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Not Exactly What Congress Intended

by Kimberly Bartman

Fall 2003, Vol. 66, No. 3

Imagine that you are one of the approximately one million Americans with Human Immunodeficiency Virus (HIV). You are fortunate in that the virus was diagnosed early. With the advances in medicine, you are able to carry on with most aspects of your everyday life without much trouble. You are able to cook, clean and play with your children. But your energy level has dropped, and your medication sometimes makes you drowsy or nauseated. You are a corporate associate in a large law firm, and, lately, you have not been able to work as hard as you once could.

You have exceeded your billable-hour goal every year and, despite the recent downturn in the economy, you were the only one of the ten associates in your class to receive a performance-based bonus last year. This year, however, the effects of your medication have caused you to miss nearly two weeks of work. Although your firm's vacation policy allows you four weeks of paid leave per year, the two weeks you missed mean that you will not meet your billable goals this year. Your employer is aware of your HIV status and has agreed to let you work on a modified schedule when the effects of your medication do not allow you to pull all-nighters at the printer. You have not missed any major meetings with clients and have agreed to delegate some of your work to more junior associates to ensure filing deadlines are met. You realize that your supervising partners have passed you over for recent high-profile projects. Finally, your firm is forced to make cutbacks, and you are one of the first to be laid off.

Are you the victim of employment discrimination based on your HIV status? Your employer may argue that your inability to work long hours disqualifies you for such a demanding job. Can you seek legal redress under the Americans with Disabilities Act (ADA)? You can if you prove that you are a qualified individual with a disability who can perform essential job functions with or without "reasonable accommodation." To determine whether you can seek legal redress under the ADA, you must closely analyze several highly litigated terms within the ADA, a statute that was meant to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." For example, does your HIV status qualify you as "disabled" under the ADA?

As this paper will show, under the court's narrow definition, you must show that your disability "substantially limits" a major life activity "of central importance to most people's daily lives" while at the same time you risk the possibility that producing such evidence will also show you are unqualified for the job. If you do qualify as "disabled," can your firm reasonably accommodate you by modifying your work schedule? Your firm could respond that maintaining associates on a modified work schedule is not a "reasonable accommodation," but imposes an "undue hardship" on the firm in light of the struggling economy. Even if you are "disabled" and a modified work schedule is a "reasonable accommodation," your employer may justify your termination because it has determined that your impairment directly threatens your own health according to a recent court-approved Equal Employment Opportunity Commission (EEOC) regulation. Allowing an employer to foreclose opportunities for a disabled individual based on paternalistic concerns about what is best for the individual contradicts the ADA's anti-discrimination goals.

This paper will show how the court has restricted the class of individuals that Congress intended the ADA to protect. Part I will outline the ADA's goals with respect to redressing discrimination in employment.

Part II will examine how three of the Supreme Court's most recent decisions, Toyota Motor Mfg., Kentucky, Inc. v. Williams, U.S. Airways, Inc. v. Barnett and Chevron U.S.A., Inc. v. Echazabal, have restricted the ADA as an effective tool to redress disability discrimination in the workplace. Toyota limited the definition of "disability" by finding that to qualify as disabled under the ADA, "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." Barnett restricted the standard for determining "reasonable accommodation" and created new opportunities for employers to rely on the "undue hardship" exception. Echazabal, in interpreting the "direct threat" defense, expanded defenses available to employers who are accused of ADA violations.

Part III will highlight portions of the court's recent decisions that comport with the ADA's goals, such as the notion that preferences may be necessary to achieve equal opportunities for disabled individuals. By relying on such "loopholes" in the court's recent opinions, plaintiffs" attorneys can maximize their chances of succeeding with ADA claims despite the obstacles the court has recently placed in their way.

Part I: Why We Need the ADA

In 1990, Congress enacted the ADA "to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities." Title I of the ADA covers discrimination in employment. Congress intended to eliminate prejudicial policies that unfairly deny opportunities to qualified individuals with disabilities. ADA proponents felt that disabled individuals needed more expansive protections than those already available under the Rehabilitation Act of 1973, which protects "handicapped individuals . . . from employment discrimination by the federal government." The ADA extended coverage to private entities.

Congress found that the "continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis." Congress recognized that many people, including employers, perceive the inferior social and economic status of individuals with disabilities as an inevitable consequence of their disabilities. The problems that individuals with disabilities encounter, however, are not the result of their disabilities, but instead a consequence of discriminatory policies based on unfounded stereotypes. Congress found that outmoded perceptions and deeply-rooted prejudices against individuals with disabilities contribute to discrimination against disabled individuals in a variety of contexts, including "intentional exclusion . . . failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, . . . and relegation to lesser services, programs, activities, benefits, jobs or other opportunities." With Title I, Congress intended to provide a legal recourse to redress discrimination resulting from prejudices that qualified job applicants with disabilities face daily.

To further the ADA's anti-discrimination goals, Title I prohibits employers from discriminating against "a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment." Under the ADA, a "qualified individual with a disability" is an individual who with or without "reasonable accommodation" can perform the necessary job functions. With Title I, Congress promised "a future of inclusion and integration" for individuals with disabilities that would allow them to fully participate in and contribute to society.

Part II: Recent Limits

Despite Congress' lofty goal of providing "clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities," the amount of litigation over these terms over the past decade suggests that Congress has abrogated its constitutional duty by writing unclear laws and has, thus, allowed the courts to decide who deserves protection under the ADA. In response to fears that the ADA opened courts to a floodgate of frivolous lawsuits from people with minor impairments, the Supreme Court has restricted the class of those protected under the ADA and expanded employers' defenses to employees' disability discrimination claims. In the few years following the ADA's enactment, employers infrequently challenged a plaintiff's disability status.

Although the ADA requires a plaintiff to prove disability on a case-by-case analysis, early courts interpreting the ADA adopted, for example, a "nearly per se definition of alcoholism as a handicap." The court's most recent decisions, however, allow employers to challenge disability factors and require plaintiffs to prove each part of the disability standard. In 2001, employers succeeded in 95.7 percent of the federal court cases that reached the merits under Title I of the ADA and 73.3 percent of the Title I cases that the EEOC resolved in administrative decisions.

The following analysis will show how the court has restricted rights for ADA plaintiffs in three of its most recent attempts to determine congressional intent. First, Toyota shows how the court has raised the standard for the plaintiff's prima facie case by requiring an individual prove she is substantially limited in her ability to perform activities "of central importance to most people's daily lives." Second, Barnett shows how the court has increased the plaintiff's burden of showing her requested accommodation is reasonable when an employer has a seniority policy. Finally, Echazabal expanded the "direct threat" defense by allowing subjective fears to unfairly determine when a disability directly threatens the individual's own health and safety.

"Disability" Unfairly Restricted

The court's increasingly restrictive definition of "disability" has frustrated the ADA's "comprehensive" remedial scheme to redress disability discrimination. The court now requires that an ADA plaintiff prove she is so disabled that she is "substantially limited in major life activities of central importance to most people's daily lives" and yet still "qualified" to perform the essential job functions. In addition, the court scrutinizes how substantially the alleged impairment affects an individual on a case-by-case basis, and an individual is not "disabled" if she uses mitigating measures to correct the effects of her impairment. The dual requirement that an individual be so disabled that she cannot work in a variety of positions, but qualified enough that she can perform essential job functions with or without a "reasonable accommodation" puts many plaintiffs in a problematic situation to the degree the individual must offer incompatible types of proof. This double burden also allows for an effective defense strategy, since a defendant can offer evidence to attack each element. Essentially, the court's restrictive definition of "disability" protects only those who appear "truly disabled," allowing employers to refuse to accommodate and, thereby, force out of work those who "have suffered work-related injuries that prevent them from performing some job duties."

The Prima Facie Case

A valid ADA claim requires an individual to prove that:

  1. She has a "disability";

  2. She is qualified to perform essential job functions with or without a "reasonable accommodation"; and

  3. The employer made an adverse employment decision because of her disability. Since “disability” is the threshold concept an individual must show to state an ADA claim, the definition of disability is, conceivably, the most important term in the statute. Not surprisingly, ADA plaintiffs lose most frequently because they fail to prove "disability."

The term "disability" means, with respect to an individual:
  1. A physical or mental impairment that substantially limits one or more of the major life activities;

  2. A record of such impairment; or

  3. Being regarded as having such an impairment.

Under the definition of "major life activities," Congress intended the ADA to cover "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." Congress included the "record of" and "regarded as" prongs of the definition because it recognized that unintentional social practices classify people as disabled even when they do not have a physical or mental impairment. Congress states explicitly that "disability" is determined "with respect to an individual." In drafting the ADA, Congress could not comprehensively list specific impairments that are disabilities, since new disabilities may develop in the future. It also reasoned that some conditions are more disabling for particular individuals, depending on the stage of the disease and the presence of other impairments. The court validated Congress" individualized, fact-specific approach to determining disability in Bragdon v. Abbott, where it refused to find that HIV was a disability per se. Because courts require ADA plaintiffs to prove “the effect of that impairment on the life of the individual,” employers began challenging ADA plaintiffs’ asserted disabilities, and courts have applied the individualized approach to narrow the scope of “disability.” Under the ADA’s definition of disability, courts have found “disability” for individuals with such impairments as obsessive compulsive disorder, epilepsy, alcoholism, diabetes and multiple sclerosis. On the other hand, courts have refused to find a “disability” under the ADA for individuals with some rather serious conditions such as cancer, heart disease and chronic depression.

Mitigating Measures Excluded
In 1999, in a trilogy of cases, the court began narrowing the definition of disability by excluding individuals who could remedy conditions such as nearsightedness or high blood pressure by corrective or mitigating measures. The court, in Sutton v. United Airlines, Murphy v. United Parcel Service and Albertson’s Inc. v. Kirkingsburg, held that one must consider any measures an individual takes to control her impairment—such as therapy or medication—in determining whether an individual is “disabled” under the ADA. Thus, the ADA may not protect a person who controls his mental illness through medication, even if an employer discriminates against him because of his mental illness. Since these decisions, plaintiffs have lost ADA claims when they use mitigating measures to control such disabilities as depression, heart disease and asthma.

The court recently further decreased the class of individuals who qualify as “disabled” under the ADA. In Toyota Motor Mfg., Kentucky, Inc. v. Williams, the court questioned whether Ms. Williams was “substantially limited” in the major life activity of “performing manual tasks” when her carpal tunnel syndrome limited her ability to perform manual tasks in her assembly line job. The court found that an individual claiming an ADA violation must show that she has “an impairment that prevents or severely restricts [her] from doing activities that are of central purpose to most people’s daily lives,” regardless of whether the unaccommodated impairment prevents her from performing essential job functions. The court reasoned that since the ADA’s definition of “disability” applies to other portions of the ADA that deal with transportation and public accommodations, the question of whether an impairment is a disability cannot be answered “only by analyzing the effect of the impairment in the workplace.” Instead, the ADA’s definition of “disability” covers “individuals with disabling impairments regardless of whether the individuals have any connection to the workplace.”

In addition, the court dissected the ADA’s provisions defining disability and determined that undefined terms within the statute must be interpreted strictly “to create a demanding standard for qualifying as disabled.” Justice O’Connor reasoned that Congress would have listed many more than forty-three million Americans as having “one or more physical or mental disabilities” if Congress intended to qualify as disabled everyone with a physical impairment that is precluded from performance of some minor or particularly difficult task.

Applying its new definition of disability in Toyota, the court refused to find that the tasks Williams had trouble performing constituted “major life activities,” even though her conditions “caused her to avoid sweeping, quit dancing, to occasionally seek help dressing, and to reduce how often she plays with her children, gardens and drives long distances.” Declining to decide the case on the merits, the court ordered the district court to reconsider its decision that required the Toyota plant to excuse Ms. Williams from certain tasks as part of the “reasonable accommodation” she requested because of her carpal tunnel syndrome.

The court’s new “demanding standard” translates into a new burden for a disabled plaintiff, requiring her to prove she is unable to “perform a variety of tasks central to most people’s daily lives, not whether [she] is unable to perform the tasks associated with her specific job.” The irony in this decision is that even though Ms. Williams apparently was disabled enough that she had to stop working when Toyota would not accommodate her request to perform the tasks that she was capable of performing, she was not disabled enough to qualify for protection under the ADA, which may require Toyota to provide her requested accommodation.

Exclusion From One Job Is Not Enough
Ms. Williams’ plight of being too disabled to work without an accommodation but not disabled enough to qualify for protection is an increasingly frequent dilemma among disabled individuals. ADA plaintiffs who are “substantially limited” in work-related activities like performing manual tasks have yet another evidentiary hurdle to overcome: proving they are “unable to work in a broad class of jobs.” Arguably, courts and employers are likely to find that an individual is “unqualified” for employment when she is substantially impaired in her ability to work in a wide variety of positions. For example, courts using the “exclusion-from-one-job-is-not-enough” formula have dismissed ADA claims by plaintiffs with conditions such as cancer, degenerative disc disease, depression and diabetes.

Furthermore, by requiring individuals to prove they are unable to work in a variety of positions, the court’s heightened standard contradicts legislative intent since an employee excluded from a single job because of her physical or mental impairment would be covered under the “regarded as” prong of the ADA’s disability definition. With the “regarded as” prong, Congress recognized that society’s fears about disability are as handicapping as the physical limitations that may flow from the actual impairment. For example, a burn victim may face discrimination in employment due to others’ attitudes toward his impairment, even though the burn victim does not view himself as “impaired.” Where the burn victim is excluded from one job based on an employer’s misconception of his impairment, the victim should not have to prove he cannot work in a broad class of jobs to invoke his ADA rights.

Court Disregards Congressional Intent
Despite Justice O’Connor’s desire to invoke Congress’ intent in Toyota, she failed. Congress intended the ADA to protect more than those individuals who have obvious impairments, such as blindness, deafness or paralysis. It intended to protect people whom employers might wrongly perceive as “substantially impaired.” For instance, the ADA’s original sponsor in the House of Representatives, Tony Coelho, developed epilepsy after a childhood head injury. While his epilepsy, when treated properly, did not prevent him from performing activities “of central importance to most people’s daily lives,” as the court’s restricted definition now requires, he was expelled from seminary, discriminated against by health insurers, rejected by the armed services and had his driver’s license revoked as a result of misconceptions about the effects of epilepsy. Congress intended the ADA to protect people like Coelho against discrimination on the basis of prejudices that an illness can invoke.

In both Toyota and Sutton, the court refers to the congressional finding that forty-three million Americans have one or more physical or mental disabilities as proof Congress did not intend to cover such a broad class of disabilities. However, when Congress estimated that forty-three million people would be covered, it intended the law to be broad rather than narrow and was merely trying to clarify that it was addressing a substantial problem. By keeping the definition of disability, “the narrowest you could interpret it within the language of the statute,” the court effectively limits the number of Americans protected so that only those with the most traditional disabilities—such as blind people, deaf people and wheelchair users—will be protected. Such an interpretation turns Congress’ intent on its head and encourages employers to resist accommodating workers who have impairments that may affect their work.

The court, in Barnett, laid another roadblock in the disabled individual’s path to equal employment opportunity by shifting the burden to the disabled individual to prove the reasonableness of a requested accommodation that conflicts with an employer’s seniority policy. While an employee has a difficult burden in proving “disability,” once she carries this burden, the employer’s obligation to provide a “reasonable accommodation” kicks in. Until Barnett, courts and employers would presume that the disabled employee’s requested accommodation was “reasonable” if it would enable the employee to perform essential job functions, and the employer had the burden of proving “unreasonableness,” or “undue hardship.” Barnett flips the burden-shifting framework around when an employer has a seniority system by finding the requested accommodation “will ordinarily be unreasonable.”

What Is a ‘Reasonable Accommodation’?
Central to the ADA’s anti-discrimination goal is the mandate that an employer may not deny an employment opportunity to an otherwise qualified individual with a disability when the denial is based on the need to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” The ADA does not, however, require an employer to accommodate a qualified disabled worker if “the accommodation would impose an undue hardship on the operation of the business.” An employer’s duty to accommodate may include, but is not limited to, “making existing facilities used by employees readily accessible to and usable by individuals with disabilities, . . . job restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals with disabilities.”

The ADA’s definition of “undue hardship” establishes the limits of “reasonableness.” The ADA defines “undue hardship” as “an action requiring significant difficulty or expense,” considered in light of resources available to the employer, the nature and cost of the accommodation, and other factors. Generally, an accommodation is “unreasonable” if it either creates “undue financial and administrative burdens” for the employer or requires “a fundamental alteration in the nature of [the] program.” Congress, in Title I of the ADA, defined “undue hardship” in terms that burden an employer more than the ADA’s Title III duty for owners of public accommodations to alter existing facilities, a task that Title III states should be “easily accomplishable and able to be carried out without much difficulty or expense.” The “significant difficulty” standard for an employer under Title I of the ADA is also more onerous than the employer’s Title VII duty to accommodate an employee’s religious beliefs, a duty that, as the court has interpreted it, an employer can overlook when accommodating religious beliefs requires more than a de minimus cost to the employer.

Seniority Trumps Duty to Accommodate
The court, in Barnett, diminished an employer’s duty to provide a “reasonable accommodation” to individuals with disabilities and broadened the circumstances under which employers are entitled to the “undue hardship” exception. In effect, the court created a standard that allows employers and courts to assess “reasonableness” without the traditional limits of the “undue hardship” factors. The court ruled that, unless “special circumstances” exist, the ADA does not require an employer to assign a disabled employee to a vacant position when doing so would contravene the employer’s established seniority system. Mr. Barnett, who had injured his back working as a cargo handler for U.S. Airways, used his seniority rights to transfer to a less physically demanding mailroom job that was vacant at the time. After Mr. Barnett worked there for two years, he was not allowed to keep his mailroom position when U.S. Airways opened the position to employees with more seniority.

The court considered the traditional burden-shifting framework, under which a disabled individual’s request for an accommodation is presumed reasonable when it seems reasonable “ordinarily or in the run of cases.” The employer must then show that the particular circumstances create an “undue hardship.” Normally, a “reasonable accommodation” includes “reassignment to a vacant position.” But when the position ceases to be “vacant” as a result of the seniority system, allowing the less-senior, disabled employee to fill the position is no longer “reasonable” when doing so would violate a seniority system. The court reasoned that, usually, allowing an exception for disabled individuals would be too disruptive for other employees who had built their career expectations around a company seniority plan.

Contrary to the statutory intent, under which Congress specified that an employer must determine “undue hardship” on a “case-by-case basis,” the court determined that “the statute does not require proof on a case-by-case basis that a seniority system should prevail.” Instead, an exception to the seniority system is presumed ”unreasonable,” and the employee must prove the existence of “special circumstances” under which such an exception would be reasonable. For example, a plaintiff might show that the employer exercises its right to change the seniority system fairly frequently, thereby reducing employees’ expectations that it will follow the system. In the end, the court declined to decide whether such special circumstances existed and remanded to the lower court to apply the new standard.

Barnett diminishes an employer’s duty to provide a “reasonable accommodation” by allowing a presumption of “undue hardship” whenever an employer has a neutral policy like a seniority system. Barnett expands the “undue hardship” definition to include factors in addition to financial and administrative burdens on the employer’s operations. As a drafter of the original ADA commented, Barnett “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.”

Before Barnett, “reassignment to a vacant position” was generally a “reasonable accommodation.” After Barnett, if an employer has any kind of seniority system—voluntary or mandatory—moving a disabled employee to another position to accommodate her disabilities is no longer a “reasonable accommodation” absent “special circumstances.” The court reasons that seniority systems fulfill “employee expectations of fair, uniform treatment.” But such reasoning permits an employer to treat senior workers more fairly at the expense of disabled workers’ own expectations of uniform and fair treatment and thereby undermines the ADA’s goal of allowing “individuals with disabilities the opportunity to compete on an equal basis.”

The court has also undermined congressional intent by approving the EEOC’s “threat-to-self” defense and, thereby, invited an employer’s unfounded prejudices to limit ADA rights for qualified individuals with disabilities. The ADA prohibits employers from “using qualifications standards . . . that screen out or tend to screen out an individual with a disability.” An employer may defend against a charge of discriminatory qualifications by showing that such standard is “job-related for the position in question” and “consistent with business necessity.” A qualification standard may include “a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace,” where a “direct threat” is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The EEOC regulations expand the ADA’s “direct threat” definition, allowing employers to exclude disabled people when the disability threatens the individual’s own health. To support their position, the EEOC cites cases interpreting the Rehabilitation Act and the fear that employers would be forced to hire qualified, presymptomatic individuals who may be at risk of future injury or disease in the workplace.

The court, in Chevron v. Echazabal, validated the EEOC’s “threat-to-self” standard and thereby expanded the “direct threat” defense. In Echazabal, the court allowed an oil refinery to refuse to hire Mr. Echazabal when a physical exam revealed he suffered from a liver disease that might make him susceptible to toxic infection from the chemicals in the refinery. The court upheld the EEOC’s “threat-to-self” rule over Mr. Echazabal’s objection that it violates the ADA by imposing “overprotective rules and policies.” The court found that the EEOC’s regulations, which require a particularized inquiry into an employer’s “direct threat” defense, sufficiently guard against workplace paternalism while allowing employers to protect employees from specific, documented risks supported by medical evidence.

Misreading Congressional Intent
The result in Echazabal ignores statutory intent. By allowing employers to determine when an employee’s own impairment poses a risk to herself, the court is essentially converting “a law meant to bring people into the career mainstream into a license for demeaning corporate paternalism.” While the ADA drafters created the “direct threat” defense for cases where objective medical evidence, however probabilistic it may be, shows a risks to others, it did not create the exception to allow employers to determine when an individual’s disability directly threatens the individual’s own health. Instead, “the individual with a disability himself . . . bears the most direct and significant costs of an incorrect determination that job is safe for him.” Thus, the EEOC exceeded its congressionally delegated authority in expanding the “direct threat” defense to include the disabled individual.

Congress deliberately chose to include only a threat-to-others defense because it recognized the risk that an employer could exclude an otherwise qualified employee or job applicant with a disability by relying on paternalistic concerns. It also recognized than an employer may consciously err on the side of being “too safe” to serve his economic self-interest in cases where the employer perceives that hiring an individual with a disability will increase insurance or workers’ compensation costs or increase tort liability for an injury or accident.

Thus, Congress defined “direct threat” in such a way as to eliminate exclusions about the individual involved when objective evidence does not support the exclusion. By requiring a “significant health risk” and shifting the burden to the employer to provide objective medical evidence on a case-by-case basis, the direct-threat provision furthers the ADA’s goals of equal treatment and inclusion of individuals with disabilities in the national economy.

The court also undermined statutory intent in reasoning that “an employer would be asking for trouble,” by hiring a disabled individual who knowingly consented to the potential dangers of a particular job. Chevron decided to terminate Echazabal because it desired to avoid “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)].” While the court did not address each of Chevron’s reasons for finding the “threat-to-self” regulation reasonable, it found that concern with OSHA liability is enough to justify the EEOC “threat-to-self” regulation. OSHA requires that an employer provide each of his employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

In reasoning that the threat of OSHA liability legitimates the EEOC’s regulation, the court overlooks its own precedent that dismisses the threat of tort liability and protectionist motives as valid reasons to discriminate in the employment context. In 1991, the court, in Automobile Workers v. Johnson Controls, held that a battery manufacturing company could not deny fertile women jobs because they might be exposed to lead that could harm fetuses.

Although OSHA was in effect in 1991, the court invalidated Johnson Control’s restriction, on the grounds that “danger to a woman herself does not justify discrimination” under Title VII. While Johnson Controls did not argue that it faced costs from tort liability, the court nevertheless reasoned that tort liability does not justify an exclusionary policy, and Johnson Controls could not refuse to hire women based on a fear that hiring fertile women would cost the company more. Thus, while Title VII’s bona fide occupational qualification (BFOQ) defense allows (and the court has approved) discrimination against women based on well-founded risks to the health and safety of others, it prohibits employers from depriving women of opportunities because of restrictions imposed on them for their own “protection.”

Given that Congress recognized the role of paternalism in excluding people with disabilities from employment opportunities, one would expect the court to disregard the threat of OSHA liability for the same reasons it invalidated restrictions excluding women for their own “protection.” But the court attempts to distinguish its decision in Johnson Controls as “beside the point,” since Johnson, and Title VII generally, was “concerned with paternalistic judgments based on the broad category of gender, while the EEOC has required that judgments based on the direct-threat provision be made on the basis of individualized risk assessment.”

But the risk of paternalism does not disappear when employers assess disabilities on an individualized basis. Despite testimony from two medical witnesses that Mr. Echazabal’s condition was not further damaged under the job conditions at the refinery, the district court found that Chevron acted reasonably in relying on its own doctors’ medical advice, regardless of whether that advice was correct. Rarely can a physician say, with absolute certainty, that a particular individual with a particular condition will experience a disabling injury within a given period. The ADA allows employers to rely on such medical evidence that is presumably no more than an “educated guess” when a disabled individual poses a threat to others. Congress refused, however, to allow employers to allow the individual’s disability to justify superceding his choices about the risks he is willing to accept.

In addition, the court fails to recognize the difficult burden of proof the new “threat-to-self” standard imposes on a job applicant who has been rejected for a specific job based on an alleged risk to the applicant. In essence, an applicant rejected because of risk-to-self concerns must prove not only that she can do the job safely, but also must show that the employer based his decision on stereotypes. Such evidence of what the employer was thinking when he made the decision is incredibly hard to acquire.

In short, by adopting the EEOC’s “threat-to-self” defense, the court relegates the disabled “to a position of political powerlessness in our society, based on characteristics that are beyond [their] control” and places society one step further from the ADA’s goal of allowing disabled individuals “to participate in, and contribute to society.” While women and men in different professions freely accept work under hazardous conditions all the time for reasons such as personal satisfaction and higher salaries, the court takes away the right of individuals with disabilities to exercise the same right to assume responsibility for their own decisions.

Part III: Overcoming Limitations
As he signed the ADA in July 1990, President George H.W. Bush remarked, “every man, woman and child with a disability can now pass through once-closed doors into a bright new era of equality, independence and freedom.” Toyota, Barnett and Echazabal show that, at least in the employment context, many doors remain closed for individuals with disabilities. Despite the apparent judicial setbacks with these decisions, the procedural posture of these cases and the compromise language of Barnett leave room for advocates to achieve the ADA’s goals.

The following suggestions will show how disability rights advocates can avoid some of the court’s recent obstacles. First, Barnett, the most promising of the three decisions, recognizes that “preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.” Toyota affirms the ADA’s individualized approach to determining disability, allowing future litigants to show that their condition is a disability under their particular circumstances. Finally Echazabal creates a troublesome burden for those employers with fewer resources than Chevron by demanding that an employer rely on “the most current medical knowledge” in determining whether a work environment directly threatens a disabled individual’s own health.

Although disability-rights advocates generally classify Barnett as “another sad day for the rights of disabled workers,” portions of the court’s opinion show promise that disabled individuals’ employment rights could improve, as the court recognizes that “preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.” For example, U.S. Airways claimed that an accommodation that violates a disability-neutral workplace rule, like a seniority system, provides a disabled employee preferential treatment, and under the ADA, an employer has no “obligation to prefer applicants with disabilities over other applicants.” The court rejected U.S. Airways’ position, finding that the “reasonable accommodation” provision could not accomplish its intended goal if the ADA prohibited employers from treating a disabled employee differently to accommodate her disability.

Fortunately for ADA plaintiffs, the court did not adopt a bright-line rule that would completely insulate a neutral employment practice such as a seniority policy from the “reasonable accommodation” requirement. The court left open the possibility that a disabled employee’s needs could override seniority in “special circumstances.” The court was fairly clear that disabled employees cannot challenge seniority systems contained in collective bargaining agreements. Where an employer reserves the right to change its seniority system, however, as U.S. Airways did, an employee can rebut the presumption that violating a seniority system to accommodate a disabled individual is an “undue hardship” for the employer.

Defining Disability
Toyota also provides hope for ADA plaintiffs because the court refused to make a per se decision that Ms. William’s carpal tunnel syndrome is a “disability.” Such a ruling opens the possibility that future litigants may prevail in showing that their condition is a disability under the ADA in particular circumstances. After Toyota, disabled employees or job applicants may still claim ADA protection by showing that their impairments substantially restrict their daily lives, not just their work-related activities. Individuals with conditions caused and aggravated by work activities, such as carpal tunnel syndrome, must show that these conditions substantially impair their daily lives off the clock in activities such as eating, sleeping or reproduction. Plaintiffs should shy away from showing that their disabilities substantially limit major life activities connected to work, such as maintaining attention, concentrating and interacting with others, since such evidence may also allow employers to find them “unqualified.”

In addition, disabled individuals who fail to prove “disability” under the ADA may still have a claim under state disability discrimination laws, which protect individuals with impairments affecting their ability to work even if they can perform manual tasks at home and are not “substantially limited” in a major life activity. While Toyota appears a clear victory for employers, in states where state laws are more protective than the ADA, a plaintiff may be able to show that the state law protects them, and an employer may not be able to challenge the disabled plaintiff’s protected status. Thus, where employees bring their claims in state court under more protective state laws, Toyota will have little or no value.

Individual Medical Assessment Rule
While state laws, many of which do not include a “direct threat” defense, may also protect disabled individuals from the paternalistic “threat-to-self” defense upheld in Echazabal, the demand that employers make an “individualized assessment” of the employee’s health risks provides a steeper hurdle for employers. By requiring “reasonable medical judgment” supported by “the most current medical knowledge,” the court-approved EEOC regulation prohibits employers from generalizing about disabled individuals. While large corporations like Chevron may have the resources to individually assess medical conditions, most employers do not. Thus, Echazabal deprives employers of a “hard-and-fast rule” allowing them to exclude an employee whose employment allegedly threatens his own safety. Echazabal thus opens the possibility that employees can successfully challenge employers’ “individualized medical assessments,” particularly when an employer has fewer resources than Chevron.

In addition, because of the procedural posture of Echazabal, the court opens the possibility that the ADA plaintiff may succeed on remand. Because the court did not reach the merits of Echazabal’s claim, it did not address whether Chevron could have made a “reasonable accommodation” that would allow him to keep his position. Thus, future litigants may be able to get around an exclusion based upon “direct threat” by showing a “reasonable accommodation” will allow them to perform the essential functions of the job without endangering their safety.

Finally, the court did not decide that an employer would actually be liable under OSHA for allowing an employee to assume health or safety risks. By refusing to decide this issue, the court opens the possibility that future litigants may rely on the ADA’s underlying policy that social, economic and moral costs of overexcluding disabled individuals from the workplace outweigh the economic costs of overincluding disabled individuals.

Conclusion
The ADA represents the nation’s commitment to eliminating discrimination against individuals with disabilities. Unfortunately, the Supreme Court has severely undermined the ADA’s goals with its most recent decisions. Despite these judicial setbacks, the court has also upheld several of the ADA’s key nondiscrimination principles.

By insisting that preferences are sometimes necessary to achieve “the Act’s basic equal opportunity goal,” the court recognizes that disabled individuals have been “subjected to a history of purposeful unequal treatment” that the ADA seeks to eliminate. In upholding the individualized approach to determining “disability” and demanding that employers use the “most current medical knowledge” in deciding when a disabled individual’s employment directly threatens his own health, the court warns employers against relying on “stereotypic assumptions” not truly indicative of a disabled individual’s ability “to participate in, and contribute to, society.”

Although the court’s recent decisions have generally frustrated the spirit of the ADA, like _Brown v. Board of Education_—which sent a loud message that segregated schools are not equal but did little to rectify segregation—the ADA has fulfilled a valuable public awareness function by making Americans aware of the fact that discrimination against individuals with disabilities is wrong.

For More Information About the ADA
The U.S. Department of Justice provides information about the Americans with Disabilities Act (ADA) via its Web site at www.ada.gov. The Department of Justice also has a toll-free ADA Information Line. This service permits businesses, state and local governments and others to call and ask questions about general or specific ADA requirements, request free ADA materials and get information about filing a complaint.

ADA specialists are available Monday through Friday from 9:30 a.m. until 5:30 p.m., except on Thursdays, when the hours are 12:30 p.m. until 5:30 p.m.

The telephone number is: 800-514-0301 (voice) or 800-514-0383 (TTY)