The Impact of the Americans with Disabilities Act: A Legal Quagmire for Employers - Research Paper Example

 The Impact of the Americans with Disabilities Act: A Legal Quagmire for Employers Introduction The Americans with Disabilities Act (ADA) was passed by Congress in July, 1990. Twenty years later, the ADA remains controversial. Advocates for equal opportunity for disabled citizens characterize the legislation as the second civil rights bill. Employers who bear the cost of accommodating disabled employees in the workplace have sought relief from the courts claiming that the ADA places an unreasonable burden on them (Hotchkiss, 2004). This paper examines the impact the ADA has had over the past twenty years on public sector agencies and businesses in the United States. It explores the turbulent history since the legislation’s implementation. The paper analyzes the impact of several key court cases and how judicial opinion has reshaped the interpretation of congressional intent in the drafting of the original legislation. The 2008 amendments to the ADA are then presented to assist in determining what impact the modifications may have within the context of Human Resource Management (HRM). The paper provides guidance for HRM specialists in developing policies and procedures in complying with the provisions of the ADA. Overview of ADA’s Provisions The ADA applies to all state and local government employers and to private sector firms with fifteen or more employees. Titles I and II apply specifically to employment. The former prohibits discrimination in any and all forms of employment; the latter prohibits all forms of discrimination in state and local government (ADA, 1990). Complaints from individuals who claim that they have been subject to discriminatory employment practices can be filed with a special division for ADA cases established by the federal Equal Employment Opportunity Commission (EEOC.gov). The ADA requires that all employers covered under the legislation make “reasonable accommodation” to “qualified disabled employees” unless the accommodation is deemed to place an “undue hardship” on the employer. The definition of these terms is important in understanding the basis for the overwhelming number of legal challenges that have arisen under the ADA. Section 12111 of the Act defines reasonable accommodation in employment to include, job restructuring, modified work schedules, reassignment, provision of specialized equipment, modification of employment-related examinations, development of appropriate internal policies, the provision of readers or interpreters and other accommodations for persons with disabilities. Undue hardship relates to the level of burden placed on the employer in making the accommodation. The Act provides specific guidelines in determining whether an undue hardship exists. These include the scope and the cost of the accommodation, the overall size and fiscal capacity of the employer and the nature and geographic location of the business (ADA, 1990). The definition of “qualified disabled employee” has been subject to intense debate over the past twenty years. The term “qualified” is fairly unambiguous. The ADA stipulates that if the employee is qualified to do the job absent the disability, then that individual meets the criterion. For example, is a visually impaired professional engineer applying for a construction management position considered to be qualified under the Act? The answer is yes because without his visual impairment, he clearly possesses the professional credentials to do the job. If the employer refuses to hire this applicant based on his visual impairment, the action is in violation of the ADA and is considered to be discriminatory. The definition of what constitutes a disabled employee is much more problematic. The ADA defines individual disability as: A) A physical or mental impairment that substantially limits one or more major life activities; B) A record of such an impairment, or C) Being regarded as having such an impairment (ADA Section 12102-1, 1990). As will be demonstrated later in this paper, this rather vague definition of a disabled individual has been subject to wide and varied interpretation and application by the courts. Judicial Interpretation of the ADA Almost immediately after the legislation was enacted, academics and other experts on personnel law began to dissect the language of the Act in an attempt to determine how the EEOC and the judicial system might interpret its ambiguous language. Many of the initial challenges to the Act’s provisions came from state and local government because Congress deferred compliance for small businesses with fewer than twenty-five employees until 1994 (Cozzetto et al, 1996). Starling (1993) noted that the ADA was certainly well intended and that few rational individuals would argue against protecting the constitutional rights of the disabled. However, he cautioned that the legislation’s “broad prescriptions are so ambiguous and potentially overreaching that federal judges quite likely will struggle for years to define what the law means and how to enforce it” (p. 486). In a 1994 article in Public Personnel Management, Cozzetto contended that “the ADA has opened the flood gates for judicial interpretation, application and intervention in personnel decisions affecting the disabled” (p.110). As the following section will demonstrate, his prediction was right on the mark. The volume of complaints filed with the EEOC prompted the agency to establish a stand alone entity to handle the case load. The courts, too, have been overwhelmed by lawsuits and appeals related to discrimination in employment practices under the ADA (Colker, 2005). Several Circuit Court and Supreme Court cases are presented below. These cases are representative of the types of claims that have been filed under the ADA. The cases are instructive for three reasons. First, they clearly show how the courts have struggled to define what constitutes a disabled person under the ADA, what constitutes reasonable accommodation on the part of the employer and how to set a standard for measuring undue hardship. Second, the subject matter of these selected cases demonstrates how loosely worded legislation can result in what many consider to be a barrage of frivolous lawsuits as a result of the ADA. These lawsuits have not only bogged down the federal court system, they have cost state and local governments and American businesses hundreds of millions of dollars in legal fees. Third, Human Resource Management (HRM) professionals turn to court decisions for guidance on how to draft agency policies addressing discriminatory practices in the workplace. The often contradictory opinions rendered by the courts regarding the application of the ADA make it difficult for employers to respond proactively in addressing workplace discrimination (Perritt, 2003). Workman v. Frito Lay, Inc. was one of the earlier cases that required the court to interpret the meaning of disabled individual. Joyce Workman, a line packer at Frito-Lay, suffered from irritable bowel syndrome also referred to as a spastic colon. Workman was granted leaves of absence by the company in March of 1993 and later in May of the same year. When Workman was still unable to resume her duties in December, 1993 Frito-Lay terminated her employment. The District Court and 6th Circuit Court of Appeals affirmed that Workman’s medical condition constituted a disability under the ADA. If a spastic colon constitutes a disability requiring reasonable accommodation on the part of the employer, what about severe obesity? Stephen Gindle was a truck driver for Watkins Motor Lines, Inc. His job description clearly defined his duties both in the loading yard and while on the road driving his rig. It contained a written statement indicating that the employee must be physically fit and pass a physical exam. Gindle ballooned to 450 pounds and when his obesity affected his job performance, the company administered the physical exam which Grindle failed. Brindle filed a complaint with the EEOC claiming that his obesity was a disability and that Watkins Motor Lines was in violation of the ADA for not making a reasonable accommodation. The EEOC sided with Brindle and filed suit in federal court against the trucking company. In a well publicized 1998 case, the Supreme Court addressed the issue of HIV/AIDS. In Bragdon v. Abbott, a dentist refused to fill a cavity of a patient who admitted to being HIV positive. The patient filed suit and the case found its way to the Supreme Court. The Court found that the dentist was in violation of the ADA. In a 2002 case, Jacques v. DiMarzio, Inc., the District Court ruled that Jacques’s bipolar disorder was a disability under the ADA and the employer was ordered to make reasonable accommodation given the employee’s medical condition. In 1996, the 10th Circuit Court of Appeals ruled in Williams v. Windall that alcoholism was a disability as defined in the ADA. In the same year in Baustian v. State of Louisiana, the Court ruled that employees with drug abuse problems were protected under the ADA as long as they had undergone treatment and were not currently using illegal drugs. There are many more cases that can be cited that involve individuals who have claimed that employers have discriminated against them under the ADA because they suffer from mental impairment, depression, smoking addiction, cancer, multiple sclerosis, heart disease and so forth. Needless to say, employers and the HRM professionals who must provide advice on how to deal with claims of discrimination, wonder where this will all lead. Most individuals support equal employment opportunities for the disabled. Many of us think of someone in a wheel chair, those who are visually impaired and individuals who are hearing impaired as fitting the traditional model of disability. But, when this traditional concept of disability is expanded to include recovering alcoholics and drug users, people with cancer, those who are HIV positive, the obese, the depressed and so forth the impact on the organization that must make reasonable accommodation to all of these individuals is incomprehensible. The Supreme Court finally agreed that something had to be done. The United States Supreme Court Intervenes In the past few years, the United States Supreme Court has begun to limit the scope of federal law suits that can be filed under the ADA. It was fairly obvious that the Court was growing tired of the plethora of cases concerning the ADA that were in the federal court system and making their way to the nation’s highest court. The first such limitation on the scope of coverage under the ADA came in the 1999 decision in Sutton v. United Airlines, Inc. Twin sisters with a severe myopic vision problem applied to be pilots with United Airlines. The women’s vision could be altered with a corrective device so that it met the same standard as company pilots who were not vision impaired. The airline refused to hire the twins. Justice O’Conner, writing for the Court, developed the “corrective and mitigating standards” doctrine. In rejecting Sutton’s claim that United violated the provisions of the ADA by refusing to hire them, the Court determined that individuals who were able to correct or mitigate the impairment through the use of medications, other treatments, assistive devices and other medical interventions did not meet the definition of a disabled individual under the ADA. Businesses applauded the Court’s decision while advocates for the disabled began to lobby Washington to amend the ADA. In the 2002 Toyota Motor Manufacturing, Kentucky, Inc v. V. Williams, the Supreme Court added further restrictions to the meaning of disability under the ADA. Once again Justice O’Conner wrote the majority opinion. Ms. Williams was an assembly line employee at Toyota. She suffered from carpel tunnel syndrome which limited her ability to use pneumatic and other tools in the assembly of car engines. She sued Toyota for failing to make reasonable accommodation under the ADA. The District Court ruled in Toyota’s favor but the Sixth Circuit Court of Appeals reversed the lower court’s ruling. The Supreme Court acknowledged that Williams suffered from a physical impairment. The Court noted, however, that the ADA was never intended to grant disability status to every individual with a physical impairment. In ruling against Williams, the Court indicated that an impairment must “substantially limit” the ability of the person to do the job, the burden to meet the substantial limits test is placed on the individual bringing the claim of discrimination and the impairment must be of a permanent nature. The “corrective and mitigating standards” doctrine and the “substantially limits” doctrine combined to re-define how the courts would view claims of discriminatory employment practices under the ADA. Advocacy groups for the disabled ultimately prevailed and Congress passed amendments to the ADA in 2008. These are discussed in the next section. The 2008 Amendments to the ADA Congress passed the ADA Amendments Act of 2008 on September 25, 2008. The ADA 2008 significantly expands the scope of the ADA. Section 2 of the Act provides the background and rationale for the amendments. The ADA 2008 clearly and unequivocally asserts Congress’s displeasure with the interpretation by the courts in limiting the scope of the 1990 ADA. Section 2(3) admonishes the judiciary for not consistently applying the definition of disabled individual. Section 2(4) of the ADA 2008 makes specific reference to Sutton and indicates that the Supreme Court eliminated protection for many disabled individuals when Congress intended them to be protected. Section 2(7) states clearly that the substantially limits doctrine adopted by the Supreme Court in Toyota, limits the scope of the ADA in a manner that was not intended by Congress. Public and private sector HRM specialists are saying “here we go again.” It is too early to know precisely what impact the ADA 2008 will have on employment policies because the amendments only took effect on January 1, 2009. Most HRM specialists expect that the number of challenges mounted by individuals claiming employment discrimination will increase and that the time and costs associated with employers defending themselves against law suits will skyrocket (Rozalski et al, 2008).. Two legitimate questions are; what can employers do to address discrimination in the workplace? How do employers position themselves in dealing with potential complaints under the ADA 2008? The following section provides a framework to address these questions. HRM Strategies for Coping with the 2008 ADA The best strategy to avert complaints and lawsuits is for employers to take a proactive position regarding compliance with the ADA. One excellent source for HRM in the private sector is a 1995 book edited by Veres and Sims entitled Human Resource Management and the Americans with Disabilities Act . It provides definitive guidance from a number of experts on the ADA. Personnel managers in public sector agencies should follow the guidelines provided in Public Personnel Management: Confronting the Challenges of Change (Cozzetto et al, 1996). The following framework is intended to assist HRM specialists in preparing to deal with workplace discrimination based on disability: The first thing that employers need to do is to develop a comprehensive policy on disability discrimination. The policy must make reference to the ADA and the Act as amended in 2008. The policy should state that the employer will make reasonable accommodation for qualified disabled employees who meet the criteria defined under the ADA. The policy should also state that the employer has zero tolerance for employment discrimination of any kind (Bishop & Jones, Jr., 1993). Second, HRM should undertake a comprehensive audit of each position description in the organization. The purpose is to clearly define the essential job functions for each position. Third, performance management and performance appraisal policies must be reviewed to ensure that they are in compliance with the ADA. Fourth, the company’s medical and other insurance plans should be reviewed to ensure that they are not discriminatory under the amended ADA of 2008. Fifth, the policy should be widely disseminated to all employees and a link should be established on the company website where information about the ADA is available. Sixth, the appropriate HRM personnel should undergo ADA training. This training should occur annually because as demonstrated throughout this paper the interpretation of the law changes as new court cases are adjudicated. Seventh, the policy should require that all new employees undergo ADA orientation similar to the sexual harassment orientation that many companies require of new hires. Eighth, the ADA compliance policy should be formally approved by senior management and where appropriate, by a governing board. Conclusion The Americans with Disabilities Act is clearly a case of a well intentioned concept gone awry in its implementation. The cost of litigation concerning the ADA over the past twenty years is impossible to accurately determine. Suffice to say the impact has been in the hundreds of millions of dollars in direct costs to business and costs to taxpayers for state and local governments to comply with the legislation. The debate continues regarding the tangible outcomes concerning the ADA and whether disabled individuals are better off as a result of the legislation. Some studies have concluded that the ADA has had no impact on increasing employment opportunities for disabled citizens (Hotchkiss, 2004). Others argue that the ADA is working and it is having positive secondary benefits for the non-disabled as well (Travis, 2009). The passage of the 2008 amendments to the ADA is causing great trepidation throughout the country as employers struggle to determine what impact the more broadly defined parameters might have on decisions to hire, promote and sanction employees. These concerns are certainly legitimate. However, companies cannot simply wait around for the courts to provide guidance on what the amendments actually mean and how they are to be applied in every day employment situations. HRM professionals must be prepared to respond to any claims of discriminatory employment practices brought forward by disabled employees. All policies and procedures must be clearly documented and conveyed to employees. HR should undertake a comprehensive policy audit related to hiring, promotion, reassignment, medical leave, health insurance and other benefits and performance management to ensure in their best judgment that equal employment opportunity is provided for everyone. References Baustian v. State of Louisiana. (E.D. La. 1996) 910 F. Supp. 274. Bishop, Peter C. & Jones, Jr., Augustus J. (1993). Implementing the Americans with Disabilities Act of 1990: Assessing the Variables of Success. Public Administration Review, 53(2), 121-128. Bragdon v. Abbott. 524 U.S. 624 (1998). Colker, Ruth. (2005). The Disability Pendulum: The First Decade of the Americans with Disabilities Act. New York: NYU Press. Cozzetto, Don A. (1994). Implications of the ADA for State and Local Government: Judicial Activism Reincarnated. Public Personnel Management, 23(1), 105-116. Cozzetto, Don A., Pedeliski, Theodore B., & Tipple, Terrence J. (1996). Public Personnel Administration: Confronting the Challenges of Change. Upper Saddle River, New Jersey: Prentice Hall. Equal Employment Opportunity Website Retrieved from http://www.eeoc.gov. EEOC v. Watkins Motor Lines Iinc. 463 F. 3d 436 (6th cir. 2006). Hotchkiss, Julie L. (2004). A Closer Look at the Employment Impact of the Americans with Disabilities Act. Journal of Human Resources, 39(4), 887-911. Jacques v. DiMarzio, Inc. 200 F. Supp. 2d 151 (E.D.N.Y. 2002). Perritt, Henry H. (2003). Americans with Disabilities Act Handbook. 4th ed. New York: Aspen. Rozalski, Michael, Katsitannis, Antonis, Collins, Terri & Stewart, Angela. (2010) Americans with Disabilities Act Amendments of 2008. Journal of Disability Policy Studies, 21(1), 22-28. Starling, Grover. (1993). Managing the Public Sector. 4th ed. Belmont, California: Wadsworth. Sutton v. United Airlines, Inc. 527 U.S. 471 (1999). The Americans with Disabilities Act of 1990. Pub. L. No. 101-336. 104 Stat. 328. The ADA Amendments Act of 2008. Pub. L. 110-325. September 25, 2008. Toyota Motor Manufacturing, Kentucky, Inc. v. V. Williams. 534 U.S. 184 (2002). Travis, Michelle A. (2009). Lashing Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans without Disabilities. Tennessee Law Review, 76(2), 39-46. Veres, John G., & Sims, Ronald R. eds. (1995). Human Resource Management and the Americans with Disabilities Act. Westport Connecticut, Quorum Books. Williams v. Windall. 79 F 3d 1003 (10th Cir, 1996). Workman v. Frito-Lay, Inc. 165 F. 3d 460 (6th cir. 1999). Read More