[Fwd: Five Cases at Supreme Court Could Affect Disabilities Law]

Graeme Bacque (gbacque@idirect.com)
Sun, 21 Feb 1999 14:11:09 -0500

-------- Original Message --------
Subject: Five Cases at Supreme Court Could Affect Disabilities Law
Date: Sun, 21 Feb 1999 12:25:46 -0600
From: Marsha in Texas <marsha@CCMS.NET>

Five Cases at Supreme Court Could Affect Disabilities Law
Job Opportunities, Employers' Responsibilities at Stake

By Joan Biskupic
Washington Post Staff Writer
Sunday, February 21, 1999
Washington Post, Page A03

Karen Sutton and Kimberly Hinton are twin sisters whose dream of flying
for a big airline has made them a symbol of the legal morass that the
nation's disabilities laws have become.

When the sisters from Spokane applied to be pilots for United Air
Lines, they were turned away after the company contended they were both
too nearsighted to take a place in the cockpit. So they sued under the
Americans with Disabilities Act, but courts said the law does not cover
people who can correct their disability (in their case, with glasses)
and get along as well as anyone else.

To the sisters and others with serious handicaps that can be improved
by taking medicine or using some device, it is a Catch-22: They lose out
on jobs because of their condition but do not qualify as disabled under
the law. In the view of many employers, the law was not designed for
relatively common problems but rather to shelter a small, discrete group
of disabled people who have long suffered discrimination.

Now, the sisters' case joins four others before the Supreme Court this
term that could profoundly affect the landmark disabilities law passed
by Congress nearly a decade ago. Eventual rulings in these disputes will
determine how easily people with disabilities can find their way into
the nation's work force and how much financial responsibility employers
should bear to accommodate them.

"The statute is not just about protecting people in wheelchairs or
those who are totally blind," contends the sisters' lawyer, Van Aaron
Hughes. "It is about protecting anyone with any significant impairment
who is being prejudged" about his or her ability to do the job.

The legal dilemmas as well as larger social policy questions about what
the term "disabled" means and who the ADA truly benefits are just
emerging. More than 20 percent of all job discrimination complaints
filed with the Equal Employment Opportunity Commission now include
grounds based on disabilities.

Advocates say the law has changed public attitudes, opened new
opportunities to people with myriad disabilities and brought dignity to
their lives. But critics say the ADA has become another tool of
frivolous litigation wielded more by problem employees with minor
ailments than by individuals truly shut out because of discrimination.

Since the law went into effect, about 100,000 complaints have been
filed with the EEOC. About half of those were found to have no
"reasonable cause," or grounds. Of those complaints that did go forward
through EEOC proceedings, a relatively modest $211 million was paid out
by businesses to the handicapped.

Now, the Supreme Court is poised to pick up where Congress left off
when it passed the law making it illegal for an employer to discriminate
against a "qualified individual with a disability." The law also
protects the disabled against bias in housing, medical care and places
that serve the public.

A record five ADA disputes will be heard over the next two months,
beginning next week when the justices take up the case of a stroke
victim in Texas who says her boss refused to provide retraining, her
colleagues mocked her speech impediment and she was fired after being
told she would never be able to do anything again.

Soon after Carolyn Cleveland suffered a stroke, she applied for Social
Security disability. With some rehabilitation, however, she was able to
return to work part time at Policy Management Systems Corp., where she
checked the backgrounds of prospective employees of the firm's clients.
Cleveland notified the Social Security Administration she no longer
needed benefits. Eventually, after what she says were continual taunts
from co-workers and refusal by her company to help her accommodate her
disability, her performance suffered and she was fired.

The question is whether an individual who has applied for Social
Security disability benefits, but then returned to work, can claim in an
ADA lawsuit that she was "qualified" for the job and discriminated
against. A federal appeals court said the application for benefits
creates a presumption that the person is not qualified.

The case, Cleveland v. Policy Management Systems Corp., is being
closely watched by a variety of advocates, including those representing
the mentally retarded, elderly and people with AIDS, and by employers,
including the Equal Employment Advisory Council, which argues that
courts should presume once someone has applied for Social Security
benefits she is not "qualified" for the job under the ADA's coverage.

A larger issue to be addressed by the justices in three April cases is
how to define "disabled"--the foundation of any ADA claim. If bad
eyesight can be corrected, can it be the basis for a job discrimination
lawsuit? If medicine can reduce high blood pressure, can a mechanic
claim a trucking company fired him because of his hypertension?

Sutton and Hinton say it should not matter whether the disability can
be corrected by drugs, glasses or something else. But United's lawyer
points to the ADA's language specifically covering people whose
impairment "substantially limits one or more major life activities," and
says the availability of glasses and contact lenses means the sisters'
myopia is not substantially limiting. "Congress did not intend that a
minor and relatively common impairment such as nearsightedness . . . be
a covered disability," United lawyer Lisa Hogan wrote in a brief.

Ruling for the airlines in Sutton v. United Air Lines, the 10th U.S.
Circuit Court of Appeals declared Sutton and Hinton "cannot have it both
ways." The court said if they are "disabled" because their uncorrected
vision substantially restricts their ability to see, they cannot be
qualified for pilot jobs. And if they are qualified because their vision
is correctable, the court said, they cannot be limited in "the major
life activity" of seeing and are therefore beyond ADA protection. Other
federal courts have ruled the opposite, that disabilities should be
determined without any mitigating measures, and it will now fall to the
Supreme Court to resolve the conflict.

Sutton and Hinton contend that not everyone who wears glasses should be
considered disabled, but the severity of their bad vision (about 20/200
in the right eye, 20/400 in the left) qualifies them. The two other
related cases involve a truck driver who is blind in one eye (Albertsons
v. Kirkingburg) and a mechanic with high blood pressure (Murphy v.
United Parcel Service).

In a fifth case, Olmstead v. L.C., the justices will address states'
responsibility for providing treatment and rehabilitation in the
community, rather than in institutions, for the mentally disabled.

It has taken nearly a decade for core questions of disability rights to
advance to the court. Last term, the justices ruled in their first case
on the ADA. In it they held, 5 to 4, that people who are HIV-positive,
even those with no overt symptoms of the deadly disease, fall within the
ADA shelter.

"If these new cases come out in favor of the persons with
disabilities," said Georgetown law professor Chai Feldblum, who pressed
for the legislation more than a decade ago, "that will make a huge
difference to giving people a sense of comfort that the ADA truly
protects their rights to be part of the community."

>From the standpoint of employers, the court needs to make clear what
physical conditions are covered so that businesses know what financial
liability they face.

"Employers view the ADA as a very well-intentioned law with a very
laudable purpose, but there are people who have tried to abuse it over
the years," said Sussan Mahallati Kysela of the National Chamber
Litigation Center. "It's become important for the Supreme Court to
clarify who is disabled."


>From 1992 to 1998, there were 108,939 complaints filed with the Equal
Employment Opportunity Commission under the the Americans with
Disabilities Act.

Impairments most often cited (as a percentage of all cases)

Back: 16.7%

Emotional/psychiatric: 13.7%

Neurological: 10.8%

Extremities: 9.6%

Heart: 4.0%

Diabetes: 3.6%

Substance abuse: 3.0%

Hearing: 2.8%

Blood disorders: 2.6%

Vision: 2.5%

Cancer: 2.4%

Asthma: 1.7%

SOURCE: Equal Employment Opportunity Commission