Winter 1999, Vol. 8, No. 2.

Workplace Forensic Psychiatry

New Developments Under the Americans with Disabilities Act

Ronald Schouten, M.D., J.D.
Boston, MA

The spring of 1999 has been active with regard to developments under the Americans with Disabilities Act (ADA). The Act, passed in 1990, prohibits discrimination against individuals with a disability who are otherwise qualified to perform the essential functions of their job. An individual is considered to be 'otherwise qualified' if he or she can perform the essential functions of the job with or without reasonable accommodations provided by the employer. The ADA also prohibits discrimination against individuals with disabilities with regard to public accommodations. The ADA defines a disability as either (a) a physical or mental impairment that substantially limits one or more major life activities; (b) a record of having such an impairment; or (c) being regarded as having such an impairment. Substantial limitation of a major life activity means more than that the individual is prevented from doing a single job that he or she may choose.

The Equal Employment Opportunity Commission (EEOC) is charged with drafting regulations and enforcing the ADA. In addition, the EEOC periodically issues Guidances that are not legally binding but indicate how EEOC will interpret the statute and are often followed by the courts.

In March 1999, the EEOC issued a document entitled 'Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act.' On June 22, 1999, the Supreme Court of the United States issued three opinions in ADA cases. This column will briefly review the guidelines on what constitutes reasonable accommodation under the ADA provided by the EEOC Guidance as well as two of the Supreme Court decisions.

The EEOC Guidance makes clear that an individual employee or job applicant must inform the employer that he or she requires some accommodation with regard to the application process or job conditions. Once the employer is notified of this, the employer is then obligated to engage in efforts to specify the nature of the employees needs and what accommodations might be appropriate. Such an inquiry with regard to mental disabilities could involve consultation with an occupational psychiatrist.

As part of the process, the employer is permitted to request reasonable documentation in order to establish that the applicant or employee indeed has a disability that requires reasonable accommodation. The EEOC indicates that the employer can only request documentation that is related to determining the existence of a disability and the necessity for an accommodation. Thus, in most situations, the employer cannot request a person's complete medical records. The employer may require the individual to go to an appropriate health professional of the employer's choosing if the individual fails to provide sufficient information from his or her treating clinician to substantiate the existence of a disability and the need for reasonable accommodation. However, the employer should explain why the documentation is insufficient and give the individual an opportunity to provide the missing information. The EEOC emphasizes that this is an informal process and it may be sufficient to have a simple discussion between the employer and the applicant or employee. If the applicant or employee refuses to provide the documentation requested by the employer, then he or she is not entitled to reasonable accommodation.

Reasonable accommodations under the APA may include modifications or adjustments to the job application process, modifications or adjustments to the work environment or the manner or circumstances under which the position held or desires is usually performed, or modifications or adjustments that allow the employee with a disability to enjoy 'equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.' The EEOC provides a list of possible reasonable accommodations. These include:

Making existing facilities accessible; Job restructuring; Part time or modified work schedules; Acquiring or modifying equipment; Changing tests, training materials, or policies; Providing qualified readers or interpreters; and Reassignment to a vacant position.

In two of its July 22, 1999 opinions regarding the ADA, the Supreme Court addressed the issue of whether the ADA covers individuals who whose disabilities can be corrected with medication, corrective lenses, or other interventions. The court held that such correctable disabilities are not covered disabilities under the ADA. These holdings rejected the EEOC's approach as outlined in its regulations. The EEOC, and the majority of federal courts, had required that the determination whether or not an employee is substantially limited in a major life activity is to be made according to the employee's abilities without treatment or corrective devices.

In Sutton v. United Airlines (1999 U.S. Lexis 4369), twin sisters who had applied to be commercial airline pilots were not offered positions because they had failed to meet the employer's requirement of a corrected visual acuity of 20/100. The sisters sued under the APA, alleging that they had been discriminated against because of their disability: uncorrected vision. The court held that 'if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures-both positive and native-must be taken into account when judging whether that person is 'substantially limited in a major life activity'and thus 'disabled under the ADA.' Potential or hypothetical substantial limitation is not sufficient; the APA requires that the person be presently disabled.

The plaintiff in Murphy v. UPS (1999 U.S. Lexis 4370) suffered from hypertension and was hired by UPS as a mechanic. He was granted Department of Transportation certification mistakenly, and one month after he was hired, UPS became aware of this and fired him. He brought suit under the APA alleging that employment decision had been made based upon his disability: hypertension. The plaintiff's hypertension was manageable by medication and thus, according to the court's analysis in Sutton, did not substantially limit him in any of his major life activities and thus he could not be considered disabled under the ADA.

The Sutton sisters in the United Airlines case, as well as Murphy in the UPS case, also argued that they were entitled to protection under the ADA because they were 'regarded as' disabled by the employer. In rejecting these claims, the court noted in Sutton that 'The ADA allows employers to prefer some physical attributes over others and to establish physical criteria. An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity.'

The EEOC Guidance and the two Supreme Court opinions demonstrate the ongoing dynamic process of interpretation and enforcement of the ADA. As the ADA enters its second decade, occupational mental health professionals should closely follow both the EEOC's interpretations and the actions of the courts in providing final, and controlling, judicial interpretations of the ADA.

 
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