Sunday, March 2, 2014
Nicole Porter (Toledo) has posted on SSRN her article The New ADA Backlash. She's presented on this and related several times recently, including at my law school, and I think it's spot-on. Here's the abstract:
Many believe the Americans with Disabilities Act (ADA) suffered from a significant backlash by courts, only corrected by the ADA Amendments Act (ADAAA) in 2008. Following the ADAAA, it seemed likely the judicial backlash would continue in new ways. My analysis suggests that although the backlash has not happened as dramatically as some feared, there is reason to anticipate a new backlash against the ADA.
The initial backlash to the ADA consisted of courts strictly interpreting the definition of disability so that very few cases made it past the threshold coverage question. This Article first seeks to determine whether courts are following Congress’s mandate in the ADAAA to broadly interpret the definition of disability, making it easier for an employee to get past the threshold question of whether the employee meets the statutory definition of disability. The answer to this first inquiry is “yes” — the courts are interpreting the definition of disability much more broadly, allowing many more plaintiffs to survive summary judgment on this issue.
However, a new backlash may be coming, and it could take two forms. First, courts could broadly construe the “essential functions of the position,” giving great deference to what the employer designates as the essential functions and thereby excluding individuals with disabilities from protection. And second, courts could use the ambiguity of the word “reasonable,” to hold that many accommodations are not reasonable, thereby eliminating the available remedies for employees with disabilities. My analysis of court decisions on these issues since the passage of the ADAAA shows somewhat mixed results.
The most interesting result is that there appears to be a real backlash against the ADA when the employee is requesting an accommodation related to the structural norms of the workplace — the hours, shift, schedule, attendance, and leave policies. Courts are quite reluctant to require employers to modify these structural norms of their workplaces. Based on this last conclusion, this paper explores why the structural norms of the workplace appear to be so immune to judicial scrutiny.