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Whos Qualified? Defending Essential Functions, Qualification Standards and Performance Requirements Under the ADA Merrily S. Archer, Esq., M.S.W. EEO Legal Solutions LLC Slide 2 About Merrily... Ms. Chief, EEO Legal Solutions and WorkplaceTrainingHub.com JD/MSW Washington University in St. Louis EEOC Trial Attorney, 1997-2000, Denver Biglaw employment defense attorney, 2000-2012 (e.g., Jackson Lewis, Fisher & Phillips) SuperLawyer: employment litigation defense Defended EEOC v. Picture People 2012: top 10 most powerful Colorado attorneys, Denver Business Journal Dances in grocery stores, plays guitar (badly), huge embarrassment to daughters Slide 3 WorkplaceTrainingHub.com is an online training marketplace that brings together experts from a variety of workplace disciplines to offer affordable, accessible, and accredited programs that are also fun and engaging Slide 4 Buckets of Expertise Employment Law Compliance Leadership Development HR Skill Building Training for a Small World Slide 5 The Point The EEOC and employee-side attorneys have aggressively substituted their judgment for employers regarding Knowledge, skills, and abilities required to perform job What successful job performance looks like What accommodations are reasonable or even possible Prepare to defend... NOW Slide 6 The Plan ADA: Where We Started EEOC ADA Enforcement Trends Basic Qualified Analysis EEOC Qualified Analysis in Litigation Prepare-to-Defend Action Plan Litigation Tips Slide 7 1990: Congress passes ADA 1999: SCOTUS decides Sutton Triology, narrowing class of disabled people 2008: Congress passes ADAA, defining disability to include MOST conditions 2011: EEOC issues BROAD regulations and increases prosecutions against employers A Brief History of the ADA Slide 8 Promises, Promises The Committee wishes to emphasize again that this legislation does not require an employer to make any modification, adjustment, or change in a job description or policy that an employer can demonstrate would fundamentally alter the essential functions of the job in question. H.R EP. N O. 101-485 (II) at 64, House Committee on Education and Labor Slide 9 Under this legislation an employer may still devise physical and other job criteria and tests for a job as long as the criteria or tests are job- related and consistent with business necessity. H.R EP. N O. 101-485 (II) at 56 Slide 10 For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. 12111(8) Slide 11 The EEOCs Interpretation An employer is not required to restructure the essential functions of a position to fit the skills of an individual with a disability. 29 C.F.R. pt. 1630, App., 1630.2(o) and 1630.9, 3 Slide 12 Types of EEOC Charges in FY2014 Retaliation outranks all other charges ADA cases continue to climb Liberalized disability definition Slide 13 ADA Charge Trends Slide 14 Failure to Accommodate Slide 15 Risky Business Slide 16 EEOC ADA Prosecutions ADA prosecutions in FY2014 fell slightly from FY2013 34% in FY2014 36% in FY2013 Cause determination rate of 4.5%, no reasonable cause of 62.6% Slide 17 Basic Qualified Analysis Qualified: a PwD who, with or without reasonable accommodation, can perform the essential functions of the employment position that [s/he] holds or desires. See also 29 C.F.R. 1630.2(m) Otherwise Qualified If a reasonable accommodation would enable the PwD to perform essential job functions, s/he is qualified under the ADA Slide 18 Essential Job Functions 29 C.F.R. 1630.2(m) Standard The position exists is to perform that function; There is limited number of employees available among whom the performance of that job function can be distributed; and/or The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. Evidence The employer's judgment; 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 (e.g., firefighter); The terms of a collective bargaining agreement; The work experience of past incumbents in the job; and/or The current work experience of incumbents in similar jobs. Slide 19 Major Sticking Points Proposed accommodation FUNDAMENTALLY ALTERS the jobs essential functions Proposed accommodation poses an UNDUE HARDSHIP Qualification standard is JOB- RELATED and CONSISTENT with BUSINESS NECESSITY Slide 20 Connecting the Dots... though many of the market responses to CRA 1991 were foreseeable. Slide 21 Overarching Themes Legitimate business concerns are based on unenlightened myths, fears, and stereotypes about PwDs. Enlightenment Vocational interests of disabled community outweigh legitimate business concerns. Entitlement Can EEOC substitute its judgment for employers re minimally effective job performance? Efficacy Slide 22 EEOC: Eliminate an Essential Function of the Job EEOC v. Womble Carlyle Sandridge & Rice, LLP, (M.D.N.C. June 26, 2014) EEOC v. Womble Carlyle Sandridge & Rice, LLP Law firm assistant with breast cancer unable to lift 75 lbs., 20 lbs. regularly EEOC: 75 lbs. not an essential function, her position could have been redefined to exclude heavy lifting as reasonable accommodation Court: ADA does not require employer to reallocate essential functions or create new position around employees limitations as a reasonable accommodation Slide 23 EEOC: Just Fundamentally Alter the Job EEOC v. Picture People, 684 F.3d 981, 98384 (10th Cir. 2012) EEOC v. Picture People EEOC demanded that retailer specializing in childrens portrait photography eliminate its strong verbal communication skills requirement and allow deaf/mute PwD perform job via written notes, gestures, text messaging as a reasonable accommodation Fundamental alteration in job, customer experience, business model Fit job to CPs limitations, regardless of impact on customer experience Slide 24 How EEOC Investigators Evaluate Qualified Rare EEOC responses to contention interrogatories in EEOC v. Picture People provide insight into how EEOC determined a deaf/mute PwD was qualified in the investigation, reasonable cause determination, and prosecutionEEOC v. Picture People CP said she could do most of the job Terminated employee said CP was a good worker CP had no performance discipline in her file Employed eight (8) weeks Picture People HIRED CP Picture People did exactly what the law requires: they gave the Charging Party an OPPORTUNITY. Slide 25 EEOC ADA Class Actions EEOC v. Fed Ex Ground 10-10-14: EEOC sued FedEx Ground for class-based discrimination against deaf and hard-of-hearing applicants and employees FedEx has longstanding policy of hiring deaf and hard-of- hearing applicants but failed to provide as reasonable accommodations ASL interpreters Closed captioned TV Equipment that vibrates/flashes instead of beeps Slide 26 Wait... With ADAs required individualized assessment and wide functional variations with the deaf community, are all members of the class entitled to the same reasonable accommodations? Slide 27 EEOC: Workplaces as Extension of Vocational Rehabilitation EEOC v. Papa Johns EEOC: rural Papa Johns successfully employed CP with Down Syndrome Who gets to decide? What would managers on the ground say? EEOC: CP with Down Syndrome could perform position with a job coach from a local social service agency as a reasonable accommodation What does need to job coach reveal about CPs ability to perform essential job functions without EXTENSIVE supervision? Is one-on-one supervision a reasonable accommodation? Slide 28 Restoring the ADAs Careful Balances Slide 29 Prepare to Defend: An Action Plan 1: Define the Job Job Descriptions Involve employees Set Performance Requirements 2. Enforce the Standard Performance Evaluations Training Materials Communications 3. Engage Managers S-E-E Spot, Engage, Escalate potential ADA issues before they become legal ones 4. Document Documentation wins (or loses) discrimination cases Slide 30 The Ground Game: Documentation Interactive Process and Accommodations Considered Job Descriptions and Essential Job Function Analyses Performance Evaluations and Training Materials Problems Caused by Accommodation Medical Information and Vocational Analyses Slide 31 Elimination/Fundamental Alteration Defense Documentation Customer complaints (written/documented) EEOC, employee-side very focused on ABSENCE of this evidence Observations of other employees/managers Written logs, emails, IMs Expert testimony Objectively changing the product Customer experience as part of employers product Safety concerns, incidents, near misses (direct threat) Medical testimony Loss of revenue, clients Slide 32 Documenting Undue Hardship Significant Expense Employers Size and Financial Resources Overall Cost Public Resources (State Vocational Rehabilitation) Tax Credits Slide 33 Documenting Undue Hardship Impeding Operations Interfering with Other Employees Rights Inconveniencing Customers (Complaints) Change in Product, Service, Business Model Significant Difficulty Slide 34 Fighting Back Build your defense story before drawing lines Actively manage interactive process, leave requests, and returns to work Practice Defensive Management Litigate strategically so that you can fight when youre right Slide 35 Winning Litigation Tips Get vocational rehabilitation records Depose vocational rehabilitation caseworker Obtain Social Security records Consider videotaping the job Avoid testifying experts Use a consulting expert to depose/eviscerate EEOC expert Make CP describe or demonstrate how s/he would perform essential job functions at deposition, trial Slide 36 Your Takeaways Prepare to defend essential job functions and qualification standards NOW Update job descriptions, training/evaluation materials She who has the most paper wins Push back Judiciary tempers EEOC over-reach ADA prosecutions do not require an entourage of lawyers Slide 37 Final Questions/Issues Merrily Archer, Esq., M.S.W. (303) 248-3769 (direct) (303) 915-5486 (cell) archerm@eeolegalsolutions.comwww. eeolegalsolutions.com Twitter: @EEOLegal Slide 38 Slide 39 Slide 40 Slide 41 Slide 42 Slide 43 Slide 44 Slide 45 Slide 46 Apps for Dat https://www.tsheets.com/ Slide 47 Slide 48