ADA can't Always Protect Disabled Employee's Claim

ADA CAN’T ALWAYS PROTECT DISABLED EMPLOYEE’S CLAIM

by Harvey P. Sanders, Esq.*

Disabled workers can face a vicious circle when bringing discrimination claims -- if they can do their jobs, they are not considered as needing the help of the disability discrimination laws, while if they suffer from a condition that seemingly prevents them from working, they are not considered to meet an important prerequisite to a lawsuit -- being "qualified" to do the job.  The Americans with Disabilities Act ("ADA") is supposed to provide protection, but disability discrimination cases historically have the lowest success rates of employment discrimination claims.  The Supreme Court has issued three decisions that may reduce the success rates even further.
 The Law
All three decisions involved the ADA, which both prohibits any adverse employment action by covered employers against a "qualified individual with a disability" and requires a "reasonable accommodation" to enable such an employee to do the job.  To be a "qualified individual" the worker must be able to do the essential functions of a job and must have: 1) a physical or mental condition that "substantially limits one or more of the major life activities" (such as walking, seeing, hearing, breathing or working); 2) a "record of such an impairment";
or 3) be "regarded as having such an impairment."  The cases before the Supreme Court all involved decisions about hiring or continued employment and whether the plaintiffs were "qualified" -- not any accommodation issues.
 
 The Decisions
In Murphy v. United Parcel Service, the plaintiff suffered from high blood pressure, which he successfully controlled with medication.  Mr. Murphy was working as truck mechanic, a job that periodically required him to drive.  However, the employer fired him because his blood pressure exceeded the Department of Transportation ("DOT") limit for commercial drivers.  Albertsons, Inc. v. Kirkingburg involved a truck driver who saw only out of one eye, but had developed subconscious methods to function.  Indeed, he had been mistakenly certified as meeting DOT standards and drove for the company successfully before being correctly assessed.  He was nonetheless fired, even though he could obtain a waiver from the DOT.  In Sutton v. United Air Lines, the nearsighted plaintiffs, whose corrected vision was 20/20, were seeking jobs as pilots, but had uncorrected vision that was worse than 20/100.  In none of the cases was it established that the plaintiffs could not do the jobs.  On the contrary, Messrs. Murphy and Kirkingburg had been working on the job and the plaintiffs in Sutton had been successful pilots elsewhere.
In all three cases, the Supreme Court held that the plaintiffs were not qualified under the law, because when looked at in their corrected or medicated conditions, the plaintiffs were not substantially limited in any major life activities.  This ruling is directly contrary to the guidelines of the Equal Employment Opportunity Commission ("EEOC"), which had not considered mitigating measures.  The Court's reasoning included the fact that the use of the present tense "limits" in the law means the condition must be looked at as it is, that the law requires an individualized evaluation, and that Congress had cited an estimate of the number of disabled Americans -- 43 million -- and that estimate would have been larger if it included people who use corrective measures such as eyeglasses.
 
However, the Supreme Court did rule that each case must be looked at individually, and that side effects of medication or other mitigating factors could make a person disabled within the meaning of the ADA if they limited major life activities.  Thus, for example, a person may be able to treat a depression with medication, but may still be qualified if the medication substantially limits a major life activity, such as sleeping.
The Court also held that the plaintiffs were not "regarded as" disabled, because the employers did not have a mistaken belief that the plaintiff suffered from a condition they did not have; nor were they mistaken in believing that a nonlimiting condition actually limited a major life activity.  In addition, when looking at "regarded as" claims involving the major life activity of "working," the Court requires that the plaintiff be regarded as unable to do a broad range of jobs, rather than just a single job.

 Impact of the Decisions
  Under these decisions, it will be much more difficult for workers to establish that they are "qualified" persons with disabilities under the ADA if they use medication or other means, such as hearing aids or eyeglasses, or even subconscious methods, to successfully control their condition.   This puts employees between a "rock and a hard place" -- if they use their medication, they may not be disabled, but if they do not take the medication, they may be unable to do the work.
 
One important distinction is that two of the cases, Albertsons and Murphy, involved employers relying on federal regulations as justifications for the decisions not to hire.  The reliance on these regulations gave those employers legitimate nondiscriminatory reasons for termination that helped avoid any issues of perceived disability.  Other employers not impacted by such regulations may not get off as easily.
Another important distinction is that disabled employees in New York State are also protected by the New York Human Rights Law ("HRL"), which defines disabilities more broadly.  Under the HRL, the first of the three definitions requires a condition that merely "prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques."  (The "regarded as" and "record of" options are the same as under the ADA.)  "Normal bodily function" is not the same thing as a "major life activity" and the "demonstrable" prong is even broader.  Thus, for example, gross obesity has been considered a disability under the HRL, although it would not qualify under the ADA unless a major life activity was impaired.  The HRL also covers employers with only four employees, which is more expansive than the fifteen required under the ADA.  These distinctionsmay mean that employees who do not have claims under the ADA may have successful claims under the HRL.

 Conclusion
The Supreme Court has clearly made disability discrimination claims more difficult.  But there are still several open areas, particularly concerning side effects and perceived disabilities, as well as the state law distinctions.  It remains to be seen how those will be resolved by the courts.