EEOC guidance on psychiatric disabilities: many problems, few workable solutions

The EEOC recently issued "Enforcement Guidance" on psychiatric disabilities under the Americans with Disabilities Act. Although the Guidance provides clarification of a few issues involving mental disabilities under the ADA, in most respects the Guidance is problematic. For example, the Guidance suggests that the inability to get along with a supervisor or coworkers may constitute a disability under the ADA, that an employer may have to "accommodate" a disabled employee's misconduct, that an employer cannot require an employee to follow doctor's orders as a condition of employment, and that an employer may be obligated to modify work rules and procedures to accommodate a mentally disabled employee but is prohibited from explaining to coworkers why it is making such modifications. As the EEOC's Guidance exceeds or conflicts with the ADA in some respects and is largely unworkable in many respects, it remains to be seen how many courts will actually follow it.     

"Reasonable accommodation" under the Americans with Disabilities Act--what does it mean?

The Americans with Disabilities Act (ADA) imposes on employers the duty to afford qualified disabled applicants and employees "reasonable accommodation," but provides minimal guidance as to the range of actions necessary to fulfill this duty. Under the statutory scheme, required accommodations will vary from employer to employer, from worksite to worksite for the same employer, and perhaps even from employee to employee at the same worksite. Personnel managers will be required to make very fact-specific decisions in each case as to whether to offer particular accommodations, with any decision declining to provide the accommodation subject to attack in litigation. Based on an analysis of how similar reasonable accommodation requirements have been interpreted under other statutes, this article analyzes the likely parameters of the duty to afford reasonable accommodation under the ADA and offers specific suggestions for employers to minimize their risk of liability.     

AIDS, employment, and the direct threat defense: the burden of proof and the circuit court split

This Note examines disability-related discrimination in light of the protections afforded by the Americans with Disabilities Act (ADA) and in the context of an HIV- or AIDS-infected employee. Under the ADA, an employer may legally fire a worker who poses a direct threat to the individuals around him or her. It is unclear, however, whether the burden of proving or disproving the claim that an individual is a direct threat lies with the employer or the employee. This Note analyzes the circuit split over which party bears the burden of proof under the direct threat standard in light of prospective HIV-related litigation.     

Anatomy of an ADA case. Chatoff v. City of New York

This article addresses plaintiff and defense strategies in the context of an ADA case and is intended to serve as a ready reference to employer's counsel when faced with ADA litigation. In an ADA case, it is essential that counsel humanize the employer by keeping the "Our Business Supports Diversity" theme before the trier of facts at all times. This theme should be accompanied by the proposition that plaintiff's demands are not reasonable because they impose an undue burden on the employer or a risk to the safety of the employee or others in the workplace. It is also crucial for defense counsel to become familiar with the plaintiff's attorney's strategic considerations. ADA litigation strategy is illustrated by reference to Chatoff v. City of New York, a landmark ADA case instituted on behalf of the approximately 200,000 hearing-impaired residents of the City of New York, demanding equal and direct access to Emergency 911 services.     

论雇主的保护照顾义务

雇主的保护照顾义务在我国学界未受到足够的重视,世界各国对其性质也有不同的认识,本文在梳理其各种认识的同时,分析了赋予雇主保护照顾义务的法理依据,阐述了雇主保护照顾义务的内容及违反义务的损害赔偿责任。     

The Effects of Attribution of Responsibility and Work History on Perceptions of Reasonable Accommodations

Under the Americans with Disabilities Act (ADA), employers must provide employees with disabilities reasonable accommodations that will enable them to perform job duties, as long as the accommodations do not financially burden the organization. Two studies were conducted to investigate whether disability origin and/or prior work history impermissibly influence the granting of reasonable accommodations under the ADA. In both studies, participants granted more accommodations for employees whose disability was caused by some external factor than for those whose disability was caused by the employee's own behavior. In Study Two, participants also granted more and costlier accommodations for an employee with an excellent work history than for an employee with an average work history. Implications of the use of extralegal factors in accommodation decisions are discussed.     

论工作环境权

工作环境权是在多重因素影响下形成的新型权利，其与传统的职业安全卫生权利之间既有密切联系，又有区别。工作环境权的权利人应为劳动者，义务人主要是国家和雇主，其内容可根据不同的标准予以体系化区分，学界则对其权利内容的界定存有广狭义之分。但比较而言，从狭义上将工作环境权界定为以“职工参与”为核心的集体性和程序性权利更妥。     

Why courts cannot deny ADA protection to plaintiffs who do not use available mitigating measures for their impairments

Congress intended the Americans with Disabilities Act ("ADA") to provide strong standards for addressing and eliminating discrimination against individuals with disabilities. Many commentators have concluded, however, that the federal courts are undermining the goals of the ADA by too narrowly construing membership in the statute's protected class. One example of this trend is courts' hostile treatment of ADA plaintiffs who do not use medications or devices that might alleviate their impairments ("nonmitigating plaintiffs"). Numerous district and appellate decisions have held or suggested that nonmitigating plaintiffs are not protected by the ADA. In addition, some commentators have proposed that courts should evaluate the reasonableness of a plaintiff's decision not to use mitigating measures; they argues that it is unfair to burden an employer with the cost of accommodating a disability that continues to exist only because an employee unreasonably refuses to mitigate it. Contrary to the views of these courts and commentators, however, this Comment will show that nonmitigating plaintiffs are entitled to ADA protection from employment discrimination. It argues that the statute's language, history, and structure, as well as Supreme Court precedent, demonstrate that courts cannot deny ADA protection based on a plaintiff's nonuse of available mitigating measures. It also presents several considerations that weigh against any future congressional enactment that would tie ADA protection to the reasonableness of a plaintiff's decision not to mitigate an impairment.     

Stigma as a barrier to employment: mental disability and the Americans with Disabilities Act

In a controversial expansion of workplace civil rights, the 1990 Americans with Disability Act (ADA) extended anti-discrimination protection to individuals with "mental impairments." One of the most critical barriers to the employment of individuals with mental disabilities is the degree of social stigma such disabilities incur, and there is compelling evidence that employers have stigmatizing attitudes and have discriminated against those with mental disabilities. This study examines the role played by stigma in employers' response to the 1990 Americans with Disability Act (ADA). A stratified sample of one hundred ninety employers were surveyed in 1996-1997 in a major Southern metropolitan area. Telephone interviews were completed with one hundred seventeen employers (response rate of 61.6%). The article describes employers' experiences with employees with mental disabilities and accommodations, specific employment practices, and attitudes towards those with mental disabilities. Stigma played an important role in conformity to the ADA (operationalized as either hiring or having specific recruiting policies for hiring individuals with mental disabilities). Furthermore, employers expressing coercive (fear of a lawsuit) as opposed to normative (belief that it is the right thing to do) rationales for compliance were more likely to hold stigmatized attitudes. Employers' beliefs about mental disability form a crucial foundation for truly supportive work environments (those that value difference and diversity), and further research is needed to determine if over time the ADA is successful in changing attitudes as well as behavior.     

Access to medical care for HIV-infected individuals under the Americans with Disabilities Act: a duty to treat.

In 1990, Congress enacted the Americans with Disabilities Act (ADA). This Note examines the legislative history of the ADA and uncovers Congress's intent to impose a duty on health care providers to treat people with disabilities unless an individual poses a "direct threat" to the health or safety of others. This Note posits that, with the passage of the ADA, Congress imposed a statutory duty on health care providers to give care to people infected with HIV who qualify under the statute. This Note concludes that while the "direct threat" exception may lessen the impact of the ADA, those infected with HIV should enjoy greater access to health care than ever before.     

服务期协议：概念、本质及其法律效力分析

服务期协议是用人单位在为劳动者先履行或承诺先履行相应给付义务或为劳动者提供了某种特殊待遇的情况下，要求劳动者对其承诺为本单位工作满一定年限作为补偿并在该期限内不另谋职业的特定契约。它是劳资双方以劳动合同为基础所形成的特殊约定，需要我们借助劳动法和民法的双重思维，结合服务期协议的不同约定进行具体处理。     

The Americans with Disabilities Act as risk regulation.

Much disability based discrimination occurs because of fears that hiring or serving people with disabilities will pose a safety risk. Disability rights laws such as the ADA strictly regulate such risk-motivated discrimination. Many disability rights advocates and academic defenders of the ADA laud such laws as applying a "scientific" approach to risk rather than the "irrational" approach generally adopted by the public at large. That position is doubly strange: It stands in remarkable tension with disability rights advocates' general suspicion of "experts," and applies a technocratic approach to risk regulation-an approach that usually has politically conservative implications-to achieve the distinctly nonconservative goal of promoting the full integration of people with disabilities into our nation's economic and civic life. In this essay, Professor Bagenstos uses the problem of risk-motivated disability discrimination as a lens through which to examine the politics of risk regulation scholarship. He argues that the easy association of technocratic approaches with political conservatism-and of democratic approaches with political liberalism or progressivism-ignores the complex ways in which technocratic and democratic institutions may serve or disserve particular political interests.     

雇主责任的归责原则与劳动者解放

我国学界的多数观点认为雇主责任是无过错的替代责任,而我国"人身损害赔偿司法解释"第9条不以雇员的侵权责任为雇主责任的要件,并规定轻过失的雇员可以免责,与替代责任说的原理相矛盾,因而遭到学界的批判。于此相对,我国司法实务界多认为雇主责任是过错责任,学界与实务界在问题意识和基本立场上存在着明显差异。结合对德国、日本和英国的比较法研究,笔者发现,纯粹无过失的雇主责任是不存在的,替代责任并非世界法律发展的潮流。雇主责任的本质是组织过失责任,其根源在于雇主在企业组织上的瑕疵,因此雇主责任的成立无须以雇员的侵权责任为要件,倘以之为要件反而会招致诸多弊端。雇员的轻过失只是雇主组织瑕疵的衍生物,为雇主的经营行为所吸收,雇员可以从赔偿责任中解放出来。"人身损害赔偿司法解释"第9条体现的正是劳动者解放的法理。     

"用工"法律问题初探

随着我国《劳动合同法》把建立劳动关系的判断标志从“签约”修改为“用工”,研究与用工相关的法律问题显得日渐迫切。用工的内涵,可界定为用人单位招用劳动者为其成员,劳动者在用人单位的管理下,提供由用人单位支付报酬的劳动行为。认定用工是否成立,我们应根据双方主体是否合格、是否有劳动给付和接受行为、双方关系是否符合“从属性”标准要求等要件来作出判断。其中,对于“用工之日”的认定,应设置特别规定。关于如何理解用工和签约之间的效力关系,应区分“同时用工和签约”、“先用工后签约”、“先签约后用工”这三种不同情形,进行具体分析。     

论雇主责任过错推定原则的合理性

雇佣是现代社会的一个普遍现象。受雇人因执行一定的职务不法侵害他人权益时，如何规制其雇主的损害赔偿责任是法律上的一个重要的课题。无论从构成要件的认定，还是从责任承担的安排上，均可推导出雇主责任过错推定原则的合理性。我国未来的侵权责任法宜明确规定雇主责任为过错推定原则。     

Asymptomatic HIV as a disability under the Americans with Disability Act

The Americans with Disability Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are indeed protected under the ADA, but that the analytic framework thus far employed by the courts is flawed. Asymptomatic HIV is a protected disability not because it is independently debilitating, but because the prejudices and fears of other may prevent HIV-infected persons from fully participating in society. The ADA was enacted to prevent exactly this type of discrimination.     

Ethics in the workplace

The right to request flexible working has been introduced into the UK employment laws against a background of post-fordist work practices, which already allow for employer rather than employee flexibility. This paper posits the idea that for the individual employee to benefit from these new rights what is required is the situation of dialogues within the workplace that take place in an ethical frame that recognises the employee as an individual.

The HIV-infected health care provider. Doe v. Attorney General of the United States

Doe demonstrates that once an employer enters into a relationship with an individual and thereafter determines that he or she may be disabled, the employer has the right to ask the individual questions about the possible disability when those questions are relevant to assessing his or her qualifications for continuing on the job. In fact, once a health care provider is on notice that an employee's or physician's disability may render the employee or physician no longer qualified, thereby potentially endangering patients, the provider is required to determine whether the person is qualified for the job. In these sensitive matters, employers must draw a fine line between unreasonably following up on every rumor on the one hand, and on the other hand investigating reliable information when there may indeed be a direct threat to patients.     

Genetic discrimination: Huntington's disease and the Americans with Disabilities Act

This Note discusses the potential for genetic discrimination, current views as to whether genetic conditions will be covered by the Americans with Disabilities Act ("ADA"), and the specific issue of whether presymptomatic persons who test positive for Huntington's disease should be classified as persons with a "disability" within the meaning of the ADA. In considering whether presymptomatic Huntington's individuals have a disability under the ADA, an analogy is made between Huntington's disease and HIV-positive status. Inter alia, Huntington's disease and HIV-positive status are analogous in that, at the time of diagnosis, victims of both diseases may have no symptoms and may remain healthy for a number of years; but even though the exact time of onset of both diseases is unascertainable, death of both victims within a given range of years is highly likely. Further, both Huntington's disease and HIV are transmitted to offspring at a relatively high rate. Given these similarities, the author argues that Huntington's individuals should be afforded the protections of the ADA for the same reasons that HIV-positive persons are protected.     

Plans established or maintained pursuant to collective bargaining agreements under section 3(40)(A)--Pension and Welfare Benefits Administration. Notice of intent to form a negotiated rulemaking advisory committee

The Department of Labor (Department) intends to form a Negotiated Rulemaking Advisory Committee (Committee) in accordance with the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act. The Committee will negotiate the development of a proposed rule implementing the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 1001-1461 (ERISA). The purpose of the proposed rule is to establish a process and criteria for a finding by the Secretary of Labor that an agreement is a collective bargaining agreement for purposes of section 3(40) of ERISA. The proposed rule will also provide guidance for determining when an employee benefit plan is established or maintained under or pursuant to such an agreement. Employee benefit plans that are established or maintained for the purpose of providing benefits to the employees of more than one employer are "multiple employer welfare arrangements" under section 3(40) of ERISA, and therefore are subject to certain state regulations, unless they meet one of the exceptions set forth in section 3(40)(A). At issue in this regulation is the exception for plans or arrangements that are established or maintained under one or more agreements which the Secretary finds to be collective bargaining agreements. If adopted, the proposed rule would affect employee welfare benefit plans, their sponsors, participants and beneficiaries, as well as service providers to plans. It may also affect plan fiduciaries, unions, employer organizations, the insurance industry, and state insurance regulators.