Disability Law Final Examination

Fall Semester 2004

Professor Martha Dragich Pearson

 

Instructions

This is a three-hour, closed book exam. You are permitted to bring into the exam one document of no more than 1,000 words, which was prepared by you and represents your own work.

 

The exam consists of 26 pages, of which pages 7-26 are materials provided for your use. You should assume that these materials constitute all the directly pertinent statutes, regulations, and agency guidance. [You may, but need not, cite additional materials.] You are expected to draw on caselaw as needed. All cases included in the textbook or discussed in class should be considered relevant authority in the jurisdiction.

 

Your grade will be based on the quality of your analysis and the clarity of expression. Your answer need not follow any particular format.

 

 

Question

Former police officer Paul Estevez sued the City of Deliverance (located in the State of Grace) for violating his rights under Title I and Title II of the Americans with Disabilities Act (ADA). Estevez made no claims under the Rehabilitation Act.

 

Mr. Estevez was employed by the Deliverance Police Department (DPD) from 1980 to December 2001.  During that time, he received numerous commendations and good performance evaluations. 

 

In March 2000, Mr. Estevez sustained injuries to his elbow, thumb, back, neck, and wrist. He engaged in physical therapy and underwent surgery to remedy his injuries.   While that treatment helped, he did not improve sufficiently to return to work as a police officer.   Specifically, Mr. Estevez's thumb injury was so severe he had to have his right thumb joint surgically fused, thereby rendering him unable to fire a weapon with that hand. (He is right-handed.)  He also suffers from chronic severe pain in his back and neck which interferes with his ability to sit for prolonged periods, to sleep, and to lift.

 

The city requires all police officers to be able to shoot a gun and make a forcible arrest.   If a police officer is injured in the line of duty so that he cannot perform those required functions, the police department will retain the officer as long as his condition is improving.   Once a doctor determines that the injured officer has reached "maximum medical improvement," the officer has 365 days to recover enough to perform the required functions. If he cannot shoot a gun or make a forcible arrest within that time frame, he must retire.   In the interim period, the police department assigns injured officers to light duty work that does not involve shooting a gun or making forcible arrests.   Approximately four police officers a year retire due to occupational disabilities.

 

After Mr. Estevez's thumb surgery, the DPD placed him in the limited duty section, where he performed primarily clerical work.  The DPD retired Mr. Estevez on December 2, 2001.  

 

The City of Deliverance has an overall budget of $1.5 billion and employs approximately 12,000 people.   These employees are enrolled in one of two personnel systems:  the Classified Service, which is composed of police officers and firefighters, and the Career Service, which contains all other city employees.  Deliverance prohibits the reassignment of employees in the Classified Service to the Career Service and vice-versa. Deliverance pays the salaries, insurance, and other benefits of the employees in both systems. Although a unified personnel system would be less costly, the division between the two personnel systems remains because of territorialism and turf wars.  

 

The Career Service has approximately 8,000 full-time positions.   Each year, it seeks to fill approximately 2,200 vacancies. Its hiring rules provide that candidates must submit an application and meet the minimum qualifications for a vacant position. Candidates who do so are then tested. The Career Service Authority generates an eligibility list for the position. The hiring agency may hire anyone on this list.

 

Under certain circumstances, the hiring agency also may hire people not on the eligibility list. For example, an employee within the Career Service who meets the minimum qualifications may transfer into the position if the manager of the position agrees. There is also a list of current Career Services employees who meet the qualifications and wish to be promoted to the vacant position.   In this way, Career Service employees bypass the testing procedures for a vacancy within the Career Service.   Classified Service employees are not permitted to transfer into the Career Service, and must compete with all non-City employees for any vacancies within the Career Service personnel system.

 

The Classified Service employs over 1,400 police officers.   Not all positions within the Deliverance Police Department require the ability to shoot a gun or effect a forcible arrest. The DPD has been actively engaged in a process of "civilianization" whereby positions that were once performed by emergency service officers, who are by definition Classified Service employees, are now performed by members of the Career Service.  Positions such as emergency service dispatcher, criminal justice technician, and victim advocate have been civilianized.  The civilianized positions entail the same duties as before but do not require firing a weapon or making forcible arrests.  There are approximately 200 Career Service employees in the DPD, and between twenty-four and thirty-six Career Service vacancies a year within the DPD. Injured police officers are not reassigned to these positions because these jobs are now part of the Career, as opposed to Classified, Service.

 

Beginning before his forced retirement from the Classified Service and continuing afterwards, Mr. Estevez requested that he be reassigned to a Career Service position within the DPD department, notwithstanding the City's no-transfer policy. He was qualified for several vacancies in the Career Service, including Emergency Service Dispatcher, Criminal Justice Specialty Clerk, and Criminal Justice Technician. He was told it would be impossible for him to transfer because the charter prohibited it.  He also raised the issue of the ADA, but was told it "has nothing to do with you."  Mr. Estevez applied for several Career Service positions within the DPD, but these positions were filled by transfer or promotion of current Career Service employees.

 

Mr. Estevez had difficulty finding suitable work after his forced retirement.  At present, Mr. Estevez works at a senior living center, driving the residents around and performing light maintenance work. The Career Service positions he desired would have paid less than his position as police officer, but considerably more than his current non-City employment pays.

 

Estevez filed suit in November 2002 in the federal district court for the District of Grace, which falls within the Seventeenth Circuit Court of Appeals. The district court granted the City's motion for summary judgment on the Title I claim based on the plaintiff's failure to meet the exhaustion requirements of Title I of the ADA. (Title I of the ADA requires exhaustion of administrative remedies before suit may be filed. Title II has no such requirement.) The district court dismissed plaintiff's Title II claim on the grounds that Title II's coverage of public programs, services, and activities does not include employment actions by municipal entities. In any event, the district court also found that Mr. Estevez was not disabled within the meaning of the ADA and that his request for a transfer to the Career Service was not a reasonable accommodation under the Act. A portion of the district court's unpublished opinion is attached.

 

Plaintiff appeals the rulings as to whether he is a "qualified individual with a disability" under the ADA, whether the requested modification to the no-transfer policy was a "reasonable accommodation," and whether Title II prohibits employment discrimination by public entities. He does not appeal the ruling that his Title I claim is barred for failure to exhaust administrative remedies.

 

You are a law clerk to Judge Martha Dragich Pearson of the United States Court of Appeals for the Seventeenth Circuit. A panel of that court, including Judge Dragich Pearson, has received briefs and has heard oral argument on the appeal. Your assignment is to advise the Judge how the case should be decided. You may assume that the district court's ruling as to the failure to exhaust remedies under Title I is correct (and that ruling has not been appealed). The judge is of course aware that there is no sovereign immunity issue with respect to local government entities, and therefore you should not discuss that issue. Likewise, you need not discuss the applicable standard of review for appeals from summary judgment or dismissal of the claim. Should the court of appeals reverse the District Court, the case will be remanded for further proceedings. Accordingly, you need not discuss the remedies to which plaintiff may be entitled under Title II.

 

Assume that the Title II question is one of first impression in the Seventeenth Circuit. It has not been addressed directly by other circuits, and has not been considered by the Supreme Court. You should accept all statements in this exam question as true. You may rely on additional facts or assumptions, provided that you state them in your answer.


 

United States District Court

District of Grace

Decided March 5, 2004

 

Opinion

 

Smith, K., J.

 

A.        Applicability of Title II

For the reasons that follow, this Court finds that employment discrimination cases are not actionable under Title II.

 

Plaintiff argues that this Court must defer to Department of Justice regulations at 28 C.F.R. §35.140, interpreting that provision to prohibit employment discrimination by public entities.  The regulation reads as follows:

 

(a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity.

 

(b)(1) For purposes of this part, the requirements of title I of the Americans with Disabilities Act, as established by the regulations of the Equal Employment Opportunity Commission in 29 CFR part 1630, apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subject to the jurisdiction of title I.

     (2) For the purposes of this part, the requirements of section 504 of the Rehabilitation Act of 1973, as established by the regulations of the Department of Justice in 28 CFR part 41, as those requirements pertain to employment, apply to employment in any service, program, or activity conducted by a public entity if that public entity is not also subject to the jurisdiction of title I.

 

This Court is required first and foremost to apply the text of the statute. When interpreting the terms of a statute, the court "generally look[s] first to the plain language ... and interpret[s] it by its ordinary, common meaning." The operative section of Title II, entitled "Public Services," reads: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. §12132 (2004).  Thus the statute has two clauses: the first refers specifically to "services, programs, or activities," and the second refers more broadly to discrimination by an entity that provides such services, programs, and activities.

 

With respect to the first clause, the plain meaning of the phrase "services, programs, and activities," refers only to the "outputs" of a public agency, not to "inputs" such as employment. If asked what services, programs, and activities the DPD provided, the City might list things like taking emergency telephone calls, dispatching police officers, making arrests, keeping the peace, and otherwise protecting public safety. It would not likely answer that one of its departmental "services, programs, and activities" is hiring its employees.

 

The second clause of Title II is connected to the preceding clause because the phrase "such entity" references an entity described in the first clause as providing "services, programs, and activities." It clarifies that no qualified individual with a disability who is involved with public programs, services, and activities may "be subjected to discrimination" beyond the sort of discrimination inherent in excluding that person or denying that person benefits.

 

This Court is well aware of the generally broad remedial purpose of the ADA, and does not find that purpose undermined by its delineation between Titles I and II. While the legislative history could support the conclusion that Congress intended Title II to cover employment claims, this Court interprets the provisions of Title II as not extending to discrimination in municipal employment. Hence the Court holds that employment discrimination claims are not cognizable under Title II of the ADA.

 

Therefore Count 2 of the complaint fails to state a claim upon which relief may be granted But because this Court's holding is contrary to the Department of Justice's interpretation of the statute and is a question of first impression, this Court will address the issues of plaintiff's status as a "qualified person with a disability" and his request for a "reasonable" accommodation under the ADA.

 

B.        "Qualified Individual with a Disability" under the ADA

Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

 

Deliverance argues that because the plaintiff admitted he could not perform the essential functions of the police officer position, that is, fire a weapon or effect a forcible arrest, the ADA does not apply to him. Plaintiff argues that he is a "qualified individual with a disability" under the ADA if he could perform the essential functions of the positions he desired rather than the position he formerly held. The Seventeenth Circuit recently relied on the ADA's statutory text and legislative history to conclude that "a 'qualified individual with a disability' includes a disabled employee who desires and can perform with or without reasonable accommodation an available reassignment job within the company, though unable to perform his or her existing job."  Smith v. Jones, 123 F.3d 456 (17th Cir. 2003).

 

The City also argues that Estevez is not disabled for purposes of the Act because he is not "substantially limited" in a "major life activity." This Court agrees. Plaintiff's injuries preclude him from working as a police officer in the City of Deliverance, but do not preclude him from a broad class of jobs. Moreover, this Court agrees with courts that have held that working is not a "major life activity" under the Act.

 

Accordingly, Mr. Estevez is not a "qualified individual with a disability" under the ADA.

 

C.        Reassignment as "Reasonable Accommodation"

 

Deliverance also contends that even if Mr. Estevez is a "qualified individual with a disability," his request to be reassigned a position in the Career Service was not a "reasonable accommodation" under the ADA. In essence, the City's position is that reassignment is always optional for an employer and therefore a failure to reassign cannot serve as a basis for liability.   The Seventeenth Circuit held in Smith that "reassignment of an employee to a vacant position in a company is one of the range of reasonable accommodations which must be considered and, if appropriate, offered if the employee is unable to perform his or her existing job." The Seventeenth Circuit recognized, however, that reassignment may not always be an appropriate form of reasonable accommodation.   For example, an employer need not reassign an employee to a position which would be a promotion or would constitute an undue burden on the employer.   Here, plaintiff's position as a police officer could not be modified to accommodate his disabilities and consideration of reassignment was therefore appropriate.  But the disabled employee has a right only to the consideration process leading up to the potential reassignment, and not to the reassignment itself.

 

Here, the City argues that the requested re-assignment would constitute an undue burden because it would cause the City to deviate from a long-established policy forbidding transfers between the Classified Service and the Career Service. Deliverance never studied the cost of such a measure, or attempted to modify the dual service system to accommodate the disabled plaintiffs. A Deliverance official admitted in deposition that such reassignment would not impose an undue monetary burden on the city, but the City asserted that permitting reassignment of injured police officers to Career Service positions would hurt employee morale. This Court finds that rationale persuasive in light of the need for discipline and loyalty within the police force.

 

For the reasons set forth above, summary judgment is granted to the City of Deliverance on Count 1. Count 2 is dismissed for failure to state a claim upon which relief can be granted.

 

So ordered.     

 


 

United States Code-Title 42-Chapter 126-Equal Opportunity for Individuals with Disabilities

 

§ 12101. Findings and purpose

 

(a) Findings

 

The Congress finds that--

 

(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

(8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

 

(b) Purpose

It is the purpose of this chapter--

 

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.



 

§ 12102. Definitions

As used in this chapter:

...

(2) Disability

 

The term "disability" means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.



 

 

Title I-Employment

§ 12111. Definitions

As used in this subchapter:

 

(1) Commission

 

The term "Commission" means the Equal Employment Opportunity Commission.

 

(2) Covered entity

 

The term "covered entity" means an employer, employment agency, labor organization, or joint labor-management committee.

 

(3) Direct threat

 

The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

 

 

(4) Employee

 

The term "employee" means an individual employed by an employer. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

 

(5) Employer

 

(A) In general

 

The term "employer" means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

 

(B) Exceptions

 

The term "employer" does not include--

(i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or

(ii) a bona fide private membership club.  

 

...

(7) Person, etc.

 

The term[] "person" ... shall have the same meaning given such term[] in section 2000e of this title. [42 U.S.C. 2000e defines "person" as including "governments, governmental agencies, [and] political subdivisions."]

 

(8) Qualified individual with a disability

 

The term "qualified individual with a disability" means 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. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

 

 

(9) Reasonable accommodation

 

The term "reasonable accommodation" may include--

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

 

(10) Undue hardship

 

(A) In general

 

The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

 

(B) Factors to be considered

 

In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include--

(i) the nature and cost of the accommodation needed under this chapter;

(ii) 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 the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) 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.



 

§ 12112. Discrimination

 

(a) General rule

 

No covered entity shall 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.

 

(b) Construction

 

As used in subsection (a) of this section, the term "discriminate" includes--

 

(1) 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; ...

(3) utilizing standards, criteria, or methods of administration--

(A) that have the effect of discrimination on the basis of disability; or

(B) that perpetuate the discrimination of others who are subject to common administrative control; ...

(5)

(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity. ...

 

 

§ 12113. Defenses

(a) In general

 

It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.

 

(b) Qualification standards

 

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.

 

 

 

§ 12116. Regulations

Not later than 1 year after July 26, 1990, the Commission shall issue regulations in an accessible format to carry out this subchapter in accordance with subchapter II of chapter 5 of Title 5.



 

 

§ 12117. Enforcement

(a) Powers, remedies, and procedures

 

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.

 

 

 

Title II--Public Services

§ 12131. Definitions

As used in this subchapter:

(1) Public entity

 

The term "public entity" means--

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(C) the National Railroad Passenger Corporation, and any commuter authority.

 

(2) Qualified individual with a disability

 

The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

 

 

§ 12132. Discrimination

 

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

 

 

 

 

 

 

§ 12133. Enforcement

 

The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.



 

§ 12134. Regulations

 

(a) In general

 

Not later than 1 year after July 26, 1990, the Attorney General shall promulgate regulations in an accessible format that implement this part. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation.

 

 

 

29 U.S.C. § 794. Nondiscrimination under Federal grants and programs [Rehab Act §504]

 

(a) Promulgation of rules and regulations

 

No otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

 

(b) "Program or activity" defined

 

For the purposes of this section, the term "program or activity" means all of the operations of--

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

...

any part of which is extended Federal financial assistance.

§ 794a. Remedies and attorney fees

 

(a)

...

(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.

 

 

 

CODE OF FEDERAL REGULATIONS

TITLE 29--LABOR

PART 1630--REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT (Title I]

 

§  1630.2 Definitions.

 

 (a) Commission means the Equal Employment Opportunity Commission.

 ...

 (e) Employer--

 

 (1) In general.  The term employer means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, from July 26, 1992 through July 25, 1994, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year and any agent of such person.

 

 (f) Employee means an individual employed by an employer.

 

 (g) Disability means, with respect to an individual--

 

 (1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

 

 (2) A record of such an impairment;  or

 

 (3) being regarded as having such an impairment.

 

 (h) Physical or mental impairment means:

 

 (1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine;  or

 

 (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

 

 (i) Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

 

 (j) Substantially limits--

 

 (1) The term substantially limits means:

 

 (i) Unable to perform a major life activity that the average person in the general population can perform;  or

 

 (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

 

 (2) The following factors should be considered in determining whether an individual is substantially limited in a major life activity:

 

 (i) The nature and severity of the impairment;

 

 (ii) The duration or expected duration of the impairment;  and

 

 (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

 

 (3) With respect to the major life activity of working--

 

 (i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.  The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

 

 (ii) In addition to the factors listed in paragraph (j)(2) of this section, the following factors may be considered in determining whether an individual is substantially limited in the major life activity of "working":

 

 (A) The geographical area to which the individual has reasonable access;

 

 (B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or

 

 (C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).

 

(k) Has a record of such impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

 

(m) Qualified individual with a disability means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.  (See §  1630.3 for exceptions to this definition).

 

(n) Essential functions--

 

 (1) In general.  The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position.

 

 (2) A job function may be considered essential for any of several reasons, including but not limited to the following:

 

 (i) The function may be essential because the reason the position exists is to perform that function;

 

 (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

 

 (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

 

 (3) Evidence of whether a particular function is essential includes, but is not limited to:

 

 (i) The employer's judgment as to which functions are essential;

 

 (ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

 

 (iii) The amount of time spent on the job performing the function;

 

 (iv) The consequences of not requiring the incumbent to perform the function;

 

 (v) The terms of a collective bargaining agreement;

 

 (vi) The work experience of past incumbents in the job;  and/or

 

 (vii) The current work experience of incumbents in similar jobs.

 

 (o) Reasonable accommodation.

 

 (1) The term reasonable accommodation means:

 

 (i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires;  or

 

 (ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position;  or

 

 (iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

 

 (2) Reasonable accommodation may include but is not limited to:

 

 (i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;  and

 

 (ii) Job restructuring; part-time or modified work schedules;  reassignment to a vacant position;  acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies;  the provision of qualified readers or interpreters;  and other similar accommodations for individuals with disabilities.

 

 (3) To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.  This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

 

 

(p) Undue hardship--

 

 (1) In general.  Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity, when considered in light of the factors set forth in paragraph (p)(2) of this section.

 

 (2) Factors to be considered.  In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include:

 

 (i) The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;

 

 (ii) 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, and the effect on expenses and resources;

 

 (iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;

 

 (iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity;  and

 

 (v) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.

 

 (q) Qualification standards means the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired.

 

 

§  1630.4 Discrimination prohibited.

 

  It is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual with a disability in regard to:

 

 (a) Recruitment, advertising, and job application procedures;

 

 (b) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

 

 (c) Rates of pay or any other form of compensation and changes in compensation;

 

 (d) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;  ... and

 

 (i) Any other term, condition, or privilege of employment.

 

 

 

§  1630.7 Standards, criteria, or methods of administration.

 

It is unlawful for a covered entity to use standards, criteria, or methods of administration, which are not job-related and consistent with business necessity, and:

 

 (a) That have the effect of discriminating on the basis of disability;  or

 

 (b) That perpetuate the discrimination of others who are subject to common administrative control.

 

 

§  1630.9 Not making reasonable accommodation.

 

(a) It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

 

 (b) It is unlawful for a covered entity to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such covered entity to make reasonable accommodation to such individual's physical or mental impairments.  ...

 

 

§  1630.15 Defenses.

 

Defenses to an allegation of discrimination under this part may include, but are not limited to, the following:

...

 

 (d) Charges of not making reasonable accommodation.  It may be a defense to a charge of discrimination, as described in §  1630.9, that a requested or necessary accommodation would impose an undue hardship on the operation of the covered entity's business.

 

 

 


 

CODE OF FEDERAL REGULATIONS

TITLE 28--JUDICIAL ADMINISTRATION

CHAPTER I--DEPARTMENT OF JUSTICE

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES [Title II]

 

§  35.102 Application.

 

This part applies to all services, programs, and activities provided or made available by public entities.

 

§  35.104 Definitions.

 

  For purposes of this part, the term--

 

 Act means the Americans with Disabilities Act.

 

 Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual;  a record of such an impairment;  or being regarded as having such an impairment.

 

 (1)(i) The phrase physical or mental impairment means--

 

(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine;

 

 (B) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

 

(ii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

 

(2) The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

 

 Individual with a disability means a person who has a disability.  The term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when the public entity acts on the basis of such use.

 Public entity means--

 

 (1) Any State or local government;

 

 (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government;  ...

 

Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

 

 

§  35.130 General prohibitions against discrimination.

 

(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

 

 (b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

 

 (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

 

 (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

 

 (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; ...

 

 (vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service. ...

 

 (3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

 

 (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

 

 (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or

 

 (iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

 

 ...

 (7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

 

 (8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

 

 

§  35.140 Employment discrimination prohibited.

 

(a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity.

 

(b)(1) For purposes of this part, the requirements of title I of the Act, as established by the regulations of the Equal Employment Opportunity Commission in 29 CFR part 1630, apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subject to the jurisdiction of title I.

 

(2) For the purposes of this part, the requirements of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 504], as established by the regulations of the Department of Justice in 28 CFR part 41, as those requirements pertain to employment, apply to employment in any service, program, or activity conducted by a public entity if that public entity is not also subject to the jurisdiction of title I [of the ADA].

 

EEOC Guidance [ignore all footnote references]

Reasonable Accommodation

Title I of the Americans with Disabilities Act of 1990 (the "ADA")(1) requires an employer(2) to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.(3)There are three categories of "reasonable accommodations":

(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.(4)

The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities.

Reasonable accommodation is available to qualified applicants and employees with disabilities.(5) Generally, the individual with a disability must inform the employer that an accommodation is needed.(6)

There are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; and reassignment to a vacant position.(7)

A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases;"(8) this means it is "reasonable" if it appears to be "feasible" or "plausible."(9)An accommodation also must be effective in meeting the needs of the individual.(10) In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position.

There are several modifications or adjustments that are not considered forms of reasonable accommodation.(12) An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation,(13) is not a "qualified" individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards -- whether qualitative or quantitative(14) -- that are applied uniformly to employees with and without disabilities. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes.

An employer does not have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.(15)

Reassignment (75)

The ADA specifically lists "reassignment to a vacant position" as a form of reasonable accommodation.(76) This type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship.(77)

An employee must be "qualified" for the new position. An employee is "qualified" for a position if s/he: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation.(78) The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.

Before considering reassignment as a reasonable accommodation, employers should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.(80) However, if both the employer and the employee voluntarily agree that transfer is preferable to remaining in the current position with some form of reasonable accommodation, then the employer may transfer the employee.

"Vacant" means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time. A position is considered vacant even if an employer has posted a notice or announcement seeking applications for that position. The employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position.(82)

The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified. Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee's current position in terms of pay, status, etc.(83)If it is unclear which position comes closest, the employer should consult with the employee about his/her preference before determining the position to which the employee will be reassigned. Reassignment does not include giving an employee a promotion. Thus, an employee must compete for any vacant position that would constitute a promotion.

Undue Hardship

The only statutory limitation on an employer's obligation to provide "reasonable accommodation" is that no such change or modification is required if it would cause "undue hardship" to the employer.(16) "Undue hardship" means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.(17) An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship.

An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.(113) A determination of undue hardship should be based on several factors, including:

the nature and cost of the accommodation needed;

the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;

the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);

the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;

the impact of the accommodation on the operation of the facility.(114)

The ADA's legislative history indicates that Congress wanted employers to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly.(115) Undue hardship is determined based on the net cost to the employer. Thus, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation.(116)

If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward the individual's disability.(117) Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees' ability to work.