Is the ADA still a viable law?

The Americans with Disabilities Act was signed into law in 1990, with enforcement provisions gradually taking effect over the next couple of years. Since that time, there have been thousands of charges filed throughout the country. As with any 'new' law (although parts of the ADA were patterned after other, more established rehabilitation law), our understanding of the law has evolved overtime with the multitude of charges that have been brought by employees alleging disability discrimination. According to a press release issue by the Equal Employment Opportunity Commission, from July 1992 through September of 2002, the EEOC resolved more than 187,000 ADA charges and obtained over $436 million in benefits for individuals alleging discrimination under the ADA without resort to court-filed actions. Perhaps demonstrating the more stringent requirements for definition of what constitutes a disability under the ADA, the largest percentage of disability resolutions involved orthopaedic and structural impairments of the back (15%), followed, interestingly, by "regarded as disabled" cases (10%).

One of the issues that has troubled employees, employers and the courts is which individuals (i.e. what kinds of disabilities) qualified for protection under the ADA because they were 'disabled.' Over the years, employees have made claims for every conceivable kind of disability, from hypertension to carpal tunnel syndrome. The broad definition of disability in the act, that in order to qualify as disabled an individual must be substantially limited in one of life's major activities, has not been particularly helpful in clearly defining whom the law is intended to protect. One law school professor has estimated that 85% of the litigation involving the ADA has centered on the issue of the definition of 'disability.'

On June 22, 1999, the U. S. Supreme Court held that employers may take mitigating measures (such as glasses or medications) into consideration when evaluating whether an individual has a disability under the Americans with Disabilities Act. In other words, any disabling condition which is not disabling when it is corrected or medically treated does not entitle the plaintiff to the protection of the ADA. The case thus permits employers to make classifications such as 20/20 vision a requirement for a job, assuming there is a business reason for the requirement, since someone without 20/20 is not necessarily disabled under the act if corrective lenses make it so that his nearsightedness does not substantially impair him in any of life's major activities.

Although employers may feel somewhat relieved by the recent decisions, it should be noted that the recent cases involved the transportation industry, where safety is a paramount concern. The cases also emphasized that each case of alleged disability must be evaluated on an individual basis. Finally, there are two additional kinds of claims under the ADA which do not necessarily involve proof that the claimant is disabled under the Act. Individuals who claim that, although not presently disabled, they are either "regarded as" disabled or have a record of disability may make a claim under the ADA even though they do not fit the definition of disability under the ADA. This part of the statute is designed to prevent employers from utilizing discriminatory stereotypes to "weed out" otherwise qualified employees.

Can an employee be "regarded as disabled" even though not in reality disabled at all? Technically, yes, although decisions announced following the United Air Lines case have appear to require that there be some validity to the impairment the employee is claiming is the basis for the "regarded as" discrimination. Additionally, the Supreme Court has also determined that an employer can legitimately keep a disabled employee out of a job when the employer determines in good faith that the job would present a danger or health hazard to the employee.

What about an employee who has a surgical procedure with a somewhat longer recovery than normal? There is an entire line of cases addressing the issue of a prolonged recovery from a surgical procedure that provides support for the proposition that a somewhat longer than normal recovery from an acute event does not equate to a disability under the Americans with Disabilities Act. These cases include: Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir.1997) (employee's inability to work while recovering from surgery was not evidence of a permanent impairment under the ADA); McDonald v. Pennsylvania Dept. of Public Welfare, 62 F.3d 92, 95 97 (3d Cir.1995) (holding that the inability to work for several months following surgery was not a disability under the ADA); Evans v. Dallas, 861 F.2d 846, 852 53 (5th Cir.1988) (postoperative limitations are not an impairment under the Rehabilitation Act).

Furthermore, it has been frequently held that injuries or illnesses of temporary duration simply do not meet the definition of "disability" under the ADA. By way of example: Adams v. Citizens Advice Bureau, 187 F.3d 315 (2nd Cir. 1999) (recovery of 3 and ½ months due to knee, neck and back injury from automobile accident); Soileau v. Guildford of Maine, 105 F.3d 12 (1st Cir. 1997) (four month period where plaintiff disabled from running meetings due to permanent, chronic depressive disorder); Presutti v. Felton Brush, Inc., 927 F.Supp. 545, 548 49 (D.N.H.1995) (back injury, which kept plaintiff out of work for seven weeks, did not constitute a disability); Blanton v. Winston Printing Co., 868 F.Supp. 804 (M.D.N.C.1994) (knee injury of relatively short duration was not a "disability" within meaning of the ADA, even assuming it impaired a major life activity); Sorensen v. University of Utah Hospital, 194 F.3d 1084, 1087 (10th Cir.1999) (multiple sclerosis, a permanent impairment, not a disability where the period out of work was too short); Colwell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2nd Cir.1998) (seven month recuperation from cerebral hemorrhage, including one month hospitalization), cert. denied., 526 U.S.1018 (1999); Halperin v. Abacus Tech. Corp., 128 F.3d 191, 200 (4th Cir.1997) (back injury with two month recuperation period); Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir.1996) (cancer related psychological disorder less than four months); Roush v. Weastec, Inc., 96 F.3d 840 (6th Cir. 1996) (kidney condition resulting in medical leaves of absence from work for up to 40 weeks per year on two consecutive years, had nevertheless been cured and was, therefore, not a disability); Everist v. Blue Cross and Blue Shield, 2000 WL 1708504, (D. Kansas, 2000) (two month period of recuperation due to undiagnosed condition causing lack of gross motor skills and fatigue).

Without doubt, lawyers representing employees and employers would agree that the courts have severely restricted the ADA by limiting the class of workers considered sufficiently disabled to be able to make a claim. And even among those who are legally disabled, the mitigating measures rule disqualifies many who, with the help of modern medical devices or treatments, now lead a virtually normal life.