May 21, 2014
High school and college graduations remind The Bullard Edge of those bygone times – homework assignments, rushing between classes, lunch lines and substitute teachers. To help you relive those days, we are giving a Wednesday morning pop quiz on the ADA. (Don’t worry – it’s true or false.)
The Auberge Inn is a popular honeymoon destination. Its 50 suites all have panoramic lake and mountain views. Honeymooners love the Inn’s commitment to service and to anticipating guest needs. Every employee has a business card with the job title “Assistant Concierge” and must be able to cook, recommend wine, book reservations and fully communicate with guests. To make sure all candidates are qualified, the Inn’s post offer, pre-employment medical exam includes meeting the Inn's hearing threshold; the Inn rescinds offers to any candidate whose hearing falls below its threshold (hearing aids allowed). The ADA’s requirement for an individualized assessment does not apply in this case because hearing at the threshold level is necessary for all positions. True or false?
After graduating third in his law school class, A.C. Councille received a conditional offer of employment from the Mei Kupp Rheules law firm (conditioned on passing the bar exam). Unfortunately, A.C. did not pass the exam and the firm withdrew the job offer. He protested and pinned his failure on the State Bar and its refusal to accommodate his visual deficit disorder (a cousin of dyslexia). His law school allowed him to use an electronic reader for exams, but the State Bar refused to do that for the bar exam. A.C. told the firm he was suing the State Bar; he said he would sue the firm, too, if it refused to give him another chance to pass the bar exam. Mei Kupp Rheules refused and urged A.C. not to sue because the law clearly supported the firm. True or false?
Pencils down. Let’s see how you did (if you showed your work, you will get partial credit).
Question 1: False.
The ADA requires employers to assess on a case-by-case basis whether an individual is able to perform the essential functions of the job with or without reasonable accommodation. The individualized approach may lead to the same result almost every time, but it is a step that an employer must take to avoid liability.
This rule of law was the subject of a federal lawsuit that EEOC filed last year against a railway company. In that case, a maintenance worker had taken leave to receive treatment for a degenerative disc disease and later was released to return to work by his doctor. EEOC contended that the company violated the ADA when it refused to permit an employee to return to work because of the disc disease without first conducting an individualized assessment as to whether the employee could perform the essential functions of his job. Earlier this week, EEOC announced that the lawsuit had been settled through a consent decree; the company denied any wrongdoing, but agreed to pay $110,000, to provide training, and to post notices.
Question 2: True.
While the ADA requires employers to assess on a case-by-case basis whether an individual is able to perform the essential functions of the job with or without reasonable accommodation, the ADA does not require that legitimate qualification standards be modified or eliminated. A person must still be “otherwise qualified” for a position. As long as the firm does not allow other candidates multiple tries to pass the bar exam, the ADA does not require the firm to provide A.C. with a second chance.
In the Appendix to its ADA regulations, EEOC provides the following helpful example:
“For example, if a law firm requires that all incoming lawyers have graduated from an accredited law school and have passed the bar examination, the law firm need not provide an accommodation to an individual with a visual impairment who has not met these selection criteria. That individual is not entitled to a reasonable accommodation because the individual is not ‘otherwise qualified’ for the position.
On the other hand, if the individual has graduated from an accredited law school and passed the bar examination, the individual would be ‘otherwise qualified.’ The law firm would thus be required to provide a reasonable accommodation, such as a machine that magnifies print, to enable the individual to perform the essential functions of the attorney position, unless the necessary accommodation would impose an undue hardship on the law firm.”
While he does not have a claim against the Mei Kupp Rheules law firm, A.C. may have success suing the State Bar for denying him an accommodation in the test taking process (under Title III of the ADA). Yesterday, the US Department of Justice announced agreement for entry of a consent decree in a similar "testing conditions - refusal to accommodate" case. In that matter, DOJ filed suit against the Law School Admission Council alleging that the LSAC had violated the ADA by failing “to offer the LSAT in a manner accessible to individuals with disabilities” and by its practice of “annotating, or ‘flagging,’ test scores achieved with the testing accommodation of extended time.” While the LSAC continues to expressly deny all of these allegations, it has agreed to pay $7.73 million in penalties and damages to the class of alleged victims.
Ownership of the qualification standard is the distinction between Questions 1 and 2.
The Auberge Inn owns the hearing standard; it decided that a certain level of hearing was needed to perform the essential functions of every position required. This runs afoul of the ADA requirement that employers, like the Auberge Inn, make an individualized assessment that focuses on whether a particular individual is able to perform the essential functions of the specific job sought.
On the other hand, the Mei Kupp Rheules law firm did not establish the standard that lawyers pass the bar exam as a condition to being allowed to practice law in the state. The "admission to the state bar" standard is an independent requirement under the law. Regardless of how the firm feels, a lawyer is not “otherwise qualified” to practice law until that requirement has been met.
The Bullard Edge
Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it. Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be.
The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond. Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.