Too Disabled or Not Disabled Enough?

The Supreme Court Creates a Catch-22

Joe, who has a leg amputation, is rejected for a job because of the amputation. When he seeks to challenge the rejection under the ADA, he is thrown out of court because he is not considered “disabled” under the ADA. Unfortunately, individuals with a wide range of impairments find themselves in the same position. A striking 95% of plaintiffs are denied their day in court under similar circumstances.

How is this possible, and does this result reflect Congressional intent in passing the ADA?

Congressional Intent

The hallmark public policy of the ADA is that people with disabilities, for the first time in history, would be judged based on merit. There can be absolutely no debate that Congress intended to prohibit an employer (or other entity covered by the ADA) from making an adverse decision based solely on the impairment of that individual, choosing instead to require decisions based on reliable medical evidence and qualifications. This is why Congress adopted a three prong definition of disability, as follows:

The term “disability” with respect to an individual, is defined as (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 impairment; or (C) being regarded as having such an impairment.

As the Supreme Court stated in the landmark Arline decision[1], this definition of disability demonstrated

Congress’ acknowledg[ment] that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.

In adopting this definition in the ADA, Congress reiterated it’s intent that the definition be broad enough to allow individuals subjected to the types of discrimination covered by the Act an opportunity to demonstrate their qualifications and abilities. Contrary to this intent, under current interpretations by the Court, an individual can be too “disabled” to get a job but not “disabled” enough to challenge the adverse action by the employer.[2]

The Court’s decisions affect all aspects of the definition of disability. Since the definition is a threshold determination in all ADA cases, any effort to effectuate Congressional intent to allow persons with disabilities to be judged on their merits would need to address adverse rulings concerning the following key components:

  • “substantial limitation”
  • mitigation measures
  • major life activities
  • “regarded as” (3rd) prong of the definition

The Supreme Court Cases on Substantial Limitation; Sutton trilogy, Williams v. Toyota

The Supreme Court’s ADA rulings on what constitutes a “substantial limitation” of a major life activity (a requirement of the 1st prong of the definition), have resulted in exclusion from coverage of people with a wide range of disabilities that Congress clearly meant to cover. By employing a hyper-technical analysis, the Court not only undermines Congressional intent, but creates absurd and indefensible public policy.

Mitigating Measures

In Sutton and two other cases decided on the same day (the Sutton Trilogy), the Court held that in determining whether a plaintiff has a substantial limitation the courts should consider the person’s condition in its corrected state.[3] For example, in the case cited at the beginning of this paper, the inquiry into whether Joe was substantially limited would be determined by his abilities while using his prosthesis. The determination, thus made, would (and did) render Joe not substantially limited, and therefore, not “disabled” for purposes of the ADA.

The irony is obvious. The employer rejects the applicant because of the condition in the unmitigated state and succeeds in defeating ADA coverage because of the applicant’s condition in it’s mitigated state. To add insult to injury, Joe would have shown he was qualified because of his abilities using the prosthesis. So, the very evidence Joe would need to prove his qualifications is used against him to demonstrate that he is not substantially limited, and hence, not “disabled”. Joe never gets his day in court, and the unemployment of persons with disabilities continues unabated.

This decision has also dealt a devastating blow to individuals who rely on medication to mitigate the effects of their disabilities. For example, if an individual with epilepsy or diabetes manages through medication and discipline to control the effects of the condition, she will be unable to bring an ADA case — even if she was fired from her job simply because she has the condition, and even if the condition has no impact on her job performance. In other words, the employer is free to act on every bigoted and irrational impulse that it may have toward a particular disability. Make no mistake about it, this danger is not imagined — many employers respond to conditions like epilepsy and diabetes in precisely this way. A person with controlled epilepsy is five times as likely to be unemployed as her non-impaired counterpart.

Threshold Test — Raising the Bar

In Williams v. Toyota, the Court declared that the threshold determination, the definition of disability “needs to be interpreted strictly to create a demanding standard for qualifying as disabled”. This new rule contradicts the rule established in Arline and relied on by Congress in adopting the ADA definition — that the definition of disability should be interpreted broadly so that the real question of qualifications for the job (or other benefit) can be determined based on merit. This high threshold standard has served to throw out cases of qualified individuals who face discrimination based on what is determined to be a non-substantially limiting disability. For example, people with epilepsy and diabetes have been unable to challenge adverse actions based on their diabetes or epilepsy because their seizures only last a few seconds or only occur episodically and, therefore, are determined not to constitute a substantial limitation on a major life activity. There is no question that Senator Bob Dole, a chief sponsor of the ADA, would not be “substantially limited” enough to meet the Supreme Court’s “strict standard” of disability under Williams.

Major Life Activities

Another problematic aspect of the Williams’ case, is the Court’s narrow view of major life activities. The Court held that “to be substantially limited…, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives,” referring specifically to “household chores, bathing and brushing ones teeth.” This reflects the Court’s disconnect between the definition of disability and the purposes of the ADA.

The fact that a person with a disability may be able to brush his/her teeth says nothing about whether he/she faces discrimination in the work place. Moreover, the very reason that the person with a disability may be able to function independently at home may be because of accommodations and modifications. Yet, after Williams this individual would be unable to challenge his/her employer’s refusal to provide accommodations at work.

“Regarded as” prong

The above interpretations would be less devastating if the “regarded as” prong of the definition worked as designed. The “regarded as” prong of the definition was intended to cover individuals without substantially limiting impairments or with no impairments at all, who nonetheless suffered adverse treatment based on impairment.

However, in Sutton, the plaintiffs could not establish that they were “regarded as” disabled based on the employer’s assumption that their impairments rendered them unqualified. In Sutton, the plaintiffs had the burden of demonstrating that the employer believed the impairment to be substantially limiting. To establish this state of mind of the employer, the courts have required plaintiffs to show that the employer regarded him/her as unable to get a job elsewhere.

The courts have totally undermined Congressional intent by imposing the 1st prong “substantial limitation” test to the “regarded as” prong. This has resulted in absurd public policy. A person can face outright exclusion by an employer because of his/her impairment, and yet, be unable to challenge the adverse action because the employer claims that the impairment is not severe enough to be considered a disability under the ADA because plaintiff could get a job elsewhere.

Hence, an employer may refuse to hire or fire someone because of their disability, and actually defeat coverage by showing that other employers have less discriminatory job requirements. Substitute any other protected group to the analysis and the absurd result is patently clear. We don’t hire Jews, but all our competitors do…. So long as the individual challenging the adverse action could (theoretically) get a job elsewhere, there is no right to challenge the rejecting employer’s adverse action under the Supreme Court’s ADA jurisprudence.

Action Needed

The ADA definition of disability needs to be amended to reverse the negative consequences of the Supreme Court decisions described above. There are different approaches which could be taken. One approach would be to develop a definition which focuses attention on prohibited conduct rather than the severity of the plaintiff’s impairment. This approach has the benefit of eliminating the words that have caused the problems. The current definition of disability has been difficult to apply in a civil rights context. A “strict test” of eligibility focused on the severity of the person’s disability makes sense in a benefits context; but, in the civil rights context, the focus should be on how the plaintiff was treated.

Another approach would be to make technical amendments to specifically correct each of the problems described above. This approach has the benefit of looking more like a “restoration” of Congressional intent.

We look forward to working with you to develop legislation which will restore the laudable goal of the ADA — judging all individuals based on merit, not on myths, fears and stereotypes about actual or perceived disabilities.

[1] Arline involved the definition of disability under the ADA’s predecessor, Section 504 of the 1973 Rehabilitation Act. Congress adopted this definition in the ADA.

[2] Although this memorandum focuses on employment, the restrictive definition of “disability” affects all aspects of the Act, including access to government programs and public accommodations.

[3] This decision contradicts Congressional direction that a person’s disability should be assessed without reference to the availability of devises, medications and other assistive devices that may mitigate the effects of the disability.