Sunday, November 10, 2013

Fifth Circuit Determines ADAAA Claims Still Require Proof of a Disability

In enacting the amendments to the Americans with Disabilities Act, Congress made clear its intent that the question of whether an individual's impairment is a disability under the statute should not demand extensive analysis.  Congress also undeniably broadened the definition and coverage of the term "disability."

Many employment practitioners interpreted the amendments to mean that courts would no longer examine whether a plaintiff was actually disabled, and instead, would focus the analysis on whether there was discrimination in the adverse employment action.

In a decision issued on November 6, 2013, the Fifth Circuit confirmed that a plaintiff bringing disability discrimination and failure to accommodate claims under the Americans with Disabilities Act, as amended (ADAAA), is still required to prove he or she is disabled to prevail on the claims.  See Neely v. PSEG Texas, Limited Partnership, et al., No. 12-51074.

In Neely, the plaintiff appealed a judgment based on an adverse jury verdict, and complained the trial court erred in submitting predicate questions to the termination and failure to accommodate claims that asked whether the plaintiff was "a qualified individual with a disability."  The plaintiff argued the jury questions, as submitted, directly conflicted with the purpose of the amendments.

The Fifth Circuit disagreed, finding that the amendments in no way eliminated the need to prove a disability.  In the Court's words, "though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one." (Emphasis in original).  Finding no error in the jury questions, the Court affirmed the judgment.

Tuesday, November 5, 2013

The State of Texas Files Suit Against the EEOC Challenging the EEOC's Recent Enforcement Guidance Related to the Use of Arrest and Conviction Records in Employment Decisions

Yesterday, in a clear expression of the "Don't Mess with Texas" mentality, the State of Texas filed suit against the Equal Employment Opportunity Commission (EEOC) challenging the EEOC's April 2012 Enforcement Guidance titled, "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964."  See State of Texas v. EEOC, Case No. 5:13-CV-00255-C, In the United States District Court for the Northern District of Texas, Lubbock Division.

According to the Guidance, which reflects the EEOC's interpretation of Title VII, hiring policies or practices that categorically exclude all convicted felons create an unlawful "disparate impact" under Title VII, and employers must conduct "individualized assessments" of convicted felons' job applications.  If an employer refuses to hire a convicted felon, the employer has the burden to prove the felony disqualification is "job related and consistent with business necessity."

The Guidance also provides that, if an employer's (including a state employer's) exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

Where's the beef?

Many Texas agencies, including the Department of Public Safety, the Department of Aging and Disability Services, General Land Office, Lottery Commission, Parks and Wildlife Department, and others, enforce absolute bans on the hiring of felons.

For this reason, the State of Texas takes issue with the EEOC's position, and the State seeks the following relief:  (1)  a declaratory judgment and injunction that the State's "No-Felons Policies" do not constitute "unlawful employment practices"; (2) a declaratory judgment that the EEOC's Guidance is unlawful (and not just the portion related to state laws) because the EEOC exceeded its statutory authority; and (3) a declaratory judgment that the EEOC's interpretation of Title VII cannot abrogate State sovereign immunity.

What are the implications?

They could be far-reaching if the Court determines the Guidance is in fact unlawful.  Texas recruiters and employers could, for example, impose strict bans on the hiring of felons, regardless of whether those bans are "job related and consistent with business necessity," and place more weight on arrest records in the hiring process.

More than likely, employers in other states would jump on the Texas wagon and urge their courts to take similar action against the EEOC's Guidance.  Stay tuned for updates on this important development.


Saturday, November 2, 2013

The Fifth Circuit Rules "Reasonable Accommodations" Need Not Assist with an Essential Job Function


A "reasonable accommodation" under the Americans with Disabilities Act, as amended (ADA), should assist an employee with performing the essential functions of the job, right?

Not really, according to the Fifth Circuit's recent opinion, Feist v. State of Louisiana, No. 12-31065, issued on September 16, 2013.  In that case, an employee claimed her employer discriminated against her based on a disability by declining to provide a free, on-site parking space to accommodate her osteoarthritis.  The employer's rationale was that the denial of the parking space did not limit the employee's ability to perform the essential functions of the job.  The District Court agreed with the employer, but the Fifth Circuit vacated the decision on this issue and remanded the case.

Why is this decision so interesting?

Because it appears to contradict older, but not yet superseded, Guidance issued by the Equal Employment Opportunity Commission (EEOC). Specifically, the EEOC's Enforcement Guidance, Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, dated October 17, 2002, provides, "An accommodation also must be effective in meeting the needs of the individual.  In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position." (Emphasis added).  

Ignoring the EEOC's 2002 Guidance, the Fifth Circuit instead chose to focus on the statute's definition of a "reasonable accommodation," which includes "making existing facilities used by employees readily accessible to and usable by individuals with disabilities."  In so doing, it noted that the ADA "provides no indication that an accommodation must facilitate the essential functions of one's position."  

What is the practical implication of this ruling?

Think twice before denying an employee's request for a reasonable accommodation, particularly one that does not appear to be related to the employee's ability to perform the essential functions of the job.