Americans with Disabilities Act (ADA): From Case Law to Case Management and Life Care Planning Practice
The Americans with Disabilities Act (ADA) of 1990 is undergoing a major transition, particularly as a result of the amendments of 2008. The purpose of this post is to provide a framework for understanding the transition the ADA is going through, especially in defining what it means to have a disability under the Act. The rehabilitation professional, whether case manager, life care planner, or vocational expert, is encouraged to have an understanding of this transition to best serve as an advocate for individuals with disabilities.
There has been a transition in the intent of ADA as well. Congress’ original intent was that the Act should provide a clear, comprehensive mandate for the elimination of discrimination for individuals with disabilities. At the time of enactment, they suggested that the ADA should be a civil rights law that is inclusive and broadly interpreted. However, through its review by the Supreme Court, decisions have evolved to a very narrow interpretation. In fact, the Court stated in the Toyota v. Williams decision that the ADA should be “interpreted strictly to create a demanding standard for qualifying as disabled” (Vierling, 2002d).
The court’s struggle with the definition of disability under the law is not necessarily a new issue. A recent search of the U.S. Code, which is the official compilation of federal statutes that are currently in force, identified 67 places where disability is defined. Of the 67 places, there were 26 references to definitions contained in other code sections. However, the definition of disability under the ADA has evolved from other disability legislation that had been consistently applied in the court system until the ADA was challenged in court. As a result of these decisions, advocates have introduced and passed legislation to restore the protection Congress intended. The ADA Amendment Act (ADAAA) signed by President Bush on September 25, 2008, was the result of those efforts and will be discussed in the context of the transition of the ADA.
The unique nature of this transition is the more than 16 years of developing case law surrounding the 1990 ADA. The ADAAA was effective January 1, 2009. It is being speculated that the range of coverage and protection for individuals with disabilities will expand significantly. While it is essentially effective immediately, it is expected that areas of the ADAAA will be challenged, resulting in new case law. The case law regarding the ADAAA will take several years to develop in the court system, thereby extending this already protracted transition.
Bringing an ADA Perspective to the Practice of Case Management and Life Care Planning
Catastrophic injury/illness does not necessarily equal disability under the 1990 Americans with Disabilities Act (ADA) as has been interpreted by the courts. After more than 16 years of enforcement and litigation, the courts have struggled with the problem of proving whether an individual has a covered disability under ADA, and therefore is protected against discrimination. In fact, in
the words of a judge at the First Circuit Court of Appeals in a written decision, the word disability is considered to be a “term of art” (Heyburn, 2002). This clearly demonstrates the difficulty and subjectivity that have developed in defining disability under ADA.
Even though four prominent pieces of legislation were influential in forming the basis of ADA, there has been no unified consensus concerning the meaning of a disability. For example, the Rehabilitation Act of 1973 (PL 93-112) provided for vocational rehabilitation services on a national scale to qualifying persons with disabilities. It also mandated employment of persons with disabilities in federal government jobs and most federally funded programs. Section 504 of the Rehabilitation Act, one of four sections, is considered to be “the underpinnings for the ADA” (Blanck, 1999). In summary, the section provides that people with disabilities have equal employment opportunities and prohibits the exclusion based on disability of otherwise qualified disabled persons from participation in any program or activity receiving federal financial assistance.
The Education for All Handicapped Children’s Act, PL 94-142 (updated by PL 105-17 and termed the Individuals with Disabilities Education Act, or IDEA), had a strong influence in propelling the disabilities rights movement forward and was designed to educate and train children with severe disabilities who are likely to be placed into institutions (Blanck, 1999). Another important piece of legislation was the 1978 amendments to the Developmental Disabilities Assistance and Bill of Rights Act (PL 95-602). This legislation not only established a nationwide system of protection and advocacy, but also created a program of comprehensive services for persons with developmental disabilities. The Fair Housing Amendment Act of 1988, 42 USC 3601-3631, made it illegal to discriminate on the basis of disability in housing, real estate transactions, zoning, and the operation and services of apartments and condominiums. Despite the fact that the road to ADA has a long legal history that includes over 27 pieces of legislation (NCD, 1997), there was still no social consensus regarding what it means to be disabled by 1999 (Diller, 1999).
Each year, the U.S. Supreme Court grants review to approximately 80 to 90 cases. The Supreme Court has heard and provided decisions on 21 specific ADA cases since the law went into effect through the 2007 to 2008 term. They have reviewed numerous other ADA cases from lower courts and opined that the lower courts’ decisions should stand, referred to as stare decisis (let the decision stand). Five of the 21 cases have dealt with clarifying the definition of disability. As interpreted by the Supreme Court, however, it has been absolutely clear that a medical diagnosis is not automatically considered to be a disability under the ADA. There has been an inherent paradox in how the courts have opined regarding the definition of disability. For example, individuals who are severely ill or disabled and unable to perform the essential functions of a job under Title I of ADA have not been protected. If an individual can do a particular job, he or she has not been considered disabled and therefore is not protected (Vierling, 2000a, 2000b, 2000c, 2000d, 2001a, 2001b, 2002a, 2002b, 2002c, 2002d).
National Council on Disability and ADA
In 1984, Congress established the National Council on Disability (NCD) to make recommendations to promote equal opportunity for persons with disabilities. In 1986, the NCD issued a report, “Toward Independence,” recommending that a comprehensive law be passed. The NCD issued a follow-up report in 1988 entitled “On the Threshold of Independence,” and the council published the draft bill of what was to become the ADA. A revised ADA bill was sponsored by Senator Tom Harkin and Representative Tony Coelho in 1989. President George H. Bush signed into law on July 26, 1990, the ADA before an audience of more than 3000 American leaders from disability rights movements gathered on the White House lawn.
ADA Definition of Disability and the Five Titles
Disability, as defined in the ADA, is a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having an impairment (as cited in Vierling, 2002d). The Equal Employment Opportunity Commission (EEOC) issued guidelines for complying with the ADA law. Within the EEOC’s regulations was an expansion of the definition that was within the ADA legislation. The Supreme Court, however, has narrowed that definition considerably.
The ADA took effect July 26, 1992, 2 years after the signing by President George H. Bush. Title
I of the ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The following is a review of each major emphasis under all five titles and is not meant to be a full description of Titles I through V (Vierling, 2002d):
- Title I: Employment—affecting employers having 15 or more employees
- Title II: Public services—affecting all activities of state and local governments, with Subtitle B applicable to transportation provided by public entities
- Title III: Public accommodations and services operated by private entities—affecting privately operated public accommodations, commercial facilities, and private entities offering certain examinations and courses
- Title IV: Telecommunications—affecting telecommunications relaying services and closed captioning
- Title V: Miscellaneous provisions—including the relationship of ADA to other laws, the requirements for technical assistance, the role of the Architectural and Transportation Barriers Compliance Board, the coverage of Congress, and some additional definitions regarding coverage
ADA Restoration Act
Because of the Supreme Court decisions limiting the scope of the ADA, there have been several attempts to restore the law’s intended coverage by proposing numerous legislative changes through Congress. Twin versions of an ADA Restoration Act, S. 1881 and H.R. 3195, were introduced into Congress. The Restoration Act sought to address the problems with the ADA’s definition of disability by eliminating the “substantial limitation” on a major life activity requirement and prohibiting courts from considering whether a person uses mitigating measures.
The NCD concluded in a series of comprehensive reports, Righting the ADA (2002—2004) that the Supreme Court’s interpretation of the definition of disability altered the scope and coverage of the ADA. They concluded that “the majority of people with disabilities have no federal legal recourse in the event of discrimination, particularly in instances of employment discrimination.” It was hoped that the Restoration Act would restore Congress’ original intent
when it enacted the ADA in June 1990, that it should be a civil rights law that is inclusive and broadly interpreted.
The ADA Amendments Act of 2008
A compromise bill, the ADA Amendments Act of 2008, or ADAAA (S. 3406), was passed by both houses of Congress and on September 25, 2008, signed by President George W. Bush. The ADAAA significantly broadens the scope of protection intended by Congress to be available under the 1990 Act, but had been severely limited by Supreme Court decisions over the last 10 years.
The purpose of the ADAAA was stated in the first line of the bill, “to restore the intent and protections of the Americans with Disabilities Act of 1990.” The ADAAA was effective on January
1, 2009. The Act retains the ADA’s basic definition of disability as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. In terms of who is covered under the ADAAA, employers with 15 or more employees are going to be required to comply with the new amendments.
The ADAAA focus specifically on several main issues that have been narrowly interpreted by the courts. First, and most important, is the definition of disability. It retains the ADA’s basic definition, but changes the way the statutory terms are interpreted (i.e., substantially limited and major life activities). It also addresses the controversial decisions regarding the use of mitigating measures. It clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The new law addresses “regarded as” cases and whether the medical conditions are transitory and minor and whether reasonable accommodations should be provided to those individuals determined to be regarded as disabled. Finally, Congress emphasized that the definition of disability should be interpreted broadly.
Congress found that the current EEOC ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent by “expressing too high a standard.” Therefore, EEOC has been instructed to issue new regulations redefining “substantially limits” from its current definition (“significantly restricts”) to comply with the Act’s broader view. Various other agencies such as the U.S. Attorney General’s Office and the Department of Transportation have been instructed to issue revised regulations to serve as guidance in responding to the ADAAA.
Other changes include expanding the definition of major life activities (MLA) that have been delineated in the regulations by the EEOC and many activities that have not been recognized by the EEOC, for example, reading, bending, and communicating. The second list of major life activities in the new law includes those identified as major bodily function, for example, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
The ADAAA took a major departure from the five Supreme Court decisions related to considering the use of mitigating measures in determining whether an individual is disabled under the law. The new law states that mitigating measure (medications, prosthesis, medical supplies, equipment, and other auxiliary aids or services) should not be considered in the determination of whether an individual has a disability. The exception is that prescription eyeglasses and contact lenses may still be considered in assessing whether an individual is “substantially limited.” The ADAAA also states that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.
Under the ADAAA, Congress has declared that it provide a “clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, enforceable standards addressing discrimination” by reinstating a broad scope of protection. The law also defined the standard for being “regarded as disabled.” That standard is defined as “establishing that the individual has been subjected to action prohibited under the ADAA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” In “regarded as” cases, employers do not need to provide reasonable accommodation to individuals who are considered to be regarded as or perceived to be disabled. The individual must now show that the employer perceived them as having a physical or mental impairment, not that the impairment substantially limits a major life activity. This is a major change from the case law surrounding “regarded as” cases.
The amendments also state that “regarded as” claims cannot be based on impairments that are transitory and minor. Transitory is defined as an actual or expected duration of 6 months or less.
It is clear that the expanded definition of disability under the amendments will have an increasing effect on the number of individuals who will be considered “protected” by the new law. It is being assumed that there will be less emphasis on the assessment of whether an individual is “qualified” under the law and more on whether an employer had unlawfully discriminated against that individual. Some have speculated that with the all-expansive list of what qualifies as MLAs, the employer would be better off to assume that an impairment qualifies as a disability.
Providing reasonable accommodations will become even more important for the employer. In doing so, the employer will need to consider not only the current effects of an impairment, “but also what the effects would be if the impairment were in an active state.” The employer will find it even more advantageous to engage in the interactive process. Employers should be prepared to engage either applicants or employees in conversations related to providing reasonable accommodations to qualified individuals to enable them to perform the essential functions of the job in question.
Major Life Activities and the Burden of Proof
The five specific cases that have dealt with the definition of disability are Bragdon v. Abbott; Sutton v. United Airlines; Murphy v. UPS; Albertsons, Inc., v. Kirkingburg; and Toyota v. Williams (Vierling, 2002d). The precedent that has been established by the Supreme Court has been that there needs to be clear evidence to assist the court with a three-part analysis to determine whether a plaintiff has shown that he or she is substantially limited in a major life activity. After hearing the plaintiff’s evidence in his or her burden-of-proof phase, the court has applied the three-part analysis as follows (Vierling, 2002d):
- The court must determine whether the plaintiff has an impairment under ADA.
- It must identify the life activity on which the plaintiff relies in his or her case and determine if it constitutes a major life activity.
- It must decide whether the impairment in question substantially limits the major life activity identified by the plaintiff.
It is important to note that the plaintiff must assert that he or she is substantially limited in a specific major life activity. Then it is apparent that the plaintiff must articulate with precision the impairment alleged and how that major life activity is affected by that impairment. In addition, the courts have considered a number of other specific factors in their decision-making process.
For example, when evaluating whether an impairment substantially limits a major life activity, the lower courts were guided by Supreme Court decisions to consider the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or longterm impact or the expected permanent or long-term impact of, or resulting from, the impairment. However under the ADAAA, there will be less emphasis on the assessment process and more on whether the employer met its legal obligations.
The courts have required an individual assessment on a case-by-case basis. In this author’s opinion, this means that both a case management plan and a life care plan must specifically address issues that are related to the definition of a disability. Those issues have been clearly delineated by the EEOC following clarification by the U.S. Supreme Court. For example, as a direct consequence of the Sutton, Murphy, and Kirkingburg decisions (Vierling, 2002d), the EEOC issued instructions for field offices regarding the analysis of ADA complaints and addressing the use of mitigating measures in considering whether a person is disabled (EEOC, 1999). These instructions changed the procedure for field office staff investigating individual complaints and appeared in the Federal Register in June 2000. The instructions to field offices summarized and explained how the Supreme Court cases impact the process of charges filed under ADA. The instructions emphasized “the individualized analysis that must be used in determining a charging party has a disability as defined by ADA and whether a person is qualified” (as cited in Vierling, 2002d). However with the new law, there will be less emphasis on the evaluation or assessment of a defined disability. It is unknown at this time what the new regulations will state, how the court decisions will view this process, and what case law will develop surrounding the assessment process.
Another important aspect of the developing ADA case law has been that individuals are protected under ADA, not specific disabilities. Therefore, the court has stated that each individual has to be evaluated on a case-by-case basis to determine if the individual has a disability and is therefore protected. But under the new amendments, there will be less emphasis on this inquiry and more on whether acts of discrimination occurred.
Understanding the Development of Case Law
Precedent versus Persuasive Authority
A distinction needs to be made between precedent versus persuasive authority. In a legal sense, a precedent is “an earlier decision relevant to a case to be decided” (Elias & Levinkind, 1999). Once a court decides how a law should be applied to a particular set of facts, this decision controls later decisions by that and other courts. It is only a precedent as to a particular set of facts and the precise legal issues decided in light of those facts. The more the facts of legal issues vary between two cases, the less the effect of the precedent. If the circumstances of a current case match an earlier one, the previous case is considered a precedent and binding on the court.
Persuasive authority, on the other hand, is not binding on other courts, but if a case contains an analysis of legal issues and provides guidance for any court referring to it, it has persuasive authority. Generally speaking, the higher the court level, the more persuasive a decision may be on other courts in similar types of cases.
In rendering an opinion, a court may apply the prevailing interpretation of similar cases to the case being heard in its court. These cases are said to establish a precedent. The principles that are derived from other court cases make up the body of case law applied in new cases. This is part of the legal tradition of common law.
As previously noted, applying the principles from an earlier decision is the doctrine of stare decisis (Vierling, 2002d). These principles are extracted from court decisions at a variety of levels. These decisions are pertinent to the field of rehabilitation. Case law further evolves as court cases are resolved.
The Effects of Supreme Court Decisions on Lower Courts
U.S. Supreme Court cases are precedent for all courts with respect to decisions involving the U.S. Constitution or any other aspect of federal law. Also, Appellate Court and Supreme Court cases are precedent with respect to future decisions by the same court. The U.S. Court of Appeals’ cases are precedent for U.S. District Courts within their 12 circuits, plus a Federal Circuit Court. Opinions of the U.S. District Courts are never precedent for other courts. However, the decisions may have persuasive authority on other district courts’ decisions. As noted previously, the higher the court level, the more possibility for persuasive authority. State Supreme Court cases are precedent for courts only within that state.
From Case Law to Practice: Integrating Court Decisions into the Practice of Case Management and Life Care Planning
The Role of Mitigating and Corrective Measures in Determining Disability
In June 1999, the Supreme Court rendered opinions on a trilogy of ADA cases that have had a major impact on determining who is disabled (Vierling, 2002d). These decisions provided a new legal standard that has been used for defining disability under the ADA. However, with the passage of the 2008 ADA amendments, new case law will preclude the standard. The most significant issue that the Supreme Court dealt with was affirming the use of mitigating measures such as medications, corrective lens, prosthetic devices, and the body’s ability to compensate for an impairment to determine disability. As noted, this inquiry will be of less concern especially since the passage of the ADAAA. Now the inquiry is to be made without regard to the use of mitigating measures except for ordinary eyeglasses or contact lenses.
Single Job versus Class of Jobs
If a plaintiff is relying on demonstrating a substantial limitation in the major life activity of work, EEOC regulations and current case law have stated that he or she will need to satisfy this definition: he or she must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes compared to the average person having comparable training, skills, and abilities. To satisfy this definition, the plaintiff and his or her representative who is preparing either a vocational evaluation or a life care plan has been required to present information on the number and types of available jobs from which he or she is disqualified that use similar training, knowledge, skills, or abilities and are within a reasonably accessible geographic area. This information has helped the trier of fact to decide whether the individual’s impairment rises to the level of a disability and, therefore, falls within the protected class under ADA. Clearly, it
has been crucial that the rehabilitation professional provide very specific information well beyond the medical diagnosis or medical information from a physician. The rehabilitation professional is encouraged to review upcoming governmental agencies’ new regulations, specifically the EEOC as it relates to work as a major life activity with the passage of the ADAAA.
Toyota v. Williams Supreme Court Decision
In the Toyota v. Williams case (2002), the question before the Supreme Court was: what is the proper standard for determining whether an individual is substantially limited in performing manual tasks? Performing manual tasks is a specific major life activity. As a part of her case, Ms. Williams claimed that she was covered under ADA because her cumulative trauma injury prevented her from doing tasks associated with certain types of manual jobs. However, the Supreme Court said that the proper test for assessing whether an individual was substantially limited in performing manual tasks is whether the impairment prevents or restricts performing tasks that are of “central importance to most people’s daily lives.” In this decision, Justice Sandra Day O’Connor also made the distinction that routine or minor injuries not of a permanent or long-term nature are not protected under ADA.
Congress was very specific in the ADAAA in addressing the issues in the Toyota v. Williams decision. The Act stated that the decision in the Williams case “further narrowed the broad scope of protection intended to be afforded by the ADA.” Congress’ intent with the ADAAA was to restore a broader scope and expand the coverage that had been narrowed by this decision.
In the Williams case, work as a major life activity was again questioned by the Supreme Court. The court’s response to work as a major life activity has diminished the value of claiming it as an issue in an ADA claim. In addition, the Supreme Court said that the plaintiff must prove a disability by offering evidence that the limitation is substantial in terms of her own experience, reinforcing the standard that such assessments must be on a case-by-case basis. This, of course, reemphasizes that a full evaluation, whether it is a case management report, vocational evaluation, or life care plan, must be made by the rehabilitation professional. This decision supports the legal standard relating to alleging a protected disability under ADA, if claiming a substantial limitation in the major life activity of performing manual tasks. Rehabilitation professionals will need to assess and review in their plan the individual’s level of ability in performing manual tasks in his or her personal life. Manual tasks could include such things as ability to perform activities of daily living (ADL), housekeeping chores, and the ability to care for self and other family members. These are the types of real-world activities that the courts have been looking to assess. It is unknown at this time what the impact of the ADAAA will be on the assessment of performing manual tasks.
In the Williams decision, published in January 2002, the Supreme Court stated that ADA should be “interpreted strictly to create a demanding standard for qualifying as disabled” (Toyota v. Williams, 2002). As noted, this case law is refuted in the ADAAA, but may indeed be challenged in future cases as the assessment process continues to be in transition because of the status of the ADA.
Other Important Supreme Court Decisions
There are two other decisions that have created case law for which rehabilitation professionals should be familiar. In June 1999, the Supreme Court published its opinion in the Olmstead Commissioner, Georgia Department of Human Resources v. L.C. case, which has particular relevance to life care planners. In this case, the question presented to the Supreme Court was whether the
public service portion of ADA compels the state to provide treatment and habilitation services for persons with mental disabilities in community placement when appropriate treatment and habilitation can also be provided to them in state and mental institutions? The second issue was that if ADA does include providing treatment and habilitation in community placement, does that exceed the enforcement power granted to Congress?
In a vote of 6 to 3, the Supreme Court determined that states are required 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. This would also be under the condition that transfer from institutional care to a community-based program would not be opposed by the individual and that the placement can be reasonably accommodated. The state must also take into consideration the resources available and the needs of other individuals within the state facility.
On June 18, 2001, President George W. Bush signed Executive Order 1.3217, titled “Community- Based Alternatives for Individuals with Disabilities.” This order provided assistance from the federal government to states to implement the Supreme Court decision in Olmstead. The goal of these grants was to assist people with disabilities to do the following (Rubinger & Gardner, 2002):
- Live in the most integrated community setting appropriate to their individual support requirements and preferences
- Exercise meaningful choices about their living environments, the providers of services they receive, the types of support they use, and the manner by which services are provided
- Obtain quality services in a manner as consistent as possible with their community preferences and priorities
As part of this initiative, President Bush proposed an increase in funding to help transition Americans with disabilities from institutions to community living. This is clearly another example of the integration of case law in providing valuable resources for rehabilitation professionals to assist their clientele.
The next decision to be discussed from the Supreme Court was Cleveland v. Policy Management Systems Corporation (1999). In this case, the question before the court was whether the application for, or receipt of, Social Security disability benefits precludes a person with a disability from bringing an ADA claim. The court recognized that there may be many situations in which the claim for Social Security disability benefits and an ADA claim may exist side by side. The court stated that because the qualification standards for Social Security benefits and ADA are not the same, an application for receiving Social Security benefits is not inconsistent with being a qualified individual with a disability under ADA. The court, however, did state that the plaintiff must provide an explanation that he or she can still perform the essential functions of the job with or without reasonable accommodations. The Cleveland case demonstrates to the rehabilitation professional the importance of providing reasonable accommodation under ADA. The rehabilitation professional should also be aware that there is the possibility that an individual receiving Social Security benefits would still be protected under ADA.
Court Decisions and Their Impact on Rehabilitation and Life Care Planning Practice
Whether rehabilitation professionals are serving in an advocacy role or as an objective evaluator, they have the responsibility to provide as accurate an assessment of the needs of the client as
possible. Courts have provided specific guidelines in the form of case law to assist in making informed decisions in future cases. The life care planner needs to be knowledgeable about the case law to effectively provide appropriate data, particularly for vocational and expected future need opinions.
As already noted, court decisions affect EEOC’s guidelines. The trilogy of ADA decisions in 1999 was the impetus for the publication of new instructions to the field offices regarding analyzing charges addressing disability and who is qualified under ADA. It was also the impetus for Congress to restore the protection afforded under the ADA that had been narrowed by the Supreme Court through the amendment legislation. Another example is the EEOC issuing new “Enforcement Guidelines on Reasonable Accommodation and Undue Hardship” under the Americans with Disabilities Act on October 17, 2002. These guidelines were a direct result of the Supreme Court decision in the 2001—2002 term on U.S. Airways, Inc. v. Barnett (2002). The updated enforcement guidelines revised the standard for reasonableness. The reasonableness of an accommodation is now evaluated by whether it is considered not only effective, but also feasible or plausible for the typical employer. In the Barnett decision, the Supreme Court suggested the possibility that special circumstances may exist for providing reasonable accommodations to an individual despite the seniority system. Without the existence of any special circumstances, the court determined that it would be unreasonable for an employer to reassign an employee to another job, which would violate the seniority system.
Under the standards from the Barnett decision, the plaintiff has the burden to prove that an accommodation is reasonable. Then the burden shifts to the employer to provide case-specific evidence proving the accommodation would cause an undue hardship. The guidelines also provide examples of what would be reasonable and unreasonable accommodations. The rehabilitation professional can be a valuable asset by understanding the ADA case law and new legal standards. Following are examples of case law pertaining to providing reasonable accommodations.
■ Seniority systems prevail over reasonable accommodation. However, employees may identify special circumstances that lead to the employer providing reasonable accommodation.
■ The concept of providing reasonable accommodation is to accommodate a person’s disability rather than accommodate the person with the disability.
■ The employer must make reasonable accommodations to the limitations of the disability rather than for those limitations.
■ Reasonable accommodation applies to obstacles exclusively related to the workplace.
■ Accommodations must be reasonable, feasible, and plausible.
■ Employers have a mandatory obligation to engage in an interactive process with employees regarding making reasonable accommodation.
■ The employer’s obligation to be involved in the interactive process goes well beyond the first attempt and should continue when the employer is aware that the accommodation is not working.
■ The duty to accommodate is a continuing duty that is not exhausted by one effort.
Outcome of ADA Title I Cases
The rehabilitation professional should be aware that courts have decided in favor of employers in most ADA litigation cases. In a survey identifying court decisions from the year 2007, the American Bar Association’s Commission on Mental and Physical Disability Law Reporter shows that employees prevailed in less than 5% of the cases. It has also been noted that 80% of all employment cases are
dismissed in motions for summary judgment. A motion for summary judgment is granted when the court believes no genuine issue of material fact exists. The party filing the motion is entitled to prevail as a matter of law. As a result, 80% of the ADA Title I cases never reach a jury. When they do, the vast majority of cases are won by employers. Since the period from 1992 to 2006, the average win for employers is 95.4%.
Comparison of the 1990 ADA and the ADA Amendments Act
Following is a comparison of five specific issues addressed by Congress in its effort to restore the intent and protections afforded individuals with disabilities under the 1990 ADA:
(As Construed by the Courts)
ADAAA (As Amended)
|Mitigating measures||To be considered in the process of determining whether a person has an impairment that is substantially limiting.||Not to be considered in determining whether a person has an impairment that is substantially limiting except for ordinary eyeglasses or contact lenses.|
|“Substantially limits”||Impairment substantially limits an MLA if it prevents or severely restricts the individual from performing the activity.||EEOC and Supreme Court have incorrectly interpreted — should be rewritten to provide a broader scope of coverage.|
|The “major life activity” requirement||Must be an activity that is “of central importance” to most people’s daily lives.||Expanded list of major life activities to also include the operation of major bodily functions.|
|Episodic conditions and multiple major life activities||Some courts have held that individuals must be limited in more than one major life activity. Other courts have held that episodic or intermittent impairments are not covered under the law.||An impairment that substantially limits one major life activity is sufficient. Impairments that are episodic or in remission are disabilities if limiting when the condition is considered active.|
|Regarded as having a disability||Covers individuals who are “regarded as” disabled. Courts have required individuals to show what employers were thinking.||Can establish coverage under the “regarded as” section by showing that they were subjected to an action prohibited by ADA based upon an actual or perceived impairment. No accommodations for those found to be “regarded as.”|
Summary and Conclusions
As of the 2007—2008 term, the Supreme Court has heard and provided decisions in 21 specific ADA cases (Albright, 2007). Five of the cases involved the definition of disability. These decisions have led to Congress passing the ADA Amendments Act of 2008 that seeks “to restore the intent and protections of the Americans with Disabilities Act of 1990.” The ADA amendments focus specifically on several main issues that have been narrowly interpreted by the courts. First and most important is the definition of disability. It retains the ADA’s basic definition, but changes the way the statutory terms are interpreted, for instance, substantially limited and major life activities. It also addresses the controversial decisions regarding the use of mitigating measures. It clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The new law addresses “regarded as” cases and whether they are transitory and minor and whether reasonable accommodations should be provided to those individuals determined to be regarded as disabled. Finally, Congress emphasized that the definition of disability should be interpreted broadly.
Of particular relevance is the Olmstead case, which may have implications for lifelong care of people with mental and developmental disabilities, since community-based programs may be legally required over institutional care. In addition, the vocational aspects of a life care plan may require a knowledgeable expert to ensure opinions are defensible.
These Supreme Court decisions have altered and, in many cases, narrowed the definition of disability and, consequently, who is protected under ADA. Matthew Diller, Fordham University law professor, has stated, “The courts have seized upon the definition of disability as a way to stop cases, and in effect, shield an employer’s conduct from scrutiny” (1999). The courts have taken the position that ADA should be strictly interpreted, creating a demanding standard for qualifying as disabled. The records indicate that was not the intent of the Congress. As demonstrated, only a very small number of cases dealing with the actual discrimination issues are heard by a judge or jury. The ADA Amendments Act was meant to correct this situation.
The plaintiff has had the burden to prove that he or she has a disability as a gateway step to presenting his or her case before a judge or jury. This has proven to be a difficult step. Congress’ legislative goal with the ADAAA was to correct this and focus the emphasis on the possible act of discrimination rather than the assessment of whether the individual has a disability. The courts have provided very specific guidelines for presenting information within an evaluation to assist all parties concerned to understand the circumstances and needs of the plaintiff. In practice, a detailed assessment based upon guidelines provided by ADA case law can be a valuable source of information for the judge or jury in adjudicating ADA cases. Some of this case law has been precluded by the ADA Amendments Act, adding yet another chapter to the intent of Congress to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad coverage.” It has been demonstrated in this post that protection of people with disabilities under ADA has not been automatic, even if one is in a catastrophic impairment situation.
The unique nature of the ADA transition is the more than 16 years of developing case law surrounding its effective date of July 1992. The ADAAA was effective January 1, 2009. It is being speculated that the range of coverage and protection for individuals with disabilities will expand significantly. While it is essentially effective immediately, it is expected that areas of the ADAAA will be challenged, resulting in new case law. The case law regarding the ADAAA will take several years to development in the court system, thereby extending this already protracted transition.