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Ten years after its passage, the Americans With Disabilities Act has a serious problem: Lawyers and judges are still arguing over how to prove that someone is “disabled.” While the Supreme Court this term has taken up cases on how the ADA applies to state governments and professional golf tournaments, lower courts are wrestling with the proof problem. That was apparent last week at a spirited, hour-long argument before the full 10-member U.S. Court of Appeals for the D.C. Circuit. At issue was a $250,000 jury verdict won by Jimmy Duncan, who claimed that the Washington Metropolitan Area Transit Authority fired him from a job requiring “heavy lifting” because he had a back problem. In January, a three-judge panel split 2-1 to overturn the verdict, ruling that Duncan failed to establish he was disabled and thus protected under the ADA. Judge Karen LeCraft Henderson, joined by Judge Laurence Silberman, wrote that Duncan hadn’t shown that his back problem prevented him from working in “a broad class of jobs.” That’s the standard required by Sutton v. United Air Lines, a 1999 Supreme Court ADA ruling. All Duncan offered in evidence, according to Henderson, was that he had looked into some truck-driving positions and hadn’t gotten them. “Duncan’s limited ‘search’ for another job hardly informs us what positions were generally available in his geographic area for unskilled workers, much less for workers with a lifting restriction like his,” Henderson wrote. Chief Judge Harry Edwards authored a bitter dissent, concluding that Henderson and Silberman required ADA plaintiffs to “prove, with quantitative certainty, that almost all jobs are outside their reach.” Such a standard, Edwards added, “virtually ensures that very few plaintiffs will ever prevail under the ADA in this circuit.” COURTS ‘WIDELY DIVERGENT’ Plaintiffs in other circuits have similar problems, says Georgia Lord, who represents ADA clients in suburban Atlanta. At the 11th Circuit, showing that an impairment precludes someone from working “is next to impossible,” she says. “You have to find something else to argue,” she adds, suggesting that counsel contend that a separate major life activity — such as seeing or walking — is limited by an impairment. But the main area of disagreement in the circuits relates to the alleged inability to work, says Mark Rothstein, who teaches employment law at the University of Houston. “The courts are widely divergent,” he says. “Split is too nice a term.” Currently, all the lower courts have to work with is the Sutton decision and another 1999 case in which the Supreme Court ruled that people with such correctable impairments as poor eyesight or high blood pressure were not disabled and couldn’t sue companies that refused to employ them as a result of their impairments. But Roy Englert, a Washington, D.C.-based partner at Mayer, Brown & Platt who argued the winning side in Sutton, says the proof question will come before the justices again. “There are very deep conceptual difficulties,” he says, about how the law defines — and how plaintiffs must prove — a disability. JOB SEARCH Some of those difficulties surfaced at the D.C. Circuit last week. Bruce Heppen, in-house counsel at the transit authority, argued that the Supreme Court’s decision in Sutton required plaintiffs to show evidence from the relevant job market that they could not get work. What lower court has embraced that interpretation? demanded Edwards, the dissenter from the panel decision. The 9th Circuit, Heppen said, citing B roussard v. University of California, from 1999. Edwards shook his head, demanding that Heppen show him where a court required “a quantitative threshold” of evidence. Heppen tried to argue that most courts require plaintiffs to cite fact-specific consequences, but Edwards pressed on: “Is your answer to me no?” Heppen responded that no lower court embraced his theory, but asserted again that the Supreme Court’s Sutton ruling required it. Judge Douglas Ginsburg came to Heppen’s defense, asking whether any lower court had heard the argument that Heppen was making. No, said Heppen. So, concluded Ginsburg, “it just hasn’t been raised.” Not so, responded Edwards, citing the 2nd, 6th, and 9th circuits as having rejected Heppen’s argument. “I don’t believe so, Your Honor,” said Heppen to Edwards. Representing Duncan, Bruce Bender of Rockville, Md.’s Van Grack, Axelson & Williamowsky also absorbed tough questions that illustrated the murkiness of the law. Bender argued that one piece of evidence supporting Duncan’s claim of disability was that it took him nine months to find a part-time driving job that paid just one-third of his old salary. “Why was it a part-time job?” asked Ginsburg. “This was 1993, Your Honor,” responded Bender, apparently referring to the poor economic conditions of that time. “So he might not be disabled today?” asked Judge Raymond Randolph.

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