Escaping common ADA traps: plaintiff lawyers confined by court decisions construing the Americans with Disabilities Act against their clients can break free. Here's how.

People with disabilities, and their advocates, greeted passage of the Americans with Disabilities Act of 1990 (ADA) with great fanfare and hope. (1) Until then, anyone seeking redress for disability-based employment discrimination had limited options. Plaintiffs could sue under either state antidiscrimination laws--which vary in potency--or the Rehabilitation Act of 1973 if the employer was the federal government or received federal funding. (2)

Unfortunately, federal court decisions construing Title I of the ADA have greatly diminished the promise it once held of fair treatment for disabled workers. The scope of this article is limited to Title I of the ADA, although cases interpreting other titles of the act may prove useful by analogy.

Some of the law's language mirrors that of earlier civil rights statutes. For example, an employer may be liable under either disparate treatment or disparate impact theories of discrimination. But one significant provision is unique: An employer also may be liable for failing to fulfill an affirmative obligation to reasonably accommodate a disabled employee.

Specifically, discrimination under the ADA includes the failure to make "reasonable accommodations ... [for] an otherwise qualified individual with a disability who is an ... employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business" and "denying employment opportunities to a[n] ... employee who is an otherwise qualified individual with a disability, if such denial is based on the need of [the employer] to make reasonable accommodation to the physical or mental impairments of the employee or applicant." (3)

To be considered disabled, a person must have a physical or mental impairment that substantially limits at least one major life activity. This means the person must be:

   (1) unable to perform a major life activity that the average person in the
   general population can perform; or (2) significantly restricted as to the
   condition, manner, or duration under which an individual can perform a
   particular major life activity as compared to the condition, manner, or
   duration under which the average person in the general population can
   perform that same major life activity. (4)

If that activity is work, the plaintiff must show he or she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person with comparable training, skills, and abilities." (5)

The employer must work with the employee in selecting a reasonable accommodation. This requires a good-faith exploration of possibilities, and neither side can delay or obstruct the process. (6) The Equal Employment Opportunity Commission's (EEOC) Enforcement Guidance requires that "an employer must consider each request for reasonable accommodation," and that "if a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship." (7)

The Supreme Court

The U.S. Supreme Court has considered six ADA cases. Three of these decisions have been favorable to the plaintiffs and, in our view, consistent with the broad mandate of the law.

The Court's decision in Bragdon v. Abbott--that presymptomatic HIV infection is a disability--indicated that the justices embraced a liberal, inclusive definition of "disability" under the act. (8) This expectation was initially confirmed by the Court's holding in Cleveland v. Policy Management Systems Corp., which rejected use of the doctrine of judicial estoppel to prevent a disabled worker who sought Social Security disability benefits from pursuing an ADA claim. (9)

Many lower courts had ruled that workers who had claimed they were "totally disabled" in an application for Social Security benefits could not then claim--as the ADA requires--that they were able to perform the essential functions of a job, with or without reasonable accommodation. The Court in Cleveland said this was not so. Disability would have to be determined case by case.

The Court adopted a much more restrictive definition of "disability," often a crucial threshold issue, in a trilogy of 1999 decisions. In Sutton v. United Airlines, Inc., (10) Albertson's, Inc. v. Kirkingburg, (11) and Murphy v. United Parcel Service, Inc., (12) the Court said judges would have to consider ameliorative measures taken by a worker--for example, medicine or assistive devices--when determining whether the person is disabled. This was a rejection of EEOC guidelines that stated the opposite.

These decisions effectively denied the law's protections to millions of Americans who, though suffering from a disability, use drugs or devices to function in the workplace. Now, it's possible for a person to be disabled enough to be fired but not disabled enough to seek redress under the ADA.

The most recent ADA decision, PGA Tour, Inc. v. Martin, is not an employment case, but its analysis of issues under the act and its approach to balancing competing considerations is nevertheless useful by analogy. The Supreme Court ruled that a golfer who had a circulatory disorder preventing him from walking golf courses would not fundamentally alter the nature of competition by using a golf cart. (13) Therefore, use of a cart during tournaments was a reasonable accommodation of the golfer's disability.

Fallout 

One might think the 50/50 outcome of ADA cases in the nation's highest court is a signal that plaintiffs have a reasonable chance of success in the lower courts. Unfortunately, this has not been the case.

Studies of reported federal cases have shown that ADA plaintiffs enjoy an alarmingly small success rate of 2 percent to 7 percent. (14) These figures reveal the federal courts' hostility to the statute's remedial purpose and demonstrate that restrictive judicial interpretation has thwarted its antidiscrimination mandate. (15)

Plaintiff lawyers can improve their clients' odds by avoiding the following common traps in ADA litigation:

The summary judgment trap. Most ADA cases are lost on pretrial motions to dismiss or motions for summary judgment. Avoiding this requires a good understanding of the essential elements of an ADA claim and the legal standards applicable to each element. A lawyer with little or no ADA experience should consider either referring the client elsewhere or asking an experienced lawyer to join the case as cocounsel. (16)

After filing suit, you should use both written discovery and oral depositions to develop evidence showing that the parties disagree on genuine issues of material fact regarding each element of the case. Any needed experts should be lined up before suit is filed.

For example, for purposes of the ADA, a disabled client is one who is substantially limited in the performance of a major life function. You must be sure that your expert can testify that your client is disabled under this definition, even though this may differ from the expert's medical definition of "disability." Be certain the expert can identify the limited function, and establish the expert's understanding of the average person's ability to perform it.

Another common summary judgment pitfall relates to claims for disability benefits. Cleveland held that a plaintiff is not judicially estopped from claiming that he or she is a qualified individual with a disability under the ADA because of a prior claim for disability benefits under the Social Security Act. (17) However, due to the possibility of inconsistency, the plaintiff must proffer a sufficient explanation for any apparent contradiction between the two claims.

Dealing with this issue requires walking a tightrope. You must be able to present a plausible explanation of why a person is disabled for purposes of receiving Social Security benefits, yet capable of performing the job in question with an accommodation. Begin by addressing the different legal standards of the two acts, and then focus on the accommodation itself. Argue that your client is able to work only with the accommodation, and because the defendant will not grant the accommodation, your client is disabled as defined by the Social Security Act.

If possible, you should try to limit defenses early, by using interrogatories and admissions to define key issues--such as the essential functions of your client's job and the alleged burden of making the proposed accommodation. Ask about these issues again in depositions, because your client's supervisor and coworkers may have very different interpretations of what the job requires than does the defendant's counsel.

The sovereign immunity trap. The U.S. Supreme Court has held that state workers may not sue their employers under the ADA. (18) Municipalities, county boards, and other political subdivisions of the state do not enjoy this sovereign immunity. State agencies, departments, and universities do.

If it is unclear whether a potential defendant is immune, the lawyer should find out if a court has decided this issue in a previous case against the defendant. Some courts have held that the Rehabilitation Act contains a valid waiver provision and that state agencies receiving federal funding have thereby waived sovereign immunity. (19)

This is one way to counter the defense claim that the ADA does not abrogate state sovereign immunity. The Supreme Court did not determine that the ADA was unconstitutional as applied to the states, nor that Congress lacked the power to enact the ADA. The Court held only that Congress lacked the power under [section] 5 of the Fourteenth Amendment to abrogate state sovereign immunity.

Waiver and abrogation are entirely different legal concepts. Waiver implies consent--that one party (in this case, the states) agreed to waive objection to an act (in this case, the ADA). The other party does not have to justify acting on the waiver. Abrogation, on the other hand, is coercive and requires some justification.

Plaintiff lawyers should emphasize the difference between these legal concepts and the Rehabilitation Act's explicit requirement that sovereign immunity be waived as a condition of receiving federal funds. If all else fails, the plaintiff may be able to seek relief under a state statute.

While the Court's decision precludes a private individual from seeking money damages from a state, footnote nine notes that state employees may nevertheless utilize the doctrine of Ex Parte Young (20) to sue officers of the state for injunctive relief. (21) Additionally, the EEOC may sue a state directly for money damages on behalf of an individual.

The disability benefits trap. As mentioned above, courts must examine the facts and circumstances surrounding a worker's application for disability benefits before determining that he or she is "totally disabled" and unable to seek ADA relief. For example, an employee's inability to work may be due to the lack of a reasonable accommodation.

Denying plaintiffs their right to bring an action under the ADA simply because they have pursued their right to seek government or private disability benefits ignores significant differences in the applicable legal standards set by the ADA and benefits programs. Nevertheless, unless there is at least conflicting evidence that a plaintiff may be qualified to do a job with a reasonable accommodation, a claim of this sort is an uphill battle.

Before accepting this type of case, a lawyer should review any benefit applications and decisions regarding the worker's disability. If that "conflicting evidence" doesn't exist, it might be best to take a pass. If an application has not yet been made, the lawyer should help draft it to ensure that it explains why the worker is eligible for the benefits as well as for relief under the ADA.

The work-as-major-life-activity trap. If possible, the lawyer should pin the case on a major life activity other than work. (22) This will avoid encountering the following catch-22: To establish that a person is substantially limited in ability to work, the plaintiff lawyer must introduce evidence that will help the defendant argue that the individual is unable to perform the job and therefore ineligible for ADA relief. (23)

If work must be the life activity claimed, the employee has to show that he or she cannot perform a broad range or class of jobs, not merely the position in question. This requires presenting evidence beyond that position. Both the EEOC regulations and its Interpretive Guidance address what constitutes an impairment that "substantially limits" the major life activity of working. The regulations provide that:

   (3) With respect to the major life activity of "working"--(i) The term
   "substantially limits" means significantly restricted in the ability to
   perform either a class of jobs or a broad range of jobs in various classes
   as compared to the average person having comparable training, skills, and
   abilities. The inability to perform a single, particular job does not
   constitute a substantial limitation in the major life activity of working.
   (24)

The regulations also tell courts to look to "the number and types of jobs utilizing similar training, knowledge, skills, or abilities, within [plaintiff's] geographical area, from which the individual is also disqualified because of the impairment (class of jobs)." (25)

Alternatively, the court may consider "the number and types of other jobs not utilizing similar ... skills ... from which the individual is also disqualified because of the impairment (broad range of jobs in various classes)." (26)

The regulations instruct courts to consider the relative significance of the number of positions from which plaintiff is disqualified by the impairment, not those for which he or she remains qualified. (27) The EEOC does not intend a great burden on the plaintiff:

   The terms "numbers and types of jobs" and "number and types of other jobs,"
   as used in the factors discussed above, are not intended to require an
   onerous evidentiary showing. Rather, the terms only require the
   presentation of evidence of general employment demographics and/or of
   recognized occupational classifications that indicate the approximate
   number of jobs (e.g., "few," "many," "most") from which an individual would
   be excluded because of an impairment. (28)

A good strategy to withstand summary judgment on this issue was used in Mondzelewski v. Pathmark Stores, Inc. (29) The Third Circuit held that in determining whether an individual is substantially limited in the ability to perform the major life activity of work, "the court must consider the effect of the impairment on the employment prospects of that individual with all of his or her relevant personal characteristics." (30) Or, to put it differently, "the question is whether his ability to work is sufficiently limited in light of the training, skills, and abilities that he does possess." (31)

The Mondzelewski court also provided guidance regarding the nature and type of evidence required to survive summary judgment on this issue. The court denied summary judgment in Mondzelewski, based in part on the plaintiff's vocational expert's opinion that considered Mondzelewski's profile relative to almost 13,000 jobs listed in the Department of Labor's Dictionary of Occupational Titles. (32) The court held this was "sufficient to show for [the purpose of surviving summary judgment] that Mondzelewski is `significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.'" (33)

The forum trap. Lawyers have long assumed that federal courts were the best forum for civil rights claims. This is no longer true because of limitations imposed by decisions like Sutton.

That decision focused on "three separate provisions of the ADA, read in concert." (34) First, the Court noted that "the phrase `substantially limits' appears in the [definition of `disability'] in the present indicative verb form." (35) The Court concluded that the impairment, therefore, must be currently--not hypothetically or potentially--substantially limiting. (36)

Second, the Court noted that "disability" is defined under the ADA "with respect to an individual" and "the major life activities of such individual." (37) Disability determinations, therefore, must be individualized.

Finally, the Court found that the figure Congress relied on as the number of people in the nation with disabilities could not have included those who used ameliorative medicines or devices, and therefore the act did not cover these people. (38)

Most state courts have looked to federal case law, including ADA cases, when deciding similar issues under their own statutes. But many state laws differ dramatically from the ADA, especially those that predate it. These differences can be used to the plaintiff's advantage.

For example, a state law might not use the "present indicative verb form" in defining who is disabled--something the Supreme Court relied on in its Sutton analysis.

Also, legislative history regarding the number of people identified as disabled will not be comparable. Congress found that "43 million Americans have one or more physical or mental disabilities." (39) These findings were "critical" to the Sutton Court's holding that mitigating measures must be considered when determining whether a person has a "disability" under the ADA. (40)

The Court surmised that

   had Congress intended to include all persons with corrected physical
   limitations among those covered by the [ADA], it undoubtedly would have
   cited a much higher number of disabled persons in the findings. That it did
   not is evidence that the ADA's coverage is restricted to only those whose
   impairments are not mitigated by corrective measures. (41)

These legislative findings will not have informed the decisions of state lawmakers, who would have been concerned only with the populations of their states. In some cases, these lawmakers may have relied on figures that included people with "corrected physical limitations."

The first state high court to consider this argument, the Supreme Judicial Court of Massachusetts, distinguished Sutton on these very grounds. (42) This is cause for hope that the effect of Sutton can be ameliorated by using state laws.

All 50 states and the District of Columbia have passed laws prohibiting employment discrimination against persons with disabilities: The lawyer should always determine whether litigating in state court, under state law, would be beneficial to the client. If the attorney wants to be in state court, he or she must be sure to raise only state law claims, or the defendant will simply remove the case to federal court.

The administrative remedies trap. A worker alleging an ADA violation must allow the EEOC to investigate--and, if possible, conciliate--the charge before a civil lawsuit can be filed. Failure to do this may divest a federal court of jurisdiction to hear the claim. (43)

The allegations in the EEOC complaint should include any claims the client might eventually pursue in civil court. A request for reasonable accommodation must be made in the first action or the issue cannot be raised later. (44) Also, the civil complaint cannot include facts significantly different from those that supported the claims alleged in the EEOC complaint. The idea is that the agency should have first crack at investigating those facts. (45)

The client must wait at least 180 days after filing an EEOC charge before filing a claim in federal court. Once that time has passed, the client should request a right-to-sue letter from the EEOC before filing suit.

This letter does not have to be requested as soon as the 180 days have elapsed, and counsel may want to hold off--particularly if mediation is ongoing--to avoid a defense claim that the plaintiff failed to exhaust administrative remedies. Plaintiff lawyers should remember that this defense is waived if it is not raised at the close of the plaintiff's case in a motion for judgment under Federal Rule of Civil Procedure 50(b). (46)

The limitations period trap. A claim of discrimination under the ADA must usually be filed with the EEOC within 180 days of the last act of discrimination. But because Congress intended to give states an opportunity to address discrimination charges before the federal government does, the limitations period may be longer--up to 300 days--if there is a work-sharing arrangement with the EEOC allowing claims to be filed first with a state or local agency. (47) However, the varying state and agency practices, and the different interpretations courts have given them, make filing deadlines a procedural labyrinth. Counsel must be up to date on the law in the jurisdiction and, whenever possible, file within the 180-day limitation period.

An actual charge, rather than a mere informal complaint, should be filed with the EEOC. (48) For example, in Proffit v. Keycom Electronic Publishing (49) the employee filled out an intake questionnaire and was led to believe that a formal charge had been filed, when in fact one had not. The case was dismissed for failure to file a timely charge.

Similarly, in Hill v. St. Louis University the plaintiff had filed an intake questionnaire within 180 days, but it was not verified and did not set forth the basis for her claims as required under the state law, and therefore the state law charges were dismissed. (50) If a worker has been subjected to continuing discrimination, that must be included in the charge. (51)

The laches trap. If an EEOC claim sits without action for too long, the defendant may argue that it is barred by the doctrine of laches. Counsel should monitor a claim's progress carefully and be sure that the record shows vigilance. If a claim appears to be languishing and 180 days have passed since it was filed, counsel should consider requesting the right-to-sue letter.

The "treatable" disability trap. The Sutton Court held that twin sisters who required glasses because of their severe myopia were not disabled because with the glasses their vision was 20/20. (52)

Yet, mitigating measures are not always effective and may substantially limit a person's ability to engage in a major life activity. The Supreme Court acknowledged this: "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." (53)

If the defendant argues that the plaintiff's disability is treatable, counsel should stress the dangers, side effects, and uncertain results of the treatment suggested. All treatments have the potential to fail; it is the defendant's burden to prove that the one it suggests would be effective.

This is a hot issue. In one recent case, Saks v. Franklin Covey Co., (54) the plaintiff suffered from infertility. The defendants argued that some percentage of infertile people can be treated and that therefore, under Sutton, the plaintiff was not disabled.

The trial court disagreed: "The Supreme Court did not intend to rule that no disease or organic defect can qualify as an ADA disability as long as some treatment can ameliorate its impact in some percentage of persons afflicted, however small that percentage may be." (55) The Saks court also noted that the plaintiff had tried the treatments, which had failed to result in a successful pregnancy.

The disparate-treatment trap. It is easy to focus only on reasonable accommodation in cases where a worker has been fired, but old-fashioned disparate-treatment analysis should not be ignored. In some cases, a reasonable-accommodation argument might not be necessary at all.

Consider the following hypothetical case. Your client has a psychological disorder that causes her to have occasional loud outbursts. Her former employer, which has a workplace rule regarding disturbances, refused to waive this rule as a reasonable accommodation and fired her.

You could argue that the rule should have been waived as an accommodation. But you should also try to find out whether the employer applied the rule uniformly. If you find out that nondisabled employees had outbursts and were not fired, then you need not make a reasonable-accommodation argument. If the employer waived the rule for nondisabled employees but not for your disabled client, an inference of intentional discrimination may be raised under a disparate-treatment theory.

Unkept promise

The promise of the ADA remains largely unfulfilled, but it is still a powerful weapon against discrimination. By being aware of--and avoiding when possible--the common traps of ADA cases, plaintiff lawyers can obtain justice for disabled workers and their families.

Notes

(1.) 42 U.S.C. [subsection] 12101-12213 (1999).

(2.) 29 U.S.C. [subsection] 701-796(1) (1999).

(3.) 42 U.S.C. [subsection] 12112(b)(5) (1999).

(4.) 29 C.F.R. [subsection] 1630.2(j)(3)(i), (ii) (2000).

(5.) 29 C.F.R. [subsection] 1630.2(j)(3)(i) (2000).

(6.) Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114-15 (9th Cir.), cert. granted in part, 121 S. Ct. 1600 (2000) (No. 00-1250); Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998) (describing the interactive process); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir. 1996) ("There may well be situations in which the employer's failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA."); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029 (1996) (holding that "the responsibility for fashioning a reasonable accommodation is shared between the employee and employer").

(7.) EQUAL EMPLOYMENT OPPORTUNITY COMM'N, ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT (Mar. 2, 1999), available at www.eeoc.gov/docs/accommodation.html; see also 29 C.F.R. [section] 1630.2(o)(3) (2000).

(8.) 524 U.S. 624 (1998).

(9.) 526 U.S. 795 (1999).

(10.) 527 U.S. 471 (1999).

(11.) 527 U.S. 555 (1999).

(12.) 527 U.S. 516 (1999).

(13.) 121 S. Ct. 1879 (2001).

(14.) See Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 HARV. C.R.-C.L. L. REV. 99, 109 (1999); see also Ruth Colker, Winning and Losing Under the Americans with Disabilities Act, 62 OHIO ST. L.J. 239 (2001).

(15.) See Catherine J. Lanctot, Ad Hoc Decision Making and Per Se Prejudice: How Individualizing the Determination of `Disability' Undermines the ADA, 42 VILL. L. REV. 327 (1997).

(16.) A good resource for ATLA members is the Employment Rights Section, whose members receive a directory of lawyers with experience litigating ADA cases. For membership information, call [phone], ext. 290.

(17.) 526 U.S. 795 (1999). See also DiSantov. McGrawHill, Inc., 220 F.3d 61, 65 (2d Cir. 2000) (holding that because plaintiff failed to explain his unqualified statement to the Social Security Administration that he was unable to work prior to his discharge, he failed to establish that he was qualified to perform the essential job functions); Fox v. General Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (stating that the ADA and the SSA "pursue different statutory purposes and require different, though related, inquiries into an individual's disability" ... in part because the SSA does not consider the possibility of reasonable accommodation when determining whether a claimant is disabled); Holtzclaw v. DS Communications Corp., 255 F.3d 254 (5th Cir. 2001) (upholding dismissal where plaintiff stated in an insurance application that he was "totally disabled," could not perform his own or any other job, and indicated that neither rehabilitation services, job modification, nor vocational retraining would allow him to return to work); Lawson v. CSX Transp., Inc., 245 F.3d 916, 927 (7th Cir. 2001) (noting that a person could be considered disabled by the SSA yet also be a "qualified individual with a disability" according to the ADA).

(18.) Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).

(19.) See, e.g., Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000), cert. denied, 121 S. Ct. 2591 (2001) (en banc); see also Erwin Chemerinsky, Protecting the Spending Power, 4 CHAPMAN L. REV. 89 (2001).

(20.) 209 U.S. 123 (1908).

(21.) Garrett, 531 U.S. 356 n. 9.

(22.) Most courts, as well as the EEOC regulations, accept "work" as a major life activity. See Gutridge v. Clure, 153 F.3d 898, 901 (8th Cir. 1998), cert. denied, 526 U.S. 1113 (1999); Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1173-74 (10th Cir. 1996); Zarzycki v. United Techs. Corp., 30 F. Supp. 2d 283, 288 (D. Conn. 1998). These cases hold that liking is a major life activity and discuss 29 C.F.R. pt. 1630, app. [section] 1630.2(i) Interpretive Guidance, App. [section] 1630.2(i), at 339 (citing S. Rep. No. 116, 101st Cong., 1st Sess., at 22 (1989); H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess., at 52 (1990); H.R. Rep. No. 485 part 3,101st Cong., 2d Sess., at 28 (1990)). Moreover, the regulations provide that an individual is "substantially limit[ed]" if he or she is "significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to [that] under which the average person in the general population can perform that ... activity." 29 C.F.R. [section] 1630.2(j)(1)(ii) (2000).

(23.) See Merry v. A Sulka & Co., 953 F. Supp. 922, 926 n.8 (N.D. Ill. 1997).

(24.) 29 C.F.R. [section] 1630.2(j)(3)(i) (2000).

(25.) 29 C.F.R. [section] 1630.2(j)(3)(ii)(B) (2000).

(26.) 29 C.F.R. [section] 1630.2(j)(3)(ii)(C) (2000).

(27.) 29 C.F.R. [section] 1630.2(j)(3)(i), (3)(ii)(B) & (C) (2000).

(28.) Interpretive Guidance, App. [section] 1630.2(j), supra note 22, at 340-41.

(29.) 162 F.3d 778 (3d Cir. 1998).

(30.) Id. at 784.

(31.) Id. at 785.

(32.) Id.

(33.) Id.

(34.) Sutton, 527 U.S. 471, 482.

(35.) Id.

(36.) Id.

(37.) 42 U.S.C. [section] 12102(2) (1999).

(38.) Sutton, 527 U.S. 471, 484-85.

(39.) 42 U.S.C. [section] 12101(a) (1) (1999).

(40.) Sutton, 527 U.S. 471, 484.

(41.) Id. at 487.

(42.) Dahill v. Police Dep't of Boston, 748 N.E.2d 956 (Mass. 2001).

(43.) See Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997), cert. denied, 523 S. Ct. 1136 (1998) (reversing award to plaintiff because plaintiff had failed to cooperate in the administrative investigation).

(44.) See, e.g., Jones v. Sumser Retirement Village, 209 F.3d 851, 854 (6th Cir. 2000).

(45.) See, e.g., Davis v. Sodhexo, Cumberland College Cafeteria, 157 F.3d 460, 463-64 (6th Cir. 1998).

(46.) See, e.g., Williams v. Runyon, 130 F.3d 568, 572 (3d Cir. 1997).

(47.) 42 U.S.C. [section] 2000e-5(e) (1) (1999). The ADA has incorporated the Title VII procedures, including the deferral jurisdiction period. 42 U.S.C. [section] 12117(a) (1999). The procedures are complex, and court decisions interpreting this section are inconsistent.

(48.) See Roman-Martinez v. Runyon, 100 F.3d 213, 218-19 (1st Cir. 1996); see also Shempert v. Harwick Chem. Corp., 151 F.3d 793 (8th Cir. 1998), cert. denied, 525 U.S. 1139 (1999).

(49.) 625 F. Supp. 400 (N.D. Ill. 1985).

(50.) 123 F.3d 1114, 1118 (8th Cir. 1997).

(51.) See Marshall v. Federal Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (stating that "a vague or circumscribed EEOC charge will not satisfy the exhaustion requirement for claims it does not fairly embrace").

(52.) Sutton, 527 U.S. 471.

(53.) Id. at 482.

(54.) 117 F. Supp. 2d 318 (S.D.N.Y. 2000).

(55.) Id. at 325.

Edward G. Kramer is a partner with Kramer & Associates in Cleveland. David G. Oakley is an associate with the firm. The authors thank Mary Jo Hanson, a student at Cleveland-Marshall College of Law, Cleveland State University, for her research assistance in preparing this article.