Who s Qualified Defending Essential Functions Qualification Standards and

Who’s Qualified? Defending Essential Functions, Qualification Standards and Performance Requirements Under the ADA Merrily S. Archer, Esq. , M. S. W. EEO Legal Solutions LLC

About Merrily. . . • • Ms. Chief, EEO Legal Solutions and Workplace. Training. Hub. com JD/MSW Washington University in St. Louis EEOC Trial Attorney, 1997 -2000, Denver Biglaw employment defense attorney, 2000 -2012 (e. g. , Jackson Lewis, Fisher & Phillips) • • • Super. Lawyer: employment litigation defense Defended EEOC v. Picture People 2012: top 10 most powerful Colorado attorneys, Denver Business Journal • Dances in grocery stores, plays guitar (badly), huge embarrassment to daughters

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The Point • The EEOC and employee-side attorneys have aggressively substituted their judgment for employers’ regarding – Knowledge, skills, and abilities required to perform job – What “successful” job performance looks like – What accommodations are “reasonable” or even possible • Prepare to defend. . . NOW

The Plan ADA: Where We Started EEOC ADA Enforcement Trends Basic “Qualified” Analysis EEOC “Qualified” Analysis in Litigation • Prepare-to-Defend Action Plan • Litigation Tips • •

A Brief History of the ADA 1990: Congress passes ADA 1999: SCOTUS decides Sutton Triology, narrowing class of “disabled” people 2008: Congress passes ADAA, defining disability to include MOST conditions 2011: EEOC issues BROAD regulations and increases prosecutions against employers

Promises, Promises The Committee wishes to emphasize again that this legislation does not require an employer to make any modification, adjustment, or change in a job description or policy that an employer can demonstrate would fundamentally alter the essential functions of the job in question. H. REP. NO. 101 -485 (II) at 64, House Committee on Education and Labor

Under this legislation an employer may still devise physical and other job criteria and tests for a job as long as the criteria or tests are jobrelated and consistent with business necessity. H. REP. NO. 101 -485 (II) at 56

For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U. S. C. § 12111(8)

The EEOC’s Interpretation • An employer is not required to restructure the essential functions of a position to fit the skills of an individual with a disability. 29 C. F. R. pt. 1630, App. , § 1630. 2(o) and § 1630. 9, ¶ 3

Types of EEOC Charges in FY 2014 • Retaliation outranks all other charges • ADA cases continue to climb – Liberalized “disability” definition

ADA Charge Trends

Failure to Accommodate

Risky Business

EEOC ADA Prosecutions • ADA prosecutions in FY 2014 fell slightly from FY 2013 – 34% in FY 2014 – 36% in FY 2013 • Cause determination rate of 4. 5%, no reasonable cause of 62. 6%

Basic “Qualified” Analysis • “Qualified”: a Pw. D “who, with or without reasonable accommodation, can perform the essential functions of the employment position that [s/he] holds or desires. ” – See also 29 C. F. R. § 1630. 2(m) • “Otherwise Qualified” – If a reasonable accommodation would enable the Pw. D to perform essential job functions, s/he is “qualified” under the ADA

Essential Job Functions 29 C. F. R. § 1630. 2(m) Standard • • • The position exists is to perform that function; There is limited number of employees available among whom the performance of that job function can be distributed; and/or The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. Evidence • • The employer's judgment; Written job descriptions prepared before advertising or interviewing applicants for the job; The amount of time spent on the job performing the function; The consequences of not requiring the incumbent to perform the function (e. g. , firefighter); The terms of a collective bargaining agreement; The work experience of past incumbents in the job; and/or The current work experience of incumbents in similar jobs.

Major Sticking Points Proposed accommodation FUNDAMENTALLY ALTERS the job’s essential functions Proposed accommodation poses an UNDUE HARDSHIP Qualification standard is JOB-RELATED and CONSISTENT with BUSINESS NECESSITY

Connecting the Dots . . . though many of the market responses to CRA 1991 were foreseeable.

Overarching Themes Enlightenment Entitlement Efficacy • Legitimate business concerns are based on unenlightened “myths, fears, and stereotypes” about Pw. D’s. • Vocational interests of disabled community outweigh legitimate business concerns. • Can EEOC substitute its judgment for employers’ re minimally effective job performance?

EEOC: Eliminate an “Essential Function” of the Job • EEOC v. Womble Carlyle Sandridge & Rice, LLP, (M. D. N. C. June 26, 2014) – Law firm assistant with breast cancer unable to lift 75 lbs. , 20 lbs. regularly • EEOC: 75 lbs. not an “essential function, ” her position could have been redefined to exclude heavy lifting as “reasonable accommodation” – Court: ADA does not require employer to reallocate essential functions or create new position around employee’s limitations as a “reasonable accommodation”

EEOC: Just “Fundamentally Alter” the Job • EEOC v. Picture People, 684 F. 3 d 981, 983– 84 (10 th Cir. 2012) – EEOC demanded that retailer specializing in children’s portrait photography eliminate its “strong verbal communication skills” requirement and allow deaf/mute Pw. D perform job via written notes, gestures, text messaging as a “reasonable accommodation” • Fundamental alteration in job, customer experience, business model • Fit job to CP’s limitations, regardless of impact on customer experience

How EEOC Investigators Evaluate “Qualified” • Rare EEOC responses to “contention interrogatories” in EEOC v. Picture People provide insight into how EEOC determined a deaf/mute Pw. D was “qualified” in the investigation, reasonable cause determination, and prosecution – CP said she could do “most” of the job – Terminated employee said CP was a “good worker” – CP had no performance discipline in her file • Employed eight (8) weeks – Picture People HIRED CP • “Picture People did exactly what the law requires: they gave the Charging Party an OPPORTUNITY. ”

EEOC ADA Class Actions • EEOC v. Fed Ex Ground – 10 -10 -14: EEOC sued Fed. Ex Ground for class-based discrimination against deaf and hard-of-hearing applicants and employees • Fed. Ex has longstanding policy of hiring deaf and hard-ofhearing applicants but failed to provide as “reasonable accommodations” • ASL interpreters • Closed captioned TV • Equipment that vibrates/flashes instead of beeps

Wait. . . With ADA’s required “individualized assessment” and wide functional variations with the deaf community, are all members of the class entitled to the same reasonable accommodations?

EEOC: Workplaces as Extension of Vocational Rehabilitation • EEOC v. Papa John’s – EEOC: rural Papa John’s “successfully employed” CP with Down Syndrome • Who gets to decide? What would “managers on the ground” say? – EEOC: CP with Down Syndrome could perform position with a “job coach” from a local social service agency as a “reasonable accommodation” • What does need to “job coach” reveal about CP’s ability to perform essential job functions without EXTENSIVE supervision? – Is one-on-one supervision a “reasonable” accommodation?

Restoring the ADA’s Careful Balances

Prepare to Defend: An Action Plan 1: Define the Job 2. Enforce the Standard Job Descriptions 3. Engage Managers • Involve employees Performance Set Performance Evaluations 4. Document Requirements Training Materials Communications S-E-E • Spot, Engage, Escalate potential ADA issues before they become legal ones Documentation wins (or loses) discrimination cases

The Ground Game: Documentation Interactive Process and Accommodations Considered Job Descriptions and Essential Job Function Analyses Problems Caused by Accommodation Performance Evaluations and Training Materials Medical Information and Vocational Analyses

Elimination/Fundamental Alteration Defense Documentation • Customer complaints (written/documented) – EEOC, employee-side very focused on ABSENCE of this evidence • Observations of other employees/managers – Written logs, emails, IM’s • Expert testimony – Objectively changing the product • • Customer experience as part of employers’ product Safety concerns, incidents, near misses (direct threat) – Medical testimony • Loss of revenue, clients

Documenting Undue Hardship Overall Cost Employers’ Size and Financial Resources Public Resources (State Vocational Rehabilitation) Tax Credits Significant Expense

Documenting Undue Hardship Impeding Operations Interfering with Other Employees’ Rights Significant Difficulty Inconveniencing Customers (Complaints) Change in Product, Service, Business Model

Fighting Back Build your defense “story” before drawing lines Actively manage interactive process, leave requests, and returns to work Practice “Defensive Management” Litigate strategically so that you can fight when you’re right

Winning Litigation Tips • Get vocational rehabilitation records – Depose vocational rehabilitation caseworker • Obtain Social Security records • Consider videotaping the job • Avoid testifying experts – Use a consulting expert to depose/eviscerate EEOC expert • Make CP describe or demonstrate how s/he would perform essential job functions at deposition, trial

Your Takeaways • Prepare to defend “essential job functions” and qualification standards NOW – Update job descriptions, training/evaluation materials • She who has the most paper wins • Push back – Judiciary tempers EEOC over-reach – ADA prosecutions do not require an entourage of lawyers

Final Questions/Issues Merrily Archer, Esq. , M. S. W. (303) 248 -3769 (direct) (303) 915 -5486 (cell) archerm@eeolegalsolutions. comwww. eeolegalsolutions. com Twitter: @EEOLegal

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