Update from EEOC: Latest on Upcoming Supreme Court Case and Comments on 2002 ADA Cases. Presenter: Sharon Rennert. ROB: Please stand by, folks, we are making adjustments to our phone line and will begin shortly. Please stand by. Our webcast will begin shortly. We are making adjustment to our phone line. >> RACHEL: Good afternoon, everybody and welcome to today's webcast. I apologize forgetting a late start, but I promise you, we've got a lot of good stuff in store for you today. I'll be quick with introductions. My name is Rachel Kosoy. I am with the Disability Law Resource Project, your sponsor for today's event. I will be moderating today's webcast, which basically means I will be passing along E-mail questions to the presenter today. Before we get started, I want to remind you about sending questions. In order to submit a question, you can click the submit question button. There is a button located at the bottom of your RealOne Player screen. You can click that, or you can address something to webcast@ilru.org. So go ahead and send those in now or at any pointed during the presentation, and I will go ahead and pose those to Sharon Rennert. If anybody has technical difficulties today of any kind, please do give us a call. The number, voice and TTY, is 713-520-0232. And there are people standing by who can help you. Okay, our topic today is an update from the EEOC, the latest on an upcoming Supreme Court case and also comments on the 2002 ADA cases. There will basically be four parts to today's session. Initially, we'll hear an update from the EEOC. Then there will be some discussion about a title I. or employment case which is set for Supreme Court review next term, and that case is Raytheon vs. Hernandez. Then we'll hear some comments on the 2002 American Bar Association study of appellate and EEOC ADA cases. And then a lot of our time today will be devoted to questions and answers. So please do send in any questions that have to do with employment, and we will get to those questions. Okay, now I'd like to go ahead and introduce your speaker for today. We are very lucky to have Sharon Rennert with us. She is a senior attorney advisor with the U.S. EEOC, which is the Equal Employment Opportunity Commission. For over ten years, Ms. Rennert has formulated the commission's policy interpretations of the Americans with Disabilities Act. She was the key drafter of the EEOC's guidance on reasonable accommodation. And she specializes in providing private and public sector employers with practical approaches to ADA compliance. She regularly consults with EEOC investigators and attorneys. She has done a lot of training, and I've been lucky enough to hear some of her training in the past. She does it with EEOC staff, attorneys, HR professionals and people with disabilities. So, Sharon, I would like to go ahead and turn it over to you. >> SHARON: Thanks very much, Rachel, and good afternoon to everyone out there. As Rachel indicated what we would like to do mainly this afternoon is hear from you your questions so I hope that you are sending them in and will be sending them in; but let me at least begin by giving a sense of what we're doing here at EEOC and what you can be looking out for in the coming months from us. We expect to be publishing before the end of the year, I'm afraid I can't be more specific than that, but before the end of the year two fact sheets; one looking at the ADA and people with diabetes, and the other one looking at the ADA and how it affects applicants, job applicants, with disabilities. Both of these are meant to apply ADA to sort of specific people, not really breaking any new ground, but looking at issues that come up on a routine basis for people with diabetes and how the ADA addresses them, and then the same thing for job applicants. So look out for both of those. They will be posted on our website when they come out. And speaking of our website, this is to show that we do listen when people provide us with feedback. One of the things that we have heard is that our website was not necessarily as user friendly as it might be, and even on some of these webcasts, I've appreciated the comments and they've been heard, and so we are in the process of changing our website so that people who are seeking information about the ADA, who feel that they've had to go to various kind of different places and not necessarily that they can count on having found everything, that basically we will make it much simpler and much easier for you to find the ADA information you're looking for. So that to my expectation should be completed and unveiled before the end of the year. So I appreciate the feedback and, please, continued to give it to us. We are interested, and we do listen. Moving along, Rachel mentioned that we wanted to spend a few minutes reviewing a case that will be before the Supreme Court when it begins its new term this October. And that case being Raytheon vs. Hernandez. At the present time, this is the only ADA employment case that the Supreme Court has taken. They could still potentially take another one. We don't know whether they will, but just to give you an indication of what this case is about and what to be on the lookout for, if you haven't heard about Raytheon yet. This is a case that originated in California, and it involved an individual, Mr. Hernandez, who was a long time employee of Raytheon, and he was fired when he tested positive in the workplace for drugs. I believe it was for cocaine. He was terminated approximately two years after his termination, he applied to Raytheon to come back, applied for a new job with them. At this point he had joined alcoholics anonymous and he had presented them with a letter from his AA counselor that was saying how well he was doing, that he was attending the AA meetings, and that he was well along in his recovery. Nonetheless, Raytheon rejected him, did not rehire him, and Mr. Hernandez filed a charge the EEOC. During the charge investigation, Raytheon in justifying its refusal to rehire Mr. Hernandez laid out a couple of reasons to the EEOC saying that first of all they felt that there wasn't evidence that he really was a recovered drug addict or recovered alcoholic, in other words, they didn't believe they had evidence that he was successfully rehabilitated, and therefore, that was one reason to reject his application. The second reason that the company said they had an unwritten policy that whenever people were terminated for cause, in other words, you know in his case, for having come to the workplace under the influence of cocaine, but it could be for lying, for stealing, for misbehavior, for whatever reason that somebody might be terminated for that kind of cause, they were never eligible again to be rehired by the company. That was it. The company was done with them. And oh they said they were simply applying that policy to Mr. Hernandez and that was another reason not to rehire him. Ultimately, Mr. Hernandez filed a lawsuit against Raytheon. The district court, which would be the trial court level, never had a trial. The district court, looking at the evidence, said we don't find a factual dispute here, and we think that based on the ADA, Raytheon was within its rights to refuse to rehire him. So the district court ruled in favor of the company. Mr. Hernandez appeals to the 9th circuit Court of Appeals which covers the western part of the country, and the 9th circuit reversed what the district court had done. It said wait a minute we think there does need to be a trial. We think it was wrong to dismiss this case in favor of the company, that they found that the evidence was in dispute as to the reasons for refusing to rehire Mr. Hernandez, but what's most important is what the 9th circuit said next and that was that they acknowledged that this company has this unwritten policy, we will not rehire people who were fired for violating conduct rules. And they said -- the 9th circuit set in general that policy is fine, but under the ADA, the 9th circuit said the company could not apply the policy to somebody who was a recovered drug addict and whose only misconduct had been to fail a drug test. That you cannot apply the no rehire rule to someone who is a recovered drug addict and whose only misconduct had been failing a drug test. Well, Raytheon appealed that decision to the Supreme Court, and this is the case the Supreme Court has taken, and the issue that the Supreme Court will look at is all about applying this policy of no rehire to somebody who is a drug add district or a recovered drug addict now and whose only misconduct had been failing a drug test. This case is not been -- it never has been about challenging Mr. Hernandez' termination initially. Everybody is in agreement that under the ADA the company was well within its rights once he failed a drug test to terminate him, that he was not protected under the ADA at that point. So the only issue in this case has to do with when he looked to be rehired, and could he be kept out of it, out of the job, for his misconduct. The government has submitted a brief in support of Raytheon. So the government's position is that Raytheon was entitled to have such a policy and to apply it to Mr. Hernandez. The government's brief does warn that, of course, it would have to be applied as the company contends to anybody, whether they have a disability or not, for any kind of misconduct. Obviously you can't single out the person who is the recovered drug addict and just say, well, we won't rehire you for misconduct, but meanwhile, you're hiring back people who might have lied, who might have stolen, who might have engaged in other forms of misconduct; but that if there is no evidence that it's being applied strictly to people who are recovered drug addicts, then this kind of policy is -- does conform to the ADA's requirements. Obviously, Mr. Hernandez disagrees with that and believes that it should not have applied to him, that basically the 9th circuit was correct, that he, having recovered from his drug addiction, in other words, not using drugs at this point in time, that it was wrong to hold his past misconduct, that there is something different from the people who might lie or steal or engage in other forms of misconduct, that his argument -- Mr. Hernandez' argument is that his quote-unquote misconduct is so tied to his disability that they're real inseparable and in effect he's being punished for having his disability. Obviously I do not have a crystal ball so I'm not going to even begin to predict where the Supreme Court is going to come out on this. I think that whenever a case goes before the Supreme Court, and especially with ADA, it is always the hope that the court will rule narrowly, stick to the particular facts, the particular issues in a case, and not to address wider ranging issues that may have more implication. So, in other words, to keep to the fact that this was involving a recovered drug addict, not necessarily start getting into other kinds of disabilities, other kinds of issues that might come up. Because then, as I said, there is always a danger that we have much more to deal with if the court really gives us a very broad ruling, but we're all going to have to wait and see. It will be a number of months before the court issues any ruling. It certainly won't be before next year. So just to kind of set the stage for you and something to keep looking out for. The other thing I wanted to bring up before we get to your questions is this American Bar Association study because it does tend to get a lot of attention, and some concerns that I have about how much to read into this study. For those who may not be aware of it, every summer for the last several years, the American Bar Association has done a study of appellate decisions involving the ADA. So that's the federal appeals courts and looking at their ADA decisions for the prior year. So we're talking about year 2002, and then they also look at EEOC charges and the outcomes of those ADA charges again for the same 12 month period, the year 2002. And what the ABA has found every year since they began doing this, is that in the ABA's view employers overwhelmingly win the cases, both before the EEOC and before the appeals courts. Before the appeals courts it's over 90 percent in terms of employer Victories. And I'll put that in quotes because I'll come back to what does that mean in a moment. It's not quite as high the percentage in terms of employers winning before the EEOC, but it certainly is the majority of cases. Now, there is no question that probably any way you slice it, employers -- either before the EEOC or the courts -- are going to come out as the quote-unquote winners more often, but I think that it can be a little defective if you don't go and look at how the EEOC -- or rather how the American Bar Association is measuring what is an employer's victory vs what is a victory by a person with a disability. In terms of the appeals courts, the American Bar Association says that an employer is considered to have won a case if a court rules that there are no -- that there are grounds to dismiss it. In other words, if the court says we don't even need to go to trial on this, that we think that here and now there are now disputes on the facts and that the employer, therefore -- and we think the law supports the employer -- they win. So no trial, just a court saying we find no factual dispute, you win. Well, the American Bar Association doesn't think that the reverse would be true. A person with a disability doesn't win under the same circumstances, in other words, what it's going to require of the person of the disability, if they have to go all the way through a trial. If at that point the person with the disability comes out on top, they're the winner. So it's kind of this extra step. And I think that makes a difference in how you're going to look at winners and losers here. The fact is that oftentimes the way the judicial system will work is that people will go into court and they will go before a judge and they will come up with their best argument, and if a judge is going to rule, you know, I think we need a trial. Then what oftentimes happens at that point -- nobody has won yet because the judge has said we need to go to trial -- is that it's going to settle. Overwhelmingly cases will settle at that point. In other words, trials end up becoming fairly rare in our system. And so if the benchmark to be a winner as a person with a disability is to go through a trial, very few people are going to be in that position. So I think that somewhat skews the bar association's results by saying that, you know, as long as a case is dismissed, we're going to chalk that up as a Victory for the employer, but only those cases that actually go through trial and the person with the disability wins, those are the wins for people with disabilities. I think that makes it a bit skewed and, therefore, this idea that employers, you know, sort of overwhelmingly are the Victors. I don't think that is quite accurate. I think that it is important to remember -- it depends on how you want to somewhat look at winners and losers. I think that if there is ultimately a settlement, I think that can be a win for someone with a disability. And I think that's important. I think a lot of employers choose to enter such settlements at that point after a court has refused to dismiss a case, precisely because they're going, oops, you know, our odds are probably not so good here and they now feel they've taken their best shot and that to pursue it through trial does not -- that the odds may not play in their favor. Obviously a lot of things go into deciding whether to reach settlements, but I think it is important to understand that reaching a settlement isn't exactly a loss for someone with a disability. There could be a lot of good things that can come out of that. Obviously, if there isn't, then they can choose to reject the settlement and go to trial, but I think you want to sort of keep that in mind. In terms of the EEOC charge process, a lot of the cases that the Bar Association viewed as employer Victories are questionable here, too, questionable for different reasons. A lot of the cases that they included as employer Victories would be, for example, where people with disabilities might end up deciding to withdraw a charge before the end of the process. And there can be many reasons that people do that, not simply because they know they were going to lose their case necessarily, but people make a decision to move on, that they don't want to keep pursuing it. Other things may interfere with continuing to pursue a charge. So, again, I think it's reading a bit too much into it about the merits of the case that people withdraw this. There can also be a lot of cases that are dismissed for reasons that are not dealing necessarily with disability, people who have mistaken by filed with the EEOC or realized their claims aren't an ADA claims but more like a family and medical leave and therefore they need to go before the Department of Labor. There are lots of other things besides simply a sort of merit -based reason. Now, again, as I began talking about the study, it is still true even with my caveats that employers are going to be successful in a majority of the times, before both EEOC and the appeals courts. The ADA is a complicated and complex law, and certainly with Supreme Court decisions that have made it more difficult to show disability, that's obviously having perhaps the biggest impact on people's abilities to win these cases, the issue of disability is a much bigger issue than people thought it would be, than EEOC and others thought it would be when we began enforcing the ADA over ten years ago. So it's not to say that employers may not still have an edge, but I don't think it is as bleak or as completely one sided as the Bar Association study would suggest. So with those as my introductory remarks, Rachel what I would like to do is turn it back to you and hope that we've got questions standing by. >> RACHEL: Okay, you managed to get in a lot there, and we do have some questions coming in. I also have been alerted that a number of people have been having trouble getting on. It looks like there is a lot of traffic on the web or something, so I think some people will be coming in and out. Okay, the first -- actually, the first question relates directly to the definition of disability. >> SHARON: Okay. >> RACHEL: Where you left off. I'm going to paraphrase because it's actually a long question, but this comes from somebody who is very frustrated with the way the courts are treating the definition of disability and feel that it's very discriminatory how they're handling it. Some examples she or he gives are, you know, when a man with a prosthesis is declared not disabled or somebody with Spina Bifida who was photographed walking without assistance is not considered disabled. These are pretty problematic, and this person is asking your opinion, do we need to go back to Congress for an iron clad court proof definition of disability? >> SHARON: Well, just as I don't have a crystal ball to say what the Supreme Court will do, nor do I have a crystal ball to say what Congress will do, I certainly know that there have been discussions about seeing about trying to alter the definition of disability, getting Congress to amend the ADA. I think there is a lot of things -- concerns that would have to be addressed. Number one, what definition do you want to have and can you get the votes to support that? The other thing is it's very hard to open up a statute like the ADA and limit it to say, well, we just want to make one change and one change only. While from the perspective of people with disabilities, understandably upset and concerned about the definition of disability, I'm sure people can imagine that there are employers who have their concerns and things they would like to change. So it's a difficult situation in terms of a legislative fix. In terms of what the courts are doing, I share the questioner's concerns. EEOC shares it. One thing when we are choosing which cases to litigate, to bring into court, we are paying close attention to cases dealing with disabilities, including the ones mentioned in the question. What can we do to perhaps present the case better, to really show a judge, to show a court, that spina bifida for somebody is a substantially limiting disability of a major life activity. As I review a number of these cases is a continuing concern that not enough attention is being paid in preparing a case to have to pull out the stops, if you will, on disability. Now, I know a lot of people say, well, why should you have to pull out the stops? I mean, isn't it obvious that somebody wearing a prosthetic leg has a disability? Isn't it obvious somebody with spina bifida -- well, unfortunately, it's not. And I think it's really critical as cases go into court that sufficient time and energy be devoted to proving this and not assuming a judge, a court, is going to understand or get it. Obviously an employer's interest at that point is to question and to say it's not a disability, and so a person with a disability and his or her attorneys have to really be prepared for that and be prepared, what's the major life activity, in what way is a person substantially limited? How is that really different from the average person in the general population? I don't think that the fact that a court somewhere says somebody wearing a prosthetic leg doesn't have a disability means it never is or that other courts would rule the same way, but I do think that it's important to always prepare a case as if that's where a judge is going to come out and what can I do to tell the judge, no, understand, here is how that prosthetic device -- yes, it may enable somebody to walk, but they can only wear it for a few hours a day because it becomes too painful, too cumbersome, it is rubbing the person raw. They have a limp. Here is the level of pain. You know, all of those kinds of nitty gritty details, that's what has to be there. If it's not there, and if it's really about -- well, but the person is walking, I think the last point to sort of make on this before we go to the next question, one of the things I'm also seeing is sometimes people with disabilities understandably not wanting to emphasize limitations because after all, what's the ADA about, it's about me doing things, it's about not focusing on limitations, and yet to get coverage, what the courts want to hear and see is I do have limitations, and not to be hiding that. It should really be a sort of dual message. Here are my serious limitations because of my disability, but, I can still work. Despite my serious limitations, whatever those may be, yes, I have a disability, but yes, I am also qualified and able to work. And I think so many people want to focus on yes, I'm qualified to work, they forget about talking quite forthright about the serious limitations they do of because of the disability. I think in court cases, absolutely imperative to really spend time explaining the nature of the disability, its serious impact and then couple that with, but of course I can work. And I think we just need to get more attention on that disability side. >> RACHEL: Okay, great. I think that was really helpful and good advice to people. I have a question that is somewhat of a followup to that one. It has to do with the idea of going back to Congress and this questioner is looking for a little clarification on amending vs opening because if you amend -- I'm paraphrasing here. If you amend something like the constitution is amended, then it doesn't necessarily mean that the whole constitution is up for grabs. So why is it different from the ADA? >> SHARON: I don't know if I'm the best expert to explain the differences between the constitution and the legislative process, but the fact is that as far as I know, it would be, if not impossible, extremely difficult with the ADA -- like most forms -- similar forms of legislation, this isn't just about the ADA, to say all we're going to do is open up and change the definition of disability and nothing else. I think that would be highly unlikely to come down that way which is why I say, you know, this is not my field. It wouldn't be what EEOC is going to be doing, but I know that people who have been looking at the idea of trying to fix the definition of disability through the legislative process have to grapple with this issue. Can we really try to limit it? What other amendments might people want to make here? And as I said, I'm not sort of doing this to say yes, do it, or no, don't do it, that's not my call to make, but I think it is part of the thinking process here about whether at this moment in time the legislative process would be the best way to go. >> RACHEL: And is there a movement underway at this point to amend the ADA? >> SHARON: I don't know if movement is the right word. I know that there have been discussions about this, and I would refer people to various disability organizations and there are some other advocacy groups out there and you can certainly check in with them about what their thinking is and what they may or may not be doing at this point. >> RACHEL: Okay, great. I have questions on different topics, so I think what I'm going to do is take the questions first that relate to the earlier topics and then move forward. Okay, so this one goes back to the beginning when you were talking about a document to come about job applicants. And can you talk a little bit about some of the problems or issues that kept coming up that real demonstrated the need for this document? >> SHARON: Well, I think like many of our documents, it really comes from the questions we get. I mean, through this kind of forum, as we go around the country and do various presentations and trainings that we keep coming back into the office and telling our colleagues, here, here is what I've been asked and here is what I've been hearing and we compare notes and we start to see questions that keep coming up. And so in terms of deciding to put together a fact sheet, and I don't know ultimately that's what it will be called, but for now calling it a fact sheet geared to applicants with disabilities. Questions obviously come up about the interviewing and hiring process, still confusion about whether and when employers can ask medical questions. What if I have an obvious disability, one that the employer can see, can they single me out and start asking me medical questions? About the role of medical exams, still a lot of concerns or confusion sometimes about reasonable accommodation, when can I ask for one? When should I ask for one? Here is what I asked for and the employer says, no, he won't provide it, what can I do? So what we're trying to do is gather up all those questions and put them altogether. As I said, I'm not sure that anything in here breaks new ground, that you can't basically find similar issues addressed in our other guidances or our fact sheet, but I think trying to be responsive to those people who are searching for jobs, that here in one document we can kind of pull together what we believe to be the most common questions that come up. >> RACHEL: Okay. All right, and so that addresses that one document. And the other one was about the ADA and diabetes and there also was a request to give a little preview of that. >> SHARON: Well, I obviously didn't want to steal our thunder, but these are still developing, and so things can change as they develop. New things come in, some things might go out, but again, I think that to a certain extent try to deal with an issue we were just discussing a few minutes ago, the definition of disability and how that may be playing out. Obviously with the Supreme Court's decision from a few years ago in the Sutton case on mitigating measures, you know, diabetes is one of those conditions that has been affected by the Sutton decision, the view of using insulin as a mitigating measure. And so looking at how that plays out. There can be issues around, again, accommodation, and again thinking of both from people with disabilities, but from employers as well dealing with say, breaks, to test one sugar levels, blood sugar levels, disposal of those need else after they've been used. How is that done in a workplace? Having the breaks, direct threats kinds of concerns, whether real or not, but nonetheless may be concerned about health or safety risks. So these are probably some of the issues that are likely to be addressed. >> RACHEL: Okay, we won't push you any further than that. >> SHARON: Thank you. >> RACHEL: Wait and see. Okay, this next question has to do with the Raytheon case, completely switching gears. All right, do recovering drug addicts need to have documentation from a professional that they are a recovering addict and how can someone prove that they are a recovering addict? >> SHARON: Do you absolutely have to have it? I don't know that that's true, but I don't think it would hurt at all. I mean, I think -- you know, like Mr. Hernandez who had joined AA to get a letter from his AA counselor. I think we need to sort of back up on why is somebody asking do they need documentation? I don't think it's something that you need to have ready to go just to present it to an employer, but without sort of knowing the context of it -- for, for example, I'm asking for a reasonable accommodation, I would like time off to go to my AA meeting, and now the employer says, well, I'd like some proof, you know, that you're going to be attending an AA meeting. Well, that may be when documentation from an AA leader or something that would show, you know, this is where I'm going could well be appropriate, and I think in terms of how do you show you're a recovering drug addict, I think to the extent anybody has gotten any kind of treatment, that they either can go back to that place that they got the treatment and, again, not necessarily about having a very involved letter or something, but something that really shows that you went through the treatment, that you did well with the treatment, I think all of those things can be very helpful, but I think let's start with why are you needing to present something to the employer. >> RACHEL: All right. Well, without -- I can't speak on behalf of the questioner; but you know, if whoever sent this question in has some follow-up questions on that, feel free to go ahead and send them in. Okay, I have a question that's not related to what you -- let me give you another one related to Raytheon and then I'll give you this one. I think it's asking you to take out that crystal ball. Based on other actions of this Supreme Court, does it seem like they might take the opportunity of Raytheon to make some other point? >> SHARON: It's possible. That really goes to my discussion of hoping that the Supreme Court won't take that opportunity. I think the government's brief really tried to keep the Supreme Court focused on the specific issue raised by this indication. So, in other words, the government's brief was not asking the court to go far afield, to start making other kinds of rulings, but the government's brief really is trying to keep it very narrow, very much focused on the specific issue raised in this particular case. The Supreme Court obviously can and does do what it wants to do, but I think that there may be good reasons, okay, I'll get the crystal ball out a little bit, that they could well be aware that there are very sensitive issues being raised here and that there may be no inclination on enough members of the court to want to really take this too far afield, that it may be enough to really stick with what was raised in the Hernandez case and not to try to come out with some general over arching rule that may apply in all kinds of other situations, other kinds of disabilities. So it would certainly seem to me that the court -- there is good reasons for the court to be narrow here, but you know, a lot of people try to predict what the court does and it's a dangerous thing to do. >> RACHEL: Okay. >> SHARON: No one can come back to me and blame me nine months from now. It's like I'm not going to say I can really be specific about what the court may choose to do here. >> RACHEL: Right. No, I think we've all learned that we can't predict what the court will do and we're not responsible for it. But I think people want to tap into your wisdom. Okay, I think that's as much as we'll get on that one so I'll let you off the hook there. This other question is unrelated to what we've been discussing. Basically they ask can you talk about the Wal-Mart pharmacist case where the reasonable accommodation requested was the mitigating measure? >> SHARON: I'm blanking because I'm not sure I know which case this is referring to. >> RACHEL: Shoot, I was hoping you would, because I don't either. >> SHARON: Let me take a stab at it. I don't know the case, but from the way you worded it, the accommodation they asked for was the mitigating measure. That sounds as though what a person might be asking for is mitigating measures have been identified as something like medication, eyeglasses or contact lenses, that's what was involved in the Sutton vs. United Airlines case was eyeglasses. That if that is what somebody asked Wal-Mart, since that's who you named, if you asked Wal-Mart or any employer as a reasonable accommodation I need medication and with the medication it controls my symptoms and then I won't have a problem doing my job or get me a hearing -- get me hearing aids, get me a wheelchair, get me the eyeglasses or the contact lenses. If that's what the questioner is bringing up, then the answer is those are not forms of reasonable accommodation and the EEOC has said so at least a couple of times going right back to the beginning of ADA. We didn't refer to them as mitigating measures, we called them personal use items, and we identified prosthetic limbs, wheelchairs, hearing aids, that these are items that people need potentially on a job, but what's most significant is that they need them off the job, that the need for these personal use items don't arise in a particular workplace. These are things that are needed because of a disability on and off the job, with the emphasis that it's off the job as well, and because these are not about work-related needs or job-related needs, but sort of general needs, general life needs, that's not an obligation on the employer to provide that. That the employer's obligation is to provide things that are really coming up only in the workplace, something because of the particular work environment or the particular job. It's interesting the question comes up because earlier today I was dealing with a similar question, and it was about somebody who had hearing aids, had gone out on her own and had purchased her hearing aids which absolutely would be in line with how EEOC interprets ADA. It's not the employer's responsibility to get the hearing aids, but what she was asking her employer for was a special device to attach to the hearing aids so that she could effectively participate in large group meetings. Her job involved attending these large group meetings, and while her hearing aids were helping with sort of one on one communication, face to face she could make out the conversation, but in a large group meeting, lots of people talking, talking all at once from all around the room so she's not sure where that voice is coming from, she could not keep up. She could not participate and since I am tech no logically stupid, I have no idea exactly how this device would help with this, but I've been assured that this device attached to the hearing aids can do something and it would enable her to participate in these meetings. And I said at that point I don't think it's a personal use item, that the person who uses the hearing aid, but that this attachment, this special device, that could be something that is needed because of her job. It's a work-related need. And so there I could see that that would be a reasonable accommodation the employer might have to provide. So it kind of provided that example, it was a good example of here is the personal use item, the hearing aid, but this device that fits on it, that's a reasonable accommodation because that's really coming up very specifically because of a part of her job. >> RACHEL: Okay. I think that answer was really good information. I do ask the person who submitted this that if you want commentary on the Wal-Mart pharmacist case specifically, please send us some information on that one. >> SHARON: Let me also say to make sure the listeners understand they can feel free to ask questions on things I have not talked about. I'm quite open dealing with anything on the ADA and employment. >> RACHEL: Okay, great. Here is -- actually right along those lines, we have another question that's just a general employment question. Does an employer have to reassign an employee as a reasonable accommodation to an open position where there are more qualified applicants? Or do they fulfill their accommodation duty following their normal method of filling vacancies and by merely considering the employee for the position? Did you follow that? >> SHARON: I certain did. The EEOC has taken the position that an employer meets its reasonable accommodation obligation by actually placing an employee with a disability in a vacant position as a reassignment without making the person compete for it. So, in other words, as long as an employee is qualified for that vacancy, they can do that job either with or without reasonable accommodation, then they cannot be made to compete for it against other people. They have to be qualified. If they're not qualified, then the employer is not obligated to place them in the job as a reassignment, but if they are qualified for it, then they should be getting that job not having to compete for it. The EEOC stated that in our guidance on reasonable accommodation. Now, this is controversial. This is not something that everyone is in agreement on. I know there have been at least one Court of Appeals decision, and I cannot remember off the top of my head which one, but I believe we have at least one, maybe more than that now, appeals decisions that disagree, that say you must compete for the a job, that that's all the ADA requires is competition, so at least one appeals court has taken a position opposite the EEOC. There has not been, however, lots of litigation on this. So this is still a sort of wide open issue in the sense of -- my guess would be -- and I think it's safe to use my crystal ball, we will see more litigation on this issue, but the EEOC will be right in there. I mean, we do think that looking at the wording of the ADA, Congress' intent in including reassignment, it doesn't say you shall attempt reassign. It says you shall reassign, and to us, that's pretty clear indication and then when we look back at the legislative history when Congress was considering the ADA, that reassign. Meant placing somebody in a noncompetitive way, that it kind of comes to our way of thinking kind of meaningless. If all it is is competition, how much has that really given to the person with disability. In most cases, the right to compete was always there. If I'm in a job and it's not really a good fit, why can't I go ahead and apply for another job in my company? What is the ADA's emphasis on reassign. Gaining for me if that's all it means is going ahead and competing? So that's how we get to the point of saying it means you must compete. As I said, I think we've got one Court of Appeals disagreeing with us. I do think we have one or two Court of Appeals that have agreed with our position. So it is an open issue, but my guidance to employers, certainly, is that understand where EEOC is coming from. That by all means, employers should make sure someone is qualified for a vacancy. The employer with the disabilities should be doing everything he or she can go to show they're qualified tore for this position, but to be aware that if a person is made to compete and they don't get the job, to understand how EEOC will interpret the ADA if a charge is filed. >> RACHEL: Okay. Actually I have a number of new questions coming in. Excuse me, I was just looking through them to figure our out how to order them. One here is that many people think the EEOC went beyond the intent of the ADA or will your interpretation of direct threat. That the EEOC defines direct threat as harm to themselves as well as there's and that what's happening is the Supreme Court is following this interpretation and really further limiting people with disabilities. There is a little more commentary here which says that, you know, everybody has the right to put themselves at risk so people with disabilities should as well. And so can you comment on that? >> SHARON: I think the first thing is a misunderstanding in the employment arena about everybody having a right to put him or herself at risk, and generally, it's just not true in the employment arena. That disability aside, employers have looked at potential harm having absolutely nothing sometimes to do with disability, but wanting to keep the workforce safe and to minimize injuries, obviously from an employer's point of view, minimize workers' compensation claims. So the idea that everybody in a workplace has a right to take a certain amount of risk except a person with a disability, we don't think that that's true. Now, I think it's important to understand that what EEOC did and what was ultimately endorsed by the Supreme Court in the Chevron case last year is, is it is not simply about an employer saying to someone you have a disability and therefore you're too risky and you can't be here. What the EEOC did was to say that the burden is on an employer to show that there real is I a real risk, and not just a real risk, but a real significant risk of a very serious kind of harm. And I think it's important to remember that what's being done here is a burden being placed on employers and a burden that cannot be met by relying on a stereotype, but relying on generalizations, by saying, well, most people with this kind of condition can't do this kind of job. That is not what direct threat to self is about, and that is it protective? Yes. If somebody is actually posing that very high level of risk, then -- and that can be shown objectively with evidence, not just speculation or somebody's opinion -- that an employer does not have to take on that kind of risk to a person to harm him or herself just as they wouldn't have to take it on if the risk was to be posed to other people. And I think what's interesting, when the Supreme Court took the Chevron decision and upheld the direct threat to self regulation, the Supreme Court did not rule on the specific facts in that case, it involved a gentleman with hepatitis C. who was turned down by Chevron to work in a chemical plant. The Supreme Court said we uphold the EEOC direct threat to self regulation and then they sent the case back down to the lower court and said, now, apply the EEOC regulation to the facts of this case and see what happens. And just, I don't know, a few weeks ago we got a decision -- at least an initial decision that the lower court said we have to basically go to trial. We cannot rule -- dismiss this case or rule summarily, and really did exactly what the EEOC wanted it to do. Which was namely here was this employee who worked for many years in this plant. He did it as a contractor rather than as a direct employee of Chevron. The problems began only when he wanted to be hired as a direct employee of Chevron and Chevron seemed to overlook that, gee, he has hepatitis C, but he's been working here all these years, and the evidence was conflicting as to whether he had suffered -- yes, he had hepatitis C, but was his health worse off than it had been? Was it getting worse? Here is this person who had been working in this environment and not showing that he was any worse for that and so the court said that really brings up an issue, is does the man really pose a direct threat? And what they said is we're not going to dismiss this case, that it really is a disputed case on the facts and Chevron you're going to have to go to trial and you'll have to show us he poses a direct threat. Now, how this ultimately comes out, I don't know, but I'm very heartened by what happened when they applied the regulation, that it was not something that Chevron could just come in and say, look, he has hepatitis C, he shouldn't be here in a chemical plant, but they really got into what the doctors are saying, and the doctors are disputing each other. I think it's all about direct threat, whether it's to yourself or other people, is very important to be getting specific information, what's the threat? How high a level is that risk? What's the harm you're so afraid of happening? Can we look at person's work history? Where have they been working? Have they been exposed to whatever you're concerned about? What's happened to them rather than simply a kind of conclusion, yes, this person can work here, no, they can't, that's not based on anything very specific. It's a conclusion without much of a foundation to it. And what I keep emphasizing both to employers and to people with disabilities, it's that foundation. I want specific facts. The ADA wants specific facts and that is what protects people from disabilities from a kind of stereotyping and a very paternalistic view. If there really are facts to support direct threat, then in the EEOC's view and the Supreme Court's view, that's not being paternalistic. At that point you've got realistic objectives, facts that somebody is in a very unsafe position and an employer doesn't have to knowingly allow that. >> RACHEL: Okay. Let's see, I have two kind of follow-up questions to that. How about if I give them both to you at the same time and you can decide which one to answer. >> SHARON: Okay. >> RACHEL: Or which one to answer first. The first one is how do you reconcile the idea of the employer having the burden of proof on direct threat, while it's the employee who will have to provide medical information to make that determination? And the second question -- actually I'm really glad this second question came in because I've gotten this question when I'm training and have really had trouble finding a really clearance to it. So I would love to hear what you have to say. It's basically about when you have two doctors who disagree, and it could be when they're analyzing ADA issues such as direct threat, accommodation, or -- yeah, I guess -- or determination of disability and should the treating physician get deference like in social security? >> SHARON: Okay, let me take the first -- let me take them in order, and the first one was about reconciling an employer having a burden of proof to show direct threat that somebody poses a direct threat vs. the employee having to provide the medical information about direct threat and I think they go together. I don't think that you can have the employer showing direct threat necessarily. In fact, I'd be kind of worried if the employer was not at all discussing this and potentially getting information and -- medical information from the employee. The idea here is that, first of all, the burden of proof is on an employer because the idea was initially no employee should be in the position of having to prove I'm not a direct threat. In other words, why should people with disabilities have to prove the negative, have to prove to people, hey, I have a disability and I'm a safe person. I think that -- I mean, that comes straight out of the statute. I think Congress understood that in essence, that's pretty discriminatory. That's a kind of stereotype view. You have a disability, you're somehow unsafe. So this was putting the burden of proof where I think it belongs, on an employer. But having put the burden of proof there and having really emphasized that employers are supposed to base their decision on objective medical information or other types of relevant information, as opposed to basing it on stereotypes and fears and generalizations, if you're going to base it on objective information, the employer needs to be a fact finder. Where am I going to get that information? And obviously one very important place to get it is from the employee. And to be asking the employee, and there is a number of ways to do this. One is by talking to the person, but it could well involve asking the employee to provide relevant medical information from a treating physician or other person that answers the employer's concerns. That says that here is why the person -- you know, you're concerned that working -- let's go back to Chevron, working in this chemical plant with hepatitis C, isn't this going to pose real risk to this employee? Having the employee's doctor really speak to that and speak specifically to that and talk about whatever tests may be relevant here, about his condition has been monitored and it's fine. About the meaning of certain tests. In that case, the employer's doctors did certain tests and doctors hired by the employee said but those tests are basically meaningless. So getting this kind of information so that the employer, who ultimately has to make the decision, it won't be the doctors. The doctors are really in the role of giving advice, but it is the employer who makes it and so for the employer to make an informed decision, one that is based on fact and not based on stereotype, then the employer needs the cooperation of the individual in terms of providing relevant information. So I think those things go together. Now, what happens though if doctors disagree, which was the second question, and doctors can be involved in all aspects of ADA decision-making. You named a number of them. Is it a disability under the ADA? Is somebody's disability posing a direct threat? What about a request for reasonable accommodation? I think, first of all, it's important to look at what are they disagreeing on, and what, again, is the basis of the disagreement? So many times when I see doctors disagreeing, what I see is doctors disagreeing on their conclusions, but that means I'm dissatisfied with both doctors because I don't care about their conclusions, really. I want to know about the facts that led them to their conclusions. In other words, if I'm looking at a case, I'm putting myself in the shoes of the employer. I have to make a decision as the employer I will be the decision-maker. I don't want to just take it on faith from anybody's doctor, whether it's a doctor who works for me as an employer, whether it's the doctor who works for the employees, what are the facts that led to the conclusion. If all I have is a conclusion and I go with that -- whether I pick my own doctor or the employee's doctor, in a certain sense I'm gambling. I'm gambling that those people really had facts that they were basing their conclusion on, and they were doing it pursuant to the ADA. So lots of times I think it's important to back up when people start talking about doctor's disagreeing. In many of those situations, yes, they've disagreed on their conclusion, but you really don't know the basis of their conclusion. And if you start learning what the basis is, sometimes there really isn't the disagreement. Sometimes the conclusions may actually start changing. For example, on reasonable accommodation I've certainly seen situations where doctors disagree on what the appropriate accommodation might be; but when you find out what their conclusion is based on -- I mean all you know is they're recommending a different form of accommodation, but why? What led them to it? If you start digging underneath, you sometimes find they are both wrong. They both got way off track and they are both really not doing something that would be consistent with the ADA. Sometimes you may find that ultimately there will be agreement. So I think that's if first message, and I really want to emphasize it because this continues to be a huge problem, not really understanding and questioning a doctor's conclusions. But suppose you end up where you honestly have. You looked at the facts underlying the conclusions, they are solid facts underlying those conclusions, but you have two doctors disagreeing with each other. Do you go with the treating doctor or the employer's doctor? And from isn't a kind of right or wrong answer here. Certainly EEOC has told employers they need to, if not quite difficult deference to a treating physician, they need to think very seriously about when they want to disagree in the sense that if the treating physician knows the individual much better than, say, a physician who has been hired by the employer. What about specialization? Do we have a doctor who is treating the employee but is a specialist, a neurologist, an endocrinologist, an orthopedist, whatever it may be, but you have the doctor working for the employer who is a generalist who may not be a specialist in whatever area, psychiatrist who is treating an individual, so in terms of the employer weighing the disagreements, is one person here a specialist? And again, remembering that doctors are not necessarily your ADA experts. If you do have a disagreement, again, what's the ADA issue involved? If it's direct threat, what is it about -- has each doctor provided me with the information that really answers the ADA questions that are raised by direct threat, not just general questions about health and safety risk, but ADA is asking employers to answer very specific questions, what's the nature of the harm, what is the probability of the risk? What's the imminence of the risk? Are those things that the doctors have answered? Are these sometimes questions even doctors can answer? Sometimes doctors, when you ask these questions, will tell you it's almost like earlier asking me to get out a crystal ball about the Supreme Court. Doctors can't necessarily predict the future. So that maybe doctors are trying to be responsive and give the best answer they can, but they can't always answer the question that's been posed to them. So, again, looking -- digging beyond the sort of surface conflict, there isn't an easy answer if you in the end of a conflict. The best I can say to employers, certainly, is remembering. You will make an ADA decision and to sort of put it down, here is why pursuant to the ADA -- if you're going to go with the treating doctor or your own doctor, but you know, what is it that's leading you to give greater weight to one doctor over another? What is it they're saying that sort of fits in with this ADA analysis? >> RACHEL: Okay. Actually, that was very helpful. I took some notes during that so I'll be better prepared to answer that question in the future. So thanks for spending some time on that. Okay, I know we have just shy of 15 minutes left. So I'm just going to keep shooting these questions at you. This one goes back to Hernandez. If Hernandez had never worked for Raytheon, he would unquestionably be protected under the ADA and Raytheon would not be permitted to reject him solely on account of his former drug use. How did the district court explain why Hernandez -- why his protected status under the ADA ceases to exist simply because he worked for Raytheon in the past? >> SHARON: I don't think it's about his protected status. Nobody is certainly questioning -- and this is I guess an area that nobody wants the Supreme Court to raise because it hasn't been raised to them -- about Hernandez being covered by the ADA. I mean, as a recovered drug addict, it certainly is EEOC's position that he is protected by the ADA. Now, whether he was entitled to the job he was applying for is a separate issue. In terms of the district court though explaining why, if he had just been applying to Raytheon for the first time, that the company might not have been able to hold against him his past drug use. I honestly don't remember if the district court got into it. My memory is the district court was pretty cursory in how it addressed this and so I may be wrong. Maybe they did answer this question, but I don't believe that they did go into it. I think that what Raytheon is saying here is that it really isn't about his drug use. To them, it's about misconduct. It happens to be that the misconduct was failing a drug test in the workplace, but that Raytheon's position is this is about their deciding to have as punishment not only will you be terminated for this, but in effect the punishment here when we are terminating you is that termination and you can never be rehired by this company. That in fact it's kind of a two-part punishment, and of course the second part of the punishment isn't triggered unless and until you actually were trying to be rehired; but saying that we would do this if we had caught him stealing from us. We would do this if he had been found to have been insubordinate. In other words, to the company there is no distinction being made. It's not that it has really something to do in their mind with the failing the drug test as much as failing a drug test, stealing, lying, insubordination, many other things are grounds for termination, and once termination is triggered, you can't be rehired. >> RACHEL: Okay. I'm just going to keep going on without commentary. Let's see if we can get two more questions in. This one is -- says it's your observation that perhaps the reason the majority of cases are decided in favor of the employer is that cases may be presented without merit. For example, the claimant cannot demonstrate they were treated any differently than other employees without disabilities and the person's protected status is not clearly a factor in the matter. Based on your experience in reviewing EEOC filings, are there any guidelines you can share in advising consumers who are considering filing with the EEOC for a potentially covered circumstance? >> SHARON: I think when people file charges with us, first of all, to the extent that you can gather your thoughts and sometimes I advise people, you know, in you can spend some time writing out, typing out a sort of chronology of events, what happened, who was involved, any sort of documents you know you either have or you know the employer might have about the incidents in question. Because sometimes you know these are complicated stories that people have to tell, and remembering we're hearing lots of stories, lots of complicated stories that to the extent that people can help us and, therefore, help themselves, as clear as you can be about what happened, when things happened, you know, what was said, who said certain things? All of that can be very helpful. I think -- understand that when EEOC investigators ask you about your disability, here again, we see this problem, when EEOC investigators ask people about disabilities, in many cases people try to minimize it. They try to say I don't of problems. I have whatever I've got, but really try to paint a picture of -- but it doesn't bother me. I do just fine. I don't think of myself as disabled. We hear that a lot, all of those things, and to understand that when an investigator is asking these questions, it's doing so for a reason, that we need to -- just like a court -- be able to show that a charging party has an ADA disability, and so our questions are designed to get the information and if a person is insisting to us, hey, I'm fine, no real problems, I mean, I have this condition, but, boy, I'm not disabled, it doesn't limit me, then that may end up tying our hands quite a bit. Being as responsive as you can as soon as investigators ask you questions, or they ask you to send something, as soon as you can get it to us is really helpful as well in trying to expedite and move along a person's case. But I think, really, just kind of thinking about, you know, whatever you can provide to us that you think helps show why you think you've been discriminated against as clearly as you can, and sometimes that can be hard, but I think that helps us and anything that helps us ultimately helps the charging party. >> RACHEL: Right. Okay, I have two other questions. They're not related to each other, but I'm going to throw them out to you and I guess we've got about three -- four minutes. So whatever you can do with them. >> SHARON: I'll be fast. >> RACHEL: This one seems to be a follow-up on the reassigning question, and so does that include reassigning if a person with a disability's job is eliminated due to downsizing or reorganization? Reassigning rather than requiring a person to compete for a job they're less qualified for -- not a full question. The second one is we got details on the Wal-Mart case. In this case, the pharmacist had diabetes. Wal-Mart did not want to give him an uninterrupted lunch where he could monitor and administer his insulin, but the catch 22 was they said he wasn't substantially limited because he had his insulin. >> SHARON: Okay. Let me do the first thing about reassignment because that may be easier. If an employer is restructuring, downsizing for whatever reason, and so a person with a disability like a lot of other people are going to be losing jobs, then that is not going to trigger reassignment as a reasonable accommodation because it's not about a person because of a disability suddenly unable to continue in her position. This is about a company making decisions to downsize, restructure, what have you, other people presumably affected. It has nothing to do with the person's disability. So if a company is eliminating jobs and therefore people are getting severance pay and they are getting separated from the company, somebody with a disability isn't entitled to reassignment as a reasonable accommodation under the circumstances. If an employer is trying to place people in other jobs, they've eliminated some jobs but they're trying to place people to keep them working, that is not reassignment as a reasonable accommodation, but a worker with a disability would be just as entitled to have the employer place them someplace else as they are trying to place nondisabled employees. Now, in terms of the Wal-Mart case and the pharmacist with diabetes who was asking for an accommodation to get an uninterrupted lunchtime to measure their blood sugar and take care of anything and Wal-Mart says no, but at the same time Wal-Mart is saying you don't have a disability here, this is certainly the kind of situation that EEOC is concerned about for sure, and in terms of, you know, warning employers about things like this, about, you know, you can't kind of have it both ways here and to be very careful. I mean, in most cases, for people with diabetes, they don't need that much time to check their blood sugar levels, and if necessary, inject the insulin. And so in terms of, you know, people have to take breaks anyway, people get lunch, they get bathroom breaks, what have you. We're not talking about anything much beyond it, and to kind of try to nickel and dime somebody over that, that they need for a disability and then sort of turn around and say, but you I don't have a disability any way because of it, very dangerous on the part of an employer, and to me, just creates a lot of ill will. My thing to employers on something like this is that, remember, reasonable accommodation here. And the message that's being sent, not just to the employee with the disability, but things like this to other employees about what the employer is standing for. I mean, as everybody I think knows, EEOC had major cases against Wal-Mart and reached a huge settlement with them and we would hope that as a concerned and good corporate employer, that Wal-Mart, the message it wants to send is that employees with disabilities who need reasonable accommodation should come forward, should discuss, should know that they'll get consideration for this and that Wal-Mart is prepared to grant it. So obviously I don't know all the specifics about this case, but I'm concerned about over emphasizing how many breaks might be needed and but then again trying to flip it and say, it's not a disability. It's a lot of concern. >> RACHEL: Okay. Thank you for that, and basically I really do want to thank you, Sharon. You have given us a lot of information. I'm sure you're worn out, but thank you for answering so many questions. I'm sure people have learned a lot today. >> SHARON: Thank you forgiving me the opportunity. >> RACHEL: Just so everybody knows, today's webcast will be archived. You can go back, read, listen to it again. You can also check our website for additional upcoming webcasts. We have probably three to four a month, and lastly -- well, actually, Sharon, do you have a closing comment in your half a second left? >> SHARON: (Laughter) I just want to thank you and thank everybody for participating and if there are still unanswered questions to the extent there is away that it can be shared through on you to me, I'm more than happy to try to get back to people. >> RACHEL: Great. Thank you. So we will go ahead and forward questions onto Sharon. And lastly, I just would like to acknowledge some other folks who have made today possible. NIDRR, who funds the Disability Law Resource Project. And we have an ILRU webcast team, which includes Marj Gordon, Sharon Finney, Dawn Heinsohn, and Rob Dickehuth and Marie Bryant, our realtime captioner. So thank you everybody and mostly Sharon and hope y'all have a great afternoon. Bye-bye.