Disabling Complexity: the Americans With Disabilities Act of 1990 and Its Interaction With Other Federal Laws

• Publication year: 2022

38 Creighton L. Rev. 871. DISABLING COMPLEXITY: THE AMERICANS WITH DISABILITIES ACT OF 1990 AND ITS INTERACTION WITH OTHER FEDERAL LAWS

Creighton Law Review

Vol. 38

TORY L. LUCAS(fn*)

INTRODUCTION

Some areas of the law are neatly organized and packaged. For example, federal tax laws can generally be found in the United States Tax Code. Commercial law has the Uniform Commercial Code at its foundation. The Uniform Probate Code has codified estate laws in many states. However, labor and employment laws have been adopted in a hodge-podge fashion. Courts, attorneys, employers and employees must have a vast store of knowledge and expertise when analyzing issues concerning the workplace. American labor and employment law can be found in the United States Constitution, state constitutions, federal statutes and regulations, state statutes and regulations, local ordinances and regulations, and common law principles. A simple listing of statutes implicating federal labor and employment law illustrates the breadth and depth of federal legislation in this important area of national policy.(fn1)

Given the daunting backdrop of federal legislation impacting the labor and employment arena, the task of understanding how all of the federal legislation - not to mention the state and local legislation - interrelates may be an impossible task even for legal experts. One vital area of federal employment legislation involves protecting the rights of individuals with disabilities. The Americans with Disabilities Act of 1990(fn2) ("ADA") was a long-awaited piece of federal legislation which seeks "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."(fn3) The ADA also seeks "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities," and "to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities."(fn4) To fully understand the ADA and to ensure its purposes are fulfilled, other federal employment statutes must not diminish the ADA's goals. This article discusses how the ADA interacts with other critical federal employment statutes.(fn5)

Specifically, this article focuses on how the ADA affects and is affected by other federal laws. Part I discusses the ADA's interrelationship to the Family and Medical Leave Act of 1993. Part II discusses the ADA's interaction with the Occupational Safety and Health Act of 1970. Part III discusses the applicability of the hostile work environment theory under Title VII of the Civil Rights Act of 1964 to the ADA. Part IV discusses the ADA's relationship to the Social Security Act of 1935. Finally, Part V discusses the ADA's interaction with the National Labor Relations Act and national labor policy. Given the disabling complexity of the vast amount of federal employment legislation, especially the laws impacting our national disability policy, every citizen must critically ask whether our Nation enjoys a single, clear, effective, compassionate policy toward individuals with disabilities.

I. SO CLOSE, YET SO FAR AWAY: THE ADA'S INTERACTION WITH THE FAMILY AND MEDICAL LEAVE ACT OF 1993

A. INTRODUCTION

The ADA can often interact with the Family and Medical Leave Act of 1993(fn6) ("FMLA").(fn7) However, it is important to remember the FMLA is a leave-oriented act,(fn8) while the ADA is a work-oriented act.(fn9) Although the FMLA focuses on leave and the ADA focuses on work, understanding the interaction between these two employment statutes can be difficult. One author has noted sixty-three percent of respondents to a Society for Human Resource Management survey "reported frequent or occasional uncertainty about coordinating leave under the ADA, the FMLA, and short-term and long-term disability programs."(fn10) The same author noted fifty-eight percent of those responding to the same survey "reported uncertainty about whether an employee who requested FMLA leave was also covered by the ADA."(fn11) Indeed, the interaction between the FMLA, the ADA, and state workers' compensation laws has been referred to as the Bermuda Triangle.(fn12) An employee can have rights under both the ADA and the FMLA, under the ADA and not the FMLA, under the FMLA and not the ADA, or no rights under either the ADA or the FMLA. Therefore, one must understand how the ADA and the FMLA interact.

When the ADA and the FMLA interact, both statutes must be interpreted and applied such that neither is adversely impacted by the other. The ADA specifically states that it does not "invalidate or limit the remedies, rights, and procedures of any Federal law . . . that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act."(fn13) Likewise, the FMLA specifically mandates that it does not "modify or affect any Federal . . . law prohibiting discrimination on the basis of . . . disability."(fn14) Although the ADA and the FMLA may be implicated at the same time, both statutes stand on their own and must be individually analyzed under their varying standards.(fn15) The most critical distinction be-tween the ADA and the FMLA involves the standard under which employees gain protection under both employment statutes. For that reason, this section will focus only on those varying standards of coverage under the ADA and the FMLA.

B. THE ADA AND THE FMLA

The ADA prohibits discrimination against qualified individuals with disabilities.(fn16) Specifically, the ADA states that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."(fn17) A qualified individual with a disability is "an individual with a disability who, with or without reasonable ac-commodation, can perform the essential functions of the employment position that such individual holds or desires."(fn18)

The FMLA, on the other hand, provides qualified employees with up to twelve workweeks of leave per year.(fn19) Specifically, a qualified employee can receive her federally mandated leave for the birth of a child, placement of an adopted or foster child with the employee, to care for certain relatives with serious health conditions, or when a serious health condition prevents the employee from performing her job.(fn20) Employers are prohibited from discriminating against or interfering with employees who seek to exercise their FMLA rights.(fn21)

It is essential to understand how the ADA and the FMLA interact. The most critical distinction between the ADA and the FMLA lies in what health conditions are covered. The ADA only protects qualified individuals with disabilities.(fn22) Therefore, an individual must have a qualifying disability to benefit from the ADA's protection.(fn23) The FMLA, on the other hand, does not cover individuals with disabilities. Instead, the FMLA uses a distinct term for coverage - "serious health condition."(fn24) While the Supreme Court has actively interpreted the term "disability" under the ADA, the Court has not addressed the FMLA's use of the term "serious health condition."(fn25)

C. THE ADA'S FOCUS ON DISABILITY

The ADA's most important definition is what constitutes a disability. The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."(fn26) In a trio of cases issued on the same day in 1999, the Supreme Court limited the ADA's reach by narrowly interpreting the term disability.(fn27) The Supreme Court again limited the scope of the term disability in 2002.(fn28)

In Sutton v. United Air Lines, Inc.,(fn29) twin sisters with severe myopia were precluded from interviewing for commercial airline pilot positions because their uncorrected vision was worse than 20/100.(fn30) With corrective lenses, each sister had at least 20/20 vision and could "function identically to individuals without a similar impairment."(fn31) The twins sued for disability discrimination under the ADA, which ultimately led to the Supreme Court deciding the effect mitigating measures have on an individual's disability. Specifically, the Court asked whether an individual's disability should be determined by taking into account corrective measures.(fn32) The Court recognized the EEOC had already issued interpretive guidance that an ADA disability determination is made "without regard to mitigating measures."(fn33) The Court determined "that the approach adopted by the [EEOC's] guidelines - that persons are to be evaluated in their hypothetical uncorrected state - is an impermissible interpretation of the ADA."(fn34) The Court held "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment."(fn35)

In addition to holding eligibility for ADA protection depends on measures that mitigate an impairment, the Supreme Court, in Sutton, also addressed circumstances when an employer regards an individual as having a disability...