Third Circuit on Definition of Disability

The Third Circuit yesterday issued this opinion in Emory v. Astrazeneca Pharmaceuticals LP. In this ADA employment case, the district court had granted summary judgment to the defendant on the ground that the plaintiff's cerebral palsy did not constitute a "disability." The Third Circuit reversed. The court of appeals held that the plaintiff had presented sufficient evidence to create a triable issue on two theories: that his condition substantially limited the major life activity of performing manual tasks, and that it substantially limited the major life activity of learning. On the manual tasks theory, the court engaged in the following analysis:

So, while the District Court stressed that Emory could “operate a cleaning business, perform as a clown, counsel families as a mediator, and assist his community as a firefighter,” it ignored evidence that Emory cannot tie his shoes or necktie, open a jar, cut his nails, perform various household chores and repairs, remove heavy dishes from the oven, change a diaper, carry his children up the stairs, or cut his own meat with a knife and fork. These latter activities, which are but a few examples demonstrative of how very manually impaired Emory is, are “of central importance to people’s daily lives,” and Emory is either completely without ability or severely
restricted in his ability to perform them.

The crux of the inquiry lies in comparing the way in which Emory is able to perform activities, if at all, with the way in which an average member of the general population performs the same activities. An average person, for example, thinks nothing of getting dressed, whether or not the task includes buttons, zippers, laces or sleeves. For Emory, the act of dressing presents huge hurdles, some of which he can overcome through accommodations or the help of another person, and many of which he cannot. “That [a plaintiff], through sheer force of will, learned accommodations, and careful planning, is able to perform a wide variety of activities despite his physical impairments does not mean that those activities are not substantially more difficult for him than they would be for an unimpaired individual.” Ordahl v. Forward Tech. Indus., Inc.,
301 F. Supp. 2d 1022, 1028-29 (D. Minn. 2004). What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA.

Here too, AstraZeneca has offered evidence of Emory’s force of will, perseverance, and some learned accommodations; however, the fact that Emory has been able to become a productive member of society by having a family, working, and serving his community does not negate the significant disabilityrelated obstacles he has overcome to achieve, nor does it undermine his inability, or significantly restricted ability, to learn and perform numerous manual tasks of central importance to daily life.

On the learning theory, the court reasoned as follows:

Emory presented evidence in the record that he completed high school, but on a special education track; during his sophomore year of high school he was reading at a secondgrade level. He has had his I.Q. tested three times, with the highest score registering in the mid-eighties (the two other scored registered in the seventies), falling into the borderline range of intellectual functioning. Emory’s limitations interfere with his ability to read and process information, as well as basic math skills or the filling out of paperwork. Emory can complete exams only if given orally, and even then, requires additional time – this seems to be a result of both his own difficulty with reading and his inability to express himself in writing. Experience has proven that Emory is incapable of learning as do other employees, through manuals or brief instruction or training. Diagnostic tests administered over a span of years establish that Emory’s math, reading and cognitive skills are far below those possessed by average persons in the general population – test results reveal poor calculation and computational abilities, literacy skills which place him in the bottom of the first percentile according to one test, and a deficient learning curve.

I like the result in this case -- it's a welcome break from the more typical pattern of unduly narrow readings of the ADA's disability definition. But I can't say I'm thrilled by the congratulatory tone of "overcoming" that runs through the opinion. In some ways, though, it's inevitable that courts reading the ADA's definition of disability are going to interpret the term in the light of their own preconceptions about disability, including the idea that people with disabilities are either to be pitied or to be praised as courageous.