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Bad Facts Make Bad Laws: Death for the ADA?
by John L. Kane, Jr.
United States Senior District Judge
District of Colorado
July 26, 1990, the Americans with Disabilities Act was enacted into law. Popularly known as the ADA, it prohibits employers from discriminating against individuals on the basis of disability. To prove such a claim, a person must establish (1) he is a disabled person as defined by the Act; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) the employer discriminated against him because of his disability. The Act defines disability to be: (A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
The ADA falls into the general category of federal employment law. Other statutes prohibit discrimination in employment on the basis of age (the Age Discrimination in Employment Act - ADEA), race, religion, national origin and gender (the Equal Employment Opportunity Act – Title VII) as well as the Equal Pay Act (EPA), the Rehabilitation Act, the Pregnancy Discrimination Act and the Family Medical Leave Act. Each of these statutes has its own particular language and legislative history.
When courts interpret acts of Congress, the results vary depending upon their wording, purpose, legislative history and the specific provisions of the U.S. Constitution claimed as authority for Congress to pass the particular law. If Congress acts without or in excess of constitutional authority, the courts may decide the statute is void, or that it can’t be applied in certain circumstances.
The area of controversy getting the most attention at this time involves the authority of Congress to pass laws subjecting the individual states to being sued in federal courts. On the one hand, the Constitution gives Congress the authority to pass all laws necessary and proper to regulate interstate commerce, and to enforce the provisions of the Fourteenth Amendment.1 While on the other the Eleventh Amendment prohibits suits in federal courts against state governments. When these two amendments collide, the United States Supreme Court has established an elaborate set of doctrines to solve the problems that arise.
The Eleventh Amendment is grounded on the ancient doctrine of sovereign immunity. Originating in the days of kings and emperors, its basic meaning is that a government is the source of authority and not the subject of it. Therefore, according to the doctrine, the state cannot be held to answer to others for its acts or failures to act, unless it consents to be sued. Within our federal system, each state is considered a sovereign, and may not be sued in federal court except in very limited circumstances. The question looming over the Americans with Disabilities Act is whether state governments fall within those limited circumstances so as to permit individuals to sue a State in a federal court for violating the Act.
On March 1 of this year, the Supreme Court dismissed two pending cases challenging this immunity because the parties had reached out-of-court settlements. In one case a prison guard claimed his employer failed to promote him because of a heart condition. In the other, a police officer was denied a job with another police department because he did not meet the new department’s vision requirements. The extent to which either of these conditions would be considered disabling when compared with more grievous ones suggests that proponents of the ADA should breathe a sigh of relief that the cases settled.
The saying that bad facts make bad law is, like many other common observations, fairly accurate. This is because our legal tradition is fact-driven. Courts function under a rule of discipline that no law should be formulated unless it is necessary to decide a particular case or controversy. If the facts presented are barely believable or fail to evoke much sympathy, a grudging or sharply limited judicial decision can be expected. If injuries are exaggerated or money demands seem greedy or liability is barely established, the rule which is announced will not be helpful to later cases in which the claims come closer to a common sense understanding of serious disability.
Statutes, as distinguished from court decisions, are written as an exercise in consensus in response to desired changes in public policy. Once written, these legislative acts are subject to court interpretation to resolve ambiguities of expression and meaning, and conflicts with other laws and fundamental principles of justice. In exercising this judicial authority, the resounding theme of restraint, restraint, restraint is pounded into the judicial psyche.
It should thus come as no surprise that a court will decline to decide matters that are not in actual controversy, that it will avoid deciding questions of substance when it can resolve a case on procedural grounds, and that it will encourage the parties to settle their differences rather than submit to a result imposed upon them by a court.
Both of the recent ADA cases had sparked great interest because of a developing trend by the Supreme Court to rein in Congress’s incursions into areas traditionally reserved for the sovereignty of the individual states. In Kimel v. Florida Board of Regents, a sharply divided court ruled that each state has sovereign immunity from suits brought against it in federal court under the Age Discrimination in Employment Act (ADEA). Both the district court and the court of appeals had granted Florida’s motions for dismissal, based on a determination that Congress did not have the authority to evade a state’s Eleventh Amendment immunity from such suits2. Section 5 of the Fourteenth Amendment gives Congress such authority in certain circumstances, but not in this one, according to the majority3.
The court reasoned that the statute places requirements on state and local governments disproportionate to the unconstitutional conduct the ADEA seeks to remedy. Obviously, questions of proportionality (what’s too much or too little in certain circumstances) are matters of opinion, not logic. Unlike race and gender or religious faith, the majority declared that age is not a suspect classification. Is disability a suspect classification like race, or is it more like age? States may discriminate on the basis of age so long as doing so is “rationally related to a legitimate state interest. ... A State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to a state’s legitimate interests.”
The four dissenting justices said the courts can only assume when Congress imposes a burden on state sovereignty, that the issue was taken into account during the deliberative process leading up to the enactment of the law. In other words, and highly unusual for the Court’s liberal wing, the question of proportionality was properly one for Congress rather than the judicial branch to answer. For a court to answer such a policy question smacks of judicial activism.
It remains to be determined by the Supreme Court whether the ADA suffers from the same defect as the ADEA. Given the facts presented in the settled cases, the same majority on the Court could well have said that the statutory requirements placed on state and local governments were way out of proportion to the unconstitutional conduct the law seeks to remedy. If, however, a case involving serious and unquestionable disability is presented, the outcome is far less certain.
Indeed, it is difficult to believe that a majority of five could be found to deny relief to a person who has no other recourse or remedy. It is one thing to tell a person with a heart condition to find a job less strenuous than being a prison guard; it is quite another to tell a person confined to a wheelchair that he is unemployable by a state or local government.
In the case of Erickson v. Northeastern Illinois University, the Court of Appeals for the Seventh Circuit reviewed a claim under the ADA brought by a woman contending the University failed to accommodate her efforts to have children. She argued that the University should have tolerated her absences and tardiness caused by her distress and emotional draining brought on by medical care for her infertility. The essence of her complaint was that the University should have tolerated conduct it would not have condoned from a healthy employee.
By a 2-to-1 vote the Court of Appeals held that “the Eleventh Amendment and associated principles of sovereign immunity block private litigation against states in federal court.” The majority opined the federal government could enforce the ADA against states in federal court and that private individuals could sue Illinois for violation of the ADA, but only in an Illinois state court. That’s because Illinois has a statute which waives sovereign immunity, but in a state without such a waiver statute, the private individual would be out of luck.
The majority of federal circuit courts of appeals hold the ADA is a proper exercise of Congress’s power to enforce the Fourteenth Amendment and the states have no Eleventh Amendment immunity from actions brought in federal court in accordance with this statute. Given the Eighth Circuit’s contrary view that Congress exceeded its authority in attempting to nullify state immunity under the ADA, it is likely that this issue will again be presented to the Supreme Court for a definitive answer. When that happens, the result may well depend upon an implicit question: Just how disabled is this person seeking relief? A flimsy case can produce a bad result. If that were to happen and the Supreme Court ruled that a state cannot be sued in federal court for a violation of the Americans with Disabilities Act, the Congress would have to enact a revised ADA to comply with the Supreme Court’s decision.