A Masterful Act : Vocational Testimony in ADAAA & CA_FEHA Employment Disability Discrimination Cases Las Vegas, NV March 24, 2012 Presented by: Lisa Suhonos, MS, CDMS, ABVE-D Suhonos Occupational Services, Inc. www.suhonos.com
Qualified Vocational Consultants/Experts ARE in Demand! BY WHO? Defendants & Plaintiffs WHY? Knowledge of ADAAA (Title I) & CA-FEHA statutes Each case is evaluated on a per case basis
Qualified Voc. Continued Apply Vocational Rehabilitation standards of practice And established methodologies To address the case specific issues posed by the parties
ADAAA (ADA Amendment Act) Jan. 2009 New EEOC regulations (3/25/11) Brief overview of definitions Does the Individual have a disability?
ADAAA-DISABILITY Disability: Physical or mental impairment that substantially limits one or more of the major life activities of such an individual. 42 U.S.C. 12101 (2) (A). It includes having a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C.12102 (20 (B) (C)). A) Is a major life activity affected? B) Whether medication is taken into account? C) Is the impairment considered short term? D) Individual considered substantially limited in the major life activity of working?
Impairment ADA regulations broadly define impairments to include a wide variety of disorders or conditions affecting any number of body systems including the: Neurological or musculoskeletal systems Special sense organs, respiratory, cardiovasular, reproductive, digestive, genito-urinary, lympathic, endocrine systems, or the skin Impairments also include mental or psychological disorders, including mental retardation, organic brain syndrome, emotional or mental illness & certain learning disorders. 29 C.F.R. 1630.2(h)
Impairment Continued EEOC distinguishes impairments from conditions that ARE NOT, as follows: Physical characteristics (i.e. lefthandedness) Common personality traits (being irresponsible, poor judgment) Cultural, environmental, or economic disadvantages Homosexuality, bisexuality, pregnancy Normal deviations in height, weight, or strength ARE NOT IMPAIRMENTS. Appendix to 29 C.F.R. 1630.2(h)
Exclusions Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, many gender identity disorders, other sexual behavioral disorders Compulsive gambling, kleptomania, pyromania, & psychoactive substance use disorders resulting from current illegal drug use. 42 U.S.C. 12211
Major Life Activities ADAAA, S.3406 Sect. 3 (2008). The ADAAA states that 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, communicating, and working. As a result, any controversy is resolved by the Act concerning certain activities such as lifting, concentrating, thinking, and working.
Substantially Limited in Major Life A court must look at: Activities (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; (iii) the permanent or long-term impact, or the expected permanent or long-term impact resulting from the impairment. 29 C.F.R. 1630.2(j)(2). Thornton v. McClatchy Newspapers, Inc., 292 F.3d 1045 (9th Cir. 2002), the court noted that being diminished in an activity is different from being substantially limited.
To whom should the Individual be compared? In its Final Regulations on the ADAAA, the EEOC took the position that the ability of an individual to perform a major life activity should be compared to most people in the general population. VS.
Plaintiff s burden to present evidence of substantial limitations ----------------------------------------------- Present evidence outlining the extent of her impairment and the extent to which the impairment limited her in a major life activity S/he does not need to present evidence comparing his/her limitations to the average person.
The Length of Impairment The ADA Amendments Act does not specify the length of time a condition must last to be substantially limiting. However, it does state that an individual is not regarded as disabled if the condition is minor and lasts for less than six months. ADAAA, S.3406 Sect. 4(a) (2008). The Final Regulations retained a slightly modified version of this example. However, in its final regulations, the EEOC has also stated that although impairments that last only for a short period of time are typically not covered, they may be covered if sufficient severe. EEOC s Final ADA Regulations Preamble and Appendix (3/25/11).
Episodic Impairment ADA Act states: Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. ADAAA, S.3406 Sect. 4(2) (2008). In analyzing Episodic disorders, courts have looked first at whether the underlying condition is long-term. Episodic conditions can easily limit how well a person performs an activity as compared to the rest of the population.
ADAAA(EEOC) Position on Major Life Activity of Working EEOC has changed the analysis for when an individual will be considered substantially limited in working A) [a]nalyze whether the impairment substantially limits an individual s ability to perform, or to meet the qualifications for, the type of work at issue. Proposed Regulations, 29 C.F.R.1630.2(j)(7)(September 2009). B) the type of work at issue includes the job the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or jobrelated requirements which the individual would be substantially limited in performing because of the impairment. 29 C.F.R. 1630.2(j)(7)(iii).
Regarded As The ADAAA changes the definition of regarded as disabled. Rather than requiring an individual to show that s/he was regarded as having a substantially limiting impairment, the ADAAA states that an individual is regarded as disabled if s/he has been subjected to an action prohibited under this Act 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. ADAAA, S.3406 Sect. 4 (2008).
GINA GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 TITLE II-prohibits the use of genetic information in employment, restricts employers & other entities covered by Title II from requesting, requiring, or purchasing genetic information, & strictly limits the disclosure of genetic information.
Information about an individual s genetic tests Information about the genetic tests of a family member Family medical history Requests for and receipt of genetic services by an individual or a family member Genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.
*Exception Where the information is acquired inadvertently. As part of health or genetic services (including a wellness program) that a covered entity provides on a voluntary basis. In the form of family medical history to comply with the certification requirements of the Family & Medical Leave Act, state or local leave laws, or certain employer leave policies. From sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources. As part of genetic monitoring that is either required by law or provided on a voluntary basis. By employers who conduct DNA testing for law enforcement purposes as a forensic lab, or for human remains identification.
CA FEHA--- a brief overview AB 2222 (2001) California s Fair Employment Housing Act ( FEHA ) provides broad protection to individuals with disabilities. Who must comply? Any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political subdivision of the state, and cities, except a religious association or corporation not organized for private profit. Cal. Govt. Code 12926(d).
Definitions Who is protected? Discrimination! The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. Cal. Govt. Code 12926.1(b).
What is a Disability? Under FEHA, a person with a disability is one who: has a physical or mental condition that limits a major life activity; has a record or history of such condition; is regarded or treated by the employer as having a physical or mental condition that makes achievement of a major life activity difficult; or is regarded or treated by the employer as having a physical or mental condition that has no present disabling effect but may become a disability.
Physical Disability A physical disability includes, but is not limited to, any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (1) affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; (2) limits a major life activity. Cal. Govt. Code 12926(k)(1).
Mental Disability A mental disability includes, but is not limited to, any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. Cal. Govt. Code 12926(i)(1).
What is a Major Life Activity? To be broadly construed and shall include physical, mental and social activities and working. Cal Govt. Code 12926 (i) (l) (C) and (k)(1)(b)(iii). working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments. Cal. Govt. Code 12926.1(c).
Limits a Major Life Activity A physical or mental disorder or condition will be deemed to limit a major life activity if it makes the achievement of the major life activity difficult. Cal. Govt. Code 12926(i)(1)(B), (k)(l)(b)(ii). So how is it determined?
Life Activity Continued a) Without regard to mitigating measures, such as medications, assistive devices, prosthesis, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. Cal. Govt. Code 12926, (i)(1)(a), (k)(1) (B)(i) b) A disability or medical condition limits a major life activity if it makes the achievement of the life activity difficult. Cal Govt. code 12926 (i)(1)(b), (k)(1) (B)(ii)
Regarded As by FEHA The regarded as definition in FEHA protects any individual regarded or treated by an employer as having, or having had, any physical [or mental] condition that makes achievement of a major life activity difficult or may do so in the future.
Who is a Qualified Individual? The court interpreted the qualified individual requirement under FEHA to be the same as under the ADA. After reviewing the statute s language, legislative intent, and well-settled law, we conclude the FEHA requires employees to prove that they are qualified individuals under the statute just as the federal ADA requires. 42 Cal. 4th at 257-58.
The court held that the Legislature has placed the burden on a plaintiff to show that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation).
What are Essential Functions? Under FEHA, the term essential functions is defined as the fundamental job duties of the employment position the individual with a disability holds or desires. Essential functions does not include the marginal functions of the position. Cal. Govt. Code 12926(f)
Essential Functions A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: the reason the position exists is to perform that function; there are a limited number of employees available among whom the performance of that job function can be distributed; or the function is highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. Cal. Govt. Code 12926(f)(1).
Determining Essential Functions Evidence of whether a particular function is essential includes, but is not limited to, the following: 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 experiences of past incumbents in the job; And the current work experience of incumbents in similar jobs. Cal. Govt. Code 12926(f).
The Interactive Process California State law incorporates the EEOC s interpretive guidance regarding the requirement that the employer and employee engage in the interactive process. Gov. Code 12926.1(e). According to the EEOC, the appropriate reasonable accommodation is best determined through a flexible interactive process that involves both the employer and the individual with a disability. Under California law, failure to engage in the interactive process constitutes a separate violation of the FEHA.
Keep in Mind FEHA makes it unlawful [f]or an employer or other entity... to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. Cal. Govt. Code 12940(n).
The Interactive Process The Interactive Process, aka Problem Solving Approach should include: 1) Analyze the job, its purpose, and essential functions 2) Consult with Individual regarding the needs to perform the job 3) In consultation with the employee, determine effective accommodations 4) Consider the individual s preference and select effective accommodation
Reasonable Accommodation- What is it? Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities; job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Cal. Govt. Code 12926(n).
Undue Hardship As defined by FEHA, Undue Hardship is an action requiring significant difficulty or expense when considered in light of the following: (1) Nature and cost of the accommodation needed; (2) Overall financial resources of the facilities involved in providing the reasonable accommodations, the number of persons employed at the facility and the effect on expenses and resources, or the accommodation s impact on the operations of the facility;
Undue Hardship (3) Overall resources of the covered entity, the overall size of the business with respect to the number of employees, and the number, type and location of the covered entity s facilities; (4) Type of operations of the employer entity, including the composition, structure and functions of its workforce; (5) Geographic separateness, administrative or fiscal relationship of the facility or facilities involved. (Gov. Code 12926 (s); Cal Code Regs., tit. 2, 7293.9 (b).
Burdens... It is the employer s burden to prove that a proposed accommodation would impose an undue hardship, or that the employee could not perform the essential functions of his or her job even with an accommodation. Cal. Code, Regs, tit. 2, 7293.8, (b) 7293.9. It is the employee s burden to prove that an employer could have done.something (accommodation type, specific jobs, etc). Employer has an obligation to search for a reasonable accommodation.
Entering Case Law(s) Accord Candee v. AT&T Wireless Mobility LLC. Diaz v. Federal Express Corp. Bryan v. United Parcel Serv., Inc. Gelfo v. Lockheed Martin Corp. Green v. State of California Bell v. Wells Fargo Bank, N.A. Gelfo v. Lockheed Martin Corp.
Plaintiff, Not Disabled Accord Candee v. AT&T Wireless Mobility LLC, No. C 08-04384 MHP, 2010 U.S. Dist. LEXIS 127416, at *15-16 (N.D. Cal. Dec. 2, 2010) Plaintiff with multiple mental disabilities, deemed not disabled because she was not limited in a Major Life Activity.
Temporary Disability In Diaz v. Federal Express Corp., 373 F. Supp. 2d 1034, 1053 (C.D. Cal. 2005) Employer contended not disabled due to temporary medical (6/01-6/02) condition; court held that the mere duration of a mental or physical condition does not determine whether the condition constitutes a disability.
Exclusion or Not? May Exclusion from a Single Job Qualify as a Limitation of the Major Life Activity of Working? Bryan v. United Parcel Serv., Inc., 307 F. Supp. 2d 1108 (N.D. Cal. 2004), aff d EEOC v. United Parcel Serv., Inc., 424 F.3d 1060 (9th Cir. 2005)
Regarded As Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 53, 43 Cal. Rptr. 3d 874 (2006) Lockheed conceded that work restrictions engendered by Plaintiff s back injury limited the performance of essential functions. The Trial court s factual findings determined Employer was mistaken, in the concept of regarded as
Who is a Qualified Individual? Does the Individual satisfy the requirements of the position established by the employer? Green v. State of California, 42 Cal. 4th 254, 260, 64 Cal. Rptr. 3d 390 (2007). California Supreme Court clarified that it is the plaintiff s burden to prove that he or she is a qualified individual under FEHA.
Benefits Does obtaining disability benefits bar an individual s claim of ability to perform the essential functions? Bell v. Wells Fargo Bank, N.A., 62 Cal. App. 4th 1382, 1387, 73 Cal. Rptr. 2d 354 (1998). In moving for summary judgment, the bank proffered evidence that the plaintiff had made a series of statements in disability applications to the effect that his sickness rendered him disabled and unable to perform his regular and customary work of bank auditor. 62 Cal. App. 4th at 1387-88. The court concluded that such statements could not simply be taken at face value.
Accommodation Must an employer provide an accommodation to an employee it regards as disabled, even if the employee is not actually disabled? Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 43 Cal. Rptr. 3d 874 (2006). The court determined that Lockheed unlawfully refused to hire him because it regarded him as a person with a disabling physical condition and failed to provide reasonable accommodation through an interactive process.
Ongoing Interactive Process Must an employee who receives an accommodation inform a new manager of the accommodation or continue to engage in the Interactive Process? A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 464, 100 Cal. Rptr. 3d 449 (2009). The court rejected Albertsons position, concluding that the employee s duty to engage in the interactive process was completed when Albertsons agreed to provide the accommodation of allowing her to use the restroom frequently, and that the company not the employee had an obligation to notify the employee s new manager of the agreed-upon accommodation.
Reassignment Must an employee who seeks reassignment to another position establish that he or she can perform the essential functions of the reassigned job? Cuiellette v. City of Los Angeles, 194 Cal. App. 4th 757, 123 Cal. Rptr. 3d 562 (2011). Jury awarded 1.5 million dollars
Skill Sets What you need as a Vocational Consultant dealing with: Essential Functions Interactive Process Reasonable Accommodation Defense/Plaintiff Opinion(s)
As a Vocational Consultant Ability to evaluate on a per case basis Knowledge of the World Of Work Skill to analyze a job
Essential Functions Knowledge of laws, codes & definitions Utilizing Vocational Rehabilitation standard methods Research-HAJ, DOT, O*NET, publication resources
Interactive Process Knowledge of law codes & process A separate FEHA violation Affirming or Denying Verbalize the Process
Reasonable Accommodation Utilize your knowledge & experience (medical & occupational) Research resources, i.e., JAN, Equipment websites, etc. Consider all options-knowledge of FMLA, CFRA
Defense/Plaintiff Opinions Understand the parties positions and burdens Use proven vocational rehabilitation methodologies (published & peer reviewed) Assist counsel
Opinion Skill Set Know the case facts Read the entire file Memorize data Develop opinion(s) using sound data and methods Deliver opinion(s) clearly and with Reasonable Certainty
Questions
Suhonos Occupational Services, Inc. (t) (916) 349-9300/ (f) (916) 349-9373 Email us at Suhonos@surewest.net Visit our Website @ www.suhonos.com Thank you for attending! Feel free to contact our office with questions.