Supreme Court Rescues ADA From Its Zealots
June 18, 2002
By Walter Olson
Justice Sandra Day O'Connor predicted that 2001-02 could be "remembered as the disabilities act term," and no wonder: The Supreme Court has handed down four decisions this year interpreting the Americans with Disabilities Act, each of them tending to narrow the scope of the law. The latest came yesterday, when the court unanimously ruled that municipalities could not be hit for punitive damages under the law.
Business groups were understandably pleased at the three earlier decisions, all of which rejected liberal readings of the law's employment provisions. But it would be rash to read the trend on the court as merely pro-employer: Last week, for example, it dealt employers a painful defeat in a case involving time limits for suing over job bias. A better reading of this year's cases is that this is the court's sporting attempt to help clean up the messes Congress left when it passed the ineffably vague disabled-rights statute in 1990. And by resolving some of the ADA's ambiguities so as to make the law more workable and practical, the court may have done disabled-rights advocates a bigger favor than they will admit.
In January's Toyota v. Williams, the court held that a worker whose carpal tunnel syndrome prevented her from performing a factory job was not necessarily disabled under the ADA unless she could show that the condition also kept her from performing tasks "of central importance to most people's daily lives." That built on a set of cases from 1999 in which the court held that workers should not be deemed disabled if their condition can be "mitigated" through, say, eyeglasses or medication.
Most ADA advocates had hoped to bring people with less serious ailments under the disability law, sometimes on the view that the more people were allowed to invoke the law, the more secure its political future would be. But the justices, most of whom wear eyeglasses, may have grasped a sounder premise: The public will more likely endure the law's high costs if it thinks the benefits are focused on those with the most serious impairments.
Two other decisions broke fresher ground. In April's US Airways v. Barnett, the court ruled that the law generally does not entitle disabled workers to insist that workplace seniority systems be set aside in search of suitable jobs. And last week, in Chevron v. Echazabal, the court ruled that the law does not compel a company to place a disabled worker in a job it reasonably believes will jeopardize his own health or safety.
Some disability rights advocates reacted to the new rulings with outrage. Andrew J. Imperato, president of the American Association of People With Disabilities, said the court had "once again demonstrated its fundamental hostility to disability rights in the workplace." Justin Dart, a prominent backer of the law since the Reagan era, called for disabled persons to take to "the streets" to make it "unacceptable to appoint judges who threaten the ADA."
That would mean ruling out a very long list of judicial nominees, since even the more liberal members of the court would seem to be numbered by Mr. Dart's definition among "judges who threaten the ADA." Three of the most recent cases were unanimous, while in Barnett the majority opinion was penned by Clinton appointee Stephen Breyer.
Why is the court faced with so many ADA issues to resolve? Blame Congress, which in 1990 was eager to bask in polite approbation by passing a far-reaching disabled-rights bill but did not trouble itself to spell out what regulated parties were supposed to do to comply with its mandates. The idea was: Let the courts decide what this law actually means, and then they can take the resulting heat. So employers were first expected to guess which of their employees counted legally as disabled and then go on to guess what might constitute reasonable accommodation for them, with $50,000 fines for first offenses and open-ended damage awards as the price for guessing wrong.
Disabled-rights advocates approved of this approach. They knew they had liberally salted the ADA's legislative history with signals to the courts to construe the new law in expansive fashion. Key ADA backer Tony Coehlo said of the law: "It was deliberately written vaguely."
As we know, however, ambiguity cuts both ways. In the first years after the ADA's passage, its advocates were reasonably confident that seniority rules would in time have to yield to their demands. They were even more confident that the courts would rule against what were said to be paternalistic employer concerns about a disabled worker's own safety.
In the case of Mr. Echazabal, who had been diagnosed with a chronic form of hepatitis, he was removed from his chemical plant job after Chevron was told by its doctors that exposure to solvents and other toxins at the plant could sicken or even kill him. As recently as 1991 the high court itself had ruled that the federal Pregnancy Discrimination Act obliges an employer to offer lead-exposed jobs to women with childbearing capacity despite the risk to their unborn children. But as Mr. Echazabal's lawyer found at oral argument, the mood at the court had swung a long way in the decade since then, with the conscience of more than one justice revolting at the notion of forcing managers to become possible instruments of a sort of on-the-job assisted suicide. "We want employers to care about their employees," as Justice Anthony Kennedy put it. "You want employers to take a position that's completely barbarous."
If a theme emerges from the court's recent cases limiting the ADA, it is the recognition that when laws of this sort go too far the costs are not solely financial and do not fall on "business" alone. The fact patterns in the court's 1999 round of cases raised striking concerns about safety to the general public (visually impaired people wanted to work as commercial airline pilots and heavy-truck drivers). Justice Breyer's decision in Barnett emphasized that undermining seniority systems could do serious harm to fellow employees' "expectations of consistent, uniform treatment." If the court is serious about building on these insights, it may find many more aspects of the ADA worthy of visiting or revisiting in the terms ahead.
Mr. Olson, a senior fellow at the Manhattan Institute, is author of "The Excuse Factory" (Free Press, 1997).
©2002 The Wall Street Journal
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