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ADA Landmarks Ahead

In the early 1990s, a Kentucky factory worker with carpal tunnel syndrome asked her managers to reassign her to her previous job after they had handed her more physically demanding tasks that, she says, caused new repetitive strain injuries. Around the same time in California, a mailroom employee with a back injury asked his bosses to

stop his transfer to a job that involved handling freight and let him stay where he was -- even though a company seniority policy would have given a more-senior employee the right to his mail-room job.

In both instances, the employers denied the requests. Now, the U.S. Supreme Court is poised to reexamine those decisions as it takes up two cases probing the rights of employees -- and employers -- under the Americans with Disabilities Act.

Employment lawyers say the outcome could shape the breadth of the 11-year-old law, which has been praised by human-rights advocates as landmark legislation that provides equal employment opportunity to the disabled -- but is often criticized by employers as confusing and too demanding.

ARE THEY COVERED? The first case, involving a Toyota employee now in her early 40s, is important because it could begin to define just how disabled an employee must be to be covered by the law. It's also significant because disorders associated with repetitive trauma are the leading workplace illness in the U.S., with 250,000 new cases reported by private industry in 1999, according to the Labor Dept. The court's views could help determine whether factory and office employees who suffer from carpal tunnel syndrome, tendinitis, or other injuries caused by repetitive motion, are covered by the ADA.

The seniority case, meanwhile, is the first in which the court will examine in detail the ADA requirement that employers make reasonable accommodations for disabled employees through job transfers, special equipment, or other means that don't create an undue hardship for the company. "The meat and potatoes of the ADA is in the reasonable

accommodation obligation, and that's what's at issue in Barnett," says employment lawyer Frank Alvarez referring to the name of the case, US Airways v. Barnett. Alvarez is a partner at Jackson Lewis Schnitzler & Krupman, a law firm representing management.

In Toyota Motor Manufacturing, Kentucky, Inc. v. Ella Williams, scheduled to be heard on Nov. 7, the carmaker is fighting an appeals court ruling that Williams was so physically impaired in her ability to perform manual tasks that she should have been covered by the ADA. Williams was hired at the company's Georgetown (Ky.) plant in 1990. After working with pneumatic tools, she developed pain in her hands, wrists, and arms, and was diagnosed with carpal tunnel syndrome. Her doctor restricted her permanently from work involving frequent lifting, repetitive use of her hands and arms, and other motions. Williams was transferred to an inspection unit with the least physically demanding work in the plant.

NOT DISABLED? However, three years later, she was asked to pick up additional duties -- including wiping cars -- that she says left her with renewed pain and new injuries. She eventually was fired, then sued the company in federal district court in Lexington, charging that Toyota had discriminated against her by failing to provide a reasonable accommodation.

Toyota argues in court papers that Williams' ailments didn't qualify as a disability under the law, because they merely prevented her from performing what the company describes as a narrow category of job-related tasks -- the additional duties in the inspection unit. The company says Williams did not show that she was limited in performing other manual tasks, such as doing the laundry or brushing her teeth.

"Lowering the threshold of the Act to capture workers who claim limited impairments -- but are otherwise capable of performing life's basic acts -- will inexorably siphon off the resources employers can devote to assisting truly disabled persons with a legitimate need for protection under the ADA," the company brief to the court declares. For the court to grant ADA protection to people other than those with severe disabilities would "dramatically expand the reach of the ADA beyond what Congress intended," says John G. Roberts Jr., a lawyer for Toyota at the Washington (D.C.) law firm of Hogan & Hartson.

HARD TO DRIVE. Williams' lawyer, Robert Leslie Rosenbaum, says in his court filings that the company underplays the extent of his client's impairment and asserts that Williams was left unable to perform numerous jobs in central Kentucky. In addition, he argues, Williams has said the disability made it difficult for her to do off-the-job tasks, such as dressing and driving a car.

In any case, Rosenbaum says, all but the "catastrophically disabled" would lack ADA protection under Toyota's interpretation of the law. "Is the definition of disability going to be rigorous and very strictly applied so as to exclude people from the benefit of the ADA, or is it going to be construed in a more expansive manner to include more people?" he asks.

The question of whether Robert Barnett, once an employee who moved cargo for US Airways, was disabled enough to be protected by the act is not at issue. His case, scheduled to be heard by the court on Dec. 4, centers on a different issue -- how far his employer had to go to assist him. Barnett had worked for the airline and its predecessors for eight years when, in 1990, he suffered a back injury that his doctor said ruled out heavy lifting and other tasks necessary for moving cargo. USAir transferred Barnett to a more suitable job in the mail room, where he worked for two more years.

BUMPED. Then, in 1992, an employee with more years at the company than Barnett asked for that mailroom slot. US Airways suggests in court papers that the job shuffle was necessitated by layoffs and that a number of jobs were made available to more senior employees in keeping with a decades-old seniority policy governing furloughs, transfers,

and other issues. Barnett's lawyers insist that the company has never presented evidence that the layoffs played a role in the transfer. They also say the company had made exceptions to the seniority policy in the past and that the rules weren't part of a binding employment contract.

Whatever the case, it's clear that a still-injured Barnett faced being bumped back into cargo, an outcome that prompted him to leave the company.

Eventually, Barnett sued US Airways in federal district court in San Francisco, arguing that by invoking its company seniority policy to require him to return to cargo, US Airways had discriminated against him in violation of the ADA. He claimed that permitting him to keep the mailroom job would have been a reasonable accommodation that would have let him remain gainfully employed. The question facing the court is whether US Airways' seniority system automatically trumps the company's obligations under the ADA.

PONDER OR PUNT. The US Airways seniority procedure was company policy, not part of a union contract. In the past, federal courts have carved exceptions to the ADA when the disability law conflicted with union contract rules, according to one of Barnett's attorneys, Claudia Center of the Employment Law Center at the Legal Aid Society of San Francisco. The Supreme Court could use the Barnett case to examine the interplay between collective bargaining agreements and the law -- or leave the matter for another day, Center says.

US Airways lawyers argue in their brief to the Supreme Court that Barnett was in effect asking for an accommodation to his lack of seniority, not his disability. If managers had made an exception to the policy, they say, Barnett would have been accorded preferential treatment. This, the company lawyers say, isn't mandated by the ADA, which is designed to level the workplace playing field, not to give the disabled a competitive advantage.

The company concedes in its brief that its interpretation could result in a disabled person having to leave a company if no other suitable job were available. "But," it adds, "the reasonable accommodation standard is intended to alleviate obstacles to equal employment opportunity, not to guarantee employment." The company declines to comment on the case.

FAVORITISM. Management lawyers say they fear that a victory for Barnett would undercut the idea that making employment decisions based on seniority brings some fair-play to the workplace. "By ignoring the [seniority] policy, you are impacting the rights of other employees," Alvarez says, adding that "in the real world, some employees might perceive accommodation as favoritism."

Barnett's lawyers reply that conflicts between seniority rules and disability law should be resolved case-by-case, depending on the facts. Moreover, Center says, if companies are allowed to let seniority or other corporate polices prevail automatically over the ADA, the law's promise of helping disabled people find and remain in jobs would be thwarted. "The result of this type of inflexibility, which we believe is in violation of the Americans with Disabilities Act, is that persons like Mr. Barnett end up unemployed," she says.

Barnett's lawyers also argue that even if layoffs were at stake, allowing him to stay in his job would not have led to a more senior person getting a pink slip, because Barnett himself had enough seniority to escape being downsized. Maintaining the status quo,

therefore, would have merely denied senior employees one transfer possibility, the lawyers claim.

It also would have guaranteed Barnett a paycheck -- which is the essence of both cases before the Supreme Court. Its decisions will almost certainly determine how many others with physical or mental limitations will be able to earn an income. By Pamela Mendels in New York

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