From Understanding the Americans with Disabilities Act, 3rd edition, Chapter 1
Editor's Note: Because we believe that this recently updated chapter of a forthcoming book could be very important to you, we have opted to include the entire first chapter in a two-part format. You can find Part 1 of Chapter 1 in the August issue.
- Learn how to more fully understand the Americans with Disabilities Act
The second definition of disability under the ADA includes a person who has a record of an impairment regardless of whether he or she is currently substantially limited in a major life activity.1 This definition commonly applies to people who have records of learning disabilities. Many students are diagnosed with learning disabilities very early in their education. Some outgrow those disabilities (some studies show that 80 percent of children with Attention Deficit Disorder outgrow it), and others learn to compensate for their learning disabilities without accommodations. Those persons will still be protected under the ADA and should not be discriminated against because of a documented learning disability.2 The definition of discrimination is met if a record relied on by the employer indicates that the person either has or had a substantially limiting impairment.3 The information could be found in medical records, education records, and personnel records, although with respect to personnel records, the ADA, due to a requirement that medical information not be contained in a person’s personnel records, has lessened the likelihood of such information appearing there.
The final instance of a person having a disability under the ADA involves a person who is being regarded as having an impairment.4 Often, people who discriminate jump to the wrong conclusion about whether a person has a disability. For example, an individual may assume that a gay person has HIV,5 or a basketball referee association may assume that a person with glasses cannot referee a game because he or she does not see as well as a person without glasses or contacts. Also, while a more in-depth discussion of drug and alcohol abuse will follow later in this book, a person regarded as having a drug or alcohol problem is also protected under the ADA.6
To be considered as being “regarded as” having a disability, must a person have both a physical or mental impairment and a substantial limitation in a major life activity? The Sutton case answered this question in the affirmative.7 However, the ADAAA makes it quite clear that the answer to this question is in the negative. That is, for the “regarded as” definition to apply, the defendant only has to perceive that the plaintiff had a disability, and it is not necessary for the defendant to also perceive that the plaintiff had a substantial limitation on a major life activity.8 The ADAAA represents a sea change on this particular point. From a reading of the case law, it can be argued that the courts prior to the ADAAA were adopting a subjective standard as to whether the employer perceived a limitation on a major life activity.9 The ADAAA properly returns the focus to whether a person is perceived as having a physical or mental impairment.
Finally, we come to the issue of otherwise qualified. A person may have a disability and not be protected under the ADA because he or she is not otherwise qualified. Otherwise qualified has two different meanings under the ADA depending upon whether Title I of the ADA (which applies to employers of 15 or more employees) or Title II of the ADA (which applies to governmental entities regardless of size) is at issue. Under Title I of the ADA, a person with a disabling condition is otherwise qualified if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job.10 This definition, however, raises questions of its own, such as what is a reasonable accommodation (discussed in Chapter 3) and what is an essential function of a job (discussed in Chapter 2).
With respect to Title II of the ADA, a person is considered to be otherwise qualified if he or she, with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, can meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity.11 Prior to the ADAAA, “auxiliary aids and services” was not defined. However, the ADAAA does define that term as including:
1) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; 2) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; 3) acquisition or modification of equipment or devices; and 4) other similar services and actions.12
As with the ADA, the ADAAA is going out of its way to recognize visual and hearing impairments. However, a close reading of the last two definitions of “auxiliary aids and services” reveals that the phrase arguably applies to much more than visual and hearing impairment. For example, in a title I context, a person who has difficulty typing due to a disability might be able to argue that these last two definitions of auxiliary aids and services would allow him or her to be otherwise qualified because the employer’s obligations to furnish auxiliary aids and services (such as by way of example, voice dictation software).
“Otherwise qualified” also arises in another context in ADA jurisprudence: that of direct threat. Direct threat is a term that was settled by the US Supreme Court in School Board of Nassau County, Florida v. Arline. That case, involving a public school teacher terminated for having tuberculosis, held that whether a person is a direct threat (and to many courts’ way of thinking, “not otherwise qualified”) depends upon evaluating:
- the nature of the risk (how the disease is transmitted);
- the duration of the risk (how long the carrier is infectious);
- the severity of the risk (what the potential harm is to third parties);
- the probabilities the disease will be transmitted and will cause varying degrees of harm.13
The final regulations of the EEOC implementing the ADAAA are very similar to the Arline standards. The EEOC regulations state that a person is a direct threat after considering the following factors based upon reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Those factors are:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.14
If a person is found to be a direct threat, many courts are finding that the person is not otherwise qualified and is therefore not protected under the ADA. This line of reasoning creates unnecessary confusion for someone trying to understand the workings of the ADA even though the courts are committed to the terminology. I find it helps to think of “otherwise qualified” and “direct threat” as two different concepts,15 both of which may result in a finding of not being otherwise qualified. Think of “otherwise qualified” as referring to whether a person can do the essential functions of the job with or without reasonable accommodations or a person effectively using a service with or without reasonable modifications. Thus, to follow this analysis through in the employment context, “direct threat” refers to when a person can do the essential functions of the job with or without reasonable accommodations but that person performing the job would constitute a direct threat.16
Finally, is “direct threat” an affirmative defense or something that the plaintiff has to prove as part of his or her case? The answer depends on the Circuit Court. In the 11th Circuit, the case on point is Moses v. American NonWovens Inc.17 In Moses, the plaintiff worked in several capacities for NonWovens, including as a product inspector, web operator, and hot splicer assistant.18 All jobs involved working with exposed machinery, some of which became extremely hot.19 Moses had epilepsy, and the employer fired Moses because the epilepsy posed a possible threat of an accident.20 The issue before the court was whether it was up to the employer or up to Moses to show whether a direct threat existed. The court held that the employee, in this case Moses, had the burden to show that he was not a direct threat, and that he had not produced probative evidence that he was not a direct threat.21
The case of EEOC v. Amego, a First Circuit case, is slightly different.22 Amego is interesting in several respects, not the least of which was that a provider of mental health and mental retardation services was sued by an employee for violation of the ADA.23 In Amego, an employee who was responsible for overseeing a group home for persons with autism and other mental illnesses developed several serious problems: she became involved with a coworker who used cocaine; she suffered from clinical depression and eating disorders; and her attempts to treat her depression were unsuccessful.24 As a result, her work performance suffered, and she attempted suicide twice by overdosing on medications.25 Finally, there were indications that the medicine at the group home was not being monitored properly.26 Amego eventually let the plaintiff go because they believed that she could not perform an essential function of the job—handling medications for persons in the group home—with or without reasonable accommodations and that she posed a risk to herself and others.27 The district court found for Amego and the EEOC appealed.28 The EEOC claimed, among other things, that direct threat is an affirmative defense, while Amego claimed that proving direct threat or the lack of was part of the plaintiff’s case.29
How did the court settle the issue? In a sense, the court split the difference. The court concluded that determining who has the burden of proof depends upon whether the essential job functions involve the safety of others. If the safety of others is involved in a job’s essential functions, then it is up to the plaintiff to show that he or she is not a direct threat, and doing so would include showing that she is otherwise qualified.30 However, if the safety of others is not involved in the job’s essential functions, such as in the case involving the teacher with tuberculosis, then it is up to the employer to prove direct threat as an affirmative defense.31 This approach was also cited favorably by the 10th circuit.32
There is a third approach the Circuits take and that is they consider “direct threat” to be an affirmative defense, and therefore, the burden is on the defense to make the showing of direct threat. This is the approach taken by the Seventh,33 Fifth,34 Eighth,35 and Ninth36 Circuits.
With respect to “direct threat,” the ADA itself does not mention whether “direct threat” applies to the person him or herself or to other people.37 The EEOC in implementing the ADA’s employment provisions has said that “direct threat” applies where a person threatens the health of himself as well is where a person threatens the health of others.38 In the case of Chevron U.S.A. Inc. v. Echazabal,39 the US Supreme Court was directly faced with this question. In Chevron, the plaintiff worked for independent contractors at an oil refinery owned by Chevron.40 He applied for a job directly with Chevron twice and was offered the job if he could pass the company's physical.41 Each time the plaintiff took the physical, the physical showed liver damage as a result of Hepatitis C, which Chevron doctors said would be aggravated by his working as the oil refinery.42 Each time the plaintiff applied Chevron withdrew the offer.43 The second time Chevron withdrew the offer, it asked that the plaintiff be reassigned to a job without exposure to harmful chemicals or be removed from the refinery altogether.44 The plaintiff filed suit claiming that this conduct violated the ADA.45 Chevron relied on the direct threat defense as specified in the EEOC regulations.46 In finding for Chevron, the US Supreme Court relied upon employer’s obligations under the Occupational Safety and Health Act to provide a safe working environment for its employees.47 The court went on to note that the “direct threat” defense had the meet a fairly compelling standard.48 More specifically, the Court said that 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.49 Further, this assessment must be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job as described in the EEOC regulations.50 Thus, it is now clear that “direct threat” applies to both threats to him/herself as well as threats to others.
Everything mentioned so far is beside the point if an employee is not involved. Just who is an employee under the ADA? The Supreme Court was faced with this very question in Clackamas Gastroenterology Associates, P.C. v. Wells.51 In Clackamas, a bookkeeper brought an ADA discrimination claim against her employer, Clackamas Gastroenterology Associates.52 Clackamas defended on the grounds that it did not have 15 or more employees.53 The question before the court was whether the four physician shareholders who owned the corporation could be considered employees.54 If the shareholders could be considered employees, then the statutory number of 15 would be satisfied, but if they were not employees, then Clackamas did not have the requisite number of employees to be subject to the ADA.55 The Supreme Court held that whether a person is an employee comes down to just how much control is exercised over them.56 For example, the Court looked to its prior case law to say that control can be measured by such things as: the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; the hiring party’s right to assign the work to another; the discretion the hiring party has over when and how long to work; the method of payment; the hiring party’s role in hiring and paying assistants; the nature of the work insofar as it is a part of the regular business of the hiring party; and so forth.57 For those familiar with revenue ruling 87-41,58 which the Internal Revenue Service uses to decide whether a person is an independent contractor or go to top an employee, that reader will most assuredly see the similarities. The Court went on to favorably cite EEOC guidelines how one can determine whether a “partner” was in actuality an employee. Those guidelines lists six factors to use in making this determination: 1) whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work; 2) whether and, if so, to what extent the organization supervises the individual’s work; 3) whether the individual reports to someone higher in the organization; 4) whether that individual is able to influence the organization; 5) whether the parties intended for the person to be an employee as specified in any written agreements or contracts; and 6) whether the individual shares in the profits or losses of the organization. 59 The Court noted that no one factor was dispositive, rather the conclusion depends on “all incidents of the relationship.”60 Thus, the Court sent the matter back for further proceedings to see if the four physician shareholders were indeed employees.
So how should the practitioner deal with the question of whether the person is an employee vis a vis the ADA and other federal antidiscrimination laws? A really good preventive approach that I have used in the past is Revenue Ruling 87-41, mentioned above. As mentioned above, that revenue ruling is eerily similar to some of the Supreme Court case law, also noted above. The practitioner, as mentioned above, may also want to look at the EEOC guidance cited favorably by the Court in Clackamas.
2. See Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act and discussion of § 29 C.F.R. § 1630.2(k).), http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1630.xml.
5. See discussion of 29 C.F.R. § 1630.2(l) in Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act., http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1630.xml.