Doing Good Work? You’re Fired!

Posted on 28 October 2007. Filed under: ADA Court Cases, ADA Restoration Act of 2007, Advocacy | Tags: Muscular dystrophy |

This is a story about a man who got fired because his disability did not interfere with his ability to perform the job for which he was hired. No, that word “not” is not a typo. The courts have persistently mangled the original intent of the Americans with Disabilities Act of 1990 to the point where being qualified for your job automatically robs you of any legal protection from discrimination on the basis of being Deaf or disabled. And this is why we need the ADA Restoration Act of 2007.

If your disability, or being Deaf, makes it impossible for you to do your job, then you can’t qualify for coverage under the ADA because the ADA is not meant to protect people who can’t do the job they’re hired for (or for which they’re applying). That’s just as it should be. And the ADA Restoration Act does nothing to change that.

But if you CAN do the job as well as any hearing, non-disabled person or better–but your employer decides to fire you anyway BECAUSE you’re Deaf or disabled–then the very fact that you can do your job will itself disqualify you from ADA protection.

In the story below, Carey McClure, a professional electrician, happens to have muscular dystropy. He is demonstrably able to do his job well. His muscular dystrophy does mean that he needs to do certain tasks a little DIFFERENTLY, but no less competently. But his employer still chose to fire him because of his muscular dystrophy.

So, two things went wrong here. First, the doctor and employers missed an opportunity to carefully re-examine their medical requirements for the job. If a person who cannot raise his arms above his head clearly CAN still work with electrical wiring above his head, then is it really reasonable or fair to require that all employees necessarily have this capability? Are their medical requirements really as closely related to the job requirements as they must have originally thought when they were first written up? Or, is there a better way to evaluate an employee’s actual physical capability of performing the actual, specific tasks of the job?

Second, when this case came before the courts, they should have looked at the evidence of the case and then asked the employers, “Wait a minute, if he can still do the job, then where’s your justification for firing him?” But instead, they turned Carey McClure into the defendant and forced him to defend his allegation that muscular dystrophy counts as a disability.

Because whether or not it “counts” isn’t the point. Some culturally Deaf people strongly reject the idea that they “count” as disabled (which can sometimes, depending on how it’s said, come across as if they see something “wrong” with being disabled, which I think ought to be disturbing in itself. But that’s a wholly separate essay.) But Deaf people still–quite rightfully–want to be protected under the ADA, too–without necessarily needing to be defined as “disabled”.

The point here is, and should have been, “When his employer fired him, did or didn’t that count as discrimination?” That’s the only question the courts should have addressed. If we can get the ADA Restoration Act passed, then that will force the courts to start doing their jobs. Some of the time, the correct answer to this question will be “yes,” and some of the time the correct answer should be “no.” It should never be, “Maybe yes, but we don’t care because the person can do the job too well to count as “disabled.”

This story is taken from text prepared by the Consortium for Citizens with Disabilities (CCD).

State: Texas
Disability: Muscular Dystrophy
Court: 5th Circuit 2003 (LA, MS, TX)

Carey McClure

Since age 15, Carey McClure has had a form of muscular dystrophy that affects the muscles in his upper arms and shoulders. Carey has difficulty raising his arms above shoulder level and has constant pain in his shoulders. In his work as a professional electrician, Carey performs most of his job functions without modification, and has adapted how he performs overhead tasks like changing light fixtures or working on ceiling wiring. Carey performs these job functions by (a) throwing his arms over his head to perform the work, (b) repositioning his body so that he can raise his arms, (c) supporting his arms on an adjacent ladder, or (d) using a ladder, step-stool, or hydraulic lift so that it is not necessary for him to raise his arms above shoulder level.(47)

Carey was living in Georgia and had 20 years of experience working as an electrician when he applied for a better opportunity at a General Motors’ assembly plant in Arlington, Texas. GM offered Carey the job pending completion of a pre-employment physical examination. During that exam, GM’s physician asked Carey to raise his arms above his head. When he saw that Carey could only get his arms to shoulder level, the physician asked how Carey would perform overhead work. Carey, who had performed such work in the past, responded that he would use a ladder. Despite the fact that other electricians in the plant often used ladders or hydraulic lifts to do overhead work, the physician revoked GM’s offer of employment. (48)

Carey challenged GM’s decision. Even though GM revoked its job offer because of limitations resulting from Carey’s muscular dystrophy,(49) GM argued that Carey did not have a “disability” and was not protected by the ADA.(50)

Carey responded with highly personal information regarding the many ways that his muscular dystrophy limits his daily life activities. Carey explained that:

• he is able to wash his hair, brush his teeth, and comb his hair only by supporting one arm with the other;
• he wears button down shirts because it is too difficult for him to pull a t-shirt over his head;
• he must rest his elbows on the table in order to eat, and lowers his head down over the plate so that he can get the food to his mouth;
• he cannot exercise or play sports, and cannot care for his grandchildren by himself; and
• his ability to engage in sexual activities is limited by his muscular dystrophy.(51)

GM argued that – because Carey had adapted so well – he was not substantially limited in any major life activity.(52)

The courts agreed. According to the Court of Appeals for the 5th Circuit,

[Carey] has adapted how he bathes, combs his hair, brushes his teeth, dresses, eats, and performs manual tasks by supporting one arm with the other, repositioning his body, or using a step-stool or ladder. . . .[Carey’s] ability to overcome the obstacles that life has placed in his path is admirable. In light of this ability, however, we cannot say that the record supports the conclusion that his impairment substantially limits his ability to engage in one or more major life activities.(53)

Because the courts found that Carey did not have a “disability,” GM’s decision to revoke his offer because of limits resulting from his muscular dystrophy was never questioned.

(47) McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL 21766539, at *1-2 (5th Cir. 2003); Brief for Appellant, 2003 WL 22452651, at *4-5 (No. 03-10126).
(48) McClure, 2003 WL 21766539, at *3; Brief for Appellant at *5-8.
(49) Brief for Appellant at *7.
(50) Brief for Appellee, 2003 WL 22452652, at *5 (No. 03-10126).
(51) McClure, 2003 WL 21766539, at *1-2; Brief for Appellant at *2-5, 18-23.
(52) Brief for Appellee at *6.
(53) McClure, 2003 WL 21766539, at *2.

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?”

The third case story is entitled “Qualified to Work = Disqualification for ADA Protection”

The fourth is “Give Orr a Break.”

The sixth, after this one, is “Why Everybody Loses Without the ADA Restoration Act.”

The seventh is “A Hearing Woman, but a Deaf Story: Why We Need 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.

PLEASE make an ASL vlog (or a written blog, if you like) on the ADA Restoration Act! If you do, I’d be delighted to link to you!

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.