Jury Reform Proposals - My Thoughts By Arthur A. Garton, MCBA President
?On July 13, 2006, the Michigan Supreme Court published jury reform proposals seeking public comment. Amazingly, a couple of the proposals make sense and may actually help facilitate the jury in its function. However, a few of the proposals are, I feel, dangerous and should be avoided from the inception.
My first concern is a proposal allowing judges, in both civil and criminal trials, to “fairly and impartially sum up the evidence and comment to the jury about the weight of evidence”, while also reminding jurors that they must decide the fact issues for themselves. Why, after all these years, would this even be considered? This proposal, if adopted, all but destroys a jury trial. Doesn’t this, in effect, do away with trial by jury and become a judge-assisted-jury trial? I think the overwhelming majority of judges bend over backwards so as to not give the jury a sense of the judge’s feeling about the evidence. A judge commenting on the evidence would not only become a 7th or 13th juror, but in effect become a “super juror” because most jurors give considerable weight to the judge’s opinion. That was exactly what the Bill of Rights intended to prohibit.
I am also concerned with the proposal allowing judges to instruct the jurors that they may discuss the evidence among themselves in the jury room during trial recesses, while at the same time instructing them that they are not to decide the case until they have heard all the evidence. The jurors are to be instructed that “such discussions are clearly understood as tentative pending final presentation of all evidence, instructions, and argument.” This will allow jurors to start formulating opinions prematurely. The tendency then would be to stop listening to the evidence long before the trial is concluded. The prosecution or the plaintiff would have a distinct and unfair advantage as discussions would reinforce beliefs and do away with the open mind the jurors are supposed to keep throughout the entire trial. Additionally, if jurors are discussing the evidence amongst themselves without the prohibition, is it such a stretch to envision jurors discussing the case with non-jurors? What is the up-side or benefit to any litigant with this proposal?
My final concern of these proposals is allowing the courts to schedule expert testimony in a way that is “designed to assist jurors’ understanding of the issues” – for example, the court may schedule experts sequentially, or may provide “for a panel discussion by all experts on a subject after or in lieu of testifying”. Experts could question each other during the panel discussion which would be moderated by a trial judge or “a neutral expert”. A judge should not schedule how a lawyer tries his/her case. This is a jury trial and not some high school debate. Scheduling experts are always problematic under the best of circumstances and this could result in increased difficulty and unnecessary expense in presenting expert testimony.
While this is only a pilot program, these types of initiatives have a way of gathering momentum and taking hold. I strongly urge all of you to study these proposals in depth and express your concerns both good and bad and make your voice be heard. I have already discussed this with other bar leaders and several sitting judges and have expressed my concerns. You should do the same.
The Spirit of Giving
By Rick R. Troy, MCBA Executive Director
?Dear MCBA Members,
The season of giving is upon us and even in these dismal economic times the Macomb County legal community continues to give and give.
Thank you to all who so graciously donated to the Kimberly M. Cahill Memorial Fund. At the time of this writing the direct appeal was on-going so there are no final results to share with you. However, I can share with you that of attorneys from across the entire state sent in donations large and small. A successful campaign will continue her legacy of leadership and education through the Macomb County Bar Foundation. The campaign has thus far consisted of a mass mailing and an even larger mass email. In all, over 27,000 attorneys statewide have been contacted. A donation in any amount is appreciated by the stewards of this fund who are dedicated to the advancement of programs that advance Kim’s legacy that learning is paramount in all phases of life, especially when applied to serve others and promote justice essential to our community.
Thank you to all who have supported the Foundation’s main fundraising event, Christmas for Kids. This year’s event is December 8 at Mac and Rays. For over a decade this event has been supported by the Macomb County legal community. The beneficiaries include the clients of Care House and the hundreds of children that participate in the MCBA’s and MCBF’s law related education programs.
There are many more examples of your collective giving that would fill the pages of this magazine and yet I am here to ask you again to give.
When I consider the greatest gifts ever given to me I can honestly say that they were not money from Grandma and Grandpa or the toys from my siblings, or even keys to the rusted out Ford Maverick when I turned 16. In all honesty the greatest gifts given to me were gifts of wisdom, guidance and experience. In my life there was a teacher, a coach, a friend, and a lawyer that gave me these important gifts. To this day those who cared enough to give me these gifts are the people I hold in the highest of reverence. And now I ask you to consider being that lawyer for someone else.
With the help and guidance of attorney Ron Goldstein the MCBA has crafted a multi-faceted mentoring program. The program consists of Continuing Legal Education, Mentors, Court Orientations, Judicial Luncheons and a Second Chair Program.
At this time we seek experienced lawyers to join the pool of mentors in the areas of Criminal, Juvenile and Domestic law. We will create a brief biography of our mentors and post them on www.MacombBar.org where those in need of mentoring can find help on there own or with the assistance of MCBA staff. We are also building a website forum whereby MCBA members can post general questions to the mentor pool. Again MCBA staff will administer the site and facilitate the questions to the mentor pool. If you are interested in being a part of the mentor pool please contact the bar office right away.
Judge Douglas Shepherd and magistrate Michael Osaer of the 41-A District Court are implementing a second chair program and the MCBA mentoring program is proud to be a part of this pilot project. Anyone with less than three years experience as a member of the State Bar of Michigan is qualified to sit as a second chair and receive compensation while gaining valuable knowledge. Contact Mr. Goldstein at 248 960-3515 the MCBA at 586-468-2940 or the 41-A District Court at 586-739-7325 to enroll in the second chair program.
I leave you with a message from the mentoring program chairman, Mr. Ron Goldstein. “I request that you veterans out there enroll in the mentoring program and give a helping hand to the rookies. REMEMBER YOU WERE A ROOKIE ONCE. Who helped you?”
Circuit Court Corner
By Keith R. Beasley, 16th Circuit Court Administrator
Email Service of Pleadings & Papers
Effective January 1, 2009, the Michigan Supreme Court has adopted a revision to MCR 2.107 which allows e mail delivery of pleadings and papers among parties or attorneys in given cases – if the parties have filed a stipulation in the case. The Court can also provide e service to attorneys and parties who have filed an agreement with the Court to do so. It appears to me the sentence relating to an ‘agreement’ with the Court is not limited to a given case, but a ‘stipulation’ between parties is. I infer that a party or attorney can thus agree to receive ongoing communications from the Court via e mail in all of their cases. See ADM File No. 2007-30 on the Michigan Supreme Court Web site for the full text of the order. Our case management system is not programmed to allow us to trigger e mail notices automatically. Thus, for the foreseeable future the Court will only be able to send e mail notices manually on a case by case basis. The main application of the rule at the Court would likely be in the Juvenile Division. Chief Referee DeRush will be looking a ways to implement this.
Appointed Counsel
I would like to let attorneys who are appointed to represent indigent individuals in our Court know of a change in Court policy regarding appointed counsel requests for transcript while representing indigent persons. The Court had previously let counsel decide whether he or she needed transcript of earlier proceedings in the given case in order to represent their client and would automatically order the transcript. Chief Judge Caretti recently directed that attorneys must obtain the permission of the assigned judge, informally or formally (via motion) as that judge directs, before transcript can be ordered at public expense.
Trial Procedural Orders
The Assignment Clerk asked me to let me know where you can get copies of the standard Trial Procedural Orders that the various judges use. The link to them is located on our Web site under ‘Publications.’ This page also contains a link to our Local Administrative Orders, our locally created forms, our one Local Court Rule, applications for the indigent panel lists and a handbook on juvenile protective and delinquency proceedings.
Adult Drug Court
Those of you who practice criminal law are probably familiar with our adult drug court which has helped many defendants who are dependent on drugs, including alcohol, and are facing incarceration due to a nonviolent felony offense. Our Drug Court is assisted by an independent nonprofit 501(c)(3) corporation named Macomb Community Drug Courts, Inc. The nonprofit must be independent of the Court. Court staff cannot be involved with the operation of the corporation or fundraising. Mark Pellecchia has graciously been helping the nonprofit. He is looking for others interested in supporting the mission of Drug Court through the nonprofit. Strong organizational skills and a knowledge of fundraising would be helpful. Interested persons need not be attorneys, but could be. If you are interested, or know of someone who may be interested, please contact Mark 586 443 5944.
Family Medical Leave Act By Heide Sharp, Burgess & Sharp PLLC
Recently, a potential client called me and told me that she was terminated while on medical leave after a car accident. My first thought was – a great new FMLA case. But when we started discussing how many employees worked for her former employer, it was only around 35, so she would not qualify for FMLA leave.
She continued to tell me about how her former employer – we will call it company Y – she thought was really run by Company X. Co. X was a larger company with more than 200 employees. She was sure that Company X owned Company Y, her supervisor at Co. Y was really employed by Co. X, and that all products they made at Co. Y were sent to Co. X. Further, every year her bonus was handed out by the owners of Co. X, the owners and other heads of Co. X would often come through Co. Y and train the employees, tell them what products to make, and finally, when she was terminated, her supervisor at Co. Y said he would have to call “corporate at Co. X” to ask what to do about her.
After hearing all of this, it didn’t sound like she worked just for Co. Y, but Co. X also, since Co. X was in charge of Co. Y, and since both companies together had more than 50 employees she should have been entitled to FMLA leave. Fortunately, the 6th Circuit has recently upheld FMLA regulations that would allow both companies to be liable for violating my client’s FMLA rights.
A covered “employer” under the FMLA comprises “any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees [within 75 miles of the worksite] for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.”1 In Grace v. USCAR and Bartech Technical Services, LLC, the 6th Circuit upheld two tests from the FMLA regulations under which the employees from two employers can be combined to reach the 50 employee threshold under the FMLA. Under these tests the two employers would then be covered employers and, in some situations, both covered employers would be liable for violating an employee’s FMLA rights.
The first test discussed in Grace is the “integrated employers” test.
Under the integrated employment theory “separate entities will be deemed to be parts of a single employer for purposes of the FMLA.”2 The regulations provide the following four factors for helping to determine if two entities should be treated as an integrated employer: (1) common management, (2) interrelation between operations, (3) centralized control of labor relations, and (4) degree of common ownership/financial control.3 “Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility.”4 In Schubert, the Eastern District of Missouri used this test to find that two employers were integrated. Two putatively distinct health care companies had the same officers, nearly identical directors, similar corporate purpose, and principal place of business at the same address.5
In my case, I brought suit against both companies X & Y as integrated employers alleging both were liable for violating my client’s FMLA rights. I sought to prove companies X & Y met the integrated employers test with the following facts: Both companies had almost identical officers and board of director members. There were employees of Co. X who had the authority to hire, fire and change the working conditions of Co. Y employees, but they did not receive a salary from Y. Further, employees from Co. X would regularly visit Co. Y to advise Co. Y’s plant manager on how to conduct day-to-day operations. These employees of Co. X did not receive a salary from Co. Y for this “advice”. Further, 92% of Co. Y’s products were bought and used directly by Co. X. As far as advertising, Co. Y appeared on a web site run by Co. X, and appeared as if it were a division of X, and not a separate and distinct company.
All of the employees who prepared Co. Y’s account’s payables, bookkeeping records, administrative records, human resources records and payroll records were employed by Co. X and paid by Co. X. Co. X was reimbursed by Co. Y for the accounts payables and administrative work, but in no relation to the actual work being done for Co. Y. All of Co. Y’s human resources needs were handled by Co. X. Co. Y had no human resources personnel in their building, and Co. X received no reimbursement for handling Co. X’s human resources’ needs. Finally, all of the employees for both companies were on the same 401k plan, managed only by Co. X.
My client’s termination was discussed by three employees, two from Co. X and one from Co. Y. Prior to her termination, an “investigation” of her medical situation and records were ordered and paid for by Co. X.
The second test considered by the 6th Circuit in Grace is the “joint employers” test. Joint employment encompasses situations where “two or more businesses exercise some control over the work or working conditions of the employee.”6 “In a joint employer relationship the analysis assumes separate legal entities exist but that they have chosen to handle certain aspects of their employer-employee relationships jointly.”7 The regulations describe three employment relationships where joint employment will “generally … be considered to exist”: (1) Where there is an arrangement between employers to share an employee’s services or to interchange employees; (2)Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or, (3) Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.8
The second relationship under the joint employer test is the one which was found to exist in Grace. Bartech was a staffing agency responsible for providing specialized technical staff to USCAR, and acted in USCAR’s interests by managing the Plaintiff Grace. USCAR exercised significant control over Grace, and admittedly managed her day-to-day work duties. Consequently, both employers exercised some control over the Plaintiff.
Thus, next time you are interviewing a potential FMLA client, remember these two tests when the client says their former employer had less than 50 employees. It may only take a little bit of research into the companys’ owners and what other companies they own, who is managing their human resources services, or who else the employee reported to. A company who appears to be not otherwise covered by the FMLA may not always be what it seems at first glance.
1 29 U.S.C. § 2611 (4)
2 29 C.F.R. § 825.104(c)(2)
3 29 C.F.R. § 825.104(c)(2)(i-iv)
4 29 C.F.R. 825.104(c)(2)
5 Schubert v. Bethesda Health Group, Inc. 310 F. Supp2d 963, 970 (E.D. Mo. 2004) (citing NLRB v. Browning-Ferris Indus. of Penn., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982).
6 29 C.F.R. § 825.106(a)
7 Schubert v. Bethesda Health Group, Inc. 310 F. Supp2d 963, 970 (E.D. Mo. 2004) (citing NLRB v. Browning-Ferris Indus. of Penn., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982).
8 29 C.F.R. § 825.106(a
The EEOC Compliance Manual: A Valuable Resource for Religous Discrimination Claims By Gilian P. Yee, Ogletree, Deakins, Nash, Smoak & Stewart, PLLC
Introduction
The number of religious discrimination claims filed with the Equal Employment Opportunity Commission (“EEOC”) is on the rise. This is no surprise given the diverse religious beliefs held by the workers in our society. According to the EEOC, this number has more than doubled from 1992 to 2007. Ogletree Deakins just defended a religious accommodation case against the EEOC, and in the EEOC’s Memorandum in Opposition to Motion for Summary Judgment, it cited the EEOC’s Compliance Manual as authority for its argument, stating that the Compliance Manual, while not binding on the Court is “entitled to respect.”1
With that in mind, it would behoove us to review and address key points relative to the EEOC’s July 22, 2008 issuance of Section 12 of its new Compliance Manual on Religious Discrimination, which provides examples of religious discrimination and suggestions to avoid charges alleging discrimination based on religion.
Overview
With respect to religion, Title VII of the Civil Rights Act of 1964 (“Title VII”) not only protects workers from employment discrimination based on their religion, unlike the other basis of discrimination, it requires reasonable accommodation of the workers’ sincerely held religious beliefs, observances, and practices, unless accommodation would impose an undue hardship on business operations. Religion Religion includes all aspects of religious observance and practice as well as belief. Religion can include new and uncommon beliefs that only a small number of people follow. In fact, there may be only one follower of the religion, as long as the belief is moral or ethical as to what is right and wrong or concerns ultimate ideas about life, purpose, and death. On the other hand, personal preferences and social, political, and economic philosophies are not considered protected religious beliefs.Theories of LiabilityA worker alleging discrimination based on religion may assert four theories of liability:
Disparate Treatment: Treating applicants or employees differently based on their religious beliefs or practices, or lack thereof, in any aspect of employment;
Harassment: Subjecting employees to harassment because of their religious beliefs or practices, or lack therefore;
Denial of Reasonable Accommodation: denying a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices, or lack thereof, if an accommodation will not impose an undue hardship on the business; and Retaliation: retaliating against an applicant or employee who has engaged in a protected activity like filing an EEOC charge or complaining to the HR department about alleged religious discrimination.
While the charging party may only raise one claim in his or her EEOC filing, the one claim may give rise to claims for the other three theories of liability, so the EEOC advises its staff investigators to investigate and analyze each charge under all four theories.Disparate Treatment In order to avoid any claims of disparate treatment, the EEOC advises that employers:
Establish written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates;
Ask the same job interview questions of applicants for a particular job and inquiring about matters directly related to the position in question;
Carefully and timely record the accurate business reasons for disciplinary or performance-based actions and sharing reasons with the affected employees;
Provide training to inexperienced managers and encourage them to consult with more experienced managers or HR personnel when addressing difficult issues; and
Consider engaging with and educating the employer’s biased customers regarding misperceptions and EEO laws.HarassmentEmployers should follow these steps to avoid any allegations of harassment:
Have a well-publicized and consistently applied anti-harassment policy;
Allow religious expression among employees as long as not harassing or disruptive;
Once on notice that an employee objects to religious conduct directed at him or her, employer should take steps to end the conduct;
Initiate a meeting with an outside contractor who is harassing an employee and demand that the harassment cease;
Immediately intervene when aware of objectively abusive or insulting conduct; and
Ensure that supervisors’ religious expression is not perceived by subordinates as coercive.AccommodationThe following best practices should keep the EEOC from finding any cause for a claim for failure to provide an accommodation:
Inform employees that employer will make reasonable efforts to accommodate religious practices;
Train managers and supervisors on how to recognize religious accommodation requests;
Consider developing internal procedures for processing requests;
Individually assess each request and avoid assumptions or stereotypes;
Confer fully and promptly with employees regarding religious needs and available accommodation options;
Understand that an employer is not required to provide employee’s preferred accommodation if there is more than one effective alternative;
Train managers and supervisors to consider alternative available accommodations; and
Consider offering alternative methods of accommodation on temporary basis if request cannot be promptly implemented.Retaliation To avoid claims of retaliation, employers should:
Train managers and supervisors to be aware of anti-retaliation obligations, including specific actions that may constitute retaliation; and
Carefully and timely recording accurate business reasons for disciplinary or performance related actions and sharing these reasons with employee.ConclusionThe Compliance Manual is a good resource for religious discrimination, and the EEOC has done a fine job laying out the vital aspects of the four theories of liability, replete with examples. I would urge everyone to review it on an in-depth basis to fully appreciate the EEOC’s word on religious discrimination.
1 National Railroad Corporation v. Morgan, 536 U.S. 101, 111, n. 6 (2002), cited with approval in Kentucky Retirement Systems v. EEOC, U.S., 2008 WL 2445078 *10 (6-19-08).
The Employee Free Choice of 2007: What's "Free" About it
By Kenneth M. Gonko, The Danielson Group, PC
?On March 1, 2007, the United States House of Representatives passed, by a 241 to 185 majority, the Employee Free Choice Act of 2007 (the “EFCA”). Co-sponsored by Senator Edward Kennedy (D-Mass.) and Representatives George Miller (D-Calif.) and Peter King (R-N.Y.), the EFCA (H.R. 800) is a top legislative priority for organized labor. Opponents, like the United States Chamber of Commerce and the National Association of Manufacturers, view this legislation with alarm. Both proponents and opponents are viewing this election year as determinative of the Bill’s life or death.
Over 70 years ago, the National Labor Relations Act established a system to allow employees to determine whether they wished to be represented by a union through a secret ballot election regulated and supervised by the National Labor Relations Board. Under the current law, a labor union can request an organizational election once 30% of an employer’s employees sign union authorization cards in what is known as a “card check”.1 Once this “showing of interest” occurs, the NLRB orders a secret ballot election to be held usually within 39 days from the date the NLRB receives the cards.2 If the union is successful in its organizing effort and wins the secret ballot election, the NLRB certifies it as the exclusive bargaining representative of the employees. Thereafter, the employer and the union engage in the collective bargaining process in an effort to arrive at a mutually agreeable union contract.
Presently, an employer may also voluntarily recognize a labor organization without a secret ballot election if it is presented with union authorization cards signed by more than 50 % of its employees under the card check process. Again, upon a voluntary recognition of the union by the employer, the parties are then obligated by law to bargain toward an initial collective bargaining agreement.
The EFCA would amend the National Labor Relations Act in three fundamental ways.
First, and perhaps most importantly, the EFCA would eliminate the current system of secret ballot elections under certain circumstances. Pursuant to the amendments, signed employee union authorization cards may be submitted to the NLRB in lieu of the current Petition for Election. If 50 % or more of an employer’s employees sign union authorization cards, the NLRB “shall not direct an election but shall certify the individual or labor organization” thereby bypassing an election altogether.3
Second, the EFCA would require employers and newly certified unions to negotiate and agree upon an initial union contract within 90 days of the commencement of bargaining. If the parties cannot agree upon a collective bargaining agreement within 90 days, the Federal Mediation & Conciliation Service (the “FMCS”) will mediate the negotiations for the next 30 days. If the parties are still unable to agree upon a contract, the FMCS “shall refer the dispute to an arbitration board.... The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of two years...”4
Third, the EFCA would amend the current remedial scheme under the NLRA. The EFCA would require the NLRB to seek injunctive relief against an employer whenever there is reasonable cause to believe that the employer discharged or disciplined employees, threatened to discharge or discipline employees, or otherwise interfered with employees’ rights during an organizing drive or the negotiations for the initial contract. Further, the amendments provide that employers can be required to pay affected employees all back pay plus an additional two times back pay as liquidated damages for violating the Act. Finally, the EFCA would provide for civil fines up to $20,000 per violation against employers who willfully or repeatedly violate employees’ rights during an organizing campaign or initial contract negotiations.5
Proponents of the amendments see the EFCA as a windfall for the struggling American labor movement. They argue that employers faced with union organizing systematically fire pro-union workers, threaten to close shop, and use all manner of disruptive tactics to stall an election while simultaneously using coercive, anti-union rhetoric to dissuade unionization. Proponents also argue that once a union wins an organizing election, employers typically obstruct bargaining for months and even years before an initial contract is reached.
Opponents of the EFCA contend that card check organizing deprives employees of their right to secret ballot elections. They assert that card checks are inherently unreliable because union organizers pressure and harass employees to sign cards. The employers, on the other hand, have no opportunity to state their case against union organization because the union’s card check campaign is usually covert. As far as the bargaining timetable imposed by the EFCA, opponents argue that 90 days is inherently unrealistic for the parties to negotiate an initial union contract. Moreover, FMCS-originated arbitration vests control of wages and working conditions with government arbitrators similar to binding interest arbitration for police and firefighters under Michigan’s 1969 Public Act 312.
At this point, the EFCA is stalled in the Senate. Presidential contender John McCain has gone on record actively opposing the EFCA. In 2007, McCain and 27 other Republican Senators supported The Secret Ballot Protection Act (S. 1312) which would eliminate the use of the card check procedure. In June, 2007, Democratic candidate Barak Obama formally endorsed the passage of the EFCA. The consensus of both proponents and opponents appears to be that the amendments will be one of the first issues Congress addresses after the new president takes office. By the time this article is published, there should be little doubt about the Bill’s fate.
Kenneth M. Gonko has practiced law since 1979. He is a member of The Danielson Group, P.C., a Chesterfield, Michigan law firm that specializes exclusively in management side labor and employment law in both the private and public sector.
Disability Amendments Broaden ADA Coverage Robert Q. Ramanelli & Jay C. Boger, Kienbaum Opperwall Hardy & Pelton PLC
On September 25th, President Bush signed into law the Americans with Disabilities Act Amendments Act of 2008 (the “Amendments”). The Amendments are the result of effort by Congress and employer and disability rights groups to restore the “original intent” of the Americans with Disabilities Act (“ADA”) to protect a broad range of individuals with disabilities from discrimination. The Amendments will take effect on January 1, 2009, applying to cases filed on or after that date.
Originally enacted in 1990, the ADA was designed to provide a comprehensive national mandate for the elimination of discrimination against disabled individuals and to prohibit employers and public entities from discriminating against qualified individuals with disabilities in job application, employment, and public accommodation. It also prohibits disparate treatment of individuals with disabilities in decisions such as hiring, firing, job advancement, and training.
But as ADA issues worked their way through the courts in the years that followed, Congress felt that this purpose was being eroded, as too much emphasis was being placed on the threshold determination of whether a condition satisfied a narrow definition of “disability.”
Congress passed the Amendments to reemphasize that the law is to be construed as covering a broad class of individuals with disabling conditions and to refocus analysis and litigation under the ADA away from minutiae surrounding threshold disability determinations and toward the overriding concern of protecting against discrimination. To achieve this, the Amendments expand the definition of disability, relax the standard of proof for those “regarded as” disabled, add detail regarding “substantial limitation on major life activities,” and eliminate consideration of mitigating measures in determining whether a condition is disabling.
Expanded Definitions
The original ADA defined “disability” as “a physical or mental impairment that substantially limits one or more major life activities,” or as having “a record of such an impairment,” or as “being regarded as having such an impairment.” This threshold had to be met before an individual was entitled to reasonable accommodation or to relief for discriminatory treatment. But the failure to define the key terms “substantially limits” and “major life activity” led to considerable focus on the breadth of these words and ultimately to the landmark decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2002). There, the U.S. Supreme Court interpreted the terms narrowly, holding that an employee claiming disability discrimination must meet a “demanding standard.” The Supreme Court took a similarly narrow view in Sutton v. United Airlines Inc. (1999), holding that the effect of adaptive devices must be considered when analyzing whether a person is disabled. If, for example, medication could lessen the effects of a condition, a person would be evaluated in his medicated state.
The Amendments explicitly reject the reasoning and holdings of Toyota and Sutton and impose broad standards of coverage. Although they leave intact the core definition of “disability,” they create rules of construction that require interpretation in favor of “broad coverage.” They further require conditions, which may be controlled through medications or adaptive devices, to be analyzed without the effects of ameliorative measures (except in the case of eye glasses or contact lenses). An impairment that is episodic or in remission will be considered a disability if it would substantially limit a major life activity when active. As for what “major life activities” may be considered in determining “disability,” the Amendments provide a non-exclusive list of examples. These include functions like performing manual tasks, caring for oneself, walking, and working. Some “major bodily functions” are also listed, including those involving the immune system, cell growth, digestion, and reproduction. Overall, these changes signal coverage for more short-term and less severe impairments.
Another major change is found in the Amendments’ treatment of a person “regarded as” (or perceived to be) disabled. A person can now meet this standard by showing that he “has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” The prior version required a person to show that he was regarded as having an actual disability, i.e., perceived as having an impairment that “substantially limits” one or more “major life activities.” Now, a person can prove discrimination by showing that adverse action was based on the perception of a far less severe and less limiting condition -- so long as the perceived condition is not “transitory” (meaning less than six months in duration) and “minor” (left undefined by the Amendments). The Amendments add, however, that an employer need not provide a reasonable accommodation to a person who fits the “regarded as” definition of disability.
This settles a prior split among federal circuit courts on the issue. Some circuits had held that the plain language of the ADA imposed liability on employers that failed to accommodate perceived disabilities even though the employee actually suffered no qualifying impairment. The Amendments now clarify this anomalous situation. For example, a person who is merely perceived by his employer as having suffered a disabling back injury (but, in fact, has no substantially limiting back problem) cannot demand a reasonable accommodation or sue the employer for failing to provide accommodation for his back. While the Amendments still bar disparate treatment based on the perception of a disability, Congress deemed it inappropriate to require accommodation based on an employer's misperception.
Likely Impact
These changes will undoubtedly make it easier for individuals to demonstrate they are “disabled” and, consequently, obtain ADA protection and avoid summary judgment. This will lead to an increase in the number of accommodation requests and disability discrimination claims, with the focus shifting away from the details of the alleged disability and onto an analysis of reasonable accommodation, undue hardship, and whether discrimination occurred.
The lower “regarded as” standard should also have dramatic impact. Far more lawsuits will include “regarded as” allegations due to the relaxed standard of proof. From an employer’s perspective, there is heightened importance in training supervisors and managers not to make comments or generate records that could be construed as perceiving a person as having a disabling condition.
While the Amendments clearly mandate coverage of a broader class of impairments, a person is still required to show that he is a qualified individual with a disability. This means that he must be able to perform the essential functions of his job with or without a reasonable accommodation. And he also has the burden of proving that he was not adequately accommodated or was discriminated against because of a disability. These basic requirements for ADA claimants remain unchanged.
