Selected Case Law Under ADA:
Karraker v. Rent-A-Center, No. 04-2881 (7th Cir. June 14, 2005)
This case involves a battery of non-physical tests required of employees wishing to secure a promotion. As part of the testing process, employees were required to take the Minnesota Multiphasic Personality Test (MMPI). The MMPI can measure depression, hysteria, paranoia, and other psychiatric disorders, along with personality traits that might be used to see whether an employee worked well in groups. Any promotion aspiring employee of Rent-A-Center who had more than 12 weighted deviations was not considered for promotion. The Karrakers, who had more than 12 weighted deviations, and were thus not promotoed, challenged this testing as being in violation of the ADA. The court stated that at the heart of the case was the issue of whether or not the MMPI fit the ADA definition of a medical exam. After reviewing EEOC giudelines, the court decided that because the test was designed, at lest in part, to reveal mental illness, and was being used to hurt employment prospects, it should be categorized as a medical examination, and thus its use in this context was a violation of the ADA.
For more on this see The June Wisconsin Law Journal article on this case, and the Keller and Heckman LLP Employment Law Alert.
Access Now, Inc. v. Southwest Airlines Company (No. 02-16163) (11 Cir.) (Sept. 24, 2004)
In a decision that is useful mainly for its summary of the split in the circuits on the question of the application of Title III of the ADA to websites, the 11 Circuit upheld the district court's grant of a motion to dismiss under the ADA. The plaintiffs' district court claim that Southwest Airlines failure to maintain its website in a manner accessible to those with visual disabilities was denied on the ground that southwest.com is not a place of public accommodation within Title III of the ADA. Having failed in this argument at the lower court level, the plaintiffs refashioned the case on appeal, arguing that Southwest Airlines (not the web page) is a travel service under the ADA. Noting that airlines are specifically excepted from Title III of the ADA (and instead are covered under the Air Carriers Access Act) the Court declined to address issues raised for the first time on appeal. The 11th Circuit Court of Appeals did note that whether a web site is a place of public accommodation covered by Title III is a question of substantial public interest, in that it concerns the application of "one of the landmark civil rights statutes in the country to a major new form of media that has only gained wide use in the past decade."
Campbell v. General Dynamics Corporation (Civ. No. 03-11848-NG) (June 3, 2004)
This case addressed the question of whether an employer can use email notification to impose a mandatory arbitration policy. The United States District Court for the District of Massachusetts held in this case that email notice was not sufficient notice to deprive an employee of their right to a day in court. The General Dynamics Government Systems Corporation instituted a new policy, the Dispute Resolution Policy (DRP), which required employees with grievances to submit their claims to arbitration instead of filing a claim in court. The corporation informed its employees of this new policy by email. The email was one page in length and only vaguely mentioned the DRP. Despite one sentence within the text of the email indicating that the new policy was “an essential element of the [employees’] employment relationship,” there was no other information provided to inform the employees that they would be bound by the new policy. The email also contained two internet links. One, a two-page flyer in question-answer format, highlighted the main provisions of the new policy in easy-to-understand language; the other, the DRP Handbook, explained in 26 pages the policy’s provisions. Although the corporation could track which employees opened the email, there was nothing to verify if an employee had actually read its contents or opened either of the internet links.
Despite the implementation of this policy, Roderick Campbell, an employee of General Dynamics, brought a discrimination suit in state court, under both state law and the Americans with Disabilities Act, against the corporation and the director of its Human Resources department, claiming that he had been terminated because of his sleep apnea condition. The defendants removed the case to federal court and filed a motion to stay the proceedings until the matter could be arbitrated, claiming that Campbell was bound by the provisions of the DRP requiring all grievances to be submitted to arbitration.
Campbell offered two arguments as to why he should not be bound by the provisions of the DRP. First, he claimed that he had received insufficient notice of the DRP and therefore had never agreed to the policy’s provisions. Second, he argued that email notification fails to meet the Federal Arbitration Act’s requirement of a “written agreement.” The court only addressed his first argument, finding that General Dynamics failed to give Campbell sufficient notice of the policy. Although General Dynamics produced evidence in the form of a “tracking log” indicating that Campbell had opened the email, Campbell denied ever reading the email or having knowledge of the arbitration policy. General Dynamics could not prove that Campbell had read the email or clicked on either of the two internet links. Insufficient notice, coupled with Campbell’s lack of knowledge about an arbitration policy that substantially affected his legal rights, led the court to deny the defendants’ motion.
Citing a First Circuit case, Ramirez-De-Arellano v. American Airlines, Inc., the court explained that a “a waiver of the right to a judicial forum for civil rights claims in exchange for continued employment ‘must at least be express.’” The court also stated that the First Circuit found that a minimal level of notice is necessary to constitute a valid waiver of an employee’s statutory right to a judicial forum. The court went on to note that because “litigation has played and continues to play a critical role in the legal and social changes that strike at the core of the purpose of discrimination laws,” the courts and Congress closely scrutinize the type of notice pertaining to mandatory arbitration policies given to employees in civil rights settings.
Kramer v. Banc of America Securities, LLC (02-3662) 2004 WL 77917 (7th Cir.) Decided Jan. 20, 2004
In a case of first impression the 7th Circuit Court of Appeals held that the 1991 Civil Rights Act does not expand the remedies available to a party bringing an ADA retaliation claim against an employer, and therefore compensatory and punitive damages are not available in an ADA retaliation case. As the plaintiff was not entitled to recover compensatory and punitive damages, she had no statutory or constitutional right to a jury trial. See the Jackson Lewis newletter article dated March 3, 2004 entitled Compensatory and Punitive Damages are Unavailable in ADA Retaliation Claim for a full summary of the case and advice for employers in light of the holding.
Raytheon Co. v. Hernandez, (No. 02-74) Decided Dec. 2, 2003
Hernandez worked for Raytheon Co. but resigned in lieu of discharge when he tested positive for cocaine usage, in violation of workplace rules. When Hernandez reapplied for a job with the company several years later, he was not hired due to company policy against rehiring employees who are terminated for workplace misconduct. Hernandez brought suit claiming his failure to be rehired constituted discrimination in violation of the ADA. (record of drug addiction or regarding him as a drug addict)
The Supreme Court held that in analyzing the case, the 9th Circuit had improperly applied a disparate impact analysis (did the employer's facially neutral no rehire policy fall more harshly upon a certain group of ex-employees in violation of the ADA?) instead of the disparate treatment analysis, where the employee must prove the protected trait motivated the employer's action. By analyzing the case is this manner, the 9th Circuit ignored the fact that "petitioner’s no-hire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules."
Justice Thomas delivered the unanimous (7-0-) opinion of the Court in which the Court noted that while both disparate impact and disparate treatment claims are cognizable under the ADA, Hernandez did not raise the disparate impact claim in a timely fashion. The case was remanded for further action consistent with the Court's holding.
Burchett v Target Corp. 340 F.3d 510 (8/2003)
ADA plaintiff failed to establish a genuine issue of material fact as to whether her employer failed to accommodate her by denying her a transfer. The plaintiff failed to show that with the accommodations employer had provided, she was unable to perform the duties of her position because of her disability. The ADA claim was rejected by the Eighth Circuit Court of Appeals largely because the employer engaged in an ‘interactive process’ to find ‘reasonable accommodations’. The employee developed depression and performance suffered. However, the employee did not notify the employer of her depression until some time after her performance had suffered. Under physician’s orders, employee was granted in turn, a medical leave of absence, and a part time schedule with reduced responsibilities. Performance of duties continued to decline and employee asked for transfer to a less stressful position. Employer’s internal policy prohibited transfers when poor performance problems existed. When informed of this, employee abruptly left and never came back. Employer placed her on long term disability; employee sued, alleging her disability was not accommodated with the requested transfer. The court found that employer did not violate ADA. The employer properly engaged in "interactive process" with employee by identifying potential accommodations and granting the shorter hours and less stressful duties. This fulfilled the employer's obligation. Even if a transfer was a reasonable accomodation, employer is not obligated to grant it. Also, the neutrality of the 'poor perfomance = no transfer' policy was found to be non-discriminatory.
If an employee asks for a transfer or other accomodation: Employers should consider, first determining whether employee has a"covered disability" under the ADA. Second, engage in an interactive process (back and forth dialogue) with employee to identify reasonable accommodations that would allow employee to perform duties. Finally, offer one or more accommodations (not necessarily the requested one) that would be reasonable and not an undue burden to employer. See Oct. 30, 2003 Employment Law Alert (search under Publications) by Keller and Heckman.
Access Now, Inc. v. Southwest Airlines, Case No. 02-21734-CIV, United States District Court, Southern Distict of Florida. Decided Oct. 18, 2002. (Order granting Defendant's Motion to Dismiss) (see above for 11th Cir. decision upholding this lower court decision)
In this case a non-profit, access advocacy organization for disabled individuals, and Robert Gumson, a blind individual, filed a four count complaint under the ADA contending that Southwest Airlines Internet website, southwest.com, excludes the plaintiffs as the goods and services offered (ability to make reservation and buy tickets online) are inaccessible to blind persons. Southwest Airlines moved to dismiss on the grounds that southwest.com is not a place of public accommodation within Title III of the ADA. The Court granted the Airline's motion to dismiss.
The Plaintiffs alleged that the website in question failed to provide "alternative text" which would provide a screen reader program the ability to translate into synthesized speech, and that the site failed to provide online forms that could be readily filled out by visually impaired persons, and also did not have a skip navigation bar, which facilitates access to the main content.
The Court declined to hold the website was covered under the ADA, reasoning that the law as drafted covers accommodations that are physical concrete structures, not virtual spaces, citing the Eleventh Circuit cases of Rendon v. Valleycrest Prod. Ltd. 294 F. 3d 1279 (11th Cir. 2002) and Stevens v. Premier Cruises, Inc. 215 F.3 1237 (11th Cir. 2000).
The Court seemed to be somewhat influenced in its decision by not being able to find any well defined, generally accepted standards for programming assistive software and websites so as to make them uniformly compatible. The Court also noted the Web Content Accessibility Guidelines (W3C Recommendations) offered by the Plaintiffs were over three years old. See footnote 1 in the opinion.
Shapiro v. Lakewood, 2002 U.S. App. LEXIS 10302 (3rd Cir. 2002)
Defining the nature of "interactive"
What is the nature of the employer's obligation to assist an employee who requests a reasonable accommodation? This question was recently (May 29, 2002) addressed by the Third Circuit Court of Appeals.
Howard Shapiro was employed by Lakewood Township as a police dispatcher and later as an Emergency Medical Technician (EMT). While working as an EMT, Shapiro injured his back. Due to physical limitations, he was not able to resume active status as an EMT.
After becoming disabled, Shapiro made repeated requests for accommodations to allow him to work in a light duty position. Shapiro's attorney sent a letter to Lakewood Township's Municipal Manager, requesting reasonable accommodation on behalf of his client, and highlighting his client's many skill, and also wrote to Lakewood's attorney, asking what type of training his client should pursue in order to be provided with a reasonable accommodation.
The record indicates the only advice from Lakewood to Shapiro was that he should go to the Town Hall and fill out a job application. Lakewood Township made no attempt at any interactive discussion with Shapiro. The record indicates Shapiro was fully qualified to work as a police dispatcher. Lakewood Township hired five police dispatchers in the time period when Shapiro was seeking an accommodation.
The requirement for an interactive process with regard to reasonable accommodations is contained in a regulation promulgated under the ADA. The regulation states:
To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 CFR § 1630.2 (o) (3).
Lakewood Township argued that Shapiro's failure to formally apply for any of the dispatcher positions meant it was not required to consider Shapiro, as doing so would require a deviation from the Township's policy regarding transfers. The Township policy places the burden on the employee seeking a transfer to monitor postings and apply for the position.
The Court of Appeals looked to the recent decision by the U.S. Supreme Court in U.S. Airways v. Barnett. Barnett addressed the interaction of neutral employment policies and the ADA. Following the rule set out in Barnett, an employee must show first that the accommodation requested is reasonable in the run of cases. If the employee can make this showing, the burden shifts to the Employer to show that a deviation from the neutral policy would cause undue hardship on the Employer.
The employee can also show that even if the accommodation is not reasonable in the run of cases, special circumstances make the accommodation reasonable in this instance.
After considering Barnett, the Court of Appeals ruled that the District Court grant of summary judgment in favor of the Township could not stand, and the case was sent back for further proceedings.
While it is unclear what the ultimate holding in Lakewood Township case will be, it offers pointers for employers who have a disabled employee seeking an accommodation:
- The request for a reasonable accommodation is not a unilateral burden imposed on the disabled employee, rather it is an “interactive process” to be undertaken over time between the employer and the employee.
- This “interactive process” does not need to be formally initiated or follow some set procedure.
- The initial request for reasonable accommodation and/or notification of the extent of the disability by the employee may be interpreted as the initiation of process.
- If a formal employment transfer procedure or seniority system exists, the interactive process need not follow it.
- A reasonable accommodation by its very nature usually involves a change in the status quo, and the Supreme Court has recognized this by giving limited deference to neutral employment policies.
Chevron U.S.A. Inc. v. Echazabal (No. 00-1406) Decided June 10, 2002
In a unanimous opinion authored by Justice Souter, the Supreme Court upheld EEOC regulation 29 CFR § 1630.15(b)(2) interpreting the Americans with Disabilities Act. The regulation in question was used by Chevron to justify the company's refusal to hire an employee whose performance on the job would pose a danger to his own health, owing to a disability. The regulation in question states as follows:
Direct threat as a qualification standard. The term "qualification standard'' may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. (See Sec. 1630.2(r) defining direct threat.)
The respondent Mario Echazabal, worked as an independent contractor at an oil refinery owned by Chevron, but was turned down for an employment position with the company due to his failure to pass the company physical. The doctors who examined Echazabal stated that the respondent's liver damage (due to Hepatitis C) would be aggravated by continued exposure to toxins at the refinery.
The Court declined to rule on whether or not Echazabal was a "qualified individual" under the ADA. Instead, the Court used standard canons of statutory construction to defeat Mr. Echazabal's argument that the EEOC had exceeded its authority in adopting language (threat to self) that was not specifically contained in the law. The ADA creates an affirmative defense for an employment action taken pursuant to a qualification standard that is job related or consistent with business necessity. The statute explicitly allows "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace."
While most of the decision was focused on statutory construction, the Court did address policy considerations as well. At pages 9- 10 of the online opinion, the Court made reference to another case involving Chevron. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) the Supreme Court held that with regard to judicial review of an agency's construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Accordingly, since Congress had not spoken exhaustively on threats to a worker's own health, the Supreme Court in the Echazabal case found the agency regulation could claim adherence to the rule cited in Chevron, 467 U.S. at 843, as long as the regulation makes sense of the statutory defense for qualification standards that are job related and consistent with business necessity. In finding the rule reasonable the Court noted as follows:
Chevron's reasons for calling the regulation reasonable are unsurprising: moral concerns aside, it wishes to avoid time lost to sickness, excessive turnover from medical treatment or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U.S.C. §651 et seq.
The Court then went on to discuss the OSHA issues, and concluded by stating that if the employer were to hire an individual who knowingly consented to the dangers posed by the job to his/her health, "there is no denying that the employer would be asking for trouble: his decision to hire would put Congress's policy in the ADA, a disabled individual's right to operate on equal terms within the workplace, at loggerheads with the competing policy of OSHA, to ensure the safety of 'each' and 'every' worker."
The Court's decision interprets a regulation that deals with the employment title of the ADA, and does not address the "threat to self" defense utilized by schools in the context of the provision of programs and activities. For a leading case in this area see Knapp v. Northwestern University, 101 F. 3d 473 (7th Cir. 1996) (reh’g en banc denied, 1997 U.S. App. Lexis 93, cert. denied, 138 L. Ed. 2d, 212). For a summary of the threat to self defense in the context of student life, see the Counselonline discussing the latest Supreme Court ADA cases.
Universities claiming this defense in the student programs and activities context may now have additional ammunition for the reasonableness of utilizing such a defense, as long as the standards contained within the ADA are followed. The direct threat defense must be "based on a reasonable medical judgment that relies on the most current medical knowledge and /or the best available objective evidence" and upon an expressly individualized assessment of
· the nature, duration, and severity of the risk;
· the probability that the potential injury will actually occur; and
· whether reasonable modification of policies, practices, or procedures will mitigate the risk.
U.S. Airways v. Barnett
(No. 00-1250) Decided April 29, 2002
Seniority Systems and Reasonable Accommodation
The Barnett case involves a nuanced reading of the statement in the ADA that reasonable accommodation may include "reassignment to a vacant position" (42 USCS § 12111 (9)).
Barnett was an employee with a serious back injury, which occurred on the job while he was working for U.S. Airways. After his injury, Barnett transferred to the mailroom where he worked for several years. However, in 1992, in conjunction with the layoff of a number of employees, the position he was working in came up for bid under the seniority system. Mr. Barnett requested as a reasonable accommodation that he be allowed to keep the mailroom position rather than be bumped by a more senior employee, or in the alternative, be provided with special lifting equipment that would allow him to work in the cargo facility, or that the cargo job be restructured so he could only perform office work. U.S. Airways refused to accommodate Barnett and he was terminated.
The U.S. District Court granted summary judgment for U.S. Airways and the Court of Appeals for the 9th Circuit affirmed, but in an en banc rehearing of the case, the 9th Circuit at 228 F. 3d 1105 (C.A. 9, 2000) affirmed in part, reversed in part, and remanded the case back to the District Court for further proceedings. U.S. Airways argued that a seniority system operates as a “per se” or completely automatic bar to reassignment as a reasonable accommodation. The 9th Circuit reviewed the legislative history of the ADA, as well as the EEOC compliance manual, and concluded that a collective bargaining agreement can be a factor in determining the reasonableness of any accommodation, but not a per se bar. The Court went on to point out that in the Barnett case, there was no written collective bargaining agreement, simply a seniority system, and that a seniority system without more should not bar reassignment to a vacant position, as to do so would "sharply limit the range of available accommodations without any required showing of an undue burden on the employer."
The Court further noted that, "While reassignment might constitute an undue burden in some cases, courts cannot assume that which is the employer's burden to prove." Rather, a seniority system is only one factor to be considered in the undue hardship analysis.
The case was accepted for argument by the U.S. Supreme Court, limited to the question of whether or not the ADA requires reassignment of a disabled employee to a vacant position when such reassignment is in conflict with a seniority system. The Supreme Court heard the oral argument in the case on Dec. 4th, 2001.
In a 5-4 ruling issued on April 29th, the Supreme Court held that an employer's showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an "accommodation" is not "reasonable". However, the employee remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case. In the opinion, the Court noted that the plaintiff might show that the employer, having retained the right to change the seniority system unilaterally, exercises that right frequently, thus reducing employee expectations that the system will be followed, and concomitantly increasing the likelihood that an accommodation that does not follow the seniority system would be reasonable.
In terms of burden of proof, the employer is thus not required to show on a case by case system that a seniority system should prevail. The plaintiff desiring the accommodation must come forward with evidence that special circumstances exist which would justify deviation from following the seniority system.
As most federal circuits other than the 9th Circuit had held that seniority always trumps a request for a reasonable accommodation to a "vacant" position, the nuanced ruling by the Court actually sets a standard that will be easier for disabled employees to meet than the one that had previously prevailed.
Justice O'Connor would have preferred a holding that stated the effect of a seniority system on the reasonableness of a reassignment as an accommodation for the purposes of the ADA depends on whether the seniority system is legally enforceable. In a concurring opinion, she noted the outcome under either approach was likely to be similar.
NB:The Toyota case was explicity overturned by the ADA Amendments Act of 2008
Toyota Motor Manufacturing, Kentucky Inc. v. Williams, No. 00-1089 534 U.S. 184, 2002, decided Jan. 8, 2002.
The facts in this case involved an employee (Ella Williams) of the Toyota Manufacturing Plant in Georgetown, Kentucky, who was diagnosed with bilateral carpal tunnel syndrome and bilateral tendonitis. After her diagnosis, Toyota placed Williams in modified duty jobs. After being rotated to a position that aggravated her underlying condition, Williams requested an accommodation that would allow her to perform only those jobs that would not aggravate her condition. There is some disagreement about the facts at this point, but the end result is that Williams ended up filing a charge of disability discrimination with the EEOC, and then filed suit against Toyota in the U.S. District Court for the Eastern District of Kentucky.
At issue was whether or not the employee's impairment constituted a disability under the Americans with Disabilities Act (ADA) of 1990. Williams claimed the impairment affected her ability to perform manual tasks, and caused some limitation in housework, playing with her children, gardening, lifting and working.
The District Court held that Williams had suffered a physical impairment, but that the impairment did not qualify as a disability as it had not substantially limited any major life activity. The court rejected respondent's arguments that gardening, housework and playing with her kids were major life activities. Although the court agreed that performing manual tasks, lifting, and working were major life activities, the Court found the testimony insufficient to demonstrate that Williams was substantially limited in lifting and working, and further found the claim of limitation on performing manual tasks to be contradicted by Williams testimony.
The Court of Appeals for the Sixth Circuit reversed the District Court on whether or not Williams was disabled, holding that Williams satisfied the definition of disabled because her ailments prevented her from doing the tasks associated with certain types of manual assembly line jobs.
The Supreme Court granted certiorari to consider the proper standard for assessing whether an individual is substantially limited in performing manual tasks. The Court noted that the EEOC regulations are silent as to the question of what a plaintiff must demonstrate to establish a substantial limitation in the specific major life activity of performing manual tasks.
In an unanimous decision, the Supreme Court held that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives, and that the impairment must be permanent or long term.
The Court did not decide the issue of whether or not working is a major life activity. The Court did note that the Appellate Court erred in focusing on William's job in assessing whether or not she could perform manual tasks. The Court stated "When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job."
The Court also noted that the manual tasks unique to any particular job are not necessarily important parts of most people's lives, and that the Appellate Court was wrong to ignore the evidence in the record from the Trial Court that Williams could still bathe, brush her teeth, perform household chores and garden, even after her condition worsened. The need for an individualized assessment on a case by case basis was once again stressed. The Court reversed the Court of Appeals grant of summary judgment and remanded the case for further proceedings.
Commentators noted that the Court's ruling cuts both ways, making it more difficult for plaintiffs who are substantially limited in workplace tasks to be covered under the statute, but perhaps making it easier for plaintiffs whose limitations affect their daily lives outside the workplace to be covered as "disabled" under the law.
DeVito v. Chicago Park District, 270 F. 3d 532 (7th Cir. 2001).
The decision is this case was really made on the issue of estoppel, but it is a useful case for employers who wish to argue that a gradual return to work full time by an injured employee is a reasonable expectation of an employer, and that the ADA does not require permanent assignment to a light duty job. The facts in this case clearly favor the employer, so to some extent the holding is driven by the facts. The employee was a laborer who injured his back, and who was, due to the injury, precluded from working at his laborer job. In 1985, under a light duty program, he was given a job answering phones. He typically left work after 2 or 3 hours, claiming back pain, but was paid for 8. He was fired when the park district caught him on videotape twisting, bending and climbing in and out of trucks. The employee's appeal to return was turned down, and in this litigation he was seeking a return to a light duty position. Judge Posner found that the employee could not "whipsaw his employer by first obtaining benefits or concessions upon a representation of total disability to work full time and then seeking damages for the employer's failure to accommodate the disability, which the employee now seeks to prove was not total after all." Posner states that "The employment provisions of the Americans with Disabilities Act provide relief only to persons who are capable, with or without an accommodation that would make it possible for them to work despite a disability, to perform the essential functions of their job, ... which in the case of a full-time job requires that they be capable of working full- time."
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001). In Buckhannon the Supreme Court overruled a theory of the law which had been accepted by nine federal courts of appeals. The theory was that a plaintiff could be considered a prevailing party and entitled to attorney's fees if the lawsuit was a catalyst for a change in conduct in response to the litigation. The Supreme Court held that failure to actually secure a judgment or a court-ordered consent means the plaintiff has not prevailed on the merits and is not entitled to attorney fees. This case was brought in the context of the Fair Housing Amendments Act of 1988, and the Americans with Disabilities Act of 1990 (ADA), but numerous federal statutes contain language awarding fees and costs to the "prevailing party".
Bartlett v. New York State Board of Law Examiners, 527 U.S. 1031 (1999). Following its decisions in Sutton v. United Air Lines, 527 U.S. 471 (1999) (see below), and a companion case, Albertsons, Inc. v. Hallie Kirkingburg, 527 U.S. 555 (1999), (see below), the Supreme Court vacated and remanded the decision in Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2nd Cir. 1998). Bartlett had applied for but was denied accommodations in taking the New York State Bar Exam. The issue in the Bartlett case involved learning disabilities, and whether extra time in taking the New York State Bar Exam was an appropriate accommodation. In its 1998 decision, the Court of Appeals for the Second Circuit held that a person's ability to self-accommodate does not foreclose a finding of disability. In addition, the Court of Appeals held that the major life activity affected by her disability was reading and learning, as opposed to working, which had been the basis for the District Court’s holding that an accommodation was necessary.
In the decision on remand, following the Supreme Court’s decisions in Sutton and Albertsons, the Court of Appeals for the Second Circuit revisited the issue of whether Bartlett, who is dyslexic, is disabled under the Rehabilitation Act or the ADA. On August 30, 2000, the Court of Appeals held that, despite Bartlett’s self-accommodations, she may be disabled under the law if her impairment substantially limits her with respect to the major life activity of reading. As phrased by the Court of Appeals, the following questions must be addressed by the District Court: 1) "whether Bartlett is substantially limited in the major life activity of reading by her slow reading speed, or by any other ‘conditions, manner or duration’ that limits her reading ‘in comparison to most people’"; and, if necessary, 2) "whether [Bartlett] has shown that it is her impairment, rather than factors such as her education, experience or innate ability, that ‘substantially limits’ her ability to work." Bartlett, 2000 U.S. App. LEXIS 22212, *__. On the second question, the Court of Appeals distinguished the Bartlett case from Sutton, noting that "the number of lawyers practicing law, relative to the number of people holding a law degree, is surely larger in proportion to the number of global airline pilots relative to the number of people who hold a license to fly," concluding that "if an impairment bars a person with a law degree from practicing law, then that impairment is a disability under the ADA." Bartlett, 2000 U.S. App. LEXIS 22212, *__.
Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). The Supreme Court held in this case that filing for and receiving SSDI benefits for being unable to work due to a disability does not estop the claimant from pursuing an ADA claim. The claimant must, however, explain how she can perform the essential functions of the job in question, with reasonable accommodation.
Following Cleveland, the Court of Appeals for the Seventh Circuit decided a similar case involving a complaint under the ADA and an SSDI claim. In Feldman v. American Memorial Life Ins. Co., 196 F. 3d 783 (1999) the court stated:
Although Cleveland clarified that an ADA claim is not estopped simply because an individual applied for or received SSDI benefits, a plaintiff cannot avoid summary judgment merely by asserting that she is a qualified individual if she made prior statements, in applying for SSDI regarding her disability that are squarely contradictory. A plaintiff may declare that she was totally disabled in her SSDI application, then declare that she was a qualified individual under the ADA, but she must show that this apparent inconsistency can be resolved with reference to variance between the definitions of "disability" contemplated by the ADA and SSDI. . . . Unlike the plaintiff in Cleveland, Feldman failed to offer any explanation for the contradiction between her SSDI and ADA statements. We therefore will affirm the district court's grant of summary judgment. [Feldman, 1999 WL 1018083 at *7-8.]
Bragdon v. Abbott, 524 U.S. 624 (1998). In this case, the Supreme Court ruled that the respondent’s HIV infection was a disability under the law. While the Court did not rule that HIV infection will always be considered a disability, it seems likely that in most instances it will. The Court also ruled that the ability to reproduce is a major life activity within the meaning of the ADA. Finally, the Court ruled that the existence of a significant risk is determined from the standpoint of the health care professional who refuses to treat the HIV positive patient, and the risk is based on medical or other objective evidence available to the health care profession, and not simply on a good faith belief that a risk exists.
Supreme Court Invalidates EEOC Guidance on Disability
On June 22, 1999, in the case of Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that two severely myopic women, whose vision was fully correctable, were not considered disabled for purposes of coverage under the Americans with Disabilities Act. The two women had sued United Airlines for failing to hire them as they did not meet the minimum requirement of uncorrected visual acuity of 20/100 or better. The plaintiffs claimed discrimination under the Americans with Disabilities Act on the theory that the Airlines "regarded" them as having a disability. The Supreme Court rejected this argument and held that the women in question did not meet the definition of "disabled" under the law. The Court also rejected the argument that the Airline in question had regarded the applicants as having a disability.
The decision is an important one. The EEOC had issued an "Interpretive Guidance" which stated that "the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." The Department of Justice had issued substantially similar guidance. The Court clearly rejected this approach and, in a 7-2 decision, stated no agency had been given the authority to interpret the term "disability." Under the Court's reading of the law, whether an individual is disabled should be made with reference to measures that mitigate the impairment. The Court's key holding is as follows: "Looking at the Act as a whole, it is apparent that if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures -- both positive and negative -- must be taken into account when judging whether that person is 'substantially limited' in a major life activity and thus 'disabled' under the Act." Sutton, 527 U.S. at ___.
Under the Court's approach, a diabetic whose illness does not impair his or her daily activities would not be considered disabled. Conversely, the negative side effects of mitigating measures for an illness could result in a finding of "disability" if an impairment of major life activities results from taking the medicine, and not from the illness itself.
The Court passed on ruling on the question of whether or not working is considered a major life activity.
In a companion case, Albertsons, Inc. v. Hallie Kirkingburg, 527 U.S. 555 (1999), the Court held that the Sutton decision extends to mitigating measures undertaken, whether consciously or not, with the body's own systems. In other words, a person who has compensated for their disability may not be "disabled" under the law.
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Last Revised 05-Oct-08 11:25 AM.
