A number of recent court cases appear to pose substantial threats to the ADA and Section 504 of the federal Rehabilitation Act. Here's the rundown:

Threats to ADA Title I

In recent years several Supreme Court cases have narrowed the ADA's definitions of "disability" and "person with a disability" for purposes of deciding whether someone is protected from employment discrimination. Most of these cases were either foolishly chosen or badly argued, and as a result, the Court has essentially thrown out the ADA's prohibition of discrimination against people whom employers perceive as having a disability, and has weakened the actual definition of disability to leave out anybody whose condition has been improved by medication or prosthetic devices. Now the Supremes have taken on two more such cases.

In Chevron v Echazabal, a man with the serious chronic liver disease hepatitis C was denied a job working in an oil refinery because doctors said exposure to refinery chemicals would be likely to overpower his liver and kill him. Echazabal sued and the federal district court ruled against him, so he appealed to the 9th. Circuit Court, which ruled against Chevron. Now Chevron is appealing. The ADA says that people whose disabilities constitute a threat to others are not protected, but is silent on issues like this one. However, one of the Appeals judges, Stephen S. Trott, wrote a dissenting opinion in which he said that the majority decision would allow a steelworker with vertigo to work on high-rise buildings or a person who is allergic to bee stings to be hired as a beekeeper. That sounds sensible but in fact it's not. Trott's examples are of acute symptoms that would show up right away and make it impossible for the workers to do their jobs. Therefore they would not be "otherwise qualified" for those positions and not protected by the ADA. But Echazabal, assuming the doctors' fears are justified, would only very gradually lose liver function and his job performance would not be affected for some (possibly quite long) period of time. The Supremes have shown an inability to grasp such subtleties of disability reality in past decisions and Trott's kind of thinking is likely to be attractive to them.

The problem with Toyota v Williams, on the other hand, lies with Williams and her lawyers, who are gambling the fate of the ADA on a bad argument. Williams worked in an automobile factory and has carpal tunnel syndrome. The exact circumstances of her situation are unclear. She originally did manual labor but was given a less physically stressful job when her condition first appeared. However, she was later required to begin sponging down cars on the assembly line--whether due to a transfer to a new position or a change in her job description we don't know, and we also don't know the reason for the change. In any event, she couldn't do the job and was fired. Williams sued to get her job back under Title I.

Title I says that if a worker acquires a disability it may be a reasonable accommodation to alter his/her job description or offer a transfer to a different job for which he/she is qualified, if the employer doesn't incur any significant loss by such alteration or there is a vacant opening for the transfer. It doesn't require employers to keep people in jobs they are unable to do and it doesn't require them to create a job for anyone. Given these facts, Williams simply is not "otherwise qualified" to do the job she was fired from and shouldn't have a leg to stand on. The federal district court did rule against her, but not on that basis. Instead, it said carpal tunnel syndrome isn't a covered disability because it doesn't substantially limit one or more major life activities, as required by the ADA. The Appeals Court sided with Williams, and in November we were treated to the spectacle of lawyers trying to convince such intellectual giants as Antonin Scalia and Clarence Thomas that not being able to lift 20 lbs. or bend one's elbows more than a certain number of degrees is a "substantial limitation". During these oral arguments, Justice O'Connor exhibited her ignorance of basic disability law, as well as of the facts of the case, by asking whether Workers Compensation law should have resolved Williams' problem. This is not a promising development.

Threats to ADA Title II

Title II outlaws discrimination on the basis of disability by state and local governments. It is the title on which the Olmstead anti-institutional-bias decision was based. You'll recall that the Supreme Court's Garrett decision, while deliberately avoiding ruling on Title II, laid out a rationale that could later be used to declare Title II unconstitutional with regard to state governments. The Court believes that states are immune to lawsuits by citizens under the 11th. Amendment unless they waive that immunity or Congress finds a good enough reason to invoke the 14th. Amendment to waive it. In Garrett, the Supremes said that because, in their view, disability discrimination is not as bad as racial discrimination, there is no way the 14th. Amendment can ever be used to make state governments change how they treat people with disabilities as long as they can offer a "rational" justification for it. While the Garrett opinion was explicitly limited to Title I suits against states for money damages, later decisions could rule out any sort of Title II action against states, because the opinion also says that the ADA's "undue burden" standard is more restrictive than the "rational purpose" test and therefore cannot be enforced against state governments under any circumstances.

So now comes Francisco Garcia v SUNY Health Sciences Center of Brooklyn. Garcia flunked out of medical school in his first year. After a psychiatrist diagnosed him as having learning disabilities, he applied for readmittance. SUNY agreed to readmit him but only if he repeated some of the first-year courses. Garcia was unwilling to do so and brought suit under Title II of ADA (and Section 504; see below) in federal district court. The district court summarily dismissed the suit on 11th. Amendment grounds and Garcia appealed to the 2nd. Circuit.

The Circuit Court's decision is both bizarre and dangerous. They used the argument outlined above to find that Title II "in its entirety" is unconstitutional with regard to state government, but also said that since Congress intended to abrogate the 11th. Amendment in the ADA to protect people with disabilities from discrimination, the Court had an obligation to try to find a way to provide that protection without violating the Constitution. So they created a new standard: Citizens can sue states for money damages under Title II if the state's actions were motivated by "discriminatory animus or ill will due to disability". However, the Court went on to uphold the district court against Garcia by finding that there was no evidence of such motivations in this case!

This decision directly challenges the Garrett finding that any "rational purpose" a state can come up with for its actions will render it immune from suit even if there are other reasons that are not "rational". Many disability advocates feel that Garcia was wrong not to accept what appears to have been a reasonable accommodation offered by SUNY once his disability was diagnosed. It's also pretty obvious that it's not a good idea to let people who can't pass basic medical science courses become doctors whether they have disabilities or not. So Garcia is not a good test case, and if he makes the mistake of appealing the decision to the Supreme Court, the Justices are likely to chuckle over the Circuit Court's interestingly original "animus or ill will" concept, invalidate it, and then agree that Title II is unconstitutional "in its entirety".

Then there's Jones v Commonwealth of Pennsylvania. Jones is a blind guy who claimed he was being harassed by the state voc rehab agency; he tried to take a training course provided by the agency and was repeatedly expelled, so the 16-week course took him 3 years to finish. He sued the state in federal district court under Title II, acting as his own lawyer. Initially the district court judge refused to summarily dismiss the case on 11th. Amendment grounds and tried to find a lawyer who would represent Jones for free. After several attempts to find one failed, the judge had to consider the facts of the case. During this search for counsel, the Garrett decision came down. The district judge then felt forced to rule that while Garrett is specifically limited to ADA's Title I employment provisions, the logic of the decision inescapably indicates that Title II is also unconstitutional as applied to the states.

Threat to Section 504

Section 504 of the federal Rehabilitation Act forbids discrimination on the basis of disability in the provision of programs and services by any entity that receives federal funds. Since state governments get federal funds, they are subject to Section 504 as well as to ADA Title II. The Garcia in the Garcia case also sued under 504 and the 2nd. Circuit's ruling on that point was frightening also.

In the ADA Congress revoked states' 11th. Amendment immunity from suits. Under the terms of 504, however, if a state accepts federal funds it is considered to have waived its immunity itself. The Circuit decision said that such a waiver must be done "knowingly", and found that, because at the time that the state accepted the funds it believed that the ADA had already wiped out its immunity, it did not really "know" it was explicitly waiving it under Section 504. Therefore, Section 504 doesn't apply to New York State or, by extension, to any state in a case involving funds accepted after passage of the ADA but before the Supremes started using the 11th. Amendment to systematically dismantle federal civil rights legislation in the late 1990s.

We don't know if Garcia or Jones plan to appeal their rulings. The Supreme Court has heard arguments in both Echazabal and Toyota and should release decisions sometime in the spring.