Surviving Summary Judgment in the Ada Employment Case-part I

• Publication year: 1995
• Pages: 1301
• Citation: Vol. 24 No. 6 Pg. 1301

24 Colo.Law. 1301 Colorado Lawyer 1995.

1995, June, Pg. 1301. Surviving Summary Judgment in the ADA Employment Case-Part I

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Vol. 24, No. 6, Pg. 1301

Surviving Summary Judgment in the ADA Employment Case---Part I

by Lucinda A. Castellano

The passage of the Americans With Disabilities Act of 1990 ("ADA" or "Act")(fn1) was cheered by advocates for disabled individuals and feared by many in the business community. Advocates expected that the ADA would alter business practices that tended to exclude persons with disabilities in hiring or that resulted in termination of employees who develop a disability. Business feared that the "vagueness" of the law would create broad rights for applicants and employees claiming disability. After three years of enforcement, there is case law (primarily from states other than Colorado) from which to glean a sense of how Title I of the ADA is being interpreted by the courts.

This two-part article discusses how many plaintiffs' cases are facing successful challenge on summary judgment motions for failure to establish a prima facie case of disability discrimination. This Part I explores the issue of whether a person has a protected "disability." Part II, to be published in the August issue, will examine the threshold requirement that the individual must be "qualified."

Overview of ADA Enforcement

Private employers with twenty-five or more employees became subject to the ADA on July 26, 1992, and private employers with fifteen or more employees were subject to the prohibitions against disability discrimination on July 26, 1994. Disability discrimination in state and local government employment is redressable under Title II of the ADA, which took effect on January 26, 1992.(fn2)

Elements of a Prima Facie Case

The elements of a prima facie case include the elements of a Title VII action, combined with some elements unique to disability discrimination litigation.(fn3) The ADA defines the term "qualified person with a disability" as an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. . . ."(fn4)

The 1981 Tenth Circuit case of Pushkin v. Regents of University of Colorado(fn5) modified the Title VII model by requiring that in handicap discrimination cases decided under the Rehabilitation Act, the plaintiff must show that he or she was an otherwise qualified handicapped person, apart from his or her handicap, and was rejected under circumstances that raise the inference that the rejection was based solely on his or her handicap. Once a prima facie case is established, the burden shifts to the employer to show one or more nondiscriminatory explanations for actions.

Definition of "Person With a Disability"

The ADA defines a "disability" as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.(fn6)

This definition is comparable to the definition of "individual with a handicap" in the 1973 Rehabilitation Act.(fn7) Existing Rehabilitation Act case law is generally applicable.(fn8) New interpretive guidelines on the definition of disability have recently been issued by the EEOC.(fn9)

Many recent court decisions have addressed the issue of what constitutes a covered disability. One recent court case rejected the EEOC Guidance that indicated that diabetes was a per se disability under the statute.(fn10)

Effect of Plaintiff's Minimizing Impact of Disability

Sometimes, employees with very real impairments have learned to work around the pain or disabling impact, so they no longer see themselves as having a disability. Other employees with disabilities, in order to counter an employer's charge that they cannot perform the job because of an impairment, may deny that the impairment interferes with their work. This has worked very much to plaintiffs' detriment, because courts often find that such plaintiffs do not meet the threshold of being a "person with a disability."(fn11)

Determination of "Substantial Impairment"

There have been surprising, often contradictory developments in the holdings as to whether a person has a "substantial impairment," particularly in the "major life activity" of working. Many...