Chicago Tribune
The state of the workplace
The Supreme Court's session wraps up with some victories for employers, but all is not lost for the workers
By T. Shawn Taylor
Tribune staff reporter

June 23, 2002

In a session marked by an unusually high number of employment discrimination cases, the U.S. Supreme Court has been called "pro-management" and "hostile" toward the Americans With Disabilities Act for three controversial ADA rulings.

But legal experts say that closer inspection of key decisions from the current session, set to close this week, reveals cases so distinguished by their individual circumstances that it is difficult to draw any widespread conclusions from the rulings.

"You had a lot of niche cases. You could think of issues that affected far more people in other years," said Eric Schnapper, who teaches employment discrimination and civil rights law at the University of Washington. "On the whole, management did better than employees. But it's going to be hard to assess how important it all was."

Worker advocates have particularly lashed out against three ADA rulings they say limit the scope of the 1990 law. Management groups have trumpeted the ADA decisions as victories for their side, but others assert the court did not send an unequivocal signal on the ADA, but instead indicated that disability claims must be judged on a case-by-case basis.

"If there is a theme in these cases, it is that you have to have an individual determination," said Peggy Mastroianni, associate legal counsel for the Equal Employment Opportunity Commission in Washington. "I don't think these decisions uphold everything employers say over workers' rights."

What does it mean?

Some employee rights advocates play down the significance of such rulings as Toyota vs. Williams, the first ADA decision to raise flags for some disability-rights groups.

In that case, the court, applying a test critics say is not written into the law, ruled the plaintiff, who had carpal tunnel syndrome, was not disabled under the ADA because she did not have impairments that restrict her from performing tasks of central importance to most people's daily lives, such as combing her hair or brushing her teeth.

"It is illustrative of the court's hostility toward the ADA," said Jeremy Gruber, legal director for the National Workrights Institute in Princeton, N.J. But Mastroianni said the decision "really didn't change the law."

Schnapper said that in the Toyota case, the court essentially said the court of appeals got it wrong and sent it back. "Toyota was a non-event," he said.

But after Toyota, employers seemingly scored again in two other ADA cases--US Airways vs. Barnett in May and Chevron vs. Echazabal earlier this month.

In Chevron, the court unanimously upheld an EEOC regulation that allows an employer to refuse to hire a disabled worker if performing a particular job poses a direct threat to the worker's health.

Mastroianni believes the court tried to guard against unfair decisions by making it clear there must be a reasonable medical judgment and that employers cannot enforce broad stereotypes. "You can't just rely on what the company doctor says," she said, adding that on remand, the company will have to prove whether the job did pose a direct threat to the worker.

Alisa Arnoff of Scalambrino and Arnoff, a Chicago law firm that represents management, sees a downside to the Chevron decision for employers, saying it lacks clarity.

"We're asking the employers to play doctor. We recommend that employers try to accommodate if it's reasonable. I don't think that employers are in positions of making medical determinations," Arnoff said.

Gains despite setbacks

In US Airways vs. Barnett, the court said seniority usually trumps a disabled employee's right to be reassigned to another job. It also provided that employees may present evidence of special circumstances that would make an exception to a seniority rule reasonable under the law.

"They said an accommodation may be a preference but that doesn't mean it's not valid under the law," said Claudia Center of the Legal Aid Society-Employment Law Center in San Francisco and the plaintiff's attorney. "We lost on seniority, but we won on the issue that sometimes you have to change seniority, and we think that Mr. Barnett will fall under the exception."

Schnapper said Barnett is a good first opinion on the seniority rule. "It used to be seniority always trumps reassignment; now it's seniority more often than not. Time will tell how important the exceptions are."

Though displeasure with the ADA rulings gain the most attention, there were some clear victories for workers during the session, too.

The most recent was the National Railroad Passenger Corp. (Amtrak) vs. Morgan case in which the court barred the 180- to 300-day statute of limitations for filing a lawsuit in hostile work environment cases.

"Most discrimination is not usually a single incident. It's a series of incidents," Gruber said. "This decision says the court can look at previous situations if they're directly linked."

The Morgan ruling is particularly helpful for plaintiffs in sexual-harassment cases, said Schnapper, who wrote an amicus brief in the case.

May be low-impact

In EEOC vs. Waffle House, the court said the federal agency may file lawsuits on behalf of workers who are barred from suing their employers under mandatory arbitration agreements.

Ross Runkel, editor of the Employment Law Memo based in Salem, Ore., says while the Waffle House ruling is a victory for workers, he predicts it will have little impact.

"The EEOC doesn't have the money to go around picking up cases like this one," Runkel said. "Their priorities are such that the bulk of litigation needs to be in big cases where there are multiple employees and big employers."

Another case became important for the court's decision not to rule. In Adams vs. Florida Power Co., former employees charged the company's reduction in workforce had a disparate impact on older workers. The court was being asked to decide whether the disparate impact theory could be applied in age bias cases as it is in race and gender claims.

The court's failure to rule certainly was not helpful to the plaintiffs in that case, but Runkel cautioned against reading too much into what the court did not say.