An Empirical Examination of Case Outcomes Under The ADA Amendments Act

Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide “a national mandate for the elimination of discrimination.” This Article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination because, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines all reported federal court summary judgment decisions arising under Title I of the ADA for a forty-month period extending from January 1, 2010, to April 30, 2013. The study coded the pre-ADAAA and post-ADAAA decisions for both disability standing determinations and for rulings on whether the plaintiff was qualified for the jo b in question. These preliminary data show that the federal courts are granting employers a significantly smaller proportion of summary judgment rulings under the ADAAA on the basis of a lack of disability status. In addition, the ADAAA decisions exhibit a greater prevalence of rulings on the issue of whether the plaintiff is a qualified individual. On the other hand, the post-amendment decisions show an increased tendency for the courts to find that the plaintiff is not qualified. While the rate of increase in plaintiff victories on the disability issue is outpacing the rate of increase in plaintiff losses on the qualified issue, the latter phenomenon suggests a continuing judicial unease with disability discrimination claims generally and with reasonable accommodation requests more specifically

BFOQ Revisited: Johnson Controls Halts the Expansion of the Defense to Intentional Sex Discrimination

The bona fide occupational qualification (BFOQ) is a statutory defense to intentional discrimination under Title VII. 1 The BFOQ defense permits an employer to adopt an otherwise facially discriminatory employment practice if reasonably necessary to the normal operation of that particular business. . . . 2 Both the courts and the Equal Employment Opportunity Commission (EEOC) have traditionally interpreted this defense very narrowly. A gender-based employment classification, for example, qualifies as a BFOQ only if the failure to adopt a single-sex policy undermines the employer\u27s ability to accomplish its essential business mission.

A New Voice for the Workplace: A Proposal for an American Works Councils Act

Surveys show that American workers want more voice in the workplace. For the past century, unions have served as the principle voice mechanism for workers, but with the decline of unions, employee voice also has diminished. Section 8(a)(2) of the NLRA compounds this problem by prohibiting most employer-supported programs by which employees deal with employers concerning terms and conditions of employment. Both the East and the West offer possible alternative voice mechanisms. Over the past two decades, American employers increasingly have looked to the Japanese experience in adopting quality circles, work teams, and other employee involvement programs. But the growth in these programs has fallen short of expectations due, in part, to the reluctance of some employers to cede managerial discretion. Further, even if the Section 8(a)(2) bar is removed to permit more EIP\u27s, additional employee voice will occur only if individual employers choose that result. Europe provides a different model in the form of works councils. Works councils are elected bodies of employees that meet regularly with management to discuss establishment level problems. Most countries in Western Europe legislatively mandate the formation of works councils for plants in excess of a certain minimum size. In addition, works councils are undergoing a continent-wide boom as the expanding European Union has adopted a series of directives that require a near universal establishment of works councils over the next few years

Accommodation at Work: Lessons from the Americans with Disabilities Act and Possibilities for Alleviating the American Worker Time Crunch

This article addresses issues of accommodation and time with respect to the American worker time crunch problem. On the former issue, I concur in Professor Arnow-Richman\u27s observation that an accommodation approach to addressing the competing pressures of work and family is prone to resistance from the courts. Experience under the ADA illustrates a judicial reluctance to go beyond a traditional equal treatment view of discrimination to embrace a more affirmative different treatment model of discrimination. But this does not mean that the ADA\u27s reasonable accommodation framework has been a failure. To the contrary, while the reasonable accommodation requirement may have fallen somewhat short of expectations on the substantive law front, it has launched a procedural revolution in fostering an interactive process by which employers and employees cooperatively work to identify suitable workplace accommodations. The impact of this procedural device is not as readily noticeable as the courts\u27 substantive law limitations, but it may serve as the ADA\u27s most significant contribution to this point. Turning to the second issue, American workers, quite simply, do not have enough time to tend to caregiving and other non-work needs. While this is a particularly acute problem for caregivers, the American worker time crunch is a problem of pandemic proportions. American workers of all stripes are required or pressured to spend ever-increasing amounts of time at work. The ADA model represents one possible format for accommodating non-work time demands. The first decade of experience under the ADA suggests that judicial and employer resistance would temper the substantive law advances of such an approach without necessarily conferring the procedural advantages of the ADA\u27s interactive process. A more specific legislative approach is preferable. Given the pervasive nature of the American worker time crunch problem, a broad legislative solution is in order. This article suggests one possible approach in the form of a proposed amendment to the FMLA that would enable employees to take paid leave for two of FMLA\u27s twelve-week leave period financed in a manner similar to that used for unemployment compensation purposes. The proposal also would permit employers to opt out of the new mandate by providing a minimum of four weeks of leave per year that may be taken by employees for care, sickness, or personal leave/vacation purposes

Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause

As public sector budgets have waxed and waned in response to changes in the economic cycle over the past 30 years, public sector employers increasingly have sought to control personnel costs by resorting to measures such as wage freezes and furloughs. Not infrequently, those measures have pitted the viability of collective bargaining agreements against the ability of government to protect its coffers. This article examines those court decisions that have considered the reach of the contract clause in this setting over the past thirty years. Most of these courts properly have applied the principles established by the Supreme Court in the United States Trust Co. decision so as to restrict the permissible scope of self-serving legislative modifications. A significant minority of decisions, however, have afforded substantial deference to such modifications even though they occur in a context in which the legislative body is hardly a disinterested observer. While the legislative impairment of governmental contract rights is a necessary safety valve in some circumstances, an underlying theme of many of the minority decisions is that public sector collective bargaining agreements are not as worthy of protection as other types of governmental contracts. This article takes issue with that theme as an undesirable vestige of the discredited notion that public employees owe a duty of “extra loyalty” to the state. The article proposes an analytical framework that treats public sector collective bargaining agreements the same as other governmental contracts, rather than as a second-class type of contract. It urges that a governmental body should be sustained in impairing its contract obligations to its employees on the same basis as other self-serving impairments; that is, only when such impairment is reasonable and necessary to serve an important governmental purpose

Let\u27s Try This Again: The ADA Amendments Act of 2008 Attempts to Reinvigorate the Regarded As Prong of the Statutory Definition of Disability

Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.” Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let’s try this again” mode, Congress enacted the ADAAA in 2008 as a multi-faceted attempt to override the restrictive court rulings. A crucial cornerstone of the 2008 act is a compromise concerning the scope of the “regarded as” prong of the disability definition. One aspect of the compromise is a dramatic expansion in the coverage of individuals adversely treated on the basis of an actual or perceived impairment. This expansion, however, is tempered by two accompanying limitations that exclude coverage of transitory and minor impairments and that eliminate any duty on the part of employers to provide reasonable accommodations to individuals who qualify as disabled solely under the “regarded as” prong. This article chronicles the history of the ADA, the judicial backlash, and the events leading to the enactment of the ADAAA. The article then proceeds to discuss the likely impact and nagging concerns implicated by the “regarded as” compromise. The ADAAA clearly is welcome legislation that expands the class of individuals protected against disability discrimination and employment decisions premised on stereotypical preconceptions. The “regarded as” compromise, however, also comes with a series of nagging questions that have the potential to hinder the ultimate goals of the new legislation and perhaps even unleash a new judicial backlash. These areas of uncertainty must be closely monitored in the years ahead to ensure that the courts do not again frustrate the ADA’s reinvigorated promise

Reasonable Accommodation and Reassignment under the Americans with Disabilities Act: Answers, Questions, and Suggested Solutions after U.S. Airways, Inc. v. Barnett

The enactment of the Americans with Disabilities Act ( ADA ) has triggered a series of explosions over the past decade. Although enacted with widespread support, the statute almost immediately spawned a deluge of litigation. This litigation explosion, coupled with the rather imprecise language of the statute, resulted in a startling diversity of judicial interpretation on a host of key ADA issues. These two phenomena, in turn, have led to a more recent explosion in ADA cases heard by the Supreme Court. In a brief span from 1998 to 2002, the Supreme Court issued no less than thirteen decisions interpreting the ADA. Indeed, employment-based ADA cases accounted for slightly more than 22% of all labor and employment cases decided during the Court\u27s 2001-2002 term