Event ID: 1083971 Event Started: 9/23/2008 6:00:00 PM ---------- Please stand by for real-time relay captioning. >> Sound check here. >> System okay? >> [indiscernible] information correctly, anyone else like to do a check at this time, couple minutes or so special we will start, thank you. >> >> What if I raise the volume? >> Captioner: That may help. >> Any better, any clearer? >> The set-up is, conference is through the Internet, through computer speakers, what I am trying to figure out, how to get the sound better from the computer. >> I will have to get us started, need you to refresh slides. Welcome everyone to the 2008 [indiscernible] Webinar series. Our discussion today is going to be on the topic of threat, safety in the workplace. Our speaker is -- from -- in the state of Illinois. Has been a speaker throughout the series this last year, we thank them for their time and effort in this program and everyone enjoys the session today. >> I will turn it ever over to them. >> Thanks, Robin. If you have difficulty hearing, type that in, I will watch the queues as we go along. Today's topic is direct threat and safety in the workplace. We will divide up the presentation, first starting with an overview of what direct threat topics are. You will see them on the screen. I will talk about the foundations of direct threat, decided before the ADA was passed and I will talk about the ADA, regulations, what they say about direct threat and the scope of direct threat who it effect and what context it effects. Then at that point I will turn it over to Alan, [indiscernible] relevant to direct threat, individualized assessment of the person's ability to do the job, medical direction and issues, and after that we will take a break, see if there are questions and I will resume with the last few topics, when can reasonable accommodations eliminate a direct athlete threat and additional cases that have been emerging, then open for further s at questions at that point. >> The foundation of the ADA's direct threat is based on a Supreme Court case before ADA was passed, a rehabilitation case in the 1970s. As most of you know, that law was passed to protect people against discrimination in entities that receive federal funding. This was brought on behalf of a school teacher who worked for a school receiving federal funding, applicable under section 504 of the rehabilitation act. The definition of disability is identical in the ADA and rehab act, has been very instructional for courts in deciding the ADA. >> This was a case brought by a teacher with tuberculosis, back in 1957, first showed up for her, went into remission for about 20 years. So it then became more active in the late 70s, and that's when the school became concerned about possible danger in the workplace. Interestingly, the first issue isn't about direct threat, but whether or not tuberculosis was really a disability. There hasn't been case law about containchs contagious diseases and what -- and the court determined, yes, they are. Should have been easy to solve, but was ground-breaking in that this had never been decided by a major court before. The argument the other side said, the rehabilitation act was intended to protect against discrimination on themselves, not on the disability's effects on others. Not only did she plead actual disability, but also because of the history of disability she was protected under the rehabilitation act based on records of disability. This is the major Supreme Court case on records of disability. When those issues come up it's instruck thed to look at this case. >> Those interested in the actual citation [indiscernible] -- [no audio] >> I had the lock key on, I will just -- not sure when I went out, but basically I was getting to the point describing the case. The case was about the woman who, whether or not she was a threat in the workplace or not. The Supreme Court ultimately found that the lower court did not do a proper analysis on direct threat. They really you should not be making an assessment on diagnosis A loin. A alone. You have do an individualized assessment. Some people with contagious disease -- the disability or disease impacts them, particular diagnosis isn't enough information. >> They talked about what discrimination law is about, protecting the person to be free from the rights of and discrimination, and avoiding safety risks. The other thing they said in the decision that's really important and you am see over and over in the ADA direct threat cases, you have to rely -- reasonable medical judgment of public health officials. They also said you have to, even if somebody looks like they may pose a direct threat, before you make adverse decision you have to explore whether any reasonable accommodations are available before you make the decision. Reasonable accommodations that may reduce the risk and threat. The Supreme Court really laid the groundwork for the ADA provisions on that. >> The other thing it did that was significant, you will see over and over in the cases, identified four important factors courts need to look at when reviewing direct threat. The first is nature of the risk. Nature of the risk, I mean how the disease was transmitted, or would be transmitted. You look at duration of risk, meaning how long the person has been infectious, how long they will continue to be infectious. Looking at potential harm to other people. The last is probability of the risk and the likelihood of harm. Even severe risk, if it's very unlikely to happen, that would undercut the ability to define it as direct threat. In this case the court wasn't able to determine whether the person met the four factors or not, there wasn't enough facts determined by the trial court. They sent the case back, but in doing so, before they sent it back, they developed the framework that all day long ADA direct threat cases are now founded upon, incorporated into the ADA and regulation and subqent decisions. >> Next slide. You will see here, definition of direct threat in the ADA and the gef definition under EEOC regulations, it's interesting that they are not identical. That caused confusion and the courts cleared that up a little. We will talk about that in a second. I want to go over this. There are drchtion differences. Definition of direct threat, significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. You look at EEOC's definition, they add additional words, saying significant risk, risk of substantial harm. That means you don't have to -- not have only to show there's a risk, but high likelihood -- of a problem, but that the problem you are talking about is a substantial problem, even a high risk something would happen, if it's not that big a deal, not cause that much harm, it's not a direct threat. That narrows the definition of what's considered a direct threat. >> Then we say, to the health or safety of the individual or others, that expand s the definition to the person themselves, disability is somehow threatening themselves in the workplace. Then they say that cannot be eliminated or reduced by reasonable accommodation. So the text of the ADA seemed to imply you had to reduce, excuse me, the direct threat, and the [indiscernible] says you don't have to eliminate, but reduce to the level of not substantial threat or harm. A lot of confusion when these came out, for employers and people with disabilities, really, which definition of disability or direct threat would the courts follow. We will see that as we move forward. >> You will also see in the ADA regulations they adopted the four factors we talked about, Allen will talk about those, same factors talked about before, and some of the other reasoning, using reasonable medical judgment in direct threat cases, as well as relying on current medical knowledge and objective evidence. >> Next slide. They also gave guidance to employers, which I think is something that might be helpful as you move forward with the issues in your own workplace. They talk about how it's important to identify the specific risk involved, not just make generalizations, really identify the specific risks. For people with mental illness they talk about identifying specific behavior involved or people with disabilities physical in nature, identifying the [indiscernible] of that disability that would be a direct threat. It continues to reaffirm you need to be specific in cases when making decisions on direct threat. >> Next slide. They also give a little bit of other information about what employers should do. Not only based on individual factual data, but put specifically here, not to base on fears, generalizations, stereotypes or accommodations discussed online. They also gave employers ideas about how they can figure out the relevant evidence. These aren't things employers have to do, but things the EEOC recommends, input on disability, what's genetic going going on, learn about the disability, the person's experience in previous jobs or similar positions. Also, looking to medical professionals who understand the disability, also people who have direct knowledge of the specific person and their disability. All that evidence can be helpful, the employer can make an objective and reasoned decision, rather than a knee-jerk decision. >> One other thing is that if you look at all the ADA cases involving direct threat, it's interesting four disabilities come up over and over. Those are HIV, epilepsy, mental illness and dk diabetes. They have a lot of stigma attached, fear with respect to those disabilities and ignorance. In the early days of HIV there was a lot of fear of how it's transmitted, a lot of ignorance about that. Their continues to be stigma, with HIV and a lot of fear and stigma regarding with mental illness, epilepsy and even diabetes. The ADA was passed to get past some of those broad generalizations about people with particular disabilities, and rely on objective evidence. What's troubling, the clear standard is set up, showing significant risk of substantial harm, in many cases the courts don't necessarily follow the standard. In my previous position I represented a lot of people with HIV, in the medical fields, these cases are hard to win. We had a case, state of [indiscernible] versus -- a gentleman at a hospital, medical assistant in the operating room, job was to hand over different instruments to the doctors. They found out he had HIV. They were concerned he might somehow get pricked by an instrument, his blood would get in the patient and even though there were certainly precautions about what to do if you happened to get pricked by an instrument, a lot of evidence that once HIV, if exposed to the air dies quickly, these are cases, in this particular case the court felt the substantial harm of transmitting HIV, especially before a lot of drugs came out, oimpled overwhelmed and really subsumed the significant risk. Though the risk was low, the harm was viewed to be so big that that was enough for a direct threat. Which again, it's contrary to how the EEOC laid out the standard. >> The next thing is the scope of direct threat. What we are looking at here, who is encompassed within the direct threat and where is it involved. When we talk about who, the question is does direct threat include threat to others, as laid out in the statute, or include threat to self, the fact your disability would have adverse impact on yourself, and talking about where, the direct threat, does it have to occur only in the work place or can off-duty conduct be consider considered evaluating direct threat. >> The who part, there's a conflict the way direct threat is defined in the text of ADA, limited to other people in the workplace, the EEOC broadens to include threat to self as well as others. We had contrary decisions going back and forth and in 2002, next slide, we had the Supreme Court resolve this issue. This was a case, Chevron versus [indiscernible], this is a gentleman who had hepatitis C, worked in an area that had exposure to chemicals, there was concern by the employer that being exposed to chemicals would be adversed to his own health. It was about his hepatitis C compromising his health when exposed to chemicals, the employer had a doctor saying it was a threat, and the employee's doctor said it was not, he was fired, he sued, and relying on EEOC regulations, said it should be enough. They sided with the employer, may reduce to hire if performing the job would endanger their own health. While people may agree or disagree, that's what the Supreme Court said, unless they overturn themselves later, highly unlikely, this expands the direct threat defense to not only other people, but direct threats to themselves. >> This was a concern of the disability community, not a specific case, but a concern about, in disability advocacy, people making decisions for people with disabilities, paternalism, risks to their own health employ a lot of people were concerned by giving this expanded definition would cut the ability for people with disabilities to make decisions about themselves in the workplace. Employers should not have the ability to make the judgment for them. But because the Supreme Court has need made that decision, that's the law of the land and where we are now. >> Moving to the next topic, where, there's a question, too, does direct threat apply to actions outside of the employment setting. Employer has to rely on activity or problems happening in the employment setting, or can you look outside to other situations that have happened and use those in making your direct threat determination? Courts have not come up with a lot, but in cases where it came up, courts found if an employee engaged in conduct that raised the level of direct threat out the employment situation they can rely on that in deeming someone a direct threat. Interestingly, the cases out there are similar in that they involve people who have disability of alcoholism and while they are not having problems on the job related to alcoholism, they are having difficulties outside, getting involved in barroom brawls or other types of scuffles with people related to alcohol. In most of these cases they involve people who have public service type of jobs, police men, firemen, you can look at the off-duty conduct to make a decision about direct threat. >> That gets us to the next topic, which is assessing the potential for harm. I will turn it over to Allen to talk about those. >> Thank you, Barry and Robin. I will be trying to [indiscernible] if I fade out, someone let me know. We see a picture of something that probably would constitute a significant risk of substantial harm, and that would be eminent and severe. Going to the next slide, we have the four factors laid out, that Barry talked about, duration, nature and severity of the harm, likelihood the harm will occur and the [indiscernible] of the harnl. Direct threat decisions must be made on individualized assessment and on a reasonable medical judgment that relies on the most current medical knowledge or best available object of evidence. I think some of the key words here, obviously the best available objective evidence comes up, I think, in the case, maybe not explicitly, but in the court ruling, evidence seems stronger on one side, the court usually goes to that side. Reason accommodations must always be examined to see if the direct threat can be reduced or eliminated before adverse employment action is taken by the employer. >> First case we will talk about, job going through the four factors, Brandon versus Snow, someone who wanted to be an IRS criminal investigator, former treasury secretary John Snow. This employee had depression, and it says frequently missed work, but the real issue is applying for a new position to be criminal investigator. I want to talk a little dpr R from the case -- [lost audio] diabetes. I apologize for that error. Should be diabetes, I will read a little. The court talks about his diabetes, type 1 insulin dependent, noncurable, metabolic condition characterized by elevated [indiscernible] >> [Lost audio] >> He worked 12 years at IRS, had mild episodes, tremors, sweating, took insulin when needed or had a snack, adjusted blood shoggor, pretty much had it under control. The court looked at factors, regulations and first looked at duration of the risk, the IRS maintained he experienced significant long and short-term s in blood glucose levels, the plaintiff and doctor said yes, can't be cured, but Mr. Brandon can control the condition, no real duration of risk, the facts bore out the fact he was able to control his condition. The court said, regarding duration of risk, it is not significant. >> The next factor the court looked at is nature and severity of the risk. The IRS maintained that drastic changes in his blood sugar could significantly degrade ability to function as special approximate agent, Mr. Brandon conceded the risk of severe hypoglias em hypoglycemia can -- but he had never lost consciousness and the extreme reactions are for another form of hypoglias ya. The conclusion, any hypoglycemia experienced will not impair him in the performance of his duties. >> Again, I think very important to the court, the fact of Mr. Brandon's diabetes, he had it under control, no severe severe episodes at work or not >> John says: Alan, would you mind just speaking up a bit? >> >> John says: Thanks >> at work. >> ... .0002, a very small likelihood. And while there was theoretically some issues, IRS pointed out, for Mr. Brandon the risk seemed much smaller, IRS didn't have evidence to counter the statistical evidence presented by the employee, the court concluded the likelihood of harm was quite low. The court, reasonable jury -- a lot of cases are decided on summary judgment, which in the anatomy of a lawsuit, after the information, discovery information is exchanged, a motion, essentially side moving for summary judgment, employer claiming no disputed facts, jury would find every fact in our favor, even given the -- the court here did not find for summary judgment, finding in every factual situation a reasonable jury could find in favor of the employee, possibly the employer, but the court doesn't supercede a jury, just if the jury could find for the party resisting the motion. I hope that makes the technical aspect clear. >> Looking to see if a reasonable jury can interpret the facts, using reasonable inferences to decide for the employee. If the facts facts [indiscernible] court will deny summary judgment and the gur jury gets to decide. The fourth factor, imminence of potential harm, Mr. Brannon never suffered period of inAsitation at work or elsewhere, and there's no medical evidence he will do so in the future. Needs to be the best available objective evidence. The IRS says that's not logical, and the court said a reasonable trier of fact concluded Mr. Brandon can prevent severe hypoglias em ya and mitigate danger with respect to harm. The [indiscernible] whether Mr. Brandon can perform the functions of position without being direct threat to health or safety, since there was an issue as to material fact the employer loses on summary judgment and the case can proceed to jury. >> >> [indiscernible] Mr. D's diabetes was not under control, and [indiscernible] found his diabetes was not in control. In this case the employee's doctor even admitted the diabetes was not under control. The employee argued the employer only did one blood shog glucose analysis, the court disagreed, and especially as the employee's own doctor found his diabetes was uncontrolled. The court held where a person's diabetes is uncontrolled in this situation could pose a direct threat, could get up to 110-degrees in the workplace, a very challenging work environment .d they held for Mr. Darnel because his diabetes was not urn oud control he could pose a direct threat, especially with being around machinery. I think in this case there wasn't as much factual dispute. Employers ask, can we monitor, make sure they take medication, do what they need to help treat their condition. Generally employers should not be in the business of monitoring employee's treatment, but if an employee does not follow treatment recommended, the condition becomes to a point the where they pose a direct threat, they are no longer qualified or pose a direct threat. And action can be taken on the basis of -- condition, able to do job, function safely with the condition as it exists now. >> Another case, about three there, Rodriguez versus Canag ra, a person with Type II diabetes, generally not as serious, but there the employer knew of the diagnosis, said they thought it was dangerous, not controlled, not entirely accurate, therefore won't hire Mr. Rodriguez. The court held the employer must conduct an individualized assessment, not generalize. Those cases involved diabetes and within the in different directions, you can see it depends on the condition of the individual involved, how it effects them, their particular job duties, state or condition, can they control their condition or not. Is it unsafe or not. Years of evidence they are able to work safely, I find that to be persuasive. >> The next case we will talk about is [indiscernible] versus acme refrigeration. This is employee with depression who frequently missed work, and manager asked to [indiscernible] came about -- says do you have a type of mental illness, are you depressed, employee admitted they had depression, and immediately the manager put the person on leave, pending a medical review, to see if they were safe to work in the workplace. Doctor conducting review indicated the employee was stable, not dangerous, but the employer said we want more than that, we want a guarantee, the word is in the decision, that you can assure us the employee is no threat. We want that kind of guarantee. Of course the doctor could not do that. One thing we need to keep in mind, maybe it sounds wrong, but we are all human beings, there's no guarantee any condition will stay as it is, change, someone can be healthy one of minute, and suffer a heart attack, have a stroke. Even healthy individuals can undergo situations that may be dangerous for them or others, but that's the nature of health and life. To expect guarantees that no, I can guarantee this person won't have a seizure, stroke, that's something that is not possible. >> The doctor said, I think he's stable, can work safely, but I cannot guarantee there's absolutely no threat. Because of that the employer did not put him back to work. At that point he was left on medical leave for a long time, I believe eafn month 18 months, then discharged for poor attendance and posing a safety risk, although there were no safety-related complaints from any coworkers. >> The court found in this case the defendant did not present any evidence that there was a significant risk of substantial harm. Did not identify the nature of the risk posed by the plaintiff's psychological condition, much less the likelihood of the imminent potential harm. The court reemphasized the ADA requires analysis on a case by case individualized basis. The probability of significant harm must be substantial, more than a remote or slightly increased risk. >> Acme makes refridger refrigerators and rockets. Those are the cases going through the individualized assessment, the four factors outlined in the ADA regulations. A question that comes up a lot, when can employers seek medical information and how can an employer use medical information. We are going to talk a little about that now. >> As mentioned before, the nature of medical evidence is important. Employers are generally on strong ground if there's medical substant yags from the conclusion the employee poses a direct threat to health and safety. However, when employers rely on -- stereotypes, ignore medical opinions, or in some cases get the company doctor to try to persuade the other medical providers to change their opinions, of course they are less likely to find for employer. They know employees condition better than most other doctors, because of the individualized assessment the opinion of a treating physician is very important in these cases. >> First case we will look at is Wards versus Merck, involved pharmaceutical employee with mental illness, anxiety and panic disorders. This person was stressed and beginning to experience problems at work. He requested and received a reduced work schedule, but the problems persisted. According to the record, the employee began to engage in strange behavior, including an episode in the Merck cafeteria which was deemed as results from a brief psychotic disorders. The court went out of their way not to mention what happened in the cafeteria, which of course made me a little curious as to what happened in the cafeteria. I went back to the district court opinion to see if they had more specific facts. The most we can get is, according to the police report, the employee backed himself up against the food tables and was screaming at people, telling them not to eat any of their vegetables, kind of the opposite of what we were told by our parents. Merck security called the police, the plaintiff seemed dazed, couldn't tell them his last name, incoherent. The individual was taken to the hospital, evaluated, diagnosed schizophrenia and he was released. Coworkers claim the employee walked around a zombie, had a temper tran trum, and I think more than one. >> Based on the employee's conduct, and important to emphasize Merck's decision was based on conduct, not just diagnosis, the employer requested a diagnosis with the company physician, the employee reduced, suspended without pay, you have 48 hours to show examination, and did not, was fired, filed suit. >> The mental health examination, employers cannot require medical examinations or make medical inquiries unless the examination or inquiry is j ob-related, related to business necessity. In general, direct threat is seen as something, affirmative defense employers have to prove. Employees do not have to prove absence of direct threat. Employers have to prove existence of direct threat. >> In this case, had the burden of proving the direct threat, but the court said the possible threat to employee safety, again, based on employee's coon conduct, not diagnosis alone, was sufficient to meet the business necessity assessment, and require a fitness for work evaluation by Merck. >> Going to the next case, it's Taylor versus USF, involved a fork-lift driver who experienced two seizures. Two unexplained seizures is one of the diagnostic criteria for epilepsy, the chief justice of the Supreme Court was diagnosed, two unexplained seizures, although many years apart. A neurologist determined his condition was consistent with seizure disorder, and Mr. Taylor told his employer he had infant ile ep lemsy leepsy, the employer was put on leave, not allowed to drive a fork lift or work 18 months. He was examined two other physicians, both clearing him to return to work, but after talking to the company doctor, the other physicians changed their position. The company doctor talked about job duties, doctors give medical opinions it's important they have a good understanding of the essential job functions. The company doctors persuaded the physicians to change their opinion. I believe there were other physicians who remember not persuaded. There was a lot of cross medical evidence in this case. >> The court ruled the employee's refusal to allow the employee to return to work was [indiscernible] and getting other doctors to change their medical opinion, basing decision really not on the best available objective medical evidence, it was clearly very subjective medical evidence. The court found the employer regarded the employee as being disabled and violated the ADA. >> Again, in the analysis part, one of the caveats are if the company doctor disagrees strongly with the treating physician employers are maybe on shaky ground, it's harder to justify a direct threat defense when had there's contrary medical opinion showing no direct threat. It's important to consider all medical opinions, reasonable medical judgment, best available, objective medical evidence. >> Last case I will calk about is the Justice versus Crown Court and Field, electrician recovering from vertigo, no difficulty walking, standing, job function is climbing ladders, power presses, cutters. The medical report said he 124 not work at unprotected heights, employer eliminated that job requirement, worked as electrician for no problem two years or so before a new supervisor came onboard and had concerns. An aside, we see as an advocacy agency, a lot of case that's come through the door involve new supervisors. Generally it's a situation where the new supervisor doesn't want to continue the accommodation put in place by the old supervisor. I think that's a tough decision for a company to uphold unless there's intervening conduct or changes justifying terminating the reasonable work accommodation. Employers can prevent a lot of these problems through ADA training, periodic training for all staff, also for new supervisors, often the new supervisors come in with very little ADA knowledge, and that often leads them to remove or eliminate a reasonable accommodation in place. >> It is employer, based on new supervisor, requested several medical evaluations. Most of these cleared the employee to return to work. Physical therapist retained by the company initially cleared the employee to return to work with safety equipment, but the supervisor took the physical therapist to the job site, convinced the physical therapist, changed opinion, and the therapist about-faced, said no, the employee should find a new safer job. The [indiscernible] restricted employee from jobs requiring him to maintain balance work at heights or work near moving equipment. Mr. Justice was reassigned to janitorial position, which was kind of interesting, even in janitorial position he had to work around moving equipment, the employer didn't seem to be as concerned about that, but had concerns working around moving equipment as an electrician. >> The employee filed at EEOC, and the court looking at the disability issue found he was regarded as disabled because Crown believed the balance problems significantly affected his ability to work at a broad range of jobs. Was he able to work safely as electrician, with unprotected height restriction several years, leading to the inflanes inference he was able to continue, the court concluded there's evidence the hazards are imagined or exaggerated and the reliance on justice's -- masking the condition. The employer's doctor is persuading other doctors, sometimes contrary to other doctors, evidence owe the ground, what the employee did two years prior to being put on leave, evidence of what the employee did up to the point the employer refuses to let him work anymore is very strong. In most cases where the employee is able to work safely up until the employer tells him he has to stopple, stop, the employee has a strong case to continue employment. >> I am going to open it up for questions at this point. >> [indiscernible] you can ask questions by type integrity in or pressing the control key and [indiscernible] >> Speaking into your microphone. >> I will go ahead and talk about a couple of -- we will have time at the end to ask questions. The next thing is direct threat and reasonable accommodation. We talked about in the Ar line case, before you can make a decision somebody is a direct threat, employers, you need to evaluate whether there are any reasonable accommodations you can put in place that would lessen the possible threat to a level where it's not a significant risk of substantial harm. While there are cases that talk about reasonable accommodation typically being the employee's responsibility, I think direct threat raises a different context for employers, and there have been cases that say by not exploring reasonable accommodations, you have not fulfilled your ADA responsibility. This turns the reasonable accommodation obligation a little bit around from what we are used to. Typically it's on the responsibility of the employee, but I think there's an argument that employers need to affirmatively accommodate -- as we talked about at beginning of the hour, one of the ways to get information about direct threat is to talk to the person with the disability directly, evaluating accommodations, talking to people about what they would need to lessen the threat. Courts would be very much more derchtial to employers if they first underwent that affirmative discussion with employees and professionals before making an adverse decision. Keep that in mind in the reasonable accommodation information you received in the past. >> A recent case, EEOC versus Wal-Mart, a gentleman applied for a job, had cerebral palsy, used crutches sometimes and a wheelchair sometimes, depending on what he was doing, feeling that day. Applied to be a greeter and cashier, wasn't hired. He filed suit claiming he wasn't hired because of his disability. In responding to that complaint, Wal-Mart said they perceived him to be, for a lot of other reasons, why they didn't hire, but one thing was, they said they perceived him to be a safety risk, or in other words a direct threat urn oud the ADA. They showed that a doctor reviewed application and found a variety of risks that would happen. You will see they are listed on the slide here that his legs weren't capable of holding him without arm support, and people with those impediments fall. That he takes up a lot of room, he's very wide when he used crutches, and also would place him, Mr. Bradley, the plaintiff, charging party in the case, would place him at risk. Not only risk to other people, but to himself, which as we learned earlier is how the direct threat has to go, to self as well as to others. >> Moving to next slide, when the case went further, the doctor admitted his opinion about Mr. Bradley was with him using crutch and not wheelchair. There's some dispute on this, but one thing Mr. Bradley said was that they didn't want somebody who had, greeter or wheelchair in a seated position, didn't allow other greeters on cashiers to sit down, why they were evaluating on crutches, but that's a perception thing that shouldn't be the basis for not having somebody in a wheelchair and in these two positions. >> The doctor also admitted when in the wheelchair he was stable and threats identified before wouldn't make as much sense as when on crutches. >> Essentially what malmart ended up saying, they failed to prove, reasonable accommodations, in a wheelchair, he would be direct threat. The EEOC hired an expert, if you are a plaintiff or individual bringing cases, if it's possible you have resources, it's important to have your own expert. They not the only looked at Wal-Mart's expert, but the EEOC's expert, and that expert identified a number of accommodations that would have addressed all the concerns Wal-Mart had, different types of assistive technology, wheelchair that moved from sitting to standing position, smaller, a lot of things the other side came up with that, really made it difficult for Wal-Mart to continue the position that Mr. Bradzly was a direct threat. >> Taylor versus Rice, this is a case that was brought on behalf of individual who wanted to be a foreign service worker, had HIV. Interestingly, he had HIV since 1985, and this case is a 2006 case, HIV positive for 20 years, and had a lot of evidence that while he had HIV throughout the period it was really for him a chronic, imaginable condition, based on the medications he had available. This was not somebody having extreme responses to -- this was somebody with HIV in relatively well-controlled. >> He was rejected when he applied to the foreign service officer, rejected not because of anything specific about him or his HIV, it was that the State Department had a blanket policy, halting anybody in these positions, put in place very early when HIV first came around. There was a lot of fear, certainly still some exists, but a lot of fear in the 80s and 90s about HIV. You see a lot of policies like this, or you did, a lot are being removed, but policies with these bars based on HIV, because of some of the fear and ignorance about transmission of HIV and how it effects different people. >> The State Department's position was that since foreign service means you are frequently going to be put into place that's don't have strong medical care, it would be a threat to Mr. Taylor for him to be placed out there, and they needed to be, deploy him worldwide and because a lot of places he could be deployed would not have the medical care he would need he was a threat to his own safety. There were disputes as to where the care was or wasn't. The State Department said that 65% of their placements were what they considered hardship locations, meaning a low quality of healthcare. Oftentimes junior people were put in these positions because they didn't have seniority. Other evidence said about 82% of the places he could have been put had sufficient medical care to handle HIV. That was a factual dispute, but part of the arguments people are making back and forth. >> The court looked at the [indiscernible] talked about before, made clear that threat to self is something you can raise under the ADA. The trial court said that yes, he would be a threat to himself if he was hired and deployed to a place without adequate medical care. Mr. Taylor then appealed to the D.C. >> Please stand by for realtime captioning. >> Captioner: I have dialed into audio, and someone answered and transferred the call, but it is now ringing busy. I will try to dial audio again.employ doesn't need to show, have to show it was one of the reasons. If it was maybe misconduct, maybe in addition to something related to disability, that's enough to move forward with the case. >> If employers really believe misconduct is involved they need to be consistent with the policies, do what is necessary. By getting that evaluation, information about reassignment, then not acting, really undercut the employer's argument. >> Mr. Jar vis a veteran, in 70s or 80s, learned he had post traumatic stress dared, disorder, the way it materialized for him, when startled he would perceive somebody attacking him, take him back to the war, lose all reality and perception, just -- this happened numerous times in the workplace, something would startle him, walk up, touch on shoulder, loud noise, whatever, he would turn around, literally punch or kick or a karate move against the person who -- he did it several times. Coworkers who understood it, were sympathetic, didn't report it, but then he did it one time to somebody less sympathetic, reported to strz supervisor, there were real concerns. He made an accommodation request, and as you will see on this slide, that he requested that all coworkers be instructed not to startle him or plooch approach from behind. He said I won't have those reactions and be fine in the workplace. The other thing that happened, though, before they made a decision on this, when he was interviewed by employer he was very [indiscernible] about the disability, gave a lot of information. Said he thought there was post traumatic stress disorder getting worse, that he couldn't control himself when somebody approached him and thought that if he hit somebody in the right place he could actually kill them and he was concerned about him being safe in the workplace. Hearing that information and the other information about the actual violence in the workplace, the employer, being the post office, placed him on leave and ultimate ultimately terminated him. >> He filed suit under the ADA, as you can imagine, the post office said -- he filed under -- the rehab act, and the issue I will talk about, more detail in a few minutes, raised the issue of whose burden it is to prove direct threat. A Allen alluded to this, it's a stricty issue. The general rule is that it is the employer; this is a defense the employer raises, enough evidence to prove direct threat. The courts would all say that. The main exception to that issue is when the essential functions of the job implicate safety issues. If you are involved in a job with safety issues, maybe you are a firefighter or a paramedic, something like that, if the direct threat arises in those contexts, what you are doing involves safety issues, it's more likely you as employee will have to prove you are not a direct threat. If it's not a workplace job that insolves safety issues, for the most part courts are saying it's the employer's responsibility to prove that. Here, even though there were violence and safety issues involved, the inherent issue, working at the post office, is not a job where you would typically think of involving safety issues. The court said here that the exception to the general rule would not apply, therefore it is the employer's responsibility to prove that Mr. Jar vis was a direct threat. Moving to the next slide, the court went on, talked more about what kind of modifications, accommodations can be made in the workplace and how a court will review those issues. Generally, the court is not going to take the role of independently assessing whether the employee posed a direct threat. They will not get involved in that level of detail. At the same time, they are not going to just say, as long as the employer acted in good faith, that's the enough. You look at issues, did the employer look at the specific behavior that was involved? Did the employer look at available medical evidence about that particular disability or talk to a doctor who examined or knew about that person's disability and be objectively -- if the employer was wrong, it's proven those assessments turned out -- as long as the employer did what they needed to do, conclusion they got to was a reasonable conclusion, courts are generally going to be differential to employers. The court found the employer did meet the standard, did do what's necessary, talked to the person with the disability about what was going on with his P TSD, found they made a decision he did pose a direct threat and found the employer reviewed accommodations, actually talked to the better than about what would be necessary. The employer ultimately decided instructing other employees not to approach somebody from behind or touch somebody, that's not a reasonable accommodation, something we think would really work. In the post office area, moving around, there are a lot of employees going back and forth, it's just that people will approach other people from behind, walking behind them. That accommodation request, they didn't think, would significantly reduce the level of threat. The other thing is that there were a lot of evidence against Mr. Jar vis. He had the prior incidences of vie violence and his own statement, if you hit somebody in the right place you can kill them. The employer was on notice that this was a person having a difficult time, really a threat in the workplace. The substantial harm here was great in that the employee himself said it might result in somebody's death. The other thing Mr. Jar vis said, thought symptoms would last indefinitely, couldn't ask him to take a couple weeks of medical leave. He was saying this is going to stay with me, it's getting worse, I don't think there's anything you can do except tell people not to startle me. Not enough. This case would have been very different if the employer knew the person had a diagnosis of post traumatic stress disorder and made a determination on that alone. But that's not what happened, they had the employee's own statement and incidents in the workplace. >> The next slide, things the court said, one of was that the law doesn't require the postal service to wait for serious injury to make adverse decision, helpful to know that. If you have enough, don't have to wait for the ultimate act to happen. If there's significant risk that substantial harm will happen. Again, they found this request was not a reasonable accommodation request the employer had to accommodate. >> Two final issues and we will open up if questions. One we talked about, the issue of burden of proof. I said some of this already, but most courts are going to require the employer to prove that the person is a direct threat, they are a significant risk of substantial harm. The exception is if you are involved in a case that, job that has an essential function involving safety. But most courts will go in favor of the employer having approved this. For those of you who aren't lawyers, one thing you might ask, why does it really matter who has the burden of proof. It does, because if you have the burden of proof, it's harder to prevail, you have to put on all the evidence. It's much easier to win a case if the other side has the burden. [indiscernible] option for you, in bringing a case. As far as [indiscernible] issue, and I think this is an issue that we alluded to already, probably one that people are familiar with already, but important to talk about, that is that blanket exclusions of particular disabilities from different jobs, almost universally, courts have found this to be a disfavored thing. While employers have won overwhelmingly in the courts in ADA cases where they consistently lost cases is where they have blanket exclusions or policies that are very rigid, that don't take into account individualized situations of a person. They are making decisions, like Taylor versus Rice, automatically excluding all people with HIV from particular jobs, that was a a blanket exclusion, reasonable. In cases with diabetes, people who have jobs involving driving. While there may be a basis, Allen talked about one of these where somebody has insulin dependent diabetes, to have blanket exclusion, nobody driving can have a particular job, will run afoul of the ADA. If you are an employer, listening, look to see if you have these kinds of policies. If you do, you should really consider whether or not they need to be modified. Build in the individualized assessment, and/or have strong evidence as to why somebody should automatically be banned because they have a particular disability or diagnosis. If you believe strongly, you need subjective medical evidence to support that. The better practice is to make sure your central functions, work on identifying why a particular person with a particular disability wouldn't be able to meet the essential functions. The only exceptions to the rule, most courts have been very clear that if you have a blanket exclusion you do not usually win these cases. People with a history of substance abuse, that kind of thing, blanket exclusion on substance abuse, you are not qualified for the job. Courts have held that up, not all, but a business necessity, substance A imiews, A abuse, they can have that type of blanket exclusion. Only cases I have seen where employers have been successful in maintaining a blanket exclusion is one involving substance abuse. Something you might evaluate in your policies. That's the end of the substantive presentation. We have resources listed, you can always call. The [indiscernible] Great Lakes region, and we had a quick -- resource, for people, I don't know why, and the job accommodation network provides a lot of information through the website, about accommodations provided for particular disabilities, EEOC has a lot of guidance, topics involving -- in addition to Great Lakes ADA center there are other dip tacks and -- we will just at this point see if there are questions people have. If you have a question, press your control key. If you want an oral question, or type it in. >> Blam. Matt, I see you have a question, anything in the ADA amendment to impact today's topic? >> I don't think so when it comes from direct threat. The definition of disability, whether you have a disability or not. Whether or not using assistive devices, medication would effect that or how you prove disability, look at activities you do at home or activities central to daily life, another Supreme Court case, the Williams case. In my view, I don't think it will impact the direct threat analysis. Allen may have another thought on that. I wanted to mention you can go to the next slide, that the next session we have in October, 28th, we will talk about the ADA amendments act, a session talking about the EEOC's new information regarding performance and conduct issues, Sharon Leonard will talk about that from the EEOC, and the ADA amendments act, what that means moving forward. >> I would like to add one point, I agree that the ADA amendment will not involve direct threat at all, but in the Taylor case, there are time when is an employer perceives an employee as being disabled. I believe the employer had a statement, we think he can only work safely if in a rubber padded room with medical help nearby. He's disabled from working anywhere, therefore disabled. The ADA amendment act makes it easier to show they are regarded as disabled, no longer have to show the employer perceived a substantial limitation. Major life activity [indiscernible] perceive you are disabled, took adverse employment action because of that. Other than than that, I don't think there the be an effect on the direct threat defense. >> I see that it looks like we have a question from somebody taking a psychological profiling test. I can answer that generally. I don't know what the test involved, I am not sure if the profiling issue, information about possible disabilities, there is clear restrictions on employers, what they can conduct, whether they can conduct medical examinations or not. There's a case that was brought here in Chicago that we were involved with, involving the MMPI, the Minnesota Multiphasic Inventory, the MMPI was found to be a medical examination, not just a vocational test, it would be used to identify a particular disability, mental health issues. That's only for the pre-employment. After deemed qualified, they give everybody the same test, employers can do that, even if it is a medical test, only issue is that if they give everybody that test, then make adverse decision, I mean withdrawing that offer, they have to show the reason they withdraw it was based on job-related or business necessity, somehow make its a necessity to withdraw the job offer. It can be difficult to do. They need to offer consistently to everyone. You were hired, the fact you were required to do this, I assume post-offer, likely would not be an ADA violation. >> I wanted to add, we just finished a draft of article touching on this, talks about the personality test, discriminating against people with disabilities, even beyond people with mental illness, personally I think the tests are problematic for a number of reasons. I think the employer has to meet the job-related and consistent with business necessity requirement. >> Looks like a question for you from Peter. >> I would have to double check, I believe on one there was a regarded-as issue, the other the court found they had an actual disability. I am not 100% sure. You have to argue substantial limitation to ensure you have a disability, but if your treatment regimen was helping control diabetes, he's not disabled. In that he's limited in caring for himself because of the steps he has to take. >> That makes me think of getting back to the previous question about whether the [indiscernible] is going to impact direct threat cases, Robin, instructing me to repeat the question. Let me answer this and we can repeat the future questions. Basically a previous question was is there anything in the ADA amendment to effect the topic of direct threat. Generally, tell not, but may impact regarded as. But back to what we talked about before, direct threat cases with mental illness, diabetes, one thing that happened, in addition to challenging the direct threat, they challenged whether these people have a disability. A lot of these cases those disabilities, epilepsy, mental illness and diabetes, people who take medication. A lot of these people won't get past the disability stage. The fact that it's easier to prove they have a disability will get the case further, some of the direct threat analysis will proceed, some are thrown out not because of direct threat, but because they couldn't prove they had a disability. >> Any final questions? I think we are about at the end of our time. >> Thank you. >> At this point we want to say if there are other questions, enter them through the public chat section or you can [indiscernible] speak again, we can take a question verbally from anyone. We are at the hour, half hour, so I want to remind people to please give us feedback on the session through the online evaluation form. There's a link here, also will be sent following the session, along with a copy of the PowerPoint presentation for you to have for future reference. I would like to let you know we are finalizing our schedule for the 2008/2009 series. Our first session is October 28. Tell focus on performance and conduct issues, as well as update on the Americans with disabilities amendment act of 2008. We are awaiting the signature of President Bush on that particular piece of legislation, will become effective January 1, 2009, if he were to veto the particular legislation, there's a [indiscernible] in the house and Senate to override any veto. We are confident in legislation will move forward, the EEOC will begin it's process of promulgating rules urn oud the legislation. >> For more information on the Webinar series, www.ADA-audio.org, or if you have questions and would like to speak with someone you can call on the 800 number specifically for our program, which 877- thank you for joining us today, at this time we will sign off. >> >> >> >> [event concluded.] >>