Employment Discrimination Law for College Career Planners

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Employment Discrimination Lawfor College Career
Planners

• Prof. Doretta Massardo McGinnis
• Widener University School of Law
• Wilmington, DE

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Overview

• Who is protected from discrimination?
• How is discrimination proven?
• Employers use of social networking sites and
  other Internet sources in the hiring process
• ADA considerations for applicants with
• Learning disabilities and/or ADHD
• Drug/alcohol use

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Protected Classes

• Title VII race, sex, religion, color, national
  origin
• ADEA age 40
• ADA disabilities
• ENDA bill to amend TVII sexual orientation
• State laws may be more protective
• Sexual orientation
• Marital/family status
• lifestyle or off-duty conduct, e.g., smoking

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How is Discrimination Proven?

• Discrimination requires intent.
• Sometimes there is direct evidence.
• More often, claims involve circumstantial
  evidence, especially in the case of job
  applicants.

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Intent to Discriminate Circumstantial Evidence

• Structure of Claim Prima Facie Case
• Applicant belongs to protected class.
• Applied for and was qualified for a job for which
  Employer was seeking applicants.
• Rejected.
• Position remained open Employer continued to
  seek applicants and/or hired applicant outside
  protected class.

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• Applicant must establish prima facie case,
  raising presumption of discrimination.
• Burden shifts to Employer to produce evidence of
  legitimate, nondiscriminatory reason.
• If Employer fails to produce evidence, Applicant
  wins.
• If Employer produces evidence, presumption of
  discrimination is rebutted . . .

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• Applicant now has opportunity to prove that
  Employers articulated reason is pretextual.
• Not limited in terms of types of evidence
• E.g., need not prove greater qualifications
• Court seeks ultimate reason for employment
  decision, even if Employer didnt articulate it.

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Connections between Employment Discrim and Social
Networking (SN)

• Employers increasingly check Facebook, MySpace,
  and other sites.
• Survey found 35 use Google, 23 use SN
• Financial services and healthcare providers use
  SN
• Many students presume only their friends/peers
  access these sites.
• Students may reveal personal information of which
  employer would otherwise be unaware.

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Discriminatory Uses

• Checking up only on presumed minority applicants.
• Deciding whom to interview based on revealed
  membership in protected class.
• Using sites to answer questions it would not pose
  in an interview, e.g., marital status,
  disability, religion . . .

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Legitimate Uses

• Making decisions based on applicants poor
  judgment or character revealed on line.
• Making decision based on applicants displayed
  use of drugs/alcohol or illegal conduct.
• BUT is information accurate? If not, does it
  matter?
• Searching for good candidates.
• May check up on current employees, not just
  applicants.

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• If applicant can raise prima facie case, can
  employer defend using on line information as
  legit, nondiscrim reason for refusing to hire?
• Claim may be difficult for applicant to win.

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How to advise students

• Raise awareness of employers use of sites.
• Caution against creating negative impression,
  esp. through drinking, drugs, sexual conduct
  portrayed on site.
• Should students reveal membership in protected
  class?
• Protection attaches when employer becomes aware.
• Employer may lose defense of ignorance.
• Student may lose chance to demonstrate leadership.

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• How private is this information, really?
• Check and maintain sites frequently.
• Be proactive create positive impression. Use
  professional networking sites like Linkedin.com.

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Americans with Disabilities Act (ADA) Definition
of Disability

• Disability
• (A) physical or mental impairment that
  substantially limits one or more major life
  activities of the individual
• (B) record of such impairment
• (C) regarded as having such impairment

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Is applicants learning difference or ADHD a
disability under ADA?

• Work through each step of definition
• 1. Impairment Any physiological disorder
  or condition, cosmetic disfigurement, or
  anatomical loss affecting one or more of several
  body systems, or any mental or psychological
  disorder.
• Note that impairment alone is NOT equivalent
  to disability its just the first step.

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• Major Life Activity Basic activities that
  average person can perform with little or no
  difficulty, e.g., caring for oneself, manual
  tasks, walking, seeing, hearing, speaking,
  breathing, sitting, standing, lifting, reaching,
  learning, and working.

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• 3. Substantial Limitation NOT limited to utter
  inability significantly restricted in the
  duration, manner or condition under which
  individual can perform MLA compared to average
  member of the public.

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What if impairment is corrected?

• -- Must assess in corrected state. If
  impairment is corrected, there is no substantial
  limitation for that individual.
• -- Individualized inquiry is required consider
  positive/negative impact of corrective measures
  on the individual.
• -- Correction does NOT automatically mean person
  is not disabled may have substantial limitation
  even with correction (e.g., wheelchair).

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Working as MLA

• Substantial limitation requires significant
  restriction in ability to perform in various
  classes of jobs as compared to average person of
  comparable training, skills, abilities.
• Factors Geographic access area number/types of
  jobs using similar training, skill, ability.
• Supreme Court decisions have not directly
  addressed whether working is an MLA under ADA.

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After establishing disability. . .

• Must prove that he or she is qualified for the
  position.
• Qualified Can perform essential functions of
  position with or without reasonable
  accommodation.

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How are essential functions determined?

• Consider employers judgment and written job
  description, if any.
• Must define/distinguish essential functions as
  compared with marginal/nonessential functions.
• Its a case-by-case factual determination based
  on all relevant evidence.

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Reasonable Accommodation

• Failure to provide reasonable accommodation to
  the known physical/mental limitation of an
  otherwise qualified individual with a disability
  is discrimination under ADA unless employer can
  demonstrate undue hardship.

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What constitutes reasonable accommodation?

• Accommodation Change that will enable disabled
  person to perform essential functions AND to
  enjoy equal access to benefits/privileges of
  employment, as well as equal opportunity in
  application process.
• Reasonable Less than maximum effort cost not
  disproportionate to benefit to employee.
• May include modifying facilities, job
  restructuring, reassignment, scheduling,
  equipment/devices, readers/interpreters, etc.

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• Undue hardship Costs figure in here, too,
  though its less frequently litigated.
• Consider cost of accommodation in relation to
  benefits to the employee and in relation to
  employers financial condition.

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Sum Up

• Employer must accommodate limitations resulting
  from known disability.
• Employee has duty to inform employer that acc. is
  needed but employer may inquire if disability is
  known and employee is having difficulty
  performing.
• ADA envisions interactive process dialogue
  between employer/employee. Employee who fails to
  participate may lose protection.
• Employee must prove existence of reasonable acc.
  employer must prove undue hardship.

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Employer must have KNOWLEDGE

• Should applicant/employee reveal ADD?
• ADA clearly puts the burden on the employee to
  inform the employer of any disability and the
  need for accommodation.
• Employee loses case when employer can prove it
  lacked knowledge. Employees poor performance is
  not sufficient to prove knowledge.

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Pre-Employment Inquiries

• Cant ask whether applicant has a disability or
  inquire about nature/severity of an apparent
  disability.
• Can ask if applicant can do the job.
• If employee has apparent or known disability,
  can ask how applicant would perform job.
• AFTER offer, employer may ask questions that may
  reveal a disability IF ALL employees are asked
  the same questions.

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Examples involving LD and ADHD

• To be protected by ADA, individual must meet
  disability definition above.
• Impairment?
• Major Life Activity?
• Learning
• Working
• Substantial Limitation?
• Individual inquiry
• Corrections taken into account

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Substantial Limitation?

• Must prove comparison to average person.
• Working
• Must be significantly restricted in ability to
  perform a broad range of jobs, not just a
  specific desired job.
• Learning
• Must link impairment to particular work-related
  problems and inability to learn in the workplace.

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Hard to prove substantial limitation in working

• ADA does not entitle individual to any specific,
  desired position.
• Difficult to prove that individual is
  substantially limited in a broad range of jobs.
• MLA of working may be judicially disfavored.

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Hard to prove substantial limitation in learning

• Agricultural technician with learning disability
  was unable to prove substantial limitation in
  learning
• B.S. degree in biology, some grad work in ed.
• Mastered job responsibilities quickly
• Trained assistants
• Performance rated satisfactory

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• Middle school teacher with ADHD was unable to
  prove substantial limitation in learning
• College degree
• Masters degree
• Some additional course work

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Reasonable Accommodations

• Not reasonable to eliminate essential functions,
  such as
• Eliminate time frames in greenhouse
• Allow middle school teacher to reduce anxiety
  by allowing students to play videogames
• Not required to accommodate if it would cause
  undue hardship
• Give neurologist part-time position with no call
  without reducing pay
• Provide employee with polite supervisor

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How to Advise Students

• Probably best not to reveal or discuss disability
  until after hired/working.
• Choose job carefully to maximize chance of
  success consider essential functions.
• If student has completed college, may be
  difficult to show substantial limitation arising
  from LD/ADHD.

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• At work, try to use same strategies that were
  successful in school.
• Burden is on employee to raise need for specific
  accommodation.
• Initiate interactive process with employer if
  performance issues arise. Do not expect the same
  degree of accommodation at work as was provided
  in school.

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Drug Alcohol Use under the ADA

• An employee/applicant who is currently engaged in
  illegal use of drugs is NOT a qualified
  individual with a disability.
• What about current use of alcohol?
• Is there a distinction between addiction and
  casual/occasional use? One who is rehabbed or
  regarded as a user may be protected by ADA
  provided no longer using drugs.

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Current User

• How is current userstatus determined?
• Sufficiently recent to justify employers
  reasonable belief that drug abuse remained an
  ongoing problem.
• May be use in the weeks, months preceding adverse
  employment action not limited to days prior to
  action.