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DISABILITY DISCRIMINATION LAW
Updated May, 2006


 

  1. What is a Disability?

    1. Statutes

      1. Federal Law – Americans With Disability Act prohibits employers from discriminating against an individual because of a disability:

        1. 42 USC 12102(2) defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”

        2. The ADA does not define the term “major life activity.”

      2. Oregon law generally prohibits discrimination in the terms or conditions of employment on the basis that someone is disabled.

        1. ORS 659A.100(1) defines a disabled person as “a person who has a physical or mental impairment which substantially limits one or more major life activities.” This corresponds with the federal definition.

        2. ORS 659A.100(2)(a) notes that a major life activity includes “self-care, ambulation, communication, transportation, education, socialization, employment, and ability to acquire, rent or maintain property.

        3. ORS 659A.100(2)(b) defines having a record of impairment as having “a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.”

        4. ORS 659A.100(2)(c) states that one is regarded as having such an impairment when the individual:

          1. has a physical or mental impairment that does not substantially limit a major life activity, but is treated by an employer or supervisor as having such a limitation;

          2. has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or

          3. has none of the impairments described in i or ii, but is treated by an employer or supervisor as having a mental or physical impairment that substantially limits one or more major life activities.

        5. ORS 659A.100(2)(d)(B) defines substantially limits as “the impairment specifically restricts the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.” This corresponds with the federal definition.

        6. Oregon’s discrimination statutes are to be construed in a manner consistent with any similar provisions of the ADA whenever possible. ORS 659A.139.

      3. Washington Law Against Discrimination also generally prohibits an employer from discharging an employee on the basis of his or her disability.

        1. RCW 49.60.180 makes it an unlawful employment practice for an employer to refuse to hire an individual, to terminate an individual, or to discriminate against an individual in terms of compensation or other conditions of employment, on the basis of that individual’s sensory, mental, or physical disability.

        2. RCW 40.60.180 specifies that the prohibition against discrimination because of a disability does not apply if the disability prevents the proper performance of the particular worker involved.

        3. Washington regulations state, “For enforcement purposes a person will be considered to be disabled by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal.” Plaintiffs need not show that the impairment substantially limits a major life activity as required under federal and Oregon law.

    2. How have the courts been defining disability recently?

      1. Federal Courts

        1. Carpal tunnel syndrome NOT a disability because limitations on lifting did not necessarily keep plaintiff performing “tasks that are of central importance to most peoples’ lives.” Toyota Motor Mfg. v. Williams, 534 US 184 (2002). The Supreme Court strictly construed what is a disability.

        2. A medical diagnosis is not necessary to prove a disability. Vinson v. Thomas, 288 F3d 1145 (9th Cir. 2002).

        3. Attention Deficit Disorder (ADD) not a disability where employee failed to introduce evidence that his ADD substantially limited a major life activity. Wright v. CompUSA, 03-1099 (1st Cir. December 19, 2003).

        4. Several Circuit Courts have recognized that an employee may bring claims for disability harassment at the workplace and in the housing context. See Neudecker v. Boisclair Corp., 03-1799 (8th Cir. December 8, 2003).

      2. Oregon Courts

        1. a corrections officer permanently placed on a drug that caused an increased risk of serious internal or external bleeding or hemorrhage if he is physically injured could be disabled because his condition renders him unable to perform jobs in a broad class of jobs, when you consider he is barred from construction, maintenance, law enforcement and manufacturing fields. Evans v. Multnomah County, 184 Or App 733 (2002).

      3. Washington Courts

        1. Where an employee seeks a reasonable accommodation, a disability is defined as a sensory, mental or physical abnormality that substantially limits the ability to perform the job. Roeber v. Dowty Aerospace Yakima, 116 Wn App 127, 64 P3d 691 (2003).

        2. BUT where an employee is claiming disparate treatment, the employee must be able to show that he had a sensory, mental, or physical disability that is an abnormality, which was the reason for his adverse employment action. McClarty v. Totem Electric, 29577-6-II (Wn App 12-23-2003). Proving a disability requires expert medical testimony, medical documentation, and evidence of the employer’s state of mind as to whether the employer perceives the existence of a disability. Id.

        3. Suffering from migraine headaches and depressive disorder could be a disability. Roeber v. Dowty Aerospace Yakima, 116 Wn App 127, 64 P3d 691 (2003).

        4. Carpal tunnel syndrome could be a disability, if it substantially limits one’s ability to perform his or her work. McClarty v. Totem Electric, 29577-6-II (Wn App 12-23-2003). In so holding, the Washington Court of Appeals noted that it is easier to establish substantial limitation under the Washington Law Against Discrimination than under the ADA.

        5. One case notes that Washington law “is not limited to permanent disabilities and thus requires employers to reasonably accommodate temporary disabilities.” Pulcino v. Federal Express, 141 Wn.2d 629, 9 P.3d 787 (2000).

      4. Differences

        1. Note that in Washington, carpal tunnel syndrome could be a disability, if the employee can show it substantially limits one’s ability to perform his or her work.

        2. The difference is that under federal law, the inquiry is whether an impairment substantially limits a major life activity, whereas in Washington, the inquiry is whether an impairment substantially limits one’s ability to perform his work; thus, it is easier for an employee to establish substantially limits under Washington law.

        3. Oregon has limited the inquiry to whether an employee is substantially limited in the ability to perform a broad range of jobs in various classes. Evans v. Multnomah County Sheriffs Office, 184 Or App 733, 57 P3d 211 (2002). The Oregon Court of Appeals held that its decision was not at odds with the federal decision limiting the inquiry to whether one is substantially limited in a major life activity because in employment is a major life activity. If one is substantially limited in working, it follows that he is substantially limited in a major life activity.

    3. Mitigating or corrective measures:

      U.S. Supreme Court cases hold that a “disability” for ADA purposes does not include conditions which are relieved by “mitigating measures”:

      • Sisters who wanted to become airline pilots were not disabled because eyeglasses had corrected their 20/200 vision to normal. Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)

      • A plaintiff’s own body had adjusted for his visual impairment (monocularity) so there was no disability. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (case was remanded so that lower court could determine whether fact that plaintiff could not do certain tasks around the house amounted to a substantial limitation in a major life activity).

      • A plaintiff with high blood pressure is not disabled when medication permits him to participate in major life activities. Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).

      The Oregon Supreme Court last week adopted this approach by reversing the Court of Appeals case of Washburn v. Columbia Forest Products, Inc,197 Or. App. 104, 104 P.3d 609 (2005). The Oregon Court of Appeals court had held that when determining whether a person is disabled under Oregon law, it does not consider the effects of mitigating measures.

  2. What does it mean to be a Qualified Individual with a Disability?

    1. Federal law

      1. The burden is on the employee to show he or she is able to perform the essential functions of a position. Mason v. Avaya Communications, Inc., 03-6035 (10th Cir. January 13, 2004).

      2. The ADA does not protect erratic, unexplained absences because attendance at job site is basic requirement of most jobs. Nicosia v. Yellow Freight System, 253 F3d 943 (7th Cir. 2001).

      3. In Albertson’s, the Supreme Court also raised the question of whether a driver could be otherwise qualified where he or she could not meet DOT vision requirements.

    2. Oregon

      1. An employee is qualified if he “with or without reasonable accommodation can perform the essential functions of a position.”

      2. What is an essential function?

        1. the Oregon courts look to 5 factors in determining whether any one job duty is an essential function of a position:

          1. the amount of time spent performing the function;

          2. consequences of not performing the function;

          3. terms of collective bargaining agreement;

          4. work experience of incumbents in positions; and

          5. current work experience of incumbents in similar positions.

      BEST PRACTICE TIP: Oregon statute provides that consideration will be given to the employer’s determination as to the essential functions of a position. Having accurate and up-to-date written job descriptions for all positions prior to advertising or interviewing for a job will be considered as evidence in determining the essential functions of a position.
       

    3. Washington law looks to the federal definitions to assist in determining whether functions are essential to a position. Davis v. Microsoft, 149 Wn 2d 521 (2003):

      1. An essential function is a job duty that is fundamental, basic, necessary and indispensable to filling a particular position as opposed to a marginal duty divorced from the essence or substance of the job.

      2. Job presence or attendance may be an essential function.

      3. Acceptable to discharge a disabled employee who is unable to perform an essential function of a job without attempting to accommodate that deficiency.

      4. The Washington Supreme Court has held that a former Microsoft systems engineer who was placed on limits of no more than 40 hours per week or 8 hours per day was unable to be a Microsoft systems engineer because the evidence showed that Microsoft systems engineers work a varying number of hours per day due to unpredictable customer demands, frequently travel out of state, and consistently worked well over 40 hours per week.

  3. The reasonable accommodation duty and the interactive process.

    1. Federal Law

      1. ADA requires reasonable accommodations necessary to meet the disability-created needs of a disabled person so that the disabled person may enjoy the same workplace opportunities enjoyed by non-disabled persons. In some circumstances, modification of a seniority system may be a required accommodation. A reasonable accommodation can include an obligation to alter policies that can be barriers to non-disabled persons, too. US Airways v. Barnett, 535 US 391 (2002).

      BEST PRACTICE TIP: The Supreme Court has recognized that legitimate and strict seniority systems “trump” an employer’s accommodation obligation to place a disabled person into a job vacancy whether found in a collective bargaining agreement or established by the employer. But where seniority is not strictly followed in filling vacancies, seniority may not be an excuse not to accommodate.

      • A reasonable accommodation can be pardoning an individuals’ non-compliance with an employers’ policy. Peebles v. Potter, 03-1466 (8th Cir. January 8, 2004); Giebeler v. M&B Associates, 343 F3d 1143 (9th Cir. 2003).

      • The 9th Circuit joined a number of other Circuits in holding that an employer is not under a duty to accommodate an employee in a “regarded as” case; there is only a duty to accommodate an employee who is actually disabled. Kaplan v. City of North Las Vegas, 323 F3d 1226 (9th Cir. 2003).

      1. Requesting an accommodation and triggering the interactive process:

        1. The general rule under federal law is that an applicant or employee must request an accommodation before the employer has a duty to engage in the interactive process and to accommodate is triggered. See Brown v. Lucky Stores, 246 F3d 1182 (9th Cir. 2001).

        2. But there are exceptions where the applicant or employee is “unable to request a reasonable accommodation” and that employer “knew or had reason to know that EE had a disability preventing her from making such a request. Id. And, in more extreme cases, court have held that an employer may need to act “if the employer recognizes that an accommodation is necessary.” See Stephenson v. United Airlines, 2001 US App LEXIS 11400 (9th Cir. 2001) (employee brought in doctor’s note with numerous restrictions).

        3. There are no magic words or need for an employee to use the words “reasonable accommodation” to trigger an employer’s obligation.

      2. The interactive process:

        1. The interactive process requires good faith exploration of possible accommodations between employers and employees, with the shared goal of finding an accommodation that allows the employee to perform the job effectively. Barnett v. US Air, 228 F3d 1105 (9th Cir. 2000), overruled on other grounds, US Airways v. Barnett, 535 US 391 (2002).

        2. The interactive process requires that employers analyze job functions to establish the essential and non-essential tasks. Employers should meet with the employee, discuss the employee’s limitations, and the employee’s preferences, show some sign of having considered the employee’s request, and offer and discuss available alternatives if the requested accommodation is too burdensome. Barnett v. US Air, 228 F3d 1105 (9th Cir. 2000), overruled on other grounds, US Airways v. Barnett, 535 US 391 (2002).

        3. The employer must talk to the employee directly. Talking to the mother is not sufficient to satisfy interactive process. Zivkovic v. Southern Calif. Edison Co., 302 F.3d 1080 (9th Cir. 2002).

        4. Request for medical documentation: Employer may ask for reasonable documentation about the individual’s disability and functional limitations, and the employee can be asked to sign a limited medical release EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship (2002) at question 6. But, the employer cannot ask for complete medical records

          BEST PRACTICE TIP: An employer must meet with the employee, discuss the employee’s preferred accommodations, as well as the employer’s preferred accommodations, and make a showing that the employer considered the employee’s request. It is imperative that all employers document these steps. Asking the employee to sign and date notes of each meeting is advisable.

      3. When is an employer relieved of the obligation to engage in the interactive process:

        1. In Allen v. Pacific Bell Tel. Co., 348 F.3d 1113 (9th Cir. 2003), the employer was relieved of obligation to engage in interactive process when employee failed to provide medical evidence repeatedly requested by employer.

        2. If the employee “states he or she does not need a reasonable accommodation, the employer will have fulfilled its obligation.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, no. 915.002 (2002), at question 40.

        3. Accord, Umble v. Arrowhead Community Hosp. & Med. Center, 2001 U.S. App. LEXIS 7857 (9th 2001) (no accommodation where EE maintained throughout termination proceedings that job performance was satisfactory and that she did not require leave or any other accommodation to return to work.”)

    2. Oregon Law

      1. Evans v. Multnomah County Sheriff’s Office, 184 Or App 733, 57 P3d 211 (2002): a sheriff’s deputy who was normally required to rotate through a broad range of posts, but because of his heart condition could perform duties of only limited number of posts. The court held it a triable question of fact whether he was otherwise qualified to perform the job. Thus, an accommodation may be to permit disabled employee to perform just the posts he or she can handle and full range of posts.

    3. Washington Law

      1. Washington requires an interactive process similar to the federal requirement: the Washington employer is required to assist in identifying and applying for another available job for which the employee is qualified. Downey v. Crowley Marine Svc., 236 F3d 1019 (9th Cir. 2001); Goodman v. Boeing Co., 127 Wash. 2d 401, 899 P.2d 1265 (1995).

      2. Washington law imposes upon the employer an affirmative obligation to reasonably accommodate handicapped employees; the duty to accommodate arises once an employer is aware of a disability and an employee’s physical limitations. The employee bears the burden of giving the employer notice of her disability. Anica v. Wal-Mart, 51359-1-I (Wn App 1-5-2004).

  4. Key Limitations on Medical Inquiries and Examinations.

    1. Medical Examinations at Hiring.

      An employer may not require applicants to undergo medical examinations or to disclose personal medical information until a conditional offer of employment is made. The conditional offer must be conditioned only upon the passing of a medical examination. If the offer is subject to other conditions, such as a satisfactory background check, then the request to disclose personal medical information and the medical examination may be found premature and violate the ADA and state disabilities laws. Leonel v. American Airlines, Inc, (9th Cir. 2005).

    2. Appropriate medical inquires about an applicant or employee’s disability:

      • An employer may ask for reasonable documentation about the individual’s disability and functional limitations EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship (2002) at question 6.

      • An employer cannot ask for complete medical records

      • The employee can be asked to sign a limited medical release

  5. Defenses

    1. Undue hardship

      Under the ADA it is unlawful to fail to reasonably accommodate an otherwise qualified disabled person unless it would impose undue hardship on an employer.

    2. Direct threat defense

      1. 42 USC 12111(3) defines a direct threat as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

      2. An HIV positive dental hygienist was determined not to be a qualified individual with a disability because she posed a “direct threat” to others in the workplace because she worked inside people’s mouths, where the court recognized possibility of a cut on her finger and a cut inside their mouths and considered the seriousness of such an accident. Thus, the employer was not required to accommodate her. Waddell v. Valley Forge Dental Associates, 276 F3d 1275 (11th Cir. 2001).

      3. Threat to self defense

        The Supreme Court extended the doctrine of direct threat to include threat to self in case where employer declined to hire an individual with Hepatitis C because employer’s doctors said Hepatitis C would be aggravated by continued exposure to harmful chemicals at the employer’s refinery. Chevron v. Echazabal, 536 US 73 (2002).

  6. Drug Abuse or Alcohol Use As a Disability.

    1. Illegal Drug Use

      1. The current use of illegal drugs is NOT protected. Shafer v. Preston Memorial Hospital Corp., 107 F3d 274 (4th Cir. 1997).

      2. An employee using illegal drugs in a periodic fashion during weeks and months prior to discharge deemed to be currently engaging in the use of illegal drugs. Shafer v. Preston Memorial Hospital Corp., 107 F3d 274 (4th Cir. 1997).

    2. Recovering Addicts/Past Abuse

      1. ADA protects individuals who have successfully completed or are participating in a supervised drug rehabilitation program and are no longer using illegal drugs, as well as those who are erroneously regarded as using drugs when they are not.

      2. An employee with the impairment of prior drug addiction/abuse are still required to show that the impairment substantially limits a major life activity, or that they have a record of an impairment that substantially limits a major life activity.

    3. Medical Marijuana Act

      1. ADA does not exempt marijuana from the Controlled Substances Act – use is not protected under federal law but Oregon and Washington law is more permissive, so not pre-empted.

      2. Oregon Law

        1. There is no prohibition on disciplining an employee for drug use or intoxication on the job.

        2. In Washburn v. Columbia Forest Products, Inc.,197 Or. App. 104, 104 P.3d 609 (2005), the Oregon Court of Appeals applied the Oregon Medical Marijuana Act, which does not protect “the medical use of marijuana in any workplace.” The court, however, held that off-site use of marijuana was not the medical use of marijuana at work even if marijuana was still detectable in the person’s system at work. The court of appeals looked to the statute’s definition of “medical use of marijuana” and found that it included only “production, possession, delivery or administration” of the drug, but not being under its influence.

          As noted earlier [pgs. 5-6], the Oregon Supreme Court overturned the Washburn decision on the issue of whether Mr. Washburn was a “disabled person” within the meaning of the disability law, but the majority opinion did not address the issue of federal pre-emption.

        3. ORS 659.100 has been amended. Sub-section (4) of this section provides “Illegal use of drugs” means any use of drugs, the possession or distribution of which is unlawful under state law or under federal law, but does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized under the Controlled Substances Act or under other provisions of state or federal law.

        4. Oregon employers are not required to accommodate medical use of marijuana at workplace. ORS 475.340(2). But BOLI has held that an employer must accommodate off-the-job use. See Emerald Steel Fabricators, Inc., Case No. 30-04 (July 13, 2006), aff'd Emerald Steel Fabricators, Inc. v. BOLI, (Or. Ct. App. June 11, 2008).

        5. Washington: Washington’s medical marijuana law has a similar statutory provision but no case has addressed this issue.

    4. Alcoholism

      1. Drugs and alcohol are treated differently – an alcoholic not automatically excluded from protection because of current use. Mx Group v. City of Covington, 293 F3d 326 (6th Cir. 2002).

      2. Alcoholism, while an impairment, is not a disability unless the alcoholism substantially limits a major life activity of that individual, not just alcoholics in general. See Bailey v. Georgia-Pacific, 306 F3d 1162 (1st Cir. 2002).

  7. How Do I Reasonably Accommodate Drug or Alcohol Addiction?

    1. Modified Work Schedule

      1. While an employer is not required to allow excessive absences, an employer may need to allow a modified work schedule for an employee to attend rehabilitation, such as alcoholics anonymous meetings, or allow for a leave of absence.

      2. An employer is not required to provide a modified work schedule if treatment would be futile; courts have shown a reluctance to require employers to accommodate alcoholism. Evans v. Federal Express, 133 F3d 137 (1st Cir. 1998). Courts are more likely to require an employer to provide a leave of absence or modified work schedule if it is a first request; if an employee has previously been granted a leave of absence for treatment, which failed, courts are not likely to require an employer to provide multiple leaves of absences. Id.

      3. In Oregon, a request for an unpaid leave of absence for a specified period to address alcoholism could be a reasonable accommodation. Holmes v. Willamette University, 157 Or App 703, 971 P2d 914 (1998).

    2. Last Chance Agreement

      The employee acknowledges the existence of a problem and agrees to attend rehabilitation, submit samples when requested for one year, and participate in alcoholics anonymous, and an employer provides that any further drug or alcohol use on the job would be grounds for discharge.

      BEST PRACTICE TIPS:

      • Not every employee need be given a second chance.

      • Restrict the last chance agreement to the terms of the treatment program or abstinence on the job.

      • Last chance agreements may be subject to test of reasonableness

    3. Defenses to Failure to Reasonably Accommodate Alcoholism or Prior Drug Addiction

      1. In Oregon, if an employee denies having alcoholism, there is no duty to accommodate that impairment. Braun v. American International Health, 315 Or 460, 846 P2d 1151 (1993).

      2. Under Oregon law and the ADA, an employer is similarly not required to offer an accommodation that would be futile. Schmidt v. Safeway, 864 F Supp 991 (D Or 1994).

      3. Undue hardship – if an employer can demonstrate a negative economic impact on the business or a disruption of operations, the accommodation is not reasonable.

      4. Demand for accommodation – if an employer is aware of a disability, a demand for accommodation is not necessary. Schmidt v. Safeway, 864 F Supp 991 (D Or 1994).

        BEST PRACTICE TIP: An employer should not just look at one potential accommodation. An employer is required to work with the employee to identify potential accommodations and then determine whether any of those potential accommodations are reasonable. Once an employer becomes aware of an impairment, the employer should work with the employee to identify possible reasonable accommodations.

      5. In a disparate-treatment case, where an employee alleges that an employer failed to hire him because the employer “regarded” him as being a drug addict because he had previously been terminated for failing a drug test, the US Supreme Court held that an employer may decline to re-hire an employee pursuant to a policy against rehiring employees who were terminated for workplace misconduct. Raytheon Co v. Hernandez, 02-749 (US Supreme Court, December 2, 2003).

        • Raytheon, however, was decided on narrow grounds. The Supreme Court expressly declined to rule on the disparate impact of such a rule on drug addiction, concluding that the question was not properly raised.

        • Raytheon also declined to find, in that case, that the no re-hire policy was a pretext for discrimination against recovered abusers. In any given case, pretext could be shown where such a workplace rule was inconsistently applied.

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