Thanks to Susan Stefan, J.D.*
December 1, 1997
The Supreme Court has just taken its first ADA case. Abbott v. Bragdon is a case out of the First Circuit involving an HIV-positive but asymptomatic woman whose dentist refused to treat her in his office, insisting that she check into--and pay for--a hospital before he would see her. The First Circuit affirmed the District Court's decision granting summary judgment to the woman on her discrimination claim. After Abbott was decided, the Fourth Circuit (en banc) issued a decision finding that people who were HIV-positive but asymptomatic were not even impaired, let alone disabled, and therefore did not qualify for protection under the ADA, Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (4th Cir. 1997). Thus, the Fourth Circuit decision conflicted with Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997), and the Supreme Court has taken the case to resolve the conflict in the circuits.
The good news is that this case involves a practice that has uniformly been considered unnecessary by the Center for Disease Control and other public health agencies and experts. It also involves people who are HIV-positive, which may cause the Justices to associate it with School Bd. of Nassau County v. Arline, 480 U.S. 273, the Supreme Court's 1987 decision holding that contagious diseases were covered under the Rehabilitation Act of 1973. Although the plaintiff in Arline had tuberculosis, everyone recognized that this case was about AIDS, and it was one of the best Supreme Court cases on disability discrimination ever written. Further ground for optimism is the fact that HIV-seropositivity was clearly intended to be considered a disability by Congress--it is one of the most frequent assertions in the legislative history. Finally, because this involves HIV-seropositivity, the gay community, with its considerable legal talents and skills, will undoubtedly be heavily involved. In fact, the plaintiff is represented by Gay and Lesbian Advocates and Defenders.
The bad news is that the Supreme Court did not take Runnebaum instead of Abbott. Runnebaum's finding that being HIV-positive is not even a physical impairment was explicitly based on reading the dictionary definition of "impairment." The decision acknowledged that the legislative history, which it said could be ignored because the dictionary definition of impairment was clear. It is hard to believe that even this Supreme Court could affirm Runnebaum. In addition, Justice Thomas is fairly certain to be a negative vote; and Justice Scalia does not believe in looking to legislative history. The basis for finding that people who are HIV-positive but asymptomatic are substantially limited in a major life activity -- that they are limited in reproduction -- is shaky. I hope to write an amicus brief on behalf of NARPA and others questioning the primacy given to the "substantial limitation on major life activities" prong of the definition of disability. This has been used to insulate many clearly discriminatory decisions.
Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997).
November 20, 1997
Matthews v. Commonwealth Edison, 128 F.3d 1194 (7th Cir. 1997), is Chief Judge Posner's latest effort in creating ADA jurisprudence in his own image. Chief Judge Posner is the only Circuit Court judge who seems to have given a great deal of careful thought to the structure of ADA jurisprudence, with (predictably) mixed results for the plaintiff's bar. He is bound far more by his own ideas of what makes sense than by legislative history, regulations, or the position of the relevant regulatory agency (the EEOC filed an amicus brief in this case). But his opinions carry a clarity and certainty that makes other judges recite and reproduce them, perhaps because it relieves those other judges of the burden of thinking through the difficult issues.
Judge Posner identifies three issues in this case that he weighs in on with typical certitude. First, are terminations due to reduction in force subject to the ADA, since they are by definition caused by economic hardship? Yes, says Judge Posner. Think of reductions in force as hiring in reverse. Where once you had one hundred jobs, now you have eighty jobs and one hundred candidates for those jobs. You cannot make decisions on who to retain based on disability any more than you could make hiring decisions based on disability.
However, you can make decisions based on factors which are results of disability, if those factors are not illegitimate proxies for intentional discrimination, and are required by the necessities of the job. For example, he says, "Suppose that two workers are vying for promotion to a job that requires a lot of reading. One of the workers is dyslexic and as a result reads very slowly. He can do the job for which he is applying...but he can't do it as well as the other applicant, who does not have a disability. ..The employer could not refuse to consider him for the promotion because of his dyslexia, but it is not disability discrimination for the employer to give the promotion to the other worker, the one who can do the job better. ..Of course, in our hypothetical case of dyslexia, it is open to the disabled worker to try to prove that he lost the promotion because his employer dislikes people with disabilities, not because his inability to read quickly made him the worst choice for the job [citation to one of Posner's decisions omitted]. That is, it would be open to the dyslexic worker to try to prove that he was a victim of intentional discrimination..."
Posner recognizes that the ADA also permits disparate impact challenges, the kind of challenge that would focus on the reasonableness of the reading requirement and its effect on people with disabilities. In the case at issue (Judge Posner finally gets to the legal question actually presented by the case before him on page 9 of the opinion), a worker disabled by a heart attack in the previous year was laid off because, by comparison to other workers, his performance rating was lower because he had worked less. He had worked less because he had a heart attack, from which he was fully recovered. Judge Posner holds that laying him off on the basis of his lack of productivity in the past year, which in turn was due to his disabling heart attack, is not discriminatory absent proof that "the rule [i.e. deciding which employees to retain on the basis of their productivity in the last year] is a pretext for weeding out disabled employees or that it bears more heavily on disabled employees and is not justified by the needs of the business. Otherwise, it is a reasonable criterion of retention that just happened to hit a disabled worker."
Judge Posner both gives and takes away in the Matthews opinion. It is clearly a very useful holding that a termination due to a reduction in force is still subject to ADA scrutiny. A number of courts have held otherwise. On the other hand, his argument about the comparative skills of the dyslexic and non-dyslexic worker appears in an accommodation-free vacuum. The question is not the comparison between the worker with dyslexia and the worker without dyslexia, but between the accommodated worker with dyslexia and the worker without dyslexia. IF the dyslexic worker is reasonably accommodated, and if reading fast is an essential function of the job, and if under those circumstances the non-dyslexic worker is still more qualified, then the non-dyslexic worker is entitled to the promotion. But to undertake this discussion without once adverting to the possibility of reasonable accommodation is troubling, and many judges will simply cite to it as support for summary judgment against the dyslexic worker.
Matthews v. Commonwealth Edison, 128 F.3d 1194 (7th Cir. 1997).
September 5, 1997
With the decision in Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. 1997), there is now a conflict among the circuits as to whether the EEOC's regulation, implementing legislative history that clearly indicated that disability was to be considered without regard to mitigating medication or devices, departs from the language of the ADA so substantially as to be disregarded by the courts. This issue has come up often in cases involving people with diabetes and vision impairment, but it has also come up more than once in cases involving people diagnosed with bipolar disorder.
This case is likely to be appealed to the Supreme Court. If the Supreme Court takes the case, it will be the first time the Court has construed the requirements of the ADA. For an extremely thoughtful and scholarly district court decision examining the various degrees of deference due various kinds of regulations, and ultimately finding a plaintiff disabled whose 20/200 vision was completely corrected by contac lenses, see Sicard v. City of Sioux City, 950 F.Supp. 1420 (N.D. Iowa 1996). This judge, Judge Bennett, has written a number of ADA decisions which read like mini-treatises, complete with ample historical references and citations to legislative history and compendia of case law. See, e.g. Muller v. Hotsy, 917 F.Supp. 1402 (N.D.Iowa 1996), the groundbreaking Heather K. v. City of Mallard, Iowa , 946 F. Supp. 1373 (N.D. Iowa 1996); Hutchinson v. United Parcel Service, 883 F.Supp. 379 (N.D. Iowa 1995) and Fink v. Kitzman, 939 F.Supp. 1376 (N.D. Iowa 1995). Not all of these decisions come out favoring the plaintiff, but they provide a rich source of material regarding the ADA.
Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. Sept. 2, 1997).
July 2, 1997
Palmer v. Circuit Court of Cook County, 117 F.3d 351 (7th Cir. 1997), is a short decision that is likely to be extremely influential, since it is written by Judge Posner and provides guidance in an extremely murky area of ADA law, namely the applicability of ADA standards to behavioral difficulties exhibited by an employee. There are two basic strands to this decision. The first has to do with what counts as a mental disability for ADA purposes; the second is whether the duty of reasonable accommodation runs in favor of an employee who threatens to commit violence.
Marquita Palmer worked well and without incident as a social service case worker for Cook County until Clara Johnson became her supervisor (note: this is a classic fact pattern in ADA litigation involving people with mental disabilities, and sometimes I wonder whether the person who gets assigned the label of mental disability is simply the one who is lower on the employment totem pole). Her difficulties with her supervisor led to major depression and delusional paranoid disorder, and Palmer made a series of phone calls in which she threatened in pretty vivid terms to kill her supervisor. The judge at the district court level granted summary judgment to Cook County on the basis that a personality conflict with a supervisor could not be a disability as a matter of law.
Posner says that the conflict in and of itself is not a disability, but it can trigger a disability for the purposes of the ADA. However, he further ruled that the duty of reasonable accommodation to a disability simply does not apply to employees who commit or threaten to commit violent acts. While this may seem to be reasonable in this case, it is actually a terrible precedent, since Posner does not even make reference to the direct threat defense, an affirmative defense available to the employer, but rather opens the Pandora's box of exceptions to the employer's duty to reasonably accommodate a disability. The court does not even consider wortring the plaintiff, who apparently never had any problems with anyone except the single supervisor. Posner also makes (as is his wont) a number of unreferenced statements about mental illness, as though they are so clearly true they need no citation: "Schizophrenia and other psychoses are frequently triggered by minor accidents or other sources of normal stress. Before then the individual seemed perfectly normal; after that he may be incapable of productive employment for the rest of his life. (Case citations omitted.) Palmer's paranoid delusions concerning her supervisor are typical symptoms of schizophrenia, although her psychiatrist did not use the term. Psychotic episodes are not certain to recur, and if they don't the psychosis would not be disabling."
Palmer v. Circuit Court of Cook County, 117 F.3d 351 (7th Cir. 1997).
June 12, 1997:
The case of the week is Jessica Keoughan v. Delta Airlines. Plaintiff, a flight attendant, was diagnosed with bipolar disorder. She was discharged after missing several flights, and asked as a reasonable accommodation for her disability that Delta increase the number of times she might miss work without being disciplined. The district court held that because the record showed that Ms. Keoughan had not been taking her lithium, she could not be a "qualified" individual, stating that "a disabled individual is not `qualified' if she needs accommodation precisely because she failed to manage an otherwise controllable disorder. [citations omitted]... the district court determined that it was undisputed that Ms. Keoughan's disorder could be controlled and stabilized with lithium, and therefore she could perform all the essential functions of her job. Because the facts show that Ms. Keoughan failed to take her lithium, the district court granted Delta's motion for summary judgment.
On appeal the Tenth Circuit did not decide whether this analysis was correct, deciding instead that consistent and predictable attendance at work was an essential function of the job, and that one cannot request as a reasonable accommodation to be relieved of performing an essential function of the job.
Nevertheless, the prospect of courts requiring plaintiffs to take their meds as a condition to being considered qualified to file ADA suits is ominous.
Keoughan v. Delta Airlines, No. 96-4072, 1997 U.S. App. LEXIS 12232 (10th Cir. 1997).
* Susan Stefan is an attorney with the Center for Public Representation in Newton, Massachusetts. She received her J.D. from Stanford Law School. From 1986 until 1990, she worked for the Mental Health Law Project, which is now called the Bazelon Center for Mental Health Law. A professor of law at the University of Miami Law School from 1990 until 2001, she taught mental health and disability law. Ms. Stefan is the author of Unequal Rights: Discrimination Against People With Mental Disabilities and the Americans With Disabilities Act and Hollow Promises: Employment Discrimination Against People With Mental Disabilities, as well as numerous law review articles. She has litigated a number of ADA cases, including Ellen S. v. Florida Board of Bar Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994) and Doe v. Stincer, 990 F. Supp, 1427 (S.D. Fla. 1997), vacated by Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999).
Last updated January 2005