Winning summary judgment in employment ADA cases: what have plaintiffs done for you lately? How to defend employers against claims brought under the ADA.

AuthorIngram, Bradford B.

DEFENDING employers against claims brought by current and former employees under The Americans with Disabilities Act ("ADA") (1) requires a detailed understanding of ADA law and your client's business, as well as the ability to understand medical issues.

Disability discrimination charges continue to be a significant part of employers' litigation landscape. Between 1992 and 2003, the Equal Employment Opportunity Commission ("EEOC") received nearly 190,000 disability complaints, and employers paid monetary benefits at this administrative level totaling $481.3 million. (2)

This article focuses on how to win ADA cases for your employer client and examines cases that define disability under the ADA. It further explains what must happen to trigger the Act for plaintiffs. Additionally, the article outlines the necessary preparation required to successfully depose plaintiffs, and it discusses case authorities that explain what constitutes "a substantial limitation of a major life activity" and how to assess the limitation's impact on plaintiffs. The article also examines deposition strategies and plaintiffs' dilemmas surrounding disability claims. Finally, it addresses the importance of medical evidence as a key in winning summary judgment.

After you receive a disability discrimination complaint filed by your client's employee, your goal is to obtain an order from the U.S. District Court granting the defendant's (your client's) motion for summary judgment. The first step down the path to summary judgment success is to determine whether the plaintiff qualifies as an individual with a disability.

  1. Determine Whether Plaintiffs Are ADA Disabled

    1. What Definitions of Disability Apply?

      Disability has been defined in many ways. Black's Law Dictionary defines disability as "[t]he inability to perform some function; an objectively measurable condition of impairment, physical or mental." (3) Webster defines disability as, "[t]he inability to do something; condition of being disabled; deprivation or lack of physical, intellectual or emotional capacity or fitness." (4)

      Under workers' compensation statutes, like the Illinois Workers' Compensation Act, (5) disability can include both temporary and permanent impairments. These statutes refer to disability in terms of temporary and permanent loss of use and focus on a worker's ability to work. Disability is also defined by the nature of the diagnosis, the existence of a surgical procedure, or a mere physical restriction. Each of these distinct definitions of disability is associated with a statutory purpose assigned to each piece of legislation. Workers' compensation statutes are designed as remedial legislation to compensate injured workers and restore them to employment.

      The definition of disability under the ADA is also associated with its specific purpose, which is to assure the equality of opportunity, full participation, independent living, and economic sufficiency of individuals with disabilities. (6) The ADA's definition of disability specifically requires a person to be seriously disabled before the Act is triggered. The ADA requires: (1) physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. (7)

      Many plaintiffs and plaintiffs' counsel view disability in terms of more common notions of disability, as those definitions referred to above. In addition to general notions of disability and the statutory definitions, plaintiffs also have a very personal and subjective view of their own disablement. Their view is very often broad, self-serving, and self-defined. ADA disability is not defined by subjective views of what people can and cannot do or their thoughts about what they choose to do. Neither is the ADA definition as simple as what people are able to do before a specific event and what they choose to do after a certain date, as is true in workers' compensation cases or under other disability provisions. This misguided thinking about disability prompts many personal injury lawyers to file cases under the ADA and provides employers and their counsel with the opportunity to win summary judgment motions. There is no recovery under the ADA for a mere diagnosis of a physical impairment or the existence of some restriction or limitation.

      In order for plaintiffs' claims to survive under the ADA, they must establish that the condition or diagnosis in question comes within the definition of a disability under the ADA. Pursuant to Toyota Motor Manufacturing Kentucky, Inc. v. Williams, (8) plaintiffs must show they have a physical impairment that substantially limits a major life activity. In order to meet this definition, plaintiffs must show that they cannot perform a variety of tasks central to most people's daily lives. It is not enough to merely establish that plaintiffs cannot perform tasks associated with their employment, and it is not sufficient to show evidence of a serious health condition, hospitalization, work restriction, or limitation regarding a specific work task. Plaintiffs must establish substantial limitations of major life activities.

    2. A Medical Diagnosis or Surgical Procedure Does Not Establish ADA Disability

      The ADA was never intended to be a general protection of medically afflicted persons. (9) A mere diagnosis of a disease or physical or mental impairment is not sufficient to establish a disability under the ADA. (10) The court in Sullivan v. Neiman Marcus Group, Inc., (11) indicated that, "mere impairment without more is insufficient to establish that a claimant is disabled under the ADA. In order to have a viable claim, a plaintiff must demonstrate that his impairment substantially limits one or more of his major life activities." The court in Lessard v. Osram Sylvania, Inc. held that, "[u]nder the ADA, not all impairments lead to protection. Only those impairments which substantially limit a major life activity do so." (12)

      The defense often wins in ADA cases because this threshold requirement of a substantial limitation is not met. The existence of a medical diagnosis or physical impairment alone is insufficient to come within the definition of a disability under the ADA, yet many plaintiffs provide histories to doctors, make statements to employers, and otherwise conduct themselves in a manner that may ultimately assist the defense in winning a motion for summary judgment. With this recognition, defense counsel must document those histories, statements, and plaintiffs' other discovery actions.

      The first step in analyzing whether plaintiffs have a disability begins with the diagnosis of a permanent--not temporary--physical or psychological condition. (13) Plaintiffs and their counsel often proceed as though a mere diagnosis equates with a monetary award or verdict and as though the more severe and limiting the diagnosis or surgical procedure, the greater the monetary award. However, to trigger application of the ADA, plaintiffs must establish a substantial limitation of one or more major life activities. Plaintiffs' burden is much greater than many plaintiffs realize, and many plaintiffs fail to understand the nature of the disability evidence that must exist to survive a motion for summary judgment.

      The defense focus in ADA cases should pierce through the personal injury disability entitlement approach commonly held by plaintiffs and their counsel to determine the exact nature of each diagnosis and make a specific assessment of its impact on plaintiffs' daily lives. Physical and psychological impairments must meet the substantial limitation test, not merely interfere in a minor way with the performance of life tasks. (14)

      Defense counsels' deposition questions should focus on establishing plaintiffs' ability to perform tasks. Are plaintiffs capable of performing everyday jobs with slower movement or over shorter distances? Defense counsel should get a detailed list of plaintiffs' daily activities and question them in an effort to obtain admissions as to the performance of tasks. The existence of restrictions or limitations that merely interfere in a minor way with major life activities will not be sufficient to rise to the level of a substantial limitation.

    3. What Is a Substantial Limitation? How to Assess a Plaintiff's Impairment

      Defense counsel should keep in mind that any diagnosis of impairment can qualify for disability under the ADA if it substantially limits a plaintiff's major life activity. Case law reiterates Congress' intent to limit the ADA's application to those who are truly disabled. The ADA was not intended to cover individuals with impairments that merely result in some limitation on the performance of a particular task.

      This "substantial limitation" assessment is done on a case-by-case basis by necessity. Defense counsel must determine what impact the diagnosis has on each individual. Plaintiffs must have a permanent impairment that prevents or severely restricts them from engaging in activities centrally important to most people's daily lives. This requirement that the impairment be substantial precludes conditions or impairments that interfere only in a minor way with performing manual tasks. These minor impairments do not qualify as disabilities. (15) A mere difference in how individuals perform a major life activity is insufficient to establish the condition that substantially limits that activity. Case examples referenced below establish how any diagnosis can qualify as a substantial limitation and may be a disability under the ADA and yet, depending upon its impact on plaintiffs, the same diagnosis may not qualify as a substantially limiting activity.

      Defense counsel's tools to assess the individual impact of a plaintiff's condition or diagnosis include the usual discovery tools of interrogatories, requests to produce, and subpoenas for medical records. Prior to taking...

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