United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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Defendant has the burden to show that the physical requirement of employment was an adequate measure of the individual's current capacity to work. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary for Employment Standards Administration, February 26, 1979, slip op. at 20, aff'd, 497 F. Supp. 1088 (D. Hi. 1980).

The employer has the burden of showing that accommodation would work undue hardship on the conduct of its business. OFCCP v. American Airlines, 79-OFCCP-2, ALJ Rec. Dec., June 30, 1980, slip op. at 10, aff'd, Deputy Under Secretary for Employment Standards, May 2, 1985.

The regulations place the burden of proof as to business necessity on the defendant. E.E. Black, Ltd. v. Donovan, No. 79-0132, 26 FEP 1183, 1184 (D. Hi. 1981).

The allocation of burdens set out in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), is inapplicable to cases under the Act where there is direct evidence of discriminatory intent. Id.

There is a rebuttable presumption that a discriminatee was employed to carry out the Federal contract as long as he was working in a site which was not totally segregated from the Federal contract site. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 34; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

A prima facie case of discrimination is made when it is shown that the employer is a Government contractor who refused to employ a qualified handicapped individual, solely on the basis of the handicap. OFCCP v. Ozark Air Lines Inc., 8O-OFCCP-24, ALJ Rec. Dec., December 7, 1982, slip op. at 9, aff'd on other grounds, Deputy Under Secretary for Employment Standards, June 13, 1986.

After a prima facie case has been made, the defendant has the burden of going forward to show that the standards for employment are bona fide occupational qualifications. Id.

Plaintiff did not establish that the defendant failed and refused to make a reasonable accommodation to the complainant. OFCCP v. Alabama Power Co., 8O-OFC-33, ALJ Rec. Dec., December 13, 1982, slip op. at 82.

Coverage was not established in this case for certain years since the only proof consisted of indirect evidence by way of general testimony and a showing that the railroad has a program in place designed to comply with the Act. OFCCP v. Missouri Pacific Railroad, 81-OFCCP-8, ALJ Rec. Dec., March 17, 1983, slip op. at 2, aff'd, Deputy under Secretary for Employment Standards, August 12, 1985.

Where jurisdiction is based upon a Federal statute, the plaintiff has the burden to plead and prove facts sufficient to establish jurisdiction. OFCCP v. Burlington Northern Railroad, 81-OFCCP-21, ALJ Dec. on Motions and Prehearing Order, April 8, 1984, slip op. at 4; Consent Decree, August 27, 1984.

Proof that an employer has medical guidelines which arbitrarily restrict epileptics to ground level work establishes a prima facie case of employment discrimination. OFCCP v. Ford Motor Co., 80-OFCCP-12, ALJ Rec. Dec., October 4, 1985, slip op. at 10, ALJ Supplemental Rec. Dec., March 20, 1987; Consent Decree, July 20, 1987.

Once a plaintiff has established a prima facie case, the employer has the burden of going forward and proving that the individual is not an otherwise qualified handicapped individual, or that the person's rejection from work was for reasons other than his handicap. Id. at 10-11.

Under 41 CFR 60-741.6(c)(2) the employer has the burden to establish that an individual's employment would have endangered himself or others. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, Deputy Under Secretary for Employment Standards, June 13, 1986, slip op. at 7.

Employer has the burden to establish that accommodation to the physical or mental limitations of the individual is not reasonable. Id. at 8.

Employer has the burden of establishing that the employee did not act with due diligence in mitigating damages. OFCCP v. Exide Corp., 84-OFC-11, ALJ Rec. Dec., April 28, 1986, slip op. at 13, aff'd, Acting Assistant Secretary for Employment Standards Decision and Final Order, April 30, 1991, slip op. at 4, vacated on other grounds, Exide Corporation v. Martin, C.A. No. 91-242 (E.D. Ky. 1992).

After plaintiff establishes a prima facie case of discrimination and shows the resulting damages, the defendant has the burden of producing evidence as to any alleged lack of diligence in mitigating damages by the discriminatee. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ's Rec. Dec., March 30, 1987, slip op. at 24; Consent Decree, December 10, 1991.

The shifting, tripartite burdens of proof established under Title VII, Section 501 and Section 504 apply to cases brought under Section 503. OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, ALJ Rec. Dec., September 30, 1986, slip op. at 17; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

To establish a prima facie claim, plaintiff must show that the complainant is a qualified handicapped person and the defendant utilized a physical job requirement which excluded the claimant from employment. Id.; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Once plaintiff has established a prima facie claim, the burden of proof shifts to the defendant who may rebut this inference by showing the physical requirement is job related and consistent with business necessity and safe job performance or by showing that the decision was based on prior poor performance. Id. at 17-18; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

If the defendant rebuts the prima facie case, the plaintiff must establish that the defendant's justification is based on misconceptions or is a pretext for a discriminatory motive. Id. at 18; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The Title VII standard of proof of retaliation is applicable to cases decided under the Rehabilitation Act. Id. at 21; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

To establish a prima facie claim of retaliation, the plaintiff must show: (1) that the claimant engaged in an activity protected by the Act; (2) that the defendant acted in a manner which adversely affected the claimant; and (3) that a casual connection existed between the claimant's protected activity and the defendant's adverse employment action. Id. at 21; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The burdens of proof to be applied in dual motive cases arising under the Rehabilitation Act are those enunciated in Dartey v. Zack Company of Chicago, 82-ERA-2, Secretary of Labor's Decision and Order, August 25, 1983, a case which arose under the Energy Reorganization Act of 1974, 42 U.S.C. §585 (1982). OFCCP v. Norfolk & Western Railway Co., 80-OFCCP-14, Associate Deputy Under Secretary Decision and Order of Remand, December 8, 1986, slip op. at 5, reversing and remanding, ALJ Rec. Dec., December 16, 1983, ALJ Rec. Dec. and Order on Remand, June 20, 1989, dismissal aff'd, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order, November 19, 1991.

The burdens of proof to be applied in a dual or mixed motive case are those enunciated in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1976). Id. at 6, reversing and remanding, ALJ Rec. Dec., December 16, 1983.

The burdens of proof set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), are inapplicable in dual or mixed motive cases. Id. at 6, reversing and remanding, ALJ Rec. Dec., December 16, 1983.

If the plaintiff proves by a preponderance of evidence that the protected conduct was a motivating factor in the employer's action, then the employer must prove by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Id. at 7, rev'g and remanding, ALJ Rec. Dec., December 16, 1983.

When there is an even balance of evidence as to whether the employee was discharged for legitimate or illegitimate reasons, the burdens of proof for a mixed motive case should be applied. Id. at 8, reversing and remanding, ALJ Rec. Dec., December 16, 1983.

In considering whether the employer's justification for taking the employment action was a pretext, ALJ can properly look to evidence presented as part of the prima facie case. Id. at 8, n. 3, reversing and remanding, ALJ Rec. Dec., December 16, 1983.

The plaintiff has the burden of showing that rejected applicants were capable, with reasonable accommodation if needed, of performing the job at the time of application. When plaintiff has established that applicants are qualified handicapped individuals, the defendant has the burden of rebutting this showing. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 5-6; Consent Decree, December 10, 1991.

When the plaintiff has demonstrated that the defendant has used physical job qualifications that tend to screen out qualified handicapped individuals, the defendant has the burden of proving that its job qualifications are "directly connected with, and

substantially promote business necessity and safe . . . performance." Id. at 18, citing Bentivegna v. U.S. Department of Labor, 694 F.2d 619, 622 (9th Cir. 1982) and E.E. Black v. Marshall, 497 F. Supp. 1088, 1103 (D. Hi. 1980).

Defendant's evidence that there is a possibility that persons with radiographic spinal anomalies will develop future chronic back problems was not sufficient to meet its burden of showing that those job qualifications, which rejected all applicants with those conditions, were job related and consistent with business necessity and safe performance. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 19; Consent Decree, December 10, 1991.

Since the contractor admittedly rejected the complainant because of her handicap, the issue here is not whether there was an intent to discriminate, but whether the contractor's qualification standard which does discriminate is justified as being job related and consistent with business necessity and safety. The Burdine burdens of proof are therefore inapplicable. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Decision and Order, June 7, 1988, slip op. at 18 n.9, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

Where an employer establishes the presence of the likelihood, seriousness and imminence of injury to a sufficient degree, the employer would meet its burden of proving job relatedness and consistency with business necessity and safe performance. Id. at 20; remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

The quantum of proof required to establish that a reasonable probability exists that a physical condition would affect job performance is inversely proportional to the degree of risk of injury inherent in the job if the applicant is unable to perform safely. As the risk to the general public from a major trucking operation is of major dimensions, the burden upon Yellow Freight to demonstrate the lawfulness of its job qualification of a back free from the complainants' defects is correspondingly lightened. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 54, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

It appears that regulation 41 CFR 60-741.6(c)(2) may have been written drawing on the disparate impact line of cases developed under Title VII. The employer would have the burden of showing, as it would under Title VII, that its weight lifting requirement which tended to screen out handicapped individuals, was job related. However, where the employer has expressly rejected an applicant because of his handicap, forcing the analysis of the case into the disparate impact mold may cause some confusion. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, slip op. at 15, n.5, dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.) reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

Where defendant's job qualification requirement excludes the complainant the issues are whether the complainant was a qualified handicapped individual, and if so, whether the defendant has met its burden of proof to show that its requirement was consistent with the safe performance of the job. Id. at 15.

The contractor has the burden of showing that transferring the complainant to another position to accommodate his or her impairment would be an unreasonable accommodation. OFCCP v. United Parcel Service, Inc., 87-OFC-17, ALJ Rec. Dec. and Order, March 22, 1989, slip op. at 18, rev'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Decision and Order, November 22, 1991.

It is the employer's burden to show that the complainant did not exercise reasonable diligence in finding other suitable employment. The employer may satisfy that burden only if it establishes that 1) substantially equivalent positions were available, and 2) the complainant failed to use reasonable care and diligence in seeking such positions. OFCCP v. WMATA, 84-OFC-8, Assistant Secretary for Employment Standards Dec. on Back Pay and Remand Order, August 23, 1989, slip op. at 4, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Under Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985), the burden is on plaintiff to establish, as part of the prima facie case, the existence of an impairment that substantially limits a major life activity. The burden then shifts to defendant employer to demonstrate that challenged criteria are job related and required by business necessity, and that reasonable accommodation is not possible. OFCCP v. Louisville Gas & Electric Co., 88-OFC-12, ALJ Rec. Dec. and Order, January 29, 1990, slip op. at 9 and 12, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Plaintiff must establish that employee with perceived lumbar lordosis was a qualified handicapped individual. Id. at 10, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

Contractor failed to gather sufficient information as required under Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985), to make a reasoned judgement on whether employee's perceived impairment (lumbar lordosis) prevented him from performing the essential requirements of the job without a reasonable probability of substantial harm to himself or others. Thus, contractor failed to carry its burden and establish that employee was not a qualified handicapped individual. Id. at 11, aff'd, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Administrative Order, January 14, 1992; Consent Decree, May 28, 1992.

To successfully raise a risk of future injury defense under Section 501, the employer must show a reasonable probability of substantial harm, not an elevated risk. The standard under Section 503 is the same. OFCCP v. Keebler Co., 87-OFC-20, ALJ Rec. Dec. and Order, March 4, 1991, slip op. at 14, remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

The Secretary of Labor has adopted the two-part test for dual motive discharge cases set forth in Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977): once the plaintiff has shown that the protected activity played a role in the employer's decision, the burden shifts to the employer to persuade the court by a preponderance of the evidence that it would have discharged the plaintiff even if the protected activity had not occurred. Id. at 19; remanded on other grounds, Assistant Secretary Decision and Order of Remand, December 21, 1994; ALJ Recommended Decision and Order, July 20, 1995; affirmed, Administrative Review Board Final Decision and Order, September 4, 1996; Motion for Reconsideration pending.

The burden is on the contractor to show that the claimant has failed to exercise reasonable diligence in mitigation. To meet this burden contractor must show that 1) there were substantially equivalent positions which were available; and 2) the claimant failed to use reasonable care and diligence in seeking such positions. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 19, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

In order to invoke the protection of the Rehabilitation Act, complainant must demonstrate that he is a qualified handicapped individual within the meaning of 41 CFR 60-741.2. OFCCP v. Norfolk and Western Railway Co., 90-OFC-1, ALJ Rec. Dec. and Order, June 26, 1991, slip op. at 29-30; Consent Decree, November 22, 1991.

OFCCP has burden of showing that not only does complainant's handicap prevent him from performing the singular demands of a particular job, but that it also forecloses generally the type of employment involved, assuming that all employers offering the job would use the same requirement or screening process. Id. at 30; Consent Decree, November 22, 1991.

OFCCP met its burden of proving that complainant's monocular condition substantially limits his ability to find work as a brakeman/conductor or similar employment where contractor rejected complainant because of his monocular condition and it must be assumed that all employers offering the job would reject him on that basis. Ibid.; Consent Decree, November 22, 1991.

The burden is on the contractor to show that the claimant has failed to exercise reasonable diligence in mitigation. To meet this burden contractor must show that 1) there were substantially equivalent positions which were available; and 2) the claimant failed to use reasonable care and diligence in seeking such positions. Id. at 38; Consent Decree, November 22, 1991.

Under the dual motive discharge rule, once OFCCP has made out a prima facie case, the contractor must produce evidence of legitimate non-discriminatory reasons for its adverse action. The trier of fact may then conclude that 1) OFCCP has failed to meet its burden of proving discrimination; 2) the contractor's proffered reasons are pretextual; or 3) the contractor was motivated by both legitimate and illegitimate reasons. OFCCP v. Norfolk and Western Railway Co., 90-OFC-8, ALJ Rec. Dec. and Order, July 9, 1991, slip op. at 21, stipulated dismissal, September 30, 1991.

In a dual motive case, if the trier of fact concludes that the contractor was motivated by both legitimate and illegitimate reasons, the contractor has the burden to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the pretextual conduct. Ibid.

Plaintiff has the burden of establishing the existence of an impairment that substantially limits a major life activity as an element of plaintiff's prima facie case. If plaintiff fails to establish a prima facie case, it is unnecessary to address the issue of reasonable accommodation. OFCCP v. United Parcel Service, Inc., 88-OFC-7, ALJ Rec. Dec. and Order, August 1, 1991, slip op. at 8, stipulated dismissal, Special Assistant to the Assistant Secretary for Employment Standards Notice of Case Closing, January 14, 1992.

In order to make out a prima facie case of discrimination under Section 503, OFCCP must show that (1) an individual with handicaps, (2) who was "qualified," (3) for a job covered by the Act, (4) was denied an employment opportunity or advantage, (5) on the basis of his handicap. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Denying Plaintiff's Motion to Deem Admitted Requests for Admission and for Summary Judgment, October 24, 1991, slip op. at 5; Consent Decree, June 2, 1993.

OFCCP's theory of the case (i.e., that contractor's medical classification system resulted in legal injury to the class of individuals who, based on their medical conditions, were classified according to the system) is inconsistent with case-law interpreting Section 503 because the existence of the medical classification system does not establish class members' handicap status or their qualifications for jobs; determinations of handicap status and job qualifications cannot be made in the abstract. Id. at 6-7; Consent Decree, June 2, 1993.

In a dual motive case, an "inference" of discrimination is not sufficient to shift the burden to the employer to show that it would have discharged complainant even if he had not been handicapped. OFCCP v. Norfolk and Western Railway Co., 80-OFCCP-14, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order, November 19, 1991, slip op. at 4.

In a dual motive case, the burden shifts to the contractor to show that it would have discharged complainant even if he had not been handicapped only after trier of fact concludes that the contractor acted for a legitimate reason and because the employee was handicapped. Ibid.

Where it is determined that adverse action resulted from both legal and illegal motives, Mt. Healthy v. Doyle, 429 U.S. 274 (1977) applies, and the employer can avoid liability only by establishing that it would have made the same decision because of legitimate management reasons. Ibid.

In an individual discrimination case, plaintiff has the burden of establishing a prima facie case by showing that 1) complainant was a handicapped individual who was qualified for the job; 2) that she applied for the job (or here, sought to return to her former position after disability leave); and 3) that she was rejected for that position. OFCCP v. United Parcel Service, Inc., 87-OFC-17, Deputy Assistant Secretary for Employment Standards Final Dec. and Order, November 22, 1991, slip. op. at 8.

Because OFCCP failed to show that complainant sought to return to her former position after her disability leave or that contractor rejected her for that job, OFCCP failed to establish a prima facie case of handicap discrimination. Ibid.

Assuming that plaintiff did establish a prima facie case, the facts show, at most, that there was a serious misunderstanding between the complainant and the contractor about how to meet the heavy lifting duties of the job; plaintiff has not proven by a preponderance of the evidence that the contractor discriminated against complainant because of her handicap. Ibid.

Because OFCCP failed to show that complainant applied for a transfer to an available position and that contractor rejected her for that position, OFCCP failed to establish burden of proof and production concerning complainant's request for a transfer. Id. at 11.

Assuming OFCCP established that complainant applied for a transfer to an available job and was rejected, OFCCP failed to show that the complainant was rejected because of her handicap, in light of evidence that other employees, who must be presumed not to have been handicapped, had been denied such transfers in the past. Id. at 11-12.

In order to prevail in a Section 503 case, OFCCP must establish a prima facie showing that complainant was an "otherwise qualified handicapped" person and was rejected for employment under circumstances which give rise to an inference that his rejection was based solely on his mental or physical handicap. Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992), slip. op. at 11.

If OFCCP establishes a prima facie case of handicap discrimination, the contractor has the burden of going forward and proving either that the complainant was not an "otherwise qualified handicapped" person or that he was rejected for reasons other than his mental or physical handicap. Ibid.

Burdens of proof and production in Title VII cases apply to individual handicap discrimination cases. OFCCP v. American Commercial Barge Line Co., 84-OFC-13, Special Assistant to the Assistant Secretary for Employment Standards Final Dec. and Order, April 15, 1992, slip op. at 8, aff'g ALJ Rec. Dec., September 30, 1986, slip op. at 21.

The burden of establishing a prima facie case is not an onerous one. Id. at 9.

To establish a prima facie case of discriminatory discharge, plaintiff need only show that he was discharged under circumstances which give rise to unlawful discrimination. Ibid.

Once plaintiff has established a prima facie case, the defendant has the burden of articulating some legitimate non-discriminatory reason for the employee's discharge. Ibid.

Once defendant offers a legitimate non-discriminatory reason for the discharge, the burden of production shifts back to the plaintiff to show that the reasons articulated by the defendant were pretext and that the true motivation of the discharge was an intention to discriminate. Ibid.

Plaintiff bears the ultimate burden of persuading the court that the defendant intentionally discriminated against him. Ibid.

Contractor met its burden of demonstrating that manic depressive employee's termination was for a non-discriminatory reason, i.e., his failure to release to his employer his psychiatric records held by the VA hospital. Id. at 14.

OFCCP failed to show that manic depressive employee actually and seriously re-applied for an available position after he was terminated. Thus, the fact that the contractor did not re- employ him even after he released his medical records did not establish that the stated reason for discharge (failure to release medical records) was a pretext for discrimination. Id. at 15-16.

OFCCP has initial burden of demonstrating that the complainant is a handicapped individual under 29 U.S.C. §706(7)(B). OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 12, affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

It was the contractor's burden to prove that employee's inability to stoop and bend is so essential to his work to be deemed a bona fide occupational qualification or a business necessity for all jobs in employee's job classification and that contractor was thereby unable in good faith to accommodate employee's limitations. Id. at 14; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

It is the contractor's burden to demonstrate a good faith effort to adjust its legitimate needs to a handicapped position, which does not, if fairly viewed, prevent the employee from doing the job. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Once plaintiff establishes a prima facie case of discrimination and damages that arose therefrom, the burden of production shifts to the employer to show that the complainant had interim earnings which reduce the back pay owed or that the claimant failed to mitigate damages. Id. at 16; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

On the issue of mitigation, contractor has the burden to demonstrate that there was a substantially equivalent position available to the complainant, one that was virtually identical in the terms of compensation, status, and promotion. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The burden of proof in Section 503 risk of future injury cases is the same as in cases arising under Section 504 of the Rehabilitation Act. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order, April 3, 1991, slip op. at 8, n.16, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor should bear the burden of showing that sanctions would so adversely affect their business as to threaten their existence. OFCCP v. Disposable Safety Wear, Inc. (Executive Order, Section 503 and VEVRA), 92-OFC-11, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992, slip op. at 11.

In order to successfully show that an employee has been unlawfully discriminated against in violation of Section of 503, it must be established that: 1) the alleged violator is an employer covered under the Act; 2) the employee is handicapped; and 3) the employee is qualified for the position with or without reasonable accommodation. The contractor then has the opportunity to demonstrate that the accommodation would pose an undue burden on the contractor's business. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 22; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

When a contractor implements job qualifications which tend to screen out qualified handicapped individuals, the contractor has the burden of showing that the requirements are related to the job and are consistent with business necessity and the safe performance of the job. Id. at 22; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11.

If risk of future injury is the contractor's defense, the contractor must show that employment of the handicapped individual poses a reasonable probability of substantial harm in light of the individual's work history and medical history. Ibid.; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 10-11.

Once it is determined that complainant is a qualified handicapped individual, the next inquiry is whether the contractor's job qualifications tend to screen out handicapped individuals, and if they do, the contractor must demonstrate that the requirements are job-related and are consistent with business necessity and the safe performance of the job. Id. at 32; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11.

Contractor failed to establish that its blanket exclusion of recovering alcoholics and people with a history of drug abuse from designated positions is consistent with business necessity and the safe performance of the job. Id. at 32-38; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11.

Contractor (Exxon) failed to establish that the consequences of the Valdez accident (the criminal charges brought against the company, the negative public perception of the company, and the public's perception that the accident was caused by a recovering alcoholic) justified its blanket exclusion of all recovering alcoholics from safety sensitive positions. Id. at 33-34; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 11,23.

Contractor failed to establish that its former drug and alcohol policy, which did not automatically exclude recovering alcoholics from safety sensitive positions, was insufficient to prevent risk of injury in those jobs. In the absence of evidence that the former policy was ineffective, contractor's across-the-board exclusion of recovering alcoholics from safety sensitive jobs cannot be found to be reasonable, or consistent with business necessity and safe performance of the job. Id. at 35; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996.

ALJ refuses to uphold contractor's blanket exclusion of recovering alcoholics from certain designated positions because contractor failed to show that all or substantially all recovering alcoholics are unable to perform the jobs in question without a reasonable probability of substantial harm. Id. at 40-41; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 14.

In an individual discrimination case under Section 503, the plaintiff has the burden of establishing a prima facie case by showing that the complainant was a handicapped individual who was qualified for the job, applied for the job, and was rejected. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 9; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

In determining if a handicapped individual is qualified to do a job, the employer must gather all relevant information regarding work history and medical history. Id. at 9-10; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Where a contractor applies physical or mental job qualification requirements which tend to screen out qualified handicapped individuals, the job requirements must be job related and consistent with business necessity and safe performance of the job. The contractor has the burden of demonstrating compliance with this standard. Id. at 11; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

In defense of a showing of a prima facie case of discrimination, the employer has the burden of producing evidence that the alleged disparate treatment was motivated by legitimate nondiscriminatory reasons. OFCCP v. Yellow Freight System Inc., 89-OFC-40, Administrative Law Judge Recommended Decision and Order, May 17, 1994, at 27; Consent Decree, February 29, 1996.

Under circumstances in which both legitimate and prohibited motives are found for an employer initiating adverse action against a worker, the employer has the burden of proof to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Id. at 28.

Cissell made no attempt to accommodate the complainant when it strictly adhered to its "no light duty" policy. Furthermore, Cissell had the burden of proving that its justification for refusing to accommodate the complainant, (1) insisting that each of its employees must be available to perform any job in the department to which they are assigned, and (2) asserting that every job in the welding and spot welding departments "require[s] some stooping or bending," which complainant was unable to do, were more than pretextual. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 8; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell made no showing that it had fulfilled its affirmative obligation under Section 503 and the regulations to gather all relevant information about the complainant's condition and the job duties he was capable of performing, and to make reasonable accommodations to his limitations unless to do so unduly burdened his business. Id. at 9; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

[B]ecause a particular function is found to be essential does not relieve the . . . employer of its burden of showing that the handicapped individual cannot be reasonably accommodated. Id. at 11; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Even where a physical requirement is an essential function of the overall position, the employer has the burden to show that the complainant could not be accommodated in a job within the position because not every accommodation related to an essential function necessarily eliminates that function. Id. at 12; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell had not shown that within the job classifications of spot welder or production welder it would have imposed an undue hardship for the company to assign the complainant jobs not requiring constant bending and stooping. Id. at 12; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell had the burden of demonstrating how accommodating the complainant would interfere with the rights of other employees under the collective bargaining agreement. Absent such a showing, the company's concern that accommodating the complainant would cause problems in its relationship with the union was mere speculation and insufficient to show undue hardship. Id. at 13-14; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Once discrimination has been proven, the employer has the burden of proving that the employee did not exercise reasonable diligence in finding other suitable employment, and the employer may satisfy that burden only by showing (1) that there were substantially equivalent positions available and (2) that the employee did not use reasonable care and diligence in seeking such positions. Id. at 15-16; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The Assistant Secretary held that "[a] substantially equivalent position `must afford the [employee] virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status.'" Id. at 16; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell failed to meet its burden in opposition to an award of back pay by offering evidence that substantially equivalent positions were available, or that any vacancies existed for welders in the Louisville Kentucky area during the relevant period. Id. at 16; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The degree of diligence of the employee cannot be considered if the employer has not carried its burden that substantially equivalent positions were available. Id. at 16-17; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell had the burden of demonstrating compliance as ordered within a time certain or suffer appropriate sanctions. "Nothing so focusses the mind and stirs the will to act as an immediate threat to one's livelihood." Id. at 21; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The fact that invoices, corporate records, and packages containing location and date codes were no longer available to OFCCP when it conducted its discovery does not make OFCCP's burden impossible or unworkable, nor license OFCCP to use creative measures to meet its burden. OFCCP v. Keebler Company, 87-OFC-20, Administrative Review Board, Final

Decision and Order, September 4, 1996, at 4; Motion for Reconsideration pending, Administrative Review Board.