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Supreme Court Decisions Require ADA Revision

August 1, 1999
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Related Topics: Disabilities, Featured Article
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The recent Supreme Court decisions regarding the Americans with Disabilities Act (ADA) were received with mixed emotions. For disabled workers, the rulings were considered a disappointing setback. For employers, the news brought relief.

The ADA, which was established in 1990, prohibits discrimination in employment on the basis of physical or mental disabilities. Prohibited are discriminatory acts against individuals who: 1) are disabled, 2) have a record of being disabled, or 3) are regarded by an employer as being disabled. Disability is defined as a physical or mental impairment that substantially limits one or more major life activities.

But what counts as a substantial limitation to a major life activity is often unclear, and is an issue that’s caused a sizable amount of grief for employers. Ever since the ADA was enacted, employees and employers have debated what’s considered a disability, how it’s determined and what employers should do to accommodate it.

The Supreme Court decisions have helped shed light on some of this confusion by providing clearer rules as to who is entitled to such protections, i.e., who is disabled. In two of the recent case decisions, the Court held that mitigating measures that alleviate the effects of disabilities must be considered when determining if an employee is disabled under the ADA. In another case, it was determined that employers are permitted to apply federal safety standards requiring employees to meet visual-acuity standards for certain job activities, such as driving. And in the final case, the Court clarified that employees who apply for Social Security Disability Insurance benefits are not automatically precluded from filing ADA claims.

The decisions enforce the need for HR professionals to accurately identify individuals with disabilities, and evaluate the nature and extent of each employee’s and applicant’s impairment.

Details of the individual cases are as follows:

CASE I:
Sutton vs. United Air Lines Inc. (No. 97-1943)

Decision Date:
June 22, 1999

Key Questions:
Is the existence of a disability to be determined with or without reference to corrective measures? Does the inability to perform one job substantially limit an employee’s major life activity of working?

Facts of the Case:
Karen Sutton and Kimberly Hinton, twin sisters with severe myopia, whose uncorrected visual acuity is 20/200 in one eye and 20/400 in the other, applied for commercial-airline pilot positions with UnitedAir Lines. By using corrective glasses or contact lenses, both sisters have 20/20 vision and function normally.

During their job interviews, the two women were advised that United required uncorrected visual acuity of 20/100 or better of all its pilots, and neither was offered a position.

The twins sued under the ADA, alleging they had been denied positions based on their disabilities, or because United regarded them as disabled.

U.S. Supreme Court Ruling:
Majority vote (7-2)
The determination of whether an individual is disabled, or substantially limited in a major life activity, should consider measures that mitigate the individual’s impairment. The U.S. Supreme Court held that the Equal Employment Opportunity Commission’s (EEOC’s) guidelines, which provide that mitigating measures should not be considered, are "an impermissible interpretation of the ADA." A person isn’t disabled if his or her impairment is corrected and does not substantially limit a major life activity.

United’s visual acuity requirement did not support a claim that the twins were regarded as disabled because other jobs exist for which they are qualified.

CASE II:
Murphy vs. United Parcel Service Inc. (No. 97-1992)

Decision Date:
June 22, 1999

Key Question:
Is the inability to perform one job sufficient to determine if a person is substantially limited in his or her ability to work?

Facts of the Case:
Vaughn Murphy, hired by United Parcel Service as a mechanic, was required to drive commercial motor vehicles. UPS required that drivers of commercial vehicles meet the Department of Transportation’s (DOT) health requirements, which preclude high blood-pressure levels likely to interfere with the ability to safely operate such vehicles.

Murphy’s untreated blood pressure was 250/160, but when medicated, he was able to function normally. At the time of his hire, Murphy’s blood pressure was 186/124, which disqualified him for DOT health certification. Murphy was erroneously granted certification and hired. Later, the error was discovered and Murphy was retested. When Murphy was fired because his blood pressure exceeded DOT requirements for commercial drivers, he sued alleging disability discrimination.

U.S. Supreme Court Ruling:
Majority vote (7-2)
Relying on the Sutton case decision, the Court held that, when mitigation of Murphy’s high blood pressure is considered, Murphy is not disabled. UPS’ determination that Murphy was unable to perform one specific mechanic position does not support a claim that UPS regarded Murphy as disabled. Because Murphy was qualified to perform several other mechanic positions, he was not regarded as substantially limited in one or more major life activities.

Mitigating measures must be considered in determination of disability.
The message conveyed by the Sutton case is clear: The ability to mitigate the effects of a disability, through natural or artificial measures, must be considered when determining whether an individual is disabled.

The Court held the EEOC guidance that not considering mitigating measures "is [an] impermissible interpretation of the ADA." Timothy Bland, a partner in the law firm of Ford & Harrison LLP in Memphis, Tennessee, wrote amicus (friend of the court) briefs in the Sutton and Murphy cases, advocating the principle that both positive and negative effects of mitigation must be examined, which the Court adopted.

In its analysis, the Court first considered the definition of "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities." The Court held that a substantial limitation only exists when a person is "presently—not potentially" limited by a condition. If a condition is corrected by some means, there is no present limitation.

Second, the Court determined from looking at the numbers cited in the legislative history of the Act that Congress intended to exclude all individuals with no major, present limitation. Otherwise, the number of people anticipated to be covered by the Act would’ve been two to three times higher.

Third, the Court reasoned that not considering how specific mitigating measures affect an individual would lead to speculation about how a condition generally affects people. "This is contrary to both the letter and the spirit of the ADA."

Fourth, mitigating measures do not automatically preclude a disability. For example, individuals who use prosthetic limbs or wheelchairs "may be mobile and capable of functioning in society, but still be disabled because of a substantial limitation on their ability to walk or run."

Fifth, when applicants are precluded from only one position, their ability to work is not substantially limited. Employers are free to make decisions based on preferable characteristics that "do not rise to the level of an impairment—such as one’s height, build or singing voice." Employers are also "free to decide that some limiting—but not substantially limiting—impairments make individuals less than ideally suited for a job."

The Court held that a substantial limitation only exists when a person is "presently—not potentially" limited by a condition. If a condition is corrected by some means, there is no present limitation.

The Murphy case reasserted Sutton’s holding regarding mitigating measures. The Court applied the principle that the inability to perform a single job does not constitute a substantial limitation of a major life activity in cases where an employee claims he or she was regarded as disabled.

An employer that considers an employee as unable to perform one particular job "is insufficient, as a matter of law, to prove that [the employee] is regarded as substantially limited in the major life activity of working." Bland notes that employees whose conditions are mitigated retain protection under the "regarded as" provision of the ADA if their ability to work remains substantially limited.

Bland also points out that these cases don’t resolve what happens when a person can mitigate his or her condition but chooses not to. Janet Randolph, a principal with Human Capital Consulting based in Newport Beach, California, feels that the decisions establish a reasonable limit to the ADA’s coverage and encourage people with correctable conditions to take advantage of available mitigation methods.

The ADA requires each case to be evaluated on an individual basis—no hard and fast rules exist. The Sutton and Murphy decisions simply add the requirement that mitigating measures and their effect on each individual’s condition must be considered when determining disability.

Because most HR professionals already individually review disability claims, these cases won’t change HR’s day-to-day protocol. However, clarification of the definition of disability is welcome news.

Because most HR professionals already individually review disability claims, Steve Shienfield, an attorney with Whitman, Breed, Abbott & Morgan in New York City, says these cases will not change HR’s day-to-day protocol. However, he believes that the clarification of the definition of disability is welcome news.

And evaluating each case separately is exactly what Patricia Tessier, manager of employment at Experian, a credit-reporting agency in Orange, California, will continue to do. The company looks first and foremost for qualified candidates who are capable of performing the requisite job functions. If such an employee requires accommodation because of a disability, the company is more than willing to provide assistance. The Court’s recent rulings won’t change their approach.

CASE III:
Albertsons Inc. vs. Hallie Kirkingburg (No. 98-591)

Decision Date:
June 22, 1999

Key Question:
When a government safety standard exists, but the government occasionally grants waivers from its requirements, must employers justify enforcing that standard without providing an opportunity to apply for a waiver?

Facts of the Case:
When Hallie Kirkingburg was hired by Albertsons as a truck driver, he was required to undergo a medical evaluation to ensure that he met the DOT’s visual acuity requirements for interstate commercial vehicle operators. Kirkingburg suffered from uncorrectable amblyopia (lazy eye) resulting in 20/200 vision in his left eye and monocular vision accompanied by problems with depth and peripheral perception. Despite the DOT’s regulations requiring corrected distant visual and binocular acuity of 20/40, Kirkingburg was erroneously certified for the position.

In November 1992, Kirkingburg was re-examined, told that he did not meet the DOT requirements, and fired despite his application for a waiver. Later, when Kirkingburg secured a DOT waiver, Albertsons refused to rehire him. Kirkingburg sued under the ADA for failure to accommodate.

U.S. Supreme Court Ruling:
Majority vote (7-2)
The Court considered if Kirkingburg’s monocular vision was a disability, and discussed the coping mechanisms that Kirkingburg’s brain had developed, likening them to other mitigating measures such as glasses. The Court determined that individuals with monocular conditions must individually demonstrate if they are substantially limited, but did not decide if Kirkingburg was disabled.

The holding in the Albertsons vs. Hallie Kirkingburg case reveals that employers may enforce federal safety standards, even when the government permits waivers of those standards under certain circumstances.

Standards that tend to screen out disabled applicants are permissible when job-related and consistent with business necessity. An employer is permitted to enforce government safety standards, without violating the ADA, even if waivers from those requirements have been granted. Otherwise, an employer would be required to justify government standards on a case-by-case basis.

Compliance with safety standards doesn’t violate the ADA.
The holding in the Albertsons case reveals that employers may enforce federal safety standards, even when the government permits waivers of those standards under certain circumstances. David Diamond, an attorney with Proskauer Rose in New York City, agrees with the holding and feels that "as long as employers apply government standards in an appropriate manner under the proper circumstances, they shouldn’t be required to justify federal regulations."

The Court emphasized that visual-acuity standards were developed to ensure safe operation of commercial trucks, and haven’t been changed, even though the DOT grants waivers to certain drivers. The Court characterized the waiver program as "an experiment with safety" that employers are not required to accept. However, Bland thinks employers will have to honor waivers when they’re granted to employees or risk being viewed as failing to accommodate disabilities. In general, employers are free to use governmental regulatory standards in their job requirements without having to defend them.

The Supreme Court stated the appellate court for the Albertsons case was "too quick to find a disability" in monocular vision, stressed the necessity for individualized evaluation, and noted that "these variables are not the stuff of a per se rule."

CASE IV:
Cleveland vs. Policy Management Systems Corp. (No. 97-1008)

Decision Date:
May 24, 1999

Key Question:
Is an individual precluded from asserting an ADA claim when he or she has claimed an inability to work on a Social Security Disability Insurance benefits application?

Facts of the Case:
Carolyn Cleveland, who worked for Policy Management Systems conducting background checks, suffered a stroke that damaged her concentration, memory and language skills. Cleveland applied for Social Security Disability Insurance (SSDI) benefits, claiming to be "unable to work." Her request for SSDI was denied.

Later, Cleveland was fired and granted SSDI benefits retroactive to the date of her stroke. Cleveland brought suit under the ADA, alleging that the company had terminated her without reasonable accommodation.

U.S. Supreme Court Ruling:
Unanimous
The Supreme Court held that "pursuit, and receipt, of SSDI benefits does not automatically prevent the recipient from pursuing an ADA claim," and that no special presumption against ADA claims in those circumstances exists. While the Social Security Act (SSA) considers a disability without accommodation, the ADA considers one’s ability to perform the essential functions of a job with accommodation. Therefore, circumstances exist where both standards may be met. However, the individual who has declared an inability to work must explain how the SSDI claim does not contradict the ADA claim.

Application for SSDI benefits doesn’t preclude ADA suit.
Though the EEOC guidance provides that representations of inability to work made in connection with disability claims don’t automatically bar ADA claims, several circuit courts had held to the contrary.

The Court supports the EEOC viewpoint that the two standards are not mutually exclusive, and emphasizes the different standards employed in decisions on SSDI and ADA claims. "The result is that an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without it."

Mere application for SSDI benefits should not preclude the filing of a claim under the ADA, or vice versa. However, an ADA claimant must explain why the ADA claim doesn’t contradict the statements he or she made in an SSDI application, and retains the burden of proving his or her ability to perform the essential job functions with or without reasonable accommodation.

What do these cases mean to HR overall?
When dealing with ADA issues it’s important that HR professionals keep the following in mind:

  • Each case must be handled on an individual basis.

  • To determine whether an individual is disabled, consider the essential job functions, the person’s ability to perform those functions with mitigating measures and with or without reasonable accommodation, and the number of other jobs that exist that the individual can perform.

  • When dealing with applicants, make these determinations only after offering employment.

These four cases failed to clarify other important ADA provisions, such as: the reasonable accommodation requirement ("What is the relationship between the ADA and collective bargaining agreements or other seniority systems?"), undue hardship as an employer’s defense ("Must the employer create new jobs or transfer an employee to another location?"), and the extent of mental impairment which an employer can reasonably be expected to accommodate ("Is it safe to consider attendance a basic essential job function?").

Given the complexity of ADA considerations, employers should centralize this decision-making function and continually train those who are involved with the process. In the final analysis, human resources professionals should pay close attention to the recent Supreme Court admonition: the necessity of dealing with each potentially disabled person on an individual and unstereotyped basis.

Workforce, August 1999, Vol. 78, No. 2, pp. 60-67.

Recent Articles by James E. Hall, Mark T. Kobata, Marty Denis and D. Diane Hatch

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