A Decade After the Passage of the ADA - Where Are We?

In the past ten years, we have had noted successes and failures. It would be impossible to summarize all that has happened with regard to litigation filed under the ADA in 10 years without writing a volume. I will concentrate in this article on trying to hit some of the highlights.

It has been our experience at the Minnesota Disability Law Center that most businesses are willing to accommodate persons with disabilities or provide them access if they can find a way to do so and if they understand that they will avoid a lawsuit by taking such action. First though, remember that, prior to 1990, Minnesota already had in place the Minnesota Human Rights Act, which incorporates most of the concepts as well as the language of the ADA. This means that in Minnesota, with a few notable exceptions, the only thing that changed when the ADA was passed was that persons with disabilities can now choose to file under either the state or federal law. Also, under the ADA, persons with disabilities have access to a jury trial, which is not available under the Human Rights Act.

I believe that the effort made by both the federal Department of Justice (DOJ) and EEOC to educate employers and private businesses in general to their obligations under the ADA has been their most useful function, and many lawsuits have been avoided by referring businesses to these fact sheets and Interpretive Guidance papers. The DOJ and EEOC fact sheets on issues of concern to private businesses can be accessed through their web sites. EEOC’s website is at www.eeoc.gov. The Department of Justice’s website is at www.usdoj.gov. Both agencies publish their settlements on their web sites. The sites also include Interpretive Guidance written to tell agency investigators what evidence to consider in an investigation. These Interpretative Guidance papers are extremely helpful because they also list all of the case law known to EEOC or DOJ at the time the paper was written on the issue in question.

In spite of progress, although some disability advocates thought the ADA would be a panacea to end all discrimination, they have found, to their disappointment, that this is not true. Courts all the way from the district to the Supreme Court have made decisions which in some ways have limited the coverage of the ADA. Also, because persons with disabilities have asserted their rights under the ADA, we are now seeing a backlash against the ADA. The most recent example of this backlash is the bill currently before Congress which would require that a public accommodation be given 90 days’ notice of noncompliance before a lawsuit is brought against them in order for them to have time to cure the problem.

DEFINITION OF DISABILITY AND THE U.S. SUPREME COURT

At least 3/4 of the cases brought under the ADA have been decided on the threshold issue of whether or not the underlying disabling condition of the complainant constituted a disability. Five of the seven U.S. Supreme Court decisions involving the ADA have decided the claims for or against plaintiffs on that issue alone.

The first case to reach the U.S. Supreme Court on the ADA was Bragdon v. Abbot, involving a person with asymptomatic HIV who sought treatment from a dentist and was denied treatment based on that condition. The Court found that, even though the plaintiff had no symptoms, his condition constituted a substantial limitation to the major life activity of having children. Persons who are HIV positive or who have AIDS can bear children with the same disease and therefore will choose not to have children.

In another case heard by the Supreme Court, Cleveland v. Policy Management Systems Corporation, the court held that an employee who claims inability to work for purposes of collecting benefits does not forego the availability of the ADA to cover issues of employment discrimination. The provisions of most other laws dealing with disability benefits, such as Social Security or Workers Compensation, define disability only in terms of whether or not a person is able to work at all. None of the other laws provide that an employer should attempt reasonable accommodation before termination. The ADA has such a provision. Therefore, if a person with a disability files a Social Security claim, for example, in which the employee says he/she cannot work, that employee is not precluded from filing an ADA claim indicating that he/she was terminated for discriminatory reasons. If the employee can argue that, with accommodation, he/she could have performed the job, the employee may have a viable ADA claim. The court can review applications filed by that individual for other benefits, but these applications, standing alone, do not preclude the person from filing an ADA claim.

For disability advocates and lawyers representing ADA plaintiffs, the most disappointing move by the U.S. Supreme Court involved three cases decided on the same day almost exactly one year ago. In all three cases, the Court held that if an impairment is mitigated through the use of glasses, medications or through other means, the employees were not disabled under the first and most commonly used prong of the ADA, Title I.

In Sutton v. United Airlines, twin sisters wanted to be hired as pilots by the airline. They both had vision limitations which would classify them as legally blind without their glasses. The Court held that they were not disabled for purposes of the ADA when their blindness was corrected by wearing glasses. When wearing glasses, they met the requirements for vision set out by the airlines, but the airlines required this amount of vision to be present without corrective measures. The Court held, despite the promulgated regulations of EEOC to the contrary, that only after implementing remedial measures, such as wearing glasses, could an individual’s impairments be analyzed regarding whether or not they constituted a substantial limitation of a major life activity.

Sutton and the two companion cases were seen as real setbacks. Would, for example, a person who had seizures that were kept under control through the use of medication not be considered disabled for purposes of the ADA even if an employer would not hire the person because he/she had the condition? Since these decisions, EEOC has been successful in district courts in arguing that the remedial measures themselves, such as medications, might have side effects which constituted impairments substantially limiting major life activities. Plaintiffs will now have to expend much more effort explaining why the disabling condition really impairs their ability to perform a major life activity. This way of thinking is counter to the image people with disabilities generally want to portray–that they have a disability which does not keep them from performing a job with or without accommodations.

EMPLOYMENT

Title I of the ADA, covering employment discrimination, has been by far the most litigated area. As noted above, a large portion of cases brought under this provision have been dismissed by District Courts and Circuit Courts of Appeal as not meeting the definition of disability described above. The courts have generally been sympathetic to defenses raised by employers that a disability constitutes a direct threat to the health or safety of the employee or others. One interesting exception was a case that was just decided by a Circuit Court of Appeals in which the court argued that an employer could not use the defense that a potential employee would be a direct threat to his own safety or health. The court held that, while the EEOC Regulations provided for such an interpretation, the actual language of the ADA only allowed the defense of “direct threat to others” to be used. It will be interesting to see if any other courts pick up on this issue.

The courts have given strong deference to an employer’s written job description even when plaintiffs have argued that the functions listed are not required of everyone performing the job in question. Plaintiffs have had better luck if they could show either that an employer had refused to hire them simply because they had a disability or if an employer was able to reasonably accommodate them and didn’t.

Juries have been sympathetic to plaintiffs who they believed could have performed the job with accommodations. In a recent case brought by the EEOC against Chucky Cheese in Wisconsin, a jury awarded $13 million. In that case, a person with developmental disabilities held a position as a maintenance worker. A decision was made at the corporate level that he should be terminated despite the fact that his supervisor argued to the corporate office that he should not be terminated and was performing well on the job. The employer apparently made statements about not wanting “that kind of people” working there. According to EEOC attorneys, the jury was not impressed with the demeanor of the Chucky Cheese representatives. The judge reduced the actual jury award from $13 million to $300,000, the damage cap under the ADA. This case represents a victory for persons with disabilities.

PUBLIC SERVICES

Title II of the ADA, involving state, county or municipally subsidized programs, is the next most litigated area. Thus far, the U.S. Supreme Court has made two decisions which involve Title II. The first was in Pennsylvania Dept. of Corrections v. Yeskey, in which they determined that state, county or municipally owned and operated correctional facilities fall under the public services provisions of the ADA. In the case presented, this meant that a state prison in Pennsylvania had to provide interpreters to deaf inmates so that they had access to taking classes available to other inmates. I will not discuss the second case, Olmstead v. L.C. here as another attorney in our office wrote an article specific to that case that appeared in a recent issue of Access Press.

The big problem currently raised under Title II is presented in Garrett v. University of Alabama, which the Supreme Court has accepted. The issue is whether or not states are generally exempt from the jurisdiction of the ADA because Congress does not have the authority to override states’ constitutional right of immunity under the 11th amendment. The Supreme Court has made such decisions already regarding other kinds of civil rights laws. The good news is that Minnesota’s Attorney General Mike Hatch is writing a “friend of the court” brief arguing that states should continue to be covered as they now are under the ADA. Hawaii is writing an opposing “friend of the court” brief. If the U.S. Supreme Court finds that states are generally exempted from coverage of the ADA, this will make it more difficult to file an ADA claim against state service programs, state colleges and universities.

Several cities have been sued because riders with disabilities cannot get timely rides from paratransit providers. To my knowledge, all of these cases to date have settled with a plan for how these services will be improved. Cities have also resolved accessibility issues through settlements. One case that was litigated involved the City of Philadelphia, which had made improvements to its streets after the ADA was implemented, without making them wheelchair accessible. The Court required the City to make its streets accessible even though its original plans did not include such access, and the total expense of improvements was considerably higher than it would have been had they incorporated accessibility into their original plan.

PUBLIC ACCOMMODATIONS

The most successful litigation under the ADA has been carried out under Title III, the public accommodations provisions. Hotels, stores and restaurants have become physically accessible as a result of suits filed by plaintiffs. In at least one case involving stadium seating in an arena, however, the court found that, if accessible seating is provided, the seats do not have to be dispersed throughout the arena. This allows wheelchair seating to be clustered in the front of the arena which means people have to crane their necks to look up at the event. The court found that this was not discriminatory because disabled people are not segregated and similar seating is available to non-disabled persons. Never mind that non-disabled persons also have access to every other kind of seating throughout the facility!

Various sports problems have been addressed through the ADA. The first case to gain public prominence was Anderson v. Little League, in which a coach who used a wheelchair coached a Little League team. Little League determined that no one in a wheelchair could be on the baseball field due to safety issues. Little League threatened to terminate the team from Little League if its coach continued to be on the field in his wheelchair with the other players. The team stood behind their coach, and other teams supported allowing him to coach the team. The court determined that Little League had not adequately proved that the coach was a direct threat to the safety of others.

There have been two completely contradictory decisions regarding whether the use of a golf cart by a player who has mobility impairments constitutes a fundamental alteration to the game of golf or gives the player any advantage. The Casey Martin case in one circuit said that he should not be denied access to playing professional golf because of his use of a cart. Another circuit found the opposite with regard to another player.

EDUCATIONAL TESTING

The standardized tests for becoming an attorney have been challenged in several states, resulting in accommodations for such tests. The commercially available review courses for taking the bar exam and the certified professional accountant exam were successfully challenged for not providing accommodations to the testing procedure for those with disabilities. Educational Testing Services, which provides many of the standardized entrance exams for various professions, is being sued currently for identifying the test scores of persons with disabilities separately because they received accommodations, a practice known as flagging.

CONCLUSION

In conclusion, it is fair to say that the ADA litigation has had mixed results. It did not end discrimination as some hoped that it would. Nor has the ADA failed. There have been many successes. Disability advocates need to be ever watchful that the conservative elements of Congress are not successful in eroding hard-won rights under the ADA.

Kathleen Hagen is a Attorney at Law at the Minnesota Disability Law Center