Tag Archives: Americans With Disabilities Act of 1990

Discrimination in Public Accommodations

What is a Public Accommodation?

Federal and state laws prohibit discrimination against certain protected groups in businesses and places that are considered “public accommodations.” The definition of a “public accommodation” may vary depending upon the law at issue (i.e. federal or state), and the type of discrimination involved (i.e. race discrimination or disability discrimination). Generally speaking, it may help to think of public accommodations as most (but not all) businesses or buildings that are open to (or offer services to) the general public. More specifically, the definition of a “public accommodation” can be broken down into two types of businesses / facilities:

  • Government-owned/operated facilities, services, and buildings
  • Privately-owned/operated businesses, services, and buildings

Government-owned/operated facilities and services. Government-owned facilities include courthouses, jails, hospitals, parks, and other places owned and operated by federal, state and local government. Government-operated services, programs, or activities provided by federal, state, or local governments include transportation systems and government benefits programs (such as welfare assistance).

Privately-owned/operated businesses and buildings. Privately-owned businesses and facilities that offer certain goods or services to the public — including food, lodging, gasoline, and entertainment — are considered public accommodations for purposes of federal and state anti-discrimination laws. For purposes of disability discrimination, the definition of a “public accommodation” is even more broad, encompassing most businesses that are open to the public (regardless of type).

Laws Prohibiting Discrimination in Public Accommodations: Race, Color, Religion, and National Origin

Federal law prohibits public accommodations from discriminating on the basis of race, color, religion, or national origin. If you think that you have been discriminated against in using such a facility, you may file a complaint with the Civil Rights Division of the Department of Justice, or with the United States attorney in your area. You may also file suit in the U.S. district court.

There are also state laws that broadly prohibit discrimination on the bases of race, color, religion, and national origin in places of public accommodation. To determine whether your state has such a law, you should contact your state or local human rights agency, your state attorney general’s office, or speak to a Civil Rights attorney in your area.

Laws Prohibiting Discrimination in Public Accommodations and Disability Discrimination

At the federal level, the Americans with Disabilities Act prohibits discrimination on the basis of disability in a wide range of places of public accommodation, including facilities that offer lodging, food, entertainment, sales or rental services, health care and other professional services, or recreation. State and local governments must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless the government can establish that the requirements are necessary for the provision of the service, program, or activity. In addition, public facilities must ensure that individuals with disabilities are not excluded from services, programs, or activities because buildings are inaccessible.

There are also state laws that broadly prohibit discrimination on the basis of disability in places of public accommodation. To determine whether your state has such a law, you should contact your state or local human rights agency, your state attorney general’s office, or speak to a Civil Rights attorney in your area.

Discrimination in Public Accommodations: Government Enforcement

When and Where to File a Complaint — Public Accommodations and Facilities

Federal law prohibits privately owned facilities that offer food, lodging, gasoline or entertainment to the public from discriminating on the basis of race, color, religion, or national origin. If you think that you have been discriminated against in using such a facility, you may file a complaint with the Civil Rights Division of the Department of Justice, or with the United States attorney in your area. You may also file suit in the U.S. district court.

In addition, the Americans with Disabilities Act prohibits discrimination on the basis of disability in a wide range of places of public accommodation, including facilities that offer lodging, food, entertainment, sales or rental services, health care and other professional services, or recreation.

There are also state laws that broadly prohibit discrimination on the bases of race, color, religion, national origin, and disability in places of public accommodation. To determine whether your state has such a law, you should contact your state or local human rights agency, or your state attorney general’s office.

Public facilities such as courthouses, jails, hospitals, parks, and other facilities owned and operated by state and local government entities cannot discriminate in their services because of race, color, religion, national origin, or disability. If you think a public facility has discriminated against you because of race, color, religion, or national origin, you may file suit in the U.S. district court or file a complaint with the nearest U.S. Attorney’s Office.

People with disabilities cannot be discriminated against or excluded from services, programs, or activities offered by state or local governments. All public transportation systems must be accessible to people with disabilities, regardless of whether the system receives federal financial assistance.

State and local governments must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless the government can establish that the requirements are necessary for the provision of the service, program, or activity. In addition, public facilities must ensure that individuals with disabilities are not excluded from services, programs, or activities because buildings are inaccessible.

State and local agencies that provide emergency telephone services must provide “direct access” to individuals who rely on telecommunication display devices (TTD’s pr TTY’s) for the deaf, or computer modems for telephone communication. Companies offering telephone services to the general public must offer telephone relay services to individuals who use TTY’s or similar devices.

Intrastate complaints should be filed with that state. Interstate complaints should be filed with the Federal Communications Commission.

Discrimination complaints about public facilities (other than Architectural Barriers Act complaints, see below) should be sent to:

  • the federal agency that provides funding to the facility subject to the complaint;
  • the federal agency designated to investigate complaints; or
  • the Department of Justice.

Complaints may always be filed with the Civil Rights Division of the Department of Justice, which will refer your complaint to the appropriate agency.

Complaints regarding new construction of, or alterations to buildings or facilities funded by the federal government and subject to the Architectural Barriers Act of 1968 should be sent to:

Architectural and Transportation Barriers Compliance Board
Office of Compliance and Enforcement
1331 F Street, NW, Suite 1000
Washington, DC 20004-1111
(202) 222-0800
(800) 872-2253
TTY: (202) 272-0082
TTY: (202) 993-2822
Fax: (202) 272-0081

The Disability Rights Section of the Civil Rights Division of the U.S. Department of Justice handles complaints of discrimination based on disability in places of public accommodation, including all hotels, restaurants, retail stores, theaters, health care facilities, convention centers, parks, and places of recreation. To file a complaint of discrimination based on disability, call (800) 514-0301 and send your complaint to:

U.S. Department of Justice
Civil Rights Division
Disability Rights Section
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 307-2227
TTY: (800) 514-0383
Fax: (202) 307-1198

If the Disability Rights Section believes that there is a pattern or practice of discrimination, or the complaint raises an issue of general public importance, it may attempt to negotiate a settlement of the matter, or bring an action in U.S. district court. Any such action would be taken on behalf of the United States. You also have the option of filing your own lawsuit in U.S. district court.

ADA Access to Buildings and Businesses (Public Accommodations)

A federal law that requires most business and facilities to provide reasonable access and accommodation for all disabled customers, clients, and members of the public. This law, the Americans with Disabilities Act (ADA), applies to almost all businesses that are open to the public, regardless of size. Below is an introduction to the ADA and its application to “public accommodations.”

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits the exclusion of people with disabilities from everyday activities, such as buying an item at the store, watching a movie in a theater, enjoying a meal at a local restaurant, exercising at the local health club, or having the car serviced at a local garage. To meet the goals of the ADA, the law established requirements for private businesses of all sizes. These requirements first went into effect on January 26, 1992.

In recognition that many small businesses cannot afford to make significant physical changes to their stores or places of business to provide accessibility to wheelchair users and other people with disabilities, the ADA has requirements for existing facilities built before 1993 that are less strict than for ones built after early 1993 or modified after early 1992.

Private Businesses that Serve the Public: “Public Accommodations”

Private businesses that provide goods or services to the public are called “public accommodations” under the ADA. The ADA establishes requirements for twelve categories of public accommodations, including stores and shops, restaurants and bars, service establishments, theaters, hotels, recreation facilities, private museums and schools, and others. Nearly all types of private businesses that serve the public are included in the categories, regardless of size. Existing facilities are not exempted by “grandfather provisions” that are often used by building code officials.

New Construction and Alterations

The ADA requires that newly constructed facilities, first occupied on or after January 26, 1993, meet or exceed the minimum requirements of the ADA Standards for Accessible Design. Alterations to facilities, spaces or elements (including renovations) on or after January 26, 1992, also must comply with the Standards. Renovations or modifications are considered to be alterations when they affect the usability of the element or space. For example, installing a new display counter, moving walls in a sales area, replacing fixtures, carpet or flooring, and replacing an entry door. However, simple maintenance, such as repainting a wall is not considered an alteration by the ADA.

Disability Access: How to File an ADA Title III Complaint

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination based on disability in public accommodations. Private entities covered by title III include places of lodging, establishments serving food and drink, places of exhibition or entertainment, places of public gathering, sales or rental establishments, service establishments, stations used for specified public transportation, places of public display or collection, places of recreation, places of education, social service center establishments, and places of exercise or recreation. Title III also covers commercial facilities (such as warehouses, factories, and office buildings), private transportation services, and licensing and testing practices.

If you feel you or another person have been discriminated against by an entity covered by title III, one of your options is to file a complaint with the federal government. You can send a letter to the U.S. Department of Justice, at the address below, including the following information:

  • Your full name, address, and telephone number, and the name of the party discriminated against;
  • The name of the business, organization, or institution that you believe has discriminated;
  • A description of the act or acts of discrimination, the date or dates of the discriminatory acts, and the name or names of the individuals who you believe discriminated; and
  • Other information that you believe necessary to support your complaint. Please send copies of relevant documents. Do not send original documents. (Retain them.)

Sign and send the letter to the address below:

U.S. Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights – NYAVE
Washington, D.C. 20530

The Disability Rights Section of the U.S. Department of Justice’s Civil Rights Division will consider your complaint and inform you of its action. The office will investigate the complaint and determine whether to begin litigation, but will not necessarily make a determination on each complaint about whether or not there is an ADA violation. If the Disability Rights Section believes there is a pattern or practice of discrimination, or the complaint raises an issue of general public importance, it may attempt to negotiate a settlement of the matter or may bring an action in U.S. District Court. Any such action would be taken on behalf of the Unites States. The Disability Rights Section does not act as an attorney for, or representative of, the complainant.

You also have the option of filing your own case in U.S. District Court.

Depending on the nature of your complaint, other information would also be helpful to the government’s investigation:

    1. Small businesses have limited protection from lawsuits. Except with respect to new construction and alterations, no lawsuit can be filed concerning acts or omissions that occur before —

1) July 26, 1992, by businesses with 25 or fewer employees and gross receipts of $1,000,000 or less.

2) January 26, 1993, by businesses with 10 or fewer employees and gross receipts of $500,000 or less.

  1. The name or names of the individuals or entities who have an ownership and/or managerial interest in each facility or business that is the subject of your complaint, with phone numbers and addresses, including zip codes, if you have them.
  2. Information specifying whether the facility is owned and/or operated by a private entity or a state or local government.
  3. The nature of the activity or service provided by the business.
  4. If you are alleging failure to remove architectural barriers, a description (including as much detail as possible) of the barriers. If possible, please provide pictures, videotapes, diagrams, or other illustrations that accurately set forth the alleged violation.
  5. Any suggestions for remedying the alleged violations of the ADA.
  6. Information about whether you have filed a related complaint with a U.S. Attorneys Office, or any other federal, state, or local agency, or any court, or whether you intend to file such a complaint.

Disabled Access to Buildings and Businesses: FAQ

Q: What is a “public accommodation” under the ADA?
A: Private businesses that provide goods or services to the public are called public accommodations under the Americans with Disabilities Act (ADA). The ADA establishes requirements for twelve categories of public accommodations, including stores and shops, restaurants and bars, service establishments, theaters, hotels, recreation facilities, private museums and schools and others. Nearly all types of private businesses that serve the public are included in the categories, regardless of size.

Q: Is a business automatically required to remove “barriers” to access under the ADA?
A: If a business provides goods and services to the public, it is required to remove barriers to access if doing so is readily achievable. Such a business is called a public accommodation because it serves the public. If a business is not open to the public but is only a place of employment like a warehouse, manufacturing facility or office building, then there is no requirement to remove barriers. Such a facility is called a commercial facility.

Q: How do I determine what is “readily achievable” for a business?
A: “Readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. Determining if barrier removal is readily achievable is, by necessity, a case-by-case judgment. Factors to consider include:

1) The nature and cost of the action;

2) The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;

3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Q: If an area of a store is reachable only by a flight of steps, is the owner required to add an elevator?
A: Usually no. A public accommodation generally would not be required to remove a barrier to physical access posed by a flight of steps, if removal would require extensive ramping or an elevator. The readily achievable standard does not require barrier removal that requires burdensome expense. Thus, where it is not readily achievable to do so, the ADA would not require a public accommodation to provide access to an area reachable only by a flight of stairs.

Q: Are restaurants required to have menus in Braille?
A: No, not if waiters or other employees are made available to read the menu to a blind customer.

Q: Is a clothing store required to have price tags in Braille?
A: No, not if sales personnel can provide price information orally upon request.

Q: Do businesses need to rearrange furniture and display racks?
A: Possibly. For example, restaurants may need to rearrange tables and department stores may need to adjust their layout of racks and shelves in order to permit access to wheelchair users.

Q: Do businesses need to install elevators?
A: Businesses are not required to retrofit their facilities to install elevators unless such installation is readily achievable, which is unlikely in most cases.

Q: When barrier removal is not readily achievable, what kinds of alternative steps are required by the ADA?
A: Alternatives may include such measures as in-store assistance for removing articles from inaccessible shelves, home delivery of groceries, or coming to the door to receive or return dry cleaning. Only readily achievable alternative steps must be undertaken.

What is Discrimination?

In plain English, to “discriminate” means to distinguish, single out, or make a distinction. In everyday life, when faced with more than one option, we discriminate in arriving at almost every decision we make. But in the context of civil rights law, unlawful discrimination refers to unfair or unequal treatment of an individual (or group) based on certain characteristics, including:

  • Age
  • Disability
  • Ethnicity
  • Gender
  • Marital status
  • National origin
  • Race,
  • Religion, and
  • Sexual orientation.

Lawful vs. Unlawful Discrimination

Not all types of discrimination will violate federal and/or state laws that prohibit discrimination. Some types of unequal treatment are perfectly legal, and cannot form the basis for a civil rights case alleging discrimination. The examples below illustrate the difference between lawful and unlawful discrimination.

Example 1: Applicant 1, an owner of two dogs, fills out an application to lease an apartment from Landlord. Upon learning that Applicant 1 is a dog owner, Landlord refuses to lease the apartment to her, because he does not want dogs in his building. Here, Landlord has not committed a civil rights violation by discriminating against Applicant 1 based solely on her status as a pet owner. Landlord is free to reject apartment applicants who own pets.

Example 2: Applicant 2, an African-American man, fills out an application to lease an apartment from Landlord. Upon learning that Applicant 2 is an African-American, Landlord refuses to lease the apartment to him, because he prefers to have Caucasian tenants in his building. Here, Landlord has committed a civil rights violation by discriminating against Applicant 2 based solely on his race. Under federal and state fair housing and anti-discrimination laws, Landlord may not reject apartment applicants because of their race.

Where Can Discrimination Occur?

Federal and state laws prohibit discrimination against members of protected groups (identified above) in a number of settings, including:

  • Education
  • Employment
  • Housing
  • Government benefits and services
  • Health care services
  • Land use / zoning
  • Lending and credit
  • Public accommodations (Access to buildings and businesses)
  • Transportation
  • Voting

Anti-Discrimination Laws

Most laws prohibiting discrimination, and many legal definitions of “discriminatory” acts, originated at the federal level through either:

  • Federal legislation, like the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1992. Other federal acts (supplemented by court decisions) prohibit discrimination in voting rights, housing, extension of credit, public education, and access to public facilities.

OR

  • Federal court decisions, like the U.S. Supreme Court case Brown v. Board of Education, which was the impetus for nationwide racial desegregation of public schools. Other Supreme Court cases have shaped the definition of discriminatory acts like sexual harassment, and the legality of anti-discrimination remedies such as affirmative action programs.

Today, most states have anti-discrimination laws of their own which mirror those at the federal level. For example, in the state of Texas, Title 2 Chapter 21 of the Labor Code prohibits employment discrimination. Many of the mandates in this Texas law are based on Title VII of the Civil Rights Act of 1964, the federal law making employment discrimination unlawful.

Municipalities within states (such as cities, counties, and towns) can create their own anti-discrimination laws or ordinances, which may or may not resemble the laws of the state itself. For example, a city may pass legislation requiring domestic partner benefits for city employees and their same-sex partners, even though no such law exists at the state level.

Discrimination: Getting a Lawyer’s Help

If you believe you have suffered a civil rights violation such as discrimination, the best place to start is to speak with an experienced Discrimination Attorney. Important decisions related to your case can be complicated — including which laws apply to your situation, and who is responsible for the discrimination and any harm you suffered. A Discrimination Attorney will evaluate all aspects of your case and explain all options available to you, in order to ensure the best possible outcome for your case.

Comprehensive Summary of the Final Regulations to the ADA Amendments Act

On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) published final regulations implementing the ADA Amendments Act of 2008 (ADAAA), a statute that now greatly expands the number of employees and applicants who will be considered “disabled.”  The final regulations fundamentally change the manner in which an employer must treat and manage employees with medical conditions in the workplace, since it now will be much easier for individuals to establish that they are disabled.  This Comprehensive Summary provides an overview of some of the key provisions in the final ADAAA regulations to help employers better understand the key changes in the law and adopt strategies to minimize liability.

Background

As originally enacted, the Americans with Disabilities Act (ADA) defines an individual with a disability as a person who has a physical or mental impairment that “substantially limits” one or more “major life activities.”  Individuals may also be covered under the ADA if they have a “record of” a disability or are “regarded as” disabled.  Since the ADA took effect, the Supreme Court and lower federal courts have construed the definition of disability in a relatively narrow fashion.  On September 25, 2008, President Bush signed the ADAAA into law.  Although the ADAAA retains the same definition of “disability” under the original Act, it makes sweeping changes to the manner in which these terms are to be construed.

In short, the ADAAA and its final regulations now shift the focus of virtually every situation that implicates the ADA.  Before the amendments, the interpretation of the ADA largely focused on whether an individual was substantially limited in a major life activity and, therefore, disabled under the ADA.  Under the ADAAA’s broader construction, the focus is not directed toward the actual definition of disability, but rather on discrimination and reasonable accommodation.  Given the ADA’s new statutory framework and new regulations that stretch the statute even further, employers should be prepared now more than ever before to respond to accommodation requests, make accommodations where necessary, and take precautions to avoid discriminatory decisions involving employees and applicants with medical conditions.

A copy of the final regulations can be found here.  The EEOC also has issued a guidance sheet and a fact sheet to aid employers in understanding the final regulations.

The final regulations address key issues, which are covered in this executive summary.

  • Will certain impairments always be considered “disabilities”?
  • What constitutes a “major life activity?”
  • What does it mean to be “substantially limited” in a major life activity?
  • To what extent are temporary or episodic impairments considered disabilities?
  • How do “mitigating measures” affect the analysis of whether an individual is disabled?
  • What does it mean for an employee to be “regarded as” disabled?

Broad Construction of the Definition of “Disability”

Taking its lead from the ADAAA, the final regulations provide that the definition of “disability” should be “broadly” construed “to the maximum extent permitted by the terms of the ADA.”  (The message from Congress and the EEOC to employers could not be any clearer: Stop focusing on whether an individual is disabled and focus instead on reasonable accommodation.)  Although the final regulations track the definition of “disability,” a term which remained intact, the regulations clarify that there is a shift in focus to whether employers have complied with their obligations and whether discrimination occurred, as opposed to whether an individual meets the definition of a “disability.”

Certain impairments “virtually always” covered

Further illustrating the point, in spite of the ADAAA’s (and the final regulations’) rejection of the notion of a “per se” disability, the final regulations take the extraordinary step of listing certain impairments that “will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity.”  The EEOC suggests that these assessments should be “particularly simple and straightforward” (tellingly, the title of the subsection is “Predictable Assessments”).  These impairments include:

This list includes many conditions that often were not substantially limiting impairments under the pre-ADAAA.  Nevertheless, the list tends to undermine the EEOC’s long-held position that an “individualized assessment” should be conducted to determine whether an impairment is indeed a disability.

Notably, the final regulations removed a section from the proposed regulations that listed certain impairments that “may be disabling for some individuals but not for others,” such as asthma, back/leg impairment, carpal tunnel syndrome, high blood pressure, psychiatric impairment (less severe than major depression) and learning disability.  In light of the expansive sweep of the final regulations, however, plaintiffs with impairments like these, as well as others, likely will not face a difficult task in convincing a court that they are disabled.

Less Demanding Standard for “Substantially Limits”?

To be disabled, one must have an impairment that “substantially limits” a major life activity.  Under the pre-ADAAA, employers often questioned the extent to which an impairment must “substantially limit” before an individual is considered disabled.  Unfortunately for employers, the EEOC declined to quantify the term “substantially limits” in the final ADAAA regulations, explaining that “a new definition would…lead to greater focus and intensity of attention on the threshold issue of coverage than intended by Congress.”  As such, the final regulations offer employers little concrete guidance in identifying the threshold at which an impairment qualifies as “substantially limiting,” aside from the presumption that it must be a lower threshold than previously adopted by the U.S. Supreme Court in its decisions leading up to passage of the ADAAA.

Instead, the regulations provide “nine rules of construction” to be applied in determining whether an impairment “substantially limits” a major life activity.  Most of the rules come directly from the language of the ADAAA, but several have been added by the EEOC:

  1. “The term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.  ‘Substantially limits’ is not meant to be a demanding standard.”
  2. The determination of whether an impairment is “substantially limiting” should be made by comparing the ability of an individual to the general population.  The impairment does not need to “prevent, or significantly or severely restrict” the performance of a major life activity in order to be substantially limiting.
  3. In all ADA cases, the focus should be on whether the employer has complied with its statutory obligations, since the “threshold issue” of substantially limits should not require extensive analysis.
  4. “The determination requires an ‘individualized assessment,’ but the assessment should be done by requiring “a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.”
  5. Comparing an individual’s performance of a major life activity to the general population should not generally require scientific, medical or statistical analysis.
  6. The determination should be made without regard to the “ameliorative effects of mitigating measures” other than ordinary contact lenses and eyeglasses.
  7. “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
  8. An impairment need not limit more than one major life activity.
  9. The effects of an impairment lasting or expecting to last fewer than six months can be “substantially limiting.”

The Effect of Condition, Manner and Duration

Commenting further on the “substantially limits” prong, the final regulations explain that, to determine whether an individual is “substantially limited” in a major life activity, it may be useful to consider the condition under or the manner in which an individual performs a major life activity; the duration of time it takes the individual to the activity as compared to most people in the general population; and the difficulty, effort, pain or amount of time required to perform the activity.

For example, under the new regulations, it does not matter whether an individual with a learning disability can read and write like the majority of people in the general population.  The regulations focus instead on how difficult it was for the individual to reach the level of literacy, (i.e., how long it took and the conditions which the individual had to overcome).  As a result, an individual may be substantially limited in a major life activity even if he or she can perform the activity at the same level as the general population, if it took more time, effort or work to become proficient compared to most people in the general population.

The Interpretation of “Major Life Activities” is Expanded Further

To be disabled under the law, one must have a physical or mental impairment that “substantially limits” one or more “major life activities”.  When determining whether an individual is substantially limited in a major life activity, according to the final regulations and EEOC’s interpretive guidance provide, the process should “not demand extensive analysis” and “usually will not require scientific, medical or statistical analysis.”

Notably, the final regulations expand an already “non-exhaustive” list of what may be deemed major life activities to include eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating.  The final regulations also include additional examples of major life activities, such as sitting, reaching and interacting with others.  When determining other examples of major life activities, the final regulations expressly reject the pre-ADAAA interpretation that the activity must be of “central importance to daily life,” a rule which expressly rejects the Supreme Court’s ruling in Toyota Motor Manufacturing v. Williams.  In effect, an activity no longer is required to be of “central importance.”

In a significant departure from the past, the ADAAA and final regulations expand the definition of “major life activities” to include the “operation of major bodily functions,” such as the immune system and normal cell growth, and neurological, bowel, bladder, circulatory and reproductive functions.  The final regulations list several additional functions, such as cardiovascular, lymphatic and musculoskeletal, and specify that the operation of a major bodily function includes the operation of an individual organ within the body (such as the liver or heart).  The appendix to the final regulations provides several examples of impairments that affect major bodily functions, e.g., cancer affects normal cell growth; diabetes affects functions of the pancreas and endocrine system; and rheumatoid arthritis affects musculoskeletal functions.

Work as a “major life activity”

The regulations also breathe new life into the “major life activity” of working.  Under the pre- ADAAA, a plaintiff’s claim that he or she was substantially limited in the major life activity of work almost always was dismissed by the court, largely because the employee was unable to show that the impairment substantially limited the employee’s ability to perform a “broad range” of jobs.  The final regulations maintain this requirement but lower the employee’s burden, claiming that this previous standard was “overly strict.”  Under the new regulations, if an individual’s job requires heavy lifting but the employee cannot lift heavy items and cannot perform the job or other jobs that require heavy lifting, then the employee is substantially limited in performing the class of jobs that require heavy lifting.  Is this shift in the rule all for naught?  As the final regulations point out, an impairment that substantially limits working will in most situations also substantially limit another major life activity.

Other Significant Regulatory Changes

Nearly All “Mitigating Measures” Are No Longer Considered

Under prior Supreme Court and federal appellate court precedent, employers were allowed to consider “mitigating measures” in determining whether an individual’s impairment substantially limits a major life activity under the ADA.  For example, if an individual used a hearing aid or cochlear implant due to a hearing impairment, it typically was not considered a disability because the individual was not substantially limited in the major life activity of hearing.  Because of the mitigating measure (i.e., the hearing aid), they could hear perfectly well.  Under the new regulations, however, employers are no longer allowed to consider such measures.  As a result, employers will be required to analyze each individual’s impairment in its unmitigated state.  Thus, the individual with a hearing aid would likely be substantially limited in hearing because we are obligated now to consider them without the use of a hearing aid.

The final regulations do provide one important exception: employers are permitted to consider the ameliorative effects of using ordinary eyeglasses or contact lenses.  The term “ordinary eyeglasses or contact lenses” is defined as lenses that are intended to fully correct visual acuity or to eliminate refractive error.  For example, an individual with severe myopia whose visual acuity is fully corrected is not substantially limited in seeing because the ameliorative effect of the lenses must be considered.  Similarly, eyeglasses or contact lenses that are the wrong or outdated prescription may nevertheless be “ordinary” if there is evidence that a proper prescription would fully correct visual acuity or eliminate refractive error.

What is also important to note is that both the ameliorative and non-ameliorative effects of mitigating measures, as well as the individual’s use or non-use of such measures (e.g., taking or refusing to take medication, even though prescribed by a physician) can be considered when determining whether the employee is a “qualified” individual with a disability or whether the employee poses a direct threat to safety; however, it will not affect whether the individual meets the definition of being disabled.

Temporary and Episodic Impairments May Constitute disabilities

Under the final regulations, short-term impairments and chronic impairments with short-term symptoms may be considered disabilities.  In the past, many courts declined to extend ADA coverage to individuals whose impairments were substantially limiting for only a short or limited period of time.  The new regulations reject this reasoning and prescribe that the duration of an impairment or symptom should not be dispositive in determining whether an individual is disabled.

Temporary and Short-Term Impairments

Clearly, one of the most significant changes to the final regulations is the EEOC’s decision to reject the long-held view that temporary impairments are not substantially limiting.  The EEOC previously took the position that the duration or expected duration of an impairment should be considered in determining whether the impairment is disabling.  That no longer appears to be the case.  The final regulations ambiguously state that “an impairment lasting or expected to last fewer than six months can be substantially limiting.” (Emphasis added).  When this language was first proposed, many commenters expressed that the new language would create confusion as to how long an employer’s impairment must last or be expected to last in order to impose ADA obligations on the employer.  (Further complicating matters, the regulations state that an employee who is regarded as having a “transitory and minor” impairment that is expected to heal shortly is not considered disabled.  Thus, it is conceivable that individual with a temporary impairment, such as a broken hand, may be disabled because the impairment substantially limits a major life activity, but may not be “regarded as” disabled for purposes of the Act.)

In response to these concerns, the EEOC opined that specifying a durational minimum for a disability would impose a more stringent standard than what Congress required.  In fact, the final regulations go even further than the proposed regulations on this point.  In the proposed rules, the EEOC identified a category of temporary non-chronic impairments that usually would not be considered a disability—for example, the common cold, seasonal influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis and seasonal allergies.  The EEOC deleted this category in the final regulations, explaining that the provision caused confusion and was too limiting.

The EEOC’s position on the issue of temporary impairments is debatable.  It is not clear that Congress intended to extend ADA coverage to short-lived impairments.  Moreover, it is still likely that certain impairments of short duration which are expected to heal quickly, such as a common cold or a sprained ankle, will not be considered disabilities.  However, the regulations make clear that employers must consider all impairments, even short term ones, on a case-by-case basis.

Episodic Impairments

Under the ADAAA and the final regulations, an episodic impairment or impairment in remission is a disability if the impairment would substantially limit a major life activity when active.  This means that an individual with a serious chronic condition such as epilepsy or cancer could be considered disabled under the Act even if that person rarely or never experiences symptoms that would impact their employment.  The regulations provide specific examples of impairments that may be episodic in nature, including epilepsy, cancer, multiple sclerosis, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder and schizophrenia.

The Act’s express inclusion of episodic impairments presents some practical challenges for employers.  Many episodic impairments are unpredictable in their effects on the individual.  For example, an employee diagnosed with asthma may not experience an attack for several months.  However, the fact that an asthma attack could limit a major life activity may require the employer to provide a reasonable accommodation.  The same is true for progressive impairments, such as Parkinson’s or Alzheimer’s Disease.  Many Parkinson’s and Alzheimer’s patients do not experience any symptoms in the early stages of the disease.  Nevertheless, the fact that an individual could at some point in the future experience symptoms that would substantially limit a major life activity likely would render the person disabled even before the condition worsens and (practically speaking) substantially limits a major life activity.

“Regarded As” Individuals Need Only Prove Perception of an “Impairment”

Under the original ADA as interpreted by the courts, an individual was “regarded as” disabled only when the employer perceived the individual to have an impairment that “substantially limited” him or her in a major life activity.  Under the final regulations, the same individual seeking to bring a “regarded as” claim need not prove that the employer believed the individual to have an impairment that substantially limits a major life activity, but merely that the employer perceived the employee as having an “impairment,” and based an employment decision on that perception.

Under the ADAAA, an individual subjected to a prohibited action (e.g., failure to hire, denial of promotion, termination or harassment) because of an actual or perceived impairment will meet the “regarded as” definition of disability whether or not the impairment “substantially limits” a major life activity unless the impairment is both transitory and minor.  The ADAAA further clarifies that a person who is “regarded as” disabled is not entitled to a reasonable accommodation unless the person also fits within one of the other two prongs of the definition of “disability.”

Notably, the final regulations specify that the “regarded as” prong should be the primary means of establishing coverage in ADA cases that do not involve reasonable accommodation, and that consideration of coverage under the first and second prongs will generally not be necessary except in situations where an individual needs a reasonable accommodation.

The final regulations further clarify that establishing that an individual is “regarded as having such an impairment” does not, by itself, establish liability.  Thus, even where an individual proves that an employer made a decision on the basis of an actual or perceived impairment, the employee must still show that he was “qualified” for the position in question in order to establish an ADA violation (i.e., he can perform the essential job functions of the position with or without a reasonable accommodation).   The employer may also utilize any otherwise available statutory defenses.  For example, an employer may still defend a decision to refuse to hire an applicant on the grounds that the individual would pose a “direct threat” to health and safety due to the nature of his impairment.

The proposed regulations originally identified several concrete examples of “transitory and minor” impairments that would not be sufficient to meet the “regarded as” prong of the statute, such as a broken bone that is expected to heal normally or a sprained wrist that was expected to heal in three weeks.  Unfortunately, these concrete examples were omitted from in the final regulations, leaving employers without clear guidance as to what constitutes a “transitory and minor” impairment.  Instead the appendix to the final regulations stress only that the inquiry as to whether an impairment is “transitory and minor” is an objective standard and provides these examples:

For example, an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the employee’s impairment was transitory and minor, since bipolar disorder is not objectively transitory and minor.  At the same time, an employer that terminated an employee with an objectively ‘‘transitory and minor’’ hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have ‘‘regarded’’ the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not ‘‘transitory and minor.’’

Notably, the final regulations give no example of an impairment that EEOC would find to be “transitory and minor” under this standard.

What about an employee’s symptoms?

In a nod to employers, the final regulations do not include a provision contained in the proposed regulations providing that actions taken because of an impairment’s symptoms (or because of the use of mitigating measures) constitute actions taken because of an impairment under the “regarded as” prong.  Employer commentary pointed out that this proposed standard could create liability for an employer when, for example, disciplining an employee for violating a workplace rule, even where the violation resulted from a symptom of an underlying impairment of which the employer was unaware.  This would have resulted in a clear departure from the EEOC’s existing policy guidance and court decisions, which recognize, among other things, that an employer may discipline an employee for job related misconduct resulting from a disability if the rule or expectation at issue is job related and consistent with business necessity.  EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No.  915.002 Mar. 25, 1997 http://www.eeoc.gov/policy/docs/psych.html.  The preamble to the Final Regulations states that this prior Guidance remains in effect, at least for now.

How Do Employers Respond to the New Regulations?

One might ask whether any employee is considered disabled under these new regulations.  Clearly, the ADAAA and its final regulations change how employers respond to and manage employees with medical conditions and who request accommodations in the workplace.  At a minimum, we suggest employers take the following approach to the “new” ADA.

  • The range of impairments that may substantially limit a major life activity has widened considerably.  Although not every impairment will constitute a disability, the analysis of whether an impairment “substantially limits” a major life activity will not be the focus of a court’s inquiry.  In light of this change in emphasis, employers should not focus on whether an employee is actually “disabled;” rather, they should focus on insuring that they are in compliance with the statute.  Therefore, as an initial matter, employers should review and revise workplace reasonable accommodation policies to ensure employees are aware of the policies and to make clear the lines of communication as to accommodations in the workplace.  Similarly, employers should maintain processes for identifying, evaluating, documenting and providing reasonable accommodations as required.
  • Employers should be proactive about engaging in an interactive process with employees who have an impairment.  In doing so, they should identify which among their personnel will be responsible for addressing issues of accommodation, and actually engage in an interactive process when an individual makes a request for assistance in the workplace.  An employer’s best tactic in defending an ADA lawsuit is to demonstrate that it made good faith efforts to accommodate an employee, rather than questioning or challenging the employee’s medical condition.  Thus, the interactive process above must become the norm.
  • Review all job descriptions to ensure they specifically and accurately describe the essential functions of the job.  Notably, under the new definition of a “regarded as” disability, any decision that relies in whole or in part on any perceived or actual physical impairment will be subject to scrutiny under the ADAAA.  It is now more important than ever to insure that any physical or mental job requirements are truly necessary.Employers should insure that all anti-harassment policies explicitly prohibit harassment based on disability, or perceived or actual physical or mental impairments.  Potential liability for disability-related harassment claims has increased because offensive statements that relate in any way to a mental or physical impairment may give rise to liability, regardless of whether the alleged victim actually suffered from an impairment or was otherwise disabled.  For example, an employee who calls a co-worker “psycho” or “retarded” could potentially create an actionable hostile work environment under the ADA even if the co-worker has no mental health history and has an above-average IQ.
  • Properly and contemporaneously document employment decisions involving an employee who is an individual with a disability or has a record of a disability.
  • Analyze pre- and post-employment testing and screening (including language contained in employment applications) to ensure they are job-related and consistent with business necessity.
  • Train supervisors and managers as to the broad coverage of the ADAAA and their responsibilities under the new Act.  At a minimum, the focus of training should include: 1) how they identify requests for workplace modifications; and 2) who they partner with in Human Resources as to the “interactive process” regarding modifications.

Workers with Intellectual Disabilities Abused by Texas-Based Company for Years, EEOC Charges

Men Subjected to Verbal and Physical Harassment, Housed in Substandard Facilities, and Denied Lawful Wages at Iowa Plant, Federal Agency Alleges

DALLAS – Hill Country Farms, doing business as Henry’s Turkey Service (“Henry’s Turkey”) subjected a group of 31 men with intellectual disabilities to severe abuse and discrimination for more than 20 years, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed today in Davenport, Iowa. The company is based in Goldthwaite, Texas, but the work and abuse occurred in West Liberty and Atalissa, Iowa.

According to the lawsuit, No. 3:11-cv-0004  CRW-TJS  , filed in U.S. District Court for the Southern District of Iowa, Henry’s Turkey exploited these workers, whose jobs involved eviscerating turkeys, because their intellectual disabilities made them particularly vulnerable and unaware of the extent to which their legal rights were being denied. The affected men lived in Muscatine County, Iowa, where they worked for 20 years as part of a contract between Henry’s Turkey and West Liberty Foods, an Iowa turkey processing plant.

“This case is a stark reminder of how important it is for the EEOC to ensure that the Americans with Disabilities Act is fully enforced,” said EEOC Chair Jacqueline A. Berrien.  “Workers with intellectual disabilities should never be subjected to the demeaning and discriminatory treatment alleged in this case.”

Specifically, the complaint alleges that that the owners and staffers of Henry’s Turkey denied the workers lawful wages, paying them only $65 a month for full-time work; subjected them to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.

Verbal abuses included frequently referring to the workers as “retarded”, “dumb ass” and “stupid”.  Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  The Henry’s Turkey supervisors, also the workers’ purported caretakers, were often dismissive of complaints of injuries or pain.

Such alleged conduct violates the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Amendments Act (ADAAA), which prohibit discrimination on the basis of disability, including intellectual disabilities, in terms and conditions of employment and wages; and bars disability-based harassment.  The EEOC filed suit after first attempting to resolve the matter through conciliation.

“This case illustrates the importance of continued vigorous enforcement of the law in this area.  The victims in this case were subject to a hostile work environment and discriminatory treatment because of their disability,” said P. David Lopez, EEOC General Counsel.  “The EEOC stands ready to litigate such cases, wherever in our nation such employment discrimination might take place, to make victims whole and to bring workplaces into compliance with the ADA.”

The EEOC will seek to recover lost wages for two years prior to the time that the Henry’s Turkey operations were brought to a halt in 2009.  The EEOC seeks amounts consistent with minimum wages and based on pay levels commensurate with the work performed by non-disabled workers occupying the same job positions.  The agency will also seek the award  of compensatory and punitive damages resulting from adverse employment actions and abusive treatment.  During its investigation, the EEOC worked closely with Disability Rights Iowa, an organization that works to advance and protect the rights of people with disabilities and its Executive Director, Sylvia Piper.

“The isolation and exploitation these men suffered for many years, while the fruits of their labor were cruelly consumed by their employer, cannot be explained away by good intentions, nor can the violations of the ADA be excused as antiquated social policy,” said Robert A. Canino, Regional Attorney of the EEOC’s Dallas District Office, which investigated the case and is bringing the lawsuit.  “Our society has come a long way in learning how persons with intellectual disabilities should be fully integrated into the mainstream workplace, without having to compromise their human dignity. The ADA provided us with a law enforcement tool to ensure fair treatment for persons with physical and mental disabilities. We are asking the court to apply this law to the fullest extent possible.”

The lawsuit follows an EEOC Commission meeting held March 15, 2011, that explored the issue of discrimination on the basis of mental disabilities.  On March 24, the EEOC issued its final regulations interpreting the ADAAA, which simplified the determination of who has a “disability” and made it easier for people to establish that they are protected by ADA.

In addition to the EEOC’s ADA claim of disability-based wage discrimination, the U.S. Department of Labor is pursuing a separate minimum wage and overtime suit against Henry’s Turkey under the Fair Labor Standards Act, which is set for trial later this year.  Additionally, a Final Agency Decision issued on March 8, 2011, by the Iowa Department of Workforce Development, Division  of Labor, found  Henry’s Turkey and its principals responsible for substantial fines for violations of Iowa’s wage and hour laws.

New ADA Regulations Become Effective May 24, 2011

The long-awaited final regulations implementing the ADA Amendments Act (ADAAA) were published in the Federal Register on Friday, March 25, 2011. The regulations become effective sixty days from the date, on May 24, 2011.

Background

The ADAAA was passed by Congress in 2008, became effective on January 1, 2009, and amended the Americans With Disabilities Act (ADA).  The purpose of the ADAAA was to make it easier for an individual to establish that he or she has a disability within the meaning of the ADA by requiring a broad and more lenient interpretation of disability under the law.  The Equal Employment Opportunity Commission (EEOC) issued proposed regulations under the ADAAA on September 23, 2009.

After reviewing more than 600 public comments to the proposed rules, the EEOC published the final regulations, along with an Appendix containing the EEOC’s interpretive guidance.  According to the EEOC, the Appendix “will continue to represent the Commission’s interpretation of the issues discussed in the regulations, and the Commission will be guided by it when resolving charges of discrimination under the ADA.”

Employer groups have generally found the final regulations to include improvements over the regulations as initially proposed.

Highlights of the final regulations

• References to “a qualified individual with a disability” have been deleted, consistent with the ADAAA.

• Under the “regarded as” prong of the definition of disability, an individual is no longer required to show that he/she is regarded by the employer as being substantially limited in a major life activity.  Rather, the individual must merely show that that he/she has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor.”

• The EEOC has made clear that where an individual is not seeking a reasonable accommodation, but only complaining about discrimination, then the case should normally proceed under the “regarded as” prong and it is generally unnecessary to invoke prongs one or two, i.e., the “actual disability” or “record of” disability prongs.  Under the ADAAA, an individual who proceeds under the “regarded as” prong is not entitled to a reasonable accommodation as a remedy.

• The EEOC has deleted the long-standing definition of major life activities as those basic activities that most people in the general population “can perform with little or no difficulty,” as being an irrelevant consideration.  As a result, the final regulation simply provides examples of activities that qualify as “major life activities” because of their relative importance.

• The final regulations do not define “substantially limits.”  Rather, the final regulations set out nine “rules of construction” to be used in determining whether an impairment is substantially limiting.

• The EEOC has made clear in the Appendix that the fact that an individual elects not to utilize mitigating measures is irrelevant to the determination of whether an impairment is substantially limiting.  However, the EEOC has clarified that the use or non-use of mitigating measures may be relevant in determining whether the individual is qualified or poses a direct threat to safety.

• In the proposed regulations, the EEOC included a list of impairments that would “consistently meet the definition of disability.”  In the final regulations, the EEOC has clarified that the analysis of whether any of these impairments substantially limits a major life activity still requires an individualized assessment.  However, the individualized assessment will, in virtually all cases, result in a finding that the impairment substantially limits a major life activity.

• The final regulations deleted the proposed regulations (a) listing impairments that may be substantially limiting for some individuals but not others; and (b) providing examples of impairments that “are usually not disabilities.”

• The final regulations reinstated use of the terms “condition, manner, or duration” as concepts that may be relevant to the determination of whether an impairment is substantially limiting.

• The final regulations move the discussion of how to analyze the major life activity of working to the Appendix and have retained the original formulation of “class or broad range of jobs” in analyzing whether an individual is substantially limited in this major life activity.  The proposed regulations sought to replace the concepts of “class” or “broad range” of jobs with the concept of “type of work.”  The EEOC concluded that this change would create confusion.

• The final regulations make clear that even if ADA coverage is established under the “regarded as” prong of disability, the individual must still establish the other elements of a claim of discrimination, e.g., the individual is qualified, he/she has been discriminated against because of the impairment, etc., and the employer may raise any available defenses, e.g., the impairment was transitory and minor.  However, the final regulations also point out that the concepts of “major life activities” and “substantially limits” are not relevant in evaluating coverage under the “regarded as” prong.

Social Media Research + Employment Decisions: May Be a Recipe for Litigation

We are the Google generation. We meet someone interesting, and then search the Internet to learn more about them. There is nothing wrong with doing this in the context of networking, making new friends, or pitching for business. However, searching the Internet for information about someone who is trying to get a job with your company is another matter entirely. This is not to say you cannot Google them. In fact, it is estimated that 45% of companies research a job candidate on the Internet. In a December 2009 survey commissioned by Microsoft, 70 percent of the 275 U.S. recruiters, human resources professionals and hiring managers who responded said they have rejected candidates based on information found online. Thirty-five percent of those employers said they rejected applicants based on membership in certain groups.

You might be thinking, “what could possibly be wrong with finding public information that the job candidate has freely shared on the Internet?” “Having shared that information, the company should be able to ask him about it. After all, the job applicant is not making a secret of it.”

Protected Classes Under Federal and State Law

Now, step back and think for a moment. There are subjects that are considered off limits for employers to ask job applicants about. Under federal law, Title VII of the Civil Rights Act prohibits discrimination when making employment related decisions. A company cannot make hiring, discipline and termination decisions based on any of the following protected factors: race, color, national origin, religion and gender. The Age Discrimination in Employment Act (ADEA) adds to the list with a prohibition on discrimination against individuals who are 40 years or older. And, finally, the Americans With Disabilities Act of 1990 prohibits discrimination against “qualified disabled” individuals. Employment decisions are defined broadly and include promotion, demotion, compensation, and transfers.

Many states add additional areas that are off limits for making employment decisions. For example, California also gives protected status to: sexual orientation, marital status, pregnancy, cancer, political affiliation, genetic characteristics, and gender identity.

It is very easy to see how someone with a Facebook page may post about these protected factors. Thus, the challenge for employers who are researching job applicants, or monitoring the social media activity of their employees, is not to let this protected status information bleed into their employment decisions. Under federal and state law, employers should not make employment decisions that are “motivated by” a person’s membership in a protected class.

Lawsuit Filed After Internet Search Resulted in Religious Inquiry of Job Candidate

This lesson was learned the hard way by the University of Kentucky (“University”). The University is being sued for religious discrimination under Title VII of the Civil Rights Act. The case, Gaskell v. University of Kentucky, has been covered in the news media as a rare example of a lawsuit by a scientist for religious persecution.

Gaskell also demonstrates that there are legal risks to looking at a prospective or current employee’s social media activity. In an order denying the University’s motion to dismiss in late November 2010, the federal district court for Kentucky summarized the facts of the case.

In 2007, the University established a search committee to find a director for the University observatory. The Committee included members of the Physics and Astronomy Department, including the Chair of the Department, Dr. Michael Cavagnero, and staff member Sally Shafer. The Committee was considering 7 applicants with Dr. C. Martin Gaskell ranked as the number one candidate.

“There is no doubt that based on his application, Gaskell was a leading candidate for the position. In fact, Dr. Cavagnero wrote to the [Search] committee that ‘Martin Gaskell is clearly the most experienced…” and pointed out that ‘Keith [MacAdam] and I visited him last year to learn how to build an observatory on a parking structure.”. A few weeks later, Troland [Chair of the Search Committee] wrote the committee that Gaskell ‘has already done everything we could possibly want the observatory director to do.'”
During the search process, Committee member Shafer decided to research Dr. Gaskell on the Internet. Shafer found his University of Nebraska-Lincoln (“UNL”) website which linked to Dr. Gaskell’s personal website. This website contained an article entitled “Modern Astronomy, the Bible, and Creation.”

Shafer circulated the article to the Search Committee. The Committee also found notes on Dr. Gaskell’s personal website from a lecture he gave at the University in 1997 on “Modern Astronomy, the Bible, and Creation.” The Committee showed these notes to members of the University’s biology department because the notes discussed biological principles. The biologists expressed concern about Gaskell’s “creationist” views and the impact of these views on the University. The biologists warned that the Biology Department would refuse to cooperate with the Physics and Astronomy Department on the building of an “outreach science team” if the Department hired one of “these types of individuals.”

In his complaint, Dr. Gaskell alleges that Dr. Cavagnero asked about his religious beliefs, and allegedly said that Dr. Gaskell’s religious beliefs and his “expression of them would be a matter of concern” to the dean.

Days before the Search Committee recommended someone else for the position, Professor Thomas Troland, Chair of the Committee sent an email with the subject line, “The Gaskell Affair”:

It has become clear to me that there is virtually no way Gaskell will be offered the job despite his qualifications that stand above those of any other applicant. Other reasons will be given for this choice when we meet Tuesday. In the end, however, the real reason why we will not offer him the job is because of his religious beliefs in matters that that are unrelated to astronomy or to any of the duties specified for this position (For example, the job does not involve outreach in biology.)… If Martin were not so superbly qualified, so breathtakingly above the other applicants in background and experience, then our decision would be much simpler. We could easily choose another applicant, and we could content ourselves with the idea that Martin’s religious beliefs played little role in our decision. However, this is not the case. As it is, no objective observer could possibly believe that we excluded Martin on any basis other than religious…..”

The University managed to avoid the Court granting Gaskell’s motion for partial summary judgment based on the “mixed motives” provision of Title VII. In mixed motives cases, the plaintiff can still win by showing that the defendant’s consideration of a protected characteristic “was a motivating factor for the employment practice, even though other factors also motivated the practice.” 42 U.S.C. S 2000e-2(m).

At trial, which is presently scheduled for February 2011, the University is expected to argue that its hiring decision was based on legitimate concerns that Dr. Gaskell would violate University policy by linking the University website to his personal website as he did at UNL. Further, that the University’s decision was not motivated by concerns over his religious beliefs, but with his public comments that there were scientific problems with the theory of evolution. According to the University, these views would impair his ability to serve as the Observatory Director.

Suggested Guidelines for HR Departments and Managers

Whatever the outcome of this litigation, it has been costly and perhaps damaging to the reputation of the University. Some lessons to be learned from the case are: (1) HR department training on interview skills and managing employees should include the ways in which information taken from social media and Internet searches can possibly give rise to allegations of employment discrimination; and (2) Internet searches of job applicants or employees should be done ideally by people who are removed from making employment decisions so they can filter out information that are protected factors before the search results are forwarded to the company employees who are giving performance reviews or making recommendations on hiring, promotions, or downsizing. Alternatively, if the information is considered relevant to a bona fide occupational qualification (“BFOQ”), and shared, then it should be communicated under the guidance of experienced legal counsel. The BFOQ is a narrow exception and applies to a limited number of cases.