Limiting Disabilities

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• GWEN IFILL:

  Now, we turn to discuss the impact of today's rulings for workers and business we are joined by Chai Feldblum, professor of Disability Law at the Georgetown University Law Center. She helped draft the Americans with disabilities act before its passage in 1990. And Stephen Bokat, senior vice president and general counsel for the United States chamber of commerce. Professor Feldblum, tell us exactly about how this would affect workers, this ruling today.

• CHAI FELDBLUM:

  Well, actually it's going to affect lawyers more than workers. What the Supreme Court has done is sort of transformed the ADA from a people's employment act which is what it was supposed to be into a lawyers employment act and we're going to have a lot of lawyers arguing about whether people can brush their teeth enough or take out the garbage as opposed to whether they were treated fairly on the job. What this case mean s is that people who are not treated fairly on a job in the way that Congress intended to have them be protected are instead going to be kept from the courtroom door because they're not limited in enough tasks at home because they can brush their teeth and take out the garbage. That's not what Congress intended. With all due respect to the court.

• GWEN IFILL:

  Mr. Bokat.

• STEPHEN BOKAT:

  I don't agree. I think what the court said today is that Congress intended this statute to apply to a narrow group of people, and the court said we're not going to wildly expand this statute where the plaintiffs' lawyers have been trying to take it since the statute was passed. They pulled it back to what Congress's intent was. What it will mean is that fewer lawsuits, specious lawsuits in our view, will be filed against employers and some that have been filed and are pending are going to be dismissed. Those the statute intended to protect will still be protected.

• GWEN IFILL:

  Does this ruling discourage specious lawsuits or all lawsuits?

• STEPHEN BOKAT:

  I don't think it discourages all lawsuits. I think those that Congress intended to protect the court left protected. There is one concern I've got that goes to what Professor Feldblum has said, and that is, the court said that each case must be resolved on its own facts. Now that's obviously true of all cases, but they said in the ruling you have to look at the facts of each one, which will be much harder for employers could get what we call summary judgment, get it thrown out before it gets to a jury trial. That may be problematic.

• GWEN IFILL:

  Now, Professor, that doesn't sound like it's narrowing the number of cases at all.

• CHAI FELDBLUM:

  Stephen is right. This case is a lose-lose for business and for people with physical impairments. When you look at what Congress intended in 1990, they had in front of them a law that had been in place for 15 years that protected people with handicaps. In all of those cases, there would be one paragraph in which the court would say the person has a bad back, has cancer, has epilepsy, oh, they're covered and then they would go to the question of whether the person was fired because of that reason. Just like in a race case or a sex case. They don't say now is a person really black or is the person really a woman. They talk about whether they were fired because of that characteristic. That's what Congress had before it in 1990 in the previous law. They use the same words as that previous law but something different has happened in the last nine years. Defense attorneys have come in and their first line of argument now is you're not a person with a disability. That's the first line of argument. It's individualized.

• GWEN IFILL:

  So you don't think this should be about defining disability at all.

• CHAI FELDBLUM:

  That's right. Jan was absolutely correct that the Supreme Court– and I can't fault the Court for this — this is why it was 9-0 decision– went with the words of the statute: Physical or mental impairment that substantially limits a major life activity. And they gave meaning to those words but the meaning they gave, if they had actually looked at the Committee reports around the ADA, is not the meaning that Congress meant. You know what? Now it's time for Congress to stand up and say something.

• GWEN IFILL:

  Mr. Bokat.

• STEPHEN BOKAT:

  I don't agree. I think the Court said this is a demanding standard. It's got to be an impairment that severely restricts someone's ability to do things in their daily lives. I think the Court was intentionally trying to cut this back to where Congress started, and I don't think that it's very likely that there would be any Congressional… Any legislation to change the statute at this point.

• GWEN IFILL:

  Justice Scalia described this as a sore wrist case, something that was never the intention of Congress. Do you think Congress's intent is being met?

• STEPHEN BOKAT:

  It's interesting that you mention that because what the Court said was the carpal tunnel, and if you will, sore wrist, might be an impairment. It depended on the facts of the case. And they specifically said it's not either all… Not an impairment or all impaired, that people with it were necessarily impaired or not impaired, you had to look at how it affected them, whether it was long term, whether it severely restricted their ability to do a wide variety of things.

• GWEN IFILL:

  You don't see clarity here at all?

• STEPHEN BOKAT:

  I think there's clarity in this point: That is, that the court put a very demanding standard on plaintiffs to meet. I think that will mean fewer cases brought against business.

• CHAI FELDBLUM:

  See, and I think the Court is confusing a civil rights law with a disability benefits law. In order to get benefits because you're disabled, you do need to show that your impairment limits you so much that you can't work. That's why you get disability benefits. This was a civil rights law where Congress intended to cover people who could work, that their impairments were not so severe, that they were not able to work. This Supreme Court has taken Congress's intent and created this little narrow house that people have to squeeze into to show that they're covered and on an individualized basis so it's bad for business because they have to litigate that you can't come into the house — but if you manage to get into the house that you really are so limited you'll never win under the ADA because you're not qualified to do the job.

• GWEN IFILL:

  But didn't some of the Justices also saying that this was an argument for workers' compensation cases not for Americans with Disabilities Act?

• CHAI FELDBLUM:

  No, workers' compensation is you got injured you get some money because you got injured. This is because you want to come back to the job and do the job. In this case, Ella Williams worked for two years without a problem. The company then decided that they wanted to rotate people. Instead of doing two jobs, you should do all four. What Ella Williams was saying is give me an exception because I can still do the job you want as an employment act that ADA was intended to do, help people stay in their jobs. And the company said, oh, no, we're not giving you an exception. And when she sued to say you have to make an exception for me so I can stay employed so I can do these two jobs, not rotate among four, the employer spends all its money arguing about whether she's disabled enough to bring a case for accommodation. That's not what Congress intended.

• GWEN IFILL:

  Now Mr. Bokat, by not closing off any doors, closing up any options here the Court has made it more or less difficult for small businesses especially to cope with these kinds of claims?

• STEPHEN BOKAT:

  I don't think it's going to make it more difficult for them to cope with the claims. There may be some cases that are litigated more. But I really think fewer plaintiffs' lawyers are going to be tempted to bring marginal cases than they were in the past. So I think in that sense it will make it much better for small businesses and for large businesses as well. And I think the professor is not… I mean, you've got nine Justices of the Supreme Court from liberal to conservative who agreed with this result. She suggests that they couldn't understand what Congress was intending to do and what the statute was intended to do and I find that…

• CHAI FELDBLUM:

  No, no, I teach this to my class in legislation. Text matters. Congress used the wrong words to indicate their intent. And I was there when they used those words. I'm not at all surprised by 9/0, but the fact is that this Court is going to have made it worse for businesses, small businesses, large businesses, it's a pipe dream to think that there won't be cases. It's important for Congress, both Congress that thinks people aren't being treated right on the job and the Congress who think that businesses shouldn't have to be litigating these cases to come back and look at what they intended in 1990, look what the Supreme Court is doing now, this is and should be a wake-up call for Congress.

• GWEN IFILL:

  There are at least two other cases in the Supreme Court's pipeline this session. Do you think that this decision today has made it fairly clear where they're going to go?

• STEPHEN BOKAT:

  No, I don't. Those cases are very different with very different issues. One of them has not even been argued yet. So I don't think that.

• CHAI FELDBLUM:

  And ironically in both of those cases the text of the statute favors the plaintiff in a way that in this case the text of the statute didn't. So if the Supreme Court will hold true to its adherence to text, the people with disabilities should win those two cases.

• GWEN IFILL:

  I feel like I'm in class. Professor Feldblum, Mr. Bokat, thank you very much.

• STEPHEN BOKAT:

  You're welcome.