Still crazy - court cases related to the Americans with Disabilities Act of 1990

Reason, May, 1998 by Walter Olson

Are federal judges taming the ADA? Don't count on it.

So now we find out: The Americans with Disabilities Act of 1990 empowers federal judges to rewrite the rules of golf, after deciding that the right to play in the elite PGA Tour is a "public accommodation" like the chance to patronize a lunch counter or motel. It's hard to see a reason in principle why enfeebled base runners now shouldn't ask for motorized buggies to help in their attempts to steal third, or why slow pawn pushers shouldn't get double time on the tournament chess clock if they bring in a note saying they're learning disabled. College applicants already get double time on the SATs that way, after all. Every Olympics a Special Olympics!

A parade of revered pros from Jack Nicklaus and Arnold Palmer on down had testified that walking and its associated fatigue, sometimes across steep terrain under a broiling sun, is intrinsic to the game of golf, and that in any case the sport deserved the right to set its own rules. No matter: To Oregon federal magistrate Thomas Coffin, the more relevant factor was that local hopeful Casey Martin, even with a cart to accommodate his leg disability, will still be expending more energy and getting more winded than his able-bodied competitors. With the point of pro sports now redefined as credit for effort rather than actual performance, the track and field people might just as well give up and proceed directly to installing the high-jump ramps.

Last year, ADA backers had been put on the defensive by the public's incredulous reaction to the new Equal Employment Opportunity Commission guidelines on mental illness in the workplace. The plucky Martin was a more sympathetic figure, personally liked even by many fans who thought his legal campaign was a disaster. And yet the victory against the PGA also undercut a theme that the disabled-rights forces had been assiduously cultivating over the past year. No matter how extreme the ADA might sound as a venture into social engineering, they insisted that in practice the federal judiciary was interpreting it so cautiously and narrowly that no one should take alarm. Thus the Los Angeles Times suggested that "the broad protection promised by the ADA has been unfulfilled because of the narrow way that judges and employers have interpreted the law." "Judges are holding plaintiffs up front to a very high standard," nods David Fram of the National Employment Law Institute.

Sorry, but no dice. Sure, case reports include plenty of ADA claims that lose, and many courts have indeed applied relatively narrow interpretations. But the backers of super-expansive ADA interpretation - which include the EEOC and Justice Department, most academic commentators, and the usual array of activist litigators - have also been winning cases of their own. Moreover, there's no symmetry between noteworthy defendant wins - which are often hard to marshal as precedent that provides any real safe harbor for future practice - and noteworthy plaintiff wins, which, as in the PGA Tour case, can open up huge virgin fields for future litigation. Given that the U.S. Supreme Court has declined to address the tangle of inconsistent lower-court rulings, no well-advised employer or business should behave as if its exposure under this law is anything other than open-ended, unpredictable, and highly dangerous.

Last September U.S. News & World Report published in its "News You Can Use" department a remarkable little piece asserting that, widespread opinion notwithstanding, "managers have little reason to fear being sued" under employment law. To back up this contrarian (at the least) view, it cited ADA case law: "Recent court rulings have actually made it tougher for employees to claim discrimination by narrowing the definition of who is protected.... Courts have found, for example, that if an employee's mental illness is controlled through medication or his or her hearing is improved by a hearing aid, then the person is not disabled under the law."

How accurate is that statement? Yes, some courts have ruled correctable disabilities aren't covered by the law. But other courts, of equal authority, have ruled the opposite. Thus in June of last year, a federal judge in Washington declared an IRS agent with vision problems to be legally disabled and thus covered by the act even though corrective lenses gave her 20/20 vision. On September 2, not long before the U.S. News article went to press, the 6th Circuit ruled that Kevin Gilday of Mecosta County, Michigan, who suffered from treatable but in fact untreated diabetes, was covered by the ADA. Gilday had been fired from his paramedic job for rudeness toward patients and colleagues that he claimed stemmed from mood swings caused by his diabetes.

Or consider the issue of whether workers can be held to a consistent standard on the issue of whether they're too disabled to work. In the 1996 case McNemar v. Disney Store, the 3rd Circuit ruled that a claimant who'd applied for and obtained Social Security benefits based on a certification of being completely disabled and wholly unable to work could not then turn around and sue a private employer which had agreed with the Social Security people that he wasn't up to a job. Disabled advocates greeted the McNemar decision with peals of outrage - those dreadful conservative courts were at it again. If any employers were so rash as to rely on McNemar as precedent, they were soon given pause. Last summer, in a pair of cases written by Judge David Tatel, the D.C. Circuit came out the other way, seeing no problem in simultaneously accepting benefits based on 100 percent disability and claiming fitness for work as grounds to sue someone who refused you a job.