American Journal of Law & Medicine

The Americans with (or without) Disabilities Act: pre-employment medical inquiries and the non-disabled.

I. INTRODUCTION

In 1990, approximately 43 million Americans suffered from mental or physical disabilities.(1) There is no question that disabled Americans face discrimination in their daily lives.(2) However, prior to 1990, disabled individuals were only able to obtain legal redress from discrimination they experienced in the federal arena.(3) As such, many were left with no legal course of action whatsoever.(4) To address this previously unpunished discrimination against disabled persons, President George H. Bush signed the Americans with Disabilities Act ("ADA" or "the Act") into law on July 26, 1990. With the purpose of setting forth a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,"(5) the Act placed able-bodied status among other statutorily protected categories such as race, national origin, gender and age. As with legislation protecting other groups victimized by discrimination, Congress, in enacting the ADA, recognized the need for equal treatment of disabled persons in the realm of employment.(6) In fact, the employment provisions are the first regulations set forth in the ADA,(7) and serve as the source of much ADA-based litigation.(8) As the courts of our country grapple with the scope of the employment provisions, some decisions would seem to belie the Act's title.(9) One of the more recent issues arising from the ADA's employment provisions, and the subject of this Note, is whether a non-disabled person has a right of action under section 12112(d)(2)(A), the provision governing pre-employment medical inquiries. Surprisingly, in light of the purpose and title of the Act, some courts have answered this question in the affirmative.(10)

Before examining this controversy, this Note will provide an overview of the ADA, focusing on the employment provisions. Part II of this Note will draw a basic outline of the Act, focusing on a brief overview of the major provisions. Part III will mirror Part II as it presents a more substantive look at the employment provisions of section 12112 of the ADA. Part III will provide a basic outline of the activities regulated by the employment provisions, and will consider section 12112 and its relation to Title VII. Part III will also examine the statutory language, legislative history and administrative guidelines of the employment provisions. Finally, Part III will use the context of the foregoing discussion to set forth the threshold question of this Note: can a non-disabled individual rightfully pursue a claim of discrimination based on a pre-employment offer medical evaluation, as regulated by section 12112 of the ADA?

Part IV of this Note will examine the approaches of various district and appellate courts to this question. Part IV will first consider the developing body of law that has held that non-disabled individuals do in fact have standing to assert a claim under section 12112. Part IV will then examine the body of case law that has come to the opposite conclusion. Finally, Part IV will compare the two foremost cases and consider them in light of the purpose, language and legislative history of the ADA. In conclusion, this Note will suggest that for reasons based on statutory construction, legislative intent and policy considerations, section 12112(d)(2)(A) claims are best left reserved for Americans with disabilities as distinct from their non-disabled counterparts.

II. THE AMERICANS WITH DISABILITIES ACT

A. BRIEF OVERVIEW

The intent of the ADA is to "assure equality of opportunity, full participation, independent living, and economic self-sufficiency" for disabled individuals.(11) The Act is divided into four titles, three of which focus on the major areas in which disabled individuals have historically experienced discrimination: employment, public services and public accommodations.(12) The final title incorporates miscellaneous provisions.(13) A working knowledge of the definition of a "disability" is integral to the understanding of the various titles. Within the meaning of the ADA, "disabled" refers to: (1) an individual who has a "physical or mental impairment that substantially limits one or more of the major life activities of such individual;" (2) a "record of such impairment;" or (3) an individual who is "regarded as having such an impairment."(14) An individual need only meet one of these definitions to be considered "disabled" within the meaning of the statute.(15)

Title I covers discrimination against disabled persons in employment.(16) The basic thrust of these provisions is that employers are forbidden from discriminating against a person on account of her or his disability in all aspects of employment, including the application process, hiring, wages and benefits.(17)

Title II of the ADA concerns discrimination in the administration of public services.(18) Under these provisions, a disabled person cannot be denied services or participation in programs that are available to non-disabled individuals.(19) Title II also sets forth the requirement that disabled individuals must have full access to public transportation systems.(20) Title II covers state and local government instrumentalities and commuter authorities.(21)

Title III describes the public accommodation regulations.(22) Title III requires all new building construction and modifications to be accessible to disabled persons.(23) Completed public facilities must remove existing obstacles to the servicing of the disabled.(24) For purposes of Title III, public facilities include, among others, restaurants, hotels and stores.(25) Privately owned transportation systems, which are not covered under Title II, are instead regulated by Title III.(26)

Finally, the name of Title IV indicates the scope of its provisions: Miscellaneous.(27) Provisions incorporated therein prohibit retaliation against and coercion of a disabled person who exercises her or his rights under the ADA.(28) Title IV also allows a party prevailing in ADA litigation to recover attorney's fees and authorizes the use of alternative means of resolving disputes arising under the ADA.(29)

III. TITLE I OF THE ADA: EMPLOYMENT

A. INTRODUCTION AND PURPOSES OF TITLE I

Disabilities often prevent individuals from partaking in activities that non-disabled people enjoy without hindrance. However, disabled individuals are often physically and mentally able to do these things, but the attitudes and preferences of others prevent them from doing so. Whether it is due to a lack of ability, or to discrimination, disabled people are astoundingly under-represented in the employment arena.(30) Prior to the enactment of the ADA, over 65% of working-age disabled Americans were unemployed.(31) A comparison between the incomes of disabled and non-disabled employees further demonstrates the employment disparities. Prior to the ADA's enactment, employers paid disabled workers slightly more than a third of the wages earned by non-disabled workers.(32) During the mid-1980s, 50% of disabled adults had a household income of $15,000 or less, while only 25% of able-bodied adults had the same income. …

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