The americans with disabilities act: A windfall for defendants

Harvard Civil Rights-Civil Liberties Law Review

Volumn 34, Issue 1, 1999, Pages 98-162

  Colker, Ruth ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 7044228102     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (346)

1. 42 U.S.C. §§ 12101-12213 (1994).
2. Ruth Shalit, Defining Disability Down, NEW REPUBLIC, Apr. 25, 1997, at 16.
3. Trevor Armbrister, A Good Law Gone Bad, READER'S DIG., May 1998, at 145, 149; see also John Leo, Let's Lower the Bar, U.S. NEWS & WORLD REP., Oct. 5, 1998, at 19 (arguing the ADA has the potential "to force the rethinking and watering down of every imaginable standard of competence, whether of mind, body, or character'" (quoting WALTER OLSON, THE EXCUSE FACTORY (1997))).
4. Trevor Armbrister, A Good Law Gone Bad, READER'S DIG., May 1998, at 145, 149; see also John Leo, Let's Lower the Bar, U.S. NEWS & WORLD REP., Oct. 5, 1998, at 19 (arguing the ADA has the potential "to force the rethinking and watering down of every imaginable standard of competence, whether of mind, body, or character'" (quoting WALTER OLSON, THE EXCUSE FACTORY (1997))).
5. Trevor Armbrister, A Good Law Gone Bad, READER'S DIG., May 1998, at 145, 149; see also John Leo, Let's Lower the Bar, U.S. NEWS & WORLD REP., Oct. 5, 1998, at 19 (arguing the ADA has the potential "to force the rethinking and watering down of every imaginable standard of competence, whether of mind, body, or character'" (quoting WALTER OLSON, THE EXCUSE FACTORY (1997))).
6. 118 S. Ct. 2196 (1998).
7. Linda Greenhouse, Ruling on Bias Law: Infected People Can Be Covered Even With No Symptoms, N.Y. TIMES, June 26, 1998, at Al. Ten days earlier, the Court rendered a unanimous decision in which it concluded that the ADA covers claims brought by state prison inmates who are disabled. See Pennsylvania Dep't of Corrections v. Yeskey, 118 S. Ct. 1952 (1998). This decision also resulted in an expansive interpretation of the statute.
8. See Federal Enforcement of ADA Falls Short, Civil Rights Commission Says in Report, 67 U.S.L.W. (BNA) 2199 (Oct. 13, 1998) (summarizing U.S. CIVIL RIGHTS COMM'N, HELPING EMPLOYERS COMPLY WITH THE ADA AND HELPING STATE AND LOCAL GOVERNMENT COMPLY WITH THE ADA (1998)).
9. Of the 620 ADA appellate cases in my database, 475 were employment discrimination cases, 122 were non-employment actions against public entities, and 23 were non-employment actions against public accommodations. Thus, the employment discrimination cases constituted 76% of the database. Because there were so few non-employment actions in the database, I have not analyzed the results in those cases in depth at this time. Of the 122 non-employment cases brought against public entities, I have found that defendants were successful in 101 (82.8%) of the cases. Because there were only 23 cases brought against public accommodations under Title III of the ADA, I have not attempted to categorize those cases at all.
10. My trial court data were obtained from the American Bar Association's Commission on Mental and Physical Disabilities. For further discussion of this database, see infra Part I.B.2.
11. My appellate database includes employment discrimination cases brought against both public and private entities. I have attempted to include only potentially meritorious cases by excluding patently frivolous cases from the database and coding whether cases are brought pro se. As discussed in the methodology section, see infra Part I.A, I have also attempted to determine the rate of publication in each circuit and the likelihood of additional unavailable opinions in which the defendant may have prevailed. Finally, I have distinguished between appellate and district court litigation, while carefully noting the result below in the appellate cases. My preliminary data are consistent with the data collected by other researchers. The editors of the National Disability Law Reporter and Disability Compliance Bulletin collected 261 decisions in which federal courts of appeals have issued rulings on claims made under the ADA. In 209 of 261 decisions decided between 1994 and 1997, they found that the appellate panel sided with the defendant on the ADA claim or claims, in employment and non-employment cases, resulting in an 80% success rate for ADA defendants overall. See DISABILITY COMPLIANCE BULL., Nov. 20, 1997, at 1, 8-9. The American Bar Association's Commission on Mental and Physical Disability Law conducted a formal study on the outcome of all ADA Title I cases decided from 1992 until March 31, 1998. They concluded that of the 760 decisions in which one party or the other prevailed, employers prevailed in 92.11% of those cases. See Study Finds Employers Win Most ADA Title I Judicial and Administrative Complaints, 22 MENTAL & PHYSICAL DISABILITY L. REP. 403, 404 (1998). Similarly, the Equal Employment Opportunity Commission has reported that it achieved "merit resolutions" in only 13.6% of all cases filed with the commission for fiscal years 1992 through 1997. See EQUAL EMPLOYMENT OPPORTUNITY COMM'N, AMERICANS WITH DISABILITIES ACT OF 1990 STATISTICS FY 1992 THROUGH FY 1997 (on file with author). "Merit resolutions" are defined as "charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations." Id. Thus, it would be inaccurate to explain the low success rate at the appellate level by speculating that the "good" cases have all been favorably settled. The success rate for plaintiffs at the pre-trial level is extraordinarily low, as it is at the appellate level.
12. My appellate database includes employment discrimination cases brought against both public and private entities. I have attempted to include only potentially meritorious cases by excluding patently frivolous cases from the database and coding whether cases are brought pro se. As discussed in the methodology section, see infra Part I.A, I have also attempted to determine the rate of publication in each circuit and the likelihood of additional unavailable opinions in which the defendant may have prevailed. Finally, I have distinguished between appellate and district court litigation, while carefully noting the result below in the appellate cases. My preliminary data are consistent with the data collected by other researchers. The editors of the National Disability Law Reporter and Disability Compliance Bulletin collected 261 decisions in which federal courts of appeals have issued rulings on claims made under the ADA. In 209 of 261 decisions decided between 1994 and 1997, they found that the appellate panel sided with the defendant on the ADA claim or claims, in employment and non-employment cases, resulting in an 80% success rate for ADA defendants overall. See DISABILITY COMPLIANCE BULL., Nov. 20, 1997, at 1, 8-9. The American Bar Association's Commission on Mental and Physical Disability Law conducted a formal study on the outcome of all ADA Title I cases decided from 1992 until March 31, 1998. They concluded that of the 760 decisions in which one party or the other prevailed, employers prevailed in 92.11% of those cases. See Study Finds Employers Win Most ADA Title I Judicial and Administrative Complaints, 22 MENTAL & PHYSICAL DISABILITY L. REP. 403, 404 (1998). Similarly, the Equal Employment Opportunity Commission has reported that it achieved "merit resolutions" in only 13.6% of all cases filed with the commission for fiscal years 1992 through 1997. See EQUAL EMPLOYMENT OPPORTUNITY COMM'N, AMERICANS WITH DISABILITIES ACT OF 1990 STATISTICS FY 1992 THROUGH FY 1997 (on file with author). "Merit resolutions" are defined as "charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations." Id. Thus, it would be inaccurate to explain the low success rate at the appellate level by speculating that the "good" cases have all been favorably settled. The success rate for plaintiffs at the pre-trial level is extraordinarily low, as it is at the appellate level.
13. My appellate database includes employment discrimination cases brought against both public and private entities. I have attempted to include only potentially meritorious cases by excluding patently frivolous cases from the database and coding whether cases are brought pro se. As discussed in the methodology section, see infra Part I.A, I have also attempted to determine the rate of publication in each circuit and the likelihood of additional unavailable opinions in which the defendant may have prevailed. Finally, I have distinguished between appellate and district court litigation, while carefully noting the result below in the appellate cases. My preliminary data are consistent with the data collected by other researchers. The editors of the National Disability Law Reporter and Disability Compliance Bulletin collected 261 decisions in which federal courts of appeals have issued rulings on claims made under the ADA. In 209 of 261 decisions decided between 1994 and 1997, they found that the appellate panel sided with the defendant on the ADA claim or claims, in employment and non-employment cases, resulting in an 80% success rate for ADA defendants overall. See DISABILITY COMPLIANCE BULL., Nov. 20, 1997, at 1, 8-9. The American Bar Association's Commission on Mental and Physical Disability Law conducted a formal study on the outcome of all ADA Title I cases decided from 1992 until March 31, 1998. They concluded that of the 760 decisions in which one party or the other prevailed, employers prevailed in 92.11% of those cases. See Study Finds Employers Win Most ADA Title I Judicial and Administrative Complaints, 22 MENTAL & PHYSICAL DISABILITY L. REP. 403, 404 (1998). Similarly, the Equal Employment Opportunity Commission has reported that it achieved "merit resolutions" in only 13.6% of all cases filed with the commission for fiscal years 1992 through 1997. See EQUAL EMPLOYMENT OPPORTUNITY COMM'N, AMERICANS WITH DISABILITIES ACT OF 1990 STATISTICS FY 1992 THROUGH FY 1997 (on file with author). "Merit resolutions" are defined as "charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations." Id. Thus, it would be inaccurate to explain the low success rate at the appellate level by speculating that the "good" cases have all been favorably settled. The success rate for plaintiffs at the pre-trial level is extraordinarily low, as it is at the appellate level.
14. By examining all cases tried between 1978 and 1985 for which the Administrative Office of United States Courts reported an outcome, Theodore Eisenberg has found plaintiff success rate in civil rights actions for a seven-year period (1978-1985) to range from voting rights cases (53%) to prisoner civil rights cases (14%). See Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 GEO. L.J. 1567, 1578 (1989). Employment discrimination cases, which are most analogous to the ADA cases studied in my database, were found to have a success rate of 22%. See id. Harvard Civil Rights-Civil Liberties Law Review [Vol. 34 The comparison between ADA cases and other kinds of cases is not a perfect comparison because the data sets differ. Eisenberg's data on civil rights and prisoner cases rely on trial court outcome data maintained by the Administrative Office of the United States Courts. These data include all dispositions - including dismissals and verdicts. Because the Administrative Office of the United States Courts does not make available trial court outcome data for ADA cases, ADA researchers have not been able to look at as complete a data set as Eisenberg examined. Instead, ADA researchers have been limited to outcomes that are available through an electronic or printed source. How these missing data may distort ADA data deserves further examination. Eisenberg's data are also from a different time period - 1978 to 1985 - than ADA data, which will be from a time period from 1992 to 1998, which may affect any comparisons and deserves further examination.
15. Although the Bragdon plaintiff, Sidney Abbott, initially prevailed at both the district court and appellate court levels on a motion for summary judgment in her ADA Title III (public accommodations) case, the Supreme Court vacated the grant of summary judgment on the issue of whether providing dental treatment to Abbott would pose a direct threat to the dentist and remanded her case back to the court of appeals for further guidance on that issue. See Bragdon v. Abbott, 118 S. Ct. 2196, 2213 (1998). The lower courts held, however, and the Supreme Court affirmed, that she was deserving of judgment as a matter of law on the question of whether she was an individual with a disability.
16. See 42 U.S.C. § 12102(2) (1994) (defining "disability").
17. See id. § 12111(8) (defining "qualified individual with a disability" with reference to "direct threat").
18. See id. § 12111(9) (defining "reasonable accommodation").
19. See id. § 12113(b) (defining "qualification standards").
20. 16See id. § 12111(10) (defining "undue hardship").
21. See Eisenberg, supra note 10, at 1596.
22. See 42 U.S.C. § 12113(b) (1994) (listing "defenses," including the direct threat defense).
23. See 29 C.F.R. app. § 1630.2(j) (1998).
24. See id. § 1630.16(f).
25. See id. § 1630.15(d).
26. 42 U.S.C. § 12201(a) (1994) ("Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. §§ 791-794(e)) or the regulations issued by Federal agencies pursuant to such title."); see also id. § 12116 (requiring EEOC to promulgate regulations); id. § 12117(b) (requiring agencies to coordinate enforcement of the ADA).
27. My data suggest that summary judgment decisions in ADA Title I cases are usually granted in favor of the defendant and are appealed by the plaintiff. See infra Part I.B. Both the procedural posture and outcome of the Bragdon case are therefore quite unusual.
28. The ADA only forbids discrimination for those individuals who are found to be individuals with disabilities. See 42 U.S.C. § 12112(a) (1994). Unlike other anti-discrimination statutes, the ADA requires a complex judgment as to whether an individual may qualify for statutory protection at all. People without disabilities may not bring suit under the ADA unless they have an associational claim of discrimination or are subject to unlawful medical examinations. See id. §§ 12112(b)(4), 12112(d). Thus, the determination of whether one is an individual with a disability is a critical predicate to the ADA. Many of the summary judgment decisions issued in favor of defendant-employers involve the issue of whether plaintiff is an individual with a disability. That predicate issue was central to the Bragdon case. For further discussion, see Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness, and Parenting Responsibilities under United States Law, 9 YALE J.L. & FEMINISM 213, 220-25 (1997).
29. See infra Part I.B.1.
30. See Peter Siegelman & John J. Donohue III, Studying the Iceberg from its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 L. & SOC'Y REV. 1133 (1990); see also Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1055 (tracing the significant increase over time in the rate of unpublished opinions).
31. See Peter Siegelman & John J. Donohue III, Studying the Iceberg from its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases, 24 L. & SOC'Y REV. 1133 (1990); see also Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1055 (tracing the significant increase over time in the rate of unpublished opinions).
32. See Siegelman & Donohue, supra note 26, at 1155.
33. See id.
34. Daniel N. Hoffman, Nonpublication of Federal Appellate Court Opinions, 6 JUST. SYS. J. 405, 406 (1981).
35. Four circuits (Sixth, Ninth, Tenth, and D.C.) send their unpublished opinions to Westlaw and, in some cases, (Sixth and Tenth) also to Lexis. The electronic services then publish these opinions selectively. Four circuits (First, Second, Fourth, and Seventh) send their unpublished opinions to a service called the Public Access to Court Electronic Records ("PACER"). Westlaw then downloads the unpublished opinions from PACER and publishes them selectively. One circuit has its own internet site (Eighth). Westlaw downloads unpublished opinions from this site and then publishes them selectively. Three circuits (Third, Fifth and Eleventh) do not send their unpublished decisions to any site. Their unpublished opinions are not available except directly from the court upon request or from the parties themselves. Finally, an electronic service other than Westlaw or Lexis contains all the unpublished opinions of two circuits (Second and Eighth) so that one can get all the unpublished opinions from these circuits without the filter of Weslaw or Lexis.
36. James Brudney has developed an extensive database that contains all the appellate labor law decisions decided between 1986 and 1993 - even results for cases in which the court summarily affirmed with no written explanation. See James J. Brudney, A Famous Victory: Collective Bargaining Protections and the Statutory Aging Process, 74 N.C. L. REV. 939 (1996).
37. See infra Appendix A.
38. Although labor law publication rates might have some unique features, courts generally make publication decisions based on "generic" factors not related to the subject area. There is no reason to believe that the publication rate in the area of labor law would be markedly different than the publication rate for another area of the law, like disability discrimination.
39. Of the 475 cases in my database, 376 reflected affirmances of pro-defendant results below and only 14 reflected affirmances of pro-plaintiff results below. See infra Part I.B.1. (The remaining 85 cases were reversals.) Thus, of the 390 cases that were affirmances, 96% were affirmances of pro-defendant results below. The cases that I did not have access to - unpublished copies and no opinion decisions - are therefore very likely to be affirmances of pro-defendant results.
40. The "no opinion" and "unpublished copy" results added up to 32% of Brudney's stratified sample of affirmances. See infra Appendix A; see also supra note 34.
41. The Third Circuit data for available opinions are the most difficult to assess, because its publication practices are so far from the norms of the other circuits (70% unavailable as compared with 32% for the sample as a whole). Not only does the Third Circuit not make its opinions readily available to the public, but the stratified sample reveals that 57% of its decisions result in no written decision. Thus, the Third Circuit often does not even provide guidance to the litigating parties of its reasoning in a particular case. In a majority of cases in the stratified sample, the Third Circuit data presents two problems: first, the Third Circuit is only providing its reasoning in a small percentage of cases, and second, it is summarily affirming more than half of its docket without providing a result that is readily available to researchers. (Where no opinion is rendered, one can reasonably assume that the result was a summary affirmance since a reversal requires explanation.) The Third Circuit ADA data, which are drawn from publicly available decisions, should be adjusted to reflect the Third Circuit's unusual publication practices.
42. See, e.g., Armbrister supra note 3, at 149.
43. The view that most litigation is frivolous, especially appellate litigation, is not particularly plausible given the resources required to litigate and appeal cases as well as the possible sanctions against frivolous litigation. Pro se cases are more likely to be frivolous. Even there, there are strong disincentives to bringing suit, especially at the appellate level where plaintiffs must personally bear costs. Furthermore, it is unlikely that frivolous litigation is skewing judicial outcome data in favor of plaintiffs, because ADA judicial outcome data do not yet include opinions that are not available through a printed or electronic source. The data do not include the large number of summary dismissals, which prior researchers have concluded greatly outnumber verdicts in comparable areas of the law. In addition, it is clear that frivolous litigation cannot be clogging the courts. The EEOC reports that it has received 90,803 ADA charges for the time period of July 26, 1992 to September 30, 1997, with the majority of those cases being resolved before trial. See EQUAL EMPLOYMENT OPPORTUNITY COMM'N, supra note 9. Nonetheless, because of the persistence of the frivolous litigation argument, it is important to try to control for that problem in developing an ADA data set.
44. Excluded cases included those that sued a non-covered entity, sued for conduct that occurred before the ADA became effective, or otherwise brought a claim that could not possibly be covered by the ADA.
45. There were no frivolous published decisions.
46. With corrected Third Circuit data, see supra Part LA, this figure would be slightly more favorable to defendants.
47. See supra Part I.A.
48. The ABA data consist of all final trial court outcomes, including both state and federal trial courts. More than 90% of the cases are federal trial courts. The data only include employment cases against ADA Title I defendants and exclude employment cases brought against public entities. Moreover, the data do not screen out frivolous litigation.
49. See Siegelman & Donohue, supra note 26.
50. 29 U.S.C. § 794 (1994).
51. U.S.C. § 2000e1-2000e17 (1994).
52. 29 U.S.C. §§ 621-634 (1994).
53. 118 S. Ct. 2196 (1998).
54. See FED. R. Civ. P. 56(c). When judges render judgment under Rule 56(c), especially in summary decisions, they often do not specify whether they are rendering summary judgment because there is no genuine issue of material fact or judgment as a matter of law because a rule of law dictates the result in the case. Thus, I can only report cases based on whether "judgment" was rendered for a party and cannot distinguish between summary judgment and judgment as a matter of law.
55. Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir. 1978).
56. See William W. Schwarzer et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 458 (1992).
57. Id.
58. Id. at 461.
59. 29 U.S.C. § 794 (1994).
60. See 42 U.S.C. § 12201(a) (1994).
61. Although not all courts agreed that plaintiffs were ever entitled to jury trials under the Rehabilitation Act, the practice had moved in that direction by the time Congress passed the ADA in 1990. (Technically, either party can request a jury trial, but plaintiffs are typically the party that make the request because of the perception that juries are more likely to render larger awards than judges.) Thus, there is some case law under the Rehabilitation Act in which appellate courts review whether an issue should have gone to the jury. In addition, there is case law on whether an appealed issue under the Rehabilitation Act was factual in nature so that the "clearly erroneous" standard was the correct standard of review on appeal.
62. Although the cases decided under the Rehabilitation Act can offer guidance, some introductory words are necessary to understand this precedent fully. Appellate courts usually find it necessary to classify whether an issue is "factual" for two separate, although related, reasons. First, as discussed above, they must determine whether an issue is factual when they decide whether the court below erred in not sending it to the jury. Under the prevailing test, a factual issue upon which a genuine issue of material fact exists should go to the jury for resolution and is not appropriate for a summary judgment decision. See Celotex v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita v. Zenith Radio, 475 U.S. 574 (1986). Second, an appellate court must determine whether an issue is one of law or fact in determining what is the correct standard for appellate review. Legal issues are generally resolved de novo and factual issues are generally resolved under the clearly erroneous standard. Under this standard, an appellate judge should not set aside a factual finding unless it is "clearly erroneous." See FED. R. CIV. P. 52(a). In cases where there has not been a jury trial, either because one was not available or one was not elected, the appellate court will still have to decide whether an appealed issue is one of fact or law in order to determine the correct appellate standard of review. The standard for determining whether an issue is one of fact or law is the same irrespective of whether an appellate judge is deciding whether to send a case to a jury or review it under the clearly erroneous standard.
63. 480 U.S. 273 (1987).
64. Id. at 287. There was no jury in the Arline case, so these were instructions to the lower court on how to make appropriate findings of fact for appellate review under the clearly erroneous standard.
65. I have attempted to survey all the section 504 cases that discuss whether issues are questions of fact or law. I am only aware of one case in which an appellate court considered the reasonable accommodation issue to be a mixed question of fact and law that should be reviewed de novo rather than under the clearly erroneous standard. See Carter v. Bennett, 840 F.2d 63, 64-65 (D.C. Cir. 1988).
66. See Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996). [W]e have to conclude that [plaintiff] did provide enough evidence to reach the jury on the issue of perception which, as already noted, does constitute disability within the meaning of the Act. . . . The third element of plaintiff's case, that [plaintiff] was fired because of a disability, or that his disability was a motivating factor in City Metal's decision to fire him . . . also was a question of fact for the jury. Id. at 33.
67. See Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 520 (2d Cir. 1991) (finding that plaintiff's "status as a current substance abuser as of April 11, 1988 is a question of fact that requires resolution on remand"; the issue of whether plaintiff is otherwise qualified "is also a question of fact that must be resolved on remand").
68. See Pandazides v. Virginia Bd. of Educ., 946 F.2d 345 (4th Cir. 1991).
69. See Pandazides v. Virginia Bd. of Educ., 13 F.3d 823 (4th Cir. 1994).
70. See Brennan v. Stewart, 834 F.2d 1248, 1262 (5th Cir. 1988) (concluding that "our precedent requires that the 'reasonable accommodation' question be decided as an issue of fact - meaning, of course, that it is one for the trial court or jury, subject to 'clearly erroneous' . . . review"); see also McGregor v. Louisiana State Univ., 3 F.3d 850 (5th Cir. 1993). As we recognized in Brennan, whether a handicapped person is otherwise qualified, and consequently whether the accommodations are reasonable, are questions of fact . . . . So we can affirm the lower court's findings only if reasonable men could not differ from the conclusions that the [defendant] provided reasonable accommodations and [plaintiff] was not otherwise qualified. Id. at 855.
71. See Tuck v. HCA Health Serv., Inc., 7 F.3d 465 (6th Cir. 1993). [I]t is a question of fact for the jury whether the employment for the duration of the restricted duty time period consists of the light duties assigned in the restricted duty program indicating the employee was "otherwise qualified" to do the work once the light duty restriction was lifted . . . . We believe that the issue of what constituted the "duties required by the employment sought" was a question of fact for the jury to decide. Id. at 470.
72. See Fedro v. Reno, 21 F.3d 1391, 1396 (7th Cir. 1994) ("Whether [plaintiff] was qualified . . . was a question of fact for the jury to decide.").
73. See Frye v. Aspin, 997 F.2d 426, 428-29 (8th Cir. 1993) (concluding that "reasonable accommodation" is ordinarily a question of fact, requiring an individualized inquiry, but that summary judgment was appropriate because plaintiff failed to create a factual dispute concerning the reasonableness of the offered accommodations).
74. See Oesterling v. Walters, 760 F.2d 859, 861 (8th Cir. 1985).
75. See Collings v. Longview Fibre Co., 63 F.3d 828, 835 (9th Cir. 1995) (considering whether plaintiff was disabled under Washington disability discrimination statute); Doe v. Attorney Gen., 44 F.3d 715 (9th Cir. 1995) (reviewing findings on whether plaintiff posed a significant risk to others and was otherwise qualified under the clearly erroneous standard).
76. See Jackson v. Veterans Admin., 22 F.3d 277, 281 (11th Cir. 1994) (citing Teahan v. Metro-North Commuter Railroad Co., 951 F.2d 511 (2d Cir. 1991), with approval on the fact/law issue).
77. See EEOC v. Boeing Co., 843 F.2d 1213, 1216 (9th Cir. 1988) ("The validity of a BFOQ turns upon factual findings, preferably ones by a jury."); see also Grant v. General Motors Corp., 908 F.2d 1303, 1311 (6th Cir. 1990) ("'It will be a rare case where the law-fulness of such a [BFOQ] policy can be decided on the defendant's motion for summary judgment.'" (quoting UAW v. Johnson Controls, Inc., 886 F.2d 871, 906 (7th Cir. 1989) (Posner, J., dissenting))).
78. See Evans v. McClain, Inc., 131 F.3d 957, 964 (11th Cir. 1997); see also Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997).
79. See Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996) ("Whether working conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to resign is normally a factual question for the jury.").
80. See Ryther v. Kare 11, 84 F.3d 1074, 1086 (8th Cir. 1996).
81. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1045 (5th Cir. 1998).
82. See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1512 (9th Cir. 1989).
83. Under the EEOC regulations, the term "substantially limits" means: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. app. § 1630.2(j)(1) (1998).
84. Under the EEOC regulations, the term "direct threat" means: "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Id. § 1630.2(r).
85. Under Title I of the ADA, the term "qualified individual with a disability" means: "[A]n individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8) (1994).
86. See id. § 12111(10) (defining "undue hardship").
87. See id. § 12102(2) ("The term 'disability' means, with respect to an individual - (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . .").
88. See 29 C.F.R. app. § 1630.2(j) (1998). The ADA and this part, like the Rehabilitation Act of 1973, do not attempt a "laundry list" of impairments that are "disabilities." The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual. Id.
89. Id.
90. See Bragdon v. Abbott, 118 S. Ct. 2196, 2207 (1998) ("In view of our holding, we need not address the second question presented, i.e., whether HIV infection is a per se disability under the ADA.").
91. See School Bd. v. Arline, 480 U.S. 273, 274 (1987).
92. For a historical discussion of this evolution, see Marcy J. Levine, Summary Judgment: The Majority View Undergoes a Complete Reversal in the 1986 Supreme Court, 37 EMORY L.J. 171 (1988); Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 OHIO ST. L.J. 95 (1988).
93. For a historical discussion of this evolution, see Marcy J. Levine, Summary Judgment: The Majority View Undergoes a Complete Reversal in the 1986 Supreme Court, 37 EMORY L.J. 171 (1988); Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 OHIO ST. L.J. 95 (1988).
94. 477 U.S. 242 (1986).
95. Id. at 256.
96. Id. at 257.
97. Id. at 249-50 (citations omitted).
98. Id. at 252.
99. The Court held that: Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. Id. at 255 (citation omitted).
100. Id. at 257 (emphasis added).
101. Id. at 252.
102. 376 U.S. 254 (1964).
103. See Anderson, 477 U.S. at 252-56.
104. See id. at 254.
105. See 42 U.S.C. § 12112 (1994) (general rule against discrimination).
106. See id. § 12111(9) (setting forth reasonable accommodation standard).
107. See id. § 12112(b)(5)(A) (providing defense if the "covered entity can demonstrate that the accommodation would impose an undue hardship").
108. See id. § 12113(b) (listing the direct threat rule as a "defense"). Defendants can also offer a defense that a rule is "job-related and consistent with business necessity." Id. § 12113(a).
109. 105 Id. § 12112(d)(4)(A). A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. Id.
110. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
111. See, e.g., EEOC v. Amego, 110 F.3d 135 (1st Cir. 1997) (affirming summary judgment on direct threat issue); Soileau v. Guilford, 105 F.3d 12 (1st Cir. 1997) (disregarding a position of the EEOC, the court found that no reasonable jury could conclude that the plaintiff had a substantial limitation of a major life activity although he had offered significant evidence to support his theory); Flynn v. Raytheon Co., 94 F.3d 640 (1st Cir. 1996) (unpublished table decision) (declining to send to the jury the question whether the plaintiff is no longer engaging in substance abuse).
112. In at least two cases, the Second Circuit failed to reverse lower courts' inappropriate use of summary judgment when factual disputes existed. See, e.g., Sinopoli v. Regula, 125 F.3d 844 (2d Cir. 1997) (unpublished table decision) (finding plaintiff's allegations of ridicule too conclusory and granting summary judgment, thereby precluding live testimony at trial); Curran v. All-Waste Sys., 133 F.3d 844 (2d Cir. 1997) (unpublished table decision) (rejecting argument that the timing of defendant's job offer to plaintiff should have raised a triable issue of fact as to whether a position had actually been available for which plaintiff was qualified before he filed suit).
113. See, e.g., Robinson v. Global Marine Drilling Co., 101 F.3d 35 (5th Cir. 1996) (finding that jury's verdict should be overturned as a matter of law because plaintiff did not present sufficient evidence of disability under any of the three available methods of proof); Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) (substituting appellate court's evaluation of direct threat issue for that of the jury). The Daugherty opinion quoted from a Fifth Circuit unpublished opinion in which the court said: "Woe unto the employer who put such an employee behind the wheel of a vehicle owned by the employer which was involved in a vehicular accident." Chandler v. City of Dallas, 2 F.3d 1385, 1395 (1993) (citing Collier v. City of Dallas, No. 86-1010, slip op. at 3 (5th Cir. 1993)). This raises the question of why the Daugherty jury did not sympathize with the defendant-employer. If the jury can decide the question of negligence in the motor vehicle accident setting, then it should decide the question of acceptable risk in the ADA setting. The Daugherty holding is counter to a core requirement of the ADA - that decisions be made on an individualized basis. The direct threat rule is codified in the ADA as an individualized inquiry. See 42 U.S.C. § 12113(b) (1994) ("The term 'qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace."(emphasis added)); see also 29 C.F.R. app. § 1630.2(r) (1998) ("Determining whether an individual poses a significant risk of substantial harm to others must be made on a case by case basis.").
114. See, e.g., Roberts v. Unidynamics Corp., 126 F.3d 1088 (8th Cir. 1997) (overturning jury verdict in favor of plaintiff against both the employer and the union).
115. See, e.g., Bolton v. Scrivner, 36 F.3d 939 (10th Cir. 1994) (affirming summary judgment for defendant-employer on a very high threshold of proof standard). Subsequent to Bolton, summary judgment was granted (and affirmed on appeal) in 11 other Tenth Circuit cases on the issue of whether the plaintiff was substantially limited in a major life activity. See, e.g., Adams v. Strombecker Corp., 153 F.3d 726 (10th Cir. 1998) (unpublished table decision); Murphy v. United Parcel Serv., 141 F.3d 1185 (10th Cir. 1998) (unpublished table decision); Jackson v. Analyst Int'l Corp., 134 F.3d 382 (10th Cir. 1998) (unpublished table decision); Sutton v. United Airlines, Inc., 130 F.3d 893 (10th Cir. 1998); Siemon v. AT&T Corp., 117 F.3d 1173 (10th Cir. 1997).
116. See, e.g., Terrell v. USAir, 132 F.3d 621 (11th Cir. 1998) (affirming grant of summary judgment for defendant-employer on issues of whether plaintiff was disabled and whether she had been provided with reasonable accommodation); Stewart v. Happy Herman's Cheshire Bridge, 117 F.3d 1278 (11th Cir. 1998) (affirming grant of summary judgment in reasonable accommodation case); Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (11th Cir. 1997) (affirming grant of summary judgment in reasonable accommodation case); Moses v. American Nonwovens, 97 F.3d 446 (11th Cir. 1996) (affirming grant of summary judgment in reasonable accommodation and direct threat case).
117. Many of these examples involve individuals with AIDS. I have not deliberately chosen AIDS examples; they simply provide good illustrations of some of the problems that I have discovered.
118. 477 U.S. 242 (1986).
119. 135 F.3d 1089 (6th Cir. 1998).
120. The ADA says that "a covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A) (1994).
121. See EEOC v. Prevo's Family Mkt., Inc., No. 1:95 CV446, 1996 WL 604984, at *6 (W.D. Mich. Aug. 27, 1996), rev'd in part, vacated in part, 135 F.3d 1089 (6th Cir. 1998).
122. See Prevo's Family Mkt., 135 F.3d at 1090-91.
123. The burden of proving that an examination is "job-related and consistent with business necessity" is on the defendant. In this particular case, the employer's defense for the medical examination requirement was that Mr. Sharp posed a direct threat at the workplace if he were HIV-positive. The direct threat rule is also a defense under the ADA and is listed in the "defenses" part of the statute. See 42 U.S.C. § 12113(b) (1994).
124. 137 F.3d 398 (6th Cir. 1998).
125. The defendant-employer justified its decision to remove the plaintiff from the operating room by arguing that he posed a "direct threat" to the health and safety of others. This argument is a listed defense under the ADA. See 42 U.S.C. § 12113(b) (1994). Under the applicable Center for Disease Control ("CDC") guidelines, the plaintiff would not pose a significant threat to the health of patients unless his hands would be in the body cavity of a patient in the presence of sharp instrumentation. See Borgess Med. Ctr., 137 F.3d at 403 (discussing CDC guidance). Testimony was offered on this issue, with the plaintiff testifying that he was unsure of hospital procedures or whether such circumstances ever occurred during his job. See id. at 404. The trial court, however, granted summary judgment on this issue, precluding the case from going to the jury. See Mauro v. Borgess Med. Ctr., 886 F. Supp. 1349, 1354 (W.D. Mich. 1995).
126. Judge Boggs argued that in a case in which the risk of injury to others can be quantified as somewhat smaller than .0024%, it is appropriate for the jury to determine whether this risk is "significant." See Borgess Med. Ctr., 137 F.3d at 409 (Boggs, J., dissenting). More than a few people refuse to fly, though commercial airlines are said to be safe compared to other modes of transportation. There may be some people who refuse to cross streets. Others go bungee-jumping. So there is an inescapable normative component to the judgment of whether the chance that even a great peril will come to pass is "significant" or not. Id. In addition, Judge Boggs argued that the significance of the risk will depend upon whether the fact finder believes that the plaintiff is particularly careful and takes all possible precautions to preclude risk to others. Whether the plaintiff took prescribed antiviral medications that might reduce his degree of contagiousness to others would also be an appropriate jury question. Yet none of these factual issues received discussion by the trial court because the judge simply concluded that plaintiff Mauro posed a significant risk as a matter of law. See id. at 411-12.
127. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) (holding that a fact finder's disbelief of employer's proffered justification for the disciplinary employment action under Title VII does not compel a jury verdict for the plaintiff). Lower courts interpreting Hicks have recently wrestled with the question of whether a plaintiff is entitled to have a case sent to the jury where the plaintiff has met the elements of the prima facie case of discrimination and offered evidence disputing the defendant's reason for the adverse job action. The Third Circuit has held: "[O]nce the court is satisfied that the evidence meets this threshold requirement [prima facie case plus evidence of pretext], it may not pretermit the jury's ability to draw inferences from the testimony, including the inference of intentional discrimination drawn from an unbelievable reason proffered by the employer." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en banc). The Fifth Circuit, by contrast, has held that proof of the elements of the prima facie case and proof of pretext are not always enough to get a case to the jury. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc). This debate about how much evidence of discrimination is necessary to go to the jury is at the forefront of Title VII litigation. (The Third and Fifth Circuit opinions, for example, were lengthy en banc decisions with vigorous dissents.) Because many of the ADA cases are resolved at a more preliminary stage - such as whether plaintiff has a disability or is qualified for the position in question - they do not frequently get to the stage of assessing whether there is sufficient proof of discrimination.
128. See, e.g., Runnebaum v. NationsBank, 123 F.3d 156 (4th Cir. 1997) (concluding as a matter of law that plaintiff's HIV status did not constitute a disability).
129. 53 F.3d 55 (4th Cir. 1995).
130. See id. at 56. Associational discrimination is explicitly prohibited by 42 U.S.C. § 12112(b)(4) (1994).
131. Ennis, 53 F.3d at 57.
132. Id. The appellate opinion does not state whether Ennis' insurance claims were one of those expensive cases, although the opinion implies that her son was healthy at the time of her discharge. See id. at 60. The appellate opinion is silent with respect to what course of treatment, if any, he was receiving and how expensive was that course of treatment. There is no reported trial court opinion.
133. Id. at 62 (citations omitted).
134. 123 F.3d 156 (4th Cir. 1997) (en banc).
135. The court held that "HIV infection is simply not an impairment: without symptoms, there are no diminishing effects on the individual." Id. at 168. That part of the court's decision would appear to be overruled by Bragdon v. Abbott in that the Supreme Court did conclude that Sidney Abbott, an individual with asymptomatic HIV infection, was entitled to summary judgment on the question of whether she was an individual with a disability. See Bragdon v. Abbott, 118 S. Ct. 2196, 2201 (1998). Although the Court declined to rule that all individuals with HIV infection necessarily meet the definition of an individual with a disability, it clearly disapproved Runnebaum's holding that an asymptomatic individual can never be considered impaired or therefore disabled. The Fourth Circuit, therefore, erred in ruling as a matter of law on an issue that, at a minimum, should have gone to the jury for consideration.
136. Runnebaum introduced evidence that he informed a supervisor, Michael Brown, that he was HIV-positive. This information was relayed while they were at a nonbank-related social event. Brown described his reaction at his deposition: And I can remember just thinking - I remember being in a state of panic, panic because I was thinking how am I going to work, you know and be a friend to somebody who is HIV positive . . . . But, you know, suppose he dies on me. Should I tell [Pettit] at this point, should I tell [NationsBank]? I remember feeling panicky, uncontrolled. Runnebaum, 123 F.3d at 162.
137. Both Brown and Pettit testified at their depositions that Brown did not tell Pettit about Runnebaum's status until after she had decided to fire him. Pettit testified that Brown told her toward the end of November and that she made her decision at the beginning of November. Nonetheless, she made no record of her decision at that time and, as late as December 9, sent him a very complimentary note about his work performance. (Runnebaum was not notified that Pettit had problems with his work performance until January 7.) Runnebaum also introduced evidence that the bank knew he was HIV-positive because packages containing AZT, which were addressed to Runnebaum, were twice inadvertently opened by bank personnel. Id. at 162.
138. Runnebaum v. NationsBank, 95 F.3d 1285, 1297 (4th Cir. 1996).
139. Runnebaum, 123 F.3d at 188 (en banc) (Michael, C.J., dissenting (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986))).
140. Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
141. 477 U.S. 242(1986).
142. Id. at 252.
143. Ennis, 53 F.3d at 62; see also Runnebaum, 123 F. 3d at 163-64 (en banc).
144. See Runnebaum, 123 F.3d at 187-88 (en banc) (Michael, C.J., dissenting).
145. The dual decisions in Ennis and Runnebaum give lower court judges significant latitude to grant motions for summary judgment despite the existence of state of mind issues and inferences that might favor the plaintiff. This trend to disregard inferential testimony mirrors a trend under Title VII. See 42 U.S.C. §§ 2000e1-2000e17 (1994). Although the majority view at one time under Title VII may have been that one could get a case to the jury solely with evidence of a prima facie case and evidence that the defendant's proffered reason for the adverse employment action was not the real reason, some courts now require additional proof. See, e.g., Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 442-45 (11th Cir. 1996); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993-95 (5th Cir. 1996); Woods v. Friction Materials, Inc., 30 F.3d 255, 260-61 n.3 (1st Cir. 1994); see also Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses: The Fallacy of the "Pretext-Plus" Rule in Employment Discrimination Cases, 43 HASTINGS L.J. 57, 87-88 (1991). This trend of raising the threshold of proof to defeat a motion for summary judgment is also now arguably infecting the ADA.
146. See supra note 45 and accompanying text.
147. It may not be surprising that trial court judges used the summary judgment device with great frequency because it is one of the few tools for disposing of a case at the trial court level other than entering a jury's verdict or entering a summary dismissal. Most entries of verdict and summary
148. The ADA states that "Congress finds that some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older." 42 U.S.C. § 12101(a)(1) (1994). The ADA also states that "historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2) (1994).
149. Id. § 12101(a)(2).
150. Id. § 12182(a).
151. See Abbott v. Bragdon, 912 R Supp. 580 (D. Me. 1995).
152. Id. at 591.
153. See Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997).
154. See Bragdon v. Abbott, 118 S. Ct. 554 (1997) (mem.). The Court granted certiorari on three questions under the ADA: (1) Is reproduction a major life activity, (2) Are asymptomatic individuals infected with HIV per se disabled, and (3) When deciding whether a private health care provider must perform invasive procedures on an infectious patient in his office, should courts defer to the health care provider's professional judgment, as long as it is reasonable in light of then-current medical knowledge? Petitioner's Brief, Bragdon v. Abbott, 115 S. Ct. 2196 (1998) (No. 97-156).
155. Bragdon v. Abbott, 118 S. Ct. 2196, 2209-10 (quoting Petition for Certiorari).
156. Id. at 2210.
157. Id. at 2213.
158. See 42 U.S.C. § 12102(2) (1994).
159. Id.
160. Bragdon, 118 S. Ct. at 2206.
161. See Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995).
162. Id. at 586.
163. Id. at 587.
164. In order to send the disability question to the jury, the trial court would have to conclude that there was a genuine issue of material fact on that issue. The trial court opinion states that Abbott was deposed. See id. One would expect defense counsel to have questioned Abbott about her desire to reproduce before becoming infected with HIV in order to question the credibility of her claim that her HIV status significantly affected her decision to reproduce. The trial court opinion, however, includes no excerpts from Abbott's deposition. One would have to read that deposition in order to assess whether the defendant could make a credible claim that there was a genuine issue of material fact on the disability issue. None of the briefs filed in the Supreme Court on behalf of Dr. Bragdon made reference to Abbott's deposition on the topic of her disability claim. It is possible that the defendant made a tactical error in this case by not challenging Abbott's assertions sufficiently at her deposition, and thus failing to create a basis for disputing her assertions about reproduction. Once a plaintiff moves for summary judgment, the defendant has the burden to show a genuine issue of material fact by citing the deposition and other testi-mony. If the defendant completely failed to make any showing, then the Bragdon trial court may be correct in this instance. While credibility may be an issue sufficient to defeat a motion for summary judgment, the question in part is whether the defendant raised that issue. Based on the record available in this case, it is impossible to make that determination.
165. 42 U.S.C. § 12113 (1994) (listing direct threat rule under "defenses" section of ADA Title I).
166. See id. § 12182(b)(3) (direct threat rule for ADA Title III); see also 28 C.F.R. § 36.208 (1997) (requiring the public accommodation to make an "individualized assessment" to ascertain the "nature, duration, and severity of the risk").
167. See 42 U.S.C. § 12112(a) (1994) (setting forth general principle of nondiscrimination).
168. By failing to grant certiorari on questions number 4 and 5, the Supreme Court also lost an opportunity to clarify whether direct threat is an affirmative defense under ADA Title III, as it is under ADA Title I. See Bragdon v. Abbott, 118 S. Ct. 2196, 2209-10 (1998) (quoting Petition for Certiorari).
169. Id. at 2211.
170. Id. at 2212.
171. See id. at 2213 ("Resolution of the issue will be of importance to health care workers not just for the result but also for the precision and comprehensiveness of the reasons given for the decision."); see also id. at 2214 (Ginsburg, J., concurring) ("I further agree, in view of the 'importance [of the issue] to health care workers,' . . . that it is wise to remand, erring, if at all, on the side of caution.").
172. The Court concluded that the proper course is to give the Court of Appeals the opportunity to determine whether our analysis of some of the studies cited by the parties would change its conclusion that petitioner presented neither objective evidence nor a triable issue of fact on the question of risk . . . . A remand will permit a full exploration of the issue through the adversary process. See id. at 2213.
173. Alternatively, one could understand the Court's resolution of the disability issue as meaning that it considered HIV infection to be a per se disability, given the many profound ways that such an impairment affects one's life. The EEOC, in fact, takes that position in its interpretive guidance. See 29 C.F.R. app. § 1630.2(j) (1997). The Supreme Court, however, expressly refused to reach that issue. See Bragdon, 118 S. Ct. at 2207 ("In view of our holding, we need not address the second question presented, i.e., whether HIV infection is a per se disability under the ADA."). Had the Court relied on that rule, then it could have justified its decision not to send the disability issue to the jury by noting that a genuine issue of material fact could not exist on that issue given the inherent serious implications of HIV infection.
174. Risk assessments are particularly difficult kinds of assessments for judges or juries to make. Justice Breyer has argued that neither courts nor juries are qualified to make these assessments. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 58-59 (1993). Breyer's criticism, however, is mostly directed at how the regulatory system makes risk assessments. Although I have argued for deference to agency views in this Article, I am not suggesting that agencies should try to codify what is a "significant risk" under the ADA. While I recognize that lay people may not always make the best assessments of what kinds of risks should be considered significant, the kinds of risks addressed by the ADA are not the highly technical sort that Breyer discusses under the Occupational Safety and Health Administration or the Environmental Protection Agency.
175. See supra Part II.C.
176. See Bragdon, 118 S. Ct. at 2209-10.
177. Id. at 2202.
178. See id. (quoting 42 U.S.C. § 12201(a) (1994)).
179. See supra Part II.A.
180. See Bragdon, 118 S. Ct. at 2207 (declining to rule that HIV infection is a per se disability; instead, relying on the individualized nature of the plaintiff's disability claim).
181. 467 U.S. 837 (1984).
182. Id. at 842.
183. Id. at 844.
184. See 42 U.S.C. § 12201(a) (1994).
185. See id. § 12116.
186. See id. In 1990, the EEOC issued an advance notice of proposed rulemaking in which it sought comments on the definition of terms like disability, reasonable accommodation, and undue hardship. See 55 Fed. Reg. 31,192 (1990). Seven months later, the EEOC published a notice of proposed rulemaking. See 56 Fed. Reg. 8578 (1991). This proposed rulemaking included both regulations and an appendix containing interpretive guidelines.
187. See 56 Fed. Reg. 35,726 (1991).
188. See Conrail v. Darrone, 465 U.S. 624, 634 (1984).
189. Compare 42 U.S.C. § 12111(9) (1994) (denning "reasonable accommodation") with 29 C.F.R. § 1613.704(b) (1998) (defining "reasonable accommodation"); see also Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413, 444 (1991). Title I adopts the section 504 model for many provisions, but varies from it to some degree, particularly in adding a greater level of specificity. According to the Senate Committee report, Title II of the Act was largely an attempt to apply the prohibition against discrimination on the basis of disability set out in the section 504 regulations to all programs, activities, and services of state and local government. Id. at 444.
190. Compare 42 U.S.C. § 12111(9) (1994) (denning "reasonable accommodation") with 29 C.F.R. § 1613.704(b) (1998) (defining "reasonable accommodation"); see also Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413, 444 (1991). Title I adopts the section 504 model for many provisions, but varies from it to some degree, particularly in adding a greater level of specificity. According to the Senate Committee report, Title II of the Act was largely an attempt to apply the prohibition against discrimination on the basis of disability set out in the section 504 regulations to all programs, activities, and services of state and local government. Id. at 444.
191. See Burgdorf, supra note 185, at 444. It was the intent of Congress to work with the various agencies to preserve the intent of section 504. Subsequent to enactment of the 1973 law, staff of the Senate Committee on Labor and Public Welfare and the House Committee on Education and Labor worked closely with representatives of Health, Educational, and Welfare (HEW), the Department of Labor, and the Civil Service Commission to insure that implementation of the provisions of the Act would be accomplished in accordance with the intent of Congress. These meetings were generally useful and satisfactory. By-products of these discussions were the issuance on May 28 and July 2, 1974, by the Secretary of Health, Education, and Welfare of proposed regulations to implement the new Act which were in most respects reflective of underlying congressional intent, and the determination by the Committee that certain clarifying and perfecting changes in the Act would be required in order to permit the full implementation of Congressional intent. S. REP. No. 93-1297 (1974), reprinted in 1974 U.S.C.C.A.N. 6373, 6376. Nonetheless, Congress was not universally pleased with the regulations promulgated by federal agencies under section 504. See id. at app., reprinted in 1974 U.S.C.C.A.N. 6373, 6425-26 (letter from U.S. Senate Committee on Labor and Public Welfare to the Secretary of Labor expressing displeasure with the definition of "handicapped individual" as inappropriately narrow).
192. See 45 C.F.R. § 84.3(j)(1) (1978) (definition of "handicapped person"). This rule was adopted through notice and comment on May 4, 1977, see 42 Fed. Reg. 22,677 (1977), before section 504 was amended in 1978 to embody that definition of "handicapped person." See Rehabilitation Comprehensive Services and Developmental Disabilities Amendments of 1978, Pub. L. No. 95-602, § 122, 92 Stat. 2984 (codified as amended at 29 U.S.C. § 705(20) (1998).
193. 42 U.S.C. § 2000e1-2000e17 (1994).
194. 29 U.S.C. §§ 621-634 (1994).
195. The ADA contains a statement of findings and purpose in the statutory text. See 42 U.S.C. § 12101 (1994). The purpose of the ADA is to provide §clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." Id. § 12101(b)(2). Such language can be used to argue that the courts should interpret key definitional terms like "individuals with disabilities" broadly so that the 43 million Americans with disabilities can receive strong protection from discrimination. Because these findings and purpose are written directly into the statutory language, they are entitled to significant consideration under a plain meaning interpretation of the statute. Under Justice Scalia's view - that one should examine the statute holistically - the statutory text should be given meaning in light of Congress' clear statement of findings and purpose. Not all judges consider a plain meaning approach inconsistent with a legislative history approach. Although Justice Scalia explores plain meaning without regard to legislative history, Justice Stevens considers plain meaning in light of the legislative history. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (Stevens, J.) ("The message conveyed by the plain language of the Act is confirmed by an examination of its history."). But see id. at 452-53 (Scalia, J., concurring) ("Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent.").
196. Under the canons of statutory construction, remedial legislation should be intepreted broadly. See Peyton v. Rowe, 391 U.S. 54, 65 (1968) ("This approach to the statute is consistent with the canon of construction that remedial statutes should be liberally construed."); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) ("[Remedial legislation should be construed broadly to effectuate its purposes."). Canons of construction, however, have been held in ill-repute by scholars, for example, WILLIAM N. ESKRIDGE, JR. & PHILLIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION (1988) and judges, for example, Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 806 (1983) ("You need a canon for choosing between competing canons, and there isn't any."). One reason for this disregard for statutory canons is that "there are two opposing canons on almost every point." Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950). In particular, the remedial purpose canon is disfavored. See, e.g., East Bay Mun. Util. Dist. v. United States Dep't of Commerce, 142 F.3d 479, 484 (D.C. Cir. 1998) ("We have recently expressed our general doubts about the canon that remedial statutes are to be construed liberally, since virtually any statute is remedial in some respect."); Ober United Travel Agency, Inc. v. United States Dep't of Labor, 135 F.3d 822, 825 (D.C. Cir. 1998) ("[W]e have recognized that in a post-Chevron era such policy-oriented canons of statutory construction may not be used to evaluate agency interpretations of ambiguous statutes."); Bushendorf v. Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir. 1993) ("It will not do to intone the hoary canon that remedial statutes are to be construed liberally. That is one of the least persuasive of the canons; in Contract Courier Services, Inc. v. Research & Special Programs Administration, 924 F.2d 112, 115 (7th Cir. 1991), we called it 'useless.'"). Despite the ill-repute of the remedial purpose canon, some courts have invoked it to interpret various statutes liberally, including civil rights statutes. See, e.g., Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1235 (3d Cir. 1994) ("We also bear in mind that, as remedial statutes, Title VII and ADEA should be liberally construed to advance their beneficent purposes."); Irvington Moore v. Occupational Safety & Health Review Comm'n, 556 F.2d 431, 435 (9th Cir. 1977). Other courts have described this canon as a "tie-breaker." See, e.g., Mechmet v. Four Seasons Hotels Ltd., 825 F.2d 1173, 1177-78 (7th Cir. 1987). Other courts have used this canon as a tool to resolve "close cases." See, e.g., Hale v. Marsh, 808 F.2d 616, 621 (7th Cir. 1986). Finally, some courts have used this canon as a guideline that must give way to contrary legislative intent. See, e.g., Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 155 (D.C. Cir. 1984).
197. Under the canons of statutory construction, remedial legislation should be intepreted broadly. See Peyton v. Rowe, 391 U.S. 54, 65 (1968) ("This approach to the statute is consistent with the canon of construction that remedial statutes should be liberally construed."); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) ("[Remedial legislation should be construed broadly to effectuate its purposes."). Canons of construction, however, have been held in ill-repute by scholars, for example, WILLIAM N. ESKRIDGE, JR. & PHILLIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION (1988) and judges, for example, Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 806 (1983) ("You need a canon for choosing between competing canons, and there isn't any."). One reason for this disregard for statutory canons is that "there are two opposing canons on almost every point." Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950). In particular, the remedial purpose canon is disfavored. See, e.g., East Bay Mun. Util. Dist. v. United States Dep't of Commerce, 142 F.3d 479, 484 (D.C. Cir. 1998) ("We have recently expressed our general doubts about the canon that remedial statutes are to be construed liberally, since virtually any statute is remedial in some respect."); Ober United Travel Agency, Inc. v. United States Dep't of Labor, 135 F.3d 822, 825 (D.C. Cir. 1998) ("[W]e have recognized that in a post-Chevron era such policy-oriented canons of statutory construction may not be used to evaluate agency interpretations of ambiguous statutes."); Bushendorf v. Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir. 1993) ("It will not do to intone the hoary canon that remedial statutes are to be construed liberally. That is one of the least persuasive of the canons; in Contract Courier Services, Inc. v. Research & Special Programs Administration, 924 F.2d 112, 115 (7th Cir. 1991), we called it 'useless.'"). Despite the ill-repute of the remedial purpose canon, some courts have invoked it to interpret various statutes liberally, including civil rights statutes. See, e.g., Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1235 (3d Cir. 1994) ("We also bear in mind that, as remedial statutes, Title VII and ADEA should be liberally construed to advance their beneficent purposes."); Irvington Moore v. Occupational Safety & Health Review Comm'n, 556 F.2d 431, 435 (9th Cir. 1977). Other courts have described this canon as a "tie-breaker." See, e.g., Mechmet v. Four Seasons Hotels Ltd., 825 F.2d 1173, 1177-78 (7th Cir. 1987). Other courts have used this canon as a tool to resolve "close cases." See, e.g., Hale v. Marsh, 808 F.2d 616, 621 (7th Cir. 1986). Finally, some courts have used this canon as a guideline that must give way to contrary legislative intent. See, e.g., Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 155 (D.C. Cir. 1984).
198. Under the canons of statutory construction, remedial legislation should be intepreted broadly. See Peyton v. Rowe, 391 U.S. 54, 65 (1968) ("This approach to the statute is consistent with the canon of construction that remedial statutes should be liberally construed."); Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) ("[Remedial legislation should be construed broadly to effectuate its purposes."). Canons of construction, however, have been held in ill-repute by scholars, for example, WILLIAM N. ESKRIDGE, JR. & PHILLIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION (1988) and judges, for example, Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 806 (1983) ("You need a canon for choosing between competing canons, and there isn't any."). One reason for this disregard for statutory canons is that "there are two opposing canons on almost every point." Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950). In particular, the remedial purpose canon is disfavored. See, e.g., East Bay Mun. Util. Dist. v. United States Dep't of Commerce, 142 F.3d 479, 484 (D.C. Cir. 1998) ("We have recently expressed our general doubts about the canon that remedial statutes are to be construed liberally, since virtually any statute is remedial in some respect."); Ober United Travel Agency, Inc. v. United States Dep't of Labor, 135 F.3d 822, 825 (D.C. Cir. 1998) ("[W]e have recognized that in a post-Chevron era such policy-oriented canons of statutory construction may not be used to evaluate agency interpretations of ambiguous statutes."); Bushendorf v. Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir. 1993) ("It will not do to intone the hoary canon that remedial statutes are to be construed liberally. That is one of the least persuasive of the canons; in Contract Courier Services, Inc. v. Research & Special Programs Administration, 924 F.2d 112, 115 (7th Cir. 1991), we called it 'useless.'"). Despite the ill-repute of the remedial purpose canon, some courts have invoked it to interpret various statutes liberally, including civil rights statutes. See, e.g., Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1235 (3d Cir. 1994) ("We also bear in mind that, as remedial statutes, Title VII and ADEA should be liberally construed to advance their beneficent purposes."); Irvington Moore v. Occupational Safety & Health Review Comm'n, 556 F.2d 431, 435 (9th Cir. 1977). Other courts have described this canon as a "tie-breaker." See, e.g., Mechmet v. Four Seasons Hotels Ltd., 825 F.2d 1173, 1177-78 (7th Cir. 1987). Other courts have used this canon as a tool to resolve "close cases." See, e.g., Hale v. Marsh, 808 F.2d 616, 621 (7th Cir. 1986). Finally, some courts have used this canon as a guideline that must give way to contrary legislative intent. See, e.g., Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 155 (D.C. Cir. 1984).
199. The use of legislative history has its critics. Justice Scalia has suggested that young staffers may seek to transform obscure district court cases into the law of the land by planting language in congressional committee reports. See Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring). Even Judge Mikva, who is less skeptical of legislative history than Justice Scalia, acknowledges that colloquies on the floor of Congress are often not worthy of serious consideration. See Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 DUKE L.J. 380, 384 (1987). Nonetheless, because the ADA was passed by an overwhelming margin, its legislative history is arguably entitled to significant weight. See Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 276 (1996) (Stevens, J., concurring) (arguing that the drafting history is "useful to conscientious and disinterested judges" when a statute has "bipartisan support and has been carefully considered by committees familiar with the subject matter"). The House of Representatives approved the conference report on the ADA by a vote of 377-28 on July 12, 1990, and the Senate approved the conference report on July 13, 1990, by a vote of 91-6. See Congress Clears Sweeping Bill to Guard Rights of Disabled, CONG. Q. 2227 (July 14, 1990). Thus, the ADA is a consensus statute whose legislative history should arguably be given much deference.
200. The use of legislative history has its critics. Justice Scalia has suggested that young staffers may seek to transform obscure district court cases into the law of the land by planting language in congressional committee reports. See Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring). Even Judge Mikva, who is less skeptical of legislative history than Justice Scalia, acknowledges that colloquies on the floor of Congress are often not worthy of serious consideration. See Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 DUKE L.J. 380, 384 (1987). Nonetheless, because the ADA was passed by an overwhelming margin, its legislative history is arguably entitled to significant weight. See Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 276 (1996) (Stevens, J., concurring) (arguing that the drafting history is "useful to conscientious and disinterested judges" when a statute has "bipartisan support and has been carefully considered by committees familiar with the subject matter"). The House of Representatives approved the conference report on the ADA by a vote of 377-28 on July 12, 1990, and the Senate approved the conference report on July 13, 1990, by a vote of 91-6. See Congress Clears Sweeping Bill to Guard Rights of Disabled, CONG. Q. 2227 (July 14, 1990). Thus, the ADA is a consensus statute whose legislative history should arguably be given much deference.
201. Congress intended the definitions under the ADA to track the prior definitions contained in regulations promulgated by HHS or HEW under section 504 and the agencies have consistently followed that instruction. See generally Burgdorf, supra note 185, at 445-52 (discussing ADA legislative history and its relationship to prior HEW regulations).
202. 41 Fed. Reg. 17,871 (1976).
203. Id. § 1.
204. See Lane v. Pena, 518 U.S. 187, 206 n.8 (1996) (Stevens, J., dissenting). The responsibility for enforcing section 504 was subsequently transferred to the Secretary of HHS when HEW was divided into the Department of Education and the Department of Health and Human Services. See The Department of Education Organization Act, Pub. L. No. 96-88, 93 Stat. 669 (1979) (codified as amended at 20 U.S.C. §§ 3401-3510 (1994)).
205. 29 U.S.C. § 794 (1994).
206. See, e.g., Southeastern Community College v. Davis, 442 U.S. 397 (1979).
207. See, e.g., Bowen v. American Hosp. Ass'n, 476 U.S. 610 (1986).
208. 465 U.S. 624, 634 (1984).
209. Id.
210. 480 U.S. 273 (1987).
211. Id. at 279.
212. Id. at 279-80.
213. Id. at 280 n.5.
214. Professor William N. Eskridge, Jr., has explained the Supreme Court's deference to agency views as a matter of concern for congressional override. According to Eskridge, the 1987 "Congress (perhaps by veto-proof margins) favored a liberal approach to the Rehabilitation Act." William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation, 101 YALE L.J. 331, 403 (1991). According to Eskridge, what is important about this decision is the Court's concern of a congressional override, not that the Court considered it independently important to defer to agency views. Although Eskridge may be correct as a general matter in explaining how courts often decide difficult questions of statutory interpretation, this example does not fit his thesis as well. The litigants in Arline saw the case as addressing whether section 504 should cover individuals with AIDS, not only whether it should cover individuals with contagious diseases like tuberculosis. See Arline, 480 U.S. at 282 n.7. Given the hotly contested nature of the AIDS issue, particularly in 1987 when Arline was decided, it is hard to imagine that the Court calculated that Congress might override its views by veto-proof margins if it decided Arline differently.
215. See, e.g., James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 MICH. L. REV. 1 (1994).
216. Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(a) (1994).
217. See Pub. L. No. 92-261, 86 Stat. 107 (1972) (codified at 42 U.S.C. § 2000e-8 (1994)).
218. See Reorg. Plan No. 1 of 1978, 43 Fed. Reg. 19,807 (1978). The order stated that the "Equal Employment Opportunity Commission, after consultation with all affected departments and agencies, shall issue such rules, regulations, orders, and instructions and request such information from the affected departments and agencies as it deems necessary and appropriate to carry out this Order." Exec. Order No. 12,106, 44 Fed. Reg. 1053 § 5 (1979).
219. See 29 C.F.R. § 1604 (1966).
220. See 29 C.F.R. § 1605 (1967).
221. Id. § 1604.1.
222. Id. § 1604.3(a).
223. See EEOC v. Commercial Office Products Co., 486 U.S. 107, 115 (1988); EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981); Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977); Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975); Griggs v. Duke Power Co., 401 U.S. 424 (1970). For example, Griggs interpreted Title VII as forbidding tests having a disparate impact on the basis of race, "unless they are demonstrably a reasonable measure of job performance." Id. at 436. In reaching its decision, the Supreme Court relied on EEOC guidelines, concluding that the "administrative interpretation of the Act by the enforcing agency is entitled to great deference." Id. at 433-34. In a subsequent decision, the Supreme Court explained that it was deferring to the EEOC guidelines even though they were not promulgated pursuant to formal procedures established by Congress, because they constitute "[t]he administrative interpretation of the Act by the enforcing agency." Albermarle, 422 U.S. at 431.
224. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) (rejecting EEOC position that Title VII applies extratenitorially to regulate employment practices of United States employers employing United States citizens abroad); General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) (rejecting EEOC guidelines on coverage of pregnancy-based discrimination under Title VII).
225. See, e.g., Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (1994) (overturning Gilbert); Civil Rights Act of 1991, id. § 2000e(f) (overturning Arabian Am.).
226. See Eskridge, supra note 206.
227. professor Eric Schnapper has argued that The lesson of the corrective legislation is that not only the holding in these cases, but their underlying methodology as well, were fatally flawed. The "plain language" cases, like the disasters at Gallipoli, Dieppe, and Dien Bien Phu, are important as illustrations of errors to be avoided in the future. Eric Schnapper, Statutory Misinterpretations: A Legal Autopsy, 68 NOTRE DAME L. REV. 1095, 1103 (1993).
228. Section 628 of the ADEA specifically gave the Secretary of Labor authority to "issue such rules and regulations as he may consider necessary or appropriate for carrying out this chapter." 29 U.S.C. § 628 (1970). The Secretary's enforcement authority became effective eight days after the ADEA was enacted in 1967. See Pub. L. No. 90-202, § 15, 81 Stat. 607-08 (codified at 29 U.S.C. § 628 (1994)).
229. See Exec. Order No. 12,106, 43 Fed. Reg. 19,807 (1978).
230. See, e.g., Oscar Mayer & Co. v. Evans, 441 U.S. 750, 760-61 (1979).
231. 492 U.S. 158 (1989).
232. Id. at 162-64.
233. See id. at 163 (quoting 29 U.S.C. § 623(f)(2) (1988)).
234. See Betts v. Hamilton County Bd. of Mental Retardation, 631 F. Supp. 1198, 1204 (S.D. Ohio 1986).
235. See Betts v. Hamilton County Bd. of Mental Retardation & Developmental Disabilities, 848 F.2d 692 (6th Cir. 1988).
236. See Betts, 492 U.S. at 158.
237. 434 U.S. 192, 203 (1977). The issue in McMann was the lawfulness of a mandatory retirement plan that pre-dated the passage of the ADEA. The Court ruled that such a plan could not be a subterfuge because plaintiffs could not establish that the plan met the intent requirement embodied in the term "subterfuge." The plan failed to meet that requirement since the mandatory retirement rule was implemented before the ADEA became law. See id.
238. Age Discrimination in Employment Act Amendments of 1978, Pub. L. No. 95-256 § 2(a), 92 Stat. 189 (1978) (codified as amended at 29 U.S.C. § 623 (1994)). For further discussion, see Brudney, supra note 207, at 97-99.
239. The cost-justification requirement had its genesis, in an interpretive bulletin issued by the Department of Labor in January 1969, as one of the ways through which an entity could establish that its benefit plan was not a subterfuge. See 29 C.F.R. § 860.120 (1970). In 1979, when the cost-justification rule was promulgated as a regulation, it became the exclusive means of escaping classification as a subterfuge. See 29 C.F.R. § 860.120 (1980).
240. Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).
241. Id. at 843.
242. Employees Retirement Sys. v. Betts, 492 U.S. 158, 171 (1989).
243. See id. at 172.
244. Chevron, 467 U.S. at 843 n.9.
245. Betts, 492 U.S. at 175.
246. Id.
247. Id. at 187 (Marshall, J., dissenting).
248. Id. at 194.
249. Id. at 185.
250. See Amendment to ADEA, 29 U.S.C. § 623(f)(2) (1994) (overturning Betts).
251. See 29 C.F.R. app. § 1630.2(j) (1998).
252. See id. § 1630.16(f).
253. See W. § 1630.15(d).
254. The Third Circuit has created two rules of law that are inconsistent with the EEOC's position and serve to take some ADA cases from the jury. In McNemar v. Disney Store Inc., 91 F.3d 610 (3d Cir. 1996), the court held that a plaintiff is estopped from claiming he is a qualified individual with a disability under the ADA if he has sought Social Security disability insurance benefits because his disability precludes him from working. The Third Circuit holds the minority view on this subject. This view has recently been questioned by one Third Circuit judge. See Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997). The dominant view on this subject is that the Social Security Commission's definition of "disability" is not identical to that under the ADA. Under the ADA, one would ask whether an individual is qualified with reasonable accommodation. The reasonable accommodation inquiry is not part of the SSI test. Thus, other circuits have concluded that questions of whether an individual is qualified is a jury question in which the jury can consider the sworn statements that were given to the Social Security Commission as one factor in the ultimate determination of disability. In reaching this conclusion, the Third Circuit had to disregard the position taken by the EEOC as amicus. The Third Circuit has also adopted a per se rule for reasonable accommodation questions when collective bargaining agreements bar the accommodation requested by plaintiffs. See Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997). Although this per se view is the majority view in the circuits, it is inconsistent with the ADA's legislative history as well as the EEOC's position on this subject. The EEOC has stated in both its interpretive guidance and its Technical Assistance Manual that the terms of a collective bargaining agreement "may" be relevant to the question of whether an accommodation is reasonable, but the agency has not supported a per se rule of unreasonableness. See 29 C.F.R. app. § 1630.15(d) (1998); EEOC TECHNICAL ASSISTANCE MANUAL § 3.09, at III-16 (1998). Despite disregarding the EEOC's position on two issues in order to create per se rules adverse to plaintiffs on issues of whether they are a qualified individual with a disability, the Third Circuit has recently decided to support one controversial EEOC guideline. In Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933 (3d Cir. 1997), the Third Circuit decided to follow the mitigating measures guidance in determining whether an individual is disabled. The trial court had granted summary judgment to the defendant-employer in a case involving an individual with epilepsy. The plaintiff had suffered an epileptic seizure at work, was hospitalized for 17 days, and was given various restrictions by his physician for a five-and-a-half-month period. Taking a very narrow view of the meaning of "individual with a disability," the trial court had concluded that the plaintiff's six month restriction was temporary in nature and did not meet the "substantially limits" part of the statutory test. Concluding that the trial court "confuses the disease with its treatment," the court of appeals held that the decision should be reversed and the case remanded for jury determination on the issue of disability. See id. at 937. The Third Circuit also instructed the trial court to follow the EEOC's mitigating measure guidance on remand. Nonetheless, like the other courts that have considered this issue, the Third Circuit misunderstood the status of the guidance, even in reaching that determination. It stated that "the EEOC's guidelines constitute an appendix to the regulations and therefore do not command the same degree of deference as the regulations themselves." Id. at 937. It then cited a Third Circuit case in which the relevant interpretive rules were not subject to public notice and comment procedures. The Third Circuit therefore reached the correct conclusion that the guidelines should be followed, but used an inappropriately high threshold of proof to reach that conclusion.
255. It is hard to characterize the Tenth Circuit's attitude toward EEOC regulations and guidance, except to say that it selectively applies them to the disadvantage of plaintiffs. In Smith v. Midland Brake, Inc., 138 F.3d 1304 (10th Cir. 1998), the Tenth Circuit affirmed a grant of summary judgment for a defendant-employer using a highly controversial interpretation of the EEOC regulations on reassignment as a reasonable accommodation. In a two to one decision, the three judge panel concluded that a plaintiff was only entitled to reassignment as a reasonable accommodation if he could perform the essential functions of his current position with accommodation. In such cases, the Tenth Circuit ruled, a plaintiff may seek reassignment where the accommodation would have posed an undue hardship on the employer. It reached that conclusion by relying heavily on the EEOC guidance that states "[i]n general, reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship." Id. at 1308 (quoting 29 C.F.R. pt. 1630, app. § 1630.2(o) (1998)). The dissent faults the majority for taking that one sentence out of context. But more importantly, the Tenth Circuit is not able to find support in the statutory language, legislative history, or case law outside its circuit for that unusual position. While one might explain the result in Smith by saying that the Tenth Circuit believes strongly in the principle of regulatory deference, its earlier decision in Sutton v. United Airlines, Inc., 130 F.3d 893 (10th Cir. 1997), runs counter to that view. In Sutton, the Tenth Circuit was the first circuit court to disavow the EEOC's mitigating measures rule. The case involved twins whose vision did not meet their employer's guidelines in its untreated state but, with lenses, was virtually normal. The court elaborated that it need not follow EEOC guidance because the agency's regulations were promulgated pursuant to the APA rather than the ADA. Yet a year later in Smith, it appeared to be enamored with EEOC guidance and felt compelled to give meaning to one sentence of guidance that results in a decision contrary to the view of every other circuit that had considered the issue. Thus, it is unfortunately impossible to explain the Tenth Circuit's position without suggesting that it is applying or disregarding guidance for issue-outcome purposes.
256. 920 F. Supp. 792 (S.D. Mich. 1996).
257. See Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. 1997).
258. See id. at 762 (quoting 42 U.S.C. § 12102(2)(A) (1994)).
259. 29 C.F.R. app. § 1620.20) (1998).
260. Gilday, 124 F.3d at 766-67.
261. Id. at 768.
262. Id. at 763 n.2 (citations omitted).
263. Id. at 766 (citations omitted).
264. 519 U.S. 452 (1997).
265. Id. at 461 (citation omitted).
266. See supra text accompanying notes 177-193.
267. 499 U.S. 144 (1991).
268. 136 F.3d 854 (1st Cir. 1998).
269. Id. at 856.
270. Id. at 859.
271. The Arnold court said: We recognize that the EEOC interpretive guidelines are not controlling in the way that regulations promulgated pursuant to the Administrative Procedure Act, 5 U.S.C. § 552, are controlling. Nevertheless, such interpretive guidelines "'do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" They deserve at least as much consideration as a mere "internal agency guideline," which the Supreme Court has held is entitied to "some deference" as long as it is a permissible construction of the statute. Id. at 864.
272. Id. at 866.
273. 477 U.S. 57 (1986).
274. See supra Part III.A.
275. See supra text accompanying notes 177-193.
276. Bragdon v. Abbott, 118 S. Ct. 2196, 2202 (1998).
277. See id. at 2208-09.
278. See id. at 2209.
279. Section 12201(a) of the ADA instructs the courts to interpret the ADA no more narrowly than they or the administrative agencies previously interpreted section 504 of the Rehabilitation Act. The ADA specifically provides that "except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. §§ 791-794(e) (1994)) or the regulations issued by Federal agencies pursuant to such title." 42 U.S.C. § 12201(a) (1994).
280. See Bragdon, 118 S. Ct. at 2215 (Rehnquist, C.J., dissenting). Although the dissent referred to the pre-existing section 504 regulations, it never referred to the regulations promulgated by federal agencies to enforce the ADA pursuant to 42 U.S.C. § 12186(b). The majority, by contrast, referred both to section 12201(a), see 118 S. Ct. at 2202, and section 12186(b), see 118 S. Ct. at 2209.
281. See 42 U.S.C. § 12186(b) (1994 & Supp. II 1996).
282. See id. § 12116.
283. See Bragdon, 118 S. Ct. at 2209.
284. Id. at 2207 (citation omitted).
285. Id.
286. Id. at 2209.
287. See infra Part III.D.1.
288. See infra Part III.D.2.
289. See supra note 246 (discussing Third Circuit's consideration of the collective bargaining issue).
290. See supra Part III.C.
291. See supra Part III.B.2.
292. The EEOC guidance states: "The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices." 29 C.F.R. app. § 1630.2(h) (1998). Similarly, with respect to the substantial limitation requirement, the guidance states: "The determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." Id. § 1630.2(j). Under the mitigating measures rule, one would ask whether an insulin-dependent diabetic is an individual with a disability without reference to the mitigating effects of medication on that individual's day-to-day life. Thus, a diabetic who would fall into a coma if he or she failed to take insulin would be an individual with a disability irrespective of whether a combination of medication, diet, and exercise might alleviate virtually all diabetic symptoms. See id.
293. See Runnebaum v. NationsBank, 123 F.3d 156 (4th Cir. 1997).
294. See Gilday v. Mecosta, 124 F.3d 760 (6th Cir. 1997).
295. See Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir. 1997).
296. See Arnold v. United Parcel Serv., Inc., 136 F.3d 854 (1st Cir. 1998); Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998).
297. See Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933 (3d Cir. 1997).
298. See Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998).
299. See Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997).
300. See Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996).
301. See Harris v. H & W Contracting Co., 102 F.3d 516 (11th Cir. 1996).
302. Compare Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 n.3 (5th Cir. 1996) ("Arguably, on the other hand, had Congress intended that substantial limitation be determined without regard to mitigating measures, it would have provided for coverage under § 12102(2)(A) for impairments that have the potential to substantially limit a major life activity.") (emphasis added), with Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 806 (5th Cir. 1997) (finding individual not disabled even if one disregarded mitigating measures). For the Fifth Circuit's current middle-ground position, see Washington v. HCA Health Servs., Inc., 152 F.3d 464 (5th Cir. 1998).
303. See, e.g., Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985) (epilepsy); Scanlon v. Atascadero State Hosp., 677 F.2d 1271 (9th Cir. 1982) (diabetes); Bentivegna v. United States Dep't of Labor, 694 F.2d 619 (9th Cir. 1982) (diabetes); Davis v. United Air Lines, Inc., 662 F.2d 120 (2d Cir. 1981) (epilepsy); Davis v. Meese, 692 F. Supp. 505 (E.D. Pa. 1988) (diabetes); Salmon Pineiro v. Lehman, 653 F. Supp. 483 (D.P.R. 1987) (epilepsy); Martin v. Cardinal Glennon Memorial Hosp. for Children, 599 F. Supp. 284 (E.D. Mo. 1984) (diabetes); Chaplin v. Consolidated Edison Co. of N.Y., 579 F. Supp. 1470 (S.D.N.Y. 1984) (epilepsy); Cain v. Archdiocese of Kansas City, 508 F. Supp. 1021 (D. Kan. 1981) (epilepsy); Drennon v. Philadelphia Gen. Hosp., 428 F. Supp. 809 (E.D. Pa. 1977) (epilepsy).
304. But see Mackie v. Runyon, 804 F. Supp. 1508, 1510 (M.D. Fla. 1992) (finding individual with mental illness not substantially limited in one or more major life activities because medication stabilized her condition).
305. See Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 859-60 (1st Cir. 1998) (surveying legislative history).
306. See 29 C.F.R. app. § 1630.2(j) (1998).
307. Id. at 8593.
308. 56 Fed. Reg. 35,726, 35,727 (1991).
309. Id. at 35,741.
310. Pursuant to a Freedom of Information Act request, the EEOC produced 41 comments on the subject of mitigating measures from disability rights groups; federal, state, and local governments; private employers and unions. See Correspondence from EEOC to Ruth Colker (July 21, 1998) (on file with author). Nearly all the comments supported the need for a mitigating measures rule in the interpretive guidance. For example, the American Federation of State, County and Municipal Employees, AFL-CIO submitted lengthy comments in which it supported a mitigating measures rule. It explained that without such a rule, "persons with traditional disabilities who are functioning well because of assistive devices or equipment or medication or reasonable accommodations, or simply because the disability is in remission or the individual with the disability has learned to minimize or eliminate the effects of the disability" would be excluded from statutory coverage. Comment No. 91-0661-ADA at 3, submitted Apr. 29, 1991 (on file with author). Only two adverse comments were received. Edison Electric Institute filed comments on Apr. 29, 1991, stating that, [i]t should be made clear that if an individual, through the use of an aid, an appliance, or the taking of medication, can work despite a disabling condition, but the individual is unwilling to utilize such an aid or appliance, or to follow a regular course of medication, that individual should not be 'substantially limited' from the 'major life activity' of working. Comment No. 91-0405-ADA at 8, submitted Apr. 29, 1991 (on file with author). Similarly, the Associated General Contractors of Virginia, Inc., submitted comments on Apr. 17, 1991 in which they stated that, "'impairments' do not include readily correctable medical conditions." Comment No. 91-0114-ADA at 2, submitted Apr. 17, 1991 (on file with author). Despite these adverse comments, the comments provided overwhelming support for the EEOC's ultimate mitigating measures position.
311. See AMA v. United States, 887 F.2d 760 (7th Cir. 1989); National Black Med. Coalition v. FCC, 791 F.2d 1016 (2d Cir. 1986).
312. 480 U.S. 273 (1987).
313. See id. at 280 n.5.
314. Id.
315. See generally Recent Case, 111 HARV. L. REV. 2456 (1998).
316. 42 U.S.C. § 12201(c) (1994).
317. See supra Part III.B.2.
318. Courts disagree whether to defer to the legislative history of the ADA in deciding how to interpret the subterfuge clause, but no court has suggested that the history is ambiguous. For example, the Eighth Circuit has said: [W]e are unpersuaded by the legislative history Krauel offers us, in the form of statements by a few individual members of Congress, on the definition of subterfuge. Congress enacted section 501(c)(3) on July 26, 1990, after the Supreme Court's decision in Betts. See Pub. L. No. 101-336, 104 Stat. 327. Had Congress intended to reject the Betts interpretation of subterfuge when it enacted the ADA, it could have done so expressly by incorporating language for that purpose into the bill that Congress voted on and the President signed. We thus decline to employ the proffered legislative history as a basis for rejecting the Betts definition of subterfuge as controlling the meaning of the term in section 501(c). Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679 (8th Cir. 1996). It is true that four members of Congress made statements in the Congressional record rejecting the Supreme Court's interpretation of the term "subterfuge" under the ADEA. See 136 CONG. REC. H4624 (daily ed. May 17, 1990) (statement of Rep. Edwards); 136 CONG. REC. H4623 (daily ed. July 12, 1990) (statement of Rep. Owens); 136 CONG. REC. H4626 (daily ed. July 12, 1990) (statement of Rep. Waxman); 136 CONG. REC. S9697 (daily ed. July 13, 1990) (statement of Sen. Kennedy). However, key House and Senate reports also rejected the ADEA interpretation of subterfuge. See H.R. REP. No. 101-485, pt. 3, at 70 (1990); S. REP. No. 101-116, at 85 (1989).
319. See RUTH COLKER & BONNIE POITRAS TUCKER, THE LAW OF DISABILITY-BASED DISCRIMINATION 618 (2d ed. 1998) (reprinting EEOC guidance).
320. See Ford v. Schering-Plough Corp., 145 F.3d 601, 611 (3d Cir. 1998).
321. See Krauel, 95 F.3d at 679.
322. See Moderno v. King, 82 F.3d 1059, 1064 (D.C. Cir. 1996).
323. See, e.g., Pallozzi v. Allstate Life Ins. Co., 998 F. Supp. 204, 208 n.8 (N.D.N.Y. 1998); Conner v. Colony Lake Lure, No. 4-97CVO1, 1997 WL 816511, at *9-*10 (W.D.N.C. 1997); Leonard F. v. Israel Discount Bank, 967 F. Supp. 802, 806 (S.D.N.Y. 1997); Piquard v. City of East Peoria, 887 F. Supp. 1106, 1125 (C.D. Ill. 1995).
324. The Sixth Circuit initially adopted the EEOC's position, see Parker v. Metropolitan Life Ins. Co., 99 F.3d 181, 193-94 (6th Cir. 1996), but withdrew that position in its en banc decision, see Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 n.7 (6th Cir. 1997) (en banc).
325. See Lewis v. Aetna Life Ins. Co., 7 F. Supp.2d 743, 746-47 (E.D. Va. 1998); Doe v. Mutual of Omaha Ins. Co., 999 F. Supp. 1188, 1195 (N.D. Ill. 1998); Chabner v. United of Omaha Life Ins. Co., 994 F. Supp. 1185, 1193 (N.D. Cal. 1998); Attar & Attar v. Unum Life Ins. Co., No. CA 3-96-CV-0367-R, 1997 WL 446439, at *12 (N.D. Tex. 1997); World Ins. Co. v. Branch, 966 F. Supp. 1203, 1207-08 (N.D. Ga. 1997); Cloutier v. Prudential Ins. Co., 964 F. Supp. 299, 306 (N.D. Cal. 1997); Hollander v. Paul Revere Life Ins. Co., No. 96 CIV.4911 (BSJ), 1997 WL 811531, at *2 (S.D.N.Y. 1997); Doukas v. Metropolitan. Life Ins. Co., 950 F. Supp. 422, 430-31 (D. N.H. 1996).
326. One of the best examples of this trend is Doukas, 950 F. Supp. at 422. Doukas was the first court to publish an interpretation of the subterfuge clause in the ADA. It was aware of the Supreme Court precedent under the ADEA for interpreting that term, but decided to reject it because "this case presents one of those perhaps rare situations when the legislative intent is so clearly and unmistakably expressed that it can overcome the customary meaning of the words within the statute." Id. at 431. The court made no reference to the EEOC's position on this issue, although the EEOC's guidelines had been published for more than two years before this case was decided.
327. Congress, when enacting the ADA, expressly declined to apply Betts to the ADA's definition of "subterfuge," explaining that: The term "subterfuge" is used in the ADA simply to denote a means of evading the purposes of the ADA. It does not mean that there must be some malicious intent on the part of the insurance company or other organization, nor does it mean that a plan is automatically shielded because it was put into place before the ADA was passed. Indeed, there is currently a bill moving through Congress to overturn the Betts decision and we have no intention of repeating a decision with which we do not agree. 136 CONG. REC. H4624 (daily ed. May 17, 1990) (statement of Rep. Edwards); see also 136 CONG. REC. H4623 (daily ed. July 12, 1990) (statement of Rep. Owens); 136 CONG. REC. H4626 (daily ed. July 12, 1990) (statement of Rep. Waxman); 136 CONG. REC. S9697 (daily ed. July 13, 1990) (statement of Sen. Kennedy).
328. McMann held that benefit plans that pre-dated the passage of the ADEA could never constitute a subterfuge. See United Air Lines, Inc. v. McMann, 434 U.S. 192, 203 (1977).
329. 29 C.F.R. app. § 1630.16(f) (1998).
330. Betts held that the term "subterfuge" could not be interpreted to impose a cost-justification requirement on a defendant. See Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 175 (1989). For a careful discussion of the difference between the use of the term "subterfuge" under the ADEA and the ADA, see Brudney, supra note 207, at 99 n.395.
331. 29 C.F.R. app. § 1630.16(f) (1998). In other words, in order to avoid being considered an unlawful subterfuge, a disability-based insurance distinction requires a cost justification.
332. See Equal Employment Opportunity for Individuals With Disabilities, 56 Fed. Reg. 8578, 8603 (1991) (to be codified at 29 C.F.R. pt. 1630).
333. See COLKER & TUCKER, supra note 311, at 618.
334. See id. at 475-76.
335. Professor Eskridge has argued that the Supreme Court is more likely to be attentive to current legislative expectations than original legislative expectations when rendering interpretations of statutes. Eskridge, supra note 206, at 415. In particular, he argues that the Court looks over its shoulder at the possibility of a congressional override. Id. at 403. If his description of judicial conduct is accurate, then we should expect the Supreme Court to adhere to Congress' intentions under the ADA with respect to the meaning of the term subterfuge, because Congress has twice displayed its willingness to overturn a narrow interpretation of subterfuge.
336. Overturning Betts was part of a pattern in which Congress overturned narrow interpretations of civil rights laws issued by the Supreme Court. See generally Eric Schnapper, Statutory Misinterpretations: A Legal Autopsy, 68 NOTRE DAME L. REV. 1095 (1993). Professor Schnapper has argued that "[t]he lesson of the corrective legislation is that not only the holding in these cases, but their underlying methodology as well, were fatally flawed." Id. at 1103. If Schnapper is correct, then the Supreme Court should not insist on its Betts holding when it eventually considers the proper interpretation of the term "subterfuge" under the ADA.
337. It is interesting to note, however, that the next generation of ADA cases might continue to misuse these two devices, while not producing the disparate results reported in this Article. Plaintiff lawyers may start to make more conservative judgments about whether to bring ADA cases once they become more aware of these results. Those conservative judgments, in turn, should affect judicial outcome. It is only because I have been able to study the results before those results are well-known that I can connect the results to the misuse of certain devices by judges. The fact that the results are balanced, however, would not necessarily mean that those devices are not being misused. My conclusion that these devices are being misused results from my careful reading of the cases rather than the statistics themselves.
338. 29 U.S.C. § 794 (1994).
339. 42 U.S.C. § 2000e1-2000e1717 (1994).
340. 29 U.S.C. §§ 621-634 (1994).
341. I hope to report in a subsequent article whether judges tend to have equally negative (or positive) views of various types of claims brought in the same lawsuit.
342. Bragdon was a Title III case, not an employment discrimination case. Based on my conversations with lawyers practicing in the field and my general review of the cases, I believe these cases may generally be more successful than employment discrimination cases. I will explore that hypothesis more fully in a subsequent article.
343. See Brudney, supra note 31.
344. "No Opinion" means that the court issued a decision without any explanation whatsoever.
345. "Unpublished Copy" means the court issued a decision with explanation but did not make that decision available to the public through electronic or other sources. "Westlaw" means the court issued a decision with explanation which was made available on Westlaw but not in the official federal reporter.
346. "Federal Reporter" means the court issued a decision with explanation which was made available through the official reporter.