CLIENT ALERT MEMORANDUM
July 7, 1999
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
“MAJOR CHANGE IN ADA”
During the past year there have been a number of significant decisions impacting upon the application of provisions contained in the Americans With Disabilities Act (ADA) . The most significant decisions, however, were handed down by the United States Supreme Court on June 22, 1999 where the Court significantly limited the population covered by ADA. The Court issued rulings in three separate cases (Murphy v. U.P.S., 99 D.A.R. 6259; Albertsons, Inc. v. Kirkingburg, 99 D.A.R. 6243; andSutton v. United Air Lines, 99 D.A.R. 6277) holding that ADA was not intended to protect workers who suffered from impairments which were treatable such as bad eyesight, hypertension or diabetes.
In 1990, Congress implemented the Americans With Disabilities Act and made it illegal to discriminate against “a qualified individual with a disability.” The issue which has been extensively litigated for the past several years, focuses on who has a disability, as well as whether or not the person with the disability is qualified to perform the underlying task.
In the case of Murphy v. U.P.S., the Court held that the employer had the right to terminate an employee who repaired trucks because of high blood pressure. The company alleged that even after receiving treatment, the medical condition violated their medical standards. The Court ruled that since Murphy was able to work effectively under medication, he had no disability as defined by ADA. The Court also stated in the Murphy case that even one who does come under the protection of ADA may not win discrimination claims if they are unable to prove that they are “qualified” for the job being sought, with or without a reasonable accommodation.
Murphy also alleged that he had been terminated because his employer “regarded” him as disabled which if true, is a category also protected under the ADA. The Court rejected that argument stating that Murphy “could perform jobs such as diesel mechanic, automotive mechanic, gas engine repairer, and gas welding equipment mechanic,” therefore he was unable to prove that the employer “regarded (him) as unable to perform a class of jobs . . . only a particular job.”
In the case of Albertsons, Inc. v. Kirkingburg, a truck driver who had driven large trucks for more than a decade, despite the fact that he was nearly blind in one eye, was terminated by his employer on the theory that he was a safety risk. The Court upheld the termination and questioned whether or not the truck driver should be protected by ADA since, if he was nearly blind in one eye, he was not, in the opinion of the Court, “qualified” to drive large trucks. (This despite the fact that for the ten years he had driven trucks, he had a spotless driving record.) The Court further stated that the driver was not a “qualified” individual with a disability under ADA because he could not meet the Department of Transportation standards.
In the Albertsons, Inc. decision, the Court unanimously held that employers may terminate an employee or refuse to hire workers with impairments if the individuals fail to meet a Federal Work Safety standard. As the Court pointed out, “an employer may impose as a qualification standard a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” The determination of whether an individual presents the safety concern must be “based on medical or other objective evidence. ”
In the third case, Sutton v. United Airlines, the airline refused to hire twin sisters as jet pilots because they needed glasses to bring their vision to 20/20. Once again, the Supreme Court ruled that they were not entitled to raise a discrimination claim because with glasses the two sisters were able to see at the level of 20/20. The Court stated that the pilots could not sustain their lawsuit because “a disability exists only where an impairment “substantially limits” a major life activity, not where it “might,” “could,” or “would” be substantially limiting if mitigating measures were not taken.” Additionally, the Court stated that “findings enacted as part of the ADA require the conclusion that Congress did not intend to bring under the statute’s protection all those whose uncorrected conditions amount to disabilities.”
The Supreme Court held that even persons suffering from epilepsy, diabetes, heart disease, etc. were not necessarily covered by ADA if their medications allowed them to work normally. The Court has, in the past, held that the mere fact that one may not be able to perform a particular job because of a disability did not necessarily provide them with ADA protection since there were many other jobs at which they could work despite their disability. The Court stated, “those whose impairments are largely corrected by medication or other devises are not “disabled” within the meaning of ADA.”
Less than a year ago, however, the Supreme Court adopted a liberal interpretation of the ADA and, on a 5 to 4 vote, held that a person with HIV, who had developed no symptoms of AIDS, was protected by the ADA and, in fact, had a disability even though no overt symptoms had yet appeared. The theory of the Court in that case (Bragdon v. Abbott, 118 Sup. Ct. 2196) was that because of the immediacy with which HIV damages one’s body, it is an impairment under ADA from the moment of infection despite the fact that no symptoms yet appeared. The Court held that HIV must be regarded as a physiological disorder and the infection satisfies the statutory and regulatory definition of a physical impairment.
These decisions will unquestionably be subject to debate for a period of time and may, in fact, result in congressional action, and further litigation, in an effort to clarify the law. Nonetheless, the Supreme Court of the United States has spoken and it would certainly appear, at this time, that the ability of many individuals to claim that they have been discriminated against on the basis of a disability will be much harder to both allege and/or prove. As such, these decisions will probably impact, in particular, the hiring of individuals in a variety of public sector positions. It would be appropriate, therefore, for all jurisdictions to review these decisions with their legal advisor and develop a policy regarding their application.
WHAT DOES THIS MEAN FOR YOUR DEPARTMENT?
Although these decisions represent a shift toward a more balanced and fair application of ADA, it remains important for law enforcement agencies to ensure that standards governing the essential core functions of policing are maintained. This is particularly true when evaluating assignment of personnel to light duty and/or disability pensions. Maintenance of these standards, together with this new line of cases, should help to ensure that all personnel are able to perform those duties essential to protecting lives and property.
As always, should you have any questions regarding this issue please don’t hesitate to call Martin Mayer at (562) 590-8280.
MJM/ps
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