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© Shipman & Goodwin LLP 2016. All rights reserved.

The Americans with Disabilities Act

at Higher Education Institutions:

Addressing ADA Issues with Faculty

and Staff

Linda L. Yoder

Peter J. Murphy

Friday, October 7, 2016

What we will cover…

• Statutory and regulatory framework

• Judicial treatment of statutory and regulatory

language

• Focus areas for Higher Education

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Focus Areas for Discussion

• Institutions of Higher Learning Under Specific Scrutiny: Are we and should we be held to a higher standard?

• Developments in technology mean that old case law should be treated with caution

• Addressing mental health concerns

• Faculty are different

• How to analyze a new type of request: service animals

Americans with Disabilities Act (ADA)• 1990: Passage of ADA

� Expanded protection against disability discrimination to most employers, state and local governmental programs and providers of public accommodations

� 1999 and 2002: U.S. Supreme Court narrowed protection

� Determination of coverage could account for mitigating measures

� Narrower definition of “major life activity”

• 2008: ADA Amendments Act of 2008

� Reversed U.S. Supreme Court rulings

• 2010: Amended ADA Regulations published

• 2016: ADA Amendments Act Final Rule published

� Effective on October 11, 2016

� Implements the requirements of ADA Amendments Act of 2008

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Covered Entity’s Obligations • Prohibit discrimination on the basis of disability

� Title I: Employment

� Applies to employers with 15 or more employees (inclusive of faculty, staff, and student employees)

� Title II: Public Entities

� Applies if you are a state-run entity (e.g., a public college or university)

� Title III: Public Accommodations

� Applies if you are a private entity that offers a public accommodation (e.g., a private college or university)

• Provide reasonable accommodations and auxiliary aids and services

• Reasonably modify policies, practices, and procedures

“MEETING THE DEFINITION”

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Definition of a Disability

• A physical or mental impairment that substantially limits one or more major life activities - OR -

• Regarded as impaired – OR - record of such an impairment

� Must be otherwise qualified

� Able to carry out the essential functions of the program with or without accommodations

• “Definition of disability shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.”

� Does not apply to transitory and minor impairments

� Generally determined without regard to ameliorative effects of mitigating measures

Judicial Trends• Cases since 2010

� Infrequent evaluation of whether an individual has a “disability”

� However, courts have looked into whether certain mental health conditions entitle someone to ADA protection

� Focus more on qualification of individual and documentation

� Whether an individual is “otherwise qualified”

� Whether the documentation provided justifies the requested accommodation

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When Can/Should You Intervene?

• Professor Paul is a long-time, tenured faculty member. Very highly regarded.

• Students voice concerns about unrelated “stories” being told in class, with little instruction.

• Co-workers also have noticed changes in his formerly-impeccable appearance, his office becoming messier, and him snapping at co-workers and demonstrating inability to work with colleagues in the department.

• What steps, if any, can you take?

Potential Steps

• Discussion with dean or department chair?

• Refer to EAP?

• Provide FMLA paperwork?

• Determine if he has a disability?

• Send for IME?

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Mental Health and Anxiety Issues

• Associate Professor Abby’s mentor is Difficult Dave, a senior member of the department who mentors all junior faculty in the department.

• Abby complains about Dave’s mentoring and interpersonal skills, and ultimately informs you that it is giving her anxiety.

• Abby asks for you to move her to another mentor as an accommodation, and refuses to work until such a change is made.

• Should Abby be given another mentor?

Is Abby Disabled?• Higgins-Williams v. Sutter Medical Foundation, 237 Cal. App. 4th 78

(Ca. Ct. App. May 26, 2015).

� Undisputed facts show that employee’s anxiety related solely to her

supervisor’s oversight.

� An employee’s inability to work under a particular supervisor because

of anxiety and stress related to the supervisor’s standard oversight

does not constitute a mental disability under California law.

• Pack v. Illinois Dep't of Healthcare & Family Servs., 2015 WL 507555,

at *3 (N.D. Ill. Feb. 5, 2015):

� “Because Plaintiff asserts that she is capable of working, just not at

IDHFS where [her current supervisor] is, Plaintiff has not sufficiently

alleged that she is disabled under the ADA.”

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Is Short-Term Illness a Disability?

• Adjunct Professor Peter had heart surgery in April.

• Summer classes start in May, and his classes are reassigned because the school has not heard from him. Peter demands to return to full duty after that reassignment has occurred.

• Peter is then only assigned two classes for the Fall Semester, instead of his normal four.

• Peter claims disability discrimination. The school claims he is not disabled.

• Who is correct?

Silk v. Bd. of Trustees, 795 F.3d 698 (7th Cir. July

30, 2015)

• Short-term illnesses are not covered by ADA:

� Employer’s belief not enough, however.

� Need to show impairment actually was transitory and minor.

Employer did not do that in this case.

• Perceived disability claims can be difficult.

� Even if not disabled, employee can succeed if shown that

employer perceived him as disabled.

� Adjunct identified alleged statements suggesting that the

college perceived him as disabled when assigning classes for the

Fall Semester.

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Potential for an IME?

• ADA prohibits IME unless it is:

� Job related, and

� Consistent with business necessity.

• Employer can meet that standard by showing:

� Employee has requested an accommodation;

� Employee has impaired ability to perform essential

functions of position; or

� Employee poses a direct threat to himself or others.

Potential for IME

• Hawthorne v. Oakland Univ., 158 F.Supp.3d 586 (E.D.Mich. Jan. 27, 2016):

� Associate Professor sent for three medical evaluations after negative, hostile interactions with students created unsafe learning environment.

� Professor had no right to injunction against future evaluations.

• Ellis v. San Francisco State Univ.,136 F.Supp.3d 1140 (N.D.Cal. Dec. 22, 2015):

� Professor suspended and then terminated after refusing to submit to IME .

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IS THE DOCUMENTATION

SUFFICIENT?

Documentation

• What is required?

• How recent?

• What professionals are qualified to provide documentation?

� What level of deference should be afforded to the evaluating professional?

• Who must pay for documentation?

• Must documentation demonstrate a connection between the disability and the requested accommodation?

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Documentation

• ADA Amendments Act of 2008

� Rejected heightened standard for demonstrating

disability

� Generally, there is no requirement that

documentation must be presented to obtain legal

protections guaranteed by ADA

Documentation

• Purpose:

� Establishing disability of faculty or staff member.

� Permissible sources: self-report, observations from

college staff and/or information from external parties

� Individualized process

� Understanding how the condition may affect the

employee.

� Make informed decision about what, if any,

accommodations are necessary.

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Documentation Process

• Common-sense standard

• What would a reasonable person conclude?

• Requiring extensive medical or scientific evidence likely beyond reasonable.

• Non-burdensome process

� Does the process discourage, even if not the intent, employees with disabilities from seeking accommodations?

� How long is the process?

Smith v. UCONN, 794 F.3d 249 (2d Cir. July 22,

2015)

• Employee worked in dining hall.

• Walked off line after feeling ill, believing his

bronchitis was returning.

• Employee terminated per college policy.

• Employee’s lawsuit failed, as only illness

alleged in the complaint was bronchitis, which

is not a disability under the ADA.

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IS THE EMPLOYEE OTHERWISE

QUALIFIED?

Otherwise Qualified

• Is the employee eligible to performance the essential functions of the job, either with or without reasonable accommodations?

• If incapable of performing the essential functions of the job, the employee is not a “qualified individual” under the ADA.

• Query: Is there a job description? How do you define the essential functions of faculty member? Does this differ by department and where can I find this information in writing?

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Badwal v. Bd. of Trustees, 139 F.Supp.3d 295

(D.C.DC Sept. 28, 2015)

• Professor developed ailment that prevented the normal use of his arms for classroom duties (e.g. writing on the chalkboard).

• Professor went out on leave, and then retired.

• Professor later claimed that the college forced him to retire, and had failed to accommodate him.

• Court found Professor not a “qualified individual.”

� Allegations in the complaint showed he was physically incapable of performing his teaching duties.

Snowden v. Columbia Univ., 612 F.Appx 7 (2d

Cir. Apr. 6, 2015)

• Mail clerk at university was terminated because she could not do essential functions—e.g. bending, stooping, sorting, and filing.

• Because Plaintiff could not do these essential functions, she was not a qualified individual.

• Plaintiff also failed to identify any reasonable accommodation that would allow her to perform the job.

� Additional point: University did not engage in thorough interactive process. Court excused this error because there was no reasonable accommodation that could have been discussed with employee.

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Hypothetical

• Professor Brian informs you that his disability

is getting worse, and his psychological state

restricts him from face-to-face meetings.

• He requests to teach all classes on-line, and

never be asked to come to campus.

• Must the college make this accommodation?

Factors to Consider:

• What classes does he teach?

� Is there a reason that he must be present in-

person, such as interactive class discussion or

supervision of a laboratory?

• Does the school allow any on-line courses?

� How widely have you opened the door?

� Are their other reasons to come to campus?

� Departmental meetings, student meetings, etc.?

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EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir.

Dec. 3, 2014)

• Courts will defer to employers on what constitutes an essential function of a job.

• “Common sense” dictates that in-person attendance and interaction with co-workers and consumers are essential functions of most jobs.

• Employee bears burden of proving accommodation is reasonable, and telecommuting can be reasonable.

• Employee’s request here is not reasonable because:

� No set schedule; wanted to pick days on no notice.

� Employee was refusing to come on site if needed.

Can Sleepy Sam Teach Remotely?

• Sleepy Sam served as a tenured professor and a coordinator of a community college's honors program.

• Sam has “severe problems falling asleep, sleeping undisturbed, and ... remaining awake when driving long distances.”

• Sam asked to “teach most of his course load and hold office hours remotely, via distance learning.”

• Was the request properly denied?

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Epstein v. Cty. of Suffolk, 2016 WL

4257349 (E.D.N.Y. Aug. 11, 2016)

• No. Plaintiff’s claim that he has trouble

sleeping is insufficient to establish disability.

• Court also concluded that work at the college

would not trigger his sleep disorders.

• Sleepy Sam could fall asleep at home or at

work.

ARE THE ACCOMMODATIONS

REASONABLE?

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Accommodations

• Three categories

� Auxiliary aids and services—need not include devices or services of a personal nature

� Is the college/university financially responsible?

� Or could another agency such as state vocational rehabilitation program?

� Undue financial burden?

� Concerns: public backlash

� Modifications of policies, practices, and procedures

� Architectural/Design Features

Accommodations

• Burden on the institution (Not likely)

� Demonstrate that officials considered alternative means, feasibility, cost and effect on the program at issue and came to a rationally justifiable decision

� Including whether accommodation would either lower academic standards or require substantial program alternation

• Expectation that the institution AND employee engage in an interactive process when addressing accommodation requests

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Accommodations

• Co-teacher: generally not required to pay two

people to do one job.

• Video Recording: no case law, but likely to be

considered a reasonable accommodation.

� How to handle professor who considered lectures

“intellectual property” and ban video/audio

recordings for students?

Accommodations

• Interpreters or transcription:

� Sign language interpreters are provided to students,

do they need to be provided to professors, too?

• Modification of tenure clock: courts are typically

deferential to educational institutions in

determining tenure requirements and timelines.

� If out on FMLA leave, does that stop the clock?

� Is there a section in the faculty handbook discussing

grounds to stop the tenure clock?

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Safety Concerns

• Even if an employee is disabled, he or she can still be terminated for misconduct even if it is connected to a disability.

• See Mayo v. PCC Structurals, 795 F.3d 941 (9th Cir. 2015)

� (“Put simply, the ADA does not require that an employee whose unacceptable behavior threatens the safety of others be retained, even if the behavior stems from a mental disability. Such an employee is not qualified.).

Prepare For/Avoid Retaliation Claims

• Many institutions of higher education have

loose supervision/performance review

procedures.

• Who makes decisions regarding class

assignments, courses taught, and is there a

clear mechanism for deciding disputes?

• Can you limit retaliation claims by limiting

knowledge of the disability/accommodation?

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SERVICE AND COMFORT ANIMALS

Service Animals• Legal term under the ADA

� “A dog [or miniature horse] individually trained to work or

perform tasks…”

� Excludes comfort or emotional support animals

� No limit on breed or size

• Can accompany a person with a disability in all areas open to

the public

� Must be tethered unless device interferes with the animal’s

work

� May only be excluded if 1) the animal is out of control and the

handler does not take effective action to control or 2) the

animal is not housebroken

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Service Animals

• Only two questions may be asked:

� Is the dog (horse) a service animal required because of a disability?

� What work or task has the dog been trained to perform?

• Staff cannot ask about the person’s disability, require

documentation or special identification card, or ask that the

animal demonstrate its ability to perform the work or task

• ADA provides protection under Title II (public entities) and

Title III (public accommodations)

� Employment and housing context not addressed but would be part of

the interactive process and request for accommodation under Title I

or Section 504

Emotional Support Animals• No protection under ADA Title II or Title III

• Be careful in defining the term: does a comfort animal

perform a service to someone with PTSD or an anxiety

disorder?

• However, the protection possible under the Fair Housing Act

(“FHA”), which has a broad definition of eligible animals (not

limited to dogs) who may serve as “assistance animals”

� Do you have faculty housing?

� Has been found applicable to student housing facilities on

campus See U.S. v. Univ. of Nebraska, 940 F. Supp. 2d 974

(D. Neb. 2013)

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Emotional Support Animals• May be kept in a dwelling unit as a reasonable accommodation if:

� Person has a disability;

� Animal is necessary to afford an equal opportunity to use or

enjoy the dwelling; and

� An identifiable relation or nexus exist between the person's

disability and the assistance provided by the animal

• May be denied or removed if:

� Animal poses a direct threat to health and safety of others;

� Would cause substantial physical damage to the property of

others;

� Would pose an undue financial and administrative burden; or

� Would fundamentally alter the nature of the provider’s

operations

MOVING FORWARD

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Create a Culture That is Accepting of

Diversity

• Plan for an aging population as well as a more

diverse work force.

• Design policies and procedures for universal

access/disabilities before a specific request is

made

• Advertise acceptance of a diverse population

• Do not use an ADA request as the time to

address a performance issue

Educate Faculty Regarding Care for

Colleagues • Who has responsibility to consider the affect of

disability on junior faculty member?

• Notice to senior faculty is likely notice to the institution

• Enforce the culture: do not ignore inappropriate comments or failure to implement accommodations in good faith

• Try to make faculty understand that what they say (or do not say) or write (e-mails) can and will be used against them (and the university) in a court of law

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Involve the Faculty In the Process

• It is imperative to confer with faculty/staff and

organizations when designing procedures that

will affect individuals with disabilities:

� Extension of tenure timeline

� How will a reduction in course load affect the

reappointment/tenure timeline?

� What is appropriate to ask of faculty/individual

department members with regard to

accommodating colleagues?

Involve Faculty/Staff when

Addressing Student Accommodations• Accommodations for students in general and

specific students/courses

• Will faculty accept video recording/remote participation?

• How will group projects affect the ability of students with intermittent health conditions to participate?

• It is imperative to inform faculty in a timely way of accommodations for students?

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Consider Faculty/Community Impact

When Designing for Students

• The focus on making a campus more user

friendly for students should include faculty

and staff

• Policies and practices need to be adjusted to

account for benefits of emerging technology

Questions?

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