The New ADA Backlash

by Nicole Buonocore Porter

The Americans with Disabilities Act (“ADA”) was passed in 1990 with much fanfare and hopes for a successful future.  However, by almost universal consensus among disability rights advocates and scholars, the ADA has not lived up to its potential.  Through their interpretation of the definition of “disability,” the federal courts have dramatically narrowed the class of individuals who are entitled to bring a claim under the ADA.  Thus, conditions such as diabetes, cancer, AIDS, bipolar disorder, multiple sclerosis, monocular vision, epilepsy, cerebral palsy, and mental retardation were found not to be disabilities under the original ADA statute.  Several scholars referred to the United States Supreme Court’s decisions (and subsequent lower court decisions) as a “backlash” against the ADA.  Congress became unhappy with this backlash and ADA Amendments Act of 2008 (“ADAAA” or the “Amendments”) to overturn the courts’ narrow interpretation of the term “disability” and contraction of the protected class.

The ADAAA made significant (perhaps even drastic) changes to how the term “disability” should now be interpreted.  Several scholars have predicted that, under the new definition, many more individuals will be able to qualify as having a disability and will therefore have their cases proceed to the inquiry of whether the employer violated the statute.  I agree with that prediction. Thus, the first goal of this paper is to explore the body of cases decided since the Amendments have taken effect to demonstrate that far more plaintiffs are, in fact, meeting the definition of disability and having the merits of their cases decided by the courts. I will demonstrate that the Amendments have made it much easier for a plaintiff to satisfy the threshold question of whether the individual meets the statutory definition of disability, and therefore many more plaintiffs survive summary judgment.

But despite the expansion of the protected class, I am skeptical that courts will give the ADA, as amended, the broad interpretation that Congress intended.  My skepticism stems from the fact that courts that engaged in the backlash were not only concerned about a plaintiff falling into the ADA protected class. After all, every employee falls into a protected class under Title VII, and many individuals fall into the protected class under the Age Discrimination in Employment Act (which covers employees forty years and older).  Instead, courts were reluctant to find that plaintiffs fall into the ADA protected class because doing so meant that plaintiffs would be entitled to the ADA’s most unique feature—the reasonable accommodation provision.  Because courts and employers see the ADA as giving preferential treatment to individuals with disabilities, they are reluctant to give those benefits to a large group of employees.  Thus, before I began this project, I suspected that because courts can no longer limit ADA protection using the definition of disability, they might feel compelled to limit protection in other ways—specifically, using the merits of the case.

Therefore, this paper explores whether courts are using the reasonable accommodation provision or the qualified individual inquiry to limit the number of individuals entitled to the special protection of the ADA. Courts could do this in one of three ways. First, courts could broadly construe the “essential functions of the position,” giving great deference to what the employer designates as the essential functions.  Second, courts could use the ambiguity of the word “reasonable” to hold that many accommodations are not reasonable.  Third, and less likely, courts could limit the reasonable accommodation provision by holding that some accommodations pose an undue hardship on the employer. Thus, the second goal of this paper is to explore the body of cases that have been decided on the merits since the Amendments became effective to see if courts have found a new and more direct way to limit the number of plaintiffs entitled to the special treatment of accommodations in the workplace.

The results of this second issue are mixed. For cases that address the actual functions or tasks of the job, my analysis does not reveal that courts are using the merits of the case to limit those who are entitled to the protection of the ADA. However, there is a set of cases that do reveal a potential new backlash against the ADA. Post-ADAAA case law reveals that employers are more reluctant to provide accommodations that relate to the structural norms of the workplace (when and where the work is completed) than to provide accommodations that physically modify the job tasks or the workplace environment.  Not only are employers reluctant to provide these accommodations, but post-ADAAA case law demonstrates that courts are also reluctant to require employers to change these default rules of the workplace (hours, shifts, attendance policies, etc.). Because of this result, I also explore why the entrenchment of workplace norms exists—more specifically, why employers insist on the structural norms more than the actual tasks of the position and why courts generally acquiesce in those decisions.

This paper will proceed in five parts. Part II provides a brief history of the ADA, both of its structure and legislative history. It then proceeds to a discussion of the major Supreme Court cases that dramatically narrowed the coverage of the ADA through a narrow interpretation of what it means to be an individual with a disability. I will also discuss why courts may have narrowly construed the statute. Part II then turns to a discussion of the ADA Amendments Act’s provisions.

Part III discusses the body of case law decided after the Amendments were adopted that addresses the issue of whether the plaintiff has a disability, exploring the question of whether courts are following Congress’ mandate for broad coverage under the ADA. I argue that they are. Courts are interpreting the definition of disability much more broadly than they had been before the Amendments went into effect, and in most cases, interpreting it correctly.

Parts IV and V discusses the body of cases decided on the merits. Specifically, I explore how courts are deciding issues of whether the employee is qualified and whether the employee is entitled to a reasonable accommodation. Specifically, Part IV reviews cases where the issue is whether the employee can perform the physical functions of the job with or without reasonable accommodations. Although I predicted that these cases might reveal another backlash against the ADA, the case law does not demonstrate such a backlash. It might simply be too early to tell whether courts are going to be resistant to requiring employers to grant physical modifications to the workplace or job tasks.

Finally, Part V discusses the body of post-ADAAA cases where the employee requests a variation of one of the structural norms of the workplace: the hours, shifts, schedules, attendance policies, etc. I argue that these cases reveal a new backlash against the ADA—courts are reluctant to require employers to provide accommodations when those accommodations are related to the structural norms of the workplace, as opposed to physical modifications to the job or the workplace environment. This Part also explores possible reasons why the entrenchment of workplace structural norms exists.


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