Second Circuit puts 'interacting with others' under ADA's ambit.

"Interacting with others" is a major life activity under the Americans with Disabilities Act (ADA), the Second Circuit has ruled. However, the court threw out a jury verdict for the plaintiff in the case, laying out a strict test for determining whether a condition substantially limits that activity. (Jacques v. DiMarzio, Inc., Nos. 03-9080, 03-9109, 2004 WL 2223217 (2d Cir. Oct. 5, 2004).)

The ruling is important because "if inability to interact with others is deemed a major life activity, it significantly expands when individuals can recover under the ADA," said Duke University law professor Erwin Chemerinsky.

Plaintiff Audrey Jacques worked at a Staten Island, New York, electric-guitar factory owned by DiMarzio, Inc. She had suffered what her complaint called "severe and major depressions" for years and in 1991 was diagnosed with chronic bipolar disorder. In 1996, the company fired her after she had numerous confrontations with coworkers, including her immediate supervisor. One coworker lodged a harassment complaint against her.

The case began when Jacques filed unsuccessful complaints before the National Labor Relations Board and the New York State Division of Human Rights, claiming she was terminated because she was "regarded as" disabled. She then sought and received a right-to-sue letter from the U.S. Equal Employment Opportunity Commission.

A jury in the Eastern District of New York found that DiMarzio had fired Jacques because it "perceived" her as being disabled in the major life activity of "interacting with others" and awarded compensatory and punitive damages. DiMarzio appealed, challenging how the judge instructed the jury.

The judge had relied on the Ninth Circuit's ruling in McAlindin v. County of San Diego, which described "interacting with others" as "an essential, regular function, like walking and breathing," that easily qualifies under the ADA. (192 E3d 1226 (9th Cir. 1999).)

The Ninth Circuit said its ruling did "not mean that any cantankerous person will be deemed substantially limited in a major life activity." Rather, the plaintiff must show that the limitation is "substantial when compared to the ability of 'the average person in the general population'" and that his or her relations with others are marked by "consistently high levels of hostility, social withdrawal, or failure to communicate when necessary."

The Ninth Circuit's position contrasted sharply with that of the First Circuit, which held in Soileau v. Guilford of Maine, Inc., that the "ability to get along with others" is never a major life activity under the ADA because the concept is "remarkably elastic, perhaps so much so as to make it unworkable as a definition." (105 F.3d 12 (1st Cir. 1997).) That court ruled that imposing "legally enforceable duties on an employer based on such an amorphous concept would be problematic."

The Second Circuit considered both of these positions and drew a distinction between "get [ring] along with others" and "interacting with others."

"We ... think that 'interacting with others,' as overarching as it may be, more objectively describes a life activity than does 'getting along with others,' which connotes proficiency or success and worsens the problem of subjectivity that concerned the First Circuit," Judge Dennis Jacobs wrote for the court.

However, the Second Circuit concluded it could not concur with the Ninth Circuit's test for determining when a limitation on this activity is "substantial," finding that measuring "hostility" and "withdrawal" would be too subjective. Instead, the court used "ability to conmmnicate with others" as the criterion.

"The standard is not satisfied by a plaintiff whose basic ability to communicate with others is not substantially limited but whose communication is inappropriate, ineffective, or unsuccessflfl," Jacobs wrote. "A plaintiff who otherwise can perform the functions of a job with (or without) reasonable accommodation could satisfy this standard by demonstrating isolation resulting from any of a number of severe conditions, including acute or profound cases of autism, agoraphobia, depression, or other conditions that we need not try to anticipate today."

The court concluded that the district judge had erred in instructing the jury because he followed the Ninth Circuit's standard. It remanded the case for a new trial.

"The Second Circuit's opinion is a middle ground between the First and Ninth circuits," said Chemerinsky. "I think that makes it very likely that the Supreme Court will grant review."