Focusing on Disability, Not Discrimination
If a woman whose arthritis is so bad that she needs a walker to get around isn't a person with a disability, then who is? The National Council on Disability (NCD), an independent federal agency created in 1978, asked the same question 15 years after the passage of the Americans with Disabilities Act (ADA) in a recent report called "Righting the ADA." A copy of the report is available online: Righting the ADA 
(www.ncd.gov/newsroom/publications/2004/righting_ada.htm).
The report maintains that, since the enactment of the ADA, federal courts have chipped away at its protections to the point where they've been denied-not only to the woman with the walker, but also to people with asthma, epilepsy, seizure disorders, HIV and multiple sclerosis, to name just a few conditions. What's worse, the NCD says, is the fact that the bulk of the courts' decisions under the ADA have focused not on the existence or absence of workplace bias, but on the status of the person bringing the case, forcing employees to reveal sensitive personal details and circumventing the law's intended focus on employer behavior.
To right the course of the ADA, counteract the effect of restrictive court decisions and bring the law back to its original legislative intent, the NCD says, it has drafted and is proposing an ADA Restoration Act. The measure is intended to reinstate the original, congressionally intended breadth of the ADA's protections, restore some remedies that court decisions have restricted, and curtail certain inappropriate defenses that have been grafted onto its carefully crafted standards.
Of all the issues raised in "Righting the ADA," disability advocates agree that the most significant are those connected with the court decisions that have incrementally narrowed the ADA's definition of disability.
"The ADA is the only area of discrimination law where the plaintiff has to have a mini-lawsuit about whether he or she is a person with a disability before the case even gets to the heart of the controversy," said Harriet McBryde Johnson, a disability rights lawyer in Charleston, SC.
"Discrimination should be the major target," agreed Jeff Rosen, NCD's general counsel and director of policy. "Look at [the laws against race or religious bias]-you don't try to ascertain whether the person's skin color qualifies them for protection, or whether a person went to religious services frequently enough to enable them to bring a bona fide claim of religious bias. We want to see the same thing with the ADA."
Peter Petesch, a partner with the Washington, DC, office of Ford and Harrison, says he thinks that the NCD report raises a good point when it complains that the focus in ADA cases has shifted to the status of the employee rather than the employer's behavior.
"That's a valid point, but I don't know of another fair way to do it, because unlike conditions such as gender, or age, there's not much of a bright line litmus test for disability," Petesch said. "The line between who wants protection and who's just imperfect is a complex, convoluted analysis. Just because a person has an imperfection, that doesn't render them protected. The law applies to those who are substantially limited."
"Complex" and "convoluted" have been used to describe the route that ADA plaintiffs must track. To establish entitlement to its protections, employees have to prove that they are a "qualified person with a disability," which involves showing, among other things, that they have impairments that keep them from doing activities that are centrally important to their daily lives.
The Supreme Court has used this definitional criterion to turn away the case of a factory worker whose carpal tunnel syndrome prevented her from doing her assembly line job because, even though she was unable to do her job, she could still do other manual tasks such as household chores and self-care. The case is Toyota Manufacturing Kentucky v. Williams, 122 S.Ct. 681 (2002).
Another definitional hurdle concerns the duration of the employee's impairment. In Williams, the Supreme Court said that an impairment must be permanent or long term to constitute a disability. In lower courts, according to the NCD report, this statement has resulted in the exclusion from protection of a number of conditions, many of them quite serious, including epilepsy, breast cancer, lumpectomy and radiation treatment, kidney obstruction, and arthritis that hampers the ability to walk.
In the arthritis case, Sutton v. New Mexico Department of Children, Youth and Families, 922 F. Supp. 516 (D.N.M. 1996), the employee's arthritis had deteriorated to the point where she needed a walker to get around. She had surgery to address the condition, and while recuperating, she claimed, her employer terminated her employment because of her disability. The court dismissed the case because she couldn't show that her condition was permanent or of long-term impact.
Another definitional roadblock concerns the number of jobs that employees' conditions prevent them from doing. In Williams, the Supreme Court said that employees aren't protected unless their conditions prevent them from doing a broad range of jobs. Lower courts have interpreted this to bar many employees from protection, even though they may have been fired, refused employment or otherwise disadvantaged at work because they couldn't show that their conditions prevented them from doing a broad range of jobs.
One example is the case of Lori Rhoads, a financial analyst with Standard Federal Savings Bank in Frederick, MD. The bank fired her for absenteeism when she was sidelined by bronchitis, pneumonia, severe lung infections and cluster-migraine syndrome, all of which came from workplace smoke that exacerbated her asthma. When she sued to get her job back, a federal court told her that she didn't qualify for protection under the ADA because she had to show not only that she couldn't work in her own smoke-infested office but also that she was substantially limited from working in a broad range of jobs. The case was Rhoads v. FDIC, 257 F.3d 373 (4th Cir. 2001).
Frank Alvarez, who heads the disability practice of management law firm Jackson, Lewis, says he agrees that lower court decisions have strayed a long way from the ADA's original legislative intent to improve employment opportunities for people with disabilities. "I've read the ADA's legislative history, and I think the court rulings are inconsistent," said Alvarez. "So the question must be asked: Why has the ADA case law developed this way?
Despite their allegiance to business interests, employers' attorneys Petesch and Alvarez say they respect the NCD report and the proposed legislation. Petesch agreed that the report makes good historical points about the prejudices and myths that have surrounded disabilities.
In fact, Rosen and others at the NCD stress the educational potential of their report. "Look at the example of women, Hispanics and African-Americans and their struggle for integration," said Rosen. "This struggle is not that different than where women were 50 years ago and African-Americans were 100 years ago. There's a building awareness of the issues. We're most interested in building a platform for an informed discussion."
(Source: "Advocates for the Disabled Seek Major Overhaul of the ADA," Diane Cadrain, HR Magazine, February, 2005.)
