Overcoming the Summary
Judgment Hurdles of the ADA by Debra M. Lawrence
Debra M. Lawrence is a supervisory trial attorney with the Baltimore field office of the Equal Employment Opportunity Commission. In this capacity, she prosecutes violations of the Americans with Disabilities Act of 1990 and other federal civil rights statutes. The views expressed in this article are hers alone and do not necessarily represent the views of the agency or the United States.
Over 15 years ago, Congress enacted
the Americans with Disabilities Act of 1990, in order to protect the rights of “some 43,000,000 Americans [who] have one or more physical or mental dis- abilities….” 1
Title I of the Act prohibits
employment discrimination, making it unlawful for an employer to: discriminate against a qualified indi- vidual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condi- tions, and privileges of employment.2 Other anti-discrimination statutes
contain these same prohibitions, well familiar to the plaintiff practitioner, and the burdens and methods of proof are the same. The definition of disability discrimination, includes not making reasonable accommoda- tions to the known physical or mental limitations of an otherwise qualified
1 2
42 U.S.C. §12101(a)(1) 42 U.S.C.§12112(a)
individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.3 Practitioners could not foresee the
extent to which judicial interpretation of this law would create great challenges to enforcing this law. Too many cases of discrimination, seemingly compelling, have been defeated by way of summary judgment. The result is that ADA claims are highly vulnerable to dismissal. With regard to the most common claims which arise under the ADA, disparate treatment and failure to accommodate, I offer some practical tips to surviving summary judg- ment and enforcing this law.
Select a Plaintiff who Will Be Covered by the ADA
When is a disability not a disability? Many claims under the ADA are lost
3 42 U.S.C. §12112(b)(5)(A)
when the court eventually decides that the plaintiff is not disabled within the meaning of the Act. Whether the plaintiff is disabled under the meaning of the ADA is an issue of law, allowing the court to dispose of your case at summary judg- ment.4
Think about this in the context of
the other civil rights statutes prohibiting employment discrimination. Under Title VII of the Civil Rights Act of 1964,5 anyone can be a member of a protected class. Under the Equal Pay Act of 1963,6 one must be either male or female, again making coverage pretty broad. Under the Age Discrimination in Employment Act of 1967,7
any individual at least age 40 is
covered. By contrast, the ADA’s definition of disability operates to exclude many individuals who, at first glance, we think would be covered.
Generally (And There Are Exceptions), Establish the Plaintiff ’s Coverage Under the First Prong of the ADA Definition of Disability
The term “disability” means, with Tired of having
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Trial Reporter
respect to an individual – A. a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
B. a record of such an impairment; or
C. being regarded as having such an impairment.8
The terms “impairment,” “substantially
limits,” and “major life activities” are the subjects of extensive judicial analysis, which, too often, results in the plaintiff not having an ADA disability. The prac- titioner should not be persuaded by the
(Continued on page 10) 4
See Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249, 254 (4th S.Ct. 34 (2006)
5 6 7 8
42 U.S.C.§2000e et seq. 29 U.S.C. §206(d)(1) 29 U.S.C. §621 et seq.
42 U.S.C. §12102(2)(A)(B)(C) Winter 2007 Cir.), cert. dism., 127
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