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32 6. Gender/Age Norming cause he had not established that he was discriminated Despite the 1991 amendments to the Civil Rights against as a member of a protected class. Male troopers Act, gender norming may be upheld where it does not did not have a higher rate of failure under the standard act to impose greater burdens of compliance on either than female troopers. Moreover, the plaintiff would sex. For example, a Michigan court upheld a gender- have failed the test even if he had been held to the fit- normed performance skills test required by the Michi- ness standard for female or older troopers. The plaintiff gan State Police for entry into the police academy. Two also argued that the mandatory physical fitness stan- male candidates who had failed to meet the passing dards must be related to specific job requirements to be standard for men, but who would have passed under permissible. The court noted that all cases requiring the standard for women, argued that the test amounted that physical fitness standards be job related imposed to intentional gender-based discrimination in violation that requirement only after a prima facie case of dis- of the Michigan Constitution and civil rights act. They crimination had been established. Since no such case also argued that if gender norming was constitutional, had been established, the court did not reach that issue. the test should be age-normed as well. The court re- A gender-normed, sit-and-reach test was referenced jected both arguments, finding that the Michigan Con- but not discussed in Conroy v. City of Philadelphia. The stitution does not require equal treatment of individu- test at issue was part of a mandatory physical fitness als not similarly situated. The court held that tests that exit exam from the police academy.278 control for "inherent `immutable' characteristics as be- Takeaway: While separate passing scores for as- tween males and females and thus provide differing sessments that affect employment standing are unlaw- standards" do not violate equal protection.276 The court ful under Title VII as amended by the 1991 Act, using then applied the heightened scrutiny test to determine gender and age adjusted standards for general physical whether the gender-normed test was substantially re- fitness, e.g., requiring that applicants score in the 50th lated to an important government purpose. The court percentile, when such percentiles are commonly gender found that the gender-normed test was intended to de- and age normed, may be permissible. Gender-and age- termine the most physically fit female candidates, norming general health standards may be permissible rather than to exclude male candidates. The test served because they actually provide a way to measure differ- to expand the available pool of candidates, and served ently situated groups so as to provide equivalent meas- the important government interest of avoiding the dis- ures of fitness. Gender norming may also be upheld parate impact that a single standard would have on where it is used to enlarge a pool of applicants rather female candidates. The court also rejected the age dis- than to exclude applicants at the hiring stage. crimination argument, finding that the plaintiffs did B. Prohibitions Against Discrimination Based on not establish their protected class status, or that age, rather than physical fitness, was the factor causing any Physical Disability disparity in test results. Title I of the ADA279 prohibits discrimination against A Vermont court reached a similar result in review- a qualified individual on the basis of disability in any ing a challenge to the Vermont State Police's physical aspect of employment, including hiring, advancement, 280 fitness requirements for incumbent officers.277 The Ver- or discharge. Failure to make reasonable accommoda- mont test required that officers meet the fitness ability for the 50th percentile of the general population under 278 the Cooper Institute for Aerobic Research standard. The 421 F. Supp. 2d 879 (E.D. Pa. 2006). 279 Vermont State Police had studied the benefits of the Unless otherwise noted, the following EEOC guidance physical fitness requirement before making it manda- documents are the reference sources for requirements cited in this section: EEOC, ADA Enforcement Guidance: Preemploy- tory, finding a number of recognized benefits, including ment Disability-Related Questions and Medical Examinations, decreased lost workdays due to workers' compensation www.eeoc.gov/policy/docs/medfin5.pdf; EEOC, Enforcement claims, decreased absenteeism, and decreased health Guidance: Disability-Related Inquiries and Medical Examina- problems. The fitness standard was both age-and gen- tions of Employees Under the Americans with Disabilities Act, der-normed. The plaintiff argued that the fitness re- No. 915-002 (July 27, 2000), quirements constituted impermissible discrimination www.eeoc.gov/policy/docs/guidance-inquiries.html; Questions because he was held to a higher standard than female And Answers: Enforcement Guidance On Disability-Related or older troopers required to perform the same job du- Inquiries and Medical Examinations of Employees Under the ties. The Vermont Labor Relations Board had held that Americans With Disabilities Act (ADA), the test held males and females to the same level of www.eeoc.gov/policy/docs/qanda-inquiries.html; EEOC En- fitness based on their aerobic capacity and older per- forcement Guidance: Workers' Compensation and the ADA, www.eeoc.gov/policy/docs/workcomp.html. sons and younger persons to the same level of fitness 280 based on their aerobic capacity. The court found that 42 U.S.C. 12112(a). The Rehabilitation Act of 1973, 29 U.S.C. 701796, prohibits discrimination on the basis of the plaintiff failed to make out a prima facie case, be- disability in federal employment and programs, including pro- grams receiving federal financial assistance. The standards for 276 Alspaugh v. Mich. Law Enforcement Officers Training determining employment discrimination are the same under Council, 246 Mich. App. 547, 556, 634 N.W.2d 161, 166 (2001). this act as under Title I of the ADA. U.S. Department of Jus- 277 In re Scott, 172 Vt. 288, 779 A.2d 655 (Vt. 2001). tice, Civil Rights Division, Disability Rights Section, A Guide

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33 tion to individuals with disabilities, absent undue hard- and require medical examinations289 at three stages: ship, constitutes unlawful discrimination under the pre-offer, post-offer, and employment. The ADA also ADA.281 Both disparate-treatment and disparate-impact requires that employers maintain the confidentiality of claims are cognizable under ADA.282 All of the courts of medical information.290 appeals have applied Title VII standards to disparate- This section reviews issues related to the require- 283 treatment cases under the ADA. ments of the ADA, such as limitations on disability- Title I covers state and local governments as well as related inquiries and medical examinations, the defini- private employers and is enforced by the EEOC,284 al- tion of disability, the elements of a prima facie case of though state governments may not be sued for money ADA discrimination, and defenses to a prima facie case. damages.285 The EEOC exercises the same enforcement State law on disability discrimination is also addressed. powers, remedies, and procedures as under Title VII The principles discussed govern determining at what 286 when it enforces ADA. Title II also covers public points in the employment process it is legally permissi- agency employment, and it is enforced by DOJ.287 DOT ble to conduct a physical ability test, as well as distin- makes compliance with both the EEOC and DOJ regu- guishing between a physical ability test and a medical lations a condition of receipt of federal assistance from examination, including identifying those elements that 288 DOT. would make an otherwise lawful physical ability test The ADA's nondiscrimination requirements limit an impermissible because of the point in the employment employer's ability to make disability-related inquiries process at which the test is conducted. 1. Disability-Related Inquiries and Medical to Disability Rights Laws, Sept. 2005, www.ada.gov/cguide. Examinations htm#anchor65610. Rehabilitation Act cases are precedent for ADA cases, and vice versa. Breen v. Dep't of Transp., 282 F.3d Timing Restrictions.--Before an offer of employment 839, 841 (D.C. Cir. 2002); Alston v. Wash. Metro. Area Transit is made, all disability-related inquiries and medical Auth., 571 F. Supp. 2d 77, 81, 350 U.S. App. D.C. 212 (D.D.C. examinations are prohibited, even if they are job- 2008); Dale v. Wynne, 497 F. Supp. 2d 1337, 1341 (M.D. Ala., related. After a conditional job offer is extended, disabil- 2007). ity-related inquiries and medical exams are permitted 281 42 U.S.C. 12112(b)(5). See Enforcement Guidance: Rea- regardless of relation to the job, provided that the em- sonable Accommodation and Undue Hardship Under the ployer makes inquiries and conducts exams for all em- Americans with Disabilities Act, Notice No. 915.002, Oct. 17, ployees in the same job category and the medical exams 2002, www.eeoc.gov/policy/docs/accommodation.html#N_1_. are the last step in the hiring process.291 Although post- The duty to provide reasonable accommodation may apply to offer medical exams or medical inquiries need not be job medical evaluations. Rohr v. Salt River Project Agric. Im- related and consistent with business necessity, if an provement & Power Dist., 555 F.3d 850, 863 (9th Cir. 2009). 282 applicant is not hired because such exam or inquiry Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S. Ct. 513, reveals a disability, the reason for not hiring must be 157 L. Ed. 2d 357 (2003); Smith v. City of Des Moines, Iowa, 99 F.3d 1466 (8th Cir. 1997). job related and consistent with business necessity.292 283 Raytheon, 540 U.S. at 50, n.3 (2003). 284 EEOC, Disability Discrimination, www.eeoc.gov/laws/types/disability.cfm. 285 289 Board of Trustees of Ala. v. Garrett, 531 U.S. 356, 121 S. The EEOC defines "medical examination" as "a procedure Ct. 955, 148 L. Ed. 2d 866 (2001). However, individuals may or test that seeks information about an individual's physical or sue state governments under Title II of the ADA. Tennessee v. mental impairments or health." Preemployment Disability- Lane, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). Related Questions and Medical Examinations, The difference in the two holdings turned on the fact that in www.eeoc.gov/policy/docs/medfin5.pdf, at 13. Garrett the Court ruled that Congress had not met the congru- 290 42 U.S.C. 12112(d)(3); 29 C.F.R. 1630.14(b)(1),(2). ence and proportionality test--that is had not gathered enough 291 42 U.S.C. 12112(d)(2). See EEOC, Enforcement Guid- evidence of discrimination based on disability related to equal ance: Disability-Related Inquiries and Medical Examinations protection to justify abrogating sovereign immunity, whereas of Employees Under the Americans with Disabilities Act, No. in Lane the Court ruled that there was enough evidence of 915-002 (July 27, 2000), www.eeoc.gov/policy/docs/guidance- disability discrimination related to due process to justify abro- inquiries.html. The job offer must be "real." All other nonmedi- gation. cal components of the hiring process, such as background 286 E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 122 S. Ct. checks, must be completed before the medical exam is required. 754, 151 L. Ed. 2d 755 (2002). The opinion also held that an If there are components that cannot be reasonably completed arbitration agreement doesn't preclude E.E.O.C. from pursuing before the medical exam, the employer must make that show- available remedies. ing. Leonel v. Am. Airlines, 400 F.3d 702 (9th Cir. 2004). See 287 United States Attorneys' Manual, Disability Rights Sec- also Preemployment Disability-Related Questions and Medical tion--ADA Enforcement, Examinations, www.usdoj.gov/usao/eousa/foia_reading_room/usam/title8/2mcv www.eeoc.gov/policy/docs/medfin5.pdf, at 17. r.htm#8-2.410. 292 U.S. Equal Employment Opportunity Commission, U.S. 288 49 C.F.R. 27.19, Compliance with Americans with Dis- Department of Justice Civil Rights Division: Americans with abilities Act requirements and FTA policy, Disabilities Act, Questions and Answers, www.fta.dot.gov/documents/Part_27_PDF10-1-07_edition.pdf. www.ada.gov/qandaeng.htm.

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34 The ADA also limits an employer's ability to make include requiring a medical release before rehiring an disability-related inquiries of employees.293 Employers employee who had previously resigned because of a dis- may not require current employees to undergo medical ability;300 requiring a medical exam from an employee, exams unless the exam "is shown to be job-related and whose job required lifting, when the employee sought to consistent with business necessity."294 That prohibition return from leave after back surgery following a work- 301 applies to all employees, regardless of disability related injury; requiring an extensive questionnaire status.295 Employers may, however, "make inquiries into from an employee's doctor where the employee had suf- the ability of an employee to perform job-related func- fered a stroke and requested a transfer to a more tions."296 Thus it is permissible to require employees to strenuous position.302 undergo medical exams if there is evidence of a job per- In Transport Workers Union of America, Local 100, 303 formance or safety problem or if required by other fed- AFL-CIO v. New York City Transit Authority (NYCT), eral laws, such as the CDL requirement. In the event of the district court reviewed the NYCT's sick leave policy conflict between the ADA and another federal require- requiring notice before sick leave, employee-furnished ment, the employer still must determine if there is rea- explanations of the reason for sick leave regardless of sonable accommodation consistent with the require- time taken off, and doctor's certification concerning sick ments of the other federal laws. Although generally leave. The transit agency offered two justifications for periodic medical exams are considered unlawful under the policy: 1) detection and deterrence of sick leave EEOC guidance, periodic exams of employees in safety- abuse, and 2) alerting the authority to dangerous medi- sensitive positions, where such exams address specific cal conditions in safety-sensitive employees.304 The court job related concerns, can be justified as job-related and reviewed the extent and cost of sick leave abuse, and consistent with business necessity. found that it was significant but not so widespread as to Disability-Related Inquiry.--EEOC considers a "dis- include overwhelming numbers of employees. The court ability-related inquiry" to be a question "likely to elicit also found that the review of the sick leave forms had information about a disability." Examples include ask- some indeterminate deterrent effect on sick leave abuse ing whether the employee has or has ever had a disabil- ity, what kinds of prescription medicine the employee 300 takes, or what the results are of any genetic testing the Harris v. Harris & Hart, Inc., 206 F.3d 838, 844 (9th Cir. employee has had. Questions not likely to elicit infor- 2000). 301 mation about a disability and thus permitted at any Porter v. U.S. Alumoweld Co., 125 F.3d 243, 246 (4th Cir. time include questions about an employee's general 1997). 302 well-being, the employee's ability to perform job func- Riechmann v. Cutler-Hammer, Inc., 183 F. Supp. 2d tions, and the employee's current use of illegal drugs.297 1292, 1299 (D. Kan. 2001). 303 The Second Circuit has held that a requirement that 341 F. Supp. 2d 432 (S.D.N.Y. 2004). 304 a return-to-work certificate contain a general diagnosis The sick leave policy required: 1) any employee who raises sufficient potential to reveal a disability or per- sought sick leave to give at least 1-hour notice before the start ception thereof may only be allowed as a business ne- of the employee's tour of duty, providing a brief description of cessity.298 Business necessity in this context must the nature of illness or condition requiring the absence; 2) any amount to more than mere expediency, such as "ensur- employee who returned from sick leave of any length to submit within 3 days of return from absence a "sick form" that stated ing that the workplace is safe and secure or cutting the "nature of [the] disability" that caused the employee to be down on egregious absenteeism. The employer must "unfit for work on account of illness during this period"; 3) em- also show that the examination or inquiry genuinely ployees under specified circumstances to submit a doctor's serves the asserted business necessity and that the re- certification in which the doctor certified that the illness "so 299 quest is no broader or more intrusive than necessary." incapacitated the employee that he/she was incapable of per- Examples of permissible requests for exams or releases forming his/her duties" during the specified period of time and briefly stated the employee's "diagnosis/objective findings" and "treatment/prognosis and expected date of return." The re- 293 See Enforcement Guidance: Disability-Related Inquiries quirements for submitting the doctor's certificate depended on and Medical Examinations of Employees Under the Americans the employee's union representation and the employee's history with Disabilities Act, No. 915-002 (July 27, 2000), of sick leave usage. One represented group in its entirety and www.eeoc.gov/policy/docs/guidance-inquiries.html. those in the other represented group with the heaviest record 294 42 U.S.C. 12112(d)(4)(A). of sick leave usage were required to submit the doctor's certifi- 295 Fredenburg v. Contra Costa County Dep't of Health cate after an absence of more than 2 days; the employees in the Servs., 172 F.3d 1176, 1182-82 (9th Cir. 1999). second represented group without the extensive sick leave 296 history were required to submit the doctor's certificate after an 29 C.F.R. 1630.14(c). 297 absence of more than 3 days. A third group of employees-- Enforcement Guidance: Disability-Related Inquiries and those on a "sick leave control list"--were required to submit Medical Examinations of Employees Under the Americans with the doctor's certificate after sick leave of any length. Employees Disabilities Act, No. 915-002 (July 27, 2000), were placed on a sick leave control list after taking six ab- www.eeoc.gov/policy/docs/guidance-inquiries.html, Question 1. 298 sences without a doctor's certificate in 1 year or after being Conroy v. N.Y. State Dep't of Correctional Servs., 333 consistently absent on the same day of the week or month, F.3d 88 (2d Cir. 2003). adjacent to holidays or sports events, or similar suspicious 299 Id. at 97-- -98. conduct. Id. at 438---39.

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35 and apparently detected some potentially dangerous Regardless of the safety-related nature of the posi- medical conditions among safety-sensitive employees. tion, an employer may, however, make medical inquir- The district court held that the explanation and cer- ies of an individual employee if the employer has rea- tification required under NYCT's policy clearly consti- sonable basis for believing that the employee's medical tuted medical inquiries subject to the ADA, and that condition may be the reason for poor performance prob- the policy could only be allowed if its provisions were lems. For example, if an employee returns from sick job-related and consistent with business necessity. The leave and then begins experiencing frequent absences court also held that the asserted business necessity of from his or her duty station (where attendance is re- curbing sick leave abuse was only sufficient as to the quired) and discloses to a supervisor or to an other em- employees on the sick leave control list, and the busi- ployee within the hearing of a supervisor that the em- ness necessity of ensuring safety was sufficient as to ployee is experiencing symptoms such as frequent bus operators and other safety-sensitive employees. As fatigue, excessive thirst, and constant need to use the to the business necessity of deterring sick leave abuse, restroom, the employer may ask whether the employee the court found that, given the cost of sick leave abuse has diabetes or send the employee for a medical exami- and NYCT's obligation under New York law to operate nation, because there is reason to believe that diabetes on a self-sustaining basis, NYCT had demonstrated may be affecting the employee's ability to perform one that curbing sick leave abuse was a business necessity; of the essential duties of the job (presence at duty sta- the medical diagnoses, due to their deterrent effect, tion).306 serve the purpose of curbing sick leave abuse; NYCT Takeaway: Inquiries that may disclose a disability-- had not met the burden of showing a reasonable basis such as requesting a diagnosis--may be made following for making inquiries of all employees taking leave, re- an illness or injury upon adequate showing of business gardless of the amount, but had met that burden as to necessity. Such a showing requires that the purpose the employees on the control list. As to the business asserted be vital to the business, the inquiry reasonably necessity of maintaining public safety, the court found serve that purpose, and the scope of the inquiry be no that it was clearly a business necessity for NYCT to more intrusive than necessary. Merely asserting the ensure that bus operators are fit to perform their du- need to reduce sick leave abuse without establishing ties; despite the possibility of more effective approaches, the existence of such abuse, for example, should not be NYCT had met the burden of showing the reasonable sufficient to support a request for a diagnosis. Requir- effectiveness of the policy in maintaining safety; and ing an employee with no history of abuse of sick leave to NYCT had met the burden of establishing a reasonable provide a diagnosis is likely to violate the ADA. How- basis for applying the policy to bus operators. ever, if objective factors indicate that a medical condi- Finally, the court held that for employees not on the tion may be creating performance problems, the em- sick leave control list or not in safety-sensitive posi- ployer may make appropriately limited medical tions, NYCT could make inquiries that require an em- inquiries. ployee to 1) call in advance of sick leave, but not to de- Medical Examinations.--The term "medical exami- scribe the nature of the illness; 2) submit a sick form nation" is not defined under the ADA or the implement- upon return stating unfitness to work due to illness ing regulations but is the subject of EEOC guidance during the absence, but not to state the nature of the that courts rely on in interpreting what constitutes a 307 disability; and 3) submit a doctor's certificate (after ab- medical exam. The EEOC considers a procedure or sences of lengths determined by collective bargaining) test that seeks information about an individual's physi- certifying that the employee was incapable due to ill- cal or mental health or impairments to be a medical ness of performing duties during a specific period and is exam. The factors EEOC lists in its guidance for deter- now fit to resume duties, but not to describe the nature mining whether a procedure is a medical exam are the of illness or treatment. following:308 Verification after sick leave may be covered by col- lective bargaining agreements. For example, King Is it administered by a health care professional or County Metro in Seattle agreed to limit verification for someone trained by a health care professional? use of sick leave to situations where an employee with Are the results interpreted by a health care profes- less than a certain number of hours of sick leave is ab- sional or someone trained by a health care professional? sent for more than 5 consecutive days; an employee Is it designed to reveal an impairment or physical requests use of other leave for sick leave; or the em- or mental health? ployee is suspected, after prior warning and reasonable investigation by Metro, of continuing to abuse sick leave.305 306 See EEOC, Questions and Answers About Diabetes in the Workplace and the Americans with Disabilities Act (ADA), Question 4, www.eeoc.gov/facnts/diabetes.html. 307 305 METRO/King County New Sick Leave Agreement Indergard v. Ga. Pac. Corp., 582 F.3d 1049, 1053 (9th (agreement covers medical verification of sick leave, including Cir. 2009). See II.B. 308 self-verification), www.atu587.com/documents/PDFofSickleave Preemployment Disability-Related Questions and Medi- letter.pdf. cal Examinations, www.eeoc.gov/policy/docs/medfin5.pdf, at 13.

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36 Is the employer trying to determine the applicant's logical or biological responses.314 Even absent the medi- physical or mental health or impairments? cal component, if such tests tend to screen out appli- Is it invasive (for example, does it require the cants on the basis of disability, the employer must show drawing of blood, urine or breath)? that the test is job-related and consistent with business Does it measure an applicant's performance of a necessity. task, or does it measure the applicant's physiological Under the EEOC guidance, an employer may de- responses to performing the task? scribe a physical agility test to an applicant and ask the Is it normally given in a medical setting (for exam- applicant to provide a medical certification that the ple, a health care professional's office)? applicant can safely perform the test. The guidance also Is medical equipment used? provides that it is permissible for an employer to ask an applicant to release the employer from liability for inju- Vision tests conducted and analyzed by an ophthal- ries incurred in performing a physical ability test. How- mologist or optometrist and pulmonary function tests ever, the enforceability of such releases is decided un- are considered to be medical exams by the EEOC. The der state tort law, not under the ADA. Applicability of Supreme Court has held that the federal CDL vision workers' compensation for injuries suffered is also de- standard is not a per se violation of the ADA.309 At the termined under state law.315 While it is clearly unlawful time Albertson's was decided, the waiver program was to conduct medical testing pre-offer, it is not clearly not part of the CDL regulation; the Court found that required that nonmedical physical ability tests meant to the existence of the pilot waiver program did not create ensure that an applicant can reasonably perform job an obligation on the part of the employer to do an indi- functions be administered pre-offer. vidualized assessment of an employee's ability to show As noted under medical inquiries, if an employee re- the job-relatedness of requiring the individual to meet turns to work after illness or injury and displays symp- the standard. toms or problems that provide objective reasons to be- Tests for illegal drug use are not considered medical lieve that a medical condition may be causing exams for purposes of the ADA.310 performance problems, the employer may require the Applying Timing Restrictions and Definitions.-- employee to undergo a medical examination. However, Since asking an employee whether he or she can per- the procedural requirements and permissible actions form job functions is not a disability-related inquiry,311 it based on results of the medical examination may be is permissible before making a conditional offer of em- subject to limitations. ployment for the employer to ask about an applicant's For example, procedural issues for return-to-work ability to perform essential job functions,312 including medical testing may be subject to collective bargaining asking the applicant to demonstrate how he or she agreements. A New Jersey court has held that test cri- would perform a specific job task required to carry out teria for physical fitness and agility for incumbent po- 313 those essential functions. For example, requiring an lice officers were not negotiable, finding that the tests applicant to lift a 30-lb box and carry it 20 ft is not a were job-related as opposed to being health-and safety- medical exam. However, if the employer measures the related matters that would be subject to negotiation. applicant's heart rate or blood pressure after the appli- However, the procedural aspects of the test were found cant completes the task, the test is a medical exam. to be negotiable.316 In addressing a question concerning Similarly, physical agility tests--like running an obsta- the right of an injured transit police officer to have a cle course--or physical fitness tests--like measuring an panel of doctors determine his permanent disability applicant's ability to run or lift--are not medical exams, status, the New Jersey Public Employment Relations unless the employer measures the applicant's physio- Commission has ruled that while the public employer has a right to require a returning transit police officer to pass a physical agility test, the procedure under 309 Albertson's v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, which an officer returning to work following an injury is 144 L. Ed. 2d 218 (1999). See also Knoll v. SEPTA, CA Co. 01- determined to be permanently disabled is within the 2711, 2002 U.S. Dist. LEXIS 17164 (E.D. Pa. 2002) (failure of scope of negotiations under the collective bargaining 317 annual physical examination due to substandard vision was agreement. legitimate and not shown to be pretext for disability discrimi- nation); Gurley v. N.Y. City Transit Auth., 2003 U.S. Dist. 314 Id. at 13. LEXIS 21844 (E.D.N.Y. 2003). 315 310 See II.A.5, Tort/Workers' Compensation Liability for In- 42 U.S.C. 12114(d). juries Suffered During Physical Ability Test, infra this digest. 311 29 C.F.R. 1630.14(a), Medical examinations and inquir- 316 Bridgewater Township v. P.B.A. Local 174, 196 N.J. Su- ies specifically permitted: Acceptable pre-employment inquiry, per. 258, 482 A.2d 183 (1984). See also N.J. Transit, P.E.R.C. http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/ No. 2007-15, 32 NJPER 317 ( 132 2006) (return to work fit- 29cfr1630.14.pdf. ness requirements nonnegotiable). 312 29 C.F.R. 1630.2(n), Essential functions, 317 E.g. In the Matter of New Jersey Transit Corporation, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1630.2. P.E.R.C. No. 2007-63, May 31, 2007, pdf. www.perc.state.nj.us/percdecisions.nsf/IssuedDecisions/7804E5 313 Preemployment Disability-Related Questions and Medi- 4E7B44EE64852572ED007136B9/$File/PERC%202007%2063. cal Examinations, www.eeoc.gov/policy/docs/medfin5.pdf, at 2. pdf?OpenElement (labor dispute arising from fitness for duty

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37 2. Definition of Disability 318 degree," so that impairments that interfere only in a The ADA does not specify conditions that are consid- minor way cannot be disabilities under the ADA.325 The ered disabilities. Rather it defines disability as "(A) a Court also stated that "major" must mean "important" physical or mental impairment that substantially limits and concluded that "major life activities" must mean one or more major life activities of such individual; (B) a activities "of central importance to daily life" such as record of such an impairment; or (C) being regarded as "household chores, bathing, and brushing one's teeth." 326 having such an impairment (as described in paragraph (3))."319 This interpretation of disability narrowed the range The scope of what is considered a disability has been of impairments that qualified as disabilities under the a matter of some controversy, as the Supreme Court ADA, particularly in the case of being regarded as dis- placed significant limitations on what can be considered abled. For example, the Seventh Circuit rejected the a disability.320 In 1999, the Court ruled that mitigating claim of a truck driver (considered 20 percent disabled measures must be taken into account when determining by the Army due to a hand injury) that he had been if an individual's impairment substantially limits a ma- terminated because his employer considered him to be jor life activity.321 The result of determining disability disabled. The court found that despite the fact that the with mitigating measures taken into account is that the employer had told him that he was fired because of his individual is more likely to be found not to have a dis- disability, there was no showing that the employer be- ability, at which point the ADA analysis ceases and the lieved him to be disabled within the meaning of the reviewing court does not reach the question of whether ADA. The fact that the employee was able to drive a the employee engaged in unlawful discrimination. In 322 truck that had not been modified for a disabled driver 2002, the Supreme Court decided Toyota Motor Manu- showed that he was not disabled within the meaning of 327 facturing, Kentucky, Inc. v. Williams.323 In that decision, the Act. Another employee who was terminated be- the Court found that the Sixth Circuit Court of Appeals cause an injury to his right wrist precluded him from had failed to consider a broad enough range of manual running a truck route or training new employees was tasks in determining whether the plaintiff was dis- deemed not to be disabled within the meaning of the abled. 324 Moreover, the Court interpreted the terms ADA because he was still able to perform major life ac- "substantially limits" and "major life activities" nar- tivities such as brushing his teeth with his other rowly and broadly, respectively. The Court stated that hand.328 However, the Ninth Circuit held that an indi- "substantially" must mean "considerable" or "to a large vidual suffering from insulin-dependent, Type 2 diabe- tes raised a genuine issue of material fact as to whether his diabetes substantially limited his life activity of eat- issues); METRO/King County New Sick Leave Agreement ing by proffering evidence of his need to strictly monitor (agreement covers medical verification of sick leave, including what and when he ate and the inability of daily insulin self-verification), intake to stabilize his condition. 329 www.atu587.com/documents/PDFofSickleaveletter.pdf. 318 An individual may be regarded as disabled in one of Current or recent drug users and alcohol abusers are not two ways: "(1) a covered entity mistakenly believes that considered individuals with disabilities under the ADA. 29 a person has a physical impairment that substantially U.S.C. 706(8)(B). See Isidore Silver, Application of ADA to limits one or more major life activities, or (2) a covered Drug Dependence and Alcoholism, 1 PUBLIC EMPLOYEE DISCHARGE AND DISCIPLINE, 10.3 (3d. ed. 2001); see HIRSCH, entity mistakenly believes that an actual, nonlimiting supra note 49, at 39-42. impairment substantially limits one or more major life 319 42 U.S.C. 12102(1), as amended by 110 Pub. L. No. 325, activities."330 Where an employer substantially limits an 122 Stat. 3553. The parenthetical in subparagraph (C) was employee's responsibilities based on concerns that the added by the ADAAA. employee's perceived medical condition may affect the 320 Bonnie Poitras Tucker, The American with Disabilities plaintiff's ability to perform time-critical, safety-related Act: The Supreme Court's Definition of Disability Under the duties, the employer may be found to regard the em- ADA: A Return to the Dark Ages, 52 ALA. L. REV. 321 (2000). ployee as substantially limited in the major life activity 331 321 Sutton v. United Airlines, 527 U.S. 471, 119 S. Ct. 2139, of working. A requirement of being 100 percent dis- 144 L. Ed. 2d 450 (1999); Murphy v. United Parcel Serv., 527 ability-free has been held to qualify as considering an U.S. 516, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S. Ct. 2162, 144 L. Ed. 325 Id. at 196-- -97. 2d 518 (1999). Based on these cases, employees with diabetes, 326 epilepsy, heart disease, and hearing impairment experienced Id. at 197, 201-- -02. 327 adverse employment actions related to their conditions but Tockes v. Air-Land Transport Servs., Inc., 343 F.3d 895 were held to not be disabled under the ADA because their con- (7th Cir. 2003). 328 ditions were managed with medication or other aids. Chai R. Didier v. Schwan Food Co., 387 F. Supp. 2d 987 (W.D. Feldblum, Kevin Barry & Emily A. Benfer, The ADA Amend- Ark. 2005). ments Act of 2008, 13 TEX. J. ON C.L. & C.R. 187, 218-- -20 329 Rohr v. Salt River Project Agric. Improvement & Power (2008). Dist., 555 F.3d 850 (9th Cir. 2009). 322 Id. at 207-- -11. 330 Sutton, 527 U.S. at 489. 323 534 U.S. 184, 122 S. Ct. 681, 151 L. Ed. 615 (2002). 331 Duffett v. Mineta, 432 F. Supp. 2d 293, 300 (E.D.N.Y. 324 Id. at 187. 2006).

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38 individual to be substantially limited in the major life ADAAA added definitions of "major life activities" and activity of working.332 (Such a policy is also a per se vio- "regarded as having such an impairment" for purposes lation of the ADA because it ignores the individualized of the definition of "disability." In particular, the assessment and reasonable accommodation required by amendment requires that an impairment that substan- the ADA.)333 tially limits one major life activity need not do so for A number of circuit courts have held that a request other major life activities to be considered a disability for a medical exam to determine whether an employee and that the ameliorative effects of mitigating meas- is able to perform a particular job does not in and of ures (except ordinary eyeglasses and contact lenses) itself establish that the employer regarded the em- should not be taken into account in determining ployee as disabled under the ADA.334 In Tice, the em- whether an impairment substantially limits activities. ployee's back was injured in a non-work-related inci- The change in the standard for "regarded as" means dent. After scheduling and then canceling back surgery, that an employee no longer has to establish that the the employee submitted a return-to-work certificate employer views the impairment as being within the from a back surgeon. The certificate did not address the definition of disabled under the ADA, a substantial low- safety of Tice's return to work. The transit agency re- ering of the plaintiff's burden. However, the ADAAA quired an independent medical exam (IME). The em- specifies that such an individual is not entitled to rea- ployee claimed that requiring the IME violated the sonable accommodation under the ADA, thus resolving ADA, arguing that the transit agency should have re- a split among the circuit courts of appeals.338 In addi- lied on the return-to-work letter from his doctor. The court found ample evidence for the transit agency to be (b) PURPOSES.--The purposes of this Act are-- concerned about the employee's fitness, due to his own (1) to carry out the ADA's objectives of providing "a clear and complaints about pain and complaints from others comprehensive national mandate for the elimination of dis- about his driving, apparently arising from leg spasms. crimination" and "clear, strong, consistent, enforceable stan- The court also found that there was ample evidence dards addressing discrimination" by reinstating a broad scope of justifying the decision not to rely exclusively on the protection to be available under the ADA; employee's doctor, including a statement from the doc- (2) to reject the requirement enunciated by the Supreme tor that he was relying on the employee's assessment Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) that he could drive safely, so that requiring the IME to and its companion cases that whether an impairment substan- tially limits a major life activity is to be determined with refer- ensure the safety of the agency's passengers was consis- ence to the ameliorative effects of mitigating measures; 335 tent with business necessity. (3) to reject the Supreme Court's reasoning in Sutton v. Takeaway: Courts may allow a transit agency to re- United Air Lines, Inc., 527 U.S. 471 (1999) with regard to cover- quire an IME based on objective concerns, such as con- age under the third prong of the definition of disability and to cerns raised by the employee's complaints about pain reinstate the reasoning of the Supreme Court in School Board of and complaints from others about the employee's per- Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under formance. the Rehabilitation Act of 1973; ADA Amendments Act of 2008 (ADAAA).336--In large (4) to reject the standards enunciated by the Supreme Court part in reaction to those Supreme Court cases interpret- in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 ing the ADA restrictively, the scope of covered disabili- U.S. 184 (2002), that the terms "substantially" and "major" in ties was substantially increased by enactment of the the definition of disability under the ADA "need to be inter- ADAAA. The ADAAA specifically rejected the holdings preted strictly to create a demanding standard for qualifying as in Sutton and its companion cases and in Toyota Motor disabled," and that to be substantially limited in performing a 337 major life activity under the ADA "an individual must have an Manufacturing. In its substantive provisions, the impairment that prevents or severely restricts the individual from doing activities that are of central importance to most peo- 332 Warmsley v. N.Y. City Transit Auth., 308 F. Supp. 2d ple's daily lives"; 114, 120 (E.D.N.Y. 2003). (5) to convey congressional intent that the standard created 333 Id. at 122, citing Equal Employment Opportunity by the Supreme Court in the case of Toyota Motor Manufactur- Comm'n v. Yellow Freight System, Inc., No. 98 CIV 2270, 2002 ing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for "sub- U.S. Dist. LEXIS 16826, at 20 (S.D.N.Y. Sept. 9, 2002); stantially limits," and applied by lower courts in numerous deci- sions, has created an inappropriately high level of limitation McGregor v. Nat'l R.R. Passenger Corp., 187 F.3d 1113, 1116 necessary to obtain coverage under the ADA, to convey that it is (9th Cir. 1999); Beveridge v. Nw. Airlines, Inc., 259 F. Supp. 2d the intent of Congress that the primary object of attention in 838, 848 (D. Minn. 2003); Allen v. Pac. Bell, 212 F. Supp. 2d cases brought under the ADA should be whether entities cov- 1180, 1196 (C.D. Cal. 2002); Hasbrouck v. Youth Servs. Int'l, ered under the ADA have complied with their obligations, and to Inc., No. C01-3050, 2002 U.S. Dist. LEXIS 15486, at 2, n.3 convey that the question of whether an individual's impairment (N.D. Iowa Aug. 19, 2002); Norris v. Allied-Sysco Food Servs., is a disability under the ADA should not demand extensive Inc., 948 F. Supp. 1418, 1437 (N.D. Cal. 1996); Heise v. Genu- analysis; and ine Parts Co., 900 F. Supp. 1137, 1154 n.10 (D. Minn. 1995). (6) to express Congress' expectation that the Equal Employ- 334 Tice v. Centre Area Transp. Auth., 247 F.3d 506 (3d Cir. ment Opportunity Commission will revise that portion of its 2001). current regulations that defines the term "substantially limits" 335 as ``significantly restricted'' to be consistent with this Act, in- Id. at 517-- -18. cluding the amendments made by this Act. 336 110 Pub. L. No. 325, 122 Stat. 3553 (2008). 338 Cf., Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232 337 Section 2 of the ADAAA provides: (9th Cir. 2003) (not required); Weber v. Strippit, Inc., 186 F.3d

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39 tion, the ADAAA specified rules of construction for the amended the statute to require that an employer may definition of "disability," requiring construction in favor not use uncorrected vision as a standard unless such of broad coverage and providing specific rules concern- use is shown to be job-related for the position in ques- ing how to determine whether an impairment substan- tion and consistent with business necessity.340 Finally, tially limits a major activity of life.339 The ADAAA also the ADAAA provides that the ADA shall not provide any basis for an individual without a disability to claim that the individual was discriminated against because of the lack of disability. The Act specifically authorizes 907, 916 (8th Cir. 1999) (not required); Workman v. Frito-Lay, the EEOC, the Attorney General, and USDOT to issue Inc., 165 F.3d 460, 467 (6th Cir. 1999) (not required); Newberry regulations interpreting the definition of disability un- v. E. Tex. State Univ., 161 F.3d 276, 280 (5th Cir. 1998) (not der the ADA. The EEOC regulations have been pro- required) and Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) (required); Williams v. Phila. Housing, 380 F.3d 751 (3d Cir. posed but not finalized.341 2004) (required); D'Angelo v. ConAgra Foods, Inc., 422 F.3d Takeaway: Cases relying on Sutton and Toyota Mo- 1220, 1240 (11th Cir. 2005) (required); Kelly v. Metallics West, tor Manufacturing to find a plaintiff not disabled under Inc., 410 F.3d 670, 675 (10th Cir. 2005) (required). The ques- the ADA may no longer be persuasive authority. Plain- tion has not been settled in the Fourth Circuit. Wilson v. Phoe- tiffs asserting "regarded as" claims may be more suc- nix Specialty Mfg. Co., Inc., 513 F.3d 378 (4th Cir. 2008); cessful than before enactment of the ADAAA. The Bateman v. Am. Airlines, Inc., 614 F. Supp. 2d 660 (E.D. Va. amendment on uncorrected vision could affect how 2009). courts review an employer's use of standards in excess 339 Section 4 of 110 Pub. L. No. 325 amended 3 of the ADA of federal standards. by amending it to cover only the definition of disability and Physiological Cause v. Mere Physical Characteris- adding the following three paragraphs following the main defi- tic.--An important issue not changed by the ADAA is nition in paragraph (1): when a physical characteristic can constitute an im- (2) Major life activities.-- pairment. EEOC guidance provides that "impairment" (A) In general.--For purposes of paragraph (1), major life ac- under the ADA "does not include physical characteris- tivities include, but are not limited to, caring for oneself, per- tics such as eye color, hair color, lefthandedness, or forming manual tasks, seeing, hearing, eating, sleeping, walk- ing, standing, lifting, bending, speaking, breathing, learning, height, weight or muscle tone that are within `normal' reading, concentrating, thinking, communicating, and working. (B) Major bodily functions.--For purposes of paragraph (1), a (I) medication, medical supplies, equipment, or appliances, major life activity also includes the operation of a major bodily low-vision devices (which do not include ordinary eyeglasses or function, including but not limited to, functions of the immune contact lenses), prosthetics including limbs and devices, hearing system, normal cell growth, digestive, bowel, bladder, neurologi- aids and cochlear implants or other implantable hearing de- cal, brain, respiratory, circulatory, endocrine, and reproductive vices, mobility devices, or oxygen therapy equipment and sup- functions. plies; (3) Regarded as having such an impairment.--For purposes (II) use of assistive technology; of paragraph (1)(C): (III) reasonable accommodations or auxiliary aids or services; (A) An individual meets the requirement of "being regarded or as having such an impairment" if the individual establishes that (IV) learned behavioral or adaptive neurological modifica- he or she has been subjected to an action prohibited under this tions. Act because of an actual or perceived physical or mental im- pairment whether or not the impairment limits or is perceived (ii) The ameliorative effects of the mitigating measures of or- to limit a major life activity. dinary eyeglasses or contact lenses shall be considered in de- termining whether an impairment substantially limits a major (B) Paragraph (1)(C) shall not apply to impairments that are life activity. transitory and minor. A transitory impairment is an impair- ment with an actual or expected duration of 6 months or less. (iii) As used in this subparagraph-- (4) Rules of construction regarding the definition of disabil- (I) the term "ordinary eyeglasses or contact lenses" means ity.--The definition of "disability" in paragraph (1) shall be con- lenses that are intended to fully correct visual acuity or elimi- strued in accordance with the following: nate refractive error; and (A) The definition of disability in this Act shall be construed (II) the term "low-vision devices" means devices that magnify, in favor of broad coverage of individuals under this Act, to the enhance, or otherwise augment a visual image. 340 maximum extent permitted by the terms of this Act. 110 Pub. L. No. 325, 5, amending 42 U.S.C. 12113. (B) The term "substantially limits" shall be interpreted con- Section 5 also amends the general rule on discrimination under sistently with the findings and purposes of the ADA Amend- Title I of the ADA by changing the prohibition on discriminat- ments Act of 2008. ing against "a qualified individual with a disability because of (C) An impairment that substantially limits one major life ac- the disability of such individual" to prohibiting discrimination tivity need not limit other major life activities in order to be con- against "a qualified individual on the basis of disability." A sidered a disability. corresponding change is made to definition (8) under Title I by (D) An impairment that is episodic or in remission is a dis- deleting the phrase "with a disability" each time it appears in ability if it would substantially limit a major life activity when the definition. 341 active. Equal Employment Opportunity Commission (EEOC), 29 (E)(i) The determination of whether an impairment substan- C.F.R. Part 1630, Notice of proposed rulemaking, 74 Fed. Reg. tially limits a major life activity shall be made without regard to 48431, Sept. 23, 2009, http://edocket.access.gpo.gov/2009/ the ameliorative effects of mitigating measures such as-- pdf/E9-22840.pdf.

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40 range and are not the result of a physiological disor- Takeaway: Merely being overweight, however se- der."342 Courts have focused on the phrase "physiological verely, is not a disability under the ADA. However, the disorder," holding that a mere physical characteristic change in the definition of "regarded as" under the such as weight does not constitute an impairment un- ADAAA could affect the outcomes of claims of being der the ADA.343 In Andrews, a group of Ohio police offi- regarded as being disabled due to being overweight. cers challenged weight limits and fitness requirements, including strength and cardio-respiratory endurance 3. Elements of Claim and Defenses criteria, as discriminatory under the ADA and the Re- Prima Facie Case.--The employee bears the burden habilitation Act of 1973, arguing that the requirements of establishing a prima facie case of discrimination un- were not job-related or consistent with business neces- der the ADA. The employee does so by showing that the sity.344 The Sixth Circuit noted that fitness and medical employer is subject to the ADA; the employee is a per- criteria are closely related to an individual's ability to son with a disability within the meaning of the ADA (or perform certain law enforcement jobs, but that the is regarded as having such disability); the employee determination of whether specific criteria are job- was otherwise qualified to perform the essential func- related or consistent with business necessity can only tions of the job, with or without reasonable accommoda- be made based on specific facts, not as a matter of law. tion; and the employee suffered adverse employment In any event, the court held that the mere action because of the disability.348 An employment stan- characteristic of being overweight was not an impair- dard that focuses directly on an individual's disability ment under the ADA or Rehabilitation Act.345 or potentially disabling condition, such as requiring an Accordingly, even morbid obesity--that is body individual to be "100 percent healed" after an injury, is weight more than 100 percent over normal--can be con- 349 facially discriminatory. While it is the EEOC's posi- sidered a disability only when caused by a physiological tion that an employee need not demonstrate the exis- 346 condition. In Watkins the Sixth Circuit rejected the tence of disability to challenge an employment practice EEOC's argument that morbid obesity should be con- requiring medical exams or inquiries in violation of 42 sidered an impairment regardless of the cause. How- U.S.C. 12112(d)(4)(a),350 and several circuits have ever, where the ADA status of an employee's obesity is 351 agreed, some courts have required a showing of dis- not in question, a suggestion that an employer dispar- ability to challenge disability-related inquiries and aged an employee because of the employee's weight does medical examinations.352 not rise to a showing of perceiving an employee's ability Determining whether an individual is qualified un- to work being impaired because of disability.347 der the ADA to perform essential functions of the job requires determining that the individual has "the req- 342 29 C.F.R. 1630.2(h) (Appendix). uisite skill, experience, education and other job-related 343 Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997). requirements of the employment position...and...with 344 Id. or without reasonable accommodation, can perform the 345 See also Dale v. Wynne, 497 F. Supp. 2d 1337 (M.D. Ala. essential functions" of the position in question.353 The 2007) (holding obesity not caused by physiological factor is not plaintiff bears the burden of proving that he or she is disability under Rehabilitation Act). qualified to perform the essential job functions, but if 346 EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th the employer disputes that ability, the employer must Cir. 2006); Ivey v. District of Columbia, 949 A.2d 607, 613, n.3 present evidence establishing the functions in ques- (D.C. App. 2008), citing Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997) (holding that "obesity, except in special 348 Alston v. Wash. Metro. Area Transit Auth., 571 F. Supp. cases where the obesity relates to a physiological disorder, is 2d 77, 81 (D.D.C. 2008). not a `physical impairment' within the meaning of the [ADA]"); 349 McGregor v. Nat'l R.R. Passenger Corp., 187 F.3d 1113, Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir. 1997) (holding, in 1116 (9th Cir. 1999). the context of obesity, that "physical characteristics that are 350 `not the result of a physiological disorder' are not considered EEOC, Enforcement Guidance: Disability-Related Inquir- `impairments' for the purposes of determining either actual or ies and Medical Examinations of Employees Under the Ameri- perceived disability" (quoting 29 C.F.R. 1630.2(h) (App. cans with Disabilities Act, No. 915-002 (July 27, 2000), 1995))); Cook v. State of R.I., Dep't of Mental Health, Retarda- www.eeoc.gov/policy/docs/guidance-inquiries.html. 351 tion, & Hosps., 10 F.3d 17, 23 (1st Cir. 1993) (obesity is an Conroy v. N.Y. State Dep't of Correctional Servs., 333 impairment when expert testimony established that the plain- F.3d 88, 94-- -95 (2d Cir. 2003); Cossette v. Minn. Power & tiff had "a physiological disorder involving a dysfunction of Light, 188 F.3d 964, 969-- -70 (8th Cir. 1999); Fredenburg v. both the metabolic system and the neurological appetite- Contra Costa County Dep't of Health Services, 172 F.3d 1176, suppressing signal system"); Merker v. Miami-Dade County 1182 (9th Cir. 1999); Roe v. Cheyenne Mountain Conference Fla., 485 F. Supp. 2d 1349, 1353 (S.D. Fla. 2007) ("[O]besity is Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997); Griffin v. not a qualifying impairment, or disability, unless it is shown to Steeltek, Inc., 160 F.3d 591, 595 (10th Cir. 1998). Murdock v. be the result of a physiological disorder."); Fredregill v. Na- Washington, 193 F.3d 510, 512 (7th Cir. 1999) (dicta). 352 tionwide Agribusiness Ins. Co., 992 F. Supp. 1082, 1089 (S.D. E.g., Armstrong v. Turner Indust., Inc., 141 F.3d 554, 558 Iowa 1997) (holding that obesity "must relate to a physiological (5th Cir. 1998); Hunter v. Habegger Corp., 1998 U.S. App. disorder or condition to meet the statutory definition of disabil- LEXIS 4167 (7th Cir. 1998). ity"). 353 See 29 C.F.R 1630.2(m), http://edocket.access.gpo.gov 347 Ivey, 949 A.2d 607. cfr_2009/julqtr/pdf/29cfr1630.2.pdf.

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41 tion.354 This element of the claim is only reached if the the colors of traffic signals is an essential function of plaintiff is able to establish disability under the ADA. being an NYCT bus driver. The court held that the abil- Defining Essential Functions.--Essential functions ity should be judged from evidence at the time the em- of the job means fundamental job duties, not including ployee was constructively fired, and that the employee's marginal functions.355 While courts look to job descrip- eye tests showing distinct color vision abnormality and tions in determining what constitutes essential job a diagnosis of red/green deficiency were sufficient to functions, such descriptions are not conclusive as to establish lack of ability to distinguish the colors of traf- what constitutes an essential job function, as an em- fic signals. In determining that such ability was an es- ployer cannot make every element of a job "essential" sential function of the job, the court looked to the em- merely by incorporating it into the job description.356 ployer's job description, which prohibited certifying bus Moreover, the employer's good faith judgment as to drivers with red, green, and amber color blindness what constitutes an essential function is not dispositive based on New York State law. The court rejected the 357 when not supported by other factors. Determination employee's argument that the availability of a waiver of what constitutes an "essential job function" is a jury from the color-blindness standard meant that color vi- question, and one that an appellate court may thus de- sion was not an essential element of the job. The court cline to rule on even if it appears the court finds a func- reviewed the state and federal regulations and con- tion not to be essential.358 cluded that there appeared to be no waiver from the The Second Circuit held in Shannon v. New York federal standard. Moreover, the court held that even if City Transit Authority359 that the ability to distinguish the regulations did allow a color-blind driver to drive a bus, it was within the transit agency's discretion to en- 354 Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. force a higher standard: 1995); Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, A NYCTA bus driver guides a vehicle weighing thirteen 35 (1st Cir. 2000); EEOC v. Wal-Mart Stores, Inc., 477 F.3d tons and carrying up to 70 passengers, works eight hour 561, 568 (8th Cir. 2007). shifts in all kinds of weather, and is required to spot traf- 355 29 C.F.R. 1630.2(n)(1), http://edocket.access.gpo.gov/cfr fic hazards from all directions and from a distance. Color _2009/julqtr/pdf/29cfr1630.2.pdf. The regulation provides that differentiation is a qualification that NYCTA may prop- the reasons a function may be considered essential include: erly deem essential for driving a bus because it conduces (i) The function may be essential because the reason the posi- to the safety of passengers and because it serves to limit tion exists is to perform that function; NYCTA's tort liability in situations where color-blindness (ii) The function may be essential because of the limited might cause an accident as well as where it may be al- 360 number of employees available among whom the performance of leged to have done so. that job function can be distributed; and/or The court did not see any greater duty to accommo- (iii) The function may be highly specialized so that the in- date under either the New York State or New York City cumbent in the position is hired for his or her expertise or abil- human rights laws than under the federal statute. In a ity to perform the particular function. case dealing with a related matter, a district court also 29 C.F.R. 1630.2(n)(2). Evidence of whether a function is es- upheld the NYCT's requirement that bus operators sential includes: have 20/40 visual acuity.361 (i) The employer's judgment as to which functions are essen- Relying in part on Shannon, a New York district tial; court upheld NYCT's ability to change its policy con- (ii) Written job descriptions prepared before advertising or in- cerning medically-restricted train operators. The terviewing applicants for the job; agency changed the policy from allowing medically- (iii) The amount of time spent on the job performing the func- restricted employees to operate trains only in the yard tion; to no longer employing train operators with yard only (iv) The consequences of not requiring the incumbent to per- or no mainline restrictions.362 As a result, a hearing- form the function; impaired employee was no longer permitted to work as (v) The terms of a collective bargaining agreement; a train operator. The court found there was no evidence (vi) The work experience of past incumbents in the job; and/or that the safety-related change was a pretext for dis- (vii) The current work experience of incumbents in similar crimination. jobs. United Parcel Service (UPS) has argued that meet- 29 C.F.R. 1630.2(n)(3). ing the USDOT hearing requirements for a CDL is an 356 Rohr v. Salt River Project Agric. Improvement & Power essential function of the job of being a UPS driver, even Dist., 555 F.3d 850, 864 (9th Cir. 2009). for vehicles for which DOT certification is not re- 363 357 Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 25 quired. The Bates district court had held that UPS (1st Cir. 2002). 360 358 See Turner v. Hershey Chocolate U.S.A., 440 F.3d 604 Id. at 103 (citation omitted). 361 (3d Cir. 2006) (reviewing the job function in question against Gurley v. N.Y. City Transit Auth., 2003 U.S. Dist. LEXIS the factors of 29 C.F.R. 1630.2(n)(3) and finding that five of 21844 (E.D.N.Y. 2003). seven factors pointed in the direction of finding the disputed 362 Gaines v. N.Y. City Transit Auth., 528 F. Supp. 2d 135 function was not essential, but ruling that the question was (E.D.N.Y. 2007). one for a jury). 363 Bates v. UPS, Inc., 511 F.3d 974 (9th Cir. 2007). UPS 359 332 F.3d 95 (2d Cir. 2003). imposed the Federal CDL standard for hearing on all of its

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42 failed to demonstrate that a USDOT certification was A Tennessee district court found that UPS had ar- an essential job function, and the Ninth Circuit held ticulated a legitimate business necessity justifying the that was not clearly erroneous.364 The appellate court requirement that a driver be certified by a UPS- also held that while the employer bore the burden of authorized physician.369 In that case, the plaintiff had showing a nexus between its hearing standard and received a USDOT certification from his own physician safety, the plaintiffs first bore the burden of showing even though he had already failed the CDL vision test that they were able to safely drive the vehicles at issue. due to his documented legal blindness in one eye and The court noted that when an employer chooses a stan- had been denied a waiver by USDOT. On the other dard that exceeds minimum legal requirements and hand, if an employer relies on a refusal to issue a that screens out individuals with a disability, the em- USDOT medical certificate that the employer knows or ployer bears the burden of establishing job-relatedness should have known was not warranted, the employer and business necessity.365 may be liable for the resultant violation of the ADA.370 The Ninth Circuit also rejected an ADA challenge to In Texas Bus Lines, the examining physician had re- UPS's requirements that all drivers meet Federal CDL fused to issue the plaintiff a USDOT medical certificate vision requirements, regardless of vehicle size.366 That based on his observation that "she had difficulty getting holding was based on a pre-ADAAA analysis of what out of her seat in the waiting area, and that she `wad- constitutes a disability under the ADA. Future litiga- dled' slowly to the examining room,"371 so that the phy- tion will determine whether various physical require- sician noted that she could not move swiftly in the case ments that are more restrictive than FMCSA CDL re- of an accident and did not meet DOT requirements. quirements will be upheld under the new definition of Neither of the job interviewers had observed any diffi- 367 disability under the ADA. A different conclusion as to culties in movement on the part of the plaintiff. The some of the EEOC v. UPS plaintiffs was reached under district court found that the plaintiff was denied the state law claims.368 medical certificate based on the employer and physi- cian's perceived and mistaken belief that the plaintiff was disabled due to her obesity. The court also found that the employer was familiar enough with the drivers, regardless of vehicle weight, even though the federal USDOT requirements not to have relied on the physi- standard does not apply to vehicles not exceeding a gross vehi- cian's erroneous and subjective opinion regarding the cle weight rating (GVWR) of 10,000 lbs. 364 plaintiff's physical qualifications. Id. at 991. Where the plaintiff's claim that he can per- Another potential issue regarding essential functions form essential job functions is in dispute, both the Eighth and is whether the ability to work an entire 8-hour shift is Ninth Circuits require that the employer asserting such a an essential function of a bus driver's job. In a case claim must produce evidence establishing those functions. Id. at 990-- -91, citing EEOC v. Wal-Mart, 477 F.3d 561, 568 (8th where a bus driver with a disability that prevented him Cir. 2007). from driving a full 8-hour shift had requested a split- 365 The court noted: shift accommodation, the Oregon District Court held that there was a genuine issue of material fact as to By requiring UPS to justify the hearing test under the busi- ness necessity defense, but also requiring plaintiffs to show that whether "continuous driving for eight hours is an essen- they can perform the essential functions of the job, we are not tial function of the job."372 saying, nor does the ADA require, that employers must hire em- Establishing Reasonable Accommodation.--The ployees who cannot safely perform the job, particularly where prima facie case requires the employee to be able to safety itself is an essential function. Nor are we saying that an perform essential job functions with or without reason- employer can never impose a safety standard that exceeds minimum requirements imposed by law. However, when an em- able accommodation. Where accommodation is required, ployer asserts a blanket safety-based qualification standard-- what constitutes reasonable accommodation may be- beyond the essential job function--that is not mandated by law come an issue. Reasonable accommodation under the and that qualification standard screens out or tends to screen ADA may include "job restructuring, part-time or modi- out an individual with a disability, the employer--not the em- ployee--bears the burden of showing that the higher qualifica- fied work schedules, reassignment to a vacant position, tion standard is job-related and consistent with business neces- acquisition or modification of equipment or devices, sity, and that performance cannot be achieved through appropriate adjustment or modifications of examina- reasonable accommodation. tions, training materials or policies, the provision of Id. at 992-- -93. qualified readers or interpreters, and other similar ac- 366 373 EEOC v. United Parcel Serv., Inc., 306 F.3d 794 (9th Cir. commodations for individuals with disabilities." 2002) (holding monocular job applicants not disabled under the ADA, and therefore not reaching the issue of whether UPS 369 prohibition against monocular drivers of vehicles not subject to Broadway v. United Parcel Serv., Inc., 499 F. Supp. 2d FMCSA regulations was discriminatory). 992 (M.D. Tenn. 2007). 370 367 See Rohr v. Salt River Project Agric. Improvement & EEOC v. Tex. Bus Lines, 923 F. Supp. 965 (S.D. Tex. Power Dist., 555 F.3d 850, 853, 861-62 (9th Cir. 2009) (noting 1996). 371 expansion under ADAAA of class of individuals protected un- Id. at 967. 372 der ADA). Simmons v. Lane Transit Dist., 2006 U.S. Dist. LEXIS 368 EEOC v. United Parcel Serv., Inc., 424 F.3d 1060 (9th 22289 (D. Or. 2006). 373 Cir. 2005). 42 U.S.C. 12111(9)(B).

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43 The employee must identify a reasonable accommo- signment position."379 Thus the plaintiff must show that dation, going beyond mere speculation.374 The burden is there was in fact a vacancy and that the plaintiff was to show that the accommodation seems reasonable "on qualified--if not the most qualified candidate--to fill its face, i.e., ordinarily or in the run of cases."375 Rea- the vacancy.380 The circuits are split on the question of sonable accommodation cannot involve eliminating an whether the ADA and the Rehabilitation Act require an 376 essential job function. The employer is never required employer to reassign a disabled employee to a vacant to reallocate essential job functions as a reasonable ac- position when there are more-qualified candidates for commodation, but may do so voluntarily. An employer that position.381 The Supreme Court had granted certio- is not required to lower production standards uniformly rari for Huber, but withdrew the writ when the case applied to all employees, but may do so voluntarily. settled.382 The Supreme Court has held that it is not However, reasonable accommodation to allow an em- reasonable to reassign an employee with a disability in 383 ployee with a disability to meet production standards violation of a seniority system. may be required. Where there are two or more effective When an employee remains disabled following the accommodations, the employer has the discretion to expiration of workers' compensation leave, the employer choose between them. should consider reasonable accommodation rather than A "100 percent healed" policy is a per se violation of automatically terminating the employee.384 the ADA because such a policy substitutes a blanket Employer's Affirmative Defenses.--The employer prohibition for the required individual assessment of bears the burden of defending the decision not to adopt whether an individual can perform the essential func- the employee's identified accommodation.385 The EEOC tions of his or her job either with or without accommo- has found that compliance with OSHA standards is dation.377 irrelevant to determining whether the employer's ac- The Second Circuit has held that that there must be commodation is reasonable, as those standards do not a causal link between the specific condition that limits a take an individual's specific medical needs into consid- 386 major life activity and the reasonable accommodation eration. Limitations on the duty of reasonable ac- required, so that merely because an individual has a disability under the ADA, the employer need not ac- commodate another impairment resulting from the 379 Alston v. Wash. Metro. Area Transit Auth., 571 F. Supp. same cause as the ADA disability, if the second im- 2d 77, 82 (D.D.C. 2008), citing Smith v. Midland Brake, Inc., pairment is not itself a disability under the ADA. The 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc). court recognized, however, that adverse effects of dis- 380 Id. at 84, citing McCreary v. Libbey-Owens-Ford Co., 132 abilities or side effects from medical treatment of dis- F.3d 1159, 1165 (7th Cir. 1997). abilities arise because of the disability and thus require 381 Cf. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. accommodation.378 1998) (en banc) (reassign must mean more than allowing to Once an employee requests reassignment as an ac- compete with everyone else); Smith v. Midland Brake Inc., 180 commodation, the employer must engage with the em- F.3d 1154 (10th Cir. 1999) (reassignment obligation means ployee to determine if there is a job that the employee more than merely allowing disabled employee to compete for can perform with the employee's limitations. To prevail vacant position); with EEOC v. Humiston-Keeling, Inc., 227 on the claim that reasonable accommodation was possi- F.3d 1024 (7th Cir. 2000), reassignment obligation does not require employer to turn away more qualified applicant); ble, the employee must show that "a reasonable accom- Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007) modation was possible and would have led to a reas- (ADA does not require employer to reassign qualified disabled employee to vacant position when such a reassignment would violate legitimate nondiscriminatory policy of employer to hire 374 Jackan and United States v. NYS Dep't of Labor, 205 most qualified candidate). 382 F.3d 562, 566-- -67 (2d Cir. 2000) citing Aka v. Wash. Hosp. Ctr., Greg Stohr, Wal-Mart, Worker Cancel High Court Clash, 156 F.3d 1284, 1304 n.27 (D.C. Cir. 1998) (en banc), Stewart v. Settle Case, Bloomberg, Jan. 14, 2008, Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286 www.bloomberg.com/apps/news?pid=20601087&sid=aypIB8Os (11th Cir. 1997), Mengine v. Runyon, 114 F.3d 415, 420 (3d gv5E&refer=home (accessed Nov. 8, 2009). Cir. 1997); Willis v. Conopco, Inc., 108 F.3d 282 (11th Cir. 383 US Airways, Inc., v. Barnett, 535 U.S. 391, 122 S. Ct. 1997). 1516, 152 L. Ed. 2d 589 (2002). 375 US Airways, Inc., v. Barnett, 535 U.S. 391, 401, 122 S. 384 EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. Ct. 1516, 1526, 152 L. Ed. 2d 589, 602 (2002). Sears agreed to a $6.2 million consent decree and remedial 376 Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 100 (2d relief. Sears, Roebuck to Pay $6.2 Million for Disability Bias, Cir. 2003). EEOC Press Release, Sept. 29, 2009, http://archive.eeoc.gov/ 377 McGregor v. Nat'l R.R. Passenger Corp., 187 F.3d 1113, press/9-29-09.html (accessed Dec. 3, 2009). 385 1116 (9th Cir. 1999). E.g., Turner v. Hershey Chocolate USA, 440 F.3d 604, 378 Felix v. N.Y. City Transit Auth., 324 F.3d 102 (2d Cir. 614 (3d Cir. 2006) (employer bears burden of establishing af- 2003) (request for nonsubway assignment not causally con- firmative defense of undue hardship). 386 nected to disability of insomnia; fact that inability to work in Iftikar-Khan v. U.S. Postal Serv., EEOC Appeal No. subway due to anxiety caused by same incident as caused in- 07A40137 (Dec. 15, 2005), XVII DIGEST OF EQUAL EM- somnia not sufficient to create requirement to accommodate PLOYMENT OPPORTUNITY LAW (Winter Quarter 2006), inability to work in subway). www.eeoc.gov/federal/digest/xvii-1.cfm.

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44 commodation include imposition of "undue hardship,"387 such an employee to an equivalent vacant position.394 If direct threat--discussed infra--or conflict with senior- an OSHA standard in fact requires removing a person ity rules.388 Undue hardship refers "not only to financial with a disability from a job for health and safety rea- difficulty, but to reasonable accommodations that are sons, no direct threat analysis under ADA is required.395 unduly extensive, substantial, or disruptive, or those Even so, OSHA standards do not eliminate otherwise that would fundamentally alter the nature or operation applicable requirements to provide reasonable accom- of the business."389 modation. For example, an employee identified by an Employer's Defense to Prima Facie Case.--If the em- OSHA test as having hearing loss due to loud equip- ployee establishes a prima facie case, the employer ment could possibly be accommodated with sound must show that the employment practice is job-related abatement equipment. and consistent with business necessity (or in the case of Where OSHA standards permit but do not require an allegation of disparate treatment, articulate a le- the employment practice alleged to be discriminatory, gitimate nondiscriminatory reason for its actions). In the employer must provide justification for an employ- the case of making a disability-related inquiry or re- ment practice that may tend to exclude individuals with quiring a medical examination for an incumbent em- a disability.396 Rohr involved the ADA claim of a welding ployee, the employer may meet this burden by demon- metallurgy specialist with Type 2 diabetes who was strating that the employer has a reasonable belief, terminated in part because of his failure to renew his based on objective evidence, that either the employee's respiratory medical certification. The employer's Health ability to perform essential job functions is impaired by Services Department refused to administer the required a medical condition or the employee poses a direct breathilator test due to the plaintiff's high blood pres- threat due to a medical condition. sure, which was related to his diabetes. The employer Courts have recognized safety as a legitimate busi- argued that even if the test screened out an individual ness justification for an employment practice that may with a disability, the respirator certification test was a have disparate impact on individuals with a disability. business necessity because the test was required by the The Eleventh Circuit held that safety concerns about OSHA respirator standard. However, the Ninth Circuit beards interfering with firefighter respirators defeated found the respirator standard to be sufficiently broad as a claim that the no-beard rule discriminated against to require the employer to demonstrate the necessity of plaintiffs as handicapped individuals under Section 504 either the particular breathilator test used or the ab- of the Rehabilitation Act.390 sence of an alternative method for individuals with high Where OSHA standards require medical examina- blood pressure as a reasonable accommodation. In addi- tions or medical inquiries, such exams and inquiries do tion the court found that the employer had failed to not violate the ADA.391 To the extent that OSHA stan- demonstrate that there was even a possibility that the dards set nondiscretionary physical requirements, those plaintiff would be required to use a respirator, and thus standards may form the basis for an "other federal had failed to demonstrate job-relatedness. laws" defense to challenges to employment practices that exclude or tend to seclude individuals with a dis- 4. Direct Threat Defense397 ability.392 For example, if OSHA requires the employees The ADA provides that an employer may defend in a specific job to wear a respirator, an employee who against an ADA claim of discrimination by showing that cannot wear a respirator because of a disability is not an individual's disability poses "a direct threat to the 393 qualified for that job. Depending on the facts, the health or safety of other individuals in the work- ADA may require that the agency consider transferring 398 place." The EEOC, in its implementing regulations, expanded the scope of the defense by providing that an 387 29 C.F.R. 1630.2(p), http://edocket.access.gpo.gov/cfr_ employer could show that the employee's health condi- 2009/julqtr/pdf/29cfr1630.2.pdf. 388 Barnett, 535 U.S. 391. 394 389 Enforcement Guidance: Reasonable Accommodation and Susanne M. Bruyere, Occupational Safety and Health Undue Hardship Under the Americans with Disabilities Act, and Disability Nondiscrimination in the Workplace: Complying n.17, citing 42 U.S.C. 12111(10), 29 C.F.R. 1630.2(p); 29 with Dual Requirements, Employment and Disability Institute, C.F.R. pt. 1630 App. 1630.2(p), www.eeoc.gov/policy/docs/ Employment and Disability Institute Collection, June 2002, at accommodation.html. 4, http://digitalcommons.ilr.cornell.edu/cgi/view 390 Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1125-- -1127 content.cgi?article=1035&context=edicollect. 395 (11th Cir. 1993). Id. See II.B.3, Direct Threat Defense, infra this digest. 396 391 Questions And Answers: Enforcement Guidance On Dis- Rohr v. Salt River Project Agric. Improvement & Power ability-Related Inquiries and Medical Examinations of Em- Dist., 555 F.3d 850, 862-- -63 (9th Cir. 2009). 397 ployees Under the Americans With Disabilities Act (ADA), Ann Hubbard, Understanding and Implementing the www.eeoc.gov/policy/docs/qanda-inquiries.html, Question 21. ADA's Direct Threat Defense, 95 NW. U. L. REV. 1279 (2001); 392 29 C.F.R. 1630.15(e). Andrews & Risher, supra note 31, at 22. 398 393 See The Americans With Disabilities Act: Applying Per- 42 U.S.C. 12113(b). "Direct threat" is defined as "a sig- formance and Conduct Standards to Employees With Disabili- nificant risk to the health or safety of others that cannot be ties, Question 23, www.eeoc.gov/facts/performance- eliminated by reasonable accommodation." 42 U.S.C. conduct.html. 12111(3).

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45 tion poses a direct threat to him/herself or others. The dant.405 The Tenth Circuit has similarly held that in the Supreme Court upheld the regulation in Chevron public safety arena, an employer may appropriately U.S.A. Inc. v. Echazabal.399 The Court engaged in exten- make not posing a threat to the safety of self or others sive statutory construction analysis in finding the part of the job qualifications standard, with the burden regulation did not exceed the statutory scope. Part of of proof resting with the plaintiff.406 the Court's analysis focused on the fact that exposing Merely asserting a safety rationale for a practice an employee with a liver condition to toxic chemicals does not establish that allowing a deviation to provide would risk violating OSHA, specifically the requirement accommodation under the ADA would constitute a di- to furnish working conditions free from recognized haz- rect threat.407 For example, theoretical concerns about a ards.400 bus driver's abilities to respond in an accident due to The factors to be considered in evaluating the exis- the driver's weight are not sufficient to establish a di- 408 tence of a direct threat include duration of the risk, na- rect threat defense. Moreover, employers may not ture and severity of the potential harm, likelihood that speculate about future risks from a perceived disability the potential harm will occur, and imminence of the and deny employment based on that speculation. Thus, potential harm."401 withdrawing an offer of employment after a review of The circuit courts are split over which party bears an applicant's workers' compensation records showed a the burden of proof on the direct threat issue, with history of on-the-job injuries has been held to be a viola- some circuits classifying direct threat as part of the tion of the ADA.409 plaintiff's prima facie case and others regarding it as an 402 affirmative defense. The Eleventh Circuit has held 5. State Law that the employee bears the burden of proof on this is- State law cannot reduce the protection provided un- sue.403 The Second, Fifth, Seventh, Eighth, and Ninth der the ADA, but can increase it. Where the state law is Circuits have held that the defendant bears the burden modeled on the ADA,410 the state court may consider of proof.404 The First Circuit has drawn a distinction federal cases as persuasive authority in interpreting its between jobs involving public safety and those that do own nondiscrimination statute.411 However, where the not, holding that where essential job functions implicate state law is not co-extensive, an individual may be con- safety, the plaintiff bears the burden of establishing sidered disabled under state law even if the individual that he or she can perform them without endangering is not considered disabled under the ADA.412 For exam- others, while where direct threat is a defense not tied to ple, the Ninth Circuit Court of Appeals, which had re- essential job functions the burden rests with the defen- jected a challenge to UPS's vision protocol under the ADA because the plaintiffs were found not to be dis- 399 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82 (2002) (up- held EEOC regulation allowing defense that worker's disability 405 on the job would pose direct threat to his health). See also EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997). 406 Siederbaum v. City of N.Y., 309 F. Supp. 2d 618 (S.D.N.Y. McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004) (em- 2004) (general discussion of direct threat standard). ployer was sheriff's department; employee had appropriately 400 Eschazabal, 536 U.S. at 84, citing 29 U.S.C. 654(a)(1). discharged firearm while off duty). 407 401 29 C.F.R. 1630.2(r), Turner v. Hershey Chocolate USA, 440 F.3d 604, 615 (3d http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1630.2. Cir. 2006). 408 pdf. E.E.O.C. v. Tex. Bus Lines, 923 F. Supp. 965 (S.D. Tex. 402 Rene L. Duncan, The "Direct Threat" Defense Under the 1996). 409 ADA: Posing a Threat to the Protection of Disabled Employees, Garrison v. Baker Hughes Oilfield Operations, Inc., 287 73 MO. L. REV. 1303, 1312 (2008). F.3d 955 (10th Cir. 2002). The court held: 403 Moses v. Am. Nonwovens, Inc., 97 F.3d 446 (11th Cir. The results of a medical inquiry or examination may not be 1996) (per curiam); LaChance v. Duffy's Draft House, Inc., 146 used to disqualify persons who are currently able to perform the F.3d 832, 836 (11th Cir. 1998); Waddell v. Valley Forge Dental essential functions of a job, either with or without an accommo- dation, because of fear or speculation that a disability may indi- Assoc., Inc., 276 F.3d 1275, 1280 (11th Cir. 2001). 404 cate a greater risk of future injury, or absenteeism, or may Second Circuit: Lovejoy-Wilson v. NOCO Motor Fuel, cause future workers' compensation or insurance costs. Inc., 263 F.3d 208, 220 (2d Cir. 2001); Hargrave v. Vermont, Id. at 960. 340 F.3d 27, 35 (2d Cir. 2003). Fifth Circuit: Rizzo v. Chil- 410 dren's World Learning Centers, Inc., 84 F.3d 758 (5th Cir. E.g., Kansas: Bowers v. Bethany Medical Ctr., 959 F. 1996); .Seventh Circuit: U.S. EEOC v. AIC Security Investiga- Supp. 1385 (D. Kan. 1997); Pennsylvania: McCarron v. British tions, Ltd., 55 F.3d 1276, 128384 (7th Cir. 1995); Dadian v. Telecom, 2002 U.S. Dist. LEXIS 15151 (E.D. Pa. 2002). 411 Village of Willmette, 269 F.3d 831, 841 (7th Cir. 2001); Bran- E.g., McDonald v. Dep't of Envtl. Quality, 2009 MT 209, ham v. Snow, 392 F.3d 896, 90607 & n.5 (7th Cir. 2004). 351 Mont. 243 (2009). 412 Eighth Circuit: EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 E.g., Whitney v. Wal-Mart Stores, Inc., 2005 ME 37, 895 (8th Cir. 2007). Ninth Circuit: Nunes v. Wal-Mart Stores, Inc., A.2d 309, 313 (2006) (Maine Human Rights Act definition of 164 F.3d 1243, 1247 (9th Cir. 1999); Hutton v. Elf Atochem "disability" more extensive than that under ADA). See Isidore North America, Inc., 273 F.3d 884, 893 (9th Cir. 2001); Silver, Application of ADA to Drug Dependence and Alcoholism Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1027 (9th Cir. 10.20, 1 PUBLIC EMPLOYEE DISCHARGE AND DISCIPLINE (3d ed 2003). 2001).

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46 abled under the ADA,413 held that the plaintiffs were disability. The mere possibility that a disability may disabled under the California Fair Employment and pose a danger is insufficient.419 Housing Act.414 The difference in the two cases was that While state law may recognize a larger range of con- the requirement for disability under the state law was ditions as protected disabilities than federal law, it may less restrictive than that under the ADA. In particular, also provide for a safety-of-others defense. For example, state discrimination laws relating to disability or the California discrimination statute provides that an handicap may not include the ADA requirement that employer may show that after reasonable accommoda- the condition result in a substantial limitation on a ma- tion, the applicant or employee cannot perform the es- jor life activity.415 sential job functions in a way that would not endanger Similarly, UPS's policy of applying Federal CDL the health or safety of others more than if a person standards to an individual driving a vehicle not covered without that disability performed those functions. Thus, by those standards was held to violate Maine's Human a California court upheld weight restrictions for ambu- Rights Act.416 In Warren, UPS required a Federal CDL lance drivers as supported by a rational basis. The em- certificate to drive a vehicle with a GVW of 10,000 lb or ployer had maintained that "[b]ecause sudden incapaci- less and refused to waive that requirement as a reason- tation of an ambulance driver could be life-threatening, able accommodation to allow an employee with a his- the standards governing this job call for employees who tory of epilepsy to drive such a vehicle. UPS's refusal are not susceptible to injury and who are not over- was not based on an individualized assessment of the weight as this could impair job performance."420 The safety of allowing the particular individual to drive the court found that it was without question an essential vehicle. The court found this policy to violate the Maine function of the job to lift and carry extremely heavy Human Rights Act and ordered that UPS not apply its weights, occasionally on stairs. The employer's expert USDOT certification requirement to a Maine route that witnesses cited studies establishing that being over- does not require USDOT certification under federal law, weight "compromises an emergency worker's strength, when applying that requirement operates to exclude the agility, and ability to lift and climb." Given the nexus plaintiff based on his disability. between safety of ambulance drivers and members of Moreover, burdens of proof under state laws may be the public and the abilities of ambulance drivers who different than those under the ADA. For example, un- are overweight, the standard was reasonable.421 In the der the Maine Human Rights Act--which does not re- case of the California statute, the employer must make quire a showing of substantial limitation on a major life an individualized showing that the defense applies to a activity417--the employer bears the burden of proving particular individual, but categorical evidence may be that the applicant or employee "is unable to perform the used if it provides a sufficiently strong showing that duties or to perform the duties in a manner that would closely matching impairments resulted in disqualifica- not endanger the health or safety of the individual or tion. 418 others." This defense requires an individualized as- State law may allow a supervisory employee to be sessment of the relationship between the specific job held individually liable under the discrimination stat- requirements and the applicant or employee's physical ute. For example, the New Jersey Law Against Dis- crimination provides for personal liability for a supervi- sor who commits discriminatory acts within the scope of 413 his employment so as to aid and abet the employer's EEOC v. UPS, Inc., 306 F.3d 794 (9th Cir. 2002). 414 discriminatory conduct. The Third Circuit has inter- EEOC v. United Parcel Serv., Inc., 424 F.3d 1060 (9th preted the standard to be whether the supervisor know- Cir. 2005). See also Bryan v. United Parcel Serv., Inc., 307 F. ingly gives substantial assistance or encouragement to Supp. 2d 1108 (N.D. Cal. 2004) (holding monocular individuals limited in major life activity of working and thus disabled un- the employer's unlawful conduct. Merely having a role 422 der California's Fair Employment and Housing Act). in the discriminatory conduct is insufficient. 415 E.g., Failla v. City of Passaic, 146 F.3d 149 (3d Cir. If a municipality adopts an unconstitutional policy 1998); Burton v. Metro. Transp. Auth., 244 F. Supp. 2d 252, that was authorized or mandated by state law, the mu- 258 (S.D.N.Y. 2003) (under New York State's Human Right nicipality may be subject to suit asserting claims based Law, individual can establish disability by demonstrating im- on the constitutional violation. Following state law may pairment by medically accepted techniques: substantial limita- not be a defense unless the municipality is simply en- tion of normal activities not required). See also Green v. State forcing the state law without adopting a specific policy. of Cal., 33 Cal. Rptr. 3d 254, 132 Cal. App. 4th 97 (2005) (de- Moreover, the requirements of Title VII take prece- fendant has burden of proving plaintiff cannot perform his dence over state law, so a municipal policy that imper- duties with reasonable accommodation; distinction between missibly discriminates based on gender may result in plaintiff's disability and work restrictions for his disability constitute distinction without a difference). 419 416 Warren v. United Parcel Serv., Inc., 495 F. Supp. 2d 86 Maine Human Rights Com. v. Canadian Pac., Ltd., 458 (D. Maine 2007). A.2d 1225, 1234 (Me. 1983). 420 417 Whitney v. Wal-Mart Stores, Inc., 2006 ME 37, at 31, 895 McMillen v. Civil Service Comm'n, 6 Cal. App. 4th 125, A.2d 309, 316. 128, 8 Cal. Rptr. 2d 548, 549 (1992). 421 418 5 ME. REV. STAT. ANN. 4573-A(1-B); Rooney v. Sprague Id. at 551. 422 Energy Corp., 581 F. Supp. 2d 94 (D. Me. 2008). Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998).