Saturday, February 10, 2007

Ninth Circuit Explains “Regarded As” Claims under ADA and Rehab. Act

An employer’s acknowledgement that an employee has an “impairment” is not enough to support a claim that the employee is “regarded as” having a disability.
Walton v. U.S. Marshall Service involves a former security guard at a federal courthouse. The essential functions of the job include the ability to “localize” sound. Walton had only one functioning ear, which affected her ability to localize sound. After a required medical exam, the security services contractor terminated Walton’s employment because she could not perform essential functions of her job. She claimed the contractor “regarded” her as having a disability.
The Ninth Circuit held:

to state a “regarded as” claim a plaintiff must establish that the employer
believes that the plaintiff has some impairment, and provide evidence that the
employer subjectively believes that the plaintiff is substantially limited in a
major life activity. If the plaintiff does not have direct evidence of the
employer’s subjective belief that the plaintiff is substantially limited in a
major life activity, the plaintiff must further provide evidence that the
impairment imputed to the plaintiff is, objectively, a substantially limiting
impairment.

Applying this rule, the Court of Appeals decided that the employer’s actions demonstrated only that the employer regarded the employee as having an “impairment,” but there was no evidence the employer considered the impairment to be “substantially limiting” in one or more major life activities.

Employers often ask whether exploring the possibility of accommodation, asking an employee to have a fitness for duty examination, or otherwise acknowledging medical impairments will create “regarded as” liability. This decision makes it harder for plaintiffs to make that argument under the ADA and federal Rehabilitation Act. 

AB 1825 Harassment Training Regulations Disapproved

The California Fair Employment and Housing Commission’s regulations implementing AB 1825 (mandatory sexual harassment training) failed to gain approval from California’s Office of Administrative Law. The FEHC made the announcement here.

The OAL’s chief concern was that the regulations were not sufficiently “clear” in certain respects, particularly regarding who is qualified to prepare and conduct anti-harassment training under the statute. There were also some more technical flaws.

The FEHC plans to modify the regulations and publish them for a brief public comment period before re-submitting them to the OAL. The FEHC’s modifications may have a significant effect on existing programs, depending on whether the new standards “raise the bar” on who is qualified to prepare or conduct AB 1825 training.

Once the regulations are re-issued, employers should reevaluate whether their trainers and training programs meet the new standards.