Edited by Debbie Goswami, Alan Gura, Erica Harris, and Mark Parenti
The meaning of "disability" and "reasonable accommodation"
are two of the most fundamental and often litigated issues under
the Americans with Disabilities Act (ADA). Last fall, at the Lawyers
Convention in Washington, D.C., the Federalist Society Labor and
Employment Practice Group brought together a distinquished panel
of employment lawyers and policy makers for a spirited exchange
on the ADA and the meaning of these important terms. Walter Olson,
a senior fellow at the Manhattan Institute, a contributing editor
to Reason magazine, and the author of The Excuse Factory, served
as moderator for the distinguished panel of ADA experts. The panel
included David Copus, Peggy Mastrioanni, Mary Reed, and Roger Clegg.
David Copus (Attorney, Jones,
Day, Reavis & Pogue): I would like to present a real
life example of the problems that I face as outside counsel to companies
and that our clients face in dealing with the Americans with Disabilities
Act. The ADA is ambiguous to a fault. It is subject to wide swings
in interpretation, and the ambiguity of the statute leads us and
our clients into perilous problems trying to figure out how to comply
with the statute. I will illustrate this point by discussing a lawsuit
where the EEOC sued our client, Union Carbide, for failure to comply
with the Americans with Disabilities Act in Louisiana. The case
concerned a plastics plant which operates 24 hours a day, 365 days
a year, week in, week out, on four rotating shifts. Each rotating
shift works two days on, two days off, three nights on, three days
and nights off, four days on, rotating in this sort of drum-like
fashion throughout the entire year, year after year. And, of course,
I have the nice little graphic that we prepared for the Court, where
each shift is represented by a different color. In the red shift's
first week, the employees work two days, twelve hours a day. Then
nothing the rest of that week. In the following weeks, they work
two days at night, 12-hour shifts; then three days, 12-hour shifts;
two nights, rest of the time off, et cetera. And this cycle continues.
We had an employee on the red shift who said he had a mental condition
called bipolar disorder, formerly known as manic depression. The
officially correct name now is bipolar disorder. He says that in
order to control his bipolar disorder, he needs to take Lithium,
and in order to make the Lithium work right, he has to have a regular
sleep pattern. There isn't any dispute about this. He did have bipolar
disorder, and he was required to take Lithium in order to control
it. And taking Lithium to control his bipolar disorder did necessitate
a regular sleep pattern. So he claimed that his doctor required
him to have two things: "I need to have an eight-hour job rather
than a 12-hour job, and I need to have it in straight days. I need
to be able to work straight eight-hour shifts during the day."
But he was an hourly production worker. The company couldn't find
a day shift job for him, so it fired him. The EEOC sued the company.
We had several levels of defense, each of which demonstrates the
policy issues and the ambiguities with which we were faced with.
The first question was, "Does he have a disability? Is he
protected by the statute?" We don't have that question in other
statutes. The Age Discrimination in Employment Act covers you if
you are 40 or over. We don't have lawsuits about whether or not
somebody is covered by the Age Discrimination in Employment Act
or whether or not they are covered by Title VII. In the ADA, it
is a basic threshold question that, in our case, was open for discussion.
Next, we asked, "Does this person have an impairment which
substantially limits a major life activity?" In that respect,
we disagreed with the EEOC. The EEOC said that without his Lithium,
he is a complete wreck.
We said, "But take into account his Lithium and he's a model
person." If I take off my glasses, I am legally blind. Does
that make me disabled within the meaning of the statute, even though
when I put my glasses on I can see 20/40? In other words, do you
take into account the mitigating factors of my glasses, or the person's
medication, in evaluating whether or not we have a condition substantially
limiting a major life activity? We don't know that. It will be probably
years before we know that with any certainty unless the Supreme
Court acts in the meantime. But right now, the cases are basically
split. There is authority going both ways and we simply took the
position that we are going to take into account his Lithium. With
his Lithium, he has no impairment at all in any major life activity.
But beyond that the company said the employee couldnt do
the essential functions of the job because an essential function
of this job is to be able to work a rotating shift. And the EEOC's
position was that the essential function of this guy's job -- he
was a laboratory technician -- was to pour liquids in beakers and
look at the dials to see what the measurements read. The agencys
position was that he can do that; he just can't do it at night and
he can't do it on rotating shifts. He can perform the basic function.
So the issue was whether the rotating shift was an essential function
of the job? In order to be a qualified individual protected by the
statute, the person must be able to do the essential functions of
the job. We took the position that a rotating shift was essential.
The EEOC took the position it was irrelevant. They just looked at
the fact that he could pour the chemical into the beaker.
Finally, the issue arose, can he do the essential function of the
job with a reasonable accommodation? What was the accommodation
that he wanted? We've got to get somebody to fill in two four-hour
shifts. Then we've got to get somebody to fill in two 12-hour shifts,
two more four-hour shifts, another two 12-hour shifts, additional
two four-hour shifts, two 12-hour shifts, on and on. So we are going
to have somebody rotating but part time. We said that was an unreasonable
accommodation. The EEOC said it was not. We filed cross-motions
for summary judgment and the judge said, "Ah, I can't decide,
all motions denied and let's go to trial."
So we settled.
Subsequently, the Fifth Circuit has ruled that a rotating shift
the time of the shift -- is an essential function of the
job, which I think is the right answer. But the EEOC still takes
a different position and will continue to assert a different position
in different jurisdictions.
But the point of this illustration isn't the facts of this specific
case; the point is that at every basic level the same questions
arise: is he protected, can he do the job, is there an accommodation?
There are no real benchmarks for us to use. And we are in constant
stress with the EEOC, which takes a more liberal position, obviously,
than most of my clients do and it creates a fertile ground not only
for disagreement, but for litigation, because these are important
issues. The company was not about, short of litigation, to make
this accommodation for this guy and the EEOC took the position that
they weren't about to let us settle this case by buying him off
without making some accommodation. We eventually settled after the
motion for summary judgment was denied. But we still have these
basic conflicts of interpretation in thousands of other examples,
probably some of which you are going to hear about now.
Peggy Mastroianni (Associate Legal
Counsel, EEOC): First, I want to talk about why the ADA is
a statute you should like. It is consistent with a lot of the things
you believe in. Second, Ill discuss how we view some of the
ADA developments and criticisms from an enforcement perspective,
and then, third, Ill give some practical tips.
Why is the ADA a good conservative and libertarian statute? The
ADA stands for the proposition that qualified people with disabilities
should be able to work. Take for example, Judge David Tatel who
is on the D.C. Circuit Court of Appeals. As a blind lawyer, David
Tatel would never have had the career that led to his judgeship
without some form of reasonable accommodation from Hogan & Hartson.
Ask yourself whether he would have better spent his life changing
light bulbs or something like that? Ask yourself whether Evan Kemp,
who was involved in the conservative movement and who used a wheelchair,
should have been confined to his home or should have been given
the opportunity to go to law school and to work to become Chairman
of the EEOC?
In the workers compensation setting, we have already seen how serious,
thoughtful enforcement of EEOC policy, including the requirement
of reasonable accommodation, results in lower workers compensation
costs because the whole notion is to keep people at work. The EEOC
requires employers to hire people with disabilities who can do the
job and then figure out ways to keep them at work.
What do we see when we look at the developing case law and at some
of the criticisms and the myths regarding the ADA? First, contrary
to a lot of early articles about the ADA, the law is succeeding
in increasing employment for people with disabilities. We have just
received the first hard data which consists of a Census Bureau survey
that was issued in 1996 and showed that between 1991 and 1994 --
the Act went into effect in '92 -- the percentage of Americans with
severe disabilities who have jobs increased from 23.3 percent to
26.1 percent. That is an increase of about 800,000 jobs. Add to
this the people who were in the work force and who then become disabled
and are able to stay working because of the ADA. My first point
here is that we do see some successful increase, particularly in
the hiring area.
Secondly, contrary to what David Copus told you, we do not see
any evidence that the definition of disability and the other ambiguous
parts of the law are really hurting employers or their attorneys.
If anything, they are hurting people with disabilities and plaintiffs.
First of all, the reason that the ADA has a functional definition
of disability instead of a list of conditions that constitute disabilities
is because it was thought that there could be no such thing as a
complete list. It would either be over-inclusive or under-inclusive.
For example, not everyone with diabetes has an impairment that substantially
limits a major life activity. So if you put diabetes on the list,
you might be over-inclusive. On the other hand, if you leave back
impairments off the list, you may be excluding people who can't
lift as much as five pounds, who clearly are substantially limited
in major life activities. That is the reason why there is no list.
The effect of the functional definition has been that courts have
construed the meaning of the term "disability" incredibly
narrowly. If anyone is getting hurt, it is the plaintiffs. The classic
case of this is Ellison v. Spectrum Software. Ellison involved a
woman with breast cancer who was going for radiation treatments
in the morning and then would come to work late. She did this for
about six weeks. Once she got to work, she skipped her lunch, skipped
her breaks, and worked all the way through when she wasn't going
to the bathroom and throwing up because she was nauseated or because
of other kinds of discomfort. She brought work home and, as a result
of all of this, she ended up not taking any leave from work. Ultimately,
there was a RIF. She ended up in a job which she thought was a demotion.
When the case went to court, while there were lots of parts of that
case where people could disagree about the facts and merits, the
Fifth Circuit never got near the merits of the case. They said she
doesn't have a disability. Why? According to the court, she did
perfectly well. She made it to work every day, even though she was
under the continuing treatment of a doctor, even though she continued
to take medication, and even though there is no clarity about when
the cancer is over.
At the EEOC, our investigators have learned to work with the so-called
ambiguous definition of disability. We know, for example, that if
your only problem is that you can't get along with your supervisor,
you don't have a disability within the meaning of the ADA. Similarly,
if you have a back condition and the only way that it affects your
life is that you can't vacuum and mop the way you used to be able
to, you don't have a disability within the meaning of the ADA. On
the other hand, if your back condition means that you cannot lift
anything over 10 pounds we're talking about babies, grocery
bags, pets, the things that the average person can do then
you do have a disability within the meaning of the ADA.
It is also our perception that complying with the ADA is not prohibitively
expensive. All the studies that we have seen so far, starting with
the Sears studies that Professor Peter Blanck has been doing, indicate
that the average reasonable accommodation costs have been very low.
In the Sears study of 20,000 employees with disabilities, there
was a $45 average reasonable accommodation cost. A 1995 Harris poll
found that there was an average reasonable accommodation cost of
What is of great concern to us are the objections and the concerns
that people like Mary Reed have raised about the effects of the
ADA on small businesses. There are a couple of things I would like
to say about that. First of all, if you have less than 15 employees,
you're not even covered under the ADA. Still, we all know that a
business with 50 people is a small business.
We should keep in mind that the ambiguous definitions actually
take into account the needs of small business. For example, one
of the basic concepts in the ADA is the essential functions of the
job David was talking about before, and the notion that you've got
to be able to do the essential functions of the job. Clearly, the
smaller a business is, the easier it will be to show that functions
are essential. If you have a very large business and the office
managers job description says he ought to be able to drive,
you might be able to show that an office manager has hardly ever
been asked to drive or that there are all kinds of other people
who could drive. On the other hand, if you have a very small business,
it is going to be much easier to show that, even though this hasn't
been required very often, you don't have anybody else around to
do it and that's one of the things the office manager has to do.
Similarly, undue hardship adjusts for the concerns of small business.
Undue hardship is a limit on the obligation to provide a reasonable
accommodation. An employer only has to provide a reasonable accommodation
if it doesn't impose an undue hardship. Undue hardship means significant
difficulty or expense. Expense is going to be easier for a small
business to prove and, more importantly, difficulty is going to
be easier for a small business to prove. Somebody wanting a steady
shift will have very different implications in a small workplace
than in a large workplace. In a small workplace, that can have a
devastating impact on the few other employees who are there.
An example that was given by a small businessman when the EEOCs
psychiatric guidance was issued illustrates undue hardship beautifully.
Eammon McGeady has a marine construction company in Baltimore. He
criticized the psychiatric guidance on the grounds that his business,
which requires work crews of six to assemble at seven o'clock in
the morning, cannot accommodate a worker who is essential to the
construction work, like a crane operator, who shows up late because
the worker has a panic disorder or because he is groggy from his
medications or some other reason related to psychiatric disability.
According to Mr. McGetty, what the EEOC was saying is that the five
other members of the crew have to stand around on the street waiting
for this guy to show up. Actually, that's a perfect example of undue
hardship. I can't think of a better one. And, no, they wouldn't
be required to all stand along the assembly line and wait for the
foreman to show up three hours later because he was groggy from
his medications. The statute addresses these types of concerns.
Finally, let me just say the concerns about small business are
such that we have been working with the National Federation of Independent
Business to produce a fact sheet which actually came out today for
small business and Mary Reed had a huge impact on that and I think
that's the kind of work we should continue to do.
Moving on to some other criticisms. The big one and I think
this is the Walter Olsons point is that there are frivolous
cases; everybody is drowning in frivolous cases. A couple of things.
First of all, this is a new law. Everybody tests the limits of a
new law. I understand as part of this conference that you are going
to have much broader discussions about litigation and lawyers. I
can just tell you from my perspective here, that when Title VII
was passed there were probably lots of fringe cases as well. And
similarly with the ADEA. This is certainly what's happening with
the ADA and we can expect this to ease off. But what you are seeing
in the courtrooms is a lot of fringe cases that test the boundaries
of the law. Why do you see them? Because many of the obvious cases
where a blind lawyer who, say, needs a Kurzweil computer that can
tell him what he's typing are resolved very easily.
So if you just look at the so-called outrageous cases, I think
you are getting an incredibly skewed view of the ADA. You are not
getting all the cases where people are working things out. We get
lots of complaints but we know how to sift through them. Once the
EEOC is finished with a charge, either where it dismisses the complaint
or where it finds cause, it is clear that it is brutally hard to
get a lawyer in ADA cases. The article that makes this point most
clearly is one from the U.S. News and World Report, September 22,
1997, called "Suppose They Sue." The article makes the
point that in 1996, out of 130 million employees in America, we
had 78,000 charges filed with the EEOC and 23,000 complaints filed
in court. The difference is extraordinary.
Let me also point out that filing a lawsuit is not the same as
pursuing a lawsuit. A lot of lawsuits -- 17 percent -- are dropped
and 40 percent are settled. Despite the million dollar cup of coffee
from McDonald's, (you know, the one that scalded the woman's legs),
large jury awards are rare and have actually been going down in
employment discrimination cases since 1990.
Another myth is that the ADA has no limits. I would like to point
out that both the courts and the EEOC have set some very serious
limits on what employees can do under the ADA particularly with
respect to conduct, substance abuse and performance. Many of the
cases discussed in Mr. Olson's book are under the Rehabilitation
Act. Things have changed notably since then.
The prime case that everyone always discusses, the Hindman case,
involving a man who brought a loaded gun to work and then claimed
to have a chemical imbalance and checked himself into the hospital,
resulted correctly in a win for the employer. Any
employer and we have said this in our psychiatric guidance
can have a standard saying no violence in the workplace and
no threats of violence in the workplace and can enforce it across
The final myth that I would like to address is the notion that
the ADA requires forgiveness of misconduct. Again, I would point
you to the psychiatric guidance, which is on our home page. There
we have an example of a librarian who, because of a mental illness,
is disruptive with the public and screams at people in the library.
We make clear that an employer can discipline her for this misconduct.
A conduct standard saying no disruption in the workplace is one
that is job-related and consistent with business assessment, and
an employer can apply it across the board. The only thing you've
got to do is provide reasonable accommodation if it would change
the way she behaves in the future. The bottom line is that the point
of the ADA is to keep people at work.
Mary Reed (Manager, Legislative
Affairs (House), National Federation of Independent Business):
On behalf of the National Federation of Independent Businesses (NFIB),
I want to start off by saying that small business owners have an
excellent record in both serving disabled customers and hiring disabled
employees. In fact, sixty to seventy percent of those who are disabled
and are working, work for small businesses. With regard to the ADA,
the objections of small business owners lie with the fact that it
is a very vaguely written law, and one that unnecessarily subjects
them to lawsuits by never completely guaranteeing that the accommodations
that they have already made are enough.
It may be very obvious what a small business owner needs to do
to accommodate someone who is deaf or blind or in a wheelchair,
but the task becomes much more difficult when the business must
accommodate someone who has, say, manic depression or schizophrenia.
Most small business owners do not have a human resources director
or even a staff attorney to decipher the myriad of regulations with
which they are required to comply. We believe, as we look at the
EEOC rules, that they give recommendations and very strong suggestions,
but no definitive, specific guarantees that someone won't end up
suing a small business owner for something that they've done, or
The ADA is abused when someone who does not have a legitimate disability
brings a lawsuit against an innocent small business owner. It may
be that the EEOC is able to sift through many of these suits; the
suit may not end up actually becoming something where a small business
owner must pay a civil penalty for a violation of the ADA. However,
just merely having to hire an attorney and to spend time away from
ones business putting a defense together is a significant
cost for many small business owners, who are usually barely able
to eke out an income themselves. Again, the ADA is written in such
a vague and ambiguous way that small business owners may not ever
know whether they have completely obeyed the law until they wind
up in court. Thousands of complaints are filed with the EEOC and
the Department of Justice each month. Even though our studies show
that only one in ten of those complaints are judged to be valid,
even a frivolous lawsuit straps the small business owner with the
obligation to procure an attorney and pay for legal fees. A Rand
Corporation study found that the average cost of one of those suits,
even if it is dismissed as being a frivolous suit, is around $12,000,
that figure being an extremely conservative one.
With regard to the comments made by Ms. Mastroianni, the EEOC has
extended an arm to NFIB in an attempt to provide more guidance to
small business owners. In fact, the EEOC has recently generated
a small business user-friendly web site that provides a lot of information
to small business owners to help them figure out what to do with
the EEOC and with the ADA. While that is appreciated and helpful,
as Ms. Mastroianni mentioned, the term "disability," is
subject to varying interpretations. Disability is defined as a physical
or mental impairment limiting a major life activity of someone.
The concern for small business owners is that life activities can
include everything from weeping to concentrating and properly being
able to interact with others. If you have a small business owner
who is trying to determine whether someone has a disability, and
whether one of these major life activities is actually being limited,
then the law is rather limitless. In addition, the regulations actually
require our small business owners to become mind readers and pick
up on every off-handed remark made by the employee and even the
employee's spouse or relative about a disability that needs to be
accommodated under the ADA. Moreover, contradictions riddle the
ADA. For example, the regulations state that a request for a reasonable
accommodation need not be in writing; however, the same regulations
state that a business owner may require proof of a disability. These
contradictory assertions are very confusing for small business owners
and prove challenging when making a decision on what is actually
required from them under the law.
While the costs can be tremendous, we think that the cost of the
accommodation has never been the problem for small business owners.
The problem is determining how much expense is necessary. The regulations
could include an accommodation of soundproofing or a visual barrier,
room dividers or even a job coach. The small business owner must
do everything possible unless it is an undue hardship. But undue
hardship is vague. It is defined as an action requiring significant
difficulty or expense. What we hear from our business owners is:
do I need to spend one thousand dollars on this, or do I need to
spend five thousand dollars on this, or should I spend fifteen thousand
dollars? We cannot give them an answer because there is no clear
idea of what an undue hardship actually should mean and how much
they will need to spend. Based on the comments from our business
owners, the following solutions are desperately needed: establishing
clear definitions for "undue hardship" and "readily
achievable"; fixing or linking a certain percentage of the
gross revenues of the business (factoring in the size of the business)
to the amount a reasonable accommodation should cost, in order to
arrive at a threshold for undue hardship; implementing mandatory
alternative dispute resolution processes; and, finally, giving a
specific list of disabilities and accommodations for those disabilities.
These amendments to the ADA would prove most helpful to small business
owners in the long run.
Roger Clegg (General Counsel, Center for Equal Opportunity): The
issue that is raised by the Americans with Disabilities Act is not
whether disabled people should work or not. The issue is, who decides
whether they should be hired? Should it be the heads of construction
firms and the shareholders of Union Carbide, or should it be the
federal government and people like Peggy Mastroianni. I think Peggy
is a very nice person but I don't think that it makes sense to have
her as the arbiter of when businesses should have to hire an individual.
I think that in a free market economy we should almost always leave
the decision whether someone should be hired to the businessman
I am also skeptical about statistics that purport to show the good
effect that the ADA has had. It would be surprising if at the margins
the ADA didn't result in more disabled people being hired. But I
don't think that the figures that Peggy Mastroianni cites are particularly
dramatic, and it is also very hard to tell how much of that increase
can be attributed to the ADA. The definition of who is and isn't
disabled is notoriously and deliberately vague. The figure that
was always used during the passage of the Americans with Disabilities
Act was that there were over 40 million disabled Americans. One
reason why there may be more disabled people working now is because
there are more disabled people.
As the demographics shift and as the American population becomes
older, as it has in the last few years, there will be more people
who can claim to be disabled. Finally, much of the higher employment
rate of disabled people may reflect a shift in the economy itself.
As we become more of a service-oriented economy, it may be that
employers on their own are going to make the decision that it makes
more sense to hire people with physical disabilities than it did
when our economy was more oriented toward manufacturing and agriculture.
I realize that these are trends that develop very slowly over a
long period of time but, on the other hand, the change in the employment
rate is not all that dramatic either.
I was amused by the excuse given for why we have to have an Americans
with Disabilities Act that defines "disability" in a very
vague way. The reason given is that it would have been impossible
to write a precise statute. So therefore we have to have a vague
statute. There is another possibility: maybe we don't need to have
a statute at all. There is an assumption in a lot of what Peggy
says that the ADA sets up a frictionless mechanism. That is, if
at the end of the day the employer isn't forced to hire someone
who will cause his company to go bankrupt, then the employer shouldn't
complain. But there are a lot of bad suits that are going to be
brought, there are a lot of gray areas, and there are a lot of transaction
costs. Lawyers are not cheap and lawsuits are not cheap. In order
to avoid all these costs, employers are going to do a lot of unproductive
things. They are going to avoid lawsuits by hiring people that maybe
they don't really want to hire, and they are going to restructure
their companies in ways that maybe they don't really want. They
are going to try to keep their number of employees below the 15
employee threshold. There are all kinds of very unproductive things
that can happen.
Peggy Mastroianni says that part of this is because the ADA is
a new statute. But consider Title VII. It was a new statute once,
too, and there were a lot of frivolous suits brought under it. But
there are still a lot of frivolous lawsuits that are brought under
Title VII. One of them Peggy and I worked on together, an investigation
that the EEOC launched against the French department of a college
which was alleged to have discriminated against a French professor
because he had a French accent. This was alleged by the EEOC to
be national origin discrimination. Now, maybe it's possible there
were a lot of Francophobes in the French department and they really
did hate this guy because he had a French accent. But I doubt it.
The point is that there are still a lot of very marginal lawsuits
that are brought under Title VII and that will continue to be the
case with the ADA, too. Sometimes you get more frivolous lawsuits
as a statute becomes better known and develops a track record. It
is not necessarily the case that you are going to have a drop off
in the number of frivolous lawsuits.
I don't know what the solution is. I can't stand up here and say
this is all Peggy Mastroianni's fault or that it's all the EEOC's
fault. This is not a situation where the courts have taken a statute
that meant one thing and turned it into a law that means something
very different. That is what happened with Title VII ¾ where
you had what was essentially a colorblind statute turned into a
powerful engine for racial quotas ¾ and that is the EEOC's
fault and the judiciary's fault. That is not Congress's and the
President's fault, except to the extent that the President appoints
the people who run the bureaucracy.
That is not the case with the ADA. The ADA is a bad statute. It
was bad the day it was written because it had all these very vague
provisions in it. Ultimately, the solution is to revisit the ADA
in Congress. I am not very optimistic about how soon that will happen.
It is certainly not going to happen under this President.
I will end with the possibility that the ADA is unconstitutional.
The only enumerated power to which Congress can point for the ADA,
at least for those parts of it affecting the private sector, is
the Commerce Clause. It seems to me very odd to justify the passage
of the ADA under the Commerce Clause when I think that any objective
observer would conclude that its effect on interstate commerce has
been negative, not positive.
Mr. Olson then opened the panel to questions from the audience.
First Audience Member:
Ms. Mastroianni, there was an article the other day about a dramatic
increase in violence in the workplace and the threat to workers
of violence. What kind of questions can the employer ask if he has
a suspicion that a person is going to someday come in with a shot
gun and take out the receptionist? It seems that the question is
whether employers face the EEOC for asking about a mental illness
or face the trial bar when the receptionist's family takes them
to court for the loss of the receptionists life.
Ms. Mastroianni: Is this a situation where you have someone who
has been saying threatening things to someone?
First Audience Member:
No. This is a case where the interviewee comes in, and the employer
has a suspicion that this person has been in an institution. What
can you ask: Have you been locked up? Do you have a history of manic
depressive behavior? Do you sometimes feel like you want to kill
somebody at work?
Ms. Mastroianni: Actually, the law encourages you to ask questions
when you are in the hiring stage, but only after you have given
a conditional offer of employment. So, for example, here is how
it works. Someone applies to be an electrician. The issues that
you can raise with that person are everything concerning their ability
to be an electrician and the experience in the past job history,
military history, education, whatever. The questions you cannot
ask are the medical ones. And this is in the law itself. Congress
wanted to prevent you from asking medical questions immediately
so that the individual would have a chance to interview before being
rejected just because he had been in a psychiatric institution.
Once the offer of employment is made, an employer can ask anything
it wants. So you can ask every single one of those questions that
you just named.
Now, supposing you get answers to your questions. You find out,
yes, this person has been institutionalized; they have been to a
psychiatric hospital maybe twice for various periods of time. You
can ask all kinds of other questions. Well, what provoked it, what
happened before that? Supposing you find out that there is no history
whatsoever of this person threatening anyone, of this person being
violent; they have their job history that has nothing extraordinary
about it and there is no evidence that this person has ever been
violent. That is not enough of a premise for you to say, "I'm
not going to let this guy in this job because he might be violent
simply because he had a mental illness."
If you change the facts and you have some indicia of his violent
behavior or his going off medication, then you have a predicate,
a reasonable belief based on objective evidence, first for asking
some more questions and then, ultimately, for making an employment
decision. We deal with this violence issue in the guidance on psychiatric
disability. I really encourage you to read it.
Just because someone has a mental illness, you can't assume they
are going to be violent. We all know there are many, many people
who have mental illnesses but who are productive. Isn't there a
higher incidence of bipolar disorder among CEOs than among the average
population? Well, there is a reason for that; there is a lot of
energy and creativity that goes into having bipolar disorder, among
So don't automatically assume mental illness equals violence. But
if the facts show there is violence, that is a totally different
First Audience Member: Would
the employer have an obligation to provide an accommodation to channel
Ms. Mastroianni: Never. Accommodations do not include excusing
misconduct, and accommodations don't include treatment. Treatment
is an area that employers know nothing about and it would be a disaster
for them to get into that area.
Second Audience Member: Does
the EEOC have any plan to change the standard for undue hardship?
Ms. Mastroianni: I'm not aware that the Commission has any interest
in doing that. I really can't give a personal opinion. I know that
the Commission does not think that the Christiansburg standard should
be changed for small business.
Ms. Reed: If I might add a point. If there was a way to link the
amount that an individual would spend on an accommodation to a percentage
of the gross revenues of the business, that might be a way of coming
to terms with this.
Second Audience Member: Ms.
Mastroianni, the Michigan state statute on disability discrimination
has built into it a quantifiable measure of undue hardship much
like Mary Reed has suggested and our clients recommended that the
EEOC adopt such a standard in its regulations so that employers
would have some firm guidance as to what it was required to do in
terms of cost. Of course, the EEOC declined because they thought
the statute mandated a more ambiguous approach.
There was also, I believe, a debate before passage of the ADA,
not on the fee shifting Christiansburg Garment issue but on this
question of a numerical or monetary threshold for reasonableness
of accommodation and I believe that at that point Michigan, North
Carolina, and some other states had a law which had experience on
the books of doing that. Proponents of the ADA were against it and
had the votes to vote it down and did.
Ms. Mastroianni: There was also a proposal during the course of
when the ADA was being considered in Congress to link the cost of
reasonable accommodation with the amount of money that the individual
with the disability was making, which would have essentially resulted
in making great accommodations for bipolar CEOs while making essentially
none for the janitors. That proposal was also defeated.
Now, it seems to me that in the Vande Zande case, Judge Posner
was sort of going in that direction. In that case, the EEOC argued
that the word "reasonable" in the phrase reasonable accommodation
means effective. The EEOC contended that all a plaintiff has to
show is that she could do the job if she had this reasonable accommodation
(i.e., it would work, it would be effective). Then the employer
has to show it poses an undue hardship, significant difficulty or
expense. Now, in the Vande Zande case, Judge Posner said something
very different. He loaded up that word "reasonable" and
he said, "reasonable" means that you have to show there
is some relationship between the cost of the accommodation and the
benefit and only then does the burden shift to the employer to show
That was taken up in the Second Circuit in the Borkowski case where
Judge Calabresi said that the plaintiff had that burden but it wasn't
an onerous burden; he didn't view it as something that was that
difficult. But one of the questions that has been raised about what
Judge Posner said in Vande Zande is: benefit to whom? Is the person
supposed to show that there is a relationship between the cost of
the accommodation and the benefit to himself or herself or is it
somehow a benefit to the employer? There is language in that decision
which suggests that Judge Posner was talking about benefit to the
person, but it is unclear. So that is another thing to think about
in this area.
Third Audience Member: Ms.
Mastroianni, I would like you to comment on the Seventh Circuit
case of Feliberty v. Kemper Corporation. In that case, a claims
processor for an insurance company claimed he had carpel tunnel
syndrome and asked for a special keyboard. The processor also happened
to have a medical degree. He was given that accommodation but experienced
further complications and was terminated. Later, he sued claiming
that the special keyboard was not a sufficient accommodation. The
essential holding of the Seventh Circuit case was that even though
the employee, a medical doctor, had suggested a particular reasonable
accommodation, the employer had a duty under the Act to make an
independent evaluation of the reasonableness of that accommodation.
That would seem to be at odds with your assertion that it is easy
for small business and businesses to accommodate people if they
ask for an accommodation.
Ms. Mastroianni: I don't read the case to be about that at all.
In that case, the plaintiff needed one kind of accommodation at
first and then he needed something else. His complaint was that
the employer failed to accommodate his second request.
Id also like to make an additional point about doctors. Doctors
are not necessarily experts on reasonable accommodation. Now, I
am not talking about the Feliberty case where the plaintiff himself
was a doctor. But doctors are not necessarily experts about a lot
of things under the ADA. What they are experts in are the conditions
of their patients. But they don't always know whether someone can
return to a job, whether someone can do the essential functions
of a job or whether someone can do the essential functions with
a reasonable accommodation. There are a number of employers that
have gotten in trouble by blindly relying on doctors to make all
kinds of employment decisions.
What the ADA is really saying to the employer, and I know you're
going to hate this, is that the employer has to make these employment
decisions. In other words, the employer can get information from
the doctors. You know, "this is what this person can do and
cannot do." But the decision of whether a person can continue
to work as an electrician is an employer's responsibility under
Third Audience Member: You make it sound like the employer has
more decision making authority but actually he has less because,
in addition to everything else, he is now precluded from relying
on the expertise of a doctor. He can rely on the expertise of a
doctor and still be sued.
Ms. Mastroianni: On medical issues.
Third Audience Member:
But this is inconsistent. What happens when the plaintiff, the employee,
comes in with a note from his doctor, saying that he is able to
come back to work? Well, that doctor isn't an expert. That doctor
doesn't know what he's doing. Are we to think that the EEOC would
come in and support us in rejecting that doctor's statement that
the plaintiff was able to come back to work?
Ms. Mastroianni: Yes. If you get a conclusory doctor's note that
doesn't tell you anything, you are entitled to ask for more. We
have said this in the psychiatric guidance and we are going to be
saying it in a number of other forthcoming guidances. These conclusory
notes are of no use to anybody on any side in these cases. The fact
that the guy who wrote the note is an M.D. doesn't get you anywhere
if you don't really understand what a person can and cannot do.
Fourth Audience Member: Ms. Mastroianni, what special training,
skills or education is required of EEOC enforcement personnel that
would qualify them to substitute their business judgment for that
of the employer? The EEOC comes in and basically decides what is
an undue hardship, what accommodations are reasonable. Are there
business management requirements? We have a situation where the
law compels the decision. Someone has to be the arbiter. So why
the EEOC rather than the employer? Is there any training?
Ms. Mastroianni: I assume you would ask the same question of your
Fourth Audience Member: Well, we vote for the congressman. But
the congressman doesn't come onto the shop floor and decide $10,000
Ms. Mastroianni: What we have expertise in is, first of all, civil
rights law, discrimination law, etc. We don't represent business
interests, and we don't represent plaintiffs' interests. It is the
thing called the public interest that we always have our eye on.
And our expertise is in the areas that I just outlined.
Fourth Audience Member:
Isnt there a public interest in having an efficient work force
in an economy?
Ms. Mastrioianni: And a
nondiscriminatory workplace, yes.
Fourth Audience Member: And a fair, efficient economy that maximizes
value for all involved. What qualifies the EEOC and its employees
in particular? What qualifies them to make the decisions as to what
the most efficient market is?
Ms. Mastroianni: I don't think that is the kind of decision we
make. The decisions we make are: what does this law mean? What does
this law that Congress passed mean? That's the kind of decision
Fifth Audience Member:
Ms. Mastroianni, when does the EEOC reconsider its position on an
interpretive issue? For example, what would it take to have the
EEOC revise a particular interpretive guideline for the ADA?
Ms. Mastroianni: One of the things that sometimes motivates us
is elections, very frankly. If you've got a whole new cast of characters,
they might say let's revisit all of this. But I am thinking of something
that we revisited within the last four years. One of the parts of
the ADA that is totally unique to the ADA are these rules on what
you can and cannot ask people in an interview. Pre-offer, you can't
ask certain questions.
Since it was unique to the ADA, we thought that we really needed
to do a guidance and so we issued guidance. It was 50 pages long
and it had every conceivable permutation that we could think of
on this whole issue of what can you ask pre-employment. Well, the
comments ranged from arguing that we were being Talmudic (which
I thought was a very good criticism) to that it was the work of
So about the same time the new presidential appointees from the
Clinton Administration came in to EEOC and then you had this reinventing
government program that was going on and all this talk about clients,
customers, etc. The result of all of that was that we withdrew the
guidance on pre-employee questions and we issued instead a shorter
document that you could understand much better, that didn't try
to address all these different questions, that was user friendly
but also was substantively different in that we just did not ask
and answer all these questions. That was a situation where just
the general reaction motivated a change.
Now, other criticisms, such as employers not liking this, or unions
don't like that, or plaintiffs don't like that will not motivate
change. You know, plaintiffs hate a lot of what we did in the interpretative
guidance. In many ways some of the disability advocates think we
are responsible for the conservative turn that the courts have taken
because of our guidance. So we get it from all directions.
Sixth Audience Member:
What is an employer's obligation to determine whether somebody has
a disability? Frequently, in the psychiatric context, you have employees,
long-service employees that maybe have a precipitous drop in their
performance, they start acting irrationally at work, not necessarily
workplace violence but they are just acting strange. The employer's
first action is to send them to the company medical department.
But you may be buying yourself a cruise ticket on a very long trip
regarding this disability. They may come back as a disabled person.
It would seem to me that the smartest course would be treat it as
a performance issue and discharge them. Is there an obligation at
Ms. Mastroianni: There is no obligation. There is no obligation
to make inquiries about whether someone has a disability. The courts
have said that and the EEOC has said that.
While there is some debate on this in the disability community,
I agree totally with the people who say the employer should have
absolutely no such obligation. If you say that the employer has
an obligation to start asking questions, you get into a paternalistic
mess that I don't think anybody would be happy living with. So,
the first answer to your question is that there is no obligation
for an employer to ask anything.
Moreover, an employer has no obligation to accommodate unless it
has been told by the employee that they have a medical condition
and that they need something. Then your whole reasonable accommodation
process kicks in. But absent that, there is no obligation on the
part of an employer.
Now, supposing an employer wants to do something, they want to
send the person to the Employee Assistance Program or whatever.
Can you do that? Of course you can. Is that going to bootstrap you
into coverage? There is one case against Target Stores or some grocery
chain out on the West Coast in which the employer did a whole bunch
of things. The employer said things like: "you look like you're
in really bad shape, why don't you go to the EAP?." And the
employer had a note from the person's doctor saying that he was
severely depressed. All of that together raises coverage issues.
But if you only have an employer saying, "why don't you go
to the EAP?," I would hazard a guess the courts would not say
that's enough to establish "regarded as" coverage.
Ms. Reed made the following comment before the discussion was closed.
Ms. Reed: I just wanted
to make a general comment. One, I know Peggy Mastroianni would agree
with me that one of the public's interests is for an individual
to be able to start their own small business and be able to make
a go of that, to be successful. And I think that is something important
to keep in mind.
Secondly, it is important to realize that we are talking about
Title I of the ADA, which is the employment title. There is a 15-employee
small business exemption within the employment title but there is
no small business exemption in the public accommodations title.
That is the title that would affect you as a small business owner
or as a large business owner in serving your customers. You may
have an individual with a psychiatric disorder who is a customer
or an individual with a physical disability who is a customer and
you have one employee or you have no employees.
You would still need to accommodate that person and I think that
is very important to consider how a very, very small business with
one or even no employees would be able to serve a customer with
either a psychiatric disorder or a physical disability.
David Copus is a member of the firm Jones, Day, Reavis, & Pogue
and has been characterized by the National Law Journal as among
the nations best litigators in employment law. Mr. Copus is
on the editorial board of the ADA Review and Corporate Counsels
Guide to the ADA and a member of the Litigation Faculty of the ABA
Legal Services Advocacy Training Program.
Peggy Mastroianni is Associate Legal Counsel and spokesperson for
the EEOC. Ms. Mastroianni is responsible for developing EEOC guidance
under Title VII of the Civil Rights Act, the Age Discrimination
in Employment Act, the Equal Pay Act, and the ADA.
Mary Reed is the Manager for Legislative Affairs on the House side
for the National Federation of Independent Business. Ms. Reed formerly
served as a legislative assistant to U.S. Senator Chic Hecht of
Nevada and Congressman Mark Siljandr of Michigan.
Roger Clegg is General Counsel for the Center for Equal Opportunity.
Mr. Clegg formerly worked at the Department of Justice where he
was Assistant to the Solicitor General and the number two official
in the Civil Rights Division and Environment Division. After several
years at the National Legal Center for the Public Interest, Mr.
Clegg joined the Center for Equal Opportunity where he writes extensively
on employment discrimination issues.