Application of Physical Ability Testing to Current Workforce of Transit Employees (2010)

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18 school bus drivers from age 65 onward to undergo an- nual medical exams.143 In general, it does not appear that specific physical requirements for school bus drivers apply to transit operators. The only federal requirement specific to school bus drivers is that for a school bus endorse- ment,144 which does not impose additional physical re- quirements beyond those for a CDL nor require physical ability testing. Some states may specifically exclude vehicles operated by public transit agencies from the definition of school bus, thereby making additional re- quirements for school bus drivers inapplicable to transit bus operators who transport school children.145 In addi- tion, some states only require the school bus endorse- ment to drive a yellow school bus.146 E. Transit Agency Policy Transit agencies may require physical ability tests that are not mandated by federal or state law. Agencies may require tests to screen out unqualified applicants147 and to reduce costs. To the extent that testing is based on federal or state requirements for certain levels of ability, transit agen- cies may not allow employees to meet lesser standards. However, provided that they remain within the pa- rameters of nondiscrimination requirements, transit agencies themselves may set more stringent require- ments than under federal or state law. For example, an agency’s own experience with accidents may lead it to follow federal requirements for CDL waivers rather than less stringent state waiver requirements. Exam- ples cited in response to the report questionnaire of going beyond FTA drug and alcohol testing include re- quiring preemployment alcohol testing, preemployment drug and alcohol testing for all positions, post-accident testing for accidents not covered by FTA regulations, testing of safety-sensitive employees after an absence from work of 30 consecutive calendar days, and a drug test with the periodic CDL physical exam.148 However, 143 CAL. VEH. CODE, § 12517.2., Medical Examination Re- quirements, http://dmv.ca.gov/pubs/vctop/d06/vctop/d06/ vc12517_2.htm. 144 49 C.F.R. § 383.123, Requirements for a school bus en- dorsement, http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf /49cfr383.123.pdf. 145 E.g., The Pupil Transportation Act, Act 187 of 1990 (Michigan), 257.1801 et seq., www.legislature.mi.gov/documents/mcl/pdf/mcl-Act-187-of- 1990.pdf. 146 E.g., Illinois Commercial Driver’s License Study Guide, § 4-B: School Bus Endorsement, at 60, www.sos.state.il.us/publications/pdf_publications/dsd_cdl10. pdf. 147 EEOC, Employment Tests and Selection Procedures, www.eeoc.gov/policy/docs/factemployment_procedures.html; David E. Hollar, Physical Ability Tests and Title VII, 67 U. CHI. L. REV. 777, 784–85 (2000). 148 E.g., Los Angeles County Metropolitan Transportation Authority (LA Metro) requires preemployment alcohol testing and drug test with periodic exam; MBTA requires preemploy- absent legislative authority, extending the more rigor- ous school bus requirements to bus and rail operators as a matter of agency policy could raise issues under disability discrimination law, as it appears the rationale for the more rigorous requirements—extra care re- quired for those who transport children—would not apply to transit operators not in a similar position of trust. III. LEGAL RESTRICTIONS ON PHYSICAL ABILITY TESTING USDOT requires that grant recipients not discrimi- nate on the basis of disability in federally-funded grant programs.149 The Federal Transit Act, FTA’s implement- ing regulations, and the Master Agreement all prohibit employment discrimination based on characteristics that may be affected by physical ability testing, such as gender, disability, or age.150 These USDOT/FTA statu- tory and regulatory provisions mandate compliance with the Civil Rights Act of 1964, as amended; the ADA; and the Age Discrimination in Employment Act (ADEA).151 The nondiscrimination requirements of these statutes affect the permissible scope of physical ability testing. The Family and Medical Leave Act of 1993 (FMLA)152 also may affect the permissible scope of a transit agency’s actions concerning physical ability test- ing. Of these, issues concerning physical ability testing ment drug and alcohol testing for all job applicants; NYCT requires preemployment testing for titles not covered by FTA regulation and post-accident testing not covered by FTA regu- lation. (Based on responses to question VII.4 of study ques- tionnaire). 149 49 C.F.R. pt. 27, Nondiscrimination on the basis of dis- ability in programs or activities receiving federal financial assistance. www.access.gpo.gov/nara/cfr/waisidx_08/49cfr27_08.html. 150 Section 5332 of Title 49 prohibits discrimination based on race, color, creed, national origin, sex, or age under a project, program, or activity receiving funding under ch. 53. FTA Circu- lar C 4704.1, Equal Employment Opportunity Program Guide- lines for Grant Recipients, July 26, 1988, requires compliance with Title VII of the Civil Rights Act of 1964, www.fta.dot.gov/documents/FTAEEOProgramGuidelines.pdf. FTA’s master grant agreement requires that grantees agree to comply with all applicable civil rights laws and regulations, including the requirements of Title VII and the ADA. FTA Master Agreement MA(16), supra note 55, at 32–36. 151 90 Pub. L. No. 202, 81 Stat. 602, Dec. 15, 1967, codified as 29 U.S.C. §§ 621 et seq. 152 103 Pub. L. No. 3, 107 Stat. 6 www.dol.gov/whd/regs/statutes/fmla.htm, codified as 29 U.S.C. §§ 2601 et seq.; 29 C.F.R. pt. 825; Final Rule, 73 Fed. Reg. 67934 (Nov. 17, 2008), www.dol.gov/federalregister/PdfDisplay .aspx?DocId=21763 (accessed Dec. 2, 2008). See Health Bene- fits, Retirement Standards, and Workers’ Compensation: Fam- ily and Medical Leave, www.dol.gov/Compliance/Guide/fmla. htm.

19 are most likely to relate to Title VII of the Civil Rights Act of 1964153 and the ADA.154 This section discusses legal requirements under these federal statutes—as well as related state re- quirements—that place limits on physical ability test- ing, including prohibitions against employment dis- crimination based on gender, disability, and age, as well as medical leave requirements. (Discrimination based on race, while obviously unlawful, is rarely an issue in physical ability testing cases.) Search and seizure pro- tections are also addressed. A. Title VII Title VII prohibits employment practices that dis- criminate based on race, color, religion, sex, or national origin.155 Those requirements apply to state and local governments that have 15 or more employees or receive federal funding and all private employers with more than 15 employees.156 The Civil Rights Act of 1991157 amended Title VII, clarifying the burden of proof under disparate impact cases,158 among other changes. The U.S. Department of Justice (DOJ) and the EEOC share enforcement responsibility of Title VII, with DOJ hav- ing the responsibility to file a civil action against a state or local governmental agency, either where the EEOC has found reasonable cause but has not been able to reach a conciliation agreement or where, even absent 153 88 Pub. L. No. 352, 78 Stat. 241, tit. VII, July 2, 1964, codified as 42 U.S.C. § 2000e. 154 ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra note 109, at 94. 155 42 U.S.C. § 2000e-2, http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc42.pt1.wa is&start=26948980&SIZE=17763&TYPE=PDF. States may provide protection to a greater number of classes than tit. VII. E.g., IOWA CODE § 216.6 Unfair Employment Practices, prohibiting employment discrimination based on “age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability…unless based upon the nature of the occupation,” http://coolice.legis.state.ia.us/Cool-ICE/default .asp?category=billinfo&service=IowaCode&ga=83. However, for purposes of physical ability testing it seems unlikely that classes other than those protected by federal law would be at issue. 156 42 U.S.C. § 2000e, Definitions, http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc42.pt1.wa is&start=26860359&SIZE=84934&TYPE=PDF. The Equal Employment Opportunity Act of 1972, 92 Pub. L. No. 261, 86 Stat. 103 extended the requirements of tit. VII to state and local governments. Those requirements include the disparate impact doctrine. Blake v. City of L.A., 595 F.2d 1367, 1374 (9th Cir. 1979). 157 102 Pub. L. No. 166, 105 Stat. 1071, tit. I, Nov. 21, 1991, codified in various sections of 42 U.S.C. § 2000e-2 et seq. 158 CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, TITLE VI LEGAL MANUAL, at n.39, www.usdoj.gov/crt?cor/coord/vim anual.php. prior referral, a pattern or practice of discrimination is involved.159 Title VII defines an employee as “an individual em- ployed by an employer.”160 Courts have construed the term “employee” under the Act in the context of “the conventional master-servant relationship as understood by common-law agency doctrine.”161 Thus, whether an individual who does not receive a salary may nonethe- less be an employee for Title VII purposes based on job- related benefits is a question of fact.162 This subsection briefly reviews the difference be- tween intentional discrimination and disparate impact discrimination. Subsection A then discusses the estab- lishment and evolution of the disparate impact doctrine, including the business necessity defense. Finally, the subsection addresses EEOC guidelines on test selection criteria, including validation. 1. Intentional Discrimination v. Disparate Impact Intentional discrimination involves taking action to avoid selecting or promoting persons in protected classes, for example, by imposing different require- ments on such applicants or employees than on other applicants or employees. Absent direct evidence of an intent to discriminate, a pattern or practice of inten- tional discrimination may be shown by proving regular and purposeful discrimination by a preponderance of the evidence. Such discrimination clearly violates the Civil Rights Act. Where, for example, male and female job applicants both receive raw test scores that meet requirements, but female applicants are scored as fail- ing, a finding of intentional discrimination is sup- ported.163 In addition, an employment policy that treats members of a protected class differently than members of another class on its face, such as an employment pol- icy that is explicitly gender based, amounts to disparate treatment. Such a policy can only be defended where the gender-based practice is a bona fide occupational qualification (BFOQ),164 that is, where sex is an occupa- tional qualification reasonably necessary to the normal 159 U.S. DEP’T OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL, Employment Litigation Section—Affirmative Suits Under Title VII, 8-2.211, www.usdoj.gov/usao/eousa/foia_reading_room/usam/title8/2mcv r.htm#8-2.211. 160 42 U.S.C. § 2000e(f). 161 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322– 23, 112 S. Ct. 1344, 1348, 117 L. Ed. 2d 581, 589 (1992). 162 E.g., Haavistola v. Cmty. Fire Co., 6 F.3d 211, 221–22 (4th Cir. 1993) (reasonable fact finder could decide Title VII employment relationship existed where volunteer firefighter received benefits such as disability pension, survivors' benefits, group life insurance, and scholarships for dependents upon death); Pietras v. Bd. of Fire Comm’rs, 180 F.3d 468, 472 (2d Cir. 1999) (probationary firefighter receiving benefits more generous than those in Haavistola could reasonably be held to be employee under Title VII). 163 E.E.O.C .v. Dial Corp., 469 F.3d 735 (8th Cir. 2006). 164 Frank v. United Airlines, Inc., 216 F.3d 845, 853–54 (9th Cir. 2000).

20 operation of the business or enterprise that offers the defense.165 Where a plaintiff alleges intentional discrimination but lacks direct evidence of discriminatory purpose, courts generally apply the evidentiary framework of McDonnell Douglas Corp. v. Green166 and Texas Dep't of Community Affairs v. Burdine,167 referred to as the McDonnell Douglas-Burdine burden-shifting frame- work. The plaintiff establishes a prima facie case by showing that he is a member of a protected class, he was qualified for the job, he suffered an adverse em- ployment decision, and he was replaced by a person outside the protected class or treated differently than similarly situated nonprotected employees.168 The em- ployer must then articulate a legitimate, nondiscrimi- natory reason for the adverse employment decision. If such evidence is proffered, the employee may yet pre- vail by showing that the proffered explanation is a pre- text for discrimination.169 As discussed below, the Supreme Court has also held that an employment practice that has a disparate im- pact on a protected class—that is, adversely affects members of that class far more than it affects other employees—may be unlawful even without a discrimi- natory intent on the part of the employer.170 For such an 165 42 U.S.C. § 2000e–2(e). The BFOQ cannot be based on stereotyped characterizations of the sexes. See 29 C.F.R. § 1604.2(a)(1)(ii). Rather, in order to establish a sex-based BFOQ, the employer must have a “basis in fact” for believing that no members of one sex could perform the job in question. Dothard v. Rawlinson, 433 U.S. 321, 335 (1977). State law may allow an employer to apply to the relevant state agency, such as a Human Rights Commission, for a certification that a physical qualification is a bona fide occupational qualification. E.g., R.I.G.L. § 28-5-7(4), www.rilin.state.ri.us/statutes/title28/28-5/28-5-7.HTM. Under Rhode Island law such a request would be evaluated after a public hearing. Response to report questionnaire from Cynthia Hyatt, Legal Counsel, State of Rhode Island Commission for Human Rights, June 15, 2009. Absent such a certification, the question of the validity of a physical qualification is likely to be determined on a case-by-case basis, decided if and when a per- son with a disability or another member of a protected class filed a complaint alleging that the requirement for a particular physical ability is discriminatory. 166 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 167 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). 168 White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). 169 Id. 170 An employment practice that has a disparate impact on eligibility for employment or promotion may not be defended on the grounds that it has no effect on bottom-line employment or promotion because of affirmative action. Connecticut v. Teal, 457 U.S. 440, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982). “Thus, under Teal and its progeny, individual components of a hiring process may constitute separate and independent employment practices subject to Title VII even if the overall decision- making process does not disparately impact the ultimate em- ployment decisions involving a protected group.” Bradley v. City of Lynn, 443 F. Supp. 2d 145, 158–59 (D. Mass. 2006). employment practice to be lawful, the employers must show the business necessity of the practice. The precise requirements of meeting that standard have been the subject of much litigation and commentary. Employers who change employment practices to avoid having them result in adverse impacts may face “reverse discrimination actions”; employees who bene- fited from those practices may allege that they have been discriminated against. The Supreme Court has now held that when an employer uses a test whose re- sults have a disparate impact on a protected class, the employer may not attempt to remedy that result by discriminating against employees not in the protected class unless there is a strong basis-in-evidence that the employer would otherwise have been liable under the federal disparate impact statute.171 The Second Circuit has held that individual supervi- sors are not personally liable under Title VII.172 How- ever, the First Circuit has held that employers who mask intentional discrimination by purporting to rely on preemployment screening tests may face personal liability. For example, the First Circuit upheld a district court’s monetary sanctions against a New Hampshire mayor who had claimed that physical ability tests were used to determine hiring for the town’s fire department, when in fact the defendants made hiring decisions based on undisclosed subjective criteria.173 2. Disparate Impact Analysis: Supreme Court A series of Supreme Court cases from the early 1970s through the late 1980s established the doctrine of unlawful disparate impact, which is particularly rele- vant for physical ability tests.174 Although these cases provided somewhat inconclusive guidance on the re- quirements for defending against a charge of disparate impact discrimination, they nonetheless delineate the overall legal framework for analyzing disparate impact cases. Griggs v. Duke Power Co.175—Griggs is the seminal disparate impact case. Chief Justice Burger delivered 171 Ricci v. DeStefano, 557 U.S. ____, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009). 172 Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003). 173 Legault v. Zambarano, 105 F.3d 24 (1st Cir. 1997). 174 Typically there are significant strength differences be- tween men and women. DEBORAH L. GEBHARDT, ESTABLISHING PERFORMANCE STANDARDS (Ch. 6, Stefan Constable & Barbara Palmer, eds., The Process of Physical Fitness Standards Devel- opment, 2000), www.dtic.mil/cgi-bin/GetTR Doc?AD=ADA495349&Location=U2&doc=GetTRDoc.pdf (accessed Oct. 27, 2009). Due to these typical disparities, strength and stamina tests tend to have disparate impact on women. Michael E. Brooks, Law Enforcement Physical Fitness Standards and Title VII, THE FBI LAW ENFORCEMENT BULLETIN, May 2001, at 26, 29, www.fbi.gov/publications/leb/ /2001/may01leb.pdf (accessed Nov. 29, 2008). See, e.g., Evans v. City of Evanston, 881 F.2d 382, 384 (7th Cir. 1989); EEOC v. Dial, 469 F.3d 735 (8th Cir. 2006). 175 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).

21 the court’s unanimous decision. The employer in Griggs, which before the passage of the Civil Rights Act of 1964 had routinely discriminated overtly against blacks in employment, had instituted a requirement for either a high school diploma or passing an intelligence test and a general aptitude test for employees to be hired into its higher-paying departments or to transfer from the lowest-paying department into those higher- paying departments. Neither test measured aptitude for a particular job or category of jobs. White employees who were hired before those requirements were in place nonetheless performed satisfactorily. The lower courts had found that absent a showing of discriminatory in- tent, there was no violation of the Civil Rights Act. In reviewing the purpose of the Civil Rights Act, the Court stated that Congress intended to require “the removal of artificial, arbitrary, and unnecessary barri- ers to employment when the barriers operate invidi- ously to discriminate on the basis of racial or other im- permissible classification.” Thus employment tests or criteria must offer genuine opportunity: they must take into account applicants’ conditions. Accordingly, the Court found that the Civil Rights Act “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touch- stone is business necessity.” The Court held that if an employment practice that excludes members of a pro- tected class “cannot be shown to be related to job per- formance, the practice is prohibited.”176 The Court then noted that the employment tests had been adopted because the company thought they would generally improve the quality of the workforce, rather than on the basis of study showing that they bore “a demonstrable relationship to successful performance of the jobs” for which they were used. Moreover, employ- ees who had not met these requirements performed successfully in the jobs for which they were now re- quired.177 The Court held that Title VII reached the con- sequences of employment practices, not just the em- ployer’s intent, and that under Title VII, employment practices that are discriminatory in effect are unlawful unless the employer meets “the burden of showing that any given requirement (has)…a manifest relationship to the employment in question.”178 In examining the employer’s contention that its gen- eral intelligence tests were permitted under the section of the Civil Rights Act allowing professionally- developed ability tests not designed, intended, or used to discriminate based on race, the Court referred to the EEOC’s guidelines interpreting that section as only allowing job-related tests. The Court reviewed the legis- lative history of the provision in question and found 176 Id. at 431. 177 Id. at 431–32 (1971). The Court did not reach the ques- tion of whether an employer may adopt testing requirements that take into account the need for advancement if the em- ployer can show a genuine business need for such require- ments. Id. at 432. 178 Id. that without question the EEOC’s interpretation was consistent with congressional intent. The Court held that employment tests or measuring procedures may not control employment decisions unless “they are de- monstrably a reasonable measure of job performance.”179 While clearly establishing a claim for discrimination based on disparate impact, Griggs did not make clear what showing was required to establish a defense of business necessity and what was required to show that an employment practice met the business necessity standard.180 Takeaway: Employment practice with discriminatory effect is prohibited unless the practice bears a demon- strable relationship to successful performance of the job covered by the practice. Albemarle Paper Co. v. Moody181.—In Albemarle, the Court examined the question of whether the employer had met the burden of showing that its employment tests were job related. The employer, a paper mill, insti- tuted two intelligence tests to screen employees for en- try into the higher-paying, skilled job lines at its plant. Neither test had been validated for job-relatedness at the plant. Incumbents were not required to pass the tests to retain their jobs or be promoted. A number of white incumbents in higher-ranking job groups could not in fact pass the tests. The employer hired an indus- trial psychologist to validate the tests before the case went to trial. The Court reiterated the requirement for establish- ing a prima facie case of discrimination: showing that “the tests in question select applicants for hire or pro- motion in a racial pattern significantly different from that of the pool of applicants.”182 The Court then re- viewed the question of job-relatedness. The Court noted that the EEOC guidelines on validation do not have the force of formal regulations, but are entitled to great 179 Id. at 436. 180 Andrew C. Spiropoulos, Defining the Business Necessity Defense to the Disparate Impact Cause of Action: Finding the Golden Mean, 74 N.C. L. REV. 1479, 1487–88 (1996). 181 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). 182 Id. at 425, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). McDonnell Douglas established the burden shifting analysis for Title VII claims. The Court held that the plaintiff carries the initial burden of establishing a prima facie case of dis- crimination. In the case of racial discrimination, the plaintiff meets that burden by showing: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of com- plainant's qualifications. Id. at 802. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for rejecting the plain- tiff. The plaintiff in turn must be afforded an opportunity to establish that the proffered reason is in fact a pretext for dis- crimination. Id. at 802–04. Although McDonnell Douglas in- volved a claim of intentional discrimination, the burden shift- ing analysis is applied to disparate-impact claims as well.

22 deference.183 Under those guidelines, as under Griggs, discriminatory tests “are impermissible unless shown, by professionally acceptable methods, to be ‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.’”184 Using that standard, the Court found Albemarle’s vali- dation study to be insufficient. There was insufficient correlation between the tests and successful perform- ance in the jobs being studied; the study relied in part on subjective supervisory rankings without clear crite- ria of job performance being relied upon; the study fo- cused on high-level jobs, but used those results for test- ing entry-level positions, without justifying the use of the high-level measures for the entry-level jobs; and the validation study dealt with experienced white workers, but the tests were given to young, inexperienced, and often nonwhite applicants. Takeaway: Where test is criterion-related, validating predictive value before implementation, using profes- sionally acceptable methods, is particularly important. Dothard v. Rawlinson185—Dothard involved a re- quirement under Alabama law that correctional coun- selors meet a 120 lb minimum weight standard and 5 ft 2 in. minimum height standard (the maximum stan- dards were not at issue in the case), as well as a regula- tory requirement establishing gender criteria for as- signing counselors to maximum security institutions for positions with close physical proximity to inmates. The Court first determined that it was appropriate to judge the prima facie case based on statistics showing that the combined height and weight minimums would ex- clude 41.13 percent of the female population while ex- cluding less than 1 percent of the male population. The Court rejected the argument that national statistics, as opposed to actual statistics concerning actual applicants for correctional positions in Alabama, were insufficient to establish a prima facie case. The Court then turned to the argument that the height and weight requirements were job related be- cause of their relationship to strength, some amount of which was deemed essential to effective job perform- ance. The Court noted, however, that the state failed to produce any evidence specifically justifying the statu- tory standards; despite the fact that the height and weight requirements were established by statute, the 183 Albemarle Paper, 422 U.S. at 431. See also EEOC v. Ara- bian Am. Oil Co., 499 U.S. 244, 257, 111 S. Ct. 1227, 1235, 113 L. Ed. 2d 274, 287 (1991); El v. SEPTA, 479 F.3d 232, 244 (3d Cir. 2007). The Second Circuit has held that the EEOC Guide- lines are the primary yardstick by which the court measures test validation. Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 384 (2d Cir. 2006). 184 Albemarle Paper, 422 U.S. at 432, citing 29 C.F.R. § 1607.4(c). 185 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977). See also Blake v. City of L.A., 595 F.2d 1367, 1372 (9th Cir. 1979) (holding height requirement for Los Angeles police department not shown to be job related or required by business necessity; validation cannot rely on “what is obvious”). state as employer still bore the burden of showing that the discriminatory employment practice was necessary to safe and efficient job performance.186 The Court found that the state could meet the standards of Title VII by adopting and validating a test that measures strength directly, because such a test would measure the person for the job, not the person in the abstract. Thus, in Dothard, the Court rejected the “more is better” justifi- cation for an employment practice.187 Finally the Court addressed the question of whether the challenged regulation was permissible on the ground that gender was a BFOQ for counselors. The Court found that the use of gender to assign counselors in close contact was not based on stereotypes, but on the real need not to have women put in danger of as- sault, as for example from sex offenders scattered throughout the maximum-security prisons. The Court noted that the real danger of women counselors being assaulted implicated not just their safety but mainte- nance of security in the prisons. Takeaway: Where strength is required to perform an essential function of the job, strength should be meas- ured directly, not through unreliable proxies such as height and weight. New York City Transit Authority v. Beazer188.— Beazer involved a challenge to the transit authority’s rule prohibiting the employment of narcotics users, in- cluding methadone users. The Court rejected the find- ing of the lower court that the statistics cited estab- lished a prima facie case.189 The Court found that even were the statistical evidence valid, it was rebutted by the transit authority’s showing that the narcotics rule was job related. The Court stated in a footnote that the authority’s legitimate employment goals of safety and efficiency required excluding all methadone users from safety-sensitive positions and that those goals were significantly served by, even if not required, the rule excluding all methadone users even from non-safety- sensitive positions. The Court concluded that the record demonstrated that the rule bore a “manifest relation- ship to the employment in question,” citing Griggs and Albemarle. The Court then remarked that the employ- ees had not carried their ultimate burden of proving a 186 Dothard, 433 U.S. at 331, 332, n.14 (1977). 187 El v. SEPTA, 479 F.3d 232 (3d Cir. 2007). 188 440 U.S. 568, 99 S. Ct. 1355, 59 L. Ed. 2d 587 (1979). 189 The rejected statistics were that 81 percent of the em- ployees referred to the transit authority’s medical director were black or Hispanic (since there was no breakdown of how many referrals were for methadone use) and 63 percent of the 65 percent of all New Yorkers receiving methadone maintenance in public programs were black or Hispanic (since there was no showing of the racial breakdown of otherwise qualified appli- cants and employees participating in public methadone main- tenance programs or any information about participants in private programs). The court found that these statistics did not show that the percentage of black and Hispanic methadone users was any higher than the percentage of black and His- panic members of the general population in New York City. Id. at 584–87.

23 Title VII violation.190 Justice White, dissenting, took the position that the transit authority had the burden of establishing job-relatedness and that “petitioners have not come close to showing that the present rule is ‘de- monstrably a reasonable measure of job performance. [citing Griggs] No one could reasonably argue petition- ers have made the kind of showing demanded by Griggs or [Albemarle.]”191 Takeaway: Beazer applies the manifest relationship standard, met by significantly serving safety and effi- ciency goals. Since this is the standard used in Wards Cove, questions exist about the current validity of this standard. Wards Cove Packing Co. v. Atonio192—Wards Cove was a 5-4 decision holding that the plaintiff in a dispa- rate impact case has the burden of proof on the issue of whether the disparate impact was caused by the em- ployer’s employment practices and whether those em- ployment practices were justified by business neces- sity.193 The Court rejected the lower court’s holding of what constituted a prima facie case of disparate impact.194 In addition, the Court held that merely showing a racial imbalance in the workforce is not sufficient for estab- lishing a prima facie case. Instead the plaintiff must show that the application of a specific employment practice has created the imbalance: “Respondents will also have to demonstrate that the disparity they com- plain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a signifi- cantly disparate impact on employment opportunities for whites and nonwhites.” 195 The Court then addressed the standard for meeting the business necessity test, holding that the employer carries the burden of production on this issue, but the 190 Id. at 587, n.31. 191 Id. at 602. 192 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989). 193 The employer was a salmon cannery. The plaintiffs al- leged that the employer’s hiring and promotion practices re- sulted in a workforce in which the higher-paid skilled jobs (noncannery) were predominantly held by white employees and the lower-paid unskilled jobs (cannery) were predominantly held by nonwhite employees. In addition, the cannery and non- cannery employees lived in separate dormitories and ate in separate mess halls. 194 The lower court had held that a low percentage of non- white workers in noncannery jobs and a high percentage of nonwhite workers in the cannery jobs made out a prima facie case of disparate impact. The Court stated that the comparison should have been between the racial composition of the jobs in question and the racial composition of the qualified population in the labor market in question, because if the low percentage of nonwhites was due to a lack of qualified candidates, the employer’s practices would not be at fault. Otherwise, the Court reasoned, employers would be forced to use quotas to avoid disparate impact challenges. 195 Id. at 657. employee maintains the burden of persuasion, matching the plaintiff’s burden in disparate treatment cases.196 The dissenting Justices took the position that the majority opinion upset the longstanding burdens of proof in disparate impact cases and rejected the Court’s own interpretation of Title VII as placing a “weighty” burden of establishing business necessity. In addition, the dissent argued that the majority had redefined the employee’s burden of proof by requiring identification of the specific employment practices that have produced the disparate impact. Takeaway: Held the burden of proof of business ne- cessity lies with the plaintiff, which holding was over- turned by statute; recognized legitimate employment goal standard for meeting business necessity test, a standard now in question. 3. Civil Rights Act of 1991 The Civil Rights Act of 1991 (1991 Act) explicitly shifted the burden of proof for the business necessity defense to the defendant.197 As amended, the provision on unlawful employment practices now provides that a prima facie case of unlawful disparate impact is estab- lished if the employee shows that the employer uses an employment practice that causes a disparate impact based on protected class status and the employer fails to show that the practice is “job related for the position in question and consistent with business necessity.”198 The 1991 Act specifies that the only legislative history to be considered in interpreting the new provision is a memorandum that states that “(t)he terms ‘business necessity’ and ‘job related’ are intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., and in the other Supreme Court deci- sions prior to Wards Cove Packing Co. v. Atonio.” 199 The 1991 provision has been interpreted as having been passed to codify the Supreme Court’s approach to dispa- rate impact cases as expressed in Griggs.200 This provi- sion arguably increased the standard because it re- quires a showing of business necessity instead of merely 196 The Court stated that “it is generally well established that…the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer,” noting that “there is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ to the em- ployer's business for it to pass muster.” Id. at 659 (1989). The Court stated that any statements in earlier cases such as Dothard should have been understood to mean the burden of production, not persuasion. Id. at 659–60. Finally, the Court addressed the issue of alternative employment practices, not- ing that the employees must establish that any such alterna- tives are equally effective, taking cost or other burdens into account. Id. at 661 (1989). 197 42 U.S.C. § 2000e-2(k)(1)(A). 198 Id. 199 E.g., David E. Hollar, Physical Ability Tests and Title VII, 67 U. CHI. L. REV. 777, 783 (2000), citing 137 CONG. REC. § 15276 (Oct. 25, 1991). 200 Id.

24 significantly serving a legitimate employment goal,201 although it can also be argued that it is not clear whether those contending a stricter standard was en- acted or those contending a more lenient standard was enacted are correct.202 The Third Circuit, at least, has held that the 1991 Act “abrogated the Wards Cove defi- nition of business necessity.”203 The 1991 Act also provides that separate passing scores for subgroups such as females and minorities may not be used for assessments that affect employ- ment standing, for example, selection and promotion.204 This has resulted in some confusion about the permissi- bility of assessing general physical fitness using percen- tiles that are adjusted for gender and age. A number of public agencies use the age-and gender-based fitness standards of the Cooper Institute for Aerobic Re- search.205 However, the validity of these standards is unclear.206 4. Job Relatedness/Business Necessity Defense for Physical Ability Tests: Lower Courts The Supreme Court has not addressed the standard for evaluating use of physical fitness tests as a screen- ing device for employment purposes.207 Accordingly the standard must be based on the general law of disparate impact, which means that the precise requirement for the business necessity defense varies by jurisdiction.208 The standards most widely applied include the manifest relationship test,209 the demonstrably necessary test,210 201 Brooks, supra note 174, at 29. 202 Andrew C. Spiropoulos, Defining the Business Necessity Defense to the Disparate Impact Cause of Action: Finding the Golden Mean, 74 N.C. L. REV. 1479, 1487–88 (1996). 203 El v. SEPTA, 479 F.3d 232, 241 (3d Cir. 2007). 204 42 U.S.C. § 2000e-2(l). 205 E.g., Department of Public Safety, Vermont State Police, www.dps.state.vt.us/vtsp/process.html. 206 E.g., Hoffman & Associates, Total Fitness for Public Safety, Mar. 6, 2009, at 13, http://post.state.nv.us/Administration/Cat3%20Physical%20 Readiness%20Standards%20Validation%20Report.pdf (accessed Dec. 1, 2009). See discussion of In re Grievance of Scott, 172 Vt. 288, 779 A.2d 655 (Vt. 2001) in III.A.6., Gen- der/Age Norming, infra this digest. 207 Hollar, supra note 199, at 777, 793. 208 Michael R. Sarno, Issues in the Third Circuit: Employers Who Implement Preemployment Tests To Screen Their Appli- cants, Beware (Or Not?): An Analysis Of Lanning v. Southeast- ern Pennsylvania Transportation Authority and the Business Necessity Defense as Applied in Third Circuit Employment Discrimination Cases, 48 VILL. L. REV. 1403, 1414–16 (2003). Hollar, supra note 199, at 777. Hollar’s analysis of the ap- proaches to the business necessity test, while exhaustive, relies in part on a significant number of cases that pre-date the 1991 Act, and to that extent do not shed light on the standards since enactment. 209 Sarno, supra note 208, at 1415, n.45, citing Ass'n of Mexi- can-American Educators v. Cal., 231 F.3d 572, 585 (9th Cir. 2000); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 n.10 (10th Cir. 1999) (using manifest relationship test and the close-approximation-to-job-tasks test.211 The Third Circuit has articulated the arguably strictest standard, the minimum qualifications necessary test.212 It has been suggested that this Third Circuit standard is more stringent than the EEOC’s means of validation. 213 To be permissible under Title VII, a discriminatory physical ability test must measure abilities required to perform essential functions of the job. To meet this re- quirement, the test must be based on a job analysis of essential job functions, must test abilities that signifi- cantly correlate—directly or indirectly—to those re- quired for successful performance of those job functions, and must accurately test those abilities. A test may be pass–fail or used to rank candidates. However, using tests for ranking is permissible “only where the test scores vary directly with job performance.”214 Thus a test with an arbitrary cutoff score unrelated to job needs may be rejected.215 In addition, courts may reject cutoff scores where it can be shown that a lower cutoff score would reduce the disparate impact while still ef- fectively measuring job qualifications.216 Tests used as a when no safety concerns implicated); NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir. 1995). The Second Circuit has remarked that “job-relatedness” and “business necessity” are interchangeable terms. Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 382 (2d Cir. 2006). The Gulino court, while appar- ently still applying the manifest relationship test, held that tests with a disparate impact must be shown to be a reasonable measure of job performance in order to be considered job re- lated. Test validation can be shown by the opinion of experts in the field of test validation, evaluated against clearly estab- lished guideposts such as the EEOC Guidelines. Id. at 383–84. 210 Sarno, supra note 208, at 1415, n.47, citing Bew v. City of Chicago, 252 F.3d 891, 894 (7th Cir. 2001); Anderson v. Zubi- eta, 180 F.3d 329, 342 (D.C. Cir. 1999); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1118–19 (11th Cir. 1993); Banks v. City of Albany, 953 F. Supp. 28, 35 (N.D.N.Y. 1997). 211 Sarno, supra note 208, at 1416, n.48, citing Smith v. City of Des Moines, 99 F.3d 1466, 1470–73 (8th Cir. 1996). 212 Lanning v. SEPTA, 181 F.3d 478 (3d Cir. 1999). See III.A.1, Title VII, infra this digest. In applying the minimum qualifications standard, the Third Circuit has also held that a discriminatory practice must accurately, if not perfectly, meas- ure an applicant’s ability to perform essential job functions; the employer may hire the applicant most likely to perform a par- ticular job successfully over applicants less likely to do so. El v. SEPTA, 479 F.3d 232, 242 (3d Cir. 2007). 213 Brooks, supra note 174, at 30. 214 Williams v. Vukovich, 720 F.2d 909, 924 (6th Cir. 1983). 215 Pietras v. Bd. of Fire Comm’rs, 180 F.3d 468 (2d Cir. 1999). The district court held that the requirement that all firefighter candidates drag a hose 150 ft in less than 4 minutes was not job related after finding no rational basis for time se- lected. The fire department had timed incumbent firefighters (predominantly male), averaged the scores, and added half a minute for “leeway.” In a footnote the appellate court agreed that there was no evidence that the time selected was job re- lated. Id. at 472, n.5. 216 EEOC v. Simpson Timber Co., 1992 U.S. Dist. LEXIS 5829, *10–11 (W.D. Wash.).

25 ranking mechanism for promotion may also be subject to scrutiny for disparate impact.217 Two circuit cases dealing with physical ability test- ing are particularly relevant: Lanning v. Southeastern Pennsylvania Transportation Authority218 (SEPTA) and EEOC v. Dial.219 Given the weight of these cases, they are discussed here at some length. Also covered is the viability of safety as a business justification and the plaintiff’s rebuttal of a less discriminatory alternative. Lanning: The Third Circuit reviewed the question of the appropriate legal standard for evaluating an as- serted business justification for the cutoff score in a screening exam that has been challenged as discrimina- tory in a disparate impact challenge. SEPTA, which at the time of the lawsuit employed “an extremely low number of women in its transit police force,”220 had de- cided to upgrade the physical fitness level of its police officers and hired an expert physiologist as a consultant to develop an appropriate physical fitness exam. After observing and speaking with SEPTA transit police, in- cluding some experienced officers deemed subject mat- ter experts, the consultant determined that running, jogging, and walking were important tasks for the po- lice officers. The consultant developed a test that would require the aerobic capacity that the consultant deemed necessary to perform the tasks of a SEPTA transit po- lice officer. The test was that an officer be required to run 1.5 mi in full gear in 12 minutes, a task that was not required during the course of a SEPTA police offi- cer’s duties. The test had a markedly higher rate of failure for female applicants, and Judge Mansmann, delivering the opinion of the Third Circuit, noted that SEPTA con- ceded the existence of a disparate impact on female ap- plicants. Judge Mansmann also noted that SEPTA be- gan testing incumbent officers, at first disciplining those who failed, and then dropping that approach in favor of providing incentives for passing the test. Al- though significant numbers of incumbent officers failed the tests, SEPTA never attempted to determine whether the officers who had failed had negatively af- fected SEPTA’s ability to carry out its mission. More- over, SEPTA had recognized the achievements of offi- cers who had failed the test and had never imposed any negative consequences for a police officer for failing to perform the physical job requirements. In addition, the one female officer hired despite failing the test has re- ceived numerous recognitions from SEPTA for her per- formance. After the litigation was filed, SEPTA hired statisti- cians to examine the statistical relationship between the aerobic capacity of SEPTA’s officers and their num- ber of arrests, arrest rates, and number of commenda- 217 Bradley v. City of Lynn, 443 F. Supp. 2d 145, 159 (D. Mass. 2006). 218 181 F.3d 478 (3d Cir. 1999), cert. denied, 528 U.S. 1131 (2000). 219 469 F.3d 735 (8th Cir. 2006). 220 Lanning, 181 F.3d at 483. tions. Based on those reports and one estimating that more than 50 percent of people arrested for serious crimes221 between 1991 and 1996 had aerobic capacity above that required to pass the test, the district court found that SEPTA had established the aerobic capacity requirement to be job related and justified by business necessity. The district court also relied on a report that found a significantly smaller decrease in ability to per- form physical activity after a 3-minute run among offi- cers with aerobic capacities slightly above those re- quired by the test than the decrease in ability among those with a lesser aerobic capacity. After reviewing the facts as described above, Judge Mansmann reviewed the legal framework for examining a Title VII disparate impact claim, focusing almost ex- clusively on the “business necessity” prong of the job related and consistent with business necessity defense, as well as the history of the disparate impact doctrine and the introduction of the concept of business neces- sity as the touchstone for evaluating disparate impact claims. He categorized Wards Cove as departing from previous interpretations of the business necessity test. Judge Mansmann explained that the Civil Rights Act of 1991 was passed to codify the interpretations of busi- ness necessity and job related set forth in Griggs and the other Supreme Court cases before Wards Cove, making clear that the employer bears both the burden of production and persuasion in establishing the busi- ness necessity defense. The court cited the statutory language concerning business necessity, including the statutory directions concerning legislative interpreta- tion of the 1991 Act. Judge Mansmann acknowledged that following en- actment “proponents of both a strict test for business necessity and a more liberal requirement claimed vic- tory in the standard adopted by the Act.”222 However, given that the Supreme Court had not addressed the issue since the passage of the 1991 Civil Rights Act and that the circuit court opinions that had applied the 1991 Act’s standards had done so “with little analysis,”223 Judge Mansmann looked to Congress’s interpretive memorandum, concluding that Congress had distin- guished between Griggs and Wards Cove and had clearly intended to endorse the Griggs standard, so that the Wards Cove standard had not survived enactment of the 1991 Civil Rights Act. The court explained its articulation of the minimum qualifications standard as follows: In the context of a hiring exam with a cutoff score shown to have a discriminatory effect, the standard that best ef- fectuates [the mission begun in Griggs] is implicit in the Court's application of the business necessity doctrine to the employer in Griggs, i.e., that a discriminatory cutoff score is impermissible unless shown to measure the 221 These crimes accounted for about 10 percent of all re- ported incidents and 7 percent of all reported arrests. Id. at 484, n.8. 222 Id. at 488. 223 Id.

26 minimum qualifications necessary for successful per- formance of the job in question. Only this standard can ef- fectuate the mission begun by the Court in Griggs; only by requiring employers to demonstrate that their dis- criminatory cutoff score measures the minimum qualifi- cations necessary for successful performance of the job in question can we be certain to eliminate the use of exces- sive cutoff scores that have a disparate impact on minori- ties as a method of imposing unnecessary barriers to em- ployment opportunities.224 Having concluded that Griggs and its progeny re- quire a minimum qualifications standard, the court deemed it a foregone conclusion that the 1991 Act, which required conformance with the Griggs standard, incorporated the minimum qualifications standard in its definition of business necessity. The court also discussed the policies behind the dis- parate impact theory of discrimination, noting that an employer’s job requirements could incorporate stan- dards based on historically discriminatory biases rather than actual job requirements; accordingly, the mini- mum qualifications standard is needed to protect against covert discrimination. Accordingly, the court held that the business necessity standard adopted by the Act must be interpreted in accordance with the standards articu- lated by the Supreme Court in Griggs and its pre-Wards Cove progeny which demand that a discriminatory cutoff score be shown to measure the minimum qualifications necessary for the successful performance of the job in question in order to survive a disparate impact chal- lenge.225 Furthermore, the court specifically rejected the dis- sent’s argument that Spurlock v. United Airlines, Inc.226 precluded applying the minimum qualifications stan- dard to a safety-related job, taking instead the position that since the Supreme Court had not adopted Spurlock, it was excluded by the 1991 Act. In addition, the court noted that if SEPTA could show failure to meet a certain aerobic capacity would endanger public safety, such a requirement would then meet the stan- dard the Court of Appeals had articulated.227 224 Id. at 489. The court found support in both Albemarle and Dothard to reinforce the conclusion that the minimum qualifications standard is implicit in Griggs and central to the mission of eradicating discrimination practiced by applying facially neutral but in effect discriminatory employment prac- tices: “Taken together, Griggs, Albemarle and Dothard teach that in order to show the business necessity of a discriminatory cutoff score an employer must demonstrate that its cutoff measures the minimum qualifications necessary for successful performance of the job in question. Id.” 225 Id. at 490. 226 475 F.2d 216 (10th Cir. 1972) (holding lower standard of showing job relatedness for safety-related positions). 227 Lanning, 181 F.3d at 491, n.16. Cf,, Zamlen v. City of Cleveland, 906 F.2d 209, 217 (6th Cir. 1990) (Recognizing Spurlock doctrine, relying on Wards Cove standard for estab- lishing required burden of proof.) The argument that the Spurlock doctrine survived the Civil Rights Act of 1991 is con- sidered controversial. Andrews & Risher, supra note 31, at 9. Judge Mansmann found that the district court had rejected the Dothard standard as dicta, relying instead on language in Beazer, supra, which language Judge Mansmann stated was dicta and in any event mirrored the Wards Cove approach rejected by the 1991 Act. Moreover, the appellate court found that the district court had erred in relying on the SEPTA consultant’s expertise and in failing to consider whether the dis- puted cutoff in fact reflected the minimum aerobic ca- pacity necessary to successfully perform the job in ques- tion.228 The court rejected the “more is better” approach as sole validation for adopting particular cutoff scores, suggesting that such an approach is antithetical to the policies underlying Title VII and disparate impact the- ory. Following the district court’s rationale, any em- ployer whose jobs entail physical activity could adopt unnecessarily high cutoff scores on the theory that more is better, thereby eliminating virtually all women using a facially neutral, but effectively discriminatory, crite- rion, a result the Third Circuit found to contravene Griggs. Therefore, the appellate court vacated the lower court’s judgment and remanded with instructions to reconsider, using the appellate court’s standard, whether SEPTA had met its burden of establishing that the 1.5-mi test measured the minimum aerobic capacity for successful job performance by a SEPTA police offi- cer. In particular, the appellate court noted that plain- tiff’s evidence concerning lack of correlation between the test and minimal job qualifications (that incumbent officers had failed the test but successfully performed the job and that other police forces do well without this type of test) was in fact relevant and should be consid- ered by the district court upon remand. Upon remand the district court held another hearing and found that SEPTA had met the burden of persua- sion as set forth by the Court of Appeals. When that decision was again appealed to the Third Circuit, a dif- ferent three-judge panel upheld the district court, find- ing that SEPTA had established that its aerobic capac- ity test “measure[d] the minimum qualifications necessary for successful performance as a SEPTA tran- sit police officer and ha[d], thus, justified the conceded disparate impact on female candidates by showing business necessity.”229 228 The district court had relied on a study that the consult- ant had done for the Anne Arundel County police department; however the appellate court found fault with using that study to validate the SEPTA cutoff score, in that there was no finding that the job descriptions were similar, nor that the Anne Arundel study measured for qualities relevant to qualities significant to SEPTA transit police performance. Lanning, 181 F.3d at 491, n.18. See also United States v. City of Erie, 411 F. Supp. 2d 524 (W.D. Pa. 2005). 229 Lanning v. SEPTA, 308 F.3d 286, 288 (3d Cir. 2002) (Lanning II). The original panel for Lanning II included Judges Mansmann, McKee, and Barry. However, Judge Mansmann died before the opinion was rendered and the panel was recon- stituted to include Judge Roth. Since Judge Mansmann au- thored the opinion in Lanning I and Judge McKee dissented from the opinion in Lanning II, it is possible that had Judge

27 The Third Circuit explained that an employer could show that a passing standard reflects the “minimum qualifications necessary” for successful performance by showing that individuals who pass the test are “likely to be able to do the job” whereas individuals who fail the test “will be much less likely to successfully execute critical policing tasks.”230 In applying that standard to the case at hand, the Third Circuit found that the dis- trict court’s analysis of SEPTA’s justifications was not clearly erroneous, establishing that what the aerobic capacity tested was related to a SEPTA police officer’s job performance because studies indicated “that indi- viduals who fail the test will be much less likely to suc- cessfully execute critical policing tasks.”231 The court emphasized that although the test produced disparate impacts, women who trained for the test were able to pass it at higher rates, deeming it reasonable for SEPTA to expect applicants to make the commitment to physical fitness before they are hired, rather than after. Takeaway: “More is better” is not a sufficient ration- ale for test cutoff scores. To show business necessity, a discriminatory test cutoff score should measure the minimum qualifications necessary for successful per- formance of the job in question. The fact that individu- als did not pass a preemployment test (failed/test not administered) and yet successfully perform essential functions of the job undercuts the business necessity defense. Dial: This case involved a challenge to a strength test used by a meat packing plant, ostensibly instituted to reduce on-the-job injuries. The EEOC alleged that Dial had engaged in intentional discrimination and that its test had an unlawful disparate impact on females, an allegation upheld by both the district and appellate courts. Specifically, employees at Dial’s sausage packing area were required to carry about 35 lb of sausage at a time, lifting and loading the sausage to heights of 30 to 60 in. above the floor. These workers experienced dis- proportionately more injuries than other workers in the plant. In late 1996, Dial began measures to reduce these injuries, including ergonomic job rotation, imple- menting a team approach, and reducing machine heights. In 2000, Dial began using the Work Tolerance Mansmann remained on the panel, Lanning II might not have upheld SEPTA’s aerobic test. 230 Id. at 291. 231 Id. The Court of Appeals noted: …the District Court credited a study that evaluated the cor- relation between a successful run time and performance on 12 job standards. The study found that individuals who passed the run test had a success rate on the job standards ranging from 70% to 90%. The success rate of the individuals who failed the run test ranged from 5% to 20%. The District Court found that such a low rate of success was unacceptable for employees who are regularly called upon to protect the public. In so doing, the District Court implicitly defined “minimum qualifications neces- sary” as meaning “likely to be able to do the job.” Id. (footnote omitted.) Screen (WTS), which required applicants to lift and lower a 35-lb bar between two frames, 30 and 60 in. above the floor. Applicants were given 7 minutes to work at their “own pace” while an occupational thera- pist took notes on their performance, documenting how many lifts were accomplished. In the 3 years before Dial instituted the WTS, women constituted 46 percent of new hires; that number dropped to 15 percent after the test was begun. Both overall injuries and strength- related injuries declined after the test was imple- mented, but that trend had begun in 1998 after Dial began other measures to reduce injuries.232 The EEOC’s expert on industrial organization testi- fied that the WTS was significantly more difficult than the actual job requirement, as the job required an aver- age of 1.25 lifts per minute, with rests between lifts, while test takers performed an average of 6 lifts per minute, with no breaks. In addition, according to the expert, women’s rate of injury had been lower than men’s in 2 of the 3 years before WTS was implemented. Based on his analysis of the written evaluations, more men than women were offered employment even though their evaluations were similar. There was also evidence that the occupational nurse had marked some women as failing even though they had completed the test. Dial’s expert on work physiology testified to his opinion that the test effectively tested skills representative of the actual job. Dial’s industrial and organizational psy- chologist testified that the WTS measured job require- ments and the decrease in job injuries could be attrib- uted to the test. The plant nurse testified that Dial knew that WTS was screening out more women, but its continued use was justified by the decrease in inju- ries.233 The Eighth Circuit found that a reasonable jury could have found Dial’s pattern of differing treatment of men and women supported an inference of intentional discrimination.234 232 EEOC v. Dial, 469 F.3d 735, 739 (8th Cir. 2006). 233 Id. at 739–40. 234 Id. at 742 (8th Cir. 2006). The court reviewed the stan- dard for finding a pattern or practice of intentional discrimina- tion: A pattern or practice of intentional sex discrimination must be shown by proving “regular and purposeful” discrimination by a preponderance of the evidence, Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 339, 360, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). EEOC must show that more than an isolated act of dis- crimination occurred and that "discrimination was the com- pany's standard operating procedure," id., but statistics com- bined with anecdotal examples of discrimination may establish a pattern or practice of regular, purposeful discrimination. Mor- gan v. United Parcel Service of America, Inc., 380 F.3d 459, 463–64 (8th Cir. 2004). Moreover, discriminatory intent can be inferred from the mere fact of differences in treatment, Team- sters, 431 U.S. at 335 n.15. Id. at 741. The court noted that the statistical disparity be- tween the pass rate for men and women far exceeded the stan- dard of significance, and yet Dial continued to use the test, arguing that “men and women are not similarly situated and have profound physiological differences.” However, men and women had both worked the job before the test was imple-

28 The court noted that given a prima facie case of dis- parate impact, the employer must show that the test in question is “related to safe and efficient job performance and is consistent with business necessity,”235 with the business necessity defense requiring proof that the test was related to the job in question and its required skills and physical requirements.236 There was no clear error in the district court’s giving more credibility on the con- tent validity issue to the EEOC’s expert in industrial organization concerning the difficulty of the test com- pared with the job than to Dial’s physiology expert on the representative nature of the WTS. The evidence— which showed that the decrease in injuries started 2 years before the test was implemented and that in that time women had had lower injury rates than men—did not require the trial court to find that WTS had caused a decrease in injury and therefore was criterion valid. Finally, although the burden of showing the existence of a less discriminatory alternative would have fallen to the EEOC if Dial had established its business necessity test, in this case showing that the other safety meas- ures had not caused the decrease in injury was part of Dial’s burden of establishing the necessity of the WTS. Takeaway: If an employment practice with disparate impact is meant to reduce injuries, the employer should be able to validate that effect; if the effect is disputed, proving validity may be part of the employer’s business necessity defense; tasks in a preemployment screening test should not be more onerous than actual job tasks. Safety justification—The Eleventh Circuit has held that protecting employees from workplace hazards is a legitimate business goal sufficient to justify an em- ployment practice that may have disparate impact.237 Fitzpatrick involved a challenge to the Atlanta Fire Department’s requirement that firefighters be clean- shaven. The plaintiffs argued that the policy had a dis- criminatory disparate impact on African American men, many of whom cannot shave because of a medical condi- tion. The City of Atlanta defended its rule on safety grounds: individuals with facial hair could not safely wear the firefighter’s positive-pressure, self-contained breathing apparatus (SCBA), as facial hair interferes with the respirator’s seal. In support of its position, the city cited three national standards recommending against wearing SCBAs with facial hair contacting the sealing surface of the face piece, those of the American National Standards Institute, the National Institute for Occupational Safety and Health, and OSHA.238 The court rejected the plaintiffs’ argument that a 6-year mented, and similarly situated men were hired when women were not. 235 Id. at 742 (8th Cir. 2006), citing Firefighters Inst. for Ra- cial Equality v. City of St. Louis, 220 F.3d 898, 904 (8th Cir. 2000). 236 Id. at 742, citing Belk v. SW. Bell Tel. Co., 194 F.3d 946, 951 (8th Cir. 1999). 237 Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993). 238 Id. at 1120. period in which the city allowed “shadow beards” did not establish that such an accommodation was really safe. The court was particularly influenced by the na- tional standards, which although not binding on the city, were nonetheless taken as “a trustworthy bench mark for assessing safety-based business necessity claims”; the court held that the only reasonable infer- ence supported by those standards was that shadow beards are prohibited under those standards.239 Takeaway: Even if nonbinding, national standards may provide benchmarks for assessing safety-based business necessity claims. Less Discriminatory Alternative.240—If an employ- ment test that has disparate impact is in fact job- related and consistent with business necessity, it may nonetheless be held unlawful if the plaintiff can show that a less discriminatory—but still effective—test could be used. However, the cost or burden of the plain- tiff’s identified alternative may be taken into account in determining effectiveness.241 Less discriminatory alter- natives may apply to the cut-off scores as well as the test itself. 242 Assuming more than one alternative pre- sents itself, the employer is not necessarily required to adopt the employment practice with the least adverse impact.243 239 Id. at 1121. 240 If the underlying job task itself may be readily reconfig- ured, the court may find that a less discriminatory alternative exists. For example, the Alaska statute prohibiting unemploy- ment discrimination provides that it is unlawful to discrimi- nate in employment when the reasonable demands of the posi- tion do not require making the distinction. The Alaska Supreme Court construes the exception narrowly, taking the word “demands” to mean “requirements or necessities that are of an urgent nature.” McLean v. State of Alaska, 583 P.2d 867, 869 (Alaska 1978). In McLean the court noted that in the case of a job that required employees to haul 100-lb bundles of laun- dry, there was not only no showing that women could not haul the bundles, but no showing that the laundry could not be placed in smaller bundles, thereby obviating the problem alto- gether. Id. at 870. 241 Allen v. City of Chicago, 351 F.3d 306, 312 (7th Cir. 2003). In the context of arguing that a selection procedure with a higher percentage of merit-based promotions would be as valid as the challenged procedure, the Seventh Circuit held that the plaintiffs were required to show their alternative pro- cedure would lead to a workforce substantially equally quali- fied as would the challenged procedure. In addition, the court found that the cost or other burdens of the alternative proce- dure should be taken into account in evaluating whether the alternative is an equally valid alternative. Moreover, the court held that a nondiscriminatory history for a type of selection procedure is insufficient to establish that a similar procedure would be less discriminatory than the challenged procedure. Id. at 313–17. The Ninth Circuit has also recognized that cost of the alternative procedure is a legitimate concern. Clady v. County of L.A., 770 F.2d 1421, 1432 (9th Cir. 1985). 242 Jackson, supra note 1, at 207–8. 243 Clady, 770 F.2d at 1432, citing Guardians Ass’n of the N.Y. City Police Dep’t v. Civil Serv. Comm’n, 630 F.2d 79, 110 (2d Cir. 1980).

29 Takeaway: Employers need not sacrifice effective- ness in selecting a less discriminatory method for measuring ability to perform essential functions of the job. 5. EEOC Uniform Guidelines/Test Validation Some of the EEOC’s most significant guidance is contained in the Uniform Guidelines on Employee Se- lection Procedures.244 The guidelines were originally adopted in 1978 by the EEOC, Civil Service Commis- sion, Department of Labor, and DOJ to provide employ- ers and others with a uniform set of principles for com- plying with federal law prohibiting employment practices that discriminate on the basis of race, color, religion, sex, and national origin. The EEOC guidelines are perhaps the most widely cited source. The EEOC applies the Uniform Guidelines in enforc- ing Title VII, as does the DOJ in exercising its respon- sibilities under federal law. The Uniform Guidelines apply to procedures used to make a wide range of em- ployment decisions, such as hiring, retention, promo- tion, demotion, transfer, referral, or firing. The guide- lines do not have the force of law but indicate the standards the EEOC applies in enforcing Title VII, and—as noted in Albemarle, supra—are normally given great deference by reviewing courts.245 The Uniform Guidelines cover the relationship between the use of selection procedures and discrimination, as well as pro- viding standards for test validation. The EEOC has also published guidance interpreting and clarifying the regulatory guidelines.246 Under the Uniform Guidelines, an employee selec- tion procedure that has an adverse impact on a pro- tected class will be considered discriminatory unless the procedure has been validated as consistent with the guidelines (except in limited circumstances described in the guidelines).247 Since an employer—assuming more 244 EEOC: 29 C.F.R. pt. 1607 (2009), www.access.gpo.gov/ nara/cfr/waisidx_09/29cfr1607_09.html; DOJ: 28 C.F.R. § 50.14, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/28cfr 50.14.pdf. 245 Albemarle Paper, 422 U.S. at 431 (1975). The Ninth Cir- cuit has held that “while noncompliance [with the Uniform Guidelines] is not necessarily fatal, it diminishes the probative value of the defendants' validation study.” Ass’n of Mexican- American Educators v. State of Cal., 195 F.3d 465, 487 (9th Cir. 1999), citing Clady v. County of L.A., 770 F.2d 1421, 1430 (9th Cir. 1985) (internal quotations omitted). See also United States v. City of Chicago, 573 F.2d 416, 427 (7th Cir. 1978) (employer’s burden of justification heavier if EEOC Guidelines not followed). 246 EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html. 247 29 C.F.R. § 1607.3, Discrimination defined: Relationship between use of selection procedures and discrimination, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.3. pdf; § 1607.6, Use of selection procedures that have not been validated, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29 cfr1607.6.pdf. than one appropriate selection procedures is available— should adopt the procedure with less adverse impact, whenever a validity study is called for the employer should include exploration of alternative selection pro- cedures in the study.248 While validation may be consid- ered good personnel management procedure, it is only required when a procedure results in adverse impact on a protected class.249 Once adverse impact is demon- strated, however, the EEOC considers it a violation of the Uniform Guidelines to continue using the procedure without validating it. Professionally accepted means of validation other than the EEOC Guidelines may be used to validate tests, providing the studies meet re- quirements set forth in the Guidelines, such as job simi- larity and fairness evidence for criterion-related valid- ity evidence,250 but federal enforcement agencies will give precedence to the EEOC Guidelines.251 Under the guidelines, adverse impact is a “substan- tially different rate of selection in hiring, promotion, or other employment decision which works to the disad- vantage of members of a race, sex, or ethnic group.”252 The EEOC’s rule of thumb for adverse impact is the four-fifths rule: if the selection rate for a protected class is less than 80 percent of the selection rate for the group with the highest selection rate, the procedure is 248 29 C.F.R. § 1607.3, Discrimination defined: Relationship between use of selection procedures and discrimination, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.3. pdf. 249 29 C.F.R. § 1607.1, Statement of purpose, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.1. pdf. 250 29 C.F.R. § 1607.7, Use of other validity studies, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.7. pdf. Clady v. County of L.A., 770 F.2d 1421, 1430 (9th Cir. 1985). Two other major sources of validation are the Standards for Educational and Psychological Testing (American Educa- tional Research Association, American Psychological Associa- tion, and National Council on Measurement in Education, 1999) and the Principles for the Validation and Use of Person- nel Selection Procedures (Society for Industrial and Organiza- tional Psychology, 2003) [PRINCIPLES FOR THE VALIDATION AND USE OF PERSONNEL SELECTION PROCEDURES, (4th ed. 2003), www.siop.org/_Principles/principles.pdf.]. Richard Jeanneret, Professional and Technical Authorities and Guidelines, in EMPLOYMENT DISCRIMINATION LITIGATION: BEHAVIORAL, QUANTITATIVE, AND LEGAL PERSPECTIVES (Frank J. Landy & Eduardo Salas, eds., 2005). Jeanneret includes a comparison of these two sources of validation and the Uniform Guidelines, and suggests that the approach in the Uniform Guidelines of dividing validity into three types is outdated. 251 EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html, Ques- tion 40. 252 29 C.F.R. § 1607.16.B Definitions: Adverse Impact. See Bernard R. Siskin & Joseph Trippi, Statistical Issues in Litiga- tion, in EMPLOYMENT DISCRIMINATION LITIGATION: BEHAVIORAL, QUANTITATIVE, AND LEGAL PERSPECTIVES (Frank J. Landy & Eduardo Salas, eds., 2005).

30 deemed to have a disparate impact.253 This rule does not have the force of law, but is considered to be a good in- dictor that a procedure likely has an adverse impact. However, statistically significant differences in selec- tion rates of less than 20 percent may still result in unlawful discrimination.254 Conversely, if the number of people selected is very small, there may not be unlawful discrimination even if the rates would normally trigger the four-fifths rule. A factor to consider in this regard is whether there is a pattern of selection differences over time.255 In determining adverse impact, the EEOC first looks at the overall selection process and then examines each selection procedure within the process. If there is no overall adverse impact, there is generally no reason to examine individual components of the process.256 Ad- verse impact determinations should be made for each group constituting 2 percent or more of either the em- ployer’s workforce or the workforce in the relevant labor market.257 Where a specific selection procedure has been held not to be job related in similar circumstances, the em- ployer should have evidence of the procedure’s validity. An example is minimum height requirements.258 Validation is “the demonstration of the job related- ness of a selection procedure.”259 The Guidelines provide for three types of validation: criterion-related, content, and construct.260 The EEOC describes these validation strategies as follows:261 253 29 C.F.C. § 1607.4 Information on impact, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.4. pdf. 254 See Isabel v. City of Memphis, 404 F.3d 404, 411–13 (6th Cir. 2005). 255 EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html, Ques- tion 21. 256 Id., Question 13. 257 29 C.F.R. § 1607.15 Documentation of impact and valid- ity evidence, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.15. pdf. 258 EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html, Ques- tion 25. 259 Id., Question 32. 260 Other sources may describe validation somewhat differ- ently. For example, the American Psychological Association Standards set forth 5 validation strategies or sources of valid- ity evidence and 24 specific validity standards. Jeanneret, su- pra note 250. 261 EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html, Ques- tion 32. See, e.g., United States v. City of Erie, 411 F. Supp. 2d 524 (W.D. Penn. 2005). (1) Criterion-related validity—a statistical demonstration of a relationship between scores on a selection procedure and job performance of a sample of workers. (2) Content validity—a demonstration that the content of a selection procedure is representative of important as- pects of performance on the job. (3) Construct validity—a demonstration that (a) a selec- tion procedure measures a construct (something believed to be an underlying human trait or characteristic, such as honesty) and (b) the construct is important for successful job performance. Of these three, criterion-related and content are most relevant for physical ability tests. The appropri- ateness of validation strategy depends on the type of selection procedure and job, and technical and adminis- trative feasibility. The EEOC advises that where the following conditions exist, the employer should consider a criterion-related validation study: a substantial num- ber of individuals for inclusion in the study, a consider- able range of performance on the selection and criterion measures, and reliable and valid measures of job per- formance either available or capable of being developed. Where criterion-based validity studies are conducted, the employer should investigate fairness. A procedure is unfair if average results for one group are lower than average results for another group, but members of the first group perform as well on the job as members of the second group.262 Content validity is appropriate where work samples or other operational measures of prereq- uisite skills can be developed, but not for skills or abili- ties that are expected to be learned on the job.263 Criterion-related tests measure skills that estimate or predict critical job duties, behaviors, or outcomes. For example, if a job analysis shows that lifting is an important factor, a selection test that measures strength (correlated to the type of lifting required) would be used. “Predictive validation requires a com- parison between an applicant's test scores and subse- quent on-the-job performance as an employee; concur- rent validation methods correlate the test scores of present employees vis-a-vis their present job perform- ance.”264 Content tests reflect important elements of the job, and are often work sample tests. Lifting a 50-lb box would be a content-based test for a job that requires 262 EEOC, Uniform Employee Selection Guidelines Interpre- tation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html, Ques- tions 67–68. 263 Id. Question 51. 29 C.F.R. § 1607.14B. Technical stan- dards for criterion-related validity studies, 14C. Technical standards for content validity studies, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.14.p df. Under certain circumstances there may also be operational advantages to using criterion-valid tests. See Jackson, supra note 1, at 122. 264 Vulcan Soc’y of N.Y. City Fire Dep’t v. Civil Serv. Comm’n, 490 F.2d 387, 394 (2d Cir. 1973); Firefighters Inst. for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir. 1977).

31 lifting 50-lb packages.265 Generally, content-based tests should be used as a pass-fail measure rather than rank- ing candidates. Content-based tests are the most direct measurement of job performance capability, provided that they in fact measure critical job elements. The Uni- form Guidelines provide: The closer the content and the context of the selection procedure are to work samples or work behaviors, the stronger is the basis for showing content validity. As the content of the selection procedure less resembles a work behavior, or the setting and manner of the administration of the selection procedure less resemble the work situa- tion, or the result less resembles a work product, the less likely the selection procedure is to be content valid, and the greater the need for other evidence of validity.266 The standards for conducting validity studies are de- scribed in detail under the Uniform Guidelines.267 Dem- onstrating a rational relationship between an employ- ment procedure and the job in question is not sufficient for purposes of Title VII.268 Cut-off scores must also be validated for a relationship to successful job perform- ance.269 That is, there must be some evidence supporting the conclusion that a cut-off score is related to job profi- ciency.270 As illustrated by United States v. City of Erie,271 tak- ing a casual approach to test design and validation is legally perilous. The City of Erie court found that using incumbent employees to design or validate a test does not meet professionally-established standards. Rather, criterion-related validity can only be established by collecting data on test scores and job performance measures and performing statistical analyses to show that there is “a relationship between the predictor and the criterion such that individuals who have higher test scores tend to have higher levels of performance and 265 James A. Hodgdon & Andrew S. Jackson, Physical Test Evaluation for Job Selection in THE PROCESS OF PHYSICAL FITNESS STANDARDS DEVELOPMENT 140–43 (Stefan Constable, Barbara Palmer eds., 2000), www.dtic.mil/cgi- bin/GetTRDoc?AD=ADA495349&Location=U2&doc=GetTRDoc .pdf (accessed Oct. 27, 2009). 266 29 C.F.R. § 1607.14C (4) Standards for demonstrating content validity, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.14. pdf. 267 29 C.F.R. § 1607.14, Technical standards for validity studies, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.14. pdf. 268 Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). EEOC, Uniform Employee Selection Guide- lines Interpretation and Clarification (Questions and Answers), www.uniformguidelines.com/questionandanswers.html, Ques- tion 37. 269 Isabel v. City of Memphis, 404 F.3d 404 (6th Cir. 2005). 270 Thomas v. City of Evanston, 610 F. Supp. 422, 431 (N.D. Ill. 1985), citing 29 C.F.R. § 1607.5(H) [Cutoff scores, http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1607.5 .pdf]. 271 411 F. Supp. 2d 524 (W.D. Pa. 2005). individuals who have lower test scores tend to have lower levels of performance.”272 Moreover, even the opin- ions of an expert in industrial physiology must be sup- ported by empirical evidence or persuasive analysis to provide validation; expert assumptions are not an ade- quate substitute for a research design study as valida- tion.273 The City of Erie court also found that where a physical ability test is composed of several components but timed based on completing the entire test, the test should be validated as a single test, not on a component basis. In City of Erie, a police candidate physical ability test (PAT) included three components—a 220-yd obsta- cle course, 17 push-ups, and 9 sit-ups—to be completed within 90 seconds.274 The district court found that be- cause these components were not structurally inde- pendent, they could not be validated separately. Moreover, the court found that the city did not estab- lish that the passing standard of the PAT reflected the minimum level of physical ability necessary for success- ful job performance; rather a review of the standard- setting process suggested that the standard had been set too high. A key factor was the litany of officers who either failed the test or barely passed it and yet were not shown to be minimally-performing officers. The court also noted that the fact that substantial numbers of successful incumbent officers could not pass the test suggested that the standard for passing did not corre- late to minimum qualifications necessary to successful job performance. Accordingly, the court concluded that the city had failed to demonstrate business necessity. Regardless of the type of validation at issue, the en- tire validation process may fail where the job analysis is deficient. Absent a thorough job analysis, assessment of appropriate content is impossible.275 The Thomas court also found that using the physical agility tests in ques- tion to rank candidates was impermissible as the de- fendants produced no evidence that a passing score was valid prediction of successful job performance, let alone that a candidate who scored highly would perform bet- ter than a candidate who passed with a lower score. Takeaway: Test design and validation must meet professionally accepted standards, including being based on a thorough job analysis and being supported by objective evidence that shows correlation between the passing score and successful job performance. The employer remains legally responsible for test design and validation. 272 Id. at 558. 273 Id. at 558–59, 569–70. 274 Id. at 532–53. By the time of the district court decision, the City of Erie had discontinued the PAT and required instead that applicants for entry-level police officer positions be certi- fied as law enforcement officers by the Commonwealth. That certification requires scoring in the 50 percent percentile on an age and gender-normed physical agility test. Id. at 534, n.8. 275 Thomas v. City of Evanston, 610 F. Supp. 422 (N.D. Ill. 1985) (analysis based on three respondent’s answers to seven- question survey and observations of graduate student during ride-alongs with police insufficient for thorough job analysis); Legault v. aRusso, 842 F. Supp. 1479, 1488–89 (D. N.H. 1994).

32 6. Gender/Age Norming Despite the 1991 amendments to the Civil Rights Act, gender norming may be upheld where it does not act to impose greater burdens of compliance on either sex. For example, a Michigan court upheld a gender- normed performance skills test required by the Michi- gan State Police for entry into the police academy. Two male candidates who had failed to meet the passing standard for men, but who would have passed under the standard for women, argued that the test amounted to intentional gender-based discrimination in violation of the Michigan Constitution and civil rights act. They also argued that if gender norming was constitutional, the test should be age-normed as well. The court re- jected both arguments, finding that the Michigan Con- stitution does not require equal treatment of individu- als not similarly situated. The court held that tests that control for “inherent ‘immutable’ characteristics as be- tween males and females and thus provide differing standards” do not violate equal protection.276 The court then applied the heightened scrutiny test to determine whether the gender-normed test was substantially re- lated to an important government purpose. The court found that the gender-normed test was intended to de- termine the most physically fit female candidates, rather than to exclude male candidates. The test served to expand the available pool of candidates, and served the important government interest of avoiding the dis- parate impact that a single standard would have on female candidates. The court also rejected the age dis- crimination argument, finding that the plaintiffs did not establish their protected class status, or that age, rather than physical fitness, was the factor causing any disparity in test results. A Vermont court reached a similar result in review- ing a challenge to the Vermont State Police’s physical fitness requirements for incumbent officers.277 The Ver- mont test required that officers meet the fitness ability for the 50th percentile of the general population under the Cooper Institute for Aerobic Research standard. The Vermont State Police had studied the benefits of the physical fitness requirement before making it manda- tory, finding a number of recognized benefits, including decreased lost workdays due to workers’ compensation claims, decreased absenteeism, and decreased health problems. The fitness standard was both age-and gen- der-normed. The plaintiff argued that the fitness re- quirements constituted impermissible discrimination because he was held to a higher standard than female or older troopers required to perform the same job du- ties. The Vermont Labor Relations Board had held that the test held males and females to the same level of fitness based on their aerobic capacity and older per- sons and younger persons to the same level of fitness based on their aerobic capacity. The court found that the plaintiff failed to make out a prima facie case, be- 276 Alspaugh v. Mich. Law Enforcement Officers Training Council, 246 Mich. App. 547, 556, 634 N.W.2d 161, 166 (2001). 277 In re Scott, 172 Vt. 288, 779 A.2d 655 (Vt. 2001). cause he had not established that he was discriminated against as a member of a protected class. Male troopers did not have a higher rate of failure under the standard than female troopers. Moreover, the plaintiff would have failed the test even if he had been held to the fit- ness standard for female or older troopers. The plaintiff also argued that the mandatory physical fitness stan- dards must be related to specific job requirements to be permissible. The court noted that all cases requiring that physical fitness standards be job related imposed that requirement only after a prima facie case of dis- crimination had been established. Since no such case had been established, the court did not reach that issue. A gender-normed, sit-and-reach test was referenced but not discussed in Conroy v. City of Philadelphia. The test at issue was part of a mandatory physical fitness exit exam from the police academy.278 Takeaway: While separate passing scores for as- sessments that affect employment standing are unlaw- ful under Title VII as amended by the 1991 Act, using gender and age adjusted standards for general physical fitness, e.g., requiring that applicants score in the 50th percentile, when such percentiles are commonly gender and age normed, may be permissible. Gender-and age- norming general health standards may be permissible because they actually provide a way to measure differ- ently situated groups so as to provide equivalent meas- ures of fitness. Gender norming may also be upheld where it is used to enlarge a pool of applicants rather than to exclude applicants at the hiring stage. B. Prohibitions Against Discrimination Based on Physical Disability Title I of the ADA279 prohibits discrimination against a qualified individual on the basis of disability in any aspect of employment, including hiring, advancement, or discharge.280 Failure to make reasonable accommoda- 278 421 F. Supp. 2d 879 (E.D. Pa. 2006). 279 Unless otherwise noted, the following EEOC guidance documents are the reference sources for requirements cited in this section: EEOC, ADA Enforcement Guidance: Preemploy- ment Disability-Related Questions and Medical Examinations, www.eeoc.gov/policy/docs/medfin5.pdf; EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examina- tions of Employees Under the Americans with Disabilities Act, No. 915-002 (July 27, 2000), www.eeoc.gov/policy/docs/guidance-inquiries.html; Questions And Answers: Enforcement Guidance On Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (ADA), www.eeoc.gov/policy/docs/qanda-inquiries.html; EEOC En- forcement Guidance: Workers' Compensation and the ADA, www.eeoc.gov/policy/docs/workcomp.html. 280 42 U.S.C. § 12112(a). The Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796, prohibits discrimination on the basis of disability in federal employment and programs, including pro- grams receiving federal financial assistance. The standards for determining employment discrimination are the same under this act as under Title I of the ADA. U.S. Department of Jus- tice, Civil Rights Division, Disability Rights Section, A Guide

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

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

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

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

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

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

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

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

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

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

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

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

45 tion poses a direct threat to him/herself or others. The Supreme Court upheld the regulation in Chevron U.S.A. Inc. v. Echazabal.399 The Court engaged in exten- sive statutory construction analysis in finding the regulation did not exceed the statutory scope. Part of the Court’s analysis focused on the fact that exposing an employee with a liver condition to toxic chemicals would risk violating OSHA, specifically the requirement to furnish working conditions free from recognized haz- ards.400 The factors to be considered in evaluating the exis- tence of a direct threat include duration of the risk, na- ture and severity of the potential harm, likelihood that the potential harm will occur, and imminence of the potential harm.”401 The circuit courts are split over which party bears the burden of proof on the direct threat issue, with some circuits classifying direct threat as part of the plaintiff’s prima facie case and others regarding it as an affirmative defense.402 The Eleventh Circuit has held that the employee bears the burden of proof on this is- sue.403 The Second, Fifth, Seventh, Eighth, and Ninth Circuits have held that the defendant bears the burden of proof.404 The First Circuit has drawn a distinction between jobs involving public safety and those that do not, holding that where essential job functions implicate safety, the plaintiff bears the burden of establishing that he or she can perform them without endangering others, while where direct threat is a defense not tied to essential job functions the burden rests with the defen- 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 on the job would pose direct threat to his health). See also Siederbaum v. City of N.Y., 309 F. Supp. 2d 618 (S.D.N.Y. 2004) (general discussion of direct threat standard). 400 Eschazabal, 536 U.S. at 84, citing 29 U.S.C. § 654(a)(1). 401 29 C.F.R. § 1630.2(r), http://edocket.access.gpo.gov/cfr_2009/julqtr/pdf/29cfr1630.2. pdf. 402 Rene L. Duncan, The “Direct Threat” Defense Under the ADA: Posing a Threat to the Protection of Disabled Employees, 73 MO. L. REV. 1303, 1312 (2008). 403 Moses v. Am. Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996) (per curiam); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 836 (11th Cir. 1998); Waddell v. Valley Forge Dental Assoc., Inc., 276 F.3d 1275, 1280 (11th Cir. 2001). 404 Second Circuit: Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 220 (2d Cir. 2001); Hargrave v. Vermont, 340 F.3d 27, 35 (2d Cir. 2003). Fifth Circuit: Rizzo v. Chil- dren’s World Learning Centers, Inc., 84 F.3d 758 (5th Cir. 1996); .Seventh Circuit: U.S. EEOC v. AIC Security Investiga- tions, Ltd., 55 F.3d 1276, 1283–84 (7th Cir. 1995); Dadian v. Village of Willmette, 269 F.3d 831, 841 (7th Cir. 2001); Bran- ham v. Snow, 392 F.3d 896, 906–07 & n.5 (7th Cir. 2004). Eighth Circuit: EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007). Ninth Circuit: Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 893 (9th Cir. 2001); Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1027 (9th Cir. 2003). dant.405 The Tenth Circuit has similarly held that in the public safety arena, an employer may appropriately make not posing a threat to the safety of self or others part of the job qualifications standard, with the burden of proof resting with the plaintiff.406 Merely asserting a safety rationale for a practice does not establish that allowing a deviation to provide accommodation under the ADA would constitute a di- rect threat.407 For example, theoretical concerns about a bus driver’s abilities to respond in an accident due to the driver’s weight are not sufficient to establish a di- rect threat defense.408 Moreover, employers may not speculate about future risks from a perceived disability and deny employment based on that speculation. Thus, withdrawing an offer of employment after a review of an applicant’s workers’ compensation records showed a history of on-the-job injuries has been held to be a viola- tion of the ADA.409 5. State Law State law cannot reduce the protection provided un- der the ADA, but can increase it. Where the state law is modeled on the ADA,410 the state court may consider federal cases as persuasive authority in interpreting its own nondiscrimination statute.411 However, where the state law is not co-extensive, an individual may be con- sidered disabled under state law even if the individual is not considered disabled under the ADA.412 For exam- ple, the Ninth Circuit Court of Appeals, which had re- jected a challenge to UPS’s vision protocol under the ADA because the plaintiffs were found not to be dis- 405 EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997). 406 McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004) (em- ployer was sheriff’s department; employee had appropriately discharged firearm while off duty). 407 Turner v. Hershey Chocolate USA, 440 F.3d 604, 615 (3d Cir. 2006). 408 E.E.O.C. v. Tex. Bus Lines, 923 F. Supp. 965 (S.D. Tex. 1996). 409 Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955 (10th Cir. 2002). The court held: The results of a medical inquiry or examination may not be used to disqualify persons who are currently able to perform the essential functions of a job, either with or without an accommo- dation, because of fear or speculation that a disability may indi- cate a greater risk of future injury, or absenteeism, or may cause future workers' compensation or insurance costs. Id. at 960. 410 E.g., Kansas: Bowers v. Bethany Medical Ctr., 959 F. Supp. 1385 (D. Kan. 1997); Pennsylvania: McCarron v. British Telecom, 2002 U.S. Dist. LEXIS 15151 (E.D. Pa. 2002). 411 E.g., McDonald v. Dep’t of Envtl. Quality, 2009 MT 209, 351 Mont. 243 (2009). 412 E.g., Whitney v. Wal-Mart Stores, Inc., 2005 ME 37, 895 A.2d 309, 313 (2006) (Maine Human Rights Act definition of “disability” more extensive than that under ADA). See Isidore Silver, Application of ADA to Drug Dependence and Alcoholism § 10.20, 1 PUBLIC EMPLOYEE DISCHARGE AND DISCIPLINE (3d ed 2001).

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

47 Title VII liability even if the policy is based on state law.423 As the Second Circuit remarked: “Title VII ex- plicitly relieves employers from any duty to observe a state hiring provision ‘which purports to require or permit’ any discriminatory employment practice.”424 This issue of municipal liability depends on the law of the particular circuit and state.425 State law may bar prohibiting classes of individuals from receiving CDLs based on impairment, instead re- quiring case-by-case evaluations of the ability of dis- abled individuals to safely perform job-related responsi- bilities. Wisconsin’s Fair Employment Act, for example, requires that such determinations cannot be made by a general rule affecting a class of individuals, but must be made on a case-by-case basis, and a Wisconsin court has held that this provision applies to state regulations on physical standards for school bus drivers.426 Bothum concerned a school bus driver who was denied renewal of his license because of his use of an oral hypoglycemic agent to control his Type 1 diabetes. The court ad- dressed the question of how the above requirement of Wisconsin’s Fair Employment Act should be applied to the Wisconsin statute requiring applicants for school bus driver’s licenses to pass physical exams and the implementing regulation prohibiting without exception a person using a hypoglycemic agent from obtaining a school bus driver’s license. The court rejected the Wis- consin Department of Transportation’s argument that the only way to harmonize the two statutes was to read the transportation provision as an exception to the Fair Employment Act. Instead the court held that the de- partment was free to establish physical standards for licensing school bus drivers “so long as those standards do not constitute a general rule ‘prohibit[ing]…licensure of handicapped individuals in general or a particular class of handicapped individuals,’ within the meaning of sec. 111.34(2)(b), Stats [Fair Employment Act].” 427 State law may also require individualized determi- nations of physical performance ability, rather than relying solely on standardized requirements, under cer- 423 Conroy v. City of Phila., 421 F. Supp. 2d 879 (E.D. Penn. 2006). See also Andrews & Risher, supra note 31, at 23, 24 www.aele.org/andrews2006.pdf,; United States v. N.Y. State Dep’t of Motor Vehicles, 82 F. Supp. 2d 42 (E.D.N.Y. 2000) (fact that state agencies’ regulations, basis for bus company’s re- fusal to hire amputee, were invalidated under ADA and couldn’t have interfered with employment relationship between the driver/bus company/school district, didn’t preclude agencies from being liable to driver under ADA where agencies intended to enforce regulations). 424 Guardians Ass’n v. Civil Serv. Comm’n of N.Y., 630 F.2d 79, 105 (2d Cir. 1980) (quoting 42 U.S.C. § 2000e-7 (1976)). 425 See STUART M. SPEISER, CHARLES F. KRAUSE, & ALFRED W. GANS, 5 THE AMERICAN LAW OF TORTS, at ch. 17, Tort Claims Acts; Liability of Public Sovereignties or Bodies (1988). See §§ 17:23 and 17:24 for discussion of state tort claims acts in some 30 states. 426 Bothum v. State Dep’t of Transp., 134 Wis. 2d 378, 396 N.W.2d 785 (1986). 427 Id. at 383, 787. tain circumstances. For example, the Iowa Supreme Court has held that if the accuracy of the facts underly- ing a standardized employment requirement has been tested subject to a rule-making process allowing inter- ested parties to participate, such requirements may be a conclusive basis for decision making. However, where absolute rules have not been adopted, individualized assessments are required. Thus, where the city had not formally adopted a minimum cardiopulmonary per- formance requirement for spirometry tests for firefight- ers, an employee adversely affected by the requirement was entitled to challenge its factual basis.428 State law may require that employers may only re- quire medical exams as a condition of employment— that is for job applicants and current employees—if the employer pays for the exam. Violations may result in a fine.429 State law may also limit the scope of medical inquiries.430 Takeaway: Passing muster under the ADA may not be sufficient to avoid liability under state law. In evalu- ating risks under state law of implementing physical ability testing, it is advisable to evaluate the scope of state nondiscrimination law to determine whether state law is more expansive than the ADA. C. Age Discrimination in Employment Act ADEA prohibits discrimination against individuals age 40 years or older in any aspect of employment. ADEA does allow employers to favor workers age 40 years and older, even when doing so may adversely af- fect a younger worker who is age 40 years or older. 428 Smith v. Des Moines Civil Serv. Comm’n, 561 N.W.2d 75 (Iowa 1997). In Smith a firefighter failed a stress test recom- mended by a consultant to the city for pulmonary function testing of firefighters required to wear a self-contained breath- ing apparatus (SCBA). Four other doctors found the firefighter fit for duty. Because the stress test requirement had not been formally adopted, the court reviewed the individual circum- stances of the plaintiff, found that the totality of the evidence showed that the plaintiff was physically capable of performing fire suppression duties as required, and ordered the plaintiff reinstated in his job. The same plaintiff had unsuccessfully sued the City of Des Moines under the ADEA and ADA. Smith v. City of Des Moines, Iowa, 99 F.3d 1466 (8th Cir. 1997) (hold- ing the city met its burden on establishing test was necessary to safe and effective job performance; rejecting as not probative the opinion of other physicians who had examined plaintiff; finding plaintiff not disabled under ADA). 429 ARIZ. REV. STAT. 11-3-203. Medical examination as condi- tion of employment, see Arkansas Laws relating to Labor, Ark. DOL, Oct. 2008, at 50, www.arkansas.gov/labor/pdf/laws_relating_labor.pdf; N.D.C.C. 34-01-15, Employer to pay for medical examination—Penalty for violation, www.legis.nd.gov/cencode/t34c01.pdf; R.I. GEN. LAWS § 28-6.2-1 Cost of physical examination [preemploy- ment], www.rilin.state.ri.us/Statutes/TITLE28/28-6.2/28-6.2- 1.HTM. 430 Under California law employees are not required to dis- close diagnosis to their employer. LA Metro response to report questionnaire, § IV.A, Tests and standards for current employ- ees: In general.

48 ADEA applies to any employer with 20 or more employ- ees, including state and local governments, although states may not be sued for money damages under ADEA.431ADEA is enforced by the EEOC. The Supreme Court has recognized the existence of disparate-impact claims under the ADEA, but with sub- stantially narrower coverage than under Title VII be- cause the Wards Cove analysis remains applicable to ADEA cases and the ADEA permits otherwise prohib- ited actions where differentiation between the plaintiffs and other employees is based on reasonable factors other than age.432 Moreover, the burden of establishing a prima facie case of disparate impact under ADEA may remain substantial.433 D. Family and Medical Leave The FMLA is intended to help employees balance work and family obligations. The Act is intended to pro- vide eligible employees with a measure of job security when they attend to specified family and medical obli- gations, while accommodating the legitimate interests of employers.434 One of those obligations is dealing with the employee’s own “serious health condition,” as that term is defined under the statute, when such condition makes the employee unable to perform the functions of the employee’s job. An impairment may qualify as a serious health condition under the FMLA without qualifying as a disability under the ADA.435 The FMLA is enforced by the Department of Labor (DOL).436 The FMLA applies to all private, state, and local government employees of covered employers437 at cov- 431 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000). 432 Smith v. City of Jackson, 544 U.S. 228, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005). 433 Donald J. Spero, Smith v. City of Jackson: Does It Really Open New Opportunities for ADEA Plaintiffs to Recover Under a Disparate Impact Theory?, 36 U. OF MEM. L. REV. 183 (2005). 434 29 U.S.C. § 2601(b), Purposes, http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& start=4594087&SIZE=4802&TYPE=PDF. Leave is protected for several reasons. 29 U.S.C. § 2612(a)(1), Entitlement to leave, http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& start=4606287&SIZE=7085&TYPE=PDF; 29 C.F.R. 825.112– Qualifying reasons for leave, general rule, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.112.htm. Only leave due to the employee’s own health condition, that is leave relevant to physical ability testing, is discussed in this report. 435 EEOC, the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, Question 8, www.eeoc.gov/policy/docs/fmlaada.html. 436 U.S. Department of Labor, Wage and Hour Division, Fact Sheet No. 28: The Family and Medical Leave Act of 1993, www.dol.gov/whd/regs/compliance/whdfs28.pdf. 437 “Any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employ- ees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year” and “any ered locations. The FMLA allows eligible employees438 to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period when the employee is unable to work because of a serious health condition.439 Under some circumstances, the employee may take leave on a reduced leave schedule or intermittently.440 If an em- ployee’s leave is protected under the FMLA, the leave cannot be denied, health benefits must be maintained, and the employee’s job is protected.441 It is the em- ployer’s responsibility to determine whether requested leave qualifies as FMLA leave, based only on informa- tion provided by the employee.442 The Fifth Circuit has held that to be covered under the FMLA due to a seri- ous health condition, the employee must establish that he is incapacitated, at least temporarily.443 ‘public agency,’ as defined in section 203(x) of this title.” 29 U.S.C. § 2611(4), http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& start=4599194&SIZE=7087&TYPE=PDF; “Public agencies are covered employers without regard to the number of employees employed.” 29 C.F.R. 825.104–Covered employer, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.104.htm. 438 To be eligible, an employee must have worked for the employer for a total of 12 months, worked at least 1,250 hours in the previous 12 months, and worked at a location where at least 50 employees are employed within 75 mi. 29 U.S.C. § 2611(2), http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi? ACTION=RETRIEVE&FILE=$$xa$$busc29.wais&start=4599 194&SIZE=7087&TYPE=PDF; 29 C.F.R. 825.110–Eligible employee, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR 825.110.htm. 439 A serious health condition is an “illness, injury, impair- ment or physical or mental condition that involves—(A) inpa- tient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11), http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& start=4599194&SIZE=7087&TYPE=PDF. The terms “inpatient care,” “continuing treatment,” and “serious health condition” are further defined under DOL regulations. 29 C.F.R. 825.114– Inpatient Care, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.114.htm; 29 C.F.R. 825.115–Continuing Treatment, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.115.htm; 29 C.F.R. 825.113–Serious Health Condition, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.113.htm. 440 29 U.S.C. § 2612(b), Leave taken intermittently or on re- duced leave schedule, http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& start=4606287&SIZE=7085&TYPE=PDF; 29 C.F.R. 825.202– Intermittent leave or reduced leave schedule, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.202.htm. Breaks for diabetic individuals to eat to maintain their blood sugar have been held to be intermittent breaks under the FMLA. Collins v. U.S. Playing Card Co., 466 F. Supp. 2d 954 (S.D. Ohio 2006). 441 29 C.F.R. § 825.100, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.100.htm. 442 29 C.F.R. § 825.301, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.301.htm. 443 Mauder v. Metro. Transit Auth. of Harris County, Tex., 446 F.3d 574 (5th Cir. 2006).

49 Employers may require employees to submit medical certification supporting the request for leave under the Act,444 and an employee’s failure to provide requested supporting information specified under the FMLA is a basis for finding the employee was not entitled to FMLA leave.445 However, if the employee’s medical cer- tification meets FMLA requirements, the employer may not deny leave based on agency requirements that are more restrictive than the requirements of the FMLA.446 Employers may require return-to-work certifications that are related to the medical condition for which the employee took leave, subject to any valid state or local law or collective bargaining agreements governing re- turn to work.447 The certification requirement must be uniformly applied, that is, every one in the same occu- pation with the same medical condition must meet the same requirements. The FMLA does not authorize an employer to require a fitness-for-duty examination for an employee to return to work from FMLA leave. More- over, the FMLA “does not authorize an employer to make an independent assessment of the employee's medical condition. Instead, the employer should deter- mine whether the provided information demonstrates that the diagnosed condition is a serious health condi- tion within the meaning of the FMLA.”448 Medical testing can be required following FMLA leave only if the employer can establish that the testing would have been required absent the medical leave.449 Testing may be required because of questions about the employee’s ability to perform essential functions of the job, independent of the fact of having taken leave.450 Any such medical testing performed following leave 444 29 U.S.C. § 2614(a)(4), http://frwebgate.access.gpo.gov/cgi- bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc29.wais& start=4617929&SIZE=7059&TYPE=PDF; 29 C.F.R. 825.306– Content of medical certification for leave taken because of an employee’s own serious health condition or the serious health condition of a family member, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.306.htm; 29 C.F.R. 825.307–Authentication and clarification of medical certification for leave taken because of an employee’s own seri- ous health condition or the serious health condition of a family member; second and third opinions, www.dol.gov/dol/allcfr/ Title_29/Part_825/29CFR825.307.htm. 445 Mauder v. Metro. Transit Auth. of Harris County, Tex., 446 F.3d 574 (5th Cir. 2006). 446 Albert v. Runyon, 6 F. Supp. 2d 57, 67 (D. Mass. 1998). More restrictive state or local laws or collective bargaining agreement provisions do justify more stringent standards than those of the FMLA. Id. 447 However, rights afforded under the FMLA cannot be di- minished by collective bargaining agreements. 29 U.S.C. § 2652, http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION =RETRIEVE&FILE=$$xa$$busc29.wais&start=4656175&SIZ E=1603&TYPE=PDF. 448 Runyon, 6 F. Supp. 2d at 64. 449 Id. at 65. 450 Id. at 66–69 (D. Mass. 1998). See Silver, supra note 12, at 641. under the FMLA must comply with the ADA, that is, be job related and consistent with business necessity.451 The Seventh Circuit has held that a collective bargain- ing agreement may impose stricter return-to-work re- strictions than those otherwise incorporated into the FMLA.452 An employee returning from FMLA leave is not enti- tled to restoration under the FMLA if the employee is unable to perform an essential function of the position because of a physical condition.453 Therefore, although the DOL regulation does not directly address physical ability testing, such testing should be allowed provided that it is job related and consistent with business ne- cessity. This FMLA issue does not affect any obligations the employer may have under such circumstances un- der the ADA, however.454 The Supreme Court has held that states are subject to suit for violations of the FMLA, ruling that the FMLA constitutionally abrogates states’ immunity from suit.455 Takeaway: An employer may require all employees returning from FMLA to provide a return-to-work certi- fication attesting to the fact that the condition that re- quired leave no longer prevents the employee from per- forming essential functions of the job, provided that such requirement is uniformly applied. An employer should be able to require physical ability testing of an employee returning from FMLA leave if there is an ob- jective reason to believe, based on the employee’s condi- tion upon return, that the employee may have some difficulty in performing essential functions of the job. Such testing may not be required merely because the employee is returning from FMLA leave. 451 29 C.F.R. § 825.312–Fitness-for-duty certification, www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.312.htm. For a discussion of one approach to developing a return-to-duty protocol for a physically demanding job, see Craig B. Clinton, Developing a Return to Duty Procedure Following an Extended Medical Leave, www.usfa.dhs.gov/pdf/efop/efo43353.pdf (accessed Nov. 16, 2009). 452 Harrell v. United States Postal Serv., 445 F.3d 913, 927 (7th Cir. 2006) (holding that requiring employee to comply with return-to-work provisions in employee handbook incorporated into collective bargaining agreement—provide medical docu- mentation outlining nature and treatment of illness or injury, inclusive dates employee was unable to work, and any medi- cines taken—did not violate FMLA). 453 29 C.F.R. § 825.216–Limitations on an employee’s right to reinstatement, subsection (c), www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.216.htm. 454 29 C.F.R. § 825.216–Limitations on an employee’s right to reinstatement, subsection (c), www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.216.htm. 455 Nev. Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 740, 123 S. Ct. 1972, 1984, 155 L. Ed. 2d 953, 971 (2003). See Gina M. Kulig, Constitutional Law—The Family and Medical Leave Act: Abrogation of States’ Immunity from Suit—Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), 38 SUFFOLK U. L. REV. 231 (2004).

50 Some state and local governments have their own family and medical leave laws. (See Appendix A, State Family and Medical Leave Statutes.) Where such laws exist, employers must comply with any state or local requirement that provides greater rights than the Fed- eral FMLA.456 For example, state laws may apply to employers with less employees than under federal law,457 expand the definition of covered family mem- bers,458 or broaden the categories of reasons for taking leave.459 E. Search and Seizure460 Government-mandated drug and alcohol tests461 are clearly searches under federal and state constitutions: government-mandated testing programs may be subject to challenge on the grounds that they constitute unrea- sonable—and thus unlawful—searches. The constitu- tionality of drug testing requires a fact-based analysis of the governmental interests and individual privacy interests in question, so that the types of job categories covered by the testing, the reasons for testing, whether testing is conducted pre- or post-employment, and test- ing procedures used will all affect the outcome of the analysis.462 Since state constitutions may provide broader protection than the Federal Constitution,463 and 456 State of Wisconsin Department of Workforce Develop- ment, Equal Rights Division, Civil Rights Bureau, Comparison of Federal and Wisconsin Family and Medical Leave Laws, www.dwd.state.wi.us/dwd/publications/erd/pdf/erd-9680-p.pdf. 457 E.g., Oregon: 25 or more persons. OR. REV. STAT. 659A.153 Covered employers, www.leg.state.or.us/ors/659a. html. 458 E.g., Rhode Island: family member means parent, spouse, child, mother-in-law, father-in-law, or the employee himself or herself, and with respect to employees of the state as defined in subsection (3)(ii), shall include domestic partners as defined in § 36-12-1(3). R.I. GEN. LAWS § 28-48-1(5), www.rilin.state.ri.us/Statutes/TITLE28/28-48/28-48-1.HTM. 459 E.g., Connecticut: Leave may be taken to serve as an or- gan or bone marrow donor. CONN. CEN. STAT. § 31- 51ll(a)(2)(C), http://search.cga.state.ct.us/dlsurs/sur/htm/chap557.htm#Secs3 1-51cc%20to%2031-51gg.htm. 460 See HIRSCH, supra note 49, at 5–6; JOCELYN WAITE, THE CASE FOR SEARCHES ON PUBLIC TRANSPORTATION 27, 60 (Tran- sit Cooperative Research Program, Legal Research Digest 22 2005) (discussing Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) (upholding warrantless, suspicionless drug testing of railroad employees involved in train accidents)). 461 Silver, supra note 318, at ch. 13, Alcohol, Drugs, Aids, & Other Testing. 462 E.g., Loder v. City of Glendale, 715, 14 Cal. 4th 846, 877, 927 P.2d 1200, 1219, 59 Cal. Rptr. 2d 696 (Cal. 1997) (uphold- ing suspicionless drug testing for all job applicants as part of reasonably administered lawful preemployment medical ex- amination required of all job applicants, but only for safety- related incumbent employees). 463 See e.g., Leonel v. Am. Airlines, Inc., 400 F.3d 702, 711 (9th Cir. 2005); Ellison v. State, 383 P.2d 716, 718 (Alaska 1963) (Alaska’s search and seizure clause is stronger than fed- eral protection). hence broader protection against government searches, the standards for determining the constitutionality of the testing may differ under federal and state law. 1. Fourth Amendment Drug/alcohol testing has been held to be a search subject to the Fourth Amendment, but has been allowed under exceptions to the requirements for a warrant and individualized suspicion. The Supreme Court found that drug tests required under the FRA’s general au- thority to prescribe regulations governing railroad safety were searches subject to the Fourth Amendment but were permissible under a special needs analysis, holding that the government’s interest in regulating the conduct of railroad employees to ensure safety consti- tuted a special need beyond normal law enforcement. In so doing the Court stressed the safety-sensitive tasks of the employees subject to the testing. The Court re- viewed the compelling government interest, balanced the government interest against the privacy interests at stake, and found that the government interest justified the limited intrusion on those privacy interests, even absent a warrant or individualized suspicion.464 In a case argued and decided the same day as Skinner, the Court found that drug testing implemented by the Cus- toms Service also constituted a search subject to the Fourth Amendment but was also justified under the special needs analysis.465 While the Supreme Court has not addressed the spe- cific issue of drug and alcohol testing of transit employ- ees, numerous lower courts have done so. For example, not long after Skinner was decided, a New York district court applied the special needs analysis to NYCT’s drug testing.466 A class of plaintiffs including both applicants and employees challenged the testing on grounds both 464 Skinner v. Rwy. Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). The regulations in question mandated drug and alcohol testing following a major train accident, and allowed railroads to require such testing after reportable accidents or incidents where a supervisor had reasonable suspicion that an employee’s acts or omissions con- tributed to the occurrence or severity of the accident or inci- dent. Permissive testing was also authorized in the event of certain rule violations such as excessive speeding. The Court found that both the mandatory and permissive testing were subject to the Fourth Amendment. Prior to Skinner, a federal district court, noting that the Supreme Court had never deter- mined the proper Fourth Amendment analysis for drug and alcohol testing of public employees, had found random drug testing of transit employees to violate the Fourth Amendment. Amalgamated Transit Union v. Sunline Transit Agency, 663 F. Supp. 1560, 1566 (1987). 465 Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The drug testing was required for any employee meeting one or more of three criteria: direct involvement in drug interdiction or enforcement of related laws, requirement that the incumbent carry fire- arms, and/or requirement for the incumbent to handle “classi- fied” material. 466 Burka v. N.Y. City Transit Auth., 739 F. Supp. 814 (S.D.N.Y. 1990).

51 of unreasonable search and seizure and due process. The court considered the privacy interests normally protected by the warrant requirements and analyzed the mitigation of intrusion on those interests that is afforded by notice and lack of discretion on the part of administering officials, as well as the government’s in- terest in preventing drug users from engaging in safety- sensitive tasks in public transportation. The court also discussed which positions were safety-sensitive, which would justify their being subject to drug testing.467 The court ultimately held that NYCT’s interest in drug test- ing non-safety-sensitive employees outweighed the pri- vacy interests requiring a warrant, so that the failure to obtain a warrant before drug testing even non-safety- sensitive employees did not violate the Fourth Amend- ment. However, due to the higher expectation of privacy for non-safety-sensitive employees and the reduced gov- ernment interest in testing such employees, the court found that to satisfy the Fourth Amendment reason- ableness requirement, the agency must have reasonable suspicion of drug use to test non-safety-sensitive em- ployees. The court found that testing upon return to work after an extended absence, an application for promotion or to become an NYCT employee, or a peri- odic physical did not meet the reasonable suspicion standard. Testing after an incident was found to meet the standard. For safety-sensitive employees, a “bare reasonableness” standard was found to be sufficient. Finally, the court examined the drug testing procedures used to determine the reasonableness of post-incident testing, finding that because of the government’s inter- est in testing safety-sensitive employees, the balancing analysis for such testing led to a finding that the Fourth Amendment was not violated. However, the government’s interest in testing non-safety-sensitive- employees did not outweigh the procedural flaws in the post-incident testing, so that such testing did violate the Fourth Amendment. Another New York district court subsequently found that the NYCT could test employees without prior no- tice following return to work after a positive drug test, as well as testing safety-sensitive employees or appli- cants when “(1) they apply for employment; (2) they have their routine physical examination; (3) they are seeking promotion to another safety-sensitive position; 467 The court found the following positions to be safety sensi- tive: train operators, bus operators, train conductors, conductor- flagmen, and tower operators; the Station and Revenue De- partment's booth clerks, station cleaners and collection agents; the Car Equipment Department's road car inspectors; the Track Division's track walkers, track equipment maintainers, chauf- feur specialists, and crane operators; the Structure and Line Equipment Divisions' heating plant workers; the Electrical Power Department's workers directly involved with mainte- nance of the power; the Signals Division's employees; the Com- munications Divisions' telephone maintainers, electronic main- tainers and helpers; and the Surface Department's quality control dispatchers and employees who drive buses in public. Burka v. N.Y. City Transit Auth., 739 F. Supp. 814, 826 (S.D.N.Y. 1990). (4) they return to work after an extended absence or suspension; and (5) they resume work after an incident while on duty.”468 The Ninth Circuit upheld drug and alcohol testing of transit employees, albeit in an unpublished opinion.469 The plaintiffs were a bus dispatcher and a transit op- erations supervisor/instructor. The district court had engaged in the balancing test for special needs drug testing, considering “(1) the nature of the privacy inter- est involved; (2) the character of the intrusion; and (3) the ‘nature and immediacy’ of the government's need for testing and the efficacy of the testing for meeting it.”470 The decision turned on the third factor, whether the safety aspects of the plaintiffs’ jobs justified the in- trusion on their Fourth Amendment rights. The district court held that because the plaintiffs only infrequently performed safety-sensitive duties, their jobs had a minimal impact on safety and the intrusion on their privacy was not justified under the Fourth Amendment. The court of appeals held this result was inconsistent with Ninth Circuit precedent, finding that frequency was not relevant.471 The D.C. Circuit has found that even direct observa- tion testing under the USDOT regulation is constitu- tional, because of the diminished expectation of privacy of the employees to whom direct observation applies: employees who fail or refuse a drug test and are return- ing from a drug treatment program to safety-sensitive positions.472 Physical exams also constitute searches,473 so physi- cal exams required by governmental entities must be free from components that constitute unreasonable searches. Drug testing as part of a required physical 468 Laverpool v. N.Y. City Transit Auth., 835 F. Supp. 1440, 1456 (E.D.N.Y. 1993). 469 Gonzalez v. Metro. Transp. Auth., 73 Fed. Appx. 986 (9th Cir. 2003). As an unpublished opinion issued before 2007 but after 2002, this opinion may be cited in the First, Third, Fifth, Sixth, Tenth, Eleventh, and D.C. Circuits. Citation is discour- aged, but permitted if there is no published opinion on point in the Fourth and Eighth Circuits and prohibited in the Second, Seventh, and Ninth Circuits. 470 Id. at 988. 471 Id. at 989, citing Int'l Bd. of Elec. Workers, Local 1245 v. United States Nuclear Reg. Comm'n, 966 F.2d 521, 526 (9th Cir. 1992) (upholding random testing of clerical workers in protected areas of nuclear plant where their union could not establish that workers “did not engage in any safety-sensitive work” and at least some workers entered vital areas and may have safety-related responsibilities); AFGE Local 1533 v. Che- ney, 944 F.2d 503, 506 (9th Cir. 1991) (upholding random test- ing of engineers who were required to hold top secret access clearances, even though they might not ever actually handle classified information). 472 BNSF Rwy. Co. v. U.S. Dep’t. of Transp., 566 F.3d 200, 386 U.S. App. D.C. 17 (D.C. Cir. 2009). 473 Schmerber v. State of Cal., 384 U.S. 757, 766–70, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 917–19 (1966); State v. Hand, 101 N.J. Super. 43, 60, 242 A.2d 888 (Law Div. 1968) (holding that physical examination by a doctor constitutes search within meaning of Fourth Amendment).