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The Americans with Disabilities Act: Implications of Supreme Court Decisions for Case Managers Part IV
ADA UPDATE
The Americans with Disabilities Act: Implications of Supreme Court Decisions for Case Managers
Part IV by Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM
“
J
uly 26, 1990, was indeed a very proud moment in
my life. On that day, some 3000 Americans, including leaders from the disability rights movement from every part of this country, gathered on the White House lawn.”
So began Dick Thornburgh, former Attorney General of the United States, in his presentation, “Reflections on the Americans with Disabilities Act,” on February 24, 2000, at the University of Houston Law Center’s Health Law and Policy Institute. Thornburgh was there to celebrate the 10th anniversary of the Americans with Disabilities Act (ADA). He continued, “We were witness to an emotional ceremony where President George Bush signed into law this landmark legislation with the ringing admonition, ‘Let the shameful walls of exclusion come tumbling down!’”1 I, along with Patricia McCollom and a friend who has a severe disability, also were witnesses to the landmark legislation signed by President Bush. It truly was a day of celebration. After the signing ceremony on the White House lawn, a picnic was held in a park across from the White House and a reception that evening to conclude an historic day. To have been involved in advocating for the ADA through membership in the Iowa Commission for Persons with Disabilities, attended the signing on the White House lawn, then become an expert witness in ADA cases has been an interesting evolution. In July/August 2000
TCM 51
this fourth and final article regarding the impact of the Supreme Court decision for case managers, we’ll focus on external influences on case management (CM) through ADA and the court system. The first article in the January/February 2000 issue reviewed the June 22, 1999, Supreme Court decisions on two landmark cases involving the ADA—Sutton v. United Airline, Inc., and Vaughn L. Murphy v. United Parcel Services, Inc. The first article emphasized that an objective, accurate vocational evaluation with labor market data responding to the factors identified by the Equal Employment Opportunity Commission (EEOC) was critical to the case outcome. The article also emphasized that the Supreme Court upheld the principle that determining whether a person has a disability under ADA is an individualized inquiry. In the March/April issue, Part II focused on a third decision delivered on June 22, 1999, by the Supreme Court in Albertsons, Inc., v. Kirkingburg. Those three decisions issued on the same day came to be known as the ADA trio or trilogy and are considered landmark rulings. Also noted was the impact these decisions will have on future litigation and a further definition of the use of mitigating measures in determining whether an individual is protected under the ADA. Part III in the May/June issue discussed the continued significant ramifications of the ADA trio in two specific areas. Specific case decisions were explored to review the precedence set in the trio of cases. Throughout all three articles, specific emphasis was placed on this trio’s impact on CM practice. Precedent Versus Persuasive Authority In the fourth and final article, we will review how this ADA trio and the courts are an external influence on the practice of CM. As numerous cases have been followed throughout these articles, I will emphasize how these decisions have become precedent for other cases. Perhaps a brief distinction should be made between the term precedent versus persuasive authority. In a legal case, a precedent is “an earlier case relevant to a case to be decided.”2 If the circumstances of TCM 52
July/August 2000
the current case match an earlier one, the previous case is considered a precedent and binding on the court. The following general guidelines can be used to determine the effect one court’s decision has on another: • Appellate Court and Supreme Court cases are precedents with respect to future decisions by the same courts. • U.S. Supreme Court cases are precedent for all courts with respect to decisions involving the United States Constitution or any aspect of federal law. • U.S. Court of Appeals cases are precedents for U.S. District Courts within their 12 circuits. • Opinions of the U.S. District Court are never precedents for other courts. • State Supreme Court cases are precedents for courts within that state. Persuasive authority, on the other hand, is not binding on other courts, but if a case contains an analysis of legal issues and provides guidance for any court referring to it, it has persuasive authority. Generally speaking, the higher the court level, the more possibility for persuasive authority. External Influences on CM The following is a specific example and a partial review of Part I of an ADA case that has a direct external influence on CM practice. In Murphy v. United Parcel Services (UPS), Inc., UPS dismissed Murphy from his job as a mechanic because of his high blood pressure. He failed a physical examination because of hypertension; therefore, he was disqualified from receiving DOT health certification. Murphy filed suit under Title I of the ADA in federal district court, which granted a motion for summary judgment to UPS. (A motion for summary judgment is granted when the court believes no genuine issue of material fact exists. The party filing the motion is entitled to prevail as a matter of fact.) The Court of Appeals for the Tenth Circuit then affirmed that judgment. The Supreme Court then was asked to hear the case and decide whether the
Court of Appeals correctly considered Murphy in his medicated state. The Supreme Court rendered an opinion that the Court of Appeals correctly considered Murphy in his medicated state when it held that his impairment does not “substantially limit” one or more of his major life activities (MLAs). It should be noted that the Supreme Court decided to hear this case because lower courts had been divided regarding the importance of the use of mitigating measures in determining whether an individual is disabled and therefore protected by the ADA. As a direct consequence of this decision, the EEOC issued instructions for field offices regarding the analysis of ADA complaints and addressing the use of mitigating measures in considering whether a person is disabled. These instructions changed the procedures for field office staff investigating individual complaints. To use the EEOC’s terminology, the instructions summarize and explain Supreme Court cases’ impact on the process of charges under the ADA. They emphasize “the individualized analysis that must be used in determining whether a charging party has a disability as defined by ADA and whether a person is qualified.”3 As a direct result of the findings in the Supreme Court case, the EEOC instructions distinguish between an individual performing a unique or single job versus the ability to work in a class of jobs. In the case of Murphy, the class of jobs that were identified in the vocational evaluation now appear in the EEOC’s instruction format. For example, the Supreme Court determined that UPS’ mechanics’ job, which required the ability to drive commercial vehicles, was a single job and not representative of a class of mechanics’ jobs. The court determined that Murphy, although not able to perform one specific job, was not unable to work in the class of mechanics’ jobs including diesel mechanic, automotive mechanic, gas-engine repairer, and gas-welding equipment mechanic. These specific examples came directly from the Supreme Court decision, which in turn came directly from the vocational evaluator ’s report.
When investigating future complaints by individuals through EEOC field offices, investigators may be gathering information from appropriate case managers, employers, etc., directly related to the results of these decisions. Case managers involved in complaints will provide specific information to the EEOC investigators as a direct result of the outcome of this case. Contrasting Two Important Court Cases I previously noted that circumstances may arise when the side effects of a mitigating or corrective measure may substantially limit an MLA. Part III’s breaking news section identified a decision that had been rendered by a senior U.S. District Court Judge Sylvia H. Rambo for the middle district of Pennsylvania in the case Rowles v. Automotive Production Systems (APS), Inc. Although it may not be considered a precedent-setting case, it is considered a significant win for plaintiffs and may set the stage to limit the effects of the U.S. Supreme Court decision in Sutton v. United Airlines. APS had argued that Rowles’ epilepsy was corrected by medication and therefore did not substantially limit any of his MLAs. His treating physician supported this argument, saying Rowles’ current medication controlled the seizure disorder. Rowles’ attorney argued that he actually should be considered disabled because the medication never guarantees that he will be free of seizures and he always suffers from the drug’s side effects. Judge Rambo stated, “When viewed in its entirety, the limitations are substantial.” She reasoned that Rowles must limit his exposure to stress and fatigue, eat regularly scheduled meals, sleep 8 hours each night, avoid working excessive hours, and avoid infections that may affect his medication levels. For these reasons, Judge Rambo ruled that Rowles is disabled and therefore protected under the ADA. In contrast is Schaeffer v. The State Insurance Fund, in which Ms. Schaeffer was diagnosed with diabetes in March 1991. Her disease, however, was controlled by dietary restrictions and oral medication. In April 1991, she was dismissed from her job as an office clerk at the New York
As a direct result of the findings in the Supreme Court case, the EEOC instructions distinguish between an individual performing a unique or single job versus the ability to work in a class of jobs.
Office of General Services, a position she had worked in for 18 years. She then obtained a position as a file clerk in the New York State Insurance Fund. Subsequent performance evaluations during the probationary period indicated that her work was unsatisfactory. She requested and received a transfer to another unit with a new probationary period. She was terminated from this position in March 1992. In January 1995, she filed an ADA suit against the employer. In March 1998, the district court denied the employer’s motion for summary judgment. Up to that point, circuit courts had been divided on the mitigating measures issues, and the Supreme Court had not yet ruled in this situation. The courts concluded that Schaeffer was protected under the ADA because her condition substantially limited an MLA. In a jury trial, they awarded her damages. Subsequently, the Supreme Court arrived at a decision regarding the ADA trio of cases. Representatives for the employer then argued that these decisions—Sutton, Murphy, and Kirkingburg—require reversal because Schaeffer is not limited in any MLA when mitigat-
ing measures were considered. When she filed the court documents in opposition to the employer’s motion for summary judgment, no court of appeals had ruled that corrective measures should be taken into account when determining whether an individual is substantially limited in an MLA. Furthermore, because this case was heard before the Sutton decision, Schaeffer did not present expert testimony that she was substantially limited in an MLA when aided by medication and dietary restrictions. The district court stated, “There is no question that plaintiff ’s condition when uncontrolled by medication does limit MLAs, but when controlled it does not.”4 In the Rowles case, even though the medication controlled his epilepsy, Rowles was considered disabled because of the medication’s effects and the limitations in his life activities compared with the average person in the general population. In Schaeffer’s case, there was no question that her condition was controlled by medication and therefore did not limit an MLA. In both cases, the courts took their cues from the ADA trio, specifically Sutton and Murphy, but with two different conclusions. The above examples again emphasize the principle within ADA of an individualized inquiry. Shortly after the trio were announced by the Supreme Court, some legal commentators suggested that correctable disabilities no longer were covered under the ADA. This opinion, of course, has proved to be inaccurate, and the case involving Rowles v. APS is a clear example. CM Implications Since June 22, 1999, I have reviewed several hundred court cases and decisions and have found that the precedent-setting ADA trio has made an enormous impact on subsequent cases. These cases provide many examples of the external influences on the practice of CM. One such case is Holiday v. the City of Chattanooga, Tenn., a clear example of a medical practitioner failing to complete an individualized inquiry into an individual’s actual medical condition and the impact, if any, it might have had on that individual’s ability to perform the job in question. All three ADA cases formed July/August 2000
TCM 53
under the ADA by contracting out certain hiring and personnel functions to third parties.”5
BREAKING NEWS
O
n June 8, 2000, the Equal Employment Opportunity Commission (EEOC) issued the final rule on mitigating measures under the ADA. This rule, published in the Federal Register on June 8, rescinds parts of the EEOC interpretive guidance on Title I of the ADA. In a press release, EEOC Chairwoman Ida L. Castro stated, “This revised guidance clarifies the legal standard for determining when a person who uses mitigating measures meets the ADA’s definition of disability. The change identified in the Federal Register was made to be consistent with the Supreme Court rulings of June 1999 in both Sutton v. United Airlines, Inc., and Murphy v. United Parcel Services, Inc.” Federal Register, vol. 65, no. 111, Thursday, June 8, 2000, Rules and Regulations, 36327—the citation that identifies the change—can be found in the section titled Equal Employment Opportunity Commission, 29 CFR Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act. This citation reads as follows: “The EEOC is rescinding several sentences of the Interpretive Guidance on Title I of the Americans with Disabilities Act, found in the Appendix to 29 CFR 1630.2(h) and (j), that address mitigating measures used by persons with impairments. The guidance set forth in those sentences is no longer valid in light of the Supreme Court’s rulings in Sutton v. United Airlines, Inc., 527 U.S. (1999), and Murphy v. United Parcel Services, Inc., 527 U.S. (1999). In those cases, the Supreme Court held that the determination of whether an individual has an impairment that substantially limits a major life activity under the ADA must be made by considering any mitigating measures (such as medication or assistive devices) that the individual uses to eliminate or reduce the effects of an impairment.” This rule change is a specific example of how change and the feedback of change within the system alter a practice. The practice of case management has been influenced by this internal and external change. —Lewis Vierling
the basis for the Sixth Circuit Court of Appeals’ decision. At the heart of the issue, evolving directly from the trio, was a question of the medical condition’s effect on the specific plaintiff. In this case, Mr. Holiday sued Chattanooga because the city refused to hire him as a police officer. Infected with the human immunodeficiency virus (HIV), Holiday had been extended an employment offer contingent on his ability to pass the physical examination. He voluntarily informed the physician providing the medical examination of his HIV status. The physician advised the city that Holiday was unable to pass the medical examination because, in the doctor’s opinion, he was not strong enough to fulfill the physical requirements of police work. TCM 54
July/August 2000
It is important to note that Holiday had served as a police officer without any limitations in his ability to fulfill the job requirements. In fact, the medical practitioner had deemed him unable to perform functions that he later was required to perform as a police officer for the Tennessee Capital Police. I believe there are at least two issues here that could be construed to apply to CM: • The court’s reliance on the precedent that “courts should assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments”5 • The courts have stated, “Employers do not escape their legal obligations
In certain situations, case managers perform the function that could be classified as a health care professional and hiring and personnel functions. I believe these two areas will become more important in future cases. The court concluded that, when Holiday applied for the police officer’s position with the City of Chattanooga, he was entitled to be evaluated based on his actual abilities and the relevant medical evidence. He also was entitled to be protected from discrimination that would be based on fear, ignorance, or misconceptions. The Court of Appeals reversed the district court’s grant of summary judgment to the city. Importance of a Complete Vocational Evaluation The Supreme Court has asserted that, when people attempt to qualify for ADA protection under the MLA of working provision, they must provide specific information that amounts to a complete vocational evaluation. This necessity was cited in both the Sutton and Murphy decisions. I suggested in Part I of this series that an evaluation of an individual’s full work history is a valuable component of the assessment process in ADA cases. The vocational case manager must review not only pre-event (injury) history but also postevent circumstances. For example, in a case in northern California, Broussard v. University of California, the decision of the U.S. Court of Appeals for the Ninth Circuit was based on that type of information. Ms. Broussard had been an animal technician at the university who had a diagnosis of carpel tunnel syndrome. She eventually was “medically separated” from her employer. She filed a complaint with the EEOC, received a right-to-sue letter in February 1996, and so sued the university, seeking protection under the ADA. However, the district court granted a motion for summary judgment to the university. Broussard appealed the district court’s judgment. In November 1997, the university was granted the motion for summary judgment by the Court of Appeals, saying the plaintiff was not qualified under the ADA.
In considering this case, the Court of Appeals also reviewed the Sutton precedent that exclusion from one particular job did not mean an individual was substantially limited in the MLA of working. The court paid a great deal of attention to the vocational evaluation provided by the vocational rehabilitation specialist. However, the court found that the vocational evaluation was flawed in two ways. No objective evidence was given for the restrictions that the evaluator used, and the stated restrictions of keyboarding for 15 minutes were not consistent with the test results of 50minute intervals. The court also paid particular attention to the lack of a true vocational evaluation because several items were missing:
and avoid generalizations related to the assignment of physical work restrictions • Provide maximum services to individuals that will restore as much function as possible • Understand the side effects from the use of mitigating or corrective measures • Become involved in advocating and encouraging the use of reasonable accommodation for individual clients when appropriate
• No pre- and postevaluation were provided.
• Have an increased awareness of the use of mitigating or corrective measures and their new role in determining who might be qualified and therefore protected by the ADA
• No evaluation of vocational training or specific vocational abilities was shown.
Case managers representing or assisting employers in personnel issues should be aware of:
• No evaluation of the geographic area was provided.
• Employers’ ability to make hiring choices based on appropriate qualification standards
• The number of types of jobs in the geographic area were not considered. Therefore, the court determined that Broussard was not substantially limited in the MLA of working. The incomplete vocational evaluation did not provide ample evidence to help the court understand the impact and the effects of the disability on her ability to work. From all indications, courts no longer will accept this kind of evaluation in ADA cases— one of the most significant impacts of the ADA trio. Conclusion The ADA continues to be an evolving external influence on CM practice. Because that practice is so varied, court decisions affect a number of areas in CM. As identified in all the articles in this series, these influences are manifested in a number of ways. It is important for case managers to: • Communicate with treating physicians regarding the possible use of mitigating or corrective measures • Be specific with treating physicians
• The overall increase in employment discrimination cases • Litigation and EEOC enforcement trends • How the EEOC complaint and information-gathering processes have been altered by Supreme Court decisions • The evolving process in which court decisions influence the role of health care professionals Case managers involved in providing vocational evaluations in litigated cases need to be aware of the following: • The courts have provided very specific information—in essence a road map—for the submission of vocation evidence. • Evaluation must be done on an individual, case-by-case basis. • Court decisions can become precedents affecting the submission of evidence in subsequent cases.
An ancient Chinese proverb says, “The power of a butterfly’s wings can be felt on the other side of the world.” This thought exemplifies the idea that ordinary people can deeply influence society. Chances are we will never fully understand if, how, or when our own influence affects others, but according to John Briggs and F. David Peat in Seven Life Lessons of Chaos, “It is never one person who brings about change but the feedback of change within the system.”6 ❑ References 1. Thornburgh D. Reflections on the Americans with Disabilities Act. The Gardere Wynne Sewell and Riggs lecture at the University of Houston Law Center’s Health and Policy Institute, 2000 Feb 24, Houston, Texas. 2. Elias S, Levine S. Legal research: how to find and understand the law. 7th ed. Berkeley: Nolo Books; 1999. 3. U.S. Equal Employment Opportunity Commission. Instructions for field officers: analyzing ADA charges after Supreme Court decisions addressing “disability” and “qualified.” Issued 1999 July 26. 4. Schaeffer v. The State Insurance Fund, March 22, 2000. Available from: www.lawnewsnetwork.com. Cited 25 May 00. 5. Holiday v. City of Chattanooga. New York Law J, March 10, 2000. Available from: www.lawnewsnetwork.com. Cited 25 May 00. 6. Biggs J, Peat D. Seven life lessons of chaos: spiritual wisdom from the science of change. New York: Harper Collins Publishers; 1999. Lewis Vierling, MS, NCC, NCCC, CRC, CCM, is the vice president of and rehabilitation consultant for Mc/RS in Ankeny, Iowa. He also is the director of the Life Career Planning Institute and can be reached at [email protected]. Reprint orders: Mosby, Inc., 11830 Westline Industrial Dr., St. Louis, MO 63146-3318; phone (314) 453-4350; reprint no. 68/1/109132 doi:10.1067/mcm.2000.109132
July/August 2000
TCM 55
The Americans with Disabilities Act: Implications of Supreme Court Decisions for Case Managers
Part IV by Lewis E. Vierling, MS, NCC, NCCC, CRC, CCM
“
J
uly 26, 1990, was indeed a very proud moment in
my life. On that day, some 3000 Americans, including leaders from the disability rights movement from every part of this country, gathered on the White House lawn.”
So began Dick Thornburgh, former Attorney General of the United States, in his presentation, “Reflections on the Americans with Disabilities Act,” on February 24, 2000, at the University of Houston Law Center’s Health Law and Policy Institute. Thornburgh was there to celebrate the 10th anniversary of the Americans with Disabilities Act (ADA). He continued, “We were witness to an emotional ceremony where President George Bush signed into law this landmark legislation with the ringing admonition, ‘Let the shameful walls of exclusion come tumbling down!’”1 I, along with Patricia McCollom and a friend who has a severe disability, also were witnesses to the landmark legislation signed by President Bush. It truly was a day of celebration. After the signing ceremony on the White House lawn, a picnic was held in a park across from the White House and a reception that evening to conclude an historic day. To have been involved in advocating for the ADA through membership in the Iowa Commission for Persons with Disabilities, attended the signing on the White House lawn, then become an expert witness in ADA cases has been an interesting evolution. In July/August 2000
TCM 51
this fourth and final article regarding the impact of the Supreme Court decision for case managers, we’ll focus on external influences on case management (CM) through ADA and the court system. The first article in the January/February 2000 issue reviewed the June 22, 1999, Supreme Court decisions on two landmark cases involving the ADA—Sutton v. United Airline, Inc., and Vaughn L. Murphy v. United Parcel Services, Inc. The first article emphasized that an objective, accurate vocational evaluation with labor market data responding to the factors identified by the Equal Employment Opportunity Commission (EEOC) was critical to the case outcome. The article also emphasized that the Supreme Court upheld the principle that determining whether a person has a disability under ADA is an individualized inquiry. In the March/April issue, Part II focused on a third decision delivered on June 22, 1999, by the Supreme Court in Albertsons, Inc., v. Kirkingburg. Those three decisions issued on the same day came to be known as the ADA trio or trilogy and are considered landmark rulings. Also noted was the impact these decisions will have on future litigation and a further definition of the use of mitigating measures in determining whether an individual is protected under the ADA. Part III in the May/June issue discussed the continued significant ramifications of the ADA trio in two specific areas. Specific case decisions were explored to review the precedence set in the trio of cases. Throughout all three articles, specific emphasis was placed on this trio’s impact on CM practice. Precedent Versus Persuasive Authority In the fourth and final article, we will review how this ADA trio and the courts are an external influence on the practice of CM. As numerous cases have been followed throughout these articles, I will emphasize how these decisions have become precedent for other cases. Perhaps a brief distinction should be made between the term precedent versus persuasive authority. In a legal case, a precedent is “an earlier case relevant to a case to be decided.”2 If the circumstances of TCM 52
July/August 2000
the current case match an earlier one, the previous case is considered a precedent and binding on the court. The following general guidelines can be used to determine the effect one court’s decision has on another: • Appellate Court and Supreme Court cases are precedents with respect to future decisions by the same courts. • U.S. Supreme Court cases are precedent for all courts with respect to decisions involving the United States Constitution or any aspect of federal law. • U.S. Court of Appeals cases are precedents for U.S. District Courts within their 12 circuits. • Opinions of the U.S. District Court are never precedents for other courts. • State Supreme Court cases are precedents for courts within that state. Persuasive authority, on the other hand, is not binding on other courts, but if a case contains an analysis of legal issues and provides guidance for any court referring to it, it has persuasive authority. Generally speaking, the higher the court level, the more possibility for persuasive authority. External Influences on CM The following is a specific example and a partial review of Part I of an ADA case that has a direct external influence on CM practice. In Murphy v. United Parcel Services (UPS), Inc., UPS dismissed Murphy from his job as a mechanic because of his high blood pressure. He failed a physical examination because of hypertension; therefore, he was disqualified from receiving DOT health certification. Murphy filed suit under Title I of the ADA in federal district court, which granted a motion for summary judgment to UPS. (A motion for summary judgment is granted when the court believes no genuine issue of material fact exists. The party filing the motion is entitled to prevail as a matter of fact.) The Court of Appeals for the Tenth Circuit then affirmed that judgment. The Supreme Court then was asked to hear the case and decide whether the
Court of Appeals correctly considered Murphy in his medicated state. The Supreme Court rendered an opinion that the Court of Appeals correctly considered Murphy in his medicated state when it held that his impairment does not “substantially limit” one or more of his major life activities (MLAs). It should be noted that the Supreme Court decided to hear this case because lower courts had been divided regarding the importance of the use of mitigating measures in determining whether an individual is disabled and therefore protected by the ADA. As a direct consequence of this decision, the EEOC issued instructions for field offices regarding the analysis of ADA complaints and addressing the use of mitigating measures in considering whether a person is disabled. These instructions changed the procedures for field office staff investigating individual complaints. To use the EEOC’s terminology, the instructions summarize and explain Supreme Court cases’ impact on the process of charges under the ADA. They emphasize “the individualized analysis that must be used in determining whether a charging party has a disability as defined by ADA and whether a person is qualified.”3 As a direct result of the findings in the Supreme Court case, the EEOC instructions distinguish between an individual performing a unique or single job versus the ability to work in a class of jobs. In the case of Murphy, the class of jobs that were identified in the vocational evaluation now appear in the EEOC’s instruction format. For example, the Supreme Court determined that UPS’ mechanics’ job, which required the ability to drive commercial vehicles, was a single job and not representative of a class of mechanics’ jobs. The court determined that Murphy, although not able to perform one specific job, was not unable to work in the class of mechanics’ jobs including diesel mechanic, automotive mechanic, gas-engine repairer, and gas-welding equipment mechanic. These specific examples came directly from the Supreme Court decision, which in turn came directly from the vocational evaluator ’s report.
When investigating future complaints by individuals through EEOC field offices, investigators may be gathering information from appropriate case managers, employers, etc., directly related to the results of these decisions. Case managers involved in complaints will provide specific information to the EEOC investigators as a direct result of the outcome of this case. Contrasting Two Important Court Cases I previously noted that circumstances may arise when the side effects of a mitigating or corrective measure may substantially limit an MLA. Part III’s breaking news section identified a decision that had been rendered by a senior U.S. District Court Judge Sylvia H. Rambo for the middle district of Pennsylvania in the case Rowles v. Automotive Production Systems (APS), Inc. Although it may not be considered a precedent-setting case, it is considered a significant win for plaintiffs and may set the stage to limit the effects of the U.S. Supreme Court decision in Sutton v. United Airlines. APS had argued that Rowles’ epilepsy was corrected by medication and therefore did not substantially limit any of his MLAs. His treating physician supported this argument, saying Rowles’ current medication controlled the seizure disorder. Rowles’ attorney argued that he actually should be considered disabled because the medication never guarantees that he will be free of seizures and he always suffers from the drug’s side effects. Judge Rambo stated, “When viewed in its entirety, the limitations are substantial.” She reasoned that Rowles must limit his exposure to stress and fatigue, eat regularly scheduled meals, sleep 8 hours each night, avoid working excessive hours, and avoid infections that may affect his medication levels. For these reasons, Judge Rambo ruled that Rowles is disabled and therefore protected under the ADA. In contrast is Schaeffer v. The State Insurance Fund, in which Ms. Schaeffer was diagnosed with diabetes in March 1991. Her disease, however, was controlled by dietary restrictions and oral medication. In April 1991, she was dismissed from her job as an office clerk at the New York
As a direct result of the findings in the Supreme Court case, the EEOC instructions distinguish between an individual performing a unique or single job versus the ability to work in a class of jobs.
Office of General Services, a position she had worked in for 18 years. She then obtained a position as a file clerk in the New York State Insurance Fund. Subsequent performance evaluations during the probationary period indicated that her work was unsatisfactory. She requested and received a transfer to another unit with a new probationary period. She was terminated from this position in March 1992. In January 1995, she filed an ADA suit against the employer. In March 1998, the district court denied the employer’s motion for summary judgment. Up to that point, circuit courts had been divided on the mitigating measures issues, and the Supreme Court had not yet ruled in this situation. The courts concluded that Schaeffer was protected under the ADA because her condition substantially limited an MLA. In a jury trial, they awarded her damages. Subsequently, the Supreme Court arrived at a decision regarding the ADA trio of cases. Representatives for the employer then argued that these decisions—Sutton, Murphy, and Kirkingburg—require reversal because Schaeffer is not limited in any MLA when mitigat-
ing measures were considered. When she filed the court documents in opposition to the employer’s motion for summary judgment, no court of appeals had ruled that corrective measures should be taken into account when determining whether an individual is substantially limited in an MLA. Furthermore, because this case was heard before the Sutton decision, Schaeffer did not present expert testimony that she was substantially limited in an MLA when aided by medication and dietary restrictions. The district court stated, “There is no question that plaintiff ’s condition when uncontrolled by medication does limit MLAs, but when controlled it does not.”4 In the Rowles case, even though the medication controlled his epilepsy, Rowles was considered disabled because of the medication’s effects and the limitations in his life activities compared with the average person in the general population. In Schaeffer’s case, there was no question that her condition was controlled by medication and therefore did not limit an MLA. In both cases, the courts took their cues from the ADA trio, specifically Sutton and Murphy, but with two different conclusions. The above examples again emphasize the principle within ADA of an individualized inquiry. Shortly after the trio were announced by the Supreme Court, some legal commentators suggested that correctable disabilities no longer were covered under the ADA. This opinion, of course, has proved to be inaccurate, and the case involving Rowles v. APS is a clear example. CM Implications Since June 22, 1999, I have reviewed several hundred court cases and decisions and have found that the precedent-setting ADA trio has made an enormous impact on subsequent cases. These cases provide many examples of the external influences on the practice of CM. One such case is Holiday v. the City of Chattanooga, Tenn., a clear example of a medical practitioner failing to complete an individualized inquiry into an individual’s actual medical condition and the impact, if any, it might have had on that individual’s ability to perform the job in question. All three ADA cases formed July/August 2000
TCM 53
under the ADA by contracting out certain hiring and personnel functions to third parties.”5
BREAKING NEWS
O
n June 8, 2000, the Equal Employment Opportunity Commission (EEOC) issued the final rule on mitigating measures under the ADA. This rule, published in the Federal Register on June 8, rescinds parts of the EEOC interpretive guidance on Title I of the ADA. In a press release, EEOC Chairwoman Ida L. Castro stated, “This revised guidance clarifies the legal standard for determining when a person who uses mitigating measures meets the ADA’s definition of disability. The change identified in the Federal Register was made to be consistent with the Supreme Court rulings of June 1999 in both Sutton v. United Airlines, Inc., and Murphy v. United Parcel Services, Inc.” Federal Register, vol. 65, no. 111, Thursday, June 8, 2000, Rules and Regulations, 36327—the citation that identifies the change—can be found in the section titled Equal Employment Opportunity Commission, 29 CFR Part 1630, Interpretive Guidance on Title I of the Americans with Disabilities Act. This citation reads as follows: “The EEOC is rescinding several sentences of the Interpretive Guidance on Title I of the Americans with Disabilities Act, found in the Appendix to 29 CFR 1630.2(h) and (j), that address mitigating measures used by persons with impairments. The guidance set forth in those sentences is no longer valid in light of the Supreme Court’s rulings in Sutton v. United Airlines, Inc., 527 U.S. (1999), and Murphy v. United Parcel Services, Inc., 527 U.S. (1999). In those cases, the Supreme Court held that the determination of whether an individual has an impairment that substantially limits a major life activity under the ADA must be made by considering any mitigating measures (such as medication or assistive devices) that the individual uses to eliminate or reduce the effects of an impairment.” This rule change is a specific example of how change and the feedback of change within the system alter a practice. The practice of case management has been influenced by this internal and external change. —Lewis Vierling
the basis for the Sixth Circuit Court of Appeals’ decision. At the heart of the issue, evolving directly from the trio, was a question of the medical condition’s effect on the specific plaintiff. In this case, Mr. Holiday sued Chattanooga because the city refused to hire him as a police officer. Infected with the human immunodeficiency virus (HIV), Holiday had been extended an employment offer contingent on his ability to pass the physical examination. He voluntarily informed the physician providing the medical examination of his HIV status. The physician advised the city that Holiday was unable to pass the medical examination because, in the doctor’s opinion, he was not strong enough to fulfill the physical requirements of police work. TCM 54
July/August 2000
It is important to note that Holiday had served as a police officer without any limitations in his ability to fulfill the job requirements. In fact, the medical practitioner had deemed him unable to perform functions that he later was required to perform as a police officer for the Tennessee Capital Police. I believe there are at least two issues here that could be construed to apply to CM: • The court’s reliance on the precedent that “courts should assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments”5 • The courts have stated, “Employers do not escape their legal obligations
In certain situations, case managers perform the function that could be classified as a health care professional and hiring and personnel functions. I believe these two areas will become more important in future cases. The court concluded that, when Holiday applied for the police officer’s position with the City of Chattanooga, he was entitled to be evaluated based on his actual abilities and the relevant medical evidence. He also was entitled to be protected from discrimination that would be based on fear, ignorance, or misconceptions. The Court of Appeals reversed the district court’s grant of summary judgment to the city. Importance of a Complete Vocational Evaluation The Supreme Court has asserted that, when people attempt to qualify for ADA protection under the MLA of working provision, they must provide specific information that amounts to a complete vocational evaluation. This necessity was cited in both the Sutton and Murphy decisions. I suggested in Part I of this series that an evaluation of an individual’s full work history is a valuable component of the assessment process in ADA cases. The vocational case manager must review not only pre-event (injury) history but also postevent circumstances. For example, in a case in northern California, Broussard v. University of California, the decision of the U.S. Court of Appeals for the Ninth Circuit was based on that type of information. Ms. Broussard had been an animal technician at the university who had a diagnosis of carpel tunnel syndrome. She eventually was “medically separated” from her employer. She filed a complaint with the EEOC, received a right-to-sue letter in February 1996, and so sued the university, seeking protection under the ADA. However, the district court granted a motion for summary judgment to the university. Broussard appealed the district court’s judgment. In November 1997, the university was granted the motion for summary judgment by the Court of Appeals, saying the plaintiff was not qualified under the ADA.
In considering this case, the Court of Appeals also reviewed the Sutton precedent that exclusion from one particular job did not mean an individual was substantially limited in the MLA of working. The court paid a great deal of attention to the vocational evaluation provided by the vocational rehabilitation specialist. However, the court found that the vocational evaluation was flawed in two ways. No objective evidence was given for the restrictions that the evaluator used, and the stated restrictions of keyboarding for 15 minutes were not consistent with the test results of 50minute intervals. The court also paid particular attention to the lack of a true vocational evaluation because several items were missing:
and avoid generalizations related to the assignment of physical work restrictions • Provide maximum services to individuals that will restore as much function as possible • Understand the side effects from the use of mitigating or corrective measures • Become involved in advocating and encouraging the use of reasonable accommodation for individual clients when appropriate
• No pre- and postevaluation were provided.
• Have an increased awareness of the use of mitigating or corrective measures and their new role in determining who might be qualified and therefore protected by the ADA
• No evaluation of vocational training or specific vocational abilities was shown.
Case managers representing or assisting employers in personnel issues should be aware of:
• No evaluation of the geographic area was provided.
• Employers’ ability to make hiring choices based on appropriate qualification standards
• The number of types of jobs in the geographic area were not considered. Therefore, the court determined that Broussard was not substantially limited in the MLA of working. The incomplete vocational evaluation did not provide ample evidence to help the court understand the impact and the effects of the disability on her ability to work. From all indications, courts no longer will accept this kind of evaluation in ADA cases— one of the most significant impacts of the ADA trio. Conclusion The ADA continues to be an evolving external influence on CM practice. Because that practice is so varied, court decisions affect a number of areas in CM. As identified in all the articles in this series, these influences are manifested in a number of ways. It is important for case managers to: • Communicate with treating physicians regarding the possible use of mitigating or corrective measures • Be specific with treating physicians
• The overall increase in employment discrimination cases • Litigation and EEOC enforcement trends • How the EEOC complaint and information-gathering processes have been altered by Supreme Court decisions • The evolving process in which court decisions influence the role of health care professionals Case managers involved in providing vocational evaluations in litigated cases need to be aware of the following: • The courts have provided very specific information—in essence a road map—for the submission of vocation evidence. • Evaluation must be done on an individual, case-by-case basis. • Court decisions can become precedents affecting the submission of evidence in subsequent cases.
An ancient Chinese proverb says, “The power of a butterfly’s wings can be felt on the other side of the world.” This thought exemplifies the idea that ordinary people can deeply influence society. Chances are we will never fully understand if, how, or when our own influence affects others, but according to John Briggs and F. David Peat in Seven Life Lessons of Chaos, “It is never one person who brings about change but the feedback of change within the system.”6 ❑ References 1. Thornburgh D. Reflections on the Americans with Disabilities Act. The Gardere Wynne Sewell and Riggs lecture at the University of Houston Law Center’s Health and Policy Institute, 2000 Feb 24, Houston, Texas. 2. Elias S, Levine S. Legal research: how to find and understand the law. 7th ed. Berkeley: Nolo Books; 1999. 3. U.S. Equal Employment Opportunity Commission. Instructions for field officers: analyzing ADA charges after Supreme Court decisions addressing “disability” and “qualified.” Issued 1999 July 26. 4. Schaeffer v. The State Insurance Fund, March 22, 2000. Available from: www.lawnewsnetwork.com. Cited 25 May 00. 5. Holiday v. City of Chattanooga. New York Law J, March 10, 2000. Available from: www.lawnewsnetwork.com. Cited 25 May 00. 6. Biggs J, Peat D. Seven life lessons of chaos: spiritual wisdom from the science of change. New York: Harper Collins Publishers; 1999. Lewis Vierling, MS, NCC, NCCC, CRC, CCM, is the vice president of and rehabilitation consultant for Mc/RS in Ankeny, Iowa. He also is the director of the Life Career Planning Institute and can be reached at [email protected]. Reprint orders: Mosby, Inc., 11830 Westline Industrial Dr., St. Louis, MO 63146-3318; phone (314) 453-4350; reprint no. 68/1/109132 doi:10.1067/mcm.2000.109132
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