The "presence Is an Essential Function" Myth: the Ada's Trapdoor for the Chronically Ill

• Publication year: 1995

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 1FALL 1995

The "Presence Is An Essential Function" Myth: The ADA's Trapdoor for the Chronically Ill

Audrey E. Smith(fn*)

I. Introduction

The Americans With Disabilities Act of 1990 (ADA) characterizes itself as "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."(fn1) Because it is designed to assure "equality of opportunity, full participation, independent living, and economic self-sufficiency"(fn2) for the disabled, the ADA is that group's "long-awaited equivalent to the Civil Rights Act of 1964."(fn3)

The ADA provides "clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities."(fn4) Moreover, in an attempt to assure maximum fairness in its application, the ADA's drafters delegated to the courts the responsibility for conducting fact-specific, individualized inquiries. However, in the context of disabled employees with high absenteeism, courts have fashioned a sweeping, unnecessary, and misleading rule of law in contravention of the case-by-case approach mandated by the ADA. This ill-conceived blanket rule requires, as a matter of law, a person's "presence" as an essential function of most, if not all jobs. Thus, courts have effectively eliminated ADA protection for an entire class of disabled individuals-those suffering from chronic illnesses.

Most disabled individuals with high absenteeism suffer from so-called "invisible chronic illnesses"-diseases that are characterized by their chronicity and non-externally manifested symptomatology.(fn5) Examples of these "invisible chronic illnesses" include chronic fatigue syndrome, irritable bowel syndrome, HIV infection, multiple sclerosis, endometriosis, Crohn's disease, fibromyalgia, and lupus erythematosus.(fn6) These illnesses typically involve unpredictable periods of pain or fatigue or both, interspersed with periods of remission, resulting in the continued disruption of the work and the lives of their victims. Anyone suffering from an "invisible chronic illness" is in a particularly tenuous position when it comes to employment.(fn7) Often these victims are afraid to tell their employers of their conditions for fear of reprisal. As one sufferer of chronic fatigue syndrome described the situation, "I'm afraid I can't keep the act up anymore because I'm so exhausted. But I'm even more afraid if I let them know what I'm going through it will mean the end of my job."(fn8) Eventually, this woman's chronic fatigue symptoms may force her to miss work frequently. When that happens, her fears will not be laid to rest if she looks to the ADA for protection.

In nearly all cases, long-term chronic illnesses satisfy the ADA's broad definition of disability.(fn9) However, when these illnesses begin to cause absenteeism, the "presence is an essential function" rule effectively denies protection to the victims of these illnesses, as they are no longer "qualified individuals" under the ADA regardless of whether they satisfy the technical requirements for a position.

The idea that "presence is an essential function" is a myth because (1) it erroneously assumes that most jobs can be performed only at the worksite, and (2) virtually all employers are able to, and do, accommodate some degree of employee absenteeism. Thus, this Comment argues that the "presence is an essential function" rule is unsound. The courts should discard this rule and, instead, ask the question that is mandated by the ADA: Can the chronically ill employee be accommodated?

This approach is appropriate for four reasons: First, the unnecessarily broad and sweeping language that "presence is an essential function" is both unnecessary and misleading. Second, the ADA and its interpretive regulations mandate fact-intensive, case-specific inquiries in order to satisfy the ADA's goal of making employment opportunities available to the maximum number of disabled individuals. Third, it is the disabled individual, not his or her absenteeism, that must be accommodated. Finally, numerous reasonable accommodations exist for individuals with disability-related absenteeism.

Part II of this Comment will describe the legislative history and provisions of Title I of the ADA. It will also trace the evolution of the "qualified individual" and the duty to accommodate, as well as the emergence of the "presence is an essential function" myth. Part III will describe how the courts' invention and continued application of the "presence is an essential function" myth is contrary to the purposes of the ADA. Finally, Part IV will offer an appropriate approach to analyzing cases involving disability-related absenteeism.

II. Title I of the Americans with Disabilities Act

A. Legislative History and Purpose

Congress enacted Title I of the ADA in response to the discrimination that persons with disabilities encountered in the workplace. The legislators recognized that the history of isolation and discrimination faced by disabled individuals continued to pervade American society, particularly private employment. They determined that people with disabilities, as a group, suffered reduced socioeconomic status. Further, they concluded that discrimination denied the disabled the opportunity to compete equally with others, and cost both the government and the private sector "billions of dollars in unnecessary expenses resulting from dependency and non-productivity."(fn10)

Before the ADA was enacted, the employment picture for people with disabilities was dismal. Two-thirds of all disabled Americans between ages 16 and 64 were not working at all, although two thirds of those wanted to have a job.(fn11) Despite enactment of legislation such as the Rehabilitation Act,(fn12) both employment and income levels among the disabled actually dropped between 1980 and 1988.(fn13) The majority of unemployed disabled individuals, an estimated 8.2 million people, were relying on insurance payments or government payments to support themselves.(fn14) The House of Representatives, in 1990, recognized the demoralization felt by disabled individuals when they are denied the ability to be self-supporting.(fn15) As one disabled woman put it, "[W]e can go just so long constantly reaching dead ends. I am broke, degraded, and angry . . . . [W]hich way and where can we go? What and who can we be?"(fn16)

Inherent in the ADA legislation is the acknowledgment that disabled persons represent an untapped resource. "Millions of disabled Americans who have been denied access to the workplace are well educated and can be easily trained. What is more, they are some of the most highly motivated people in our society today."(fn17) Accordingly, a rule that precludes the chronically ill from the protection of the ADA is clearly antithetical to the purposes of the legislation.

B. Provisions of Title I

Title I of the ADA prohibits discriminatory employment practices against a "qualified individual with a disability" because of that individual's disability.(fn18) Covered entities(fn19) may not discriminate against qualified individuals because of their disabilities in job application procedures; hiring, advancement, or discharge actions; employee compensation; job training; nor in other terms, conditions, or privileges of employment.(fn20) Discriminatory actions prohibited by the ADA include failing to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.(fn21) The ADA also prohibits "utilizing standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability."(fn22)

Thus, the ADA plaintiff states a prima facie case of discrimination by showing that he or she is a "qualified individual with a disability," that is, "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."(fn23) Once these elements are shown, the burden shifts to the employer to show that the suggested accommodation would impose an undue hardship.(fn24)

1. Disability

The plaintiffs first step, then, is to show that he or she is "an individual with a disability." An "individual with a disability" is one who (1) has a physical or mental impairment(fn25) that substantially limits one or more of the individual's "major life activities," (2) has a record of such impairment, or (3) is regarded as having such an impairment.(fn26)

"Major life activities" are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, [or] working."(fn27) An individual's ability to work is substantially limited if his or her ability to perform a class of jobs or a broad range of jobs of various classes is significantly restricted when compared with the ability of an average person who has comparable qualifications.(fn28) Thus, even if a physical or mental impairment limits an individual only in his or her ability to work, the individual satisfies the statutory definition of "an individual with a disability."(fn29)

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