| | Supreme court agrees to define employer☆
As of this writing, the Supreme Court has agreed to review 1 case involving the Americans with Disabilities Act (ADA) during its 2002-2003 term. Clackamas Gastroenterology Associates, P.C. v. Wells, Deborah is the tenth ADA case affecting private employers to be reviewed by the Supreme Court; the overall total of ADA cases is 17. The outcome of this case will define whether shareholders of a professional corporation are considered employees under the ADA. No circuit courts have interpreted the ADA's employer/employee provisions. This ruling will have widespread implications for employees with disabilities and small businesses.
This column also discusses the reaction of civil rights advocates to recent court decisions, 2 circuit cases that deal with the issue of reasonable accommodation, and another case related to the major life activity of “seeing.” Finally, an update is provided on the growing rise in retaliation lawsuits.
Clackamas v. Wells  Clackamas Gastroenterology Associates v. Wells was heard by the Ninth Circuit Court of Appeals (districts of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) in 2001. The district court had held that Clackamas was not an employer and therefore not a covered entity within the meaning of ADA because it did not have 15 or more employees. The ADA defines employer as a “person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” An employee is defined as “an individual employed by an employer.” The question presented to the Ninth Circuit was whether Clackamas' physician-shareholders were employees under the ADA. Case summary Four physician-shareholders participated in the management and operations of Clackamas Gastroenterology Associates. Clackamas employed 12 to 15 other individuals, including Deborah Wells from 1986 until her termination in 1997. When Wells' employment was terminated, she sued under ADA, Title I, alleging unlawful discrimination on the basis of a disability. Clackamas argued in district court that it was not an employer under the ADA because it did not have 15 or more employees for the 20 weeks required by the law. Therefore, because it is not an employer, it is not a covered entity with the ADA meaning. However, if the physician-shareholders should be counted as “employees,” Clackamas would meet the definition of a covered entity. The district court agreed with Clackamas' argument and granted a motion for summary judgment (ie, the court believed no genuine issue of material fact existed). The party filing the motion is entitled to prevail as a matter of law. Opinion of the court The Ninth Circuit Court ruled that the 4 physician-shareholders were employees because they actively participated in the medical practice and employment agreements were in place. As a result, Clackamas did have the appropriate number of employees to qualify as an employer and therefore a covered entity under the ADA law. The Ninth Circuit reversed the district court's grant of a summary judgment and remanded the case for further proceedings. Implications of the opinion Although no circuits have specifically interpreted the employer and covered entity provisions under ADA, other cases have been interpreted for other federal employment discrimination statutes, including both Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. These decisions indicate the interpretation should apply to all employment discrimination statutes. The Seventh Circuit (districts of Illinois, Indiana, and Wisconsin) has applied an “economic realities” test in prior cases. In this test, they determined that a shareholder in a professional corporation is more like a partner in a partnership. Therefore, because they would be considered partners, the shareholders in a professional corporation should not be counted as employees. The question presented to the Supreme Court is whether a federal court should apply an economic realities test to determine if a medical clinics' physician-shareholders should be counted as employees for the purpose of determining whether the clinic is a covered entity subject to the ADA and other federal antidiscrimination statutes. Reaction to supreme court decisions Columbia Law School held a conference in October 2002 to develop a strategy to deal with the trend of Supreme Court decisions perceived to weaken federal law designed to protect civil rights. Organizers of the conference at the Center for Public Interest at Law said, “The Supreme Court has closed off access to courts for individuals and communities challenging discriminatory policies and practices of all sorts.” The conference actually was sponsored by the National Campaign to Restore Civil Rights and focused on creating practical strategies that a variety of civil rights organizations can use to challenge the decisions. Important circuit court cases In another important case before the Ninth Circuit Court of Appeals, EEOC v. United Parcel Services, employees who had been diagnosed with monocular vision (limited or loss of vision in 1 eye) sued UPS because they had been disqualified from driving delivery trucks and vans. The Equal Employment Opportunity Commission (EEOC) sued UPS, alleging that their vision protocol discriminates against individuals who otherwise are qualified to drive the trucks and vans. This case is interesting because it uses as precedent 3 specific Supreme Court decisions that have been thoroughly discussed in previous articles—Toyota v. Williams, Albertson's, Inc. v. Kirkingburg, and Sutton v. United Airlines. At the trial court level, I provided vocational evaluations on a number of the employees in this class action suit. After a report and deposition, attorneys for both parties decided not to pursue that aspect of the case. Case summary The employees alleged that their monocular vision was a disability and that the UPS policy of not allowing individuals with monocular vision to drive trucks and vans was discriminatory under the ADA. Opinion of the court The Circuit Court determined that the impairment must prevent or severely restrict use of eyesight compared with unimpaired individuals' eyesight and its use in daily life. Judge Reimer wrote, “It does not follow that seeing as a whole is substantially limited just because the individual has a deficiency in some aspect of vision.” Although this case has a number of intricate legal details, the existence of a disability is a critical requirement for ADA claims. In order for the discrimination aspects of a case to be heard, the individual first must be considered disabled under the ADA. Implications of the decision The precedent that employers are free to prefer some physical characteristics over others in making job decisions certainly carried through in this decision of the Ninth Circuit Court of Appeals. The case was remanded to the lower court to determine whether UPS had “regarded” the individuals as disabled. Reasonable accommodation cases As a result of the Supreme Court decision in U.S. Airways, Inc v. Barnett, which has been reviewed in past columns, the EEOC has issued new “Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act.” This revised guideline was issued on October 17, 2002, and can be found at the EEOC website, www.eeoc.gov/docs/accommodation.html. In a reasonable accommodation case filed under the Rehabilitation Act of 1973, Ballard v. Rubin (Secretary of Treasury), the court provided some very specific guidance related to accommodation. This case was reviewed by the Eighth Circuit Court of Appeals (districts of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) and reiterated the employers' obligation to be actively involved in the accommodation process. The question presented to the Circuit Court was whether Ballard requested accommodations or assistance for his disability, which is a predicate requirement to initiate the interactive process. Case summary Mr. Ballard had been an Internal Revenue Service (IRS) employee from 1967 until January 1999. Ballard had contracted polio as a child and, as a result, wore leg braces and used crutches in his employment. He was aware that his credentials as an employee would be enhanced if he accepted some assignments involving travel. However, he did not think traveling was feasible because of his physical limitations. He sent a memo to his employer in October 1991 withdrawing from a management achievement program. To that memo, he attached 2 letters from his doctor recommending that he be allowed to use a lightweight wheelchair and either curtail his travel solo or travel with another individual who could assist him. Ballard specifically wrote, “I am not now requesting any special accommodations.” Subsequent to his letters, Ballard applied for but was not selected for 2 separate promotions. In August 1994, he filed an EEOC complaint alleging that he had not been selected because of his disability. His claim related to hostile work environment, disability discrimination, and failure to accommodate. On appeal, Ballard's claim was that the IRS failed to provide reasonable accommodation for his disability. Opinion of the court The Eighth Circuit Court of Appeals concluded that Ballard did not provide the IRS with enough information that the agency would have understood that he was requesting accommodations, citing the memo. Implications for case managers Other appeals courts have made it clear that, regardless of the format of the request, the notice must make clear that the employee wants assistance for his or her disability. The employer must know about both the disability and the employee's desire for accommodations. The case manager, acting as an employee advocate in a reasonable accommodation situation, must ensure that the employer knows about the disability and the specific need for an accommodation. The employer then must engage in the interactive process to provide that reasonable accommodation. The second reasonable accommodation case is Watson v. Lithonian Lighting and National Services Industries, Inc, from the Seventh Circuit (districts of Illinois, Indiana, and Wisconsin). The court relied on the Supreme Court decision in Toyota v. Williams, also discussed previously in this column, as precedent. Case summary In June 1999, Ms. Watson's physician informed her employer “she would never again be able to perform any tasks that require repetitive motion of her upper right arm.” Because the employer required all assembly line workers to rotate through all positions, it was concluded that no manual jobs were available for her in the way of an accommodation. The lower court had concluded that the employer was not obligated to create a new position for her limitations. However, Watson claimed that the employer makes exceptions to the rotation rule and, therefore, should make an exception in her case and provide an accommodation. Unfortunately, Watson was unable to provide evidence that other individuals had received exceptions to the rotation policy. Opinion of the court The Seventh Circuit opined that an employer that sets aside a pool of positions for recovering employees is not required to make those positions available indefinitely, especially when the employee has reached a maximum healing state without restoration to original health status. The court noted, “A person is ‘otherwise qualified’ within the meaning of the ADA only if she can perform one of the regular jobs with or without an accommodation.” Implications for case managers Case managers should be aware that employers are not required to create new positions specifically tailored to each individual's abilities (or lack thereof). The ADA, of course, encourages employers to make accommodations so that an injured individual can continue working. Update on retaliation According to the EEOC, from 1992 to 1998, retaliation claims as a percentage of total disability charges filed increased from 15.3% to 24%. Verdicts favoring the employee regarding retaliation claims are increasing, even if they do not win the discrimination claim. In fact, retaliation claims are being touted as the “growth industry” of discrimination law. In a case heard before the Eighth Circuit Court of Appeals, Salitros v. Chrysler Corp, an employee was awarded $445,516 in front pay claiming that Chrysler had retaliated against him because he had filed an ADA lawsuit. Chrysler also had to pay $100,000 in punitive damages and attorney's fees and costs totaling $128,269. In total, between the judge and jury, Salitros received $673,785 in his retaliation suit. (It should be noted that the front pay of $445,516 was awarded by the court, not the jury. The jury awarded the $100,000 in punitive damages.) Chrysler argued before the Court of Appeals that the district court had erred in awarding front pay because Chrysler had reinstated Salitros. The court notes that reinstatement is the “preferred remedy” in cases like this. However, evidence had indicated extreme animosity between the employer and employee that could make the reinstatement unworkable. The court has designated that, to prove a retaliation claim, an employee must show that:
•He or she is participating in a protected activity known to the defendant (employer).
•He or she had an adverse employment action.
•A causal connection exists between the protected activity and the adverse employment action.
Salitros was able to prove all 3 burdens. Conclusion When the Supreme Court offers its opinion in the Clackamas v. Wells case, a clearer definition of “covered entity” under the ADA should emerge. This decision will affect thousands of small employers and is the first time the Supreme Court has dealt with the definition of a small business under the ADA. Stay tuned.
Another ADA Case Added to Supreme Court Agenda
On November 18, the U.S. Supreme Court granted review of the second ADA case to be heard in the 2002-2003 term. The case, Medical Board of California v. Hason, Michael, involved denial of a physician's license to Hason by the medical board, a state agency, in 1998 on the grounds of mental illness (depression).
Hason sued under the ADA, arguing that the board violated his rights by not making a reasonable accommodation for his illness. At the district court level, the judge ruled that the 11th Amendment to the Constitution provides the state agency with the immunity from lawsuit under a federal law. The 9th Circuit Court of Appeals reinstated Hason's appeal. They opined that Congress had the power to legislate into the ADA law that state agencies could be sued under federal law by the authority granted under Article 5 of the 14th Amendment.
The question now before the Supreme Court is whether the 11th Amendment bars suit under Title II of the ADA against the California Medical Board for denial of a license based on the applicant's mental illness.
This case will be the 18th ADA case heard by the Supreme Court since July 1990. Oral arguments will be heard after January, and a decision is expected in the spring. That decision will be reviewed in this column.
Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM, is the vice president of and rehabilitation consultant for Mc/RS in Ankeny, Iowa. He also is the director of the Life Career Planning Institute and can be reached at lewvier@aol.com ☆ Reprint orders: Mosby, Inc., 11830 Westline Industrial Dr., St. Louis, MO 63146-3318; phone (314) 453-4350; reprint no. YMCM 8 PII: S1061-9259(02)03708-6 doi:10.1067/mcm.2003.8 © 2003 Mosby, Inc. All rights reserved. | |
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