O'Connor: Disabilities Act Has Gaps

O'Connor: Disabilities Act Has Gaps

By ANNE GEARAN The Associated Press

WASHINGTON (AP) - Supreme Court Justice Sandra Day O'Connor says the high court's heavy load of disability rights cases is the result of holes in a 1990 landmark civil rights law.

The Americans With Disabilities Act was written and passed hurriedly by Congress, O'Connor told a lawyers' conference Thursday.

``It's an example of what happens when ... the sponsors are so eager to get something passed that what passes hasn't been as carefully written as a group of law professors might put together,'' O'Connor said. ``So it leaves lots of ambiguities and gaps and things for courts to figure out.''

She said the court's current term probably will be remembered as the ``disabilities act term'' for the number of cases dealing with the civil rights law. She wrote the unanimous decision in the most significant disability rights case on the court's docket this term.

In that case, as in all previous cases dealing with disabilities on the job, the high court narrowed the reach of the ADA. Ruling in the case of an assembly line worker with carpal tunnel syndrome, O'Connor wrote that medical conditions that only prevent someone from doing some workplace tasks do not qualify as a disability under the law.

Two other ADA decisions are expected before the court adjourns in late June.

``Boy, are we trying to figure out some of the disabilities act issues,'' O'Connor told her audience at Georgetown University's law school. ``This act is one of those that did leave uncertainties in what it was Congress had in mind.''

The law, passed with overwhelming bipartisan support, forbids discrimination against the disabled on the job and elsewhere. It is probably best known for mandating wheelchair ramps and handicapped-equipped bathrooms in public buildings.

After the court's ruling in the carpal tunnel case, one member of Congress took strong exception to O'Connor's reading of the law.

``As the congressman who shepherded the legislation through the House of Representatives, I believe that the 'intent of Congress' was clearly more expansive than Justice O'Connor's ruling would suggest,'' Rep. Steny Hoyer, D-Md., wrote in The Washington Post.

Hoyer warned of ``the perils of judicial attempts at retroactive mind-reading,'' and suggested Congress could amend the law to re-establish some protections the court has taken away.

O'Connor spoke one day after a second lawmaker lectured the high court for taking too much power from Congress.

``As someone elected by the citizens of my state to legislate, I am profoundly troubled by the extent to which the judiciary has abrogated Congress' powers in the past few years,'' Sen. Charles Schumer, D-N.Y., told Chief Justice William H. Rehnquist and a group of federal judges Wednesday.

Schumer, a liberal-leaning legislator frequently at odds with the conservative tilt of the high court, listed an ADA case among several in which the Supreme Court has struck down or narrowed laws passed by Congress.

O'Connor also drew loud laughs when she pantomimed the plight of sweat-drenched lawyers arguing a case before the formidable personalities on her court.

``Of course the lawyers really don't get to argue - all they get is interrupted,'' O'Connor said. ``I don't think I would want to be a lawyer arguing before that court.''

She said the same-day release of an audiotape of oral arguments in the historic 2000 Bush v. Gore case was a helpful way to educate the public about the closed ways of the court, and she predicted the court more often may make such releases.

Riding the ADA Roller Coaster

by Robert Boehlert, Counsel,
NYS Commission on Quality of Care for the Mentally Disabled

For disability advocates, the roller coaster ride began with the United States Supreme Court’s 1999 decisions declaring unnecessary institutionalization a form of discrimination prohibited by the Americans with Disabilities Act (ADA)1 and requiring that mitigating measures be taken into account in determining whether an individual has a disability.2 The ride continued with the Court’s 2001 decision that state employees could not use the ADA to sue their state employers in federal court for money damages,3 and has shown little sign of slowing as the Court announced its first decisions of 2002.

On January 8, 2002 the Supreme Court ruled, in a unanimous decision, that in order to be protected against discrimination in the workplace by the ADA, individuals must demonstrate that they have an impairment which has a "permanent or long-term impact" and which prevents them from, or severely restricts them in, "doing activities that are of central importance in most people’s daily lives." In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,4 the Court found that while Ella Williams was unable to perform certain manual tasks required in the course of her automobile assembly line job, such job-specific tasks were "not an important part of most people’s lives." The fact that Williams could carry out household and personal hygiene tasks which were "among the type of manual tasks of central importance to most people’s lives," should have been a factor in the lower court’s analysis of whether Williams was substantially limited in performing manual tasks. The case will go back to the lower court for further proceedings, as the Supreme Court’s ruling reversed the Sixth Circuit Court of Appeals partial summary judgment that Williams was substantially limited in performing manual tasks.

Although employer organizations praised the Court’s decision, many advocates and advocacy organizations criticized the ruling. Andrew J. Imperato, president and CEO of the American Association of People with Disabilities, characterized the Court’s action as "another in a series of decisions where the Supreme Court has inappropriately restricted the scope of who is disabled enough to have civil rights protections under the ADA."

One week after this decision, on January 15, 2002, the Supreme Court addressed the issue of whether an agreement by employees to arbitrate employment disputes with their employer would preclude the Equal Employment Opportunity Commission (EEOC) from seeking back pay and other remedies from the employer for the benefit of the aggrieved employee. In EEOC v. Waffle House, Inc.,5 a Waffle House employee who had signed a mandatory arbitration agreement filed a disability discrimination complaint against Waffle House with the EEOC. When EEOC pursued enforcement, a lower court held that while EEOC could seek injunctive relief, it could not seek monetary damages for the employee. In a 6-3 ruling, the Supreme Court held that an arbitration agreement between an employer and employee could not serve to bar the EEOC from taking such action. EEOC was not a party to any such agreement, and could not be compelled to relinquish its statutory authority to seek victim-specific relief, including back pay. Recognizing the EEOC role in advancing public policy as well as in protecting individual rights, the Court noted that federal law "clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the policy interest at stake."

And the ride isn’t over.

Two other cases, still under review by the Supreme Court at the time this article was prepared, will further define – or limit – the impact which ADA has on the relative rights and responsibilities of employees with disabilities and their employers.

In US Airways, Inc. v. Barnett,6 the Court has been asked to decide whether the ADA requires an employer, in order to reasonably accommodate an employee with a disability, to assign such employee to a position which, under the employer’s bona fide seniority system, would otherwise have been offered to another, more senior employee.

The second case, Chevron U.S.A. v. Echazabal,7 raises the issue of whether the ADA permits an employer to deny an individual with a disability a particular job on the basis that the job may pose a potential threat to the health or safety of the individual him/herself. The language of the ADA (42 U.S.C. Section 12113(b)) allows an employer to assert a "direct threat" defense to a charge of disability discrimination when an employee with a disability poses a threat to others in the workplace. However, EEOC regulations implementing the law (29 CFR Section 1630.2(r)) define "direct threat" to encompass "a significant risk of substantial harm to the health or safety of the individual or others." In promulgating the regulation, the EEOC took the position that extending the availability of the defense to situations in which the individual with a disability posed a threat to him/herself or others was "consistent with the legislative history of the ADA and the case law interpreting section 504 of the Rehabilitation Act" (Federal Register, Vol. 56, No. 144, Friday, July 26, 1991, P. 35730).

For dispassionate Supreme Court watchers, trying to predict the Court’s next moves is a fascinating pastime. For disability advocates, it is a wrenching exercise demanding patience and fortitude. For New Yorkers, it is an opportunity to take pride in the fact that their longstanding leadership in the vanguard of the disability rights movement and their willingness to collaborate with a range of interested stakeholders has resulted in New York State Human and Civil Rights Laws and other policies at every level of government which afford protections against discrimination on the basis of disability, unfettered by some of the constraints which courts and regulatory agencies have imposed on the ADA.

Take a deep breath and hold on; we’re rolling!

Source: http://www.cqc.state.ny.us/83cc.htm

This "Mental Health E-News" posting is a service of the New York Ass'n of Psychiatric Rehabilitation Services, a statewide coalition of people who use and/or provide community mental health services dedicated to improving services and social conditions for people with psychiatric disabilities by promoting their recovery, rehabilitation and rights.

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Save these dates!

September 10 - 13, 2002

NYAPRS 20th Annual Conference Celebration

'Now More Than Ever: Hope, Healing and Recovery'

at the Nevele Grande Resort, Ellenville New York

contact: Mary McLaughlin, NYAPRS

1 Columbia Place Albany, NY 12207

(518) 436-0008; fax: (518) 436-0044

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