ELIZABETH FARNSWORTH: For a closer look, we turn to two legal experts on the ADA in the workplace. Vicki Laden represents employees in discrimination cases; she's with a law firm in Oakland, California.
And John fox represents employers; he's with a firm in Palo Alto. Vicki Laden, you heard about the case today, and the Justices seeking the elusive answers. What's at stake? Why is it important, for example, for the employers you represent, why are their answers important?
VICKI LADEN: This is an enormously important set of issues that the Justices are examining. Although the ADA was enacted as broad, remedial civil rights legislation, it's been enforced by courts in a very, very narrow way. And, in fact, 92 percent of plaintiffs bringing claims or employees bringing claims have lost their claims.
And the primary impediment to employees succeeding with their claims has been the interpretation courts have given to what constitutes a disability and if it's interpreted narrowly, that failure rate for employees is going to continue, and the law is going to afford very little protection, despite what I feel was the very clear expression by Congress that this should be a broadly-applicable law.
ELIZABETH FARNSWORTH: And John Fox, what's at stake from the point of view of employers?
JOHN FOX: Employers simply want clarity. They want to know what this statute permits and what it requires. It's a badly-drafted statute. It's longer in its substance than the Title 7 to the 1964 Civil Rights Act and all of its regulations. It's a very lengthy statute with lots and lots of lawyer words in it. Very few people understand what most of the words that mean anything in that statute really require or permit.
ELIZABETH FARNSWORTH: So give us a sense from the point of view of people that you represent. How will decisions affect the workplace? I saw one -- somebody wrote that it could reshape the American workplace, the way that -- depending on how the justices decide this case.
JOHN FOX: Well, I think one big question really comes down to whether third parties, like employees and like the government, are going to second-guess the well-intentioned thoughtful decisions, for example, of company doctors. UPS made a decision that this driver/mechanic had high blood pressure, they were very thoughtful about it, now somebody is going to second-guess them after the fact and take a closer look at whether they made a proper hiring decision. And yet, if we do that every time somebody has a physical impairment or mental impairment in the workplace, we're going to have a lot of people looking over other people's shoulders second-guessing well-intentioned decisions.
ELIZABETH FARNSWORTH: And what's your response to that?
VICKI LADEN: Well, obviously, I don't feel that that's the case at all. I mean, the employer in the case that Mr. Fox is referring to argued that the employee was too disabled to be hired.
Then the employer went to court and said he's not sufficiently disabled to be protected under this law. And take the condition that he has: Hypertension. In order to control hypertension it may be necessary -- a condition that millions of Americans have -- it may be necessary for someone to be excused from an enormously stressful job duty that they have once a year. If he is not found to be disabled under the Americans with Disabilities Act, he loses his right to be excused from something he does, let's say five minutes a year, that's really not essential to his job performance.
He could be fired for his failure to do that one little thing. To me, the issue here is should individuals with disabilities be kept in the work force? Or should they be left to the welfare rolls? Individuals with disabilities want to work, and that -- I should add individuals with disabilities includes millions of Americans who will develop chronic disabilities in the course of their lifetime and for whom it would not be just to throw them out of a job because of their failure to, let's say, do one tiny little thing.
ELIZABETH FARNSWORTH: What about the safety issue, though? United Airlines - because I know that the two women who were nearsighted had been flying for commuter airlines, but United Airlines has this - they have certain standards that they want met in eyesight. Why shouldn't they be able to do that?
VICKI LADEN: Well, if United demonstrates that this safety requirement it has to have, you know, perfect eyesight is necessary and affects the individual's ability to actually do the job, to be a qualified individual, United would still have an opportunity to win in this case. So all we're asking is that it not be applied in a very silly arbitrary manner.
JOHN FOX: Yes, but, Vicki, do you really want to have people second-guessing aerospace board qualified doctors making decisions about who is going to fly an aircraft with potentially hundreds of people on it.
ELIZABETH FARNSWORTH: Okay, Mr. Fox, let me ask you about this, what about the catch-22 that Ms. Laden was referring to; employees say that they're caught in a catch-22 -- they're too disabled to have a job, but they are not disabled enough to be covered by the Act. How do you respond to that?
JOHN FOX: There is a large separation in the public's mind about what this statute promised and what it delivers. It's actually a very narrow statute that only protects very chronically disabled individuals. It doesn't protect most Americans, although there is a sense in the public, I believe, that it's intended to protect large numbers of people.
And the Justices struggled with that issue yesterday and apparently today. But it only protects those who are, first of all, qualified to perform the essential functions of their job and then secondly it only protects those who have a substantial disparity, a substantial kind of impact on their life. Not everybody. If it's a temporary condition, they're not covered. If it's something that they can overcome by getting a job somewhere else, they're not covered. So it covers those who have a very severe physical or mental impairment that makes them unable to perform a particular job.
ELIZABETH FARNSWORTH: And what you're hoping is the justices will define it this way and make it quite clear.
JOHN FOX: I think employers rather would have clarity about this statute. The result is probably less important, I think, than having just some certainty about how to arrange one's business affairs. This is a statute that is a gold mine for lawyers. We are spending a lot of time, giving a lot of advice to well-intentioned employers all over the country about how to deal with this statute. It's unlike any other statute.
ELIZABETH FARNSWORTH: By we, you mean you, your law firm.
JOHN FOX: My law firm and other people who advise companies like myself.
ELIZABETH FARNSWORTH: Okay. Ms. Laden, what about, Justice Scalia said I'm worried that everybody in the country is protected from employment discrimination based on physical characteristics if you go to this very broad definition. How would you respond to that?
VICKI LADEN: Well, even if the definition were to be defined broadly that would not be true. I mean, even if in theory everyone could be concerned an individual with a disability, because the definition includes the requirement that the disability substantially limit you in a major life activity. For example, the Justices mentioned false teeth. Well, without or without false teeth you're not going to be substantially limited in a major life activity. So I don't think that this is a question of throwing open the door to everyone, but I think this is a question of providing protection where it's needed. If I can give just one example -
ELIZABETH FARNSWORTH: Very briefly.
VICKI LADEN: Briefly. For example, a woman with breast cancer needs to have her hours rearranged in order to be able to get chemotherapy. And one of the things the Americans with Disabilities Act gives employees is the opportunity to get medical treatment if they need it. Without this sort of protection, an employer could say you're not entitled to that time off to go get your chemotherapy in the morning and come in late. So I think it's a very important protection, one that many Americans will need.
ELIZABETH FARNSWORTH: All right. Thank you both very much for being with us.
May 25, 2012
