In what should be in the category, “water is wet,” it is unlawful to discriminate against an individual based on disability. Such prohibition applies to both the federal and at the state level.
Under federal law, employers have the Americans with Disabilities Act (ADA). Under Michigan law, there is the Persons with Disabilities Civil Rights Act (PWDCRA).
While both have similar objectives, important differences exist between them, which employers and employees must understand.
To Treat or Not to Treat: Determining the Disability of an Employee
Under the ADA, an individual has a disability if a physical or mental impairment substantially limits one or more major life activities. 42 USC 12102(2). In making this determination, the ADA initially considered the effects of mitigating factors, such as medicine or treatment, in evaluating if an individual was disabled.
But the Supreme Court later in Sutton v United Air Lines, Inc, decided that with corrective measures (in Sutton the issue were corrective lenses) to mitigate the plaintiff’s impairment did not substantially limit a major life activity and therefore they were not disabled.
The Sutton decision prompted the ADA Amendments Act (ADAAA), which legislatively overruled it. Specifically, the ADA Amendments required that a court’s determination of disability must be made without consideration to the effects of mitigating measures.
Similar to the ADA, Michigan’s PWDCRA defines disability as a:
determinable physical or mental characteristic of an individual… substantially limits 1 or more of the major life activities of that individual and is unrelated to that individual’s ability to perform the duties of a particular job or position…” MCL 37.1103(D)(i).
But in contrast to federal law, the PWDCRA uses the consideration of a mitigating measure, like medication, in evaluating disability. See Payment v Dept of Transportation, which confirmed that the Michigan legislature has not amended the PWDCRA to mirror that of the ADA. Thus, federal and Michigan law differ in their evaluating a disability with the use of mitigating measures.
An Employer Subject to Federal and State Law
In determining if an employer qualifies as a covered entity under the law, we can look to the number of employees. An employer is covered under the ADA if it has 15 or more employees. To qualify under the PWDCRA, the employer has at least one employee making it that all Michigan employers qualify. With these qualifications, an employer may be subject to comply with both federal and state law. If the employer must do so, it will be likely that the more stringent of the laws will be the applicable law.
Document, Document, Document
Going back to the Payment v Dept of Transportation decision, this case is also significant because it showed the importance of an employer documenting employment decisions. The Appellate Court determined that the evidence presented for her claim did not show that the decision by defendants was based on discrimination. Instead, it noted there may have been poor judgment on the employer’s part but that alone doesn’t constitute discrimination.
The key to this employer victory was documentation. By documenting employment decisions an employer can offer a defense against an employee’s claims. Importantly, an employer’s decision need not be perfect; an employer may make bad decisions and judges do not have to second-guess or improve upon them. Peden v Detroit, 470 Mich 195 (2004). But those decisions must be supported with credible documentation.