Introduction
The aspect of disability discrimination laws in the context of Workers Compensation is indeed a controversial subject and steeped in subjective and unsubstantive analysis. It is seen that The Americans with Disability Act 1990 was not having a sound definition for what constituted disability and thus the protection that could be claimed or rejected against disability is also a contentious matter depending upon its interpretation by Courts and their respective perspectives taken by them as to whether a person’s disability need to be of the kind that could be granted protection under this Act, or cannot be granted protection since the Court believes that the disability of the plaintiff is not job related and is not of the kind that could be affect the carrying on of the defendant (employer) business.
Thus it is seen that there are three aspects that govern bringing disability within the scope of protection and thus compensation to be paid by employers.
- The injury arouse out of and during the course of employment
- The injury is not one that occurred due to personal reasons that could not be attributed to employment or the conduct of the employer.
- A breach of contract has occurred and injury has resulted, for which the proximate cause could be employment or matters connected with employability and nothing else.
Coming to the next point it is seen that worker’s compensation for disability discrimination laws could stem mainly from the interpretation of ADA, and it has also been held by federal courts that ADA had, on several occasions, prevented the correct application of Workers Compensation Laws in the states, because when there is conflict between the Federal laws and state laws, it is the Federal laws that gains preponderance, and on numerous legal instances, the State Courts decisions with regard to State anti-disability discrimination laws are not concurrent and may differ from state to state. “First, the requirement of individualized assessment leads to inconsistent and unpredictable court decisions.” (Hoffman, 2003).
consistency of conduct shown towards a particular employee need to be shown to other co- employees also, maintaining same duty timings and doing similar work; in other words, in the matter of compensation, rights of all employees rank equally and no kind of discrimination can be shown to any one employer, or a group of employees.
Objective of this Study
It has been observed that anti disability discriminatory laws, especially in context of worker compensation are not being deployed, even by Supreme Court, according to original intentions of lawmakers. Through limited restriction on applications of relevant anti – discrimatory laws, including ADA, Courts have definitely practised discrimatory attitudes towards large segments of perceived or actual disabled individuals in possession of physical or mental disadvantages.
The intention of this study is to create enlightenment that could remove the obstacles caused by such practices to disabled Americans and to allow them to participate, along with fellow Americans, in the task of nation building, without having to cope with any kind of prejudices or bias.
The barriers that are being faced by disabled people need to be broken down
It is now proposed to take up Literature review to delve into the matter of Federal and State laws concerning the implications of disability discriminatory laws on worker compensation.
Literature review
The area of intricate workers compensation would depend upon the surroundings of the particular sickness or injury. It is possible that a person may be terminated from employment for exceeding maximum leave available under the law’; for instance Family and Medical Leave Act (FMLA) prescribes 12 weeks leave for every 1 year of completed service. (How do you spell relief, 2002).
In such a case it would be necessary to determine which law could be invoked to ensure that proper protection is meted to the aggrieved party against professed discrimination. Sometimes, at the discretion of the employers, the disabled person may be provided alternative employment where the disability may not be provoked. A disabled nurse could be rehabilitated in a less physically stressful job of receptionist, etc.
But this is entirely at the discretion of the management and may also be refused. Job related discrimination could lead to loss of pay, transfers or stark termination, which may or may not be discriminatory on the part of the employers, however this is a matter for the Courts to decide, if and when the matter comes up for litigative hearing. However, it is necessary to delve on the purposes of different laws:
- Workers Compensation: This is fundamentally doled out for quick and immediate relief to employers who have suffered work related injuries.
- Social Security: This is intended to compensate for loss of incomes for people who may have suffered permanent injuries which cut off their income earning capacity.
- Disability Insurance: This is provided to people who have disabilities that permanent destroy their earning capacity.
- Family and Medical Leave Act: Intended to cope with issues relating to family illnesses, injury to family members
Americans with Disability Act 1990
This is mainly intended to prevent or pre-empt discrimination against employees who wish to and are qualified to work, but who may be possessing disabilities that need reasonable accommodation from employers. (How do you spell relief, 2002).
For instance, a wheel chaired employee may require space for parking wheel chair, a blind employee may require Braille systems, etc. This need to be made available by the employer on continuous basis, and should not be a cause for discrimination, or being paid a lower scale than other non disabled employees
It is seen in empirical situations that the interpretation of these laws are more important than the text, since it is seen that in cases, different courts have taken different perspectives of disabilities according to their own interprertaons and understanding. For instance, if one were to examine the ADA, it has set off a chain of controversies due to inherent deficiencies in the definition itself.
In the case of Toyota Motor Manufacturing, Kentucky Inc. Petitioner v. Williams, 534 U.S. 184 (2002) the District Court held that respondent had suffered from a physical impairment, but that the impairment did not qualify as a disability because it had not “substantially limit[ed]” any “major life activit[y],” 42 U. S. C. § 12102(2)(A). (Smith, Craver & Clark, 2004, p.95).
It is necessary to examine the definion of “disability” under ADA laws
The Act defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable concessions from employers, can perform the important needs and requirements of the employment profile that such individual performs or seeks. Again, a disability” is:
- a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
- a record of such impairment; or
- being regarded as having such impairment.” (The Americans with disabilities act and people with physical disabilities, 2006).
A strict interpretation of the above definition would be in terms of the fact that it is not enough that the employee (petitioner) has a condition that pre-empts the execution of main life actions. These are also not sufficient grounds; it has also to be proved that the condition of the petitioner is such that substantial main life functions have been impaired. Thus the crux of the issue would not be in terms of medical reports, but the factual capacity of the petitioner being so undermined that even ADL and IADL of the petitioner are severely impaired, rendering it impossible to carry out normal routines, let alone complex tasks and activities at the work place.
It is seen that the aspects of ADA laws could be subject to various interpretations as deemed correct and appropriate for the case by the returning jury. Even if the case is not tenable in the lower courts, it is possible to hear it in the Courts of Appeals, or even the Supreme Court for a favourable ruling in favour of the petitioner. It would not be wrong to state that there are severe challenges for the petitioner in the case of application of ADA, since the following aspects would be forthcoming:
- It would be necessary for the courts to make individual assessment of the petitioner’s level of functioning and the extent of debility, or practical losses suffered by him/her.
- There would be loss of confidentiality and health privacy since the jury would be questioning the petitioner to the barest details of impairment and disabilities, including the full history of the case, whether the employers were aware of it through the grant of reasonable concessions, whether such concessions have been granted, and how disability has impacted upon job performance.
- It is often seen that the unfortunate petitioner may be put into severe inconveniences due to the fact that if the medical condition warranted protection under ADA, it could be argued that there is no disability. For example, a person suffering from acute hearing problem may wear hearing aids to correct the condition, so apparently, no disability could be enforceable. The employers may save costs by disclaiming any known disability. However, if disability is claimed, the employers could argue that the patient is unfit for employment. Thus in both cases, the employee stands to lose.
- It has been maintained that employers could avoid the liability of ADA by stating that it is not consistent with the level of disability, and the petitioner is soughing recourse to ADA relief in order to gain benefit that would not accrue in the normal course. It is also possibly that the employee is exaggerating his/her physical condition in order to gain material advantage, which can be gained through mutual collusion with HCP’s.
- According to literature review, the aspect of cost is also an important factor, since in the case of ADA, the full costs have to be borne by the employer, or his insurance company, being a private funding, whereas in other cases, like Social security, disability insurance, etc., it is the public Exchequer who would have to bear the costs of litigation, etc. Thus it is seen that the impact of costs would be felt more by the ADA employers, while it would be spread over, in other cases.
In the case of Sutton et. al. v. United Airlines Inc., (97-1943) 527 U.S. 471 (1999)
130 F.3d 893, affirmed, the case relates to two twin sisters, petitioners, who, despite having uncorrected visual acuity of 20/200 applied for the job of Commercial Air Pilots (CAP). Their applications were rejected on the ground that they had not me the visual acuity standards of 20/100 or lesser. Subsequently, the case came up under ADA (1990) which categorically bans prospective employees’ from being discriminated on account of disability.” (Sutton, 1999, p.7-15). But in this case, there was no aspect of petitioners being disabled since their condition could be rectified by use of spectacles, or contact lenses. Thus their petition was rejected. O’Connor, J., conveyed the verdict of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., agreed. Ginsburg, J., filed a concurring opinion. (Sutton, 1999, p.15-21).
Thus it could be argued that US has around 160 millions people who have visual disabilities of corrective type. It would economically be well impossible to bring this entire visually disabled (but correctible) person within the ADA criteria and reimburse their protection under this Act.
In al, the literature review seems to concur with the fact that it order to prove disability, it was incumbent on the part of the applicant to prove that he was materially disabled, and this significantly and materially affected his work process. He/she was in dire need of working concessions, including aid from the employer. The latter on their part, would contest that said employee was not fallen within the purview of § 12102(2) of the Act in terms of possessing such disabilities.
According to Ruth Colker, authoress of book “The Mythic 43 Million Americans with Disabilities,” 2007 (Public Law and Legal Theory Working Paper Series No. 90) there are around 43 million people in the USA who are having some kind of physical or mental disability and this figures are increasing with each passing day. (Colker, 2007).
The Supreme Court of the land has however thought it necessary to frustrate the aspirations of these Americans by ignoring legal intent and its application, with the result that only 13.5 million disabled Americans, “most of them typically so disabled that they are not qualified to work, even with reasonable accommodations. “(Colker, 2007).
Thus according to this authority it is necessary that Courts need to interpret and pass judgements on ADA as intended by these lawmakers, In the light of the recently introduced – Americans with Disabilities Act Restoration Act of 2006, the Act ends with a provision on the rule of construction which broadly enumerates that Courts need to maintain the broad framework on which to interpret and impose the ADA in order to achieve its curative objectives and should not be narrowly interpreted which was not the main idea behind its enunciation by the lawmakers. By limiting it to narrow confines, it is, in more ways than one, inhibiting the course of justice detrimentally without benefit to users.
The Broad construction envisaged in the Section 6: Rule of construction says that “in order to ensure that this Act achieves its purpose under section 2(b) of providing a comprehensive prohibition on the basis of disability, the provisions of this Act shall be broadly construed to advance their remedial purpose.” (Sensenbrenner, Hoyer & Conyers, 2006).
Through this Amendment it is sought to remedy some of the interpretative ambiguities and misconceptions prevailing in the Americans with Disabilities Act 1990 and restore a sense of parity and cogency in its usage.
Analysis
Through the above deliberations it is now evident that although intended for social good for the underprivileged and disadvantaged section of American society, namely the disabled, it has not be able to be effectively dispense with justice and fair play that only courts are capable of meting out to petitioners. It is seen that the rights of employees to be independent of discrimination in compensation packages could be evidenced from the following:
- Equal Pay Act 1963
- Title VI of Civil rights Act 1964
- Age discrimination in Employment Act 1967
- Title 1 of ADA 1990.
Equal Pay Act 1963
It stipulates equal pay for equal work for both men and women working in an establishment. The main factors that come into play are skill sets, efforts put in by worker, responsibilities taken up, working conditions and establishment profiles.
Differences in Pay scales can be permissible when they are rooted on seniority, merit, quantity or quality of production, or a factor other than gender considerations. (Equal pay and compensation discrimination, 2004).
It is also illegal for employers to take punitive measures against an individual for defying employment customs that has bias or prejudices based on compensation, or for filing a discrimination suit, reaffirming or taking part in any way in inquiries, happenings, or lawsuits under Title VII, ADEA, ADA or the Equal Pay Act. (Equal pay and compensation discrimination, 2004).
The ADA (1990) laws had become too unwieldy and cumbersome to operate, especially in the need for strict interpretation on the part of the Courts in order to ensure legal compliance and equity. Courts were also reluctant to ignore precedents and issue epoch making decisions, contrary to earlier court decions since it would open the floodgates for more litigation of similar nature, which would be argued on the premises on decided landmark decisions,
Another limiting aspect regarding compensation cases under DDL were that State and district courts were at liberty to decide cases pertaining to their jurisdiction, and thus different states could adopt different positions regarding litigation relating to seemingly similar cases, and thus it was quite possible that standard rulings could not be maintained, especially over period of time.
However it is now seen that, in far as the ADA laws 2006 are concerned the lacunae relating to the scope of disability – in that what constituted disability – which mental or physicals states could be brought within the protective sphere of ADA 2006 ( not covered in ADA 1990) has been made.
Thus, Courts could be able to provide clear cut rulings based on whether the disability fell within the purview of ADA 2006 or not. Thus the uncertainty in decision making has now been substituted with clear cut and forceful verdicts on the part of Federal and State Courts.
It is seen that in 2008 the scope of ADA, a major legal tool in hauling perpetrators of any discrimation to US Citizens to Court could well have received a shot in the arm with its increased
Jurisdiction and applicablity zones. The important ADA Amendment 2008 would upstage many Court decions on matters affecting disabled people being discriminated against at the work places, especially with regard to issues relating to compensation, gender and color considerations, or the nature of their disability. It would now become necessary for employers to offer qualified and fit candidates or employees, reasonable accommodation in matters concerning execution of their work and matters connected therewith. It has become necessary to make this law broad based so as to rope in anyone who could be a present or potential candidates “who faces discrimination because of a disability.” (Ohio legal rights service: ADA amendments act of 2008).
The new laws are intended to reinforce disability and the need for such disabled persons to seek and receive the protection of law, irrespective of the fact whether there are mitigating circumstances, or not. In the past, the Courts have refused to offer discrimation protection on the grounds that disability has not been conclusively present as it is correctable as in the decision of Sutton et. al. v. United Airlines Inc., (97-1943) 527 U.S. 471 (1999). (Sutton, 1999).
Conclusions
From the above deliberations it is seen that the major laws for discrimination in workplaces for people with disabilities has been encouraging over the years. Although initially it was seen that only a small proportion of petitioners/ applicants in disability discrimination cases were successful, thanks to the very definition and interpretation of the word in the ADA 1990, and to the strong legal lobby that the employers were able to put up in order to avoid the onerous costs of compensation and legal costs incumbent thereon. However, in the recent past, the much needed reforms in the ADA have seen the light of day, and cogent specifics have been incorporated into the laws amended during 2006.
It is the earnest belief of the government and the people of this country that no disability is a matter of indignity but is rather a matter of concern for fellow human beings to help the disabled to lead a contented and useful life in society and join the mainstream of nation building through his contribution to societal progress and development.
Over the years there are reasons to believe that discrimination towards physically or mentally disadvantaged sections of society would be removed and they would join the mainstream of American society without fear or trepidation. It is necessary that the contribution of each and every citizen, whether able or disabled, be forthcoming to uplift the world order to greater heights of achievements in future.
References
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Smith, Arthur B Jr., Craver, Charles B., & Clark Leroy D. (2004). Employment Discrimination Law Cases and Materials: The rehabilitation act. 95. Web.
The Americans with disabilities act and people with physical disabilities: Who is qualified person with a disability under ADA. (2006). DHS Wisconsin Department of Health Services. Web.
Sutton. (1999). Supreme Court of the United States: Certiorari to the United States Court of appeals for the tenth circuit. Cornell University Law School. 7-15. Web.
Sutton. (1999). Supreme Court of the United States: Certiorari to the United States Court of appeals for the tenth circuit. Cornell University Law School. 15-21. Web.
Colker, Ruth. (2007). Supreme Court should revisit ADA interpretation. The Ohio State University: Moritz Law. Web.
Sensenbrenner., Hoyer., & Conyers. (2006). Text of H.R. 6258 [109th]: Americans with Disabilities Act Restoration Act of 2006: Sec 6 Rule of construction. Govtract.US. Web.
Equal pay and compensation discrimination. (2004). The U.S. equal employment opportunity commission. Web.
Ohio legal rights service: ADA amendments act of 2008. Ohio. Web.