Add. Case: Karraker v. Rent-A-Center (7th Cir., 2005)–The Karraker brothers worked for
Rent-A-Center (RAC). To be eligible for promotion, employees were required to take the APT
Management Trainee-Executive Profile, a set of nine tests designed to measure math, language
skills, interests and personality traits. The test not only reported on whether a person is
comfortable in a fast-paced office, but also the likelihood that the person could suffer from
depression, paranoia, and other mental disorders. Based on their scores, the Karrakers were not
considered for promotion. They sued, contending that the use of personality disorder tests violate
the ADA. The district court dismissed the suit. The Karrakers appealed.
Decision: Reversed in part. The administration of the Minnesota Multiphasic Personality
Inventory (MMPI) as part of a management test was a medical examination and so violated the
Reasonable Accommodation—Employers must make reasonable accommodations for persons
with disabilities. This is a rather fuzzy standard. Employers do not have to hire a disabled person
if doing so would inflict an undue hardship on the employer. However, in cases where
accommodation would involve a small amount of money or physical effort, the employer is
legally compelled to accommodate the disabled person. EEOC guidelines state that
accommodation can include job restructuring, modified work schedules, modified equipment or
facilities, or providing qualified readers or interpreters.
CASE: Keith v. County of Oakland (6th Cir. 2012)—Keith, who is deaf, based on
qualifications, applied to be a lifeguard for Oakland pools. The supervisor of lifeguards approves
his hiring with little accommodation needed for him to perform his duties. A consultant objected
that the accommodation might not work, so the job offer was withdrawn. Keith sued and the
district court held for the county; Keith appealed.
Decision: Reversed. Keith is disabled. There is no question that deaf people can serve as
Questions: 1. Is it an unreasonable expense for an employer to hire a qualified consultant to help
evaluate the ability of a disabled person to perform a job?
In general, no it is not considered unreasonable. Employers can protect themselves by having
qualified parties do evaluation rather than expect every manager or HR person be able to
2. Would the accommodations provided by Stavale not mean that other lifeguards would have to
take on extra burdens?
As Stavale noted, such things would be trivial. Other employees may indeed have to do small
Add. Case: Tyler v. Ispat Inland Inc. (7th Cir., 2001)–Tyler worked for Ispat Inland’s Plant 2
from 1979 until the 1990s, when he began to complain that he was threatened by coworkers. He
claimed they wanted to burn down his house and poison him. A psychiatrist diagnosed him as
suffering from “Atypical Depression R/O Delusional Disorder Persecutory.” He prescribed an
antidepressant. When Tyler returned to work he was reassigned by Ispat, at the same wages and
benefits, to work at Plant 7. He complained that workers there were persecuting him. He refused
to take the medication he was prescribed. His psychiatrist diagnosed him as suffering from
“paranoid disorder.” Tyler demanded to be reassigned to Plant 2 to escape the workers at Plant
7. He demanded a special parking place because he thought workers were tampering with his
car. The company refused; he sued for failure to accommodate his disability. The court
dismissed; Tyler appealed.
Decision: Affirmed. Ispat made a reasonable accommodation when the company transferred
Tyler from Plant 2 to Plant 7. No reasonable explanation was ever provided as to how his mental
disability would be relieved by transferring him back to Plant 2, where the same workers he had
Add. Case: Doe v. District of Columbia (D. D.C., 1992) Background: John Doe applied to be a
firefighter with the City of Washington, D.C. The city required firefighters to take a physical
exam, which Doe took and passed; the city offered him a job. Soon after, Doe informed the fire
department that he was HIV-positive, though asymptomatic (that is, he would sometimes
manifest certain conditions that were evidence of the infection). The job offer was withdrawn.
Doe sued, alleging employment discrimination based on his disability.
Decision: Doe presented evidence that asymptomatic HIV-positivity does not affect a person’s
physical capabilities; he could perform all the functions of a firefighter. The court found that the
conclusion reached by the police and fire board—that employing the plaintiff would pose a direct
threat to the health and safety of others—was “not credible.” Because the plaintiff was a person
Add. Case: Doe v. Boeing (S.Ct., Wash., 1993) Background: Doe was a biological male, who
wanted to have a sex change operation. Doe informed his employer of his intent to undertake the
operation. The employer informed the plaintiff that during the time he remained a biological
male he was required to dress according to unwritten company dress policy for males. Doe was
also told he could not use women’s restrooms at work while he remained male. Doe disregarded
these instructions and dressed in a “feminine” manner. Doe was fired for willful violation of
company policy and sued, alleging discriminatory employment practices under the Washington
state statute prohibiting discrimination against the disabled (which is like the ADA).
Decision: The court noted that this case presented two questions. First, was Doe’s condition,
known as “gender dysphoria” a disability under the meaning of the Washington statute? Second,
was if the employer had to provide reasonable accommodation to this plaintiff. The relevant
inquiry when determining whether a disability exists is a) does the victim have an abnormal
condition and b) did the employer discriminate on the basis of that abnormality? The court held
Preemployment Guidance—EEOC issued ADA regulations concerning pre-employment
inquiries. In general, before an employment offer had been made, employers may not ask for
medical details or gather such information, unless the problem is specifically related to the
ability to do a job.
Note: Employers can take several steps to help insure compliance with the ADA. These include:
refraining from questioning job applicants about disabilities; requiring medical exams only after
a conditional offer of employment has been made; providing clear job descriptions so applicants
know what they will be required to do; and making sure disabled persons are not discriminated
against in the provision of company benefits.
Issue Spotter: Accommodating Disabilities
The ADA does not require employers to go to extremes for accommodation. To comply with the
law means showing proportionality (a sense of proportion) to the affected person and the
organization. The interests of the disabled employee must be taken into account along with the
interests of the company. An accommodation is not reasonable if it is too expensive, too
disruptive or too difficult to implement. None of that is real clear–it is mostly good sense. One
way to think of it is an obligation to provide a Chevy or a Ford, not a BMW. Some policies may
have to be amended. No animals does not include guide dogs for the blind. Reassigning certain
duties among employees can make a job accessible–such as eliminate certain job functions that
are difficult due to extreme arthritis. Most compliance is sensible small things that make life on
the job tolerable for the disabled.
Violations by Employers—Employers who fail to make reasonable accommodations are most
likely to violate the ADA. Employers who are found to be in violation of the Act may be ordered
by a court to make these accommodations. Examples of employer policies that are likely to
violate the Act include: using standardized tests to screen out the disabled; refusing to hire
persons with past drug or alcohol problems; refusing to hire someone with AIDS; and not hiring
someone because the employer’s facilities do not accommodate wheelchairs. The first federal
case brought under the ADA involved a company executive with brain cancer who was fired
from his position. The EEOC successfully sued his employer on his behalf.
Add. Case: EEOC v. AIC Security (7th Cir., 1995)–This case appears to be the culmination of
the first ADA suit. Charles Wessel died by the time of this decision from brain and lung cancer.
Wessel was executive director of AIC when his cancer was discovered. During treatment for the
terminal illness, he continued to work, but was fired in 1992 by AIC’s owner. Wessel sued; a jury
awarded $22,000 back pay, $50,000 compensatory damages, $250,000 punitive damages against
AIC, and $250,000 punitive damages against AIC’s owner. District court reduced the awards to
about $200,000, the maximum amount allowed by the statute.
Decision: AIC’s owner could not be held personally liable under the ADA; the company as
employer was liable. This holding is consistent with the majority of the circuits, which hold that
there is no individual liability under Title VII or the ADEA, and, hence, under ADA. The amount
Add. Info.: How much employers must do to provide reasonable accommodation is not
completely clear. In the 9th Circuit case, Buckingham v. U.S., the court ruled that to allow an
employee to transfer from one location (Mississippi) to another requested location (Los
Angeles), because better medical treatment is available there to assist in his AIDS treatment, is
not unreasonable. The employer, the Postal Service, has many employees move around, so this
would not impose high costs on anyone else in the system. Reasonable accommodation is not just
non-discrimination; there is an element of affirmative assistance involved.
Discussion Question
Many businesses set grooming standards for employees. The motivation for standards usually
involves the business’ concern for its “public image.” Such requirements are usually legal, but
cases have gone both ways. For example, one case held that a company policy prohibiting certain
kinds of mustaches and bushy hair was illegal. The court reasoned that although the policy was
neutral on its face (so to speak), it had the effect of discriminating against African-American
applicants. In another case, the court held that a policy prohibiting beards was legal. A
dermatologist testified that the plaintiff (a black who had been fired for breaking the policy) had
a condition called “razor bumps” (a skin condition which occurs when the tightly curled facial
hair become in-grown due to shaving). The condition could only be relieved by not shaving. The
federal court held that, although the plaintiff was prejudiced by the company’s policy, the
policy’s slight racial impact was justified by the business purpose it served.
If an employer has a dress code that requires men to wear suits but only says that women have to
“look professional,” it would probably not be discriminatory against the male employees. Like
grooming standards, it is fairly common for businesses to set dress codes. The courts tend to look
to the norms of society to determine what is considered to be appropriate dress behavior. There is
obviously a broader range of clothing types accepted for women to “look professional” than
there is for men. For there to be discrimination in such a situation, there would have to be a
substantive difference in the treatment of men and women employees. That is, if men employees
were required to wear suits, but women employees were allowed to wear blue jeans and tee
shirts, then there would be discrimination against the male employees.
Case Questions
1. (answer on Internet for students) White persons can sue under Title VII, so the fact that he is
not a minority is not relevant to his right to bring an action for employment discrimination based
2. No, it is not the court said. She was not discharged because of sex but because of the nature of
3. (Answer on Internet for students) No case. “First, a religion addresses fundamental and
ultimate questions having to do with deep and imponderable matters. Second, a religion is
comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third,
4. Reversed. To sustain a sexual harassment claim based on a hostile work environment, the
plaintiff must prove 1) unwelcome conduct, 2) conduct based on the sex of the plaintiff, 3)
conduct sufficiently severe and pervasive to alter the plaintiff’s working conditions to become
abusive, and 4) the conduct must be imputed to the employer. Bragg’s comments were vulgar,
5. (answer on Internet for students) Reversed. Per curiam. “No reasonable person could have
believed that the single incident recounted above violated Title VII’s standard.” This was an
6. Affirmed. To establish a prima facie case of age discrimination, the employee is required to
show that he was replaced by a significantly younger person. However, the younger person could
also be over age 40. If that is shown, then the burden shifts to the employer. Here, in the absence
7. (answer on Internet for students) The school board loses. Title VII expressly protects
seniority; that statutory right could not be bargained away by the union in favor of more junior
minority teachers. To adopt such a plan because of a general assertion that minority teachers are
8. Reversed. The fact that harassment may be motivated by hostility based on an employee’s
sexual orientation is irrelevant. Title VII forbids offensive sexual touching whether it is same-sex
9. Affirmed. Applicants for driver positions who suffer from conditions treated with prescription
medications with side effects that could impair driving ability, are not regarded as having a
10. Reversed. The Rehabilitation Act creates a private right of action for individuals subjected to
disability discrimination, including in employment, by any program or activity receiving federal
financial assistance. Although Fleming was an independent contractor rather than an employee,
Ethics Question:
Some employers may have a “secret” affirmative action program. Here, since the job candidates
are quite close in ability, the supervisor has the right to pick any of the candidates. If the
supervisor wishes to discriminate in favor of the African-American or the older woman, there is
no reason to expect that the business judgment rule would not be a good defense against any
Essay Question from Case:
Quinones worked as a technician for Houser Buick. He learned that his hourly pay, which
amounted to about $30,000 per year, compared poorly to another employee, Barnes, who was
paid a “flat rate” of $52,000 per year. Quinones asked to be paid on a “flat rate” pay scale, rather
than on an hourly basis, but was rejected. He sued, contending that the pay difference was based
on his Hispanic origin. Houser defended that the “flat rate” system allows employees who are
highly productive to earn more as pay and is computed for each repair job completed. Quinones
worked slowly; Barnes worked quickly and did high-quality work. The district court held that
Houser offered a nondiscriminatory reason for the pay differential and held for the defendant.
Quinones appealed. Does he have a case? [Quinones v. Houser Buick, 436 F.3d 284, 1st Cir.
(2006)]
Answer: Affirmed. After Quinones established the prima facie basis for his complaint, the burden
shifted to Houser to offer a legitimate rationale for its action. Houser did so; different employees
Internet Assignment
U.S. Equal Employment Opportunity Commission
(EEOC):
www.eeoc.gov/eeoc/index.cfm
Cornell University Law School, Legal Information
Institute, “Employment discrimination:”
http://topics.law.cornell.edu/wex/employment_discrimination
Go to the EEOC website for a great amount of information about compliance with discrimination
law. The Cornell University Law School’s Legal Information Institute also provides many online
resources about equal employment opportunity law.