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Disability Discrimination

The National Law Journal
Monday, June 30, 2008

On June 25, almost 18 years after enactment of the Americans With Disabilities Act (ADA), the House of Representatives passed H.R. 3195, the ADA Amendments Act (ADAAA), by a 402‑17 vote. According to its drafters, the U.S. Supreme Court had flouted congressional expectations that the ADA would “‘provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,’”and establish a broad shield for its intended beneficiaries. The ADAAA, designed to reverse judicial inroads on the ADA, now awaits Senate action — and, one hopes, prompt approval by President Bush. Indeed, it is high time that Congress give back what the justices have taken away. In fairness, the court has not wholly ignored the ADA's expansive remedial intent; it has, for example, applied the act to state prisoners and people seeking access to courts. But as a result of grudging construction, the ADA's workplace provisions (Title I) fall far short of furnishing the protective umbrella envisioned by the act's architects.

The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more . . . major life activities,” or “a record of” or “being regarded as having such an impairment.” It forbids employment‑related discrimination “against a qualified individual with a disability”: one “who, with or without reasonable accommodation, can perform the essential functions” of the position in question. The drafters borrowed heavily from the Rehabilitation Act of 1973, which covers federal employees; that act had been interpreted to extend to all types of conditions and illnesses.

In Sutton v. United Airlines, 527 U.S. 471 (1999), as well as two companion cases, the court, defying legislative intent, held that the determination of whether a worker is disabled within the meaning of the ADA must take account of “mitigating measures.” (It also decided that an employee is not “regarded as” disabled if the employer views him or her as precluded from only a particular job — the one at issue.) Accordingly, a person with a serious impairment like heart disease, hypertension or deafness, who uses medication or a hearing aid to control its effects, is unprotected by the act. Following Sutton, lower courts have denied redress to people such as diabetic Stephen Orr, fired because he needed to take a half‑hour off to eat lunch and check his blood glucose levels, and epileptic James Todd, discharged after he suffered a seizure on the job although his condition was generally well‑controlled by medicine.

In Toyota Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184 (2002), a unanimous court stated that “disability” has to be “interpreted strictly to create a demanding standard.” Applying this approach, it held that to be substantially limited in performing manual tasks, a person “must have an impairment that prevents or severely restricts [him or her] from doing activities that are of central importance to most people's daily lives.” Thus, since Ella Williams could perform basic household tasks and attend to her personal hygiene despite having carpal tunnel syndrome and tendinitis, the court did not find her “disabled” — even though she could not do the assembly line job to which Toyota had transferred her from a former position.

Rulings create Catch‑22s

Yet the whole point of Title I was to enable individuals like Orr, Todd and Williams to function in the workplace! Its drafters meant to make employers grant necessary reasonable accommodations and cease acting on myths, fears, ignorance or stereotypes about the disabled. As construed, though, it creates Catch‑22s. First, the better you manage your impairment, the likelier an employer may permissibly discriminate against you since you fall outside the law's ambit. Second, if you meet the ADA's “demanding” standard for disability, you may well be found “[un]qualified” because you cannot fulfill the job's essential functions.

While not abandoning the substantial‑limitation‑of‑major‑life‑activities language (as it did when originally introduced), H.R. 3195 rejects the federal courts' stringent interpretation of this verbiage under both the disabled and “regarded as” headings. It also expressly discards the “mitigating measures” gloss of the Sutton trilogy (except as to “ordinary eyeglasses or contact lenses”) and Toyota's “demanding standard” for disability.

Opponents invoke a parade of horribles if the ADAAA is enacted: for instance, a flood of lawsuits by employees with colds demanding workplace accommodations. Suffice it to say that in several states and municipalities with even more generous laws (for example, New York City) neither courts nor businesses have crumbled. But individuals fairly deemed to be disabled do receive the opportunities they deserve — which the ADAAA would rightly extend to all such Americans.