Brandy Wagstaff - Hi, everyone, I'm Brandy Wagstaff. I'm an Adjunct Professor of Law with George Mason University Law School. I'm also an attorney advisor and 23-year veteran with the federal government. In my capacity as a law professor, I teach appellate writing, appellate advocacy, legislative regulatory drafting, disability law, and civil rights prosecutions. I'm here today to talk to you in my capacity as a disability law professor.

Today, we're gonna talk about ways in which you can help represent and advocate for your disabled clients, especially those who have experienced employment discrimination on the basis of disability. Specifically, we are going to learn about the Americans with Disabilities Act, or as you might hear me refer to it as the ADA, and what comprises discrimination under the act and with a focus on non-discrimination provisions under Title I of the ADA, which covers employers. As a preview of what this training will cover, we'll start by providing an overview of the ADA. Next, we'll talk about the definition of disability under the ADA, that will help clarify who's covered under the law. Then this will segue into a discussion of Title I of the ADA, which again covers employment discrimination. Throughout this presentation, I'll provide some illustrative examples and some practice pointers.

So, let's first start with a little bit of history and overview of the Americans with Disabilities Act. Prior to the passage of the ADA, the main federal law that provided protections to people with disabilities was the Rehabilitation Act of 1973. So, the Rehabilitation Act prohibits discrimination on the basis of disability in programs that are conducted by federal agencies, in programs that receive federal financial assistance, in federal employment, and in the employment practices of federal contractors. But because of this limited federal jurisdiction link and substantive reach, disability rights advocates and lawmakers pushed for a more extensive law, which eventually culminated in the passage of the Americans with Disabilities Act.

The Americans with Disabilities Act, or the ADA, was signed into law on July 26th, 1990. You can find the provisions of the law at 42 USC 12101 and the following provisions that followed from that provision. The overall of the ADA is to make American society more accessible to people with disabilities. The ADA's protections apply primarily, but not exclusively to individuals who meet the definition of disability. In 2008, the ADA Amendments Act was passed by Congress. The purpose of the ADA Amendments Act was to broaden the definition of disability, which had been narrowed by a series of Supreme Court decisions that followed the passage of the ADA. You can find the Americans with Disabilities Act amendments at Public Law 110-325. Now, the ADA is divided into five Titles, three of which we will focus on in this brief overview. We're gonna talk about employment, which is Title I, government services briefly, which is Title II, and public accommodations, which is Title III.

Now, while this presentation focuses on Title I, employment, I wanna give you a broad overview generally of the ADA.

So, Title I requires covered employers to provide reasonable accommodations for applicants and employees with this disabilities, and it prohibits discrimination on the basis of disability in all aspects of employment. Title II covers all activities of state and local governments, and it provides that those public entities not discriminate against people with disabilities in the provision of a public entity's service, services, programs, or activities. And Title III covers public accommodations. Now, public accommodations are private entities who own lease, lease to or operate facilities such as restaurants, retail services, hotels, movie theaters, schools, convention centers, doctor's offices, homeless shelters, transportation depots, you name it. Public accommodations must comply with basic non-discrimination requirements that prohibit exclusion, segregation, and unequal treatment of disabled individuals.

Now, as I earlier mentioned, the ADA primarily protects individuals who fall under the definition of disability. Under the ADA, the term disability means with respect to an individual at least, a physical or mental impairment that substantially limits one or more major life activities of such individual, or a record of such impairment, or being regarded as having such impairment. The definition of disability can be found under 42 USC 12102. In addition to having a disability, the individual may also need to be qualified. So, in the employment context, a qualified individual is one who's able to perform the essential functions of the job with or without reasonable accommodations, and we'll talk in more detail about that. In the context of public services, under Title II a qualified individual is one who meets the essential eligibility requirements with or without reasonable modifications. And then with respect to public accommodations, there is not a general qualification requirement, it generally applies to all individuals with disabilities if the public, general public, is open to having those services available to them then a person with a disability is also eligible to receive those services or buy those goods, et cetera. Going back to the definition of disability, as I mentioned earlier, in 2008 the ADA Amendments Act was passed. The text of the definition throughout this time, even with the ADA Amendments Act, it has not changed. However, how the definition of disability should be interpreted has evolved since its enactment.

So, to set the stage for you, there were a series of Supreme Court decisions in 1999 all decided on the same day. Sutton v. United Air Lines, Murphy v. UPS, and Albertson's v. Kirkingburg, I will refer to these as the Sutton Trilogy. All three of these cases looked at how mitigating measures will be considered in determining whether one is an individual with disability who falls under the protections of the law. Now, mitigating measures are things like medical treatment, medication, artificial limbs, eyeglasses, et cetera. All three cases narrowly construed the definition of disability and emphasized that in determining whether one falls under the definition of disability, mitigating measures should be considered.

So, let's take an example. If a person has diabetes, which is a physical impairment that substantially affects one or more major life activities. If a person has diabetes, but manages their diabetes so that the physical impairment of diabetes no longer substantially limits one or more major life activities when they are on their medication, then under the Sutton Trilogy, they are arguably not covered by the ADA, even if the discrimination that they were subjected to was because of their diabetes. After this, three years later in 2002, there was another Supreme Court decision called Toyota Motor Manufacturing Company v. Williams. In that case, the Supreme Court decided that when addressing the major life activity of performing manual tasks, the central inquiry of whether it substantially limits that major life activity is whether the individual is unable to perform a variety of manual tasks central to most people's daily lives, not whether the individual's unable to perform the manual tasks associated with their specific job.

So, the Sutton Trilogy plus the Toyota case led to a bipartisan bill in 2008 to quote-unquote undo these Supreme Court decisions and restore what Congress said was the correct and broader interpretation of the definition of disability. So, the ADA amendments took effect January 1st, 2009. It expanded the definition of disability by expanding how that definition should be interpreted. It rejected Toyota's strict construction, and it construed the act in favor of broad coverage. It also reverses Sutton Trilogy's rule that courts must take into account mitigating measures. It does make an exception for ordinary eyeglasses and contacts though, so that's important to note. It also rejects Toyota's interpretation of substantially limits as setting the bar too high. It also gave the EEOC and DOJ specific authority to promulgate regulations that interpret the definition of disability because that was a question previously of whether what agency could and if any agency could interpret through regulations the definition of disability.

This cleared that up and said when it comes to Title I employment, the EEOC can promulgate regulations interpreting definition of disability, and DOJ who has regulatory authority under Titles II and III could also of promulgate regulations interpreting the definition of disability because the definition of disability did not fall under any of those titles, it was in the general provisions of the act. The ADA Amendments Act also provides a non-exhaustive list of major life activities, which includes the operation of major bodily functions. And it resolved the question of whether working, holding down a job, was in and of itself a major life activity. And Congress specifically states in the passage of the ADA Amendments Act that yes, working is a major life activity. It also changed the regarded as prong to bring an individual within the protection of the statute whether a covered entity engages in an act when, sorry, excuse me, whenever a covered entity engages in an act prohibited by the law because of that person's actual or perceived impairment, regardless if that impairment is perceived to substantially limit a major life activity. However, individuals aren't entitled to reasonable accommodations if they fall under the regarded as prong.

Bottom line, ADA Amendments Act, the emphasis was to focus the courts not on determining whether someone has a disability under the law, but whether they were subject to unlawful discrimination based on actual or perceived disability. They wanted the inquiry to focus more on whether there was discrimination based on disability, not whether someone was actually falling under the strict definition of disability as set forth in the Americans with Disabilities Act. So, just to recap, the definition of disability, which remains the same, but should be construed broadly means either one, an individual who has a physical or mental impairment that substantially limits one or more major life activities, or two, an individual has a record of such an impairment, or three, an individual is regarded as having such an impairment, and regarded as having such an impairment by the entity that they are saying has subjected them to discrimination. So, setting the stage with the definition of disability in mind, we're going to turn to the employment provisions of Title I of the ADA.

Now that we have an understanding of the ADA's overall purpose and how broad the definition of disability should be construed, we're gonna talk about Title I, which in a nutshell says that employers must hire and promote on the basis of ability not taking someone's disability into account, but on the basis of ability. Title I protects only qualified individuals with disabilities, so those who are able to perform essential functions of the job with or without reasonable accommodations. Affirmative action is not required under the law, employers are still free to select the most qualified applicant, but they can't inquire into a person's disability or require examinations that would identify disabilities. And any job credit criteria must be related to the job and necessary for the business in question. The general rule under Title I is, and I'm quoting directly from the statute here, no covered entity shall discriminate against a qualified individual on the basis of disability. And you can find the general non-discrimination provision under 42 USC 12112. The general rule however, is fleshed out within the statute and within the regulations probated by the EEOC. You can find EEOC's Title I regulations at 29 CFR Part 1630, that's Part 1630.

So, before getting into the nitty gritty of Title I, you need to know how Title I is enforced as a threshold matter. Who enforces Title I? The EEOC and the Department of Justice are the governmental entities that enforce title I. Individual charges, so if you're a person who has experienced discrimination, you have a client who has experienced discrimination, any charges of discrimination may only be filed with the EEOC as an initial threshold matter. The EEOC investigates and if it finds quote reasonable cause unquote that discrimination occurred, it will engage in conciliation with the employer to attempt to resolve the matter. If conciliation fails and it was a private employer, the EEOC can file suit against that employer or issue a quote Notice of Right to Sue letter to the individual claiming discrimination. If the employer is a public employer, so like a state or local government employer, the EEOC will then forward to the DOJ Civil Rights Division for further action. If conciliation fails and it's a public employer, it goes to DOJ. DOJ then has jurisdiction over all employment discrimination matters against state or local governments, including agencies or subdivisions. DOJ may also self-initiate an investigation of potential systemic discrimination by state or local governments. So, let's talk out the types of discrimination under Title I.

So, Title I lists within the statutory language several ways in which discrimination may occur. And I'm gonna go over these just briefly, and you can find more information at 42 USC 12112. So first, there's limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee. Another way discrimination can occur under Title I is where the employer uses qualification standards, employment tests, or other selection criteria that screen out or tend to screen out individual with disability or a class of individuals with disabilities, unless the employer can show that the standard test or other selection criteria as used by the cover entity is shown to be job related for the position in question and is consistent with business necessity. As an aside here, it's important to note that Title I of the ADA, the employment discrimination provisions, are modeled after Title VII of the Civil Rights Act of 1964. So, any provisions that are similar and how those provisions under Title VII have been construed by the courts throughout the years equally applies to how those similar provisions under Title I should be construed by courts interpreting Title I of the ADA. So, that's just a side note to remember.

Another way discrimination can occur under Title I is where the employer fails to select and administer tests concerning employment in the most effective manner to ensure that when such test is administered to a job applicant or employee who has a disability that impairs their sensory, manual, or speaking skills that such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such an employee or applicant, except where such skills are factors that the test purports to measure. So, for instance, if you administer a writing test, say that you have a client who was applying for a position and part of the interview required them to conduct a brief writing test, they're given a problem and they have to write an answer to. Now, if that test is administered to a blind individual, for example, without providing them with, for example, a braille version, or, for example, an accessible electronic version then you are not administering the test in a most effective manner because if the test is meant to test how you can problem solve by get giving them a problem, having them write out an answer, the blind individual is not allowed the same opportunity to show those skills, that aptitude, or whatever the factor of such of the job if the test is not administered in an accessible way. So, that's just an example of how discrimination can incur under that particular provision. And then finally, one very common form of discrimination under Title I, and which you will most likely encounter with any client who is claiming employment discrimination based on disability is the employer's failure to make reasonable accommodations to the physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee. So, not making reasonable accommodations to the individual for their disability is a form of discrimination unless the entity, the employer, can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

So, a very simple example is an individual who uses a wheelchair, and the employer fails to install a ramp that would allow the individual to access the space where they will be working, that it would be installing a ramp would be a reasonable accommodation that would then allow the individual to be able to access all the spaces necessary to carry out their job. That's a simple, very simplified example of an employer failing to make a reasonable accommodation. It's a complex inquiry that we're gonna talk about a little bit more. But first, in looking at employment discrimination under Title I, we're going to review a couple of other concepts. First, we need to figure out who is covered under Title I, specifically what is a covered entity? What meets the definition of an employer under Title I? We're also gonna talk about what does it mean to be a qualified individual with a disability under Title I, and then we're gonna get into what are reasonable accommodations under Title I? So, who is an employer under Title I? Under Title I, a covered entity is an entity, and I'm quoting directly from the statutory language, is an entity quote, engaged in an industry affecting commerce and having 15 or more employees for each working day in each 20 or more calendar weeks in the current or previous calendar year, or being the agent of such an employer. You can find that language at 42 USC 12111 subsection 5.

The important thing to remember is that an industry affecting commerce and does the employer have 15 or more employees? Now, if the employer falls within that definition, the next question might be to ask who is a qualified individual under the under Title I of the ADA? And does my client who complaining about discrimination by their employer, do they even meet the definition of qualified individual? Now, a qualified individual means an individual who with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires. In other words, an individual with a disability can still be qualified, still be a qualified individual even if she needs a reasonable accommodation in order to complete the essential functions of the job. Now, what are the essential functions of the job? Might be your next question. In determining whether a job function is essential, consideration should be given to the employer's judgment as to what functions of a job are essential.

So essentially, the law as stated gives deference to the employer's determination of what job functions are essential. But there can be a lot of evidence that can be introduced to counteract that, but one way to support that is whether the employer has a prepared written description of the essential function of the job before advertising or interviewing applicants. This description shall be considered evidence of the essential functions. Under the EEOC's regulations, essential function considerations are given to the employer's judgment, written job descriptions, as I had mentioned, the consequences of not having the person in the job perform the function. So, if it's non-essential and they can't perform it, you'll see that it's not gonna really affect the essential aspects of their employment, but if it's a function that would affect the essential aspects of them performing it then it will be considered an essential function. Courts are also advised to look at a collective bargaining agreements, also look to the work experience of the previous holders of the job, and the current work experience of holders of similar jobs. Now, while disability discrimination is hard to root out at the hiring stage, most issues involving violations of Title I center around the requirement that the employers provide reasonable accommodations to individuals with disabilities to allow them to use their abilities to perform their job.

So, we're gonna talk about reasonable accommodations in some detail now. As mentioned previously, an employer violates Title I of the ADA when it fails to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of such of the business. Now, in determining whether an employer is providing a reasonable accommodation is required under the law, a reasonable accommodation may include some of the following, making existing facilities used by employees readily accessible to and usable by individuals with disabilities. So, this gets to my description earlier about the employer, sorry, the employee who uses a wheelchair and needing to have all the spaces accessible and have a ramp installed if they was a ramp needed for the individual to be able to access and use the space.

Another way to accommodate an individual with a disability might be job restructuring, a part-time or modified schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials, or policies, the provision of a qualified reader or interpreter, and other similar accommodations for individuals with disabilities. Note that the list that I just provided is a non-exhaustive list. Under the EEOCs Title I regulations, the employers also required by law to engage in an interactive process with the employee. So, to quote from the regulations specifically at 29 CFR 1630.2 subsection zero subsection three, to determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an informal interactive process with the individual with a disability in need of accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. So, if an individual comes to their employer with a reasonable accommodation request, the employer has to engage in this interactive process.

One question that often comes up is about reassignment as a reasonable accommodation. When is reassignment to a vacant position or to another position a reasonable accommodation, and is it required under the ADA? So, according to the regulations, according specifically to the guidance, a reassignment as a reasonable accommodation is required when there's no other accommodation that is effective or available, reassignment position is vacant and available, the individual seeking reassignment to this position is qualified, and the position is not a promotion. There was a Supreme Court case from 2002 called Barnett v. US Air, that case addressed this question. In its decision, the Supreme Court acknowledged that preferences under the ADA are sometimes required, that neutrality is not enough, but that a consistently applied seniority policy will always win the day. So, if there's a vacant position and the employer in question has a seniority policy that applies to vacant positions, if that seniority policy has been consistently applied by the employer then that seniority policy will trump the individual with a disability's request to be reassigned to the vacant position. The Supreme Court noted in that case that the plaintiff, the employee with a disability, must show that the accommodation is reasonable on its face, or ordinarily or in the run of cases is the Supreme Court's language. If the plaintiff makes this showing, then the burden shifts to the defendant, the employer, and the employer must show that there are special circumstances that demonstrate undue hardship in that particular circumstance.

So, and for this particular case, the individual who was wanting to be reassigned to a vacant position because of their disability because they could no longer perform the essential functions of the job due to a disability that developed in the course of their employment, that person had a show that reassignment to a vacant position was reasonable on its face, and then that then transferred the burden to the defendant to show or the employer to show that there were special circumstances that demonstrated that an undue hardship would occur in this particular case. And that undue hardship was the seniority policy that they had in place for many years that was followed whenever there was a vacant position, and the employee with a disability in question wasn't available to take that position based on their seniority. So again, the holding was essentially saying it would not be reasonable in the run of cases for assignment in question to trump established seniority rules. But if it would be reasonable, like say that seniority policy was not consistently applied throughout the years then that would be hard for the defendant, the employer, to rebut. There's currently a circuit split about reassignment versus most qualified, so this is a little bit different issue. So, you have an employee who is wanting to be reassigned to vacant position due to their disability, and you have this vacant position and there's another individual like say someone from the outside wanted to apply for the position. And does if that person is slightly more qualified than the person who's currently an employee who wants to be reassigned to that vacant position, which is it, which one trumps? Reassignment under the ADA, or can the employer give the position to most qualified outside applicant or even an inside applicant?

So, the 7th, 10th, and D.C. Circuits say that the reassignment obligation wins under that circumstance. If there's a vacant position and you have an employee who needs to be accommodated by transfer to that vacant position, even if you have an applicant who might be more qualified, as long as the individual in question, the individual with the disability, is qualified and can perform the essential functions of that new job with or without reasonable accommodations then they need to be transferred to that vacant position. So, reassignment obligation wins in the 7th, 10th, and D.C. Circuits. In the 8th, in 11th Circuits, the most qualified policy wins. So, there's a circuit split on this, that's something to note if you have a client who comes to you and is complaining about discrimination because their employer failed to reassign them to a vacant position, this might be an issue that you need to be aware of that there's this circuit split, and you need to figure out what is the holding within your jurisdiction on where does your jurisdiction fall on the circuit split? That will tell you how you can or cannot help your client in this instance.

Another very common thing that comes up, especially with the pandemic, is telework as a reasonable accommodation. So, pre-pandemic at least 70% of employers offered some form of working from home options. But pre-pandemic, employers won 70% of rulings that had rejected employees requests for telework as an accommodation for a disability. So, in all the cases that were brought and made their way to the courts where an individual is requesting telework as a reasonable accommodation, 70% of those cases that individual lost. The EEOCs 2003 guidance states that if the person's disability prevents successful onsite work and can be performed at home without significant difficulty or expense, it can be a reasonable accommodation. And there has been updated guidance in light of COVID, so keep that in mind as well, but to decide whether the central functions can be performed at home, you have to consider whether what is the capability of supervision of the employee who's requesting telework, the job in question, what is the need for face-to-face interaction, and is there a need to access things kept solely at the workplace?

So, in light of COVID, a reasonable accommodation request for telework is more likely to succeed. There's been some updated guidance, specifically quoting from the EECO guidance, the period of providing telework because of COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. So essentially, COVID changed the game in terms of whether an employer has a good justification for whether or not telework is a reasonable accommodation. If your employer was able to provide telework and you could satisfactorily perform your job during the pandemic through a remote or telework option then that is strong evidence that you can do so even post-pandemic. So, you can see that the EEOC is responding to the concerns that have come up since the light of COVID, in light of COVID. And that telework as a reasonable accommodation is more likely to be supported and easier to prove that it is reasonable as an accommodation post-pandemic, and you can find the updated guidance on the EEOC's website. And now, moving on a little bit to some atypical accommodations.

So, there are are many employees with psychiatric disabilities, and especially in light of COVID, we have a lot of people all over this country suffering from increased mental health issues. So, the EEOC has a guidance called Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights So, some of the questions that are answered there is what if my mental health condition could affect my job performance? So, the EEOC guides individuals to say you have a legal right to a reasonable accommodation that would help you do your job. A reasonable accommodation is some type of change in the way things are normally done at work. So, just a few examples of possible accommodations could include altered break and work schedules. So, that would be scheduling work around therapy appointments, for instance. Quiet office space or devices that create a quiet work environment. So, if people with certain mental health disabilities are significantly affected by noises or loud noises, providing a quiet office space or any kind of device that would help create a quiet work environment could be an accommodation. Could also be changes in supervisory methods, there might be an employee who requires written instructions from a supervisor who may not usually provide written instructions, specific shift assignments and permission to telework. So, that's just something to keep in mind. There is guidance out there, and you are encountering clients who are asking for accommodations based on their mental health conditions, know that you can go to the EEOC's guidance to help you answer those questions.

Now, let's talk about an employer's defense to providing a reasonable accommodation. As I mentioned, there was the undue hardship defense. So, under Title I, one defense to failing to provide a reasonable accommodation is that the accommodation would create an undue burden on the employer. The undue, the term actually used in the statute is undue hardship, you can find that at 42 USC 12111 subsection 10. So, the term undue hardship means an action requiring significant difficulty or expense when considered in light of several factors that are set forth in the statute. So, in the statute, the undue hardship factors to consider include the nature and cost of the accommodation, the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of that facility.

Also, look at the overall financial resources of the entity as a whole, the overall size of the businesses, sorry, of the business of a covered entity with respect to the number of its employees, the number type and location of its facilities, and also the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. So, essentially, looking at how is this accommodation going to affect cost and operations of the facility and of the business as a whole? Those are the considerations to consider when an employer raises an undue hardship defense. So, you have a client who is stating that they have a claim under the ADA because their employer failed to accommodate them. So, if the employer is saying, "Oh, it would be an undue hardship," you have to look at these factors to determine whether that is actually true. And it's a defense, so it's on the employer to be able to show that the undue hardship is met in this instance.

There's also what's known as a direct threat defense. So, under the term qualification standards, which is defined under 42 USC 12103 subsection B, the term qualification standards may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. This was then codified in the EEOCs regulations, and there they say direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a direct threat shall be based on the individualized assessment of the individual's present abilities to safely perform the essential functions of the job. And that assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual pose a direct threat, the EEOCs regulations direct that the factors to be considered include the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.

This was an interesting addition to the regulations. The statute said shall not pose a direct threat to the health or safety of other individuals in the workplace, and then in the regulation that was changed to the health or safety of others or the individual. And this came up in a 2002 case before the Supreme Court called Chevron USA, and it validated that harm to self, which the EEOC added in its regulations and did not exist in the statute was valid despite it not being included in the statute. So, in that case, the individual had a health condition where his job would expose him to certain chemicals that could make that health condition worse. And he felt that that was very paternalistic, right? He was seen as a direct threat and the threat was to his own health, the possibility that exposure to certain chemicals could make his health condition worse, but the Supreme Court said harm to self is valid under the regulations and can be included in the assessment of whether an individual is a direct threat. The direct threat defense often comes up in the context where an individual's health or physical impairment could affect their ability to do their job safely and not create risk to themself or to others. So, keep that in mind, and make sure that the employer is not basing their assessment on outdated medical information, on outdated notion of certain conditions and how those conditions can be accommodated. Because if there can be accommodation that mitigates the direct threat assessment, that accommodation is part of the assessment, so just keep that in mind if you ever have a client whose employer is saying they are direct threat, that's why they're not a qualified individual with a disability.

I also wanted to address some other issues that come up in the employment context. One that comes up is medical examinations and inquiries. So, the ADA imposes different rules depending on when in the employment relationship an employer might administer a medical examination or conduct an inquiry into the health or medical evaluation of an individual. So, if you're a job, if you have a client who's a job applicant, they haven't received an offer or anything. Then in that stage, the employer is prohibited from conducting medical examinations or making inquiries about whether the applicant has a disability or needs a reasonable accommodation, but they can make pre-employment inquiries on an applicant's ability to perform job related functions with or without reasonable accommodations. The prohibition on pre-employment inquiries are not limited to individuals with disabilities. So, if you have a client who is not disabled, but they were subject to this pre-employment medical examination that was attempting to root out a person's existence of a person's disability, that could be a claim under Title I of the ADA, so keep that in mind.

Now, if you have a condition, if your client or the employee, sorry, the applicant has a conditional offer of employment from the employer, medical examinations or inquiries are permitted at that point as long as three conditions are met. All entering employees are subject to the same examination or inquiries, information collected is maintained separately and treated confidentially, and the results are used consistently with the non-discrimination requirements of the ADA. So, if those three conditions are met, medical examinations and inquiries are permitted. There's no limit on the scope of such examination or inquiry, and it does not have to be restricted to job functions or otherwise job related. So, that's important, they have have a lot more leeway once an offer is made to conduct medical examinations and inquiries, but it still has to be the results of those examinations still have to be used consistently with the non-discrimination provisions of the ADA. And if you're a current employee, you have a client who's a current employee, the ADA forbids medical examinations or inquiries as to whether an employee is a person with a disability or what nature and severity of their disability is unless the medical examination or inquiry is shown to be job related and consistent with business necessity. So again, no medical examinations or inquiries are allowed of current employees unless the employer can show that the medical examination or inquiry is job related and consistent with business necessity. And again, just like I previously mentioned, a current employee need not have a disability to assert a claim that employer made an impermissible medical inquiry or examination, but you do have to show, courts have suggested at least, that there needs to be a tangible injury that you suffered in order to be able to bring a claim if you have a client or are someone without a disability who was subjected to an impermissible medical examination or inquiry.

One thing that comes up a lot is in the context of employment discrimination is alcoholism and illegal drugs. So, under the ADA, a person who is an alcoholic may be covered by the ADA if the person meets the definition of a qualified individual. So, a qualified individual, remember is an individual who can perform the essential function of the job with or without reasonable accommodations. Being an alcoholic doesn't mean you're not a qualified individual, you have to have the qualification standards, you have to meet that. But alcoholism is a mental impairment that substantially affects one or more major life activities, but if you can perform the essential functions of the job with or without reasonable accommodations, that is the test that is applied for alcoholics. But employers are allowed to test for drugs, so let's talk a little bit about drugs. Drug tests are appropriate, Title I allows that. And if you are a current user of drugs, illegal drugs that is, you can be excluded from Title I's protections. So, the question comes up, especially for people who are rehabilitated who currently aren't using drugs, what is a current user? There are exceptions for those who are completing or have successfully completed a supervised drug rehab program, or who are otherwise successfully rehabilitated and no longer are illegally using drugs.

The EEOCs Title I interpreted guidance says currently engaging in the legal use of drugs means a legal use of drugs has occurred recently enough to indicate that the individual is actively engaged in such conduct. This plays out a little differently across the courts. So, the 4th and 5th Circuit, for example, last use in the weeks and months prior to the adverse employment action is current illegal use. The 10th Circuit has used 30 days without illegal drug use means that the individual's no longer currently engaging. Essentially, what one court held is that no formula can determine if an individual qualifies for the safe harbor for former drug users or is currently using drugs, although certainly the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protections, or to be more accurate to use the non-gendered pronouns there. So, if someone is a rehabilitated drug user and they are very recently rehabilitated, it may be harder to show that they are a qualified individual. If you can show that your client falls within that safe harbor, that there has been enough time from their last use of illegal drugs and that they are successfully rehabilitated, you'll want to be able to provide the evidence to show that, so that's something to keep in mind.

What's also implicated and is very common these days is an issue dealing with the ADA and the opioid epidemic. So, opioid use disorder, or OUD, is a chronic brain disorder characterized by a mental compulsion to use opioids despite the negative consequences. It also is characterized by physical dependence on opioids and withdrawal symptoms that occur upon the cessation of using opioids. Now, one common way to treat opioid use disorder is through medication-assisted treatment. Medication-assisted treatment is considered the gold standard treatment option for opioid addiction. It involves the use of specialized medication to reduce withdrawal symptoms and cravings over an extended period of time in order to slowly transition an individual into recovery. So, the DOJ and the EEOC have acknowledged that opioid use disorder meets the definition of disability, drug addiction is an impairment, and so that's important to note, or people who maybe have a record of having such prior impairment or regarded as. So, illegal use of drugs does not and should not cover medication-assisted treatment. So, many of the medications used to help with opioid use disorder will show up as a positive on a test result as a positive as an opioid on a test result. But illegal use of drugs should not cover those who are using medication-assisted treatment. It does not encompass the use of the drug taken under supervision of a licensed health care professional or other uses authorized by the Control Substance Act or other federal laws. So, the EEOC and DOJ have both come out to make that clear in recent guidance, individuals taking legally prescribed opioids, including medication-assisted treatment, should not be considered and are not considered to be illegally using drugs.

So, for instance, there was this 2018 case in the District of Maryland involving the EEOC sued Volvo, and the applicant alleged that Volvo made a conditional job offer to a qualified applicant for a labor position, and then during that applicant's post-offer physical examination, the applicant explained that he was taking medically prescribed Suboxone. Upon reporting for his first day work, Volvo informed him that he could not, that they could not hire the applicant because of his Suboxone use. So, the EEOC found this to be discrimination on the basis of disability, sued Volvo, and essentially came to a consent decree, an agreement with Volvo that required Volvo to pay monetary relief, required Volvo to distribute an ADA policy explain the right to reasonable accommodation for a disability, required Volvo to amend its policy and post-offer medical and drug evaluations to explain how it will assess whether an applicant's lawful use of prescription medication may or may not pose a direct threat under the ADA, and requires Volvo to provide ADA training to hiring employees on how the law relates to drug screenings and lawfully prescribed medications. So, this consent decree also served as a notice to other employees who may be conducting the same type of discrimination against these types of individuals.

So, just to start to wrap things up, I wanted just to quickly go over a list of other potential defenses to a Title I claim. One could be that, we've seen this in our talk today, the employee's not a qualified individual. Another is the employee's not an individual with a disability. That's harder to prove since the definition of disability is supposed now construed broadly. The employer's not a covered entity, maybe they have fewer than 15 employees. Undue hardship, which we spoke about. Qualification tests or selection criteria that is shown to be job related and consistent with business necessity could be a defense. Religious organizations may prefer their members for employment. Whether a worker constitutes a direct threat to the health or safety of themselves or others, if the employee failed to exhaust their administrative remedies, and if the employment claim is subject to mandatory arboration, sorry, arbitration, that's why it's important for lawyers who have disabled clients wanting to bring these claims to consider whether there is an employment contract that is subject to mandatory arbitration before they can pursue any remedies.

So, those are some of the potential defenses. Remedies under Title I can be compensatory and punitive damages. In some instances, the punitive damage threshold is pretty high. Back pay reinstatement, injunctions, and other equitable relief, especially in the cases where your client may be asking for a reasonable accommodation and the employer's refusing to give it. And then there's attorneys fees are available, but only to the prevailing party. I wanted to end with noting that the ADA hasn't quite been successful in increasing employment for individuals with disabilities.

So, some of the downsides could be, and I mentioned this earlier, how hard it is to prove discrimination at the hiring stage. It's easier once you're an actual employee, you know, if you are employed with the employer, it's easier to show that there may be discrimination, and that may be an easier case, but where someone was discriminated at the hiring stage, it's much harder to prove. So, Congress introduced the ADA in 1988, 66% Americans with disabilities wanted to work, but did not have a job. Employment rates of disabled individuals dropped more over the years than non-disabled. Employed disabled workers still typically earn less, work fewer hours, and occupy lower levels of position. And employed disabled workers are underrepresented in management, and professional technical jobs, and overrepresented in service, production, and transportation jobs. Disabled persons are underrepresented in 16 of the top 20 fastest growing occupations, but overrepresented in the occupation of personal and home care aids.

So, there's a lot of theories behind this problem. As I mentioned, one theory being that the ADA does not adequate address employment at the hiring stage because the ADA does not actually address the concerns of employers about their liability under the law and the unintended consequence of the ADA is that it gives the impression to employers that disabled individuals are less desirable employees, that they might impose more cost and burdens on employers to hire, retain, or terminate an employee, or that reasonable accommodations are costly. So, it's something to be aware of. A survey of employers found that more than 80% employers listed the following as the top two reasons for not hiring an individual with a disability, the cost of the accommodation, or just a lack of awareness on how to deal with workers with disabilities and their accommodation needs.

So, these are things that from policy perspective need to be addressed and just to be aware of, but overall, the ADA, Title I of the ADA, is meant to protect individuals with disabilities from employment discrimination. And I hope that some of the information I have provided you today gives you some starting point or some key tools to determining whether clients that may come to you with disabilities claiming employment discrimination, whether they have a valid claim under the law, and what you can do to advocate for those clients. Thank you for being with me today.