Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law. (Danny Hurley)
Well, it’s bar exam time so let’s startoff with a multiple choice question. Consider this list: dislocated shoulder; concussion; turf toe; severely sprained ankle; fractured arm. Where would you most likely find this list? (a) the Cowboys’ locker room; (b) a book on the possible claims under the Americans with Disabilities Act; (c) an emergency room; (d) a medical text book. Answers: a, c and d. But as of April 2014, (b) became a correct answer as well—and more so on April 2017. Let’s look at where we were in order to understand where we are now.
It’s 1990, a time when Congress actually got along and did stuff. In this instance, President George H.W. Bush signed into law the passage of broad ADA coverage intended to apply to almost 40 million Americans. But it was not to be. The Supreme Court gave a narrow interpretation to the ADA so that essentially only the blind and those in wheelchairs were covered. Then, in 2008, Congress passed and President George W. Bush signed the amendments to the ADA once again restoring the expansive coverage that Congress had envisioned.
So now a chronic bad back or episodic blackouts were covered. However, one lingering question remained: What about conditions that were temporary? The answer was a while coming, but in 2014, the U.S. Court of Appeals for the Fourth Circuit gave an emphatic “yes.” The case was Summers v. Altarum Institute, and it dealt with the sad situation of Carl Summers. One day Summers was on his way to work and fell off a train platform. The medical box score: fractured left leg; torn tendon in left knee; ruptured tendon in right leg; and fractured right ankle. The injury occurred on Oct. 17, 2011, and he was fired on Nov. 30 because he is unable to return to work. He sued under the amendments to the ADA, but the claim was tossed via a Rule 12(b)(6) motion because he did not allege facts sufficient to establish a covered disability. After all, reasoned the court, the “disability” was temporary and expected to heal within a year. The appeals court disagreed and in an opinion of first impression, held that “nothing about the [amendments to the ADA] or its regulations suggests a distinction between impairments caused by temporary injuries and impairments cause by permanent conditions. Because Summers alleged a severe injury that presented him from walking for at least seven months, he has stated a claim that this impairment ‘substantially limited’ his ability to walk.”
And then there was a flood of lawsuits claiming a temporary injury is an ADA-covered disability! Not really—there was radio silence. All that changed in April 2017 when a federal district court in Arizona picked up the Summers thread in Valenzuela v. Bill Alexander Ford Lincoln Mercury. There, the plaintiff had emergency eye surgery on May 15, 2014. The surgery impaired his ability to see, drive and walk while recuperating. On June 9, the plaintiff returned to work with no restrictions. He was fired five weeks later. In denying the employer’s motion for summary judgment, the court acknowledged that there was no evidence that the plaintiff had a history of eye surgeries, let alone eye surgeries resulting in such limitations. It was a “one-off.” But that did not mean that summary judgment was warranted. The court nicely summarized the law: “As amended, the ADA does not impose a temporal or permanency requirement” in order for an impairment to be a disability.
On May 9, a federal district court in Houston, in Harper v. Fort Bend Independent School District, had little patience with the argument that the plaintiff was ADA-covered because her bunion surgery resulted in an inability to walk from March 5 until June 9, 2015. “A temporary, nonchronic impairment of short duration … is usually not a disability.” The court went on to state: “A temporary impairment may be covered only if it is sufficiently severe as to substantially limit a major life activity beyond the short-term effects.” Summary judgment granted to the employer.
In a way, we’ve come full circle. In the 1990s courts tossed ADA claims because “by God, I know a disability when I see one and this trivial impairment is not one.” Their perceptions of a real disability were anchored in the wheelchair users, the sightless, and those suffering from a wasting illness. Now, some courts may be looking not at the effects of the impairments but at the nature of the impairments. If a person is unable to walk because of bunion surgery, then the person is limited in a substantial way in a major life function just as if the person broke two feet in a fall. The origins of the impairment do not matter, just the effects of the impairment.