Impacts of the Americans with Disabilities Act on Transit Agency Liability (2018)

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7 the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.47 Finally, the ADAAA amended Section 102 of the ADA so that 42 U.S.C. § 12112(a) now provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condi- tions, and privileges of employment.”48 As amended, subsection 12112(b) sets forth various actions, such as “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability,” that come within the phrase “‘discriminate against a qualified individual on the basis of disability….’”49 In sum, because of the enactment of the ADAAA, the courts in ADA cases have redirected their analy- sis “away from determining whether an individual has a disability[] to determining whether disability discrimination occurred.”50 IV. TITLE I OF THE ADA AND EMPLOYMENT DISCRIMINATION A. A Transit Agency as a Covered Entity Title I of the ADA prohibits discrimination in employment based on a person’s disability. As an employer, a transit agency having more than fifteen employees is a “covered entity” under the Act.51 The 47 Id. § 5(c), 42 U.S.C. § 12111(8). 48 Id. § 5(a), 42 U.S.C. § 12112(a) (emphasis supplied). 49 Id. § 5(a), 42 U.S.C. §§ 12112(b) and (b)(6). 50 nationaL counciL on DisabiLity, a PRomising staRt: PReLiminaRy anaLysis of couRt Decisions unDeR tHe aDa amenDments act, at 91 (2013), available at http://www. ncd.gov/rawmedia_repository/7518fc55_8393_4e76_97e4_ 0a72fe9e95fb.pdf (last accessed June 20, 2018). 51 42 U.S.C. § 12111(2) (stating that “[t]he term ‘cov- ered entity’ means an employer, employment agency, labor organization, or joint labor-management committee”). Section 12111(5)(A) states that [t]he term “employer” means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the cur- rent or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this title, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person. See Richardson v. Chicago Transit Auth., 292 F. Supp. 3d 810, 815 (N.D. Ill. 2017) (holding that the Chicago Fourth, the ADAAA added a list of major life activities in response to judicial decisions that had held, for example, that the abilities to concentrate and think are not major life activities. Congress amended the definition of the term major life activi- ties by providing that they include, but are not limited to, caring for oneself, perform- ing manual tasks, seeing, hearing, eating, sleeping, walk- ing, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.42 As for the meaning of the term major bodily func- tions, they “include[] the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, cir- culatory, endocrine, and reproductive functions.”43 Fifth, the ADAAA specified that “[t]he determina- tion of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures….”44 Thus, since the ADAAA, the courts are precluded from considering certain mitigating measures when determining whether an individual’s impairment substantially limits a major life activity. Mitigating measures include (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eye- glasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifica- tions.45 However, regarding the use of ordinary eye- glasses or contact lens, the ADAAA took the approach that “[t]he ameliorative effects of the miti- gating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.”46 Sixth, Congress amended Section 101(8) of the ADA so that the term qualified individual means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to 42 Id. § 4(a), 42 U.S.C. § 12102(2)(A). 43 Id. § 4(a), 42 U.S.C. § 12102(2)(B). 44 Id. § 4(a), 42 U.S.C. § 12102(4)(E)(i). 45 Id. § 4(a), 42 U.S.C. § 12102(4)(E)(i)(I)-(IV). 46 Id. § 4(a), 42 U.S.C. § 12102(4)(E)(ii).

8 prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”56 Section 12102(1)(C) does not apply to transitory and minor impairments; for example, a transitory impairment is one with an actual or expected duration of six months or less.57 C. A Qualified Individual Under the ADA Under Title I of the ADA, an important issue is whether an individual with a disability satisfies the definition of a qualified individual under the Act and how the term qualified individual affects an employ- er’s obligation to individuals with disabilities. The term qualified individual means “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”58 Nevertheless, the ADA requires that “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertis- ing or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”59 Thus, an employer’s written job description is evidence of a particular position’s essential functions.60 There are rules to consider when determining whether a qualified individual has been discrimi- nated against because of his or her disability.61 For example, an employer discriminates against a quali- fied individual with a disability when an employer does not make a reasonable accommodation for “known physical or mental limitations of an other- wise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity….”62 A covered entity discriminates against a qualified individual with a disability whenever the covered entity denies “employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable 56 Id. § 12102(3)(A). 57 Id. § 12102(3)(B). 58 Id. § 12111(8). 59 Id. 60 Id. See also Jarvela v. Crete Carrier Corp., 776 F.3d 822, 829 (11th Cir. 2015). 61 42 U.S.C. § 12112(b)(1)-(7) (2018). 62 Id. § 12112(b)(5)(A). EEOC is responsible for enforcing Title I of the ADA. The EEOC’s regulations implementing Title I are in 29 C.F.R. part 1630. Interpretative guidance to Title I is included as an appendix to part 1630. As discussed further in this digest, many of the claims arising under Title I have involved individu- als with disabilities, either as applicants for employ- ment or as employees, and the meaning of the term disability; what constitutes a qualified disability; when an employer must make a reasonable accom- modation for an applicant or an employee with a dis- ability; how employers may respond to an employee’s use of illegal drugs; how employers may respond to an employee’s use of alcohol in the workplace; and when an employer may make medical inquiries or require medical exams.52 As for transit agencies’ experience with Title I, eighteen agencies responding to the survey reported that they had Title I ADA claims or cases in the past five years; however, twenty-eight agencies reported that they did not have any claims or cases in that period.53 As for the number of claims or cases, the agencies reported having from one to thirty-six claims or cases in the past five years.54 B. Definition of Disability Under the ADA As Part III.B of this digest discussed, the ADAAA amended the ADA’s definition of what constitutes a disability within the meaning of the ADA. The term disability now means (A) a physical or mental impairment that substantially lim- its 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)).55 The ADAAA also amended the provision noted in 42 U.S.C. § 12102(1)(C) so that an individual satis- fies the requirement of “being regarded as having such an impairment” when “the individual estab- lishes that he or she has been subjected to an action Transit Authority, as an employer of more than 15 employ- ees, is a covered entity under the ADA (citing 42 U.S.C. § 12111(2) and (5)). 52 Peggy mastRoianni, Jeanne goLDbeRg & DemaRis tRaPP, Recent ameRicans witH DisabiLities act Decisions, U.S. Equal Opportunity Employment Commission, Office of Legal Counsel (2012), http://www.americanbar.org/ content/dam/aba/events/labor_law/2012/03/national_ conference_on_equal_employment_opportunity_law/ mw2012eeo_mastroianni.authcheckdam.pdf (last accessed June 20, 2018). 53 See Appendix C, Transit Agencies’ Responses to Question 2. One agency did not respond to the question. 54 See id. 55 42 U.S.C. § 12102(1)(A)-(C) (2018).

9 In granting GDRTA’s motion for summary judg- ment, the court ruled that GDRTA’s accommodation for Brockmeier, a job-protected leave of absence, was reasonable.70 As stated, the issue of whether an employer must make a reasonable accommodation depends on whether the person is a qualified individual with a disability within the meaning of the ADA. In Cooper v. UPS,71 Cooper, an African American, alleged that UPS asked him and a white employee to use their personal vehicles to deliver packages and that, when they refused, UPS transferred Cooper to another location as an “on-road supervisor.”72 The transfer added over 25 minutes of additional time each way to Cooper’s commute.73 In the same month as the transfer, Cooper’s doctor diagnosed Cooper as suffering from heat stroke, post-traumatic stress disorder, and other maladies. Cooper’s physician recommended that Cooper avoid high heat and high-stress situations and take a medical leave of absence.74 During his leave of absence, Cooper continued to receive his salary in accordance with UPS’s Income Protection Plan (Plan), but the Plan provided that an employee was subject to “administrative separa- tion” if the employee was absent from work for twelve months.75 After Cooper’s medical experts released him to work with restrictions, Cooper reported for work and presented his requests for accommodations to UPS. UPS denied the requests and offered only to place Cooper in jobs that required the performance of functions that he was restricted from performing.76 Ultimately, pursuant to the Plan, UPS dismissed Cooper.77 Cooper alleged in part that his transfer to another UPS center was an adverse employment action that was racially motivated, that UPS failed to make a reasonable accommodation for his disability and later terminated him because of his disability, and that UPS discharged him in retaliation for Cooper’s discrimination claims.78 Regarding Cooper’s ADA claim that UPS failed to accommodate his disability and discharged him because of it, the Fifth Circuit ruled that Cooper failed to show that he could per- form the essential positions of his job.79 70 Id. at *26. 71 368 Fed. App’x. 469 (5th Cir. 2010). 72 Id. at 471. 73 Id. 74 Id. 75 Id. 76 Id. at 471-72. 77 Id. at 472. 78 Id. at 472-73. 79 Id. at 475. accommodation to the physical or mental impair- ments of the employee or applicant….”63 An Ohio federal district court addressed the issue of whether an applicant or an employee was a quali- fied individual in Brockmeier v. Greater Dayton Regional Transit Authority.64 Brockmeier, a bus driver, had a mild case of multiple sclerosis with occasional relapses. After he underwent several medical examinations, including a “fitness for duty” examination, the Greater Dayton Regional Transit Authority (GDRTA) decided that Brockmeier did not meet the DOT medical certification guidelines for operating a commercial vehicle.65 A DOT medical examination was not required by federal or state regulation, because GDRTA as a political subdivision was exempt from having to comply. However, the col- lective bargaining agreement between GDRTA and the union required a medical certification of bus drivers.66 Because of having been placed on unpaid leave based on his disability, Brockmeier filed suit against GDRTA for violating Title I of the ADA. It was indisputable that Brockmeier had a dis- ability; the issue was whether he was “otherwise qualified” for a position as a commercial bus driver, notwithstanding his disability.67 The court ruled that no reasonable jury could find that Brockmeier was otherwise qualified to perform the essential functions of his job during the relevant time at issue. Under the DOT medical examination guidelines, an indi- vidual with multiple sclerosis is not automatically dis- qualified from driving a commercial vehicle.… However, such an individual will be disqualified unless he or she can show: (1) no signs of “relapse or progression” of the dis- ease; (2) “no or only functionally insignificant neurologic signs and symptoms”; (3) no new lesions over the course of at least one year, as shown by successive MRIs; and (4) “[n]o history of excessive fatigability or periodic fluctu- ations in motor performance.”68 The court found that there was no health care professional who had given deposition testimony who was willing to state that Brockmeier met the applicable DOT medical standards: [A] disabled person is not qualified for an employment posi- tion … “if he or she poses a ‘direct threat’ to the health or safety of others which cannot be eliminated by a reasonable accommodation.” … A “direct threat” is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”69 63 Id. § 12112(b)(5)(B). 64 No. 3:12-cv-327, 2016 U.S. Dist. LEXIS 90439 (S.D. Ohio July 12, 2016). 65 Id. at *3-6. 66 Id. at *13. 67 Id. at *15. 68 Id. (citations omitted). 69 Id. at *25 (citations omitted).

10 Rehabilitation Act of 1973, the court stated that the courts “use the same standards to analyze a claim for discrimination under the Rehabilitation Act as they do a claim for discrimination under the” ADA as amended by the ADAAA.91 The case concerned whether the Washington Metropolitan Area Transit Authority (WMATA) failed to accommodate an employee with a disability. The issue was whether the plaintiff had a disability that substantially lim- ited a major life activity. WMATA hired the plaintiff in 2002 as a bus oper- ator. In 2007 or 2008, the plaintiff began working as a “fare box puller,” a person who “retrieves money from the fare boxes of WMATA’s Metrobuses.”92 The plaintiff claimed that she had a permanent disabil- ity in her right knee because of military service and that she had sustained injuries thereafter to her left knee and back. She alleged that WMATA’s “refusal to allow her to kneel the bus” to facilitate the removal of money from fare boxes,93 as well as the defendant’s refusal to assign her to “light duty,”94 had caused her conditions to worsen. Under the ADA, the plaintiff had to demonstrate that she was an individual with a disability within the meaning of the ADA, that the employer had notice of her disability, that she could perform the essential functions of her position with a reason- able accommodation, and that her employer refused to provide such an accommodation.95 The court observed that the post-ADAAA version of 29 C.F.R. § 1630.2 that applied to the case did not “contain language providing that ‘substantially limits’ requires a restriction in the ability to perform a ‘class of jobs or a broad range of jobs….’”96 Although the plaintiff ’s history of injuries and alleged per- manent disability to her right knee were evidence of substantially limiting impairments,97 “[a]n indi- vidualized assessment [was] still required to deter- mine ‘whether an impairment substantially limits a major life activity….’”98 Although it was not material whether WMATA regarded the plaintiff as having an impairment, there was evidence that WMATA was aware of the plaintiff ’s disability and failed to accommodate her.99 Given the ADAAA’s “expansive coverage,” the 91 Id. at *17. 92 Id. at *1. 93 Id. at *4. 94 Id. at *13. Plaintiff later withdrew her claim for fail- ure to accommodate based on light duty. Id. at *13 n.2. 95 Id. at *14. 96 Id. at *22 (citations omitted). 97 Id. at *26-27 (citation omitted). 98 Id. at *22 (quoting 29 C.F.R. § 1630.2(j)(1)(iv)). 99 Id. at *28. The court stated that a “‘disability’ is ‘any physi- cal or mental impairment that substantially limits one or more of [the plaintiff ’s] major life activi- ties.’ … Major life activities include ‘working.’”80 Moreover, Cooper had to show that he was “‘an indi- vidual with a disability who, with or without reason- able accommodation, can perform the essential functions of the employment position’” that he held or was seeking.81 “‘The ADA does not require an employer to relieve an employee of any essential function of his or her job, modify those duties, reas- sign existing employees to perform those jobs, or hire new employees to do so.’”82 Because Cooper could not perform the essential functions of his job, he was “not a ‘qualified individual with a disability.’”83 Cooper argued that UPS could have reassigned him to a position in plant engineering, but, for an accommodation to be reasonable, a position must exist and be vacant; that is, an “‘employer is not required to give what it does not have.’”84 Cooper did not present evidence that a position in plant engineering was vacant or that he was qualified for such a position.85 D. A Disability That Substantially Limits a Major Life Activity Under § 12102(1) of the ADA, the term disability means, inter alia, “a physical or mental impairment that substantially limits one or more major life activities” of an individual.86 First, the term sub- stantially limits must “be interpreted consistently with the findings and purposes” of the ADAAA.87 Second, “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, commu- nicating, and working.”88 Third, an impairment that substantially limits one major life activity need not limit other major life activities for the impairment to qualify as a disability.89 In Harrison-Khatana v. Washington Metropolitan Area Transit Authority,90 a case arising under the 80 Id. at 476 (citations omitted). 81 Id. (citation omitted). 82 Id. (citation omitted). 83 Id. (citation omitted). 84 Id. at 477 (citation omitted). 85 Id. 86 42 U.S.C. § 12102(1)(A) (2018). 87 Id. § 12102(4)(B). 88 Id. § 12102(2)(B). 89 Id. § 12102(4)(C). 90 No. DKC 11-3715, 2015 U.S. Dist. LEXIS 7657 (D. Md. filed Jan. 22, 2015).

11 Plaintiff must establish that he was discriminated against “because of an actual or perceived physical or mental impairment.” … Because the sole basis of Plaintiff ’s claim is that the CTA refused to let him return to work because of his obesity, Plaintiff must show that his obesity constitutes an actual physical impairment under the ADA or that the CTA perceived Plaintiff to have a qualifying physical impairment.110 In dismissing the claim, the court found that “no federal appellate court has held that extreme obe- sity constitutes a disability under the ADA absent some underlying physiological basis.”111 F. Reasonable Accommodations for Employees with Disabilities Under the ADA, an employer may have to make a reasonable accommodation for an individual with a disability. Of the eighteen transit agencies respond- ing to the survey that reported that they had title I ADA claims or cases in the past five years, fourteen agencies stated that they had claims or cases alleg- ing that their agency failed to make a reasonable accommodation for an employee or applicant.112 On the other hand, no transit agencies responding to the survey reported that they had any claims or cases in the past five years for allegedly questioning an employee or applicant about his or her disability and/or the nature or extent of a disability.113 The ADA states that the term reasonable accom- modation includes “making existing facilities used by employees readily accessible to and usable by individuals with disabilities….”114 A reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modifica- tion of equipment or devices, appropriate adjustment or modifications of examinations, training materials or poli- cies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.115 In some instances, providing an accommoda- tion may create an undue hardship for a transit agency. In general, there is an undue hardship when an action requires significant difficulty or expense when considered together with other 110 Id. at 815 (citations omitted). 111 Id. at 816. 112 See Appendix C, Transit Agencies’ Responses to Question 3(a). Four of the eighteen agencies stated that they had had no claims or cases in the past five years based on an alleged failure to make a reasonable accom- modation for an employee or applicant. 113 See id., Transit Agencies’ Responses to Question 3(b). 114 42 U.S.C. § 12111(9)(A) (2018). 115 Id. § 12111(9)(B). court ruled that there was a genuine issue of whether the plaintiff ’s “knee and back impairment(s) substantially limited a major life activity of working.”100 Even if kneeling a bus would have posed an “undue hardship” on WMATA, which the Authority did not argue, it was still obligated “to provide a reasonable accommodation for Plaintiff provided she had a qualifying disability….”101 In contrast, in 2012, in Mitchell v. New York City Transit Authority,102 a federal court in New York held that, although both working and elimi- nating waste are major life activities, the employee had needed only to stop a train mid-route on four occasions since 1999. Thus, the employee failed to demonstrate that the employee’s diverticulitis substantially limited a major life activity. E. Being Regarded as Having a Disability Section 12102(1)(C) of the ADA, as amended, defines a disability to include “being regarded as having such an impairment,”103 but an individual meets the “being regarded as” criterion when “the individual establishes that he or she has been sub- jected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”104 In Adeleke v. Dallas Area Rapid Transit,105 the Dallas Area Rapid Transit (DART) allegedly refused to hire Adeleke, in part, because of his disability.106 In support of its motion for summary judgment, DART provided evidence that none of its decision makers knew or believed that Adeleke suffered from a disability. Adeleke, moreover, failed to present “competent … evidence that DART knew that he was limited by mental illness or regarded him as impaired.”107 Thus, Adeleke failed to show that there was a genuine issue of material fact in dispute regarding DART’s purported discrimination against him.108 More recently, in Richardson v. Chicago Transit Auth.,109 a federal district court in Illinois stated that for a plaintiff to succeed on a “regarded as” claim, a 100 Id. (citation omitted). 101 Id. at *35. 102 856 F. Supp. 2d 478 (E.D.N.Y. 2012). 103 42 U.S.C. § 12102(1)(C) (2018). 104 Id. § 12102(3)(A). 105 487 Fed. App’x. 901 (5th Cir. 2012), cert. denied, 2013 U.S. LEXIS 5517 (U.S., Oct. 7, 2013). 106 Id. at 902. 107 Id. at 903 (citation omitted). 108 Id. (citation omitted). 109 292 F. Supp. 3d 810 (N.D. Ill. 2017).

12 when the MBTA terminated the plaintiff ’s employ- ment, the court granted in part and denied in part MBTA’s motion to dismiss.122 G. Use of Medical Inquiries and Examinations The ADA also addresses when it is permissible for a covered entity to inquire of a job applicant about his or her disability or the nature or severity of it or to use a medical examination as a condition to employment.123 Pre-employment medical inqui- ries are allowed if they are relevant to an appli- cant’s ability to perform job-related functions.124 An employer may require a medical examination of an applicant after an offer of employment and prior to the commencement of employment and may con- dition an employment offer on the results of an examination.125 However, all entering employees must be subject to the same examination regard- less of disability, and the record must be kept confi- dential.126 It should be noted that the EEOC has published guidance on the ADA and disability- related inquiries and any requirement of medical examinations.127 The requirement of a medical examination was at issue in Nichols v. City of Mitchell.128 The city pro- vided transit services through Palace Transit, a pro- gram partially supported by federal, state, and city funds. The plaintiffs began working for Palace Tran- sit as bus drivers in 2003, 2005, and 2007. In 2009, the city adopted a policy that required its Palace Transit bus drivers to pass the DOT Commercial Driver’s License Medical Certification examination based on the Federal Motor Carrier Safety Regula- tions.129 A federal statute requires the examination for interstate truck drivers.130 The United States District Court for the District of South Dakota ruled, first, that there were genu- ine issues of material fact regarding whether each plaintiff had an impairment that substantially lim- ited a major life activity when “the ameliorative effects of medication” were not considered.131 122 Id. 123 42 U.S.C. § 12112(d)(1) and (d)(2)(A) (2018). 124 Id. § 12112(d)(2)(B). 125 Id. § 12112(d)(3). 126 Id. § 12112(d)(3)(A) and (B) (providing for some exceptions in subsection (B)(i)-(iii) when a disclosure is allowable of some of an applicant’s medical condition or history). 127 Enforcement Guidance, supra note 117. 128 914 F. Supp. 2d 1052 (D. S.D. 2012). 129 Id. at 1055-56. 130 Id. 131 Id. at 1058. factors identified in the statute.116 The EEOC has published enforcement guidance on reasonable accommodations and undue hardship under title I of the ADA.117 Andrews v. Massachusetts Bay Transit Author- ity118 illustrates whether a transit agency must make a reasonable accommodation by assigning an employee with a disability to another position. After Andrews injured her knee while employed by the Massachusetts Bay Transit Authority (MBTA) as a streetcar operator, the MBTA refused, apparently because of Andrews’s lack of seniority, her request for a position as a customer service agent (CSA). Andrews alleged, however, that the MBTA had offered positions as a CSA to persons with less seniority than the plaintiff.119 A federal district court in Massachusetts observed that, because “‘[t]he term reasonable accommodations may include … reassignment to a vacant position,’”120 the ADA requires the MBTA to reassign the plaintiff to a vacant position “unless such a reassignment is unduly burdensome.”121 However, because there was an unresolved ques- tion of whether there was a CSA position available 116 Id. § 12111(10)(A). The factors to consider when determining whether there is undue hardship are: (i) the nature and cost of the accommoda- tion needed under this Act; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact other wise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and loca- tion of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. Id. § 12111(10)(B)(i)-(iv). 117 eeoc, enfoRcement guiDance: ReasonabLe accom- moDation anD unDue HaRDsHiP unDeR tHe ameRicans witH DisabiLities act (2002), https://www.eeoc.gov/policy/docs/ accommodation.html (last accessed June 20, 2018) [here- inafter Enforcement Guidance]. 118 872 F. Supp. 2d 108 (D. Mass. 2012). 119 Id. at 111. 120 Id. at 114 (footnote omitted) (some internal quota- tion marks omitted). 121 Id.

13 drugs….”139 However, the ADA precludes an employ- ment action against an individual who “has success- fully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated suc- cessfully and is no longer engaging in such use” or when an individual “is participating in a supervised rehabilitation program and is no longer engaging in such use….”140 Two transit agencies responding to the survey reported that their agency had claims or cases in the past five years because of testing an employee to determine whether the employee was using or under the influence of alcohol while on duty.141 In Jarvela v. Crete Carrier Corp.,142 the Eleventh Circuit rejected Jarvela’s claim that, when his employer ter- minated his employment, his clinical diagnosis of alcoholism was not “current” under 49 C.F.R. § 391.41(b).143 The court stated that Jarvela “could not reasonably contend that a seven-day-old diagno- sis of alcoholism was not ‘current’ at the time of his termination.”144 I. Use of Qualifying Standards, Tests, or Selective Criteria A transit agency may show that its use of “quali- fication standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability [is] job-related and consistent with business necessity” and that job performance cannot be accomplished by a “reasonable accommodation.”145 One qualification standard that an agency may require is that an indi- vidual may not pose “a direct threat to the health or safety of other individuals in the workplace.”146 J. Whether States and State Agencies Have Immunity to Title I Claims As noted, the ADA in Title V purports to preclude state immunity for violations of the ADA and prohib- its retaliation.147 However, as stated by the U. S. Dis- trict Court for the District of Columbia in White v. Metropolitan Area Transit Authority,148 “Congress’s 139 Id. § 12114(a). 140 Id. § 12114(b)(1) and (2). 141 See Appendix C, Transit Agencies’ Responses to Question 3(d). 142 776 F.3d 822 (11th Cir. 2015). 143 Id. at 830. 144 Id. 145 42 U.S.C. § 12113(a) (2018). 146 Id. § 12113(b). 147 Id. §§ 12202, 12203. 148 No. 17-cv-0735 (TSC), 2018 U.S. Dist. LEXIS 55109, (D.D.C. March 31, 2018) Second, the court addressed the ADA’s prohibi- tions on the use of medical inquiries and examina- tions. Under 42 U.S.C. § 12112(d)(4)(A), [a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.132 Third, the court found that, when the city required the plaintiffs to take the DOT physical examination, they were intrastate drivers. Because a South Dakota statute exempted intrastate drivers from the physical requirements of 49 C.F.R. § 391.41, “the request for the DOT medical examination was, as a matter of law, broader and more intrusive than necessary.”133 Furthermore, “to the extent that the DOT physical examination relies on blanket exclu- sions set forth in 49 C.F.R. § 391.41, there was no individualized assessment of each plaintiff ’s ability to perform the job safely.”134 Although the city vio- lated the ADA by requiring a DOT medical examina- tion for its intrastate drivers, there were “genuine issues of material fact regarding whether the medi- cal examinations were job-related and consistent with business necessity.”135 H. Use of Illegal Drugs or Use of Alcohol in the Workplace Of the eighteen transit agencies that reported having title I ADA claims in the past five years, six agencies had claims or cases involving their agen- cy’s use of drug testing to determine an employee’s or applicant’s current use of illegal drugs.136 Under the ADA, a covered entity “may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees” and “may require that employees shall not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace….”137 The use of a test to determine the illegal use of drugs does not constitute a medical examination.138 A covered entity may take an employment action against an otherwise qualified individual when the person is “currently engaging in the illegal use of 132 Id. at 1060. 133 Id. (citing S.D. coDifieD Laws § 49-28A-3(3)). 134 Id. at 1060-61 (emphasis supplied). 135 Id. at 1061. 136 See Appendix C, Transit Agencies’ Responses to Question 3(c). 137 42 U.S.C. § 12114(c)(1) and (2) (2018). See also id. § 12114(c)(3)-(5) (setting forth other actions that are per- mitted under the ADA to combat illegal drug use or the use of alcohol in the workplace). 138 Id. § 12114(d)(1).

14 have no impact on her work.156 A year later, McCray was informed that budget cuts in Maryland had resulted in her position being abolished.157 The court held that sovereign immunity bars McCray’s age and disability dis- crimination claims.… “[A]n unconsenting State is immune from suits brought in federal courts by her own citizens.” … This protection extends to state agencies.… Therefore, absent abrogation of sovereign immunity or consent from Maryland, McCray cannot seek injunctive or monetary relief from the MDOT or MTA. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). Sovereign immunity has not been abro- gated for ADEA claims and ADA Title I claims. See id. at 374 (ADA Title I claims); Kimel v. Fla Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000) (ADEA claims); cf. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 489-90 (4th Cir. 2005) (recogniz- ing abrogation of sovereign immunity for Title II claims but not Title I claims).158 Because Congress could not abrogate the states’ sovereign immunity for Title I claims, the Fourth Circuit affirmed the district court’s dismissal of McCray’s ADA claims. K. Enforcement of Title I of the ADA 1. Incorporation by Title I of the ADA of the Powers, Remedies, and Procedures in the Civil Rights Act Title I of the ADA incorporates the powers, reme- dies, and procedures in 42 U.S.C. § 2000e-4, 2000e- 5, 2000e-6, 2000e-8, and 2000e-9 of the Civil Rights Act of 1964159 for the enforcement of Title I ADA- employment claims by persons alleging discrimina- tion on the basis of a disability.160 It has been held that the procedural requirements of Title I of the ADA and Title VII of the Civil Rights Act must be construed identically.161 Section 2000e-4 of the Civil Rights Act created the EEOC. Section 2000e-5 empowers the Commis- sion to prevent any person from engaging in any unlawful employment practice as set forth in 42 U.S.C. § 2000e-2 or 2000e-3. When a violation is alleged, § 2000e-5(e)(1) states, in part, that a “charge … shall be filed within one hundred and eighty days after the alleged unlawful employment 156 Id. 157 Id. 158 Id. at 482-83 (some citations omitted) (emphasis supplied). 159 Pub. L. No. 88-352, 78 Stat. 241. 160 42 U.S.C. § 12117(a) (2018). 161 Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005), but see Martin v. Mt. St. Mary’s Univ. Online, 620 Fed. App’x. 661, 663 (10th Cir. 2015) and Gad v. Kan. State Univ., 787 F.3d 1032 (10th Cir. 2015) (ques- tioning Shikles on other grounds). attempt to abrogate states’ sovereign immunity in Title I of the ADA exceeded Congress’s authority under Section 5 [of the Fourteenth Amendment.] … Thus, private individuals may not recover money damages from a state in federal court under Title I of the ADA.”149 In Bailey v. Washington Metropolitan Area Tran- sit Authority,150 the issue was whether WMATA had immunity from suit under the ADA. All parties agreed that when Maryland, Virginia, and the Dis- trict of Columbia created WMATA, they “conferred” their Eleventh Amendment immunity on the authority.151 A federal district court in the District of Columbia granted WMATA’s partial motion to dismiss the first amended complaint. The court stated: Neither this Circuit nor the Supreme Court has expressly addressed whether state sovereign immunity prevents an individual plaintiff from obtaining injunctive relief under the ADEA or the ADA. The Supreme Court has, however, speci- fied that “sovereign immunity applies regardless of whether a private plaintiff ’s suit is for monetary damages or some other type of relief.” … Consistent with this precept, courts in other Circuits have held that individual plaintiffs may not obtain injunctive relief under the ADEA or the ADA from par- ties protected by sovereign immunity.152 In McCray v. Maryland Department of Trans- portation,153 the plaintiff had worked for the Mary- land Transit Administration (MTA), a subsidiary of the Maryland DOT, for nearly four decades before the MTA terminated her position because of budget cuts.154 In 1995, McCray was diagnosed with dia- betes, but the illness did not affect her job perfor- mance.155 After a fainting episode, a supervisor repeatedly questioned her fitness and demanded that she submit to a medical examination. The examination found that McCray’s diabetes would 149 Id. at 7-8 (discussing Board of Trustees v. Garrett, 531 U.S. 356, 374, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001)), (holding that WMATA was immune from suit under the Eleventh Amendment in claims for damages under Title I of the ADA). See also Demshki v. Monteith, 255 F.3d 986 (9th Cir. 2001) (holding that states enjoy Eleventh Amend- ment immunity from suits brought in federal court by pri- vate individuals seeking money damages when claims are predicated on alleged violations of Title I of the ADA). 150 696 F. Supp. 2d 68 (D.D.C. 2010). 151 Id. at 71. 152 Id. at 72 (emphasis supplied). 153 741 F.3d 480 (4th Cir. 2014), on remand at, dis- missed by McCray v. Md. DOT, No. ELH-11-3732, 2014 U.S. Dist. LEXIS 132362 (D. Md., Sept. 16, 2014), affirmed by McCray v. Md. DOT, 662 Fed. App’x. 221, 224 (4th Cir. 2016) (holding that McCray had exhausted her adminis- trative remedies regarding her Title VII claim but that all of her claims were time-barred). 154 Id. at 481. 155 Id. at 482.