Americans with Disabilities Act

The Supreme Court Allows Employees to be Excluded From the Workplace for Personal Safety, Narrowing the ADA - Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002) - Lower Court

When Congress drafted the Americans with Disabilities Act, it intended to it to have a broad scope, as evidenced by the legislative findings and purpose in the prolog to the Act:

(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(5) individuals with disabilities continually encounter various forms of discrimination, including ... overprotective rules and policies ... exclusionary qualification standards and criteria;

(8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

The legislative hearings and text of the ADA itself indicate that there are two purposes of the ADA. The first was to assure that persons with disabilities would be treated justly. The ADA has advanced the just treatment of the disabled. The most obvious effect of the ADA is in access to public and private buildings for persons with mobility disorders. The standards for ramps, elevators, widened doorways, etc., are clear and relatively unambiguous. Second, the ADA was intended to reduce the federal disability payments by getting people back to work. However, it is not clear how much the ADA ever did to help the second goal because most people who can meet federal disability standards are sufficiently disabled to still not be employable with the ADA protections.

The effect of the ADA on individual discrimination in the workplace is harder to access. The core questions posed by the ADA's statutory language are:

1) is an individual disabled, which is defined in terms of the effect of the impairment on major life activities; and

2) if the individual is disabled, is he/she otherwise qualified for the job with a reasonable accommodation, with the reasonableness of the accommodation being determined by looking at the resources available to the business rather than looking at the value of the job.

In contrast to the architectural standards of the ADA, these standards are vague and ambiguous. Each aspect of the standards has been extensively litigated. In most cases the federal circuits have split and the cases are now reaching the Supreme Court.

I. The Precedent Cases

In the first case to reach the court, Bragdon v. Abbott, 524 U.S. 624 (1998), the court first ruled on the definition of major life activity. Plaintiff was a patient with HIV who claimed she was discriminated against by a dentist because he wanted to do her dental work in an operating room to better manage the risk of spreading HIV to the dental personnel. The defendant claimed that HIV was not a disability because the patient was asymptomatic and thus there was no affect on any of her major life activities. This case posed a difficult political question for disability rights groups because of the conflict between their position that persons with asymptomatic HIV are not impaired and the statute's requirement that one be impaired in a major life activity to get ADA protection. The case turned on the plaintiff's claim that being HIV positive would affect her decisions about getting pregnant. The court agreed, finding that childbearing is a major life activity, and rejected defendant's arguments that plaintiff should have to show that she intends to have children and what effect HIV will have on this decision. In retrospect, the court was probably more generous to the plaintiff because this was a public accommodations case rather than an employment case. (On remand, the Circuit Court found that HIV infection did not pose a significant risk to dentists during normal dental procedures - Abbott v. Bragdon, 163 F.3d 87, 8 A.D. Cases 1592 (1st Cir. 1998).

While Bragdon takes a broad view of disability and interference with a major life activity, the next ADA decided by the Supreme Court, Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162 (1999), significantly narrows the definition of major life activity. The plaintiff was a truck driver with such severe amblyopia (weak eye) that his effective vision in the affected eye is 20/200; he does not have binocular vision. Department of Transportation (DOT) regulations require that commercial truck drivers have 20/40 vision in each eye and effective binocular vision so that their depth perception is not hindered. The United States Supreme Court began its review of this case with consideration of whether plaintiff was disabled under the ADA. The Court accepted that plaintiff met the first program of the test - a physical impairment - but questioned the second prong - does the physical impairment affect a major life activity? It rejected the appeals court's simplistic conclusion that: "It was enough to warrant a finding of disability ... that the plaintiff could see out of only one eye: the manner in which he performed the major life activity of seeing was different." The court rejected this transformation of the "significant restriction" standard into a standard based on finding no more than a difference between the functioning of persons with and without the physical impairment. In particular, the Supreme Court found that the appeals court ignored the issue of mitigation and compensation for the impairment; an issue at the heart of two companion cases decided at the same time. On Court held that the plaintiff would have to make a specific showing of how he individually was restricted in a major life activity by this impairment.

In the companion cases decided with Albertson's, Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999) and Murphy v. U.P.S., 119 S.Ct. 2133 (1999), the court addressed whether persons who can treat or mitigate their disabilities, such as treating diabetes or wearing glasses or a hearing aid, should be covered by the ADA if the mitigated disability no longer significantly restricts a major life activity. When such individuals have brought ADA actions in the past, defendants have argued that the court should look at the effect on significant life activities after the mitigation, not in the unmitigated state. This question was even implicit in Bragdon: a tubal ligation would have mitigated the effect of HIV on her reproductive choices, thus arguably undermining her claim to be disabled if disability is judged after mitigation.

Plaintiffs in Sutton were commercial pilots who were excluded from working for major airlines because their uncorrected vision was not 20/100 or better, although it was corrected to 20/20 with glasses. The court held that it was the corrected vision that had to be considered. Plaintiffs conceded that that with glasses they were able to carry out all the major activities of daily life, except work as a pilot with a major airline. The court then ruled that while working was a major life activity, working a specific job was not: as long as the plaintiffs could work at some job while wearing glasses, they were not impaired in the major life activity of working.

Next, the United States Supreme Court applied the Sutton analysis in the companion case of Murphy v. U.P.S. Murphy was a mechanic for U.P.S. and as part of his job, he was required to drive the trucks which were brought in for service. To do this, he had to have a commercial truck driver's license and meet Department of Transportation (DOT) medical standards. He could not do this because he had hypertension that was higher than the DOT standard even with medication. The Court found, however, such hypertension did not affect any significant life activities. As with Sutton, the fact that plaintiff could work as a mechanic for UPS, although not as a truck diver, was an insufficient impairment to meet the standard for interfering with the life activity of working. The court thus found that plaintiff in Murphy was not disabled and could not sue under the ADA. Murphy is more troubling than Sutton in that hypertension that exceeds DOT standards even with medication can interfere with many of plaintiff's life functions. If HIV was a disability in Bragdon because it interfered with the decision to have children, it would seem that the cardio-vascular damage caused by inadequately treatable hypertension would interfere with plaintiff's ability to live a natural life span and be free of many diseases.

In Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court held that the ADA was not meant to cover every person who had problems functioning in a specific job, but only persons who were disabled such that their impairment significantly affected the activities of daily living. The fatal error for the plaintiff in Toyota Motor was she did not put on proper evidence of how her impairment affected her daily life, and did not rebut evidence that there was no affect on her daily life. Because the plaintiff could engage in the normal activities of daily living outside of work, it was held to be insufficient to meet the ADA's definition of disability and thus was not covered by the statute. Given Sutton as precedent, the result in this case is not surprising.

II. Chevron U.S.A., Inc. v. Echazabal

The instant case, in contrast to previous cases, focuses on the "significant risk" provisions of the ADA. Bragdon reviewed the statutory language that allows limitations on disabled individuals if they pose a "risk to others." Bragdon found that there must be a particularized finding of significant risk to others, and if there is plaintiff may be treated differently as necessary to mitigate that risk. (Upon remand, the appeals court found that persons with HIV did not pose such risks to dentists as to justify moving dental procedures to an operating room - Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998).) Chevron, however, deals with the much more common problem of employees who might be personally harmed in the workplace because of their own physical or mental status. Employers have a powerful economic incentive to exclude any employee who is more susceptible to injury because such injuries are covered by worker's compensation or group health, either of which increase the costs of employment. Before the ADA, most states allowed employers to perform pre-employment physicals and exclude workers who were found to be at increased risk of injury. Thus an individual with an abnormal spinal x-ray would be excluded from jobs requiring heavy lifting. The ADA bans pre-employment physicals, although they are still performed by many employers. The text of ADA says that employees are not "otherwise qualified" if they pose a significant risk to others. It is silent on the risk to the employee him/herself. Since this was a major point of contention in the adoption of the ADA, it had been assumed by most scholars that Congress meant to exclude considerations of danger to the employee by not making it part of the statute. The EEOC disagreed, and promulgated regulations that allowed employees to be excluded from the workplace if they were at greater risk of injury than other employees.

The plaintiff in Chevron had a liver condition which placed him at a greater risk of injury extending his liver damage if he is exposed to certain chemicals in the workplace. OHSA regulations, which pre-date the ADA, require employers to monitor liver function in certain classes of employees and to exclude employees whose liver function is outside of normal limits. Relying on the EEOC regulations, Chevron excluded the plaintiff from the work place. Echazabal sued, and the district court upheld the regulations. The Ninth Circuit reversed, finding that the regulations exceeded the agency's permitted discretion under the statute. As characterized by the Supreme Court, however, the Ninth Circuit's opinion rested its position on the text of the ADA itself in explicitly recognizing an employer's right to adopt an employment qualification barring anyone whose disability would place others in the workplace at risk, while saying nothing about threats to the disabled employee himself. The majority opinion reasoned that 'by specifying only threats to `other individuals in the workplace,' the statute makes it clear that threats to other persons -- including the disabled individual himself -- are not included within the scope of the [direct threat] defense, and it indicated that any such regulation would unreasonably conflict with congressional policy against paternalism in the workplace.

The Supreme Court read the "risk to others" language in the statute as an example of larger set of workplace qualifications, not all of which are listed in the statute. The Court rejected the argument that Congress made a legislative choice to abandon the old standard which allowed employers to exclude employees that the employer believed were at increased risk. Instead, the Court found that Congress had merely given one example of reasons an employee might be excluded, without eliminating others. The extensive congressional testimony on both sides of this issue, the clear congressional intent to reduce employer paternalism, and the underlying policy to shift the costs of disability from state and federal disability programs to private employers, is ignored in this opinion. Justice Breyer, who usually explores the legislative record in extensive detail, is silent in this case.

III. The Implications of Chevron U.S.A., Inc. v. Echazabal

The ADA presents difficult policy choices: should employees be the sole judge of whether they want to assume the risk of a job, or should employers be allowed to exclude employees who are at risk of injury and thus save themselves significant worker's compensation costs? The choice is complicated by a lack of reliable information on what factors really put employees at increased risk and the tendency of employers to be "safe rather than sorry" and thus exclude any employees with questionable medical conditions. At the same time, OSHA and other health agencies have promulgated extensive regulations intended to protect employees, but often at the cost of the employee's job. Combined with the United States Supreme Court's earlier decisions limiting the definition of disability, this case will put employees in a difficult bind. If they are not severely impaired, they will not be covered by the ADA. If they are severely impaired, then they can now be excluded for the work place if the employer believes that they will be a significantly increased risk of injury. This case even calls into question previous decisions such as Automobile Workers v. Johnson Controls, Inc., 499 U. S. 187, 202 (1991) a case handed down prior to the ADA's passage. As the Court stated in Chevron those cases "are beside the point, as they, like Title VII generally, were 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 assessments." Thus an employer might be able to justify a program that excluded women from certain jobs based on their personal reproductive capacity, which, presumable, would then be fair game for intrusive medical examinations and testing.