Befort Empirically Analyzes Case Outcomes Under the ADAAA

New on SSRN: Stephen F. Befort, An Empirical Analysis of Case Outcomes Under the ADA Amendments Act, 70 Wash. & Lee L. Rev. ___ (forthcoming).  The abstract:

Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines all reported federal court summary judgment decisions arising under Title I of the ADA for a forty-month period extending from January 1, 2010 to April 30, 2013. The study coded the pre-ADAAA and post-ADAAA decisions for both disability standing determinations and for rulings on whether the plaintiff was qualified for the job in question. These preliminary data show that the federal courts are granting employers a significantly smaller proportion of summary judgment rulings under the ADAAA on the basis of a lack of disability status. In addition, the ADAAA decisions exhibit a greater prevalence of rulings on the issue of whether the plaintiff is a qualified individual. On the other hand, the post-amendment decisions show an increased tendency for the courts to find that the plaintiff is not qualified. While the rate of increase in plaintiff victories on the disability issue is outpacing the rate of increase in plaintiff losses on the qualified issue, the latter phenomenon suggest a continuing judicial unease with disability discrimination claims generally and with reasonable accommodation requests more specifically.

Student Note on the Nexus Requirement in Reasonable Accommodation Law

Just out: Note, Three Formulations of the Nexus Requirement in Reasonable Accommodations Law, 126 Harv. L. Rev. 1392 (2013).  From the introduction:

The concept of reasonable accommodation is fundamental to the American disability law regime, yet it has proved as slippery as the concept of disability itself.  Underlying much of the difficulty is disagreement over the appropriate relationship between an accommodation and the disability-related obstacles it is aimed at removing. Just as it is not illegal to discriminate against a member of a protected class for reasons unrelated to her protected status, the Americans with Disabilities Act  (ADA) does not require accommodations that are not related to a person's disability. But this seemingly simple concept has produced a muddled, often self-contradictory body of case law. Disability statutes provide little guidance to the judges who must decide whether a dog is properly understood as a needed therapy animal or a household pet, whether an alternative examination method is an innovative accommodation for dyslexia or a clever way of gaming the test, and whether a request to transfer to a different work setting is genuinely related to the disabling aspects of posttraumatic stress disorder.  This Note seeks to classify the various approaches that courts have brought to the so-called “nexus requirement,” to examine the beliefs about disability that are implicit in these approaches, and to offer some ways in which courts might reconcile those beliefs with the realities of disability. 

A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, residential living, or public life to the same extent as the nondisabled. The range of possible accommodations is in theory limited only by the human imagination: it can include changes to physical environments and time schedules, adjustment of requirements and policies, and provision of assistive devices, just to cite a few examples.  The Supreme Court has held that exceptions to workforce seniority rules are not necessarily off limits, and courts have recently entertained the idea of including commuting-related accommodations as well.  Given this seemingly untethered flexibility, perhaps it was inevitable that courts interpreting disability-rights statutes would search for some principle to limit the costs incurred by businesses, landlords, and governments in complying with disability law.

* * * 

Thus, the lower federal courts have been left largely to their own devices, and many commentators have been unhappy with the results. These scholars have typically treated the nexus requirement as a straightforward binary issue, generally assuming that courts either scrutinize the nexus or do not.  But the existing variety of judicial treatments calls for a more comprehensive, nuanced framework. This Note introduces a tripartite scheme for classifying the ways in which courts have attempted to reconcile statutory nexus requirements with the factual uncertainties inherent in disability. The first, discussed in Part I, requires the requested accommodation to bear a direct causal relationship with the substantial limitation of a major life activity that the plaintiff alleges. The second, discussed in Part II, asks whether the requested accommodation is more logically integrated with the disability or with some other aspect of the plaintiff's circumstances. The third, discussed in Part III, conceptualizes disability broadly and defers to the judgments of individuals on issues related to their own intimate life experiences. Each formulation has merit, yet none can resolve every case in a way that satisfies the diverse interests at stake in the American disability law regime. These categories are interrelated and far from mutually exclusive; courts have applied very different reasoning to different areas of disability law, and some have even shifted their analyses within a single opinion. Nonetheless, the framework may serve to illuminate the complexities of the nexus inquiry, and Part IV discusses the ways in which judges might employ its insights to compensate for the shortcomings of their own understandings of disability.

An interesting discussion of an important issue.  I don't think the first theory -- direct causal relationship with the substantial limitation of the major life activity -- can make any sense after the ADAAA, where for a lot of people the substantial limitation will be something entirely internal to the body (because the relevant major life activity will be a "major bodily function").  Of course, I didn't think the first theory made a lot of sense before!

Travis on Impairment Discrimination

Up on SSRN: Michelle A. Travis, The Part and Parcel of Impairment Discrimination, __ Emp. Rts. & Emp. Pol'y J. ___ (forthcoming).  The abstract:

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the status of an independent protected class under federal antidiscrimination law. The ADAAA's effective elevation of impairment to protected class status demands a deeper understanding of the ways in which impairment discrimination - as distinct from disability discrimination - manifests itself in the workplace. This Article explores one aspect of that larger inquiry by analyzing whether impairment discrimination encompasses employment decisionmaking based on the symptoms of an impairment or on the mitigating measures that one uses for an impairment. This Article demonstrates that understanding symptom-based and mitigation-based decisionmaking as a form of impairment discrimination is not only consistent with the statutory language and legislative intent, but also accurately reflects the social, medical, and practical reality of what it means to be "impaired."

Iowa Appellate Court: ADAAA Covers Severe Allergies

See this story, which begins:

Iowa residents who suffer from occasional medical attacks such as those those from severe allergies and epilepsy are protected from discrimination by the federal Americans With Disabilities Act, the Iowa Court of Appeals ruled Wednesday. 

The case involved Shannon Knudsen, 30, a mother who in May 2011 sued Tiger Tots Community Child Care Center in Madrid, Iowa, after the facility declined to accept her child because of the child's tree nut allergy. 

A district court had ruled that the Iowa Civil Rights Act does not protect the child. The appeals court, however, said the lower court erred in not considering a 2008 amendment to the Americans With Disabilities Act that may protect the child from discrimination.

The opinion in Knudsen v. Tiger Tots Community Child Care Center Corporation can be found here.  What's interesting about the case is that the Iowa legislature did not amend its Civil Rights Act after Congress passed the ADA Amendments Act to explicitly incorporate the new federal definition of disability.  But the court held nonetheless "that federal law" -- including the ADAAA -- "establishes the framework for an analysis of 'disability' under state law."  Judge Gayle Nelson Vogel, dissenting, argued that the court was usurping the legislative function by reading the state statute as incorporating the ADAAA.

NPR on DOJ Settlement with Lesley University Over Meal Plans for Students with Food Allergies

See this story, which begins:

Many a college student lives off of microwavable meals – but some do it not by choice but because they're worried school food might make them sick. 

They may have celiac disease, a digestive ailment caused by gluten, or life-threatening allergies to foods like peanuts — both are on the rise. But even as more people become aware of the issues, schools and institutions may lag behind. 

Now some food allergy advocates are celebrating what they see as a shifting legal trend: schools and other institutions required to treat food allergies as a disability. They've found an ally in the Department of Justice. 

DOJ's Civil Rights Division announced last month that the Americans With Disabilities Act applies to students at Lesley University in Cambridge, Ma., who claimed that the school's food services and meal plans were inadequate for their needs. It was the first food allergy-related settlement under ADA in higher education, says a DOJ spokeswoman.

As the story notes, this sort of settlement likely wouldn't have been possible before the ADA Amendments Act.

N.D. Ill.: Under ADAAA, Asthma Triggered by Strong Perfume Might Be Disability

A couple of weeks ago, Judge John A. Nordberg of the United States District Court for the Northern District of Illinois issued a ruling denying the defendants' motion to dismiss in Kobler v. Illinois Dept. Human Services, 2012 WL 5995836 (N.D. Ill., Nov. 30, 2012).  Kobler, a nurse who worked at a mental health facility operated by the defendants, alleged that they failed to accommodate her asthma, which was triggered by exposure to strong perfumes and fragrances.  The defendants moved to dismiss.  Among other things, they argued that Kobler's "asthma cannot qualify as substantially limiting if it is only triggered when she is exposed to a fragrance."  They cited "several cases holding that an intermittent flare-up is not enough to render a condition substantially limiting."  The court rejected that argument.  The court found persuasive Kobler's argument that "defendants' cases were decided before the ADA Amendments Act of 2008 expanded the definition of disability," and that "following the 2008 amendments, courts have found episodic conditions to be covered if they would substantially limit a life activity when those conditions were active."

S.D. Miss. Fails to Give Effect to ADAAA

Just over a week ago, Judge Henry T. Wingate of the United States District Court for the Southern District of Mississippi issued an opinion and order granting the defendants' motion for summary judgment in Flynt v. Biogen Idec, Inc., 2012 WL 4588570 (S.D. Miss., Sept. 30, 2012).  Flynt is an employment case.  Flynt (essentially a pharmaceutical sales representative) was diagnosed with depression and anxiety, allegedly as a result of his supervisor's abusive and hostile conduct; his symptoms included projectile vomiting, diarrhea, and panic attacks (which continued for years).  After his diagnosis, Flynt took a six-month disability leave, and the employer held his job for him.  At the end of the leave, Flynt offered to return if he could be assigned to a different supervisor.  But the employer said that was impossible because only one supervisor was assigned to the region.  When Flynt didn't return to work, the employer fired him.  All of this conduct took place after the effective date of the ADA Amendments Act.

Flynt sued under the ADA, and the employer moved for summary judgment.  The district court granted the motion on the ground that Flynt did not have a disability.  The court relied exclusively on pre-ADAAA regulations and cases -- including the Supreme Court's Sutton and Toyota cases, which the ADAAA's statutory findings expressed Congress's intent to overturn:

An individual is “substantially limited” in working when he is

significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
Id., § 1630.2(j)(3)(I).

In this case, plaintiff has not shown that his impairment prevented him from doing a broad class of jobs; he has only alleged that he could not work with Richards. Yet, even his own physician did not restrict him from working with Richards. Plaintiff does not contend that he could not work at his same job if he were assigned another supervisor.
The court agrees that its prior decision in Ghoston v. Nissan North America, Inc., No. 3:05cv766–HTW, 2008 WL 879737 (S.D. Miss. Mar 30, 2008), cited by defendant, is controlling in the instant case. In Ghoston, a Nissan employee was diagnosed with depression and anxiety and placed on a temporary medical leave. After a period of leave, his psychiatrist recommended that he could return to work if he were placed with a different supervisor. As did Biogen, Nissan rejected this “accommodation,” and the employee did not return to work. The employee then sued under the ADA.
This court granted summary judgment in favor of Nissan, stating the following:
This residual restriction, however, establishes no ADA “disability” because even permanent inability to work under a specific supervisor does not imply any substantial limitation on major life activities. It is well-settled that the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working and therefore does not constitute a “disability” under the ADA.
Id. at *4.FN5

FN5. In support, this court cited Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir.1996), cert. denied, 519 U.S. 1093 (1997); Toyota Mfg., Kentucky, Inc. v. Williams, 532 U.S. 184 (2002) (employee must have impairment that prevents or severely restricts activities of central importance to most people's daily lives; inability to do repetitive work with hands or arms at or above shoulder level provides insufficient evidence or substantial limitation in major life activity); Moreno v. Brownlee, 2004 WL 34860, *4 (5th Cir.2004); Price v. Marathon Cheese Corp., 119 F .3d 330, 336 (5th Cir.1997).

As the defendant notes in its memoranda, this court cited numerous cases that support the proposition that inability to work with a specific person does not establish disability, nor does an employer have a duty under the ADA to accommodate such a restriction. The court finds very little distinction in the case now before it, and these legal precedents are controlling herein.

The court acknowledged Flynt's argument that the ADAAA had overturned those prior precedents, but it rejected the argument:

The court finds that the amended Act does not change the definition of disability or make all physical or mental impairments disabilities. Even under the amendments, a disability is defined as “a physical or mental impairment that substantially limits one or more major life activities.” 29 U.S.C. § 12102(1). The plaintiff has not presented any evidence which would confirm that his depression and anxiety limits him in any major life activity. Not being able to work with Richards, as a matter of law, does not substantially limit any major life activity of working. See Hatfield v. Quantum Chemical Corp., 920 F.Supp. 108, 110 (S.D.Tex.1996) (not being able to work with supervisor did not substantially limit major life activity); Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th Cir.2000) (personality conflict with supervisor does not establish disability). The conflicts plaintiff had with Richards, even if they caused depression and stress, simply cannot establish disability under the law. 

As regards the major life activity of working, the Fifth Circuit has held: “When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, 527 U.S. 471, 483 (1999). See also Bridges v. City of Bossier, 92 F.3d at 334 (holding that a broad class or range “implies more than two job types.”). In this case, plaintiff only contends that he cannot work with his supervisor—certainly not a “broad class of jobs” as he is required to show.

Now I don't know how the plaintiff's lawyer presented his case, and the defendant had a decent (though hardly airtight) argument that it provided a sufficient reasonable accommodation here, but that analysis of the definition-of-disability issue is just wrong.  Based on the evidence Judge Wingate recounts, the court shouldn't have even gotten to the question of substantial limitation in the major life activity of working.  Flynt's impairment seems clearly to have caused a substantial limitation in the digestive and bowel functions (which the ADAAA expressly defines as major life activities).  One of the key purposes of the ADAAA was to expand the other aspects of the disability definition so that courts would not have to reach the substantial-limitation-in-working question.

D.N.M.: Under ADAAA, Back Injury that Prevents Lifting More than 60 Pounds or Climbing Utility Poles May Be a Disability

Last week, Judge Martha Vazquez of the United States District Court for the District of New Mexico issued an opinion denying a motion to dismiss in Rico v. Xcel Energy, Inc., ___ F. Supp.2d ___, 2012 WL 4466631 (D.N.M., Sept. 25, 2012).  Rico experienced a back injury at work, which prevented him from lifting more than 60 pounds or climbing utility poles -- both of which were requirements of his position.  He requested a transfer to a position for which he would not have to lift more than 60 pounds or climb utility poles, but his employer rejected that request and terminated him (though it ultimately rehired him in a lower-paying position and wiped out his seniority).  He sued under the ADA.  The employer moved to dismiss on the ground that Rico did not have a disability, because the inability to lift more than 60 pounds or climb utility poles did not substantially limit any major life activity.

The court denied the motion.  The employer had relied on pre-ADAAA cases holding that even more severe lifting restrictions (e.g., no more than 25 pounds) did not substantially limit major life activities, but the court concluded that those cases were overturned by the ADAAA.  The court explained:

The express language of the ADAA and its interpretative regulations thus call into question the continued precedential value of pre-amendment cases, such as those cited by Defendants, which well might have applied a higher degree of functional limitation than is now permissible under the statute to determine whether lifting restrictions are stringent enough to qualify an individual as disabled. 

* * * 

Under the broadened standards of the ADAAA, the Court finds Plaintiff's allegations as to his disability sufficient to withstand the pleading requirements of Rule 12(b)(6). According to the Complaint, Plaintiff's condition renders him unable to climb utility poles or engage in heavy lifting. Post-surgery, his doctor limited him to work that did not involve lifting over sixty pounds or climbing utility poles. Moreover, Southwestern recommended that Plaintiff apply for long-term disability benefits. These allegations, read in the light most favorable to Plaintiff, are sufficient to raise an inference that Plaintiff was disabled at the time of his termination. Accordingly, the Court would be premature in dismissing Plaintiff's ADA claim at this stage of the litigation.

Interesting Practitioner Piece on Workplace Weight Restrictions Under the ADAAA

See this piece in Thomson Reuters News and Insight, by management lawyers Julie Ungerman and Jennifer Jones.  It begins:

We live in a society that is obsessed with appearance, and studies show that many people equate appearance to success. While employers may not be aware of these studies, some are trying to control appearance in the workplace by imposing weight restrictions on job applicants or employees as a condition of employment.

Whether these policies are permissible can only be answered with a “maybe.” There is no federal law that prohibits obesity discrimination, so plaintiffs have brought weight discrimination claims under the Americans with Disabilities Act (“ADA”) with varying degrees of success.1 However, in light of recent amendments to the ADA, one wonders whether plaintiffs will be more or less successful in bringing weight discrimination claims.

Travis on the ADAAA

Just out: Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, 46 Ga. L. Rev. 937 (2012).  From the introduction:

The ADAAA's new form of universality has the potential to provide a cohesive alternative to the two existing theories that often divide the disability rights community regarding the most effective form of civil rights legislation. Advocates on one side of this divide contend that disability should be recognized and respected as a minority group status. While emphasizing that disability is not an inherent trait, these advocates highlight the distinct life experiences shared only by those individuals whose particular impairments produce significant functional limitations, widespread stigma, and pervasive social exclusion. These advocates argue that civil rights coverage should be limited only to members of this socially constructed but identifiable and subordinated minority. 

Advocates on the other side of the divide argue that disability is better understood as a universal continuum that reflects infinite degrees of socially imposed limitation. Supporters of the continuum approach question the ability to identify a discrete and insular minority, and they contend that any attempt to do so reinforces the notion of disability as an intrinsic personal deficit-a notion that both sides uniformly denounce.  Under this “traditional” form of universalism, civil rights law would neither distinguish nor exclude from coverage any individual who experiences any form of impairment-based disadvantage. While those in favor of minority group treatment argue that the continuum approach ignores and disrespects the existence of a unique disability identity, traditional universalists believe that conceptualizing disability as a continuum is the only way to erase the stigmatizing line that society has drawn between “us” and “them.” 

The ADAAA offers an alternative approach to disability civil rights coverage-an approach that has the potential to bridge the existing divide and thereby strengthen the disability rights movement. Understanding the ADAAA as having implicitly elevated impairment to protected class status alongside disability-rather than as having merely expanded the definition of disability-could reveal the statute as having combined the most compelling elements of both traditional universalism and of the minority group approach.
By granting legal protection for nearly all physical and mental impairments, the ADAAA recognizes the critical insight of traditional universalists about the importance of broad statutory coverage in reducing socio-legal backlash. Yet unlike the traditional universalist endeavor, the ADAAA does not erase the line between the disabled and the nondisabled-either as a matter of formal law or of public perception. To the contrary, the ADAAA embraces difference by distinguishing disability from impairment and by using that distinction as the dividing line between the affirmative right to workplace accommodations and the negative right to be free from simple discrimination. In this way, the ADAAA's new universality offers the opportunity to achieve the traditional universalist objective of expanding the group of workers who view themselves as ADA stakeholders, while at the same time acknowledging the respect for difference that plays such a central role in the minority group approach. 

Unfortunately, the ADAAA's potential for charting such a new and unifying path for disability civil rights has largely gone unrecognized, in part because the primary drafters made the necessary strategic decision to frame the ADAAA as merely a restorative bill, rather than as an innovative piece of civil rights legislation. Until recently, the ADAAA's potential has also remained dormant in the courts because of the statute's non-retroactivity, which has meant that pre-ADAAA law has continued to govern many cases long after the ADAAA's effective date. But now that enactment is behind us and the development of ADAAA case law has finally begun, it is time to render more explicit the full opportunity that the ADAAA presents for advancing a disability civil rights agenda.

Concannon on Mental Disability and the ADAAA

Just out: James Concannon, Mind Matters: Mental Disability and the History and Future of the Americans with Disabilities Act, 36 Law & Psychol. Rev. 89 (2012).  The abstract:

This Article examines the history of protections afforded individuals alleging mental disabilities under the Americans with Disabilities Act of 1990, and the protections such individuals will receive under the ADA going forward in light of the ADA Amendments Act of 2008, which substantially amended the ADA. The Article specifically focuses on Title I of the ADA, which governs discrimination in employment against individuals with disabilities. While the Article concludes that it is reasonable to suspect that coverage for potential Title I ADA plaintiffs alleging mental disabilities will be broader post-Amendments Act, it also finds that it is unclear whether individuals with such disabilities will experience the same increase in coverage as those alleging physical disabilities will likely enjoy. This potential divergence stems from the lack of amendment of particular provisions of the Act that have disproportionately disqualified individuals with mental impairments from coverage, and from the continuing stigma attached to mental disabilities.

Ed Week on OCR Dear Colleague Letter on the ADA Amendments Act

See this blog post, which begins:

A new letter from the Office for Civil Rights at the federal education department details how school districts should act on some changes to federal law regarding people with disabilities. The way I'm reading it, the letter expands the range of students to whom school districts' may have to provide special education services and accommodations, including some who in the past may have been found not to need those services. 

The letter is intended to clarify school districts' obligations following amendments made to the Americans with Disabilities Act that took effect in 2009. Those amendments say school districts should define disability very broadly, writes Russlynn Ali, the assistant secretary for civil rights, in aset of questions and answers that accompany the letter. 

"Students who, in the past, may not have been determined to have a disability under Section 504 [of the Rehabilitation Act of 1973] and Title II [of the Americans with Disabilities Act] may now in fact be found to have a disability under those laws," the guidance says. "A student whom a school district did not believe had a disability, and therefore did not receive...special education or related services before passage of the Amendments Act, must now be considered under these new legal standards. The school district would have to evaluate the student, as described in the Section 504 regulation, to determine if he or she has a disability and, if so, the district would have to determine whether, because of the disability, the student needs special education or related services."

W.D. Ky. Decides ADAAA Case for Defendant

A couple of days ago, in Azzam v. Baptist Healthcare Affiliates, Inc., 2012 WL 28117 (W.D. Ky., Jan. 5, 2012), Judge Thomas Russell of the United States District Court for the Western District of Kentucky issued an unusual decision applying the ADA Amendments Act to rule for the defendant.  Azzam is an employment case.  The plaintiff, Azzam, is a nurse who was assigned to defendant BHA's surgery unit.  Surgery nurses at BHA work 8-hour shifts from Monday-Friday, and they must be on call one night a week, and on weekends, on a rotating basis.  After Azzam experienced a neurological event that may have been a stroke, she found that she experienced too much fatigue to perform her night/weekend on-call responsibilities.  When the other nurses complained about having to cover for her in performing those responsibilities, and Azzam's doctor would not clear her to be on call nights and weekends, BHA terminated her.

Azzam sued under the ADA.  BHA moved for summary judgment on the grounds that Azzam had no disability and that the ability to perform night/weekend on-call duties were an essential function of the job of surgery nurse.  Because the termination took place in 2009, the court applied the ADAAA to the disability question.  The court had no doubt that the neurological event and its effects constituted an impairment, whether or not it was actually a stroke, but the court concluded that it did not substantially limit any major life activity.  Azzam claimed that the impairment substantially limited her neurological functions and her ability to work or concentrate.  The court found that she had not presented any evidence regarding her neurological functions or her ability to concentrate, so it focused only on the major life activity of working.  Even after the ADAAA, the court concluded, the inability to perform a particular function at work (here, being on call nights and weekends) did not constitute a substantial limitation.  Interestingly, the court referred significantly to the EEOC's ADAAA regulations and interpretive guidance, even though those were not issued until after the employment termination decision in this case.  The court also concluded that, at BHA, the ability to be on call nights and weekends is an essential function of the surgery nurse position.  Accordingly, it granted summary judgment to BHA.

Query whether the disability issue would have come out differently if the plaintiff had presented evidence of the effect of her impairment on her neurological functions.

Yingling on Testing Accommodations Under the ADAAA

Just out: M. Patrick Yingling, Learning Disabilities and the ADA: Licensing Exam Accommodations in the Wake of the ADA Amendments Act of 2008, 59 Clev. St. L. Rev. 291 (2001).  The introduction:

“That's the real problem with kids who struggle with learning . . . Some kids feel like they're stupid. I want them to know that they're not. They just learn differently. Once they understand that and have the tools to learn in their individual way, then they can feel good about themselves.”  This quote from Charles Schwab, the financial pioneer who discovered that he had dyslexia at the age of 40, embodies the importance of having federal statutes, such as the Individuals with Disabilities Education Act and Section 504 the Rehabilitation Act, that guarantee special education programs and reasonable accommodations to eligible students with learning disabilities. However, learning disabilities are not exclusive to the formal education process. In fact, learning disabilities often remain with individuals long after their experiences as students. Unfortunately, until the enactment of the Americans with Disabilities Act of 1990 (“ADA”), individuals with learning disabilities often faced a roadblock when seeking to make the transition from student to professional. The roadblock came in the form of a state licensing exam. 

The ADA was the first piece of federal legislation to guarantee accommodations on state licensing exams for individuals with learning disabilities.  The ADA had the purpose of assuring “equality of opportunity” and the “elimination of discrimination” in regard to all individuals with disabilities.  However, over the course of two decades, the courts steadily narrowed the ADA's scope of protection.  Individuals with learning disabilities who sought accommodations on licensing exams experienced the negative effects of such judicial interpretations. As a result, Congress took action to restore a “broad scope of protection” under the ADA by enacting the ADA Amendments Act of 2008 (“ADAAA”).  

This Article argues that the courts must be cognizant of Congress' intention to broaden the scope of the ADA, especially in regard to reading impaired individuals who request reasonable accommodations on licensing exams. Part I examines the ADA's protections for individuals with learning disabilities. Part II discusses the applicability of the ADA to licensing exams, including state bar exams. Part III examines case law over the past twenty years pertaining to learning impaired individuals who have requested accommodations on licensing exams. Part IV analyzes the ADAAA and focuses on its potential to change the status quo for learning impaired individuals who request accommodations on licensing exams. Finally, Part V puts forth recommendations for the courts to provide appropriate standards for individuals requesting accommodations on licensing exams under the amended ADA. Specifically, this Article suggests that: (1) courts should no longer foreclose the finding of a substantially limiting impairment in regard to the major life activity of reading due to an individual's academic success; (2) “working” should be recognized as an appropriate major life activity under which to evaluate claims for accommodations on the bar exam (and possibly other licensing exams), with such evaluations involving a comparison to most people having comparable training, skills, and abilities; and (3) reading disabilities should be recognized not only by psychometric tests that show a substantial limitation in comparison to most people, but also by test scores that indicate a significant discrepancy between an individual's intellectual capacity and actual reading ability. By following these recommendations, the courts will be able to evaluate future claims for accommodations on licensing exams with standards that reflect Congress' intention to provide a broad scope of protection under the ADA.

D. Kansas on Blindness in One Eye and the ADAAA

Last week, Judge Monti Belot of the United States District Court for the District of Kansas issued an opinion on summary judgment in Markham v. Boeing Co., 2011 WL 6217117 (D. Kan., Dec. 14, 2011). The plaintiff alleged that he was terminated from his job as a security guard because he was blind in one eye. Applying the ADA Amendments Act, the court concluded that the plaintiff had presented sufficient evidence that his monocular vision was a disability, because he "testified that he has no depth perception and must turn his head 180 degrees in order to look to the right." But the court granted summary judgment to the defendants because the plaintiff "failed to offer any affirmative evidence that his blindness was a determining factor in defendant's employment decision."  This is another case that likely would not have reached the question of discrimination before the ADAAA.

E.D. Pa.: Sufficient Evidence at Summary Judgment that Irritable Bowel Syndrome is a Disability Under the ADAAA

Earlier this week, Judge Ronald Buckwalter of the United States District Court for the Eastern District of Pennsylvania issued an opinion denying the defendant's motion for summary judgment in Myles v. University of Pennsylvania Health System, 2011 WL 6150168 (E.D. Pa., Dec. 12, 2011), an ADA employment case.  The defendant argued, among other things, that the plaintiff's irritable bowel syndrome was not an ADA disability.  Applying the ADA Amendments Act, the court concluded that the plaintiff presented sufficient evidence that her IBS substantially limited her bowel functions (which are a "major bodily function" and hence a "major life activity" under 42 U.S.C. 12102(2)(B)), and her ability to work.  This case would likely have come out the other way under pre-ADAAA law.

New Case from W.D. Tex. Shows Effect of ADAAA on Back Injury Claims

Earlier this week, Judge Frank Montalvo of the United States District Court for the Western District of Texas issued an opinion denying the defendant's motion for summary judgment in Molina v. DSI Renal, Inc., --- F.Supp.2d ----, 2011 WL 6076178 (W.D.Tex., Dec. 5, 2011). The case is a standard-issue back pain/lifting restriction case, but it nicely shows the impact of the ADA Amendments Act. (The case was brought under the Texas Commission on Human Rights Act, which the Texas legislature amended in 2009 to conform to the ADAAA, so the court relied on its interpretation of the ADAAA.)

In denying that plaintiff Molina's back injury was a disability, the defendant employer made a number of arguments that would likely have been successful under pre-ADAAA law, but which the court rejected based on the new statute. For example, the employer "point[ed] to Molina's testimony that her pain did not impact her ability to do any of her activities, and did not change the way she did her household activities or how she worked," as well as records from her initial EEOC interview, "where the intake worker wrote, 'Cp denies that she is limited in any way, and that she does everything as before.'" In the pre-ADAAA world, many plaintiffs lost at summary judgment based on those statements, but the court here relied on the EEOC's ADAAA regulations to conclude that "the fact that Molina learned to work through her pain to continue performing her regular tasks does not necessarily preclude her from being considered disabled." The court also noted that, to the extent that Molina could work through her pain, evidence suggested that was the result of medication, and the ADAAA requires courts to disregard the effects of medication in assessing disability. And the court held that a reasonable jury could find that the inability to lift more than 20 pounds was a substantial limitation on a major life activity, even though the defendant cited a number of pre-ADAAA cases holding it wasn't.

Brain Surgery Survivor Sues to Obtain Access to LSAT

Disability law and testing guru Jo Anne Simon passes along this press release, issued yesterday:

Long Island resident Lisa Rousso woke up one morning in January 2005 feeling like her world had suddenly shifted on its axis. She was diagnosed with a brain lesion and underwent major surgery for its removal a month later, leaving her with a permanent disability. After years of rehabilitation to learn compensatory techniques, she was diagnosed with a disorder called Cognitive Disorder-NOS, which causes slow reading and writing and extraordinary fatigue.

Under the Americans with Disabilities Act (ADA), prospective students with disabilities are entitled to testing modifications that best ensure that the test results assess their abilities, not their disabilities. When she applied for accommodations for the December 3, 2011 LSAT -- and satisfied the organization’s requirements for documenting a cognitive disability -- instead of extended time and extra breaks, she got the runaround. “First they told me the file never arrived, so I re-sent it – twice – but I was only told my application was deficient. But they never told me how,” said a frustrated Rousso.

Rousso finally hired attorney Jo Anne Simon to submit her application yet again in hopes that the Law School Admissions Council (LSAC) would respond and confirm receipt of her documents. But after 10 days, and too late to submit new information for the December exam, Simon received a letter saying that Rousso’s neuropsychological evaluation was no good. The LSAC asserted that her condition was likely to improve. However, it never stated why it believed a permanent condition would improve. 

Today, Rousso filed suit in the federal district court in Brooklyn, NY alleging the LSAC violated her rights under ADA. The LSAC is no stranger to lawsuits of this type. “The LSAC can’t continue to send cryptically worded messages to applicants with disabilities expecting that they will be either clairvoyant or cured,” said Simon who regularly represents people with disabilities in similar circumstances. “Nothing in Ms. Rousso’s evaluation suggested her condition would improve so as to take her out of the protections of the law.” Simon noted that while the ADA was recently amended to ensure the law’s original intent to protect a broad class of individuals, she notes that even under the more restrictive Supreme Court rulings rejected by Congress in 2008, Rousso would have been protected.

S.D. Tex.: Under ADAAA, Plaintiff With Relapsing Remitting Multiple Sclerosis Overcomes Summary Judgment on Disability Question

Last week, in Carbaugh v. Unisoft International, Inc., 2011 WL 5553724 (S.D. Tex., Nov. 15, 2011), Judge Sim Lake concluded that a plaintiff with "relapsing remitting multiple sclerosis," which flared up approximately four times per year, requiring the plaintiff to receive treatment at home for a week each time, presented sufficient evidence to overcome summary judgment on the question whether he had a disability under the ADA. In this case involving post-ADA-Amendments-Act conduct, Judge Lake relied on the ADAAA's provision that "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D).  This issue would likely have gone the other way under pre-ADAAA law, as a number of cases cited by the defendant in this case demonstrate.  Nonetheless, Judge Lake granted summary judgment for the defendant; Judge Law concluded that the plaintiff had failed to present sufficient evidence to create a triable issue that he was discriminated against or denied accommodation.

Travis on Impairment as Protected Status

New on SSRN: Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, Georgia L. Rev. (forthcoming 2012).  The abstract:

This Article analyzes the fundamental change to federal civil rights law that Congress accomplished through the ADA Amendments Act of 2008 (the "ADAAA"). Congress enacted the ADAAA in response to a series of United States Supreme Court opinions that had narrowly interpreted the definition of disability in the Americans with Disabilities Act of 1990. Although many commentators have recognized the ADAAA's intent to restore the class of individuals with disabilities to the breadth that Congress originally intended, this Article argues that the ADAAA accomplished something more significant: it extricated disability from the broader concept of impairment. As a result, the ADAAA has placed "impairment" alongside race, religion, national origin, sex, age, and disability as a legally protected status under federal antidiscrimination law. By implicitly elevating impairment to protected class status, the ADAAA offers a profound yet still unrealized opportunity for reframing the disability rights debate around a new form of universality that could meaningfully advance the disability rights movement.  

The ADAAA's new form of universality has the potential to provide a cohesive alternative to the two existing theories that often divide the disability rights community regarding the most effective form of civil rights legislation. Advocates on one side contend that disability should be recognized as a subordinated minority status, while advocates on the other side argue that disability is better understood as a universal continuum. This Article argues that understanding the ADAAA as having elevated impairment to protected class status alongside disability - rather than as having merely expanded the definition of disability - could reveal the statute as having combined the most compelling elements of both the minority status viewpoint and the continuum approach.