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 Commissions 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
The ABAs 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 ABAs
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 ABAs
conclusion is flawed.
Even more alarming than the ABAs conclusion, are the ABAs
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
employees 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 Commissions
universe, the possibility of being a "little bit pregnant"
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 workmens 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 ABAs 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.
- May/June 1998 Reporter.
- 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.
- Walter Olson, The Excuse
Factory, at 108 (1997).
- In his upcoming article titled Fascinating
Data, Flawed Analysis.