Supreme Court Narrows Scope of Disabilities Protection
The United States Supreme Court, in four decisions announced in May and June, narrowed the scope of the Americans with Disabilities Act. The Court held that persons with severe myopia, hypertension and monocular vision are not protected if their limitations can be alleviated with medication, eye glasses or other mitigating devices. Three of the four cases involve safety-sensitive jobs (truck drivers or airline pilots). The Court also upheld an employer's refusal to hire an employee based on governmental safety regulations, even where a waiver of those regulations was theoretically possible.
These decisions are pro-employer, but the ADA remains a potent source of job protection for millions of individuals.
In a fifth opinion, not limited to the ADA, the Supreme Court also expanded the ability of discrimination victims to recover punitive damages against their employer; but also provided employers with a potentially strong defense, if the employer can show an active policy and program to prevent discrimination.
What Do the Supreme Court Decisions Signify?
These four decisions, which follow a 1998 Supreme Court decision having a more expansive tone, teach the following lessons:
- Very few persons will be automatically classified as "disabled" (i.e., protected).
- Each individual must be viewed in light of his or her existing limitations, after considering mitigating measures such as eye glasses, medication or prosthetic devices.
- An employer's reliance on bonafide job qualification standards, especially those involving safety-sensitive jobs, will be a powerful defense to some claims.
- Employers should always avoid stereotypical reactions to persons who are disabled or may be perceived as having disabilities.
- The ADA protects those who are "regarded as" disabled. However, an employer does not violate the statute if it regards the employee as unable to perform a single job or limited number of jobs.
- The Supreme Court continues to hold that the discrimination laws protect individuals, not classes. The Court will require an individual assessment to determine whether the individual is protected.
- Written job descriptions are important in defining essential job functions, and thereby defining whether an employee is qualified to perform those functions. An employer need not change essential job functions under the guise of "accommodation" unless it has done similar things in the past.
- A person is not automatically barred from suing under the ADA simply because he or she also sought and obtained social security disability benefits (or benefits under private disability insurance policies), even if the person stated in the disability application that he or she was unable to work.
Will Congress Amend the ADA?
These rulings may prompt efforts to amend the ADA to expand its scope. It also remains to be seen whether California courts will adopt the Supreme Court's interpretation in cases arising under California's own disability discrimination laws.
Prior Supreme Court Cases, and Unresolved Issues
Prior to this year, the Supreme Court had issued only one previous decision interpreting the ADA, a 1998 case in which it held that a person infected with human immune deficiency virus, but having no symptoms of AIDS, was nonetheless "disabled." The Supreme Court this term, however, adopted a narrower interpretation in cases involving persons with severe but correctable myopia (near-sightedness), high blood pressure, and monocular vision.
As yet, the Supreme Court has not addressed many other important issues under the ADA, such as (i)what of types of accommodations are "reasonable" (and therefore legally required), (ii)when an accommodation would present an "undue hardship" on an employer, and (iii)when a disabled person presents a "direct threat" in the work place to his or her safety or that of others.
Are Near-Sighted Persons "Disabled"?
In the most significant of its four opinions, Sutton v. United Airlines, the Supreme Court held, in a 7-2 decision, that two twin sisters with uncorrected myopia of 20/200 in one eye and 20/400 in another eye, were not "disabled" because their myopia was fully correctable with lenses. United Airlines excluded the twins from jobs as commercial pilots, citing a safety-based requirement that pilots have vision of no more than 20/100 in an uncorrected state. The Court found that the twin sisters were not "disabled" because they were not "substantially limited" in a major life activity. The court refused to view the twin sisters in their "uncorrected" state (i.e. without glasses), holding that a person must be substantially limited even after taking mitigating measures into account. This decision will mean that persons such as insulin dependant diabetics, epileptics whose epilepsy is controlled by medication, and even persons requiring prosthetic limbs, may not automatically be protected.
In the United Airlines case, the Court disapproved the rulings of no less than five of the federal Circuit Courts of Appeal, and also refused to follow interpretations issued by the Equal Employment Opportunity Commission and the Department of Justice. The high Court found that the previous Court of Appeals rulings, and the EEOC and the Department of Justice guidelines, were inconsistent with the plain language of the ADA. The Court also declined to follow "legislative history" of the ADA (Committee Reports concerning the intent of the bill while it was being developed in Congress), which showed some members of Congress believed that person should be considered without the presence of mitigating devices or medication. Instead, the Court focused on statements in the ADA that Congress believed that approximately 43 million Americans are "disabled." If persons with severe myopia or similar correctable conditions are included, the 43 million number would increase two or three times according to Justice Sandra Day O'Connor.
High Blood Pressure and Monocular Vision Are Not Necessarily Disabilities
In another case, the Court held that a truck driver with monocular vision could be excluded from a truck driving job based upon a United States Department of Transportation safety regulation. In this case the truck driver claimed that the Department of Transportation had adopted an experimental "waiver" program which allowed drivers with good safety records to avoid visual acuity standards. The Supreme Court held the waiver program was an experimental program of questionable validity which had been attacked in court. It refused to require a private employer, as Justice Souter stated, to "reinvent the government's wheel." The teaching of this case appears to be that employers can rely generally on governmental safety requirements for jobs that have substantial safety-related components.
In the third case, the court held that a truck driver who had high blood pressure was not automatically "disabled". The court required an individual analysis of whether the truck driver's condition, controllable with medication, resulted in a substantial limitation on any major life activity.
Individual Assessments Are Necessary
A strong theme in these cases is that the ADA requires an analysis of each individual's own limitations given the nature of the particular job in question. As some commentators have stated, an employer need not accommodate impairments but only limitations. An employee can have impairments that in no way limit the ability to perform a particular job.
Another significant theme, which has been stated in earlier Supreme Court cases, is that discrimination laws protect individuals, not groups. The Court is apparently very reluctant to declare that there are "per se disabilities" except in extremely obvious situation such as persons in wheel chairs or with other severe limitations. Even a person with vision in only one eye is not automatically protected.
The ADA Protects A "Middle Tier"
The ADA's protection extends to those with true disabilities, but not to persons so severely limited that they are unable to perform the essential functions of a particular job. A person must be substantially limited in a major life activity, not merely limited in some insignificant or even moderate way. And that same individual must be able to perform the essential functions of the particular position applied for or desired, with or without a reasonable accommodation. Persons who are severely ill or disabled, and unable to perform the essential job functions, are not protected. The employer is not required to change essential job functions.
A New Punitive Damages Standard?
The punitive damages case, Kolstad v. American Dental Association, applies beyond the ADA, to all or at least most federal employment discrimination statutes. In that case the Supreme Court held "egregious" misconduct is not necessary for a discrimination victim to establish punitive damages against the employer. All that is required is "malice or reckless indifference." This standard, at least superficially, is different than the current California standard, which requires "malice, fraud or oppression" and requires proof by "clear and convincing evidence." The "clear and convincing" standard is higher than the usual "preponderance of the evidence" standard in civil cases, and there is no such clear and convincing requirement under federal law. However, the Supreme Court also provided employers with a potentially powerful defense. It held that an employer may not be held liable for the discriminatory actions of a supervisory employer if it can show (1)that it maintained "good faith efforts" to comply with the law (including presumably training or other active programs to reinforce an anti-discrimination policy) and (2)that the discriminatory act was taken in disregard of that policy. The implications of the punitive damages case are not yet clear, but it is apparent that the federal and state standards for punitive damages now are different. Attorneys will debate whether the state of federal standard would be easier for a plaintiff to achieve.
Amendments To The ADA?
Some observers believe that advocates for the disabled will attempt to amend the ADA to adopt the EEOC and Department of Justice regulations as to limitations that are correctable. Additionally, advocates for the disabled may argue in California courts that the federal interpretation by the Supreme Court should not be followed under California's state disability law. On the other hand, there is already considerable case law in California that, in interpreting the state disability laws, state courts should generally look to the federal decisions, which are far more numerous.
Training and Prevention Are More Important Than Ever
Despite these pro-employer decisions, a prudent employer will continue its efforts to train and sensitize management and supervisory personnel to avoid disability discrimination claims. Written job descriptions should be reviewed to make certain that the essential job functions of the position are clearly stated. The persons conducting the interviews should be trained in permissible and impermissible pre-employment inquiries. Disabled persons can frequently be highly-productive employees. Employers should understand their obligations under the ADA, and seek opportunities to employ qualified disabled workers.