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Disability Law
Stetson University School of Law
Areheart, Bradley A.

Introduction

I. Four Events that led to the American Disability rights movement:

a. University of California admitted a quadriplegic and put him in student housing which led to a chain of more students seeking to go to school there

b. Professor Jacobus TenBroek wrote articles that set forth basic principles that should guide disability law:

i. Attitudinal Barriers

ii. Architectural Barriers

iii. Institutional Barriers

c. Black civil rights movement

d. Vietnam war veterans returned to the U.S. with disabilities

e. Two ideas that drove the disability rights movement

i. Anti-paternalism – people with disabilities should be objects of pity or charity

ii. Social model – disability is not something that is inherent in the body of the person; but, instead disability results from the interaction between an individual’s physical or mental characteristics and the social choices and attitudes that attach disadvantages to those characteristics.

1. Disablement – socially constructed

2. Impairment – biology or medical model where you focus on the particular condition and find a cure or solution. Society is where the problem comes from and we need to find a remedy for that.

What is Discrimination under the ADA?

Employment Discrimination

No covered entity shall discriminate against a qualified individual on the basis of a disability in regard to job application procedures, the hiring, advancement, or discharge or employees, employee compensation, job training, and other terms, conditions, and privileges or employment.

I. Discrimination INCLUDES (pages 125 – 126 of statutory supplement)

a. Disparate treatment – Limiting, segregating, classifying job applicant or employee adversely affecting them because of disability

b. Contractual or other arrangement subjecting a qualified applicant or employee to discrimination on the basis of disability (referral agency, labor union, training or apprentice organization, and organization providing fringe benefits)

c. Disparate treatment – Utilizing standards, criteria or methods of administration that have the effect of discrimination on the basis of disability (have to show intent).Usually are discriminatory on their face.

i. Definition – direct evidence or inference that because an employer has treated the ∏ differently from persons who do not have the same characteristics as to race, sex, or disability, and the employer was not acting on the basis of a legitimate, non-discriminatory reason in treating the ∏ that way, the employer violated the law. (McDonnell Douglas Corp. v. Green test)

d. Excluding or denying equal jobs or benefits to a qualified individual because of a disability or because of the disability of an individual with whom the qualified individual is known to have a relationship or association with.

e. No reasonable accommodation of employee/applicant UNLESS undue burden OR denying employment opportunities to a qualified individual (employee or applicant) with a disability because the entity will have to reasonable accommodate the employee/applicant’s impairment(s).

f. Disparate Impact – Qualification standards, employment tests, or other selection criteria that screen out or tend to screen out and individual with a disability UNLESS the covered entity shows it is job related for the position in question and is consistent with business necessity. (no intent necessary)

i. Definition – A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect. (Albertson’s, Raytheon)

g. Failing to select or administer tests concerning employment to ensure that the tests accurately reflect the skills, aptitude, or other factor the test intends to measure of an applicant or employee who has a disability rather than reflecting the impaired sensory, manual, or speaking skills of such employee/applicant (except where these skills are the factors the test purports to measure).

h. Medical examinations and inquiries (later in outline what is prohibited and what is not; also page 127 of supplement)

II. Definition of a Qualified Individual

a. An individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

i. What do courts look at to determine what is an “essential function”?:

1. Employer’s prepared written description for advertisement of interviewing applicants (has to be imposed and can’t be merely on paper)

2. The employer’s judgment as to which functions are essential

3. The amount of time spent on the job performing the function

4. Consequences of not having the person in the job performing the function

5. Terms of a collective bargaining agreement

6. Work experience of previous holders of the job

7. Current work experience of holders of similar jobs

ii. Reasonable Accommodation

1. Making an existing facility used by employees readily accessible to and usable by individuals with disabilities; and

2. Job restructuring, modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision or qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

a. Defense to this:

i. Undue hardship – ∆’s burden to show this

III. Definition of Disability (ADA)

a. (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual [actually impaired];

b. (2) a record of such impairment; OR

c. (3) being regarded as having such impairment.

i. Physical or mental impairment

1. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or

2. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

ii. Major Life Activity (ADA and EEOC regulations)

1. Expansion of MLA’s (Non-Exhaustive List):

a. MLA of caring for one’s self, performing manual tasks, walking, seeing, hearing, eating, sleeping, walking, standing, sitting, lifting, reaching, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working (they are those basic activities that the average person in the general population can perform with little or no difficulty – per EEOC).

b. MLA of operation of a major bodily function (including but not limited to immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions – per ADA)

IV. Defenses to Discrimination

a. Qualification standards (Disparate impact) may be okay if “job related and consistent with business necessity.”

b. “Qualification standards” may include a requirement that an individual shall not pose a direct threat to the health and safety of other individuals in the workplace.

c. Religious entities shall not be prohibited from giving preference in employment to individuals of a particular religion to perform work carrying on such entity.

d. Religious entities may require all applicants and employees to conform to religious tenets.

What is Disability under the ADA, Rehabilitation Act, and Fair Housing Act?

II. Is Asymptomatic HIV a disability?

a. Bragdon v. Abbott – The Court gave a BROAD reading of the “physical impairment” term including HIV; develop idea of substantially limits by allowing risk instead of just inabilities; Reproduction and sexual dynamics is considered an MLA, case-by-case basis upon each individual; no per se disabilities.

i. Facts: Respondent was infected with HIV but it had not manifested its most serious symptoms. She disclosed her infection on the patient registration form at a dental examination. Upon the examination, a cavity was discovered and the dentist informed the respondent that he would perform the procedure for no added fee for his services at a hospital but that she would be responsible for the cost of using the hospital’s facilities.

ii. Rule: ADA – Any place of public accommodation (dentist office) shall not discriminate against an individual on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of them.

iii. Holding: The court held that HIV was a physical or mental impairment that substantially limits one or more of the major life activities of such individual (ability to have a child).

a. Definition of Disability: ACTUAL Physical or mental impairment that [substantially limits] [one or more MLA]; Regarded as; OR Record of.

2. This statute is created to be tested on a case-by-case basis. There are no per se disabilities and you must evaluate the person as an individual. There may be people out there that render a person not disabled under certain circumstances and people that are rendered disabled under the same circumstances. (STILL THE CASE under ADAAA)

3. The court ultimately concludes that having HIV is a disability and that it substantially limits 1 or more major life activities.

a. The Court applied a 3 step test to see is HIV constituted a disability (ACTUAL IMPAIRMENT):

i. Is there a physical or mental impairment?

1. HIV constitutes impairment from the moment of infection.

ii. Is the life activity it limits a major one?

1. Child birth is a major life activity (makes the definition broad)

iii. Does the infection substantially limit the activity?

1. Child birth is physically possible for a woman with HIV; however, it is very risky, and is still substantially limiting. (more generous than before)The decision to not engage in the risky action (MLA) is about disability and not about on personal choice.

iv. Dissent – (1) not a major life activity to her, (2) not a major life activity in general and (3) not substantially limiting.

1. She has no children

2. Major life activities really should be done on a daily basis (greater in quantity, number, or extent) life walking, breathing, eating, etc.

3. She could have children she is just choosing not to because she does not want to give HIV to her sexual partner and to her unborn child. He believed the decision not to engage in the MLA was a personal choice and not due to a disability.

v. Should there be a causal connection required under the ADA between the ∏’s substantial limitation in major life activities and the ∆’s reason for discriminating against her?

1. Some may feel that there should be.

III. The Sutton Trilogy

a. Sutton v. United Air Lines, Inc. – US Sup. Ct. – Evaluate the person in mitigated state (not the same under the ADAAA; judging a person in an unmitigated state would not be individualized (not the thoughts under the ADAAA); judging a person in unmitigated state would cause overflow of unanticipat

ask to qualify as disabled. The definition’s terms need to be interpreted strictly to create a demanding standard for qualifying as disabled.

2. Why the Court of Appeals was wrong: They should not have focused on the class of manual activities associated only with the ∏’s job. If it did, this would not limit the amount of people able to fall under the definition of disabled because the inability to perform a job can always be recast as an inability to perform a “class” of tasks associated with that specific job.

a. The central inquiry is whether the claimant is unable to perform a variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. If a person relied on an inability to perform manual tasks, the court should consider the person’s ability to do a wide range of tasks including ordinary physical operation like washing, brushing teeth, and doing household chores. (This is consistent with the ADAA)

b. You cannot just analyze the effect of impairment on the workplace. The Act’s definition of disability applies to not only the part of the Act regarding employment but also portions of the Act which deal with public transportation and privately provided public accommodations.

b. BLACK LETTER LAW – THE ADAAA:

c. Disability under the ADA should not be an extensive analysis: Congress wants employers to be incentivized by the ADA’s concerns. EEOC was to change its definition of “substantially limits” to fall into line with the ADA.

d. Broad Construction: ADAAA specifically rejects Toyota’s need to interpret strictly. Now, Congress provided a rule that construes disability in favor of a broad coverage of individuals under this Act, to the maximum extent permitted by the terms of the Act. Prior to the amendment, any motion to dismiss at Summary Judgment would be affirmed with the strict rule of construction of “substantially limits” and “major”.

e. Mitigating Measures: ADAAA eliminates Sutton’s rules requiring courts to take into account mitigating measures when determining whether or not an impairment substantially limits a MLA. However, employers are not allowed to use uncorrected eyesight as selected criteria. You look at people in their “unmitigated state,” except for people that wear eyeglasses.

f. Impairment: Cannot be transitory or minor. Must be permanent or long-term.

g. Substantially limits major life activities: Toyota applies too high of a standard for “substantially limits”. The ADAAA also provides a nonexclusive list of “major life activities”. Working is included in this list. Sleeping, lifting, bending, concentrating, and thinking are as well. “Major bodily function” was added to the list to include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The EEOC has you compare restriction in performance of an MLA in comparison to the general public’s performance.

i. There just needs to be ONE major life activity affected by the disability.

ii. Episodic/Remission is a disability if it would substantially limit a MLA when active

iii. 2 non-exhaustive lists of MLA’s:

1. They include working

2. Daily character/nature

3. People are not losing cases under this prong anymore

h. Regarded as (HUGE Change):

i. In Sutton, the Supreme Court found 2 ways to fall under the “regarded as” prong:

1. A covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more MLAs (here working – must show broad class of jobs); OR

2. A covered entity mistakenly believes that an actual, non-limiting impairment substantially limits one or more MLAs (here working – must show broad class of jobs).

ii. NO LONGER BROAD CLASS OF JOBS: a person is “regarded as” having such an impairment if:

1. They have a physical or mental impairment that does not substantially limit a MLA but it treated by a covered entity as constituting such limitation;

2. Has a physical or mental impairment that substantially limits a MLA only as a result of the attitudes of others towards such impairment; OR

3. Has none of the defined physical or mental impairments but is treated by a covered entity as having a substantially limiting impairment.

iii. Notes:

1. But if the court has already concluded that the ∏ has an actual disability, there is no need to establish the “regarded as” prong.

2. Individuals meeting the definition of disability solely under the “regarded as” prong are not entitled to accommodation.