WALKING THE ADA TIGHTROPE: DISABILITY DISCRIMINATION & REASONABLE ACCOMMODATION

March 20, 2018

Presented by: Jami Fenner

Associate General Counsel Hobby Lobby Stores, Inc.

for

SUMMARY OF ADA & EMPLOYER’S OBLIGATIONS

Employer shall not discriminate based on

disability Employer must not retaliate Employer must make reasonable

accommodation to qualified individual with a disability Unless employer can demonstrate undue burden on

operations Other requirements No improper disability-related inquiries No improper disclosure of confidential info

WHY WE CARE?

FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017Age 23.0 22.8 23.2 22.5 22.8 21.8Color 2.7 3.4 3.1 3.2 3.4 3.8Disability 26.5 27.7 28.6 30.2 30.7 31.9Equal Pay Act 1.1 1.1 1.1 1.1 1.2 1.2GINA 0.3 0.4 0.4 0.3 0.3 0.2National Origin 10.9 11.4 10.8 10.6 10.8 9.8Race 33.7 35.3 35.0 34.7 35.3 33.9Religion 3.8 4.0 4.0 3.9 4.2 4.1Retaliation - All Statutes 38.1 41.1 42.8 44.5 45.9 48.8Retaliation - Title VII only 31.4 33.6 34.7 35.7 36.2 38Sex 30.5 29.5 29.3 29.5 29.4 30.4

0.010.020.030.040.050.060.070.080.090.0

100.0EEOC: 2012 to Date

INDIVIDUAL WITH A DISABILITY Physical or mental impairment, record of

impairment or regarded as having impairment Must be viewed broadly & not extensively

analyzed Asymptomatic conditions are disabilities (e.g.

cancer) Temporary impairments covered No minimum duration if disability substantially

limits one or more major life activities

BE CAREFUL ABOUT ASSUMPTIONS RE: ABILITIES

WHAT IS AN ACCOMMODATION? Change

To job application process To work environment or processes that

enables individual to perform essential job functions That enables employee to enjoy benefits &

privileges of employment

WHO RAISES ACCOMMODATION ISSUE & HOW?

Generally not management or HR Supervisors should focus on performance and

conduct May make request orally Magic words not required May request at any time (not req’d to

disclose/reveal at commencement of employment)

Interactive Process

Information gathering process Flexible, informal & “interactive” Must occur promptly Must be individualized Confidential Discussions should be documented (date,

time, participants,…) Note: Do not begin interactive process if there’s a reason/need to terminate

More About Interactive Process

Goal is to permit employee to work, i.e. to perform essential job functions Analyze job functions at issue Look at nature, extent, severity & duration

of impairment(s) Identify possible accommodations that

would eliminate barriers May seek medical documentation about

impairment & functional limitations

MEDICAL DOCUMENTATION Seek only enough information to determine

whether disability exists (if not apparent) and to understand functional limitations Limited to condition at issue Medical records should be requested only if

initial information is unclear (must have authorization) EEOC has held that requiring medical

documentation unnecessarily is a violation

ESSENTIAL JOB FUNCTIONS

Occupational duties fundamental to position; individual cannot do job without performing them Factors: Job Descriptions Position exists specifically to perform function Amount of time actually spent performing function Consequences of not requiring incumbent to

perform function Work experience of incumbents in the job or similar

jobs

JOB TITLE NOT DETERMINATIVE

Roberson with the Thunder in 2017

No. 21 – Oklahoma City Thunder Position Shooting Guard/Small Forward

IDENTIFYING & GRANTING ACCOMMODATION

ADA does require preferential treatment Equal treatment not enough when it comes to

reasonable accommodation “no exception” policies are a problem ADA is superior to company policies

BUT, employer has right to choose any accommodation that eliminates barrier Does not have to be accommodation requested

Cannot require an employee to accept an accommodation

Examples of Accommodations

Job restructuring of marginal duties Modified or part-time schedule Tools, equipment, physical changes to the workplace Modifying workplace policies Frequent breaks & lengthening workday Telework

WHEN ACCOMMODATING, COMPANY DOES NOT HAVE TO . . .

Remove an essential job function Many supervisors believe they have to let

employees “follow doctor’s orders”

Create a job for an employee Remove or reduce production requirements

or performance standards Excuse inappropriate or wrongful conduct Withhold discipline

REASONS FOR DENIAL OF REQUEST

Undue Hardship Insufficient medical documentation Remember, must be limited; only need nature of

impairment (duration, severity, major life activity affected) & how accommodation will assist individual

Removes essential function Lowers Standards Standard should exist prior to request Direct threat

UNDUE HARDSHIP? Generalized conclusions not sufficient Need individualized assessment of circumstances

Factors to consider: Nature & cost of needed accommodation Resources, # of employees, and type & location Type of operation; structure of workforce Impact on operations, including ability of other

employees to perform their duties

Cannot base undue hardship on Fears or prejudices Negative impact on morale

DIRECT THREAT Tough to establish Significant risk of substantial harm to health

or safety of employee or others Accommodation will not eliminate or reduce

Must engage in individualized assessment based on medical documentation & objective evidence Decision cannot be based on assumptions,

unwarranted fears, generalizations, stereotypes or myths about particular disability

Leave As An Accommodation

Cannot require full-duty release But, if cannot perform EJFs, consider leave Beyond FMLA Need not be paid Indefinite not reasonable Says 10th Circuit & several others May require est. return date & indication employee

will be able to perform EJFs upon return

Inflexible leave policies not reasonable, But granting it may be an undue burden

REASSIGNMENT Accommodation of last resort Should be considered only if no other effective accommodation

available Provided to employee who, because of disability, can no longer

perform EJF of current position with or without accommodation Employee must be qualified Not required to create positon or bump an employee Shared burden in searching for position Competitive/Non-competitive? Now a split in the circuits

OTHER INTERESTING ISSUES

Service animals Treat like any other accommodation request Set appropriate boundaries Remember confidentiality Pregnancy Equal access to light duty Medical marijuana Oklahoma State Question 788, on 6/26/18 ballot Still illegal & AG Sessions rescinded Ogden Memo Many states medical marijuana laws say employers

can’t discriminate but need not accommodate Others are split on whether federal law preempts

QUESTIONS?????