Fedweek Legal

The Third Circuit Court of Appeals in Philadelphia held that what an employee confronts, not overcomes, is the measure of a substantial limitation under the Americans with Disabilities Act (ADA) — which is enforced with the same standards as the Rehabilitation Act that covers federal employees. In Emory v. Astrazeneca Pharmaceuticals, Docket No. 03-4751, 2005 WL 563175 (3rd Cir.), the court may have reopened a window of opportunity for reasonable accommodations and freedom from discrimination for disabled employees.


In order to qualify as disabled for the purpose of statutory protection and entitlement to accommodations, you must show that you have a substantially limiting impairment that limits one or more major life activities. You can also qualify for protection from discrimination if you have a record of or are regarded as having such an impairment.


In recent years, a host of cases have limited the definition of who is a disabled employee, such that some have worried that the ADA/Rehabilitation Act would cease to have any teeth. In Sutton v. United Air Lines, 527 US 471 (1999), the Supreme Court expressed skepticism about and narrowly construed disabilities based upon limitations to the major life activity of working. In Toyota Motor Manufacturing v. Williams, 534 US 184 (2002), the Supreme Court constricted the definition of disabled employees further, finding that an employee’s inability to do repetitive work with her hands and arms above shoulder levels because of diagnosed carpal tunnel syndrome did not constitute a substantial limitation to the major life activity of performing manual tasks. The Toyota decision strictly limited protection only to those employees severely, permanently (or long-term) restricted, to a large degree, in activities of central importance to their daily lives. The Toyota decision did, however, reaffirm that employers and courts must perform an individualized assessment upon any employee’s impairment to determine whether he/she is disabled.


In Emory, the Third Circuit built upon the “individualized assessment” language of Toyota, stating, “We are mindful of the extraordinarily fact-intensive nature of the inquiry; even if two different plaintiffs alleging substantial limitations suffer from the same impairment, the nuances of its effect on their daily lives will invariably manifest themselves in distinct ways.” The Emory court then performed such an individualized assessment on the case before it. The plaintiff suffered from cerebral palsy. Though he, through extraordinary perseverance, managed to operate a side cleaning business, counsel families as a mediator and even perform as a clown, his ability to perform manual tasks (along with other major life activities) remained substantially limited, in that he could not negotiate basic life activities, such as tying his shoes, opening a jar or cutting his nails.


The Emory decision, which followed cases from federal districts and circuits across the country, may now be the norm. Disabled employees should be able to trust that the focus will not be on whether they have the “courage to participate in the major life activity” despite their disabilities, but, rather, on whether they face significant obstacles when they do so. If you have these types of obstacles, then you should be able to count on protection against discrimination in your federal job and the right to be reasonably accommodated.


This information is provided by the attorneys at

Passman & Kaplan, P.C., a law firm dedicated to the

representation of federal employees worldwide. For more

information on Passman & Kaplan, P.C., go to

www.passmanandkaplan.com.


The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to fedweek.com/pub