Narrow Definitions: The Courts’ Resistance to the ADA Amendments Act

Author: Brynn Stylinski Associate Member University of Cincinnati Law Review

The Americans with Disabilities Act (ADA) was passed in 1990 to protect individuals with disabilities from discrimination by private employers, among other entities.[1] Title I of the ADA prohibits employers from discriminating against “a qualified individual on the basis of disability in regard to” the hiring, firing, and other aspects of employment.[2] In the years following the enactment of the ADA, courts narrowly interpreted the ADA’s definition of disability, making it extremely difficult for plaintiffs to bring a successful suit.[3] In 2008, Congress passed the ADA Amendments Act (ADAAA) which explicitly repudiated the courts’ narrow interpretation of disability.[4] The ADAAA redefined key terms of the ADA and instructed courts to interpret the terms broadly in order to expand the protections of the ADA to more individuals.[5] Despite the ADAAA’s repudiation of the narrow interpretation of disability, many courts have continued to interpret the statute narrowly.[6] This continued, explicitly unintended interpretation has resulted in a lack of protection for the intended beneficiaries of the ADA. This improper interpretation is exemplified by the recent case of Ortega v. South Colorado Clinic, P.C. In this case, the United States District Court for the District of Colorado narrowly interpreted the definition of “disability” and excluded a condition that arguably satisfied the ADA’s broad standards.[7] The courts have limited the scope of the ADA despite clear congressional intent, and continuing this trend will lead to the severe abrogation of protective legislation.

Ortega v. South Colorado Clinic, P.C.

In Ortega, the plaintiff brought suit against her former employer for discrimination under Title I of the ADA. The plaintiff was terminated from her position as a medical coder following her diagnosis of fibromyalgia and interstitial cystitis.[8] She claimed that her illness and consequent symptoms constituted a disability: she experienced chronic pain, dizziness, and blurred vision, which interfered with her ability to read, work, and sleep.[9] The court rejected her claim, granting the defendant clinic summary judgment on the grounds that the plaintiff’s illness did not constitute a disability under the ADA.[10]

The Rationale of Ortega

To bring a successful claim under Title I of the ADA, a plaintiff must satisfy three elements: (1) the plaintiff has a disability as defined by the statute; (2) the plaintiff is a qualified individual with or without a reasonable accommodation; and (3) the employer discriminated against the plaintiff based on the disability.[11] The Ortega court found the case was settled by the first prong of the test, holding that the plaintiff’s fibromyalgia, interstitial cystitis, and consequent symptoms were not disabilities under the ADA’s three-prong test.[12]

Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”; a record of having an impairment; or being regarded as having an impairment.[13] In determining whether the plaintiff’s impairment substantially limited her ability to perform a major life activity, Tenth Circuit courts apply a three-factor analysis established prior to the passage of the ADAAA. The courts consider “(1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact or the expected permanent . . . impact of or resulting from the impairment.”[14] The plaintiff testified that her symptoms affected her ability to sleep, see, learn, read, concentrate, and think. However, when considering the severity of the condition, the court found insufficient evidence that the plaintiff was “significantly restricted” in comparison to the general population.[15] Furthermore, the court held that plaintiff failed to “articulate with precision” the impairment and the substantial limitation.[16] Because the plaintiff conceded that she was able to work, the only major life activity for which she showed any impairment was sleep. But the court even rejected the argument that there was any substantial limitation on that activity. It emphasized a single reference in the record to the plaintiff reporting that a sleep aid helped her sleep through the night, and that the general population might have trouble sleeping due to bad dreams.[17] Thus, the court held that the plaintiff was not disabled under the ADA.

Flaws in the Court’s Analysis

The Ortega court failed to abide by the ADAAA’s expansive interpretation of the definition of “disability.” In analyzing whether the plaintiff’s impairment substantially limited a major life activity, the court applied a three-prong test in which two of the prongs are based on factors the ADAAA has declared unnecessary to the finding of a substantial limitation: the duration and the permanent impact of the impairment.[18] Under the ADAAA and subsequent regulations, an impairment can be substantially limiting if it is episodic, in remission, or temporary. Therefore, an impairment may be substantially limiting without any lasting impact on the individual.[19] The Ortega court misapplied the ADAAA’s definition of the term “substantially limits” in addition to misapplying the overall definition of “disability.” The definition of “substantially limits” as “significantly restricted” was explicitly rejected by the ADAAA. The Ortega court’s use of this definition thus resulted in a narrower interpretation of both terms than was intended by Congress.[20]

Furthermore, the court’s unwarranted insistence on a detailed pleading from the plaintiff regarding the description of her limitations and a comparison to the general public conflicts with the ADAAA’s purpose of alleviating the plaintiff’s burden under the ADA.[21] The Ortega court’s requirement that plaintiffs “particularly articulate” a specific limitation creates the type of demanding standard that the ADAAA rejected.[22] In Ortega, the plaintiff claimed that her blurred vision and other symptoms impaired her ability to read and concentrate,[23] yet the court rejected her claim on the grounds that it was not “particularly articulat[ed.]” This claim demonstrated the impairment of a major life activity specifically described under the ADAAA, but the court required even more from the plaintiff and imposed a more stringent standard than the ADAAA requires. The court further held that the plaintiff did not explicitly compare the impairment of her abilities to the general population, a pleading not required by the ADAAA.[24] This strict pleading standard creates an obstacle of the kind rejected by the ADAAA, and was applied particularly narrowly, thus creating an even greater burden for the plaintiff in this case.

In a similar fashion, the court rejected the claim of disability as the result of impaired sleep, supposedly because of the plaintiff’s failure to provide an appropriate comparison. The court stated that the plaintiff’s prescription sleep aid had allowed her to sleep sufficiently and that the general population might also have trouble sleeping due to bad dreams.[25] The court ignored the ADAAA’s proscription of the consideration of mitigating measures including medication.[26] Absent the sleep aid, the plaintiff reported receiving only three to four hours of sleep per night. Because the problem was recurring, and affected a major life activity, the plaintiff’s circumstances were not comparable to those of an occasional insomniac and her sleep was substantially limited. [27] The court’s ruling that this was not a major impairment due to mitigating factors completely disregards the mandates of the ADAAA and sets a precedent for ignoring protective legislation.

In Smothers v. Solvay Chemicals, Inc. the Tenth Circuit found a substantial limitation existed for purposes of the ADA when the plaintiff repeatedly reported an inability to sleep despite medication.[28] The Ortega court, however, found that the plaintiff in Ortega was comparable to the cases in which the plaintiffs failed to produce evidence of the duration or severity of their impairments.[29] Therefore, the Ortega court found, the plaintiff did not provide sufficient evidence of a substantial limitation under the ADA. Thus, the plaintiff was deemed not disabled and was denied protection under Title I of the ADA.[30] However, the Smothers court itself acknowledged that the precedents on which it relied—and which the Ortega court later used for support—applied the older, narrow judicial rule that is no longer in effect under the ADAAA.[31] The Ortega court’s analysis overall was based on standards created under the previous version of the ADA. The ADAAA explicitly contradicts these antiquated analyses, yet the court continued to rely on them. By doing so, the court undermined the protective intent of the legislation explicitly articulated by Congress.

Potential Ramifications

If courts continue to interpret the terms of the ADA as narrowly as in Ortega, it will set an example for other courts to ignore the specifications of this protective legislation. The courts narrowed the scope of the original ADA for years despite the fact that the definition of disability in the ADA was parallel to that in the Rehabilitation Act, which had been interpreted broadly.[32] Courts that narrowly define “disability” effectively abrogate the protective legislation that Congress explicitly set out to expand through the ADAAA. These courts—like the one in Ortega—go against the express purpose of the law and ignore its explicit mandates. If courts continue this limiting trend, protective legislation—particularly the ADA—could become an empty gesture and an ineffective tool for victims of discrimination. Luckily, Ortega was merely a district court decision. In light of Ortega and similar decisions,[33] the circuit courts need to develop new standards for district courts to follow when conducting their ADA analyses of disabilities in order to create a proper framework under the ADAAA, because many of the current tests, like those in Ortega, are based upon older, narrow interpretations of the law. Otherwise, it is likely that individuals with disabilities will be denied the protections to which they are entitled because the court deems them “insufficiently” disabled.

[1] Americans with Disabilities Act, 42 U.S.C. § 12101-12189 (2015). Title I addresses employment discrimination while Titles II and III address discrimination in state and local government as well as public accommodations.

[2] Id. § 12112

[3] See e.g., Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (interpreting the definition of “substantially limits” narrowly within the definition of disability under the ADA); and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).

[4] It redefined “major life activity” and “substantially limits.” ADA Amendments Act of 2008, PL 110–325(a)(4), September 25, 2008, 122 Stat. 3553 ( “[T]he holdings of the Supreme Court in Sutton v. United Air Lines, Inc., . . . and its companion cases . . . have narrowed the broad scope of protection intended…thus eliminating protection for many individuals whom Congress intended to protect.”) (internal citations omitted).

[5] 41 U.S.C. § 12102(2), (4) Congress also found that the EEOC’s regulations were too restrictive: “regulations defining the term ‘substantially limits’ as ‘significantly restricted’ are inconsistent with congressional intent, by expressing too high a standard.” ADA Amendments Act of 2008, PL 110–325, September 25, 2008, 122 Stat. 3553.

[6] Courts have interpreted the terms within the ADA narrowly, including the term “substantially limits.” See e.g., Sutton, 527 U.S. 471 (1999) (finding that where impairments are mitigated by ameliorative measures, the impairment does not substantially limit a major life activity); and Pollard v. High’s of Baltimore, Inc., 281 F.3d 462, 468 (4th Cir. 2002) (finding that temporary impairments should not be considered toe substantially limit based on the likelihood of recovery).

[7] Ortega v. S. Colorado Clinic, P.C., No. 13-CV-01397-WYD-CBS, 2015 WL 269812 (D. Colo. Jan. 20, 2015)

[8] Id. at *1-2. Fibromyalgia is a disorder that affects the way the brain processes pain, amplifying it. Diseases and Conditions: Fibromyalgia, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/fibromyalgia/basics/definition/con-20019243 (last visited Apr. 18, 2015). Interstitial cystitis is also called painful bladder syndrome and involves chronic bladder pressure and pain as well as pelvic pain. Diseases and Conditions: Interstitial Cystitis, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/interstitial-cystitis/basics/definition/con-20022439 (last visited Apr. 18, 2015).

[9] Ortega, 2015 WL 269812, at *2-3.

[10] Id.

[11] Id. at *2 (citing Robert v. Bd. of County Comm’rs of Brown County, 691 F.3d 1211, 1216 (10th Cir. 2012)).

[12] Ortega, 2015 WL 269812, at *2 (citing Robert, 691 F.3d 1216). Title I’s three pronged test consists of: 1. Whether the plaintiff has a disability as defined by the ADA, 2. Whether the plaintiff is a qualified individual with or without reasonable accommodation, and 3. Whether the employer discriminated against the plaintiff based on the disability

[13] 42 U.S.C. § 12102(1)(A)-(C).

[14] Ortega, 2015 WL 269812, at *2 (citing Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1145 (10th Cir. 2011)) (internal citations omitted).

[15] Id. (citing Johnson v. Weld County, Colo., 594 F.3d 1202, 1218 (10th Cir. 2010))

[16] Id. at *2-3 (citing Johnson, 594 F.3d at 1218). This creates a high burden for the plaintiff despite the ADAAA’s express purpose of lessening the burden on the plaintiff.

[17] Id.

[18] Under the court’s analysis, two of the key factors in the analysis are the duration of the impairment and whether the impairment has a lasting impact. Ortega, 2015 WL 269812, at *2 (internal citations omitted).

[19] 42 U.S.C. § 12102(4)(D) (“An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”); 29 C.F.R. § 1630.2 (“The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.”).

[20] “[R]egulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard.” PL 110–325(a)(8); Ortega, 2015 WL 269812, at *2.

[21] PL 110–325(b)(4)-(5) (“The purposes of this Act are . . . to reject . . . that the terms ‘substantially’ and ‘major’ . . . need to be interpreted strictly to create a demanding standard[’] . . . . and to convey that the question of whether an individual’s impairment is a disability . . . should not demand excessive analysis.”).

[22] Id.

[23] Ortega, 2015 WL 269812, at *2. Reading and concentration are both listed as major life activities under the ADA.

[24] Id.

[25] Id. at *3.

[26] “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as . . . medication” 42 U.S.C. § 12102(4)(E)(i).

[27] Id. at (2)(A).

[28] Ortega, 2015 WL 269812, at *3 (citing Smothers v. Solvay Chemicals, Inc., 740 F.3d 530, 545-46 (10th Cir. 2014)).

[29] Id. at *3 (internal citations omitted).

[30] Id.

[31] Id. at *3; Smothers, 740 F.3d 546 n.18.

[32] “Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled.” PL 110–325(a)(3).

[33] See e.g., Sam-Sekur v. Whitmore Grp., Ltd., No. 11-CV-4938 JFB GRB, 2012 WL 2244325 (E.D.N.Y. June 15, 2012); and Brodzik v. Contractors Steel, Inc., No. 2:13-CV-438 JD, 2014 WL 4701157 (N.D. Ind. Sept. 22, 2014).

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