Employees lose most ADA suits, study shows.

Mentally or physically challenged people who sue their employers for discrimination under the Americans with Disabilities Act (ADA) usually lose, according to a survey report released in June 1998 by the American Bar Association's Commission on Mental and Physical Disability Law.

The survey found employers won in 92 percent of the cases decided by a judge and in 86 percent of administrative complaints resolved by the Equal Employment Opportunity Commission (EEOC). (For an ADA decision favoring the plaintiff, see Disability insurance caps for mental illness violate ADA, court rules, at p. 14.) The commission reviewed more than 1,200 ADA Title I (employment provisions) cases filed since 1992 and all ADA-related statistics compiled by the EEOC between 1992 and 1997.

"While to date it has been employers who have complained most of unfair treatment under the ADA, the facts strongly suggest the opposite: employees are treated unfairly under the act," was the report's conclusion.

The survey noted the ADA's definition of disability is much more restrictive than proponents had thought it would be, and the 43 million people with mental and physical impairments the ADA was intended to cover do not all qualify. Interpretation of the concepts of "substantial limitation," "otherwise qualified," "collateral estoppel," "employer," "burden of proof," and "undue burden" may make the ADA work in employers' favor, the commission found.

The report cites two "catch-22s." First, ADA provisions require a disability to be "substantially limiting," but also require the employee to be otherwise able to perform essential job functions; in other words, the employee must have a severe disability, but not one severe enough that he or she can't do the job. Only some disabled employees can meet these conditions, the commission argued. The nature of the discrimination, it said, should count for more than the nature of the disability, since the purpose of the ADA is to prevent discrimination on the basis of that condition.

An "equally pernicious ADA catch-22," according to the report, involves the doctrine of collateral estoppel. Several courts have denied disabled employees' claims if they have applied for or received state or federal disability benefits such as Social Security or workers' compensation. To receive these benefits, workers must state they are unable to work, and the courts have interpreted this to mean they cannot perform the essential job functions required to meet the ADA test.

The study also concluded ADA suits may favor employers because employees have the burden of showing the defendant meets the definition of a covered employer. Employees also have the burden of proving discrimination, while an employer can say it couldn't accommodate the disabled person without creating an undue administrative or financial burden on the company.

The commission urged the passage of new legislation that would prohibit employment discrimination on the basis of disability--regardless of whether the impairment is substantially limiting and regardless of the number of employees working for an employer. This would eliminate the "procedural wrangling" over definitions in the act and level the playing field in ADA discrimination suits, the commission concluded.

Employers would still be protected because the employee would still have the burden of proof, and the undue burden concept would continue to limit an employer's obligation to make reasonable accommodations, the commission said.

The report is in Mental and Physical Disability Law Reporter, May/June 1998, at 403. For more information, contact the ABA Division for Media Relations and Public Affairs, 740 15th St., N.W., Washington, DC 20005-1099; [phone].