The ADA and Your Business - Times, They Are a Changing
By Charles Cooper
Have you noticed the dearth of round door knobs around the country? They have been replaced by these easy-to-grasp levers. How about the Braille that's everywhere, including the buttons on drive-up ATM machines? If you haven't paid much attention to those, I know you have seen-and in some cases stared longingly at-those convenient handicapped parking spots with the blue signs and astronomical fines for those without the proper credentials. Yes, the Americans with Disabilities Act has had, since its inception, a real effect on American culture and on how we, as Americans, do business.
The definition of a disability is fairly broad. According to the original Statute, the term "disability" means a physical or mental impairment that substantially limits one or more of the major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment. Under the law, a person must meet the requirements of at least one of these three criteria to be an individual with a disability under the Act.
Under the first test, an individual must have a physical or mental impairment. As explained in paragraph (1)(i) of the definition, "impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs (which would include speech organs that are not respiratory such as vocal cords, soft palate, tongue, etc.); respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine. It also means any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. This list closely tracks the one used in the regulations for section 504 of the Rehabilitation Act of 1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).
Because of this broad definition, the ADA became as much a curse to the business world as it was a boon to the disabled. If you were in a wheelchair or on crutches, blind or deaf, then sure, you were disabled. No one quibbled. Schizophrenia? That was OK, too, as was extreme facial scarring, Cerebral Palsy, Tourettes, ADHD, Depression and a wide variety of things. There was a general feeling that if someone's condition made you feel pity and ask questions like "who would ever want to live with that?" then it was a reasonable bet that this person had a disability. Of course, the problem with the ADA was not the obvious cases.
How about drug abuse or alcoholism? They are included, but marginalized. 42 U.S.C. § 12114(c)(4) states that employers need not make any reasonable accommodations for employees who are illegal drug users and alcoholics. In this way, the law differentiates between misconduct based on substance abuse and misconduct based on a disability. How about chronic lung problems from a lifetime of smoking? While you can call it the result of substance abuse, it is considered a legitimate disability. Is being a transvestite a disability? How about being gay or having an abrasive personality? Happily, no, these are not covered any more than is poverty or a police record.
Paragraph (1)(iii) states that the phrase "physical or mental impairment" does not include homosexuality or bisexuality. These conditions were never considered impairments under other Federal disability laws. Section 511(a) of the statute makes clear that they are likewise not to be considered impairments under the Americans with Disabilities Act.
Physical or mental impairment does not include simple physical characteristics, such as blue eyes or black hair. Nor does it include environmental, cultural, economic, or other disadvantages, such as having a prison record, or being poor. Nor is age a disability. Similarly, the definition does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder. However, a person who has these characteristics and also has a physical or mental impairment may be considered as having a disability for purposes of the Americans with Disabilities Act based on the impairment.
In other words, if you are a jerk, that is not a disability no matter how many jobs you lose because of it. On the other hand, if you are a jerk in a wheelchair you may have a case if you can prove the medical condition that landed you in that chair is the reason for your pink slip.
As with any other law, pretty soon the ADA was subject to judicial interpretation. These cases, a number of which went all the way to the Supreme Court, have further defined the way the ADA may be applied and what kind of defenses an employer may use against it. In Rogers v. Lehman, for example, the Court developed a five-step process federal agencies must use in order to accommodate alcoholics: (1) advise the worker of counseling services; (2) give the employee a "firm choice" between discipline and treatment; (3) allow the employee to participate in outpatient treatment; (4) if that fails, allow the employee to participate in an inpatient treatment program; and (5) if the employee finishes the program but suffers a relapse and work performance is unsatisfactory, discharge is allowed. Some cases have been wins for those claiming disability, some have been losses, but all have served to provide clarity to a law that began as a murky bog of ambiguity.
What are possibly the most important of these cases are those that deal with the issue of mitigating measures. In other words, if through medication or an assistive device a disability can be reduced or eliminated, the person in question may not be considered disabled. In its summaries of United States Supreme Court cases dealing with this topic, New York State's Commission on Quality of Care & Advocacy for Persons with Disabilities wrote the following:
In Sutton v. United Air Lines, Inc., 119 S. Ct. 1752 (1999), the Court found that two nearsighted individuals whose applications for employment as commercial pilots were rejected by United for not meeting United's uncorrected vision standard did not have a "disability" within the meaning of the ADA. Rejecting views expressed by the EEOC in a 1995 Enforcement Guidance, the Court held that the plaintiffs should not be considered disabled because the ADA's use of the present tense to refer to individuals who are (not who "might", "could" or "would be") substantially limited required that corrective measures be taken into account. Put otherwise, the individualized inquiry into substantial limitation required by the ADA calls for individuals to be evaluated in their corrected state. The Court relied further on Congressional findings which cited the impact of the ADA on 43 million Americans; from that, the Court inferred Congressional focus on disabilities which impact an ability to work, rather than on uncorrected health conditions which could extend ADA coverage to an estimated 160 million Americans.
The Court also rejected plaintiffs' contention that they were regarded as disabled because they were substantially limited in the major life activity of working. While their vision, as corrected, precluded them from consideration for the job of global airline pilot, that single restriction did not amount to the disqualification from a whole range of jobs cited in the EEOC regulations as necessary to support a finding that an individual is regarded as substantially limited in working.
Writing for the Court, Justice Sandra Day O'Connor concluded that the determination whether an individual is disabled under the Americans with Disabilities Act should be made with reference to measures, such as eyeglasses and contact lenses, that mitigate the individual's impairment, and should be made on a case-by-case basis.
In so holding, the majority recognized that Congress could not have intended to bring under the ADA's protection more than 160 million Americans whose uncorrected conditions amount to disabilities, and found that the approach adopted by the EEOC guidelines "that persons are to be evaluated in their hypothetical uncorrected state is an impermissible interpretation of the ADA."
It should be noted that to be licensed as a commercial airline pilot, the FAA says you need to have 20/20 or better in each eye separately, with or without correction for distance vision; 20/40 or better in each eye separately (Snellen equivalent), with or without correction at age 50 and over, as measured at 32 inches for intermediate vision; and 20/40 or better in each eye separately (Snellen equivalent), with or without correction, as measured at 16 inches for short range vision. The ADA does not supersede these or any of the other medical requirements for an Air Transport License. The plaintiffs, in this case, each had 20/100 uncorrected vision and while that was acceptable for an Air Transport License-since their corrected vision was 20/20-it did not meet the company's medical threshold for uncorrected vision and so they could not be pilots for United. The Court held that with the corrective lenses, the plaintiffs were not to be considered disabled and, therefore, had no standing under the ADA.
In Albertsons, Inc. v. Kirkinburg, 119 S. Ct. 1354 (1999), Kirkinburg was incorrectly certified as meeting a Federal Department of Transportation (DOT) basic vision standard for commercial truck drivers in 1990. His vision was essentially monocular, rather than binocular, meeting certain acuity levels set in the DOT standards. In 1992, he was correctly assessed and fired for failing to meet the vision standard. His employer refused to rehire him even after he obtained a waiver from DOT. Reversing the Ninth Circuit Court, the Supreme Court held that while Kirkinburg saw "differently," that difference did not impose a significant restriction on his ability to perform a major life activity; that the subconscious accommodation which Kirkinburg's brain had made to compensate for his impairment was a mitigating measure which must be taken into account in assessing a disability; and the lower court had failed to pay sufficient attention to the ADA requirement under which the existence of a disability must be evaluated on an individualized, case-by-case basis. Finally, the Court found that an employer who requires, as a job qualification, that an individual meet a federally devised safety standard, does not have to provide further justification for enforcing the standard in its hiring, even where the standard can be waived on an experimental, individual basis.
Again, we see a limiting of what a plaintiff may claim as a disability and that, as in the Sutton case cited above, an employer has a right to hold such an employee to the same standards as anyone else.
In the final case dealing with mitigating measures, Murphy v. United Parcel Service, Inc., 119 S. Ct. 1331 (1999), Murphy was erroneously certified as meeting a DOT safety standard relative to high blood pressure which would be likely to interfere with a driver's ability to operate a commercial vehicle safely. He was fired when the error was detected. The Court found that Murphy's impairment - high blood pressure - needed to be evaluated as to whether it imposed a substantial limitation in light of the mitigating measures (medication) which Murphy used. With medication, Murphy's blood pressure did not impose any substantial limitation. Similar to their holding in Sutton , the Court also found that Murphy was not regarded as having a disability because his impairment did not substantially limit him in the major life activity of working; it only precluded him from performing a particular job, not a whole class of jobs, as required by the EEOC regulations.
By limiting the way disabilities are defined, rather than limiting the types of disabilities, the courts have, in the intervening years since President George H.W. Bush signed the ADA into law, provided some structure and clarity to the law, and that is all to the good in that it reduces the number of frivolous lawsuits based on this law. However, it does nothing to loosen the ADA's grip on you as a small businessman. There is still a great deal of legal and civil liability for businesses that are not up on their ADA requirements. Maintaining an ADA-compliant establishment means altering your place of business for accessibility and recognizing the needs and rights of your employees. To help you accomplish this, the Small Business Administration has developed its Americans With Disabilities Act (ADA) Guide for Small Businesses.
Charles Cooper is the Web Editor and blogger for http://www.gowithabc.com, the Web site for America's Best Companies. He is also a staff writer for America's Best: The Magazine for Small Business Owners.
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