If people with disabilities just reviewed the 2002 Supreme Court decisions involving the Americans with Disabilities Act (ADA), the conclusion would be that, from the point of view of plaintiffs, the ADA took quite a hit this year. Before I review two cases already reported on in Access Press this year, and analyze three new decisions, I want to take the opportunity to list some benefits brought about by the ADA. These benefits, for the most part, have not come about from filing or winning lawsuits.
The main benefit brought about by passage of the ADA continues to be the number of businesses that have become accessible to persons with disabilities. The public has also become more aware of the benefits brought about by access for persons who do not consider themselves disabled. Where there are buildings with many steps and a ramp leading to a door, more and more walkers will use the ramp as an easier means of entering the building. Anyone who enters a public restroom knows that the stall most in use is the one made larger to accommodate persons in wheelchairs because it is the stall providing the most comfort and convenience to nondisabled persons as well.
The Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) have both done a very good job of issuing materials meant to educate small businesses regarding their duty to provide access under the ADA. The DOJ in the Clinton Administration carried on a Public Access Project where it brought complaints against several dozen cities across the United States. Those complaints have been settled with agreements that provide access to all the public services in these cities.
If the ADA were being considered by Congress today, it might be much more difficult to pass the legislation. However, persons with disabilities still have friends in both parties who support the ADA and fight against limiting those protections. The last three presidents, including George W. Bush, have supported continued protections under the ADA. Moreover, Minnesota is fortunate to be one of a few states with very strong civil rights protections under its Minnesota Human Rights Act. Therefore, even with the Supreme Court decisions discussed below, most of which were disappointing from the point of view of plaintiffs, the ADA is alive and strong and still providing major benefits for persons with disabilities.
Supreme Court Cases Already Reviewed
Readers will remember discussion in the February 2002 Access Press of the Supreme Court decision in Williams vs. Toyota Manufacturing, the first decision involving the ADA this year. The Supreme Court held in that case that carpal tunnel syndrome can be defined as an impairment substantially limiting a major life activity such a life activity can be defined as not being able to perform a class of manual tasks, if such tasks are defined as central to the lives of most people. In this case, Ella Williams, an assembler, was unable to prove to the satisfaction of the Supreme Court that the activities she was no longer able to perform, in essence, the activities of performing the job of assembler, were central to the lives of most people (who are not assemblers). Thus, while carpal tunnel syndrome may in certain circumstances fall within the definition of a disability, Williams did not meet that definition and lost her case.
In EEOC vs. Wafflehouse, discussed in the March 2002 Access Press, plaintiffs received the most positive decision from the Supreme Court on the ADA this year. The Supreme Court held that EEOC can seek damages, including monetary damages, on behalf of an employee even if (s)he, as a condition of being hired, signed an agreement stating that any employment disputes will be sent to binding arbitration. The Court held that the EEOC is not party to such decisions made by employees.
New Supreme Court Decisions
Barnett vs. U.S. Airways: decided April 29, 2002
Issue: An employee with a disability wishes to be permanently assigned to a position with duties (s)he can perform as a reasonable accommodation. The position in question is governed by the employer’s seniority rules. Does the reasonable accommodations provision of the ADA trump seniority rules whether governed by a collective bargaining agreement or not?
The Supreme Court held that an employer showing that a requested reasonable accommodation conflicts with company seniority rules is ordinarily sufficient to demonstrate, as a matter of law, that an accommodation is not reasonable. However, an employee is free to present evidence that, in a specific case, there are “special circumstances” which would allow an employee’s request for reasonable accommodation to survive even if the job were one generally assigned through seniority. If the employee can show, for example, that an employer changes its unilaterally established seniority rules with enough consistency that workers cannot count on the seniority system, or the system has so many loopholes that one more for a request of reasonable accommodation won’t matter, an employee might prevail. The case was remanded to the District Court to determine whether the employee could meet this burden.
This case constitutes the Supreme Court’s first foray into a discussion of what constitutes reasonable accommodation under the employment provisions (Title I) of the ADA. The best that can be said of this case, from a plaintiff’s point of view, is that the outcome could have been worse.
Readers will remember from the discussion of this case in the January 2002 Access Press that Barnett was a cargo handler who became injured and could no longer perform his duties. Because he had enough seniority to bid on it, he was allowed to transfer to an easier job in the mail room which he held for two years until someone else with more seniority outbid him for the job. He requested that the employer allow him to remain in that job as an accommodation. The employer refused and ultimately terminated him.
The District Court found that a position considered part of a seniority system is never available for reassignment as a requested reasonable accommodation and, therefore, found in favor of the employer. The 9th Circuit Court of Appeals reversed that finding asserting that seniority is only one factor in determining whether a reasonable accommodation would pose an undue burden for an employer, and that each case must be analyzed on a case-by-case basis with seniority not a determinant factor.
The Supreme Court’s decision seems to attempt a compromise between the two positions, holding that seniority rules will usually trump a request for reassignment of a position as a reasonable accommodation, unless an employee can meet what will usually be an overwhelming burden of showing that there are “special circumstances” which would support ignoring the employer’s alleged seniority system.
It can be seen from the plethora of opinions issued by the justices in this case, that their decision did not come easily. There were two dissenting opinions, one supporting the original District Court decision and the other supporting the Court of Appeals decision. Additionally, there were two concurring opinions written by Justice Stevens and Justice O’Connor, both of whom signed on to the majority opinion but were somewhat uncomfortable with the analysis. Justice O’Connor indicated that she believed the analysis should have included a question as to whether the employer’s seniority policy was enforceable. This would have been particularly relevant in the given case because this policy was
unilaterally determined by the employer and did not involve a collective bargaining agreement. Justice O’Connor pointed out that the employer had a handbook which indicated that all policies could be changed at will, including a seniority policy. She intimated that she might listen to an argument that employees had no guarantee, under an at-will policy, of a consistent seniority policy. She stated that she was signing on to the majority opinion because she thought it necessary for a majority rule to come about, and because she thought the rule agreed upon by the court would in the normal run of cases result in justice.
This case is troubling primarily because the employer’s seniority policy was not a collective bargaining agreement. Seemingly, employers could just decide to rank all their jobs in a seniority policy thus leaving no room for persons with disabilities, unless they had enough seniority, to move to another position as a reasonable accommodation. It is clear that the reasonable accommodation issue will be back before the Supreme Court in the future.
Chevron U.S.A. vs. Echazabal: decided June 10, 2002.
Based on previous Supreme Court decisions, I speculated in the January 2002 Access Press that this case might have a more positive result for plaintiffs. I was wrong. The issue in this case involved whether EEOC could expand a regulation regarding an employer’s “direct threat” defense beyond what was legislated in the ADA. The Supreme Court said that EEOC had that authority.
The Supreme Court has made statements in previous ADA cases which would indicate, for example, that since a definition of “disability” was not included in the employment provisions of the ADA, EEOC went beyond its authority when it promulgated a definition of disability. (See the March 2001 Access Press article discussing Garrett vs. University of Alabama Board of Trustees.) Given this argument, I assumed there was some room to hope that in this case EEOC would be found to have gone beyond its authority as well.
The ADA defines “direct threat” in terms of employment at 42 U.S.C. Section 12111(3): “The term ‘direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The EEOC, in the first sentence of its regulation at 29 C.F.R. Subpart 1630.2(r), expands this definition: “Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation…”
As readers will remember from the January 2002 issue, Mario Echazabal had worked as a contract worker in the maintenance department of Chevron for about 20 years. When he applied to transfer to the same type of position (but working directly for Chevron), he underwent medical examinations by the employer’s physician which ultimately diagnosed him with asymptomatic hepatitis C. The employer’s physician indicated that such a condition ultimately led him to run a serious risk of damaging his liver because of toxins he would be exposed to through his maintenance work. Echazabal’s own doctor indicated no risk of serious harm to his health. Chevron did not hire Echazabal and dictated to their contractor as well that he be terminated. Echazabal sued arguing that the ADA did not allow for consideration of a direct threat to his own health, and that such a provision was deliberately left out of the ADA so as to avoid paternalism and stereotypic decisions made against employees with disabilities. Chevron argued that the EEOC, as the agency responsible for enforcing the employment provisions of the ADA, should be granted the authority to issue regulations which included the health and safety of the employee in its considerations, and that such a regulation did not violate the ADA. The District Court found for Chevron. The 9th Circuit Court of Appeals reversed and found for Echazabal. The Supreme Court reversed and affirmed the District Court decision. The holding was nine to zero with no dissenting opinions.
The Court argued that Chevron had a business necessity for analyzing a direct threat to include the safety and health of the employee. Chevron would be interested in protecting itself against excessive sickness of employees, excessive medical leave and retirement of employees due to disabilities, tort litigation brought about by hazards to employees, and the possibility of violating the Occupational Safety Health Act (OSHA).
This decision is troubling in many respects. While the ADA generally does not include provisions that are better than the Minnesota Human Rights Act (MHRA), the “direct threat” defense was one of the few places where the ADA was stronger. The MHRA, in its employment provisions, defines “serious threat” in the same way as the EEOC regulation does. The MHRA does, however, contain a provision that it is the respondent’s burden to prove that the employee constitutes a serious threat to himself or others. (See Minnesota Statutes Section 363.02 Subd. 5.) This decision leaves the door open for employers to institute paternalism and stereotypes, about whether or not it is safe for a person with a disability to perform a job, which the ADA sought to eliminate.
Barnes vs. Gorman: decided June 17, 2002.
In this case, the issue was: is there a right in a private lawsuit to punitive damages under Title II of the ADA (the public service provisions) and Section 504 of the Rehabilitation Act? The Supreme Court said there is no right to punitive damages in private lawsuits under either law.
Jeffrey Gorman is a paraplegic who uses a wheelchair and wears a urine bag. Gorman went to a country and western bar one night in Kansas City, Missouri and got into an altercation with the bouncer who was trying to get him to leave the bar. The police were called. Gorman asked to use the restroom before he left as his urine bag was full but was not allowed to do so. He was forcibly removed from his wheelchair and loaded into a police car which was not accessible to persons using wheelchairs. He was strapped onto a narrow bench using the seat belt and his own belt. He removed the seat belt because it was pressing on his urine bag. His own belt broke and he was thrown to the floor where he injured his lower back and shoulder, and where his urine bag burst. He suffered permanent injuries: spasms in his lower limbs which do not allow him to work full-time anymore, and bladder infections from his ruptured urine bag.
He filed suit against the Board of Police Commissioners and other police officials in Kansas City. It was a jury trial, and the jury awarded him a million dollars in actual damages, and another 1.2 million dollars in punitive damages. The District Court entered the actual damages verdict but reversed the punitive damages verdict finding that there was no authority to enter such a verdict under either the ADA or the Rehabilitation Act.
Gorman appealed, and the 8th Circuit Court of Appeals asserted that punitive damages were available under both laws because Congress had not strictly prohibited the remedy of punitive damages. The Supreme Court reversed this finding.
The Supreme Court argued that this remedy is not appropriate because government entities accepting federal funding are not put on notice that they are subject to the liability of punitive damages. The Court held that remedies for Title II of the ADA and Section 504 of the Rehabilitation Act were predicated on Title VI of the Civil Rights Act which includes no provision for punitive damages. The Court argued that in such cases, actual damages might exceed the amount of federal subsidy and that if punitive damages were added, public entities might choose not to accept federal funding at all.
To the extent that anyone believes that enforcement of punitive damages would encourage cities and counties to follow the law and make their services and programs accessible to persons with disabilities, this decision is a loss. However, the ADA has provided that public entities should have been accessible since 1995, and many cities across the country have not brought themselves into compliance seven years after that time. Therefore, it is unclear at this point what ultimate difference this decision will make in the ongoing effort to make city and county programs across the country accessible to persons with disabilities.
While most of these decisions are disappointing from the point of view of persons with disabilities, I would like to point out that a recent decision indicates that the Supreme Court does reverse itself on occasion, taking into consideration new public awareness regarding issues. We have seen this most recently in the reversal of a 1989 decision involving capital punishment. In Atkins vs. Virginia, the Supreme Court reversed an earlier finding and held that it is cruel and unusual punishment under the 8th amendment of the Constitution to execute prisoners with mental retardation (IQs of 70 or under) who cannot be held to understand the difference between right and wrong. It is possible that, with continued public support and awareness around the issues involved in disability discrimination and access to services provided for in the ADA, the Supreme Court will come to a more enlightened understanding of the issues over time. That is my hope for the future.
Kathleen Hagen is a Staff Attorney at the Minnesota Disability Law Center.