Resources and case law

Reason accommodation survey findings 

The JAN is a service of the Office of Disability Employment Policy of the US Department of Labor. The JAN has released a new fact sheet1 regarding workplace accommodations. Results from a new research survey address the costs and benefits of job accommodation for people with disabilities. The University of Iowa's Law, Health Policy, and Disability Center (LHPDC) conducted a follow-up survey with employers that use the JAN. Since the passage of ADA in July 1990, many employers have expressed concerns regarding the potential costs of accommodations. This concern often is accompanied by reluctance to hire individuals with disabilities who need to be accommodated.

In the survey, LHPDC asks the question, “What does it really cost to provide accommodations for job applicants and employees with disabilities?” Survey results indicate that in more than half of the accommodations needed by employees and job applicants with disabilities, there was no cost involved. Of the accommodations that do require expenditure, the typical cost by employers is around $600. The LHPDC interviewed 778 employers who contacted JAN between January 2004 and April 2005. The study will continue through September 2007; however, preliminary findings are very interesting and useful.

The JAN's mission is to facilitate the employment and retention of workers with disabilities by providing employers, employment providers, people with disabilities and their family members, and other interested parties, such as case managers, with information on job accommodations. The JAN is a comprehensive resource for job accommodations. In 1991, the JAN expanded their services to provide information on the ADA. The JAN states that the development of the system has been achieved through the collaborative efforts of the US Department of Labor Office of Disability Employment policy, the International Center for Disability Information at West Virginia University, and private industry throughout North America.

Gallup poll on employment discrimination 

The EEOC, the federal government agency responsible for enforcing the nation's antidiscrimination laws in the workplace, has released the results of a new Gallup poll2 addressing the perceptions of discrimination among American workers. The poll was conducted in conjunction with the 40th anniversary of the EEOC. The agency was created through the enactment of Title VII of the Civil Rights Act of 1964. The survey questioned employees about their perceptions of discrimination at work and the effect those perceptions had on performance and retention. The results indicated that 15% of all workers perceived that they had been subjected to some sort of discrimination or unfair treatment.

The EEOC news release states that the survey “sampled American workers of varying racial and ethnical backgrounds, ages, genders, and states of disability.” When broken down into subgroups, 31% of Asians surveyed reported incidents of discrimination. This is the largest percentage of any ethnic group, with African Americans constituting the second largest group, at 26%.

The EEOC's preliminary charge data for fiscal year 2005 shows that employment discrimination continues to be a “significant problem in the 21st-century workplace. Figures released indicate that 75,428 charges of employment discrimination were filed with the agency nationwide in 2005. Of this amount, 20% were filed under the ADA. Sixty-one percent of the charges were filed under Title VII of the Civil Rights Act.

It is interesting to note that discrimination complaints with the EEOC are decreasing. However, complaints filed under the ADA are consistently at 20%. In the fiscal year ending September 30, 2004, the EEOC received 79,432 discrimination complaints against private employers and state and local governments. This figure was down from 81,293 complaints in 2003. The agency also notes the decline in filings over the past 2 years was partly a result of employers “becoming more sensitive to discrimination issues, more employers handling cases internally, increased outreach by the EEOC and an improving economy.” As noted, ironically, ADA discrimination cases remain consistent at 20% of the total.

Litigation trends survey 

A recent study3 released by the Fullbright and Jaworski law firm indicates that contract and employment disputes are the “most frequent kind of litigation faced by corporate legal departments.” The survey of corporate counsels found that almost 90% of US companies are engaged in litigation. In identifying the three most numerous types of pending litigation, 42% of the companies noted contract disputes and 38%, employment. The third most frequent legal issue was personal injury.

There were significant differences in survey results based on the size of the companies. Firms with more than $1 billion in sales were more likely to face class action disputes. For some of the biggest companies, such as pharmaceuticals, product liability was the number one concern. Certainly, a large number of the employment cases would include those filed under the ADA. Rationale for the increase in employment-related cases is connected to companies attempting to reduce costs. These cost-reducing measures have been affected by layoffs, terminations, lack of promotion, and salary freezes.

Jeffrey S. Kline, head of the employment litigation group at Weil, Gotshal and Manges, says that “at the same time, the plaintiffs' bar has increased the focus on labor/employment disputes.” Kline notes that companies are defending themselves vigorously “against many of the cases they consider to be without merit.” They do not want to be viewed as always willing to settle contract and/or employment cases.

Jury finds percieved disability 

In a recent case, Eshelman v. Agere Systems, Inc., a jury concluded that a record that Ms. Eshelman's impairment substantially limited her ability to think and work had been established and awarded her $200,000.4 A judge reviewing the case found sufficient evidence to support the jury's conclusion that Agere had perceived Eshelman as substantially limited in the major life activities of working and thinking. The judge, therefore, refused to overturn the jury's $200,000 verdict.

At issue in this case is what Jeffrey Kline had noted regarding companies involved in litigation out of a climate of reduction in costs affecting layoffs, terminations, absence of promotion, and salary freezes. In 1998, Eshelman was diagnosed with breast cancer and took a six-month leave of absence. She returned in March 1999 and subsequently informed her supervisor that she was having problems with short-term memory. She attributed her condition to the cancer treatment, referring to it as “chemo brain.” Eshelman testified that she was able to compensate for her memory deficit by carrying and using a notebook. Evidence offered at trial indicated that she excelled in her job despite her memory impairment. Evidence also presented from records indicated outstanding performance evaluations, promotions, raises, and bonuses.

Shortly after Eshelman returned to work after her chemotherapy treatment, there was a layoff of 18,000 employees worldwide. As a part of the company-wide reduction in force, Eshelman was selected for layoff. The judge noted that the primary focus at the trial was Agere's handling of that layoff process. Testimony indicated that Eshelman's performance scores had been reduced from one of the highest to one of the lowest after supervisory personnel became aware of her traveling difficulties. In fact, the supervisor who recommended her for layoff testified that he was concerned about her ability to travel and that was one of the three factors he considered in the layoff decision. He testified that her difficulties with travel related to her treatment for breast cancer.

The judge wrote in his 28-page opinion that the jury “concluded that the record of Eshelman's cancer and ensuing memory problems precluded her from retention in Agere's structured workforce.” The most powerful evidence presented, according to the judge, was the “abrupt reversal of Eshelman's score in ranking of employees scheduled for layoff.” The judge further noted that “the jury weighed Agere's justification and found a discriminatory motive in Agere's action.”

Implications for case managers 

The Gallup Poll noted above indicated that 15% of all workers perceived that they had been subjected to some sort of discrimination or unfair treatment in the workplace. Of the overall charges of employment discrimination filed by or through the EEOC, 20% of those were filed under the ADA. On the other hand, corporate legal departments have indicated that contract and employment disputes are the most frequent kinds of litigation that they face. Some observers have noted that cost-reducing efforts by corporations, such as layoffs and terminations, are affecting millions of employees. Eshelman filed suit under the ADA claiming that she had been selected for layoff because of her impairment. The judge and jury were apparently able to find a connection between her impairment and her layoff despite her outstanding performance appraisals, promotions, raises, and bonuses.

Eshelman had been off of work for 4 months after the diagnosis of breast cancer and cancer treatment, and then returned to work. Many times, case managers are involved in this return-to-work process after medical treatment. The case manager can assist in facilitating solutions to difficulties the individual may experience as a result of their impairment. This can be facilitated by reasonable accommodations noted by a case manager. Certainly a valuable resource for providing reasonable accommodation ideas to the employer is from the JAN. In addition to that, the case manager can provide close follow-up to the individual to ensure that the accommodation is in fact facilitating appropriate job performance.

If a case manager is working in an environment where layoffs are scheduled or being discussed, it is important for them to be a resource to supervisors who need to make decisions about layoffs and/or terminations. A case manager who is aware of an individual with an impairment and/or disability can provide some insight to management related to the possible need for a change in accommodation. It also is very important that there not be a connection between a supervisor's awareness of an impairment or the perception by management that the individual is unable to complete the essential job functions and a layoff or termination.

In the current business environment of focusing on cost reduction through layoffs and terminations, case managers can provide some valuable insight to both parties. If courts can find a connection between a layoff and/or termination and an impairment, it is in violation of the ADA.

False assumptions about impairments 

Courts have concluded that employers have a responsibility to assess the objective reasonableness of a physician's conclusions regarding a potential employee. Case managers can provide a valuable service to both the employer and potential employee by assessing whether a physician completing an employment physical has all the necessary information related to the individual's medical condition. Sometimes this may be after the fact, but it is nevertheless a very important part of the process. If a physician indicates that the applicant is “not medically qualified” for the position in question, the case manager needs to very closely assess what information the physician used to arrive at this conclusion.

Fundamentals of the ADA 

The ADA makes it unlawful for an employer to discriminate against a “qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. The ADA defines a “qualified individual with a disability” as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

The term disability means a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment. An employer sometimes can avoid liability by asserting that the plaintiff, if hired, would “pose a direct threat to the health or safety of other individuals in the workplace.”

Rodriguez and other plantiffs have the burden to prove three elements:

According to court documents, Rodriguez provided sufficient evidence to establish that he was regarded as substantially limited in a major life activity by the employer, ConAgra. ConAgra had, therefore, withdrawn its offer to employ him because of his perceived disability.

ConAgra claimed that Rodriguez failed to control his diabetes. The courts have ruled that the idea that a plaintiff is responsible to exercise some level of control over their impairment is not relevant to a “regarded as” case. This applies only to cases of actual disability as noted above. Because Rodriguez claims that he was regarded as disabled in the major life activity of working, he had the further burden of proof to demonstrate that ConAgra believed that he was unable to perform in a broad class of jobs. The Supreme Court has concluded that he would need to prove that ConAgra perceived him to be “precluded for more than one type of job, a specialized job, or a particular job of choice.” The courts concluded that Rodriguez's diabetes did not substantially limit him in a major life activity.

Throughout the decision, the Fifth Circuit Court of Appeals emphasized that ADA requires an individualized assessment on a case-by-case basis of the person's actual limitations. ConAgra responded in their interrogatory that Rodriguez was not qualified for any other positions. This included the question regarding whether he would have been qualified with a reasonable accommodation. The examining physician testified that the results of Rodriguez's urinalysis made him unfit to perform any manual labor job. Therefore, the court concluded that Rodriguez was entitled to summary judgment because ConAgra had regarded him as substantially limited in working because of his diabetes.

The court held that as a matter of law, ConAgra discriminated against Rodriguez under the Texas Commission on Human Rights Act and they remanded the case to the district court to determine damages.

Implications for case managers 

This case is very instructive because it emphasizes several important responsibilities that an employer has under the ADA. The responsibilities related to this type of case may be within the purview of a case manager. The court had concluded that they were presented with direct (rather than circumstantial) evidence of discriminatory intent by ConAgra. ConAgra and the human resources manager both admitted that Rodriguez did not get the job because of his allegedly uncontrolled diabetes. This process did not provide Rodriguez with the opportunity to be evaluated based on his own individualized experience with diabetes. The court concluded that ConAgra put Rodriguez into a class with uncontrolled diabetics and denied him the production utility job. The court also concluded that the ADA does not draw lines between the type of discrimination and whether it is motivated by intent. “All disability discrimination in employment is unlawful.”

Case managers should know that employers may be found liable if they failed to follow the ADA's mandate that it measures the impact of an impairment of the applicant on his or her ability to work in an individualized manner. Regardless of what the physician says, it is the obligation of the employer to assess whether or not this opinion is reasonable. In doing so, the employer and/or case manager must provide an individualized assessment based on particularized evidence. In this case, Rodriguez had already been performing up to ConAgra's expectation as a temporary employee. This provided further evidence that he was, indeed, qualified to do the essential functions of the job, despite his impairment. The emphasis on an individualized assessment as to the applicant's actual abilities is one of the primary goals of the ADA. The ADA's provisions are meant to prohibit employers from making adverse employment decisions based upon stereotypes and generalizations associated with the individual's disability rather than on the individual's actual characteristics.

The case manager needs to understand that the individualized assessment of the affects of an impairment is “particularly necessary when the impairment is one whose symptoms vary widely from person to person.”

As a result of the 1999 Supreme Court decision in Sutton v. United Airlines, speculation about hypothetical risks posed by a diabetic is not a legitimate ground on which to make an employment decision. The individual's actual condition must be assessed. The case manager should not rely solely on the assessment of the physician. The ADA demands that the next line of responsibility is that the employer assess the objective reasonableness of the doctor's opinion. It is absolutely essential that the physician providing the preemployment physical have knowledge of the positions for which the individual is being considered. They must be informed of the essential functions of the job for which the person will be responsible. The courts have concluded, “The mere obtaining of such an opinion does not automatically absolve the employer from liability under the ADA.”

Genetic testing 

In the January/February 2005 issue of The Case Manager,6 the topic of genetic testing was reviewed under the heading “A Look Into the Future.” It was noted that some legal commentators have warned that despite the potential beneficial use of genetic testing in the workplace, the issues involved may indeed provide grounds for further litigation. The EEOC has concluded that genetic testing is a medical test limited under the ADA, as are other medical tests. Therefore, if an employer is gathering employee genetic information without their informed consent, there is the possibility of violating the ADA.

The genetic testing debate is focusing on an access question: Should employers and insurance companies be allowed access to employees' genetic data? There are now available approximately 1100 types of genetic tests, double the amount available 5 years ago. Some agree that with respect to disability, workers' compensation, and health-care-related costs, genetic testing would be a cost-saving tool for employers.

According to Teresa Baldas in the National Law Journal,7 “Currently there is no federal law that bans outright genetic testing or genetic discrimination in the workplace.” Federal law limits genetic testing in employment through the ADA. However, Congress is considering a bill that would prevent health insurers and employers from using genetic information to determine eligibility for health care, set premiums, or hire and fire people. This bill is known as the Genetic Information Non-Discrimination Act of 2005. It was unanimously approved by the Senate and a similar bill is before the House of Representatives. According to Baldas, 33 states have laws banning genetic discrimination by employers. But according to employment lawyer Rogge Dunn, a partner at Dallas, Clouse, Dunn, Hirsch, a growing number of companies are looking at genetic screening as a possible way to curb rising health-care costs, reduce workers' compensation claims, and protect workers' safety. Some claim that employers should be aware if an employee has a genetic heart disorder, for example.

According to attorney Hans Bader of the Washington-based Competitive Enterprise Institute, employers should be able to make employment decisions based on genetic information to protect employees, customers, and the public. This is especially true if it is possible to determine, through testing, that an individual may pose a “direct threat” because of a particular health condition. According to the Massachusetts-based Council for Responsible Genetics, there have been about 500 cases of genetic discrimination over the past decade. In these situations, individuals or family members have lost jobs or health-care coverage on the basis of genetic testing results.

According to Chris Kuczynski, assistant legal counsel in the ADA policy division for the EEOC, genetic discrimination is covered under the ADA. However, he notes that no court has ever upheld that opinion. Kuczynski said there are loopholes in the ADA that could allow for genetic discrimination. He gave the example that once a job offer has been made, as noted in the case of Eshelman v. Agere, employers can condition the offer on whether employees pass a medical examination. A genetic test could be included in the examination process. However, approximately 4 years ago, Burlington Northern Santa Fee Corporation settled for $2.2 million for submitting its employees to genetic testing. This case was known as EEOC v. Burlington Northern Santa Fee R.R. Company.

According to Eric Dreiband, former general counsel for EEOC, if more genetic lawsuits are filed in the future, the courts will have to decide whether genetic discrimination does in fact violate the ADA.