The Supreme Court's ADA employment rulings read as if they
were drawn from the pages of "Catch-22."

From: Justice For All Moderator [mailto:jfa@jfanow.org]
Sent: Tuesday, June 04, 2002 8:08 AM
To: justice@jfanow.org
Subject: OP-ED: The Supreme Court & the ADA


"OP-ED: Supreme Court & the ADA"

Below please find an excellent op-ed from Sunday's Los
Angeles Times, which describes the "Catch-22" nature of the
ADA as interpreted by the Supreme Court. "The only
disabled people protected under the ADA are people who do
not need protection," writes Charles Lindner. "For the
high court, then, some people are not disabled enough; some
people are too disabled; but, so far, nobody has been
disabled "just right.""

This situation has its roots in the way federal
nondiscrimination on the basis of disability was crafted
decades ago under Section 504 of the Rehabilitation Act.
Nondiscrimination on the basis of sex and race covers ALL
PEOPLE where race and sex are inappropriately used to
determine qualification for participation in or enjoyment
of a program or benefit. In other words, whites as well as
blacks, men as well as women, can seek redress under the
law. The focus is on whether actions are discriminatory.

Section 504 (and the ADA that modeled 504), by
contrast, prohibited discrimination only against
INDIVIDUALS who meet criteria for protection under the law.
In other words, only the "truly" disabled (people who have
physical or mental impairments that "substantially limit"
daily life activities) are protected by the ADA. The focus
is as much on whether one qualifies to bring a complaint as
whether actions are discriminatory.

The "Catch-22" comes into play because, as interpreted
narrowly by the Supreme Court (in some cases in direct
contradiction with the legislative reports that accompanied
the ADA), one has to be both disabled enough to qualify for
protection AND, in the context of employment, not disabled
enough to do a job. For many people with disabilities,
meeting both sets of criteria is difficult if not
impossible. A condition determined by an employer to be
ample cause for disqualification can be viewed by the
courts as insufficient in qualifying for protection under
the ADA.

While the ADA has been hailed as a triumph for the
disability rights movement, our nation's legal system
wields considerable influence over the long-term success of
the ADA. We've all heard the phrase about the most
important factors in considering real estate: "Location,
Location, Location." The disability community needs to do
a lot more to focus on "Judges, Judges, Judges" if the ADA
is to live up to its promise of equality of opportunity.

Jonathan Young
JFA Editor, AAPD

====================
Supreme Court Upsetting a Rights Movement

The Supreme Court's ADA employment rulings read as if they
were drawn from the pages of "Catch-22."

By CHARLES LINDNER
Charles Lindner is past president of the Los Angeles
Criminal Bar Assn.

Los Angeles Times

June 2, 2002

During the last 50 years, the U.S. Supreme Court has played
a significant role in three major civil rights movements.
In outlawing school segregation in 1954 (Brown vs. the
Board of Education), it helped ignite the campaign to give
African Americans full equality. In giving women the right
to an abortion in 1973 (Roe vs. Wade), it greatly bolstered
the women's movement. And in a series of rulings on the
Americans With Disabilities Act (ADA), the court seems
determined to reverse the disabled-rights movement.

Because of a fear of "cripples," ignorance or outright
bigotry, the task of gaining mainstream acceptance for the
disabled has proved even more daunting than for blacks and
women. For example, a state refused to hire cancer victims
for at least five years after the patients' last treatments
because a government official mistakenly believed cancer
was contagious. A public school refused to hire a deaf
instructor to teach at a state's school for the deaf
because she lacked "listening skills." A zoo turned away
children suffering from Down syndrome because the zookeeper
"feared they would upset the chimpanzees." These were among
the more than 100 cases presented to Congress before it
passed the ADA in 1990. For the disabled, the ADA was the
equivalent of the Civil Rights Act of 1964: It promised to
change forever their status in the nation and open up
numerous employment opportunities. The act outlaws state
and private discrimination against the disabled in
employment and mandates that employers treat disabled
applicants and employees with basic human dignity. But
unlike the Warren court, which forced a resistant country
onto the path of racial integration, or the reluctant
Berger court that recognized a woman's place in the working
world, the Rehnquist court has stepped off the civil rights
path completely, siding with employers in the first five
ADA cases to reach it.

The current majority apparently isn't shy about distorting
the record to achieve its desired result. In University of
Alabama vs. Garrett last year, Chief Justice William H.
Rehnquist wrote that Congress had failed to adequately
investigate whether state governments have a history of
discriminating against the disabled. To anyone familiar
with the ADA, this was brazen nonsense. Congressional
committees have investigated disability discrimination for
years. The Garrett dissenters, in fact, published a 39-page
list of state-by-state examples of official acts of
discrimination compiled by a congressional task force.

Nevertheless, Rehnquist wrote that it would be "entirely
rational and therefore constitutional for a state employer
to conserve scarce financial resources by hiring employees
who are able to use existing facilities" without the
accommodations the ADA requires for those who need them.

In Sutton vs. United Airlines, the plaintiffs, twin
sisters, had applied for jobs as UAL pilots. They already
held jobs as commercial jet pilots. They had uncorrected
vision of 20/200 and corrected vision of 20/20. United
required uncorrected vision of 20/100, although it did not
discharge pilots whose uncorrected vision later
deteriorated, as long as it corrected to 20/20.

The court held that the sisters were not "substantially
limited" in a "major life activity" because there were many
other jobs they could do (just not fly for United). The
same reasoning was applied in Murphy vs. United Parcel
Service. In that case, the plaintiff was a UPS mechanic who
was required to drive heavy vehicles as part of his job. He
was terminated because of hypertension, although he
controlled his condition with medication.

Thus, even though the Sutton sisters were not hired because
of a correctable vision deficiency, and Murphy was fired
because of his medicinally corrected blood pressure, the
court found that none of them were disabled for the purpose
of employment under the ADA.

Confused? The Supreme Court's ADA employment rulings read
as if they were drawn from the pages of "Catch-22." If you
are able to do the job with glasses or medication, you are
not disabled under the ADA. On the other hand, if you
cannot do the job because of your bad vision or high blood
pressure, you are not protected under the ADA. The only
disabled people protected under the ADA are people who do
not need protection.

For the high court, then, some people are not disabled
enough; some people are too disabled; but, so far, nobody
has been disabled "just right."

Ella Williams, an automobile assembly line worker at a
Toyota plant in Kentucky, developed crippling carpal tunnel
syndrome on the job. She was transferred to a job of
inspecting paint on cars, but that job was later expanded
to include wiping the cars as they passed on the assembly
line. Toyota fired her when her disability prevented her
from performing the new duties. Williams contended that her
inability to raise her arms above shoulder level was an
impairment of a "major life activity" covered by the ADA.

Writing for the majority, Justice Sandra Day O'Connor said
the ADA was not meant to cover Williams because she could
not do the job. Once again, the legal precedent appears to
have been "Catch-22."

You might think that the obvious remedy for a large
corporation is to find a less physically demanding job for
a worker who becomes disabled.

Robert Barnett, a US Airways employee, injured his back
while working as a cargo handler at the airline. He was
reassigned to the mail room at his doctor's suggestion, but
the company later told him he would have to give up the job
to make room for another employee with more seniority, as
required by company policy. Barnett sued.

In late April, the court ruled, 5 to 4, that an employer's
seniority system cannot ordinarily be trumped by a disabled
worker seeking an accommodation under the ADA.

If the court did to the 1964 Civil Rights Act what it has
done to the 1990 Americans With Disabilities Act, blacks
would be living again in pre-1954 America: separate and
unequal, undereducated and underemployed.

As it is, the disabled cannot use "white" restrooms, eat in
"white" restaurants or hold down "white" jobs because the
restroom is unusable, the restaurant inaccessible and the
job unobtainable. They are the last hired and first fired,
if they are hired at all. Worst of all, the U.S. Supreme
Court shows no inclination, so far, to right the scales of
"equal justice under the law" for the disabled.

http://www.latimes.com/news/printedition/opinion/la-000038685jun02.story

If you want other stories on this topic, search the
Archives at latimes.com/archives. For information about
reprinting this article, go to www.lats.com/rights

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