I offered some practical tips for litigation. Plaintiffs should wave the Policy Guidance in employer's face. At least in comparatively liberal circuits courts often defer to the EEOC and might accept their strong presumption against disability-based exclusions. Shifting the burden of justification to the employer is also important. Otherwise, plaintiffs must contend with producing evidence of a discriminatory motive.
Defendants can sometimes make a clever argument.
Sometimes this argument will protect an exclusion. Applied to McGann , however, this approach doesn't help. So the employer then must challenge the position of the Policy Guidance or else try to defend the financial necessity of the exclusion. In the meantime, you should be aware of the controversy. Next we focused on the problem of retiree health care.