Legal Essays A NESTED MODEL OF DISABILITY DISCRIMINATION

Legal Essays ESSAYS ON LEGAL TOPICS A NESTED MODEL OF DISABILITY DISCRIMINATION STEVEN L. WILLBORN This essay should be cited as Steven L. Willborn, A Nested Model of Disability Discrimination, www.legalessays.com (1999). 1

A NESTED MODEL OF DISABILITY DISCRIMINATION Introduction Consider two situations: Steven L. Willborn 1 A. An individual claims she wasn t hired because of her disability in violation of the Americans with Disabilities Act. The employer defends by asserting that, although it knew about the disability, it did not rely on it at all in making the decision not to hire the individual. B. An individual with a disability proves that an employer did not make reasonable accommodations which would have permitted her to complete the application process for a job and claims that, as a result, she was not hired. The employer defends by asserting that, even if reasonable accommodation had been provided and the individual had completed the application process, she would not have been hired because other, more qualified candidates were available. For reasons that are central to a proper understanding of disability discrimination, the courts have been confused and inconsistent in considering these types of claims. First, the courts have tried to squeeze these types of situations into the individual disparate treatment models developed under Title VII, and the fit is difficult and imperfect. The courts have been slow to realize that disability discrimination is not merely a branch of the disparate treatment tree, but instead requires its own, distinctive type of analysis. Second, the courts have struggled in these cases because they present some issues that are individualistic in nature and others that are comparativistic. The central feature of disability discrimination, reasonable accommodation, is individualistic in nature. The focus is on whether the particular employer acted reasonably in accommodating the particular individual s disability, and not on a comparison of how the employer treated the individual compared to others. The other models of discrimination, in contrast, are primarily comparativistic. They focus intensely on a comparison of how the employer treats men vs. women, Whites vs. African-Americans, and so on. The courts have floundered in these cases because they have failed to recognize this fundamental distinction between disability discrimination and other types of discrimination. This introduction suggests two important keys to a proper resolution of the kinds of situations presented in the hypotheticals. First, the courts should view the core, individualistic analysis of reasonable accommodation as nested within a broader model of disability discrimination which contains comparativistic elements. A complete model must provide guidance on how to resolve both claims that an employer did not meet its duty to reasonably accommodate and claims that no duty ever arose or, if one did, that it did not matter. Second, in developing the comparativistic aspects of the model, the courts must not rely too heavily on Title VII s models of individual disparate treatment discrimination. Those models provide useful analogies, but 1 Cline Williams Professor of Law, University of Nebraska-Lincoln. 1

Steven L. Willborn A Nested Model of Disability Discrimination Page 2 disability discrimination is different in significant ways from the race and sex discrimination upon which Title VII s models were built. As a result, the models must be customized for the new legal and factual context of disability discrimination. A nested model of disability discrimination The central feature of any model of disability discrimination is reasonable accommodation. But that feature must be nested within a broader model which, at the front end, articulates when the accommodation duty is triggered and, at the back end, articulates what consequences should flow from a violation of the duty. This section will use the two hypotheticals to explore the nest, without saying much about the important doll which sits at the center. 2 Although I will suggest general approaches to the nest at both ends, the principal purpose of this article is not to delineate the nest in detail, but to demonstrate that the ADA is different from Title VII in ways which require a distinct mode of analysis. Getting to reasonable accommodation In Hypothetical A, the employer denies relying at all on the applicant s disability in making the hiring decision. 3 When presented with this type of situation, the Courts of Appeals all rely on Title VII s individual disparate treatment models to require the plaintiff to prove causation, but they differ significantly on the precise burden imposed. Some Circuits have held that the plaintiff must show that disability was a motivating factor for the adverse decision; others that it was a determining factor; still others are clear that causation is crucial, but fail to specify the precise standard. 4 All of these standards are incorrect because they rely on a false analogy to Title VII. Under Title VII, an employer s obligation is to ignore race and sex as it makes employment decisions. Since everyone has a race and a sex, the obligation is always present, with respect to every person and every employment decision. Title VII is violated only if the employer relies on race or sex to make an employment decision. Conversely, Title VII is violated (almost) 5 every time an employer does rely on race or sex to make an employment decision. The primary function of Title VII s individual 2 The analogy here is to Russian nesting dolls. Thanks to Peter Blanck, Alan Hyde, Doug Leslie, and Stewart Schwab for comments on an earlier draft. 3 Because my two hypotheticals use hiring discrimination, it is important to note that the vast majority of disability claims are made by current or past employees rather than applicants. This does not affect the analysis in this paper, although it is an important consideration on other issues. See Steven L. Willborn, The Non-Evolution of Enforcement Under the ADA: Discharge Cases and the Hiring Problem, in Employment, Disability Policy, and the ADA, ed. Peter Blanck (Chicago, Ill.: Northwestern Univ. Press, 1999)(forthcoming)(ratio of employee to applicant cases under the ADA is 10 to 1). 4 See Foster v. Arthur Anderson, 168 F.3d 1029, 1033-34 (7 th Cir. 1999)(motivating factor); Ennis v. National Ass n of Bus. & Ed. Radio, Inc., 53 F.3d 55, 59 (4 th Cir. 1995)(determining factor); Gaul v. Lucent Tech., Inc., 134 F.3d 576, 580 (3 rd Cir. 1998)(adverse employment decision must be a adverse employment decision must be a result of disability, but precise standard not specified). 5 Obviously, there are certain defenses, like BFOQ and a valid affirmative action plan, but they are quite limited and recognized as exceptions to a strong general principle of non-discrimination.

Steven L. Willborn A Nested Model of Disability Discrimination Page 3 disparate treatment models is to provide a framework for ensuring that the crucial causation element is met. But the situation is different under the ADA. First, the ADA s non-discrimination obligations do not apply to everyone, but only to individuals with disabilities. An employer has no ADA obligations if it legitimately does not know that an individual has a disability. This consideration simply does not exist under Title VII; its nondiscrimination obligations apply to everyone. 6 Second, when an employer learns about a person s disability, the employer has an affirmative obligation under the ADA to consider and, if necessary, to make reasonable accommodations. Even if the employer does not rely on the disability in making an employment decision, it violates the ADA if it fails to satisfy this procedural aspect of the accommodation obligation. 7 Thus, proving that the disability was a factor that caused an adverse employment decision is not necessary to establish an ADA violation; it is sufficient to prove that the employer knew about the disability and failed to act affirmatively to address it. 8 Third, unlike Title VII, the ADA is not necessarily (or even usually) violated when an employer does rely on an applicant s disability to make an employment decision. If the employer attempts to accommodate and the individual simply cannot do the job because of her disability or if the accommodation would impose an undue hardship on the employer, the ADA is not violated even though, at base, the reason for the adverse decision is the applicant s disability. 6 Note the distinction here between the non-discrimination obligation and proof of whether it has been violated. Under the ADA, the obligation simply does not flow to individuals without disabilities. Under Title VII, the obligation flows to everyone. Employers may defend by claiming they did not violate the obligation because they did not know the individual s race or sex and, therefore, could not have discriminated because of it. But they cannot defend, as they can under the ADA, by claiming that the obligation does not exist. 7 From the very beginning, the reasonable accommodation requirement was understood as imposing an affirmative, procedural duty to respond to knowledge about disability. H.R. Rep. No. 101-485(II), at 65-66, reprinted at, 1990 U.S.C.C.A.N. 303, 347-48 ( The Committee believes that the reasonable accommodation requirement is best understood as a process.... ). Administrative interpretations of the requirement have reaffirmed this view. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, EEOC Notice No. 915.002 (March 1, 1999)(citing many examples in which the ADA can be violated for violation of procedural duties). The courts have also recognized this procedural component of the duty. Courts discussing whether the reasonable accommodation duty requires employers to engage in an interactive process have all implicitly accepted the basic principle that the ADA can be violated even if the discrimination does not adversely affect a term or condition of employment. Courts which have imposed an interactive process requirement are willing to find an ADA violation based on the process failure alone. See Taylor v. Phoenixville Sch. Dist., F.3d (3rd Cir. 1999); Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281, 1285-87 (7th Cir. 1996). Even courts which reject an interactive process as an independent requirement recognize process considerations as relevant to the reasonable accommodation analysis. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 752-53 (9th Cir. 1998). 8 Another way to think about this point is to consider the basic commands of the two statutes. The basic command of Title VII is negative: When you become aware of an applicant s race or sex, ignore it. Do not act because of race or sex. The basic command of the ADA, in contrast, is precisely the opposite: When you become aware of an applicant s disability, you must act. You must consider accommodation possibilities and, if reasonable, make them. Failure to act on information about race or sex is required by Title VII; failure to act on information about disability is a violation of the ADA.

Steven L. Willborn A Nested Model of Disability Discrimination Page 4 The function of this stage of an ADA case is not, as it is under Title VII, to determine causation. Instead, the function is to determine whether the accommodation obligation has been triggered so that the case should proceed to the next level of analysis. 9 The reasonable accommodation obligation is triggered, not when an employment decision is made, but earlier: when the employer knows that the individual has a disability. Thus, this stage of a disability discrimination case should focus solely on that issue: Did the employer know about the individual s disability? 10 If so, the case proceeds to reasonable accommodation. If not, no ADA duty ever arose, so the case is over. But in either event, the false issue raised by the imperfect Title VII analogy B did the individual s disability cause an adverse employment decision? B is irrelevant at this stage and should be abandoned. Reasonable accommodation As mentioned above, although reasonable accommodation is at the heart of any model of disability discrimination, it is not central to the main purpose of this piece. The goal here is to demonstrate the distinctiveness of the ADA by outlining the overall structure of discrimination analysis under the statute. Although reasonable accommodation analysis is nested at the center of that structure, it is not necessary to detail its precise content to describe the surrounding structure. 11 It is sufficient for present purposes simply to note that reasonable accommodation analysis will result in one of two possible outcomes: either the employer met its obligation to accommodate reasonably or it did not. 9 The next level is the reasonable accommodation analysis to determine if the obligation, once triggered, has been met. 10 In this short piece, I am focusing on the basic structure of discrimination analysis under the ADA and am not attending to other, peripheral issues. Thus, for example, when I say this is the issue, I mean that it is the sole issue with respect to the basic structure of discrimination. Obviously, other issues would be present in the case, such as whether the employer is covered and whether the plaintiff truly is an individual with a disability. Similarly, I do not attempt in this short piece to define the relevant issue very precisely. Generally, the issue is: when is the accommodation duty triggered? In the current hypothetical, it may be that a more refined articulation of the standard would be whether the employer knew or should have known of the individual s disability. But I do not attempt that level of refinement here. In addition, the standard for triggering the accommodation duty will vary depending on the particular circumstances presented. For example, if instead of the current hypothetical, a blind person applies for a bus driver position, it is likely that no accommodation duty is triggered, not because the employer does not know about the disability (he knew), but rather because the employer knows that no reasonable accommodation is remotely possible. Thus, the triggering standard for this hypothetical would likely be something like: was there any possibility that reasonable accommodations could have permitted the applicant to do the job? See White v. York Int l Corp., 45 F.3d 357 (10th Cir. 1995). I make no attempt here to detail comprehensively the standards which might apply to trigger the accommodation duty. 11 This piece is a part of a broader effort where I will argue in detail that reasonable accommodation should be conceptualized as including both procedural and substantive obligations and obligations that draw substantially on the tort overtones suggested by use of the term reasonable. But I leave those arguments to a later day.

Steven L. Willborn A Nested Model of Disability Discrimination Page 5 Beyond reasonable accommodation In Hypothetical B, the employer has failed to meet its duty of reasonable accommodation, but claims that the individual would not have been hired even if the accommodation duty had been met. When presented with this type of situation, the Courts of Appeals turn to the mixed-motives model of Price Waterhouse v. Hopkins, 12 as modified by the Civil Rights Act of 1991 (CRA). 13 The plaintiff has proven that her disability was a motivating factor for the decision, but the employer can defend by proving that it would have reached the same result even if it had not considered the factor. If the employer meets its burden, it is liable for attorney s fees and injunctive and declaratory relief, but not for back pay, reinstatement, or compensatory damages. 14 These cases also rely too heavily on analogy to Title VII. This time the imperfect analogy has caused the courts to adopt a questionable interpretation of Title VII and the ADA to support their analysis and, in doing so, to ignore an analysis that is more straightforward and better customized to the ADA. Consider first the questionable interpretation of Title VII and the ADA. The mixedmotives model applied by the courts in these cases is the modified model inserted into Title VII by the CRA, rather than the original Price Waterhouse model. The courts apply the motivating factor standard of Section 703(m) of Title VII, rather than the substantial factor standard of Price Waterhouse. 15 They also hold that the employer merely limits its damages by meeting its burden, following Section 706(g)(2)(B) of Title VII, rather than avoiding liability entirely, as in Price Waterhouse. 16 The courts in ADA cases rely directly on the Title VII statutory language to justify their analysis. 17 This heavy reliance on Title VII is highly suspect for two reasons. First, with respect to the mixed-motives model, the CRA amended Title VII, not the ADA. Congress could have, but did not, insert the modifications into the ADA. 18 One could argue that 12 490 U.S. 228 (1989). 13 The Civil Rights Act of 1991 amended Title VII to modify the Price Waterhouse analysis. It added sections 703(m) and 706(g)(2)(B) to Title VII. Section 703(m) permits a plaintiff to prove discrimination by demonstrating that race or sex was a Amotivating factor for a decision; 706(g)(2)(B) provides that, when a violation is proven under 703(m), the employer can partially limit damages by proving that it would have taken the same action even in the absence of the impermissible motivating factor. 14 For cases that apply the mixed-motives model in this fashion to ADA claims, see Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300 (8 th Cir. 1995); Doane v. City of Omaha, 115 F.3d 624 (8 th Cir. 1997); Buchanan v. City of San Antonio, 85 F.3d 196 (5 th Cir. 1996). 15 Although the lead plurality opinion in Price Waterhouse used a motivating factor standard, the rest of the Court, a majority, used a substantial factor standard. 16 The Court in Price Waterhouse was unanimous that, if the employer met its burden of demonstrating the same result anyway, there would be no liability at all. 17 See supra cases cited in note 14. 18 Recall that the ADA was enacted in 1990, the CRA in 1991. The failure to amend the ADA was probably not inadvertent; elsewhere in the CRA, Congress inserted desired changes into both Title VII and the ADA. CRA ' 109, 105 Stat. 1077-78 (inserting provision dealing with extraterritorial employment into both Title VII and the ADA). See also CRA ' 102, 105 Stat. 1072-74 (adding 42 U.S.C. ' 1981a with language applying specifically to both Title VII and the ADA).

Steven L. Willborn A Nested Model of Disability Discrimination Page 6 language specifically inserting these changes into the ADA was unnecessary because Section 107 of the ADA already incorporated them. 19 But that would be wrong. 20 Standard statutory interpretation instructs that a specific cross-reference incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments.... 21 Even if we decide not to apply that maxim and refer to Title VII as amended, nothing in the ADA permits reliance on Section 703(m); the ADA simply contains no cross-reference to that section of Title VII, amended or not. The reliance on Title VII, however, is questionable statutory interpretation even if we ignore the cross-referencing problem and assume that the ADA incorporates Section 706(g)(2)(B) as inserted by the CRA. Section 706(g)(2)(B) applies only to a claim in which an individual proves a violation under section 703(m). Section 703(m), in turn, applies only when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for an employment decision. Thus, by its terms, section 706(g)(2)(B) applies only when race, color, religion, sex, or national origin is a motivating factor. By its terms, it does not apply to a claim alleging disability, or for that matter, any other type of discrimination. 22 The courts which have been applying section 706(g)(2)(B) directly to disability claims have not been reading it very closely. The principal point here is not that the courts have been technically sloppy. The principal point is that the courts have relied on the Title VII analogy too heavily. This has caused them to be technically sloppy, to be sure, but even more importantly it has directed their attention away from the distinctiveness of the ADA and from the important task of developing a model of disability discrimination tailored to that distinctiveness. So let s consider Hypothetical B again, this time looking to Title VII for guidance, but not relying on it reflexively, while paying special attention to distinctive features of the ADA. Consider the guidance from Title VII first. To prove a violation of Title VII, the general rule is that two essential elements must be proven: 1) discrimination that 2) adversely affects a term or condition of employment. 23 In Price Waterhouse, the debate was about who bore the burden of proof on the affects element. The dissenters argued that the plaintiff should always bear the burden of proof on this element. But a majority of the Court held that the burden of proof can be shifted to the 19 Section 107 of the ADA, 42 U.S.C. ' 12117, says that the powers, remedies, and procedures of sections 705, 706, 707, 709 and 710 of Title VII also apply to the ADA. 20 With apologies to the memory of Richard Nixon. 21 2B Norman J. Singer, Sutherland Statutory Construction ' 51.08 (5 th ed. 1992). 22 In a similar context, courts have held that sections 703(m) and 706(g)(2)(B) do not apply to retaliation claims because they are not included in section 703(m)s list of factors. See McNutt v. Board of Trustees, 141 F.3d 706, 709 (7th Cir.1998); Woodson v. Scott Paper Co., 109 F.3d 913, 933-35 (3d Cir.1997); Tanca v. Nordberg, 98 F.3d 680, 685 (1st Cir.1996). 23 Title VII ' 703(a)(1), 42 U.S.C. ' 2000e-2(a)(1). For a discussion of these two basic elements in the context of hostile environment harassment suits, see Steven L. Willborn, Taking Discrimination Seriously: Oncale and the Fate of Exceptionalism in Sexual Harassment Law, Wm. & Mary Bill of Rts. J. (1999).

Steven L. Willborn A Nested Model of Disability Discrimination Page 7 defendant if the plaintiff can prove that sex was a motivating or substantial factor in the decision-making process. Price Waterhouse was not a debate about whether the affects element had to be met to prove a violation of Title VII; all the Justices agreed that, if the element was not proven, there simply would be no Title VII violation. 24 Viewed in this way, the CRA represents an expansion of Price Waterhouse and a limited exception to the general rule. The CRA permits a violation of Title VII to be proven, even if the defendant can prove that its discrimination did not affect a term or condition of employment. That is, the CRA is an exception to the general rule that Title VII is violated only if there is both discrimination and an effect on a term or condition of employment; in the limited circumstances defined by sections 703(m) and 706(g)(2)(B), discrimination alone is sufficient. But in that situation, perhaps because it is a less serious violation, the CRA permits only limited damages. The plaintiff is entitled to attorney s fees and injunctive and declaratory relief, but not to back pay, reinstatement, or compensatory damages. In thinking about this guidance from Title VII, a central and distinctive feature of the ADA becomes salient: Effect on a term or condition of employment is not a necessary element of the reasonable accommodation obligation of the ADA. 25 Thus, the general rule for this provision of the ADA is different than the general rule under Title VII. Under the ADA, the general rule is that discrimination alone (that is, a failure to accommodate alone) is a violation; under Title VII, the general rule is that, in addition to discrimination, an effect on a term or condition of employment must be proven. This distinction is important in situations like Hypothetical B. Once the plaintiff has proven that the employer failed to meet its duty of reasonable accommodation, the plaintiff has proven everything necessary to establish an ADA violation and, hence, is entitled to all the damages she can prove. In Hypothetical B, she would not be entitled to backpay or instatement because she would not have been hired even if the employer had reasonably accommodated, that is, because she has not suffered those types of damages. On the other hand, she would be entitled to attorney s fees, injunctive and declaratory relief, and compensatory and punitive damages. 26 24 For the dissenters, this meant that the plaintiff had failed to satisfy its burden of proving that a term or condition of employment had been affected by the discrimination. For a majority of the Court, it meant that the defendant had failed to satisfy its burden of proving that no term or condition of employment had been affected by the discrimination. Thus, although the Court disagreed on who bore the burden of proof, all agreed that proof of the affects element meant liability, while failure to prove it (or proof that the element was not met) meant no liability. 25 See supra note 7 and accompanying text. 26 Cf. Carey v. Piphus, 435 U.S. 247 (1978)(under 42 U.S.C. ' 1983, compensatory damages available to students suspended from school without procedural due process even though school can prove it would have suspended students even if due process had been provided). The statute authorizing compensatory and punitive damages under the ADA contains a special defense for claims alleging violations of the reasonable accommodation duty. The employer can avoid these damages if it can demonstrate good faith efforts to make a reasonable accommodation. 42 U.S.C. 1981a(a)(3). The plaintiff would be entitled to compensatory damages only if she could prove she suffered those types of damages and the employer could not establish its special defense. She would be entitled to punitive damages only if she could meet the standard for awarding those damages. 42 U.S.C.

Steven L. Willborn A Nested Model of Disability Discrimination Page 8 Because of the ADA s distinctiveness, this outcome is different than either of the outcomes suggested by the Title VII analogy. It is different than Price Waterhouse because that case held that there is no liability at all if the employer can prove that the same result would have occurred if sex had not been considered. The ADA is different because an effect on a term or condition of employment is not a necessary element of a claim alleging a violation of the reasonable accommodation duty. Thus, liability exists even if the employer can demonstrate the same result anyway although, obviously, the employer s proof would affect the damages available. The result is different from the modified mixed-motives model of the CRA because that model permits only limited damages for the exceptional case under Title VII where an effect on a term or condition of employment is not required. Most notably for our purposes, it does not permit compensatory damages. Under the ADA, this is not an exceptional case. Rather, a violation of the reasonable accommodation duty (even if it does not have an effect on a term or condition of employment) is a direct and serious affront to a central policy of the Act. As a result, the full array of damages should be available. Conclusion My central claim in this article is that the ADA is a distinctive discrimination statute and, as a result, a reflexive application of Title VII s models of discrimination is ill advised. In making that argument, I have suggested ways in which a model of disability discrimination ought to be structured, but that was not my primary purpose. Instead, the argument here is that, whenever models of disability discrimination are being considered, Title VII s models should be used as analogies, but only as analogies. 27 Full account must be give to the distinctive features of this relatively new and fascinating statute, the Americans with Disabilities Act. 1981a(b)(1). If she meets that standard, it seems highly unlikely that an employer would ever be able to establish its special defense, even though it would be available theoretically. 27 This article is about why this is true with respect to the basic reasonable accommodation model of the ADA. Although I have not yet thought deeply about it, I suspect it is even more true for the ADA analogues of the systemic disparate treatment and disparate impact models.