Courts Hobble Laws for Disabled Workers

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By: Randy Dotinga

To some people, the ADA might as well stand for “All Disabilities Allowed.” They think the federal law is so broad that it would force a newspaper to hire a blind photographer. But in reality, the Americans with Disabilities Act inhabits the middle ground between bark and bite, and its teeth aren’t nearly as sharp as they used to be.

“The courts have continually narrowed the class of protected individuals and made it quite difficult for people to win lawsuits,” said Peter Blanck, a professor of law at the University of Iowa and director of Iowa’s Disability Law Center.

A lawsuit involving a newspaper reporter didn’t help matters. In a 2001 ruling, the U.S. Ninth Circuit Court helped set standards about disabled workers by siding with The Fresno (Calif.) Bee against a part-time features writer who suffered from repetitive stress injuries.

The reporter, Jacalyn Thornton, claimed that the newspaper fired her after refusing to accommodate limitations ordered by her doctor, such as no more than 90 minutes of typing a day. The court ruled that her injuries didn’t make her disabled under the law because she could still perform many normal tasks for life and work. The U.S. Supreme Court used similar reasoning in a widely publicized 2002 case.

While The Fresno Bee case is bad for workers, it isn’t quite as catastrophic as it sounds, said labor attorney Derek Baxter of the Washington, D.C.-based firm of Barr & Camens, which represents The Newspaper Guild. “It doesn’t mean you can’t bring a repetitive stress injury case,” he said. “The court made it clear you can. They didn’t find her to be disabled in her particular circumstances, but someone with a similar set of facts could be found to be disabled.”

However, courts have definitely shrunk the definition of a disability, said Blanck, the Iowa law professor. A note from a doctor claiming that a worker is stressed just won’t cut the mustard, for example. “You have to show you’re substantially limited in a whole range of activities,” he said.

So what do newspapers legally owe those who have disabilities? The Newspaper Association of America in Vienna, Va., declined to comment on the topic. But according to experts, the ADA can help workers flex their power in certain cases.

For one thing, the federal law forbids discrimination against the disabled during the job application process. Employers can’t ask questions that are designed to draw out information about disabilities, nor can they pry into what prescription drugs an applicant is taking, said Randal S. White, an employment lawyer with Fox, Rothschild, O’Brien & Frankel in Doylestown, Pa.

And employers do have to make accommodations for employees considered to be disabled under the law. Take a photographer who loses his vision, for example. “The employer may have a duty to reassign that employee to a vacant position that does not involve photography, as long as the employee is qualified to perform the functions of the new job,” White said.

But, contrary to the beliefs of some people, the ADA doesn’t create an affirmative action system. No employer is required to hire a disabled person over a similarly qualified person with no disabilities, White said. In addition, the law doesn’t require anyone to hire an unqualified person just because he or she is disabled.

And the ADA doesn’t kick in when a workplace may be unsafe and threatens to turn able-bodied employees into the disabled. To make matters worse, the Bush Administration isn’t pushing workplaces to be ergonomically correct, said David LeGrande, director of occupational safety and health for the Communication Workers of America, the parent union of The Newspaper Guild.

On the other hand, California and Washington state set specific standards regarding ergonomic safety in the workplace, and union contracts set standards too. But most workers have little infuence over ergonomic standards. “If your paper isn’t union and not in California or Washington, you can plead,” LeGrande said. “But that’s about it.”

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