Volume 20, Number 6
September 2003

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By Charles B. Craver

Charles B. Craver is a professor at George Washington University Law School.

This article explores the propriety of the Supreme Court's decisions on the Americans with Disabilities Act (ADA) concerning their impact on employment discrimination coverage and suggests alternative approaches that would be more consistent with both the express statutory provisions and the underlying legislative intent.

Scope of ADA coverage. The employment discrimination provisions of the ADA cover employers with 15 or more regular employees, employment agencies, and labor organizations. Generally, the ADA prohibits a "regulated entity" from discriminating against a qualified individual with a disability because of the disability of such individual in regard to employment. Covered parties must provide "reasonable accommodations" for known physical or mental limitations that will enable disabled persons to perform the essential functions of jobs, where such accommodations can be accomplished without undue hardship on the operation of the business.

The ADA poses three critical questions: who are "disabled" individuals, which disabled individuals are "qualified" for the positions in question, and what "reasonable accommodations" may enable disabled persons to perform the essential functions of those positions. The ADA contains a three-part definition of "disability": (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. Although Congress failed to provide definitions of "substantially limits" or "major life activities," it suggested that the definitions previously established by agencies empowered to enforce different provisions of the Rehabilitation Act should be applied to ADA cases. Department of Health, Education and Welfare (HEW) regulations promulgated under the Rehabilitation Act define "physical and mental impairments" to include physiological disorders, cosmetic disfigurements, anatomical losses affecting major systems of the body (e.g., neurological, musculoskeletal, respiratory, and cardiovascular), mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Equal Employment Opportunity Commission (EEOC) regulations have adopted this HEW approach. Rehabilitation Act regulations define "major life activities" to include "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."

EEOC regulations define the term "substantially limits" to cover individuals who are unable to perform a major life activity that average persons can perform or who are significantly restricted as to the manner under which they can perform a major life activity compared to the manner under which average people in the general population can perform the same major life activity. When determining whether disabling conditions are substantially limiting, EEOC regulations indicate that three factors should be considered: (1) nature and severity of the impairment; (2) duration or expected duration of the impairment; (3) permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.

Under the ADA, a "'qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." "Reasonable accommodations" include ready accessibility for disabled persons, job restructuring, part-time or modified work scheduling, reassignment to vacant positions, acquisition or modification of equipment, the provision of readers or interpreters, and other similar accommodations. The term "undue hardship" means action requiring significant difficulty or expense, when considered in light of (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility, the number of persons employed, the effect on expenses and resources, or other impact on the operation of the facility; (3) the overall financial resources of the covered entity; (4) the overall size of the business; and (5) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity.

Evaluation of Supreme Court approach. The Supreme Court appears to be concerned about two aspects of the employment discrimination protections. First, it seems to think that Congress went too far in extending such expansive protection to millions of individuals with physical and mental impairments. Second, it apparently fears that if claimants are found disabled within the meaning of the ADA, they will obtain or retain positions they are not fully capable of performing. This concern fails to appreciate the entire scope of the ADA. Its protections are limited to persons with conditions that substantially limit one or more major life activities. People who are only moderately affected are not covered, unless they are discriminated against because of records of prior impairments or because they are regarded as having substantially limiting impairments they do not actually have. Furthermore, even if individuals are substantially limited, the ADA does not guarantee them employment. They must be able to demonstrate that they are "qualified" employment candidates.

The Court thus ignores the true paradox associated with the employment discrimination provisions of the ADA. To be protected, you have to be so significantly limited by your condition that you are often unable, with or without an accommodation, to perform the essential functions of the job. In addition, if proposed accommodations are found to be "unreasonable" or to constitute "undue hardships," the claimants will be denied protection. As a direct result of the Supreme Court's judicial narrowing of ADA coverage, Disability Act plaintiffs win less often than plaintiffs seeking redress under other federal anti-discrimination statutes.

The enactment of the ADA seemed to extend broad employment discrimination protection to individuals with disabling conditions or records of impairments, or who are regarded as disabled. But the Court has chosen to interpret ADA provisions in ways that severely restrict statutory coverage. Even persons whom employers think are unable to perform particular jobs are unprotected, unless the employers believe they are substantially limited in their ability to perform a wide range of jobs. The Court has inexplicably refused to formally acknowledge that working constitutes a major life activity, despite the inclusion of working in EEOC regulations and the fact that Title I of the ADA protects the employment rights of disabled individuals. The Court has further rejected administrative regulations mandating that the impact of medical impairments be determined in their uncorrected or unmitigated state. While the Court may be right in concluding that individuals with corrected conditions are not substantially limited, it has ignored the fact that ignorant stereotypes may induce firms to consider such persons disabled when they make employment decisions.

Where the ability of disabled claimants to work has been an issue, the Court has required them to prove that their impairments substantially limit their capacity to perform a wide range of jobs, not just the ones they have been performing. Even significantly limited persons have been found non-disabled. The Court has created a paradox: Only severely limited individuals may establish that they are disabled under the act, and if they succeed, their limitations are likely to render them unqualified for the positions they seek.

The Supreme Court has also narrowed the scope of the "regarded as" prong of the disability definition. Adversely affected claimants are only entitled to statutory protection if they can demonstrate that the firms thought their impairments were substantially limiting, even though they were not, or believed that they had conditions that would have been substantially limiting if they actually had those impairments. This interpretation continues to deny employment to qualified disabled people based on the very stereotypes and misperceptions Congress hoped to eradicate through its enactment of the ADA.

The Supreme Court has ignored the fact that many disabled individuals may work effectively with minimal accommodations, and that the employment sections of the ADA do not require employers to prefer impaired candidates over more qualified non-impaired candidates. The operative provisions merely prohibit discrimination because of disabling conditions. Even if more expansive ADA coverage were available, covered firms could continue to hire and retain the most qualified persons.

- This article is an abridged and edited version of one that originally appeared on page 417 of The Labor Lawyer, Winter/Spring 2003 (18:3).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or go to www.ababooks.org.
- Website: www.abanet.org/labor/home.html.
- Periodicals: The Labor Lawyer, journal published three times per year; Labor and Employment Law, quarterly newsletter.
- Books and Other Recent Publications: Fair Labor Standards Act and 2002 Supp.; Employment Discrimination Law, 3d ed. and 2002 Supp.; Elkouri and Elkouri: How Arbitration Works, 5th ed.; How ADR Works; Covenants Not to Compete: A State-by-State Survey, 3d ed.; The Developing Labor Law, 3d ed. and 2002 Supp.; 2002 Supp. to How to Take a Case before the NLRB, 7th ed.; Equal Employment Law Update, Fall 2000 ed.; Employee Duty of Loyalty: A State-by-State Survey, 2d ed. and 2002 Cum. Supp.; The Railway Labor Act and 2001 Supp.; Employee Benefits Law, 2d ed. and 2002 Cum. Supp.; Occupational Safety and Health Law, 2d ed.; Trade Secrets: A State-by-State Survey and 2002 Supp.; International Labor and Employment Laws, vols. 1 and 2 and 2002 Supps.; Discipline and Discharge in Arbitration and 2001 Supp.

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