It's The Law

March 2005
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EEOC OFFERS NEW GUIDANCE TO EMPLOYERS REGARDING PEOPLE WITH INTELLECTUAL DISABILITIES

The Americans with Disabilities Act (ADA) prohibits discrimination against a qualified applicant or employee because of a disability in any aspect of employment. If your company has 15 or more employees, then your company is covered by the ADA.

The Equal Employment Opportunity Commission (AEEOC@), the federal agency charged with enforcement of the ADA and other federal laws regarding employment discrimination, recently issued guidelines to help employers accommodate individuals with intellectual disabilities. These guidelines will help employers know: when a condition qualifies as an intellectual disability; when an employer may ask an applicant, employee or third party questions about an intellectual disability; what types of accommodations may be required; and how to address conduct issues.

What Qualifies as an Intellectual Disability and What is Covered by the ADA

It is estimated that 2.5 million people in the United States have an intellectual disability. In order to be considered to have an intellectual disability an individual must: (1) have a functioning level IQ that is below 70-75; (2) have significant limitations in Aadaptive skill areas@ as expressed in conceptual, social and that the disability originated before the individual was 18. AAdaptive skill areas@ are the basic skills required for everyday life which include communication, self-care, home living, social skills, leisure, health and safety, self-direction, functional academics (reading, writing, basic math), and work.

But not all people with an intellectual disability will be covered by the ADA. A person can meetthe ADA's definition of disability in one of four ways. First, a person is considered disabled if the intellectual impairment substantially limits one or more of theindividual's major life activities. A major life activity is an activity that an unimpaired person can perform with little or no difficulty. Traditional examples of major life activities are walking, seeing, hearing, thinking, speaking, learning, concentrating, performing manual tasks, caring for oneself, and working. However, a person may have two or more impairments that, by themselves, are not substantially limiting, but when taken together are substantially limiting. The EEOC provides an example of an employee with a mild intellectual disability and a mild form of ADHD. This employee is considered a person with a disability.

The second way that an intellectual disability will qualify under the ADA is if the employee has suffered from an impairment in the past that did substantially limit a major life activity. The third way that the ADA may be invoked is when a person who does not have an actual disability is treated by their employer as if they do have one. The fourth way is if an employee has a family member with a disability and the employee is then discriminated against on the basis of his or her association with the disabled person. An example of this type of coverage is if an employee who has an impaired child was denied a promotion because his or her employer believed thatthe child's disability would cause the employee to be absent from work and thereby affect the employee's productivity.

When an Employer Can Obtain and Use Medical Information

The ADA limitsan employer's ability to ask questions related to disabilities. Different rules apply at each stage in the employment of an individual with an intellectual impairment. In the first stage, pre-offer, a potential employer can only ask questions regarding anapplicant's ability to perform job-related tasks, provided that those questions are not phrased in terms of a disability. For example an employer may not ask: whether or to what extent a person has an intellectual disability; whether the applicant has ever filed for workers' compensation; whether the applicant takes medication; whether the applicant has been hospitalized in an institution; or whether the applicant is receiving psychiatric treatment. However an employer may ask: whether the applicant can lift a 45 pound load; whether the applicant can put files in alphabetical order; and whether the applicant can place items in numerical order.

If an applicant voluntarily tells an employer that he or she has an intellectual disability or if the disability is obvious, then an employer may ask questions regarding the need for a reasonable accommodation and/or what kind of accommodation may be needed. At this stage, an employer is prohibited from asking a third party any questions that it cannot ask the applicant.

After an offer is made to the applicant, then an employer may ask questions regarding theapplicant's health or require that a medical exam be taken. But the questions or exams must be given to all applicants. After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if it is medically related to the previously obtained medical information. An employer must keep all medical information confidential.

After the employee is hired, the ADA strictly limits the circumstances under which an employer may ask questions about an employee's medical condition or require the employee to undergo a medical examination. Generally, to ask an employee for medical information, an employer must have a reason to believe that there is a medical explanation for changes in the employee's job performance, or must believe that the employee's medical condition may pose a direct threat to safety.

Accommodating Persons with Intellectual Disabilities

In order to comply with the ADA, employers must provide reasonable accommodations to the known mental and physical limitations of persons with disabilities. An accommodation is any modification or adjustment to a job or work environment that will permit a qualified applicant or employee with a disability to do the job, as well as enjoy equal benefits and privileges of employment. Some of the accommodations for persons with Intellectual disabilities are job restructuring (e.g., exchanging non‑essential functions between employees), additional training for the job, a job coach, help in understanding job evaluations or disciplinary proceedings and work station placement. Of course the accommodations will vary depending upon the needs of the person with the disability.

The rules of the ADA in regards to the accommodation of persons with Intellectual disabilities is no different from any other person with a disability.

Conduct of Employees with Intellectual Disabilities

As with other employees, an employer may have to discipline an employee with an intellectual disability. As long as the employer imposes the same discipline upon those without a disability then the employer will not run afoul of the ADA.

WARNING: CLOSING UP SHOP MAY BE COSTLY

Illinois employers now have another obligation to consider when conducting layoffs and plant closings. Signed into law by Governor Rod Blagojevich, and effective January 1, 2005, the Illinois Worker Adjustment and Retraining Notification (AWARN@) Act requires employers to give 60 days notice to employees and their unions, and to certain state and local government officials, of a plant closing or mass layoff.

Although similar to the companion federal WARN Act in many respects, the Illinois WARN Act applies to businesses with as few as 75 full‑time employees. The federal WARN Act applies to businesses employing 100 or more full‑time employees. Both the federal WARN Act and Illinois WARN Act apply to plant closings where there is an employment loss of 50 or more full‑time employees. Under the federal WARN Act, a mass layoff of 50 or more full‑time employees will trigger the notice requirement if the affected employees constitute a third or more of the full‑time employees at the site. In contrast, under the Illinois WARN Act, notice is required when 25 or more full‑time employees are laid‑off, if they constitute a third or more of the full‑time employees. Further, under the federal WARN Act, a mass layoff of 500 or more full‑time employees at a site will require 60‑days notice regardless of the size of the workforce at the site. Under the Illinois WARN Act, a mass layoff of 250 or more full‑time employees at a site triggers notice requirements regardless of the size of the workforce.

Another important difference in the Illinois WARN Act is in the enforcement of the Act. Under the federal WARN Act, neither the Federal nor the State governments may initiate actions for alleged non‑compliance. Enforcement is limited to Employees and local government officials who may initiate action in federal court. The Illinois WARN Act provides that the Director of the Illinois Department of Labor is to make rules with Aprovisions that allow the parties access to administrative hearings for any actions of the Department under this Act.@ Furthermore, in Aany investigation or proceeding under this Act,@ the Director has authority to Aexamine the books and records of an employer@ in order Ato determine whether a violation of this Act has occurred.@ All information obtained from an employer will remain confidential, and theemployer's records may only be used in a proceeding to enforce the Act.

With the passage of the Illinois WARN Act, more Illinois employers are required to give 60‑days notice of a plant closing or mass layoff than under the federal WARN Act. Employer violations for failure to give notice include recovery of back wages plus the value of the cost of benefits, and civil penalties of not more than $500 for each day of violations. Exceptions to the notice requirements are permitted for unforeseen circumstances such as, for example, a strike or lockout, acts of terrorism or war, or physical calamities at the site.

If the exceptions to the notice requirement do not apply, the employer should provide written notice to theIllinois'Dislocated Worker Division. The written notice should contain the following information: 1) The name and address of the employment site(s) where the plant closing or mass layoff will occur; 2) whether the planned action is expected to be permanent or temporary and if the entire plant is to be closed; 3) the expected date of the first separation, and the anticipated schedule for making separations; 4) the job titles of positions to be affected, and the number of affected employees in each job classification (for multiple sites, list per site); 5) a statement as to the existence of any applicable bumping rights; 6) the name of each union representing affected employees, and the name and address of the chief elected officer of each union, if none please state; and 7) the name and telephone number of a company official to contact for further information.

In sum, employers contemplating facility closings or reductions in force as a means of coping with current business turndowns or with the financial strains placed on many union employers by the various trust funds must be aware of their legal obligations under the federal WARN Act as well as the Illinois WARN Act.

BORROWED SERVANTS, THE EEOC AND RETALIATION

What happens when an employer loans out its employees and that employee gets harassed by the company he was loaned to? The Seventh Circuit Court of Appeals recently held that an employer may not retaliate for the filing of a complaint with the EEOC, even if the complaint was lodged against another company.

In the case Michael J. Flowers v. Columbia College Chicago, Flowers, a guidance counselor, was hired by Columbia College to work in its Gear Up program which provides guidance counselors to the Chicago Public School System (ACPS@). Columbia assigned Mr. Flowers to be an academic advisor to students at Dyett Academic Center, a high school within the Chicago Public Schools.

According to Mr. Flowers problems arose at Dyett because he is a Rastafarian and as part of his religious practices, he wears his hair in dreadlocks, which are covered by a hat called a kofi. Mr. Flowers claimed that he encountered difficulties at Dyett because of his hair and his kofi. When the principal of the school forbade Mr. Flowers from wearing his kofi, as required by his religion, he filed a charge of religious discrimination with the EEOC against the CPS. His complaint alleged that when Columbia became aware of his dispute with the CPS, Columbia began to harass him through undeserved negative evaluations of his work that ultimately ended with the termination of his employment with Columbia in July 2003. Consequently, Mr. Flowers filed suit against the CPS, which was dismissed since the CPS was not Mr. Flowers' employer.

Five days after his case against CPS was dismissed, Mr. Flowers filed a charge with the EEOC against Columbia College for terminating his employment. This EEOC Charge became the basis of his suit in Federal Court. The District Court dismissed his case stating that AIn order for a Title VII retaliation claim to stand against an employer, the actions challenged within the statutorily protected activity must be those of the employer or otherwise attributable to the employer by virtue of its control of the actor in question. Columbia and the CPS are separate and independent entities and allegations of religious or other discrimination lodged against one are not imputable to the other. The law does not impose an affirmative duty on an employer to intervene and participate in a dispute between one of its alleged employees and an independent third party. Nor does the complaint make any such assertion. In this circumstance, Columbia could not have retaliated, as a matter of law, for conduct it neither engaged in, inspired, or otherwise encouraged.@

Flowers disagreed and appealed theDistrict Court's ruling and the Seventh Circuit reversed and remanded the case back to the trial court. The Court of Appeals disagreed with the DistrictCourt's reasoning, stating that there is no requirement in the statute that the charge retaliated against must be madeAagainst his employer.@ The Court illustrated its point by stating that, if the District Court were correct, an employer would be able to negate any liability under Title VII by simply creating a holding company to hire its employees. To prevent that form of abuse, the Court of Appeals held that Ano employer may retaliate against someone who makes or supports a charge of discrimination against any employer.@ The Court then questioned, but did not answer, whether the CPS could have been considered his employer under the borrowed-servant doctrine.

What does this mean for our clients? First, never retaliate against an employee who makes a claim to the EEOC, even if you are not the target of the complaint. Second, if you use temporary workers or other types of Aborrowed servants@ they may be able to file claims with the EEOC against you, even if you are not their employer.

NEW STATE REQUIREMENT FOR EMPLOYMENT APPLICATIONS

The Juvenile Court Act of 1987, as amended by the Illinois General Assembly, now prevents employers from asking applicants if they had a juvenile arrest record. The amended law now places a duty on employers to have their applications contain specific language stating that the applicant is not obligated to disclose expunged juvenile records of arrest or conviction.

ALL CDB PROJECTS MUST FOLLOW THE ASHRAE 90.1 STANDARD

The Capital Development Board now requires all projects that receive any state funding to comply with the new CDB Energy Code. This mandate includes all new construction, repairs or renovations to existing buildings. The CDB Energy Code requires compliance with the 2001 edition of the American Society of Heating, Refrigerating and Air‑ConditioningEngineers'Standard 90.1: Energy Standards for Buildings, Except Low‑Rise Residential Buildings, as well as all addenda and modifications adopted by CDB.

The CDB is responsible for enforcing compliance with the energy code. Architects and engineers working on state‑funded projects are required to submit compliance documentation that the ASHRAE 90.1 standards are being met to CDB at both the 50 percent and 100 percent design submittals. The CDB Energy Code can be found in the Illinois Administrative Code, Title 71, Part 600. The Administrative Code can be accessed on‑line at www.illinois.gov. To find out more information about the ASHRAE 90.1 Standard, visit the American Society of Heating, Refrigerating and Air‑ConditioningEngineers'webpage at http://www.ashrae.org/