Qualifed to Work = Disqualification from ADA Protection
Some employers have an unfortunate tendency to assume that any worker with a disability, or any worker who is Deaf, deaf, or hard of hearing is automatically disqualified. They may think to themselves, “How can they possibly do this job? They’re disabled! Disabled people can’t contribute as fully as other employees! I’m running a business, not a charity; it’s not my job to hire disabled workers just so they can have jobs!” (In most employer’s minds, of course, Deaf people are considered “disabled” too.)
Because of these assumptions, some employers may reject applicants with disabilities well before the interview stage without bothering to review their actual qualifications closely enough to determine whether they might, in fact, be qualified for the position. Their rejection may come so early in the screening process, and so quietly–in the form of the phone call that is never made–that it can be hard to determine if discrimination occurred at all.
The Americans with Disability Act of 1990, as originally written, was meant to help prevent this type of “Did it happen or didn’t it” discrimination. It was meant to force employers to at least look at disabled applicants for long enough to give them a fair chance at the job–including (if they meet the minimal qualifications) talking to applicants to clear up any questions or concerns about how they will meet the demands of the job. It was meant to require employers to make hiring, firing, or “non-hiring” decisions on the basis of applicant’s actual abilities to do the job–not on the basis of the employers mistaken stereotypes about their disability.
But a series of court decisions like the one described below have undermined that intent. In this case, the court never examined the issue of whether the client’s breast cancer was a factor in the hospital’s refusal to hire her into a full time job–as they should have. (And, YES, certain chronic health conditions such as breast cancer were specifically meant to be covered under the ADA.) The court also failed to examine the veracity and validity of the employer’s claims that other applicants were better qualified, or that they were unable to offer the benefits the client wanted. Instead, they turned down the case because the client herself had claimed that her breast cancer did not intervene with her ability to perform a full-time job. The court said, in essence, “Well then — if you are still qualified to do this job then you aren’t disabled enough to be protected by the ADA.” In other words: damned if you do, damned if you don’t. If you’re genuinely not qualified for the job — for reason of your disability or any other reason — then you’re, quite fairly, not hired. But if you ARE qualified for the job, then the employer can discriminate against you all it likes and still not hire you anyway.
Court decisions like this one go counter to the whole point of the employment sections of the ADA, which are meant to ensure that QUALIFIED job applicants receive fair consideration without being rejected out of hand simply on the basis of their disability. Now, possibly the hospital in question had valid claims: maybe there WERE better qualified applicants. If so, they should have been asked to present the relevant evidence in court. The court’s failure to make them do so has given employers across the nation that much more incentive to discriminate against disabled employees with impunity.
This story is taken from text prepared by the Consortium for Citizens with Disabilities (CCD).
State: New Hampshire
Disability: Breast Cancer
Court: New Hampshire District Court 2002
Mary Ann Pimental
Mary Ann Pimental was a registered nurse who lived in Hudson, New Hampshire with her husband and two children and worked in a hospital. Five years into her job as a staff nurse, the hospital promoted Mary Ann to its nurse management team. A little more than a year later, Mary Ann was diagnosed with stage III breast cancer.
Mary Ann initially took time from work to undergo surgery (mastectomy) and follow-up treatment (chemotherapy and radiation therapy). While Mary Ann was hospitalized and receiving treatment for cancer, the hospital reorganized its management team and eliminated Mary Ann’s position. When Mary Ann was able to return to work, she applied for several different positions but was not hired. The hospital finally rehired her into a staff nurse position that provided only 20 hours of work each week. As a result, Mary Ann was not eligible for higher benefits offered to employees working 30 or more hours each week.
Given her strong work history, and because she was asked about her ongoing cancer treatments and ability to handle work with the stress of battling cancer, Mary Ann believed that the hospital failed to rehire her into a better position because of her breast cancer. She decided to challenge these decisions, and filed a claim under the ADA.
The hospital argued that she wasn’t protected by the ADA because she didn’t have a “disability.”
So Mary Ann provided highly personal, sometimes embarrassing, evidence to her employer and the courts of how her impairment – breast cancer – impacted her life in a severe and substantial way. That impact included:
• hospitalization for a mastectomy, chemotherapy, and radiation therapy;
• problems concentrating, memory loss, extreme fatigue, and shortness of breath;
• premature menopause brought on by chemotherapy, and burns from radiation therapy;
• problems in her shoulder resulting in an inability to lift her left arm over her head;
• sleep-deprivation caused by nightmares about dying from the cancer;
• difficulty in intimate relations with her husband because of premature menopause and Mary Ann’s discomfort and self-consciousness following the mastectomy; and
• the need for assistance from her husband and mother in order to care for herself and for the couple’s two children because of extreme fatigue, and difficulties performing basic tasks like climbing stairs or carrying household items. (23)
When Mary Ann returned to work she still was undergoing radiation therapy and suffering from fatigue. She still could not lift her arm above her head, still experienced concentration and memory problems, and still received help at home from her husband and mother.
The hospital denied that Mary Ann was discriminated against because of her breast cancer. It argued that other, better qualified applicants were hired or that Mary Ann wanted hours and/or benefits that its department was unable to offer. In court, the hospital also argued that Mary Ann was not disabled under the ADA.
The district court never reached the question of whether Mary Ann’s breast cancer played a role in her failure to be rehired into a better management position. Instead, the court agreed with the hospital that “the most substantial side effects [of Mary Ann’s breast cancer and treatment] were (relatively speaking) short-lived” (24) and therefore “they did not have a substantial and lasting effect on the major activities of her daily life.” Because MaryAnn failed to show she was limited by the breast cancer on a “permanent or long-term basis,” she was held not to have a “disability” under the ADA. (25)
The district court also relied on Mary Ann’s assertions that her cancer “did not substantially impair her ability to perform various tasks associated with her employment.” (26) This assertion, according to the court, undermined Mary Ann’s claim that the cancer had substantially affected her ability to care for herself on a long-term basis.
Mary Ann Pimental died of breast cancer four months after the court issued this decision.
(23) Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 184, 183-84 (D.N.H. 2002); Brief for Defendant, 2002 WL 33016261at ¶¶ 14-16.
(24) Pimental, 236 F. Supp. 2d at 183.
(25) Id. at 184.
(26) Id. at 183.
The introduction to CCD’s text is posted at ReunifyGally in the entry entitled “Real People, Real Stories: Why We Need ADA Restoration.”
Also see the first case story I posted, entitled “Thinking isn’t a Major Life Activity, Say Courts.”
The second case story is in the entry entitled “Where is Todd’s Day in Court?“
After this one, the fourth case story is entitled “Give Orr a Break.”
The fifth is entitled “Doing Good Work? You’re Fired!“
The sixth is “Why Everybody Loses Without the ADA Restoration Act.”
The eighth and last court case is “Unfair Precedent Ties Hands of Sympathetic Court: Why McMullin’s Case Highlights Need for ADA Restoration Act“.
I’m taking these stories from a 13-page file of case studies written up by the Consortium for Citizens with Disabilities (CCD); this file is available in both Word and PDF format.
CCD has compiled an excellent collection of materials on the ADA and on the ADA Restoration Act of 2007, so it’s well worth following their link to www.c-c-d.org/ada.
See my continually-updated list of blog entries from all over the web about the ADA Restoration Act of 2007, always available from the top navigation bar at “On the ADA Restoration Act.”
Also, don’t miss these links: One group of activists has posted a short list of simple ideas of things you can do to help get the Restoration Act passed. And do check out the ADA Restoration Blog for updates. Or browse through background information on the ADA Restoration Act. Or contact your legislators (just be sure to uncheck the box asking to be added to their action alert email list, unless you want to receive them).