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The first president George Bush signed the Americans with Disabilities Act into law in July 1991. The employment discrimination provisions of that statute went into effect a year later. Since then more than 142,000 charges of disability discrimination have been filed with the Equal Employment Opportunity Commission. Disability discrimination charges have constituted at least 20 percent of all new charges filed with the EEOC each year. And the lower courts have been awash in ADA cases. Yet the U.S. Supreme Court has issued only five ADA decisions affecting private employers in these last ten years. This fall, however, the Court will hear two more. In both cases, appellate courts have established standards that could create serious problems for corporate counsel. One case dangerously broadened the disorders that might be protected by the ADA. That case essentially asks the Supreme Court to define what a disability is. In the other, employers are forced to make accommodations, even when they violate pre-existing seniority systems. So corporate counsel are looking to the high court to clarify the confusion. On April 16 the Court granted certiorari in Toyota v. Williams, out of the 6th U.S. Circuit Court of Appeals, and Barnett v. U.S. Airways, out of the 9th U.S. Circuit Court of Appeals. Both cases will have a profound impact on human resources decisions — specifically the treatment of employees with disabilities — and how ADA cases are litigated in the future. In Toyota, Ella Williams worked in the auto manufacturer’s Kentucky assembly plant using pneumatic tools. She developed carpal tunnel syndrome and tendinitis in her hands and arms. The company, Toyota Motor Manufacturing, North America, of Erlanger, Kentucky, transferred her to a position where she inspected and wiped down cars. Williams’ job was then expanded to include wiping down cars with highlight oil at the rate of one car per minute. Her new duty required her to keep her arms and hands around shoulder height for hours, causing her condition to worsen. She requested a transfer to her old position. When the company refused, she sued under the ADA. A federal judge in Lexington, Kentucky, granted Toyota’s motion for summary judgment on the ground that Williams did not have a disability under the ADA. She appealed, and the 6th Circuit was faced with the issue of whether her inability to perform some manual tasks due to her carpal tunnel and tendinitis rendered her disabled under the ADA. The 6th Circuit found that Williams’ disability was akin to having “missing, damaged, or deformed limbs that prevent her from doing the tasks associated with certain types of manual assembly line jobs, manual product handling jobs, and manual building trade jobs … that require the gripping of tools and repetitive work … for extended periods of time.” That Williams could take care of her personal hygiene or perform regular tasks was irrelevant to the court. The court said that these activities were of a nonrepetitive nature and had no impact on Williams’ inability to “perform the range of manual tasks associated with an assembly line job.” The decision did not address specifically what ADA plaintiffs must show to establish that they are substantially limited in the major life activity of working. But the court did correlate the performance of manual tasks with that of working: “Here, the impairments of limbs are sufficiently severe to be like deformed limbs, and such activities affect manual tasks associated with working, as well as manual tasks associated with recreation, household chores, and living generally.” The court reversed and remanded the case for trial, reasoning that there was a question of fact about whether Williams was substantially limited in the major life activity of performing manual tasks. The 6th Circuit’s decision is remarkable in that it establishes “performing manual tasks” as a major life activity under the ADA. The decision unnecessarily expands — or at least severely confuses — an employer’s obligation so that every workers’ compensation case involving carpal tunnel syndrome has the potential to become a dangerous ADA case. If the Supreme Court embraces this broad interpretation, a wide variety of other repetitive motion disorders also could be afforded ADA protection. Employers in industries such as heavy manufacturing or construction would be hit hard. Currently employee claims can be very subjective, as doctors disagree about the cause of repetitive motion disorders. In fact, being restricted to one job is not a substantial impairment vis-a-vis working. But if the Court affirms the 6th Circuit’s holding, plaintiffs will likely focus on “performing manual tasks” as the alleged basis of disability. In the other major ADA case — Barnett v. U.S. Airways — the Supreme Court will decide the relationship between reasonable accommodation under the ADA and seniority rights. The plaintiff, Robert Barnett, a veteran employee of Arlington, Virginia’s U.S. Airways Group, Inc., injured his back in 1990 while working at a cargo job in San Francisco. After returning from a leave of absence, he found he could not handle freight. To avoid heavy lifting, he used his seniority to transfer to a mailroom position. Two years later Barnett’s mailroom position became open for bidding by other workers with greater seniority. He asked U.S. Air to make his mail room job permanent, but the company told him he would be removed from his position and placed on job injury leave. He filed a second request for accommodation. That also was denied. Barnett sued, and the federal judge in Oakland granted summary judgment for U.S. Air. On appeal Barnett argued that U.S. Air violated the ADA by not giving him his old mailroom job and making an exception to its seniority system. The 9th Circuit examined whether a seniority system is a per se bar to reassignment as a reasonable accommodation. The court, by an 8-to-3 vote, found that the EEOC Guidance on Reasonable Accommodation rejects a per se bar in a collective bargaining situation. The EEOC Guidance states that reassignment is a reasonable accommodation, even when reassignment is not generally allowed, and that an employer must modify a workplace policy for a disabled employee as a reasonable accommodation if no undue hardship results. The 9th Circuit looked at the ADA’s legislative history, noting that the existence of a seniority system is a factor in the undue hardship analysis. Judge B. Fletcher wrote “if there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if otherwise qualified for a position, should receive the position rather than merely have an opportunity to compete with nondisabled employees.” The Supreme Court might decide this case on narrow grounds, looking only at the company seniority system. The Court might reserve for another day the key issue of the relationship between ADA obligations and seniority established under a union contract. But that would leave employers with the Catch-22 they now face. What should a company do when ADA’s reasonable accommodation standard collides with seniority under a collective bargaining agreement? If the employer grants the accommodation in violation of the seniority clause of the union contract and the National Labor Relations Act, it will lose a seniority grievance at arbitration. But if the employer denies the accommodation, it will be sued for disability discrimination. There’s also the possibility of a backlash from more senior, nondisabled workers who are bumped or displaced as a result of an accommodation. The best outcome would be for the Supreme Court to rule that violating a bona fide seniority system or a seniority clause in a union contract constitutes a per se undue hardship. The 9th Circuit’s reasoning that these conflicts should be resolved on a case-by-case basis is unworkable and should be rejected. Company counsel may be heartened by recent employer victories before the Court in ADA cases. In 1999, for instance, the Court, in Sutton v. United Airlines and Murphy v. United Parcel Service, ruled that the plaintiffs were not disabled under the “regarded as” standard of the ADA. But the Court has been sharply divided in several other cases, such as Bragdon v. Abbott, in which the Court ruled 5 to 4 that being HIV-positive is a protected disability. So it’s anyone’s guess as to how the justices will decide these pivotal cases. Gerald D. Skoning is of counsel with Seyfarth Shaw in its Chicago office. E-mail: [email protected]

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