The Americans with Disabilities Act and Employment

Vol. 31 No. 2

By William D. Goren

 William D. Goren, Esq. J.D., LL.M. (williamgoren.com/blog), is author of Understanding the Americans with Disabilities Act, 4th ed. (ABA, 2013), and president of the National Association of Attorneys with Disabilities. His practice focuses on making the ADA work successfully for clients.

There are actually five titles to the Americans with Disabilities Act. This article will give an overview of Title I, which applies to employment. The vehicle for this article will be the situation of Jerry Kill, the varsity football coach at the University of Minnesota, who suffers from epilepsy. Kill has been a head coach in college football since 1994, and over the years he periodically suffered seizures during games and at other times. Nevertheless, the University of Minnesota took no adverse action against him and allowed him to continue coaching. Eventually, he decided it was in his best interest to step away, at least temporarily. In the fall of 2013, he announced a leave of absence, but he returned for the final game of the season against Syracuse.

If this were a situation in which either party was trying to assess their rights under the Americans with Disabilities Act (ADA), how would it play out? That is the question this article explores. Keep in mind, this is a general discussion, and I am in no way saying that any of the “facts” discussed below are in reality the actual facts. The discussion that follows is for educational and illustrative purposes. Also, keep in mind that this article is not meant to be an exhaustive discussion of how the ADA applies to employment. (For a fuller examination of employment issues and the ADA, see the first five chapters of my book, Understanding the Americans with Disabilities Act, 4th ed., ABA, 2013.)

Does the ADA Apply?

The first question is whether the University of Minnesota is even subject to the ADA at all. An entity is subject to Title I of the ADA per 42 U.S.C. § 12111(5)(A) if they have 15 or more employees. Clearly, the University of Minnesota has that.

Does a Disability Exist?

We now can turn to the question of whether a disability exists in this case. The ADA, at 42 U.S.C. § 12102(1), states that a person has a disability if he or she (1) has a physical or mental impairment that substantially limits one or more of life’s major activities; (2) has a record of such an impairment regardless of whether the person currently is substantially limited in a major life activity; or (3) is regarded as having such an impairment.

Answering the first question in this case is simple: Certainly, suffering from epilepsy that leads to seizures would be considered an impairment. The next question is whether the impairment substantially limits one or more of life’s major activities. This is actually two questions: First, what does it mean to be “substantially limited” in a major life activity, and, second, what are “major life activities”? With respect to a substantial limitation in a major life activity, the U.S. Equal Employment Opportunity Commission (EEOC) in its final regulations, 29 C.F.R. § 1630.2(j), defines substantial limitation as being a matter of whether the person is substantially limited in a major life activity as compared to most people in the general population. However, in this situation, Coach Kill has a disability that is episodic. What then? The ADA was amended in 2009, and those amendments went into effect in January 2011. There is a specific clause in the amendments dealing with the situation where a person has a disability that is episodic. That provision, 42 U.S.C. § 12102(4)(d), states an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active.

With respect to the second question, the amendments to the ADA do define a major life activity. Those major life activities, which can be found at 42 U.S.C. § 12102(2), include: (1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and (2) the operation of major bodily functions, such as but not limited to the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The EEOC in its final regulations at 29 C.F.R. § 1630.2(I)(i),(ii) added the major life activities of sitting, reaching, and interacting with others. Certainly, epilepsy would involve a substantial limitation on the major life activities of neurological as well as brain functioning. Therefore, the coach would most certainly be a person with a disability under the ADA because he has an impairment that substantially limits one or more major life activities.

What if, hypothetically, Coach Kill took medicine to deal with the epilepsy, and the medicine went a long way toward solving the problem? Should the medicine be factored into the determination of whether Kill has a disability under the ADA? The answer, under 42 U.S.C. § 12104(E)(i),(ii), is no; mitigating measures are not factored into whether a person has a disability unless those mitigating measures are eyeglasses that fully correct vision.

Is the Person Qualified?

To qualify for protection under the ADA, it isn’t enough for a person simply to have a disability as the law defines that term. In the employment context, that person must also be qualified for the job. Per 29 C.F.R. § 1630.2(m), a person with a disability is qualified under Title I of the ADA if the person satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodations, perform the essential functions of the job. Of course, this definition raises two questions. First, what is the essential function of the job? Second, what is a reasonable accommodation?

Turning to the first question, what is an essential function of the job, the EEOC gives a list. In particular, the EEOC says at 29 C.F.R. § 1630.2(n) that it will look to the following factors:

1. The employer’s judgment as to which functions are essential;
2. The written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of a collective bargaining agreement;
6. The work experience of past incumbents in the job; and/or
7. The current work experience of incumbents in similar jobs.

Applying these factors can get complicated, but it doesn’t have to be that way. Think of essential functions as any elements of the job that are fundamental to achieving the job’s purpose. Those elements that are not fundamental can be classified as marginal. So, what is fundamental to being a varsity football coach at a Division I program? Recruiting, knowledge of National Collegiate Athletic Association (NCAA) rules and regulations, ability to relate to student athletes, practice planning in season and out of season, overseeing strength and conditioning training, breaking down film and planning strategy, budget management, fundraising, community and alumni engagement, conducting camps and clinics, attendance at games either on the sidelines or in the booth, overseeing game strategy, etc. Keep in mind, we don’t know what the actual job description is for the coach of the University of Minnesota varsity football team. Hypothetically, if this was the job description, our coach could certainly do all of it.

The only question might be Kill’s attendance at the games. Could that be done with or without reasonable accommodation? The thing of it is, the ADA does not require having another person do one’s job; such an accommodation is not reasonable and would constitute an undue hardship (for an excellent discussion of this concept, see Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013)). What the team did was to be prepared so that when the coach had a seizure, other people were ready to step up and did. That said, it can be argued that the team would not have had the obligation under the ADA to do this. The fact that it did shows very progressive thinking on the part of the university. Clearly, the University of Minnesota realized the coach brought a tremendous amount to the table and that there were intangible benefits to structuring the system this way—so much so that this system was in the best interest of the team and the university.

What Is a Reasonable Accommodation?

This brings us to the question of what is a reasonable accommodation. Under the ADA, 42 U.S.C. § 12112(b)(5)(A), a reasonable accommodation is anything that does not constitute an undue hardship. Thus, it becomes important to know what is an undue hardship. Undue hardship can either be financial or logistical. An undue financial hardship is almost impossible to show because undue hardship in the financial sense, according to the EEOC under 29 C.F.R. § 1630.2(p)(2)(ii),(iii), is measured against the entire operations of the employer and not just one department. A logistical undue hardship is a fundamental alteration to the nature of the business, program, or activity. An analogous term to logistical undue hardship would be that of “fundamental alteration” found in Rehabilitation Act case law over the years; in the final regulations implementing Title II of the ADA, 28 C.F.R. § 35.130(b)(7); and in Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(ii),(iii).

In addition to logistical undue hardship, another avenue the university could have pursued in an effort to show Coach Kill’s employment was not protected by the ADA was the concept of direct threat. A person with a disability is not protected by the ADA if this person is a direct threat to him/herself or others. The concept of direct threat comes from two Supreme Court cases. In the first, School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 288 (1987), the Court said that whether a person is a direct threat (in this case owing to tuberculosis) depended on evaluating the following factors:

1. The nature of the risk (how the disease is transmitted);
2. The duration of the risk (how long the carrier is infectious);
3. The severity of the risk (the potential harm to third parties); and
4. The probability that the disease will be transmitted and will cause varying degrees of harm.

The final regulation of the EEOC dealing with direct threat, 29 C.F.R. § 1630.2(r), is very similar to the Arline standard.

The other Supreme Court decision is Chevron USA, Inc. v. Echazabal, 536 U.S. 73 (2002), in which the Court held that direct threat includes a direct threat to other people as well as to the individual him/herself. That said, a direct threat defense must be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence as well as on an individual assessment of the person’s current ability to safely perform the essential functions of the job.

Returning to the hypothetical case of Coach Kill, it is hard to believe how such an individual could be a direct threat to others. That said, it isn’t hard to fathom how an employer, depending on the facts of the situation, could argue that the demands of being the head coach of a Division I varsity football program could make a person a direct threat to himself. This is not to say that an employer can assume a person with epilepsy could never do this job (making such an assumption would expose the school to ADA liability because it would be stereotyping without doing further analysis); rather, it simply may be possible for a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence to show that such a person would be a threat to himself.

Conclusions

There are three thoughts that I want to leave the reader with: First, the lesson here is that sometimes an organization may choose to exceed, for whatever reason, what the law requires. In this case, I can certainly see a lot of intangible benefits, especially in the educational setting, for the University of Minnesota having set up the system the way it did. People who worked with the coach and the players whom the coach supervised learned that a person with a disability can do very important jobs. They also learned how a person can live with a disability, manage it, and still be very effective. It also promoted the university’s mission of diversity. The people who worked with this coach and the players who played for him certainly received intangible benefits for the rest of their lives that they might not have otherwise received had the university not gone beyond the legal requirements. The fact that the university chose to exceed the law (keeping in mind we don’t know the actual facts) is a real credit to the university.

Second, the discussion here regarding the ADA and employment is an overview and is not meant to be comprehensive. (For example, this article doesn’t even address the “regarded as” prong under the ADA; for a discussion of this concept, see my book, cited above.)

Finally, nothing in this article is meant to constitute legal advice. For that, a lawyer knowledgeable in this field should be consulted.