The Americans With Disabilities Act Of 1990: The Incredible Shrinking Legislation? A Closer Look At Chevron v. Echazabal

Author:Jessica L. Johnson

I. Introduction II. Historical Background III. The "Term Of The ADA" A. Major Life Activities B. Reasonable Accommodation C. Mitigating Measures D. Remedies IV. Chevron V. Echazabal And The Direct Threat Defense A. Discussion B. Analysis C. Discrimination And Defenses Under The Ada D. The Direct Threat Defense In Detail E. The Current Direct Threat Defense V. Significance VI. Conclusion


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I Introduction

The Americans with Disabilities Act (ADA), regarded as a huge step forward in the disability rights movement, requires under Title II that all places open to the public, whether a private business or a government building, be accessible to the disabled.1

There is more, though. Not so noticeable in the public eye are changes in America's workplaces mandated by Title I. These changes are subtler, though no less important to the achievement of a truly accessible society for the disabled. Under Title I, for instance, an employer must accommodate a worker's disability by either reassigning that employee to another position or modifying current job duties.2 Rather than simply firing a disabled employee to make room for a more productive, "abled" employee, employers are required to modify the workplace when a worker cannot adapt.

While the ADA is indeed indicative of how far the disability rights movement has come, its meaning has not always been readily apparent. Perhaps the most litigated point in the ADA is the definition of "disabled." The categorization of a particular group of people as disabled is impossible. The vast array of impairments, both physical and mental, severe and mild, are not easily lumped into a single classification called "disabled."3 Indeed, disabled persons often shirk the idea that they are parts of some large, disabled community whose members all behave and Page 762 think alike.4 The ADA defines disability generally as any condition that substantially limits one or more major life activities.5 Of course, necessary to this definition are the definitions of "substantially limits" and "major life activities." A substantial limitation exists if an individual is "[u]nable to perform a major life activity that the average person in the general population can perform."6 Correspondingly, a major life activity is "[a] basic activit[y] that the average person . . . can perform with little or no difficulty."7 And so it goes. With plenty of room for interpretation, the courts have come to little consensus on what constitutes a disability, preferring instead to review each discrimination claim on a case-by-case basis.8

The proper use of defenses to a claim under the ADA also has been heavily litigated. An employer, for example, may not have to grant a request for accommodation if that request would put an undue burden on the operation of the business, or if the employer's contested policies are consistent with business necessity.9 Courts have struggled to strike a proper balance between accommodating employees and ensuring that employers can conduct profitable businesses. Most recently, in Chevron U.S.A. Inc. v. Echazabal,10 the Supreme Court considered the defense of direct threat, which allows employers to discharge employees or refuse to hire applicants if they pose a direct threat to others in the workplace.11 The Page 763 Court ultimately allowed an employer to discharge a refinery worker who had hepatitis.12 In doing so, it expanded the direct threat defense to include scenarios where the employee poses a direct threat only to his own safety, not the safety of others.13

The Court's decision in Chevron came on the heels of a cadre of other Supreme Court decisions addressing the ADA, and it seems to preserve the Court's generally pro-employer jurisprudence established in these earlier cases. Admittedly, the ADA is broad, far-reaching legislation. Disability rights movement chronicler Fred Pelka calls it the "greatest single achievement of the disability rights movement to date. It offers, for the first time in history, broad civil rights protection for disabled Americans, and its passage was the culmination of work by thousands of committed individuals."14 Chevron and other recent decisions appear, however, to afford employers more protections than originally intended. A careful reading of these decisions, and in particular Chevron, shows that the Court has not narrowed the scope of the ADA, rather it has sought to balance the rights of the disabled against the rights of employers to conduct efficient and productive businesses.

II Historical Background

Carrie Buck was born too soon-too soon to reap the benefits of changing attitudes about disabilities and too soon to escape the cruel and moralistic sweep of the eugenics movement.15 A resident of the State Colony for Epileptics and the Feeble Minded in Virginia, Buck was a young woman in 1927 when she underwent, despite her objections, a salpingectomy pursuant to a state law allowing for the sterilization of mental defectives.16 After the highest court in the State of Virginia affirmed a judgment ordering the sterilization, Buck appealed to the Supreme Court where her lawyer argued that the Virginia statute violated Page 764 the Due Process Clause of the Fourteenth Amendment.17 He painted a grim picture for the justices of the future of the eugenics movement.18Despite these appeals, the Court affirmed the judgment of the appellate court and upheld the Virginia statute as a constitutional exercise of the state's power to promote the general welfare of society.19 Analogizing the sacrifice of one's fallopian tubes to the sacrifices made by a soldier marching off to war, Justice Oliver Wendell Holmes remarked that it would be "better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."20

During Carrie Buck's lifetime the disabled were prohibited from procreating or marrying21-two activities now regarded as fundamentally protected from governmental intrusion22-let alone participating in the workforce as productive members of society. Justice Holmes' implication that society would be "swamped with incompetence"23 if not for the saving grace of forced sterilization is a far cry from the modern discourse Page 765 regarding disability and reproduction.24 Even the idea that an epileptic woman might have reproductive choices was considered revolutionary, and perhaps even deviant, in 1927. The choice to have children was the state's to make. Contrast this to the experiences of modern disabled women such as A. Millear, who wrote candidly about her decision not to have children, saying "[sterilization] was made a joint decision, and that decision was made by me and my husband."25 Though societal pressures on disabled women and couples to refrain from having children are still a primary factor in many individuals' decisions,26 the fact that there is a decision at all is testament to the significant expansion in society's narrow concept of disabled life.

Less than two decades after the Supreme Court's decision in Buck v. Bell, history ran into another less likely poster-child for the disability rights movement, the President of the United States. It is very rare that one runs across a picture of Franklin Delano Roosevelt in a wheelchair.27Roosevelt's staff, family, and Secret Service detail went to great lengths to help him conceal the effects of polio from the public during his political career, and largely they succeeded.28 For the most part, the American public regarded Roosevelt as having beaten polio.29 Americans would have had no reason to believe otherwise since the press never filmed or photographed Roosevelt in his more faltering moments, and since Roosevelt insisted on standing and walking by locking his leg braces and gripping tightly to someone's arm.30

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Roosevelt's story is more than a little ironic. Though he was a great advocate for the physically disabled31 at a time when mainstreaming for the disabled was a "radical proposal,"32 he was also so acutely aware of the public's need for physical normalcy in its leaders that he hid his own disability for nearly twenty years.33 Roosevelt's contributions to the earliest inklings of integration for the disabled include the passage of the LaFollete-Barden Act of 1943, which helped disabled people find and keep jobs to help with wartime efforts on the home front.34 And so, the man who helped promote integration of the disabled as productive members of the workforce was so afraid of rejection in the public eye that he concocted a picture of physical strength for the public.

It is comforting to think societal attitudes toward physical disabilities have changed so much since Roosevelt's time that he would now stand unabashed before the world with his crutches, but it is not so.35 Societal stereotypes and prejudices still keep the disabled out of the workplace in large numbers. The ADA was an acknowledgement by Congress that even though Roosevelt advocated integration as far back as 1929, it could not be completely achieved without far-reaching action by the legislature.36

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Considering the long history of segregation and differential treatment experienced by the disabled, the ADA is certainly a monumental testament to a long struggle for acceptance and validation. Far from being considered employable members of society, disabled persons have historically been considered second-class citizens who should live segregated from the general population.37 Institutions and poorhouses, it was thought, were the best places for the disabled; such thinking in Colonial America was a carry-over from Elizabethan poor law, which characterized the disabled as totally dependent on "governmental largesse and charity."38 Granted, such notions that society should provide financially for the...

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