Daily Labor Report Leading The News March 19, 1996 DISABILITIES: SUPREME COURT TURNS DOWN APPEAL OF BUS

DRIVER DIAGNOSED WITH DIABETES The U.S. Supreme Court has refused to hear an appeal by a bus driver in El Paso, Texas, who was removed from his job in 1992 following a diagnosis of diabetes. In failing to grant review, the justices left intact a July 1995 holding of the U.S. Court of Appeals for the Fifth Circuit ( Daugherty v. El Paso, US SupCt, No. 95-1083, 3/18/96 ). The Fifth Circuit held that the city government was not required to petitio the Department of Transportation for a waiver of rules specifically prohibiting insulin-dependent diabetics from driving buses. The court also found that the city was under no obligation to reassign the driver to another job. According to the appeals court, the Americans with Disabilities Act does no require affirmative action in favor of individuals with disabilities such as priority in hiring or reassignment over those who are not disabled. A jury had awarded Carl Daugherty $5,000 in compensatory damages when the city placed him on leave without pay following the diagnosis of his condition. The U.S. District Court for the Western District of Texas added nearly $22,000 in back pay, and $12,000 in attorneys' fees. Daugherty had worked for the cit as a part-time bus driver for some nine months prior to his diagnosis. The Fifth Circuit held that insulin-dependent diabetics are by law not "otherwise qualified" to drive public buses because they pose a direct threat to the health and safety of others. In his petition for review, Daugherty said that the act requires a case-bycase consideration whether an insulin-dependent diabetic should be allowed to operate a bus. He cautioned that the legislation was enacted precisely to combat the sort of unfounded prejudice exhibited by the federal appeals court. The petition said that he has been treated as a leper, even though he has not been shown to be a direct threat to the health and safety of anyone. It submitted that he has been treated on the basis of a stereotype, with no consideration of medical evidence. The City of El Paso filed a six-page statement with the court asserting tha ADA does not require or condone affirmative action on behalf of the disabled: "[T]here is nothing in the ADA that even suggests that a disabled person shoul be given preference or priority over his nondisabled fellow workers. This notion is unthinkable, especially, one would imagine, to the disabled." The American Diabetes Foundation submitted a friend-of-the-court brief denouncing the appeals court's reasoning as myopic. It warned that the holding reflects stereotypes and unfounded fear, rather than an individualized

assessment whether Daugherty could adequately and safely perform the job. The brief described the appeal as a matter of exceptional national importance that directly affects the interests of 3.8 million Americans who take insulin to treat their diabetes. With rapid and accurate self-monitoring of glucose levels, the risk of incapacitation from hypoglycemia is negligible, according to the brief. COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04157 1996 DLR 53 d4 PAGE 2

After-Acquired Evidence Claim Denied Review In other action, the Supreme Court refused to examine the admissibility of after-acquired evidence to determine whether an employee with a disability is "otherwise qualified" under the Rehabilitation Act of 1973 ( Maricopa County v Junot, US SupCt, No. 95-1178 ). In October 1995, the U.S. Court of Appeals for the Ninth Circuit held that Maricopa County, Ariz., could not rely on evidence it obtained after it rejected a job applicant to support its view that she was not "otherwise qualified" for the job. The county rejected Patricia Junot when she applied in 1985 for a job as a detention officer, a position requiring the supervision and control of inmates housed in the local county jail. Junot had recently had a radical mastectomy. According to the county, Junot supplied false information about her medical condition, and prevented the county from reviewing pertinent medical and psychiatric records. Ultimately, the county obtained information on her medical condition as part of public records relating to her divorce in 1984. Following the denial of her job application, she sought spousal maintenance based on a claim that her cancer surgery prevented full use of her right arm. The county claimed that she concealed this information during a preemployment physical, and that had she disclosed this information, she would have been given a stress test to reveal the extent of the weakness in her arm. The county also argued that Junot concealed information that she had been admitted to a mental hospital for an attempted suicide some five months prior to her filing a job application. It also submitted that Junot kept secret a long history of debilitating migraine headaches, and that she misrepresented the length and type of work history on her application. The Ninth Circuit granted Junot a new trial in light of the Supreme Court's 1995 holding of McKennon v. Nashville Banner Publishing Co., dealing with after-acquired evidence. The appeals court reasoned that after-acquired evidence is barred until after the jury has determined, in a bifurcated proceeding, that the county was in fact liable for failing to hire Junot due to her disability.

In its petition for review, the county argued that the decision bars the use of after-acquired evidence to rebut Junot's claim that she was "otherwise qualified" for the job, or to rebut her credibility. The county warned that the appeals court holding grants the disabled and unqualified applicant an advantage over non-disabled unqualified applicants. It concluded that the practical impact of the holding is to discourage employers from hiring the disabled. The use of a bifurcated trial procedure defies both precedent and common sense, according to the petition. --By Bernard Mower 1996 DLR 53 d4 END OF DOCUMENT COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04158 ​ Daily Labor Report News March 18, 1996 DISABILITIES: PRISON GUARD WITH SEVERE VISION LOSS HELD NOT ENTITLED TO RELIEF UNDER ADA A prison guard who lost substantial vision is not entitled to relief under the Americans with Disabilities Act because she can no longer perform the guard's position even with reasonable accommodation and no other job she could perform was available, a federal court ruled ( Miller v. Illinois Department of Corrections, DC CI11, No. 95-3234, 3/1/96 ). Despite her sightlessness, the guard, Bobbi Miller, maintained that she could be a telephone switchboard operator at the prison or could manage the guards' armory. The U.S. District Court for the Central District of Illinois said that even though Miller might be able to perform switchboard or armory supervisor duties, in a prison environment an employee must be able to perform other guard functions as well. Because Miller concededly is unable to perform the other duties, she is not entitled to permanent assignment to switchboard or armory work, the court said. What Miller sought was not a guard's job with reasonable accommodation, but a new position as switchboard operator or armory attendant at the prison, Judge Richard Mills said. The ADA does not require the creation of permanent light-duty positions, he held, citing Rucker v. Philadelphia, DC EPa, No. 94-0364 (7/31/95). Delayed Result of Crash Miller began work at the Lincoln, Ill., correctional center in 1988. Two years earlier she had suffered severe head injuries in an automobile accident.

In 1993, she experienced a substantial loss of vision and was placed on indefinite medical leave. Her treating physician, a neurologist, traced the condition to the head trauma in the accident. Her vision was measured as 20/800 in both eyes, leaving her effectively blind. The neurologist also said the condition was likely to be permanent. Miller sought to return to Lincoln in some capacity. Management determined that there was no job for a severely visually handicapped person to do at the facility and removed her. She filed suit under ADA, but Mills granted summary judgment to the state after finding that Miller was no longer qualified for work at Lincoln with or without reasonable accommodation for her disabling condition. According to Mills, the job description for the correctional officer position makes clear that the ability to supervise and conduct surveillance of inmates--duties requiring good vision--is an essential function of the job. Another's Case Unhelpful Miller pointed to the case of another guard who was allowed to perform restricted duties though disabled. The judge said the example provided little COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04159 ​1996 DLR 52 d5 PAGE 2 support for Miller's position because the critical difference in the other guard's situation was that he was only temporarily disabled by injuries. Following his recovery, that employee resumed the full range of the duties of a guard. Responding to Miller's arguments that still other employees classified as guards had been assigned specific duties for long periods, Mills replied that the other employees could, if necessary, perform all the duties of the guard position. In an emergency, for example, these guards could drop their office duties and assist the rest of the force. Miller is no longer able to do that, Mills said. No Duty Of Job Creation If Miller had pointed to an already existing switchboard or armory position that was vacant, she might have been able to make a case for her transfer, the court said. But no such showing was made, it said. Although, as Miller pointed out, the prison employs other handicapped employees, some severely affected, their examples are irrelevant because they are not guards, Mills said. Finally, Miller said the guards' union at Lincoln was willing to waive collective bargaining agreement requirements so that she could work full-time

at switchboard or armory duties. The union's willingness is of no moment, the court replied, because ADA does not compel employers to create new jobs or to restructure existing ones so that their essential duties are eliminated. Mills said that while he is certainly sympathetic to Miller's plight," he had to rule against her because she was not qualified, even with reasonable accommodation, to retain her job as prison guard. 1996 DLR 52 d5 END OF DOCUMENT COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04160 ​ Daily Labor Report Leading The News March 18, 1996 DISABILITIES: DOCTOR'S CLAIM OF JOB REJECTION LINKED TO AGE, HEART CONDITION ALLOWED A federal magistrate in Boston has refused to dismiss disability and age bias claims filed by a cardiologist who had been deemed totally disabled under the terms of an insurance policy. Brigham & Women's Hospital argued that the doctor's receipt of benefits meant that he is totally disqualified from the practice of medicine, and therefore cannot be otherwise qualified" within the meaning of the Americans with Disabilities Act ( Pressman v. Brigham Medical Group, DC Mass, No. 92-10463, 3/12/96 ). The court also allowed Dr. David L. Pressman to proceed with a claim for invasion of privacy relating to allegations that a treating physician at the hospital gained access through a hospital computer to medical records showing that he had been admitted to the hospital in 1991 for angina and underwent a cardiac catheterization and angioplasty. The evidence would permit an inference that the hospital reviewed the plaintiff's private medical records, said Magistrate Judge Robert B. Collings. He found that the case must go to the jury: [W]hether the [hospital] failed to hire [Pressman] for unlawful discriminatory reasons or for legitimate, non-discriminatory reasons is a subject of dispute. At a minimum, Dr. Pressman has averred that he was told by Dr. [Harold] Solomon that his job offer was jeopardized by his medical history, and his age in light of his medical history. The defendants contend it was because Dr. Pressman exhibited poor judgment, was out of practice too long, behaved inappropriately and received lukewarm recommendations. The evidence raises questions of fact for a jury to decide." The hospital argued that when Pressman applied for employment, he consented to an investigation of his professional competence and signed an authorization form. Collings found that the form cannot reasonably be read as a consent for the hospital to search or review his medical records.

Pressman is a graduate of Harvard University and Columbia University School of Medicine. He engaged in a solo practice of internal medicine and cardiology in Arlington, Mass., for some 22 years. After an unsuccessful effort in 1987 to relocate his practice to Cape Cod, he suffered a myocardial infarction. He was transferred to Brigham and Women's Hospital and underwent surgery. Received Disability Payments Pressman applied for, and received, disability payments under his private disability policy with Provident Life and Accident Insurance Co. He continued to receive the payments through January 1993. In November 1990, Pressman replied to an advertisement in the New England Journal of Medicine announcing the opening of a new practice that would be set up by Brigham Medical Group in Chestnut Hill, Mass. Pressman was called for an COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04161

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interview by Dr. Solomon. The opening included a faculty appointment as a clinical instructor with Harvard Medical School. In February 1991, Dr. Solomon sent written confirmation of the job offer, and Pressman and his wife began a search for housing in the Boston area. But in June 1991, Solomon questioned Pressman about the 1987 events in Cape Cod, and the angioplasty procedure. According to Pressman, Solomon said it was poor judgment not to have disclosed his cardiac medical history, and expressed concern about his age and the three and one-half years break in medical practice. Solomon allegedly questioned whether Pressman would tire at mid-day and want to leave work early. Collings concluded that a jury could return a verdict that the rejection was tainted by considerations of age and disability. Pressman argued that under the terms of his private disability plan, he could continue to receive benefits so long as there was some medical restriction on his ability to practice his sub-speciality of cardiology. He also submitted insurance company correspondence that he is unable to perform the duties of a practicing cardiologist in solo private practice with emergency room duties, but can perform in a group clinical practice. Hospital Had Access To Medical Records As for the invasion of privacy claim relating to Dr. Solomon's alleged

review of medical records regarding his surgery, the court found that Solomon had access to the records by computer, and whether or not he reviewed the files is a question of fact, awaiting resolution at trial. The court also discounted the significance of a consent form signed by Pressman to permit an investigation of his professional competence. The form obliged the applicant to submit to a mental or physical examination or to provide evidence that any impairment does not interfere with his competence to practice medicine. It also authorizes any former employer, medical practice or association in the past 10 years to give an assessment of his professional skills, to release information concerning any disciplinary or malpractice proceedings, and any other information relevant to character and professional competence. Collings concluded that the release cannot reasonably be read as a consent to a review of medical records or as notice that a review of his records was within the scope of an investigation of his professional competence. --By Bernard Mower 1996 DLR 52 d3 END OF DOCUMENT COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04162 ​ Daily Labor Report Leading The News March 19, 1996 SUPREME COURT: JUSTICES WILL RULE ON METHOD OF COUNTING EMPLOYEES UNDER TITLE VII Granting separate requests by the federal government and an Illinois woman, the Supreme Court March 18 agreed to clarify the method of counting employees for the purpose of determining coverage of small employers under Title VII of the 1964 Civil Rights Act ( Walters v. Metropolitan-Educational Enterprises Inc., No. 95-259, and EEOC v. Metropolitan-Educational Enterprises Inc., No. 95-779, US SupCt, 3/18/96 ). Without comment, the justices agreed to review a July 1995 decision by the U.S. Court of Appeals for the Seventh Circuit, which took a narrower approach toward counting salaried employees than the one endorsed by the Equal Employment Opportunity Commission and adopted by the First and Fifth Circuits. "The method to be used to count employees affects the coverage determination for a very large number of small employers with part-time or nonsalaried employees on flexible work schedules," Solicitor General Drew Days argued on behalf of EEOC for the more expansive approach. Title VII Is Not Explicit

Title VII defines a covered employer as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. " But the statute does not explicitly prescribe a method of counting employees. Last July, in a case involving a sex discrimination suit brought by Darlene Walters against Metropolitan Educational Enterprises, the Seventh Circuit, relying on an earlier decision involving the Age Discrimination in Employment Act, held that the company was not large enough to be considered a covered employer under Title VII ( 142 DLR A-7, 7/25/95, 68 FEP Cases 499 ). The appeals court relied on a more restrictive method of counting employees salaried employees were to be counted toward the minimum number of employees, while hourly or part-time workers were counted only on the days when they were physically present at work or were on paid leave. That approach has been adopted by the Eighth Circuit and several district courts. EEOC, on the other hand, has endorsed a more expansive, "payroll" method, which says that those hourly or part-time workers should be counted if they are on the employer's payroll. The EEOC-favored method, which the commission sets out in its compliance manual, has been adopted by the First and Fifth Circuit and a number of district courts. 'Tens of Thousands' May Be Covered In arguing for review, the government said its more expansive interpretatio is "supported by the text, structure, and history of Title VII," is more consistent with "the broad remedial purposes" of the statute, and also "create COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04163

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a more workable method" for determining whether a small employer is covered by the law. The government cited Census Bureau statistics reporting that there are some 555,000 employers with 10 to 19 employees, who employed a total of 7.4 million employees in 1991. "The data suggest that there are tens of thousands of employers who are within the range of the jurisdictional minimum," the government said, "and tha a significant number of employees of such employers are likely to work parttime or flexible work schedules. The court of appeals' approach to the coverag issue would require a cumbersome and time consuming examination of attendance and leave schedules for each working day at each employer whose coverage is uncertain. That approach unnecessarily complicates the coverage determination. . . In contrast, the relative simplicity of the EEOC's

payroll method conserves administrative resources and clarifies for the EEOC and a significant number of small employers, employees, and employment applicants whether the federal nondiscrimination laws extend to them." In opposing review, the company, which sells and finances encyclopedias and other educational materials, characterized the case as an anomaly, presenting an issue which has rarely been litigated by EEOC. "The Seventh Circuit's interpretation is consistent with the plain language of the statute and accord meaning to the phrase 'for each working day'," the employer said. "History belies the dire forecast of an EEOC and district courts whose time will be consumed by counting employees. To the contrary, this case, and those like it are anomalies," the company said. --By Nancy Montwieler 1996 DLR 53 d3 END OF DOCUMENT COPR. (C) 1996 The Bureau of National Affairs, Inc. 01-04164