| | More on reasonable accommodation
This Americans with Disability (ADA) update will provide a follow-up to a decision by the courts about a nurse who was diagnosed with osteoarthritis and was unable to resume her bedside nursing duties. It is interesting because the nurse applied for four case manager positions, as well as a quality assurance position. This case was initially discussed in the July/August 2004 issue of The Case Manager, before her petition for review to the Supreme Court.
The next case reviewed involves a first of its kind lawsuit filed against a hospital by seven individuals who are deaf and claim they were denied proper care. Another case study will be discussed about the reversal of a decision that an individual with diabetes was not disabled under the Rehabilitation Act. Highlights will also be provided regarding the U.S. Equal Employment Opportunity Commission (EEOC) fiscal 2004 year-end enforcement data.
Let the decision stand  Each year the Supreme Court grants review, called Petition for Writ of Certiorari, to approximately 80 to 90 cases from an estimated 7000 that have applied. Granting “cert” is based on three general factors: reviewing decisions of lower courts, usually circuit courts, which conflict with other decisions; the general importance of an issue addressed; and the perception by the Supreme Court justices that the lower court decision may be an incorrect application of Supreme Court precedent. Once the Supreme Court decides how the law should be applied to a particular set of facts, this decision controls later decisions by that and other courts. The precedent set is only as to a particular set of facts and precise legal issues decided in light of those facts. The more the facts of legal issues vary between two cases, the less the precedent. In some cases, when the petition is denied, the Court decides to “let the decision stand” (Stare Decisis). In other words, the high court decides that the law should be applied in a particular set of facts as the circuit court had ruled. Such was the case in Hedrick v. Western Reserve Care Systems. Hedrick v. Western Reserve Care Systems In Title I employment cases, the plaintiffs bear the burden of proving they are disabled under the ADA, they are qualified individuals with a disability, and they have been discriminated against. It is extremely difficult, based upon case law established by the Supreme Court, as well as by the circuit courts, for plaintiffs to prove that an impairment rises to the level of the disability under the ADA. This is the first burden to be overcome before the individual can proceed with the case. In the Hedrick v. Western Reserve Care Systems (WRCS) case, the court assumed the individual had a disability, but she could not satisfy the burden of proving that she was qualified for the four case manager positions and for a quality assurance position, which is the second burden the plaintiff must prove. Case review Hedrick was a general duty nurse for WRCS and was diagnosed with osteoarthritis in both knees. In December 1995, she broke a leg, and, in May, her doctor reported she was unable to resume bedside nursing duties. A functional capacity evaluation indicated she was unable to return to her position as a general duty nurse because of pain, and bending and lifting restrictions. In September 1996, WRCS's employment coordinator informed Hedrick of an opening as a referral center scheduler. She interviewed for the position, but indicated she was not interested because the salary was too low. After her interview for the four case manager positions, as well as the quality assurance position, she was advised other candidates were more qualified. She sued WRCS for allegedly violating Title I of the ADA. When an Ohio federal court granted a motion for summary judgment to WRCS, Hedrick appealed to the Sixth Circuit Court. In her appeal, she argued her supervisor had expressed concern to her treating physician that she could not perform the job as a case manager because of her medical condition. She alleged this conversation constituted direct evidence of discrimination. The court found the supervisor's comments were expressed more out of concern over her ability to perform the job. The Sixth Circuit Court of Appeals assumed that Hedrick was disabled, the first burden of proof; however, she could not meet the burden of being qualified for the case management positions. The Sixth Circuit Court determined that the case manager and the quality assurance positions were not comparable with her previous position. The quality assurance job she applied for would have been a promotion. The court stated, “Although WRCS may have an obligation to reassign her to a vacant position for which she was qualified, the ADA does not mandate that she be afforded preferential treatment.” Therefore, the court determined Hedrick had not been discriminated against because of her disability. The Supreme Court's response The Supreme Court agreed with the Sixth Circuit Court of Appeals and let their decision stand. Hedrick's petition denial by the Supreme Court underscores the case law established by the Sixth Circuit that the employee failed to prove that disability discrimination was the sole factor for her employer's refusal to hire her for another position. In addition, the Supreme Court supported the decision that the other positions Hedrick sought were not comparable with her prior job. The case manager positions had been filled by other applicants who were more qualified. Implications for case managers The courts are generally in agreement that a reasonable accommodation may include a reassignment to a vacant position. However, an employer need not reassign a disabled employee to a position for which he or she is not qualified. Neither is an employer required to waive legitimate, nondiscriminatory employment policies or displace other employees' rights to accommodate an individual with a disability. Hedrick had been offered a reasonable accommodation when the company made a comparable position as a referral center scheduler available to her. A qualified individual with a disability is not required to accept an accommodation, aid, service, opportunity, or benefit if she chooses not to. However, if the individual rejects the reasonable accommodation, aid, service, opportunity, or benefit that is necessary to enable the individual to perform the essential functions of the position, the person will not be considered a qualified individual with a disability under the ADA. The Supreme Court had agreed with the Circuit Court's opinion that Hedrick is not considered a qualified individual with a disability based upon a rejection of the offered referral center scheduler position and because her employer satisfied its obligation under the ADA by offering a reasonable accommodation in making the referral center scheduler position available to her. Patients with hearing impairments Sue Hospital In a first of its kind lawsuit, filed in the U.S. District Court of Maryland, seven patients who are deaf sought treatment at Laurel Regional Hospital but were denied proper care because of ineffective communication. The individuals said that, despite their specific repeated requests for an in-person qualified sign language interpreter, they were provided with inadequate video interpreting, cryptic notes, or no communication at all. Because of this ineffective communication, the seven patients allege they were unable to provide informed consent to treatment, were denied the opportunity to participate in their treatment, and were denied the full benefit of health care services. Elaine Gardner, director of the Washington Lawyers' Committee on Disability Rights Projects, stated, “Deaf patients have the right to understand and be understood by their medical providers. They are the experts on their condition and are usually in the best position to say which way is the best to communicate.” The seven plaintiffs also alleged that hospital staff were not adequately trained to use the video remote interpreting (VRI) system. The VRI system provides for a remote interpreter communicating with a patient via video conferencing technology. Lewis S. Wiener, an attorney who is representing the plaintiffs, states, “The ADA and the Rehabilitation Act says you have to provide people with adequate accommodation.” He emphasizes that this lawsuit is not an indictment of video interpreting or the health care system in general, and he notes there will be times when the VRI may be very appropriate. Gardner notes the VRI is relatively new technology. He states, “Hospitals are just starting to use it, and they need to understand its limitations. This will be helpful for hospitals around the country to learn that there are some restrictions and drawbacks to this equipment.” Records indicate one of the plaintiffs went to the Laurel Hospital Emergency Department to receive treatment for severe abdominal pain, nausea, and vomiting, among other symptoms. It is alleged that this individual was required to wait hours, denied numerous requests for an in-person interpreter, and was prepared for medical tests in a manner that was personally humiliating. It is reported, as with several of the other plaintiffs, that the VRI technology was inadequate. Under the ADA, discrimination includes the failure to provide auxiliary aids and services. The term auxiliary aids and services includes qualified interpreters who make “aurally delivered materials available to individuals with hearing impairments.” Within the court documents, it is indicated “to communicate effectively in medical situations—especially emergency medical situations—plaintiffs require a live, qualified sign language interpreter.” It was also noted that alternative methods of communication used by the hospital were proven inadequate. The plaintiffs had to communicate through cryptic notes or lip reading. The court documents state only approximately 30% to 40% of the spoken sounds are visible. “Even the very best lip readers, in an ideal one-to-one situation, have been found to understand only 26% of what is said.” In the suit, the plaintiffs are seeking preliminary and permanent injunctions against Laurel Hospital and an order requiring the hospital to provide individuals with hearing impairment with auxiliary aids and services necessary for effective communication, including qualified sign language interpreters, teletypewriter and closed-caption televisions. The plaintiffs also are seeking compensatory and punitive damages, as well as attorney's fees and costs. Both compensatory and punitive damages are available under the ADA. However, generally speaking, under Title III of the ADA, compensatory or punitive damages cannot be assessed against places of public accommodation, even if they have discriminated against a protected class. Usually the remedy available against a public accommodation is an injunctive order to stop the discriminatory activity. This suit claims Laurel Hospital was in violation of Title III of the ADA. Title III (public accommodations and services operated by private entities) affects privately operated public accommodations, commercial facilities, and private entities that offer certain examinations and courses. Implications for case managers Under Title III, public accommodation and services operated by private entities, it is clear hospitals and offices of health care providers are considered public accommodations. Because this is considered a first-of-a-kind lawsuit, there is no specific case law to control this case. The attorney for the seven plaintiffs states he hopes the message being sent to the health care system will be clear. That message is “broadly stated, what we hope to get here is for the Laurel Hospital to recognize that when deaf patients present themselves for treatment, whether it's emergency or outpatient, there is not a one size fits all solution to communicating with them.” Since this lawsuit was made public, other individuals have come forward with similar complaints. Case managers involved in hospital and/or health care settings should ensure there are “auxiliary aids and services” available for individuals with hearing impairments. This specifically includes qualified interpreters who can provide effective communication with patients and the medical staff. Hospitals and health care providers may find themselves facing similar suits in the future if they are not providing individuals with hearing impairments with these auxiliary aides and services necessary for effective communication. Difficulty in proving disability It has been demonstrated numerous times in this column the difficulty plaintiffs face in establishing they have an impairment that rises to the level of the disability under the ADA. Generally speaking, in 80% of Title I cases, motions for summary judgment are granted to employers. This usually occurs because the individual with an impairment is unable to demonstrate they have a disability under the ADA. A report published by the American Bar Association's Commission on Mental and Physical Disability Law indicates in 2003, 98% of those cases that go to court, result in favorable decisions to the employers. Professor Ruth Colker, Heck-Faust Memorial Chair in Constitutional Law, Michael Moritz College of Law, conducted ADA research and found appellate litigation involving employment issues “has not been an effective vehicle for ADA enforcement.” In her October 17, 2001, Ohio State University Distinguished Lecturer, entitled “The Americans with Disabilities Act: The First Decade of Enforcement,” she noted that the judiciary has not been friendly to employees in appeal of ADA cases. It is Colker's contention that this lack of friendly response may also be altering other disability statutes, such as Section 504 of the Rehabilitation Act. Colker said her research indicated that employers were able to obtain a reversal rate of 60% in appellate courts, while employees were able to only obtain a reversal rate in 12% of the cases. These are cases that were appealed from the federal court to the courts of appeals. Despite the fact that the ADA was modeled after the Rehabilitation Act, specifically Section 504, courts have interpreted ADA in a more pro-defendant direction. Colker also contends that her research demonstrated employers' success rate under Section 504 of the Rehabilitation Act was much lower before the passage of the ADA. In contrast, employers success rate in 504 cases since the passage of ADA has increased to levels that are consistent with the ADA rates. Branham v. Snow In this case, Branham brought an action against the Internal Revenue Service (IRS) under the Rehabilitation Act of 1973. He contends in his suit that the IRS failed to hire him as a criminal investigator in its criminal investigation division and, therefore, discriminated against him. The District Court granted the IRS's motion for summary judgment on the grounds that Branham was not disabled for the purposes of the Rehabilitation Act. Branham appealed to the Seventh Circuit Court. Case review Branham has type 1 insulin-dependent diabetes. To keep his blood sugar at an appropriate level, Branham follows a treatment regimen formulated by his physician, including checking his blood sugar levels four to five times a day. He controls his blood sugar through insulin, diet, and exercise. Although Branham has never experienced a severe hyperglycemic or hypoglycemic reaction, once every 3 weeks he suffers from minor reactions, including trembling and sweating, because of low blood sugar. He carries additional insulin and carbohydrates for use in the event that his blood sugar falls below the appropriate levels. Branham has worked for the IRS as a revenue agent since 1986. In 1999, he applied for the position of criminal investigator. The qualification standards for this position clearly state that “these positions require moderate to arduous physical exertion involving walking and standing, use of firearms, and exposure to inclement weather.” Because the duties of the criminal investigator involved the responsibility for the safety of others, it was noted that any condition that would hinder full, efficient performance of the duties or would cause the individual to be a hazard to himself or herself or to others is disqualifying. It is also noted that the appointment to this position is contingent upon the candidate passing a pre-employment medical examination. In March 1999, Branham was notified that he had been tentatively selected for the position of criminal investigator, pending a physical examination. After Branham was given a physical examination, the director of Federal Law Enforcement Programs and Federal Occupational Health concluded Branham was not medically qualified for the position of criminal investigator. In June 1999, Branham received a letter from the IRS informing him he was “medically disqualified for the position of criminal investigator.” In the letter, the IRS stated that they had determined he could not perform the essential functions of the job with or without accommodations. They noted the criminal investigator position requires the ability to work irregular hours, to respond to unanticipated requests, and to react in a timely and appropriate manner to an emergency or crisis. Subtle and/or sudden incapacitation would place the applicant and others at an extreme risk of safety, which would be unacceptable. The IRS took the position that Branham was not disabled under the Rehabilitation Act. The IRS also argued Branham was not qualified for the position of criminal investigator because he could not perform the essential functions of the job without creating a safety threat to himself or others. Decision of the Court The District Court determined Branham was not qualified for the purposes of the Rehabilitation Act and granted summary judgment to the IRS. The court noted that Branham's diabetes did constitute a physical impairment but did not substantially limit him in the major life activities of eating and caring for himself. They also noted in their opinion the IRS had not regarded him as being disabled.
Department of Justice Extends Public Comment Period on Revised ADA Design Standards
The public comment period for the revised ADA Design Standards has been extended from January 28 to May 31, 2005. The department published an Advance Notice of Proposed Rulemaking to begin the process of revising the department's ADA regulations to adopt design standards that are consistent with the revised ADA Accessibility Guidelines published by the Architectural and Transportation Barriers Compliance Board (also known as the Access Board) on July 23, 2004.
Until the department's rule making is complete, the revised ADA guidelines are effective only as guidance to the Department of Justice and the Department of Transportation. The revised guidelines also have no legal effect on the public until the rule making is complete.
Members of the public may submit comments until May 31, 2005, either through www.adaanprm.org or www.regulations.gov or by mail to P.O. Box 1032, Merrifield, VA 22116-1032.
The Rehabilitation Act provides the standards of the ADA are to be used in determining whether the Rehabilitation Act has been violated in the employment context. Therefore, the court refers to the provisions and standards of the ADA. Branham appealed the District Court decision to the Seventh Circuit Court. The question for the Seventh Circuit to resolve was whether or not Branham's diabetes substantially limits one or more major life activities. All were in agreement diabetes is a physical impairment and eating and caring for oneself are major life activities. However, for an impairment to limit substantially a major life activity, “the impairment must make the individual unable to perform a major life activity that the average person in the general population can perform or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the average person.” Because of previous Supreme Court decisions, the Seventh Circuit must make an individualized assessment as to the plaintiff's actual condition instead of a determination based on general information about how an uncorrected impairment usually affects individuals. This specific case law is from the Sutton v. United Airlines Supreme Court case. Therefore, the Seventh Circuit stated, “An individualized inquiry into each plaintiff's condition remains the rule in cases under the Rehabilitation Act and the ADA.” The court must consider the plaintiff's condition as it exists after corrective or mitigating measures are used to correct the impairment. The court must also take into account any negative side effects that Branham suffers from the use of these corrective measures. Implications for case managers The case law is very clear. Courts want and need individualized assessments. Going beyond identifying the use of a corrective measure is extremely important. In an individualized assessment, the negative side effects of a corrective or a mitigating measure, if there is any, must be demonstrated. Even though there are no per se disabilities under the ADA, a condition that is automatically a disability, the impairment of diabetes can, for some individuals, rise to the level of a disability and be protected under the ADA. For example, the Seventh Circuit Court of Appeals determined Branham was significantly restricted as to the manner in which he can eat compared with the average person in the general population. They noted that his dietary intake is dictated by his diabetes responding to the blood sugar readings he takes four times a day and, depending upon the level, he adjusts his eating accordingly. He may have to either eat immediately, wait to eat, or eat a certain type of food. The court also determined that even with the use of the insulin in his treatment regimen, he is never free to eat whatever he pleases and he risks a severe body reaction if he disregards his blood sugar level. “He must adjust his diet to compensate for any greater exertion, stress, or illness that he experiences.” Therefore, the court determined his diabetes and treatment regimen substantially limits the major life activity of eating. The IRS then contends that Branham is not qualified for the position he seeks because he cannot perform the essential job functions. This is the second burden of proof element the individual must overcome. Case law has developed about how to identify the essential functions of the job. Generally speaking, courts will defer to the employer's judgment as to which functions of the job are considered essential. But it is very much contingent upon whether or not the employer has prepared a written job description before interviewing applicants for the job. However, it is clear the courts are looking for employers to prepare very clear job descriptions and that the job descriptions be consistently applied when interviewing all applicants for the position. Branham presented evidence he was able to work long hours and deal with stress. His physician stated in an affidavit that he believed Branham would have no difficulty working long or irregular hours, reacting to stressful crisis or emergency, and adapting to changing circumstances. In this case, however, the IRS also contends Branham poses a direct threat to the health or the safety of himself and others. Again, the court looked at very specific criteria developed through court decisions regarding a direct-threat situation:
•The duration of the risk
•The nature and severity of the potential harm
•The likelihood that potential harm will occur
•The imminence of potential harm
These are all factors that case managers can assist the employer and employee to identify in the initial hiring phase about a possible direct-threat situation. If this information is available during this phase, the employer can make better judgments about hiring an individual with an impairment. This information, as demonstrated in this case, can also be used in court to help clarify the issues. The court determined Branham had raised a genuine issue as to whether he can perform the essential functions of the position of the criminal investigator without becoming a threat to the safety of himself or others. Therefore, the Seventh Circuit Court of Appeals reversed the district court's opinion and sent it back to the lower court to continue hearing his discrimination claim. The court also determined Branham may recover his costs in this court. Obviously, Branham was able to overcome obstacles as indicated in the research findings of Colker regarding the reversal rates. Recall, her research indicated employers were able to obtain a reversal rate in 60% of the decisions, while employees were able to obtain a reversal rate in only 12% of the cases. EEOC enforcement statistics Even though the number of complaints filed with the EEOC was down slightly from the previous 12 months, the EEOC reports that in employment discrimination cases, the agency was able to collect a record $420 million for fiscal year 2004. The EEOC received 79,432 discrimination complaints against private employers and state and local governments in the year ending September 30, 2004. This figure was down from 81,293 complaints in 2003. According to the agency, $420 million was the largest sum ever collected in a single year. The agency also notes that the decline in filings over the past 2 years was partly because of employers “becoming more sensitive to discrimination issues, more employers handling cases internally, increased outreach by the EEOC and an improving economy.” Of the total $420 million, $251 million was collected through settlement of cases and $168 million through lawsuits filed in federal court. The agency notes that race, gender, and retaliation were the most frequently alleged basis of discrimination. Race discrimination was cited in 27,696 cases or 35% of the total. Gender discrimination cases were filed in 24,294 cases or 30.5% of the total. ADA discrimination cases remain consistent at 15,376 or 20% of the total. The agency reports expanding its mediation program, as well as efforts to proactively prevent discrimination through outreach, education, and technical assistance. Reprint orders: Elsevier Inc., 11830 Westline Industrial Dr., St. Louis, MO 63146-3318; phone (314) 579-2838; reprint no. YMCM276 PII: S1061-9259(05)00069-X doi:10.1016/j.casemgr.2005.03.002 © 2005 Elsevier Inc. All rights reserved. | |
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