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 couldn’t 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 agency’s 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, I’ll discuss how we view some of the ADA developments and criticisms from an enforcement perspective, and then, third, I’ll 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 $233.

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 manager’s 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 EEOC’s 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 Olson’s 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 board.

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 not done.

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 one’s 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 himself.

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 receptionist’s 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 other things.

So don't automatically assume mental illness equals violence. But if the facts show there is violence, that is a totally different story.

First Audience Member: Would the employer have an obligation to provide an accommodation to channel that rage?

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 undue hardship.

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.

I’d 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 the ADA.

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 congressman, right?

Fourth Audience Member: Well, we vote for the congressman. But the congressman doesn't come onto the shop floor and decide $10,000 is reasonable.

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: Isn’t 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 we make.

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 the devil.

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 all?

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 nation’s best litigators in employment law. Mr. Copus is on the editorial board of the ADA Review and Corporate Counsel’s 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.