Striking the Labor-Management Balance in the Americans with Disabilities Act: The

• Author: Mark Eskenazi
• Position: B.S., Cornell University, Industrial and Labor Relations
• Pages: 05

B.S., Cornell University, Industrial and Labor Relations, 2005; J.D., Georgetown University Law Center, expected 2008. Mark is the Executive Editor of the Writing Program for the Georgetown International Environmental Law Review. Mark expresses thanks to Vicki Eskenazi, Howard Eskenazi, and Ari Nathan Stern for their support.

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Introduction

Disagreement among federal circuit courts over the interpretation of the Americans with Disabilities Act (ADA)¹ has left employees with disabilities, who already have fewer employment opportunities than non-disabled individuals,² in an even more precarious situation. The disagreement is ironic since it only indirectly involves people with disabilities. While some courts have ruled that employees whom an employer "regards as" ³ being disabled deserve reasonable accommodation, other courts have ruled that similar claimants are not entitled to any such rights.⁴ Adequate judicial, statutory, and policy support for reasonable accommodation under these circumstances is available for those employees "regarded as" disabled by their employers.⁵

D'Angelo v ConAgra Foods, Inc. Demonstrates Courts Have Differing Interpretations of Rights Under the ADA

Examining the latest case on the issue, D'Angelo v. ConAgra Foods, Inc.,⁶ may shed further light on the paradox. In 2002, Cris D'Angelo⁷ filed suit against ConAgra Foods, Inc.⁸ in the United States District Court for the Middle District of Florida.⁹ D'Angelo, an employee of ConAgra Foods, alleged that the employer terminated her job as a product transporter in violation of the ADA.¹⁰ In addition to her other claims, D'Angelo maintained that her vertigo condition caused ConAgra Foods to regard her as having suffered from a disability that substantially limited her ability to perform the "major life function of work."¹¹ In September 1998, prior to her employment with ConAgra Foods, D'Angelo was first diagnosed with vertigo.¹² One month later, ConAgra Foods hired her to work in its shrimp division as a "?spreader'-an entry-level position requiring her to stand at a moving conveyor belt (called the ?spreader belt') and spread shrimp with her fingers to prevent it from sticking together."¹³ About a year later, she was promoted to "stacker," a position that required her to "take sealed boxes off of a machine and stack them onto a pallet for a forklift operator."¹⁴ ConAgra Foods then promoted her again in March 2000 to become a "product transporter."¹⁵

Three months later ConAgra Foods transferred D'Angelo to its fish division, where she continued working as a product transporter; her responsibilities included filling boxes with shrimp and transporting them to different locations within the plant.¹⁶ It was generally understood that "employees were considered qualified to work in any position at or below the level of their own job."¹⁷ Thus, in addition to performing her product transporter functions, she would, at times, also have to perform other tasks, such as forming, packing, and stacking boxes.¹⁸

In September 2001, D'Angelo's vertigo reappeared when her new supervisor assigned her to monitor the box-former belt, which required her to conduct quality inspections of boxes that were going by in a line by simply staring at them as they went by.¹⁹ At this time, D'Angelo notified her supervisor that she could not perform work that involved standing in front of the conveyor because it made her dizzy.²⁰ She also gave the plant manager a note from her doctor, stating that she could not look at moving objects such as belts.²¹ The following day, ConAgra Foods terminated D'Angelo, basing the termination on the fact that D'Angelo's work required her to be around conveyors.²²

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The District Court granted summary judgment for ConAgra Foods, finding that D'Angelo did not meet the definition of "disabled" under the ADA.²³ Although the court decided that there were genuine issues of fact concerning whether ConAgra Foods "regarded" D'Angelo as disabled, it also determined that just because someone is "regarded as" disabled does not necessarily entitle them to reasonable accommodation.²⁴ In addition, the court held that D'Angelo was not a "qualified individual" under the ADA because she could not perform "essential job functions," such as working on a conveyer, even with the accommodation.²⁵

On appeal, the Circuit Court affirmed that D'Angelo's vertigo did not qualify as an actual disability since it did not "substantially limit one or more of the major life activities."²⁶ The court held that D'Angelo created a material issue of fact as to whether ConAgra Foods regarded her as disabled in light of its testimony that it perceived her impairment as substantially more limiting.²⁷ The court decided that there was also a material issue of fact as to whether working on a conveyor belt was an essential function of the product transporter job.²⁸ Reversing the District Court's decision, the Eleventh Circuit held that "regarded-as disabled individuals... are [in fact] entitled to reasonable accommodations under the ADA."²⁹ The court further held that a "regarded as" employee is "disabled... if a covered entity mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities."³⁰ However, the Eleventh Circuit in D'Angelo did not go far enough in its ruling. It failed to provide substantial discussion regarding the application of its "regarded as" rule to the facts. The court decided that the ADA comported in near perfect analogy to the provisions of the Rehabilitation Act's "regarded as" provision.³¹ Despite recognizing that the ADA's plain language may lead to a "windfall" for employees "regarded as" disabled or other "bizarre" results, the court maintained that it would blindly reinforce the federal statute.³² In rejecting the argument regarding potential inequitable outcomes, the court held that the ADA, if interpreted properly, actually promoted the equality of an employee "regarded as" disabled to the level of an employee who does not suffer prejudice.³³ Judge Fay's dissenting opinion, however, skirted the "regarded as" issue and accused D'Angelo of "failing to communicate" her impairment to ConAgra Foods.³⁴

Unfortunately, while the D'Angelo majority reached the correct result, the court only scratched the surface on the issues surrounding "regarded as" disability liability. This article argues that not only is reasonable accommodation required for employees with "regarded as" disabilities under the ADA, but employers must make an effort to engage in an "informal, interactive process"³⁵ in order to determine the appropriate reasonable accommodation. The interactive process is significant for two reasons: for example, by engaging in a process to determine the appropriate reasonable accommodation, employers can (1) avoid liability, and (2) decrease reactive stereotyping of disabilities that lead to discriminatory practices against people with abilities. Skeptics oppose allowing liability for "regarded as" disability claims because they believe it creates a "windfall" for individuals that are "regarded as" disabled³⁶ and fails to protect "public health and safety" by interrupting an employer's inherent managerial rights.³⁷ However, the same skeptics should find comfort in ADA safeguards, such as the "direct threat" provision³⁸ and seniority rights protection.³⁹ The following section analyzes the legal support and benefits for the "interactive process," while the final section discusses legal safeguards that protect management's rights to take adverse employment actions yet ensure that runaway litigation does not ensue.

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Legal Analysis

The "Interactive Process"

An employer has a duty under the ADA to determine whether an employee has a disability.⁴⁰ This step, in most cases, assists the employer in avoiding potential liability and, where necessary, helps employees receive appropriate reasonable accommodation. The common law reflects logical methods for which an employer can show his or her good faith in interacting with an employee that he or she perceives to have an actual disability. For example, employers can "meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants[,] ... and offer and discuss available alternatives when the request is too burdensome."⁴¹ The implementation of such a process ensures that "employers... become more [informed] about their employees' capabilities, while protecting employees from employers whose attitudes remain mired in prejudice."⁴²

In D'Angelo, ConAgra Foods could have avoided liability by engaging in an interactive process with D'Angelo to determine the extent of her vertigo condition and what job activities would have exacerbated it.⁴³ However, at the time of D'Angelo's transfer to monitor the box-former belt, her new supervisor was unaware of her vertigo condition.⁴⁴ A short discussion with D'Angelo or her doctor may have clarified that ?conveyors' were not the same as other machines, such as forklifts or pallet jacks, which D'Angelo had previously worked with...