The ADA was signed into law in 1990. Since then, ADA issues, both from a day-to-day counseling perspective, as well as from a formal litigation standpoint, have been perhaps the single most frequent area of concern for our labor and employment clients. I say "perhaps," because issues and litigation arising under the Family and Medical Leave Act of 1993 ("FMLA") at the very least run a close second, and frequently are intertwined with the ADA, as well as workers' compensation laws. This is why our labor and employment group has over the last five years conducted seminar after seminar on the interrelationship between the ADA, FMLA and state workers' compensation law (If any of you do not have a copy of our seminar materials on this interrelationship, please e-mail me at jtopazian@mail.semmes.com, and I will make sure to get a copy of the latest version to you.).

Any analysis under the ADA begins with the premise that only applicants and employees with a "disability" who are able to perform the essential functions of the job with or without reasonable accommodation enjoy legal protection under it. "Disability" within the meaning of the ADA is a legal term of art that must be determined on a case by case, individualized basis. The statute itself states that an individual with a "disability" at least means that the individual (1) has a physical or mental impairment that substantially limits one or more major life activities, such as performing manual tasks or working, (2) has a record of such an impairment, or (3) is regarded or perceived by the employer as having such an impairment.

In 1999, the Supreme Court issued two landmark opinions under the ADA favorable to employers. In Sutton v. United Airlines, the Court held that mitigating measures such as medication (e.g., blood pressure medication) or physical aids (e.g., eye glasses) must be taken into account in determining whether an individual is disabled within the meaning of ADA. In Murphy v. United Parcel Service, the Court held that an employer cannot be found to have regarded an individual as disabled under the ADA unless an adverse employment decision is based upon a demonstrable, albeit mistaken, belief that the individual suffered from an impairment that, in fact, constitutes a disability within the meaning of ADA.

Thus far this year, the Supreme Court has issued three additional landmark opinions under the ADA, which, when applied in conjunction with Sutton and Murphy, significantly clarify the ADA's murky language and further level the playing field for employers in the area of disability-related rights and corresponding employer obligations. In order, these three 2002 opinions are: Toyota Motor Manufacturing v. Williams (January 8, 2002), US Airways, Inc. v. Barnett (April 29, 2002), and Chevron USA v. Echazabel (June 10, 2002).

Ken Knuckey has aptly described the Toyota and US Airways rulings in his article above. Briefly, in Toyota, the Court addressed the definition of an actual disability under the ADA, and issued a unanimous decision that drastically lessens the universe of individuals who may be considered disabled within the meaning of the ADA. In US Airways, the Court held that a valid seniority system may and frequently will trump the ADA when it comes to providing reasonable accommodation to disabled employees. In other words, fairness to all employees, disabled or not, is now the law of the land.

Most recently, in Chevron USA the Court finally resolved the so-called "direct threat" defense to a charge of employment discrimination under the ADA. The ADA outlaws quite a number of things that an employer may do to block the advancement of disabled individuals in the workplace (such as, for example, "using qualification standards . . . that screen out or tend to screen out" disabled individuals). However, the ADA also creates an affirmative defense (one that the employer must prove) where the disabled individual "pose(s) a direct threat to the health or safety of other individuals in the workplace." Although not stated within the language of the statute, Semmes, Bowen & Semmes has long advised its clients that the direct threat defense also applies where the disabled individual poses a direct threat to his or her own health or safety in the workplace.

Our advice has been based upon a long-standing Equal Employment Opportunity Commission ("EEOC") regulation that extends the direct threat defense in this manner. In Chevron USA, the Court agreed, and now it is the law of the land, that management may consider the nature of the disability (for example, conditions existing prior to hire that may likely lead to injuries on the job and/or worsening of pre-existing impairments such as hearing impairments, back conditions and carpal tunnel syndrome) in deciding whether to hire or discharge disabled individuals. From a risk management standpoint, this makes simple common sense. As Ken Knuckey aptly states in his article, the Supreme Court's recent opinions this year are yet "more good news for management." Hail to the Supremes!