Celebrating 25 Years of the ADA

In Sutton, the plaintiffs, twin commercial pilots, had 20/200 vision. United Airlines would not hire them because it required pilots to have uncorrected vision of 20/100 or better. The plaintiffs sued under the ADA. The Supreme Court ruled that the ADA did not apply to the plaintiffs because it did not apply to individuals whose disabilities can be sufficiently corrected with medicine, eyeglasses or other measures. The court reasoned that the plaintiffs' vision did not substantially impair a major life activity because they were only unable to work for one specific job for one specific company, not a broad class of jobs.

Later, in Toyota, the Supreme Court again narrowed the definition of “disability” and suggested that the ADA did not cover temporary impairments. In Toyota , an assembly-line worker alleged that her employer failed to accommodate her and terminated her because of her disability, carpal tunnel syndrome. The Supreme Court reasoned that an individual's impairment must be permanent or long-term and noted that the limited tasks affected by the plaintiff's carpal tunnel syndrome did not impact a major life activity.

The narrowing of the ADA, contrary to the intent of Congress in originally enacting it, was led by Supreme Court decisions, but lower courts across the country followed the Court by issuing decisions that narrowed the definition of “disabled” and limited those who could be protected under the ADA.

2009: ADAAA Passage

On Jan. 1, 2009, Congress passed the ADAAA and effectively overturned previous Supreme Court decisions that had improperly narrowed the class of individuals protected by the ADA. The ADAAA restored broad coverage and protection to disabled employees, making it easier for a plaintiff to establish that she is disabled. Courts, following the Supreme Court's lead, had previously struggled with the threshold question of whether a plaintiff was disabled. The ADAAA provides courts with explicit guidance that “[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” To further aid courts in determining whether a plaintiff is disabled, the ADAAA added a non-exhaustive list of major life activities (including: seeing, hearing, sleeping, reading, eating, bending, concentrating) and included “major bodily functions” in the definition of major life activities.

2010-2015: Recent Court Decisions Illustrate This New, Broad Coverage Under The ADAAA

In Summers v. Altarum Institute, Corp., 740 F.3d 325 (2014), the U.S. Court of Appeals for the Fourth Circuit reinstated the discrimination complaint of Carl Summers, whose employer fired him after he broke both legs while traveling to a work assignment. The district court had dismissed Summers's claims, holding that even though he had “suffered a very serious injury,” his injury was not a disability under the ADA because it was expected to heal within a year. This ruling was in line with pre-ADAAA rulings such as Toyota , which held that the ADA did not cover temporary impairments.

The Fourth Circuit called the dismissal an error, holding that Summers's complaint “unquestionably” alleged that he had a disability under the ADA as amended by the Act. The court held that Summers's allegations were sufficient to plead that he had a disability because “under the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary.”

The Summers court also made several specific rulings as to ADA coverage. First, the court held that a person who cannot walk for up to a year is de jure disabled (in fact, such an impairment “falls comfortably within the amended Act's expanded definition of disability”). Second, the court ruled that one need only be substantially limited in one major life activity ' such as walking ' not multiple major life activities as previous courts had held. And third, “impairments” and “injuries” are viewed the same under the ADAAA.

On Jan. 31, 2014, the Southern District of New York issued its decision in Glaser v. Gap, Inc., F. Supp. 2d 569 (S.D.N.Y. 2014), finding that a worker with autism could establish that he was disabled for purposes of the ADAAA. Glaser, a man with autism, was terminated from his position as a merchandise handler at the Gap. Glaser argued that the defendant used his disability, autism, and his impairment in a major life activity, interacting with others, against him in terminating his employment. The defendants argued that Glaser was not disabled for purposes of the ADA because his difficulty in interacting with others did not constitute a disability.

However, the court criticized the Gap's argument, noting that the company had previously counseled Glaser on several occasions regarding his interactions with his coworkers. The court chastised the defendant, stating that “given the frequent 'coaching' on the subject, the defendants cannot seriously argue that Glaser's ability to 'interact with others' was not impaired. In holding that Glaser's autism could constitute a disability for purposes of the ADAAA, the court noted that in amending the ADA, Congress specifically rejected the concept that, to qualify as disabled, an individual must have an impairment that “prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.” The court also reminded the parties that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations,” and that “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.”

These decisions are just two of many cases recently in which courts have extended ADAAA coverage to employees. In Bonzani v. Shinseki, No. 2:11-CV-0007-EFB, 2013 WL 5486808, (E.D. Cal. Sept. 30, 2013), a September 2013 case from California, the court held that squatting and running are major life activities. In Huiner v. Arlington School District, No. CIV. 11-4172-KES, 2013 WL 5424962, (D.S.D. Sept. 26, 2013), a federal court in South Dakota found that the ADAAA's relaxed standards supported a finding that the plaintiff was disabled due to her anxiety.

'Regarded' As Disabled

In addition to the examples above in which courts have applied the ADAAA's broad provisions to employees with an existing disability, courts have also applied the ADAAA's broad provisions to employees who are “regarded as” disabled by their employers and subject to discrimination. In February 2014, in Sacks v. Gandhi Engineering, Inc., 999 F. Supp. 2d 629, 632 (S.D.N.Y. 2014), the Southern District of New York permitted the plaintiff's case that alleged the defendant, a contractor, discriminated against him due to a perceived disability, to proceed to trial. The plaintiff was terminated after his supervisor told him that the contracting agency was unhappy with his “agility.” Sacks did not have a disability and had not been told that he had any problems with his agility. The court then explained that under the ADAAA's more lenient perceived disability standard, a plaintiff is “not required to show that the disability he is perceived as suffering from is one that actually limits, or is perceived to limit, a major life activity,” but must provide evidence suggesting that the employer perceived the employee as having an impairment. The court ultimately concluded the plaintiff showed that the defendant believed he lacked “agility,” which was a perceived “physiological condition affecting [the] musculoskeletal” system, and thus was a perceived “impairment” now covered by the ADA.

Reasonable Accommodation

In the same spirit, courts have expanded not just the definition of “disabled,” but also the definition of what might constitute a reasonable accommodation. In April 2014, the Sixth Circuit decision in EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015), suggested that under the ADA, an employer might be required to permit telecommuting as a “reasonable accommodation” even if attendance is an essential job function.

In Solomon v. Vilsack, 763 F.3d 1, 4 (D.C. Cir. 2014), an August 2014 decision from the United States Court of Appeals for the District of Columbia, the court held that a flexible work arrangement in which an employee sought flexibility in her working hours may be a reasonable accommodation. Importantly, the court held that it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law.

Conclusion

These cases would have unquestionably been decided differently under the ADA and thus illustrate the importance of the ADAAA and why it was such a necessary step forward in protecting disabled employees. July's 25th anniversary of the ADA marks a reason to celebrate, not only because of the sweeping protections of the ADAAA, but also because the decisions highlighted above show that courts are actively implementing the ADAAA's broad protections to disabled individuals.

R. Scott Oswald, a member of this newsletter's Board of Editors, and Tom Harrington are principals of The Employment Law Group, P.C., Washington, DC.

When George H.W. Bush signed the Americans with Disabilities Act into law on July 26, 1990, its proponents believed that it would have a sweeping impact for disabled workers. Bush himself described the law as an “historic new civil rights act.” Yet, over the next decade and a half, judicial decisions steadily narrowed the categories of conditions that qualified as “disabilities,” and thus excluded many individuals from protection under the ADA. With the passage of the ADA Amendments Act on Jan. 1, 2009, Congress attempted to halt and overcome court decisions that had improperly limited the scope and intent of the ADA; and did so by expanding protections for individuals with disabilities. With July 26, 2015, marking the 25th anniversary of the ADA, disabled Americans have reason to celebrate as recent court decisions have strengthened and broadened their protections under the ADAAA.

1990-2008: Judicial Decisions Improperly Narrow the Scope of the ADA

In major Supreme Court cases such as Sutton v. United Air Lines Inc. , 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams , 534 U.S. 184 (2002), the Supreme Court allowed employers to discriminate against those employees whom Congress had drafted the ADA to protect, leaving many people without recourse after being fired for having conditions that their employers could, and should, have accommodated.

In Sutton, the plaintiffs, twin commercial pilots, had 20/200 vision. United Airlines would not hire them because it required pilots to have uncorrected vision of 20/100 or better. The plaintiffs sued under the ADA. The Supreme Court ruled that the ADA did not apply to the plaintiffs because it did not apply to individuals whose disabilities can be sufficiently corrected with medicine, eyeglasses or other measures. The court reasoned that the plaintiffs' vision did not substantially impair a major life activity because they were only unable to work for one specific job for one specific company, not a broad class of jobs.

Later, in Toyota, the Supreme Court again narrowed the definition of “disability” and suggested that the ADA did not cover temporary impairments. In Toyota , an assembly-line worker alleged that her employer failed to accommodate her and terminated her because of her disability, carpal tunnel syndrome. The Supreme Court reasoned that an individual's impairment must be permanent or long-term and noted that the limited tasks affected by the plaintiff's carpal tunnel syndrome did not impact a major life activity.

The narrowing of the ADA, contrary to the intent of Congress in originally enacting it, was led by Supreme Court decisions, but lower courts across the country followed the Court by issuing decisions that narrowed the definition of “disabled” and limited those who could be protected under the ADA.

2009: ADAAA Passage

On Jan. 1, 2009, Congress passed the ADAAA and effectively overturned previous Supreme Court decisions that had improperly narrowed the class of individuals protected by the ADA. The ADAAA restored broad coverage and protection to disabled employees, making it easier for a plaintiff to establish that she is disabled. Courts, following the Supreme Court's lead, had previously struggled with the threshold question of whether a plaintiff was disabled. The ADAAA provides courts with explicit guidance that “[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” To further aid courts in determining whether a plaintiff is disabled, the ADAAA added a non-exhaustive list of major life activities (including: seeing, hearing, sleeping, reading, eating, bending, concentrating) and included “major bodily functions” in the definition of major life activities.

2010-2015: Recent Court Decisions Illustrate This New, Broad Coverage Under The ADAAA

In Summers v. Altarum Institute, Corp. , 740 F.3d 325 (2014), the U.S. Court of Appeals for the Fourth Circuit reinstated the discrimination complaint of Carl Summers, whose employer fired him after he broke both legs while traveling to a work assignment. The district court had dismissed Summers's claims, holding that even though he had “suffered a very serious injury,” his injury was not a disability under the ADA because it was expected to heal within a year. This ruling was in line with pre-ADAAA rulings such as Toyota , which held that the ADA did not cover temporary impairments.

The Fourth Circuit called the dismissal an error, holding that Summers's complaint “unquestionably” alleged that he had a disability under the ADA as amended by the Act. The court held that Summers's allegations were sufficient to plead that he had a disability because “under the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary.”

The Summers court also made several specific rulings as to ADA coverage. First, the court held that a person who cannot walk for up to a year is de jure disabled (in fact, such an impairment “falls comfortably within the amended Act's expanded definition of disability”). Second, the court ruled that one need only be substantially limited in one major life activity ' such as walking ' not multiple major life activities as previous courts had held. And third, “impairments” and “injuries” are viewed the same under the ADAAA.

On Jan. 31, 2014, the Southern District of New York issued its decision in Glaser v. Gap, Inc., F. Supp. 2d 569 (S.D.N.Y. 2014), finding that a worker with autism could establish that he was disabled for purposes of the ADAAA. Glaser, a man with autism, was terminated from his position as a merchandise handler at the Gap. Glaser argued that the defendant used his disability, autism, and his impairment in a major life activity, interacting with others, against him in terminating his employment. The defendants argued that Glaser was not disabled for purposes of the ADA because his difficulty in interacting with others did not constitute a disability.

However, the court criticized the Gap's argument, noting that the company had previously counseled Glaser on several occasions regarding his interactions with his coworkers. The court chastised the defendant, stating that “given the frequent 'coaching' on the subject, the defendants cannot seriously argue that Glaser's ability to 'interact with others' was not impaired. In holding that Glaser's autism could constitute a disability for purposes of the ADAAA, the court noted that in amending the ADA, Congress specifically rejected the concept that, to qualify as disabled, an individual must have an impairment that “prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.” The court also reminded the parties that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations,” and that “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.”

These decisions are just two of many cases recently in which courts have extended ADAAA coverage to employees. In Bonzani v. Shinseki, No. 2:11-CV-0007-EFB, 2013 WL 5486808, (E.D. Cal. Sept. 30, 2013), a September 2013 case from California, the court held that squatting and running are major life activities. In Huiner v. Arlington School District, No. CIV. 11-4172-KES, 2013 WL 5424962, (D.S.D. Sept. 26, 2013), a federal court in South Dakota found that the ADAAA's relaxed standards supported a finding that the plaintiff was disabled due to her anxiety.

'Regarded' As Disabled

In addition to the examples above in which courts have applied the ADAAA's broad provisions to employees with an existing disability, courts have also applied the ADAAA's broad provisions to employees who are “regarded as” disabled by their employers and subject to discrimination. In February 2014, in Sacks v. Gandhi Engineering, Inc. , 999 F. Supp. 2d 629, 632 (S.D.N.Y. 2014), the Southern District of New York permitted the plaintiff's case that alleged the defendant, a contractor, discriminated against him due to a perceived disability, to proceed to trial. The plaintiff was terminated after his supervisor told him that the contracting agency was unhappy with his “agility.” Sacks did not have a disability and had not been told that he had any problems with his agility. The court then explained that under the ADAAA's more lenient perceived disability standard, a plaintiff is “not required to show that the disability he is perceived as suffering from is one that actually limits, or is perceived to limit, a major life activity,” but must provide evidence suggesting that the employer perceived the employee as having an impairment. The court ultimately concluded the plaintiff showed that the defendant believed he lacked “agility,” which was a perceived “physiological condition affecting [the] musculoskeletal” system, and thus was a perceived “impairment” now covered by the ADA.

Reasonable Accommodation

In the same spirit, courts have expanded not just the definition of “disabled,” but also the definition of what might constitute a reasonable accommodation. In April 2014, the Sixth Circuit decision in EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015), suggested that under the ADA, an employer might be required to permit telecommuting as a “reasonable accommodation” even if attendance is an essential job function.

In Solomon v. Vilsack , 763 F.3d 1, 4 (D.C. Cir. 2014), an August 2014 decision from the United States Court of Appeals for the District of Columbia, the court held that a flexible work arrangement in which an employee sought flexibility in her working hours may be a reasonable accommodation. Importantly, the court held that it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law.

Conclusion

These cases would have unquestionably been decided differently under the ADA and thus illustrate the importance of the ADAAA and why it was such a necessary step forward in protecting disabled employees. July's 25th anniversary of the ADA marks a reason to celebrate, not only because of the sweeping protections of the ADAAA, but also because the decisions highlighted above show that courts are actively implementing the ADAAA's broad protections to disabled individuals.

R. Scott Oswald, a member of this newsletter's Board of Editors, and Tom Harrington are principals of The Employment Law Group, P.C., Washington, DC.