MED-TOX in Court

Krycicki v. Salem County Sheriff's Department

Nagel v. City of Boston Fire Department

California Department of Fair Employment & Housing v. San Diego County Sheriff's Department

Johnson v. State of Connecticut

US Supreme Court

CHEVRON U.S.A v. ECHAZABAL  

The United States Supreme Court held unanimously (opinion by Souter) that the threat-to-self defense reasonably falls within the general job-related and business necessity standard of the Americans with Disabilities Act of 1990 (ADA) and permits the EEOC regulation authorizing employers to deny a job to a disabled individual because performance on the job would endanger his own health or safety. According to the Court, medical screening decisions "must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or best available objective evidence, and upon an expressly individualized assessment of the individuals present ability to safely perform the essential functions of the job, reached after considering, among other things, the imminence of the risk and the severity of the harm portended."

This decision upholds the EEOC's regulations allowing an employer to screen out persons who have disabilities if the work itself could pose a direct threat to the health or safety of the individual. An important part of this decision is the Court's statement that safe performance can be an essential function of the job. EEOC attorneys have argued that safe performance is not an essential function of the job in some court cases. For example, in a case where an individual had limited vision and wanted to drive a commercial vehicle, the EEOC argued that the essential function of the job was to drive -- not drive safely as the employer expected. This 9-0 decision will make it much more difficult for the EEOC to reduce safety standards in the workplace.

US AIRWAYS v. BARNETT. 

The United States Supreme Court held (5-4) that altering a seniority system for the purposes of accommodating a disabled employee would be an "undue hardship" to and employer and other company employees. An employee seeking accommodation could present evidence that showed special circumstances for an exception to the system. Robert Barnett injured his back while working for U.S. Airways, Inc. (U.S. Airways) as a cargo handler. Barnett was transferred to a mailroom position that was not as physically demanding. The mailroom position later became open for bidding based on seniority. Barnett lost his job to a senior employee when U.S. Airways refused to accommodate him. U.S. Airways moved for summary judgment contending that the accommodation that Barnett sought would place an "undue hardship" on the company because of the well-established seniority system. The District Court granted the summary judgment. The Ninth Circuit reversed, stating that seniority was merely a factor to be considered in a case-by-case analysis.

The United States Supreme Court vacated the Court of Appeals opinion and remanded the case, holding that the alteration of a seniority system to accommodate a disabled employee is an "undue hardship" as a matter of law, but that the employee could still present evidence showing special circumstances for an exception to the seniority system. The court reasoned that the seniority system provided uniform advancement for all employees based on objective standards. The Court found nothing in the ADA that suggested that Congress meant to undermine seniority systems. Therefore, a disabled employee will bear the burden of showing special circumstances for exception to a seniority system.

 The Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 328, 42 U.S.C. § 12101 et seq., prohibits certain employers from discriminating against individuals on the basis of their disabilities. See §12112(a). Petitioners challenge the dismissal of their ADA action for failure to state a claim upon which relief can be granted. We conclude that the complaint was properly dismissed. In reaching that result, we hold that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment, including, in this instance, eyeglasses and contact lenses. In addition, we hold that petitioners failed to allege properly that respondent “regarded” them as having a disability within the meaning of the ADA.

ALBERTSON'S, INC.v.HALLIE KIRKINGBURG 

The ADA requires monocular individuals, like others claiming the Act’s protection, to prove a disability by offering evidence that the extent of the limitation on a major life activity caused by their impairment is substantial. The Ninth Circuit made three missteps in determining that Kirkingburg’s amblyopia meets the ADA’s first definition of disability, i.e., a physical or mental impairment that “substantially limits” a major life activity, 42 U.S.C. §12101(2)(A). First, although it relied on an Equal Employment Opportunity Commission regulation that defines “substantially limits” as requiring a “significant restriction]” in an individual’s manner of performing a major life activity, see 29 CFR § 1630.2(j)(ii), the court actually found that there was merely a significant “difference” between the manner in which Kirkingburg sees and the manner in which most people see. By transforming “significant restriction” into “difference,” the court undercut the fundamental statutory requirement that only impairments that substantially limit the ability to perform a major life activity constitute disabilities. Second, the court appeared to suggest that it need not take account of a monocular individuals ability to compensate for the impairment, even though it acknowledged that Kirkingburg’s brain had subconsciously done just that. Mitigating measures, however, must be taken into account in judging whether an individual has a disability, Sutton v. United Airlines, Inc., ante, at ___, whether the measures taken are with artificial aids, like medications and devices, or with the body’s own systems. Finally, the Ninth Circuit did not pay much heed to the statutory obligation to determine a disability’s existence on a case-by-case basis. See 42 U.S.C. §12101(2). Some impairments may invariably cause a substantial limitation of a major life activity, but monocularity is not one of them, for that category embraces a group whose members vary by, e.g., the degree of visual acuity in the weaker eye, the extent of their compensating adjustments, and the ultimate scope of the restrictions on their visual abilities. Pp. 6—11.

An employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation does not have to justify enforcing the regulation solely because its standard may be waived experimentally in an individual case. Pp. 11—22.

        (a)  Albertsons’ job qualification was not of its own devising, but was the visual acuity standard of the Federal Motor Carrier Safety Regulations, and is binding on Albertsons, see 49 CFR § 391.11. The validity of these regulations is unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations. Were it not for the waiver program, there would be no basis for questioning Albertsons’ decision, and right, to follow the regulations. Pp. 11—14.

        (b)  The regulations establishing the waiver program did not modify the basic visual acuity standards in a way that disentitles an employer like Albertsons to insist on the basic standards. One might assume that the general regulatory standard and the regulatory waiver standard ought to be accorded equal substantive significance, but that is not the case here. In setting the basic standards, the Federal Highway Administration, the DOT agency responsible for overseeing the motor carrier safety regulations, made a considered determination about the visual acuity level needed for safe operation of commercial motor vehicles in interstate commerce. In contrast, the regulatory record made it plain that the waiver program at issue in this case was simply an experiment proposed as a means of obtaining data, resting on a hypothesis whose confirmation or refutation would provide a factual basis for possibly relaxing existing standards. Pp. 15—20.

        (c)  The ADA should not be read to require an employer to defend its decision not to participate in such an experiment. It is simply not credible that Congress enacted the ADA with the understanding that employers choosing to respect the Government’s visual acuity regulation in the face of an experimental waiver might be burdened with an obligation to defend the regulation’s application according to its own terms.

MURPHY v. UNITED PARCEL SERVICE, INC.  

Despite petitioner’s high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, respondent fired him on the belief that his blood pressure exceeded the DOT’s requirements. Petitioner brought suit under Title I of the Americans with Disabilities Act of 1990 (ADA), the District Court granted respondent summary judgment, and the Tenth Circuit affirmed. Citing its decision in Sutton v. United Air Lines, Inc., 130 F.3d 893, 902, aff’d, ante, p. ___, that an individual claiming a disability under the ADA should be assessed with regard to any mitigating or corrective measures employed, the Court of Appeals held that petitioner’s hypertension is not a disability because his doctor testified that when medicated, petitioner functions normally in everyday activities. The court also affirmed the District Court’s determination that petitioner is not “regarded as” disabled under the ADA, explaining that respondent did not terminate him on an unsubstantiated fear that he would suffer a heart attack or stroke, but because his blood pressure exceeded the DOT’s requirements for commercial vehicle drivers.

Held:

    1.  Under the ADA, the determination whether petitioner’s impairment “substantially limits” one or more major life activities is made with reference to the mitigating measures he employs. Sutton, ante, p. ___. The Tenth Circuit concluded that, when medicated, petitioner’s high blood pressure does not substantially limit him in any major life activity. Because the question whether petitioner is disabled when taking medication is not before this Court, there is no occasion here to consider whether he is “disabled” due to limitations that persist despite his medication or the negative side effects of his medication. P. 4.

    2.  Petitioner is not “regarded as” disabled because of his high blood pressure. Under Sutton, ante, at ___, a person is “regarded as” disabled within the ADA’s meaning if, among other things, a covered entity mistakenly believes that the person’s actual, nonlimiting impairment substantially limits one or more major life activities. Here, respondent argues that it does not regard petitioner as substantially limited in the major life activity of working, but, rather, regards him as unqualified to work as a UPS mechanic because he is unable to obtain DOT health certification. When referring to the major life activity of working, the Equal Employment Opportunity Commission (EEOC) defines “substantially limits” as “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.” 29 CFR §1630(j)(3)(i). Thus, one must be regarded as precluded from more than a particular job. Assuming without deciding that the EEOC regulations are valid, the Court concludes that the evidence that petitioner is regarded as unable to meet the DOT regulations is not sufficient to create a genuine issue of material fact as to whether he is regarded as unable to perform a class of jobs utilizing his skills. At most, petitioner has shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle–a specific type of vehicle used on a highway in interstate commerce. He has put forward no evidence that he is regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require DOT certification. Indeed, it is undisputed that he is generally employable as a mechanic, and there is uncontroverted evidence that he could perform a number of mechanic jobs. Consequently, petitioner has failed to show that he is regarded as unable to perform a class of jobs. Rather, the undisputed record evidence demonstrates that petitioner is, at most, regarded as unable to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner is regarded as substantially limited in the major life activity of working.

TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. v. WILLIAMS  

In order to qualify as a person with a disability under the Americans with Disabilities Act, the claimant must demonstrate that he has a substantial limitation in one, or more, major life activities. These activities must be those that "are of central importance to most people’s daily lives." The limitations cannot be limited to merely the inability to perform some manual tasks in a particular job. Justice O'Connor, writing for the majority stated,

In this case, repetitive work with hands and arms extended at or above shoulder levels for extended periods, the manual task on which the Sixth Circuit relied, is not an important part of most people’s daily lives. Household chores, bathing, and brushing one’s teeth, in contrast, are among the types of manual tasks of central importance to people’s daily lives, so the Sixth Circuit should not have disregarded respondent’s ability to do these activities.

This decision further narrows the scope of the ADA to a group that might be considered the "truly disabled."

EXXON v. EEOC  

EXXON developed a policy prohibiting the employment of any person who had undergone treatment for substance abuse from safety sensitive positions. The EEOC challenged this policy on the grounds that the blanket exclusion violated the ADA. The EEOC claimed the policy was not consistent with the individualized assessment approach. The EEOC also argued that in order to exclude any particular individual, EXXON had to show there was a direct threat when it imposed is safety qualification standard. On appeal, to the Fifth Circuit, the court ruled that employers need not establish the existence of a direct threat in each individual case. "In cases where an employer has developed a general safety requirement for a position, safety is a qualification standard no different from other requirements defended under the ADA's business necessity provision." Determining whether a safety-base standard is a business necessity involves measuring the magnitude of potential harm and the likelihood of its occurrence.

Physical Ability Test Cases

LANNING v. SEPTA

Although the initial validation study conducted by SEPTA's consultant contained flaws, the job relatedness of the SEPTA test was upheld in this District Court decision. The case is well worth reading given the depth of discussion regarding the issues of physical ability testing under Title VII.

US v. SEPTA

In appealing the Lanning decision, the Justice Department succeeded in having the District Court decision overturned and remanded.  This Third Circuit ruling contains the current thinking of the US Department of Justice on physical ability testing. The decision is unusual in many respects.  For example, the EEOC appears to endorse gender-based "fitness requirements" over validated physical ability tests.

The Court and the EEOC also question whether making arrests is even a requirement of the job of police officer.  The Court also discusses the need to hire only persons minimally competent for the job, since more physical ability is not related to job performance.   The decision threatens virtually all top down selection systems in the US and illustrates the extremes the EEOC will go to in order to achieve equal results from valid tests that reliably demonstrate group differences in performance. 

LANNING v. SEPTA - Decision on remand

Following another hearing of evidence, the District Court held that SEPTA had met its entire burden of proof in the case in the establishment of the 12 MET aerobic capacity requirement. In conforming to the constraints placed on it by the Third Circuit Court of Appeals, the court again concluded that SEPTA had successfully defended its use of the physical ability test.

EASTERLING v. STATE OF CONNECTICUT DEPARTMENT OF CORRECTIONS

Wisconsin Arbitration Case - ADA

Arandell-Schmidt Corporation v. Graphic Communications International Union

The Arbitrator rejected the use of medical standards that precluded individual determination. The Court held: 

Employers frequently generalize standards and apply those generalizations to individual employees. No-fault attendance programs, for example, can impose sanctions on workers for absences without regard to the individual reasons for absence. In those cases, the employer is responding to actual conduct and to the already realized impact on the employer's operations.

Irrespective of the reason for the absence, the impact is identical and the response is therefore identical. However, the generalized standards under an attendance control program do not attempt to predict future absences and dismiss an employee before he can be absent. 

By contrast, the Occu-Med system attempts to predict the future "injury conduct" of an employee and imposes a sanction, albeit for non-disciplinary reasons, based upon the estimated odds of reinjury. Given the rigid generalized standards of the Occu-Med system as applied by Dr. Mayr, an employee has no opportunity to take individual action to protect the bundle of economic rights and interests represented by his job. 

All medical opinions are predictive to some extent, and all medical disqualifications have an element of preemption. The question in these cases is the level of proof needed before the Company may take concrete action against an employee in order to avoid a speculative cost.

Simply citing a generalized standard without showing that it is accepted by the medical community as valid -- or at least that it mirrors the considered and informed medical judgment of the Company's doctor as to this patient's condition -- constitutes no proof at all.