The ADA Amendments Act was passed in 2008 and became effective in 2009. Only now are we seeing cases interpreting those important changes. One significant change concerns the “regarded as” claim. The old ADA protected persons who were fired because they were “regarded as” disabled. But, the old ADA also required that to merit that protection, the person had to suffer from an actual impairment. That ruling meant many persons in the early stages of an illness or impairment were not protected. Their disability simply had not progressed far enough. So, the ADA Amendments Act broadened the requirement of “regarded as” to also include persons who were simply perceived as impaired. The ADAAA removed the requirement that a person suffer from an actual impairment that limits a major life activity.

In Mesa v. City of San Antonio, No. SA-17-CV-654 (W.D. Tex. 8/16/2018), the Court addressed a critical component of this new “regarded as” claim. How serious does the impairment have to be before the impairment can become the subject of a “regarded as” claim? In Mesa, the worker suffered from a shoulder injury. He recovered from that shoulder injury within eight days. In moving for summary judgment, the employer argued that the condition was “transitory and minor.” The ADAAA provides that the protections of the “regarded as” claim do not extend to conditions which are transitory and minor. The court in Mesa first addressed the question regarding who must show that an impairment is transitory and minor. The court reviewed the pertinent regulations and found this status to be a defense, so the burden lay with the defendant to show a condition was transitory or minor. So, in moving for summary judgment, the employer must show no genuine issue of material fact regarding the status of transitory and minor.

The Act defines an impairment as one which lasts six months or longer. Mr. Mesa’s condition apparently lasted less than six months. But, what is “minor”? The court noted that the employer focused on the wrong analysis in its motion for summary judgment. The employer argued in its motion for summary judgment that there was no evidence that any person at CPS Energy, the employer, viewed Mr. Mesa’s impairment as anything but transitory and minor. That was the wrong inquiry, said the Court.

The proper question was whether the employer believed the employee had an impairment which objectively could be viewed as transitory and minor. That is, was the employer aware of an impairment, which objectively could constitute a brief illness or injury? The court was saying that the employee must show not that the employer viewed the health condition as transitory and minor, but must instead show 1) that the employer viewed the impairment as a particular diagnosis, 2) which objectively may last longer than six months or is otherwise not minor.

The court engaged in detailed review of the facts and noted that CPS Energy took actions which did show they believed the employee had a shoulder injury which persisted, even after apparent treatment. They required him to take a fitness-for-duty examination, for example, even after receiving a medical report. Management also considered requiring the employee to undergo an MRI. Management took several steps even after initial assurances of his recovery. And, as the court noted, the employee was removed from work via an ambulance when the injury first occurred. All those facts suggest an impairment which was something more than minor.So, even though the condition may have lasted less than six months, it was something more than minor.

The court then noted that shoulder injuries as a matter of course, are unpredictable. It found that the plaintiff had presented adequate evidence to show genuine issue of fact whether the injury was not “minor” and whether he had been placed on unpaid leave due to his perceived injury. See the decision here.

The Equal Employment Opportunity Commission has field suit agains Zachry Industrial for discriminating against persons with disabilities. According to the San Antonio Express News, Zachry Industrial operates a refinery in Pascagoula, Mississippi and it has fired workers after they notified their employer of a disability. Zachry Industrial is headquartered here in San Antonio. See San Antonio Express News report. Zachry Industrial employs 900 employees here in San Antonio and some 22,000 employees world wide.

At least three workers were fired after notifying their employer they suffered from some impairment. Of course, the employer should not fire persons who report a new impairment. Instead, the employer is required to engage in a discussion about accommodations the person might need and what accommodations the employer can provide. The lawsuit was filed in the Southern District of Mississippi.

Zachry Industrial was previously sued for discrimination based on gender. See EEOC press release here. In that lawsuit, the EEOC said the employer fired a woman after she complained about discrimination. Zachry Industrial was formerly known as Zachary Construction Corporation.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

What is a disability? A potential client asked me that recently. A broken leg, for example, is not an impairment that would qualify for coverage under the Americans with Disabilities Act. To qualify as a disability, the impairment must be permanent or something like permanent. It must also be serious. In Datar v. National Oilwell Varco, L.P., No. 01-15-00541 ((Tex.App. Hou. 1/19/2017), the employee claimed a impairment involving his back. He said he had a lower back sprain that made it “harder” to sit down, to walk and to pick things up. The Court of Appeals found that an impairment does not rise to the level of a disability unless it affects a major life activity. Yet, the court apparently disregarded evidence that at least once, the employee was in such pain that he had to go to the emergency room and could not work. Too, the court relied on caselaw issued prior to amendment of the ADA in 2009.

The court discounted the plaintiff’s testimony that the sprain made it harder for him to work. It relied, instead, on the medical note that released him back to work. See the decision here. This will be a continuing issue in future cases. Many persons suffer from these debilitating back injuries.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

Howard Cohan visits many public establishments. Mr. Cohan is restricted to a wheelchair. He is disabled. But, he visits these public establishments in Florida to see if they are accessible to persons with disabilities. Many restaurants, stores and motels get nervous when they see him rolling toward their front door. See Cohan v. Southeastern Hotels Ltd. Partnership, et al, No. 3:14-cv-393 (N.D. Fla. 6/26/2015), in which he sued some two dozen different motels. See an order here in which instance he could not attend court due to medical treatment. According to one report, he has filed some 1200 lawsuits against non-compliant businesses.

He identifies himself as a “tester.” He tests these places to see if they comply with the ADA. The state of Texas just recently tried to pass a statute limiting the recovery for testers like Mr. Cohan. But, Mr. Cohan is genuinely impaired. And, he genuinely wants businesss to comply with the ADA. Speaking from experience, in some parts of my neighborhood, there are not enough sidewalks. Fredericksburg Road inside Loop 410 lacks sidewalks. So, one young man who uses a wheelchair is forced to travel in the busy street. He wears a huge cowboy hat, and has a tall bicycle flag attached to his chair to make himself more visible. Yet, just a few weeks ago, he was struck by a car. If you are in a wheelchair or suffer some impairment, the concerns of Mr. Cohan are quite genuine.

In Cohan v. Arvilla Motel, Inc., No. 8:15-cv-2174 (M.D. Fla. 1/18/2017), the court declined to award sanctions against Mr., Cohan after he dropped a lawsuit soon after filing it. The court noted rightly that Mr. Cohan has a genuine disability. He visited one motel as a “tester” with an ADA expert and found some violations. The court found that just because Mr. Cohan’s “calculated” presence on the property and his stated claim to return as a “tester” and using a “form” complaint that was not well drafted do not equate to bad faith. He might have failed to prevail on all his claimed violations, but it is apparent from the expert’s report and the photographs, that there was reasonable basis in law and in fact to support the allegations in his Complaint. See the decision here.

The court noted that it reached the same result in another lawsuit field by Mr. Cohan, Cohan v. Island House Resort Hotel, Inc., No. 8:15-cv-21-8 (M.D. Fla. 1/20/2017). Mr. Cohan does stay busy.

At least one news report suggests Mr. Cohan is motivated to sue by greedy lawyers. See a local Florida news station news report. But, the most the plaintiff can sue for is to rectify the barrier and for attorney’s fees. I do not know what Mr, Cohan’s lawyers are seeking as attorney’s fees, but the sooner the defendant settles, the lower the amount of attorney’s fees.

It benefits a business to hire persons with disabilities. As David Hendricks, columnist with the San Antonio Express News points out, persons with disabilities are loyal workers. Mr. Hendricks recounts the time when Marriott Global Reservations hired a person with blindness. The hiring manager was nervous simply about interviewing a person who was blind. But, once hired, the new reservation taker did very well. He would use the tab key to move through the on-screen reservation form. He could not see to use the mouse, as other workers did. Using the tab was faster. Soon, all the reservation takers were using the tab key.

H-E-B has hired persons with disabilities for years. They have found disabled workers to be much more loyal than more traditional workers. They have found persons with disabilities to work well in certain jobs. A new regulation, Mr. Hendricks adds, requires federal contractors and sub-contractors to employ at least 7% persons with disabilities. The contractors can establish plans to work toward those goals. Texas Workforce Solutions, a state agency, will help Texas employers reach those goals.

Typically, it costs the company nothing or very little to accommodate most persons with disabilities. The rest of the time, it costs less than $500. It just makes sense to hire persons with disabilities. Whatever his/her impairment, the disabled worker still must be able to perform the essential functions of the job. See column by Mr. Hendricks.

A recurring question is what can an interviewer can ask in a job interview. Here are some things to consider…… or not.

1. How old are you? Be very careful about asking this question. There are very few jobs where age is an appropriate question for a job interview. If asked at the wrong time, such a questions could serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. In any event, why would this question be helpful? Sometimes, this question acts as a ruse to discover whether a female applicant might quit when she wakes maternity leave. Its best to just not go there.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar. It can ask an applicant if s/he has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above. Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, then questions asked in an interview would have some relevance. But, if there is adequate reason for any termination, discriminatory questions would not matter. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

I used to work at Disability Rights of Texas. I learned that some folks have some very obscure disabilities. One such disability is arthrogryposis. The impairment causes a person to have paralyzed arms. A reporter, Serge Kovaleski, suffers from arthrogryposis. The reporter wrote a story just after 9/11 quoting some law enforcement officials that some folks celebrated the 9/11 attacks with tailgating. Donald Trump has relied on that report to assert that thousands of Arabs in Jersey City celebrated the 9/11 attacks. Mr. Trump insists that celebration occurred even though that reporter today says he never did find any corroboration for that story. See CBS news report.

So, Donald Trump being Donald Trump mocked Mr. Kovaleski . The candidate did not like it that that the reporter backtracked hiss tory from 2001. He mocked the reporter’s physical appearance by holding his arms like jello – while attacking the reporter.  He said the report might be an athlete like Mohammed Ali or J.J. Watt.  ….  It is not enough to simply disagree with the reporter. The presidential contender has to also mock his physical appearance? This from the same man who mocked one female news reporter for asking, in his opinion, inappropriate questions at a debate and who poked fun at the physical appearance of Carly Florina.

Disabilities are not funny. Physical impairments are not funny. If Donald Trump were to become president, I predict persons with disabilities will not have a friend in the White House.

Many years ago, when I was a captain in the Texas National Guard, I was involved in a new military unit. It is not often in one’s career that you are involved in “standing up” a brand new unit from scratch. Our RCPOC (Rear CP Operations Cell) had a new paragraph and line number on the TOE (Table of Organization and Equipment). It was a great challenge. You need the best non-commissioned officers and officers at a time like that, because the beginning of an organization affects so much. I was just a Captain, one of four or five in this staff section. We had a major and a Lieutenant-Colonel. The LTC was outstanding, my old mentor, Dan Densford. You also have to be careful at times like that, because some units will shove off their malcontents or trouble-makers on you.

LTC Densford was very sharp and well-informed about personnel issues across the former 49th Armored Division. We got this one Sergeant First Class Gravier. “Rumor control” said SFC Gravier was a problem child. He was Active Guard Reserve, which meant he served everyday, not just on weekends like the rest of us. The AGR guys had informal influence on the unit, disproportionate to his/her rank. If SFC Gravier was a problem, then that would have a ripple effect on all of us. But, I remember also hearing that he was treated badly at his old unit. Whoa. That changes everything. In the military, much like the civilian world, you can have a wonderful unit, right next door to shiftless, lazy, point-the-finger dirtbag unit.

As time went on, I noticed SFC Gravier was very competent. He was abrasive. In the first few months, he was testy with me and others – as if he expected us to be hyper-critical or unfair in some way. But, we were not. We all appreciated his direct answers and his helpful suggestions. As the months passed, his prickliness went away. We all realized what an excellent sergeant SFC Gravier was. It was obvious he had been mis-treated at his former unit. Our senior sergeant was MSGT Reeve. MSGT Reeve came with a stellar reputation and he was very competent. MSGT Reeve out-ranked SFC Gravier. Those two became fast friends. They both shared the same level of dedication and attention to detail.

I learned a valuable lesson from this dynamic. We all bring different qualities to an organization. What some perceive as problems may be nothing more than a lack of polish. If that lack of polish comes with dedication and sincere caring for soldiers, polish means nothing. All organizations must bring out the best in each member and learn to use each member to his/her fullest capacity to flourish. Within a couple of years, our Rear Operations Cell did very well. In our second year, we participated in the Warfighter Exercise, in which division level staffs are tested by a computer exercise over five days. We were evaluated by active component officers and NCO’s from Ft. Leavenworth. We excelled. Success in any military unit means the non-commissions officers, including SFC Gravier, did very well. Our third year, I was gone, but I was told that the NCO’s worked hard on the coffee that Summer Camp. They perfected various coffee blends….

So, now, 20 years later, when I see corporate America or federal civil service relegate someone to the rear simply because s/he has a disability, I think back to SFC Gravier. SFC Gravier had no disability. But, he was perceived to have some fundamental flaw. Yet, in reality, he became one of the go-to persons in our small, 15 person staff section, because we gave him the opportunity to fail or succeed. He took the opportunity and showed what he could do. Next time you have a person with a disability in your work area, ask yourself, what does s/he bring to the table? If s/he brings the right stuff to the table, then whatever disability might be present matters not one whit.