Category Archives: Americans With Disabilities Act

Unmet Need for Workplace Accommodation

Source: Nicole Maestas, Kathleen J. Mullen, Stephanie Rennane, Journal of Policy Analysis and Management, Early View, First published: May 16, 2019
(subscription required)

From the abstract:
We use experimental survey methods in a nationally representative survey to test alternative ways of identifying (1) individuals in the population who would be better able to work if they received workplace accommodation for a health condition; (2) the rate at which these individuals receive workplace accommodation; and (3) the rate at which accommodated workers are still working four years later, compared to similar workers who were not accommodated. We find that question order in disability surveys matters. We present suggestive evidence of priming effects that lead people to understate accommodation when first asked about very severe disabilities. We also find a sizeable fraction of workers who report they receive a workplace accommodation for a health problem but do not report work limitations per se. Our preferred estimate of the size of the accommodation‐sensitive population is 22.8 percent of all working‐age adults. We find that 47 to 58 percent of accommodation‐sensitive individuals lack accommodation and would benefit from some kind of employer accommodation to either sustain or commence work. Finally, among accommodation‐sensitive individuals, workers who were accommodated for a health problem in 2014 were 13.2 percentage points more likely to work in 2018 than those who were not accommodated in 2014.

Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era?

Source: Nicole B. Porter, Touro Law Review, Forthcoming, Date Written: January 29, 2019

From the abstract:
The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.

A New Look at the ADA’s Undue Hardship Defense

Source: Nicole B. Porter, Missouri Law Review, Forthcoming, Date Written: January 29, 2019

From the abstract:
Under the Americans with Disabilities Act (ADA), employers must provide accommodations to their disabled employees unless those accommodations cause an undue hardship to the employer. When the ADA was being enacted in 1990, many thought that the undue hardship defense would be hotly debated in the courts and by academics. And yet, the undue hardship defense is very rarely outcome determinative and has not been the subject of a significant piece of scholarship since the mid-1990s. This article takes a fresh look at the under-developed case law surrounding the undue hardship defense. From a data set of over 1,600 potential undue hardship cases, I identified only 120 that address undue hardship in depth. These cases reveal that cost — which both the statute and conventional wisdom suggest is the focus of the inquiry — plays only a minor role. Instead, these cases revealed three recurring themes: (1) courts often confuse or conflate the reasonable accommodation inquiry and the undue hardship defense; (2) whether an accommodation places burdens on other employees (what I call “special treatment stigma”) frequently is relevant to the undue hardship defense; and (3) the phenomenon of “withdrawn accommodations” often influences courts’ analysis of the undue hardship defense. These themes not only provide a deeper insight into the undue hardship defense, but also help to more broadly illuminate the scope of an employer’s obligation to provide reasonable accommodations.

Rural people with disabilities are still struggling to recover from the recession

Source: Lillie Greiman, Andrew Myers, Bryce Ward, Catherine Ipsen, The Conversation, January 28, 2019

After the devastating losses of the Great Recession, the U.S. has enjoyed one of the longest expansions in its recorded history. For nearly 100 straight months, the U.S. economy has added jobs.

But not all groups have shared equally in the recovery. African-Americans and people in rural communities have been particularly slow to recover, compared to their white and urban peers.

Our team at the University of Montana’s Research and Training Center on Disability in Rural Communities published a new analysis on Jan. 10. Our research shows that people with disabilities, particularly those in rural areas, have also experienced a longer, deeper recession and a much slower recovery. ….

L&E Evolution Part II: Discrimination

Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
(subscription required)

This is part two of a multi-part series on the evolution of labor and employment law in the United States.

When President Lyndon B. Johnson urged Congress, in the wake of President John F. Kennedy’s assassination, to pass the Civil Rights Act of 1964 (Title VII), he spoke of the need to eliminate “every trace of discrimination and oppression that is based upon race or color.” Here we are, more than 50 years later, and antidiscrimination laws are still a work in progress, moving in directions that earlier generations of lawmakers would likely find surprising: for example, cases involving religious accommodation of atheists, debates over whether adverse actions due to spousal jealousy are “because of ” sex, and discrimination based on perceived disabilities, to mention a few.

New laws have been enacted, including GINA and the OWBPA, and existing laws have expanded, including the ADA and its definition of disability. Court precedent has also evolved in significant ways. For example, some courts now hold that discrimination based on sexual orientation is discrimination “because of … sex” under Title VII, while other courts hold otherwise. Our political climate too has fostered rapid changes in how agencies enforce labor and employment laws, and employers are having a hard time keeping up.

All of this has been influenced, of course, by wave after wave of social movements large and small, usually with a catchphrase and now often prefaced with a hashtag (e.g., #Black Lives Matter, #MeToo). Given the ever-changing legal landscape of antidiscrimination laws, the purpose of this article is to assess what the state of the law is and to consider the directions we are going…..

Related:
L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
(subscription required)

Rapidly advancing technology, cultural changes, and a sharply divided political landscape have so changed the workplace that lawmakers are struggling to catch up and tailor labor and employment laws to reflect these changes, to establish cross-jurisdictional consistency, and to enable employers and practitioners to make decisions based on solid ground. Nowhere is this more obvious than in battles over the most basic of definitions: “employer” and “employee.” This is no simple matter of black letter law, at least not anymore. For example, the proliferation of smart phones and other technology has led to online platforms for gig workers, and a simple “click” of the mouse can create a contract on which companies may rely to require arbitration or to disclaim a traditional employment relationship…..

Trusting states to do right by special education students is a mistake

Source: Matthew Brock, The Conversation, September 28, 2018

On Sept. 20, the U.S. Department of Education released a new framework to “rethink” how the department oversees special education services for students with disabilities.

As part of this framework, the department plans to provide states with “flexibility” and to “acknowledge” that states are “in the best position to determine implementation of their programs.”

This flexibility relates to how states satisfy the provisions in the Individuals with Disabilities Education Act – a federal civil rights law known as IDEA meant to ensure all students with disabilities receive a free and appropriate education.

In my opinion, the assumption that states are in the best position to determine implementation of their programs related to the IDEA law is a faulty one. So is the notion that relaxing enforcement of these provisions would have a positive impact on students.

Terminating A Depressed Employee

Source: Maureen Minehan, Employment Alert, Vol. 35 No. 14, July 11, 2018
(subscription required)

Is terminating an employee with depression a recipe for trouble? Do you need to go “above and beyond” to avoid any appearance of discrimination? …. While the Greenleaf case is just beginning its journey through the courts, it offers employers a reminder that depression can be a covered disability under the Americans with Disabilities Act (ADA) and the many state laws that mirror it. This means employers are permitted to terminate employees with depression if they aren’t meeting performance standards, but only if the proper steps have been taken first….

Assessing the Impact of the Americans with Disabilities Amendments Act of 2008: An Analysis of Litigation Efforts under Title I of the Act

Source: Charles E. Mitchell, Employee Relations Law Journal, Vol. 43, No. 3, Winter 2017
(subscription required)

Congress created the Americans with Disabilities Act to eliminate discrimination against citizens with disabilities. The Act covered employment, housing, accommodation, voting, and more. The U.S. Supreme Court issued decisions that weakened employment provisions in the Act. Congress amended the Act to negate those decisions. The author of this article provides an analysis of court and administrative decisions following the amendments, which reveals that private litigation and administrative rulings by federal agencies show an increase in favorable rulings for victims of employment disability discrimination.