December 6, 1999
By Sarah H. Lamar, published on December 6, 1999, in The Business Report & Journal.
Business owners not currently employing disabled individuals may think the American Disabilities Act should be of little concern to them. However, employers should be aware of changes and requirements of the Act that could indeed impact many of their hiring, tiring and promotion practices.
Congress passed the Americans with Disabilities Act (“ADA”)in 1990 to eliminate discrimination against individuals with disabilities. The ADA broadly impacts the relationship between employers and their employees. Although the ADA was modeled closely on the Rehabilitation Act of 1973, which still applies to entities receiving federal financial assistance, the reach of the ADA is much broader. The ADA has three main sections or “titles” – Title I prohibits discrimination by employers; Title II prohibits discrimination by public agencies; and Title III prohibits discrimination by “public accommodations,” such as stores, theaters, and restaurants.
Under Title I of the ADA, an employer cannot discriminate because of disability against an otherwise qualified individual in hiring, firing, promotion, or in any other terms or conditions of employment. An employer must have 15 or more employees before ADA will apply. Moreover, only employees (or applicants) who are otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation, are protected. For example, a blind man is disabled, but he is not otherwise qualified to drive a truck, no matter what accommodations are made, and the trucking company can lawfully refuse to hire a blind man as a driver.
“Essential functions” means the fundamental job duties of the position in question. The term does not include marginal or peripheral responsibilities, For instance, typing would normally be an essential function of a secretary’s job, hut watering the office plants would probably not be.
“Reasonable accommodation” may include things like raising the height of a desk so that the employee in a wheelchair can use it or modifying a work schedule to accommodate chemotherapy
treatments. Reasonable accommodation is generally a matter of cost and will vary from business to business, from job to job, and from individual to individual. The ADA requires individual analysis, not the application of general guidelines.
The ADA’s terms, defined in the statute or in federal regulations are a layered tier of complexity, difficult to apply in practice. For example, “disability” means (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such an impairment (i.e., having had cancer in the past); or (3) being regarded as having such an impairment. “Major life activities” include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working, although the list continues to grow as both the EEOC and the federal courts consider how to apply the ADA in actual disputes between employers and employees. “Substantially limits” means that an individual is unable to perform a major life activity or is significantly restricted in doing so.
As these definitions illustrate, navigating an employer’s obligations under the ADA can be complicated. Moreover, each impairment must be considered on a individualized, case-by-case basis. For example, just because one employee may. be disabled by diabetes does not mean that every diabetic employee necessarily has a disability. In addition, what may be a viable accommodation for one disabled employee is not reasonable for another. Failure to comply with the Act can lead to lengthy and costly litigation. If an employer is found to have violated the Act, it may be required to pay compensatory and punitive damages, as well as back pay and the plaintiff’s attorneys’ fees. Of course, the employer must also pay to defend itself.
Nevertheless, the law is not all bad news for employers who want to do the right thing. The U.S. Supreme Court decided cases in 1999 which clarified the definition of “disability.” the benchmark case was Sutton v. United Air Lines, Inc. In Sutton, twin sisters with severe short-sightedness applied to be pilots with United Air Lines. Both sisters wore corrective lenses, such as eye glasses or contact lenses, with which they could see normally. Nevertheless, the air line had rejected their applications because they did not meet its minimum vision requirements. The myopic sisters then sued, alleging that United had discriminated against them because of their disability.
In response, United argued that the sisters were not substantially limited in a major life ‘activity under the Act because they had corrected their poor vision with their glasses and/or contacts. The Supreme Court agreed and held that in determining whether an individual has a disability under the ADA, it is proper to consider any measures which mitigate the individual’s impairment.
The Supreme Court came to a similar conclusion in the case of Murphy v. United Parcel Service, Inc. Murphy involved a mechanic with high blood pressure who drove a truck for UPS. Although his blood pressure was controlled by medication, the mechanic was fired when UPS discovered that he did not meet the Department of Transportation medical requirements for driving a commercial motor vehicle. The Supreme Court ruled that UPS did not violate the ADA because, even though the mechanic had an impairment -high blood pressure – the impairment did not substantially limit in any major life activity. Therefore, the mechanic was not disabled under the ADA.
In both the Sutton and Murphy eases, the Supreme Court resolved a conflict among the lower courts and effectively overruled regulations stating that the discrimination of whether an individual has a disability should be made without reference to mitigating measures (such as glasses or blood pressure medicine). Practically speaking, the Supreme Court decisions should benefit employers in that only individuals with substantial impairments will be able to prove a disability and therefore invoke the ADA’s protection.
The law under the ADA, like most employment laws, does not stand still. The federal courts continue to interpret the ADA and make rulings affecting how employers comply with the Act. Employers with questions about the Act should consult their human resources personnel or employment counsel.
Sarah H. Lamar is a partner with the law firm of Hunter, Maclean, Exley & Dunn, P.C. She represents businesses in employment related disputes. Her practice includes counseling, training, and defending employers in litigation in both state and federal court.
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