A growing trend, which began as early as 1993, was for federal courts to apply a so-called “medicated” standard to determine if a person is a qualified individual with a disability, entitled to protection against discrimination under the ADA. By using a medicated, as opposed to non-medicated, standard, an individual with a medical condition who with medication can substantially perform major life functions is not protected from discrimination under the ADA. In recent years, a growing number of courts appeared to be accepting the medicated standard approach. In the long-awaited companion decisions of Sutton v. United Air Lines, Incorporated [527 US 471 (1999)] and Murphy v. United Parcel Services, Incorporated [527 US 516 (1999)], the Supreme Court held that mitigating measures an employee takes, both positive and negative (such as drug therapy and other corrective measures), must be taken into consideration when analyzing whether an individual is disabled (whether the mental or physical impairment substantially limits a major life activity), and therefore entitled to protection under the ADA.

The Supreme Court also reaffirmed the EEOC’s long-stated position that individuals who are not actually disabled may nonetheless be protected by the ADA if an employer takes action against an employee or applicant based on the mistaken notion that an employee is disabled, even if he or she actually is not. Under Sutton, an individual is “regarded as” disabled if the employer mistakenly believes the employee has an impairment that substantially limits one or more major life activities. As to limitations involving the ability to perform a job, the mistaken perception of a restriction must apply to a class of jobs or broad range of jobs within a class, not just one particular job or specialized position. In January 2001, a federal court in Minnesota, citing Sutton, permitted a “regarded as” claim instituted by the EEOC to go to trial against a company that allegedly discriminated against an employee because of a mistaken perception of a disability after the employee suffered a heart attack. [16 Employment Discrimination Report (EDR) (BNA) 342 (Mar 7, 2001)]

Another recent issue is whether an individual self-certified as “totally disabled” for Social Security purposes can still maintain an ADA claim, which requires that the individual be able to perform the essential functions of a job, with or without accommodation. This apparent contradiction in position had split the circuits, and in Cleveland v. Policy Management Systems Corporation [526 US 795 (1999)], the U.S. Supreme Court ruled that self-certification of “total disability” for purposes of obtaining Social Security benefits was not a per se bar to the ability of an employee to file an ADA claim. The Court noted that to maintain the claim the employee would have to proffer sufficient explanation for the apparent contradiction.

In March 1999, the EEOC issued its long-awaited “Policy Guidance on Reasonable Accommodation under the ADA,” [12 Employment Discrimination Report (EDR) (BNA) 317 (Mar 3, 1999)] providing further instructions on the measures companies must consider when analyzing and implementing accommodations for qualified persons with disabilities.

With respect to emerging issues involving genetic testing, in March 2000 EEOC Commissioner Paul Miller reiterated the EEOC’s long-held position that discrimination based on genetic testing violates the “regarded as” prong under the ADA. [14 Employment Discrimination Report (EDR) (BNA) 432 (Mar 29, 2000) ] Recently, the Burlington Northern Santa Fe Railroad stated that it would stop the practice of genetically testing workers with carpal tunnel syndrome after the EEOC instituted litigation against the Railroad for violating the ADA. [16 Employment Discrimination Report (EDR) (BNA) 221 (Feb 14, 2001)]

Since the last supplement, the U.S. Supreme Court has issued a number of significant decisions involving the ADA.

In the case of Board of Trustees of the University of Alabama v. Garrett [121 S Ct 955 (2001)], the Court held that the ADA does not apply to states, finding that it was not Congress’ intent to abrogate the States’ Eleventh Amendment immunity when enacting the ADA. In the case of Toyota Motor Manufacturing Kentucky, Inc. v. Williams [122 S Ct 681 (Jan 8, 2002)], the Court held that for a carpal tunnel syndrome condition alleged to substantially impair the performance of manual tasks, to “substantially impair a major life activity,” (a requirement of the ADA), the condition must prevent or restrict the individual from performing activities that are of central importance to most people’s daily lives, not just impair the individual’s ability to perform the manual tasks of his or her job only. In US Airways, Inc. v Barnett [122 S Ct 1516 (Apr 29, 2002)], the Court held that a requested accommodation of a union worker that conflicts with seniority rules under a CBA is ordinarily sufficient to show that the requested accommodation is unreasonable, absent special circumstances.

In a recent U.S. Supreme Court decision, the Court held that reasonable accommodations under the ADA do not require employers to violate the employer’s seniority system. In US Airways, Inc v. Barnett [122 S Ct 1516 (2002)], a disabled employee, recently transferred to a physically undemanding position in the mailroom, was bumped from the position by a more senior employee under the employer’s seniority system. The disabled employee claimed he couldn’t be bumped under the ADA; the employer was required to allow him to keep the mailroom position as a reasonable accommodation. The Supreme Court disagreed, holding that, absent special circumstances, violating an employer’s seniority system is not a “reasonable accommodation.” [Id at 1524]

Under the ADA, the term “direct threat” is narrowly defined as a situation that poses “a significant risk to the health or safety of others which cannot be eliminated by reasonable accommodation.” Typically, direct threats arise in connection with contagious diseases and infections. The more interesting issue is whether someone who poses a direct threat only to himself or herself, but not to others, fits within the “direct threat” defense. In the case of Chevron USA Incorporated v. Echazabal [2002 WL 1270586 (2002)], the employee reportedly suffered from chronic hepatitis C and posed a direct threat to himself, but apparently not others. Although the employee was successful in the lower court, the U.S. Supreme Court held that, in accordance with EEOC regulations, “direct threat” includes a situation where someone poses a substantial risk of harm to themselves.

When an employer becomes aware of a situation that may pose a direct threat, it should not make the final determination. An employer may want to discharge an employee immediately because the employer fears that the medical condition of an employee poses a direct threat to the workplace. As is often the case, an employer seeking professional advice would find, however, that its belief is based on fear, not on any medically supportable opinion. If an employer is not cautious and acts solely upon its own uninformed lay opinions, it may violate the ADA.

In 1995, the U.S. Court of Appeals for the Ninth Circuit held that Arizona’s English-only rules for state employees were overly broad and in violation of the Fifth Amendment. The Arizona amendment requires all state employees to use English in performing their duties. The Ninth Circuit, in its ruling, found that language is an essential characteristic of national origin and that the amendment may mask discrimination against Hispanics. On appeal, the U.S. Supreme Court avoided the issue altogether, declaring the issue moot on technical grounds and dismissing the appeal. [See Arizonans for Official English v. Arizona, US S Ct No 95-974 (Mar 3, 1997)]

Deciding an appeal from yet another lawsuit filed to prevent the implementation of the English-only amendment in Arizona, on April 28, 1998 the Arizona Supreme Court held that the English-only amendment was unconstitutional under the Fourteenth and First Amendments of the U.S. Constitution. [See Ruiz v. Hall, Ariz, No CV-9G-0493-PR (Apr 28, 1998)] In its decision, the court noted that although English-only provisions had been adopted by 21 other states and 40 municipalities, Arizona’s amendment was “a sweeping injunction against speech in any language other than English.” As such, given the breath of the prohibition, the amendment could not withstand constitutional scrutiny under the Fourteenth and First Amendments. As the court stated, the English-only amendment “unconstitutionally inhibits the free discussion of government affairs” by depriving non-English-speaking people access to the government and its services and also deprives officials of the ability to communicate with non-English-speaking constituents. [See “State’s Top Court Strikes Down Amendment that Placed English Only Rule on Government,” 10 Employment Discrimination Report (EDR) (BNA) 566 (May 6, 1998)]

In 1999, the U.S. Supreme Court denied review of a petition filed by the Arizonans for Official English seeking to overturn the Arizona Supreme Court decision in April 1998, finally ending the 11-year battle to implement a voter-approved measure to make English the “official” language in Arizona. [12 Employment Discrimination Report (EDR) (BNA) 58 (Jan 13, 1999)]

In a recent class action case filed by the EEOC, a Texas university reportedly agreed to a settlement of $2.4 million to resolve charges that it subjected Hispanic housekeepers to abuse if caught speaking Spanish on the job by their supervisor. [See EEOC v. University of the Incarnate Word, WD Tex No SA-99-CV-109000 (16 Employment Discrimination Report (EDR) (BNA) 593 (Apr 25, 2001)]

establishes uniform standards for employee pension and welfare benefit plans (e.g., minimum participation requirements, accrual and vesting requirements, fiduciary responsibilities, standards of conduct, recordkeeping, and disclosure requirements). The recordkeeping and disclosure requirements of the act are significant, including the preparation and filing of summary plan descriptions and annual financial reports (Form 5500) and the furnishing of a summary annual report to participants and beneficiaries. In addition, the act creates numerous rights and obligations with regard to plan formation, plan termination and the managing and investing of plan assets. It also prohibits discrimination against plan participants and beneficiaries.

The act is comprehensive, pre-empting most state laws with regard to plans it covers. The Department of Labor enforces the act. It can assess civil penalties for failure to comply with recordkeeping and disclosure requirements and monetary penalties for engaging in prohibited transactions. Covered individuals also have a private right of action under the act in federal court, and a participant or beneficiary can bring civil action for civil or equitable relief or to enforce provisions of the law.

With respect to these issues, many employers include general policies within their employee handbooks that reserve the right of the employer to conduct reasonable monitoring, surveillance, or searches under a variety of circumstances, even though they have no immediate intention to do so, to attempt to do away with an employee’s expectation of privacy concerning such conduct. As it relates to searches of an employee’s desk or locker, some employers may wish to consider a policy similar to the following:

The company reserves the right to conduct a search on demand, of an employee’s locker, desk, packages, automobile, and/or other personal belongings, if the company believes, in its sole discretion, that such a search is warranted to investigate a suspected violation of its policies, including its drug and alcohol policy, and to seize and test any item the company believes may evidence a violation of its policies.

Although no employer should attempt to conduct such a search without first contacting its employment attorneys, the preceding policy will assist in defending the search against any claimed invasion of privacy.

Even notices cannot shield an employer whose intrusions are not supported by legitimate business justifications or go beyond that which is justified. For example, in Deal v. Sepsis [1992 US App LEXIS 31203 (8th Cir 1992)], an employer who engaged in clearly unnecessary and abusive monitoring and recording of personal phone calls was held liable for over $40,000 in damages, despite giving notice to its employees.

Moreover, some employers unwittingly clothe employees with reasonable expectations of privacy when such an expectation may not otherwise exist. This occurs most frequently with lockers and desks. Some employers, in attempting to prevent employees from rummaging through co-workers’ desks and lockers, post notices or policies prohibiting employees from such conduct, likening the locker or desk as the personal and private space of each employee. Although such policies may curtail employees from invading someone else’s personal space, if these policies are not drafted carefully they could be used to create a legitimate expectation of privacy, and the foundation for a breach of privacy claim.