Labor Employment Law Blog

By Evgenia Fkiaras

Following a trend by the Federal government to liberalize anti-discrimination laws in favor of employees, the Department of Labor Office of Federal Contract Compliance Programs ("OFCCP") has proposed regulations that would require employers who wish to keep their contracts (and subcontracts) with the Federal government to attempt to maintain a workforce where 7% of employees are individuals with disabilities. The public comment period for this proposal has just closed, and the OFCCP is now in the process of reviewing respondents' reactions.

By Travis Anderson and Gregg A. Fisch

On December 8, 2011, the Ninth Circuit Court of Appeals held that a disabled teacher who failed to meet the minimum requirements for her position was not a “qualified individual” under the Americans with Disabilities Act (“ADA”), and that her employer, therefore, was not required to accommodate her disability. This decision appears to be positive reinforcement that employers are not obligated to accommodate individuals who cannot perform the applicable job duties.
 

By James Hays & Jonathan Sokolowski

The Second Circuit Court of Appeals has held that under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, employers may be required to assist disabled employees with their commute.

Cuiellette v. City of Los Angeles (April 22, 2011) cautions employers that when an employee has been rated as 100% disabled for workers’ compensation purposes, the employer is not relieved of its duties under the Americans with Disabilities Act (“ADA”) and Fair Employment and Housing Act (“FEHA”). Practically speaking, a workers’ compensation rating, even as high as 100% disabled, does not mean that the employee cannot be a qualified individual entitled to an individualized assessment of his or her disability through an interactive process and a reasonable accommodation.

In a recent decision involving a deaf employee’s professed need for a sign language interpreter to understand and participate in mandatory departmental meetings, the Ninth Circuit Court of Appeals unanimously reaffirmed that pursuant to the Americans with Disabilities Act (“ADA”), an appropriate “reasonable accommodation” must be effective to enable a covered employee to enjoy equal benefits and privileges of employment.

In Scott v. Napolitano, a California federal district court recently provided guidance on how employers may draft medical examination questionnaires that comply with the Americans With Disabilities Act (“ADA”). The plaintiff, a security officer, sued his employer for violation of the ADA, disability discrimination, and retaliation after he was suspended and then terminated for refusing to respond to the employer’s medical questionnaire. The plaintiff claimed that the questions he refused to answer were impermissible disability-related inquiries that ran afoul of the ADA. The plaintiff and the employer filed motions for summary judgment.

On November 19, 2009, the Ninth Circuit handed down its opinion in Fleming v. Yuma Regional Medical Center, 07-16427. The court faced the difficult task of interpreting the interplay between Section 504 of the Rehabilitation Act (29 U.S.C. § 794) and Title I of the Americans with Disabilities Act. The Sixth and Eighth Circuits had previously held that the Rehabilitation Act incorporated Title I in its entirety, requiring an employer-employee relationship as a prerequisite to suing for discrimination. On the other hand, the Tenth Circuit had disagreed, and only incorporated the "standards" of Title I, allowing independent contractors to sue even without an employment relationship. In Fleming, the Ninth Circuit agreed with the Tenth Circuit, and held that the Rehabilitation Act would indeed cover claims by an independent contractor notwithstanding the lack of an employer-employee relationship.

The U.S. Equal Employment Opportunity Commission (“EEOC”) announced the release of a new mandatory supplement to the “EEO Is The Law” poster required to be displayed by private employers, state and local governments, educational institutions and labor organizations. The new supplement, which revises the September 2002 poster, is available to be downloaded or ordered by clicking here.

On August 27, 2009, the U.S. Equal Employment Opportunity Commission filed a putative class action against United Parcel Service, Inc. claiming the company’s 12-month leave of absence policy violates the Americans with Disabilities Act of 1990 (“ADA”).

On September 25, 2008, the ADA Amendments Act of 2008 (the “Act”) was signed into law by President Bush. The Act, which is effective January 1, 2009, expands the scope of disabilities covered under the Americans with Disabilities Act of 1990 (the "ADA"). In part, the Act broadens the scope of protection available to employees by rejecting two Supreme Court decisions which had narrowly construed the definition of “disability” under the ADA.

The Ninth Circuit's holding in Gribben v. United Parcel Service illustrates the principle that employing an overly technical analysis to determine an employer’s obligations to its employees under the Americans with Disabilities Act ("ADA") is risky.  The ADA requires employers to provide reasonable accommodation to qualified individuals with disabilities, which it defines as “physical or mental impairment[s] that substantially limit[] one or more of the major life activities of [an] individual.”  The regulations interpreting this statute further explain that the requisite substantial limitation may be shown where a person is “[u]nable to perform a major life activity that the average person in the general population can perform.”

Employers who use across the board qualification standards, such as hearing and vision tests, to reduce safety risks that potentially screen out disabled employees may need to reevaluate these standards.  In Bates v. UPS, the Ninth Circuit tightened the already stringent standards for employers who use such across the board qualification standards in the name of safety.  The Americans with Disabilities Act ("ADA") has long been construed to allow employers to use qualification standards which screen out certain disabled individuals as long as the standards relate to an essential job function and are justified by "business necessity."  The Ninth Circuit recently determined that showing justification by "business necessity" requires an individual assessment of each applicant or employee in order to determine whether reasonable accommodation might permit the applicant or employee to safely perform the job.

Click here to view a PDF copy of the document.

In Head v. Glacier Northwest Inc., the United States Court of Appeals for the Ninth Circuit held that the Americans with Disabilities Act ("ADA") does not require employees to produce comparative or medical evidence to create a genuine dispute of material fact as to whether they have an impairment that substantially limits a major life activity. Further, the Ninth Circuit also held that an employee need only prove that his disability was a "motivating" factor in an employer's decision to terminate him or otherwise take an adverse employment action against him. Taken together, these two holdings further stack the deck against employers in ADA lawsuits.