Wednesday, August 11, 2010

"Preferences" and the ADAAA

New Image When the ADAAA amended the Americans with Disabilities Act in 2008, it included a provision entitled “Claims of No Disability,” which provides simply that “Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.” 42 U.S.C. § 12101. Given that one has to be a qualified individual with a disability to be protected by most of the statute’s provisions (the major exception relates to medical exams), the inclusion of this provision seemed a little surprising. 

Nor does the legislative history provide much in the way of insights.  For example, a Section-by-Section Analysis, although providing some meaningful discussion of other sections of the ADAAA, contents itself with saying only that this provision “[p]rohibits reverse discrimination claims by disallowing claims based on the lack of disability.” H.R. REP. No. 110-730 (2008). Unlike other portions of the Analyses, there is no indication that Congress believed it was overriding misguided case law. Thus, Jeannette Cox, Crossroads and Signposts: The ADA Amendments Act of 2008, 85 IND. L.J. 187 (2010), argues that the provision is unnecessary because the entire structure of the ADA makes clear that only disabled individuals have claims.

While I agree with Jeannette, that only deepens the mystery as to why someone thought it a good idea to include this provision in the ADAAA.  Maybe just a lawyer-like excess of caution. Or maybe a more subtle effort to influence the debate about whether “reasonable accommodation” is a kind of  “affirmative action” or “preference?” 

Although scholars have objected to “preference” language for accommodating disabled individuals, Anita Silvers, Protection or Privilege? Reasonable Accommodation, Reverse Discrimination, and the Fair Costs of Repairing Recognition for Disabled People in the Workforce, 8 J. Gender,Race, & Just. 561 (2005), the Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), explicitly rejected the notion that accommodation had to stop short of preferences for disabled workers.

Nevertheless, the “preference” language continues to influence circuit court decisions.  Before Barnett, a number of decisions declared that the ADA does not command “discrimination in favor of the disabled,” e.g., Matthews v. Commonwealth Edison Co. 128 F.3d 1194 (7th Cir. 1997), but even after the Supreme Court spoke, the preference objection continues to pop up. For example, Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007), held that, because the “the ADA is not an affirmative action statute,” it does not require an employer in filling a position to prefer a qualified disabled employee to a more qualified nondisabled worker. And while the Supreme Court granted certiorari in Huber, the case settled before the Court could decide it.

Might the provision of the ADAAA barring claims by the nondisabled provide ammunition when the Huber issue arises again before the Court? Or is this language too oblique to have much chance of influencing the Justices?

Thanks to Caitlin Petry


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It strikes me, as you say, as a legislative preemptive strike against claims of reverse discrimination, to head off the need for another General Dynamics Land Systems, Inc. v. Cline. Non-disabled persons mostly lack legislative "standing" to bring ADA claims, rendering this section practically superflous. But non-disabled persons are not entirely blocked out of the statute (record-of and regarded-as claimants may not presently be disabled; pre-hiring inquiries and testing claims could also be brought by the able bodied).

Posted by: Paul Mollica | Aug 11, 2010 7:23:48 AM

It authorizes affirmative action by precluding claims by non-disabled workers against employers who choose to prefer those with disabilities.

Similarly, employers may prefer (discriminate in favor of) older workers and against younger workers without violating the ADEA.

Posted by: kent | Aug 11, 2010 4:13:43 PM

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