The Supreme Court Is
Siding With Employers and Narrowing the Reach of the
Americans With Disabilities Act. Is That What its Drafters Had
William C. Smith, ABA Connection - ABA Journal, August 1, 2002
Article submitted by Brunhilde Merk-Adam.
It is not very often that a
U.S. Supreme Court justice steps off the bench
to critique specific acts of Congress.
But Justice Sandra Day O'Connor did
just that earlier this year when she took aim at the legislative
produced the Americans With Disabilities Act, the 1990 statute barring
discrimination against disabled people
in employment, public accommodations
and public transit.
In a March 14 speech at the
Georgetown University Law Center, O'Connor
cited the ADA as "an example of what
happens when the sponsors are so eager to
get something passed that what passes
hasn't been as carefully written as a group
of law professors might put together. So it
leaves lots of ambiguities
and gaps and things for courts to figure out."
It could hardly have been coincidence
that O'Connor made those remarks in the
midst of a term during which the ADA
received much of the supreme court's
The speech also appeared to
signal the court's intention
to remedy perceived ambiguities in the scope of the act,
especially as it applies in the workplace
setting. The justices decided four
major ADA cases during the past term. The
rulings have pleased
employers and corporate counsel, and distressed disabled
workers and their advocates. In January, the court
limited the ADA's coverage of
employees with carpal tunnel syndrome and other work-related
impairments. Toyota Motors v.
Williams, 122 S. Ct. 681 (Jan. 8).
months later, the court ruled that ADA protections
of disabled workers seldom trump the
seniority rights of co-workers. US Airways v. Barnett,
122 S. Ct. 1516
(April 29). In June, the court closed out its term by
upholding an Equal Employment
Opportunity Commission regulation permitting
employers to reject job applicants with
medical conditions that might be exacerbated
by workplace conditions. Chevron U.S.A. Inc.
v. Echazabal, No. 00-1406 (June
10). The court also ruled that
municipalities are not subject to punitive
damages in private ADA suits. Barnes v. Gorman, No. 01-682 (June
It's too early to tell
whether the 2001 term will go down in supreme court
history as the "disabilities act
term," as O'Connor predicted in her speech
at Georgetown. It is apparent, however, that the court's recent
decisions reinforce the
overwhelmingly pro-employer trend in judicial rulings under
the ADA's Title I, which deals with
employment discrimination. In 2001,
employers prevailed in 95.7 percent of the federal court
reached the merits of claims by workers or job applicants under Title
I, according to an annual
survey conducted by the Mental and Physical
Disability Law Reporter, an ABA publication. Employers also
prevailed in 73.3 percent of Title I
cases that were fully resolved in EEOC
administrative decisions, according to the
Reporter, published by the Commission on
Mental and Physical Disability Law
A legislator who helped
shepherd the ADA through the House of
Representatives maintains that the poor track record for workers is
evidence that the supreme court has
adopted an unduly strict interpretation of the
statute. In an opinion piece published in January in the
Washington Post, Rep. Steny H. Hoyer,
D-Md., wrote that the legislation's sponsors
intended it to be applied broadly, covering
not only people who had genuine trouble
functioning normally but people whose employers might wrongly
as being substantially impaired.
On the other hand, Susan
Norton Potter, an attorney in Coral Gables, Fla.,
who represents employers, says the
court's approach is just right. The court
is enforcing exactly what Congress passed,
says Potter, a co- hair
of the Employment and Labor Relations
Committee in the ABA Section of Litigation.
It's not an affirmative action statute, and
it doesn't entitle claimants to
a particular job.
Whatever Congress intended
when it passed the ADA, it is the supreme
court's current reading of the act
that is having the most impact on its scope and
remedies. Businesses, workers, lawyers and scholars are all
watching the court as it maps the
still uncertain boundaries of the ADA.
THE LEGAL MEANING OF
Much of the ADA's
employment case law focuses on the statute's definition
of disability: "a physical or mental
impairment that substantially limits one
or more of the major life activities." The law protects
employees and job
applicants who have a "record of" or who "are regarded as" having such
an impairment. The
ADA's drafters lifted this definition from
the Rehabilitation Act of 1973
Section 504, which bars discrimination
against disabled people by
recipients of federal funds. When the
ADA was enacted, advocates for the disabled
believed that this three-prong definition covered all the important
bases, says Arlene Mayerson, a lawyer
with the Disability Rights Education Fund
in Berkeley, Calif.
"Prong one incorporates a
functional approach that looks to the
characteristics of the individual," she says.
"The second and third prongs"
~record of" and ~regarded as
"incorporate a social relations approach that
looks to the negative reactions to an impairment rather than
the extent of the impairment itself." Thus,
says Mayerson, even if workers or job
applicants were not substantially limited by their
disabilities, they still
should be protected from adverse treatment in the workplace
because of their
real or perceived impairments.
The relatively scant
litigation under section 504 of the act rarely
addressed the definition of disability,
focusing instead on whether the
plaintiff was qualified for the job. The ADA's broader reach in the
workplace made it a more visible
target for corporate counsel, says Mayerson.
Employers often argue that particular
impairments do not satisfy the law's
definition of disability, hoping to knock out ADA claims before
they get to a jury.
"The courts' receptiveness
to [employers] arguments on disability was
wholly unanticipated and staggering,"
says Mayerson, who estimates that fewer
than 5 percent of ADA lawsuits
survive the summary judgment stage. Much
interpreting the ADA's definition of disability reflects the
traditional view of the "truly
disabled" as people in wheelchairs, or those with
missing limbs or sensory impairments,
says Deirdre M. Smith, a lawyer in Portland,
Maine, who is a member of the ABA Commission on Mental and
Physical Disability Law.
But the typical ADA
plaintiff has more common conditions like back
problems, repetitive stress injuries
or psychological impairments, says Smith.
What she terms a "flood of marginally
sympathetic plaintiffs" has skewed the
case law on the definition of
disability as judges tried to limit the ADA to
disabled workers and job applicants
deemed to be deserving of special
For several years after the
law's enactment, the supreme court seemed
content to let the lower courts develop the
definition of disability under the ADA. The
justices made their first foray into the area in 1998,
ruling that asymptomatic HIV
infection is covered by the ADA since it limits the
"major life activity" of
reproduction. Bragdon v. Abbott, 524 U.S. 624.
The court soon dispelled any hopes that Bragdon might
foreshadow an expansive view of
disability. In what's called the Sutton trilogy "three
decisions issued June 22, 1999"the court ruled that a
plaintiff's impairment must be
evaluated on an individualized basis, taking
medical treatments, corrective devices and other measures that
effects of the disability.
Applying this standard, the
court rejected the ADA claims of twin sisters
who weren't hired as commercial
pilots because of their poor vision. The
court determined the sisters' nearsightedness was correctable with
contact lenses and noted that the
airline still regarded them as fit for certain
pilot positions. Sutton v. United Air
Lines, 527 U.S. 471. The court also ruled
against a truck driver whose hypertension was controlled by
medication, in Murphy v. United Parcel Service, 527 U.S. 516,
and against another trucker who was able to
naturally compensate for his monocular
vision, in Albertsons Inc. v. Kirkinburg, 527 U.S. 555.
This term, the supreme court
continued cutting back on ADA-covered
disabilities in Toyota v. Williams, a case relevant to
millions of workers at factory
assembly lines and office computer keyboards who are at risk
Ella Williams developed
carpal tunnel syndrome while working at a Toyota
plant in Kentucky. She filed an ADA
complaint after the company allegedly
refused to reassign her to a less physically demanding position.
The 6th U.S. Circuit Court of Appeals at Cincinnati ruled that
Williams satisfied the ADA definition of
disability due to limitations on the
"major life activity" of manual
labor. The court found that Williams was
substantially limited in her ability to grip
tools and perform repetitive work with hands
and arms extended at shoulder level. The
supreme court reversed in a unanimous
opinion written by Justice O'Connor.
Circuit erred, she wrote, by focusing
on Williams' "inability to perform manual
tasks associated only
with her job," rather than determining whether she is
unable to perform the variety of
tasks central to most people's daily lives.
Job-specific manual tasks
are not necessarily critical outside the
workplace, O'Connor wrote. In determining
whether physical impairments constitute
disabilities under the ADA, O'Connor explained, courts should
determine whether the claimant is substantially limited in
performing "manual tasks of central
importance to people's daily lives," such as
household chores, bathing and brushing one's teeth.
The narrow interpretation of
disability in Toyota and the Sutton trilogy
shows the court's concern about the ADA's potentially vast reach,
C. Rahdert, a law professor at Temple University in Philadelphia. The
court is restricting the
definition of disability under the ADA to promote what
a majority of the justices consider
the law's true aim, posits Rahdert. "The
court is trying to conform the ADA to a model of civil rights
legislation [by] protecting a
defined minority group from outright discrimination
without inflicting undue harm on others," he says. This
approach is true to
the statute's language and intent, says Potter, the ABA
co-chair. "The ADA requires an
individualized claim, unique to the
plaintiff, showing a substantial limitation of a major
life activity,"she says.
But Scott C. Burris,
another Temple law professor, considers the supreme
court's strict view of disabilities
covered by the ADA to be both formalistic
and uninformed by the act's legislative history and prior
practice under section 504 of the
Rehabilitation Act. Burris says lower courts
following Toyota and the Sutton trilogy may
turn away precisely the workers the ADA was
designed to protect: people with disabilities who can
do the job with reasonable
accommodations, but who don't get hired because of
unfounded stereotypes. "It's a
catch-22," says Burris. You're not
considered disabled unless you're too
disabled to be qualified to work. This
is not simply a hypothetical situation, says Mayerson, who
recalls representing an ADA claimant with a
congenital amputation. The client
functioned so well with a prosthetic device that a court found he was
not disabled under the "mitigating measures"
standard set forth in Sutton.
he was rejected by the employer because of the prosthesis,"
says Mayerson. So, go figure.
Christopher Collins, a senior counsel
at Manhattan's Proskauer Rose who represents
employers, dismisses this catch-22 critique.
"To be covered under
the ADA, you have to be both qualified and disabled at the same
time, but that's what Congress had in mind
when it passed the statute," he says.
Whatever Congress meant, the court's recent
pronouncements on what the ADA means by
"disability" are prompting counsel on both sides
of cases to do more homework on
claimants' physical or mental impairments.
"It's clear that mere labels of a person's
medical condition are not outcome
determinative" says Kim Ebert of Ogletree, Deakins, Nash,
Smoak & Stewart in
Indianapolis, who represents employers. The Sutton trilogy
makes clear the importance
of solid information on the severity of a plaintiff's alleged
impairments, he says, and employers are focusing
discovery on medical treatments,
corrective devices and other mitigating factors that may take
the disabilities outside the ADA's
After Toyota, Collins says,
many ADA employment cases will hinge on
whether plaintiffs impairments
substantially restrict their daily lives, not just
their activities on the job. Thus, individuals with ailments
caused and exacerbated by work
activities "carpal tunnel syndrome,
stress-related disorders, back problems
and the like "must be prepared to
prove that these conditions adversely affect
their lives after quitting time.
If an employee or job
applicant is found to be disabled within the
definition of the ADA, the employer must
provide a "reasonable accommodation" to the
individual's disability "unless the employer
shows that an
accommodation would cause it undue hardship.
questions are what send employers to lawyers,
says Smith. They are confronted
by a doctor's note saying an employee has X
illness, so they can't do Y activity, and the employer has to
provide X accommodation.
Smith tells her business
clients to presume first that their employee has
an ADA-covered disability and
seriously consider whether an accommodation is
feasible. Businesses can avoid most ADA litigation if
disabled workers or applicants see
that management is taking their situation seriously, says
Smith. Even if these efforts don't
resolve the matter, an employer's good-faith
attempt at accommodation will improve its
chances of defending an
ADA claim down the line, she says.
In April, the supreme court
provided some guidance on how far businesses
must go to accommodate a disabled worker.
After injuring his back
while working at San Francisco International
Airport, US Airways employee Robert Barnett
could not continue working as a
baggage handler. He was temporarily reassigned to a less
physically demanding mailroom position.
Within a few months, though, Barnett lost
that job to a co-worker with more
seniority. He sued US Airways for refusing to
make an exception to its seniority system to accommodate his
disability. Writing for a 5-4
majority in US Airways v. Barnett, Justice Stephen G.
Breyer upheld the airline's action,
noting that an established seniority system
"provides important employee benefits by creating, and
fulfilling, employee expectations of
fair, uniform treatment." Thus, the majority
concluded, accommodating a disabled worker
at the expense of co-workers seniority
rights would not ordinarily be reasonable.
Seniority rights will trump ADA protections
"in the run of cases," the court
held. This presumption may be overcome by
"special circumstances," however,
such as a showing that the employer has made frequent
exceptions to favor
Experts predict more
litigation on the special circumstances that may
warrant accommodating a disabled
worker at the expense of the seniority
rights of co-workers. "It's pretty clear that seniority systems
collective bargaining agreements are protected from challenge,"
Collins says. In cases involving employer-
imposed seniority systems, though,
Barnett at least gives plaintiffs ample
grounds for discovery on deviations and
exceptions to the policy, he says.
The supreme court provided further guidance on how far employers
must go to
accommodate disabled employees in Chevron v. Echazabal.
Mario Echazabal sued
Chevron after the company refused to hire him when a
physical exam revealed he suffered
the effects of hepatitis C, which could be
aggravated by exposure to toxins at the refinery where he
was seeking a job. The justices ruled
unanimously that employers do not violate the ADA
when they refuse to hire people who
they reasonably believe would be harmed
at the workplace. The ruling overturned a
decision by the 9th U.S. Circuit
Court of Appeals based in San Francisco.
The holding expands the
scope of the ADA's "direct threat defense
"under which employers may counter
disability claims by showing that an employee
poses a significant risk to the health or safety of others that
eliminated by reasonable accommodation "to
situations in which the risk extends to the
disabled employee or job applicant.
Some employment lawyers say the Echazabal decision will give
power to make decisions that could make it harder for disabled workers
to get jobs,
especially in blue-collar fields. "It gives
employers a license to say,
~I know what's best for you," says Gary Phelan of West
who wrote an amicus brief for the National Employment Lawyers
Association. But Stephen M.
Shapiro, a Chicago attorney who represented Chevron before
the supreme court, discounts those concerns.
He says the justices took great
pains to say that there has to be individual consideration of
an employee in a
particular job. Employers are not invited to adopt broad
generalizations about employees with
More litigation on other
reasonable accommodation issues appears likely.
Ruth Colker, a professor at Ohio
State University College of Law in Columbus,
says one unsettled question that could end up before the
supreme court is whether employers
may be required to engage in an "interactive process"
claimants to discuss reasonable accommodations. EEOC regulations, 29
CFR 1630.2(o)(3), provide that
employers may have to initiate "an informal,
interactive process" with qualified disabled individuals to
precise limitations resulting from the disability and the potential
reasonable accommodations that could
overcome those limitations. Federal appeals
courts are split on the issue. The 11th U.S. Circuit Court
of Appeals at Atlanta eschewed an
interactive process requirement in Willis
v. Conopco Inc., 108 F.3d 282 (1997).
But the 9th Circuit at San Francisco
characterized it as a 'mandatory' and 'continuing' obligation
in McAlindin v.
County of San Diego, 192 F.3d 1226, cert. denied, 120 S. Ct. 2689
The 3rd Circuit and the 8th
Circuit at St. Louis found that the employer's
failure to interact may preclude
summary judgment. Taylor v. Phoenixville
School District, 184 F.3d 296 (3rd Cir. 1999); Cannice v. Norwest
189 F.3d 723 (8th Cir. 1999). The 7th Circuit at Chicago has found
that an employer who shows
that no reasonable accommodation is possible need not
engage in an interactive process. Rehling v. City of
Chicago, 207 F.3d 1009
A concurring opinion in
Barnett indicates that at least one supreme court
justice is interested in the issue.
Justice John Paul Stevens noted that the
court's remand did not disturb the 9th Circuit's "correct"
holding that "there was a triable issue of
fact with respect to whether [US Airways]
violated the statute by failing to engage in
an interactive process" on potential
MEASURING THE LAW'S
When the first president
bush signed the ADA into law in July 1990, he
said the occasion heralded a new day
when every man, woman and child with a
disability can now pass through once closed doors into a bright
new era of equality, independence and
Statistics suggest that the
ADA has had somewhat mixed success in
achieving that goal. A Census Bureau
report on the employment of people with
disabilities from 1991 to 1997 revealed a slight drop in
overall unemployment among disabled adults
ages 21-64 but a rise in the jobless rate
in some categories, such as those
with severe hearing problems.
representing clients on both sides of the issue say
the statistics belie the law's true
impact in the workplace. "Despite the
judicial setbacks," says disability rights lawyer Mayerson, "the ADA
has changed the American landscape and
inserted disability into the national
dialogue in a way that was unimaginable two
decades ago." Employer attorney Ebert sees
similar benefits from the perspective of
employers. "The ADA has made employers more sensitive to needs of
disabled applicants and employees,"
he says. "They know that it is
counterproductive to throw a person out the
door when an accommodation may keep them in
the work force."