EMPLOYER POLICIES UNDER THE ADA

 

Title I of the Americans with Disabilities Act (ADA) applies to employers and the term “employer” means a person engaged in an industry affecting commerce who has 15 or more employees for each working day for each of 20 or more calendar weeks in the current or proceeding year. See 42 U.S.C. § 12111(5).

 

The federal statutes for Title I of the ADA are 42 U.S.C. § 12111-12117 and the regulations are 29 C.F.R. Part 1630. The Equal Employment Opportunity Commission (EEOC) is the enforcement federal agency for Title I.

 

The Supreme Court has held that:

 

Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing they cannot deny an employee alternative employment opportunities reasonably available under the employees existing policies. See School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 289 n.19, 107 S.Ct. 1123, 1131 n.19, 94 L.Ed.2d 307 (1987).

 

Citing Arline, the U.S. Court of Appeals for the Second Circuit held that:

 

While reasonable accommodation generally does not require an employer to reassign a disabled employee to a different position, an employer may not deny an employee his or her contractual right to bid for reassignment by reason of disability. See Bates v. Long Island Railroad Co., 997 F.2d 1028, 1035 (2nd Cir. 1993). (the contractual right to bid refers to a right under an existing employer/union collective bargaining agreement).

 

However, federal agencies, including the EEOC, the Office of Federal Contract Compliance Programs (OFCCP) and the National Labor Relations Board (NLRB), are known to have told complainants that those agencies do not enforce the terms of an employer/union collective bargaining agreement.

 

For example, Ms. Norma Broin was a flight attendant who took a leave of absence from American Airlines to accompany her Marine Corp husband to his duty station in Okinawa. While on her leave of absence, Ms. Broin had a lung removed because of lung cancer caused by exposure to second hand tobacco smoke on airline flights.

 

When Ms. Broin attempted to return to American Airlines from her leave of absence, she was disqualified as a flight attendant and Ms. Broin filed a disability discrimination complaint against American Airlines with the EEOC. Ms. Broin alleged that she had the seniority to bid trips to nonsmoking airports and that American Airlines discriminated against her on the basis of disability by not allowing her to bid her trips on the basis of seniority as provided by the applicable American Airlines/Association of Professional Flight Attendants collective bargaining agreement.

 

After a review of Ms. Broin’s complaint, the EEOC advised Ms. Broin that the EEOC was going to dismiss her complaint because the EEOC did not enforce employer/union collective bargaining agreements.  However, Ms. Broin became aware of the decision in Bates v. Long Island Railroad and contacted the EEOC before her complaint was dismissed.  Ms. Broin then cited the Bates v. Long Island Railroad decision and the EEOC proceeded with her complaint. When American Airlines refused to reinstate and compensate Ms. Broin, the EEOC brought suit against American Airlines in the U.S. District Court for the Eastern District of Virginia. American then entered into a consent decree with the EEOC on June 13, 2001. See Civil Action No. 00-296-A (E.D.Va. 2001).  (View the letter from the EEOC to American Airlines at: http://www.gaspoftexas.com/eeoc990325.jpg .)  The terms of the trip bid procedure agreed to in the consent decree was described in a letter dated 03/13/95 to Ms. Broin from American Airlines.

 

In Pagliaroni v. Daimler Chrysler Corp., 2006 U.S. Dist. LEXIS 66720, the U.S. District Court for the Eastern District Court for the District of Wisconsin denied summary judgment holding that:

 

DC’s [Daimler Chrysler’s] failure to enforce its smoking policy is an additional reason as to why summary judgment is inappropriate. It is undisputed that the extent of DC’s efforts regarding the enforcement of smoking policy was to speak with Pagliaroni’s supervisor, notify the plant’s industrial hygienist of the complaints, meet with union representatives, and re-post the policy. There is a material fact dispute as to whether these efforts can be characterized as enforcement. From the record, at no point did DC ever attempt to enforce its smoking ban by disciplining violators. Therefore, a jury issue has been raised as to whether enforcement of DC’s pre-established policies would have constituted a reasonable accommodation, and if so, was the action taken by DC sufficient. Id. at *20.

 

Therefore, individuals with disabilities caused or exacerbated by second hand tobacco smoke may be able to get the EEOC to take action by citing Bates v. Long Island Railroad and Pagliaroni v. Daimler Chrysler.

 

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

 

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