Mitigation and the Americans with Disabilities Act.

• Author: Hasday, Jill Elaine

TABLE OF CONTENTS INTRODUCTION I. THE CASE FOR IMPOSING A DUTY TO MITIGATE ON PLAINTIFFS SEEKING THE PROTECTION OF TITLE I'S REASONABLE ACCOMMODATION PROVISION II. THE DUTY OF REASONABLE MITIGATION A. Core Cases B. Two Hard Categories of Cases III. PROTECTION FOR PEOPLE WHO HAVE MITIGATED IV. THE DUTY TO MITIGATE AND AN IMPORTANT DIFFERENCE BETWEEN TITLE I AND TITLE VII CONCLUSION INTRODUCTION

It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. (1)

He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, (2) but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. (3) He applies for a job that has been structured for people who can see clearly and asks the employer to purchase work equipment (like a new computer) that will enable him to perform the job with limited eyesight. Purchasing this equipment will be costly, and the employer asks why it should have to bear those costs when the applicant could have surgery to enable him to see better.

The question raises a core issue of rights and responsibilities under a civil rights law. But Title I of the ADA, (4) which protects "a qualified individual with a disability" from employment discrimination based on his disability, (5) never indicates whether there is a duty to mitigate, either by undergoing medical procedures, using medication, pursuing physical therapy, losing weight, abstaining from alcohol and cigarettes, or taking other measures to improve health and eliminate obstacles to employment. The Supreme Court has not yet considered the question, and legal commentators have all but ignored it. (6) The few lower courts to address a duty to mitigate under Title I are divided on whether mitigation should be required, (7) and those in favor of the duty have not developed a clear standard for when that duty should apply. (8) To the extent that the decisions supporting a duty to mitigate imply any principle for implementing the duty, most appear to suggest that Title I plaintiffs are obligated to mitigate whenever mitigation is possible. I reject both extremes of the existing debate. This Article argues that plaintiffs seeking Title I protection should be under a duty to mitigate, but that this duty should require plaintiffs to pursue only those mitigating measures that could reduce their need for workplace accommodation and that a reasonable person in the same situation would pursue.

The question of whether, when, and why there is a duty to mitigate under Title I of the ADA is important both doctrinally and theoretically, and courts enforcing Title I will inevitably have to decide it. Employer-defendants are beginning to press the issue, and existing ADA case law--combined with tort jurisprudence, medical literature, and disabled people's own accounts--makes clear that some people do not mitigate their disabilities when mitigation is possible.

First, many disabled people do not want to bear the risks or side effects associated with some mitigating procedures. These risks and side effects range from the very serious to the less so. The failure rates for mitigating measures vary widely. The side effects associated with mitigation may be mild, but may also entail permanent neurological damage, impaired memory, impaired cognitive function, dulled creativity, aggressive behavior, hyperactivity, tremors, seizures, blurred vision, hypothyroidism, blood disorders, liver damage, sedation, sleep disturbances, sexual dysfunction, weight gain, birth defects for one's children, pain, or death. (9)

Second, some disabled people are unable or unwilling to avoid practices and conditions--like smoking, drinking alcohol, or being substantially overweight--that harm their overall health and can intensify the consequences of their disabilities. District courts have already considered Title I suits brought by a plaintiff who did not stop smoking when his doctor advised him that smoking aggravated his respiratory problems, (10) by a plaintiff who did not abstain from alcohol and start exercising when her doctor advised her that doing so would help control her diabetes, (11) and by a plaintiff who did not lose weight when his doctors advised him that weight loss would alleviate his sleep apnea. (12) More cases like these are certain to arise.

Third, some disabled people are unable to afford some, or any, mitigating measures. The jurisprudence on people injured by tort, for example, reveals disabled people unable to pay for surgery that Medicaid would not cover, (13) unable to pay for surgery that their health insurance would not cover, (14) unable to pay for surgery because they had no health insurance, (15) and unable to take time off from work so that an injury could heal because they had no disability insurance to support them in the interim. (16)

Fourth, some disabled people, members of the deaf community most prominent among them, publicly state that they do not attempt to mitigate because they understand their disabilities to be central to their cultural identities. Cochlear implant surgery, for example, has enabled some deaf people to process sounds well enough to understand speech. (17) Other deaf people, however, refuse the surgery, not because of its considerable risks and limitations, (18) but because they believe that their deafness is a crucial part of who they are. A president of the National Association of the Deaf, for instance, has expressed such sentiments: "'I'm happy with who I am,'" she has declared, ""and I don't want to be 'fixed."" (19)

In addition to the practical urgency of resolving the duty to mitigate question, examining the issue of whether there is a duty to mitigate under Title I also casts new light on an important debate in the Title I case law and scholarship about the extent of the differences between Title I of the ADA and Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on "race, color, religion, sex, or national origin." (20) The traditional view in this debate, advanced by many courts (21) and commentators (22) holds that Title I and Title VII are fundamentally different because Title I imposes significant costs on employers, while Title VII does not. This argument emphasizes that Title I has a reasonable accommodation provision that Title VII lacks. That provision requires an employer to provide a disabled employee or job applicant who cannot perform a job as it is currently structured with reasonable accommodations that alter the job so that the disabled person can fill it, (23) unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." (24) The traditionalists contend that this requirement places great costs on employers and that employers bear no equivalent burden under Title VII. More recently, a group of revisionists, led by Christine Jolls, has argued that the traditional view overstates the differences between Title I and Title VII. (25) The revisionists note that Title VII also imposes costs on employers, including costs resulting from the statute's prohibition on intentional discrimination or "disparate treatment." For instance, Title VII forces employers to adopt nondiscriminatory hiring practices that may alienate prejudiced customers and coworkers who want to interact only with employees who have particular demographic characteristics. (26) Title VII also prohibits employers from making employment decisions based on statistically accurate generalizations about a protected class. (27)

Both the traditional and the revisionist accounts of the differences between Title I and Title VII focus, however, on the quantitative or monetary costs that each statute imposes on employers. (28) What both sides of this debate miss, and what the duty to mitigate issue helps highlight, is that considering solely quantitative or monetary costs overlooks one of the most important differences between Title I and Title VII: that Title I's reasonable accommodation provision and Title VII's prohibition on intentional discrimination attribute different moral or normative weight to the costs that they impose on employers. Title VII's disparate treatment jurisprudence accords no moral or normative weight to the costs that an employer may incur from hiring members of a protected class; it operates on the assumption that these costs give an employer no legitimate cause for complaint. Title VII recognizes no valid justification, including cost, for employment decisions based on race or color. The statute identifies one situation where employers can legitimately make employment decisions based on religion, sex, or national origin, namely, "those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." (29) But as the Supreme Court has emphasized, this is a singular, (30) and "extremely narrow exception," (31) in which cost is not a valid reason for refusing to employ a protected person. "The extra cost of employing members of one sex," for instance, is not sufficient to defend sex-based hiring practices under Title VII. (32) Title VII's prohibition on intentional discrimination may impose costs on employers, as the revisionists note, but the Title VII jurisprudence assumes that this gives employers no rightful ground for complaint because these costs reflect the moral and normative goals of the statute.

In contrast, Title I's reasonable accommodation provision recognizes that...