[email protected] judy yi · wiccan religious beliefs in violation of title vii and the missouri...

Practice Areas

EducationJ.D., University of

Minnesota, 2001 B.A., Dartmouth College,

1997

AdmissionsMissouri, 2004 Kansas, 2005 New York, 2003 New Jersey, 2001

Court AdmissionsU.S. District Court,

Western District of Missouri, 2004

U.S. District Court, Eastern District of Missouri, 2005

U.S. District Court, District of Kansas, 2005

U.S. District Court, District of New Jersey, 2001

Business Litigation Labor and Employment Employment Litigation

[email protected] Kansas City

Phone: 816.360.4149Fax: 816.374.0509

JUDY YI Shareholder

In her labor and employment law practice, Judy Yi focuses on how to manage and minimize workplace risks associated with multi-state and federal statutory compliance issues. If a matter becomes adversarial, Ms. Yi represents management in agency investigations and lawsuits. Employers are kept informed by Ms. Yi’s counsel on virtually all employment related laws and regulations involving issues such as employment discrimination, collective actions, breach of contract, covenants not to compete, personnel policies, management training, protection of confidential and trade secret information, defamation and unfair labor practices. Ms. Yi has been a member of the Firm’s Diversity Committee since 2005.

Memberships and Affiliations

■ Asian American Bar Association of Kansas City, President ■ National Asian Pacific American Bar Association ■ The Missouri Bar ■ Kansas City Metropolitan Bar Association ■ National Employment Law Council ■ International Association of Korean Lawyers ■ Association for Women Lawyers of Kansas City ■ Asian American Chamber of Commerce ■ Dartmouth Asian Pacific American Association ■ Dartmouth "Heart of America" Alumni Club, Executive Board

EXPERIENCE

Ms. Yi's notable experience includes Representative Experience

■ Ms. Yi has represented hospitals and long-term care facilities in state agency discrimination charges and lawsuits, and has provided advice and counsel on day-to-day employment matters

■ She has assisted multi-national, national, and regional corporations in negotiating the employment aspects of various mergers and acquisitions

■ She has conducted comprehensive employment / human resources audits, reviewing employment processes, policies, and documents for legal compliance

■ Ms. Yi represents a regional grocery store chain in all employment counseling, discrimination charges and employment litigation matters

Representative Cases

■ Brown-Schreiner v. United Investors, L.P. d/b/a Life Care Center of Grandview, Case No. 4:05-CV-00556 Plaintiff, the former Assistant Director of Nursing for Defendant, brought a cause of action against defendant alleging wrongful termination of her employment based on her Wiccan religious beliefs in violation of Title VII and the Missouri Human Rights Act. The matter was tried before a jury in the United States District Court for the Western District of Missouri. The jury returned a verdict in favor of defendant on all counts.

■ Parker v. Life Care Centers of America, Case No. 6:04-CV-1206 Plaintiff, a registered nurse and former employee of defendant, filed suit against

Defendant alleging (1) whistle blowing retaliation in violation of the Kansas Risk Management Act; (2) whistle blowing retaliation in violation of Kansas common law; (3) workers' compensation retaliation; (4) defamation; and (5) breach of implied contract. Defendant obtained summary judgment on four of Plaintiff's five claims. Plaintiff's breach of implied contract claim was tried on the merits before a jury in the United States District Court for the District of Kansas. Obtained jury verdict in favor of defendant.

■ Qualls, et al. v. Sanofi-aventis U.S. LLC Jurisdiction in the Western District of Missouri in a FLSA/Collective Action with a favorable settlement resolution.

■ Lee v. Life Care Center of America, Inc.Jurisdiction in the District of Kansas in a race discrimination case with a favorable settlement resolution.

■ Young v. University of Kansas Hospital AuthorityJurisdiction in the District of Kansas in a 42 U.S.C. §1981 race discrimination and retaliation case with a favorable settlement resolution.

■ Kankam v. University of Kansas Hospital AuthorityJurisdiction in the District of Kansas in a race discrimination case under Title VII and 42 U.S.C. §1981 with a favorable settlement resolution.

■ Miller v. University of Kansas Hospital AuthorityJurisdiction in the District of Kansas in an Americans with Disabilities Act discrimination and retaliation case with a favorable settlement resolution.

■ Rieker v. Cunningham Lindsay US, Inc., et al.Jurisdiction in Eastern District of Missouri in a tortious interference with a business expectancy, defamation and failure to pay wages case with a favorable settlement resolution.

■ Walker v. Global Ground Support, LLCJurisdiction in the District of Kansas in an Americans with Disabilities Act discrimination and ERISA violation case with a favorable settlement resolution.

PUBLICATIONS & PRESENTATIONS

June 2010 Beyond Getting in the Door: Success Tips for Diverse AttoneysPanelist for a program sponsored by the Kansas City Metropolitan Bar Association and Kansas City Specialty Bar Associations

2009 Not Just For Hackers Anymore?ABA Intellectual Property Roundtable

2007 Recent D.C. Circuit Opinion May Have Broad ImpactAmerican Health Lawyers Association Labor and Employment

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The Americans with Disabilities ActThe Americans with Disabilities ActAnd the ADA Amendments Act of 2008And the ADA Amendments Act of 2008

Presented by: Presented by: Judy YiJudy Yi

©2010 Polsinelli Shughart PC

AgendaAgenda

Overview of Americans with DisabilitiesAct of 1990 & ADA Amendments Act of 2008Changes with the ADAAASeptember 2009 EEOC Proposed Regulations Recent casesPractical considerations

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Americans with Disabilities Act of 1990 (ADA)Americans with Disabilities Act of 1990 (ADA)

Prohibits discrimination in employmentagainst individuals with disabilitiesApplies to all private employers with 15 or more employees for 20 or more weeks during a calendar year Requires employers to make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee, unless such accommodation would impose an undue hardship on the employer



Prohibits the use of employment testsand other selection criteria that screen out, or tend to screen out, individuals with disabilities, unless such tests or criteria are shown to be job-related and consistent with business necessity

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Bans the use of pre-employment medical examinations or inquiries to determine if an applicant has a disability (permits use of a medical examination after a job offer has been made if the results are kept confidential, all persons offered employment in the same job category are required to take them and the results are not used to discriminate)Permits employers, at any time, to inquire about the ability of a job applicant or employee to perform job-related functions


ADA Amendments Act of 2008 (ADAAA)ADA Amendments Act of 2008 (ADAAA)

Signed September 25, 2008;effective January 1, 2009Purpose– Restores the original remedial intent

of the ADA – Intended to overturn a series of Supreme

Court decisions that interpreted the ADA in a way that made it difficult to prove that an impairment is a “disability” by changing the ADA’s definition of “disability,” which broadens the scope of coverage under both the ADA and Section 503 of the Rehabilitation Act

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ADA Amendments Act of 2008 (ADAAA)ADA Amendments Act of 2008 (ADAAA)

Generally, does not apply retroactively toADA claims that arose prior to January 1, 2009– Date of defendant’s allegedly discriminatory conduct is

the date used for determining whether the ADA or ADAAA is applicable to the legal analysis of the claim

Final EEOC Regulations pending


Changes with the ADAAAChanges with the ADAAA

“Disability” Definition – Broadened

Same definition language but broadens the definition of “disability”by modifying key terms of that definition

New rule of construction: much broader application and “should not require extensive analysis”

(A) Physical or mental impairmentthat substantially limits one ormore major life activities,

(B) A record of such impairment, or(C) Being regarded as having such

an impairmentNarrow application

Post – ADAAA Pre – ADAAA

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Changes with the ADAAA (continued)Changes with the ADAAA (continued)

Included individuals who:– Have a physical or mental impairment

that does not substantially limit major life activities but are treated by an employer as such,

– Have a physical or mental impairment that substantially limits major life activities as a result of the attitudes of others toward such impairment, or

– Do not have an impairment, but are treated by an employer as having a substantially limiting impairment

– Courts required individuals prove the impairment substantially limited a major life activity

Federal circuits were split on whether “regarded as” claims were entitled to a “reasonable accommodation”

New definition: individual meets “regarded as” requirements if subjected to an action prohibited by ADA because of an actual or perceived physical or mental impairment, and no longer necessary that the impairment be perceived by the employer to limit or “substantially limit” a major life activity

– To satisfy the “regarded as” standard, an impairment must not be one that is “transitory and minor,” i.e., impairment with an “actual or expected duration of 6 months or less”

Clarifies that an individual who satisfies only the “regarded as” prong of the definition of disability is not entitled to “reasonable accommodations”


“Regarded as” – Redefined who is “regarded as” being disabled



Major Life Activities – Expands definition

Expands definition by including two non-exhaustive lists:

1. Many major life activities the EEOC recognized (e.g., walking) and other activities not specifically recognized (e.g., reading, bending and communicating)2. Now includes major bodily functions (e.g.,immune system, digestive, bowel, bladder, respiratory, brain, circulatory, endocrine and reproductive functions)

Rule of construction: impairment that limits one major life activity need not limit other major life activities

New standard where only required to show inability to perform a “type of work,” taking into account the nature of the individual’s work and job-related requirements

Unclear whether certain major life activities and “bodily functions” were major life activities

Unclear whether impairment must limit more than one major life activity

Major life activity of “working” required a determination whether individual was substantially limited from working a “class” or “broad range” of jobs


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EEOC regulations: “significantly restricted”

Toyota Motor Manufacturing, Inc. v. Williams (2002): “substantially” should be construed strictly; individual must be prevented or severely restricted from performing activities

Defining “substantially limits” as “significantly restricted” too high a standard; EEOC is currently finalizing new regulationsAbrogates Supreme Court cases, such as Toyota Motor Manufacturing, Inc. v. Williams, as they created “inappropriately high level of limitation necessary to obtain coverage under the ADA”; question of impairment should not demand extensive analysis

“Substantially Limits” – Modifies regulatory definition

Post – ADAAAPre – ADAAA



Rule of construction: determination whether an impairment substantially limits major life activity shall be made without regard to ameliorative effects of mitigating measures, with one exception: employer can consider ordinary eyeglasses and contact lenses

Defines mitigation measures as: medication, medical supplies or equipment, prosthetics, assistive technology, reasonable accommodations or auxiliary aids, or behavioral or adaptive neurological modifications

Severely restricts employers’ ability to use qualification standards, employment tests, or other selection criteria that are based on an individual’s uncorrected vision; only allowed if the employer can demonstrate the requirement is job-related to the position and consistent with business necessity

Sutton v. United Air Lines, Inc. (1999): Supreme Court declared requirement that whether impairment substantially limits a major life activity is determined with reference to ameliorative effects of mitigating measures

Post – ADAAAPre – ADAAA

Mitigating Measures – Consideration prohibited in substantial limitation analysis

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Individuals in remission or whose limitations were only sometimes present may not be covered by ADA

Impairment that is episodic or in remission is a disability under the ADA if it would substantially limit a major life activity when active (e.g., epilepsy, multiple sclerosis, asthma, major depression, bipolar disorder, epilepsy, hypertension, multiple sclerosis, diabetes, schizophrenia and cancer)

Episodic Impairments, Remissions – Clarification provided



EEOC Proposed Regulations (September 2009)

EEOC Proposed Regulations (September 2009)

Final Regulations pendingNonexhaustive list of impairments “that willconsistently meet” the definition of disability:– Deafness– Blindness– Intellectual disability– Partially or completely

missing limbs– Mobility impairments requiring

the use of a wheelchair– Autism– Cancer– Cerebral palsy

– Diabetes– Epilepsy– HIV/AIDS– Multiple sclerosis– Muscular dystrophy– Major depression– Bipolar disorder– Post-traumatic stress disorder– Obsessive compulsive disorder– Schizophrenia

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EEOC 2009 Proposed RegulationsEEOC 2009 Proposed Regulations

Affirm the need for an individualizedassessment, but provide that the assessment can be conducted “quickly and easily” in the case of these impairmentsProvide that a limitation does not need to “significantly” or “severely” restrict a major life activity in order to meet the standard, and deletes reference to the terms “condition, manner or duration” under which a major life activity is performedSubstantial limitation inone activity is sufficient



Provide that fact finders should usetheir common sense when determining whether someone is substantially limited in a major life activity as compared to the general population, where scientific or medical evidence will not necessarily be required.

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Easier for employees to show that they are substantially limited in the major life activity of “working”: no longer require showing of inability to perform a class or broad range of jobs; employee need only show substantial limitation to the ability to perform, or to meet the qualifications for a “type of work” (e.g., commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs)



Provide that qualifications standards, employment tests or other selection criteria based on an individual’s uncorrected vision shall not be used unless shown to be job-related for the specific position and consistent with business necessity

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Recent Cases – Retroactive ApplicationRecent Cases – Retroactive Application

Holte v. Steiner Corp. (D. Ore. 2010)The date of defendant’s allegedly discriminatory conduct is the date used for determining whether the ADA or ADAAA is applicable to the legal analysis of the claim.

E.E.O.C. v. Agro Distribution, LLC (5th Cir. 2009)Has become the seminal case for holding that the ADAAA does not apply retroactively to conduct that occurred before the enactment of the ADAAA.

Durham v. McDonald's Restaurants of Okla., Inc.,(10th Cir. 2009)

Declines to decide whether the ADAAA applies retroactively, but notes that other courts have consistently held that the ADAAA does not apply to conduct that occurred before its enactment.



Jenkins v. National Bd. of MedicalExaminers (6th Cir. 2009)Medical student requested reasonable accommodation in an upcoming medical exam in order to assist with his reading disorder. The Board denied his request, and the medical student sought injunctive relief that would allow him to take the test at a future date with reasonable accommodations for his disability. The district court found the medical student did not qualify as disabled under the ADA. While appeal was pending, the ADAAA became effective. The court noted that because the plaintiff was seeking prospective injunctive relief, no manifest injustice would result from applying the ADAAA to his claim. The case was remanded to the district court for analysisunder the ADAAA.

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Pinegar v. Shinseki (D. Penn. 2010)Plaintiff’s complaint included requests for prospective relief in the form of reinstatement and reasonable accommodation. Because she sought prospective relief, plaintiff argued the ADAAA should apply to her claims. The court distinguished the present case with the prospective relief sought in Jenkins. In this case, the alleged discrimination occurred in the past, while in Jenkins, the plaintiff requested accommodations during a test that he had not yet taken.



The distinction drawn is a bit curious, because in Jenkins, arguably the discriminatory conduct occurred when the Board rejected the medical student’s request for accommodations during the test. The Pinegar case demonstrates that courts will not apply the ADAAA retroactively except in very narrow and limited circumstances.

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Recent Cases – Regarded AsRecent Cases – Regarded As

Wurzel v. Whirlpool Corp. (N.D. Ohio 2010) Holding that even though the “regarded as”standard is broader under the ADAAA, when an employer restricts an employee from a class of jobs out of concern for the plaintiff’s own safety and that of his co-workers, the employer’s actions cannot be deemed or found to be prohibited under the ADA, as amended or otherwise.


Recent Cases – DisabilityRecent Cases – Disability

Horgan v. Simmons, 2010 WL 1434317(N.D. Ill. 2010)Plaintiff was HIV positive, without AIDS. Upon becoming aware of plaintiff’s HIV status, plaintiff’s employer terminated his employment. The termination occurred after the ADAAA became effective.

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Relevant ADAAA provisions expressly state, “functions of the immune system”constitute a major bodily function. Additionally, an impairment that is in remission may constitute a disability if it substantially limits a major life activity when active. The ADAAA is intended to have broad application, and the question of whether an impairment is a disability should not require extensive or strict analysis.



Accordingly, the court denied the defendant’s motion to dismiss ADA claim on the basis that it is plausible, particularly under the ADAAA, that the HIV positive plaintiff could have an impairment that substantially limits a major life activity – the function of the immune system. In reaching this result the court also referenced the proposed ADA EEOC regulations, which were not yet final or adopted at the time of the court’s decision, but state that HIV is an impairment that will consistently meet the definition of disability.

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This case shows that certain medical conditions may be per se disabilities under the ADAAA, or if not per se, will consistently qualify as a disability under the ADA with little analysis.


Practical ConsiderationsPractical Considerations

Increased number of requests for accommodations and claims as the number of individuals covered under the ADA broadenedShifts focus from coverage to accommodation and access – More cases will survive summary judgment with the

focus on whether discrimination has occurred, as opposed to whether the individual has a disability under the ADA

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Practical ConsiderationsPractical Considerations

Review job descriptionsConduct a policy review and accommodations proceduresTrain your managers – Focus on the interactive

process and providing a reasonable accommodation

– Document!

About the PresenterAbout the Presenter

In her labor and employment law practice,Judy Yi focuses on how to manage and minimize workplace risks associated with multi-state and federal statutory compliance issues. Employers are kept informed by Ms. Yi’s counsel on virtually all employment related laws and regulations involving issues such as employment discrimination, collective actions, breach of contract, covenants not to compete, personnel policies, management training, protection of confidential and trade secret information, defamation and unfair labor practices.

Judy YiPolsinelli Shughart PC

Twelve Wyandotte Plaza

120 West 12th StreetKansas City, Missouri

64105816.360.4149

[email protected]

polsinelli.com

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The Americans with Disabilities ActThe Americans with Disabilities ActAnd the ADA Amendments Act of 2008And the ADA Amendments Act of 2008

[email protected] judy yi · wiccan religious beliefs in violation of title vii and the missouri...

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