Legal Officers Section

2005 IACP Conference

Miami, Florida

September 24, 2005

 

The Americans with Disabilities Act

Updates

 

Jack Collins

General Counsel

Massachusetts Chiefs of Police Association

www.masschiefs.org

JackMCOPA@aol.com

 


 

This outline was pasted from the text and non-displayed author notes in a PowerPoint presentation.

 

Today’s topic is the Americans with Disabilities Act.

 

• Supreme Court decision impacting police

• Some discussion of lower court cases

• Wild guesses as to what it all means

 

• The Court further concluded that the individuals in the three cases were not “regarded as” substantially limited in the major life activity of working and therefore not covered under the third prong of the definition of disability.

 

Although the Court did not find that the employers in the three cases it reviewed had regarded the plaintiffs as substantially limited in the major life activity of working, an employee could be covered by the ADA if the disabling condition is “cured” by medication or a device, but the employer still regards the employee as substantially limited. (Ex: Employer mistakenly believes that an employee with epilepsy whose seizures are controlled by medication is a danger in the workplace.)

 

Record of impairment

 

• Not addressed

• Impaired in the past, but who is not currently impaired because of medication or an assistive device, could be covered by the ADA

 

What about the “Record of Impairment” part of the ADA?

 

• These cases did not address the second prong of the definition of disability which provides that an employee is considered a person with a disability even if he/she is not currently disabled, but is still treated adversely by the employer because of the employee’s record or history of a substantial impairment.

 

So a person who was impaired in the past, but who is not currently impaired because of medication or an assistive device, could be covered by the ADA.

 

Medication or assistive devices

 

• Use of a corrective device does not, by itself, preclude the individual from ADA coverage if the person is still substantially limited in a major life activity even after using the mitigating measure

 

• The Court’s decisions significantly limit the scope of coverage under the ADA for people who use medication or assistive devices.

 

However, the Court did hold that the use of a corrective device does not, by itself, preclude the individual from ADA coverage if the person is still substantially limited in a major life activity even after using the mitigating measure.

 

The Court specifically stated that someone who uses a prosthetic leg or a wheelchair would still likely be covered by the ADA even though they use a “mitigating measure.”

 

What if mitigating measure itself causes the person to be substantially limited?

 

Person with mental illness takes medication

 

• Side effects of the medication substantially limit the person in a major life activity, such as concentration, he/she could be covered by the ADA and entitled to an accommodation even though the symptoms of the disability are addressed by the medication

 

• If a person uses a mitigating measure and the mitigating measure itself causes the person to be substantially limited, they could still be covered by the ADA. (Ex: A person with mental illness takes medication. If the side effects of the medication substantially limit the person in a major life activity, such as concentration, he/she could be covered by the ADA and entitled to an accommodation even though the symptoms of the disability are addressed by the medication.)

 

Who is disabled?

 

SSDI?

• Not automatically

• No reasonable accommodation provision

  - Cleveland v. Policy Management Systems (1999)

 

Vision

• One-eyed persons not “disabled”

  - Albertson’s v. Kirkingberg (1999)

 

Not major life activity

- Sutton v United Airlines (1999)

 

Regarded as disabled

 

• Mistaken belief has substantially-limiting impairment

• Can’t do patrol & arrest

• Not limited to particular job

  - Toyota v. Williams (2002)

 

• While there were some predictions when the ADA was enacted that nearly everyone in America might be covered in one way or the other, this has not been the case.

 

• Persons who are determined to be “disabled” for Social Security Disability purposes, for example, are not automatically disabled for purposes of the ADA. This is because the SSDI standards do not have a “reasonable accommodation” provision.

 

• Persons with sight impairments may not be disabled under the ADA. In one case, the Supreme Court found a one-eyed person not disabled. In another, the inability to qualify as a global airline pilot was not enough to pass the disability threshold, as there were lots of other jobs the applicants might do.

 

• The Court also clarified the “regarded as disabled” prong as requiring a mistaken belief on the part of the employer.

 

• Lastly, simply because a person cannot perform the demands of a patrol officer may not mean he or she is disabled if they can do lots of other jobs.

 

What medical qualifications may the department use to determine if an applicant is qualified?

 

• All of the cases the Supreme Court reviewed had qualification standards that allowed the employer to deem the person not qualified if they could not meet those standards. (Ex: Dept. of Transportation regulations disqualify drivers with high blood pressure.)

 

• Employees in settings without these standards have a better chance to succeed under the regarded as prong of the ADA.

 

Medical qualifications

 

OK to rely on state mandated standards

• One-eyed persons not “disabled”

  - Albertson’s v. Kirkingberg (1999)

 

• High blood pressure

- Murphy v. UPS (1999)

 

• Direct threat to own health

- Chevron v. Echazabal (2002)

 

One recommendation I make to police chiefs is that they adhere to state medical qualifications if they exist. The Court has consistently allowed employers to do this. For example, as we discussed earlier, a one-eyed person was not disabled for ADA purposes, even though he could not pass the eyesight test required for a truck driver’s license.

 

The same conclusion was reached were a person’s high blood pressure disqualified them for the position they wanted, but with medication they could perform many others.

 

Interestingly, when a person’s health puts them at risk, they may be denied a position. This was sufficient reason for Chevron to refuse to retain a former contract employee that had been doing the job for more than twenty years. Working with chemicals put his health at risk.

 

Prisoner accommodations

 

• Adopt policy

• Consent agreements

• Interpreters for deaf

• Prove trained officers

• Transporting disabled prisoner

Barnes (Kansas City Police Commissioner) v. Gorman (2002)

 

• One impact the ADA cases are likely to have on law enforcement is in the area of handling prisoners and persons with hearing difficulties. I recommend departments adopt or update their policies in this are to avoid the type of consent decrees some agencies are experiencing in recent years. At a minimum, officers should receive training and there should be a policy on how to handle deaf prisoners, suspects and witnesses.

 

Similarly, a policy and training should be in place on how to transport disabled prisoners.

 

Police station accessibility

 

• Handicapped parking

• Exclude officers

• Detention facilities

• Cells

• Toilets

• Phones

 

• Some cases that have proved embarrassing for police agencies have involved surveys by disability advocacy groups documenting practices by police officers to park in handicapped spaces (even those set aside at the police station.)

 

• Chiefs should also have their cells inspected to assure ADA compliance, as well as for toilets and phones.

 

Seniority clauses

 

• Ordinarily trumps ADA unless employee shows special circumstances making rule exception reasonable

- U.S.  Airways v. Barnett (2002)

 

• Not decided if waiver valid

- Wright v. Universal Maritime (1998)

 

Arbitration mandated by CBA?

 

Exclusive forum

 

• EEOC may still sue and seek victim-specific relief

- EEOC v. Waffle House (2002)

 

• Chiefs may find a conflict between a request for reasonable accommodation and the seniority clause of a union contract. In general, the contract clause will take precedence. However, if the employer has discretion, and has used it in the past, the contract clause should not be relied upon too rigidly.

 

• Chiefs should review their department’s collective bargaining agreement to see if there is a provision concerning arbitration being the exclusive remedy for all claims, even those involving discrimination claims. Even if this is the case, the EEOC may still sue and seek relief for the individual.

 

No rehire rule

 

• Former disciplined employees

- Raytheon v. Hernandez (2003)

 

• Chiefs may want to see if a rule should be adopted prohibiting rehiring anyone that has been terminated for disciplinary reasons. This might prevent a person who was fired for drug use, for example, from returning on a Civil Service or other eligibility list after completing a rehab program.

 

Unconstitutional to allow suits vs. police?

 

11th Amendment

 

• States immune from Title I claims

 

• Not municipalities

- Univ. of Alabama Trustees v. Garrett (2001)

 

• State prisons covered by ADA

- Did not raise constitutional issue

- Pa. Dept. of Corrections v. Yeskey (1998)

 

• Title II not unconstitutional as re: court access

- Tennessee v. Lane (2004)

 

• Although the 14th Amendment to the U.S. Constitution permits Congress to pass laws to prevent discriminatory actions by states, the 11th Amendment has been interpreted to provide states with immunity from private lawsuits in federal court unless the federal legislation remedies or prevents a problem of unconstitutional state action, and the legislation is deemed proportional and a reasonable response to the problem it is intended to remedy or prevent.

 

In recent years, the Supreme Court has interpreted the states’ immunity under the 11th Amendment quite broadly.

 

Implications

 

• State employers are no longer subject to private federal ADA Title I employment discrimination suits seeking money damages

 

• States are still subject to ADA Title I employment discrimination suits seeking non-monetary relief

 

• State employers are no longer subject to private federal ADA Title I employment discrimination suits seeking money damages. The result of the Supreme Court’s decision is that employees with disabilities who work for state employers have fewer civil rights protections than employees with disabilities who work for private or local governmental employers.

 

• States are still subject to ADA Title I employment discrimination suits seeking non-monetary relief. The Supreme Court expressly held that state employees can bring ADA actions in federal court when seeking injunctive relief, such as reasonable accommodations, promotions or reinstatement.

 

More implications

 

• States are still subject to Title I employment discrimination suits in federal court for money damages brought by the United States. The Department of Justice and the equal employment opportunity commission can still bring ADA actions for money damages against the states

 

• States are still subject to Title I employment discrimination suits in federal court for money damages brought by the United States. The Department of Justice and the Equal Employment Opportunity Commission can still bring ADA actions for money damages against the states.

 

• Private and local governmental employers are still subject to Title I employment discrimination suits in federal court. The Supreme Court did not extend the 11th amendment immunity beyond state entities

 

• Private and local governmental employers are still subject to Title I employment discrimination suits in federal court. The Supreme Court did not extend the 11th Amendment immunity beyond state entities.

 

• States are still subject to ADA claims under Title II the Supreme Court expressly declined to address the constitutionality of Title II of the ADA, which covers programs and services provided by state and local governmental entities

 

• Private and local governmental employers are still subject to Title I employment discrimination suits in federal court. The Supreme Court did not extend the 11th Amendment immunity beyond state entities.

 

• States are still subject to the Supreme Court’s ruling in Olmstead. Garrett does not affect the Supreme Court’s decision in Olmstead that unjustified institutionalization is discrimination under the ADA. Olmstead cases typically seek non-monetary relief that Garrett said is still available under the ADA