Debbie Goswami*

The American Bar Association through its Commission on Mental and Physical Law recently reported that the Americans with Disabilities Act of 1990 has failed to champion the cause of employees with disabilities.(1) The Commission’s claim rests on its analysis of 1200 ADA cases reported in its Mental and Physical Disability Law Reporter, which revealed that employers win in approximately 92% of the cases. The Commission also relied on EEOC statistics revealing that employers prevailed in 86% of the administrative complaints resolved by the agency.(2) Relying solely on these two figures, the Commission concluded that the ADA must be unfair to employees and should therefore be revamped to ensure more future successes for allegedly disabled employees.

The ABA’s conclusion lacks any basis in fact or reason. The ABA begins with the baseless assumption that maintaining an equal win-loss ratio between any two sets of antagonistic parties necessarily establishes the fairness of legislation. Only by starting with this faulty premise could the Commission then create the inference that any resulting win-loss disparity occurred because the legislation must have contained an inherent bias favoring one side (i.e. defendant employers). Having made this jump, the Commission postures itself to advocate that the ADA be further liberalized to achieve the ABA’s desired outcome of more winning plaintiffs.

A more reasonable conclusion would be that the inherent vagueness of the ADA, coupled with its promises of attorneys fees and generous damages provisions, are forcing an overwhelming number of innocent defendant employers to be hauled into court to defend against specious and frivolous claims made under the ADA. If so, employers are suffering huge transactional costs to obtain purely pyrrhic victories. Or maybe the figures reflect that employers are giving into reasonable demands made by any employee with a plausible case of disability obviating the need for any judicial or administrative resolution. Because the meaning of ADA essential terms, such as "reasonable accommodation," "undue hardship," "disability," "essential job function," and "otherwise qualified" are heavily-contested in most employer-employee disputes, and because these terms remain evolving and malleable concepts capable of redefinition at the unpredictable hands of administrators, judges and juries, many employers have simply given in to a host of ADA threats by employees. The high number of employer victories at the litigation stage may simply reflect that many employers are capitulating to employees’ demands where the employee has any reasonable basis for asserting an ADA claim because the employer does not want to endure an exhausting and expensive administrative gauntlet or court proceedings to test the correctness of his position. Because any potentially meritorious claim is resolved in house, it makes complete sense that the claims reaching the stage of administrative or courthouse litigation are largely baseless. The fact that the ABA begins its investigation into the fairness of the ADA at a juncture where few meritorious claims would arise is just more evidence that the ABA’s conclusion is flawed.

Even more alarming than the ABA’s conclusion, are the ABA’s proposed remedies and resolutions to correct this perceived fundamental unfairness of the ADA. The Commission recommends the legislative excising of perceived "legal pitfalls," "technical-ities," and "catch-22s" which have the effect of limiting a plaintiff employee’s chances of winning administratively or judicially. For example, the ABA proposes removing the limitation that the ADA lacks jurisdiction over any businesses having less than 15 employees.

The ABA also proposes allowing plaintiffs to pursue claims under the ADA and all other forms of social insurance schemes. The Commission finds it "pernicious" that a person who has chosen to collect benefits under social security and workers’ compensation "which require applicants to assert that they are unable to work" may later be estopped from bringing an ADA discrimination claim because electing the first avenue for relief necessarily dubbed that employee as "not otherwise qualified to carry out essential job functions." The same sort of logic convinces the Commission that few employees can survive a test where their disability must be "substantially limiting," but yet not severe enough to make the employee "otherwise [dis]qualified to carry out essential job functions." Perhaps in the Commission’s universe, the possibility of being a "little bit pregnant" also exists.

The requirements the ABA so abhors hardly fall within the categorization of a "catch-22." It is not a catch-22 to say that an allegedly disabled employee who has an adequate avenue for relief under social security and/or workmen’s compensation may not receive yet a third bite at the apple under the ADA. On the contrary, it makes perfect sense that one who did not have a "substantially limiting" disability is not in need of legislative protection, and one who was completely incapable of and/or disqualified from performing the subject task ought not enjoy the privilege of claiming under the ADA, as damages for not receiving a job for which one was neither entitled nor qualified is zero. The ADA was never meant to be allow an allegedly disabled employee to capitalize on his handicap.

Finally, the Commission greatly laments that "employees still have the burden of proving discrimination" and complains that employers were still left the opportunity to "assert as a defense that [they] could not reasonably accommodate the individual with a disability without creating an undue administrative or financial burden on the company." (endnotes omitted). The logic of this complaint is reminiscent of a time when "certain accused witches were once considered to prove their innocence only by showing the grace to drown."(3) The ABA’s report, data, analysis and conclusions, leaves a lot to be desired and questioned. While the ABA is correct that the ADA needs revisiting, "the reform should be 180 degrees different from what the Commission advocates," comments Roger Clegg of the Center for Equal Opportunity.(4) Unfortunately, what could have been an opportunity for unbiased analysis of the effects of the ADA has become just another occasion for the ABA to advance its political agenda.

*Debbie Goswami is Vice Chair of the Pro Bono Committee of the Federalist Society Labor & Employment Practice Group and currently practices law in Mississippi.

1. May/June 1998 Reporter.
2. This figure is highly suspect because the EEOC Data Summary Reports for the 1992/1993 show that a no reasonable cause finding was made in less than 50% of all ADA charges filed.
3. Walter Olson, The Excuse Factory, at 108 (1997).
4. In his upcoming article titled Fascinating Data, Flawed Analysis.