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Discrimination on the Basis of
Disability
The Rehabilitation Act of 1973
The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the executive
branch of the federal government, federal contractors, and entities that receive federal funds.
Americans with Disabilities Act
Passed in 1990, The Americans with Disabilities Act (ADA) prohibits employers from discriminating
on the basis of disability. A disabled person is
Someone with a physical or mental impairment that substantially limits a major life activity or
the operation of a major bodily function, or
Someone who is regarded as having such an impairment.
As with Title VII, a plaintiff under the ADA must first file a charge with the EEOC. If the EEOC
decides not to file suit, the individual may do so himself.
Case: Allen v. Southcrest Hospital1
Facts: After some years as a medical assistant at SouthCrest Hospital, Alethia Allen requested a
transfer to work for a different physician in the same hospital. Unfortunately, Allen found her new job
to be much more stressful than the old one. Indeed, it was so stressful that she began suffering severe
migraine headaches several times a week. Prior to this new job, she had only had one migraine
headache in her life.
Ultimately, Allen resigned because of the migraines. The hospital asked that she stay on to cover for
some assistants who were on vacation. Allen agreed to do so and then decided she did not want to quit
after all. But before the hospital made a decision about whether she could stay, she left work one day to
seek treatment for a migraine at the emergency room. That night, the doctors in her practice decided
she could not continue in her job. After leaving SouthCrest, her migraines stopped.
Allen filed suit against SouthCrest for violating the ADA. During discovery, she testified that on most
days, she could care for herself and go to work, but that on days on which she took the migraine
medication, she would come home from work and immediately “crash and burn.” In other words, she
could not care for herself but instead would go straight to bed.
The trial court granted SouthCrest’s motion for summary judgment. Allen appealed.
Issue: Did Allen have a disability that interfered with one or more major life activities?
Excerpts from Justice Matheson’s Decision: [T]he evidence showed that Ms. Allen’s migraines, when
active and treated with medication, did not permit her to perform activities to care for herself in the
evenings and compelled her to go to sleep instead. But it was her burden to make more than a
conclusory showing that she was substantially limited in the major life activity of caring for herself as
compared to the average person in the general population.
Ms. Allen presented no evidence concerning such factors as how much earlier she went to bed than
usual, which specific activities of caring for herself she was forced to forego as the result of going to
bed early, how long she slept after taking her medication, what time she woke up the next day, whether
it was possible for her to complete the activities of caring for herself the next morning that she had
neglected the previous evening, or how her difficulties in caring for herself on days she had a migraine
compared to her usual routine of evening self-care.
1 U.S. App. LEXIS 25488,UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, 2011.
She also made no attempt to show how the alleged limitations created by her need to “crash and burn”
compared to the average person’s ability to care for herself in evenings after work. The average person,
presumably, does not have to go to bed immediately upon returning from work and/or to medicate
herself with somniferous medications to escape migraine symptoms. But this fact alone does not meet
Ms. Allen’s burden, since the average person also sleeps each evening and cannot care for herself while
asleep, and sometimes goes to bed early. In sum, Ms. Allen’s claim of a substantial limitation in the
major life activity of caring for herself was insufficiently developed and insufficiently supported by the
evidence.
We next address the major life activity of working. Ms. Allen admitted that her condition only affected
her work for Dr. Myers. [W]here an individual has a need to demonstrate that an impairment
substantially limits him or her in working, the individual can do so by showing that the impairment
substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes
as compared to most people having comparable training, skills, and abilities. Demonstrating a
substantial limitation in performing the unique aspects of a single specific job is not sufficient to
establish that a person is substantially limited in the major life activity of working.
The district court therefore properly granted summary judgment to SouthCrest.
Question: Were Ms. Allens’s migraine headaches considered an impairment?
Question: Why then was summary judgment granted to SouthCrest?
Question: Do you agree with this decision? Is it compassionate?
Answer: Ms. Allen could have provided evidence that the migraines limited a major life activity or
Additional Case: Toyota v. Williams2
Facts: When Ella Williams’s doctor diagnosed her with carpal tunnel syndrome, Toyota transferred her
from an assembly line position to a job in Quality Control Inspection Operations (QCIO). Employees in
this department typically performed four different jobs, but Williams was initially assigned only two
tasks. Toyota then changed its policy and required QCIO employees to rotate through all four jobs.
Williams began to perform the “shell body audit.” After applying oil to the outside of cars, she
visually inspected each car for flaws. To perform this task, she had to hold her hands and arms up
around shoulder height for several hours at a time.
A short while after beginning this job, she began to experience pain in her neck and shoulders. She
asked permission to perform only the two tasks that she could do without difficulty. Williams claimed
that Toyota refused this request. Toyota said that Williams simply began missing work regularly.
Ultimately, Williams’s doctor told her she should not do any work of any kind. Toyota fired her.
The Court of Appeals for the Sixth Circuit found that Williams was disabled under the terms of the
ADA because her impairments substantially limited her in the major life activity of performing manual
tasks. The Supreme Court granted certiorari.
Issues: Was Williams disabled, within the terms of the ADA? Did Toyota violate the ADA?
Holding: The Supreme Court reversed the appeals court, holding that to be disabled an individual must
have an impairment that prevents or severely restricts activities that are of central importance to most
people's daily lives. The impairment's impact must also be permanent or long-term. In this case, the fact
that the plaintiff could not work with hands and arms extended at or above shoulder levels for extended
periods of time, is not relevant because this is not an important part of most people's daily lives. As
long as the plaintiff can tend to her personal hygiene and carry out personal or household chores, she is
not disabled.
2 534 U.S. 184 (2002).
Question: Could Williams perform her job at Toyota?
Question: Could Williams operate without assistance in her personal life?
Question: Was she disabled, under the terms of the ADA?
Question: Do you agree with this decision? Is it compassionate?
Answer: The court seemed concerned that, if the ADA covered every worker with carpal tunnel
Question: Why didn’t Toyota let her continue to perform just the two jobs she was capable of
doing?
Accommodating the Disabled Worker
Once it is established that a worker is disabled, employers may not discriminate on the basis of
disability so long as the worker can, with reasonable accommodation, perform the essential functions
of the job. An accommodation is not reasonable if it would create undue hardship for the employer.
Relationship with a Disabled Person
An employer may not discriminate against someone because of his relationship with a disabled person.
For example, an employer cannot refuse to hire an applicant because he has a disabled child or a
spouse with cancer.
Mental Disabilities
Under EEOC rules, physical and mental disabilities are to be treated the same.
Disparate Treatment and Disparate Impact
Both disparate treatment and disparate impact claims are valid under the ADA. The steps in a disparate
treatment case are:
Step 1. The plaintiff must offer prima facie evidence that the employer discriminated because of his
disability.
Step 2. The employer must then offer a legitimate, non-discriminatory reason for its action.
Step 3. To win, the plaintiff must now prove that the employer intentionally discriminated. She
may do so either by showing that (1) the reasons offered were simply a pretext, or (2) that a
discriminatory intent is more likely than not.
Hostile Work Environment
An employee may bring a claim under the ADA if she is subjected to a hostile work environment
because of her disability.
Genetic Information Nondiscrimination Act
Suppose you want to promote someone to CFO, but you know that her mother and sister both died
young of breast cancer. Is it legal to consider that information in making a decision? Not since
Congress passed the Genetic Information Nondiscrimination Act (GINA). Under this statute,
employers (with 15 or more workers) may not require genetic testing or discriminate against workers
because of their genetic makeup.
Additional Case: Sutton v. United Airlines, Inc.3
United Airlines required its pilots to have uncorrected vision of at least 20/100. It refused to hire twin
sisters with 20/200 vision, even though their vision could be corrected to 20/20. The sisters sued under
the ADA, claiming that United Airlines was discriminating against them because of a disability.
The Supreme Court held that the ADA did not apply because the sisters were not disabled.
Although they could not satisfy the requirements of a particular job, airline pilot, they were not
substantially limited in a major life activity–namely, working. There were many other jobs they could
hold, such as flying instructor.4
Question: What is a disabled person?
Question: The twin sisters had 20/200 vision. Were they disabled?
Question: Could you argue that they were not disabled?
Question: But didn’t their impairment prevent them from getting the job they wanted?
Answer: It may have prevented them from getting that particular job, but they were eligible for
Question: How many Americans currently have some disability as defined by the ADA?
Question: How many people have correctable disabilities?
Answer: According to the Supreme Court, more than 160 million Americans have a correctable
Enforcement
Employment laws provide plaintiffs with different enforcement options.
People bringing a claim under the Constitution must file suit on their own.
For plaintiffs alleging racial discrimination, the Civil Rights Act of 1866 offers substantial
advantages over Title VII:
A four-year statute of limitations
Unlimited compensatory and punitive damages (which, in one case, amounted to $7
million)
Applicability to all employers, not just those with 15 or more employees
The Rehabilitation Act of 1973 is enforced by the EEOC (for claims against the executive
branch of the federal government), the Department of Labor (for claims against federal
contractors), and the Department of Justice (for claims against entities that receive federal
funds).
The EEOC is the federal agency responsible for enforcing Title VII, the Equal Pay Act, the
Pregnancy Discrimination Act, the ADEA, the ADA, and GINA.
31999 U.S. LEXIS 4371.
4
Multiple Choice Questions
1. Gregg Young, the CEO of BJY Inc., insisted on calling Mamdouh El-Hakem “Manny” or “Hank”
even when El-Hakem asked him not to. El-Hakem was of Arab heritage. Young argued that a
“Western” name would increase El-Hakem’s chances for success and would be more acceptable to
BJY’s clientele. Does this behavior violate the law?
(a) Yes, Young violated Title VII by discriminating against El-Hakem on the basis of his national
origin.
(b) Yes, Young was creating a hostile work environment.
(c) Both (a) and (b).
(d) No, Manny is just a nickname. No harm was intended and, indeed, no harm resulted.
(e) No, because customers did prefer a Western name.
2. The CEO of BankTwo realized that not one single officer of the bank was female or minority. He
announced that henceforth, the bank would only hire people in these two groups until they made up
at least 30 percent of the officers. Is this plan legal?
(a) Yes, voluntary affirmative action plans are always legal.
(b) Yes, because fewer than 20 percent of the officers are female or minority.
(c) No, to be legal, the goal of an affirmative action plan cannot be greater than 20 percent female
or minority.
(d) No, the plan is too unfair to white men, who have no chance of being hired for a long time.
3. When Allain University was looking for a diversity officer, it decided it would only hire a person
of color. Is this decision legal?
(a) Yes, color is a BFOQ for this position.
(b) No, color is never a BFOQ, but race could be.
(c) No, neither race nor color can be a BFOQ.
(d) No, race and color can be a BFOQ, but is not in this situation. A person does not have to be a
member of a minority group to promote diversity.
4. Ralph has worked as model builder at Snowdrop Architects for 30 years. The firm replaces him
with Charlotte who is only 24 and willing to work for 30% less than his salary. The firm never
offered to let him stay for less pay. When he left, one of the partners told him, “Frankly, it’s not a
bad thing to have a cute young person working with the clients.” Which of the following statement
is true?
(a) Snowdrop is liable because it had an obligation to offer Ralph the lower salary before firing
him.
(b) Snowdrop is liable because it is illegal to replace an older worker with a younger one just to
save money.
(c) Snowdrop is liable because age was a factor in Ralph’s firing.
(d) Snowdrop is liable under Title VII because it replaced an old man with a young woman.
(e) Snowdrop is not liable because age was not the deciding factor in Ralph’s firing.
5. During chemotherapy for bone cancer, a delivery person is exhausted, nauseous and weak. He has
asked permission to come in later, work a shorter day and limit his lifting to 10 pounds. Delivery
people typically carry packages of up to 70 pounds. Does Vulcan, his employer, have the right to
fire him?
(a) Vulcan must create a new position so that the employee can do something else.
(b) Vulcan must transfer the employee to another position but only if one is vacant and he is able
to perform it.
(c) Vulcan can fire the man because none of his major life activities have been affected.
(d) Vulcan can fire the man because he cannot perform the essential functions of his job.
(e) Vulcan can fire him because he is not disabled -- once the chemotherapy treatments end, he
will feel fine again.
Essay Questions
1. Disney World and Abercrombie & Fitch both fired female employees who insisted upon wearing a
Muslim headscarf because such apparel violated the companies’ appearance policies. Can these
employers make reasonable accommodation for this religious practice? Abercrombie also fired a
salesperson who converted to a Christian religion that forbade her from showing skin. When she
showed up for work in an ankle-length skirt, her manager told her she had to either wear jeans or
short skirts with leggings, but she refused. Did Abercrombie violate Title VII in this case?
Answer: In the case involving the Christian religion, the court denied Abercrombie’s motion
2. In the 2008 recession, Roger lost his job as a comptroller. Desperate for work after a year of
unemployment, he began to apply for any accounting job at any company. But no one would hire
him because he was “over-qualified and over-experienced.” He repeatedly explained that he was
eager to fill the job that was available. Have these companies that refused to hire Roger violated
the ADEA?
Answer: In a similar case, the court ruled that, while qualifications and experience are
3. More than 90 percent of employers conduct criminal background checks, and many of these
automatically exclude any job applicant with a criminal record. Is this practice a violation of the
law?
Answer: The EEOC recently ruled that, while employers may legally consider criminal records
4. The Lillie Rubin boutique in Phoenix would hire only women to work in sales because fittings and
alterations took place in the dressing room or immediately outside. The customers were buying
expensive clothes and demanded a male-free dressing area. Has the Lillie Rubin store violated Title
VII? What would its defense be?
Answer: Customer preference is a bona fide occupational qualification only in cases like this
where gender privacy is an issue. If there was no sales position that a male could fill due to
5. FedEx refused to promote José Rodriguez to a supervisor’s position because of his accent and
“how he speaks.” Is FedEx in violation of the law?
Answer: The Sixth Circuit Court of Appeals ruled that this behavior could be illegal discrimination
Discussion Questions
1. In the Griggs disparate impact case, Duke Power based employment decisions on written tests.
Why do employers use these types of tests? When are they appropriate in the hiring or promotion
process?
2. In disparate treatment cases, the plaintiff must show that the defendant intentionally discriminated,
but not in disparate impact cases. Is it fair to hold employers liable when they have not engaged in
intentional wrongdoing?
Answer: Disparate impact cases focus on institutional barriers to equal opportunity. Job
3. Generally, the BFOQ defense does not apply to customer preference. But recently, some clients
have been pressuring their law firms to staff their cases with female and minority lawyers. If a firm
does so, would the BFOQ defense be valid? Should it be?
4. Pam Huber worked at Wal-Mart as a grocery order filler, earning $13 an hour. While on the job, she
suffered a permanent injury to her right arm and hand. Both she and Wal-Mart agreed that she was
disabled under the ADA. As a reasonable accommodation, she asked for a job as a router, which
was then vacant. Although she was qualified for that job, she was not the most qualified. Wal-Mart
filled the job with the most qualified person. It offered Huber a position as a janitor at $6.20 per
hour. Did Wal-Mart violate the ADA?
Answer: The court ruled that Wal-Mart was not in violation of the ADA. An employer is not
5. Mary Ann Singleton was the librarian at a maximum security prison located in Tazewell County,
Virginia. About four times a week, Gene Shinault, assistant warden for operations, insistently
complimented Singleton; stared at her breasts when he spoke to her; on one occasion, he measured
the length of her skirt to judge its compliance with the prison's dress code and told her that it
looked "real good"; constantly told her how attractive he found her; made references to his physical
fitness, considering his advanced age; asked Singleton if he made her nervous (she answered
"yes"); and repeatedly remarked to Singleton that if he had a wife as attractive as Singleton, he
would not permit her to work in a prison facility around so many inmates. Shinault told Singleton’s
supervisor in her presence, "Look at her. I bet you have to spank her every day." The supervisor
then laughed and said, "No. I probably should, but I don't." Shinault replied, "Well, I know I
would." Shinault also had a security camera installed in her office in a way that permitted him to
observe her as she worked. Singleton reported this behavior to her supervisor, who simply
responded, "Boys will be boys." Did Shinault sexual harass Singleton? Whether or not Shinault
violated the law, what ethical obligation did Singleton’s supervisor have to protect her from this
type of behavior?
Answer: The Fourth Circuit Court of Appeals ruled that this behavior did not constitute sexual
harassment. While boorish and offensive, it was not sexual in nature. Shinault never requested a
6. Ronald Lockhart, who was deaf, worked for FedEx as a package handler. Although fluent in
American Sign Language, he could not read lips. After 9/11, the company held meetings to talk
about security issues. Lockhart complained to the EEOC that he could not understand these
discussions. FedEx fired him. Has FedEx violated the law?
Answer: The EEOC ruled that FedEx should have provided a sign-language interpreter during
Bonus Exam Strategy:
Question: Janet recently joined the Freewill Pentecostal Holiness Church and as a member, she is not
allowed to wear pants. Her employer, Sal's Seafood Sales and Distributing, requires all
employees to wear coverall (overalls) provided by the company for sanitary reasons. Although
Janet wore the uniform prior to joining the church, she now refuses to wear the coveralls. She
explained to Sal that wearing pants was against her religion. Sal offered to allow her to split the
seams on the coveralls and wear it over her dress. Janet refused. Sal fired her for insubordination.
Does Janet have a claim against Sal’s?
Strategy: This question is an employment discrimination issue. We know that under Title VII, an
employer may not discriminate based on race, color, national origin, gender, or religion. When a
religious belief conflicts with an employment policy, the employer has a duty to reasonably
accommodate the employee’s belief, unless so doing would cause an undue hardship for the
employer.
Result: Janet has a conflict with her belief and the requirement to wear the coveralls. She
explained this to Sal. Sal offered to accommodate Janet’s beliefs by allowing her to split the
seams on the coveralls so that they could be worn over her dress, however Janet refused. Sal’s
offer to accommodate Janet’s beliefs seems reasonable: it would allow her to abide be her
religious belief in not wearing pants, while fulfilling the sanitary requirements of her job. Janet
does not have a claim against Sal’s.
