Saturday, July 20, 2013

ADA "Screen Out" Claims Do Not Require Statistical Showing of Collective Impact

Claims under the ADA that an individual with a disability has been screened out (see 42 U.S.C. § 12112(b)(6)) do not require a statistical showing of collective impact, or other comparative evidence showing that a group of disabled persons are similarly adversely affected. 

“Disparate impact” in the Title VII sense is not synonymous with “screen out or tends to screen out” under the ADA. And while providing proof of disparate impact is one way for a plaintiff to bring a “screen-out” claim under the ADA, it is not the only permissible method

A Class of One Under the ADA

The plain language of the ADA (42 U.S.C. § 12112(b)(6)) does not require a statistical showing of disparate impact upon a group of individuals with disabilities. Rather, the words and phrases selected – “screen out or tend to screen out” and “an individual with a disability or a class of individuals with disabilities” – confirm that a (b)(6) claim may be supported by a broad range of evidence that the challenged practice in fact functions to screen out an individual (or a class of individuals) on the basis of disability.

While evidence may include statistics, it may also include the experience of the plaintiff, expert and non-expert testimony about disabilities and their effects, and even a common sense causation analysis regarding the inevitable impact of particular policies upon persons with certain types of disabilities.

 “In the ADA context, a plaintiff may satisfy the second prong of his prima facie case [impact upon persons with protected characteristic] by demonstrating an adverse impact on himself rather than on an entire group.” Gonzalez v. City of New Braunfels, 176 F.3d 834, 839 (5th Cir. 1999). Further, even where the criterion is job-related and necessary, the employer must still consider whether a less onerous alternative policy would equally serve the employer’s need. Bates v. United Parcel Service, Inc., 511 F.3d 974, 997 (“A reasonable accommodation may entail adopting an alternative, less discriminatory criterion,” citing House Comm. on Educ. & Labor, H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 71 (1990); Senate Comm. on Labor & Human Resources, S. Rep. No. 116, 101st Cong., 1st Sess. 37-38 (1989)).

EEOC Guidance

The EEOC’s guidance construing section 12112(b)(6) reaffirms that statistical evidence is not required for all claims challenging discriminatory qualification standards:
This standard is similar to the legal standard under Title VII of the Civil Rights Act which provides that a selection procedure which screens out a disproportionate number of persons of a particular race, sex or national origin “class” must be justified as a “business necessity.” However, under the ADA the standard may be applied to an individual who is screened out by a selection procedure because of disability, as well as to a class of persons. It is not necessary to make statistical comparisons between a group of people with disabilities and people who are not disabled to show that a person with a disability is screened out by a selection standard. 
Disabilities vary so much that it is difficult, if not impossible, to make general determinations about the effect of various standards, criteria and procedures on “people with disabilities.” Often, there may be little or no statistical data to measure the impact of a procedure on any “class” of people with a particular disability compared to people without disabilities. As with other determinations under the ADA, the exclusionary effect of a selection procedure usually must be looked at in relation to a particular individual who has particular limitations caused by a disability. 
Because of these differences, the federal Uniform Guidelines on Employee Selection Procedures that apply to selection procedures on the basis of race, sex, and national origin under Title VII of the Civil Rights Act and other Federal authorities do not apply under the ADA to selection procedures affecting people with disabilities.
(emphases in original).

Section 504 of the Rehabilitation Act of 1973

Section 504 prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.

Appendix to 45 C.F.R. § 84.13 – the Section 504 regulation upon which ADA section 12112 (b)(6) was based –  states that a statistical showing of adverse impact is not required, because “the small number of handicapped persons taking tests would make statistical showings of ‘disproportionate, adverse effect’ difficult and burdensome.” 45 C.F.R. pt. 84, app. A. 

These regulations and the accompanying appendix have been cited with approval by the Supreme Court. See Bragdon v. Abbott, 524 U.S. 624, 633 (1998); Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 279 & n.5 (1987) (because regulations “were drafted with the oversight and approval of Congress,” they provide “an important source of guidance on the meaning of § 504”); Alexander v. Choate, 469 U.S. 287, 305 (1985). Congress specified in the text of the ADA (42 U.S.C. § 12201(a)) that it provides at least as much protection as is provided under the Rehabilitation Act.

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