IV. Americans with Disabilities Act Claims

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

IV. AMERICANS WITH DISABILITIES ACT CLAIMS

In 1990, Congress enacted the Americans with Disabilities Act (ADA)¹⁶¹ to provide a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities. The enactment of the ADA expanded the protections that were first created by the Rehabilitation Act of 1983,¹⁶² which prohibited discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.

Since the enactment of the ADA, federal courts around the country, including the United States Supreme Court, narrowed many of the provisions of the ADA. In the Sutton trilogy of cases,¹⁶³ the Supreme Court made clear the need to consider both the impact of an impairment as well as the use of measures that mitigate the individual's impairment, such as corrective devices and medication. The Court emphasized that disability should be assessed by looking at the actual limitations the individual faced at the time of the alleged discrimination and determining whether they meet the "substantially limited" standard. In the Sutton trilogy, the Supreme Court found mitigation in the wearing of corrective lenses (Sutton), the use of medication (Murphy), and the individual's physical ability to compensate for the impairment (Albertson's).

As a result of displeasure in Congress with the employer-oriented decisions from the federal courts, Congress enacted, and President George W. Bush signed into law, the ADA Amendments Act of 2008 (ADAAA), in an effort to reinstate a broad scope of protection to be available under the ADA for persons with disabilities.¹⁶⁴ In brief, Congress mandated that the definition of a disability should be construed broadly, providing rules of construction for courts and the EEOC to follow. A summary of the amendments made by Congress to the ADA are as follows:

- The term "substantially limits" requires a lower degree of functional limitations than the standard previously applied by the courts. An impairment does not need to prevent, or severely or significantly restrict, a major life activity to be considered "substantially limiting," although not every impairment will constitute a disability.
- The term "substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment (as was true prior to the ADAAA).
- With one exception ("ordinary eyeglasses or contact lenses"), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- In keeping with Congress' direction that the primary focus of the ADA is whether discrimination occurred, the determination of disability should not require extensive analysis.
- As required by the ADAAA, the regulations also make it easier for individuals to establish coverage under the "regarded as" part of the definition of "disability."
- The ADAAA regulations now clarify that in order to be considered "disabled" under the ADA, an individual must be covered under the first prong ("actual disability") or second prong ("having a record of disability") in order to qualify for a reasonable accommodation.

A. Judicial Interpretations of the ADAAA

The practical effects of the ADAAA in the workplace are significant. With the expansion of potential liability for employers, coupled with uncertainty about how the courts will interpret the ADAAA, it is clear that employers may be in uncharted waters when addressing job issues for disabled employ-ees.¹⁶⁵ The 2008 amendments fundamentally changed the disability discrimination laws in a number of significant ways that benefit certain persons with disabilities, sometimes to the employer's detriment.

The purpose of the ADAAA, in part, was to broaden the restrictive definitions that often had been judicially imposed, including the Sutton trilogy of Supreme Court cases. As a consequence, few defendants have been successful. One notable exception is EEOC v. Eckerd Corp.¹⁶⁶

Fern Strickland began working as a cashier at Eckerd's in 1992. In 2000, Ms. Strickland transferred to a different Eckerd's store, where she continued to work as a cashier. Ms. Strickland was diagnosed with osteoarthritis in both of her knees in June 2001. Her condition made it difficult for her to walk without the assistance of a cane or to stand for prolonged periods of time. As some point in 2001, Ms. Strickland began intermittently sitting in a chair at work to relieve pain in her knees, and she underwent knee replacement surgery in her right knee in 2006. Her knee pain nevertheless persisted and she continued to use the chair at work. She even obtained a doctor's note justifying her limitations.

The store could not provide Ms. Strickland with the sitting accommodation that she had requested. Ms. Strickland was not permitted to continue working on January 29, 2009, and Ms. Strickland was terminated on that date.

In her lawsuit (filed on her behalf by the EEOC), Ms. Strickland contended that (i) she was not provided a reasonable accommodation for her disability, and (ii) she was then terminated on account of her disability, in violation of the ADA. To prevail on her reasonable accommodation claim, Ms. Strickland was required to prove that she had a disability (which was assumed here) and that she was qualified for the cashier position. She also had to prove that the employer failed to provide a reasonable accommodation for her disability. For the employer to avoid liability, it was required to show that Ms. Strickland's accommodation would impose an undue hardship on its business or operations. The employer contended that Ms. Strickland was not a qualified individual because she could not perform the essential functions of the cashier position, either with or without a reasonable accommodation. Moreover, the employer asserted that Ms. Strickland's requested accommodation of sitting for half of every hour she worked would impose an undue hardship on its business.

The court, crediting Ms. Strickland's testimony and her doctor's assessments, wrote that Ms. Strickland did not meet the physical requirements described in the written job description, and could not perform many of the tasks identified by her employer as essential, without an accommodation. The determinative question was whether Ms. Strickland could perform the essential job functions with a reasonable accommodation, and the court wrote that the EEOC had not met that burden with respect to Ms. Strickland.

The only accommodation that Ms. Strickland ever identified was to be allowed to sit in a chair for at least half of her workday. The district court concluded that the sitting accommodation requested by Ms. Strickland was not only unreasonable, it was patently incompatible with the essential functions of the cashier job as identified by management and routinely performed by every...