|
Supreme Court
Decisions Interpreting
the Americans with Disabilities Act
Updated September 17, 2002
National Council on Disability
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Washington, DC 20004
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ACKNOWLEDGMENT
The National Council on Disability (NCD) wishes to express its
appreciation to Professor Robert L. Burgdorf Jr. for developing
this analysis of Supreme Court decisions interpreting the Americans
with Disabilities Act (ADA).
INTRODUCTION
NCD is composed of 15 members, appointed by the President of the
United States and confirmed by the U.S. Senate. The overall purpose
of the agency is to promote policies, programs, practices, and procedures
that guarantee equal opportunity for all people with disabilities,
regardless of the nature or severity of the disability, and to empower
them to achieve economic self-sufficiency, independent living, and
inclusion and integration into all aspects of society. Part of NCD's
statutory mandate is to gather information about the implementation,
effectiveness, and impact of ADA.
In the last few years, the Supreme Court has issued a number of
decisions that have dramatically changed the way ADA is interpreted,
in most cases, contrary to what Congress intended. One decision
in particular, Board of Trustees of the University of Alabama
v. Garrett, 531 U.S. 356 (2001), devastatingly stripped the
right of state workers to sue their employers for money damages
for violations of Title I of ADA, which prohibits employment discrimination
against people with disabilities. In response, NCD convened a series
of meetings with disability policy experts to gain their assessment
of the breadth and nature of the impact of Supreme Court decisions
on ADA and other key civil rights laws.
This paper is intended to increase public awareness of ADA as interpreted
by the Supreme Court and to give policymakers and ADA stakeholders
an overview of ADA issues addressed by the Supreme Court, a synopsis
of the decisions, and the significant implications of each decision
in helping or hindering implementation of ADA. Finally, this paper
is intended to assist in the examination of the work that remains
to be done to realize the law's promise.
I. OVERVIEW OF ISSUES ADDRESSED
BY THE COURT IN ADA CASES
A. Pennsylvania Department of Corrections v. Yeskey,
524 U.S. 206 (1998).
ISSUE: Whether Title II of ADA covers state prisons and prisoners.
B. Bragdon v. Abbott, 524 U.S. 624 (1998).
ISSUES: Whether a dental patient's asymptomatic HIV infection
constituted a disability under ADA, and whether the evidence in
the case was sufficient to defeat the dentist's asserted defense
that filling the patient's cavity in his office would in his professional
judgment have presented a direct threat to health or safety.
C. Wright v. Universal Maritime Service Corp.,
525 U.S. 70 (1998).
ISSUE: Whether a general arbitration clause in a collective bargaining
agreement requires an employee to use the arbitration procedure
to address an alleged violation of ADA.
D. Cleveland v. Policy Management Systems Corp.,
526 U.S. 795 (1999).
ISSUE: The extent to which application for and receipt of disability
benefits precludes a person with a disability from bringing an
ADA claim.
E. Sutton v. United Airlines, 527 U.S. 471
(1999).
ISSUES: Whether, in a lawsuit brought by two job applicants with
severe nearsightedness (myopia) to challenge an airline's minimum
vision requirement for global pilots, corrective and mitigating
measures should be considered in determining whether an individual
is disabled under ADA, and whether the applicants had stated a
valid claim that the airline regarded them as disabled.
F. Murphy v. United Parcel Service, 527 U.S.
516 (1999).
ISSUES: Whether the condition of a mechanic whose high blood
pressure was controlled by medication should be considered in
a medicated or nonmedicated state in determining whether he has
a disability, and whether an employer's belief that the employee's
high blood pressure prevented him from satisfying a DOT health
requirement for driving commercial vehicles constituted regarding
him as having a disability under ADA.
G. Albertson's, Inc. v. Kirkingburg, 527 U.S.
555 (1999).
ISSUES: Whether having monocular vision constitutes per se disability
under ADA and whether a DOT safety regulation justified an employer's
visual-acuity job qualification standard, even though the DOT
regulation contained a waiver provision under which the standard
could be waived in an individual case.
H. Olmstead v. L.C., 527 U.S. 581 (1999).
ISSUES: Whether ADA requires a state to place people with mental
disabilities in community settings rather than in institutions
when the state's treatment professionals have determined that
community placement is appropriate, and what standard is to be
applied in assessing a state's assertion of a fundamental alteration
defense to the obligation to afford such community placement.
I. Board of Trustees of the University of Alabama
v. Garrett, 531 U.S. 356 (2001).
ISSUE: Whether the Eleventh Amendment bars employees of a state
from recovering monetary damages from the state for violations
of Title I of ADA.
J. Buckhannon Board and Care Home, Inc. v. W. Va.
Dep't of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835
(2001).
ISSUE: Whether federal statutes that allow courts to award attorney's
fees and costs to the "prevailing party" authorize awards of fees
to parties whose lawsuits brought about voluntary changes in the
defendants' conduct but did not result in judgments on the merits
or court-ordered consent decrees.
K. PGA Tour, Inc. v. Martin, 532 U.S. 661,
121 S.Ct. 1879 (2001).
ISSUES: Whether Title III of ADA protects qualified entrants
with disabilities participating in professional golf tournaments,
and whether allowing a golfer with a disability to use a golf
cart when all other competitors must walk would "fundamentally
alter the nature" of the tournaments.
L. Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 122 S.Ct. 681 (2002).
ISSUE: whether a worker's carpal tunnel syndrome and other painful
conditions of her wrists, elbow, and shoulders substantially limited
her in the major life activity of performing manual tasks and
thus constituted a disability under the ADA.
M. Equal Employment Opportunity Commission v. Waffle
House, Inc., 122 S.Ct. 754 (2002).
ISSUE: whether an agreement between an employer and an employee
to arbitrate any employment-related dispute or claim bars the
Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific
remedies, such as backpay, reinstatement, and damages, against
the employer for allegedly violating the ADA.
N. U.S. Airways, Inc. v. Barnett, 122 S.Ct.
1516 (2002).
ISSUE: whether the rights of a worker with a disability who seeks
assignment to a particular position as a reasonable accommodation
under the ADA take precedence over other workers' rights to bid
for the position under the employer's seniority system.
O. Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct.
2045 (2002).
ISSUE: whether the Equal Employment Opportunity Commission regulation
that allows employers to refuse to hire applicants because their
performance on the job would endanger their health due to a disability
is permitted under the ADA.
P. Barnes v. Gorman, 122 S.Ct. 2097 (2002).
ISSUE: whether punitive damages may be awarded in private causes
of action brought under either Title II of the ADA or under Section
504 of the Rehabilitation Act of 1973.
CHART
- Supreme Court Decisions Interpreting the Americans with Disabilities
Act
II. SYNOPSES OF THE CASES
A. PENNSYLVANIA DEPARTMENT OF CORRECTIONS v.
YESKEY
Pennsylvania Department of Corrections v. Yeskey, 524 U.S.
206 (1998).
Ronald Yeskey was convicted of a crime and sentenced to serve 18
to 36 months in a Pennsylvania correctional facility; the sentencing
judge recommended that Yeskey be placed in a Motivational Boot Camp
for first-time offenders. Successful completion of the boot camp
program would have made Yeskey eligible for release on parole in
six months. Yeskey was refused admission to the boot camp because
he had a history of hypertension. Yeskey sued the Pennsylvania Department
of Corrections and several corrections officials under Title II
of ADA, alleging that his exclusion from the boot camp constituted
discrimination on the basis of disability. The district court dismissed
Yeskey's case for failure to state a claim; it ruled that ADA does
not apply to inmates in state prisons. The Third Circuit Court of
Appeals disagreed and reversed the district court's decision.
In a unanimous opinion delivered by Justice Scalia, the Supreme
Court ruled that ADA does cover state prisons and prisoners. The
Court considered in turn and rejected several arguments put forth
by the correctional officials. First, the officials contended that
federal laws should not be interpreted to cover traditional and
essential state functions, such as prisons, unless the language
of the statute makes the coverage of such functions "unmistakably
clear." Id. at 208-09, quoting Gregory v. Ashcroft,
501 U.S. 452, 460-61 (1991). The Supreme Court assumed without deciding
that the "unmistakably clear" standard applies to ADA's coverage
of state prisons, but ruled, however, that this requirement is "amply
met" by Title II of ADA. 524 U.S. at 209. The Court declared that
"the statute's language unmistakably includes State prisons and
prisoners within its coverage." Id.
The prison officials contended that ADA's prohibition of discrimination
in regard to the "benefits of the services, programs, or activities
of a public entity," 42 U.S.C. § 12132, could not apply to
state prisons because they do not provide "benefits" of "services,
programs, or activities." The Supreme Court rejected this argument,
finding that modern prisons provide inmates with many recreational
activities, medical services, and educational and vocational services
that prisoners may benefit from. The Court noted that the boot camp
that Yeskey was excluded from was described as a "program" in the
statute that established it.
The state officials also argued that the term "qualified individual
with a disability" in ADA is defined as including those who meet
"essential eligibility requirements for the receipt of services
or the participation in programs or activities," Id., §
12131(2), and that the words "eligibility" and "participation" imply
voluntariness that does not fit the situation of prisoners. The
Supreme Court ruled that these words do not connote voluntariness,
as one can be eligible and participate even if participation is
required for those prisoners who are eligible. Even if the words
did connote voluntariness, said the Court, the use of various services
at prisons, including prison law libraries, is clearly on a voluntary
basis. Participation in the boot camp program involved in the case
was voluntary under Pennsylvania law.
The prison officials argued that the statement of findings and
purpose in ADA does not mention prisons or prisoners and that Congress
did not envision the law's application in the context of prisons.
The Court questioned the contention that ADA does not mention prisons,
since the Act refers to "institutionalization," Id., §
12101(a)(3), which the Court noted can be thought of as including
"penal institutions." But even if ADA did not mention prisons and
Congress never considered them in its ADA deliberations, the Court
said that it would not matter because ADA's text is unambiguous.
The Court recited a principle that it had applied in other contexts
in which it had declared that "the fact that a statute can be 'applied
in situations not expressly anticipated by Congress does not demonstrate
ambiguity. It demonstrates breadth.'" 524 U.S. at 212, quoting Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985).
Because it found ADA to be unambiguous as to coverage of prisons,
the Court also rejected the state officials' contentions regarding
the implications of Title II of ADA's title, "Public Services,"
and the application of a doctrine called "constitutional doubt."
The Court ruled that these arguments would be applicable only if
the statutory language was ambiguous. Ultimately, the Supreme Court
affirmed the judgment of the Third Circuit "[b]ecause the plain
text of Title II of ADA unambiguously extends to state prison inmates
...." 524 U.S. at 213.
B. BRAGDON v. ABBOTT
Bragdon v. Abbott, 524 U.S. 624 (1998).
Sidney Abbott sought dental treatment at the office of Dr. Randon
Bragdon in 1994. She had been infected with HIV since 1986 but had
not yet experienced any serious symptoms. On the patient registration
forms, Ms. Abbott disclosed that she was HIV-infected. Dr. Bragdon
performed a dental examination and found that Ms. Abbott had a cavity.
He then informed her that he had a policy against filling the cavities
of patients with HIV in his office. He offered to fill her cavity
at a hospital, and added that she would have to pay for the costs
of using the hospital's facilities. Ms. Abbott declined this offer
and filed suit under ADA and state law charging Dr. Bragdon with
discriminating on the basis of disability. In particular, Abbott
charged Bragdon with violating Title III of ADA which prohibits
discrimination "on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation by any person
who ... operates a place of public accommodation." 42 U.S.C. §
12182(a). Title III defines "public accommodation" to include the
"professional office of a health care provider." Id., §
12181(7)(F).
After the discovery process had been completed, both Abbott and
Bragdon filed motions for summary judgment. The federal district
court granted summary judgment in favor of Ms. Abbott, ruling that
her HIV infection constituted a disability under ADA and that there
was no issue of fact left to be decided. The district judge held
that Dr. Bragdon could not successfully defend his actions under
ADA provision that excuses a covered entity from including an individual
on an equal basis if that person poses a "direct threat to the health
or safety of others." Id., § 12182(b)(3). Relying on
affidavits submitted in the case by the Director of the Division
of Oral Health of the Centers for Disease Control and Prevention
(CDC), the district court concluded that it was safe for dentists
to treat patients infected with HIV in dental offices so long as
"universal precautions" prescribed by the CDC in 1993 were followed.
Dr. Bragdon appealed the decision of the district court, and the
United States Court of Appeals for the First Circuit affirmed the
lower court's decision in favor of Ms. Abbott. It agreed with the
district court that Abbott's HIV infection was a disability under
ADA even though it was not yet in the symptomatic stage. The Court
of Appeals decided not to rely on the CDC official's affidavits
regarding the "direct threat" issue as the district court had, but
found that the 1993 CDC Dentistry Guidelines (officially titled
"Recommended Infection-Control Practices for Dentistry") and the
American Dental Association's 1991 Policy on AIDS, HIV Infection
and the Practice of Dentistry led to the same conclusion--that dental
procedures can be safely performed in dental offices if universal
precautions are followed.
The Supreme Court examined the question whether Ms. Abbott's condition
constituted a disability under ADA at great length, and ultimately
found that it did. The Court began with the statutory language in
ADA that defines disability:
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. §12201(a).
The Court noted that this definition of disability was "drawn almost
verbatim" from the definition of "handicapped individual" in the
Rehabilitation Act of 1973 and of "handicap" under the Fair Housing
Amendments Act of 1988. 524 U.S. at 631. The Court observed that
Congress intended the term to be construed consistently with prior
regulatory interpretations, and noted ADA's provision that nothing
in ADA is to be construed to apply a lesser standard under ADA than
under the Rehabilitation Act of 1973 and the regulations that implement
it. 42 U.S.C. § 12201(a). The Court ruled that Ms. Abbott's
HIV infection was a disability under subsection (A)--the actual
disability prong--of ADA definition, and that, therefore, the Court
did not need to consider the second and third subsections of the
definition.
The Court went through a methodical analysis of each of the elements
of the first prong of ADA definition: physical or mental impairment,
major life activity, and substantially limiting. In considering
whether HIV infection is a physical impairment, the Court examined
in some detail the process through which the infection progresses.
The opinion describes how, when a person is infected with HIV, the
virus invades cells in the blood and body tissues, particularly
certain white blood cells, and eventually kills the cells it invades.
The initial phase of HIV infection is known as the "acute or primary"
stage, typically lasting about three months, and, during this phase,
the virus concentrates in the blood and assaults the white blood
cells. Fever, headaches, muscle pain, rash, and other symptoms may
appear, but typically go away after two or three weeks. The Court's
opinion observes that after these symptoms have subsided, the disease
enters what is sometimes called the "asymptomatic phase." The term
is somewhat misleading because enlarged lymph nodes, skin disorders,
oral lesions, and bacterial infections may continue to be present.
During this phase, which usually lasts from 7 to 11 years, the virus
switches its focus from the blood cells to the lymph nodes. Finally,
the immune system of the individual is sufficiently damaged that
the disease enters the AIDS stage, in which a variety of serious
symptoms usually appear.
Based upon its review of the course of HIV infection, the Court
reached the following conclusion:
In light of the immediacy with which the virus begins to damage
the infected person's white blood cells and the severity of the
disease, we hold that it is an impairment from the moment of infection.
524 U.S. at 637.
Having ruled that Ms. Abbott's condition was a physical impairment,
the Court next turned to the issue of whether it was an impairment
that affects a major life activity. This question was narrowed somewhat
by the fact that Abbott's claim throughout the litigation was that
the major life activity affected was the ability to reproduce and
bear children. The Court noted that "[g]iven the pervasive, and
invariably fatal, course of the disease, its effect on major life
activities of many sorts might have been relevant to our inquiry,"
and that there was little doubt that "had different parties brought
the suit they would have maintained that an HIV infection imposes
substantial limitations on other major life activities." Id.
The Court felt constrained, however, in the circumstances in which
the case had been brought and litigated, to consider only the question
whether reproduction is a major life activity. Despite arguments
on behalf of Dr. Bragdon that Congress intended ADA to apply only
to limitations on a person that have a public, economic, or daily
character, the Court had little trouble finding reproduction was
a major life activity, observing that "[r]eproduction and the sexual
dynamics surrounding it are central to the life process itself."
Id. at 638.
Finally, the Court considered whether HIV infection "substantially
limits" the major life activity of reproduction. The Court found
that Ms. Abbott's condition substantially limited her ability to
reproduce in two independent ways--by causing a significant risk
that male sexual partners would be infected and by the significant
risk that the disease will be transmitted to her child during pregnancy
and childbirth. The Court ruled that these effects amounted to substantial
limitations even though they did not make it totally impossible
for a woman with HIV infection to reproduce, observing that "[t]he
Act addresses substantial limitations on major life activities,
not utter inabilities." Id. at 641.
In light of its conclusions regarding each of the elements of the
definition, the Court affirmed the rulings of the district court
and the Court of Appeals that Ms. Abbott's HIV infection was a physical
impairment that substantially limited a major life activity under
ADA. Having ruled that Ms. Abbott's condition met the statutory
definition, the Court added that it did not need to address the
question whether HIV infection is a per se disability under ADA.
Designation as a per se disability means that every person who has
the condition automatically meets the definition of a person with
a disability and does not have to prove the effect on major life
activities in her or his particular circumstances. Having announced
that it was not going to reach the issue, however, the Court then
devoted several pages of its opinion to a discussion of regulations,
administrative interpretations, and prior court decisions supporting
the Court's conclusion that "HIV infection, even in the so-called
asymptomatic phase, is an impairment which substantially limits
the major life activity of reproduction." Id. at 647.
The Court next turned to the other question upon which it had granted
an appeal--whether the courts should defer to a health care provider's
reasonable professional judgment that a procedure involves a direct
threat to health or safety. The Court noted that this issue involves
two separate inquiries: whether the courts should defer to Dr. Bragdon's
professional judgment, and whether Dr. Bragdon's assessment of the
situation was reasonable. The Court ruled that a health care professional's
view regarding the existence of a direct threat is not entitled
to special deference and that courts should assess the objective
reasonableness of the risk based upon the objective, scientific
information available to members of the profession. Therefore, Dr.
Bragdon's "belief that a significant risk existed, even if maintained
in good faith, would not relieve him from liability." Id.
at 649.
Regarding the reasonableness of Dr. Bragdon's belief that treating
Abbott would pose a direct threat in light of the available medical
evidence, the Court found the record and briefings before it to
be insufficient to allow it to resolve the issue. In particular,
the Court had reservations regarding the conclusiveness of the 1993
CDC Dentistry Guidelines relied on by the Court of Appeals and regarding
the significance of the American Dental Association's 1991 Policy,
in the absence of additional information on the manner in which
the Association developed this Policy. The Court noted, however,
that there was other evidence in the record that might support affirmance
of the district court's ruling, but that the record did not make
clear which of these pieces of evidence was based on information
that was available when Dr. Bragdon refused to treat Abbott in his
office in September of 1994. Because the briefs and arguments to
the Supreme Court did not focus on the question of the sufficiency
of all the evidence submitted by the parties to the district court
on the cross motions for summary judgment, the Supreme Court felt
constrained from trying to resolve such issues at this juncture.
The Court concluded that the best course was to remand the case
to the Court of Appeals to explore the issues more fully and to
clarify the significance of the various pieces of evidence in the
record. The Court noted that it was not foreclosing the possibility
that the Court of Appeals would reach the same conclusion as it
had earlier, and observed that there were "reasons to doubt whether
[Bragdon] advanced evidence sufficient to raise a triable issue
of fact on the significance of the risk." Id. at 653.
Accordingly, the Supreme Court affirmed the ruling of the Court
of Appeals that Abbott's HIV infection was a disability under ADA,
and remanded the case to the Court of Appeals to allow it to reconsider
the evidence on the direct threat issue. The ruling of the Supreme
Court was by a 5-4 margin, with Justice Kennedy delivering the majority
decision in which he was joined by Justices Stevens, Souter, Ginsburg,
and Breyer. In a concurring opinion, Justices Stevens and Breyer
indicated that they would have preferred fully affirming the decision
of the Court of Appeals and not remanding the case for further consideration
of the direct threat issue. Justices Rehnquist, Scalia, Thomas,
and O'Connor all concurred with the majority on the necessity of
remanding the direct threat issue, but dissented from the majority
on the determination that Ms. Abbott's condition constitutes a disability
under ADA.
On remand, the First Circuit reconsidered its earlier summary judgment
ruling on the issue of direct threat. Abbott v. Bragdon,
163 F.3d 87 (1st Cir. 1998). It first considered whether Ms. Abbott
had provided adequate evidence to warrant summary judgment in her
favor, and, as the Supreme Court had directed, reexamined the evidentiary
impact of the CDC Guidelines and the American Dental Association
Policy. The Court of Appeals found that the 1993 Guidelines were
an update of earlier versions that had explicitly declared that
universal precautions were effective in preventing HIV infection
and made other additional precautions unnecessary. Accordingly,
the court determined that the Guidelines were competent evidence
that public health authorities considered treatment of the kind
that Ms. Abbott needed safe if performed using universal precautions.
Similarly, the First Circuit reviewed the weight to be accorded
the American Dental Association Policy and considered the "cornucopia
of information" it received in supplemental briefings. Id.
at 89. The court concluded that the Policy had been drafted by the
Association's scientific component, in contrast to ethical policies
drafted by its ethics component. Thus, the Policy had an adequate
scientific foundation and was appropriately relied on for summary
judgment. The Court of Appeals found that the Guidelines and Policy
were likely sufficient "in and of themselves," to support summary
judgment, and noted that they represented "only a fraction of the
proof advanced to support Ms. Abbott's motion." Id.
Having concluded upon reexamination that Ms. Abbott's evidence
was sufficient to support her motion for summary judgment, the First
Circuit proceeded to reconsider the evidence of direct threat offered
by Dr. Bragdon. The Supreme Court had directed the Court of Appeals
to reexamine a particular piece of evidence that Dr. Bragdon had
offered, to the effect that CDC had identified seven "possible"
cases of patient-to-dental-worker HIV transmission prior to the
time that Dr. Bragdon refused to treat Ms. Abbott in his office,
and to determine whether this evidence might provide sufficient
proof of direct threat to avoid summary judgment on that issue.
Citing articles in scientific journals published before Ms. Abbott
came to Dr. Bragdon's office, the First Circuit found that the CDC's
use of the word "possible" meant no more than that the CDC could
not determine whether workers were infected occupationally, including
the possibility that such workers had simply failed to present themselves
for testing after being exposed to the virus at work. Id.
at 90. The First Circuit also rejected Dr. Bragdon's attempts to
extrapolate from reports of documented cases of occupational transmissions
of HIV to health care workers outside the dental field, because
of the absence of any showing that risks in dental and non-dental
settings are comparable. Ultimately, the court found that each piece
of evidence offered on behalf of Dr. Bragdon was, upon reexamination,
"still 'too speculative or too tangential (or, in some instances,
both) to create a genuine issue of material fact.'" Id.,
quoting Abbott v. Bragdon, 107 F.3d 934, 948 (1st Cir. 1997).
Based upon its review of the evidence and arguments, the First
Circuit again affirmed the district court's entry of summary judgment
in favor of Ms. Abbott. Dr. Bragdon filed an appeal of the decision
on remand to the Supreme Court. On May 24, 1999, the Supreme Court
denied his petition for certiorari. Bragdon v. Abbott, 526
U.S. 1131 (1999).
C. WRIGHT v. UNIVERSAL MARITIME SERVICE CORPORATION
Wright v. Universal Maritime Service Corp., 525 U.S. 70
(1998).
In 1992, Ceasar Wright, a longshoreman in Charleston, South Carolina,
injured his heel and back while working for the Stevens Shipping
and Terminal Company. Mr. Wright was a member of Local 1422 of the
International Longshoreman's Association (AFL-CIO). The Stevens
company was represented by the South Carolina Stevedores Association.
The union and the Stevedores Association had entered into a collective
bargaining agreement that established an arbitration process for
addressing matters under dispute between the union local and an
employer.
Mr. Wright sought compensation for his injuries from the Stevens
company in the form of permanent disability under the Longshore
and Harbor Workers' Compensation Act. The claim was settled for
$250,000 plus $10,000 in attorney's fees. He was also able to obtain
Social Security disability benefits. In 1995, Mr. Wright, cleared
by his physician, returned to the hiring hall and asked for a referral
for work. For nine days, in early 1995, Mr. Wright worked for four
stevedore companies, without any reported complaints regarding his
performance. Upon learning that Mr. Wright had previously settled
a claim for permanent disability, however, the stevedore companies
informed the union that they no longer would hire Mr. Wright because
they regarded him as having been certified as permanently disabled
and thus as no longer qualified to work as a longshoreman under
the collective bargaining agreement. The union responded that the
companies were misconstruing the collective bargaining agreement,
that ADA entitled Mr. Wright to return to work if he could perform
his duties, and that refusing him employment would constitute a
"lockout" under the collective bargaining agreement. When Mr. Wright
contacted the union and asked how he could get back to work in the
face of the companies' refusal to accept him for employment, the
union suggested that he hire an attorney and file a claim under
ADA. He did so, and filed charges of discrimination with the Equal
Employment Opportunity Commission (EEOC) and the South Carolina
State Human Affairs Commission. After receiving a "right to sue"
letter from the EEOC, Mr. Wright filed suit in federal court against
the Stevedores Association and six individual companies alleging
that they had violated ADA by refusing him work.
The trial court dismissed Mr. Wright's case without prejudice on
the ground that he had failed to pursue the arbitration procedure
for resolving complaints provided by the collective bargaining agreement.
Mr. Wright appealed and the Fourth Circuit affirmed.
In a unanimous opinion delivered by Justice Scalia, the Supreme
Court disagreed with the rulings of the lower courts. The Court
characterized the Fourth Circuit's ruling as involving two conclusions:
(1) that the general arbitration provision in the collective bargaining
agreement at issue in Wright was broad enough to encompass a statutory
claim under ADA, and (2) that such a provision was enforceable.
The Supreme Court observed that addressing the second issue would
necessarily involve resolving the tension between two lines of cases.
The first line of cases is represented by Alexander v. Gardner-Denver
Co., 415 U.S. 36 (1974), in which the Court held that there
can be no prospective waiver of an employee's right under Title
VII to a judicial forum for alleged discriminatory discharge, because
"there can be no prospective waiver of an employee's rights under
Title VII." Id. at 51. The second line of cases is represented
by Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991),
in which the Court ruled that a claim under the Age Discrimination
in Employment Act could be subject to compulsory arbitration pursuant
to a collective bargaining agreement provision. In Wright,
however, the Court found it unnecessary to sort out these conflicting
precedents about the validity of a union-negotiated waiver of statutory
rights, because the Court found that on the facts before it no such
waiver had occurred.
The Court recognized that there is "a presumption of arbitratability"
in collective bargaining agreements, Wright, 525 U.S. at
78, but ruled that the presumption extends only to interpreting
or applying the terms of the collective bargaining agreement. Id.
Mr. Wright's cause of action, said the Court, arises not out of
the labor contract but out of ADA. Id. Moreover, the Court
found that any union-negotiated waiver of employees' statutory right
to a judicial forum for claims of employment discrimination, if
valid at all, must be "clear and unmistakable." Id. at 80.
The Supreme Court could not find such a clear and unmistakable waiver
in the facts before it, neither in the collective bargaining agreement
nor in the Longshore Seniority Plan. Accordingly, the Court vacated
the judgment of the Fourth Circuit and remanded the case for proceedings
consistent with the Supreme Court's opinion.
D. CLEVELAND v. POLICY MANAGEMENT SYSTEMS CORPORATION
Cleveland v. Policy Management Systems Corp., 526 U.S. 795
(1999).
Carolyn Cleveland was employed by the Policy Management Systems
Corporation to perform background checks on employees. In 1994,
she suffered a stroke that resulted in loss of concentration, memory,
and language skills. Three weeks after the stroke, Ms. Cleveland
filed for Social Security Disability Insurance (SSDI) benefits with
the Social Security Administration (SSA); in her application she
stated that she was "disabled" and "unable to work." About three
months later, Ms. Cleveland's condition had improved and she returned
to work. She notified SSA that she had returned to work, and, noting
that fact, the SSA denied her SSDI application. Three months after
Ms. Cleveland returned to work, Policy Management Systems fired
her. She thereafter asked SSA to reconsider its denial of her SSDI
application, and stated that she had been terminated due to her
condition and that she had "not been able to work since." Later,
in SSA administrative proceedings, Ms. Cleveland declared, "I am
unable to work due to my disability." In September, 1995, Ms. Cleveland
filed an ADA lawsuit against Policy Management Systems alleging
that the company had terminated her employment without reasonably
accommodating her disability. A week after she filed her ADA suit,
the SSA awarded her SSDI benefits retroactive to the day of her
stroke.
The district court did not consider Ms. Cleveland's ADA reasonable
accommodation claim on the merits; instead, it granted summary judgment
to the defendant. The district court viewed Ms. Cleveland's applying
for and receiving disability benefits as a concession on her part
that she was totally disabled. And the court considered that fact
as estopping her from proving an essential element of her ADA claim--that
she could "perform the essential functions" of the job. 42 U.S.C.
§ 12111(8).
The Fifth Circuit affirmed the trial court's grant of summary judgment.
It reasoned that the application for or receipt of social security
disability payments creates a rebuttable presumption that the individual
is estopped from asserting that she or he is "qualified" under ADA.
The Fifth Circuit indicated that the situations in which the presumption
might be rebutted was "theoretically conceivable" and would involve
"some limited and highly unusual set of circumstances." Cleveland
v. Policy Management Systems Corp., 120 F.3d 513, 517 (5th Cir.
1997). In Ms. Cleveland's case, however, the Court of Appeals felt
that because she had consistently represented to the SSA that she
was totally disabled, she was judicially estopped from asserting
that she was a qualified individual with a disability.
The Supreme Court noted that there was disagreement among the circuit
courts about the legal effect upon an ADA suit of the application
for and receipt of disability benefits. 526 U.S. at 800. The Court
explained that it had granted certiorari in the Cleveland case in
an effort to settle this disagreement among the circuit courts.
In a unanimous decision delivered by Justice Breyer, the Court vacated
the Fifth Circuit's decision and remanded the case for further proceedings.
The Court observed that a representation that one has a total disability
in seeking social security disability benefits often implies "a
context-related legal conclusion, namely, 'I am disabled for purposes
of the Social Security Act.'" Id. at 802. The Court distinguished
this type of statement from statements about purely factual matters,
regarding which a person might be estopped from later contradicting
in legal proceedings. The Court characterized the Fifth Circuit
as having applied "a special judicial presumption" to prevent Ms.
Cleveland from asserting what the Court of Appeals viewed as "two
directly conflicting propositions, namely, 'I am too disabled to
work' and 'I am not too disabled to work.'" Id. In the Supreme
Court's view, however, ADA suits and disability benefits claims
do not inherently conflict to the point that courts should apply
such a special negative presumption. This is because "there are
too many situations in which an SSDI claim and an ADA claim can
comfortably exist side by side." Id. at 802-03.
The Court identified five different rationales for claimants' making
legitimate representations of total disability in seeking disability
benefits while simultaneously pursuing ADA claims. One such rationale,
applicable in Ms. Cleveland's case, is that the Social Security
Act does not take into account the possibility of reasonable accommodation,
while this is an express statutory right under ADA. An allegation
in an ADA suit that the plaintiff can perform her job with reasonable
accommodation may, therefore, be consistent with an SSDI claim that
the plaintiff could not perform her job or other jobs without such
accommodation. Second, the Court found that the Social Security
Administration administers the SSDI through a five-step procedure
that embodies a set of presumptions that grow out of administrative
efficiency in managing the program rather than accounting for the
details of each individual's ability to perform particular jobs.
One of the steps in the SSDI procedure (accounting for about 60
percent of SSDI awards) merely compares the applicant's condition
with a list of impairments and automatically, without any additional
evidence, accepts individuals with one of the listed conditions
as permanently disabled and entitled to disability benefits. Thus,
a person can qualify for SSDI and still be able to perform the essential
function of her or his job. Third, the Court observed that the Social
Security Administration sometimes grants benefits to people who
are employed, including under trial work programs; under some such
programs, individuals can continue to receive benefits for up to
24 months, despite working at a job. Fourth, the Court noted that
the nature of a person's disability can change over time, so that
a statement about disability at the time of applying for SSDI benefits
may not reflect the person's capacities at the time of the employment
decision subject to an ADA complaint. Fifth, the Court declared
that for individuals who have applied for but not yet been awarded
disability benefits, the inconsistency in statements in SSDI and
ADA claims is of the type normally permitted in our legal system
under the theory that parties are allowed to assert legal theories
whether or not they are consistent. The Court quoted Federal Rule
of Civil Procedure 8(a)(e) which permits parties to "set forth two
or more statements of a claim or defense alternately or hypothetically,"
and to "state as many separate claims or defenses as the party has
regardless of consistency." Id. at 805.
In light of these examples, the Court found it inappropriate to
apply a special legal presumption that would permit applicants for
or recipients of SSDI benefits to pursue ADA claims only in "some
limited and highly unusual set of circumstances." Id., quoting
120 F.3d at 517. The proper standard, the Supreme Court ruled, is
to require an ADA plaintiff not to rebut a presumption of estoppel
but instead only to "proffer a sufficient explanation" of the apparent
contradiction that arises out of an earlier SSDI total disability
assertion. 526 U.S. at 806. To defeat summary judgment, a plaintiff
must offer an explanation that would permit a reasonable conclusion
that, assuming the earlier assertion was true or asserted by the
plaintiff in good faith, the plaintiff would nonetheless be able
to perform the essential functions of the job. The Court found that
Ms. Cleveland had explained the discrepancy between her SSDI assertions
and her ADA allegations by stating that the SSDI statements were
made in a forum where reasonable accommodations were not considered,
and that her SSDI statements were accurate if examined in the time
period in which they were made. Accordingly, the Court vacated the
judgment of the Fifth Circuit and remanded the case to permit the
parties to present or contest these explanations before the trial
court.
E. SUTTON v. UNITED AIRLINES
Sutton v. United Airlines, 527 U.S. 471 (1999).
In 1992, twin sisters, Karen Sutton and Kimberly Hinton, applied
to United Airlines for jobs as commercial airline pilots. They met
United's basic age, education, and experience requirements, and
had obtained the appropriate Federal Aviation Administration pilot
certifications. Both of the women, however, were severely nearsighted
(myopic). Their visual acuity tested at 20/200 or worse in the right
eye and 20/400 or worse in the left eye without corrective lenses;
with lenses, their visual acuity improved to 20/20 or better. With
glasses or contact lenses, therefore, their vision was functionally
the same as people without myopia, but without glasses or contacts,
they could not see well enough to drive or watch television. After
United received their applications for employment, it invited the
sisters to an interview and flight simulator tests. During their
interviews, however, United informed each of the women that a mistake
had been made in inviting her to interview because she did not meet
United's minimum vision requirement of uncorrected visual acuity
of 20/100 or better. At that point, United terminated the job interviews.
After pursuing complaint procedures with the Equal Employment Opportunity
Commission (EEOC), the sisters filed an ADA suit in federal court
alleging that United Airlines had violated ADA by discriminating
against them on the basis of their disability, or, alternatively,
that United discriminated against them because it regarded them
as having a disability. The federal district court dismissed their
complaint for failure to state a claim upon which relief could be
granted, on the grounds that they had not shown that they had a
disability under ADA, and the Court of Appeals for the Tenth Circuit
affirmed the district court's judgment. Sutton v. United Airlines,
130 F.3d 893 (10th Cir. 1997). Both of the lower courts ruled that
the sisters were not actually substantially limited in any major
life activity because they could fully correct their visual impairments.
The courts also determined that they had not made allegations sufficient
to support their claim that they were "regarded" by United as having
an impairment that substantially limits a major life activity, as
they had alleged only that United regarded them as unable to satisfy
the requirements of a particular job, global airline pilot, and
not that it regarded them as foreclosed more generally in the activity
of employment.
The Supreme Court noted that the Tenth Circuit's ruling that the
determination of disability should take mitigating measures into
account was "in tension with the decisions of other Courts of Appeals."
Sutton, 527 U.S. at 477. The Court, however, affirmed the
decision of the Tenth Circuit in Sutton, by a vote of 7 to
2, with Justice O'Connor writing the Court's opinion for the majority.
The Supreme Court began its analysis of the case with the definition
of disability in ADA:
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment. 42 U.S.C. §
12102(2).
"Accordingly," the Court observed, "to fall within this definition
one must have an actual disability (subsection (A)), have a record
of a disability (subsection (B)), or be regarded as having one (subsection
(C))." 527 U.S. at 478.
ADA gives the EEOC the responsibility for issuing regulations to
carry out the employment requirements found in Title I of ADA. Id.,
§ 12116. Because the definitions section of ADA precedes the
substantive Titles (I-V) of ADA, the Court suggested that "no agency
has been delegated authority to interpret the term 'disability.'"
527 U.S. at 479. However, because both parties in Sutton
accepted the EEOC regulations defining "disability" as valid, and
because the Court determined that the validity of the regulations
was not necessary to decide the case, it declined to determine what
deference, if any, should be accorded these regulations. The Court
also noted that EEOC had issued an "Interpretive Guidance" providing
that "[t]he determination of whether an individual is substantially
limited in a major life activity must be made on a case by case
basis, without regard to mitigating measures such as medicines,
or assistive or prosthetic devices." 29 C.F.R. pt.1630, App. §
1630.2(j) (1998) (describing § 1630.2(j)). The Court again
declined to determine how much deference was due to the Interpretive
Guidance, but in this instance did so because it found that EEOC's
position on mitigating measures was "an impermissible interpretation
of ADA." 527 U.S. at 482.
The Court viewed three provisions of ADA as supporting the conclusion
that mitigating measures should be considered when determining whether
a disability exists. First, because the phrase "substantially limits"
appears in the present tense in ADA definition of disability, the
Court construed it as requiring a present substantial limitation,
not a potential or hypothetical one: "A 'disability' exists only
where an impairment 'substantially limits' a major life activity,
not where it 'might,' 'could,' or 'would' be substantially limiting
if mitigating measures were not taken." Id. Second, the Court
noted that the definition of disability under ADA requires an individualized
inquiry, while evaluating impairments in their uncorrected or unmitigated
state would, in the Court's view, require courts and employers to
speculate about a person's condition and to make determinations
based on general information about how an uncorrected impairment
usually affects individuals, rather than on the individual's actual
condition. This "would create a system in which persons often must
be treated as members of a group of people with similar impairments,
rather than as individuals." Id. at 483-84. The Court added
that the failure to focus on individualized circumstances of actual
impairment would mean courts and employers could not consider negative
side effects of mitigating measures on a particular individual,
even if those side effects were very severe.
Finally, the Court relied heavily on the statement in ADA findings
that "some 43,000,000 Americans have one or more physical or mental
disabilities," 42 U.S.C. § 12101(a)(1), and concluded that
the finding means that Congress did not intend to have ADA protect
all individuals whose uncorrected conditions amount to disabilities.
The Court noted that the version of ADA introduced in Congress in
1988 had included a figure of 36 million persons with disabilities,
an estimate drawn from the NCD's report Toward Independence (1986).
NCD had declared that 35 or 36 million was "the most commonly quoted
estimate" of the number of people with disabilities in the United
States, and had contrasted it with a "health conditions approach"
that looks at all conditions that impair the health or normal functional
abilities of an individual and a "work disability" approach that
focuses on individuals self-reporting of limitations on their ability
to work. Id. at 3. The Supreme Court concluded that the 36
million figure more closely reflects a work disabilities approach
than the health conditions approach to defining disability. NCD's
1988 report On the Threshold of Independence had quoted a
Census Bureau study finding that 37.3 million individuals have difficulty
performing one or more basic physical activities such as seeing,
hearing, speaking, walking, using stairs, lifting or carrying, getting
around outside, getting around inside, and getting into or out of
bed. Id. at 9. The Court speculated that the 43 million figure
included in the 1989 versions of ADA legislation may have resulted
from "an effort to include in the findings those who were excluded
from the National Council figure." 527 U.S. at 486.
Regardless of the exact source of the 43 million figure, however,
the Court found that it could not include persons whose impairments
are corrected by medication or other devices. The Court reasoned
that the magnitude of the figure aligned it with estimates of disability
based on what the Court called "a functional approach to determining
disability" as opposed to "nonfunctional approaches to defining
disability" that produce significantly larger numbers. Id.
at 486-87. Thus, the Court declared, "had Congress intended to include
all persons with corrected physical limitations among those covered
by the Act, it undoubtedly would have cited a much higher number
of disabled persons in the findings." Id. at 487. The Court
recognized that people who make use of corrective devices may still
have a disability because the device does not correct the condition
sufficiently to prevent a substantial limitation on a major life
activity. Moreover, an individual whose impairment is effectively
corrected may nonetheless be regarded as disabled by a covered entity,
and thus disabled under subsection (C)--the "regarded as" prong--of
the definition. But such persons, ruled the Court, do not have an
impairment that is actually substantially limiting.
Having decided that determinations of disability under ADA are
to take corrective measures into account, the Supreme Court agreed
with the lower courts that Karen Sutton and Kimberly Hinton had
not stated a valid claim that they were substantially limited in
any major life activity.
The remaining question was whether the sisters had stated a valid
claim that they were "regarded as" having a disability within the
meaning of subsection (C) of the definition of disability in ADA.
42 U.S.C. § 12102(2)(C). The Court suggested that there are
two apparent ways in which individuals may be "regarded as" having
a disability: (1) a covered entity may mistakenly believe that a
person has an impairment that substantially limits a major life
activity, or (2) a covered entity may mistakenly believe that an
actual, nonlimiting impairment substantially limits a major life
activity. Both situations entail a covered entity entertaining misperceptions,
either that there is a substantially limiting impairment when there
is not or that an impairment is substantially limiting, when in
fact it is not. Such misperceptions, the Court noted, often result
from stereotypic assumptions not truly indicative of individual
ability.
There was no dispute in Sutton that the plaintiff sisters
had a physical impairment, and they contended that United Airlines
mistakenly believed their impairment substantially limited them
in the major life activity of working and that it had a vision requirement
based on myth and stereotype. The Court ruled, however, that United's
having a vision requirement did not establish that it regarded the
sisters as substantially limited in the major life activity of working.
The Court interpreted ADA as allowing employers to prefer some physical
attributes over others and to establish physical criteria, so long
as the employer does not make an employment decision based on a
physical or mental impairment, real or imagined, that the employer
regards as substantially limiting a major life activity. Consistent
with EEOC regulations, the Court held that when the major life activity
under consideration is that of working, the statutory phrase "substantially
limits" requires, "at a minimum, that plaintiffs allege they are
unable to work in a broad class of jobs." 527 U.S. at 491; see 29
C.F.R. § 1630.2(j)(3)(i).
The Supreme Court suggested that there may be "some conceptual
difficulty" in ADA's inclusion of working as a major life activity
(a difficulty the Court illuminates by quoting a somewhat confused
statement of the Solicitor General of the United States during oral
argument in a Section 504 case, School Bd. of Nassau Co. v. Arline),
but the Court found it unnecessary to determine the validity of
the relevant EEOC regulations because the parties in Sutton
accepted that "major life activities" includes working. 527 U.S.
at 492. In these circumstances, the Court assumed without deciding
that working is a major life activity and that the EEOC regulations
interpreting the term "substantially limits" are reasonable. Accordingly,
for purposes of this case, the Court accepted and applied the EEOC
regulatory declaration that "[t]he inability to perform a single,
particular job does not constitute a substantial limitation in the
major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i)
(1998). The Court found that the plaintiff sisters' allegation that
United regarded their poor vision as precluding them from positions
as a "global airline pilot" was not sufficient to support the claim
that United regarded them as having a substantially limiting impairment.
The Court indicated that a number of other positions utilizing the
sisters' skills, such as regional pilot and pilot instructor, were
available to them, and quoted from a statement in the EEOC's Interpretive
Guidance that "an individual who cannot be a commercial airline
pilot because of a minor vision impairment, but who can be a commercial
airline co-pilot or a pilot for a courier service, would not be
substantially limited in the major life activity of working." 527
U.S. at 493, quoting 29 C.F.R. pt. 1630, App. § 1630.2 (1998).
Because the Court found that Karen Sutton and Kimberly Hinton had
not claimed that United's vision requirement reflected a belief
that their vision substantially limits them, the Supreme Court agreed
with, and affirmed, the decision of the Court of Appeals affirming
the dismissal of their claim that they were regarded as having a
disability.
Justice Ginsburg filed a concurring opinion in which she agreed
with the majority that the actual disability prong of ADA definition
of disability "does not reach the legions of people with correctable
disabilities." 527 U.S. at 494. She explained that she found the
"strongest clues" to congressional intent on this issue in the 43
million figure and the finding that "individuals with disabilities
are a discrete and insular minority who have been ... subjected
to a history of purposeful unequal treatment, and relegated to a
position of political powerlessness in our society." 42 U.S.C. §
12101(a)(7). She believed that these declarations are inconsistent
with "the enormously embracing definition of disability" that would
result from including correctable conditions. 527 U.S. at 494.
Justices Stevens and Breyer dissented. Justice Stevens, in an opinion
joined by Justice Breyer, wrote that the application of customary
tools of statutory construction make it "quite clear" that the existence
of disability should focus on an individual's condition "without
regard to mitigation that has resulted from rehabilitation, self-improvement,
prosthetic devices, or medication." Id. at 495. He noted
that this was the view of eight of the nine circuit courts to address
the issue, and of all three of the executive agencies that had issued
regulations or interpretive bulletins construing ADA definition.
Examining the text of ADA definition of disability, Justice Stevens
argued that the three parts of the definition do not identify mutually
exclusive, discrete categories, but, rather, furnish three overlapping
formulas aimed at ensuring that individuals who now have, or ever
had, a substantially limiting impairment are protected. He cites
the example of a person who has lost a limb, but who, with prostheses,
can perform all major life activities. Under the majority's reasoning,
he argues, persons with such conditions would not be disabled under
ADA, though he believes the sweep of the three-pronged definition
makes it clear that Congress intended the Act to cover such persons.
In Justice Stevens' view, the three parts of the definition should
be read together not to focus solely on current functional limitations,
but instead to inquire whether any present or past impairment substantially
limits, or did limit, the individual's performance of major life
activities. Such a reading would avoid "the counterintuitive conclusion
that ADA's safeguards vanish when individuals make themselves more
employable by ascertaining ways to overcome their physical or mental
limitations." Id. at 499. Justice Stevens contended that
any ambiguity about this conclusion is removed by looking at ADA's
legislative history, and he quoted from several statements in ADA
committee reports indicating that determinations of disability should
be made without regard to mitigating measures. He noted that the
EEOC, the Department of Justice, and the Department of Transportation
had all reached the same conclusion.
Justice Stevens clarified that the question raised in the Sutton
appeal was not whether the sisters were qualified to be pilots,
nor whether their condition might endanger passengers and crew,
but only the threshold question whether they are protected by ADA.
He believed it was "quite wrong" for the majority to restrict the
coverage of the Act, when remedial legislation such as ADA should
be construed broadly to effectuate its purposes. Id. at 504.
He considered it appropriate to require United to clarify why having,
for example, 20/100 uncorrected vision or better is a valid job
requirement. He noted that the sisters' condition of having 20/200
vision in the better eye is a significant hindrance that precludes
a person from driving, shopping in a public store, or viewing a
computer screen from a reasonable distance. To the fear that considering
as "disabilities" impairments that may be mitigated by measures
as ordinary and expedient as wearing eyeglasses might cause a flood
of litigation, Justice Stevens responded that whether or not workers
wear glasses is a matter of complete indifference to most employers
and thus will not give rise to legal actions. Moreover, he pointed
out that all individuals can already file employment discrimination
claims based on their race, sex, or religion, and--provided they
are at least 40 years old--their age, and yet this has never been
found to be a reason to restrict classes of antidiscrimination coverage.
To the extent that the Court is concerned that employers will be
required to answer in litigation for every employment practice that
draws distinctions based on physical attributes, Justice Stevens
suggested that such problems should be addressed in the context
of employers' affirmative defenses, not of the scope of applicants
or employees protected by the Act.
Justice Stevens contended that, in the end, the majority is "left
only with its tenacious grip on Congress' finding that 'some 43,000,000
Americans have one or more physical or mental disabilities.'" Id.
at 511. He argued that the majority's interpretation of this figure
will have "the perverse effect of denying coverage for a sizeable
portion of the core group of 43 million." Id. at 512. And
he asserted that 43 million cannot be a fixed cap, since Congress
included the "record of" and "regarded as" categories in the definition,
with the expectation that the Act would protect individuals who
do not have "actual" disabilities and therefore are not counted
in the number.
While joining in Justice Stevens' dissenting opinion, Justice Breyer
wrote separately to suggest that if the broad interpretation of
the definition of disability led to too many lawsuits that ultimately
proved without merit or drew time and attention away from those
whom Congress clearly sought to protect, the EEOC could remedy this
problem through regulations drawing finer definitional lines, thereby
preventing the overly broad extension of the statute that the majority
feared.
F. MURPHY v. UNITED PARCEL SERVICE
Murphy v. United Parcel Service, 527 U.S. 516 (1999).
In August, 1994, United Parcel Service (UPS) hired Vaughn L. Murphy
as a mechanic. The job required Mr. Murphy to drive commercial motor
vehicles. The Department of Transportation (DOT) has established
health requirements for drivers of commercial vehicles. See 49 C.F.R.
§ 391.41(a) (1998). Among other requirements, the DOT regulations
mandate that the driver of a commercial motor vehicle in interstate
commerce have "no current clinical diagnosis of high blood pressure
likely to interfere with his/her ability to operate a commercial
vehicle safely." Id., § 391.41(b)(6). Mr. Murphy had
a history of hypertension (high blood pressure) dating from an initial
diagnosis when he was 10 years old. With medication, however, Mr.
Murphy's condition was controlled so that he could function normally
without any significant restrictions on his activities, except that
he was restricted from lifting heavy objects. At the time UPS hired
him, Mr. Murphy's blood pressure was too high for Mr. Murphy to
qualify for DOT health certification, but, due to an error, he was
erroneously granted certification and started working for UPS. About
a month later, a UPS medical supervisor discovered the error while
reviewing Murphy's medical files and requested that he have his
blood pressure retested. Upon retesting, Murphy's blood pressure,
at 160/102 and 164/104, was not low enough to qualify him for the
1 year certification that he had incorrectly been issued, but it
was sufficient to qualify him for an optional temporary DOT health
certification. UPS fired Mr. Murphy because it believed that his
blood pressure exceeded DOT's requirement, and UPS did not allow
him to attempt to obtain the optional temporary certification.
Mr. Murphy filed suit against UPS under Title I of ADA. The federal
district court granted UPS's motion for summary judgment on the
grounds that Mr. Murphy was neither "disabled" nor "regarded as"
disabled under ADA. 946 F.Supp., at 881-82. The Court of Appeals
for the Tenth Circuit affirmed the district court's judgment. Both
the district court and the Court of Appeals declared that the determination
whether Mr. Murphy had a disability should be based on an evaluation
of his condition in its medicated state, and both found that when
he was under medication Mr. Murphy functioned normally.
By a vote of 7 to 2, the Supreme Court affirmed the decisions of
the lower courts, largely based on the decision it issued on the
same day in Sutton v. United Airlines, 527 U.S. 471 (1999).
The first question the Court addressed in Murphy was whether the
determination of disability should be made with reference to the
mitigating measures Mr. Murphy employed, a question that it had
already answered in the affirmative in Sutton. The Court
of Appeals had concluded that, when medicated, Mr. Murphy's high
blood pressure did not substantially limit him in any major life
activity, a conclusion that Mr. Murphy had not challenged on appeal.
Therefore, the Supreme Court ruled that the grant of summary judgment
in UPS's favor on the claim that Mr. Murphy was substantially limited
in one or more major life activities, and thus disabled under ADA,
was correct.
The other issue the Supreme Court considered was whether UPS had
regarded Mr. Murphy as having a disability. Mr. Murphy argued that
UPS regarded his hypertension as substantially limiting him in the
major life activity of working, even though in fact it did not.
The Court viewed this issue as again having been largely resolved
by its opinion in Sutton. As in Sutton, the Court
assumed for the purposes of argument that the Equal Employment Opportunity
Commission (EEOC) regulations regarding the disability determination
are valid, and quoted the EEOC definition of "substantially limits"
in regard to the major life activity of working: "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." 29 C.F.R.
§ 1630.2(j)(3)(i) (1998). The Court also noted EEOC's clarification
that "[T]he inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of
working." Id. Applying these standards, the Court found that
evidence that UPS regarded Mr. Murphy as unable to meet the DOT
regulations was not sufficient to create a genuine issue as to whether
he was regarded as unable to perform a class of jobs utilizing his
skills. At most, Mr. Murphy was regarded as unable to perform the
job of mechanic only when that job required driving a commercial
motor vehicle, and otherwise was generally employable as a mechanic.
Consequently, the Court found that Mr. Murphy had failed to show
that he was regarded as unable to perform a class of jobs, but had
demonstrated only that he was regarded as unable to perform a particular
job. The Supreme Court found this evidence insufficient, as a matter
of law, to prove that he was regarded as substantially limited in
the major life activity of working.
Justice Stevens, joined by Justice Breyer, dissented from the Court's
decision, for reasons he had explained in his dissenting opinion
in Sutton v. United Airlines, 527 U.S. at 495. In his view,
Mr. Murphy had a "disability" under ADA because his hypertension--in
its unmedicated state--"substantially limited" his ability to perform
several major life activities, and would likely cause him to be
hospitalized if he was not medicated. Indeed, Justice Stevens viewed
Mr. Murphy's situation even more clearcut than that considered in
Sutton: "Severe hypertension," in his view, "easily falls
within ADA's nucleus of covered impairments." 527 U.S. at 525.
G. ALBERTSON'S, INC. v. KIRKINGBURG
Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
In August 1990, Albertson's, Inc., a grocery-store chain, hired
Hallie Kirkingburg as a truckdriver to be based at its warehouse
in Portland, Oregon. Mr. Kirkingburg had more than ten years driving
experience and Albertson's' transportation manager found that he
performed well on a road test. Mr. Kirkingburg had an uncorrectable
vision condition (amblyopia), that involves weakened vision in one
eye--20/200 vision in the left eye in Kirkingburg's case--so that
the individual in effect sees only with the other eye. When a person
uses only one eye to see, the condition is referred to as "monocular"
vision. Before he started working, Albertson's required Kirkingburg
to be examined by a doctor to see if he met federal standards for
commercial truckdrivers. These standards, issued by the United States
Department of Transportation (DOT), include a "basic vision" requirement
that corrected distant visual acuity be at least 20/40 in each eye
and distant binocular (two-eye) acuity be at least 20/40. Despite
Kirkingburg's weak left eye, the doctor who examined him certified,
erroneously, that he met the DOT basic vision standard.
In December 1991, Kirkingburg took a leave of absence after injuring
himself on the job. Albertson's required returning employees to
undergo a physical examination, so, in November 1992, Kirkingburg
went for a physical. This time, the examining physician correctly
assessed Kirkingburg's vision and found that his eyesight did not
meet the basic DOT standards. Either the physician, or his nurse,
told Kirkingburg that he would have to obtain a waiver of the basic
vision standards. DOT had a process for giving certification to
applicants who had three years of recent experience driving a commercial
vehicle with a clean driving record (as defined by DOT). A waiver
applicant had to agree to have his or her vision checked annually,
and to submit reports regarding his or her driving experience to
DOT's Federal Highway Administration. Mr. Kirkingburg applied for
a waiver, but while his application was pending, Albertson's fired
him from his job as truckdriver because he could not meet the basic
DOT vision standard. Ultimately, Mr. Kirkingburg received a DOT
waiver, but Albertson's refused to rehire him. Mr. Kirkingburg brought
suit alleging that Albertson's violated ADA by firing him.
The district court granted summary judgment for Albertson's, ruling
that the company had reasonably concluded that Mr. Kirkingburg was
not qualified without an accommodation because he could not meet
the basic DOT vision standards, and that Albertson's was not required,
as a reasonable accommodation, to give him time to get a DOT waiver.
The Court of Appeals for the Ninth Circuit reversed the district
court's decision. The Court of Appeals held that Albertson's could
not use the DOT vision standard as the justification for its vision
requirement and yet disregard the waiver program which was a legitimate
part of the DOT program. Albertson's argued for the first time before
the Ninth Circuit that it was entitled to summary judgment because
Mr. Kirkingburg did not have a disability within the meaning of
ADA. The Court of Appeals rejected this contention because it concluded
that Mr. Kirkingburg had presented evidence that his vision was
effectively monocular, and thus that the manner in which he sees
differs significantly from the manner in which most people see.
The Supreme Court granted review of both the question whether Mr.
Kirkingburg had a disability and whether he was qualified. In a
unanimous ruling, the Court reversed the judgment of the Ninth Circuit.
Because the Supreme Court decided that Kirkingburg was not "qualified"
under ADA, the Court did not have to resolve the issue of whether
he was an individual with a disability. The Court decided to address
the issue of standards for determining the existence of disability,
however, because of what it called "three missteps the Ninth Circuit
made" in its discussion of the issue. 527 U.S. at 562. Although
Mr. Kirkingburg had originally alleged both that he had a disability
and that Albertson's had regarded him as having a disability, the
Supreme Court discussed only the issue of actual disability, because
Kirkingburg did not raise the "regarded as" issue in his petition
to the Supreme Court. In assessing whether Mr. Kirkingburg's vision
impairment substantially limited the major life activity of seeing,
the Court considered the Ninth Circuit as having been "too quick
to find a disability." Id. at 564. The Supreme Court ruled
that the Court of Appeals had accepted as sufficient to establish
disability Mr. Kirkingburg's evidence that the manner in which he
sees differs significantly from the manner in which most people
see. In the Supreme Court's view, the Ninth Circuit had accepted
a mere difference in manner instead of requiring a showing of significant
restriction in order to establish substantial limitation.
Second, the Court found that the Ninth Circuit had not taken sufficient
account of evidence that Mr. Kirkingburg had developed subconscious
mechanisms for compensating and coping with his visual impairment,
suggesting that the Court of Appeals believed that in gauging whether
an individual has a disability a court need not consider the individual's
ability to compensate for the impairment. The Supreme Court found
this approach to be inconsistent with its ruling in Sutton v.
United Airlines, supra, that mitigating measures must
be taken into account in judging whether an individual has a disability,
and the Court saw no "basis for distinguishing between measures
undertaken with artificial aids, like medications and devices, and
measures undertaken, whether consciously or not, with the body's
own systems." 527 U.S. at 565-66.
Third, the Court observed that the Ninth Circuit did not sufficiently
heed the statutory obligation to determine the existence of disabilities
on a case-by-case basis. While recognizing that there may be some
impairments that invariably cause a substantial limitation of a
major life activity, the Court did not consider monocularity to
be such a condition, because people with monocularity may have variations
in the degree of visual acuity in the weaker eye, in the age at
which they suffered their vision loss, in the extent of their compensating
adjustments in visual techniques, and in the ultimate scope of the
restrictions on their visual abilities. The Court of Appeals did
not identify the degree of loss suffered by Mr. Kirkingburg, and
the Supreme Court could find no evidence in the record specifying
the extent of his visual restrictions. The Court declared that it
was not suggesting that monocular individuals have an onerous burden
in trying to show that they have a disability; indeed, it recognized
that "people with monocular vision 'ordinarily' will meet the Act's
definition of disability." Id. at 567. But it held that,
as with other persons who seek ADA's protection, individuals with
monocular vision must offer evidence that the extent of the limitation,
as in loss of depth perception and visual field, is substantial
in their personal situation.
The Court then turned to Albertson's' primary contention--that
Mr. Kirkingburg was not qualified. Mr. Kirkingburg and the United
States argued that in applying a qualification standard, grounded
in safety concerns, that screens out applicants with a disability,
Albertson's was required to demonstrate that the standard was "job-related
and consistent with business necessity, and ... performance cannot
be accomplished by reasonable accommodation ....," and that the
standard was necessary to prevent "a direct threat to the health
or safety of other individuals in the workplace," 42 U.S.C. §
12113(a), 12113(b).
The Court found it significant that Albertson's was applying a
job qualification imposed upon it by federal law rather than a criterion
it had devised. The Court declared that Albertson's had both a "right"
and an "unconditional obligation" to follow the DOT commercial truckdriver
regulations. Id. at 570. The Court of Appeals had considered
the regulatory provisions for the waiver program in conjunction
with the basic visual acuity provision. The Supreme Court ruled,
however, that the regulations establishing the waiver program did
not modify the general visual acuity standards, and that DOT had
no evidentiary basis for concluding that the pre-existing standards
could be lowered consistent with public safety. The Court found
that DOT had developed the waiver scheme as a means of obtaining
data to be considered in exploring whether the existing vision standards
should be revised. As DOT was giving waivers solely to collect information,
"[t]he waiver program was simply an experiment with safety" and
did not purport to modify the substantive content of the general
acuity regulation.
The Court ruled that the DOT regulation does not require employers
of commercial drivers to participate in the waiver program, so that
Albertson's was free to decline to do so unless ADA is "read to
require such an employer to defend a decision to decline the experiment."
Id. at 577. In the Court's view, such an interpretation would
require employers to justify a safety regulation issued by the Government,
to "reinvent the Government's own wheel," on a case-by-case basis.
Id. As Congress had enacted ADA before there was any waiver
program, the Court ruled that it was not credible that Congress
intended that employers choosing to abide by the DOT's visual acuity
regulation would be required to defend the regulation's application
in the face of an experimental waiver program. Accordingly, the
Court reversed the judgment of the Ninth Circuit.
Justice Thomas wrote a concurring opinion. While agreeing with
the majority that Albertson's was legally entitled to apply the
DOT visual acuity standard, he wished to add that the regulation
applied to Mr. Kirkingburg as well as to Albertson's and it operated
to render him not qualified to be a commercial truckdriver as a
matter of law. He added that requiring Albertson's to permit Mr.
Kirkingburg to obtain a waiver as an accommodation would have been
"unreasonable." Id. at 580. Justices Stevens and Breyer did
not join in the portion of the Court's opinion (part II) that discussed
the definition of disability and the standards for determining whether
Mr. Kirkingburg's condition qualified as a disability. Their reasons
for not joining that part of the opinion presumably were related
to their rationale for dissenting in the Sutton and Murphy
cases, but they did not write separately in Kirkingburg to
explain their thinking.
H. OLMSTEAD v. L.C.
Olmstead v. L.C., 527 U.S. 581 (1999).
In 1992, L.C., a woman with mental retardation and diagnosed as
having schizophrenia, was voluntarily admitted to the Georgia Regional
Hospital at Atlanta (GRHA), a state psychiatric hospital. A year
later, L.C.'s treatment team at the hospital determined that her
psychiatric condition had stabilized, and that her needs could be
met appropriately in one of the community-based programs supported
by the State of Georgia. This evaluation did not result, however,
in any change in her placement. In 1995, L.C. filed suit in federal
court against the hospital's superintendent, the Commissioner of
the Georgia Department of Human Resources, and the executive director
of a county regional board, challenging L.C.'s continued confinement
in a segregated environment. She alleged that the failure to place
her in a community-based program, once her treating professionals
determined that such placement was appropriate, violated Title II
of ADA. To remedy this ADA violation, L.C. asked that the State
place her in a community care residential program, and provide her
treatment with the ultimate goal of integrating her into the mainstream
of society. In January 1996, E.W., a woman with mental retardation
and diagnosed as having a personality disorder, entered the case
as an additional plaintiff. She had been voluntarily admitted to
GRHA in February 1995, and remained there even after her treating
psychiatrist concluded that she could be treated appropriately in
a community-based setting.
While the lawsuit and appeals were still pending, both women were
eventually transferred to community-based treatment programs. The
courts elected, however, to decide the issues raised in the case,
because multiple institutional placements was a problem that is
"capable of repetition, yet evading review"--an exception to the
situations in which courts dismiss cases as "moot." The State could
keep such an issue from ever being resolved by the courts by simply
transferring the plaintiffs to community-based facilities whenever
such a lawsuit is filed, so courts are authorized to decide such
issues despite the subsequent changes in placement.
The district court granted partial summary judgment in favor of
L.C. and E.W., ruling that the State's failure to place the two
women in an appropriate community-based treatment program violated
Title II of ADA. The district court rejected the State's argument
that inadequate funding, not discrimination against L.C. and E.W.
by reason of their disabilities, accounted for their retention at
GRHA. The district court ruled that under Title II unnecessary institutional
segregation of individuals with disabilities constitutes discrimination
per se, that cannot be justified by a lack of funding. The district
court also rejected the State's contention that requiring immediate
transfers in cases of this type would "fundamentally alter" the
State's activity, a defense to obligations imposed under Title II.
The court observed that existing state programs provided community-based
treatment of the kind for which L.C. and E.W. qualified, and community-based
service programs would cost considerably less than maintaining them
in an institution.
The Court of Appeals for the Eleventh Circuit affirmed the judgment
of the district court, but remanded for reassessment of the State's
cost-based defense. The appeals court directed the lower court to
consider "whether the additional expenditures necessary to treat
L.C. and E.W. in community-based care would be unreasonable given
the demands of the State's mental health budget." 138 F.3d at 905.
The Supreme Court viewed the central issue in the case as whether
the prohibition of discrimination in ADA may require placement of
persons with mental disabilities in community settings rather than
in institutions. The Court's answer was "a qualified yes." 527 U.S.
at 587. Six Justices agreed that Title II's integration provision
requires states to place individuals with mental disabilities in
community-based facilities in some circumstances. No single opinion
in its entirety, however, garnered the votes of a majority. Justice
Ginsburg delivered the judgment of the Court, and authored the opinion
of the Court in three of its parts, in which she was joined by Justices
Stevens, O'Connor, Souter, and Breyer. The fourth part of Justice
Ginsburg's opinion, dealing primarily with the fundamental alteration
defense, garnered only four votes, as Justice Stevens did not join.
Justice Kennedy did not agree to join in any part of Justice Ginsburg's
opinion, but concurred in the judgment of the Court; essentially
this means that he agreed with the result but not the reasoning
of the majority. Justice Thomas wrote a dissenting opinion in which
he was joined by Chief Justice Rehnquist and Justice Scalia.
Justice Ginsburg began her opinion for the Court on the issue of
the integration requirement's application to institutionalization
by noting that "the opening provisions of ADA" contain findings
that "historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such
forms of discrimination against individuals with disabilities continue
to be a serious and pervasive social problem"; "discrimination against
individuals with disabilities persists in such critical areas as
... institutionalization"; and "individuals with disabilities continually
encounter various forms of discrimination, including ... segregation
...." Id. at 588-89, quoting 42 U.S.C. § 12101(a)(2),
(3), (5). The Court declared that ADA was the first statute in which
Congress referred expressly to segregation of persons with disabilities
as a form of discrimination and to discrimination in the area of
institutionalization. 527 U.S. at 589 n. 1.
The Court noted that in authorizing the Attorney General to issue
regulations to implement Title II, ADA directed that such regulations
were to be consistent with the coordination regulations under Section
504 of the Rehabilitation Act applicable to recipients of federal
financial assistance. One provision of the coordination regulations
requires recipients of federal funds to administer programs and
activities in the most integrated setting appropriate to the needs
of qualified persons with disabilities. 28 C.F.R. § 41.51(d)
(1998). Accordingly, in issuing ADA Title II regulations, the Attorney
General included a provision that the Supreme Court referred to
as the "integration regulation." It states: "A public entity shall
administer services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with disabilities."
28 C.F.R. § 35.130(d) (1998). The preamble to the Title II
regulations elaborates that "the most integrated setting appropriate"
means "a setting that enables individuals with disabilities to interact
with non-disabled persons to the fullest extent possible." 28 C.F.R.
pt. 35, App. A, p. 450 (1998). The Court also noted that another
provision of the Title II regulations requires public entities to
make "reasonable modifications" to avoid discriminating on the basis
of disability, unless the public entity can show that the modifications
would "fundamentally alter the nature of the service, program, or
activity." 28 C.F.R. § 35.130(b)(7) (1998). The Court viewed
the Attorney General's Title II regulations as reflecting "two key
determinations"--(1) that unjustified placement or retention of
persons in institutions, severely limiting their exposure to the
outside community, constitutes a form of discrimination based on
disability prohibited by Title II; and (2) that the states' obligation
to avoid unjustified isolation of individuals with disabilities
does not require states to make modifications that would involve
a fundamental alteration. 527 U.S. at 596-97. The issue before the
Court was whether the Attorney General was correct in these "key
determinations," and, if so, whether the Eleventh Circuit had applied
them correctly.
The state officials had argued that L.C. and E.W. were not subjected
to discrimination "by reason of" their disabilities because they
were not denied community placement on account of those disabilities,
and they could not identify any similarly situated individuals given
preferential treatment. The Court responded: "We are satisfied that
Congress had a more comprehensive view of the concept of discrimination
advanced in ADA." Id. at 598. Comparing ADA with prior statutes
such as the Developmentally Disabled Assistance and Bill of Rights
Act of 1975 and Section 504 of the Rehabilitation Act, the Court
viewed ADA as having "stepped up earlier measures to secure opportunities
for people with developmental disabilities to enjoy the benefits
of community living." Id. at 599. Relying on ADA "Findings"
quoted above, the Court ruled that in ADA Congress not only required
all public entities to refrain from discrimination, but it had explicitly
identified unjustified "segregation" of persons with disabilities
as a form of discrimination. The Court observed that this recognition
that unjustified institutional isolation of persons with disabilities
is a form of discrimination reflects two judgments: (1) that "institutional
placement of persons who can handle and benefit from community settings
perpetuates unwarranted assumptions that persons so isolated are
incapable or unworthy of participating in community life;" and (2)
that "confinement in an institution severely diminishes the everyday
life activities of individuals, including family relations, social
contacts, work options, economic independence, educational advancement,
and cultural enrichment." Id. at 600-01. Therefore, despite
the Georgia officials' arguments to the contrary, the Court found
that dissimilar treatment had been established: "In order to receive
needed medical services, persons with mental disabilities must,
because of those disabilities, relinquish participation in community
life they could enjoy given reasonable accommodations, while persons
without mental disabilities can receive the medical services they
need without similar sacrifice." Id. at 601.
The Georgia officials contended that the findings in ADA should
not outweigh the Medicaid statute's congressional policy preference
for treatment in institutions over treatment in the community. The
Court responded that, while that may have been true in the past,
since 1981 Medicaid has provided funding for state-run home and
community-based care through a waiver program, and the Department
of Health and Human Services (HHS) has encouraged states to take
advantage of it to fund community-based placements.
The key ruling of the Court in Olmstead was that "[u]njustified
isolation ... is properly regarded as discrimination based on disability,"
Id. at 597, and the Court therefore affirmed the ruling of
the Eleventh Circuit on this issue. The Supreme Court added, however,
some clarifications regarding how that principle should be applied.
First, the Court stated that nothing in ADA or the regulations condones
termination of institutional settings for persons unable to handle
or benefit from community settings. Second, a state generally may
rely on the reasonable assessments of its own professionals in determining
whether an individual meets essential eligibility requirements for
placement in a community-based program, and should not remove individuals
from the more restrictive setting if they do not qualify for community-based
placement. Third, federal law does not create any requirement that
community-based treatment be imposed on persons who do not desire
it. Id. at 601-02. In regard to L.C. and E.W., there was
no genuine dispute that they were qualified for noninstitutional
care, the State's own professionals determined that community-based
treatment would be appropriate for them, and both women sought community-based
placements.
On the second issue addressed by the Court in Olmstead--the standard
of "fundamental alteration" that should be applied to the cost-based
defense asserted by the Georgia officials--none of the various opinions
filed by the Justices garnered a majority. It is significant, however,
that a total of eight Justices (all except Justice Stevens) concluded
that the Eleventh Circuit had applied too restrictive an interpretation
of the defense. Justice Stevens would have affirmed the Eleventh
Circuit's decision as to the fundamental alteration defense.
Justice Ginsburg's opinion on the fundamental alteration defense
issue, in which she was joined by Justices O'Connor, Souter, and
Breyer, declares that a state's responsibility to provide community-based
treatment to qualified persons with disabilities is not boundless,
and is subject to the "fundamental alterations" limitation. The
Eleventh Circuit, however, construed this limitation as permitting
a cost-based defense "only in the most limited of circumstances,"
and remanded to the district court to consider, among other things,
"whether the additional expenditures necessary to treat L.C. and
E.W. in community-based care would be unreasonable given the demands
of the State's mental health budget." 138 F.3d at 902, 905. Justice
Ginsburg believed that such a standard would leave the State "virtually
defenseless," because measuring the expense entailed in placing
one or two people in a community-based treatment program against
the State's entire mental health budget would make it unlikely that
a state could ever succeed in establishing a fundamental alteration
defense. 527 U.S. at 603. In Justice Ginsburg's view, a sensible
construction of the fundamental alteration concept would allow the
State to show that immediate relief for the plaintiffs would be
inequitable in light of the responsibility the State has undertaken,
and the allocation it has made of available resources, for the care
and treatment of persons with mental disabilities. The district
court simply compared the cost of caring for the plaintiffs in a
community-based setting with the cost of caring for them in an institution,
and concluded that community placements cost less than institutional
confinements. Justice Ginsburg stated that such a comparison overlooks
the increased overall expenses involved in funding community placements
while still incurring the costs of maintaining institutions. And
even if states eventually were able to close some institutions in
response to an increase in the number of community placements, the
States would still incur the cost of running partially full institutions
in the interim. Justice Ginsburg does not believe that ADA can be
reasonably read to force states to phase out institutions, nor to
move institutionalized patients into an inappropriate setting, such
as a homeless shelter. To maintain a range of facilities and to
administer services with an even hand, therefore, she believes the
State must have more leeway than under the lower courts' interpretation
of the fundamental-alteration defense. In her view, a state could
meet ADA reasonable modification requirement by having a "comprehensive,
effectively working plan" for placing qualified persons with mental
disabilities in less restrictive settings. Id. at 605-06.
And this would be sufficient even if the plan involved a waiting
list, so long as the waiting list "moved at a reasonable pace not
controlled by the State's endeavors to keep its institutions fully
populated ...." Id. at 606.
While holding that unjustified isolation is properly regarded as
discrimination based on disability, Justice Ginsburg would also
recognize the states' need to maintain a range of facilities for
the care and treatment of persons with diverse mental disabilities,
and the states' obligation to administer services with an even hand.
In evaluating a state's fundamental alteration defense, she believed
the proper standard is to consider, in view of the resources available
to the State, not only the cost of providing community-based care
to the litigants, but also the range of services the state provides
others with mental disabilities, and the State's obligation to mete
out those services equitably.
Justice Stevens concurred in the judgment of the Court and entered
a separate opinion explaining why he concurred in part in Justice
Ginsburg's opinion. He believed that the Eleventh Circuit had been
correct in ruling that unjustified institutionalization constitutes
a violation of the integration mandate of ADA, so he joined that
part of Justice Ginsburg's opinion that affirmed that portion of
the Eleventh Circuit's ruling, thus making a fifth vote so that
that part of the opinion represented a majority of the Court. On
the fundamental alteration defense issue, Justice Stevens thought
the Eleventh Circuit had made a correct ruling, so he would have
voted to affirm the Eleventh Circuit's ruling in its entirety. Therefore,
he did not join Justice Ginsburg's opinion on that issue.
Justice Kennedy concurred in the judgment of the Court. He wrote
a separate opinion emphasizing his views on both the integration/deinstitutionalization
issue and the fundamental alteration defense. He began his opinion
by noting that insufficient resources are devoted to treating mental
disorders. He also observed that "persons with mental disabilities
have been subject to historic mistreatment, indifference, and hostility."
Id. at 608. He went on to discuss what he called the "dark
side" of deinstitutionalization, and declared that "it would be
a tragic event ... were the Americans with Disabilities Act of 1990
(ADA) to be interpreted so that states had some incentive, for fear
of litigation, to drive those in need of medical care and treatment
out of appropriate care and into settings with too little assistance
and supervision." Id. at 610. Accordingly, he believed that
the principle of liability for unjustified segregation must be applied
with caution and circumspection, or states might be pressured into
attempting compliance "on the cheap," placing persons with mental
disabilities in settings not offering needed services. Id.
Accordingly, he cautioned lower courts to apply the Court's decision
with great deference to medical decisions of treating physicians
and to the program funding decisions of state policymakers.
Justice Kennedy embraced a theory of discrimination on the basis
of disability that focused on a showing of "animus or unfair stereotypes
regarding the disabled" or of "differential treatment" vis-a-vis
some other group, and suggested that the prohibition of discrimination
in Title II might forbid as "irrational" distinctions by reason
of disability made by a state entity that without adequate justification
exposed a person or persons with disabilities to more onerous treatment
than others in the provision of services or the administration of
existing programs. Id. at 611. He added that a state is not
required to create community-treatment programs that do not exist,
and that states are entitled to "make hard decisions on how much
to allocate to treatment of diseases and disabilities." Id.
at 612. In the case before the Court, he believed that L.C. and
E.W. had not identified a class of similarly situated individuals
nor shown how such a class had been given preferential treatment.
Accordingly, he would have ruled that the lower courts should have
required additional factual showings to establish a violation of
Title II. He also indicated his agreement with Justice Ginsburg's
opinion that the lower courts had overly restricted the State's
cost defense. In his view, the State should have wide discretion
in adopting its own systems of cost analysis for allocating health
care resources, including determinations based on fixed and overhead
costs for institutions and programs.
Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia,
dissented. He took issue with the majority's finding that the plaintiffs
had established discrimination by showing that they were kept in
an institutional setting after they became eligible for community
placement. He argued that discrimination must involve differential
treatment vis-a-vis members of a different group on the basis of
a statutorily described characteristic, such as disability. In his
view, the majority's more comprehensive interpretation of discrimination
under Title II of ADA, to include institutional isolation of persons
with disabilities, is not adequately supported by the segregation
and institutionalization findings of ADA, without any other clear
directive in the statutory language. Justice Thomas further contended
that there had been no showing that the plaintiffs were treated
differently compared to otherwise similarly situated persons, except
for dissimilar treatment resulting from the fact that different
classes of persons receive different services, which in his eyes
does not constitute discrimination as traditionally defined. Finally,
he argued that any differential treatment was not by reason of disability,
since community placement is not available to those without disabilities.
He concluded that the denial of community placements for L.C. and
E.W. occurred not "by reason of" their disability, but, rather,
because the State of Georgia defendants had limited resources.
I. BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA
v. GARRETT
Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356 (2001).
This case involved separate lawsuits, one filed by Patricia Garrett
and another by Milton Ash, that were consolidated on appeal. Patricia
Garrett, a registered nurse, was employed as Director of Nursing,
OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham
Hospital. In 1994, she was diagnosed with breast cancer and subsequently
underwent a lumpectomy, radiation treatment, and chemotherapy. These
treatments necessitated her taking leave from work. When she returned
to work in July 1995, her supervisor notified her that she would
have to give up her position as director. She thereafter applied
for and received a transfer to another, lower paying position as
a nurse manager.
Milton Ash was a security officer with the Alabama Department of
Youth Services. When he began his job, he informed the Department
that he had chronic asthma and that his doctor recommended he avoid
carbon monoxide and cigarette smoke. Mr. Ash requested that the
Department modify his duties to minimize his exposure to these substances.
Later, he was diagnosed with sleep apnea and, upon the recommendation
of his doctor, asked to be reassigned to daytime shifts to accommodate
his condition. The Department refused to make any of the changes
Mr. Ash requested. After he filed a discrimination claim with the
Equal Employment Opportunity Commission, his performance evaluations
started being lower than those he had received previously.
Eventually both Ms. Garrett and Mr. Ash filed lawsuits in federal
court, seeking monetary damages under ADA. In each case, the Alabama
state agency employers moved for summary judgment, claiming that
they were shielded by the Eleventh Amendment and that in enacting
ADA Congress had exceeded its authority to abrogate states' immunity
under that Amendment. The district court decided to address both
cases in a single opinion, and granted the defendants' motions for
summary judgment. The cases were then formally consolidated on appeal
to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh
Circuit reversed, ruling that ADA validly abrogates the states'
Eleventh Amendment immunity.
In a 5-4 decision, the Supreme Court ruled that suits by employees
of a state to recover money damages from a state for violations
of Title I of ADA are barred by the Eleventh Amendment. The majority
opinion was written by Chief Justice Rehnquist. Early in the opinion,
he acknowledged that the wording of the Eleventh Amendment applies
only to suits against a state by citizens of another state, and
explained that the Court's decisions extended the Amendment's applicability
to suits by citizens against their own states. Ultimately, the Eleventh
Amendment has come to mean that states may not be sued by private
individuals in federal court without the state's consent. Prior
to its Garrett decision, the Court's most recent ruling on the Eleventh
Amendment was Kimel v. Florida Bd. of Regents, 528 U.S. 62
(2000), in which the Court ruled that the Age Discrimination in
Employment Act did not validly abrogate states' Eleventh Amendment
immunity from suits by private individuals.
In Garrett, the Court observed that Congress may abrogate the states'
Eleventh Amendment immunity, but to do so it must comply with two
conditions: (1) that it abrogates such immunity unequivocally, and
(2) that it acts pursuant to a valid constitutional grant of authority.
In ADA, Congress expressly declared that states are not to be immune
under the Eleventh Amendment to court actions under the Act, 42
U.S.C. § 12202, so the first requirement was not in dispute.
The question left for the Court was whether Congress acted within
its constitutional authority by subjecting the states to suits in
federal court for money damages under Title I of ADA. The Court
declared that ADA could limit state sovereignty under the Eleventh
Amendment only if it is appropriate legislation under § 5 of
the Fourteenth Amendment, which gives Congress the power to enact
"appropriate legislation" to enforce the requirements of that amendment.
The Court recognized that under § 5 Congress is not limited
to merely repeating the requirements of the Fourteenth Amendment
as delineated in court decisions, but is given the power to remedy
and to deter violations of rights guaranteed under the Amendment
by prohibiting "a somewhat broader swath of conduct, including that
which is not itself forbidden by the Amendment's text." 531 U.S.
at 963, quoting Kimel, supra, at 81; City of Boerne
v. Flores, 521 U.S. 507, 536 (1997). On the other hand, the
Court considered it a settled principle that it is the province
of the Court, not the Congress, to define the substance of constitutional
guarantees. To identify the limit of congressional authority under
§ 5, the Court referred to its decision in the City of Boerne
v. Flores case in 1997, which had established a requirement
that § 5 legislation reaching beyond the scope of the Fourteenth
Amendment's guarantees must exhibit "congruence and proportionality"
between the constitutional injury being addressed and the means
adopted to address it. Garrett, at 963, quoting City of Boerne,
supra, at 520.
In applying these principles to the coverage of states by Title
I of ADA, the Court took a narrow view of what constitutes a Fourteenth
Amendment violation against persons with disabilities. For many
years, a key factor in equal protection analysis in the Court's
decisions has been which of the levels of scrutiny--strict, moderate,
or low--a particular type of unequal treatment will be evaluated
under. The Court viewed its decision in Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432 (1985), which involved a group
home for individuals with mental retardation, as having essentially
settled the issue that disability is neither a suspect or quasi-suspect
classification under the Equal Protection Clause. Accordingly, state
discrimination on the basis of disability challenged as violating
equal protection would merit only "rational-basis review"--the lowest
level of equal protection analysis. Under this standard, a state
will not be held to have violated the Equal Protection Clause if
there is a rational relationship between the disparity of treatment
and some legitimate governmental purpose. Moreover, the Court declared
that a state does not need to articulate its reasoning at the moment
a particular decision is made. Instead, the party bringing an equal
protection challenge has the burden of showing that there is no
reasonably conceivable state of facts that could provide a rational
basis for the classification.
In an ominous paragraph, the Court described the conclusions it
derived from its rational basis analysis:
Thus, the result of Cleburne is that States are not required
by the Fourteenth Amendment to make special accommodations for
the disabled, so long as their actions toward such individuals
are rational. They could quite hardheadedly--and perhaps hardheartedly--hold
to job-qualification requirements which do not make allowance
for the disabled. If special accommodations for the disabled are
to be required, they have to come from positive law and not through
the Equal Protection Clause.
Garrett, at 964.
Having severely restricted the constitutional dimensions of disability-based
discrimination, the Court then examined whether Congress had identified
a history and pattern of unconstitutional employment discrimination
by the States against individuals with disabilities. The Court discounted
any examples from the legislative history that involved discrimination
by cities and counties, because the Eleventh Amendment does not
extend immunity to such local governmental entities. The Court also
disregarded broad findings of societal discrimination in ADA because
it viewed most such discrimination as not involving the activities
of states. The Court also found unpersuasive what it termed "half
a dozen examples from the record" cited in the brief on behalf of
Garrett that did involve states. Id. at 965. While the Court
accepted that several of the cited incidents evidenced an unwillingness
on the part of state officials to make the sort of accommodations
for disability required by ADA, it considered it "more debatable"
whether they were irrational under the decision in Cleburne. Id.
But even if they were determined to show unconstitutional action
on the part of the states, the Court found that these incidents
fell far short of showing the pattern of unconstitutional discrimination
on which § 5 legislation must be based. In light of ADA finding
that some 43,000,000 Americans have one or more disabilities, and
statistics indicating that in 1990 the states employed more than
4.5 million people, the Court found that the evidence Congress assembled
of unconstitutional state discrimination in employment was inadequate.
The Court added that even if the examples were accepted as demonstrating
a pattern of unconstitutional discrimination by the states, the
rights and remedies created by ADA against the states would still
raise problems of "congruence and proportionality" of the kind the
Court had found in its City of Boerne ruling. The Court particularly
singled out, as exceeding what is constitutionally required, ADA
facility accessibility and reasonable accommodation requirements,
and the prohibition against standards, criteria, or methods of administration
that have the effect of discrimination. The Court contrasted ADA
legislative record with congressional documentation of "a marked
pattern of unconstitutional action by the States," addressed by
"a detailed but limited remedial scheme" in enacting the Voting
Rights Act of 1965. Id. at 967.
Ultimately, the Court found that in enacting ADA Congress had fallen
short of the constitutional prerequisites to authorizing private
individuals to recover money damages against the states: demonstrating
a pattern of discrimination by the states which violates the Fourteenth
Amendment, and imposing a remedy that is congruent and proportional
to the targeted violation. Accordingly, the Court reversed the judgment
of the Eleventh Circuit.
The Court added a footnote (number 9) at the end of its opinion
to clarify that its ruling did not mean that persons with disabilities
have no federal recourse against discrimination. The Court noted
that states are still subject to Title I standards, and those standards
can be enforced by the United States in actions for money damages,
as well as by private individuals in actions for injunctive relief.
In addition, state laws protecting the rights of persons with disabilities
in employment may provide additional avenues of redress. In a different
footnote (number 1) at the beginning of its opinion, the Court stressed
that it was not addressing whether Title II, "which has somewhat
different remedial provisions from Title I," is appropriate legislation
under § 5. Id. at 960 n.1. Of course, some of the analysis
the Court applies to Title I in Garrett might greatly affect the
analysis of Eleventh Amendment immunity under Title II in future
court challenges.
Justice Kennedy wrote a concurring opinion, in which Justice O'Connor
joined. While recognizing that persons with disabilities encounter
prejudice stemming from indifference or insecurity and from malicious
ill will, and that ADA "will be a milestone on the path to a more
decent, tolerant, progressive society," Id. at 968 (Kennedy,
concurring). Justice Kennedy wrote separately primarily to stress
that states should not be subjected to the same standards of discrimination
as citizens. He challenged the prospect of states being held in
violation of the Constitution for embodying "the misconceived or
malicious perceptions of some of their citizens." Id. He
also noted his belief that if discrimination by states represented
a serious constitutional problem he would have expected substantial
litigation of these issues in state and federal courts, which he
believed had not occurred.
Justice Breyer wrote a forceful dissenting opinion, in which he
was joined by Justices Stevens, Souter, and Ginsburg. He took strong
issue with the Court's second-guessing of the congressional record
of ADA "as if it were an administrative agency record." Id.
at 969 (Breyer, dissenting). He responded to the majority's finding
that Congress had assembled only minimal evidence of unconstitutional
state discrimination in employment by contending that Congress had,
in fact, compiled a "vast legislative record" documenting massive,
society-wide discrimination against persons with disabilities. Id.
In Justice Breyer's view, the evidence and findings of society-wide
prejudice and discrimination implicated the states because "[t]here
is no particular reason to believe that they are immune from the
'stereotypic assumptions' and pattern of 'purposeful unequal treatment'
that Congress found prevalent." Id. Moreover, contrary to
the "half a dozen" examples of employment discrimination recognized
by the majority, Justice Breyer argued that there were approximately
300 such examples in ADA legislative record, and he attached an
appendix to his opinion identifying them. In addition, he discussed
various ADA findings and specific examples of discrimination by
state and local government entities at some length in his opinion.
In addition to disagreeing with the majority about the quantity
of evidence of a constitutional problem amassed by Congress, Justice
Breyer also argued that the majority had used the wrong standard
in evaluating such evidence in that it had afforded insufficient
deference to and respect for Congress. In his view, the Court's
application of the rational basis standard was misguided. Rational
basis analysis, he argued, is a manifestation of judicial restraint
that is appropriate to courts, not to Congress: "a legislature is
not a court of law," Id. at 971; "the Congress of the United
States is not a lower court," Id. at 973. In applying a rule
designed to restrict courts as if it restricted the legislative
power of Congress, he believed the Court had stood the underlying
principle--a principle of judicial restraint--on its head.
Justice Breyer also disagreed with the majority that ADA's damages
remedy was not "congruent" with and "proportional" to the equal
protection problem that Congress found. He defended ADA's reasonable
accommodation requirement by arguing that it is appropriate for
Congress to impose a remedy that, in response to unreasonable employer
behavior, requires an employer to make accommodations that are reasonable.
And he believed that the Court had repeatedly confirmed that §
5 grants to Congress just this kind of power to require more than
the minimum. He believed that Congress should be permitted to use
any rational means to implement the constitutional prohibition,
and the Court should merely determine if it could perceive a basis
upon which the Congress might have addressed the problem as it did,
not to reassess the congressional resolution of conflicting considerations
including the risk or pervasiveness of the discrimination, the adequacy
or availability of alternative remedies, and the effect upon state
interests. While professing to follow the principle of deference
to Congress, the Court in its recent cases "sounds the word of promise
to the ear but breaks it to the hope." Id. at 975.
Ultimately, Justice Breyer concluded that the Court, "through its
evidentiary demands, its non-deferential review, and its failure
to distinguish between judicial and legislative constitutional competencies,
improperly invades a power that the Constitution assigns to Congress."
Id. at 975-76. This outcome, in his view, effectively saps
the independent force of § 5.
J. BUCKHANNON BOARD AND CARE HOME, INC. V. W.
VA. DEP'T OF HEALTH AND HUMAN RESOURCES
Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health
and Human Res., 532 U.S. 598, 121 S.Ct. 1835 (2001).
The Buckhannon Board and Care Home, Inc. operates residential care
homes that provide assisted living services to their elderly residents.
The care homes failed an inspection by the West Virginia Office
of the State Fire Marshal because some of the residents were found
incapable of "self-preservation" as required under state law, because
they could not get to a fire exit without aid. Provisions of the
West Virginia Code required that all residents of residential board
and care homes be capable of "self-preservation," or capable of
moving themselves "from situations involving imminent danger, such
as fire." W. Va. Code § 16-5H-1, 16-5H-2 (1998). After receiving
cease and desist orders requiring the closure of its facilities
within 30 days, Buckhannon Board and Care Home, Inc., commenced
a lawsuit in federal court in October 1997, on behalf of itself
and other similarly situated homes and residents against the State
of West Virginia, two of its agencies, and 18 individual officials.
In the lawsuit, Buckhannon was joined as a plaintiff by Dorsey Pierce,
a 102-year-old Buckhannon resident, along with another resident
and an organization of residential homes. The plaintiffs charged
that the "self-preservation" requirement violated the Fair Housing
Amendments Act of 1988 (FHAA), and the Americans with Disabilities
Act of 1990 (ADA).
The defendants agreed to delay enforcement of the cease and desist
orders pending resolution of the case, and the parties began discovery.
In 1998, the West Virginia Legislature passed legislation eliminating
the "self-preservation" requirement, and the defendants moved to
dismiss the case as moot. The district court granted the motion,
finding that the 1998 amendments had eliminated the problematic
provisions and that there was no indication that the West Virginia
Legislature would repeal the amendments. The plaintiffs asked the
court to award it attorney's fees as the "prevailing party" under
the FHAA and ADA. The FHAA has a provision stating that "the court,
in its discretion, may allow the prevailing party ... a reasonable
attorney's fee and costs." 42 U.S.C. § 3613(c)(2). ADA, likewise,
has a provision stating that "the court ..., in its discretion,
may allow the prevailing party ... a reasonable attorney's fee,
including litigation expenses, and costs." 42 U.S.C. § 12205.
The district court denied the plaintiffs' request for attorney's
fees on the grounds that one cannot be a "prevailing party" without
having obtained an enforceable judgment, a consent decree, or a
settlement giving some of the legal relief sought in the lawsuit,
and the Fourth Circuit affirmed the district court's judgment.
The Supreme Court noted that most of the U.S. Courts of Appeals
had authorized the awarding of attorney's fees under what is called
the "catalyst theory." Under this approach a plaintiff is considered
a "prevailing party" if it achieves the desired result because the
lawsuit brought about a voluntary change in the defendant's conduct.
Both in its Buckhannon ruling and previously, the Fourth Circuit
had rejected the catalyst theory and required a judgment, consent
decree, or settlement in a party's favor before the party would
be eligible for attorney's fees. In a 5-4 decision, the Supreme
Court agreed with the Fourth Circuit and rejected the catalyst theory.
Justice Rehnquist delivered the opinion for the Court. He began
by discussing what is known as the "American Rule," under which
parties in the United States courts are ordinarily required to pay
for their own attorneys; the prevailing party is not entitled to
collect attorney's fees from the loser. Accordingly, U.S. courts
generally do not award fees to a prevailing party unless there is
a statute that explicitly authorizes them to do so. Congress has
authorized the award of attorney's fees to the "prevailing party"
in a variety of statutes, including the FHAA, ADA, the Civil Rights
Act of 1964, the Voting Rights Act Amendments of 1975, the Civil
Rights Attorney's Fees Awards Act of 1976, and numerous others.
The Supreme Court had not previously ruled on the precise definition
to be accorded the term "prevailing party."
To ascertain the meaning of this legal term of art, the Supreme
Court looked to Black's Law Dictionary. This legal dictionary defines
"prevailing party" as "[a] party in whose favor a judgment is rendered,
regardless of the amount of damages awarded (in certain cases, the
court will award attorney's fees to the prevailing party).--Also
termed successful party." Black's Law Dictionary 1145 (7th ed. 1999).
The Court stated that its prior decisions were consistent with this
definition's view that a "prevailing party" is one who has been
awarded some relief by the court. The Court characterized its prior
decisions as having not ever reached or as expressly reserving the
issue of the validity of the "catalyst theory." The prior cases
had determined that attorney's fees could be awarded in three sets
of circumstances: (1) where plaintiffs had prevailed on the merits
of at least some of their claims and received at least some judicial
relief; (2) where plaintiffs had established their entitlement to
some relief through settlement agreements enforced through a court-ordered
consent decree; and (3) possibly, where plaintiffs had established
their entitlement to some relief through private settlement agreements,
provided the terms of the agreement are incorporated into the order
of dismissal.
The Court ruled that the catalyst theory fell outside these categories.
It identified the critical criterion as whether there is "judicially
sanctioned change in the legal relationship of the parties," and
held that a defendant's voluntary change in conduct, even if it
accomplishes what the plaintiff sought to achieve by the lawsuit,
lacks the necessary "judicial imprimatur" on the change. 121 S.Ct.
at 1840. Such a result, the Court stated, was consistent with its
prior rulings, which had never awarded attorney's fees for a nonjudicial
alteration of actual circumstances.
Addressing the plaintiffs' arguments that the catalyst theory is
necessary to prevent defendants from unilaterally mooting an action
before judgment in an effort to avoid an award of attorney's fees,
and that rejection of the theory would deter plaintiffs with meritorious
but expensive cases from bringing suit, the Court was skeptical
that these were real problems, calling them "entirely speculative
and unsupported by any empirical evidence." Id. at 1842.
And such concerns, said the Court, are counterbalanced by the disincentive
the catalyst theory can have upon a defendant's decision to voluntarily
change its conduct, whether that conduct is or is not illegal, because
a defendant will be dissuaded from changing its conduct if it believes
it may incur attorney's fees as a result. In any event, such mooting
of the action by voluntary change is not a possibility in lawsuits
involving claims for monetary damages, and courts have the authority
not to dismiss a case for mootness unless it is clear that the allegedly
wrongful behavior could not reasonably be expected to recur. The
Court also noted that the catalyst theory would result in substantial
secondary litigation on the attorney's fees issue, involving demanding,
heavily fact-dependent proceedings.
Ultimately, however, the Court discounted all such policy-based
considerations, ruling that the "clear meaning" of "prevailing party"
in the fee-shifting statutes was determinative. The Court affirmed
the judgment of the Fourth Circuit.
Justice Scalia, who joined in the opinion for the Court, wrote
a separate concurring opinion in which he was joined by Justice
Thomas. Justice Scalia noted that he wanted to respond in greater
detail to various arguments made by the dissent. He began by tracing
the history of the use of the term "prevailing party" and of the
judicial decisions interpreting it. He concluded that at the time
the term was used in the Civil Rights Attorney's Fees Awards Act
of 1976, 42 U.S.C. § 1988, he knew of no case in which the
catalyst theory was used as the basis for the awarding of costs.
He stated that the dissent cited no Supreme Court case nor any other
federal court case prior to 1976 interpreting federal law in which
the court "regarded as the 'prevailing party' a litigant who left
the courthouse emptyhanded." 121 S.Ct. at 1844-45. Justice Scalia
accused the dissent of distorting the term "prevailing party" beyond
its normal meaning to permit awards of attorney's fees when the
merits of plaintiff's case remain undetermined and the defendant
may only have abandoned the fray to avoid the financial or public
relations costs of continuing the litigation. He doubted that Congress
intended to reward a party because it had greater strength in financial
resources, or superiority in media manipulation, instead of superiority
in the legal merits of its case.
Justice Scalia recognized that the Court's position will sometimes
result in a denial of fees to plaintiffs "with a solid case whose
adversary slinks away on the eve of judgment," while he believes
that the dissent's position would sometimes reward plaintiffs "with
a phony claim." Id. at 1847. But he considers the latter
situation--in which the law would be the instrument of wrong in
exacting attorney's fees for the "extortionist"--much worse than
the former--in which the law would deny "the extraordinary boon
of attorney's fees" to some plaintiffs who are no less "deserving"
of them than others who receive them. Id.
Justice Scalia had no problem with the fact that the Court's decision
rejected the position that had been taken by most of the Courts
of Appeals. He suggested that it is not uncommon for the Court to
disagree with the predominant position of the Circuits, sometimes
even when they are unanimous. And he argued that the Court's clarification
was particularly appropriate since the majority view among the Circuits
had been "nurtured and preserved" by "misleading dicta" in some
of the Court's prior decisions (to which Justice Scalia admits,
he had contributed): "enshrining the error that we ourselves have
improvidently suggested and blaming it on the near-unanimous judgment
of our colleagues would surely be unworthy." Id. at 1849.
Justice Scalia concluded by observing that Congress is free to revise
the attorney's fees provisions, but added his expectation that,
if it did, it would not simply adopt the catalyst theory, but would
require courts to determine that there was at least a substantial
likelihood that the party requesting fees would have prevailed.
Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer,
dissented. She began her dissenting opinion by characterizing the
Court's ruling as holding that a plaintiff whose suit prompts the
precise relief the lawsuit seeks does not "prevail," and cannot
obtain an award of attorney's fees, unless the plaintiff secures
a court entry memorializing the plaintiff's victory. The court entry
does not have to be a judgment on the merits or involve any finding
of wrongdoing; a court-approved settlement will do. In Justice Ginsburg's
view, the Court's insistence on a document filed in court involves
an "anemic construction" of the term "prevailing party," and rejects
"a key component of the fee-shifting statutes Congress adopted to
advance enforcement of civil rights"--the catalyst theory; the result
is a decision that is unwarranted in "history, precedent, or plain
English." Id. at 1850.
Justice Ginsburg pointed out that, prior to 1994, the Courts of
Appeals were unanimous (except the Federal Circuit, which had not
addressed the issue) in accepting the catalyst theory and permitting
plaintiffs to obtain fee awards even if they did not obtain a judgment
or consent decree. In 1994, the Fourth Circuit deviated from its
prior stance and broke ranks from the other Circuits by holding
that a plaintiff could not become a "prevailing party" without an
enforceable judgment, consent decree, or settlement. Subsequently,
the nine other circuits reaffirmed their endorsement of the catalyst
approach.
Justice Ginsburg outlined three conditions the lower courts had
imposed for a party to qualify as a prevailing party under the catalyst
theory: (1) a plaintiff had to show that the defendant provided
some of the benefit sought by the lawsuit; (2) a plaintiff had to
demonstrate that the suit stated a genuine claim--one that was at
least "colorable," not frivolous, unreasonable, or groundless; and
(3) the plaintiff had to establish that the suit was a "substantial"
or "significant" cause of the defendant's action providing relief.
In contrast to this accepted interpretation of "prevailing party,"
she complained that the Court had found a "clear meaning" of the
term that "has heretofore eluded the large majority of courts construing
those words." Id. at 1853. While agreeing with Black's Law
Dictionary that a party in whose favor a judgment is rendered prevails,
she saw no reason to conclude that only such a party prevails. Moreover,
she observed that the Court had not previously treated Black's Law
Dictionary as a single authoritative source of definitions, but
had given statutory terms a contextual reading.
After reviewing the prior statutory and case law, Justice Ginsburg
concluded that "there is substantial support, both old and new,
federal and state, for a costs award ... to the plaintiff whose
suit prompts the defendant to provide the relief plaintiff seeks."
Id. at 1855. Believing that Congress intended the phrase
"prevailing party" to carry its ordinary, contemporary, common meaning,
Justice Ginsburg quoted a dictionary definition of the word "prevail"
as meaning "gain victory by virtue of strength or superiority: win
mastery: triumph." Id., quoting Webster's Third New International
Dictionary 1797 (1976). She argued that a lawsuit's ultimate purpose
is to achieve actual relief from an opponent, and, while a favorable
court judgment may be instrumental in gaining such relief, the judicial
decree is not the end but the means. Based upon this common understanding
of "prevailing," if a party reaches the "sought-after destination,"
then the party prevails "regardless of the route taken." Id.
at 1856, quoting Hennigan v. Ouachita Parish School Bd.,
749 F.2d 1148, 1153 (5th Cir. 1985). Thus, Justice Ginsburg argued
that a fair reading of the attorney's fees provisions in the FHAA
and ADA would indicate that a party prevails whenever the party
achieves, by instituting litigation, the practical relief sought
in the complaint. In the present case, she believed the plaintiffs'
objective was not to obtain a judge's endorsement, but to stop enforcement
of a rule requiring Buckhannon to evict residents like Dorsey Pierce.
If the plaintiffs achieved that objective due to the strength of
their case, then they were properly judged as the party who prevailed.
Justice Ginsburg argued that the catalyst theory advanced the enforcement
of civil rights by private citizens--sometimes referred to as "private
Attorneys General." It also enabled persons of lesser means to be
able to enter into litigation which they otherwise could not afford
to undertake. Ultimately, Justice Ginsburg concluded that "[t]he
Court's narrow construction of the words 'prevailing party' is unsupported
by precedent and unaided by history or logic." Id. at 1861.
K. PGA TOUR, INC. v. MARTIN
PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879 (2001)
Casey Martin, a professional golfer, qualified for the Nike Tour
in 1998 and 1999, and for the PGA Tour in 2000. Since birth he has
had a degenerative circulatory disorder, called Klippel-Trenaunay-Weber
Syndrome, that obstructs the flow of blood from his right leg to
his heart. The painful, progressive condition has caused his right
leg to atrophy. Toward the end of his college years, he became unable
to walk an 18-hole golf course. Walking caused him pain, fatigue,
and anxiety; it also created a significant risk of hemorrhaging,
blood clots, and fractures of his leg bone that could necessitate
an amputation. When Mr. Martin turned pro he entered a three-stage
qualifying tournament known as the "Q-School" run by PGA Tour, Inc.
He was entitled to use a golf cart during the first two stages,
and he completed them successfully. Since 1997, however, the PGA
Tour had prohibited the use of carts in the third stage. Mr. Martin
made a request, supported by detailed medical records, that he be
allowed to use a cart during the third stage. The PGA Tour refused
to review the medical records Mr. Martin had submitted or to waive
its walking rule for the third stage. Mr. Martin filed a lawsuit
in federal court alleging that the PGA Tour was violating ADA by
refusing to let him use a golf cart.
The district court entered a preliminary injunction directing that
Martin be allowed to use a cart in the final stage of the Q-School
and as a competitor in the Nike Tour and PGA Tour. The PGA Tour
subsequently moved for summary judgment on the ground that it was
exempt from coverage under Title III of ADA as a "private club or
establishment," and also that the play areas of its tour competitions
do not constitute places of "public accommodation" within the scope
of Title III. The lower court rejected both of these contentions.
At trial, the PGA Tour did not contest that Martin had a disability
covered by ADA, or that his condition prevented him from walking
the golf course. Instead, it argued that the requirement of walking
is a substantive rule of competition, and that waiving it for any
individual for any reason would fundamentally alter the nature of
the competition. The PGA Tour presented evidence that fatigue can
be a critical factor in a tournament, particularly on the last day
when psychological pressure is at a maximum, and that permission
to use a cart might give some players a competitive advantage over
other players who must walk.
The evidence on behalf of Mr. Martin showed that with a cart he
must still walk over a mile during an 18-hole round, and the district
court concluded that with his condition the fatigue he suffered
was greater than the fatigue other competitors endure from walking
the course. The district court rejected the PGA Tour's contention
that there should not be any individualized inquiry into the application
of the walking rule, and concluded that under ADA it had a duty
to inquire into the purpose of the rule, and to determine whether
a reasonable modification could be made to accommodate Martin without
frustrating the purpose of the rule and fundamentally altering the
nature of PGA Tour's tournaments. After hearing the evidence at
trial, the court concluded that using a golf cart would not give
Martin a competitive advantage, and that it would not fundamentally
alter the nature of PGA Tour golf to accommodate him with a cart.
Therefore, the court entered a permanent injunction requiring the
PGA Tour to permit Martin to use a cart in tour and qualifying events.
On appeal to the Ninth Circuit, the PGA Tour gave up on its claim
that it was exempt as a "private club," but reasserted its contentions
that during a tournament the portion of the golf course "behind
the ropes" is not a place of public accommodation because the public
is restricted from entering it, and that granting Mr. Martin permission
to use a cart would "fundamentally alter" the nature of the tour
competitions. The Court of Appeals could find no basis for distinguishing
between using a place of public accommodation for pleasure and using
it in pursuit of a living, and ruled that golf courses remain places
of public accommodation during PGA tournaments. The Ninth Circuit
viewed the fundamental alteration issue as turning on an individualized,
fact-based inquiry, and found that Martin's use of a cart would
not fundamentally alter the competition.
On the day after the Ninth Circuit's ruling in the Martin case,
the Seventh Circuit issued an opinion in the case of Olinger
v. United States Golf Assn., 205 F.3d 1001 (7th Cir. 2000),
that reached a contrary conclusion on the fundamental alteration
issue. Ford Olinger, a golfer with bilateral avascular necrosis,
a degenerative condition that significantly hindered his ability
to walk, brought the lawsuit against the United States Golf Association
(USGA) because it refused to let him use a cart in the United States
Open. The Seventh Circuit found that the physical ordeals endured
by golf legends Ken Venturi and Ben Hogan when they walked to their
Open victories in 1964 and 1950 demonstrated the importance of stamina
in the tournament. Moreover, the court ruled, alternatively, that
ADA does not require the USGA to bear the administrative burdens
of evaluating requests to waive the walking rule and permit the
use of a golf cart. The different outcomes in Martin and Olinger
thus represented a split in the Courts of Appeals, one of the factors
that influence the Supreme Court to agree to hear an appeal in a
case.
In a 7-2 decision, the Supreme Court affirmed the Ninth Circuit's
judgment in Martin. In an opinion delivered by Justice Stevens,
the Court began its discussion of the case by looking at the overall
objectives of ADA and observing that "Congress enacted ADA in 1990
to remedy widespread discrimination against disabled individuals."
121 S.Ct. at 1889. It further noted the "comprehensive character"
of ADA's "broad mandate" against discrimination on the basis of
disability. Id. Focusing on the public accommodations provisions--Title
III--of the Act, the Court found that the legislative history indicated
that the concept of public accommodations should be construed liberally
to afford people with disabilities equal access to the wide variety
of establishments available to people without disabilities.
The Court declared that Title III, by its plain terms, seems to
cover PGA Tour events and to afford protection to Mr. Martin. Title
III specifically identifies "golf course[s]," as a type of public
accommodation. 42 U.S.C. § 12181(7)(L). It requires those who
lease or operate such an accommodation, such as the PGA Tour, not
to discriminate against any "individual" in the "full and equal
enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations" of those courses. Id., § 12182(a).
Accordingly, the PGA Tour's "golf tours and their qualifying rounds
fit comfortably within the coverage of Title III, and Martin within
its protection." 121 S.Ct. at 1890.
In its appeal to the Supreme Court, the PGA Tour admitted that
its tournaments are conducted at places of public accommodation,
and stopped contending that the competitors' area "behind the ropes"
is not a public accommodation. Instead, the Tour argued that the
competing golfers are not members of the class protected by Title
III. According to this argument, Title III addresses discrimination
against "clients or customers" seeking to obtain "goods and services"
at places of public accommodation, whereas it is Title I that protects
persons who work at such places, and in its golf tournaments the
PGA Tour operates not as a golf course but as a "place of exhibition
or entertainment," 42 U.S.C. § 12181(7)(C). Thus, a professional
golfer such as Martin should be considered a provider rather than
a consumer of the entertainment sold to the public. Martin would
therefore not be able to bring a claim under Title III because he
is not a client or customer of the public accommodation. Moreover,
the PGA Tour contended that Mr. Martin's claim of discrimination
was job-related and could only be brought under Title I--the employment
provisions of ADA--an option that the district court had foreclosed
because it ruled he was an independent contractor rather than an
employee.
The Court recognized that the "clients or customers" language did
not appear in the general prohibition of discrimination in Title
III but in a provision governing attempts to avoid nondiscrimination
obligations through contractual licensing, or other arrangements.
Id., § 12182(b)(1)(A)(iv). The PGA Tour urged, however,
that the limitation of this provision's coverage to clients or customers
should be construed to limit the scope of Title III's protection
as a whole. The Court decided it was not necessary to determine
whether the Tour was correct in this interpretation, because, even
if it were, Martin was a client or customer of the PGA Tour. The
Court found that the PGA Tour simultaneously offered at least two
"privileges" to the public--that of watching the golf tournament
and that of competing in it. The fact that the PGA Tour serves spectators
at tournaments as one set of clients or customers does not prevent
it from having another set, players in tournaments, against whom
it also may not discriminate. The Court felt that any more restrictive
reading of Title III's coverage, even if the Court accepted the
"clients or customers" limitation, would be inconsistent with the
literal text of the statute and its expansive purpose. The Court
noted that its conclusion on this issue is consistent with case
law under Title II (the public accommodations title) of the Civil
Rights Act of 1964 that had found golfers and golf tournaments to
be covered.
Having ruled that Mr. Martin was entitled to be protected from
discrimination on the basis of disability when participating in
PGA Tour golf tournaments, the Court then turned its attention to
the question whether permitting Martin to use a golf cart would
constitute a fundamental alteration. Under ADA, a covered public
accommodation must make "reasonable modifications in policies, practices,
or procedures" unless the covered entity can "demonstrate that making
such modifications would fundamentally alter the nature of such
goods, services, facilities, privileges, advantages, or accommodations"
it provides. 42 U.S.C. § 12182(b)(2)(A)(ii) (emphasis added).
The Court found that the application of this requirement entails
three inquiries: "whether the requested modification is "reasonable,"
whether it is "necessary" for the individual with a disability,
and whether it would "fundamentally alter the nature of" the competition."
121 S.Ct. at 1893 n. 38. The PGA Tour conceded that a golf cart
was a reasonable modification that was necessary if Martin was to
play in its tournaments, so only the third of the three inquiries--whether
the use of a golf cart would fundamentally alter the nature of PGA
Tour golf competitions--was left for the Court to resolve.
The Court declared that a modification of the golf tournaments
might constitute a fundamental alteration in two different ways.
First, it might alter such an essential aspect of the game of golf
that it would be unacceptable even if it affected all competitors
equally. The Court suggested that changing the diameter of the hole
from three to six inches might be such a modification. Second, a
modification having a lesser impact on the game itself might give
a player with a disability an advantage over others and in that
way fundamentally alter the character of the competition. The Supreme
Court ruled that waiving the walking rule for Martin would not work
a fundamental alteration in either sense.
The Court found that the essence of golf is "shot-making--using
clubs to cause a ball to progress from the teeing ground to a hole
some distance away with as few strokes as possible." Id.
at 1893-94. It also recognized that golf carts are officially permitted
in a variety of golf competitions, including tournament settings
such as the Senior PGA Tour, the open qualifying events for PGA
Tour's tournaments, the first two stages of the Q-School, (and,
until 1997, the third stage of the Q-School as well), and even certain
tournament rounds in both the PGA Tour and the Nike Tour. The Court
concluded, therefore, that the walking rule is not an essential
attribute of the game. The PGA Tour argued, however, that the walking
rule was essential to the highest levels of golf, because at that
level assessing and comparing the performance of different competitors
is meaningful only if the competitors are subject to identical substantive
rules. It contended that the walking requirement was intended to
inject the element of fatigue into the contests of shot-making skill,
and that it might be "outcome-affecting" in the sense that it might
result in the critical loss of a stroke.
The Court was not convinced that golf was such an exact, pure contest
of shot-making skills that it required precisely identical conditions
for each competitor. The Court noted that changing weather conditions
could produce harder greens and more head winds for one player than
another, and even that "[a] lucky bounce may save a shot or two."
Id. at 1895. Thus pure chance could have a greater impact
on the outcome of elite golf tournaments than the fatigue resulting
from PGA Tour's walking rule. Moreover, the Supreme Court noted
that the district court had found, based on the evidence it received,
that the fatigue from walking during the PGA Tour's four-day tournaments
cannot be deemed significant. The Court also noted expert testimony
that golf is a low intensity activity, and that fatigue from the
game is primarily a psychological phenomenon resulting principally
from stress and motivation. It recognized other evidence demonstrating
that, when given the option of using a cart, the majority of golfers
in PGA Tour tournaments had chosen to walk.
The Court found, however, that even if it accepted the PGA Tour's
contention that its walking rule is "outcome affecting" because
fatigue may affect performance, it would not excuse the PGA Tour
from making the reasonable modification Mr. Martin was requesting
without a showing that the use of a cart would, for him with his
particular condition, give him an advantage over other competitors.
The Court found that the reasonable modification provision of Title
III requires an individualized inquiry whether a specific modification
for a particular person's disability would work a fundamental alteration.
The PGA Tour had refused to consider Martin's personal circumstances
in deciding whether to accommodate his condition. In light of the
district court's finding that Martin "easily endures greater fatigue
even with a cart than his able-bodied competitors do by walking,"
994 F.Supp. 1242, 1252 (D.Or. 1998), the Supreme Court held that
the purpose of the walking rule would not be compromised "in the
slightest" by allowing Martin to use a cart. It declared that "[a]
modification that provides an exception to a peripheral tournament
rule without impairing its purpose cannot be said to 'fundamentally
alter' the tournament." 121 S.Ct. at 1897.
The Court recognized that the waiver of "an essential rule of competition"
for anyone could fundamentally alter the nature of PGA Tour's tournaments,
but the walking rule was "at best peripheral" to the nature of the
events, and thus can be waived in individual cases without working
a fundamental alteration. Id. at 1896. The Court characterized
the Tour's claim that all the substantive rules for its highest-level
competitions are sacrosanct and cannot be modified under any circumstances
as essentially a contention that it is exempt from Title III's reasonable
modification requirement. Id. ADA, however, does not carve
out any exemption for elite athletics; on the contrary, it explicitly
covers golf courses and places of "exhibition or entertainment."
42 U.S.C. § 12181(7)(C), (L). Any questioning of the appropriateness
of having courts apply the reasonable modification requirement to
athletic competition is, said the Court, a complaint that should
be directed to Congress, not to the Court. The Court flatly rejected
dissenting Justice Scalia's contention that all rules of sports
games are arbitrary and that no one, including the courts, can determine
them to be nonessential if the rulemaker deems them essential. It
stated that whatever merit Justice Scalia's "post-modern view" of
sport may have, Congress clearly did not incorporate it in Title
III of ADA, and did not give sports organizations "carte-blanche
authority to exempt themselves from the fundamental alteration inquiry"
by deeming any rule to be essential--an approach that would make
the statutory word "fundamentally" superfluous, because alteration
of any rule governing an event at a public accommodation might be
considered a fundamental alteration. Id. at 1897.
The Court admitted that ADA imposes some administrative burdens
on the operators of places of public accommodation that could be
avoided by strictly adhering to general rules and policies. But
it was convinced that Congress intended that an entity like the
PGA should give individualized attention to the handful of requests
that it might receive from athletes with disabilities for a modification
or waiver of a rule to allow them access to the competition, and
also should carefully weigh the purpose, as well as the letter,
of the rule before deciding that no accommodation would be tolerable.
The Court concluded that in light of such obligations under ADA,
Martin's request for a waiver of the walking rule should have been
granted. The Court affirmed the judgment of the Ninth Circuit.
Justice Scalia submitted a fierce dissenting opinion, in which
he was joined by Justice Thomas. He argued that the majority's ruling
distorted the text of Title III, the structure of ADA, and common
sense. In his view, Title III was intended to provide protection
only to customers and clients as distinguished from employers and
independent contractors. And he argued that professional golfers
are not customers of public accommodations because they are not
using such places in order to enjoy the goods, services, facilities,
privileges, advantages, or accommodations these places provide,
but rather to earn money. In short, they are selling recreation
or entertainment, not buying it. Accordingly, in Justice Scalia's
view, professional athletes should not be protected from discrimination
under Title III.
Justice Scalia also argued that Title III guarantees only "access"
to the goods, services, facilities, privileges, advantages, or accommodations
provided by public accommodations and does not regulate the content
of the goods or services offered. He characterized golf competitions
as such a service, whose content ADA does not address. In his view,
the PGA Tour could not deny Mr. Martin access to its events because
of his disability, but it was not required to provide him a game
different (whether in its essentials or in its details) from that
offered to everyone else.
Turning to the fundamental alteration issue, Justice Scalia argued
that all games are "entirely arbitrary," and that "there is no basis
on which anyone--not even the Supreme Court of the United States--can
pronounce one or another of them to be 'nonessential' if the rulemaker
(here the PGA Tour) deems it to be essential." Id. at 1902.
He called it "incredibly silly and incredibly difficult" for the
Court to determine whether walking is a fundamental or essential
aspect of golf, and suggested that the Court should have declined
to do so "either out of humility or out of self-respect." Id.
at 1902-03. In addition, he took strong issue with the majority's
ruling that the existence of a fundamental alteration should be
determined on the basis of individualized factual findings. He contended
that ADA seeks to assure only equal access to competitive sporting
events, not an equal chance to win, and that the managing bodies
of competitive sports should not have "to take account of the uneven
distribution of God-given gifts when writing and enforcing the rules
of competition." Id. at 1904. In Justice Scalia's view, the
question whether the PGA Tour should have voluntarily granted Mr.
Martin a waiver of the walking rule was a close one, but such a
waiver should not be imposed as a legal requirement.
Within a week after issuing its decision in PGA Tour, Inc. v.
Martin, the Supreme Court vacated the judgment of the Court
of Appeals for the Seventh Circuit in the Olinger v. United States
Golf Assn. case, and remanded it to the Seventh Circuit for further
consideration in light of the Supreme Court's ruling in Martin.
Olinger v. United States Golf Ass'n, 121 S.Ct. 2212 (2001).
L. TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC.
v. WILLIAMS
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681 (2002).
In 1990, Toyota Motor Manufacturing, Kentucky, Inc., hired Ella
Williams to work on an engine assembly line at its car manufacturing
plant in Georgetown, Kentucky. Soon after she began to work with
pneumatic tools, Ms. Williams developed carpal tunnel syndrome and
tendinitis that caused pain in both of her hands, wrists, and arms.
Her personal physician placed her on permanent work restrictions
that precluded her from lifting more than 20 pounds, from frequent
lifting of even lighter objects, from constant repetitive motions
of her wrists or elbows, from performing overhead work, and from
using vibratory or pneumatic tools. As a result, Toyota assigned
Ms. Williams to various modified duty jobs. Eventually she was assigned
to work as part of a Quality Control Inspection Operations team,
where she routinely performed two of the four tasks of the team,
both of which involved visual inspection. After two years during
which Ms. Williams had satisfactorily performed these tasks, Toyota
decided that teams should rotate through all four of the Quality
Control Inspection tasks. Accordingly, Ms. Williams was ordered
to apply a substance called highlight oil to several parts of cars
as they passed on the assembly line, which required her to hold
her hands and arms up around shoulder level for several hours at
a time. As a result, she began experiencing pain in her neck and
shoulders, and was diagnosed as having several medical conditions
(including myotendinitis, myositis, and thoracic outlet compression)
that cause inflammation and pain in the arms and shoulders.
Ms. Williams filed an ADA claim with the EEOC, alleging that Toyota
had failed to provide her with a reasonable accommodation as required
under the ADA. The district court granted summary judgment to Toyota
and found that Ms. Williams' impairments did not qualify as a "disability"
under the ADA because they did not substantially limit any major
life activity, she did not have a record of a disabling condition,
and Toyota had not regarded her as having a disability. The Court
of Appeals for the Sixth Circuit reversed, holding that Ms. Williams'
impairments substantially limited her in the major life activity
of performing manual tasks. The court said that the proper test
was whether Williams had shown that her manual disability involved
a class of manual activities affecting the ability to perform tasks
at work. Since her ailments prevented her from doing the tasks associated
with certain types of manual jobs that required the gripping of
tools and repetitive work with hands and arms extended at or above
shoulder levels for extended periods of time, the Sixth Circuit
ruled that Williams had satisfied the standard for having a disability
under the ADA.
In a unanimous decision delivered by Justice O'Connor, the Supreme
Court ruled that the Sixth Circuit did not apply the proper standard
in determining that Ms. Williams was disabled under the ADA "because
it analyzed only a limited class of manual tasks and failed to ask
whether [Ms. Williams'] impairments prevented or restricted her
from performing tasks that are of central importance to most people's
daily lives." 122 S.Ct. at 686. The Court noted that only the major
life activity of performing manual tasks was before it on appeal,
and expressed no opinion as to whether Ms. Williams' limitations
on working, lifting, and other activities that had been raised in
the lower courts were sufficient to establish a disability under
the ADA.
The parties had not contested and the Court accepted that Ms. Williams'
conditions constituted impairments, but the Court focused on whether
the impairments substantially limited Williams in the major life
activity of performing manual tasks. The Court declared that "'[s]ubstantially'
in the phrase 'substantially limits' suggests 'considerable' or
'to a large degree.'" Id. at 691, citing Webster's Third
New International Dictionary 2280 (1976) and 17 Oxford English
Dictionary 64-67 (2d ed. 1989). Therefore, the Court ruled, the
word "substantial" excludes impairments that interfere in only a
minor way with performance of manual tasks from constituting disabilities
under the ADA. The Court also stated that "'[m]ajor' in the phrase
'major life activities' means important" and so "major life activities"
refers to "those activities that are of central importance to daily
life." 122 S.Ct. at 691, citing Webster's, supra,
at 1363.
In a significant and ominous statement, the Court indicated, based
upon the ADA finding that 43 million people have disabilities, that
the terms "substantially limited" and "major life activities" "need
to be interpreted strictly to create a demanding standard for qualifying
as disabled ...." 122 S.Ct. at 691. The Court reasoned that "[i]f
Congress intended everyone with a physical impairment that precluded
the performance of some isolated, unimportant, or particularly difficult
manual task to qualify as disabled, the number would surely have
been much higher." Id. Thus, the Court indicated that it
would not suffice to try to prove disability merely by submitting
evidence of a medical diagnosis of an impairment, but would require
a further showing that the limitation is substantial in terms of
the individual's own experience. The Court added that an individualized
assessment of the effect of an impairment is particularly necessary
in regard to conditions, such as carpal tunnel syndrome, having
symptoms that vary widely from person to person. The Court noted
that under the EEOC's regulations (which the Court assumed were
valid and reasonable because the parties had accepted that they
were, even though the Court expressed reservations about their persuasive
value), the determination of whether an impairment is substantially
limiting involves consideration of its nature, severity, and duration.
Id. at 690, citing 29 C.F.R. §§ 1630.2(j)(2)(ii)-(iii)(2001).
The Court ruled that the Court of Appeals had erred in suggesting
that a manual disability must impede a class of manual activities
and that those activities must be ones that affect the ability to
perform tasks at work. As to the first, the Supreme Court declared
that nothing in the ADA, the regulations, or the Court's previous
rulings supports the application of a class-based framework except
in regard to the major life activity of working. Conversely, the
Sixth Circuit was also wrong in limiting its consideration of the
major life activity of performing manual tasks to only tasks associated
with Ms. Williams' job. The Court noted that the definition of disability
is applicable not only to employment but to portions of the ADA
that apply to other subjects such as transportation and public accommodations,
and should cover individuals in such contexts whether or not they
have jobs. Moreover, the Court observed that the manual tasks unique
to a particular job are not necessarily important parts of most
people's lives. At the same time, the Sixth Circuit disregarded
evidence that Ms. Williams was able to perform tasks involved in
her personal hygiene and some personal and household chores. Yet,
according to the Supreme Court, "household chores, bathing, and
brushing one's teeth are among the types of manual tasks of central
importance to people's daily lives, and should have been part of
the assessment of whether [Ms. Williams] was substantially limited
in performing manual tasks." Id. at 693. Because the Sixth
Circuit had applied improper standards in evaluating Ms. Williams'
alleged disability, the Court reversed the lower court's grant of
summary judgment to her. The Court refused, however, to reinstate
the district court's original grant of summary judgment to Toyota,
because Toyota had not sought that result in its appeal to the Supreme
Court. Accordingly, the Supreme Court remanded the case for further
proceedings in the lower courts.
M. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v.
WAFFLE HOUSE, INC.
Equal Employment Opportunity Commission v. Waffle House, Inc.,
122 S.Ct. 754 (2002).
In 1994, Eric Baker began working as a grill operator at a Waffle
House restaurant. Like all prospective Waffle House employees, Mr.
Baker was required to sign an application in which he agreed that
"any dispute or claim" concerning his employment would be "settled
by binding arbitration." Sixteen days after starting to work at
the restaurant, Mr. Baker had a seizure at work. Shortly thereafter,
Waffle House, Inc., fired him. Mr. Baker did not initiate arbitration
proceedings. He did, however, file a discrimination charge with
the EEOC alleging that his discharge violated Title I of the ADA.
After investigating the matter and trying unsuccessfully to conciliate,
the EEOC filed an enforcement suit in federal district court alleging
that Waffle House's employment practices, including its discharge
of Mr. Baker, violated the ADA and that the violation was intentional
and done with malice or reckless indifference to Mr. Baker's rights
under the ADA. The complaint sought injunctive relief to eliminate
Waffle House's unlawful employment practices; specific relief designed
to make Mr. Baker "whole," including back pay, reinstatement, and
compensatory damages; and punitive damages for Waffle House's malicious
and reckless conduct.
Waffle House filed a petition under the Federal Arbitration Act
(FAA) to stay the EEOC's lawsuit and compel arbitration, or to have
the suit dismissed. The district court denied Waffle House's motion,
because it found that Mr. Baker's employment contract had not actually
included the arbitration provision. On appeal, the Court of Appeals
for the Fourth Circuit disagreed with the district court and determined
that Mr. Baker and Waffle House had entered into a valid and enforceable
arbitration agreement. The Fourth Circuit concluded, however, that
because the EEOC has independent statutory authority to pursue such
actions and because the EEOC was not a party to the employment contract,
the arbitration agreement did not foreclose the enforcement action.
But the Court of Appeals ruled that in these circumstances the EEOC
was limited to seeking injunctive relief and was precluded from
seeking victim-specific, "make-whole" relief, because the FAA policy
favoring enforcement of private arbitration agreements required
giving some effect to Mr. Baker's arbitration agreement. The Fourth
Circuit found that this policy interest under the FAA outweighed
the EEOC's right to proceed in federal court in situations in which
it seeks primarily to vindicate private, rather than public, interests.
In a 6-3 decision delivered by Justice Stevens, the Supreme Court
ruled that an arbitration agreement between an employer and employee
does not foreclose the EEOC from pursuing victim-specific remedies
on behalf of the employee. The Court began its analysis by observing
that Congress has authorized the EEOC, in enforcing the ADA's prohibitions
against employment discrimination on the basis of disability, to
exercise the enforcement powers, remedies, and procedures set forth
in Title VII of the Civil Rights Act of 1964. In 1991, Title VII
was amended to give the EEOC the status of "a complaining party,"
to give EEOC authority to bring suit to enjoin an employer from
engaging in unlawful employment practices, and to pursue reinstatement,
backpay, and compensatory or punitive damages, in both Title VII
and ADA actions. Accordingly, the Court observed, "these statutes
unambiguously authorize the EEOC to obtain the relief it seeks in
its complaint sought if it can prove its case ...." 122 S.Ct. at
760.
In prior decisions, the Court had recognized that the EEOC's enforcement
role and an individual employee's private cause of action were not
on the same footing. Against the background of these civil rights
statutes and judicial precedents, the Court examined the impact
of the Federal Arbitration Act (FAA). Originally enacted in 1925,
the FAA announced a federal policy favoring arbitration agreements;
its central purpose was to give arbitration agreements the same
status as other contracts, thus reversing the traditional hostility
to such agreements in English and American law. The FAA provides
for stays of federal court proceedings when a party has failed to
comply with an arbitration agreement. The Court found, however,
that the FAA does not require parties to arbitrate when they have
not agreed to do so. Because the EEOC was not a party to the arbitration
agreement and had not agreed to arbitrate its claims, the FAA does
not require the agency to relinquish its right to pursue judicial
relief, even though the employer and employee may have chosen a
different process or forum for resolving their disputes.
The interaction between the civil rights statutes and the federal
policy favoring arbitration under the FAA presented, in the Court's
eyes, a choice between sharp alternatives. Either the plain language
of Title VII and the contractual arbitration agreement should be
effectuated, giving the EEOC authority to pursue the full range
of remedies, or the federal policy favoring arbitration should be
held to trump the Title VII and contractual provisions, and the
EEOC should be barred from pursuing any claim outside of the arbitration
process. The Court observed that the Fourth Circuit's attempt to
devise a "compromise solution" that would "split the difference"
by allowing the EEOC to pursue injunctive relief but not make-whole
remedies would turn "what is effectively a forum selection clause
into a waiver of a non-party's statutory remedies." 122 S.Ct. at
765. This approach, said the Court, "would undermine the detailed
enforcement scheme created by Congress simply to give greater effect
to an agreement between private parties that does not even contemplate
the EEOC's statutory function." Id. The Court ruled that
the EEOC's authority for pursuing relief was not under the control
of Mr. Baker, nor contingent upon the remedies directly available
to him: "[t]he statute clearly makes the EEOC master of its own
case ...." Id. at 763. Since the EEOC's claims under the
ADA were neither "merely derivative" nor "a proxy" for those of
the employee, the Court reversed the judgment of the Fourth Circuit
and remanded the case for further proceedings consistent with the
Supreme Court's opinion.
Justice Thomas wrote a dissenting opinion in which he was joined
by Chief Justice Rehnquist and Justice Scalia. Justice Thomas stressed
that the EEOC brought its action "on behalf of" Mr. Baker, and that
any damages recovered by the EEOC would be paid to Mr. Baker. Justice
Thomas argued that the majority was wrong in allowing the EEOC to
do something "on behalf of" Mr. Baker that he would not be able
to do for himself. He contended that such an outcome was contrary
to language in Title VII authorizing the federal courts to provide
"appropriate" relief. He believed that it was not "appropriate"
to allow the EEOC to do on behalf of Mr. Baker something that he
was precluded from doing for himself. In Justice Thomas's view,
the majority was granting to EEOC an authority to determine that
victim-specific relief is "appropriate," thus usurping a traditional
role of courts, "eviscerat[ing]" the arbitration agreement entered
into by Waffle House and Mr. Baker, and "liberat[ing] Baker from
the consequences of his agreement." Id. at 772.
Justice Thomas charged further that the majority's reasoning had
no logical or principled stopping point, and that it could justify
the EEOC in continuing to pursue claims in court even in cases where
the employee has entered into a settlement agreement with the employer.
He argued further that provisions in the ADA and in the Civil Rights
Act of 1991 encouraging arbitration indicated that Congress did
not intend the ADA's enforcement scheme to undermine the FAA.
N. U.S. AIRWAYS, INC. V. BARNETT
U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002)
Robert Barnett injured his back working as a cargo handler at U.S.
Airways in 1990. He used his seniority rights to transfer to a less
physically demanding mailroom position. After holding the mailroom
position for some two years, Mr. Barnett heard that it was to be
opened to seniority-based employee bidding, and that company employees
senior to him planned to put in bids. He asked U.S. Airways to let
him keep his mailroom position by making an exception to the seniority-bidding
process to accommodate limitations resulting from his disability.
U.S. Airways considered the matter for five months, but ultimately
opted not to grant the exception.
Upon losing his job, Mr. Barnett filed suit against U.S. Airways
under Title I of the ADA. In his complaint, Mr. Barnett claimed
that as he was an individual with a disability capable of performing
the essential functions of the mailroom position, that assignment
to the mailroom position constituted a reasonable accommodation
of his disability, and that U.S. Airways was discriminating against
him by refusing to assign him to that job. The federal district
court granted U.S. Airways' motion for summary judgment, ruling
that varying the seniority policy would result in undue hardship
both to the company and to its employees without disabilities. The
Court of Appeals for the Ninth Circuit reversed the decision of
the district court, and found that a seniority system is "merely
a factor in the undue hardship analysis," and that the courts must
conduct "[a] case-by-case fact intensive analysis ... to determine
whether any particular reassignment would constitute an undue hardship
to the employer." 228 F.3d 1105, 1120 (9th Cir. 2000) (en banc).
U.S. Airways appealed to the Supreme Court and asked it to decide
whether "the ADA requires an employer to reassign a disabled employee
to a position as a reasonable accommodation even when another employee
is entitled to the position under the employer"s bona fide and established
seniority system." 122 S.Ct. at 1520, quoting Brief for Petitioner
i. Noting that the circuit courts had drawn different conclusions
regarding the legal significance of seniority systems, the Supreme
Court agreed to decide the matter.
Writing the opinion for a 5-to-4 Court, Justice Breyer, joined
by Justices Rehnquist, Stevens, O'Connor and Kennedy, held that
the ADA does not ordinarily require the assignment of an employee
with a disability to a particular position to which another employee
is entitled under an employer's established seniority, but might
in special circumstances. U.S. Airways had argued that a seniority
system always takes priority over accommodation, because the ADA
does not require employers to engage in "preferential treatment"
of employees with disabilities and that making exceptions to a seniority
system would constitute preferential treatment. The Court rejected
this argument and ruled that "preferences will sometimes prove necessary
to achieve the Act's basic equal opportunity goal." 122 S.Ct. at
1521. The Court indicated that reasonable accommodations constitute
a form of "preference" required for workers with disabilities under
the ADA, one that is necessary to offer them the same workplace
opportunity as other employees. Thus, the Court rejected any "automatic
exemption" of seniority rules, and declared:
The simple fact that an accommodation would provide a "preference"
-- in the sense that it would permit the worker with a disability
to violate a rule that others must obey -- cannot, in and of itself,
automatically show that the accommodation is not "reasonable."
Id.
The Court also dismissed U.S. Airways' argument that use of the
words "reassignment to a vacant position" in the ADA provision recognizing
reassignment as a form of reasonable accommodation (42 U.S.C " 12111(9)(B))
precluded reassignment in this case because the position Mr. Barnett
occupied was not vacant. The Court found that "vacant" had no special
meaning in these circumstances, and, since the position Barnett
held was "open" for bidding under the seniority system, it could
be subject to the reasonable accommodation requirement.
On the other hand, the Court rejected Mr. Barnett"s contention
that reasonable accommodation should be interpreted as "effective
accommodation," meaning an accommodation that enables a person with
a disability to perform the essential functions of a position. The
Court found that "reasonable" does not mean "effective," and that
it is the word "accommodation," not the word "reasonable," that
conveys the need for effectiveness. Thus, an accommodation could
be unreasonable in its impact even though it might be effective
in facilitating performance of essential job functions; the Court
ruled that the ADA does not "demand action beyond the realm of the
reasonable." Id. at 1523.
The Court adopted a burden-shifting approach to the issues of reasonableness
of accommodations and whether they would impose undue hardships.
To overcome an employer's summary judgment motion, a plaintiff employee
needs only show that an accommodations seems reasonable on its face,
"ordinarily or in the run of cases." Id. Once the plaintiff
meets this burden, the employer has to establish the existence of
"undue hardship" in the particular circumstances. The Court found
that the lower courts had used such a framework to successfully
resolve the distinction between the concepts of reasonable accommodation
and undue hardship without rendering them functionally identical
in meaning.
Applying the burden-shifting approach to accommodations that conflict
with seniority systems, the Court found that ordinarily such accommodations
would not be reasonable. Noting the importance of seniority systems
to employee-management relations and employees' expectations of
consistent, uniform treatment, the Court ruled that employers should
not have to prove on a case-by-case basis that its seniority system
should prevail; when assignment to a position as a proposed accommodation
runs counter to a seniority system, the Court declared that "it
will ordinarily be unreasonable for the assignment to prevail."
Id. at 1524.
But while the Court held that seniority systems shall "ordinarily"
take precedence over accommodations, it did not agree with U.S.
Airways" position that seniority systems must always prevail over
accommodations requests. The Court announced that a plaintiff may
demonstrate "special circumstances" under which such an accommodation
can be considered reasonable. Id. at 1525. As an example
of such circumstances, the Court mentioned situations in which other
exceptions to a seniority system are made relatively frequently
so permitting another to accommodate a worker with a disability
would not significantly impact the company or workers' expectations.
To permit the lower courts to apply the principles and procedural
framework it had announced, the Supreme Court vacated the judgment
of the Court of Appeals and remanded the case for further proceedings
consistent with the Court's opinion.
The Court's 5 to 4 majority was by the narrowest of margins; Justice
O'Connor filed a concurring opinion in which she disclosed that
she was troubled by some of the reasoning in the majority opinion
and was joining it only because her vote was needed for any majority
standard to emerge. Justice O'Connor stated that "if each member
voted consistently with his or her beliefs, [the Court] would not
agree on a resolution of the question presented in this case." 122
S.Ct. at 1526 (O'Connor, concurring). Because she considered it
important for a majority of the Court to agree on a rule when interpreting
statutes, and because she expected that the standard announced by
the Court would generally achieve the same outcomes as her interpretation,
she joined the Court"s opinion. In her own view, however, Justice
O'Connor would have held that a seniority system would only render
a job reassignment as an accommodation under the ADA unreasonable
if the seniority system was legally enforceable. She noted that
in the U.S. Airways" Personnel Policy Guide for Agents, the document
that contains its seniority policy, states that it is "not intended
to be a contract (express or implied) or otherwise create legally
enforceable obligations." 122 S.Ct. at 1527. Since U.S. Airways'
seniority policy was not legally enforceable, the mailroom position
should have been considered vacant, and Mr. Barnett"s continued
mailroom assignment would be a reasonable accommodation.
Justice Stevens filed a concurring opinion to identify some issues
that in his view would need to be resolved by the lower courts to
determine whether the accommodation requested by Mr. Barnett was
reasonable. He believed that Mr. Barnett would have to meet the
burden of favorably answering the following questions to overcome
the presumption that U.S. Airways' seniority system justified his
discharge:
(1) whether the mailroom position held by [Barnett] became open
for bidding merely in response to a routine airline schedule change,
or as the direct consequence of the layoff of several thousand
employees; (2) whether [Barnett]'s requested accommodation should
be viewed as an assignment to a vacant position, or as the maintenance
of the status quo; and (3) exactly what impact the grant of [Barnett]'s
request would have had on other employees.
122 S.Ct. at 1526 (Stevens, concurring) (footnotes omitted).
Justice Scalia wrote a dissenting opinion in which he was joined
by Justice Thomas, and Justice Souter wrote a dissent in which he
was joined by Justice Ginsburg. The reasoning of the two dissenting
opinions was almost directly opposite one another. Justice Scalia
would have ruled that seniority system should always take precedence
over assignment to a position as a reasonable accommodation. In
his view, reasonable accommodation under the ADA should only apply
to "disability-related obstacle[s]," that is, to "barriers that
would not be barriers but for the employee's disability." 122 S.Ct.
at 1529. In his analysis, bona fide seniority systems are neutral
workplace rules to which the reasonable accommodation requirement
should not apply. Justice Souter, on the other hand, would have
held that ADA does not exempt seniority rules from the reasonable
accommodation requirement. He agreed with the Ninth Circuit that
a seniority system derived from collective bargaining is only "a
factor" in determining "reasonableness." In this case, however,
U.S. Airways' seniority system was not even the product of collective
bargaining, it was revocable at will, Mr. Barnett had already held
the position for two years, and continuation of the placement would
have caused minimal disruption to U.S. Airways' operations. Accordingly,
in Justice Souter's view the seniority system was of minimal relevance
and Mr. Barnett had met the burden of proving the accommodation
was reasonable on its face. Justice Souter would have held that
the burden now shifted to U. S. Airways to demonstrate that Barnett's
requested accommodation would result in an undue hardship.
O. CHEVRON U.S.A. INC. V. ECHAZABAL
Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002)
Mario Echazabal had worked in the coker unit of an oil refinery
in El Segundo, California, owned by Chevron U.S.A. Inc., since 1972.
In the coker unit, waste oil is recycled into usable chemicals;
the air in the unit is commonly contaminated with solvents and other
potentially toxic chemicals. Mr. Echazabal did not work directly
for Chevron, but rather for independent contractors operating at
the facility. On two occasions, he applied for a job directly with
Chevron, which made an offer to hire him conditioned on his passing
the company's physical examination. The physical exams showed that
Mr. Echazabal had liver damage, eventually determined to be the
result of Hepatitis C. Chevron's doctors said that the liver damage
would be aggravated by continued exposure to toxins at the refinery.
Chevron withdrew its job offers, and the second time it asked the
contractor employing Mr. Echazabal either to reassign him to a job
without exposure to harmful chemicals or to remove him from the
refinery altogether. In 1996, the contractor terminated Mr. Echazabal.
Mr. Echazabal sued Chevron, claiming, among other things, that
the company violated the ADA by refusing to hire him, and by refusing
to permit him to continue working in the refinery, because of a
disability -- his liver condition. Chevron contended its actions
were permissible under a regulation of the Equal Employment Opportunity
Commission (EEOC) recognizing as a permissible qualification standard
a requirement that a worker's disability on the job not pose a "direct
threat" to his health. 29 C.F.R. § 1630.15(b)(2) (2001). Two
medical witnesses testified on Mr. Echazabal's behalf that his liver
function was not impaired and subject to further damage under the
job conditions in the refinery, but the district court granted summary
judgment in Chevron's favor. The district court held that Mr. Echazabal
raised no genuine issue of material fact as to whether the company
acted reasonably in relying on its own doctors' medical advice,
whether or not that advice was accurate.
On appeal, the Court of Appeals for the Ninth Circuit ruled that
the EEOC's regulation recognizing a threat-to-self defense exceeded
the scope of EEOC's authority under the ADA, and reversed the decision
of the district court. The Seventh Circuit reasoned that the ADA's
recognition only of a defense for threats to "other individuals
in the workplace" meant that a regulation permitting such a defense
for threats to self would conflict with congressional policy established
in the ADA.
Justice Souter delivered an opinion on behalf of a unanimous Court
that upheld the EEOC threat-to-self provision. Mr. Echazabal had
argued, first, that the ADA precluded the EEOC from creating a threat-to-self
defense because the statute did not leave a gap for the agency to
fill. In support of this argument, he pointed to a "canon of statutory
construction" -- a rule established by the courts to guide the interpretation
of statutes. Judges and lawyers know the particular canon Mr. Echazabal
raised by its Latin name: expressio unius exclusio alterius. It
means "expressing one item of [an] associated group or series excludes
another left unmentioned." 122 S.Ct. at 2049. The Court ruled that
the canon did not apply in this case for several reasons. One was
that the ADA states broadly that qualification standards "may include
a requirement that an individual not pose a direct threat to others,"
42 U.S.C. § 12113(b), and the Court concluded that the expansive
phrasing of "may include" indicated that Congress was not trying
to make any sort of exclusiveness in mentioning threat to others.
Moreover, the Court found that the statutory provision at issue
here did not omit a part of a series of two or more things that
should normally go hand in hand so that the leaving out of one justifies
an inference that the omission was intentional. The Court did not
accept that direct threats to others and direct threats to self
are such a natural, closely related series. To establish that they
were, Mr. Echazabal pointed to a provision of the EEOC's Rehabilitation
Act regulation that includes an exception for workers who would
pose a direct threat to others or to self. 29 C.F.R. § 1613.702(f)
(1990). In rejecting the contention that this provision demonstrated
a series of closely related things, the Court noted that the Rehabilitation
Act regulations of the Department of Justice, the Department of
Labor, and the Department of Health and Human Services) did not
recognize threats to self along with threats to others. The Court
reasoned that the ADA's use of language identical to the earlier
statute, when Congress knew that the EEOC had interpreted that language
to add a threat-to-self standard is inconclusive, because it may
mean either that Congress meant to imply that the EEOC had been
wrong in reading the earlier language to allow it to recognize threats
to self, or that Congress assumed that the agency was free to do
under the ADA what it had already done under the Rehabilitation
Act's identical language. Given these two possible opposing interpretations,
the Court found that no negative inference regarding threats to
self was warranted.
The Court also considered there to be no apparent stopping point
to the argument that the ADA's mention of threats to others. It
questioned whether Congress's specifying threats to others in the
workplace, for example, meant that an employer could not refuse
to hire a worker whose disability would threaten others outside
the workplace. With a dramatic flair, the Court posed the following
inflammatory question: "If Typhoid Mary had come under the ADA,
would a meat packer have been defenseless if Mary had sued after
being turned away"" Id. at 2051. For all these reasons, the
Court concluded that the canon of statutory construction did not
apply in the circumstances of the case.
Mr. Echazabal had argued in the alternative that even if the ADA
did permit the EEOC some leeway to go beyond what was in the literal
text of the statute, the regulatory provision doing so was an unreasonable
interpretation. Chevron countered that the threat-to-self provision
was reasonable because it protects employers from time lost to sickness,
excessive turnover from medical retirement or death, litigation
under state tort law, and the risk of violating the national Occupational
Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et
seq. The Court focused only on the concern with OSHA and found
that it was sufficient to establish the reasonableness of the provision.
Mr. Echazabal had pointed out that "there is no known instance of
OSHA enforcement, or even threatened enforcement, against an employer
who relied on the ADA to hire a worker willing to accept a risk
to himself from his disability on the job." Id. at 2052.
But the Court stated that an employer who hired an employee in such
circumstances "would be asking for trouble ...." Id. The
Court considered it appropriate for the EEOC to resolve the potential
tension between the policy in the ADA ensuring an individual with
a disability's right to work on equal terms in the workplace with
the "competing policy" of OSHA to ensure the safety of each worker,
by adopting a threat-to-self provision. Id.
Mr. Echazabal also contended that the provision was an unreasonable
interpretation because it allows employers to impose "overprotective
rules and policies," 42 U.S.C. § 12101(a)(5), and other forms
of workplace paternalism that the ADA prohibits. In the Court's
view, however, the ADA was not aimed at employers' refusals to place
workers with disabilities in real, specifically demonstrated risks,
but addressed refusals to "give an even break to classes of disabled
people, while claiming to act for their own good in reliance on
untested and pretextual stereotypes."Id. In essence, the
Court viewed the ADA as addressing employers' protectiveness toward
employees only when it is "sham" protectiveness based on false stereotypes
about classes of disabilities. The Court noted that the EEOC provision
provides that the direct threat defense must be "based on a reasonable
medical judgment" supported by "the most current medical knowledge
and/or the best available objective evidence," and must involve
an "individualized assessment of the individual's present ability
to safely perform the essential functions of the job," that considers
how imminent the risk is and how severe the harm would be. 29 C.F.R.
§ 1630.2(r) (2001). The Court found that such a particularized
inquiry into the harms the employee would probably face was a reasonable
way to prohibit workplace paternalism while at the same time allowing
employers to protect workers from specific, documented risks.
Finally, Mr. Echazabal argued that EEOC's provision would make
the direct threat provision of the statute meaningless "surplusage."
The Court responded that the mere fact that the EEOC might have
adopted a threat-to-others rule did not mean that the statutory
delineation of such a rule did not accomplish anything. The statutory
rule made sure that such a standard would exist, and avoided administrative
and legal battles regarding it. In the Court's view, the statutory
provision established a threat-to-others standard and left open
the possibility that the EEOC might go a step further and establish
a threat-to-self standard. In the eyes of the Court, such a statutory
provision may not have been indispensable, but it was a useful thing
for Congress to have done.
Having rejected all of the arguments asserted on Mr. Echazabal's
behalf against EEOC's threat-to-self provision, the Supreme Court
reversed the judgment of the Court of Appeals and remanded the case
for further proceedings consistent with the Supreme Court's opinion.
P. BARNES V. GORMAN
Barnes v. Gorman, 122 S.Ct. 2097 (2002)
Jeffrey Gorman, who uses a wheelchair due to paraplegia, got into
a fight with a bouncer at a nightclub in Kansas City, Missouri,
in May 1992. Police officers who responded to the incident arrested
Mr. Gorman on a charge of trespass. Before a police van arrived
to transport him to the police station, Mr. Gorman asked for permission
to use a restroom to empty his urine bag, but the police officers
refused. When the vehicle arrived, it was not equipped for wheelchairs.
Although Mr. Gorman objected, police officers took him out of his
wheelchair and strapped him to a narrow bench in the rear of the
van, securing him with a seatbelt and his own belt. On the way to
the police station, Mr. Gorman released his seatbelt because he
believed it was putting too much pressure on his urine bag. When
the other belt came loose, Mr. Gorman fell to the floor of the van,
injuring his shoulder and back, and causing his urine bag to rupture.
The officer driving the van found it impossible to lift Mr. Gorman,
and fastened him to a support for the rest of the trip to the station.
Upon arrival, the police booked, processed, and then released Mr.
Gorman. He was eventually convicted of misdemeanor trespass. The
events surrounding Mr. Gorman's arrest caused him serious medical
problems, including a bladder infection, serious lower back pain,
and uncontrollable spasms in his paralyzed areas. Together these
problems caused him to be unable to work full time.
Mr. Gorman filed a lawsuit against members of the Kansas City Board
of Police Commissioners, the chief of police, and the officer who
drove the van claiming that they had violated his rights under Title
II of the ADA and Section 504 of the Rehabilitation Act. He contended
that they had discriminated against him on the basis of his disability
because they did not have appropriate policies for the arrest and
transportation of persons with spinal cord injuries.
After a trial, the jury found the police officials had violated
the ADA and Section 504, and awarded Mr. Gorman more than $1 million
in compensatory damages and $1.2 million in punitive damages. The
District Court judge vacated the punitive damages part of the verdict,
ruling that punitive damages are not available in suits under §
202 of the ADA and Section 504 of the Rehabilitation Act. On appeal,
the Court of Appeals for the Eighth Circuit reversed the district
court judge's denial of punitive damages. The Eighth Circuit based
its ruling on language in the Supreme Court's decision in Franklin
v. Gwinnett County Public Schools, 503 U.S. 60, 70-71 (1992),
in which the Court stated a "general rule" that "absent clear direction
to the contrary by Congress, the federal courts have the power to
award any appropriate relief in a cognizable cause of action brought
pursuant to a federal statute." The Eighth Circuit reasoned that
punitive damages were an integral part of the judicial arsenal of
remedies, and that Congress had not done anything to change this
tradition in enacting or amending the ADA and Section 504. 257 F.3d
738, 745, 747 (8th Cir. 2001).
The Supreme Court ruled unanimously that punitive damages were
not available to Mr. Gorman under either Section 504 or Title II
of the ADA. The Court began its analysis by noting that Section
203 of the ADA provides that the remedies for violations of " 202
(the prohibition of discrimination by state and local government
entities) are the same remedies as provided in " 505(a)(2) of the
Rehabilitation Act for violations of Section 504. 42 U.S.C. §
12133. Section 505(a)(2) of the Rehabilitation Act, in turn, provides
that the remedies for violations of Section 504 shall be the same
as those in Title VI of the Civil Rights Act of 1964. 29 U.S.C.
§ 794a(a)(2). As a result, the remedies for violations of "
202 of the ADA and " 504 of the Rehabilitation Act are coextensive
with the remedies available in a private cause of action brought
under Title VI of the Civil Rights Act of 1964, which prohibits
racial discrimination in federally funded programs and activities.
42 U.S.C. § 2000d et seq.
The Supreme Court stated that it had not previously resolved the
issue of what remedies are available in private lawsuits under Title
VI. The Court declared that Title VI is Spending Clause legislation,
enacted pursuant to Congress's power under the Constitution to raise
and spend federal money. The Court stated that legislation that
places conditions on the grant of federal funds should be considered
"much in the nature of a contract: in return for federal funds,
the [recipients] agree to comply with federally imposed conditions."
122 S.Ct. at 2100-01, quoting Pennhurst State School and Hospital
v. Halderman, 451 U.S. 1, 17 (1981). The Court held that while
not all contract-law rules would automatically apply to Spending
Clause legislation, it is appropriate to apply contract analysis
to questions about damages remedies available in private lawsuits
under such legislation.
The Court held that recipients of federal funds should only be
liable for remedies to which they were provided reasonable notice
they would be subjecting themselves, either by explicit reference
in the legislation or as part of traditional remedies for breaches
of contract. Legal rules applicable to breaches of contract generally
do not authorize punitive damages. Nor, said the Court, should punitive
damages be considered as implicitly authorized either from language
of Title VI or from community standards of fairness. The Court termed
punitive damages as constituting "unorthodox and indeterminate liability,"
and considered it unlikely that funding recipients would subject
themselves to such liability. 122 S.Ct. at 2102.
The Court argued that the disallowance of punitive damages under
Title VI is not inconsistent with the traditional rule that federal
courts are empowered to use "any available remedy" to make good
the wrong done in a violation of a federal law. Id., quoting
Bell v. Hood, 327 U.S. 678, 684 (1946). The Court concluded
that compensatory damages were adequate to right the wrong done
in violations of Spending Clause legislation.
Having concluded that punitive damages may not be awarded in private
causes of action brought under Title VI, the Court reasoned that
such damages were therefore unavailable for violations of " 202
of the ADA or of Section 504 of the Rehabilitation Act of 1973.
The Court reversed the judgment of the Eighth Circuit.
All of the Justices were in agreement that the Eighth Circuit had
erred, and that Mr. Gorman was not entitled to punitive damages.
There was some disagreement, however, regarding some aspects of
the opinion for the Court. Justice Souter, joined by Justice O'Connor,
signed onto the Court's opinion, but wrote a separate concurring
opinion to declare their view that the majority's opinion should
be read as permitting the possibility that the contract law analogy
might not resolve all issues regarding damages under Spending Clause
legislation. As a particular example of an issue that would not
necessarily be resolved by contract analysis, Justice Souter mentioned
the question of how compensatory damages are measured.
In a more substantial difference of opinion with the majority,
Justice Stevens, joined by Justices Ginsburg and Breyer, concurred
with the judgment of the Court but not with its opinion, and wrote
a separate opinion to explain the areas of disagreement. Justice
Stevens believed that the majority had employed an unnecessary and
overly broad line of reasoning in ruling that violations of Spending
Clause legislation should be subject to contract law analysis. He
would have ruled instead that punitive damages are not available
from municipalities (and their officials) except where Congress
clearly intended to authorize them. Justice Stevens objected to
the majority's expansion of the Pennhurst State School and Hospital
v. Halderman, 451 U.S. 1 (1981), precedent, a case involving
Spending Clause legislation, to Title II of the ADA, which is not.
He also took issue with the Court's reliance on what had been, he
termed "at most, a useful analogy to contract law" and contended
that the majority's approach "has potentially far-reaching consequences
that go well beyond the issues briefed and argued in this case."
122 S.Ct. at 2104. Since he would have held Mr. Gorman was precluded
from punitive damages on a narrower ground, Justice Stevens, along
with Justices Ginsburg and Breyer, agreed with the judgment of the
Court, but not with its opinion.
III. SOME SIGNIFICANT IMPLICATIONS
OF THE DECISIONS
A. Overview
The overall impact of the ADA decisions of the United States Supreme
Court to date can be viewed from various perspectives. Examining
the results according to which Title of the ADA was at issue reveals
that the Court decided cases under Title III (public accommodations)
in favor of litigants with disabilities, ruled about evenly for
and against litigants with disabilities in cases under Title II
(activities of state and local governments), and came down against
litigants with disabilities in a significant majority of the cases
under Title I (employment). The decisions can also be divided into
categories according to types of legal issues raised. Thus, the
decisions of the Court interpreting and applying the language of
the ADA in terms of what things it covers (Pennsylvania Department
of Corrections v. Yeskey, Olmstead v. L.C., PGA Tour,
Inc. v. Martin) have produced results generally favorable to
litigants with disabilities. Decisions interpreting the substantive
requirements of the ADA (Olmstead v. L.C., U.S. Airways,
Inc. v. Barnett) have produced mixed results. The Court's rulings
on the scope of defenses available under the ADA (Bragdon v.
Abbott, PGA Tour, Inc. v. Martin, Chevron U.S.A. Inc.
v. Echazabal) have also been mixed, although, in numerical terms
at least, predominantly favorable to litigants with disabilities.
The decisions of the Court addressing the scope of congressional
authority to enact civil rights laws (Board of Trustees of University
of Alabama v. Garrett) and procedural issues, such as attorney's
fees (Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of
Health and Human Res.) and availability of punitive damages
(Barnes v. Gorman), that disability rights law shares with
other civil rights constituencies, have mainly been restrictive
of the interests of litigants with disabilities. Finally, cases
addressing who can invoke the ADA's protection have been mixed,
but increasingly limiting as time has gone on; some have taken an
inclusive view of the definition of disability (Bragdon v. Abbott)
and who is "qualified" (Cleveland v. Policy Management Systems
Corp.), but some very significant decisions (Sutton v. United
Airlines, Murphy v. United Parcel Service, Albertson's,
Inc. v. Kirkingburg, Toyota Motor Manufacturing, Kentucky,
Inc. v. Williams) have taken a highly restrictive view of what
it takes to demonstrate a disability under the ADA.
B. Overall Purposes of ADA
In Olmstead v. L.C., 527 U.S. 581, 589 (1999), the Supreme
Court stated:
ADA, enacted in 1990, is the Federal Government's most recent
and extensive endeavor to address discrimination against persons
with disabilities. Earlier legislative efforts included the Rehabilitation
Act of 1973, 87 Stat. 355, 29 U.S.C. § 701 et seq.
(1976 ed.), and the Developmentally Disabled Assistance and Bill
of Rights Act, 89 Stat. 486, 42 U.S.C. § 6001 et seq.
(1976 ed.), enacted in 1975.
The Court added:
Congress ... set forth prohibitions against discrimination in
employment (Title I, § 12111-12117), public services furnished
by governmental entities (Title II, § 12131- 12165), and
public accommodations provided by private entities (Title III,
§ 12181-12189). The statute as a whole is intended "to provide
a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities." §
12101(b)(1).
In Cleveland v. Policy Management Systems Corp., 526 U.S.
795, 801 (1999), the Court observed that "[t]he ADA seeks to eliminate
unwarranted discrimination against disabled individuals in order
both to guarantee those individuals equal opportunity and to provide
the Nation with the benefit of their consequently increased productivity."
In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879,
1889 (2001), the Court discussed the origins and major purposes
of ADA. It declared:
Congress enacted ADA in 1990 to remedy widespread discrimination
against disabled individuals. In studying the need for such legislation,
Congress found that "historically, society has tended to isolate
and segregate individuals with disabilities, and, despite some
improvements, such forms of discrimination against individuals
with disabilities continue to be a serious and pervasive social
problem." 42 U.S.C. § 12101(a)(2); see § 12101(a)(3).
("[D]iscrimination against individuals with disabilities persists
in such critical areas as employment, housing, public accommodations,
education, transportation, communication, recreation, institutionalization,
health services, voting, and access to public services"). Congress
noted that the many forms such discrimination takes include "outright
intentional exclusion" as well as the "failure to make modifications
to existing facilities and practices." § 12101(a)(5).
The Court went on to quote with approval Justice Kennedy's characterization
of ADA as "a milestone on the path to a more decent, tolerant, progressive
society." Id., quoting Board of Trustees of the Univ.
of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (KENNEDY, J., concurring).
In U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516, 1521 (2002),
the Court referred to "the Act's basic equal opportunity goal."
Later in the opinion, the Court elaborated:
The statute seeks to diminish or to eliminate the stereotypical
thought processes, the thoughtless actions, and the hostile reactions
that far too often bar those with disabilities from participating
fully in the Nation's life, including the workplace. ... These
objectives demand unprejudiced thought and reasonably responsive
reaction on the part of employers and fellow workers alike. They
will sometimes require affirmative conduct to promote entry of
disabled people into the workforce.
Id. at 1522-23.
These statements represent the Court's recognition of some of the
legislative predecessors of ADA and summarize the Court's clear
understanding of the overriding objectives of the Act.
C. Scope of Coverage of ADA
1. Generally
In Pennsylvania Department of Corrections v. Yeskey, 524
U.S. 206, 212 (1998) the Supreme Court declared: "The fact that
ADA's language applies in situations not expressly anticipated or
discussed by Congress 'does not demonstrate ambiguity. It demonstrates
breadth.'" This language was repeated in PGA Tour, Inc. v. Martin,
532 U.S. 661, 121 S.Ct. 1879, 1897 (2001). This principle could
be helpful in any analysis of whether ADA covers any category of
enterprises not expressly mentioned in the Act.
In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879,
1889 (2001), the Court declared:
After thoroughly investigating the problem, Congress concluded
that there was a "compelling need" for a "clear and comprehensive
national mandate" to eliminate discrimination against disabled
individuals, and to integrate them "into the economic and social
mainstream of American life." S.Rep. No. 101-116, p. 20 (1989);
H.R.Rep. No. 101-485, pt. 2, p. 50 (1990), U.S.Code Cong. &
Admin.News 1990, pt. 2, pp. 303, 332.
In response to such needs, the Court said, "Congress provided that
broad mandate" by enacting ADA. It added:
In fact, one of the Act's "most impressive strengths" has been
identified as its "comprehensive character," Hearings on S. 933
before the Senate Committee on Labor and Human Resources and the
Subcommittee on the Handicapped, 101st Cong., 1st Sess., 197 (1989)
(statement of Attorney General Thornburgh) .... To effectuate
its sweeping purpose, ADA forbids discrimination against disabled
individuals in major areas of public life, among them employment
(Title I of the Act), public services (Title II), and public accommodations
(Title III). That "Congress enacted ADA in 1990 to remedy widespread
discrimination against disabled individuals." It also noted the
"comprehensive character" of ADA's "broad mandate" against discrimination
on the basis of disability. Id.
Such statements clearly recognize the broad coverage of ADA.
2. Title II
a. Prisons and prisoners
In Pennsylvania Department of Corrections v. Yeskey, 524
U.S. 206 (1998) the Supreme Court ruled that Title II covers state
prisons and prisoners. In Barnes v. Gorman, 122 S.Ct. 2097
(2002), the Court decided a case involving a man injured while being
transported to a police station after being arrested. Mr. Gorman
had successfully sued for damages under Title II of the ADA and
under Section 504, and only the issue of punitive damages was before
the Court, so the coverage of the incident by Title II was assumed
but not specifically addressed.
b. State treatment facilities and institutions
In Olmstead v. L.C., 527 U.S. 581 (1999), the Court applied
the requirements of Title II to state residential treatment programs
including institutions.
3. Title III
a. Generally
In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879,
1889 (2001), the Court found that the legislative history of ADA
indicates that the concept of public accommodations should be construed
liberally to afford people with disabilities equal access to the
wide variety of establishments available to people without disabilities.
It applied Title III's coverage consistently with "its expansive
purpose." 121 S.Ct. at 1892.
b. Dentist's offices
In Bragdon v. Abbott, 524 U.S. 624, 629 (1998), the Court
applied requirements of Title III to the office of a dentist as
a "professional office of a health care provider" expressly included
within the term "public accommodation." 42 U.S.C. § 12181(7)(F).
c. Professional sports events and participants in such events
In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879,
1890 (2001), the Court found that golf courses, professional golf
tours, and their qualifying rounds "fit comfortably within the coverage
of Title III." The PGA Tour had lost in the lower courts on its
contentions that it was a "private club" exempt from Title III's
coverage, and that the competitors' area "behind the ropes" is not
a public accommodation, and abandoned those contentions before the
Supreme Court. The Supreme Court ruled also that the golfers who
participate in tournaments are members of the class of persons protected
under Title III, and that Title III protects both spectators at
tournaments and players in tournaments. Id. at 121 S.Ct.
1892.
D. What Constitutes a Disability
1. Generally
In Sutton v. United Airlines, 527 U.S. 471, 478 (1999),
the Court summarized the three prongs of the definition of "disability"
as follows: "to fall within this definition one must have an actual
disability (subsection (A)), have a record of a disability (subsection
(B)), or be regarded as having one (subsection (C))." In Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681
(2002), the Court made explicit a view that it had pointed toward
in the Sutton v. United Airlines, Murphy v. United Parcel
Service, Albertson's, Inc. v. Kirkingburg decisions --
that the elements of the definition of "disability" in the ADA "need
to be interpreted strictly to create a demanding standard for qualifying
as disabled ...." 122 S.Ct. at 691. The Court based this conclusion
on the ADA finding that 43 million people have disabilities and
an ill-founded assumption that Congress intended that only that
number of people were to be protected by the ADA. The Court's position,
that the definition of disability is to be construed narrowly, ignores
and contradicts indications in the statute and its legislative history
that the ADA was to provide a "comprehensive" prohibition of discrimination
based on disability, and legislative, judicial, and administrative
commentary regarding the breadth of the definition of disability.
2. Individualized determination of disability
In Sutton v. United Airlines, 527 U.S. 471, 483 (1999),
the Court stated that "whether a person has a disability under ADA
is an individualized inquiry." As precedent for this principle,
the Court cited its decision in Bragdon v. Abbott, 524 U.S.
624, 641-642 (1998), declining to consider whether HIV infection
is a per se disability under ADA; and ADA Title I regulatory
guidance providing that, "The determination of whether an individual
has a disability is not necessarily based on the name or diagnosis
of the impairment the person has, but rather on the effect of that
impairment on the life of the individual." 29 C.F.R. pt. 1630, App.
§ 1630.2(j). Actually, the clearest statement about individualization
in the Bragdon case was in the partially concurring and partially
dissenting opinion of Chief Justice Rehnquist, joined by Justices
Scalia and Thomas, in which he declared:
It is important to note that whether respondent has a disability
covered by ADA is an individualized inquiry. The Act could not
be clearer on this point: Section 12102(2) states explicitly that
the disability determination must be made "with respect to an
individual." Were this not sufficiently clear, the Act goes on
to provide that the "major life activities" allegedly limited
by an impairment must be those "of such individual." § 12102(2)(A).
524 U.S. at 657; see also, 524 U.S. at 664 (Justice
O'Connor, concurring in the judgment in part and dissenting in part)
(agreeing that Abbott's "claim of disability should be evaluated
on an individualized basis").
In Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999),
the Court stated that there was a "statutory obligation to determine
the existence of disabilities on a case-by-case basis." It added
that "[t]he Act expresses that mandate clearly by defining 'disability'
'with respect to an individual,' 42 U.S.C. § 12102(2), and
in terms of the impact of an impairment on 'such individual,' §
12102(2)(A)." In Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 122 S.Ct. 681, 692 (2002), the Court again reiterated
that the determination of the existence of disability was to be
made in a "case-by-case manner" through "[a]n individualized assessment
of the effect of an impairment ...."
3. Per se disabilities
Designation of a condition as a per se disability would
be very helpful to future litigants and in affecting the practices
and policies of covered entities. If a condition is so designated,
every person who has the condition automatically meets the definition
of a person with a disability and does not have to prove the effect
on major life activities in her or his particular circumstances.
In Bragdon v. Abbott, 524 U.S. 624, 641-42 (1998), the Court
ruled that it did not need to address the issue of whether HIV is
a per se disability. Having stated that it was not going
to reach the issue, however, the Court then devoted several pages
of its opinion to a discussion of regulations, administrative interpretations,
and prior court decisions supporting the Court's conclusion that
"HIV infection, even in the so-called asymptomatic phase, is an
impairment which substantially limits the major life activity of
reproduction." Id. at 647. This analysis approaches very
close to declaring the condition to be a per se disability.
In Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999),
the Court ruled that monocularity was not a per se disability,
but indicated that "some impairments may invariably cause a substantial
limitation of a major life activity." Id. at 566. The Court
thus accepted that some conditions may merit per se disability
status, but that the Court "cannot say that monocularity does."
Id. The Court observed that the condition monocularism encompasses
variations on the degree of visual acuity in the weaker eye, the
age of onset of vision loss, the extent of compensating adjustments
in visual techniques, and the ultimate scope of the restrictions
on visual abilities, and declared: "These variables are not the
stuff of a per se rule." Id. In the absence of such
a rule, the Court in Albertson's insisted on the normal process
under ADA of individualized demonstration of the existence of disabilities
on a case-by-case basis. But the Court did recognize that per
se disability status could be appropriate for some conditions.
In its decision in Sutton v. United Airlines, 527 U.S. 471
(1999), issued on the same day as Albertson's, the Court
stressed the importance of individualized determinations of disabilities
and of taking mitigating measures into account, 527 U.S. at 483-84,
but did not preclude the possibility that some conditions might
merit per se status.
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681, 692 (2002), the Court stated that carpal tunnel syndrome
is a type of impairment "whose symptoms vary widely from person
to person," making an individualized assessment "particularly necessary."
The Court also observed that it is insufficient for individuals
attempting to prove disability status merely to submit evidence
of a medical diagnosis of an impairment; instead, they must offer
evidence that the extent of the limitation caused by their impairment
is substantial in terms of their own experience. Id. at 691.
4. Major life activities
a. General meaning
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681, 691 (2002), the Court stated that the word "major"
in the phrase "major life activities" means "important." The Court
quoted the Webster's Dictionary definition of "major" as "greater
in dignity, rank, importance, or interest," and declared that "'[m]ajor
life activities' thus refers to those activities that are of central
importance to daily life." Id. Accordingly, the standard
for determining whether an activity is a major life activity is
whether or not it is central to daily life. The Court suggested
that tasks that do not individually constitute a major life activity
can constitute a major life activity in combination, if together
they comprise an activity that is central to daily life.
b. List not exhaustive
In Bragdon v. Abbott, 524 U.S. 624 (1998), all nine of the
Justices agreed that the list of major life activities in ADA regulations
is not exhaustive. See 524 U.S. at 639 ("As the use of the
term 'such as' confirms, the list is illustrative, not exhaustive.");
id. at 659 (Chief Justice Rehnquist, concurring in the judgment
in part and dissenting in part) ("The Court correctly recognizes
that this list of major life activities 'is illustrative, not exhaustive'");
id. at 664-65 (Justice O'Connor, concurring in the judgment
in part and dissenting in part) ("the representative major life
activities ... listed in regulations relevant to the Americans with
Disabilities Act").
c. Not limited to public, economic, or daily activities
The majority in Bragdon also held that major life activities
under ADA were not limited to activities that have a public, economic,
or daily character. The Court declared: "Nothing in the definition
suggests that activities without a public, economic, or daily dimension
may somehow be regarded as so unimportant or insignificant as to
fall outside the meaning of the word 'major.' The breadth of the
term confounds the attempt to limit its construction in this manner."
Id. at 638. These clarifications will guide subsequent determinations
of what constitutes a major life activity.
d. Manual tasks
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681 (2002), the Supreme Court reviewed the Sixth Circuit's
analysis of whether Ms. Williams was substantially limited in regard
to the major life activity of performing manual tasks. The Court
ruled that the Court of Appeals had erroneously focused on whether
she was able to perform manual tasks in her job. The Court declared
that "occupation-specific tasks may have only limited relevance
to the manual task inquiry." Id. at 693. The Court indicated
that analysis of limitation on the activity of performing manual
tasks should consider instead the person's ability to perform personal-care
tasks and household chores. The Court declared that "household chores,
bathing, and brushing one's teeth are among the types of manual
tasks of central importance to people's daily lives ...." This analysis
should assist persons whose impairments affect the performance of
self-care and housekeeping tasks to establish that they have a disability
under the ADA. The Court's reasoning also provides helpful guidance
that the analysis of impact on major life activities in an employment
discrimination case is not limited to looking only at impact on
activities relevant to the workplace.
e. Activities of reproduction and sex
In Bragdon v. Abbott, 524 U.S. 624 (1998), consideration
of Ms. Abbott's condition focused on whether her HIV infection substantially
limited the activity of reproduction, which the majority found was
a "major life activity" under ADA, reasoning that "[r]eproduction
and the sexual dynamics surrounding it are central to the life process
itself." Id. at 638. The Court also found that Ms. Abbott's
condition substantially limited her ability to reproduce by causing
a significant risk that male sexual partners would be infected and
a significant risk that the disease will be transmitted to her child
during pregnancy and childbirth. In future cases, this ruling should
be very helpful to most persons with HIV trying to establish that
they have a disability under ADA. The Court's analysis of the impact
on reproduction in Bragdon should clearly apply to all persons
for whom reproduction is a realistic option.
There is some ambiguity in the Court's statement in Bragdon
that "[r]eproduction and the sexual dynamics surrounding it" are
central. Does this mean that sex is itself a major life activity."
The Court quoted language from a 1988 opinion of the Office of Legal
Counsel of the Department of Justice (OLC) referring to "[t]he life
activity of engaging in sexual relations." 524 U.S. at 642-43, quoting
Application of Section 504 of the Rehabilitation Act to HIV-Infected
Individuals, 12 Op. Off. Legal Counsel 264, 264-265 (Sept. 27, 1988)
(preliminary print). The OLC had stated that "[t]he life activity
of engaging in sexual relations is threatened and probably substantially
limited by the contagiousness of the virus." 12 Op. Off. Legal Counsel
at 274. The Court stated that either this consideration or the risk
of transmission to the infant was "sufficient to render asymptomatic
HIV infection a handicap ...." 524 U.S. at 643. This indicates that
impact on sexual relations is sufficient to render HIV a disability,
but it is not completely clear whether this is true in and of itself
or because the limitation on sexual activity will interfere with
opportunities for procreation.
This distinction may be significant for persons with HIV or other
conditions who are trying to establish disability under ADA and
are incapable of procreation, whether because of medical problems
leading to sterility or menopause or otherwise. To the extent that
engaging in sexual relations is considered to be a major life activity
on its own, such persons should be able to use the Bragdon
precedent to help establish that HIV or other conditions will substantially
limit this major life activity. Similarly, the implications of the
Bragdon decision as to sexual activity are also not entirely
clear for gay and lesbian individuals.
f. Working as a major life activity
Regulations implementing Section 504 and ADA have consistently
included "working" in the list of examples of major life activities.
In Sutton v. United Airlines, 527 U.S. 471, 492 (1999), the
Court indicated that it was "[a]ssuming without deciding that working
is a major life activity ...." It added the following caution:
We note, however, that there may be some conceptual difficulty
in defining "major life activities" to include work, for it seems
"to argue in a circle to say that if one is excluded, for instance,
by reason of [an impairment, from working with others] ... then
that exclusion constitutes an impairment, when the question you're
asking is, whether the exclusion itself is by reason of handicap."
Tr. of Oral Arg. in School Bd. of Nassau Co. v. Arline,
O.T. 1986, No. 85-1277, p. 15 (argument of Solicitor General).
Indeed, even the EEOC has expressed reluctance to define "major
life activities" to include working and has suggested that working
be viewed as a residual life activity, considered, as a last resort,
only "[i]f an individual is not substantially limited with
respect to any other major life activity." 29 C.F.R. pt.
1630, App. § 1630.2(j) (1998) (emphasis added).
The quoted statement of the Solicitor General was significantly
ill-conceived and illogical when it was made (No one has ever contended
that "exclusion constitutes an impairment," but rather that exclusion
because of an impairment demonstrates either that the impairment
limited the person's ability to work or that the employer considered
the person's impairment to be substantially limiting). It is indeed
unfortunate that such deficient legal reasoning, in a brief filed
in 1986, influenced the Court to doubt the validity of the widely
accepted concept of a major life activity of working. Hopefully,
more carefully considered analysis will ultimately lead the Court
to accept the legitimacy of the concept in future cases.
In Murphy v. United Parcel Service, 527 U.S. 516, 523 (1999),
the Court likewise assumed without deciding that regulations delineating
"working" as a major life activity are valid.
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681 (2002), the Court again asserted its reluctance to
recognize working as a major life activity. The Court declared:
Because of the conceptual difficulties inherent in the argument
that working could be a major life activity, we have been hesitant
to hold as much, and we need not decide this difficult question
today. Id. at 692.
Accordingly, the question still remains an open one.
g. Other major life activities
In Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563 (1999),
the Court treated "seeing" as a major life activity, after noting
that there was no dispute about this issue and that the parties
had not challenged the validity of EEOC ADA regulations providing
that it is a major life activity. Similarly, in Sutton v. United
Airlines, 527 U.S. 471, 490 (1999), the Court indicated that
the plaintiff sisters did "not make the obvious argument that they
are regarded due to their impairments as substantially limited in
the major life activity of seeing."
In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879
(2001), the Court treated "walking" as a major life activity and
declared that Casey Martin was "an individual with a disability
as defined in the Americans with Disabilities Act" because of his
condition that interfered with his ability to walk. 121 S.Ct. at
1885. The PGA Tour did not contest that Martin was an individual
with a disability under ADA. Id. at 1886.
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681, 691 (2002), the Court recognized, consistently with
ADA and Section 504 regulations, that walking, seeing, and hearing,
as "basic abilities ... central to daily life," are major life activities
under the ADA.
These rulings may provide some help to future litigants who allege
that they have limitations on their activities of seeing, hearing,
or walking.
5. Substantially limits
In Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 564-65
(1999), the Court ruled that the Court of Appeals had erred in construing
"a mere difference" in "an individual's manner of performing a major
life activity" as sufficient to establish that the individual's
condition "substantially limits" the performance of the activity.
The Supreme Court ruled that there has to be a "significant restriction"
on performance of a major life activity, not simply a difference
in the manner in which the individual performs it.
The Court provided additional guidance concerning the meaning of
the "substantially limits" concept in Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 122 S.Ct. 681, 691 (2002). Drawing
upon dictionary definitions, the Court declared that "substantially"
in the phrase "substantially limits" suggests "considerable" or
"to a large degree." It held that the use of the word "substantial"
"precludes impairments that interfere in only a minor way with the
performance of ... tasks from qualifying as disabilities." Id.
The Court applied as a standard for having a disability that an
individual must have an impairment that "prevents or severely restricts"
the individual from performing major life activities. The Court
reiterated the proviso established in the EEOC ADA regulation that
to be substantially limiting an impairment's impact must be permanent
or long-term. See 29 C.F.R. §§ 1630.2(j)(2)(ii)-(iii)
(2001). In doing so, even though the Court expressed reservations
about what persuasive authority should be afforded the EEOC regulations
definition provisions, the Court's reference and citation to the
duration limitation could be interpreted as some measure of support
for the EEOC position. The Council has criticized the EEOC for creating
a duration limitation not found in the statutory language or legislative
history of the ADA, nor in other federal agencies ADA regulations.
See, e.g., National Council on Disability, Promises
to Keep: A Decade of Federal Enforcement of the Americans with Disabilities
Act 221-222 (2000).
The Williams Court rejected the approach, applied by the
Sixth Circuit, that a class of activities comprising a major life
activity must be affected for an impairment to be substantially
limiting. The EEOC has applied, in the context of the major life
activity of working, a requirement that an individual show inability
to perform a "class" or a "broad range" of jobs; the Court said
such a requirement should not be applied outside the context of
the major life activity of working. Id. at 693. Conversely,
the Court ruled that, even in a case arising out of allegations
of employment discrimination, the determination of limitations on
other major life activities should not focus only on manifestations
of the activity limitation in the workplace. These two positions
should assist litigants seeking to establish that they are substantially
limited in major life activities other than working. On the other
hand, the Court's arguable endorsement of EEOC's position that an
impairment must impose a permanent or long-term limitation provides
an additional evidentiary hurdle for complainants to overcome, both
in regard to the major life activity of working and other major
life activities.
6. Mitigating measures
A central holding in Sutton v. United Airlines, 527 U.S.
471 (1999), was that corrective and mitigating measures should be
considered in determining whether an individual has a disability
under ADA. Indeed, the Court held that "the approach adopted by
the agency guidelines--that persons are to be evaluated in their
hypothetical uncorrected state--is an impermissible interpretation
of ADA." Id. at 482. While the Sutton case involved
corrective lenses (eyeglasses and contact lenses), in Murphy
v. United Parcel Service, 527 U.S. 516, 521 (1999), the Court
clarified that the same principle applied to medication used to
treat an otherwise disabling condition. In Albertson's, Inc.
v. Kirkingburg, 527 U.S. 555, 565 (1999), the Court elaborated
further that mitigating measures encompass, not just artificial
aids, such as medications and devices, but also measures undertaken,
whether consciously or not, with the body's own systems, including
subconscious mechanisms for compensating and coping with visual
impairments. These rulings represented a rejection by the Court
of the position on mitigating measures taken by eight of the nine
circuit courts that had addressed the issue prior to Sutton,
and by all three of the executive agencies that had issued regulations
or interpretive bulletins construing ADA definition.
The Court has recognized that the mere fact that a person makes
use of mitigating measures does not automatically mean that the
person does not have a disability. In Sutton v. United Airlines,
527 U.S. 471, 488 (1999), the Court observed that people who make
use of corrective devices may still have a disability because the
device does not correct the condition sufficiently to prevent a
substantial limitation on a major life activity. And in Murphy
v. United Parcel Service, 527 U.S. 516, 521 (1999), the Court
declared: "Petitioner did not seek, and we did not grant, certiorari
on whether this conclusion was correct. Because the question whether
petitioner is disabled when taking medication is not before us,
we have no occasion here to consider whether petitioner is 'disabled'
due to limitations that persist despite his medication or the negative
side effects of his medication."
The Web site of the Judge David L. Bazelon Center for Mental Health
Law has an insightful paper, The Supreme Court's 1999 ADA Decisions
by Jennifer Mathis (updated May 30, 2000) that provides a summary
of the Sutton, Murphy, and Kirkingburg decisions
and presents some advocacy strategies for avoiding the negative
effects of the decisions; it is found at http://www.webcom.com/bazelon/sct99ada.html.
7. Regarded as having a disability
In Sutton v. United Airlines, 527 U.S. 471, 489 (1999),
the Court recognized that under the third prong of the definition
of disability "individuals who are 'regarded as' having a disability
are disabled within the meaning of ADA." The Court indicated that
an individual whose impairment is effectively corrected by mitigating
measures may nonetheless be regarded as disabled by a covered entity,
and thus disabled under the "regarded as" prong of the definition.
The Court noted that situations in which a person is "regarded as"
having a disability can encompass instances in which "a covered
entity mistakenly believes that a person has a physical impairment
that substantially limits one or more major life activities," and
in which "a covered entity mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more major life activities."
Id. In both such situations, a covered entity entertains
misperceptions about the individual, either that a person has a
substantially limiting impairment that the person does not have
or that a person has a substantially limiting impairment when, in
fact, the impairment is not so limiting. The Court observed that
such misperceptions often result from stereotypic assumptions not
truly indicative of individual ability.
8. The not-just-one-job standard
In Sutton v. United Airlines, 527 U.S. 471, 491 (1999),
the Court quoted the EEOC's standard for what "substantially limits"
means when applied to the major life activity of working: 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. 29 C.F.R. §
1630.2(j)(3)(i) (1998).
In the context of the Sutton case in which neither party
contested the validity of the EEOC regulations, the Court assumed
without deciding that the EEOC regulations interpreting the term
"substantially limits" were reasonable, and applied the EEOC's not-just-a-single-particular-job
criterion. Similarly, in Murphy v. United Parcel Service,
527 U.S. 516, 523-24 (1999), the Court again assumed without deciding
that the EEOC regulations were valid and required a showing of inability
to perform either a class of jobs or a broad range of jobs in various
classes.
NCD has criticized the EEOC's formulation of the "single job" exception
and court decisions that have too readily adopted it wholesale.
See, e.g Promises
to Keep: A Decade of Federal Enforcement of the Americans with Disabilities
Act 213-15 (2000). NCD has noted that the class-of-jobs-or-broad-range-of-jobs
and the single-particular-job-is-not-sufficient criteria are not
found in the statutory language of ADA, and yet were incorporated
into ADA Title I analysis by the EEOC. NCD believes that judicial
precedents the EEOC cited to support these standards in its regulatory
guidance are of a dubious nature,(1)
and that the EEOC ignored other applicable judicial precedents,
explicitly mentioned in ADA committee reports, to the contrary.(1)
Some legal commentators have also been strongly critical of this
position of the EEOC.(2)
NCD has formally recommended to the EEOC that it should "reorient
its policy positions on the interpretation of the definition of
disability," "take clear and explicit actions to mitigate the impact
of its previous restrictive positions," and "promote, to the maximum
extent possible, an inclusive interpretation of the scope of ADA
protection to extend to all persons whom an employer disadvantages
because they have a physical or mental impairment." Id. at
236, Recommendation 36.
It can be argued that the EEOC limitation to what is substantially
limiting in regard to working makes at least some sense in the context
of the first prong (actual disability) of the definition of disability.
Whatever the merits of the not-just-one-job standard under the first
prong, it is wholly inappropriate under the third prong (regarded
as). Yet the EEOC regulatory guidance has not made this distinction
clear. While neither the EEOC Title I regulation nor the regulatory
guidance declare that being denied or terminated from a single job
because of a physical or mental impairment would be insufficient
to constitute being "regarded as" having a disability under the
third prong of the definition, the EEOC has engendered confusion,
however, by its ambiguous stance on this issue. The EEOC has asserted
that its interpretation of what is substantially limiting to working
is not intended to present onerous burdens of evidence and proof
on potential plaintiffs. See 29 C.F.R. pt. 1630 App. (commentary
on § 1630.2(j)); 56 Fed. Reg. 35,728 (1991) (commentary on
§ 1630.2(j)). It has stressed a "myths, fears, and stereotypes"
route for proving that an employer regarded an individual as having
a substantially limiting impairment, and has provided concrete examples
of the application of the "regarded as" prong of the definition
of disability. EEOC, Compliance Manual § 902.5 (March
1995 guidance memorandum on the definition of disability). But convoluted
and confusing discussions of proof issues in relation to the "regarded
as" prong, and protestations about not placing onerous burdens on
plaintiffs do not alter the fact that applying a "class of jobs
or a broad range of jobs" criterion under the third prong of the
definition does force complainants to prove what was in the employer's
mind when it took an adverse action toward them--a very difficult
evidentiary burden.
NCD has contended that "[t]he illogic of permitting employers to
terminate a person from a job because of a physical or mental condition
and then to argue that the condition is not serious enough to constitute
a disability is starkly apparent." Promises
to Keep: A Decade of Federal Enforcement of the Americans with Disabilities
Act at 215. In contrast to the ambiguity the EEOC's position
has engendered, NCD has observed that a better course is readily
apparent:
It would have been relatively simple, and fully consistent with
ADA's intent to provide a comprehensive remedy for discrimination,
for the EEOC to have declared that whenever complainants show
that employers have taken adverse actions against them based on
the employee's physical or mental conditions, a presumption is
created that the employer regarded the person as having an impairment
that substantially limits a major life activity. Id.
The parties in the Sutton case, and consequently the Court,
assumed that the not-just-one-job limiting standard applies under
the third prong and that plaintiffs must demonstrate that an employer
regarded them as unable to perform either a class of jobs or a broad
range of jobs in various classes. The plaintiff sisters in Sutton
contended that United Airlines mistakenly believed their physical
impairments substantially limited them in the major life activity
of working, and had applied a vision requirement that precluded
them from obtaining the job of global airline pilot, which they
argued was a class of employment. 527 U.S. at 490. The Court ruled
that the position of global airline pilot is a single job, so the
plaintiffs' allegations did not support the claim that United regarded
them as having a substantially limiting impairment. Id. at
493. In this context, the Court assumed without deciding that the
EEOC's standards were valid and then applied the not-just-one-job
standard under the third prong of the definition. Similarly, in
Murphy, after assuming without deciding that the EEOC regulations
are valid, the Court ruled that Murphy showing that he was "regarded
as" unable to perform the job of mechanic only when that job requires
driving a commercial motor vehicle--a specific type of vehicle used
on a highway in interstate commerce was insufficient to establish
a genuine issue of material fact that he was regarded as disabled.
527 U.S. at 524. The Court simply accepted without discussion that
the EEOC's "class of jobs or a broad range of jobs" standard applied
under the third prong of the definition.
Although the Court in Sutton and Murphy only assumed
arguendo (for the purpose of argument in the particular case)
that the EEOC standards are valid and expressly stated that it was
not so deciding, NCD is very concerned that these decisions will
be considered as having endorsed the EEOC approach on these issues,
weakening the chances of any frontal assault on them. While the
Court directly rejected another of the EEOC's positions--on mitigating
measures--the Court seemed to follow the single-job standard, albeit
without deciding its validity, without expressing any misgivings
or hesitation.
NCD has recommended that the EEOC should take a leading role in
attempting to limit the potential negative implications of an overbroad
reading of the Sutton and Murphy decisions on standards
under the third prong. NCD has declared that the EEOC should "[i]ssue
sub-regulatory guidance clarifying that the third prong of the definition
of individual with a disability includes any American who suffers
discrimination on the basis of physical or mental impairment, even
if that discrimination occurs on only one occasion in connection
with one particular job with a particular employer, and explaining
the portions of the Sutton, Murphy, and Kirkingburg
decisions interpreting the third prong of the definition represented
an uninformed misapplication of first prong analysis to the third
prong." Promises to Keep at 236-37. Further, the EEOC should
"[p]ursue in litigation and in policy activities a proactive and
concerted strategy of distinguishing the Sutton, Murphy,
and Kirkingburg rulings as much as possible from other factual
situations, with the goal of confining the impact of these rulings
to their peculiar facts." Id. at 237. To date, the EEOC has
not fully embraced and implemented these recommendations of NCD.
Whether the EEOC attempts to stem the tide or not, however, there
is real danger that the lower courts may interpret the Sutton
and Murphy decisions as having resolved the issue whether
proving that an employer regarded a person as substantially limited
in the activity of employment requires a showing that the employer
regarded the person as unable to perform a class of jobs or a broad
range of jobs. The Court did nothing to rectify this situation in
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122
S.Ct. 681 (2002), where the Court recited the EEOC not-just-one-job
standard (without deciding that the regulation was valid), but held
that the criterion of inability to perform a class or broad range
of activities should not be applied to major life activities other
than working.
9. Particular conditions
a. Asymptomatic HIV infection constituted a disability
In Bragdon v. Abbott, 524 U.S. 624, 631, 637, 641 (1998),
the Court ruled that HIV even in the asymptomatic stage is a physical
impairment, and that Abbott's HIV infection substantially limited
the major life activity of reproduction, and thus constituted a
disability. Because "of the immediacy with which the virus begins
to damage the infected person's white blood cells and the severity
of the disease," the Court ruled that HIV infection "is an impairment
from the moment of infection" and "satisfies the statutory and regulatory
definition of a physical impairment during every stage of the disease."
Id. at 637. The possible implications of the Court's focus
on the activity of reproduction are discussed above in the context
of "activities of reproduction and sex."
The Court indicated that it felt constrained to restrict its analysis
to reproduction because Ms. Abbott had consistently claimed that
HIV infection placed a substantial limitation on her ability to
reproduce and to bear children, and that it is the Court's "practice
to decide cases on the grounds raised and considered in the Court
of Appeals and included in the question on which we granted certiorari."
Id. at 637-38. The Court recognized, however, that it appeared
"legalistic to circumscribe our discussion to the activity of reproduction"
considering that "major life activities of many sorts might have
been relevant to our inquiry," and recognizing arguments "about
HIV's profound impact on almost every phase of the infected person's
life." Id. at 637. The Court added, "[w]e have little doubt
that had different parties brought the suit they would have maintained
that an HIV infection imposes substantial limitations on other major
life activities." Id. These statements suggest additional
promising avenues for demonstrating that HIV infection is a disability
under ADA in future cases.
b. Severe myopia correctable to 20/20 vision
In Sutton v. United Airlines, 527 U.S. 471 (1999), the Court
ruled that two sisters who had severe myopia, but whose vision with
glasses or contact lenses was 20/20 or better did not have a disability
under ADA.
c. Medically correctable hypertension
In Murphy v. United Parcel Service, 527 U.S. 516, 519, 521
(1999), the Court ruled that a man whose unmedicated blood pressure
was approximately 250/160, but who the Court of Appeals found could,
with medication, function normally without any significant restrictions
on his activities was not substantially limited in a major life
activity and thus did not have a disability under ADA. The Court
was not presented with any contention that Mr. Murphy was substantially
limited in some way while medicated, and the Court observed that
it had "no occasion here to consider whether petitioner is 'disabled'
due to limitations that persist despite his medication or the negative
side effects of his medication." Id. at 521. The Murphy
decision does not preclude future litigants from submitting such
proof. (Pennsylvania Department of Corrections v. Yeskey,
524 U.S. 206 (1998), also involved a plaintiff with hypertension,
but the issues considered by the Court did not include the disability
of the plaintiff.)
d. Amblyopia resulting in monocular vision
In Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999),
the Court ruled that the issue of whether monocular vision constitutes
a disability must be determined through case-by-case consideration
of the extent of visual restrictions. The Court clarified that it
did not mean "to suggest that monocular individuals have an onerous
burden in trying to show that they are disabled," and, in fact,
"people with monocular vision 'ordinarily' will meet the Act's definition
of disability." Id. at 567. It was simply requiring "monocular
individuals, like others claiming the Act's protection, to prove
a disability by offering evidence that the extent of the limitation
in terms of their own experience, as in loss of depth perception
and visual field, is substantial." Id.
e. Mental retardation and psychiatric disabilities
In Olmstead v. L.C., 527 U.S. 581, 589 (1999), the Court
stated that there was "no dispute that" the plaintiffs, two women
with mental retardation, one of whom had also been diagnosed with
schizophrenia, and the other with a personality disorder, had disabilities
under ADA. The state officials did not contest the existence of
the women's disabilities.
f. Carpal tunnel syndrome
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681 (2002), the Court considered, but did not resolve
whether Ms. Williams' conditions of carpal tunnel syndrome and tendinitis
constituted disabilities under the ADA. The Court ruled that the
Court of Appeals had applied the wrong legal standards in assessing
whether Ms. Williams' condition substantially limited the major
life activity of performing manual tasks, and remanded the case
for further proceedings under the proper legal standards. The Court
indicated that because the symptoms of carpal tunnel syndrome vary
widely from person to person, an individualized assessment of the
effect of the condition was necessary. Recognizing the large differences
in the severity and duration of the effects of carpal tunnel syndrome
in particular cases, the Court refused to make an across the board
ruling that the condition is or is not a disability. Such a resolution
leaves open the possibility that future litigants, and Ms. Williams
herself, may prevail in proving that their carpal tunnel syndrome
is a disability within the meaning of the ADA in their particular
circumstances.
E. INTEGRATION MANDATE AND DEINSTITUTIONALIZATION
1. Prohibition of Segregation
In Olmstead v. L.C., 527 U.S. 581, 597 (1999), the Court
ruled that "[u]njustified isolation ... is properly regarded as
discrimination based on disability." The Georgia officials had contended
that discrimination necessarily requires uneven treatment of similarly
situated individuals, so that plaintiffs must identify a comparison
class of similarly situated individuals given preferential treatment.
The Court responded that it was "satisfied that Congress had a more
comprehensive view of the concept of discrimination advanced in
ADA." Id. at 598. The Court ruled that ADA not only requires
public entities to refrain from discrimination, but its "Findings"
explicitly identified unjustified "segregation" of persons with
disabilities as a form of discrimination. Id. at 600. The
Court observed that ADA's recognition of unjustified institutional
isolation of persons with disabilities as a form of discrimination
reflects two judgments: (1) that "institutional placement of persons
who can handle and benefit from community settings perpetuates unwarranted
assumptions that persons so isolated are incapable or unworthy of
participating in community life;" and (2) that "confinement in an
institution severely diminishes the everyday life activities of
individuals, including family relations, social contacts, work options,
economic independence, educational advancement, and cultural enrichment."
Id. at 600-01. The Court found that dissimilar treatment
had been established: "In order to receive needed medical services,
persons with mental disabilities must, because of those disabilities,
relinquish participation in community life they could enjoy given
reasonable accommodations, while persons without mental disabilities
can receive the medical services they need without similar sacrifice."
Id. at 601.
The Court's recognition of the integration mandate of ADA has had
significant positive consequences. It led, for example, to the January
14, 2000, letter of Secretary of Health and Human Services (HHS),
Donna Shalala, to the governor of each of the States citing the
Olmstead decision and HHS's belief "that no person should
have to live in a nursing home or other institution if he or she
can live in his or her community," and to a letter from the Health
Care Financing Administration to each State's Medicaid Director
explaining the Olmstead ruling in more detail and indicating
that each State should have "a comprehensive, effectively working
plan for placing qualified persons with disabilities in the most
integrated setting appropriate." See NCD, Promises
to Keep: A Decade of Federal Enforcement of the Americans with Disabilities
Act 129 (2000). More recently, the Olmstead decision
was a major impetus for President George W. Bush to issue, on June
18, 2001, Executive Order No. 13217, which declared the commitment
of the United States to community-based alternatives for individuals
with disabilities and declared that "[u]njustified isolation or
segregation of qualified individuals with disabilities through institutionalization
is a form of disability-based discrimination prohibited by Title
II of the Americans with Disabilities Act of 1990 (ADA)." The Order
requires the Attorney General, the Secretaries of Health and Human
Services, Education, Labor, and Housing and Urban Development, and
the Commissioner of the Social Security Administration to work cooperatively
to ensure that the Olmstead decision is implemented in a
timely manner. Specifically, the designated agencies are to "work
with States to help them assess their compliance with the Olmstead
decision and ADA in providing services to qualified individuals
with disabilities in community-based settings, as long as such services
are appropriate to the needs of those individuals."
Thus, it is clear that this aspect of the Olmstead decision
has been a powerful engine for increasing community alternatives
and eliminating unjustified institutional placements.
2. Prerequisites to deinstitutionalization
The right to integrated placement established in Olmstead
is tempered by some limitations or conditions announced in the Court's
decision. None of these is based upon explicit statutory language
nor is directly enunciated in ADA regulations.
a. Not for all
The Court assumed that there are some people whose condition necessitates
non-community institutionalization; individuals for whom "no placement
outside the institution may ever be appropriate." Id. at
605. The Court concluded that nothing in ADA or the regulations
condones termination of institutional settings for persons "unable
to handle or benefit from community settings." 527 U.S. at 601-02.
b. Deference to states' professionals
The Court indicated that a state generally may rely on the reasonable
assessments of its own professionals in determining whether an individual
meets essential eligibility requirements for placement in a community-based
program, and should not remove individuals from the more restrictive
setting if they do not qualify for community-based placement. Id.
at 602.
c. Person must desire to be integrated
The Court declared that federal law does not create any "requirement
that community-based treatment be imposed on persons who do not
desire it." Id. This ruling suggests that states can keep
people in unnecessarily segregated settings so long as the individuals
do not (or are unable to§) object to it.
d. The state must offer the community services sought
While ruling that "States must adhere to ADA's nondiscrimination
requirement with regard to the services they in fact provide," the
Court cautioned that it was not holding that ADA imposes on the
States a "standard of care" for whatever medical services they render,
or that ADA requires States to "provide a certain level of benefits
to individuals with disabilities." Id. at 603, n. 14. Thus
the Court spoke of "the State's responsibility, once it provides
community-based treatment to qualified persons with disabilities...."
Id. at 603.
3. Cost defense
In its ruling in the Olmstead case, the 11th Circuit had
declared that the standard for applying the fundamental alteration
limitation was "whether the additional expenditures necessary to
treat [the plaintiffs] in community-based care would be unreasonable
given the demands of the State's mental health budget." 138 F.3d
at 905. None of the various opinions filed by the Justices of the
Supreme Court garnered a majority. A total of eight Justices (all
except Justice Stevens), however, concluded that the Eleventh Circuit
had applied too restrictive an interpretation of the defense. Justice
Stevens would have affirmed the Eleventh Circuit's decision as to
the fundamental alteration defense. Five Justices (the four who
joined in Justice Ginsburg's opinion plus Justice Kennedy) concluded
that the Eleventh Circuit had applied too restrictive an interpretation
of the defense. Justice Thomas, joined by Chief Justice Rehnquist
and Justice Scalia, would have held that differential treatment
because of cost is not discrimination at all. As to the standard
that should be applied to such cost defenses, Justice Ginsburg wrote
that "the fundamental-alteration component of the reasonable-modifications
regulation would allow the State to show that, in the allocation
of available resources, immediate relief for the plaintiffs would
be inequitable, given the responsibility the State has undertaken
for the care and treatment of a large and diverse population of
persons with mental disabilities." 527 U.S. at 604. Justice Kennedy
indicated that states should be "entitled to wide discretion in
adopting [their] own systems of cost analysis, and, if [they] choose,
to allocate health care resources based on fixed and overhead costs
for whole institutions and programs." Id. at 615.
The Justices' views on the cost defense may have been influenced
by the apparent acceptance by the United States of cost factors
beyond those accepted by the Eleventh Circuit. Justice Ginsburg's
opinion, for example, quotes the brief Amicus Curiae of the
United States regarding "increased overall expenses by funding community
placements without being able to take advantage of the savings associated
with the closure of institutions" and "the cost of running partially
full institutions in the interim," prior to closing down particular
institutions. Id. at 604, and n. 15, quoting Brief for United
States as Amicus Curiae 21. During oral arguments in Olmstead,
the Solicitor General's office also furthered the idea of a financial
hardship defense to States' duties under Title II of ADA to render
services in the most integrated setting appropriate (The pertinent
section of the transcript of the oral argument is found at 1999
WL 252681, pp. 20-21). ADA itself established a fundamental alteration
standard, a higher standard than financial hardship(3).
For NCD's critical analysis of these and some other policy stances
on behalf of the United States regarding issues raised in Olmstead,
see NCD, Promises
to Keep: A Decade of Federal Enforcement of the Americans with Disabilities
Act 119-120 (2000).
4. Not directly requiring closing institutions
Justice Ginsburg's opinion, and the shifting lineup of Justices
joining in its different parts leaves some ambiguity about the Court's
views on whether ADA may require the closing of some or all of states'
institutions. In part III.B of the opinion, which did not represent
a majority of the Court, Justice Ginsburg wrote that "[a]s already
observed, see supra, at [119 S.Ct.] 2187-2188, ADA is not
reasonably read to impel States to phase out institutions, placing
patients in need of close care at risk." 527 U.S. at 604. While
this statement is relatively clear, the discussion apparently referred
to on the cited pages, which are part of the opinion for a majority,
actually states, "[w]e emphasize that nothing in ADA or its implementing
regulations condones termination of institutional settings for persons
unable to handle or benefit from community settings." Id.
at 601-02. This statement is not exactly equivalent to the former.
Justice Kennedy, in a portion of his opinion in which he was joined
by Justice Breyer, wrote about negative consequences of some deinstitutionalization.
In his view, it would be "unreasonable" and "tragic" if ADA were
interpreted "to drive those in need of medical care and treatment
out of appropriate care and into settings with too little assistance
and supervision." Id. at 610. These statements, while not
explicitly conclusive on the issue, represent a sentiment among
at least five of the Justices that ADA does not require the closing
of institutions. When added to the three dissenters, who argued
that segregation in treatment facilities does not constitute discrimination
at all, the opinions represent a setback to efforts to interpret
ADA as requiring the closing of isolated, segregated state institutions.
This effect, however, may be offset by the Olmstead decision's
clear endorsement of an integration requirement. The impact of this
integration mandate in ensuring community placements for increasing
numbers of individuals may eventually generate economic reasons
for phasing out state institutions.
5. Waiting Lists
In Justice Ginsburg's view, a state could meet ADA reasonable modification
requirement by having a "comprehensive, effectively working plan"
for placing qualified persons with mental disabilities in less restrictive
settings. Id. at 605-06. And this would be sufficient even
if the plan involved a waiting list, so long as the waiting list
"moved at a reasonable pace not controlled by the State's endeavors
to keep its institutions fully populated...." Id. at 606.
These views are presented in a portion of Justice Ginsburg's opinion
that does not represent a majority of the Court, but when considered
in light of the three dissenting Justices who do not believe that
segregated placements constitute discrimination at all, the endorsement
of waiting lists in Justice Ginsburg's opinion could be significant.
F. CONSTITUTIONAL LIMITS ON CONGRESSIONAL AUTHORITY IN RELATION
TO ADA
In Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356 (2001), the Supreme Court ruled that suits by employees
of a state to recover money damages from a state for violations
of Title I of ADA are barred by the Eleventh Amendment. This followed
the Court's decision in Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000), in which the Court had ruled that the Age Discrimination
in Employment Act did not validly abrogate states' Eleventh Amendment
immunity from suits by private individuals. En route to its decision
in Garrett, the Court indicated that in evaluating congressional
authority to enact ADA provisions as part of its power to enforce
the Fourteenth Amendment, the Court would require that legislation
reaching beyond the scope of the Fourteenth Amendment's guarantees
must exhibit "congruence and proportionality" between the constitutional
injury being addressed and the means adopted to address it. Garrett,
121 S.Ct. at 963, quoting City of Boerne v. Flores, 521 U.S.
507, 520 (1997). In considering the constitutional injury addressed
by ADA, the Court indicated that it would apply "rational-basis
review"--the lowest level of equal protection analysis--to state
discrimination on the basis of disability challenged as violating
equal protection. In applying such standards to Title I of ADA and
as it applies to state employment, the Court found that the evidence
Congress assembled of unconstitutional state discrimination in employment
was inadequate, and that Congress had not imposed a remedy that
is congruent and proportional to the targeted constitutional violation.
Disability rights activists and scholars were quick to point out
the limited scope of the Garrett ruling. On the day that
the Court announced its decision, ADA Watch noted in a Press Release
that the ruling does not: (a) prevent individual suits against a
state employer for injunctive relief; (b) bar suits initiated by
the Federal Government for monetary damages; (c) bar suits for money
damages against private employers or local governments; and (d)
apply to Title II of ADA. ADA Watch, Press Release: Civil Rights
Advocates Respond to Supreme Court Decision, February 21, 2001.
Some of these limitations are based upon footnote 9 in the Opinion
in which the Court clarified that its ruling did not mean that persons
with disabilities have no federal recourse against discrimination.
The Court noted that states are still subject to Title I standards,
and those standards can be enforced by the United States in actions
for money damages, as well as by private individuals in actions
for injunctive relief. In addition, state laws protecting the rights
of persons with disabilities in employment may provide additional
avenues of redress. Subsequently, in Buckhannon Board and Care
Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S.
598, 121 S.Ct. 1835, 1843 n. 10 (2001), the Court would reiterate
long-standing principles that "[o]nly States and state officers
acting in their official capacity are immune from suits for damages
in federal court," and that "[p]laintiffs may bring suit for damages
against all others, including municipalities and other political
subdivisions of a State." In another footnote (number 1) at the
beginning of its opinion in Garrett, the Court stressed that
it was not addressing whether Title II, "which has somewhat different
remedial provisions from Title I," is appropriate legislation under
§ 5. 121 S.Ct. at 960 n. 1. Of course, some of the analysis
the Court applies to Title I in Garrett may nonetheless greatly
affect the analysis of Eleventh Amendment immunity under Title II
in future court challenges.
The direct impact of the Court's ruling in Garrett is fairly
easy to describe, but its longer-term implications are much harder
to determine. Some fear that the analytical standards applied to
Title I in Garrett will be applied to also bar private suits
for monetary damages against states under Title II. Some see the
Garrett decision as but one step on a broader effort by the
Court to restrict congressional authority and to expand the rights
of states that may have serious repercussions for the Commerce Clause
authority also expressly invoked by the Congress in enacting ADA,
and perhaps even to the Spending Clause authority that provides
the constitutional underpinning of Section 504 of the Rehabilitation
Act of 1973. Others view such threats as highly speculative and
unlikely. The Garrett decision has been the subject of much
discourse and debate. Within legal periodicals, a Westlaw search
of law reviews and journals revealed some 40 articles discussing
the Garrett decision and its implications. See,
e.g., Jaclyn F. Okin, Has the Supreme Court Gone Too Far?:
An Analysis of the University of Alabama v. Garrett and its Impact
on People with Disabilities, 9 Am. U. J. Gender Soc. Pol'y
& L. 663 (2001); Mark A. Johnson, Note, Board of Trustees
of the University of Alabama v. Garrett: A Flawed Standard Yields
A Predictable Result, 60 Md. L. Rev. 393 (2001). The Web site
of the National Senior Citizens Law Center has a concise but informative
analytical paper, Life After Garrett: Enforcing ADA and Section
504 Against States, and State Officials by Herbert Semmel (updated
March 12, 2001) that discusses alternatives in the event of a "worst
case scenario" in which the limitations on Title I in Garrett
are eventually imposed on Title II as well; it is found at http://www.nsclc.org/lifeaftergarrett.html.
While recognizing limitations in the direct scope of the Garrett
decision, NCD has described the decision as "another obstacle in
the path of people with disabilities," and has expressed its deep
concern that the Garrett decision could initiate a "slippery
slope" that would lead to further restriction of rights established
under ADA. NCD, News
Release: National Council on Disability Deeply Troubled by U.S.
Supreme Court Decision Limiting Scope of Americans with Disabilities
Act (Feb. 21, 2001).
G. SAFETY STANDARDS AND DIRECT THREAT DEFENSE
In Bragdon v. Abbott, 524 U.S. 624 (1998), the Court interpreted
and applied the defense of "direct threat to the health or safety
of others" established under Title III of ADA. 42 U.S.C. §
12182(b)(3). The Court indicated that the direct threat concept
had its origins and is to be interpreted consistently with School
Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). It stated
that the existence of such a direct threat is to be determined from
the standpoint of the person who refuses to provide accommodation
or equal treatment and must be based on medical or other objective
evidence available at the time the decision was made. No special
deference is to be afforded, however, to health care professionals;
a health care professional who disagrees with the prevailing medical
consensus on the existence of a direct threat must refute it by
citing credible scientific evidence for deviating from the accepted
norm.
On remand, the CDC universal precautions were found adequate to
prevent a direct threat to dental workers; "possible" cases of patient-to-dental-worker
HIV transmission were found to be too speculative or too tangential
to establish a direct threat. The First Circuit added an admonition
that in future cases it might reach different results: "The state
of scientific knowledge concerning this disease is evolving, and
we caution future courts to consider carefully whether future litigants
have been able, through scientific advances, more complete research,
or special circumstances, to present facts and arguments warranting
a different decision." Abbott v. Bragdon, 163 F.3d 87, 90
(1st Cir. 1998).
Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999), raised
a question under the direct threat provision of Title I. 42 U.S.C.
§ 12113(b). The Court noted that the United States had urged
that in applying a qualification standard grounded in safety concerns,
it should read subsections (a) (42 U.S.C. § 12113(a)--"job-related
and consistent with business necessity, and ... performance cannot
be accomplished by reasonable accommodation") and (b) ("direct threat")
together so that when an employer would impose any safety qualification
standard, however specific, tending to screen out individuals with
disabilities, the application of the requirement must satisfy ADA's
"direct threat" criterion. 527 U.S. at 569. Under such an approach,
all safety criteria imposed by employers would be evaluated under
the direct threat standard. The Court expressed some doubt whether
the Government's interpretation, which might impose a higher burden
on employers to justify safety-related qualification standards than
other job requirements, was a sound one, but found it did not need
to confront the validity of the reading in the Kirkingburg
case. Id. at 569 n. 15. Instead, the Court simply ruled that
Albertson's was entitled to rely on the DOT visual acuity standard
as a job qualification criterion.
In Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002),
the Supreme Court upheld as permissible under the ADA the Equal
Employment Opportunity Commission regulation that allows employers
to refuse to hire applicants because their performance on the job
would endanger their health due to a disability, despite the fact
that in the language of the ADA Congress had recognized a "direct
threat" defense only for dangers posed to other workers. The Council
has opposed the EEOC danger-to-self provision, because it invites
paternalistic conjecturing by employers and their physicians about
perceived dangers to individuals with disabilities, often based
on ignorance and misconceptions about particular conditions, and
fosters perceptions that individuals with disabilities are commonly
irrationally self-destructive. See National Council on Disability,
Promises
to Keep: A Decade of Federal Enforcement of the Americans with Disabilities
Act 221-222 (2000); National Council on Disability, Brief as
Amicus Curiae in Support of Respondent in Chevron U.S.A.
Inc. v. Echazabal (2002). The Court's acceptance of the EEOC
provision raises the possibility of more prevalent use of such overprotective
health standards in the future.
The Court did note in Echazabal that the EEOC provision
requires that the direct threat defense must be "based on a reasonable
medical judgment" supported by "the most current medical knowledge
and/or the best available objective evidence," and must involve
an "individualized assessment of the individual's present ability
to safely perform the essential functions of the job," that considers
how imminent the risk is and how severe the harm would be. 29 C.F.R.
§ 1630.2(r) (2001). These requirements should ameliorate the
damaging effects of the risk-to-self defense to some degree, and
provide litigants with disabilities and their attorneys grounds
for contesting the assertion of such a defense. These supposed safeguards
may, however, be rendered ineffective to the extent that such judgments
and assessments are made by physicians who are employed by employers
and may be more sensitive to protecting the employer than to the
equal opportunity rights of potential employees with disabilities
under the ADA. Many job applicants with disabilities will not have
the knowledge or resources to challenge the reasonableness and basis
in current medical knowledge of judgments made by company doctors
that their employment would endanger their health or safety.
The Court in Echazabal did not resolve an issue expressly
left open in Albertson's, Inc. v. Kirkingburg, 527 U.S. 555,
569-570, n. 15 (1999): whether all safety-related qualification
standards must satisfy the ADA's direct-threat standard. 122 S.Ct.
at 2050 n. 3. But the Court did declare that safety-related qualification
standards that would reject potential workers because of "indirect"
threats of "insignificant" harm are implicitly precluded by the
Act's specification of a direct-threat defense. Because of the procedural
manner in which the case came to the Supreme Court, the Echazabal
Court also did not have occasion to determine whether Chevron could
have made a reasonable accommodation that would have permitted Mr.
Echazabal to keep his job in spite of the threat-to-self standard,
id. at 2048 n. 2. This leaves open the possibility that future
litigants may be able to sidestep exclusion from a job if they can
identify a reasonable accommodation that will permit job performance
without endangering the worker's health or safety. The Court also
accepted that safety-related qualification standards are subject
to the same requirement as other types of qualification standards
that screen out individuals with disabilities -- that they must
be "job-related" and "consistent with business necessity." Id.
at 2053; 42 U.S.C. § 12112(b)(6); 122 S.Ct. at 2053 & n.
6. These requirements may provide other avenues for challenging
unnecessary risk-to-self standards. The Court also indicated that
it had no occasion to decide the degree of match there must be between
a condition deemed disqualifying and the particular job applicant's
manifestation of the condition -- "how acutely an employee must
exhibit a disqualifying condition before an employer may exclude
him from the class of the generally qualified." 122 S.Ct. at 2053
n.6. The Court concluded that the trial courts should have the opportunity
to address this issue before the Supreme Court considers it.
In discussing the question whether Congress intended the direct
threat defense to apply only to threats to others, the Court examined
the statutory language creating the defense ("The term 'qualification
standards' may include a requirement that an individual shall not
pose a direct threat to the health or safety of other individuals
in the workplace." 42 U.S.C. § 12113(b).), and reasoned that
Congress could not have intended this language to limit the kinds
of direct threats to the class listed. If it had, said the Court,
then employers could not avoid hiring employees whose conditions
would endanger customers or other persons not in the workplace.
To illustrate this reasoning, the Court resorted to an inflammatory
example: "If Typhoid Mary had come under the ADA, would a meat packer
have been defenseless if Mary had sued after being turned away?"
122 S.Ct. at 2051. This harsh example was both unnecessary and misplaced.
First, a person with typhus would obviously present a danger to
other workers. Second, given that the ADA defines "direct threat"
to mean "a significant risk to the health or safety of others that
cannot be eliminated by reasonable accommodation," without a limitation
to others "in the workplace," a logical reading of the provision
concerning direct threat as a qualification standard would be that
the defense applies to requirements that conditions not pose a direct
threat to others if permitted in the workplace, i.e., that
"in the workplace" modifies "poses" rather than "others." Thus,
typhus in the workplace would pose a direct threat to others, even
if "others" is interpreted to refer to customers, not other workers.
In utilizing the "Typhoid Mary" example, and elsewhere when it
refers to "skyscraper workers with vertigo," id. at 2053
n. 6, the Court seems to ignore the fact that to be a "qualified
individual with a disability" protected from discrimination under
Title I of the ADA, a person must be able to perform the essential
functions of the employment position. 42 U.S.C. § 12111(8).
A skyscraper worker who cannot work on high floors and a meat processor
who cannot prepare uncontaminated, hygienic food would not be qualified
under the ADA and could not avail themselves of the Act's protections
from discrimination. The Court expressly did not consider the issue
of whether Mr. Echazabal was "qualified," but made a confusing statement
that "[t]hat issue will only resurface if the Circuit concludes
that the decision of respondent's employer to exclude him was not
based on the sort of individualized medical enquiry required by
the regulation ...." 122 S.Ct. at 2047 n.1. Under the ADA, the issue
of whether a complainant is "qualified" should be a preliminary
condition to the application of the substantive protections from
job discrimination. While Mr. Echazabal was almost certainly qualified
because he had been satisfactorily performing the job tasks for
some time, other persons such as "Typhoid Mary" and "skyscraper
workers with vertigo" will not be qualified and thus will be ineligible
to invoke the protection of the Act's prohibitions of employment
discrimination. The Court's statements and inflammatory examples
seriously muddy the analytical waters.
The Court recognized that the EEOC has taken a narrow view of the
paternalism and "overprotective rules and policies" that Congress
prohibited as forms of discrimination in the ADA. 42 U.S.C. §
12101(a)(5). The Court characterized EEOC as having concluded that
"Congress was not aiming at an employer's refusal to place disabled
workers at a specifically demonstrated risk, but was trying to get
at refusals to give an even break to classes of disabled people,
while claiming to act for their own good in reliance on untested
and pretextual stereotypes." In the Court's view, the EEOC direct
threat provision only addresses such pretextual, class-based exclusionary
standards, which the Court termed "sham protection." 122 S.Ct. at
2052-53. Neither the EEOC nor the Court has acknowledged the difficult
burden of proof this interpretation places on a job applicant who
has been rejected for a particular job because of alleged risk to
the applicant who must try to prove that the employer was basing
its actions on pretextual, class-based stereotypes. The EEOC approach
suggests that an applicant who has been rejected because of an employer's
risk-to-self concerns cannot simply prove that the applicant can
in fact do the job safely, but might need to prove that the employer's
action was based upon pretext and class-based stereotypes. Such
evidence of what was going on in the employer's mind is notoriously
hard to obtain. There also appears to be some tension between the
class-based stereotype notion and the "individualized" determination
of direct threat that the EEOC purports to require.
The Court stated that "there may be an open question whether an
employer would actually be liable under OSHA [the Occupational Safety
and Health Act of 1970] for hiring an individual who knowingly consented
to the particular dangers the job would pose to him," but added
that "the employer would be asking for trouble." Id. at 2052.
Mr. Echazabal had pointed out and the Court accepted that "there
is no known instance of OSHA enforcement, or even threatened enforcement,
against an employer who relied on the ADA to hire a worker willing
to accept a risk to himself from his disability on the job." Id.
Given that factual background, the Court's reference to "asking
for trouble" is somewhat mysterious. Is the Court signaling that
it is prepared to recognize employers' liability in such a situation?
Would the Court impose such liability under OSHA for actions required
of an employer under another federal law, the ADA? The Court's incomplete
discussion of these matters concerning the intersection between
two major federal laws raises more questions than it answers.
H. ARBITRATION CLAUSE IN COLLECTIVE BARGAINING AGREEMENTS
In Wright v. Universal Maritime Service Corp., 525 U.S.
70 (1998), the Court ruled that a general arbitration clause does
not require a worker to use the arbitration procedure for ADA claims.
The Court indicated that if there were to be a waiver of the worker's
right to a judicial forum for ADA claims, the waiver would have
to be a clear and unmistakable waiver, but, even if there were such
a waiver, the Court expressly did not reach the question whether
it would be enforceable.
In Equal Employment Opportunity Commission v. Waffle House,
Inc., 122 S.Ct. 754 (2002) the Court ruled that an agreement
between an employer and an employee to arbitrate any employment-related
dispute or claim did not bar the Equal Employment Opportunity Commission
(EEOC) from pursuing victim-specific remedies, such as backpay,
reinstatement, and damages, against the employer for allegedly violating
the ADA. The Court examined the impact of the Federal Arbitration
Act (FAA), and held that, because the EEOC was not a party to the
arbitration agreement and had not agreed to arbitrate its claims,
the FAA did not require the agency to relinquish its right to pursue
judicial relief, even though the employer and employee may have
chosen to do so. This ruling should preserve the enforcement options
open to the ADA federal enforcement agencies even if complainants
may have narrowed their options by agreeing to arbitrate disputes.
I. IMPACT OF APPLICATION FOR AND RECEIPT OF DISABILITY BENEFITS
ON ADA CLAIMS
In Cleveland v. Policy Management Systems Corp., 526 U.S.
795 (1999), the Court found that the Court of Appeals had erred
by applying a special legal presumption that would permit applicants
for or recipients of SSDI benefits to pursue ADA claims only in
"some limited and highly unusual set of circumstances." Id.,
quoting 120 F.3d at 517. The Court ruled that an ADA plaintiff should
not be required to rebut a presumption of estoppel but instead only
to "proffer a sufficient explanation" of the apparent contradiction
that arises out of an earlier SSDI total disability assertion. 526
U.S. at 806. Accordingly, a plaintiff must offer an explanation
that would permit a reasonable conclusion that, assuming the earlier
assertion was true or asserted by the plaintiff in good faith, the
plaintiff would nonetheless be able to perform the essential functions
of the job. This ruling interrupted a large body of lower court
decisions that had prevented individuals who had filed for or were
awarded Social Security disability benefits from pursuing ADA employment
discrimination claims.
J. REASONABLE ACCOMMODATION
1. In general
In U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002),
the Court provided some analysis of the requirement of Title I of
the ADA that employers make reasonable accommodations to the known
physical or mental limitations of applicants or employees with disabilities.
The Court stated that "preferences will sometimes prove necessary
to achieve the Act's basic equal opportunity goal," and indicated
that reasonable accommodations constitute a form of "preference"
required for workers with disabilities under the ADA, one that is
necessary to offer them the same workplace opportunity as other
employees. Id. at 1521. The Court added, "By definition any
special 'accommodation' requires the employer to treat an employee
with a disability differently, i.e., preferentially." Id.
The Court's characterization of reasonable accommodations as "special"
and "preferential" is unfortunate. It fuels the misconception that
the ADA gives people with disabilities some type of advantage over
people without disabilities. Properly understood, reasonable accommodations
are adjustments or modifications intended to level the playing field
for a person who would otherwise be denied an equal opportunity.
In proposing the idea of an ADA in 1986, the Council identified
reasonable accommodation as "[a] key element of eliminating discrimination"
on the basis of disability, and described it as "the process of
matching the particular abilities and limitations of each disabled
individual with the essential requirements of a particular activity
and trying to modify the activity as necessary to permit the individual
with a disability to participate." National Council on Disability,
Toward Independence, app. at A-15 (1986). The Council also observed
that "[d]iscrimination against people with disabilities has literally
been built into the physical environment, and eliminating such discrimination
requires planning and action to remove barriers that exclude disabled
people." Id. at A-37.
The ADA's reasonable accommodation requirement built upon a clear
analytical foundation described in detail in Accommodating the Spectrum
of Individual Abilities,the U.S. Commission on Civil Rights' 1983
report on disability discrimination. Central to the reasonable accommodation
concept is recognition that the impact of physical and mental impairments
largely "is as much inherent in the social context as in the impairment,"
and that while it is frequently assumed that there is only one way
of doing things -- tailored to the needs and abilities of those
without disabilities -- in fact, "programs, activities, and facilities
may actually be organized in a variety of ways" that "can be changed
in response to the abilities and characteristics of the person involved."
Id. at 89, 90. To the degree that a particular job situation
is slanted against a person with certain impairments, identical
treatment of that person in relation to other employees or applicants
would not provide real equality of opportunity. As the Commission
on Civil Rights observed: "When decisionmakers forget that social
context almost always are structured for [people without disabilities],
they are apt to view anything beyond ... identical treatment as
special, unequal treatment necessitated by the [disability]." Id.
at 99. This is precisely the verbal trap suggested by the Court's
"special" and "preferential" phrasing in the Barnett opinion.
For additional confirmation that reasonable accommodation is not
"special treatment," and a description of the types of "accommodations"
employers routinely make for employees without disabilities, see
Robert L. Burgdorf Jr., "Substantially Limited" Protection from
Disability Discrimination: The Special Treatment Model and Misconstructions
of the Definition of Disability, 42 Villanova L. Rev. 409, 529-533
(1997).
The Barnett Court's "preference" and "special" phraseology,
while regrettable, is somewhat misleading. The Court explained that
it was using the term "preference" narrowly in referring to some
reasonable accommodations, "in the sense that it would permit the
worker with a disability to violate a rule that others must obey."
122 S.Ct. at 1521. The Court recognized that such reasonable accommodations
"sometimes prove necessary to achieve the Act's basic equal opportunity
goal. The Act requires preferences in the form of 'reasonable accommodations'
that are needed for those with disabilities to obtain the same
workplace opportunities that those without disabilities automatically
enjoy." 122 S.Ct. at 1521. As such, despite its unartful terminology,
the Court's opinion ultimately validates the rationale underlying
the ADA's imposition of a reasonable accommodation requirement.
The Court ruled that the reasonable accommodation obligation can
require an employer to make exceptions to disability-neutral practices
and rules, and elaborated as follows:
Were that not so, the "reasonable accommodation" provision could
not accomplish its intended objective. Neutral office assignment
rules would automatically prevent the accommodation of an employee
whose disability-imposed limitations require him to work on the
ground floor. Neutral "break-from- work" rules would automatically
prevent the accommodation of an individual who needs additional
breaks from work, perhaps to permit medical visits. Neutral furniture
budget rules would automatically prevent the accommodation of an
individual who needs a different kind of chair or desk. Many employers
will have neutral rules governing the kinds of actions most needed
to reasonably accommodate a worker with a disability. Id.
Significantly, this ruling makes it clear that the duty of making
reasonable accommodations is not restricted simply to modifying
rules and practices that directly disadvantage workers with disabilities,
and can necessitate exceptions to practices and policies that are
disability-neutral and applied uniformly to all workers.
2. Evidentiary framework
The majority opinion in Barnett set out an evidentiary framework
for reasonable accommodations cases in which the employer files
a motion for summary judgment (which basically claims that even
if the plaintiff is correct in all the factual allegations, as a
matter of law the employer will still win the lawsuit). Adopting
the approach of some lower court decisions, the Court ruled that
to overcome an employer's summary judgment motion, a plaintiff employee
needs only show that an accommodation seems reasonable on its face,
"ordinarily or in the run of cases." Id. at 1523. Once the
plaintiff meets this burden, the employer has to establish the existence
of "undue hardship" in the particular circumstances.
3. Reasonableness of accommodations
Prior to the Barnett decision, the EEOC and most commentators
had believed that, to comply with the evidentiary burdens outlined
in the prior subsection, a plaintiff merely had to show that a particular
accommodation worked, in the sense that it would enable the worker
with a disability to perform the essential functions of the job.
The limits on its "reasonableness" were established by the ADA definition
of "undue hardship," which provided that an employer did not have
to make an accommodation that required "significant difficulty or
expense" determined in light of resources available to the employer,
the nature and cost of the accommodation, and other factors. 42
U.S.C. § 12111(10). An "unreasonable accommodation," then,
was one that resulted in undue hardship. The majority opinion in
Barnett, however, recognized an assessment of reasonableness
of accommodations apart from undue hardship.
The Court reasoned that the ADA does not "demand action beyond
the realm of the reasonable.§ 122 S.Ct. at 1523. It rejected
Mr. Barnett's argument that the word "reasonable" in "reasonable
accommodation" only means "effective," and held that it is the word
"accommodation," not the word "reasonable," that conveys the need
for effectiveness. The Court declared that "an accommodation could
be unreasonable in its impact even though it might be effective
in facilitating performance of essential job functions." Id.
at 1522. In permitting employers and courts to conduct an assessment
of the "reasonableness" of accommodations, apart from their financial
and administrative hardship on the employer's operation, the Barnett
opinion opened up a troublesome can of worms. It invites employers
to interject their own eccentric and prejudiced views about what
is reasonable, and allows courts to second-guess otherwise workable
and not unduly burdensome accommodations.
In its regulations and regulatory guidance, the EEOC has suggested
a process for determining an appropriate accommodation, that involves
initial discussions between the employer and the employee or applicant,
analysis of the particular job involved to determine its purpose
and essential functions, consultation with the individual with disability
to identify job-related limitations and how those limitations could
be overcome with a reasonable accommodation, identifying potential
accommodations and assessing the effectiveness each would have,
and selecting and implementing the accommodation that is most appropriate
for both the employee and the employer considering the preference
of the individual to be accommodated. 29 C.F.R. 414 (app. to pt.
1630) (commentary on §1630.9) (1993). This process did not
contemplate that an employer could say that, although such-and-such
accommodation would be effective and is not unduly costly or difficult,
I still reject it because I do not think it is reasonable. Hopefully
future decisions may restrict this independent evaluation of reasonableness
of accommodations to the reassignment/seniority factual context
at issue in the Barnett case.
The majority opinion in Barnett did recognize that the fact
that an accommodation would exempt a worker with a disability from
a rule or requirement other workers are subject to does not automatically
show that the accommodation is not reasonable. 122 S.Ct. at 1521.
4. Conflict with seniority rights
The particular accommodation at issue in U.S. Airways, Inc.
v. Barnett was allowing Mr. Barnett to remain in a position
to which he had transferred despite the fact that the position was
subject to seniority-based bidding by other employees. Accordingly,
the case involved a conflict between the interests of Mr. Barnett
in being assigned to the position as a reasonable accommodation
and the interests of other workers with superior rights to bid for
the job under U.S. Airways' seniority system. The Court ruled that
the ADA does not ordinarily require the assignment of an employee
with a disability to a particular position to which another employee
is entitled under an employer's established seniority system, but
that it might in special circumstances. The Court indicated that
transfer to a position to which another employee would be entitled
under a seniority system would not be reasonable "ordinarily or
in the run of cases." 122 S.Ct. at 1523-24. But the Court stated
that the employee could demonstrate "special circumstances" that
would render a requested accommodation reasonable in the particular
circumstances. As an example of such circumstances, the Court mentioned
situations in which other exceptions to a seniority system are made
relatively frequently so permitting another to accommodate a worker
with a disability would not significantly impact the company or
workers' expectations. Id. at 1525.
The upshot of the ruling is that plaintiffs seeking accommodations
that conflict with seniority rights of other employees will face
an uphill battle to demonstrate that the accommodation is reasonable,
but can prevail if they can demonstrate special circumstances that
make an exception to the seniority system reasonable.
On the way to its ruling, the majority clarified that for purposes
of accommodations in the form of "reassignment to a vacant
position," 42 U.S.C. § 12111(9)(B), a vacant position can be
one that is "open" for bidding under a seniority system. 122 S.Ct.
at 1521.
Justice O'Connor wrote in her concurring opinion that she would
have held that a seniority system would only render a job reassignment
as an accommodation under the ADA unreasonable if the seniority
system was legally enforceable (which U.S. Airways was not). Justice
Stevens also filed a concurring opinion, in which he identified
some issues that in his view would need to be resolved by the lower
courts to determine whether the accommodation requested by Mr. Barnett
was reasonable. The slim 5-to-4 margin of the decision coupled with
the sentiments expressed in the concurrences are sufficient to afford
Mr. Barnett and future litigants some leeway to still argue, given
the particular circumstances at issue, that transfer to a position
as a reasonable accommodation should prevail over seniority rights
of other employees.
K. REASONABLE MODIFICATION
In PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the Court
interpreted and applied the "reasonable modification" requirement
under Title III of ADA. 42 U.S.C. § 12182(b)(2)(A)(ii). The
Court found that the application of this requirement entails three
inquiries: "whether the requested modification is "reasonable,"
whether it is "necessary" for the disabled individual, and whether
it would "fundamentally alter the nature of" the competition." 121
S.Ct. at 1893 n. 38. The Court observed that a preliminary step
in applying the "reasonable modifications" requirement is to determine
whether or not a particular modification sought by an individual
with a disability is "necessary" to permit the individual to obtain
the goods, services, facilities, privileges, advantages, or accommodations
the public accommodation provides. If a person with a disability
can get the benefits provided in the absence of the modification,
even if it was more difficult or uncomfortable, the Court stated
that in such cases "an accommodation might be reasonable but not
necessary." 121 S.Ct. at 1893. The Court also required an individualized
inquiry to determine whether a specific modification for a particular
person's disability would be reasonable under the circumstances
as well as necessary for that person, and yet at the same time not
work a fundamental alteration. Id. at 1896. The principles
announced by the Court are likely to be significant in guiding the
application of the reasonable modification requirement in future
cases.
L. APPLICATION OF TITLE III TO INDEPENDENT CONTRACTORS
In PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), the Court
heard an argument that Martin's claim of discrimination was "job-related"
and could only be brought under Title I, except that Title I did
not apply because he was an independent contractor (the District
Court found he was) rather than an employee. 121 S.Ct. at 1891.
The Court ruled that Martin was a client or customer of the PGA
Tour and was thus within the protection afforded by Title III. In
his dissenting opinion, Justice Scalia argued that neither Title
I nor Title III protected independent contractors. Id. at
1898. The majority did not have to resolve the status of independent
contractors as a class in the Martin case, so the issue may
arise in future cases.
NCD believes that in pursuing the expressed congressional goal
of ADA "to provide a clear and comprehensive prohibition of discrimination
on the basis of disability," 42 U.S.C. 12101(b)(1), Congress fashioned
Title III in extremely broad terms intended to guarantee that no
individual is discriminated against on the basis of disability in
the full and equal enjoyment of public accommodations. Accordingly,
people who perform, render services, or otherwise participate in
events or activities at places of public accommodation, whether
characterized as competitors, performers, participants, or independent
contractors, should be protected by Title III.
M. VALIDITY OF AND DEFERENCE AFFORDED ADA REGULATIONS
The Supreme Court has vacillated wildly in the degree of respect
it has accorded ADA regulations. In Bragdon v. Abbott, 524
U.S. 624 (1998), the Court declared that the regulations issued
by the Department of Justice should be accorded the high level of
judicial deference referred to as Chevron deference. Pursuant
to the Court's decision in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844 (1984), where, in enacting
a statute Congress expressly directs an executive agency to issue
regulations to implement the statutory provisions, the regulations
issued by the agency are to be "given controlling weight unless
they are arbitrary, capricious, or manifestly contrary to the statute."
In Bragdon, the Court declared as follows in regard to the
DOJ's ADA Title III regulations:
"As the agency directed by Congress to issue implementing regulations,
see 42 U.S.C. § 12186(b), to render technical assistance
explaining the responsibilities of covered individuals and institutions,
§ 12206(c), and to enforce Title III in court, § 12188(b),
the Department's views are entitled to deference. See Chevron,
467 U.S., at 844." 524 U.S. at 646. The regulatory provisions
at issue in Bragdon were primarily those addressing the
definition of disability.
In Sutton v. United Airlines, 527 U.S. 471 (1999), on the
other hand, the Court accorded considerably less value to the provisions
in EEOC's ADA regulations addressing the definition of disability.
The Court discussed the various delegations of authority to issue
regulations under Titles I to IV of ADA, and then declared that
"[n]o agency, however, has been given authority to issue regulations
implementing the generally applicable provisions of ADA, ... which
fall outside Titles I-V. Most notably, no agency has been delegated
authority to interpret the term 'disability.' [42 U.S.C.] §
12102(2)." 527 U.S. at 479. However, because both parties in Sutton
accepted the EEOC regulations defining "disability" as valid, and
the Court determined that the validity of the regulations was not
necessary to decide the case, it declined to determine "what deference
they are due, if any." Id. at 480. Ultimately, the Court
rejected a position taken in both EEOC and DOJ regulatory guidance--that
persons are to be evaluated in their uncorrected state without taking
mitigating measures into account--was an impermissible interpretation
of ADA. Id. at 482.
In his dissenting opinion in Sutton, Justice Breyer contended
that the majority questioning of EEOC's authority was unnecessarily
and inappropriately technical: "There is no reason to believe that
Congress would have wanted to deny the EEOC the power to issue such
a regulation, at least if the regulation is consistent with the
earlier statutory definition and with the relevant interpretations
by other enforcement agencies. The physical location of the definitional
section seems to reflect only drafting or stylistic, not substantive,
objectives. And to pick and choose among which of [Title I's] words
the EEOC has the power to explain would inhibit the development
of law that coherently interprets this important statute." Id.
at 514-15.
Ironically, after questioning the EEOC's authority to issue regulations
implementing the definition of disability and rejecting the EEOC's
position on the mitigating measures issue, the Court accepted (though
without ruling on their validity) EEOC's regulatory provisions and
regulatory guidance providing (as part of the disability determination)
that inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working (29
C.F.R. § 1630.2(j)(3)(i) (1998)). 527 U.S. at 491-92. In Murphy
v. United Parcel Service, 527 U.S. 516 (1999), the Court followed
the pattern of Sutton, of rejecting the EEOC's position on
the issue of inability to perform a broad range or class of jobs,
while rejecting EEOC's stance on the mitigating measures issue.
In Sutton, Murphy, and Kirkingburg, the Court
took pains to declare that it was assuming, without deciding, that
the regulations were valid, and that, if valid, it was not deciding
what level of deference, if any, they should be accorded. This in
sharp contrast to the Court's opinion in Bragdon where the
Court held the regulations entitled to one of the highest levels
of judicial deference.
In Olmstead v. L.C., 527 U.S. 581 (1999), the Court gave
a degree of respect to the integration provision of DOJ's Title
II regulations. The Court declared: "We need not inquire whether
the degree of deference described in Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc. is in order; "[i]t is
enough to observe that the well-reasoned views of the agencies implementing
a statute 'constitute a body of experience and informed judgment
to which courts and litigants may properly resort for guidance.'"
527 U.S. at 598, quoting Bragdon v. Abbott, 524 U.S. 624,
642 (1998) (additional citations omitted). Thus, the Court looked
for guidance to the DOJ integration and reasonable accommodation
regulatory provisions, even though it would "not here determine
their validity" because the state parties were not challenging the
regulatory formulations as outside the congressional authorization.
527 U.S. at 592.
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
122 S.Ct. 681 (2002), the Court stated that regulations interpreting
the Rehabilitation Act of 1973 were entitled to considerable persuasive
authority in interpreting the ADA. The Court noted that the ADA's
definition of disability was drawn nearly verbatim from the definition
of "handicapped individual" in the Rehabilitation Act, 29 U.S.C.
§ 706(8)(B), and observed that "Congress' repetition of a well-established
term generally implies that Congress intended the term to be construed
in accordance with pre-existing regulatory interpretations." 122
S.Ct. at 689. Ironically, having recognized the significance of
Rehabilitation Act regulations in interpreting the ADA, the Court
indicated that the persuasive authority of the EEOC's ADA regulations
regarding the definition of disability was "less clear." Id.
The Court followed its approach in Sutton, Murphy,
and Kirkingburg, reiterating that the ADA did not assign
any agency authority to issue regulations interpreting the term
"disability," but, since the parties had accepted the EEOC ADA regulations
as reasonable, the Court would assume without deciding that they
were valid and without deciding "what level of deference, if any,"
they are due. Id.
Thus, in various instances, sometimes in the same case, the Court
has given widely varying degrees of deference to regulations issued
by the agencies statutorily designated to issue regulations implementing
parts of ADA.
N. REMEDIES
1. Generally
In Barnes v. Gorman, 122 S.Ct. 2097, 2100 (2002), the Court
noted that the "remedies, procedures, and rights" for violations
of § 202 of the ADA (Title II) and Section 504 of the Rehabilitation
Act are coextensive with the remedies available in a private cause
of action brought under Title VI of the Civil Rights Act of 1964.
The Court also indicated that the availability of remedies under
Title VI, and consequently of Title II of the ADA, should be determined
with reference to a "contract law analogy" that asks whether the
recipient of federal funds implicitly consented to the remedy by
accepting the funds. While the Barnes case addressed punitive
damages, it remains to be seen what impact, if any, the contract
analogy may have regarding other types of remedies.
In Equal Employment Opportunity Commission v. Waffle House,
Inc., 122 S.Ct. 754 (2002) the Court ruled that the EEOC's ability
to pursue victim-specific remedies, such as backpay, reinstatement,
and damages, against an employer for allegedly violating the ADA
was not restricted by an agreement between an employer and an employee
to arbitrate any employment-related dispute or claim.
2. Private right of action
In Barnes v. Gorman, 122 S.Ct. 2097, 2100 (2002), the Court
recognized that its prior cases had established "beyond dispute"
that there is an implied right of private individuals to sue under
Title VI of the Civil Rights Act of 1964. Since § 202 of Title
II of the ADA shares the "remedies, procedures, and rights" of Title
VI, a private right of action clearly is available for violations
of § 202.
3. Attorney's Fees
In Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health
and Human Res., 532 U.S. 598, 121 S.Ct. 1835 (2001), the Court
rejected the "catalyst theory," previously adopted by most of the
U.S. Courts of Appeals, under which a plaintiff was considered a
"prevailing party" eligible to be awarded attorney's fees if it
achieved its desired result because the lawsuit brought about a
voluntary change in the defendant's conduct. In Buckhannon, the
Supreme Court required a judgment, consent decree, or settlement
in a party's favor before the party would be eligible for attorney's
fees. This decision represented a significant turnaround from the
previous prevailing view and practice.
4. Punitive Damages
In Barnes v. Gorman, 122 S.Ct. 2097 (2002), the Court ruled
that punitive damages may not be awarded in private suits brought
under Title VI of the 1964 Civil Rights Act, under 202 of the ADA,
nor under Section 504 of the Rehabilitation Act. The ruling removes
a potent potential sanction against egregious violators of these
laws.
1 S.
Rep. No. 116, 101st Cong., 1st Sess. 24 (1989); H.R. Rep. No. 485,
101st Cong., 2d Sess. Pt. 2, at 53-54 (1990) (Education & Labor
Committee). These reports cite Thornhill v. Marsh, 866 F.2d
1182 (9th Cir. 1989) and Doe v. Centinela Hospital, No. CV87-2514
PAR, 57 U.S.L.W. 2034, 1988 WL 81776 (C.D. Cal. June 30, 1988).
2 See, e.g., Richard A. Bales,
Once is Enough: Evaluating When a Person Is Substantially Limited
in Her Ability to Work, 11 Hofstra Lab. L.J. 203, 210-11 (1993);
Robert L. Burgdorf Jr., 'Substantially Limited' Protection from
Disability Discrimination: The Special Treatment Model and Miscontructions
of the Definition of Disability, 42 Villanova L. Rev. 409 (1997);
Arlene B. Mayerson, Restoring Regard for the 'Regarded as' Prong:
Giving Effect to Congressional Intent, 42 Vill. L. Rev. 587
(1997); Bonnie Poitras Tucker, The Supreme Court's Definition
Under ADA: A Return to the Dark Ages, 52 Ala. L. Rev. 321, 356-61
(2000).
3 One commentator has argued that
the Court's recognition of a financial burden defense in Olmstead
represents a compounding of error made when the courts manufactured
such a defense from a dubious and unsupported dictum in Southeastern
Community College v. Davis, 442 U.S. 397 (1979). Armen H. Merjian,
"Bad Decisions Make Bad Decisions: Davis, Arline,
and Improper Application of the Undue Financial Burden Defense Under
the Rehabilitation Act and the Americans with Disabilities Act,"
65 Brooklyn Law Review 105 (1999). |