Abstract
This research examines changing public human resources obligations under the Americans with Disabilities Act (ADA). During the first 12 years after ADA implementation, the U.S. Supreme Court issued several rulings that narrowly construed who qualified as disabled (Albertson’s v. Kirkingburg; Murphy v. United Parcel Services; Sutton v. United Airlines; Toyota Motor Manufacturing v. Williams). In 2008, Congress responded to these judicial interpretations by specifically rejecting the Supreme Court’s analysis and unequivocally stating the intent to expand the scope of protection under the ADA. This interbranch dialog over ADA interpretation challenges public employers to predict responsibilities under shifting ADA requirements. Furthermore, analysis suggests that both the original statute and the 2008 Amendments Act suffer from a lack of clarity regarding who qualifies as disabled. Public human resource managers must evaluate how best to meet their ADA obligations in this climate of legal ambiguity and fiscal uncertainty.
Introduction
The interplay between equal employment opportunity (EEO) statutory law and case law yields a constantly evolving set of human resource obligations. The evolution of human resource responsibilities is especially evident in the judicial interpretation of and recent congressional revisions to the Americans with Disabilities Act (ADA) of 1990. Congress mandated employer responsibilities in the ADA, the Supreme Court then narrowed the scope of ADA protection in several key cases, and Congress recently responded with amendments that specifically rejected the High Court’s interpretation. While the judicial and legislative branches debate the extent of the ADA’s protections, public human resource managers may be left questioning how to avoid disobeying the ADA’s requirements for EEO.
The recent amendments to obligations under the ADA suggest a key question: What are the most significant human resource implications of the changes to the ADA? This analysis considers the recent judicial interpretation and legislative revisions that influence requirements under Title I of the ADA to consider how public employers can best respond to changing ADA obligations.
The ADA provides expansive protection against discrimination based on disability in public services, public accommodation, communications, and employment. Consequently, the scope of the ADA’s impact on public employers’ operations is very broad. Title I of the ADA protects persons with disabilities from workplace discrimination and during the period between 1999 and 2002, the U.S. Supreme Court issued several landmark decisions that interpreted the scope of coverage under Title I narrowly (Albertson’s v. Kirkingburg, 1999; Murphy v. United Parcel Services, 1999; Sutton v. United Airlines, 1999; Toyota Motor Manufacturing v. Williams, 2002). Congress responded in fall 2008 by passing significant amendments (Amendments Act) to reinforce the original scope of the ADA (Public Law 110-325, S 3406, 2008). Designated as “An act to restore the intent and protections of the Americans with Disabilities Act of 1990,” the Amendments Act emphasized the Court’s misreading of the ADA’s intent (Public Law 110-325, S 3406, 2008). Congress specified that the ADA was intended to be a comprehensive antidiscrimination statute and that employers’ obligations under the ADA should be broadly construed. Nevertheless, early analysis of the Amendments Act in the legal literature suggests that Congress’ changes do not resolve the fundamental challenge of determining who qualifies as disabled (Ara, 2010; Parry & Allbright, 2008). Rather than clarifying human resource obligations, these interbranch deliberations leave lingering uncertainty regarding the scope of protection under the ADA.
This examination first addresses human resource managers’ primary responsibilities under the ADA. The discussion then shifts to the changes in human resource obligations that arose during the recent interbranch debate over ADA interpretation. After establishing the human resource requirements, this research then cites a few of the essential considerations public employers face in implementing the revised ADA.
Employer Responsibility Under the ADA
The Legislature Speaks First: Initial Passage of the ADA
To meet their responsibilities under the ADA, employers have to know who is protected by the law and the types of human resources responses these protections entail. The ADA was created to address a substantial public policy goal, “to bring persons with disabilities into the social mainstream of American life” (S. Rep. No. 101-116, 1989). Specifically, Title I was designed to combat the lower standard of living among the disabled community resulting from high rates of unemployment and the ensuing high proportion of disabled persons living below the federal poverty level (Ledvinka, 2010). The ADA addresses this unemployment challenge by applying a broad definition of who qualifies as disabled and by requiring employers to provide a reasonable accommodation when it would enable an otherwise qualified, disabled individual to enter the workforce.
The ADA’s definition of disability is comprehensive in substance and in application. The law defines disability as either a physical or a mental impairment that “substantially limits one or more major life activities” (42 U.S.C. §12101(1) (1990) as amended). The ADA applies protection for the disabled across the entire scope of the employment relationship. Title I prohibits discrimination in all employment actions from application procedures through promotion, training, and “other terms, conditions, and privileges of employment” (42 U.S.C. §12112(a) (1990) as amended). Furthermore, the ADA considers an individual disabled when they have a record of a disability or are regarded as disabled. In short, the statute covers a wide variety of physical and mental disabilities and prohibits a range of discriminatory employment decisions made on the basis of a current disability, on the basis of a past disability, and even on the basis of a mistaken assumption that an individual is disabled.
Once an individual meets the definition of disability, the ADA imposes a responsibility on the employer to provide a reasonable accommodation if that modification would permit an individual to perform the essential functions of a position (42 U.S.C. §1211(8) (1990) as amended). A reasonable accommodation is based on the individual disabled employee’s needs, and the law requires structural and policy changes to enable an otherwise qualified individual to enter the workforce. The employer’s responsibility under the law entails both physical changes to make facilities or equipment accessible and restructuring, reassigning, or modifying schedules, equipment, examinations, and policies (42 U.S.C. §1211(9) (1990) as amended).
Notably, an employer is not required to suffer undue hardship to implement a reasonable accommodation. The ADA indicates that factors including the type and cost of the accommodation as well as the organization’s size and financial resources will all be considered when evaluating whether an accommodation would present an undue hardship. This evaluation depends on a subjective standard based both on the accommodation needed and the employer’s unique situation, and an early analysis of ADA implementation in state and local governments suggests that courts generally seek to balance employee civil rights and employer costs (Jones, 1995). However, in practice, the judicial analysis often resulted in a situation where a successful undue hardship defense required evidence that implementing the reasonable accommodation would cause an “overwhelming” burden for the state or local government (Jones, 1995, p. 53).
Less than a year after the Equal Employment Opportunity Commission (EEOC) finalized the original ADA regulations to guide employers’ compliance, Bishop and Jones conducted a predictive analysis to assess the likelihood of success in implementing the ADA (1993). This early investigation correctly forecast an important obstacle to ADA implementation. The authors suggested that even after significant efforts at legislative and regulatory clarification, interpreting the terms essential to the ADA’s employment requirements would stimulate debate and would require judicial intervention (Bishop & Jones, 1993).
Judicial Reply: The Supreme Court’s Interpretation of the ADA
The ADA’s definition of disability establishes both an individual’s right to protection and an employer’s obligation to provide a reasonable accommodation so it is not surprising that many disability discrimination lawsuits have focused on whether or not an individual was disabled. When the U.S. Supreme Court was called on to interpret the new definitional terms created by the ADA, the Court issued several opinions that effectively increased the requirements to qualify as disabled and limited the extent of the law’s employment protections (Albertson’s v. Kirkingburg, 1999; Murphy v. United Parcel Services, 1999; Sutton v. United Airlines, 1999; Toyota Motor Manufacturing v. Williams, 2002). Specifically, the Court interpreted the law to provide that a person “who can function normally” while receiving treatment for a condition does not qualify as disabled under the ADA (Rozalski, Katsiyannis, Ryan, Collins, & Stewart, 2010, p. 24). As a result, an individual who used mitigating measures to treat an impairment would limit their protection under the ADA.
Shifting Obligations in the Amendments Act
In the Amendments Act, Congress highlighted the Sutton and Toyota decisions as specific instances of the Court’s misinterpretation of congressional intent under the ADA (Public Law 110-325, S 3406, 2008). Analysis suggests that the Supreme Court’s interpretations on the definition of disability in these cases had “created a situation in which individuals can be considered too disabled to be hired but not disabled enough to challenge an employer in court” (Rozalski et al., 2010, p. 24).
The case of Sutton v. United Airlines (1999) involved visually impaired twin sisters who were rejected for employment as airline pilots by United Airlines (Sutton v. United Airlines, 1999, p. 475). Both sisters used corrective lenses that provided vision of 20/20 or better, but they did not meet the United Airlines requirement that pilots must have uncorrected vision of 20/100 or better (Sutton v. United Airlines, 1999, p. 476). Although the use of corrective lenses eliminated their visual impairment, the Sutton sisters argued that the Supreme Court should determine whether they met the ADA’s definition of disability without considering these mitigating measures. The Supreme Court rejected the Sutton sisters’ claim and held that the ADA did not extend to an individual with a disability that did not substantially limit a major life activity once the impairment was ameliorated using corrective measures (Sutton v. United Airlines, 1999, p.482).
The later Toyota Motor Manufacturing v. Williams (2002) case involved an automobile manufacturing plant employee who developed carpal tunnel syndrome and other repetitive stress impairments (Toyota Motor Manufacturing v. Williams, 2002, p. 190). Ms. Williams claimed the right to a reasonable accommodation under the ADA arguing that her impairments limited her ability in the major life activities of performing manual tasks and working (Toyota Motor Manufacturing v. Williams, 2002, p. 192). The Supreme Court emphasized that a claimant must demonstrate that he or she is “unable to perform the variety of tasks central to most people’s daily lives” to prove that he or she suffers from a substantial limitation on the ability to perform manual tasks (Toyota Motor Manufacturing v. Williams, 2002, p. 200). The Supreme Court then determined that Ms. Williams’ impairment did not substantially limit her ability to perform manual tasks because she was able to care for her personal hygiene and to complete household chores (Toyota Motor Manufacturing v. Williams, 2002, p. 202). The Court declined to consider Ms. Williams’ claim that her impairment substantially limited her ability to work because this issue had not been ruled on earlier by the appellate court (Toyota Motor Manufacturing v. Williams, 2002, p. 193).
Congressional Response: The 2008 ADA Amendments
In the 2008 Amendments Act, Congress responded to the Court’s decisions in Sutton and Toyota by mandating several significant human resource obligations (Public Law 110-325, S 3406, 2008). Arguably, the two most noteworthy revisions for public human resource management are as follows: (a) an employer’s focus under the ADA should be on reasonable accommodation rather than on disproving a disability and (b) an employer violates the ADA when acting on the basis that an individual is regarded as disabled whether or not the employer believed the disability limited a major life activity.
The judicial emphasis on whether an individual meets the ADA’s definition of disabled contributed to a situation where it was very difficult for employees to qualify for protection under the law (Allbright, 2010; Rozalski et al., 2010). Congress declared that the Court in Sutton erred in “eliminating protection for many individuals whom Congress intended to protect” (Public Law 110-325, S 3406, § 2(a)(4), 2008). In reaction, the Amendment Act requires that employers’ “primary object of attention” shift from determining whether an individual’s impairment qualifies as a disability to whether the employer has “complied with their obligations” under the ADA (Public Law 110-325, S 3406, § 2(b)(5), 2008).
Congress also found fault with the EEOC’s precise language clarifying the definition of a disability (Public Law 110-325, S 3406, 2008). The Amendments Act criticized the EEOC’s regulation that an individual must be “significantly restricted” in one or more major life activities to qualify as disabled under the ADA (Public Law 110-325, S 3406, 2008). Congress singled-out the EEOC language as “expressing too high a standard” to qualify for the ADA’s employment protections (Public Law 110-325, S 3406, § 2(a)(8) 2008). In response, the Amendments Act mandated new EEOC regulations to define the requirement that a disability must “substantially limit” a major life activity in order for an individual to qualify under the ADA (Public Law 110-325, S 3406, §2(b)(6), 2008).
Regulatory Direction: EEOC Guidelines for the Amendments Act
On March 25, 2011, the EEOC issued its final regulations implementing the Amendments Act. To comply with the congressional mandate to make it less difficult for individuals to qualify as disabled, the EEOC rejected several recommendations to more closely define the parameters of the “substantially limits” facet in the definition of disability (Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 2011, 16981-16982). After evaluating public comments to the proposed rule, the EEOC decided not to modify “substantially limits” with a recommended qualifying term such as “ample” or “considerable” (Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 2011, 16981). Rather than adding clarification that could potentially limit the protection offered by the ADA, the EEOC regulations instead reference the congressional intent that “substantially limits” be interpreted as a “lower threshold” than those established by prior Supreme Court decisions or EEOC regulations on the ADA (Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 2011, 16981). For similar reasons, the EEOC also refused to define a minimum duration necessary to demonstrate that a disability “substantially limits” a major life activity (Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 2011, 16982). Essentially, modifiers that would enable employers to more easily determine the definition of disability could also narrow the reach of the ADA protections. Consequently, the new regulations provide flexibility in terms of who qualifies as disabled but retain a lack of clarity regarding the meaning of substantially limited.
The disability law literature suggests that the revisions concerning an individual who is regarded as disabled are the Amendments Act’s most significant change (Parry & Allbright, 2008). Rejecting the Supreme Court’s interpretation in Sutton, Congress revised the standard for employer violation of the “regarded as” prohibition, but also eliminated its applicability when impairment is transitory and minor. The Amendments Act includes a new paragraph clarifying how an individual qualifies as “regarded as” disabled. The revised law states that it is only necessary to show that an employer committed a prohibited action because of an “actual or perceived physical or mental impairment” (Public Law 110-325, S 3406, §3(A), 2008). It is no longer necessary to establish that the employer also believed that the perceived impairment limits a major life activity. Conversely, the Amendments Act also excludes the “regarded as” standard when impairment has an actual or perceived duration of 6 months or less. The result is a situation where it is easier to demonstrate that an employer violated the “regarded as” prong of the ADA but fewer individuals will be entitled to the protection (Parry & Allbright, 2008).
Rozalski and colleagues suggest that employers should focus on knowing the law as an essential element of their obligations under the Amendments Act (Rozalski et al., 2010). Although there is a gap in the literature regarding how much public human resources managers know about the ADA, similar research on counties provides opportunity for comparison. A survey of Georgia county managers and department heads conducted just prior to the implementation of the Amendments Act examined both the level and certainty of their knowledge of the ADA (Ledvinka, 2009). Results suggest that these supervisors have both greater knowledge and greater certainty of Title VII of the Civil Rights Act of 1964 than they do of the ADA (Ledvinka, 2009). Although a lack of knowledge regarding the ADA would appear to be cause for concern, these data also indicate that county managers and department heads overestimate their responsibility to provide a reasonable accommodation under the ADA (Ledvinka, 2009). Given that the Amendments Act places increased importance on reasonable accommodation, county managers’ overemphasis on accommodations could be an advantage following the January 2009 implementation of the new requirements.
Challenges and Consequences for Public Human Resource Management
Perhaps the most significant consideration for public human resource mangers implementing the ADA is the continuing lack of clarity regarding which employees are entitled to protection under the law. This uncertainty makes it very challenging to make necessary choices to balance ADA implementation and costs. Although the Amendments Act directs employers to emphasize reasonable accommodation over disability determination and offers several additions to the definition of disability, the question of who qualifies as disabled remains. The Rehabilitation Act of 1973 prohibited employment discrimination based on disability in the federal government and served as a foundation for the EEO requirements in the ADA (Ledvinka, 2010). Although much of the ADA’s essential employment language was derived from the Rehabilitation Act which was enacted almost two decades earlier, on passage of the ADA there remained significant uncertainty regarding how to comply with the law’s essential terms (Ara, 2010; Hollwitz, Goodman, & Bolte, 1995).
Several assessments of public employer ADA implementation during the first decade after passage noted the potential challenge posed by unclear requirements. Condrey and Brudney’s (1998) study examining the ADA’s impact on municipal human resources management found evidence of the possible challenges posed by the new law’s vague requirements. However, the authors determined, “Despite lack of budgetary support and vague regulations reported as hindrances, cities have taken great strides to review and revise their personnel systems to help assure ADA compliance” (Condrey & Brudney 1998, p. 40). In his analysis of the first decade under the ADA, Percy (2001) included the lack of clarity regarding who is covered on his “short list of major obstacles” to implementation (p. 639). Less clarity in the text of the original statute may have created a greater need for judicial interpretation which makes the misinterpretation in those Supreme Court cases that narrowly defined the scope of who was entitled to ADA protection even more problematic.
Although the congressional response in the Amendments Act highlighted the Court’s misinterpretation of the legislative intent behind the ADA, the revisions leave remaining concerns regarding whether the ADA clearly delineates who is disabled (Ara, 2010). The Amendments Act includes three key additions to illuminate the definition of disability. First, the law now provides that impairment does not need to limit more than one major life function to qualify as a disability. Furthermore, the amendments clarify that an episodic impairment that qualifies as a disability when active will still qualify when the individual is in remission. Finally, the amendments indicate that an employer who is assessing whether an employee’s impairment substantially limits a major life function may not consider the beneficial effect of mitigating measures used to treat the impairment (for example, prescription medicine, insulin, or chemotherapy). Instead, the Amendments provide that the only mitigating devices that can be considered when evaluating an individual’s level of substantial impairment are ordinary glasses or contacts. Unfortunately, the legal literature suggests that these alterations fail to address a remaining interpretive challenge under the ADA: what constitutes a substantial limitation to a major life activity (Parry & Allbright, 2008).
The 2011 EEOC regulations and guidance on ADA implementation highlight a fundamental challenge: Congressional intent to expand the class of individuals covered by the ADA makes it more difficult for the EEOC to provide greater clarity regarding who qualifies as disabled. The potential for confusion from these contrasting efforts is illustrated by EEOC guidance which notes that determining whether an impairment is substantially limiting “should not require extensive analysis” and also that employers should undertake an “individualized assessment” to determine whether an employee has a disability that leaves them substantially limited in a major life activity (EEOC Questions and Answers, n.d., sec. 9). Although these EEOC rules of construction are not mutually exclusive, they certainly require a delicate balance for employers who are working to meet ADA requirements within modern fiscal constraints. The EEOC’s new regulations to implement the Amendments Act provide considerable detail regarding interpretation of “substantially limited” in a major life activity. However, clarity regarding who is entitled to benefits under the revised statute is hampered by efforts to ensure that the new regulatory language also contributes to the goal of guaranteeing the broadest possible coverage under the ADA.
The requirements of the Amendments Act are not retroactive so they only affect alleged discriminatory conduct that took place after January 1, 2009. Consequently, there is very little federal case law applying the newly revised standards (Allbright, 2010). In late March 2010, a Massachusetts district court appraised procedural issues in a claim where alleged discriminatory action took place on January 2, 2009 one day after the new Amendments Act standards went into effect. In this very early claim under the Amendments Act, the court decided that the case could move forward on questions related to whether the plaintiff was substantially limited in a major life activity as well as other issues (Gil v. Vortex LLC, 2010). However, without decisions applying the substantive elements of the Amendments Act, it is not yet possible to determine how well the revisions define human resource obligations under the ADA. Expectations are that the Amendments Act will change the disability/reasonable accommodation dynamic under the ADA, but for now, ambiguity remains (Allbright, 2010; Rozalski et al., 2010).
Public employers have several added responsibilities due to their status as public entities under Title II of the ADA (42 U.S.C. §12131(1)(A) (1990) as amended). All public employers with 50 or more employees must designate an ADA coordinator and develop an internal grievance process for all allegations of ADA violations (28 CFR 35.107, 1991). Additionally, the ADA Title II requirement that all public employers implement a self-evaluation of their policies, practices, and services to determine any that discriminate based on disability also applies to employment polices and practices (28 CFR 35.105, 1991; Pfeiffer & Finn, 1997).
In an additional distinction for public sector employers, the Supreme Court has significantly limited states’ fiscal liability for ADA violations (Board of Trustees of the University of Alabama v. Garrett, 2001). The Court determined that Congress could not use the ADA to negate states’ 11th Amendment sovereign immunity from suits for money damages to address disability discrimination because status as a disabled individual does not meet the high standard of a suspect or quasisuspect classification (Board of Trustees of the University of Alabama v. Garrett, 2001). However, the Garrett decision does not mean that state employers can ignore the requirements of the ADA. State employees who demonstrate discrimination based on disability may still use the ADA to win injunctive relief. In addition, individual, state officials may be held personally liable for money damages due to violations of the ADA (Kuykendall & Lindquist, 2001). Finally, states that engage in a pattern and practice of employment discrimination against persons with disabilities are subject to money damages as well as injunctive and declaratory relief if the U.S. government files suit on behalf of state employees (Kuykendall & Lindquist, 2001).
Conclusions and Recommendations for ADA Implementation
Vague requirements have repeatedly been cited as a problem since the earliest evaluations of ADA implementation (Bishop & Jones, 1995; Condrey & Brudney, 1998). Furthermore, the early ADA implementation literature projected that employers would wait for judicial interpretation before deciding how to respond under the ADA (Mishra, 1995). It is possible that public employers faced with unclear rules waited for the federal courts to clarify the law and were then left with an overly narrow interpretation of their responsibilities. The recent changes in the Amendments Act clarified congressional intent, but legal scholars point to potential remaining problems with interpretation of key terms such as substantial limitation (Ara, 2010; Parry & Allbright, 2008).
A recent examination of the Amendments Act offers practical recommendations for ADA administration and concludes with three basic recommendations to ensure successful implementation of the Amendments Act (Rozalski et al., 2010). Human resources managers should (a) know the law, (b) develop a team to examine current ADA procedures and propose new policies and procedures, and (c) create an institutional culture of acceptance characterized by collaboration with employees to develop reasonable accommodations (Rozalski et al., 2010, p. 24). Public human resource managers remain constrained by ongoing ADA interpretation, but these three recommendations provide tangible guidance for navigating the ADA’s complex legal environment.
Although the lack of clarity regarding the definition of who is disabled continues to be a challenge, research into county managers’ knowledge of employment law offers optimism for one practical method to increase ADA compliance. An examination of the determinants of county managers’ knowledge of EEO law concluded that participation in legal training was the most significant factor influencing managers’ knowledge of law across a broad range of EEO statutes including the ADA (Ledvinka, 2009). In addition, research into employee training at the federal level demonstrates that training significantly effects organizational effectiveness (Lee, Cayer, & Lan, 2006). The authors find, “Training and development are critical in adapting to rapid environmental change and in providing quality service with less cost” (Lee et al., 2006, p. 36). These reassurances that practitioner training yields positive results in both in legal comprehension and in organizational success offer support for implementing ADA training as one practical response to changing employment law responsibilities.
Furthermore, public human resource managers can leverage existing institutional knowledge and build organization-wide support for ADA policies by creating a team responsible both for evaluating current ADA procedures and for recommending changes to ensure compliance with the Amendments Act. In their meta-analysis of research on organizational change, Fernandez and Rainey (2006) note that lasting change requires widespread participation to overcome resistance (p. 170). A team that includes employees with and without disabilities as well as representatives spanning departments and managerial levels could serve both to increase awareness of the issues facing employees with disabilities and to build support for ADA compliance across the organization.
Public human resource managers who institute a policy of collaboration to meet requests for reasonable accommodation will be better equipped to meet the new requirements under the ADA. The Amendments Act requires employers to focus on reasonable accommodation and organizational change scholarship supports the value of collaborating with employees to ensure a lasting change in culture regarding disability (Fernandez & Rainey, 2006). Rozalski and colleagues’ combine the mandate to emphasize reasonable accommodation with employee collaboration to reinforce an institutional culture that values employees with disabilities.
Although these three recommendations are no panacea for the challenge of implementing shifting legal obligations, they offer feasible strategies for public employers to work to meet their ADA obligations. By providing legal training so that managers know the law, developing a team to evaluate and recommend ADA policy and procedure, and supporting a culture of ADA acceptance that highlights reasonable accommodation, public employers can work toward successful ADA implementation as they wait for the courts and Congress to engage in the next round of debates in the ongoing evolution of the ADA.
Footnotes
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
The author(s) received no financial support for the research, authorship, and/or publication of this article.