Chapter 5: Discrimination Based on Disability

I.   Overview

§5.1   The Americans with Disabilities Act of 1990 (ADA), 42 USC 12101 et seq., as amended by the ADA Amendments Act of 2008, Pub L No 110-325, 122 Stat 3553 (2008) (effective January 1, 2009), prohibits discrimination against a “qualified individual on the basis of disability” in all aspects of employment. 42 USC 12112(a). Similarly, Michigan’s Persons with Disabilities Civil Rights Act (PDCRA) (formerly the Michigan Handicappers’ Civil Rights Act), MCL 37.1101 et seq., provides that an employer may not discharge or otherwise discriminate against an individual because of a disability that is unrelated to the individual’s ability to perform the duties of a particular job or position. Both statutes require employers to make reasonable accommodations for disabled employees.

In general, because the PDCRA and the ADA contain similar and sometimes identical language, the same analysis is used. Brenneman v MedCentral Health Sys, 366 F3d 412, 418 (6th Cir 2004), cert denied, 543 US 1146 (2005). The PDCRA “substantially mirrors the ADA, and resolution of a plaintiff’s ADA claim will generally, though not always, resolve the plaintiff’s PDCRA claim.” Cotter v Ajilon Servs, Inc, 287 F3d 593, 598 (6th Cir 2002) (citing Monette v Electronic Data Sys Corp, 90 F3d 1173, 1178 (6th Cir 1996)).

II.   The Americans with Disabilities Act of 1990 (ADA)

A. The Purpose of the ADA

§5.2   As described by Congress, the purpose of the ADA is “to provide a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities.” 42 USC 12101(b)(1). The United States Supreme Court has observed that the primary purpose of the ADA is “to diminish or to eliminate the stereotypical thought processes … and the hostile reactions that far too often bar those with disabilities from participating fully in the Nation’s life, including the workplace.” US Airways, Inc v Barnett, 535 US 391, 401 (2002).

B. Who Must Comply with the ADA

§5.3   The ADA defines covered entity as “an employer, employment agency, labor organization, or joint labor-management committee.” 42 USC 12111(2).

A covered employer is one who employed 15 or more employees, including part-time employees, for each workday in each of 20 or more calendar weeks in the current or preceding calendar year. 42 USC 12111(5)(A). The term employer has the same meaning under both the ADA and Title VII of the Civil Rights Act of 1964 (Title VII). Appendix to 29 CFR Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 CFR app 1630.2(a)–(f).

The term employer does not include the United States, a corporation wholly owned by the government of the United States, an Indian tribe, or a bona fide private membership club (other than a labor organization) that is exempt from taxation under §501(c) of the Internal Revenue Code of 1986, IRC 501(c). 42 USC 12111(5)(B). Instead, the Rehabilitation Act of 1973, 29 USC 701 et seq., prohibits discrimination on the basis of disability for federal employees. The standards used under the Rehabilitation Act generally track those under the ADA.

States and state agencies are protected from employment-discrimination ADA suits by private individuals based on the sovereign immunity granted to them by the Eleventh Amendment. Board of Trs v Garrett, 531 US 356 (2001). However, private individuals may sue state officials in their official capacities for violations of Title I of the ADA as long as the plaintiffs do not seek money damages. Whitfield v Tennessee, 639 F3d 253, 257 (6th Cir 2011). Also, the Garrett decision prohibits Title I ADA suits only against state governments, not against cities or counties, because the Eleventh Amendment’s sovereign immunity protections do not apply to local governments. Lowe v Hamilton Cty Dep’t of Job & Family Servs, 610 F3d 321, 324–332 (6th Cir 2010).

Like Title VII (see §2.3), the ADA does not provide for individual liability against other employees, such as supervisors. Wathen v GE, 115 F3d 400 (6th Cir 1997); Roman-Oliveras v Puerto Rico Elec Power Auth, 655 F3d 43 (1st Cir 2011); Howard v DaimlerChrysler Corp, 290 F Supp 2d 784 (ED Mich 2003). The PDCRA, on the other hand, does provide for individual liability. See §5.38.

The ADA does not prohibit a religious organization from giving preference in employment to individuals of a particular religion, 42 USC 12113(d)(1), and also provides that a religious organization may require that all applicants and employees conform to its religious tenets, 42 USC 12113(d)(2). Further, in Hosanna-Tabor Evangelical Lutheran Church & Sch v EEOC, 565 US 171 (2012), the U.S. Supreme Court recognized a ministerial exception to liability under the ADA, grounded in the Religion Clauses of the First Amendment, precluding the application of employment discrimination legislation to disputes between a religious institution and its ministers. Although the ministerial exception is not limited to the head of a religious congregation, the Hosanna-Tabor Court declined to adopt a rigid formula for deciding when an employee qualifies as a minister and, consequently, the exception applies.

The ministerial exception cannot be waived because it is based on the Religion Clauses of the U.S. Constitution. Id.

The ministerial exception is also an available defense to state law claims, including those brought under the PDCRA. Conlon v Intervarsity Christian Fellowship/USA, 777 F3d 829 (6th Cir 2015).

C. Who Is Protected by the ADA

1. In General

§5.4   Title I of the ADA protects individuals in the context of an employment relationship, including employees as well as applicants. 42 USC 12112(a).

The ADA protects those persons who meet the statutory definition of qualified individual with a disability. Disability is defined for an individual as “(A) a physical or mental impairment that substantially limits one or more major life activities of [the] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 USC 12102(1). See §5.9.

The ADA also prohibits discrimination against “any individual because such individual has opposed any act or practice made unlawful [by the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [under the ADA].” 42 USC 12203(a). See §5.28.

A nondisabled individual may not bring a reverse discrimination claim under the ADA (i.e., assert that the individual was discriminated against because of the lack of disability). 42 USC 12201(g).

2. Association with a Disabled Person

§5.5   The ADA also protects a qualified individual, whether or not that person has a disability, from discrimination due to that person’s known association or relationship with a person with a disability. 42 USC 12112(b)(4). This protection is not limited to persons who have a familial relationship with an individual with a disability.

To state a claim for association discrimination, a plaintiff must show that (1) the person was qualified for the job, (2) the person was subjected to an adverse employment action, (3) the person was known by the employer to have a relative or associate with a disability, and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision. Stansberry v Air Wisconsin Airlines Corp, 651 F3d 482, 487 (6th Cir 2011) (denying association discrimination claim where record showed that plaintiff was not performing his job to employer’s satisfaction and did not show unfounded fears of distraction due to his wife’s illness).

Disability association claims generally fall under one of three theories: (1) expense, (2) disability by association, and (3) distraction. The expense theory covers situations in which an employee suffers an adverse employment action because of an association with a disabled individual covered under the employer’s health plan, which is costly to the employer. The theory of disability by association encompasses two related situations: either the employer fears that the employee may contract the disability of the person the employee is associated with (for example, the employee’s partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that the employee’s relatives have. Finally, the distraction theory is based on the employee’s being inattentive at work because of the disability of someone with whom the employee is associated. Id. (citing Larimer v IBM Corp, 370 F3d 698, 700 (7th Cir), cert denied, 543 US 984 (2004)); see also Trujillo v PacifiCorp, 524 F3d 1149 (10th Cir 2008) (plaintiffs established prima facie case of association discrimination because of their son’s health expenses); White v Carmeuse Lime & Stone, Inc, No 2:09-cv-265 (WD Mich May 31, 2011) (plaintiff was unable to show reasonable inference that he was terminated because of relative’s disability); EEOC’s Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (May 23, 2007).

D. Who Is Not Protected or Questionably Protected

1. Users of Illegal Drugs

§5.6   An individual who is “currently engaging” in the illegal use of drugs is not protected under the ADA and is not considered an individual with a disability. 42 USC 12114(a). “The term ‘currently engaging’ is not intended to be limited to the use of drugs on the day of, or within a matter of days or weeks before, the employment action in question. Rather, the provision is intended to apply to the illegal use of drugs that has occurred recently enough to indicate that the individual is actively engaged in such conduct.” 29 CFR app 1630.3(a)–(c); see also Shafer v Preston Mem’l Hosp Corp, 107 F3d 274, 280 (4th Cir 1997) (employee illegally using drugs in weeks and months before discharge is “current” illegal user of drugs for purposes of ADA and Rehabilitation Act).

A test given to determine the illegal use of drugs is not a medical examination under the ADA. 42 USC 12114(d)(1); see also Bates v Dura Auto Sys, Inc, 767 F3d 566 (6th Cir 2014) (remanded for trial to determine whether employer’s drug testing constituted medical examination or disability-related inquiry).

2. Recovering Drug Addicts

§5.7   Although the ADA does not protect a user of illegal drugs, it does protect an individual who

(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engaging in such use.

42 USC 12211(b); 12114(b).

It is important to distinguish that past drug addiction, not merely past drug use, is required to establish protection under the ADA. Buckley v Consolidated Edison Co, 127 F3d 270, 274 (1997) (holding plaintiff was required to prove “that he was actually addicted to drugs or alcohol in the past, and that this addiction substantially limited one or more of his major life activities”), vacated on other grounds, 155 F3d 150 (2d Cir 1998).

In Quigley v Austeel Lemont Co, 79 F Supp 2d 941 (ND Ill 2000), plaintiff filed an ADA lawsuit asserting that defendant discharged him because of his status as a recovering drug addict. The court recognized that the ADA does not protect an individual who is currently using illegal drugs. 42 USC 12114(a). However, the ADA creates a safe-harbor provision for individuals who have successfully completed or are participating in a supervised drug rehabilitation program and are no longer using illegal drugs. 42 USC 12114(b). The court concluded that Congress intended for this safe-harbor provision to apply to a long-term recovery program and long-term abstinence from drug use. However, given that plaintiff’s in-patient recovery program lasted only 10 days and that he was drug free for a period of only one month before termination, the court held that plaintiff’s treatment did not place him in the safe-harbor provision for current drug use.

There is no definitive length of time an individual must pass drug free to qualify for the safe-harbor provision. In Mauerhan v Wagner Corp, 649 F3d 1180 (10th Cir 2011), the court stated that the issue is not solely the number of days or weeks that have passed since an individual last illegally used drugs. Instead, under 42 USC 12114(a), an individual is currently engaging in the illegal use of drugs if the usage was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem. Although 30 days without using drugs may in some cases be sufficient for an employee to gain the protection of the ADA, the record in Mauerhan showed that it was not true in this case, where it was undisputed that at least 90 days of recovery was necessary to ensure significant improvement in his condition.

In Raytheon Co v Hernandez, 540 US 44 (2003), the U.S. Supreme Court granted certiorari on the question of whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The Ninth Circuit had held that an employer’s unwritten policy not to rehire employees who left the company for violating personal conduct rules violates the ADA to the extent it applied to employees who were lawfully forced to resign for illegal drug use but had since been rehabilitated. See Hernandez v Hughes Missile Sys Co, 298 F3d 1030 (9th Cir 2002). However, because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case to reach its holding, the U.S. Supreme Court vacated and remanded the decision without reaching the question on which it granted certiorari. The Court stated that if the court of appeals had correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, nondiscriminatory reason under the ADA, and the only remaining question would be whether plaintiff could show that the employer’s stated reason for rejecting plaintiff was a pretext for discrimination. In Lopez v Pacific Maritime Ass’n, 657 F3d 762 (9th Cir 2011), the Ninth Circuit held that a “one-strike rule” that eliminates from consideration any applicant who tests positive for drug or alcohol use during the preemployment screening process does not violate the ADA.

3. Alcoholics Under the Influence

§5.8   Unlike current users of illegal drugs, an alcoholic is not automatically excluded from protection under the ADA because of current use of alcohol. Mararri v WCI Steel, 130 F3d 1180, 1185 (6th Cir 1997); Moorer v Baptist Mem’l Health Care Sys, 398 F3d 469 (6th Cir 2005) (plaintiff presented substantial evidence that manager linked her perception of plaintiff’s alcoholism to asserted performance deficiencies, and there was a causal connection between plaintiff’s disability and termination). While alcoholism qualifies as an impairment, courts generally do not recognize alcoholism as a per se disability under the ADA. Rather, the plaintiff must prove that alcoholism meets the definition of disability (see §5.9) in one of the three ways delineated in the statute. See Bailey v Georgia-Pacific Corp, 306 F3d 1162, 1167–1168 (1st Cir 2002).

The ADA allows an employer to promulgate work rules prohibiting employees from consuming or being under the influence of alcohol on the job. 42 USC 12114(c)(1)–(2). An employer also may discipline, discharge, or deny employment to any individual, alcoholic or nonalcoholic, if use of alcohol adversely affects job performance. 42 USC 12114(c)(4); see also Blazek v City of Lakewood, No 13-4324 (6th Cir Aug 13, 2014) (unpublished) (denying ADA claim where plaintiff violated employer’s policies against possessing and consuming alcohol in workplace and no accommodation was requested); Mararri, 130 F3d at 1185 (employee terminated for violating terms of last-chance agreement, not because of his alcoholic condition); Maddox v University of Tennessee, 62 F3d 843 (6th Cir 1995) (alcoholic failed to state disability discrimination claim where he was disciplined for being arrested for driving under influence of alcohol and public intoxication).