The preliminary numbers are in, and the number of disability discrimination cases filed in fiscal year 2016 declined sharply when compared to previous years. Part of the drop may be because it is an election year, and given the uncertainty that presents, the Equal Employment Opportunity Commission may have been slightly less willing to take on new cases so close to November.
A bigger reason may be that the EEOC’s docket is bloated because it cannot push cases through the system as fast as it could before the Supreme Court decided Mach Mining v. EEOC (2016). In that case, the Justices ruled that Title VII of the Civil Rights Act requires the agency to negotiate with employers between the time it verifies a complaint and files a lawsuit. Previously, “presuit conciliation” basically consisted of a demand letter or two.
During this conciliation process, what are the three areas where the EEOC and employer are most likely to negotiate?
What is a Disability?
In the ordinary sense of the word, a “disability” is any mental, physical, or emotional condition that limits daily activities, and Congress passed the Americans with Disabilities Act for the express purpose of broadening that court-created definition. Recently, however, the courts have pushed to go back to the way things were before.
In April 2016, the Eighth Circuit decided Morriss v. BNSF Railway Company. Machinist applicant Melvin Morriss had a Body Mass Index of just under 41; BNSF had a “safety policy” that excluded machinists with a BMI above 40. Mr. Morriss filed suit after BNSF revoked his conditional employment offer, and a district judge later dismissed the lawsuit on the grounds that the ADA requires a physiological basis for the disability and Mr. Morriss presented no evidence on this point.
Relying in part on similar decisions from the Second and Sixth Circuits, the appeals court affirmed summary judgment on this point. More importantly, the court specifically rejected evidence which showed that obesity is an impairment. Given the relative unanimity on this point among the circuits, future decisions may push the envelope even further in favor of employers.
What is Discrimination?
This next inquiry is more employee-friendly, because the ADA recognizes many different kinds of discrimination. Some common ones are:
- Direct: Employers cannot base adverse decisions (like failure to hire, failure to promote, or failure to retain) on a disability, nor can they give favorable treatment to non-disabled employees over disabled ones.
- Perceptive: Similarly, employers cannot make work assignments based on their perceptions of what disabled individuals can and cannot do.
- Associative: If Wendy Worker asks for time off or a modified schedule to care for her disabled son, in most cases, Edgar Employer must grant her boon.
Employees establish prima facie discrimination cases if they belong to a protected class, such as a disability, and they suffer from adverse action; employers can only rebut these claims if they provide a neutral explanation for the action that is not pretextual.
What is a Reasonable Accommodation?
In most cases, a “reasonable accommodation” under disability law means that employers must accede to employee requests unless there is a business reason to refuse such request. This issue came up in EEOC v. Ford (2015). Jane Harris, a worker with irritable bowl syndrome, asked Ford to allow her to work from home four days a week. Ford refused to do so, and a district judge granted summary judgment in favor of the automaker.
The Sixth Circuit later affirmed. In addition to detailing the efforts Ford made to accommodate Ms. Harris other than telecommuting, it ruled that “regular and predictable on-site job attendance [is] an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job.”
ADA cases involve three main inquires. For a free consultation with an experienced employment attorney in San Jose, contact the Briski Law Firm. We normally do not charge upfront legal fees in employment discrimination matters.