Has the ADA got your client covered?

The first step in these cases is determining whether the client is covered by the ADA. That first step can be a doozy.

Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of disability. Under the law, a "qualified individual with a disability" is protected from discrimination in job application procedures, hiring, advancements, discharge, compensation, and training, as well as other terms and conditions of employment.(1)

An analysis of any potential ADA case begins with the fundamental question: Is the person protected by the ADA? This seemingly simple question is often difficult, even for the courts, to answer.

The U.S. Equal Employment Opportunity Commission (EEOC) has issued regulations and a Guidance that help in determining who is protected by the law? But circuit court decisions interpreting the law and the commission regulations have varied considerably.

Adding to the confusion, the U.S. Supreme Court has issued recent decisions that have resolved some uncertainties but raised others. For example, the Court has questioned the authority of the EEOC or any agency to issue regulations pertaining to the definition of disability or related definitions. But it has also quoted approvingly from an EEOC regulation that does just that? Inconsistencies like this suggest that the question of who is covered by the ADA will continue to be a very fertile area for litigation.

The ADA defines a "qualified individual with a disability" as a person with a disability who with or without reasonable accommodation can perform the essential functions of a position. A person has a disability if the person has "a physical or mental impairment which substantially limits one or more of the [person's] major life activities." A person is also considered to have a disability if he or she has "a record of such an impairment" or is "regarded as having such an impairment."(4)

What is an impairment?

The regulations broadly define impairment to include most physical or mental disorders. The definition is consistent with common sense, and plaintiff lawyers will usually be able to determine whether a client has an impairment by asking him or her just a few questions. If any doubt remains, a medical diagnosis can confirm the impairment.

Homosexuality and bisexuality are not impairments, according to the act. Neither are social conditions, like illiteracy or a criminal history. But if a person's illiteracy is due to a learning disability, the learning disability is an impairment. Drug addiction and alcoholism are impairments.(5)

Pregnancy(6) and aging, which are not physical or mental disorders, are not impairments. Complications arising from pregnancy or consequences of aging, like osteoporosis, are impairments.

Limiting major life activities

The EEOC Guidance and virtually every decision interpreting the ADA make clear that a person who has an impairment does not necessarily have a disability as defined by the act. Whether a person has a disability depends on the extent to which the impairment limits major life activities.(7)

EEOC regulations define major life activities as "functions such as caring for oneself, performing manual tasks, walking, seeing, speaking, breathing, learning, and working."(8) The list is intended to be representative, not exhaustive.

The activities listed are all basic, common activities that people without impairments perform regularly. The Guidance gives other examples, including sitting, standing, lifting, and reading, as well as thinking, concentrating, and getting along with others.(9)

Archery and in-line skating, for example, would not be major life activities, even if they are significant parts of a person's life. Getting along with one specific individual is not a major life activity.(10)

The regulations list "working" as a major life activity. According to the regulations, an individual who is not substantially limited in any other major life activity may be substantially limited in the ability to work. But lawyers should be careful about alleging that a client's ability to work is substantially limited. The stronger the evidence that the client cannot work, the less likely the client will be covered by the act.

EEOC regulations go into great detail in defining whether an impairment substantially limits the ability to work. It is not enough that an impairment limit the person's ability to perform the job at issue. The impairment must restrict the person's ability to perform either a class of jobs or a broad range of jobs in various classes.(11)

To determine whether an impairment substantially limits the ability to work, the lawyer must consider its severity and duration and how the impairment affects the client's ability to do his or her specific job as well as other jobs within the same geographical area.(12) According to the EEOC, it is not necessary to provide a detailed analysis or expert testimony about the actual number or availability of jobs the client cannot do. However, the lawyer should be aware that some courts may be skeptical of statements on this issue that are not supported by expert testimony.

Generally speaking, an impairment must be serious in terms of its severity and duration to be substantially limiting. A limp that slightly affects a person's gait does not substantially limit the activity of walking. An impairment, however, need not be permanent to be deemed a disability, but it must be long-term.(13) A severe impairment, even a coma, would not be substantially limiting if it is of short duration.(14)

The First Circuit has held that carpal tunnel syndrome substantially limited a person in the major life activity of working. The Sixth Circuit, on the other hand, held the opposite.(15) The results appear to be a classic conflict, but the inconsistency may be because the plaintiffs' conditions were of differing severity or because of differences in their job markets.

The regulations also list "lifting" as a major life activity.(16) The Fourth Circuit has held that as a matter of law, a plaintiff who is limited to lifting no more than 25 pounds is not significantly limited in the major life activity of lifting. Yet, the Tenth Circuit held that a person who could lift no more than 15 pounds raised a material issue of fact with respect to whether her impairment substantially limited a major life activity.(17)

The recent Supreme Court decision in Bragdon v. Abbott(18) may help courts interpret the ADA more uniformly in employment cases even though that case did not involve employment discrimination. It centered on the ADA's public accommodation provisions, Title III of the act. The Court held that reproduction is a major life activity and that asymptomatic HIV is a disability within the meaning of the ADA.

The Court found that a condition need not have economic or daily impact on a client's life to qualify as a major life activity. In holding that asymptomatic HIV is a physical impairment and that reproduction is a major life activity, the majority cited with approval the regulations and Guidance issued by the EEOC for implementing Title I of the act, as well as similar determinations by other agencies.

The Court's holding should have significant impact on future ADA employment cases. The Court said, "The act addresses substantial limitations on major life activities, not utter inabilities."(19) It does not matter that a person with HIV is physically able to reproduce, the Court said. The presence of the virus significantly limits reproduction even though the limitation may be viewed as a matter of "choice." The Court gave great weight to the plaintiff's testimony about how HIV affected her choices and decisions regarding reproduction.

As the regulations state, to qualify as "substantially limited," a person must be unable to perform an activity or be significantly restricted in doing so, as compared to the general population. To support a claim of substantial limitation, the client's testimony should be as detailed as possible. A friend or relative can help describe the client's limitations. Experts may provide insight into the abilities of an average person, as well as the medical basis for the client's limitations.

It is not clear how the circuits will apply Bragdon. The Tenth Circuit has held "concentration" is not a major life activity, even though the Guidance includes it as an example. The Tenth Circuit said the Guidance is entitled to "no special deference." The Third Circuit, in contrast, affords the Guidance "a great deal of deference."(20)

With regard to how limiting an impairment must be before it is considered substantially limiting, Bragdon has not yet caused any discernible shift among the circuits. We can only hope that the Supreme Court's statement that the act "addresses substantial limitations ... not impossibilities" will ultimately hold sway, but, so far, the results have been mixed.

For example, the Sixth Circuit has held that a person with a serious type of pustular psoriasis was disabled, although the most serious symptoms occurred only during "flare-ups," which come as many as eight years apart.(21) The Eighth Circuit held that Meniere's disease, which occasionally caused episodes of vertigo and vomiting and exacerbated a man's otherwise mild hearing loss, did not substantially limit the activity of working.(22)

One thing that is clear is that a plaintiff's impairment is judged with respect to whatever ameliorative aids he or she uses and whether these aids have a positive or negative effect on an activity.(23)

For example, if a condition is alleviated through hearing aids or glasses or is controlled by medication, the person may not have a disability as defined by the act. Conversely, a person who uses an ameliorative aid, like medication, that has a disabling side effect may be considered disabled. Each client must demonstrate how an impairment limits a major life activity. For better or worse, an individualized approach appears to be here to stay, or at least until Congress says otherwise.

Essential functions

A person who is deemed to have a disability as defined by the act must also show he or she can perform the essential functions of the position in question with or without reasonable accommodation.

People with ADA employment claims typically fall into one of three categories. In the first, the person is able to do all the essential functions of the job without a reasonable accommodation. In the second, the person cannot do all functions of the job and disagrees with the employer about which functions are essential. And, in the third, the person cannot do the essential functions of the job without reasonable accommodation.

The statute mandates that the powers, remedies, and procedures under Title VII apply to ADA claims as well.(24) Under Title VII, when there is no direct evidence of discrimination, a plaintiff makes out a prima facie case by proving he or she is a member of a protected class and has suffered an adverse employment decision. The employer may rebut this by producing evidence that it had a legitimate, nondiscriminatory reason for its action. If the employer does so, the burden is on the plaintiff to prove that unlawful discrimination occurred.(25)

Courts routinely apply this analysis to ADA cases.(26) This burden-shifting works easily in cases in which plaintiffs assert that they can perform a job without accommodation and have no direct evidence of discrimination.

Lawyers should be aware, however, that in some cases the ADA may place a heavier burden on the employer. For example, the ADA prohibits the use of selection criteria that screen out or tend to screen out qualified individuals with disabilities unless the challenged criteria are "shown to be job-related for the position in question and consistent with business necessity."(27)

The Sixth Circuit has held that when a plaintiff challenges an allegedly essential function as nonessential, the employer has the burden of proving the challenged criterion is job-related and consistent with business necessity.(28) The ADA requires covered employers to make reasonable accommodation for a qualified individual's disability "unless such covered entity can demonstrate that the accommodation would impose an undue hardship."(29)

The ADA states that an employer may require as a qualification standard that an employee not pose a direct threat to the safety of others. The employer may raise this as an affirmative defense.(30) The employer can only succeed with this defense if the direct threat cannot be eliminated through a reasonable accommodation. The EEOC's regulation appears to go a step further by saying an employer can also require an employee to show he or she does not pose a direct threat to himself or herself(31)

The U.S. Supreme Court has held that people with disabilities who receive disability-based benefits, like Social Security Disability Insurance, based on a claim that they cannot work may have to explain why they should be entitled to ADA protection, which is available only to people who can work either with or without accommodation. However, application for or receipt of these benefits does not automatically bar a person from claiming to be qualified under the ADA.(32)

The ADA does not define the term "essential function." It is defined in the regulations as "the fundamental job duties of the employment position that an individual with a disability holds or desires."(33)

The EEOC considers a job function essential when (1) the position exists to perform the function, (2) the job function cannot be distributed to others due to the limited number of available employees,(34) or (3) the function is so highly specialized that the person doing it is hired for his or her expertise in performing the function. This list is not exhaustive.

Although a written job description and the employer's opinion regarding whether a function is essential will both carry weight with a court, neither is determinative. The court will also consider what other employees in the position do, how much of their time is spent doing the function, and whether there are other employees to perform the function without creating an undue burden on the employer.

Courts have interpreted "essential functions" to include attendance,(35) the hours between which an employee must be at work, the number of hours an employee must work per week, and where the employee must work. Courts have said that accommodating a request by an employee to modify work hours or venue would eliminate an essential function of a job.(36)

For example, the First Circuit held that a work week of 50 to 70 hours was an essential function of the job of a human resources manager, and that the plaintiff's request to work 40 hours a week would, in effect, eliminate this essential function.(37) The First Circuit rejected the plaintiff's argument that her request was a reasonable accommodation as defined by the ADA even though the act includes in its definition of reasonable accommodation a modified work schedule.(38)

Reasonable accommodation

A person who can do a job only with a reasonable accommodation is, by definition, not qualified to perform the essential functions of the job without the accommodation.(39) But this person is considered "otherwise qualified" to do the job. (40) A person who is not either qualified or otherwise qualified is not entitled to protection under the ADA. An employee who refuses a reasonable accommodation offered by the employer is not qualified.(41)

The definition of "reasonable accommodation" includes, but is not limited to, "making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and ... job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials, or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities."(42)

Plaintiff attorneys should focus on what the barrier to the client's employment is, why that barrier discriminates on the basis of disability, and how the requested accommodation will eliminate that barrier. Lawyers should consider hiring an expert in the client's disability or an expert in the rehabilitation of people with the disability who can testify about specific employment barriers people with the disability tend to encounter.

According to the statute, an accommodation is reasonable if it enables an otherwise qualified individual to perform the essential functions of the job. Courts have not, for the most part, based decisions solely on this factor. They also consider whether the accommodation is reasonable from the employer's point of view.

For example, courts that have decided the issue have determined that an accommodation that would interfere with the seniority system under a collective bargaining agreement is not reasonable.(43) Under certain circumstances, reasonable accommodation may include reassignment to a vacant position.(44)

The circuits articulate differently the employee's burden to show that a requested accommodation is reasonable.(45) The Second and Third Circuits require the employee to show that the costs of the requested accommodation do not exceed its benefits. The Sixth Circuit requires a plaintiff to show that the accommodation is "objectively reasonable." The Seventh Circuit requires the parties to engage in an "interactive process" to determine an appropriate accommodation.(46)

ADA case law is still in the formative stages, and many of the decisions turn on the individual facts of a case. Consequently, determining whether an ADA employment discrimination case is likely to succeed can be difficult. Lawyers should exercise caution when deciding to take on a case and never assume that a client will be covered under the act simply because another plaintiff with the same condition was deemed covered.

Notes

(1.) 42 U.S.C. [sections] 12112(a) (1994).

(2.) 29 C.F.R. pt. 1630 (1998); EEOC Compliance Manual (CCH) [sections] 902 "Definition of the Term `Disability'" (1995) [hereafter Guidance].

(3.) Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 1999 WL 407488, at *6 (June 22, 1999); Murphy v. United Parcel Serv., Inc., 119 S. Ct. 2133, 1999 WL 407472, at *4-5 (June 22, 1999). But see Albertson's, Inc. v. Kirkingburg, 119 S. Ct. 2162, 1999 WL 407456, at *6 (quoting 29 C.F.R. pt. 1630 app. [sections] 1630.2(j) (1998)) (June 22, 1999).

(4.) 42 U.S.C. [sections] 12102(2) (1994).

(5.) See, e.g., McDaniel v. Mississippi Baptist Med. Ctr., 877 F. Supp. 321, 326 (S.D. Miss.), aff'd without opinion, 74 F.3d 1238 (5th Cir. 1995); Flynn v. Raytheon Co., 868 F. Supp. 383, 385 (D. Mass. 1994), subsequent appeal, 1996 U.S. App. LEXIS 20837 (1st Cir. Aug. 19, 1996); Colorado State Bd. of Med. Examiners v. Davis, 893 P.2d 1365, 1368 (Colo. Ct. App. 1995).

(6.) See Richards v. City of Topeka Fire Dep't, 173 F.3d 1247, 1250 n.2 (10th Cir. 1999).

(7.) See Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228, 1230 (10th Cir. 1999).

(8.) 29 C.F.R. pt. 1630.2(i) (1998).

(9.) Id.; Guidance, supra note 2, [sections] 902.3.

(10.) See, e.g., Siemon v. AT&T Corp., 117 F.3d 1173, 1176 (10th Cir. 1997).

(11.) See, e.g., Frix v. Florida Tile Indus., 970 F. Supp. 1027, 1034 (N.D. Ga. 1997).

(12.) 29 C.F.R. pt.1630.2(j)(3) (1998); Guidance, supra note 2, [sections] 902.4(c).

(13.) Aldrich v. Boeing Co., 146 F.3d 1265, 1270 (10th Cir. 1998) (citing 29 C.F.R. [sections] 1630.2(j)(2)(iii) (1998); EEOC Compliance Manual [sections] 902.4(d), at 902-30 (1995)), cert. denied, 119 S. Ct. 2018 (1999).

(14.) 29 C.F.R. pt. 1630.2(j) (1998).

(15.) Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 9-10 (1st Cir.), petition for cert. filed (June 21, 1999). But see McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir.), reh'g, en banc, denied, 1997 U.S. App. LEXIS 11340 (6th Cir. May 12, 1997).

(16.) 29 C.F.R. pt. 1630, app. [sections] 1630.2(i) (1998).

(17.) Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996), cert. denied, 520 U.S. 1240 (1997). But see Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir. 1996), further proceeding, 149 F.3d 1191 (10th Cir. 1997).

(18.) 118 S. Ct. 2196 (1998).

(19.) Id. at 22O6.

(20.) Pack v. K-Mart Corp., 166 F.3d 1300, 1305 n.5 (10th Cir.), petition for cert. filed (May 4, 1999). But cf. Mondzelewski v. Pathwork Stores, Inc., 162 F.3d 778, 783 n.3 (3d Cir. 1998).

(21.) Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 780 (6th Cir.), reh'g, en banc, denied, 1998 U.S. App. LEXIS 29662 (6th Cir. Oct. 16, 1998).

(22.) Perkins v. St. Louis County Water Co., 160 F.3d 446, 448 (8th Cir. 1998).

(23.) See cases cited in note 3.

(24.) 42 U.S.C. [sections] 12117(a) (1994).

(25.) McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

(26.) See Butler v. City of Prairie Village, 172 F.3d 736, 747 (10th Cir. 1999).

(27.) 42 U.S.C. [sections] 12112(b)(6) (1994).

(28.) Hamlin v. Charter Township, 165 F.3d 426, 429 (6th Cir. 1999). But see Laurin v. Providence Hosp., 150 F.3d 52 (1st Cir. 1998).

(29.) 42 U.S.C. [sections] 12112(b)(5)(A) (1994).

(30.) 42 U.S.C. [sections] 12113(a) and (b) (1994).

(31.) 29 C.F.R. pt. 1630.15(b)(2) (1998).

(32.) Cleveland v. Policy Management Sys. Corp., 119 S. Ct. 1597 (1999),vacating and remanding 120 F.3d 513 (5th Cir. 1997).

(33.) 29 C.F.R. pt. 1630.2(n)(1) (1998).

(34.) See also Anderson v. Coors Brewing Co., No. 98-1261, 1999 U.S. App. LEXIS 14657, at *12-13 (10th Cir. 1999) (holding that requiring an employer to change a multiple task job to a single task job fundamentally and unreasonably alters the job position).

(35.) See, e.g., Keoughan v. Delta Airlines, Inc., No. 96- 4072, 1997 U.S. App. LEXIS 12232, at *7 (10th Cir. 1997).

(36.) But see Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1333 (10th Cir. 1998) (finding that leave is a reasonable accommodation where the length of time requested falls within the employer's written leave policies). Employers, however, are not obligated to accommodate indefinite leave. See Hudson v. MCI Telecoms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996); Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995).

(37.) Tardie v. Rehabilitation Hosp., 168 F.3d 538, 544 (1st Cir. 1999); see also Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998).

(38.) 42 U.S.C. [sections] 12111(9) (1994).

(39.) An employer need only accommodate a known disability. See Crandall v. Paralyzed Veterans of Am., 146 F.3d 894, 898 (D.C. Cir. 1998); cf. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509 n.6 (7th Cir. 1998).

(40.) 42 U.S.C. [sections] 12112(b)(5)(A) (1994).

(41.) Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir.), cert. denied, 119 S. Ct. 407 (1998).

(42.) 42 U.S.C. [sections] 12111(9) (1994).

(43.) See, e.g., Willis v. Pacific Maritime Ass'n, 162 F.3d 561 (9th Cir. 1998), later proceeding, 1999 U.S. App. LEXIS 14963 (9th Cir. 1999); Aldrich, 146 F.3d 1265, 1272; Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 809-10 (5th Cir. 1997), cert. denied, 522 U.S. 1115 (1998). But see Emrick v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 396-97 (E.D. Tex. 1995).

(44.) See, e.g.,Smith v. Midland Brake, Inc., No. 96-3018, 1999 U.S. App. LEXIS 13185, at *9-11 (10th Cir. June 14, 1999).

(45.) See Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 136-38 (2d Cir. 1995).

(46.) Stone v. City of Mount Vernon, 118 F.3d 92, 98 (2d Cir. 1997), cert. denied, 522 U.S. 1112 (1998); see Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580-81 (3d Cir. 1998); Monette v. Electronic Data Sys., 90 F.3d 1173, 1183 (6th Cir. 1996); see also Templeton v. Neodata Servs., 162 F.3d 617, 619 (10th Cir. 1998); Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996); Derbis v. United States Shoe Corp., No. MJG-93-130, 1994 U.S. Dist. LEXIS 13890, at *17 (D. Ind. Sept. 7, 1994) (finding no violation in not allowing the plaintiff to return to work where she refused to consider complying with reasonable accommodations), aff'd, in part, 67 F.3d 294 (4th Cir. 1995).

RELATED ARTICLE: Keeping pace with changes in employment law

In the increasingly dynamic area of employment law, plaintiff attorneys must stay connected to keep pace with changes. ATLA's Employment Rights Section provides both networking and educational opportunities for members practicing in this field.

The section focuses on the aggressive enforcement of the Fair Labor Standards Act; employment-related civil rights statutes, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Equal Pay Act; and common law claims arising in the workplace, including wrongful discharge and negligent or intentional infliction of emotional distress.

"Employment law continues to be a rapidly expanding field of law. Employment litigation has become more complex and more contentious," says section chair Jeffrey Needle of Seattle. "This section provides an outstanding support mechanism for all those who litigate in the field."

One valuable service the section provides is the opportunity to network with other employment rights practitioners. Section members have access to the Employment Rights online list serve and document library. They also receive a membership directory and four annual newsletters.

This year the section is planning to host a "bring your files" session at the January 2000 winter convention in Puerto Rico, work on a third edition of the section forms book, and provide amicus curiae support for ATLA members as requested and appropriate, adds Needle.

Other section officers are Donald Hill, chair elect, of Dallas; Edward Kramer, first vice chair, of Cleveland; Monica McFadden, second vice chair, of Chicago; Mary Dryovage, secretary, of San Francisco; Robert Hernandez, treasurer, of Malden, Massachusetts; and Christopher Thorman, newsletter editor, of Cleveland.

The section currently has more than 1,100 members. Annual dues of $40 cover a section membership directory, forms book, newsletter, and access to the list serve and document library.

For more information about the section and its various activities, contact the Section Coordinator at [phone], ext. 312, or visit the section's information page on the ATLA NET Web site at http://www.atla.org/members/ sections.ht.

Dennis Levandoski practices law in Falmouth, Maine. Sheila Zakre is a lawyer with the Disability Rights Center in Concord, New Hampshire.