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 Article of Interest - ADA and Section 504

Drawing Boundaries

The Supreme Court Is Siding With Employers and Narrowing the Reach of the Americans With Disabilities Act. Is That What its Drafters Had in Mind?

by  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 effort that 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 attention.


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).


Three 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 17).


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 cases that 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 perceive them 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.




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 case law 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 protection.


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 ADA employment decisions issued June 22, 1999"the court ruled that a plaintiff's impairment must be evaluated on an individualized basis, taking into account medical treatments, corrective devices and other measures that mitigate the 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 for repetitive stress disorders.


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.


The 6th 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, says Mark 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 employment committee 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.


"But 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 coverage.


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.


Reasonable accommodation 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 nondisabled workers.


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 embodied in 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 cannot be 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 employers undue 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 Hartford, Conn., 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 disabilities.


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" with ADA 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 identify the 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 (2000).


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 Bank Iowa, 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 (2000).


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 accommodations.




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 freedom.


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.


Nevertheless, lawyers 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."


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