The Network Summer 2002
By: Robert L. Cloud, Attorney
It appears so, based on a series of recent decisions by the US Supreme Court. What Congress did in 1990 is, in part, being undone by the Courts. These decisions will somewhat limit the ability of persons with narcolepsy to benefit from the Act.
On April 29, 2002, the U.S. Supreme Court decided the case of U.S. Airways v. Barnett. The Judges held, by a 5 - 4 majority, that when an employer's effort to make a reasonable accommodation conflicts with the company or union seniority policy, the policy will usually take priority. For example, if a night-time or shift worker with narcolepsy might be allowed the reasonable accommodation of a change to day shift, it can suddenly become unreasonable when it means depriving another employee with greater seniority of the position.
A few months earlier, in January, the Supreme Court decided the case of Toyota Motors v. Williams. Williams had received a reasonable accommodation by placement in a non-lifting job, due to her carpal tunnel syndrome. But when the job later required more lifting, she was unable to do it and further accommodation was denied. An open question remained as to whether her disability would prevent her from doing other major life activities, which the Court defined as "of central importance to most peoples daily lives". In other words, if she could function okay at home, she would not be considered disabled. The Court sent the case back for taking evidence on that question. This will present difficulty for an employee with narcolepsy, suffering from excessive daytime sleepiness who is awake, with or without medications, enough to perform most major life activities at home.
In a series of cases decided last year, the Supreme Court held that, in judging whether a physical or mental impairment substantially limits a major life activity, the effects of one's corrective measures must be considered. Corrective measures would include medication. Accordingly, a person with narcolepsy who benefits from medication enough to perform most major life activities would likely not be found to be disabled.
In a 2001 Northern District of Illinois case, Kolecyck-Yap v. MCI WorldCom, Inc. two plaintiffs sought disability based on obstructive sleep apnea. The Court held that both plaintiffs failed to present evidence establishing that their sleep disorders were so severe as to substantially limit the major life activity of sleep. (However, on a positive note, the Court did go beyond the statutory definition of major life activities to include sleep.) In 1997, the same Court considered another individual with severe sleep apnea in Silk v. City of Chicago. There the Court found that Silk presented sufficient evidence to show that his oxygen and blood pressure levels were so dangerous during sleep that it interfered with his major life activity of breathing, and a disability finding was granted. A year later, in 1998, the same Court decided Newman v. Silver Cross Hospital, which involved a plaintiff with narcolepsy and cataplexy. The hospital made several accommodation efforts, including day shift work and two 20-minute naps. But eventually, reorganization and seniority prevented these from continuing. When Silk sought to prove disability, she was denied, the Court holding that merely needing to take some naps and not being able to work a night-shift did not amount to a sufficiently substantial limitation on the major life activity of working.
In another recent Supreme Court case, Garrett v. University of Alabama, the Supreme Court held that a private employee may not sue one's State employer for money damages when, for example, seeking back pay recovery. The Court reasoned that, while the Fourteenth Amendment to the Constitution allows Congress to prohibit states from discrimination, the Eleventh Amendment gives immunity to the states from private lawsuits in Federal Courts. (Isn't the law wonderful?) This holding would only impact persons with sleep disorders who work for the State (e.g. State University, State Hospital, State Motor Vehicle Division, and others). Moreover, this only affects the right to seek money damages, and not the right to seek reasonable accommodation.
Another area of concern is when one's alleged disability poses a direct threat to the safety of the individual, as well as others. In the case of Chevron USA, Inc v. Echazabal, the trial court denied disability to an employee whose liver condition would be aggravated by his work in a chemical solvents unit. This will likely be one of the next major cases to be decided by the Supreme Court. It is of particular importance to persons with narcolepsy and/or cataplexy whose job requires regular driving, work with heavy equipment, or similar work.
Finally, athletes with narcolepsy may recall the case of PGA Tour v. Casey Martin, decided last year. Martin's pain and atrophy in his lower leg prevented him from walking the golf course. The PGA lawyers, wanting to bar Martin from competition, argued that allowing him the accommodation of a golf cart was unreasonable, as it would fundamentally alter the competition, and that the golf course is not a place of public accommodation when used for a professional tournament. (Was it Chesterton who said, "First, kill all the lawyers."?) The Supreme Court found that Martin's being allowed use of a golf cart would not give him an unfair advantage nor would it change the fundamental aspect of the game. (We recall the struggles of our friends Tracy Bonner, world champion swimmer, and Nicole Jeray, professional golfer, whose ability to continue competing in water and on fairways depended on their use of lawfully prescribed wake promoting medications.) What can we learn from these cases? I believe the following are important.
1. It is always better, when possible, to stay out of Court, by avoiding work situations likely to result in discrimination and misunderstanding against persons with narcolepsy. This might include choosing smaller or more enlightened employers, or even seeking more appropriate work when possible.
2. Most of these decisions only apply to seeking damages after the fact. They do not lessen the spirit of the ADA, which promotes understanding and reasonable accommodation when possible. When the right case comes along, a person with narcolepsy (or other sleep disorder) might try to have a court expand the ADA's list of major life activities to include wakefulness.
3. For those who face discrimination, the above decisions only apply to the ADA, a federal act, and do not affect most State discrimination statues, which can provide quicker relief.
(I acknowledge use of the excellent discussions regarding these cases provided by Equip for Equality, a private nonprofit organization which administers the Federal Protection and Advocacy System in Illinois.)