Chapter 10
DISCRIMINATION BASED ON DISABILITY
INTRODUCTION
This chapter discusses the EEO legislation prohibiting discrimination based on disability, which is illegal
OUTLINE
I. Americans with Disabilities Act
A. Title II of the ADA deals with discrimination in public services, programs, and activities
and Title III of the ADA requires that places of public accommodations should be
accessible to disabled persons. The U.S. Courts of Appeals are split on whether Title II of
the ADA allows suits for disability discrimination in employment by public employers.
(Unless otherwise noted, the discussion of the ADA here will focus on Title I.)
B. Coverage
1. The ADA applies to private and public sector employers with fifteen or more
employees. It does not apply to most federal government employers, American Indian
Tribes, or bona fide private membership clubs.
C. Provisions
1. The ADA prohibits employment discrimination on the grounds of disability
against an otherwise qualified individual with a disability in regards to all aspects of
employment.
II. Qualified Individual with a Disability*
A. Both the ADA and the Rehabilitation Act use the term “qualified individual with a
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disability.”
B. According to Southeastern Community College v. Davis, a person “is a qualified
individual with a disability if the person is able to meet all … requirements in spite of his
disability.”
*Qualified individual with a disability is an individual with a disability who is able to perform, with
reasonable accommodation, the requirements of the job in question, despite disability.
III. Definition of Disability
The ADA defines disability very broadly.
A. It includes “(a) a physical or mental impairment that substantially limits one or more of
IV. ADA Amendments Act (ADAA)
A. The ADA was amended, effective Jan 1, 2009. The definition of disability is to be
construed broadly. Major life activities include a host of activities and bodily functions controlled
by the autonomic nervous system.
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CASE 10.1 JACOBS V. N.C. ADMINISTRATIVE OFFICE OF THE COURTS
— F.3d —, 2015 WL 1062673 (4th Cir. 2015)
Facts: Christina Jacobs worked as a deputy clerk at a courthouse in New Hanover County, North
Carolina. Although she allegedly suffered from social anxiety disorder, her employer assigned her to
provide customer service at the courthouse front counter. Believing that her mental illness hindered her
ability to perform this inherently social task, Jacobs requested an accommodation to be assigned to a role
with less direct interpersonal interaction. Her employer waited three weeks without acting on her request
and then terminated her.
Issue: Under the expanded definition of “disability” created by the ADAAA, is Jacobs a covered person
with a qualifying disability?
THE WORKING LAW
The Genetic Information Nondiscrimination Act
Congress passed the Genetic Information Nondiscrimination Act (GINA) in 2008; its employment-related
provisions took effect in November 2009. The legislation prohibits discrimination based on genetic
information by employers with 15 or more employees, employment agencies, labor organizations, and
joint labor–management committees.
CASE 10.2 CHALFANT V. TITAN DISTRIBUTION, INC.
475 F. 3d 982 (8th Cir. 2007)
Background: Chalfant worked at Quintack as a second shift supervisor. Titan Distributing took over
operations at Quintack. All Quintack employees were required to reapply for their jobs. Chalfant
reapplied and underwent a physical examination. He was cleared to drive a forklift. Chalfant self
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Decision: Yes. Titan mistakenly believed that Chalfants’s physical ailments substantially limited his
V. Medical Exams and Test
A. The ADA limits the ability of an employer to test for or inquire into the disabilities of job
applicants and employees.
B. Employers are prohibited from asking about the existence, nature, or severity of a
disability.
F. In Kroll v. White Lake Ambulance Authority,
1
the U.S. Court of Appeals for the Sixth
Circuit listed several factors to be considered in determining whether a procedure or test is a
medical examination.
G. The EEOC defines “medical examination” as “a procedure or test that seeks information
VI. Reasonable Accommodation
1. Employers are required to make reasonable accommodation to an otherwise
2. Reasonable accommodation includes, in part, minimal realignment of job duties,
schedules, modifying equipment, or provision of assistance devices. What constitutes
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resources available to the employer, the higher the obligation is on the employer’s part.
3. The ADA sets out a number of factors to be considered to determine whether the
accommodation would impose undue hardship.
CASE 10.3 HUMPHREY V. MEMORIAL HOSPITALS ASSOCIATION
239 F.3d 1128 (9th Cir. 2001)
Background: Humphrey was a medical transcriptionist. Due to an obsessive-compulsive disorder, she
developed morning rituals that caused her to be chronically late for work. Once officially diagnosed with
the disorder, the employer offered her a reasonable accommodation of a flexible workday. However,
Humphrey was unable to avoid being late to work, even under the flexible schedule. Humphrey requested
that she be allowed to work from home, as other persons in her job category were. She was denied based
on her record of tardiness and absences. Eventually, she was fired. Upon termination of her employment
she requested a leave of absence and was denied.
Issue: Did Memorial Hospital Association violate the ADA by refusing to accommodate Humphrey’s
disability?
Decision: Yes. An employer has an obligation to actively engage in a process to determine an appropriate
ANSWERS TO CASE QUESTIONS
1. Her disability interfered with her ability to leave her house, thus making her late or absent for work.
Humphrey was otherwise qualified because she possessed the skills to perform the essential
function of the job, which was medical transcription.
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hardship. It offered only one type of accommodation, which was not effective. It refused to offer a
subsequent accommodation that would not have created an undue hardship, and did not offer any
other alternatives.
c) Whether or not an employer must allow an employee to work from home
*Undue hardship is an accommodation that requires significant difficulty or expense for the employer.
VII. Defenses under the ADA
A. The ADA sets out four other possible defenses for employers:
1. Direct Threat to Safety or Health of Others. Employers may refuse to hire or
accommodate an individual where individual’s condition poses a “direct threat” to the
health or safety of others in the workplace.
a) “Direct threat” is defined as a “significant risk to the health or safety of
2. Job-Related Criteria. Employers may hire, select or promote individuals based
on tests, standards, or criteria that are job-related, consistent with business necessity, and
that performance of the job cannot be accomplished by reasonable accommodation.
3. Food Handler Defense. An employer in the food service industry may refuse to
assign or transfer to a job involving food handling any individual who has an infectious
or communicable disease that is transmitted to others through the handling of food and
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4. Religious Entities. Title I of the ADA does not prohibit a religious corporation,
association, educational institution, or society, from giving preference in employment to
individuals of a particular religion to perform work connected with the carrying on by
such corporation, association, educational institution, or society of its activities.
VIII. Enforcement of the ADA is by the EEOC.
A. The procedures and remedies under Title VII of the Civil Rights Act of 1964 are those
used or available under the ADA.
IX. The Rehabilitation Act also prohibits employment discrimination against otherwise qualified
individuals with a disability.
A. Rehabilitation Act definition of “person with a disability” is similar to ADA definition:
1. An individual with a physical or mental impairment which substantially limits
B. The definition excludes persons with an infectious disease that presents a direct threat to
the health or safety of others.
1. The main provisions of the Rehabilitation Act are S.501, S.503 and S.504.
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b) S.503 requires that government contractors with contracts of more than
$10,000 agree to not discriminate against otherwise qualified handicapped
individuals.
(1) Contractors with contracts or $50,000 or more are required to
c) S.504 is broader than S. 503 — it requires that any program or activity
receiving federal funding must not deny participation in, or the benefits of, the
funded activity to any otherwise qualified handicapped individual.
(1) There is no minimum funding level under S. 504 — any federal
funding imposes the obligation.
(5) Funded activities are required to make reasonable
accommodation for the disabilities of otherwise qualified individuals—
but are not required to admit disabled individuals who are unable to meet
the program requirements. See Southeastern Community College v.
Davis.
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suspend, terminate or refuse funding of the recipient. After processing
the complaint through administrative proceedings, the individual
X. AIDS and the Disability Discrimination Legislation
A. AIDS
1. The definition of disability under both the ADA and the Rehabilitation Act
includes infectious diseases, as long as the risks they present can be reasonably
accommodated; therefore persons who are HIV positive or who have AIDS are protected
under the legislation. The degree of risk posed by the condition depends on the job or
The Genetic Information Nondiscrimination Act: Congress passed the Genetic Information
Nondiscrimination Act (GINA)
2
in 2008; its employment-related provisions took effect in November,
2009. The legislation prohibits discrimination based on genetic information by employers with 15 or more
employees, employment agencies, labor organizations and joint labor-management committees.
B. State Disability Discrimination Laws
1. All fifty states have laws or regulations prohibiting discrimination because of
disability.
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C. Drug Abuse and Drug Testing
1. Neither the ADA or Rehabilitation Act prohibits drug testing of employees—the
ADA specifically provides that a drug test is not considered a medical exam.
CASE 10.5 BROWN V. LUCKY STORES, INC.
246 F.3d 1182 (9th Cir. 2001)
Background: Brown, an employee at Lucky Stores, was arrested, jailed and convicted of driving under the
influence and possession of methamphetamines. Upon release from jail, she went straight into inpatient
rehab. Through her sister-in-law, she informed Lucky Stores that she would miss work because she was in
jail. She was subsequently fired for missing three consecutive shifts.
Issue: Was Brown’s termination in violation of the ADA and/or the Rehabilitation Act under the Safe
Harbor Rule?
Decision: No. In order to claim protection under the safe harbor rule, the employee must have been drug
ANSWERS TO CASE QUESTIONS
1. The safe harbor provision protects employees who are engaged in drug or alcohol treatment from
termination as long as they are no longer engaged in the illegal use of drugs. The Court of Appeals
2. The court declared that mere participation in a rehab program is not enough to trigger the
protections of §12114 (b)(1) but refraining from the use of drugs is essential.
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3. The ADA clearly states that an employer may hold an employee who engaged in the illegal use of
drugs or who is an alcoholic to the same qualification standards for employment or job performance
4. An employer’s policy against rehiring former employees discharged for
workplace misconduct was a legitimate, nondiscriminatory reason for refusing to rehire a
D. Federal Drug Testing Legislation
1. Drug testing by employers is not generally prohibited by any federal legislation.
E. State Drug Testing Legislation
1. Most states set mandatory procedural requirements for employers who subject
employees or applicants to drug testing, which require employees to:
a) provide employees with a written statement of their drug testing policy;
b) require confirmatory tests in the case of an initial positive test result;
terms of the rehabilitation program.
2. States like Connecticut and West Virginia require employers to have reasonable
grounds to suspect that employees are using drugs before subjecting employee (other than
employees in safety-sensitive positions or subject to federal drug testing requirements) to
drug test.
F. Drug Testing by Private Sector Employers
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those employees.
G. Drug Testing by Public Sector Employers
1. In New York City Transit Authority v. Beazer, a case that arose prior to the
2. The Fourth Amendment, which forbids unreasonable searches or seizures by the
government, present constitutional challenges to public sector drug testing.
a) A showing of reasonable cause is needed to justify a drug test.
(1) Skinner v. Railway Labor Executives’ Association, the Supreme
Court held that there was a compelling government interest by regulating
(2) In National Treasury Employees Union v. Von Raab, the
Supreme Court upheld rules of the U.S. Customs Service that required
(3) The Supreme Court held in Chandler v. Miller, that a Georgia
law that required all candidates for state political offices to pass a drug
(4) The Court upheld the Department of Energy’s “special needs”
drug testing of employees in “sensitive” positions:
(a) Those with access to sensitive information
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(b) Presidential appointees
(5) The Court in Watkins held that testing employees carrying
firearms was not justified unless they also had law enforcement duties,
and merely holding a security clearance does not decrease one’s privacy
expectation to justify testing with no other justification present.
(7) In AFGE v. Skinner, The Department of Transportation’s drug
testing of employees in jobs with a direct impact on public health, safety,
(8) In the case of Georgia Associations of Educators v. Harris, a
H. Drug testing and the NLRB
1. An employer’s mandatory drug testing program for all employees who suffered
2. In Oil, Chemical and Atomic Workers Int. Union, Local 2-286 v. Amoco Oil Co.,
3. However, drug testing of job applicants is not a mandatory bargaining subject
I. Medical Marijuana Laws
1. As of 2014, 23 states and the District of Columbia had enacted laws that (1)
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2. In 2009, the U.S. Attorney General issued guidelines regarding medical
marijuana. The guidelines make clear that the focus of federal resources should not be on
Case 10.6 THOMPSON V. MCHUGH
2014 WL 5320637 (U.S. Dist. Ct., D. Ariz., 2014)
Facts: Plaintiff Reuben James Thompson was a truck driver employed by a U.S. Army in Afghanistan.
While working in Afghanistan, he was cited for driving under the influence of alcohol. Subsequent to his
return to the United States he was found to be in possession of marijuana and paraphernalia. He claimed
to be disabled and legally in possession of the alleged contraband. The Army nonetheless proceeded with
the termination, and Thompson sued.
Issue: If Thompson can prove that he is disabled and that the marijuana was legitimately in his possession
as a prescribed treatment for his disability, is he entitled to pursue his disability discrimination case
against the Army?
Discussion: Since his employer was a federal agency, concluded the court, he was potentially protected
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. The ADA covers all private sector employers with 15 or more employees, and state and local
public sector employers; most federal employers are not covered by the ADA. The Rehabilitation
2. The definition of disability under the ADA is 3-fold: a disability under the ADA can be a
physical, medical or mental condition that impairs a major life activity; having a record of having
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3. Public sector employers must have a sufficiently important interest to override the employees’
privacy rights under the Fourth Amendment in order to require drug testing. If the employer has
a reasonable suspicion that the employee is using drugs, it may require a drug test. In the absence
4. Section 503 must be enforced through the OFCCP administrative procedures; there is no
5. Alcoholism is a protected disability under the ADA. Therefore, alcoholics are protected unless an
CASE PROBLEMS
6. To obtain relief under the ADA, an employee is required to show that he was a disabled person
within the meaning of the ADA, was qualified to perform the essential functions of his job, and
suffered an adverse employment action because of his disability. 42 U.S.C. §12101 et seq. Finan
7. No. The Court held that the Postal Service was not required, under Rehabilitation Act, to
transform its temporary light duty jobs into permanent jobs to accommodate letter carrier’s hip–
8. The Court ruled for the Police Department. The Court found that Peden failed to establish that he
was capable of performing the “essential functions” of a police officer position and, thus, was not
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9. The district court held that plaintiff was not disabled under the ADA because 1) his depression
and anxiety-related disorders were not impairments that substantially limited his major life
activity of working; 2) there was no record of such impairment; and 3) plaintiff was not regarded
10. The Court of Appeals held that: (1) employee was not fired on basis of his race; (2) employee was
not physically or mentally impaired; (3) employee’s claimed disorder did not render him unable to
perform duties of his position; and(4) employee failed to show direct evidence of retaliation.
Specifically concerning Anders’ ADA claim, the court reasoned, “Even considering the facts in a
11. The Court ruled in favor of the plaintiff. The law firm argued that plaintiff’s successful claim for
disability benefits contradicts his assertion that he would be able to perform his job duties with
reasonable accommodations. The Court held that the former employee was not estopped from
12. Students may debate on this point. The court stated: “While Dura’s medical screening program is
based on the sound goal of ‘workplace safety,’ a reasonable juror could very well find that the
screening is ‘broader [and] more intrusive than necessary’ because Dura automatically excludes
all employees who take certain medications from working in any capacity at Dura, without any
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13. While morbid obesity could be a disability under the ADA [and the Rehabilitation Act], in the
actual case there was no showing that Cook’s obesity actually interfered with her ability to
perform the work in question. Rather, the court held that the hospital regarded her as being
14. Yes. The Court found that Bultemeyer may be a qualified individual under ADA because he may
15. The drug-testing requirement for teachers could be challenged as violating the Fourth
Amendment — the school district has not shown any reasonable grounds to suspect the teachers
are using drugs, and has not identified any other sufficient government interest to justify
HYPOTHETICAL SCENARIOS
16. No. The employer’s health assessment prerequisite for company provided insurance plan does not
17. No. The issue on appeal was whether Zenor was not protected under the ADA because he was a
current drug user, whether he was otherwise qualified, and whether Zenor was disabled under the
ADA. The ADA excludes employees “currently engaging in the illegal use of drugs” from its
18. Yes. Individuals who are former drug users, or recovering drug users, including those persons
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19. Yes. The ADA prohibits employment discrimination on the grounds of disability against an
otherwise qualified individual with a disability in regards to all aspects of employment. The ADA
20. Yes. A person who is HIV positive, but asymptomatic is protected by the ADA, according to
Bragdon v. Abbott.