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Employers are winning more than nine out of 10 Title I disability cases decided in federal court, a rate that has risen since the Americans with Disabilities Act (ADA) took effect in 1992. In 1999, employers prevailed in 291 cases decided in the federal courts, versus just 13 wins for employees, according to a survey conducted by the American Bar Association’s Commission on Mental and Physical Disability Law. This is the third survey of Title I cases that the commission has conducted, and in each one, employers’ win rate has increased. The first survey, covering 1992 to 1997, found that employers prevailed in 91.6 percent of the cases. The second survey, for 1998, found that they prevailed in 94.4 percent. Last year, employers won 95.7 percent of the time. “It is interesting that these statistics continue to be consistent,” says Amy Allbright, managing editor of the ABA’s Mental & Physical Disability Law Reporter, which published the 1999 Title I results in its May-June issue. “Most people are getting blown out of the water at the summary judgment stage,” she says. Of the 291 wins credited to employers in 1999, 257 were on summary judgment motions, while 34 were on the merits. Lawyers for employees are quick to point out that the survey does not include cases that are settled after filing. Those settlements typically favor employees, says Susan Oxford, an attorney adviser in the general counsel’s office of the Equal Employment Opportunity Commission. She explains that once an employer recognizes an employee has a strong case, the employer often will settle in order to protect its reputation. “The employer doesn’t want it to see the light of day,” Oxford says. “A lot of times the employer wants it to be so nonpublic that they are willing to pay a little more to get the plaintiff to agree to seal the case.” Allbright says that her publication had no way to track settled cases; only a handful show up on the case reporting system used to cull the ADA cases. Besides, she says, the fact remains that the employees who do proceed in federal court are up against grim odds. Jay W. Waks, head of the employment law practice at New York’s Kaye, Scholer, Fierman, Hays & Handler, says the principal reason that employees lose at the summary judgment level is because they are unable to show that they have a disability covered by the ADA. “This is largely because with mitigating factors [like hearing aids or corrective lenses], they are not being considered disabled,” says Waks, who represents employers. THE SUPREME COURT SPEAKS Certainly that was the experience of pilots Karen Sutton and Kimberly Hinton, whose case against United Air Lines, Sutton v. United Air Lines Inc., 119 S.Ct. 2139, reached the U.S. Supreme Court last year. Sutton and Hinton had lost at both the district court level and before the 10th U.S. Circuit Court of Appeals in a closely watched case involving the definition of “disabled.” They accused United of violating the ADA when it refused to hire them because their vision — uncorrected — did not meet the airline’s standards. The Supreme Court held that the pilots did not have a covered disability because their vision could be corrected to 20/20 or even better. Their attorney, Aaron Hughes, says that the decision makes it even harder for employees to prevail in ADA cases because it creates a sort of Catch-22 situation. “Either you can do the work and therefore you’re not disabled, or you can’t do the work and then you’re not eligible for protection,” says Hughes, a partner at Denver’s Ireland, Stapleton, Pryor & Pascoe. “It is clear that the courts, and especially the Supreme Court, have taken a very restrictive view of who is protected by the ADA.” Still, Hughes wasn’t prepared for the irony of United changing its rules shortly after litigating the case through three federal courts. The airline dropped its vision restriction within months of the Supreme Court’s ruling, he says, so now either of his clients would qualify to apply for a flying job at United. FIGHTING TOUGH ODDS Attorneys for employees say that they examine Title I cases carefully before taking them, knowing the odds are against them, no matter which venue they choose to pursue the claim. In addition to federal court, employees can seek relief from disability employment discrimination in state court or before the EEOC or its equivalent at the state level. The ABA commission also looked at the results of Title I complaints filed with the EEOC and found that employers prevailed in about 85 percent of the 17,007 cases the commission received last year. That rate was consistent with previous years, according to the ABA study. Stephen Roach of Boston’s Roach & Wise says that venue choice is a tough decision because so many varying procedural and substantive factors are involved. “The final choice will depend on the facts of your case,” he says. Roach won one of the 13 cases in which employees prevailed last year, and he says that it has become increasingly tough for employees to succeed with ADA complaints. His case involved a woman, Jacquelyn Quint, who has carpal tunnel syndrome and was fired from her job as a press operator at a potato-starch processing plant in Maine in 1994. She won $720,000 in compensatory and punitive damages after a jury trial in Maine, but because of federal law, the amount was reduced to $300,000. In Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1 (1st Cir. 1999), the 1st Circuit upheld the award and, reversing the lower court, ordered a hearing on whether Quint should be reinstated in her job. “I knew that defendants generally win these cases,” Roach says. “I took it because she was from my hometown, I knew her family, and she had won a great victory below, and I did not like what the company had done to her.” Roach says that most cases as strong as Quint’s are settled. “The trend now is for companies to get a confidentiality agreement,” he says. “Companies are very sensitive about their names being associated with these kinds of cases.” For that reason, he believes that the ABA commission’s federal court review is misleading because it does not include the settlements. “The stats are skewed because many of the good cases are settled, and they should be settled,” he says. “Both sides usually want to mend fences and get back to normalcy.”

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