5 Discrimination Based on Disability

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1 5 Discrimination Based on Disability I. Overview 5.1 Darcie R. Brault Allyson A. Miller II. The Americans with Disabilities Act of 1990 (ADA) A. The Purpose of the ADA 5.2 B. Who Must Comply with the ADA 5.3 C. Who Is Protected by the ADA 1. In General Association with a Disabled Person 5.5 D. Who Is Not Protected or Questionably Protected 1. Users of Illegal Drugs Recovering Drug Addicts Alcoholics Under the Influence 5.8 III. What Constitutes a Disability Under the ADA A. In General 5.9 B. Being Currently and Actually Disabled 1. In General Physical or Mental Impairment a. Definition 5.11 b. Conditions That Are Not Impairments Major Life Activities Substantially Limits a. In General 5.14 b. Mitigating Measures 5.15 C. Having a Record of a Disability 5.16 D. Being Regarded as Disabled 5.17 IV. Qualified Individual with a Disability A. In General 5.18 B. Determining Whether Job Functions Are Essential 5.19 C. Performance Issues Related to Disability 1. In General Work Performance Attendance Direct Threat

2 Employment Litigation in Michigan D. Judicial Estoppel: Apparently Inconsistent Statement in Other Forums on Whether an Individual Is Qualified 5.24 V. Discrimination A. In General 5.25 B. Elements and Burden of Proof 1. Discrimination Claims Claim of Failure to Accommodate; Request for Accommodation and Undue Hardship 5.27 C. Retaliation 5.28 VI. Duty to Accommodate A. In General 5.29 B. Examples of Reasonable Accommodation 1. In General Job Restructuring Reassignment to a Vacant Position Leave 5.33 C. The Interactive Process 5.34 D. Undue Hardship 5.35 VII. Requesting Medical Information 5.36 VIII. The Persons with Disabilities Civil Rights Act (PDCRA) A. In General 5.37 B. Definition of Employer 5.38 C. Definition of Person with a Disability 5.39 D. Prohibited Practices 1. Discrimination and Retaliation Genetic Testing 5.41 E. Permitted Practices 5.42 F. Reasonable Accommodation 5.43 G. Undue Hardship 5.44 IX. Intersection of the ADA and PDCRA with Other Rights A. Interplay with Collective Bargaining Rights 5.45 B. Interplay with Worker s Compensation Laws 5.46 C. Interplay with the FMLA in Handling Requests for Leave 5.47 D. Interplay with the Genetic Information Nondiscrimination Act (GINA) 5.48 X. Enforcement Issues A. Exhaustion of Administrative Prerequisites 5.49 B. Statute of Limitations 5.50 C. Monetary Relief 5.51 Forms 5.1 Initial Considerations for Analysis of Potential Claims under the ADA 5.2 Initial Considerations for Analysis of Potential Claims Under the PDCRA 218

3 Discrimination Based on Disability 5.2 I. Overview 5.1 The Americans with Disabilities Act of 1990 (ADA), 42 USC et seq., as amended by the ADA Amendments Act of 2008, Pub L No , 122 Stat 3553 (2008) (effective January 1, 2009), prohibits discrimination against a qualified individual on the basis of disability in all aspects of employment. 42 USC 12112(a). Similarly, Michigan s Persons with Disabilities Civil Rights Act (PDCRA) (formerly the Michigan Handicappers Civil Rights Act), MCL et seq., provides that an employer may not discharge or otherwise discriminate against an individual because of a disability that is unrelated to the individual s ability to perform the duties of a particular job or position. Both statutes require employers to make reasonable accommodations for disabled employees. The ADA Amendments Act of 2008 reinstated a broad scope of protection under the ADA. Pub L No , 2(b)(1), 122 Stat 3553 (2008). Congress specifically rejected U.S. Supreme Court decisions about (1) whether an impairment that substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures ( 5.15); (2) the regarded as definition of disability ( 5.17); and (3) whether a person must have a substantial limitation on abilities that are central to daily life, not just central to life in the workplace. Be careful to rely on post-amendment caselaw on these topics. Amendments to the ADA regulations proposed on September 23, 2009 (74 Fed Reg 48,431 (2009)), were finalized on March 25, 2011, and took effect on May 24, 2011 (76 Fed Reg 16,978 (2011), 29 CFR 1630). See the Equal Employment Opportunity Commission s (EEOC s) Questions and Answers on the Final Rule Implementing the ADA Amendments Act of In general, because the PDCRA and the ADA contain similar and sometimes identical language, the same analysis is used. Brenneman v MedCentral Health Sys, 366 F3d 412, 418 (6th Cir 2004), cert denied, 543 US 1146 (2005). The PDCRA substantially mirrors the ADA, and resolution of a plaintiff s ADA claim will generally, though not always, resolve the plaintiff s PDCRA claim. Cotter v Ajilon Servs, Inc, 287 F3d 593, 598 (6th Cir 2002) (citing Monette v Electronic Data Sys Corp, 90 F3d 1173, 1178 (6th Cir 1996)). II. The Americans with Disabilities Act of 1990 (ADA) A. The Purpose of the ADA 5.2 As described by Congress, the purpose of the ADA is to provide a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities. 42 USC 12101(b)(1). The United States Supreme Court has observed that the primary purpose of the ADA is to diminish or to eliminate the stereotypical thought processes and the hostile reactions that far too often bar those with disabilities from participating fully in the Nation s life, including the workplace. US Airways, Inc v Barnett, 535 US 391, 401 (2002). 219

4 5.3 Employment Litigation in Michigan B. Who Must Comply with the ADA 5.3 The ADA defines covered entity as an employer, employment agency, labor organization, or joint labor-management committee. 42 USC 12111(2). A covered employer is one who employed 15 or more employees, including part-time employees, for each workday in each of 20 or more calendar weeks in the current or preceding calendar year. 42 USC 12111(5)(A). The term employer has the same meaning under both the ADA and Title VII of the Civil Rights Act of 1964 (Title VII). Appendix to 29 CFR Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 CFR app (a) (f). The term employer does not include the United States, a corporation wholly owned by the government of the United States, an Indian tribe, or a bona fide private membership club (other than a labor organization) that is exempt from taxation under 501(c) of the Internal Revenue Code of 1986, IRC 501(c). 42 USC 12111(5)(B). Instead, the Rehabilitation Act of 1973, 29 USC 701 et seq., prohibits discrimination on the basis of disability for federal employees. The standards used under the Rehabilitation Act generally track those under the ADA. States and state agencies are protected from employment-discrimination ADA suits by private individuals based on the sovereign immunity granted to them by the Eleventh Amendment. Board of Trustees v Garrett, 531 US 356 (2001). However, private individuals may sue state officials in their official capacities for violations of Title I of the ADA as long as the plaintiffs do not seek money damages. Whitfield v Tennessee, 639 F3d 253, 257 (6th Cir 2011). Also, the Garrett decision prohibits Title I ADA suits only against state governments, not against cities or counties, because the Eleventh Amendment s sovereign immunity protections do not apply to local governments. Lowe v Hamilton County Dep t of Job & Family Servs, 610 F3d 321, (6th Cir 2010). Like Title VII (see 2.3), the ADA does not provide for individual liability against other employees, such as supervisors. Wathen v GE, 115 F3d 400 (6th Cir 1997); Roman-Oliveras v Puerto Rico Elec Power Auth, 655 F3d 43 (1st Cir 2011); Howard v DaimlerChrysler Corp, 290 F Supp 2d 784 (ED Mich 2003). The PDCRA, on the other hand, does provide for individual liability. See The ADA does not prohibit a religious organization from giving preference in employment to individuals of a particular religion, 42 USC 12113(d)(1), and also provides that a religious organization may require that all applicants and employees conform to its religious tenets, 42 USC 12113(d)(2). Further, in Hosanna- Tabor Evangelical Lutheran Church & Sch v EEOC, US, 132 S Ct 694 (2012), the U.S. Supreme Court recognized a ministerial exception to liability under the ADA, grounded in the Religion Clauses of the First Amendment, precluding the application of employment discrimination legislation to disputes between a religious institution and its ministers. Although the ministerial exception is not limited to the head of a religious congregation, the Hosanna-Tabor Court declined to adopt a rigid formula for deciding when an employee qualifies as a minister and, consequently, the exception applies. 220

5 Discrimination Based on Disability 5.5 The ministerial exception cannot be waived because it is based on the Religion Clauses of the U.S. Constitution. Id. The ministerial exception is also an available defense to state law claims, including those brought under the PDCRA. Conlon v Intervarsity Christian Fellowship/USA, 777 F3d 829 (6th Cir 2015). C. Who Is Protected by the ADA 1. In General 5.4 Title I of the ADA protects individuals in the context of an employment relationship, including employees as well as applicants. 42 USC 12112(a). The ADA protects those persons who meet the statutory definition of qualified individual with a disability. Disability is defined for an individual as (A) a physical or mental impairment that substantially limits one or more major life activities of [the] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 USC 12102(1). See 5.9. The ADA also prohibits discrimination against any individual because such individual has opposed any act or practice made unlawful [by the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [under the ADA]. 42 USC 12203(a). See A nondisabled individual may not bring a reverse discrimination claim under the ADA (i.e., assert that he or she was discriminated against because of the lack of disability). 42 USC 12201(g). 2. Association with a Disabled Person 5.5 The ADA also protects a qualified individual, whether or not that person has a disability, from discrimination due to that person s known association or relationship with a person with a disability. 42 USC 12112(b)(4). This protection is not limited to persons who have a familial relationship with an individual with a disability. To state a claim for association discrimination, a plaintiff must show that (1) he or she was qualified for the job, (2) he or she was subjected to an adverse employment action, (3) he or she was known by the employer to have a relative or associate with a disability, and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer s decision. Stansberry v Air Wisconsin Airlines Corp, 651 F3d 482, 487 (6th Cir 2011) (denying association discrimination claim where record showed that plaintiff was not performing his job to employer s satisfaction and did not show unfounded fears of distraction due to his wife s illness). Disability association claims generally fall under one of three theories: (1) expense, (2) disability by association, and (3) distraction. The expense theory covers situations where an employee suffers an adverse employment action because of 221

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