DISPARATE TREATMENT AND DISPARATE IMPACT AND THE ADA

 

There are three Titles to the Americans with Disabilities Act (ADA)[1] and disparate treatment and disparate impact discrimination apply to all three titles.

 

BACKGROUND

 

The Rehabilitation Act of 1973[2] preceded the ADA, and the U.S. Court of Appeals for the Fifth Circuit was the first Court of Appeals to review employment discrimination on the basis of handicap under the Rehabilitation Act.

 

In Prewitt v. United States Postal Service,[3] the U.S. Court of Appeals for the Fifth Circuit held that:

 

Commentators have identified four distinct types of discriminatory barriers that handicapped persons must confront when seeking employment: 1. Intentional barriers for reasons of social bias (social, sexual, religion, handicap, etc.); 2. neutral standards with disparate impact; 3. surmountable impairment barriers; and 4. insurmountable impairment barriers.[4] (citations omitted).

 

Now, let us review the four types of discriminatory barriers for the handicapped under the Rehabilitation Act:

 

1. Intentional discrimination (disparate treatment) for reasons of social bias (handicap).

 

In School Board of Nassau County, Florida v. Arline,[5] the U.S. Supreme Court held that:

 

It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment.[6]

 

Congress’ desire to prohibit discrimination based on the effects a person’s handicap may have on others was evident from the inception of the [Rehabilitation] Act.[7]

 

The Supreme Court cited these two examples of disparate treatment:

 

A court ruled that a cerebral palsied child, who was not a physical threat and was academically competitive, should be excluded from public school, because his teacher claimed his physical appearance “produced a nauseating effect on his classmates.”[8]

 

A woman “crippled by arthritis” was denied a job not because she could not do the work but because “college trustees thought normal students shouldn’t see her.”[9]

 

Therefore, School Board of Nassau County, Florida v. Arline makes it clear that the Rehabilitation Act prohibits discrimination against the handicapped because of the effects of their handicaps on their co-workers, including those co-workers who are smokers.

 

2. Neutral standards with disparate impact.

 

In Prewitt v. United States Postal Service, the U.S. Court of Appeals for the Fifth Circuit held that:

 

In the discriminatory impact context, a plaintiff need not prove that the employer acted with discriminatory intent. All a plaintiff need prove to establish a prima facie case is that the challenged standard disparately disadvantages the protected group of which he is a member, and that he is qualified for the position under all but the challenged criteria. The burden of persuasion then shifts to the employer to prove that the challenged criteria are “job-related,” i.e., that they are required by “business necessity”.[10]

 

… when assessing the disparate impact of a facially-neutral criterion, courts must be careful not to group all handicapped persons into one class, or even into broad sub-classes. This is because “the fact that an employer employs fifteen epileptics is not necessarily probative of whether he or she has discriminated against a blind person.”[11]

 

Therefore, Prewitt v. United States Postal Service makes it clear that the employee does not have to prove that an employer policy was intended to be discriminatory, and this includes smoking policies that disparately disadvantage employees with handicaps caused or exacerbated by second hand tobacco smoke.

 

Furthermore, the second quote makes it clear that evidence that the employer does not discriminate against other handicapped employees does not prove that the employer does not discriminate against employees with handicaps caused or exacerbated by second hand tobacco smoke.

 

Also, in Alexander v. Choate,[12] the U.S. Supreme Court held that disparate impact discrimination applies to Section 504 of the Rehabilitation Act.[13] Section 504 of the Rehabilitation Act[14] applies to recipients of federal funds, and Alexander v. Choate involved Medicaid funds.

 

3. Surmountable barrier discrimination (the duty to make a “reasonable accommodation”[15]).

Prewitt v. United States Postal Service involved a plaintiff who was a disabled Vietnam war veteran with limited mobility of his left arm and shoulder as a result of gunshot wounds. He was disqualified from a position as a clerk/carrier at a post office in Greenville, Mississippi. The duties of a clerk/carrier included stooping, bending, squatting, and lifting up to seventy pounds.[16]

 

At trial, the postal service witness admitted that Prewitt could have been accommodated by simply lowering the legs to which the shelves were attached. The court held that Prewitt might be entitled to relief if he was a victim of “surmountable barrier” discrimination, i.e., if he was rejected even though he could have performed the essential functions of the job if afforded reasonable accommodation.[17]

 

Prewitt v. United States Postal Service makes it clear that “reasonable accommodation” applies only to “surmountable barrier” discrimination.

 

4. Insurmountable barrier discrimination

 

The U.S. Supreme Court decision in Southeastern Community College v. Davis[18] is the leading authority on insurmountable barrier discrimination under the Rehabilitation Act. In Southeastern Community College v. Davis, the Supreme Court held that legitimate physical qualifications may be required under the Rehabilitation Act.[19]

 

Therefore, a person who cannot meet legitimate physical qualifications is not a qualified person with a handicap under the Rehabilitation Act.

 

AMERICANS WITH DISABILITIES ACT

 

Title I. Employment

 

In Raytheon Co. v. Hernandez,[20] the U.S. Supreme Court held that:

 

Both disparate-treatment and disparate-impact are cognizable under the ADA.[21]

 

This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims based on disparate impact. The court has said that “‘disparate treatment’ is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or other protected characteristic.” Liability in a disparate-treatment case “depends on whether the protected trait … actually motivated the employer’s decision.” By contrast, disparate-impact claims involve “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.”[22]

 

Defenses under Title I

 

29 C.F.R. Part 1630 is the Equal Employment Opportunity Commission (EEOC) regulations for Title I, and 29 C.F.R. § 1630.15 is the regulation for defenses to charges of disparate treatment, disparate impact discrimination, and failure to accommodate.

 

29 C.F.R. § 1630.15

 

(a) Disparate treatment charges. It may be a defense to a charge of disparate treatment brought under §§ 1630.4 through 1630.8 and 1630.11 through 1630.12 that the challenged action is justified by a legitimate, nondiscriminatory reason. (emphasis added).

 

(c) Other disparate impact charges. It may be a defense to a charge of discrimination brought under this part that a uniformly applied standard, criterion, or policy has a disparate impact on an individual with a disability or a class of individuals with disabilities that the challenged standard, criterion or policy has shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required by this part. (emphasis added).

 

(d) Charges of not making reasonable accommodation. It may be a defense to a charge of discrimination, as described in § 1630.9, that a requested or necessary accommodation would impose an undue hardship on the operation of the covered entity’s business. (emphasis added).

 

Therefore, charges of disparate treatment and disparate impact discrimination should be raised by individuals with disabilities caused by or exacerbated by second hand tobacco smoke rather than charges of failure to accommodate.

 

Title II Public entities

 

In Crowder v. Kitagawa,[23] the U.S. Court of Appeals for the Ninth Circuit held that:

 

Section 12132[24] of the ADA precludes (1) exclusion from/denial of benefits of public services, as well as (2) discrimination by a public entity. Due to the insertion of the word “or” between exclusion from/denial of benefits on the one hand and discrimination by a public entity on the other, we conclude that Congress intended to prohibit two different phenomena. Congress intended to prohibit outright discrimination, as well as those forms of discrimination which deny disabled persons public services disproportionately due to their disability.[25] (emphasis added).

 

A further indication of Congress’ intent to cover both intention discrimination and discrimination as a result of facially neutral laws is the explicit mandate in the ADA that federal regulations adopted to enforce the statute be consistent with the Rehabilitation Act.[26]

 

Disparate impact discrimination under Title II

 

Hawaii is one of the few places of the world that is free from rabies. To protect the state from the importation of rabies, the Hawaii Legislature enacted a statute allowing the Hawaii Department of Agriculture to make rules for the quarantine of animals upon their arrival in Hawaii.[27] The Hawaii Department of Agriculture established a 120-day quarantine in a quarantine station for dogs, cats and other carnivorous animals entering Hawaii from the United States mainland or any other country that is not considered rabies free. This quarantine included guide dogs used by disabled persons.[28]

 

The U.S. Court of Appeals for the Ninth Circuit held that:

 

Although Hawaii’s quarantine requirement applies equally to all persons entering the state with a dog, its enforcement burdens visually-impaired persons in a manner different and greater than others. Because of the unique dependence on guide dogs among many of the visually-impaired, Hawaii’s quarantine effectively denies these persons … meaningful access to state services, programs and activities while such services, programs and activities remain open and easily accessible by others. The quarantine, therefore, discriminates against the plaintiffs by reason of disability.[29]

 

We conclude that Hawaii’s quarantine requirement is a policy, practice or procedure which discriminates against visually-impaired individuals by denying them meaningful access to state services, programs and activities by reason of disability in violation of the ADA.[30]

 

Subsequently, the State of Hawaii reached a settlement agreement with the plaintiffs in Crowder v. Kitagawa and the DOJ. The settlement agreement provided that, under specified conditions, persons with visual impairments who rely on guide dogs are to be exempted from the 30-day quarantine.[31]

 

Crowder v. Kitagawa clearly establishes that a public entity’s policies, practices, and procedures that have a disparate impact on the disabled are in violation of the ADA.

 

Therefore, individuals with disabilities caused by or exacerbated by second hand tobacco smoke should allege that a public entity’s smoking policy has a disparate impact on the breathing disabled.

 

Title III. Public accommodations

 

In PGA Tour, Inc. v. Martin,[32] the U.S. Supreme Court held that:

 

Discrimination against individuals persists in such critical areas such as housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. Congress noted that many types of such discrimination … include “outright intentional exclusion” as well as the “failure to make modifications to existing facilities and practices.”[33] (emphasis added).

 

Reasonable modification/fundamental alteration

 

28 C.F.R. Part 35 is the DOJ regulations for Title II of the ADA, and 28 C.F.R. § 35.130(b)(7) is the regulation for reasonable modification/fundamental alteration.

 

28 C.F.R. § 35.130(b)(7). A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.[34]

 

28 C.F.R. Part 36 is the DOJ regulations for Title III of the ADA, and 28 C.F.R. § 36.302 is the regulation for reasonable modification/fundamental alteration.

 

28 C.F.R. § 36.302. A public accommodation shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, advantages, or accommodations.[35]

 

In conclusion

 

Under Title I of the ADA, in U.S. Airways, Inc. v. Barnett,[36] the U.S. Supreme Court held that:

 

An ineffective “modification” or “adjustment” will not accommodate a disabled individual’s limitations.[37]

 

Under Title III of the ADA, in Bragdon v. Abbott,[38] the U.S. Supreme Court held that:

 

In accessing the reasonableness of petitioner’s actions, the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority.[39]

 

… petitioner’s actions must be evaluated in light of the available, objective evidence.[40]

 

Therefore, it is well-settled that a reasonable modification for the breathing disabled must be effective and it must be evaluated in light of the available, objective evidence about second hand tobacco smoke. Furthermore, it must be consistent with the views of public health authorities with regard to second hand tobacco smoke.

 

It is just as well-settled that a smoking ban would not be a fundamental alteration under Title II or Title III of the ADA.

 

Furthermore, reasonable accommodation should not be alleged because it only provides that an employer make an accommodation that will allow an employee to perform the essential functions of the job.[41]

 

For example, in Harmer v. Virginia Electric and Power Co.,[42] the U.S. District Court for the Eastern District of Virginia held that:

 

Harmer is not entitled to absolute accommodation under the ADA because he can perform the essential functions of his position with the reasonable accommodations made by Virginia Power as evidenced by his job performance appraisals, which indicate that he consistently met his job requirements.[43]

 

Harmer’s reasonable accommodations included increasing the space between smokers and non-smokers, smoke-less ashtrays, air purifiers, and high oxygen output plants.[44]

 

Therefore, disparate treatment and disparate impact discrimination should be alleged rather than reasonable accommodation under Title I.

 

Moreover, a disparate treatment complaint should allege discrimination “because of the effects of a breathing disability on smokers in violation of the U.S. Supreme Court decision in School Board of Nassau County, Florida v. Arline, 480 U.S. 282 and 282 n.9.”

 

And, a disparate impact discrimination complaint should allege that “a smoking policy is a neutral policy that has a disparate impact on the breathing disabled in violation of the U.S. Supreme Court decision in Alexander v. Choate, 469 U.S. 296-97.”

 

Prepared by:

 

Billy Williams

Executive Director

GASP of Texas

http://www.gaspoftexas.com/

 

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu/.

 

Additional information is available at http://www.ada.gov/

and also from the Northeastern University School of Law at:

http://tobacco.neu.edu/tobacco_control/resources/ETS/adainfo1.htm

 

DISCLAIMER: The content contained in this document has been prepared by GASP of Texas as a service to its readers. It is not intended to constitute legal advice. GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained herein. Users of this information do so at their own risk.

 

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[1] 42 U.S.C. § 12101 et. seq.

[2] 29 U.S.C. § 791 et. seq.

[3] 662 F2d 292 (5th Cir. 1981).

[4] 662 F.2d 305 n.19.

[5] 480 U.S. 273, 107 S.Ct. 1123 (1987).

[6] 480 U.S. 282.

[7] 480 U.S. 282, n.9.

[8] 480 U.S. 282, n.9.

[9] 480 U.S. 282, n.9.

[10] 662 F.2d 306.

[11] 662 F.2d 307.

[12] 469 U.S. 287, 105 S.Ct. 712 (1985).

[13] 469 U.S. 296-97.

[14] 29 U.S.C. 794.

[15] 662 F.2d 305.

[16] 662 F.2d 298.

[17] 662 F.2d 305.

[18] 442 U.S. 397, 99 S.Ct. 2361 (1979). (cited in Prewitt v. United States Postal Service, 662 F.2d 307).

[19] 442 U.S. 406.

[20] 540 U.S. 44, 124 S.Ct. 513 (2003).

[21] 540 U.S. 53.

[22] 540 U.S. 52.

[23] 81 F.3d 1480 (9th Cir. 1996).

[24] 42 U.S. § 12132.

[25] 81 F.3d 1483.

[26] 81 F.3d 1484.

[27] 81 F.3d 1481.

[28] 81 F.3d 1481-82.

[29] 81 F.3d 1484.

[30] 81 F.3d 1485.

[31] http://www.ada.gov/crowder.htm.

[32] 532 U.S. 661, 121 S.Ct. 1879 (2001).

[33] 532 U.S. 675.

[34] See also, Olmstead v. L.C. by Zimring, 527 U.S. 581, 592, 119 S.Ct. 2176 (1999).

[35] See also, 42 U.S.C. § 12182(b)(A)(ii); PGA Tour, Inc. v. Martin, 532 U.S. 682.

[36] 535 U.S. 391, 122 S.Ct. 1516 (2002).

[37] 535 U.S. 400.

[38] 524 U.S. 624, 118 S.Ct. 2196 (1998).

[39] 524 U.S. 650.

[40] 524 U.S. 650.

[41] 29 C.F.R. § 1630.2(o)(ii).

[42] 831 F.Supp. 1300 (E.D.Va. 1993).

[43] 831 F.Supp. 1306.

[44] 831 F.Supp. 1303-04.

 

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