Monday, April 03, 2006

Gastrointestinal Disorders and the ADA

New on Westlaw: Lawrence D. Rosenthal, Can't Stomach the Americans with Disabilities Act? How the Federal Courts Have Gutted Disability Discrimination Legislation in Cases Involving Individuals with Gastrointestinal Disorders and Other Hidden Illnesses, 53 Cath. U. L. Rev. 449 (2004). From the introduction:

One trend that has developed at all levels of the federal court system demonstrates that individuals suffering from gastrointestinal disorders, more specifically ulcerative colitis and Crohn's disease, have been unsuccessful when pursuing claims under the ADA. These individuals face a difficult position in that courts conclude either that they are not "sick enough," and therefore do not have a disability under the ADA, or that these individuals do have a disability, but are "too sick" to perform the essential functions of their jobs with a reasonable accommodation. Perhaps because these diseases are not accompanied by "obvious" symptoms (such as blindness, deafness, or mobility impairments), and perhaps because these employees are not seen as people with disabilities, the sufferers of these "hidden" illnesses face an uphill battle when attempting to pursue a disability-based discrimination claim. Despite the "hidden" nature of these diseases, most of the people who suffer from these illnesses need the protection of a federally legislated remedy such as the ADA.

This Article will first address the nature of these "hidden" gastrointestinal diseases and the various treatment options available to those who suffer from them. The Article will then analyze many cases from the various federal courts in which sufferers of these illnesses have attempted to use the ADA or the Rehabilitation Act to recover for the adverse employment actions they experienced. This section of the Article focuses on the "not sick enough" and "too sick" dilemmas.

After addressing the cases in which the plaintiffs were either "not sick enough" or "too sick," the Article then highlights some of the other problems these plaintiffs have faced when attempting to assert ADA claims--problems which occurred either at the initial stage of the litigation or after the plaintiffs had achieved some success at the lower court. Next, this Article will address some cases in which plaintiffs with these illnesses achieved some success, although for the most part, these successes occurred at the very preliminary stages of litigation. Finally, this Article will suggest some solutions to this problem and will reccommend how plaintiffs with these gastrointestinal illnesses (and other "hidden" illnesses) could obtain some type of legal relief.

This Article demonstrates that despite the initial optimism behind the ADA, many of the people who need the protection of the Act have not been able to access that relief. This Article's purpose is not to argue that every individual with colitis, Crohn's disease, or any other "hidden" illness is entitled to prevail on an ADA claim. However, this Article demonstrates that people with these illnesses face an uphill battle when attempting to apply for relief under the ADA, and that the current interpretation and application of the ADA severely restrict the number of individuals who achieve success under the Act. Unless, and until, either Congress acts to limit the courts' conservative interpretation of the ADA, or the courts change the pro-employer interpretation of the ADA, the "once-closed doors" to which President Bush referred when signing the ADA into law will remain closed and secured with a very strong lock.


Blogger Mary K. Day-Petrano said...

Add autism to the gastrointestinal disabilities, as autistics have these problems, too, and also food allergies. But, I have a hard time seeing how autism would not be protected, since there are multiple associated disabilities with autism and the totality of the autism would inescapably be substantially limiting in one or more major life activities in most cases. As for the "too sick" dilemma, autism is really a disability of developmental imbalances, some hyperdeveloped, and others underdeveloped, so this "too sick" dilemma may not apply in a significant number of autism cases, depending on what essential function is in question.

2:27 PM  

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