Disability Law: Reasonable Accommodation Requests and the Interactive Process in West Virginia, Framework
I was recently invited to deliver a presentation to a group of lawyers on “Reasonable Accommodation Requests and the Interactive Process in West Virginia.” In connection with my presentation, I prepared an outline detailing the statutory and regulatory framework which form the anti-discrimination laws governing covered workplaces in West Virginia.
My practice in this area focuses on (1) the representation of persons who have been the victims of workplace discrimination and (2) service as as a neutral mediator to assist parties in resolving workplace discrimination disputes. I hope my readers will find my series of posts on these issues to be timely and informative.
I. STATUTORY FRAMEWORK AND REGULATORY AGENCIES
A. Federal Law – The Americans with Disabilities Act (“ADA”)
1. The ADA, 42 U.S.C. §§ 12101, et seq., was passed by Congress in 1990 with an express purpose “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 1201(b)(1).
2. Title I of the ADA applies to employers with 15 or more employees.
3. Discrimination by an employer under Title I of the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee” unless the employer “can demonstrate that “the accommodation would impose an undue hardship” on the operation of the employer’s business. 42 U.S.C. § 12112(b)(5)(A). See also 42 U.S.C. §§ 2000e et seq. (enforcement provisions of Title VII of the Civil Rights Act of 1964 and incorporated into the ADA, which are governed by 42 U.S.C. § 1981a; see 42 U.S.C. § 12117(a)).
4. The ADA, 42 U.S.C. § 12102(1), as amended, lays out a three-prong definition of “disability” to include:
a. a physical or mental impairment that substantially limits one ore more major life activities;
b. a record of such impairment;
c. being regarded as having such impairment.
5. The Equal Employment Opportunity Commission (“EEOC”) is the federal agency charged with enforcing Title I of the ADA and with issuing regulations relating to such enforcement.
B. Federal Law – The ADA Amendments Act (“ADAA”)
1. The ADAA, S. 3406, Pub.L. No. 110-325 (2008), as enacted by Congress, was signed by then President Bush on September 25, 2008, and became effective on January 1, 2009.
2. As explained by the EEOC in its “Notice Concerning the Americans With Disabilities Act (ADA) Amendments Act of 2008,” the ADAA “emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.” See 42 U.S.C. § 12102(4)(A)-(E), as amended.
3. More specifically, the ADAA rejects the holdings by the United States Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (held that plaintiffs were not disabled under the ADA because corrective mitigating measures must be taken into account when determining if someone is impaired) and in Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (held that plaintiff was not substantially limited under the ADA because her limitations did not affect her ability to perform most personal and household tasks, but only limited her ability to perform certain manual tasks relating to a particular job).
a. Sutton (“Mitigating Measures”): The ADAA overturns the holding in Sutton that the determination whether an impairment substantially limits a major life activity must be made with reference to mitigating measures and now provides that mitigating measures other than “ordinary eyeglasses or contact lenses” are not to be considered in assessing whether someone has a disability (e.g., the ADAA directs courts to evaluate conditions “without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies or equipment, prosthetics, assistive technology, reasonable accommodations or auxiliary aids, or behavioral or adaptive neurological modifications” – so that episodic impairments will be protected)
b. Sutton (“Regarded As”): The ADAA rejected the Supreme Court’s restrictive reasoning in Sutton concerning the “regarded as” prong of the definition of disability and instead now mandates a broad view and, according to the EEOC, “changes the definition of ‘regarded as’ so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is ‘regarded as’ disabled if he or she is subject to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major activity” (excluded are impairments that are transitory and minor – with “transitory” defined as “an actual or expected duration of six months or less);
c. Toyota Manufacturing (“Substantially Limits” and “Major Life Activities”): The ADAA rejects the standards adopted by the Supreme Court in Toyota Manufacturing that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled”; and that to be substantially limited in performing a major life activity under the ADA an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”
4. ADAA (Requires EEOC to Revise Regulations Defining “Substantially Limits”)
5. ADAA (Expanded Definition of “Major Life Activities”)
a. The ADAA contains a broad, non-exhaustive list of conditions that will be considered major life activities by stating that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”
b. The ADAA adds “major bodily function” as a new class of “major life activities” by providing that major life activities “also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
6. ADAA (Reasonable Accommodation Is Not Required for “Regarded As” Disabilities)
a. In rejecting holdings from the Third, Tenth and Eleventh Circuit Courts, the ADAA makes it clear that an employee “regarded as” having a disability is not entitled to a “reasonable accommodation” from the employer
C. West Virginia Law – West Virginia Human Rights Act (“WVHRA”)
1. The WVHRA provides that it shall be an unlawful discriminatory practice “[f]or any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the employee is able and competent to perform the services required even if such individual is blind or disabled . . . .” WVHRA, W. Va. Code § 5-11-9(1).
2. The WVHRA applies to employers with 12 or more employees, including the state and political subdivisions
3. In order to be protected by the WVHRA, a person must prove that he or she is a person with a “disability,” which is defined by the act as follows: (m) The term “disability” means:
(1) A mental or physical impairment which substantially limits one or more of such person’s major life activities. The term “major life activities” includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;
(2) A record of such impairment; or
(3) Being regarded as having such an impairment.
4. The West Virginia Human Rights Commission is the state agency charged with issuing rules intended to interpret and implement the provisions of the WVHRA and the Commission has issued “Rules Regarding Discrimination Against Persons With Disabilities.” See W.Va. C.S.R. § 77-1-1, et seq., filed on May 19, 1994 (whether this Legislative Rule will be amended to reflect West Virginia case law and the changes to the ADA as amended by the ADAA remains to be seen).
5. Importantly, the rule issued by the West Virginia Human Rights Commission, constitutes a “legislative rule” as defined by the State Administrative Procedures Act, W. Va. Code § 29A-1-2(d), and as such “has the force and effect of law.” Syl. Pt. 5, Smith v. The West Virginia Human Rights Commission, 216 W. Va. 2, 602 S.E.2d 445 (2004).
6. Skaggs : The leading case from the West Virginia Supreme Court of Appeals concerning an employer’s duty to provide a reasonable accommodation is Skaggs v. Elk Run coal Company, Inc., 198 W. Va. 51, 479 S.E.2d 561 (1996). In Skaggs, the West Virginia Court acknowledged that the WVHRA does not have an explicit provision obligating employers to provide a reasonable accommodation for disabled individuals, but found that the West Virginia Human Rights Commission and the Court “have inferred that our Human Rights Act imposes this duty of reasonable accommodation.” Skaggs, 479 S.E.2d at 574, citing W. Va. C.S.R. § 77-1- 4.4 (1994) and Morris Mem. Convalescent Nursing Home, Inc. v. West Va. Human Rights Comm’n, 189 W. Va 314, 431 S.E.2d 353 (1993).
It is important to note that the EEOC is in the process of amending its regulations and interpretative guidelines as instructed by Congress.
My next post in this area will provide more details about (1) the types of Reasonable Accommodations to be considered under the law and (2) the Interactive Process in which the employee and employer should engage when a Reasonable Accommodation has been requested.
As always, to hire me as a mediator, or just to learn more about my mediation or other practice areas, click here “Mediating with Keith Jones.”