unlawfully screening them out from the position since for a variety of reasons some persons with disabilities simply cannot obtain the high school diploma. This letter was expanded upon in a recent question-and-answer guidance, http://www.eeoc.gov/eeoc/newsroom/wysk_high_school_ada.cfm .

The question is whether the EEOC has gone too far. An argument can be made that it has.

EEOC in their informal discussion letter based their decision on the Code of Federal Regulations. The applicable Code of Federal Regulations say that selection criterion that screen out individuals or class of individuals on the basis of disability must be job-related for the position and consistent with business necessity. It also says that a qualification standard is job-related and consistent with business necessity if it accurately measures the ability to perform the jobs essential functions (fundamental duties). Finally, even where a challenged qualification standard, test, or other selection criterion is job-related and consistent with business necessity, it screens out a person on the basis of disability, the employer must also demonstrate that the standard or criterion cannot be met and the job cannot be performed with a reasonable accommodation. From this, the EEOC letter concludes that using high school graduation as a requirement for certain jobs may unlawfully screen out persons with disabilities. Therefore, the employer should figure out another way to ensure that all persons have a right to access that job.

My thoughts are as follows:

1. There can be no quibble with the regulations cited by EEOC. Regulations and rules promulgated by federal agencies or state agencies go through a very specific commenting process before becoming finalized. As such, once they are finalized they become part of the legal landscape and courts have to take them very seriously, assuming those regulations are within the authority of the agency in the first place. This particular discussion letter from the EEOC and its subsequent question-and-answer guidance are not regulations of any sort. Accordingly, the courts have almost complete flexibility as to how persuasive such a letter may be when reviewing a case. This flexibility is even more so if an argument can be successfully made, which we will see is possible in this case, that the agency has exceeded the authority of the law in its position.

2. The EEOC focuses on the essential functions of the job and whether a high school degree is necessary to perform them. However, the EEOC does not seem to be paying as much attention to the complete definition of otherwise qualified under title I of the ADA. In order to be protected under the ADA, you both have to have a disability and be otherwise qualified. For purposes of title I, otherwise qualified defined as where a person with a disability satisfies the requisite skill, experience and education requirements (emphasis added), of the position and can with or without reasonable accommodation perform the essential functions of the job. 29 C.F.R. § 1630.2(m). Clearly, from the EEOC’s own regulations, education can be an essential eligibility requirement.

3. If the EEOC is saying that an essential education requirement really should be essential, then there is no problem with that. That is much the same as saying you shouldn’t have a 60 words per minute typing speed requirement when 45 words per minute will do. Therefore, an employer would be well served by analyzing their jobs to ensure that a high school degree is indeed necessary for the jobs that the employer demand such a degree for.

4. It is curious that an individual with a disability would find it impossible to achieve a high school diploma. If reasonable accommodations are being made under title II of the Americans With Disabilities Act or the person is subject to the Individual Disabilities Education Act, one wonders why the accommodations would not be available so as to enable a person with a disability to get that high school diploma. Unless, it is a situation where even with accommodations under whatever law is applicable (ABA, 504, IDEA), the person still could not receive the high school diploma (a person with intellectual disabilities perhaps), in which case the diploma granting authority would be under no obligation to grant it.

5. It is hard to fathom why it is the employer’s responsibility to require the applicant to demonstrate that disability actually prevents the applicant from meeting the requirement. After all, the entities giving students high school diplomas are subject to federal antidiscrimination laws and they should be making the necessary accommodations to ensure that that student is given the best opportunity to obtain that diploma. This leads to another question which is whether the EEOC is making new law here. They claim that they are not. However, an argument can be made that they are. That is, if an employer reasonably believes that a high school diploma is an essential requirement for the particular job, asking the employer to ignore that requirement is akin to asking that employer to modify or waive an essential eligibility requirement, which they do not have to do. For example, case law exists saying that a governmental entity does not have to change the essential eligibility requirements for its programs to accommodate a person with a disability. Such a change would fundamentally be altering the nature program and is not required by the Americans with Disabilities Act.

6. The reference to the nursing assistant case in the EEOC question-and-answer is interesting because it creates the question as to why the individual referenced could not get the GED degree even with reasonable accommodations.

7. In determining essential functions of a job, the EEOC says in the regulations that they will look to several factors, including the employer’s judgment. One wonders why insisting on an educational credential would not be within the employer’s judgment.

8. Perhaps my problem is more with language than anything else. For example, if the EEOC were to say that where education is not an essential requirement to perform the essential functions of the job, then the employer cannot insist on the education qualification being met, that would be one thing. In essence, in that situation, it would be akin to waving a nonessential function of the job as discussed in paragraph 3 above. However, if the EEOC is saying that education may not be an essential eligibility requirement of the job, that is a whole different matter.

So what does this all mean?

1. An employer should evaluate whether the jobs requiring a high school diploma do indeed actually require a high school diploma for the essential functions of the job to be performed. If those jobs do not require high school diploma to perform the essential functions, then it is recommended that the employer get rid of the high school diploma requirement or treat the high school diploma requirement as something that could be satisfied in another way (akin to waving a marginal function of the job). If a high school diploma is required, then the employer is faced with a choice. Do they want to assume that the EEOC view here will carry the day or do they want to argue that a high school diploma is an essential eligibility requirement and it therefore, is not something that the ADA mandates an employer waive. If the employer does not adopt the EEOC view, there may be litigation that follows. However, the employer could well be within their rights under the law to take this position especially if they have done an analysis and have determined that a high school degree is necessary for the essential functions of that particular job to be performed.

http://articles.philly.com/2012-02-08/news/31038138_1_hiv-positive-safety-of-other-students-admission

The above link involves the AIDS Law Project of Pennsylvania filing a suit in Philadelphia in December arguing that a boarding school discriminated against an HIV-positive teenager who applied to a school that served low-income families. The school is a residential boarding school. The teenager appeared to meet the initial minimum qualification for admission. After the school learned the teenager was HIV-positive it discontinued processing the application, which led to the lawsuit. The school claims that their denial is justified because the teenager poses a direct threat. However, the AIDS Law Project of Pennsylvania says that the school failed to make an individualized assessment as to whether the teenager was a direct threat.

The first question is whether the school is subject to the Americans With Disabilities Act at all. Clearly, it is as places of education are places of public accommodation under title III of the Americans With Disabilities Act.

In dealing with this case, what kind of things will the court need to be thinking about? First, they are going to have to think about the concept of direct threat. Direct threat comes from the Supreme Court case of School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). That case considered whether a teacher with tuberculosis was a direct threat to the kids she taught. The Supreme Court said that whether a person is a direct threat depends upon: the nature of the risk; the duration of the risk; the severity of the risk; and the probability the disease will be transmitted and will cause varying degrees of harm. Id. at 288. In Chevron USA Inc. v. Echazabal 536 U.S. 73 (2002) the Supreme Court extended this concept to being a direct threat to self. In Chevron, the United States Supreme Court noted that where a direct threat defense is claimed, you have to meet a fairly compelling standard. Id. at 85-86. That is, the direct threat defense must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Id. at 86. Furthermore, the assessment of direct threat must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job ( Chevron was an employment case). Id. The Department of Justice is responsible for enforcing title III of the Americans With Disabilities Act and their regulation is very similar to what is described here. In particular, in determining direct threat, one must look to the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. The direct threat assessment must be based upon reasonable judgment relying on current medical knowledge from the best available objective evidence and must be based on an individualized assessment. 28 C.F.R. 36.208.

It is very hard to say how this case is going to work out. On the one hand, you have to be sympathetic to the school’s concerns. For example, the school would be prohibited by HIV confidentiality laws from disclosing the teenager’s disability to others. On the other hand, in the United States, there are people with HIV who don’t even know they have it and the school is probably not screening all of its students for HIV. Also, a person with HIV even prior to the ADAAA, and certainly now, is a person with a disability. Finally, what is very curious about the facts described in the link above is the allegations that an individualized assessment was not made. While Chevron was an employment case, there is no reason to believe that even in the title III context an individualized assessment would not be required, certainly the Department of Justice, no doubt basing its view on the Supreme Court decisions mentioned above, believes so.

Therefore, what can we expect going forward. It wouldn’t be surprising if an individualized assessment was ordered in light of the Supreme Court decisions and the Department of Justice regulations. Even so, once that assessment is ordered, assuming it is, the party could well be in the same exact place that they are now with the plaintiff alleging discrimination and the school alleging direct threat that cannot be mitigated with reasonable modifications of policies, practices, or procedures of the school. This case bears closely following in the future.

The promise of the Americans with Disabilities Act was that it would improve the workforce participation of persons with disabilities. It hasn’t happened. Therefore, the federal government is beginning to go further. Recently, the Office of Federal Contract Compliance Programs issued proposed regulations mandating affirmative-action for persons with disabilities for every government contractor that has 50 or more employees in a contract of $50,000 or more. They also amended the nondiscrimination rules so as to be consistent with the Americans with Disabilities Act Amendments Act. The nondiscrimination rules apply to all government contracts and subcontracts in excess of $10,000 for the purchase, sale or use of personal property or nonpersonal services (including construction). Nonpersonal services include, but is not limited to: Utility, construction, transportation, research, insurance, and fund depository.

A detailed look at the proposed regulations would be way beyond the scope of this blog. However, we can highlight.  First, the proposed regulations are divided into five parts, A-E plus an appendix . Part A, B, D, E , and the appendix apply to everyone (government contractors in excess of $10,000). Part C, the affirmative-action obligations, as noted above , only applies to government contractors with 50 or more employees in a contract of $50,000 or more. Second, the substantive changes in the regulations are really straightforward. The changes are made to be consistent with the Americans with Disabilities Act Amendments Act and will not be a surprise to anyone familiar with the regulations implementing that act issued by the Equal Employment Opportunity Commission. Third, the proposed regulations only apply to employment activities within the United States and not to employment activities abroad. Finally, a mandated equal opportunity for workers with disability statement must be used and must be in the form required by the Office of Federal Contract Compliance Programs. Interestingly enough, the very first paragraph of that form uses language that was in the Americans with Disabilities Act and was stricken from the Americans with Disabilities Act as amended. More specifically, the first paragraph of this statement says, “the contractor will not discriminate against any employee or applicant for employment because (emphasis added) of physical or mental disability…” However, the Americans with Disabilities Act Amendments act deleted the word, “because” in favor of, “on the basis of.” The difference is more than academic as the change to, “on the basis of” allows for the argument that a plaintiff may be able to use the mixed motive line of attack in a case. Whereas, the, “because” language has been held to prohibit a plaintiff from being able to use the mixed motive line of attack. See Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (Seventh Circuit 2010). Hopefully, in the final regulation, the office of Federal Contract Compliance Programs will see the error and use, “on the basis,” especially since they use, “on the basis” as the standard in another part of the proposed regulation.

For those contractors subject to the affirmative-action rules, what used to be encouraged, is now required and then some. Some of the highlights include. First, a government contractor subject to the affirmative-action requirements will now have to do an annual survey of employees with disabilities.

Second, they are mandated to take affirmative-action to advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.

Third, that information collected is to be in the data analysis file and not in other places. Fourth, while affirmative-action is mandated, the process must ensure that individuals with disabilities are not stereotyped. This is not a small concern. Back in college, I did work for the state of Illinois with respect to section 504 to Rehabilitation Act and was involved in assessing whether the affirmative-action program was working. What we found was that the program was not working because when a person saw that a person had a disability on their form, they immediately went into stereotype mode and wrote the person with a disability off. That was many years ago and society was different. Hopefully, the same issues would not arise now and an affirmative-action program can be set up to get around that problem.

Fourth, The Office of Federal Compliance Contract Programs mandates that the personnel process contain various steps, such as but not limited to a written notification of any rejection and an annual review of essential functions with respect to any physical and mental requirements so as to ensure those requirements are specific to a particular job and that they are job-related and consistent with business necessity.

Fifth, a governmental contractor subject to the affirmative-action requirements has the obligation to activate the ADA. That is, the way it typically works is an employer only has to make a reasonable accommodation once they have been notified (it can be complex at what notify might mean). However, here an employer has the affirmative obligation, if it is reasonable to conclude that a disability is getting in the way of performance problems, to notify the employee of the performance problem and inquire whether the problem is related to the employees disability. If the employee says yes to that question, the contractor must confidentially inquire whether the employee is in need of a reasonable accommodation.

Sixth, electronic or online job application systems must be compatible with assistive technology (such as screen readers and voice dictation).

Seventh, an employer subject to the affirmative-action requirements, must consider an applicant with a disability for any available position they qualify for within the company when the position that they did apply for is unavailable.

Eighth, specific data collection requirements are mandated and minimum requirements for reasonable accommodation procedures are set forth.

Ninth, time frames are set forth for processing reasonable accommodation request.

Tenth, utilization goals are set. That is a percentage, 7 %, is set as a goal for the government contractor to meet with respect to persons with disabilities being in their workforce. Furthermore, it is broken down by specific jobs rather than an aggregate.

Eleventh, employers subject to the affirmative-action requirements, are encourage to voluntarily develop and implement programs that provide priority consideration to individual disabilities in recruitment and/or hiring. The office of Federal Contract Compliance Programs says that such a system could include assigning a weighted value or additional points to job applicants who self identify as being an individual with a disability. Such a point system is very interesting in light of the United States Supreme Court decision finding that the University of Michigan undergraduate program violated the U.S. Constitution with such a point system with respect to racial preferences. That said, this particular issue would be extraordinarily complicated with respect to persons with disabilities as it would deal with terms of the Americans with Disabilities Act itself, which specifically say that reverse discrimination suits aren’t going to work, and with the very confusing way persons with disabilities are classified for purposes of the equal protection clause of the United States Constitution. Also, interestingly enough disability-related information from the applicant and/or employee self identification request can be used by the employer to help figure out who would benefit from a priority consideration program. This is also very interesting because it is a very complex question for a person with a disability as to when they will disclose their disability as part of the hiring process.

Finally, the proposed regulations have provisions in there for dealing with what must be in the complaint, a process of conciliation, and when a show cause order will be sought by the Solicitor of Labor with respect to any enforcement proceedings.

Again, none of this is meant to be all-inclusive (the proposed regulation goes on for 45 pages). Also, keep in mind that these regulations are just proposed in the final regulation may change some. However, this is a start. Anybody needing specific advice on this should seek competent legal counsel.

It is really important to know that the Americans with disabilities act deals with disability related inquiries, medical exams and drug testing in very distinct ways. Basically the way it works, is that disability related inquiries and medical exams prior to a conditional job offer are prohibited, though you can address essential functions of the job. Everything is on the table after a conditional job offer. For example, an employer can make a conditional job offer subject to the person taking the physical. However, if employment is denied to an individual based on that exam, that denial must be job-related and consistent with business necessity and the performance of the job must not be able to be accomplished with reasonable accommodations. If the person is already an employee, the employer has the right to insist on a medical exam providing it is job-related and consistent with business necessity. Drug testing is okay. Finally, the ADA requires that medical information obtained on an employee or a prospective employee be kept confidential.

You do not want to confuse any of this. If you do, you may wind up in legal liability. In Harrison v. Benchmark Electronics Huntsville, Incorporated, 593 F.3d 1206 (11 Cir. 2010) an employer wound up raising a question of fact as to whether the employer had turned a permissible drug test and conditional job offer subject to a physical into an impermissible disability related inquiry. In this case, the plaintiff was a temporary employee. The company had a practice of screening temporary employee for potential permanent employment. The plaintiff was encouraged to apply for employment and consented to a drug test. The plaintiff was a lifelong epileptic and took barbiturates to control it. When the drug test came back positive, he was asked to explain in detail to the medical review officer with his supervisor in the room why the drug test came back positive. He did so stating that he had had epilepsy since he was two years old and took barbiturates to control it. He also stated the amount of the dosage and answered a series of questions. During that meeting, the supervisor he worked with as a temporary employee and desired to work for as a permanent employee was in the room as well. After this conversation, things went from bad to worse. The plaintiff did not get the job and subsequently sued the company.

In reversing the trial court awarding summary judgment to the defendant (summary judgment is where the court decides who wins or loses without going to a jury trial because it believed there is no genuine issue of material fact and can decide the case on the law), the court held a few things that are important here. First, a person does not have to have a disability under the Americans with Disabilities Act to be able to pursue a claim that the prohibition on disability related inquiries made prior to employment was violated (EEOC using prior amendments act rules had found that the plaintiff did not have a disability).. Second, a private cause of action exists for violation of the prohibition on preemployment disability related inquiries. Finally, a drug test is okay, but in this situation, a question of fact existed as to whether the drug test morphed into a prohibited preemployment disability related inquiry because the additional series of questions in the context that they occurred in were questions that were likely to elicit information about disability.

So where does this leave things:

First, this case illustrates the principle that the permissibility of disability related inquiries are very much dependent upon when they occur and that each opportunity to use disability related inquiries has its own set of rules with that and they should be observed.

Second, you should bulletproof your hiring process from disability related inquiries. For example, recently in the Chronicle of Higher Education a person noted that they used personality testing as part of the hiring process (from the article, it seemed pretty clear that it was done preemployment and not part of a conditional job offer). It is entirely possible that the questions in that personality testing were either questions likely to elicit information about a disability and therefore prohibited prior to a conditional job offer, or, alternatively, depending on how the questions were scored and by whom, were an impermissible preemployment medical exam.  For instance, many years ago, I had the opportunity to review a personality test. That test had questions on it such as, “are you frequently sad”.  A question like that could well elicit information about a person with clinical depression. Therefore, if you want to use such things as personality test as part of the hiring process, you would want to go over each question on that test to see if there any questions likely to elicit disability related information. If so, you might want to eliminate those questions. Of course, limiting those questions might jeopardize the tool itself. In that situation, the employer would have a choice as to whether it wants to risk ADA liability utilizing a tool with disability related inquiries in it or junk the test to prevent an issue of ADA liability.

Recently, the New York Times reported that a federal judge ruled that the city of New York must start approving taxi medallions so that more taxis were wheelchair accessible. After reading the article, I decided to go to the case itself, Noel V. New York City Taxi and Limousine Commission, 2011 WL 6747466 (S.D. N.Y. December 23, 2011). In this case, the plaintiffs sued the New York City Taxi and Limousine Commission because their regulations were not set up to approve a sufficient number of taxis that were wheelchair accessible. Interestingly enough, the Commission defended on the grounds that title II of the ADA did not apply to them. There were two possible ways title II could apply.  First, there is a section of title II that applies to public entities operating a demand responsive system. Second, and more common, is that title II demands that governmental entities be accessible to persons with disabilities. With respect to the first issue, the court decided that the Commission was not operating a demand responsive system (which would have required that each and every taxi be wheelchair accessible), and therefore, the provisions of the Americans with Disabilities Act pertaining to a demand responsive system did not apply. However, the court did find that the Commission was a public entity subject to title II of the Americans with Disabilities Act, and therefore, its operations must be accessible to persons with disabilities. The Commission admitted that it had both the ability and authority to provide more wheelchair accessible vehicles but simply had chosen not to do so. Therefore, only 232 taxi cabs in New York out of 13,237 were accessible to individuals using wheelchairs. The court held that the Commission did not provide meaningful access to this public benefit. Therefore the court ordered that the Commission to propose a comprehensive plan that provides meaningful access to taxi services for passengers using wheelchairs. The plan must include targeted goals and standards as well as anticipated measurable results. Furthermore, until such a plan was proposed and approved by the court, all new taxi medallions sold or new street hail livery licenses or permits issued by the Commission must be for wheelchair accessible vehicles. No doubt this is a great victory for persons with disabilities.

However the question becomes where did the “meaningful access” standard come from? That, is an interesting story. Noel relies on another case, Henrietta D v. Guilani, 119 F. Supp. 2d 181 (E.D.N.Y. 2000), where the court held that a city program that provided federal and state benefits for individuals suffering from AIDS was run in such a way that the beneficiaries of that program lacked meaningful access to it. This decision relied on Alexander v. Choate, 469 U.S. 287 (1985), a Rehabilitation Act case, which upheld a Tennessee reduction of annual inpatient hospital days that the Tennessee Medicaid program would pay. It is there that the, “meaningful access” phrase first appears. It appears in the context of saying that the reduction in hospital stays is a neutral decision and does not impact upon whether a person with a disability had meaningful access to the program. Therefore, one can see that in Noel the term, “meaningful access” is being used quite a bit differently than what it had been used in prior case law.

What does this all mean? It is very strange in a way. The Commission never argued at the lower level that summary judgment should be denied because a question of fact existed as to whether the program and activities of the Commission were accessible to persons with disabilities or whether there were other ways that could be formulated so that the program and activities of the Commission could be accessible to persons with disabilities, wheelchair users in this case. Perhaps, an appeal might claim that the lower court did not apply the proper legal standard (that is, “meaningful access” is being used in this case in a way different than existing precedent, and therefore, the argument goes that an appellate court should send the case back down with the correct legal standard, whatever that may be).

At any rate, a deceptively complex case, that bears following in the future. It also serves notice on regulatory bodies that their regulations should be formulated in such a way that they do not have a disparate impact on (screen out) persons with disabilities. Failure to do so, could subject the agency to a title II suit along the lines described here.

Update: During the week of March 19, the city received a stay from the Second Circuit United States Court of Appeals with respect to the District Court decision referenced here. The city has also made clear that it will be appealing the decision, perhaps along the lines discussed here.

In fact, this case was appealed and on June 28 the second circuit came down with its decision whereby the Second Circuit held that the city was not in violation of part a of title II of the Americans with Disabilities Act and that the District Court erred in granting partial summary judgment for the plaintiff and entering the temporary injunction. The Second Circuit vacated and remanded for entry of partial summary judgment for the city. In doing so, the Second Circuit had to find that the district court abused its discretion in its decision.

How did the Second Circuit go about reversing the District Court decision? First, the court noted that the Americans with Disabilities Act while broad in scope was not without its limits.

Second, the court turned to the federal regulations dealing with licenses. The court said that what this section does is prohibit the agency issuing the regulations from refusing to grant licenses to persons with disabilities who are otherwise qualified own or operate taxis but does not assist persons who are consumers of the licensee’s product. Such a conclusion was also supported by the Department of Justice’s technical assistance manual, which the court found to be persuasive authority.

Third, the court found that a program or activity of the public entity was not involved here. That is, an activity of the public entity does not become a “program or activity” of the public entity merely because it is licensed by the public entity unless the private industry practice is the result of the licensing requirements. Such was not the case here (that is, the licensing scheme did not cause the discrimination). While the number of taxis that have to be accessible were small, nothing prevented the private companies from using whatever number of accessible taxis they desired. To buttress this point, the court cited to several cases that made this distinction between the regulatory agencies and the licensees or the people being regulated themselves. They did distinguish one case that did not make that distinction, but that case was substantially different as it dealt with the situation with a private entity had to use equipment required by the public agency (machine for the state lottery in West Virginia).

Finally, an interesting question arises as to why the plaintiffs went after the public entity and not the taxi companies themselves. It turns out, as the Court notes, that federal regulations specifically exempt providers of taxi service from being required to purchase or lease accessible automobiles. Therefore, since the taxi industry is exempt from being required to purchase or lease accessible taxis, there can be no underlying violation of the ADA for a licensing authority to fail to address that by regulation.

What does this all mean? It means that for purposes of the Americans with Disabilities Act, there is a big difference between the regulations issued by a public entity and the people or entities subject to those regulations. Unless those regulations mandate discrimination, the Americans with Disabilities Act is not going to allow a title II claim to proceed. It also means that the time to ensure that the regulations increase accessibility to the maximum extent is at the time the regulations are being formulated not once they are done. For example, when a state or the federal government formulates regulations, those regulations first have to be proposed, then receive comments from the public, then those comments have to be digested by the regulatory body, and then the final regulations have to be issued. These regulations of New York were not state or federal but it is possible that prior to issuing the licensing regulations, there may have been some ability for the public to comment on the proposed licensing regulations. If not, that fact might offer grounds for attacking the regulations.

One of the things that’s easy to do is forget that laws do not exist in a vacuum. On the employment side, you see this all the time. For example, under the Americans with Disabilities Act, the critical question is whether a person can perform the essential functions of the job with or without reasonable accommodations. However, let’s say that that person takes leave to deal with a serious medical condition under the Family and Medical Leave Act. When seeking to come back, the employer can require that the person be certified as being able to come back. However, that analysis of whether the person can come back after family and medical act leave, specifically does not talk about whether the person can do the essential functions of the job with or without reasonable accommodations. Therefore, as I have written in the past, an employer might make the mistake of saying well you can’t come back from family and medical leave because you are not certified, but under the Americans with Disabilities Act that person could do the job with or without reasonable accommodations. In that situation, the employer might be satisfying the terms of the Family and Medical Leave Act but at the same time be violating the Americans with Disabilities Act. Of course, I am assuming that the person for purposes of this discussion that the person has a disability under the Americans with Disabilities Act.

A similar issue exist with the Americans with Disabilities Act and the Fair Housing Act. Final regulations implementing title II and title III of the Americans with Disabilities Act make it quite clear that service animals are restricted to trained dogs, and while trained miniature horses are not considered service animals, they count as well. However, what if you have a student in a dormitory that uses an animal to accommodate a disability and that animal is not specially trained? In that eventuality, does the college have to allow that animal? Only the courts will know for sure. However, it may well depend upon whether the Fair Housing Act is involved or the Americans with Disabilities Act is involved. Cases do hold that the Fair Housing Act applies to rooms in a college dormitory. Thus, a college that says no to an animal that is neither a service animals under the Americans with Disabilities Act nor a trained miniature horse with respect to that student’s ability to effectively access his or her dormitory room, may or may not be okay under the Americans with Disabilities Act but may well run into problems under the Fair Housing Act.

A case that illustrates the difference between the Americans with Disabilities Act and Fair Housing Act is Fair Housing of the Dakotas Inc. v. Goldmark Property Management, Inc., 778 F. Supp. 2d 1028 (D. North Dakota 2011). In that case, Goldmark property management Incorporated had a policy whereby they waived additional fees regarding people who had specially trained assistance animals but would not waive those fees with respect to people who did not have trained assistance animals, but who did have other animals that were used to accommodate their disabilities. The people who did not have specially trained animals but needed other animals to accommodate their disabilities filed a claim against the defendant arguing that the policy violated the Fair Housing Act. In agreeing with the plaintiff that a disparate impact claim could survive a motion for summary judgment, the court noted as follows. First, the court recognized that the Americans with Disabilities Act implementing regulations focused on service animals and the specialized training that they need. However, the Fair Housing Act does no such thing. Second, the court noted that the Fair Housing Act, which applies to dwellings, and the Americans With Disabilities Act, which applies to employment, accessing governmental entities, and places of public accommodations have different purposes (one to help a person live in their home and the other to accommodate a person out in the world) and therefore, it wouldn’t be unexpected that different rules would cover the different situations. Third, the Department of Justice has specifically said that while emotional support animals do not qualify as service animals under the Americans with Disabilities Act regulations, they may nevertheless qualify as a reasonable accommodations for persons with disabilities under the Fair Housing Act. Finally, the Department of Housing and Urban Development has made it clear in its regulations that the Fair Housing Act applies to support and therapy animals in addition to service animals as defined in the Americans with Disabilities Act regulations. The court then went on to say that the plaintiffs had satisfied what was necessary to defeat a summary judgment motion.

The purpose of this discussion is not to give to give a treatise on the fair housing act. Rather, the purpose of this discussion it to illustrate that the same factual scenario may give rise to multiple causes of action with different rules.