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WASHINGTON –At its April 1 conference, the Supreme Court will review Philadelphia Housing Authority v. Edward Williams, 04-873. Williams, an officer with the Philadelphia Housing Authority, was fired in 1998 after he threatened to “go postal” and “smoke people.” His former employer, the Philadelphia Police Department, is appealing an opinion from the Third Circuit U.S. Court of Appeals saying that Williams, who was suffering from depression, may have been entitled to protection under the Americans With Disabilities Act. In his August 2004 opinion, Judge Walter Stapleton, writing for a unanimous panel, held that individuals whom employers perceive as disabled — even if their conditions don’t meet the legal definition of disability — should receive reasonable accommodations under the ADA. After Williams’ outburst, several psychologists diagnosed him as suffering from major depression and said that he could work in an administrative position, but not carry a weapon. The only position available to Williams was in the radio room, according to the police. But the department refused the assignment because Williams would still have access to weapons. Williams sued the police department, arguing that the department was incorrect in assessing that he could not work around weapons because of his depression. He claimed the department “wrongly regarded him as being more disabled than he actually was,” writes Scott Nelson, senior attorney at Public Citizen Litigation Group and counsel of record for Williams, in his brief. He claimed the department “regarded” him as disabled yet failed to provide reasonable accommodations, in violation of the ADA. The “regarded as” provision of the ADA allows a person who is not technically disabled under the act, which defines a disability as a condition that substantially limits “a major life activity,” to sue for discrimination. In such an instance, the employer perceives that a person has a disability because of an impairment and discriminates against him or her as a result. But circuits have split on whether a person regarded as disabled deserves a reasonable job accommodation under the ADA. Along with the Third Circuit, the First Circuit also has held that a person regarded as disabled deserves reasonable accommodation. Four circuits have gone the other way. In reaching its decision, the Third Circuit said that the plain meaning of the ADA, its legislative history, and Supreme Court precedent dictated the result. The court reasoned that the very definition of discrimination under the ADA is the failure to provide a reasonable accommodation. The court said the act expressly addresses discrimination or the failure to provide accommodation to individuals regarded as disabled. In Williams’ case, the court wrote, “[t]he employee whose limitations are perceived accurately gets to work, while Williams is sent home unpaid.” The Third Circuit overturned the District Court’s grant of summary judgment to the police department on this issue and ruled the case could proceed to trial. In its appeal to the Supreme Court, the police department argues that Congress, in passing the ADA, did not intend to provide accommodations to a person regarded as disabled. A “regarded as” disabled person is unlike a truly disabled person, who needs an accommodation “to remove the impairment as a barrier to employment” and “to compete with the non-disabled,” writes Patrick Harvey, a partner in the labor and employment department at Ballard Spahr Andrews & Ingersoll in Philadelphia and counsel of record for the police department, in the department’s brief. For a “regarded as” disabled person, “accommodations are not necessary to ‘level the playing field,’” Harvey writes, because such a person is not limited in the same way as a disabled person. To provide an accommodation, he adds, would be a “windfall” and lead to “bizarre” results. Nelson, the attorney for Williams, adopts the Third Circuit’s reasoning in his brief and argues against certiorari, claiming that many of the facts in the case are still uncertain and that the case should go forward in the lower court first. Other Cases Up for Review: � Hall v. Virginia, 04-870: Whether a minority group lacking numerical majority may claim vote dilution under the Voting Rights Act. � Smith v. Texas, 04-874: Whether law enforcement’s use of a drug-sniffing dog at the door of a private home constitutes an illegal search under the Fourth Amendment and whether Kyllo v. United States applies to such a situation. � Pincay v. Andrews, 04-875: Whether a court abused its discretion by granting an extension to an attorney who filed a late notice of appeal. � Central Virginia Community College v. Katz, 04-885: May Congress use the Article I bankruptcy clause to abrogate states’ sovereign immunity? � Republic of Congo v. Af-Cap Inc., 04-1043: Whether Congo defendants are entitled to sovereign immunity from a garnishment or debt-collection action under the Foreign Sovereign Immunities Act. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Marya Lucas is a reporter for Legal Times, a Recorder affiliate based in Washington, D.C.

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