MANAGING EMPLOYEE DISABILITIES AFTER
TOYOTA MOTOR MANUFACTURING v. WILLIAMS

By Henry M. Perlowski, Esq.

As the article in this newsletter on the $6.8 million settlement negotiated between the EEOC and Wal-Mart amply demonstrates, employers must be mindful to limit their curiosity regarding potential disabilities and, instead, focus all inquiries on "essential job functions" only. Since the enactment of the Americans with Disabilities Act ("ADA") in 1990, counsel repeatedly have advised clients that the application process exclusively must focus on the essential functions of the job only, and not peripheral questions designed to elicit information about medical conditions and histories. Likewise, counsel have advised clients that the interactive process that must be initiated after any employee presents a medical condition also should focus on whether the employee nevertheless is capable of performing all essential job functions, either with or without some form of reasonable accommodation. Thus, the message remained clear - manage your ADA risks by maintaining a close analytical nexus between the health of your employees and your "essential job functions."

With this advice, the natural (and seemingly appropriate) inclination is to focus the initial ADA inquiry -- whether an employee is "disabled" and, thus, entitled to the protections afforded under the statute - on whether the health condition potentially impairs job performance. Indeed, an ADA issue normally arises when an employee tells his or her supervisor or Human Resources that a health condition may preclude work entirely or is causing difficulty with the performance of a specific aspect of the job. Management then must consider the overlapping obligations imposed by the ADA and Family and Medical Leave Act ("FMLA"), including whether an accommodation is possible (such as additional leave or a modified work schedule) and whether termination is feasible without running afoul of the statutes. Often faced with fluid health conditions and imperfect information, the maze created by the ADA and FMLA can paralyze even the most diligent and educated employer, leaving an increasing burden on the bottom line caused by jobs that remain unfilled or inadequately performed. With recent guidance from the United States Supreme Court, however, employers, depending on their level of risk tolerance, now have more ammunition when combating problematic ADA issues and problematic employees with ADA issues.

In Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 122 S. Ct. 681 (2002), the Supreme Court was presented with a carpal tunnel syndrome case wherein the Sixth Circuit, reversing the decision of the trial court, held that a "disability" can be predicated on the employee's inability to perform tasks specific to her automobile assembly line job. Thus, the Supreme Court was faced with two critical questions that go directly towards whether an employee is "disabled" under the ADA: (1) is "manual labor" a "major life activity"; and (2) if so, whether the inability to perform particularized work equates to a "substantial limitation" on a "major life activity." The Sixth Circuit answered both of these questions in the affirmative to bring the employee, Ella Williams, within the myriad protections afforded by the ADA.

Before reaching the Supreme Court's analysis of these issues, it is important to consider how Toyota handled the disability situation presented by Williams. After initially working on Toyota's engine fabrication assembly line, Williams developed pain in her hands, wrists and arms, and was diagnosed with bilateral carpal tunnel syndrome and bilateral tendinitis. Williams then consulted a doctor, who placed her on permanent work restrictions that precluded her from: (1) lifting more than twenty (20) pounds; (2) frequently lifting or carrying objects weighing up to ten (10) pounds; (3) engaging in repetitive flexing or extensions of her wrists or elbows; or (4) performing "overhead" work. Upon receipt of these restrictions, Toyota placed Williams in various modified duty jobs for over two years and, thus, engaged in the interactive process contemplated by the ADA and its implementing regulations. Williams then took medical leave and filed a worker's compensation claim against Toyota. After returning to work once this claim was settled, Williams became unsatisfied with Toyota's efforts to accommodate her and claimed additional injuries flowing from certain quality control jobs in which she was placed. Specifically, Williams wanted to return to two of the modified duty jobs only, while Toyota wanted her to rotate among four quality control jobs along with the other members of her team. Toyota thus attempted to exercise its statutory right to control the type of reasonable accommodation required by the ADA when confronted with a "disabled" employee. Williams then returned to her physician and received a "no work of any kind" restriction. Seven-plus weeks later, Toyota terminated Williams, citing to her poor attendance and, curiously, not her inability to perform the modified duty quality control positions, either with or without a reasonable accommodation.

From these facts, it is clear that Toyota treated Williams as a "disabled" employee throughout her employment, as it continued to work with her for many years after her initial diagnosis of carpal tunnel syndrome and tendinitis. Toyota took Williams at face value and continued to evaluate her condition and placed her in positions where she could perform the essential functions of her modified duty positions. Only after Williams filed for worker's compensation and then alleged an inability to perform two of the modified positions that she previously performed, did Toyota take a harder stance with her. Although Toyota's decision to demand that she remain in the rotation applicable to all quality control team members may have been considered risky at the time, the Supreme Court's decision and analysis in Williams certainly gives employers more leverage when faced with difficult and potentially costly ADA-related decisions.

In a unanimous decision authored by Justice Sandra Day O'Connor, the Supreme Court immediately focused on the core definition of "disability" within the ADA - whether an employee has a substantial limitation on a "major life activity." The Supreme Court then noted that the EEOC regulations state that "substantially limited" means "unable to perform a major life activity that the average person in the general population can perform" or "significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." See 29 C.F.R. § 1630.2(j) (2001). Recognizing the required comparison to the average person in the population, the Supreme Court concluded that the key terms defining an ADA "disability" must be strictly construed. Otherwise, the ADA potentially would reach hundreds of millions of people, a result that Congress could not have contemplated when enacting the statute in 1990.

Turning to Williams specifically, the Supreme Court refused to find that "working" standing alone constitutes a "major life activity." More than recognizing that many people do not work for any number of reasons, the Supreme Court was troubled with the prospect that employees could claim ADA protections based exclusively on the specific considerations of individual jobs and individual limitations on the performance of those jobs. Thus, Justice O'Connor stated, in dicta, that even assuming that working could be a "major life activity," "a claimant would be required to show an inability to work in a 'broad range of jobs,' rather than a specific job."

The Supreme Court then turned to the evidence presented as to whether Williams was restricted from performing "manual tasks" and, thus, was substantially limited from performing this major life activity. Emphasizing the word "major," the Supreme Court first commented that the ADA is concerned with "those activities that are of central importance to daily life." Thus, for manual tasks to support ADA protection, "the manual tasks [at issue] must be central to daily life," such as walking, seeing and hearing. As Justice O'Connor explained, "the manual tasks unique to any particular job are not necessarily important parts of most people's lives. As a result, occupation-specific tasks may have only limited relevance to the manual task inquiry." By focusing only on whether Williams could perform the manual tasks associated with her quality control jobs - "repetitive work with hands and arms extended at or above shoulder levels for extended periods of time" -- the Sixth Circuit committed reversible error. The Supreme Court thus remanded the Williams case for further consideration as to whether Williams presented evidence capable of meeting the "disability" standard announced by the Court.

Moreover, after issuing the Williams decision, the Supreme Court refused to accept review of the decision of the Eleventh Circuit Court of Appeals in Chenowith v. Hillsborough County, 250 F.3d 1328 (11th Cir. 2001), wherein the Eleventh Circuit rejected an ADA claim because the employee failed to show that her alleged "disability" impacted the ability to perform her regular job. Thus, an ADA plaintiff effectively has to present evidence that demonstrates the condition's impact on the ability to perform "essential job functions" and that the condition otherwise substantially limits the performance of a "major life activity," using the general public comparison analysis explained in Williams. This evidence furthermore only gets the employee-plaintiff past stage one of litigation - establishing that an ADA "disability" is at issue in the case. The employee-plaintiff, of course, then must proceed to show that the employer has committed a statutory violation when handling the "disability" at issue.

The Supreme Court's recent consideration of what qualifies as a "disability," particularly through its ruling in Williams, clearly signals a victory for employers because it effectively provides employers with more leeway to make difficult decisions that otherwise would be compromised because of concerns over ADA liability. By changing the litigation focus from the specific job analysis to a "comparison to the general public" analysis, the Supreme Court has placed a higher burden on ADA plaintiffs to present evidence capable of establishing the "disability" necessary to predicate statutory protections. Remember, regardless of the medical condition and job limitation at issue, if the employee is not "disabled" within the meaning of the ADA, no statutory liability can be found, at least under the ADA.

Practically speaking, employers may take the following lessons from Williams. Even with the Supreme Court's analysis, employers should continue to respond to ADA situations by evaluating whether the employee is able to perform his or her "essential job functions," either with or without a reasonable accommodation. Permissible accommodations that warrant consideration, of course, still include modified duty positions and flexible leave, among others. By conducting this analysis and reevaluating the situation as necessary, employers satisfy the "interactive process" and remain sensitive to potential ADA qualifying situations.

When presented with particularly problematic employees or potentially burdensome accommodation requests, however, employers may associate counsel and take a more critical examination of the facts and, particularly, the medical certification information that should be provided in every ADA situation. This critical examination indeed may allow employers to make difficult decisions, recognizing that the Supreme Court's decision in Williams has made it that much more difficult for employees to survive the minefield of ADA litigation. In other words, the risk that you ultimately will be proven wrong under the ADA has been lessened, although not removed, by the Supreme Court.

Henry M. Perlowski is a partner in AGG and is a member of the firm's Employment Law and Litigation Practice Groups. If you have any questions concerning the issues presented in this article or any other employment related need, please contact Mr. Perlowski at 404.873.8684 or by e-mail at Henry.Perlowski@agg.com, or any other member of AGG's Employment Law Practice Group.

 

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