Americans with Disabilities Act of 1990 (ADA Amendments Act of 1990) Flashcards
What is the prima facie case for an Americans with Disabilities Act Discrimination Claim?
Is there a disability Discrimination claim in Texas and how are the elements different?
Prima Facie Case under the ADA requires a Plaintiff to show, that he
(1) has a disability
(2) was qualified for the job (*Perform the Essential Functions of the Job in spite of her disability OR she could do so with an identified “Reasonable accomodation of her disability”
(3) was subject to an adverse employment decision BECAUSE of his disability
* Shirley v. Precision Castparts Corp. (5th Cir. 2013)*
TEXAS - Yes, there is a disability discrimination claim under the Texas Commission of Human Rights Act and the elements for discrimination are essentially the same. (The TCHRA is modeled after federal civil rights law) Barricks v. Minyard Foods 170 F3d 184 (5th Cir. 1999)
Is there a claim for retaliation under the ADAAA and if so, what is the prima facie case?
Yes,
RETALIATION Claim Prima Facie Case:
(1) she engaged in an activity protected by the ADA;
(2) an adverse employment action occurred; and
(3) a causal connection exists between the protected act and the adverse action.
Credeur v. State of Lousiana (5th Cir. 2017); Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).
**NO MIXED MOTIVE CAUSATION – USE BUT FOR as discussed above
“BUT FOR” CAUSATION - Under the ADEA and ADA, it is clear that the plaintiff must prove that “but for” the employer’s discriminatory motive, the adverse action would not have been taken — therefore, no damages are recoverable under the ADEA or ADA in a mixed motives case where discrimination was not the primary reason for the employer’s decision.
What are potential defense for an employer under the Act?
What damages can an employee claiming an ADAAA claim receive?
Threshold Issue:
Who is protected by the Americans with Disabilities Act (as Amended)?
Has a physical or mental impairment that substantially limits one or more major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment.
*NOTE: ADA as Amended BANS BIAS of those associated with someone with a disability
What pre-employment screening is allowed and not considered a “medical test” making it subject to ADAAA?
- Tests to determine the current illegal use of drugs
- Physical agility tests, which measure an employee’s abilty to perform actual or simulated job tasks and physical fitness tests which measure an employee’s performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuringn heart rate or blood pressure)
- Tests that evaluate an employee’s ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions;
- psychological tests that measure personablity traits such as honesty, preferences, and habits
How would you describe a physical or mental impairment under the Americans with Disabilities Act?
“PHYSICAL OR MENTAL IMPAIRMENT” - The regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. [Section 1630.2(h)]
The definition of “impairment” in the new regulations is almost identical to the definition in EEOC’s original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’s examples of major bodily functions. (See Question 8.)
What is a major life activity under the ADAAA?
“MAJOR LIFE ACTIVITIES” - The final regulations provide a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Most of these examples are taken from the ADAAA, which in turn adopted them from the original ADA regulations and EEOC guidances, or from ADA and Rehabilitation Act case law.
The final regulations also state that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Although not specifically stated in the NPRM, the final regulations state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas).
As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability. (For examples of impairments affecting major bodily functions that should easily be concluded to meet the first or second part of the definition of “disability,” see Question 19.)
When does impairment substantially limit a major life activity?
WHEN IMPAIRMENT “SUBSTANTIALLY LIMITS” A MAJOR LIFE ACTIVITY - To have an “actual” disability (or to have a “record of” a disability) an individual must be (or have been) substantially limited in performing a major life activity as compared to most people in the general population. Consistent with the ADAAA, the final regulations adopt “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction include the following:
An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.
The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
In keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.
An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”
When is an individual qualified for a position under the Americans with Disabilities Act?
QUALIFIED INDIVIDUAL - To be “qualified” under the ADA, Plaintiff must be able to “perform the essential functions” of the job “with or without reasonable accommodation.” 42 U.S.C. § 12111(8). Essential functions” are “fundamental”, as opposed to “marginal”, job duties, 29 C.F.R. § 1630.2(n)(l), such that a job is “fundamentally alter[ed]” if an essential function is removed, 29 C.F.R. § Pt. 1630, app. at 397. “Fact-finders must determine whether a function is ‘essential’ on a case-by-case basis.” LHC Grp., Inc., 773 F.3d at 698. Credeur v. State of Lousiana (5th Cir. 2017)
Employer’s Judgment and Written Job Description are Evidence: The text of the ADA indicates where this inquiry should begin: For the purposes of this subchapter, 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 advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8). Credeur v. State of Lousiana (5th Cir. 2017)
7 FACTORS - Further, the regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) list seven non-exhaustive factors to guide the essential-function inquiry:
The employer’s judgment as to which functions are essential;
Written job descriptions prepared before advertising or interviewing applicants for the job;
The amount of time spent on the job performing the function;
The consequences of not requiring the incumbent to perform the function;
The terms of a collective bargaining agreement;
The work experience of past incumbents in the job; and/or
The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3).
Credeur v. State of Lousiana (5th Cir. 2017)
What are the seven non-exhaustive factors to guide the essential-function theory under the Americans with Disabilities Act as Amended?
7 FACTORS - Further, the regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) list seven non-exhaustive factors to guide the essential-function inquiry:
The employer’s judgment as to which functions are essential;
Written job descriptions prepared before advertising or interviewing applicants for the job;
The amount of time spent on the job performing the function;
The consequences of not requiring the incumbent to perform the function;
The terms of a collective bargaining agreement;
The work experience of past incumbents in the job; and/or
The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3).
Credeur v. State of Lousiana (5th Cir. 2017)
What is an accomodation under the Americans with Disabilities Act as Amended?
ACCOMMODATION - “The ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation.” Griffin case. “[R]easonable accommodation does not require [an employer] to wait indefinitely for [the employee’s] medical conditions to be corrected.” (alterations in original)); accord Silva v. City of Hidalgo, Tex., 575 F. App’x 419, 423 (5th Cir. 2014). “[a] disabled employee has no right to a promotion, to choose what job to which he will be assigned, or to receive the same compensation as he received previously.” Griffin case. Credeur v. State of Lousiana (5th Cir. 2017)
Danielle Clark kept falling asleep at work. She finally went to see a doctor and was diagnosed with narcolepsy. Her employer, Charter Communications tried to provide her accomodations at work such as giving her additional breaks, exempting her from the night shift and giving her unpaid leave under the FMLA to address her narcolepsy. Her job was as a specialist where she monitored outages and communicated with techs in the field and monitor Charter’s emails to address customer problems. She kept falling asleep while she was supposed to be monitoring the network. Employee Clark with narcolepsy filed suit against her employer alleging disability discrimination, failure to provide a reasonable accomodation and to engage in the interactive process, harassment, and retaliation under the Americans with Disabilities Act and the Texas Commission on Human Right’s Act. She claimed people were treating her differently and the supervisor was not helping her out as much.
Will the employer likely be in trouble on these claims?
No. Clark v. Charter Communications LLC (5th Cir. 2019)
DISABILITY-BASED HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM Prima Facie Case has what elements?
DISABILITY-BASED HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM Prima Facie Case:
1) that she belongs to a protected group;
(2) that she was subjected to unwelcome harassment;
(3) that the harassment complained of was based on her disability or disabilities;
(4) that the harassment complained of affected a term, condition, or privilege of employment; and
(5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Credeur v. State of Lousiana (5th Cir. 2017)
SEVERE OR PERVASIVE - Harassment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment. In determining whether a work environment is abusive, 5th Circuit considers the entirety of the evidence in the record, including “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.” (quoting Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). 5th Circuit says threats of termination or criticism of work environment are not severe and pervasive. Kumar v. Shinseki, 495 F. App’x 541, 543 (5th Cir. 2012) (criticism in the workplace and threats to employee’s job did not constitute actionable harassment). Compared to 5th Circuit Flowers case where the individual was treated with humiliation and offensive language after supervisor knew that she had HIV. Stopped going around her, listened to her phone calls, eavesdropped on phone calls, and subjected her to vulgar statements. The LEGAL STANDARD in this circuit is high to rise to the level of an actionable offense, the disability based harassment must be sufficiently pervasive or sever to ALTER THE CONDITIONS OF EMPLOYMENT & CREATE AN ABUSIVE WORKING ENVIRONMENT.
What is the difference between the Americans with Disabilities Act as Amended and the Rehabilitation Act?
FEDERAL EMPLOYEES, Entities receiving federal funds, federal contractors - The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. Those employees should invoke the Rehabilitation Act.
5th Cir. States “The Rehabilitation Act and the Americans with Disabilities Act (ADA) have the same standards and provide the same remedies; case law interpreting either statute applies to both.”
