Supreme Court & Disability Law: A Look at the 2001-2002 Term

Jennifer Bowerman

Thanks, Pat. Welcome to the ADA Distance Learning Session hosted by your regional Disability and Business Technical Assistance Center. Thanks for joining us for today''s session "The Supreme Court and Disability Law: A Look at the 2001-2000 Term." Each year we tend to use this session as kind of a pre-game show talking about the cases that are currently before the Supreme Court and some of the issues that will be addressed by the Court. We are excited to have with us, Arlene Mayerson from the Disability Rights Education Defense Fund or DREDF, hi Arlene.

Arlene Mayerson

Hi.

Jennifer Bowerman

Arlene has been directing attorney at DREDF since 1981 and is the co-director of the Disability Rights Legal Education Clinic, she is one of the nation''s leading experts in disability rights law. She has been a key adviser to both Congress and the disability community on the major disability rights legislation of the past decade including the ADA. At the request of members of Congress she supplied expert testimony before several committees of Congress which were debating the ADA. Ms. Mayerson filed comments on the ADA regulations for over 500 disability rights organizations. She has devoted her career exclusively to disability rights practice representing clients in a wide array of issues and representing the disability community and members of Congress in the courts of appeal and the Supreme Court. In addition to her position at DREDF, she is currently a lecturer for disability rights law at the University of California Berkeley and Stanford Law School. This session is currently real-time captioned on the Great Lakes web site at www.adagreatlakes.org. Please note as a convenience to participants we have posted on the Great Lakes web site links to the Northwestern School of Journalism web site where they summarize the cases before the Supreme Court. Arlene has also generously provided a hand out that we will have posted to the web site following this session. So with that I am going to turn it over to you, Arlene, after your presentation we will open it up to questions.

Arlene Mayerson

Thank you very much, Jennifer. There are currently four ADA cases in the Supreme Court. And one that is under consideration where the Supreme Court has asked the solicitor general for its views as to whether cert it should be granted. There is a couple of cases I will talk about at the end which are not ADA cases but could have profound impact on the future of the ADA. I am going to start first with Williams. Toyota v. Williams is a case I have been involved in, I filed a brief on behalf of the National Council on Disability, worked with the National Coalition of People with Disabilities and also worked very closely with plaintiff''s counsel. This case was heard on November 7th and I was at the argument. The case could either be decided very narrowly and have a narrow effect or it could have a tremendous impact on the definition of disability in the statute and hence on the types of impairments covered by the ADA. A little bit about the facts, Ella Williams has carpal tunnel syndrome, tendonitis and other impairments which were a result of her work on the assembly line at Toyota. When these impairments manifested themselves Ms. Williams asked for an assignment in the jobs that would require the least strenuous activity, particularly with her hands. After a couple of different lawsuits she was given that assignment and she worked in what Toyota claimed to be the easiest job in the plant. After a while working there, she was doing fine and getting fine evaluations, Toyota decided that everybody that worked in this particular unit of Toyota had to do all the assignments. Currently she was doing two, the easiest ones and they wanted her to do four. The other job that they assigned her to, this new job, was very strenuous for her hands, caused a lot of pain and she could not do the job. So the question became whether Ms. Williams could just do the two jobs that she was successfully performing or whether she had to do the newly assigned third job that was causing her pain and beyond her medical restrictions. This case went to district court. The district court granted Toyota''s motion to dismiss. Saying that Ms. Williams was not a person with a disability. The case went to the 6th Circuit Court of Appeals. The 6th Circuit said Ms. Williams was a person with a disability because under the definition of disability in the ADA, she was substantially limited in the major life activity of performing manual tasks. Just a quick review for all of you on the phone, you probably know this, but the definition of disability in the ADA is a person with a physical or mental impairment which substantially limits one or more major life activities. And/or has a record of such an impairment or is regarded as having such an impairment. This case involves what is called the first prong of the ADA, the actual impairment. The EEOC regulations list examples of major life activities, one of the examples given is manual tasks. So the question is in this case, how limited does someone have to be in order to be substantially limited and therefore covered by the ADA? The question presented, the official question presented to the Supreme Court, on which the Supreme Court granted cert is, whether an impairment that prevents the performance of a number of tasks for a specific job qualifies as a disability under the Americans with Disabilities Act. So, as you can see, that question looks extremely narrow. It is simply asking the Court to decide whether someone who has a somewhat limited impairment because it only affects a specific job has a disability under the act. The problem is the question as presented by Toyota does not represent the actual facts of this case. The actual facts of this case are that Ms. Williams is limited in a number of things outside, certainly outside the specific job that she could not do for Toyota. In fact the only two jobs that she could do were the easiest jobs at the plant. She could not do the third job that Toyota recommended but she could also not do any other job in the plant. So, the Supreme Court has a choice, it could very narrowly decide the case accepting these facts even though they are mischaracterization of the facts or it could really offer us a decision of how limited you have to be to be substantially limited. There is also another very interesting legal question that comes up in this case. As I said, the 6th Circuit decided that she was substantially limited in manual tasks. But when they did the analysis, all the things they talked about to make that finding were limitations on the job. Well, as many of you might know, major life activities includes another major life activity called working. And under working, the EEOC has said that a person has to show in order to be substantially limited, that they cannot perform either a class of jobs or broad range of jobs in various classes. So the working part of the major life activity definition has its own analysis which is very specific. The 6th Circuit somewhat mixed these two things up, said she was substantially limited in major life activity of manual tasks but in analyzing that, only mainly looked at how her manual task limitation affected her job. So the U.S. Department of Justice filed a brief before the Supreme Court saying we do not want to decide whether she is disabled or not, what we want you to do Supreme Court is send the case back to the 6th Circuit to make it extremely clear there are two different analyses at play, one is the analysis for whether is someone limited in manual activity which should include way beyond work limitations, the other is substantially limited in working in which case the very particular class of jobs, broad range of jobs analysis must be used. So the Court has three choices: 1) The Court could either decide the case as presented by the petitioner whether someone who simply cannot do a particular job is substantially limited in a manual activity. 2) they could decide the whole question of the definition of disability and what it means to be substantially limited using the facts of this case really just as a springboard. Or 3) they could follow the Department of Justice advice and just send the whole thing back to the 6th Circuit to decide properly using the proper analysis. The next case I wanted to discuss, is the Barnett case. That case is U.S. Airways v. Barnett and it involves a person who worked for U.S. Airways in cargo for many years and hurt his back. After he hurt his back and had restrictions on the kind of bending and twisting he could do, he used his company generated seniority to get a job in the mail room. The case arises because Mr. Barnett was informed that someone else with more seniority was going to bid for his job in the mail room and get his job in the mail room. Well, if Mr. Barnett had not been disabled he could have used his seniority to go back to cargo, that was not an option because of his disability. So the question presented before the Supreme Court is whether the ADA requires an employer to assign a disabled employee to a position as reasonable accommodation even though another employee is entitled to hold the position under the employer''s bona fide and established seniority system. Now, again I want to point out and most of you know that the party who is asking for the appeal to the Supreme Court writes the question presented. So this was written from U.S. Airway''s point of view. The thing that is interesting about this case is that we are not dealing with a collective bargaining agreement or a union. We are not dealing with a contract between an employer and a union that guarantees seniority rights. What we are dealing with is an employer generated seniority system. This could be a very critical distinction in the case. Obviously U.S. Airways in the way they are asking the question is not at all interested in there being a distinction and would like employer generated plans to be treated in the same way as collectively bargained plans. So again, the question could be decided very narrowly, it could be decided just as what happens when there is a seniority system by an employer and someone is entitled to a position because of seniority that a person occupies because of their disability. Now, I should also stress the facts in this case or somewhat unusual, because our person Mr. Barnett, was already in the position in the mail room that he wanted and it was someone else who was going to come in with more seniority and take that position. So it is a fairly unusual factual situation. The way that the case has been briefed, however, it could raise very big issues in the area of ADA and very scary issues. For instance, U.S. Airways is saying that reassignments itself as a reasonable accommodation should be invalid because it is a preference. And as as a preference, it is not a legitimate nondiscrimination requirement, that it is more akin to Affirmative Action. Now, it also raises what is the purpose of the ADA? Was the ADA simply a nondiscrimination statute or does the ADA actually intend to promote employment opportunities for people with disabilities even outside the confines of nondiscrimination? Another very big question that could be raised in this case and could be decided by the Supreme Court in this case, is reasonable accommodation. Does the word reasonable and reasonable accommodation give a court independent discretion to decide what is "reasonable?" Traditionally in Section 504 before the ADA and in ADA litigation and in the way the regulations are written and interpreted, we have always argued that what determines whether something is a reasonable accommodation is whether it is an effective accommodation. That all of the defenses that an employer might have are contained in the undue hardship defense. As of course many of you know, the undue hardship defense has many different things that employers can raise about the cost of the accommodation, how it affects its operations, etc. as a defense to what might be otherwise a reasonable accommodation. What U.S. Airways is arguing and what very prestigious courts below have found is that there is two bites of the apple. First is something reasonable even independent of and separate from whether it is an undue hardship. Two bites of the apple being first is it reasonable and second undue hardship and this would be a very big, negative change in the analysis of disability rights law. The other question that is raised by this case, of course, is the interpretation of reassignment as a reasonable accommodation. Assuming reassignment is legitimate and is explicitly listed as a example of reasonable accommodation, does it mean that the employer must simply allow the employee to compete for the position or does it in fact mean that the employee if qualified, gets the position? Of course we in Barnett are arguing that the employee, if qualified, gets the reassignment. The reason we are arguing that is otherwise it would not be much of a reasonable accommodation. Of course if there is an open position, any one can bid for it, the reasonable accommodation part comes in when the employee with the disability is given that reassignment. Finally, the question comes up in reassignment as a reasonable accommodation, the law says reassignment to a vacant position. A lot of controversy about the word vacant. I was very involved as Jennifer said on working in the ADA, we never really anticipated that the word vacant would have so much controversy. We in the disability community interpret vacant to mean no one is currently holding the job. What the union argued, the union AFLCIO filed a brief in this case, they argued no position should be considered vacant if a person pursuant to a collective bargaining agreement has a right to occupy that position because of their seniority, then it is not so-called vacant. U.S. Air takes it one step further and says a job if not is vacant if there is any right to occupy it, regardless of whether there is a collective bargaining agreement because of seniority. Okay those are all the narrow and very global and important issues that could be raised by the Barnett case. The next case, which has recently been granted and not yet been briefed, both of those cases have been briefed. As I said Toyota was argued November 7th. Barnett will be argued December 4th. And the next case I am going to talk to you about has not been briefed yet. Any one on the call who is interested in being part of a disability brief should definitely e-mail me at DREDF, amayerson@dredf.org after the call. This is Chevron v. Echazabal. Now, this case involved Mr. Echazabal who worked at Chevron Oil Refinery for 15 years. He worked for Chevron contractors. When he applied directly to work for Chevron in the exact same job he had been working on for 15 years, Chevron did a medical exam and found his liver was releasing enzymes at a higher rate than normal and he was denied the job. When this case originally went to the 9th Circuit, the question was whether or not an employer could rely on good faith medical advice that it would be a danger to the employee to work at a particular place, in this case the Chevron Oil Refinery. But the 9th Circuit did not decide that issue, the 9th Circuit decided a much more basic ADA statutory interpretation issue. That is whether the statute which says that a qualification standard can include whether an individual poses a direct threat to others and a definition in the statute of direct threat being a threat to others, whether that can properly be interpreted by the EEOC, the regulatory agency that interprets the statute, to allow an employer to not only disqualify someone who poses a direct threat to others, but also to disqualify someone who poses a direct threat to self. So, the statute says direct threat to others, the EEOC regulations say direct threat to self or others. The 9th Circuit took on this very basic statutory interpretation issue and held that the EEOC regulation that included exclusion from a job based on direct threat to self was invalid because it went against the plain language of the statute. The question presented to the Supreme Court whether the Americans with Disabilities Act permits an employer to refuse to hire an individual because his performance of the job will as a result of his disability, pose a direct threat to his own health or safety. Now, I should note to you that the facts are disputed. The plaintiff does not think that this job does pose any more of a threat to Mr. Echazabal''s health and safety than it does all the other workers at the plant. But assuming that it does, is it a proper consideration for an employer to disqualify an employee with a disability? The Department of Justice filed a brief and they support the EEOC interpretation of the statute. They say it is a legitimate qualification standard whether someone poses a direct threat to self. So this will be the question decided by the Supreme Court. There is an effort under way right now to organize a disability brief which is always filed in any case having to do with the ADA. And of course we will be taking the position that first of all the statute says direct threat to others purposely. That Congress did not incorporate direct threat to self and the reason why they did not incorporate direct threat to self was because of the history of paternalism and the resulting exclusion and segregation of disabled people. The employer is going to take the position that it must be able to decide whether someone poses a direct threat to self. 1) because it is under obligations to create a safe work environment and 2) because if not, it would be subject to all kinds of tort claims if the person was in fact damaged by the work environment. The next main case, Memorial Hospital Association v. Humphrey is an ADA case that has not yet been granted by the Supreme Court, it is under consideration by the Supreme Court. The reason I mention it though is because the Supreme Court has explicitly asked the DOJ for its views as to whether or not it should grant cert in this case. So once that has happened we know it is already being seriously considered as step ahead of other cases in its likelihood that it may or may not be granted. So we are at this point hoping that the SG would like to influence the SG to not recommend the case be heard. The facts briefly because we do not know if the Supreme Court will take this case, is a woman with obsessive compulsive disorder who worked as a medical transcriptionist for ten years for this Memorial Hospital Association. After four years she began arriving late as a direct result of her obsessive compulsive disorder which was manifesting itself in excessive grooming rituals at home, she could not get out of the house because she would spend the whole day combing her hair, washing her hands or something like that. The employer did grant her an accommodation of a flexible work schedule because she was having a lot of trouble getting to work on time or at all. They granted her a flexible work schedule that she could do her work for any eight hour period in any 24-hour period. But it did not work. She continued to miss a lot of work. She asked for a leave of absence or the ability to work at home. Both were denied. The 9th Circuit in a really beautiful decision held two things, the reasonable accommodation requirement is continuous, and that where an employee asks for another accommodation and the employer is aware that the first accommodation is not working, that that accommodation should be granted if in fact it is a reasonable accommodation. The other thing is that an employee when they ask for an accommodation should not have to prove that the accommodation will in fact work. So in the context of this case she asked for a leave of absence she could not prove after the leave of absence she would be able to get the obsessive compulsive disorder in shape so she could arrive to work on time. The 9th Circuit said it is not up to the employee to prove it will in fact work. The questions that the employer has put before the Supreme Court are whether the grant of a leave of absence must be shown by the employee to be something that will in fact be successful and whether the employer has to grant an accommodation that they already offered and was rejected because when the full process started the first thing she was offered was a leave of absence. She said no, I would rather try the other things. When the other things did not work she came back and asked for a leave of absence. The question is does an employer have to re-offer something that has been previously rejected by the employee. We will see soon whether the Supreme Court decides to grant cert on that question. The next ADA case that is before the Supreme Court and was argued October 10, is called EEOC v. Waffle House. Now that case is very straightforward and has this question: When an employee signs an agreement to arbitrate disputes with their employer, in other words that they will not take their grievance to court, is the EEOC bound by that agreement? So specifically, the question before the Court, whether an employee''s agreement to arbitrate employment related disputes bars the EEOC when bringing an enforcement action on behalf of the employee against the employer from obtaining victim specific relief, i.e. back pay, reinstatement of damages for discrimination suffered by the employee. So that should be pretty straightforward opinion, either the EEOC retains its independent authority, to bring the case, or the Court could hold that the EEOC is also bound by the arbitration agreement. Okay. So those are the ADA cases. I want to very, very very quickly tell you about a couple other cases that are before the Court that could have ramifications in ADA cases and then I want to tell you quickly about two disability specific benefit cases. The two cases that could have implications for ADA that are Constitutional in nature involve the question of when has a state waived its sovereign immunity. And the other issue is where there is no waiver of sovereign immunity, can the individual bring a case against state officials under the ex-parte young doctrine? This is a critically important issue in ADA now, because as many of you are probably aware in Garrett last term, the Supreme Court decided that the ADA Title I did not legitimately grant authority for an individual to sue the state for employment discrimination. Because a individual cannot sue the state for employment discrimination, this doctrine of ex-parte young which allows an individual to sue a state official, and at least get injunctive relief, their job back, not any money, is critical. I will not say a lot more about it because I am not aware of how many people on the phone are aware of ex-parte young and I will leave it open for questions. There is another case which is another sovereign immunity type issue, right now the Court interpreted the sovereign immunity of the U.S. Constitution to mean an individual cannot sue a state in federal court unless there has been a legitimate waiver of sovereign immunity. The new question before the Court in a recent case they grant cert on is whether this extend to federal administrative body. Does it also bar an individual from suing a state before a federal administrative body or is it limited to federal court? These are all very specific and somewhat complicated issues that have to deal with sovereign immunity I would be more than happy to answer on questions but am hesitant to go into more detail without knowing who is on the call. Finally, there are two cases that involve benefits that people on the call might be more aware of actually than I am, because I do not really do benefits law but I wanted to point them out. One is called Mazanari v. Walton. This has to deal with who qualifies for Social Security income insurance and the question is, the 12 month requirement has been interpreted traditionally to mean someone has to have an impairment that will last more than 12 months and that their inability to engage in substantial gainful activity will last for more than 12 months. The 4th Circuit in that case saw the two requirements as different, they said as long as you have an impairment that is likely to last more than 12 months, you can get SSI even if you have started to work before 12 months have expired. So it is again a complicated issue that has to do with particular provisions of the Social Security Act. And likewise, Wisconsin Department of the Health and Human Services v Bloomer, determines the Medicaid statute, has to do with how you calculate income for what they call community spouse when their spouse has been institutionalized and how you allocate the income of the institutionalized spouse and community spouse. Critical for the issue of spousal impoverishment. It is not strictly on the ADA, but something I wanted to mention. There is also another case that was recently granted cert, Atkins v Virginia, where the Court will consider a substantive challenge to the infliction of capital punishment on inmates who have disabilities. Previous cases have looked at the death penalty as issue of use and inmates who are insane at the time of the execution. With Atkins the Court considers whether the state''s execution of people who are mentally retarded violates the 8th amendment prohibition against cruel and unusual punishment. Again this is something that of course will be critically important but again outside of the ADA area. So I just wanted to alert people to the fact that has happened for people who are interested in that I am sure there will also be a coordination of amici strategy. With that I would like to open it up to questions.

Jennifer Bowerman

Thanks, Arlene. We will turn it back to Pat to give instruction before Pat does that, I wanted to remind those of you that are at your sites due to the time constraints we will ask that your site coordinator collect questions and prioritize them and relevance to the topic. Sites should only ask one question, if there is time we will go back and give opportunity to ask additional questions. We will also ask if you are using a speaker phone that either you speak directly to the microphone or use the handset in the event the call is in inaudible we may need to drop the line. And questions can also be submitted on the chat room. While we are waiting for the first question, let me ask you, every time we do this session after I hear all the questions before the Supreme Court I get a little bit of a pit in my stomach and get a little nervous about the ADA, especially being an advocate working for the inclusion of people with disabilities. This point in the game, eleven years after the ADA has passed, is this a very usual for any type of civil rights law like this to be debated as it is?

Arlene Mayerson

Well I think it is an excellent question. We have had more ADA cases, way more ADA cases in the United States Supreme Court in its brief history than we did in the entire time the Section 504 was law before the ADA. It seems like the Supreme Court is extremely interested in ADA cases and it seems to me that they are taking a lot of them. And I agree with you that it is very frightening and going to oral arguments you can definitely get that pit in your stomach, the questions that are asked at least by some of the justices show a real hostility to the ADA and particularly to issues about who is disabled and I fear in Barnett that now we will get the same hostility towards some reasonable accommodation requirements.

Jennifer Bowerman

Interesting. Pat, our first question. Arlene, let us go back to the issue of reasonable accommodation. I think what was it Barnett.

Arlene Mayerson

Yes.

Jennifer Bowerman

At one point it was explained to me that the term reasonable was a legal term of art. So with this particular case we are going to actually be getting into defining what is reasonable, I guess?

Arlene Mayerson

Well, we would oppose that approach. The respondent''s brief or the plaintiff''s brief is going to argue what we have always argued in these cases, which is that reasonable accommodation is a term of art which means effective accommodation, that there is no independent authority to look at whether something is reasonable. That all reasonableness type questions have to be decided under undue hardship. So we would argue very strenuously that reasonable does not give a separate bite of the apple to oppose accommodation that all objections to accommodations have to be analyzed under undue hardship.

Caller

This is Robin Jones. I have a question related to the Toyota case. And in regards to, is the idea being following up on Sutton and such that goal and objective is to further narrow and put some more definition to the whole issue of how substantial is substantial to further bring down or bring together the whole who is a person with a disability using steps. Do you think that is the reason they are taking this case?

Arlene Mayerson

Excellent question, just to review really briefly, Robin you were saying the Sutton case, to make sure everyone knows the Supreme Court has decided three definition cases in the last term. The main point of those definitional cases was to say that if someone has a disability but it is mitigated by some kind of device, that the substantial limitation question will be decided with the mitigation factor put in. So in other words, the Sutton case involves someone who had bad eyesight but it was completely corrected by glasses, the question was will the Court decide whether that person is substantially limited with their glasses or without their glasses. The Court said we will decide with their glasses and with their glasses they have no substantial limitation. In the Murphy case the person had extremely high blood pressure but with medication was in normal range. Again, will we decide was this person substantially limited with medication, that means with prosthesis, whatever device or medication the person is using. And that will be how we decide whether someone is substantially limited and therefore covered by the statute. This case, Toyota, goes another step, assuming someone has something and there is no mitigation, nothing she can do to mitigate it, how limited does she have to be to be substantially limited? Yes, some justices were extremely hostile, especially she has the disability of carpal tunnel syndrome, there are some things they are more hostile to than others, bad backs, carpal tunnel syndrome, things that are industrial in nature they seem to be hostile. Some of the judges asked her lawyer why cannot you file a Workers'' Comp claim and be done with it? I think there is hostility by some members. We are hoping that we need five, four are absolutely lost positively. Four are probably pretty much on our side, we need one extra person who can come over on this and see that she is in fact someone who is limited. The way the facts are presented to the Court which is completely divergent, Toyota explains that her limitations are extremely minimal, that they emphasize how she does housework and everything at home, takes care of the kids and basically without saying so trying to tell the Court it is a bogus claim. Ms. Williams'' attorney represents her as someone who has in fact suffered quite a bit from pain and does have limitations although she is not totally precluded from doing either work or her daily activities. It is somewhere in between. So the question is where is that line going to be drawn? Of course I share your fears that it might be drawn in a place that is not livable.

Caller

Yes, this is Dave. I had a question on Barnett. At the time he exercised his seniority originally, did he declare that as a disability issue and does that matter?

Arlene Mayerson

Well, it was definitely known that he had a disability. I do not believe when he bid for the mail room he used it as a accommodation because he had the seniority, he used his seniority to get the job. I do not think it should matter. What is peculiar about the facts of this case, he was actually in the job. That might matter. Because mainly in reassignment cases you have a situation where two people want the same job. The job is not filled, the person with the disability has less seniority and the person without a disability with more seniority and the job is vacant or at least what we would call vacant. I think that is a little harder, I think maybe the Court will get some comfort from the fact that he in fact was already in the job. So really all the U.S. Airways needed to do was exempt that job from a bidding situation. I think that might make a difference.

Caller

Can you hear me this time? Is there any legislative initiatives to take employment discrimination suits out of the Federal Arbitration Act? That you know of?

Arlene Mayerson

That is a really excellent question. I am pretty up on legislation but not up on legislation about the Federal Arbitration Act.

Caller

At the end of your presentation, Arlene you mentioned something about state immunity before federal administrative bodies, are you talking about a state agency brought before EEOC?

Arlene Mayerson

That could extend there. The issue was right now sovereign immunity is interpreted as barring a citizen from bringing an action against their state in federal court. The question in this case is does that extend to a federal administrative body, so yes, a federal administrative body would be the EEOC. So that question again is how far is the state protected by sovereign immunity from being sued in a federal forum. Right now it is limited to federal court and this would extended to federal administrative bodies. That would be the question before the Court.

Jennifer Bowerman

Could you talk a little bit more about how that relates to Garrett? Because we had Curt Decker and Sharon Masling one year ago talking about Garrett and then we had Sharon Rennert from EEOC in the spring talking the decision itself. Part of the discussion was okay how do we have to realign the suit that we might file so part of that discussion was well, you could still sue for injunctive relief, you could still sue the director of the agency itself, so could you talk a little bit about how this might be decided, worst case scenario, of how this might be decided?

Arlene Mayerson

Well, the doctrine I referred to very briefly before, again I did not know how many people on the call knew about it, ex-parte young. The Garrett decision of course is you could not sue the state for employment discrimination. There is a distinction that is come up in the law that is been recognized for decades which is even when you cannot sue a state because of sovereign immunity you can sue a state official for injunctive relief. That doctrine is called the ex-parte young doctrine. In Garrett, Stevens, who wrote a dissent, said you are going to force everyone to use ex-parte young suits for injunctive relief under the ADA and everyone was a little worried about that because he said it so explicitly that ever since then we have been worrying about the Court getting its hands-on the doctrine. If the doctrine is under review which it is in one of these cases, the Court could say well, actually ex-parte young is not available in a lot of situations, there is already a lot of limitations on the doctrine, I did not go into those because I thought it was beyond the scope of the call. To the extent ex-parte young is either narrowed or eliminated it would have a profound impact on the only available means left after Garrett for a individual to bring a case against a state or a state official, which is really against the state. So it could in fact eliminate the ability to bring suit. Does that make sense, Jennifer?

Jennifer Bowerman

Absolutely. So I have that pit in my stomach again. I guess we will light a couple candles and have a couple vigils.

Arlene Mayerson

That is really important, it is interesting because the case comes up in the Telecommunications Act context which is a complicated statute in and of itself, hopefully everything will be distinguishable and geared to that act and would not have a lot of spill over. But now since Garrett, any time there is anything to do with sovereign immunity it is incumbent upon disability watchers to be watching and participating to whatever extent possible. The other issue is that even after Garrett, the agencies still retain their enforcement ability. Both Waffle House and this other case that has just been granted cert, which is Federal Maritime Commission, both threaten the scope of the EEOC''s enforcement powers. So to whatever extent people took solace by the fact EEOC can still bring actions after Garrett, those are being threatened with limitations.

Jennifer Bowerman

As we come to the end of the session this afternoon at the top of the hour. Just like the Sunday pregame football show, they do their picks just before. And I am looking back at these four cases that you highlighted. All of them look a little bit too close to tell, would you say.

Arlene Mayerson

I think in Toyota, I am hoping that actually the Court takes the Department of Justice''s suggestion to send the issue back to the 6th circuit to clarify the analysis of substantial limitation and manual tasks and the substantial limitation in working are two different, separate and distinct analyses. And I am hoping that they just send it back without a lot of guidance as to how to decide the bigger issue of substantial limitation. But simply to tell the Court they need to look at manual tasks and working separately. That is the safest I think we could get out of Toyota.

Jennifer Bowerman

We certainly appreciate your optimism on that.

Arlene Mayerson

That is the safest thing the worst thing we could get out of Toyota is something that says basically the defendant, Toyota was basically saying in order for someone to be substantially limited they cannot engage in a normal life. That would be a death nail to the ADA. With Barnett, do you want me to continue or are we out of time?

Jennifer Bowerman

Actually I am going to turn it back to you if you want to wrap up and give us your closing comments as well.

Arlene Mayerson

Barnett scares me the most because while the facts of the case I think are optimal, both because the person was in the job and also because it was not a collectively bargained agreement, it is the first time the Court will have a hey day on reasonable accommodation and how does it relate to nondiscrimination? That is a very important, very theoretical, very critical, that is the jugernaught of disability rights. That scares me a lot, hopefully again will be decided on the narrow issue. Echazabal is the question of whether direct threat to self can be considered in an ADA claim. I cannot really predict that one. What we have going for us in that case is that the conservative judges are called strict constructionists they read the exact words of the statute, our statute says you can only consider direct threat to others. If nothing else if they go the other way on that we will be able to show they are hypocrites, which would not be much solace. That will be interesting because it challenges their desire for a certain result with their very strong belief that you should read the words of the statute and not expand upon them. And those are my predictions, those are my thoughts or worries. And again, if anyone on the call is with a disability organization that is interested in Echazabal and threat to self or has information just about in general how paternalism has been used in a negative and exclusionary way for people with disabilities I would love to hear from you. And thank you.

Jennifer Bowerman

Thanks so much, Arlene for spending time with us today. We really appreciate you taking time out of your busy schedule to enlighten us and give us some things to think about or at least discussion, I guess for the Thanksgiving table on Thursday. We certainly appreciate it. Thank you. Thanks to all of our sites today for participating in today''s session we hope you will be back and join us next month on December 4th as we talk about information technology and education. We will have with us Debbie Cook who will talk about new initiatives, and you will be interested to hear in the spirit of the season, the December 4th session is free. So you can either join in on the telephone conference call or we hope to also have the webcast done, on the Internet as well and there will be additional information about that on the Great Lakes web site. If you have colleagues that have not participated in the session before, this might be a good one for them to try out to see if they like it. In the events you have questions about the ADA or upcoming sessions please call your regional DBTAC at (800) 949-4232. Again thank you so much for joining us today, and we wish you all a happy holiday.