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December News

Vast Borrowing Seen in Altering Social Security

By Richard W. Stevenson

WASHINGTON, Nov. 27 — The White House and Republicans in Congress are all but certain to embrace large-scale government borrowing to help finance President Bush's plan to create personal investment accounts in Social Security, according to administration officials, members of Congress and independent analysts.

The White House says it has made no decisions about how to pay for establishing the accounts, and among Republicans on Capitol Hill there are divergent opinions about how much borrowing would be prudent at a time when the government is running large budget deficits. Many Democrats say that the costs associated with setting up personal accounts just make Social Security's financial problems worse, and that the United States can scarcely afford to add to its rapidly growing national debt.

But proponents of Mr. Bush's effort to make investment accounts the centerpiece of an overhaul of the retirement system said there were no realistic alternatives to some increases in borrowing, a requirement the White House is beginning to acknowledge.

"The administration hasn't settled on any particular Social Security reform plan," Joshua B. Bolten, the director of theWhite House's Office of Management and Budget, said in an e-mail message in response to questions about overhauling the system. ...

Proponents say the necessary amount of borrowing could vary widely, from hundreds of billions to trillions of dollars over a decade, depending on how much money people are permitted to contribute to the accounts and whether the changes to Social Security include benefit cuts and tax increases.

Borrowing by the government could be necessary to establish the personal accounts because of the way Social Security pays for benefits. Under the current system, the payroll tax levied on workers goes to benefits for people who are already retired. Personal accounts would be paid for out of the same pool of money; they would allow workers to divert a portion of their payroll taxes into accounts invested in mutual funds or other investments.

The money going into the accounts would therefore no longer be available to pay benefits to current retirees. The shortfall would have to be made up somehow to preserve benefits for people who are already retired during the transition from one system to the other, and by nearly all estimates there is no way to make it up without relying at least in part on government borrowing.

Mr. Bush and Republicans in Congress have paid little political price in the last four years for the swing from budget surpluses to deficits. But some polls show that Americans consider reducing the deficit to be a higher priority than many other goals, including cutting taxes, and embracing a new round of borrowing could pose political as well as economic risks.

A reasonable amount of borrowing now, the proponents say, would avert a much bigger financial obligation decades later. They say personal accounts would yield higher returns for individuals than the current system and could be a catalyst to broader changes that would bring the benefits promised by Social Security into line with what the system, which is also about to come under intense financial strain from the aging of the baby boom generation and the increase in life expectancies, can afford to pay.

Mr. Bush has vowed to push hard to remake Social Security. Republicans in Congress say the White House has signaled to them that Mr. Bush will put the issue at the top of his domestic agenda in the coming year.

But the White House has never answered fundamental questions about Mr. Bush's plan. In particular, it has not explained how it would deal with the financial quandary created by its call for personal accounts.

Some conservative analysts and Republicans in Congress say a portion of the temporary financial gap that would be created by personal accounts could be closed through measures like holding down the growth in overall government spending. But nearly everyone involved in the debate over Social Security agrees that some borrowing will be necessary.

The main Republican players in Congress on the issue say they expect to endorse an increase in borrowing to finance the transition to a new system. But they remain split over whether to back plans that would include larger investment accounts and few painful trade-offs like benefit cuts and tax increases - and therefore require more borrowing - or to limit borrowing and include more steps that would be politically unpopular.

"Anybody who thinks borrowing money for the transition to personal accounts is going to solve the problem of the long-term solvency of Social Security doesn't understand the size of the problem," said Senator Charles E. Grassley, Republican of Iowa, the chairman of the Senate Finance Committee, which has jurisdiction over the retirement system.

Mr. Grassley said Congress would also have to put benefit reductions and tax increases on the table, in part to hold down the need for borrowing and in part to assure that any changes restore Social Security's long-term financial stability.

Under current projections used by Social Security's trustees, the government will have to begin drawing on general tax revenue to pay benefits to retirees in 2018, the first year in which scheduled benefit payments will exceed revenues from the payroll tax dedicated to the retirement system. By 2042, the government will have exhausted the Social Security trust fund — its legal obligation to pay back to the retirement system the temporary surplus in payroll tax revenues it has borrowed over the last several decades to subsidize the rest of the budget — and after that Social Security would be able to pay only about three-quarters of promised benefits.

Opponents of Mr. Bush's approach say that Social Security's financial problems can be dealt with more easily without the addition of personal accounts, and that any large-scale borrowing would erase the presumed economic advantage of establishing the accounts: spurring more national savings, a goal that nearly all economists agree is worthy and important. Any increase in private, individual savings, they say, would be partly or wholly offset by an increase in public debt. National savings are what is left after counting up everything the nation spends. This pool of money goes to investing in the expansion and modernization of business. It is a vital component of economic health. ...

In an effort to pressure the White House to acknowledge some of the financial trade-offs in its approach, Democratic leaders in Congress this week asked Mr. Bush to include in his next budget an accounting of the money that would be needed for his Social Security plan.

Only by including such figures in the budget, the Democrats said in a letter to Mr. Bush, "will Congress and the American people be able to weigh the difficult trade-offs between large-scale borrowing, Social Security benefit cuts, tax increases, and other spending reductions that may be required to fund your Social Security private accounts proposal."

The White House, which has promised to cut the deficit in half while making Mr. Bush's tax cuts permanent, has signaled that it does not intend to include the figures in its budget, since the administration has not endorsed a detailed plan.

The budget deficit in the year ended Sept. 30 was $413 billion. The total national debt is about $7.5 trillion, including $3 trillion owed by the government to itself, much of it in the form of the Social Security trust fund. Rising debt forces the government to pay out more of its revenue in interest payments, and can put upward pressure on the interest rates paid by businesses and consumers.

Some Republicans in Congress are concerned that too much borrowing would carry large economic and political costs. Senator Judd Gregg, the New Hampshire Republican who will be chairman of the Senate Budget Committee next year, said he would support borrowing money for Social Security if it was part of a plan that also included modest benefit cuts and tax increases.

But he said the additional debt might have to be accounted for on the government's books in a way that would not technically show an increase in the budget deficit in coming years. ...

To critics of personal accounts, Mr. Gregg's suggestion amounts to relying on budget gimmickry to hide the true costs. But supporters of the accounts say borrowing even a few trillion dollars now would be worthwhile, because it would help wipe out the retirement system's long-term unfunded liability — the difference between what it will owe retirees under current law and the amount it will take in — of around $11 trillion.

Senator John E. Sununu of New Hampshire and Rep. Paul D. Ryan of Wisconsin, both Republicans, have sponsored legislation that would allow workers to contribute more to their personal accounts than most other plans proposed by members of Congress and outside groups and would not require tax increases or benefit cuts. But by some estimates it would require nearly $2 trillion in borrowing — and, in the view of its critics, much more — and even then would rely on the idea that the new system would create so much more economic growth that it would partly pay for itself by generating additional tax revenues for the government.

Representative Jim Kolbe, Republican of Arizona, said the government could probably keep new borrowing to $800 billion over 10 years, but only if Congress and the administration are willing to back tax increases and benefit cuts as part of a broad overhaul of the retirement system.

"People do not understand that tough choices need to be made," Mr. Kolbe said.

Source: The New York Times, 11/28/04.

A False Start on Social Security

Even before the debate has truly begun over the centerpiece of President Bush's second-term domestic agenda — creating private retirement accounts within Social Security — White House and Congressional budget leaders have been floating the idea that it won't require a major increase in the federal budget deficit. This is dangerously misguided. Unwilling to raise taxes, Congress and the administration will have to borrow well over $1 trillion to turn the president's wish into reality.

For a country that already needs to borrow $2 billion a day just to stay afloat, that gargantuan price tag for privatization is one reason it's a bad idea. It is far from the only reason, and arguably not even the main one. Yesterday, for instance, the president's top economist said privatization would very likely lead to major benefit cuts, which could be devastating for people who lost money in their private accounts. For now, however, the cost issue is moving to center stage in Washington. It is imperative to refute the suggestion that private accounts would somehow, magically, pay for themselves.

The issue is how to pay full benefits to people at or near retirement if Social Security money starts going into private accounts. Since current wage earners cover the benefits for current retirees, every dollar workers invest elsewhere has to be replaced. This is the so-called transition cost, estimated at $1 trillion to $5 trillion.

To convince the public that those costs won't matter, privatization advocates are concocting a ruse something like this: Borrow, say, $2 trillion today to establish private accounts, with the expectation that they'll generate such tremendous personal savings that the government will be able to cut future Social Security benefits by an even larger amount and use the savings to erase the debt, plus interest, some 40 years down the line. By this sleight of hand, the money borrowed is not new debt, and there's no need to count it toward the deficit.

Remember how Enron used off-the-books maneuvers to pretend it had no debt? Remember how well that worked out?

For privatization advocates who have been stumped by how to pay for the transition to private accounts, this ploy has significant political advantages: creating the illusion that Social Security privatization entails no cost would bolster the case for privatization among an unwitting public. It would also give political cover to legislators and other policy makers who want to be on the president's team but may otherwise balk at the huge deficits that come with playing along.

What accounting gimmickry won't do — and this is crucial — is fool America's lenders, like foreign central banks and other participants in the financial markets. Whether it's recorded on the nation's books or not, ever more government borrowing will, sooner or later, reduce lenders' appetite for Treasury debt, forcing up interest rates as the government scrambles to attract the money it needs.

This is not a distant and theoretical danger. Last month, Alan Greenspan, the Fed chairman, flatly stated that America's lenders would eventually tire of financing our deficits. Underscoring his comments, the yield on the benchmark 10-year Treasury note hit a four-month high this week, as the ever-weaker dollar continues to lure investors away from dollar-based debt.

The immense borrowing envisaged by privatization advocates would intensify these disturbing trends, precisely the opposite of what the government should be doing. Trying to hide the borrowing would create the impression — an accurate one, as it turns, out — that our government is fiscally irresponsible. The global financial community would respond by upping the pressure because lenders demand tougher terms from feckless borrowers.

Privatization advocates will tell you that the cost of creating private accounts today must be compared with the cost of doing nothing to reform Social Security. This is specious. First, no reasonable person is suggesting that nothing be done. The proper comparison is between a plan to borrow trillions and a plan to phase in slowly a modest package of tax increases and benefit cuts that would preserve the current system's essential protections without borrowing or dubious accounting.

Second, borrowing to finance the transition to private accounts could very well cost more than doing nothing. If private accounts didn't perform as well as their proponents hope — and the proponents are buy and large a very optimistic bunch — the government might need to take on even more debt decades hence to rescue the old people who ended up without adequate retirement income.

Solid accounting must underlie Social Security reform. Once that's in place, let the debate begin.

Source: The New York Times, 12/3/04.

DOJ Settlement Agreement under Project Civic Access

The US Department of Justice has posted a recent settlement agreement with the City of Pueblo, Colorado, as part of their on-going efforts under Project Civic Access. This settlement agreement addresses a variety of areas including self-evaluation and transition plan, designation of a responsible employee and notice to the public, all administrative requirements under Title II of the ADA.

GO You can view this settlement agreement online.

Source: Great Lakes ADA & Accessible IT Center, 11/18/04

EEOC says Sears biased against disabled workers

The U.S. Equal Employment Opportunity Commission is suing Sears, Roebuck & Co., the largest U.S. department-store chain, for discriminating against workers who spend more than more than one year on extended disability leave.

The suit was filed in federal court in Chicago on behalf of an employee injured at a Sears store in Bannockburn, IL, in April 2001 and fired after a year on disability. Sears refused to find tasks he could perform while injured and fired him because he couldn't return to his old job, the EEOC said.

The Americans With Disabilities Act requires employers to work with disabled employees to find ways to accommodate them while they are injured, said Ethan Cohen, an EEOC attorney. Sears asks injured employees to present doctors' notes allowing them to return to work before they are terminated, Cohen said.

"To put the burden on the employee like that is contrary to the Americans With Disabilities Act," Cohen said in an interview.

Chris Brathwaite, a spokesman for Hoffman Estates, IL.-based Sears, said he hadn't seen the lawsuit and declined to comment immediately.

The lawsuit, which seeks to represent all employees who were similarly terminated, asks for Sears to pay their lost compensation, damages for pain and suffering and to prevent Sears from violating the act.

Sears shares fell $1.17 to $43.46 in New York Stock Exchange composite trading. The shares have declined 4 percent this year.

Source: Asbury Park Press, 11/11/04 via Great Lakes ADA & Accessible IT Center.

Utah & EEOC Partner To Promote Hiring and Advancement of People with Disabilities

SALT LAKE CITY - In an open press meeting at the state capitol on Wednesday, Nov. 10, at noon, Gov. Olene S. Walker and US Equal Employment Opportunity Commission (EEOC) Chair Cari M. Dominguez will sign a joint resolution aimed at enhancing state government employment opportunities for individuals with disabilities nationwide. By this agreement, the State of Utah and the EEOC will jointly review Utah's recruitment, hiring, and reasonable accommodation programs to identify best practices worthy of emulation by other states.

Utah is one of 11 states to join the EEOC in this pioneer project to further advance the New Freedom Initiative - President George W. Bush's comprehensive program to fully integrate the nation's 54 million individuals with disabilities into all aspects of American life. The Commission's role will include consultation, outreach, and technical assistance. Last month, the EEOC issued an interim report detailing best practices found in the first four states reviewed - Florida, Maryland, Vermont and Washington. The EEOC plans to issue a final report next October outlining best practices and potential barriers to employment nationwide. Other current partners in this effort are Kansas, Missouri, New Mexico, New Hampshire, North Carolina and Texas.

"The Commission is honored to have the State of Utah as a partner in this project," said Chair Dominguez. "Utah demonstrates its leadership in advancing the employment of Americans with disabilities through this effort. We look forward to a collaborative exchange for the benefit of our entire nation."

"I am pleased Utah is participating in the New Freedom Initiative," said Governor Walker. "We are committed to improving the quality of life for all Utahns, including those with disabilities, and I believe providing equal employment opportunities is a wonderful and necessary step to ensuring lifelong success."

In addition to Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and in state and local governments, and the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector, the EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, sex, religion or national origin; the Age Discrimination in Employment Act, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963; and sections of the Civil Rights Act of 1991. Proactive prevention of discrimination is an important part of the agency's mission.

Source: Great Lakes ADA & Accessible IT Center, 11/8/04

GO More information about the Commission is available online.

National Council on Disability to Release Americans with Disabilities Act Recommendations

WASHINGTON — The National Council on Disability (NCD) will release its report Righting the ADA at a news conference on December 1, 2004, at 10:00 am, in the Holeman Lounge at the National Press Club, 529 14th St, NW, Washington, D.C.

The report contains NCD's legislative proposal, entitled, ADA Restoration Act, which is intended to restore the protections of the Americans with Disabilities Act that have been restricted by several U.S. Supreme Court decisions over the past few years.

For more information, contact Mark Quigley or Julie Carroll at 202/272.2004 or 202/272.2074 TTY.

NCD to Propose ADA Restoration Legislation

By Eileen Putnam, Associated Press Writer

WASHINGTON — An independent federal agency wants President Bush to propose changes in the nation's landmark disability act, citing Supreme Court decisions it says have reduced the status of disabled people "to that of second-class citizens."

The National Council on Disability, which advises Congress and the president, said in a report being released Wednesday that legislation is needed to restore the original intent of the 1990 Americans with Disabilities Act.

The council proposed an ADA Restoration Act, which it likened to the Civil Rights Restoration Act of 1987, passed by Congress to broaden the civil rights law enacted two decades earlier.

Specifically, the council said Congress should bar discrimination against anyone "on the basis of disability," a change from the current wording, which bars discrimination "against an individual with a disability."

The latter wording tends to be narrowly construed and has often resulted in judges trying to decide whether someone actually has a life-altering disability and thus qualifies for protection, the council said.

"All Americans are potentially susceptible to discrimination on the basis of disability, whether they actually have physical or mental impairments and regardless of the degree of any such impairment," said the council report, which was sent to Bush.

The 1990 law signed by Bush's father was intended to ensure equal rights for the disabled and has brought a host of changes in workplaces, transportation, communication and other aspects of American life. Among other things, companies must make reasonable attempts to accommodate workers with physical impairments, while buildings, transportation and other public facilities must be accessible to all.

The council cited "negative court decisions" that have narrowed or cut back the influence of the law. The cases include:
  • Sutton v. United Air Lines Inc., 1999. The Supreme Court found that severely myopic twins who had unsuccessfully sought pilot jobs with United Airlines were not actually disabled because their vision could be corrected by eyeglasses.
  • Toyota Motor Mfg. v. Williams, 2002. The Supreme Court said a Toyota assembly line worker with carpal tunnel syndrome, fired because of her poor attendance record, was not entitled to protection under the disability act because it was not clear that she had substantial impairment of "any major life activity."
  • The court used a similar rationale in a 1999 case, Albertsons Inc. v. Kirkingburg, in which a driver for Albertsons was erroneously certified as meeting visual standards for truck drivers; when the error was discovered, Albertsons fired him and refused to rehire him even after he obtained a waiver from the standards. The court ruled the driver had not shown the alleged disability affected a major life activity.
  • Murphy v. United Parcel Service, 1999. The high court ruled against a UPS mechanic who was fired because his blood pressure exceeded health guidelines. The man had challenged his firing on grounds his high blood pressure was a disability, but the Supreme Court disagreed because the man could function normally with the help of blood pressure medication.
Source: Associated Press, 11/29/04.

GO National Council on Disability

Disability Community Voter Preference Survey

Dear Colleague,

The UCLA Center for Neighborhood Knowledge, in collaboration with the Westside Center for Independent Living, is conducting an online voter preferences survey to try to better understand the reasons people with disabilities voted in the recent presidential election.

We would appreciate your participation and your help in disseminating this survey among your own contacts.

Please distribute this email as widely as you can, through list-serves, publishing the survey web address in newsletters, or on your own web sites — wherever you may be able to get the attention of the target audience: people of voting age who have disabilities themselves; have family members or good friends with disabilities; or who work closely with our community professionally. All responses will be private and anonymous.

Thank you for your time. We will publish the results of the survey early next year. Hopefully it will help inform the debates over what causes people with disabilities and those close to the community to make their most important political decisions.

If you have questions about LILA or this survey, you can contact us at:

Alan Toy, MA UP, Assoc. Dir.
UCLA Neighborhood Knowledge Research Center
3250 Public Policy Building
Los Angeles, CA 90095
310/267.4944 (voice)
310/206.9105 (fax)

Happy holidays,

The Living Independently in Los Angeles (LILA) Team

GO Disability Community Voter Preference Survey


The Internet Traveler: Making the Web more accessible for visually impaired users

Cluttered, poorly organized web sites can be exasperating for any traveler trying to research or book a trip. But imagine that just to read the text on a Web page, you must magnify the print using software that makes it seem as though you're looking through a soda straw, and you'll begin to understand some of the difficulties that the nation's 10 million blind and visually impaired citizens face.

"My sense is [blind and visually impaired] people are certainly using the Internet as much — if not more — than sighted people," said Paul Schroeder, vice president of programs and policy for the New York-based American Foundation for the Blind ( "If you think about it, it gives them something they rarely, if ever, had access to, and that is information in a timely fashion. For us it's an even more critical experience to have, which makes it all the more valuable for a web site to be well designed," said Schroeder, who is blind.

For the nation's 1.5 million blind and visually impaired citizens who use computers, the promise of the Internet is often met with the frustration of reality.

The inaccessibility of travel web sites is often the result of poor design. Lack of contrasting colors, poor formatting and layouts, cluttered screens and difficult navigation affect visually impaired (as well as perfectly sighted) Web surfers.

Certain kinds of computer software and hardware can help users surmount some of these obstacles.

Software that simulates a human voice reading the screen or that magnifies an image is available, but it's costly — between $500 and $1,000, Schroeder said — and it requires training.

During investigations in 2003 and earlier this year, New York State Atty. Gen. Eliot Spitzer, working with the foundation for the blind, found that parts of the Ramada and Priceline web sites were not accessible to this type of technology, violating provisions of the Americans With Disabilities Act.

Ramada and Priceline paid $40,000 and $37,500, respectively, for the cost of the investigations and are making changes to their sites.

"As soon as we were contacted, we were working on the enhancements," said Brian Ek, a Priceline spokesman.

Those two sites are not the only ones that fell short. "The other sites didn't fare all that well in accessibility," Schroeder said, but they were not singled out partly because many sites work with the assistive technology. In September 2003, the AFB compared four of the top travel web sites — Expedia, Travelocity, Hotwire and Priceline — and was critical of all four.

"They were possible to use but were not very easy to use," Schroeder said.

The big three travel sites — Expedia, Orbitz and Travelocity — say they are aware of the issues and are working to make their sites more accessible.

"Expedia has a solid track record in this area, and in fact we recently kicked off an external audit with an independent company to make sure we remain accessible to a broad audience," said Expedia spokesman Jason Reindorp.

It makes solid business sense to do so, said Schroeder, and not just for the blind and visually impaired market. The aging baby boomer population has disposable income, time and desire to travel — and, often, fading eyesight.

"As a travel site, you would want to make your site the easiest to use," he said. "If they can build a less cluttered site, it makes the user experience better for everyone."

Source: The Los Angeles Times, 11/22/04, via Great Lakes ADA & Accessible IT Center

UPS Gets Time to Appeal Ruling

UPS has won a stay on a ruling that said the company violated the Americans with Disabilities Act by excluding deaf applicants for jobs operating delivery trucks weighing less than 10,000 pounds, Bloomberg News reports.

U.S. District Judge Thelton E. Henderson put the ruling on hold while the company appeals.

In October, Henderson ruled that UPS improperly applied a Department of Transportation hearing standard that covers operators of trucks weighing more than 10,000 pounds to drivers of trucks weighing 10,000 pounds or less. Henderson said the company must change its policy to allow deaf applicants for jobs driving the lighter trucks to go through the same process through which all other applicants must go.

The company argues that its policy aims to ensure public and driver safety, the news service notes. The company says its policy will stay in place while it appeals Henderson's October ruling. The appeals process could take years, the news service reports.

"In terms of the safety standards that we apply, those will remain in effect while the appeal is under way," says Peggy Gardner, a UPS spokesperson.

Source: Business and Legal Reports, 11/16/04, via Great Lakes ADA & Accessible IT Center

Jobless rate estimated at 19% among disabled people

WASHINGTON — There's a big difference between not having a job and being unemployed, but advocates of disabled people often don't make that distinction.

Twelve years after the Americans with Disabilities Act declared employment discrimination against the disabled illegal, a Harris poll found the percentage of disabled adults with jobs stuck at about 35 percent.

Critics of the ADA say the cost of compliance has made employers wary of hiring disabled workers.

However, advocates for the disabled downplay the employment participation statistic as misleading because it includes disabled adults - many of them older - unable or unwilling to work.

Experts on the disabled say they've seen positive employment gains, many of them among young adults.

This generation of young adults has benefited from special education programs or mainstreaming in regular classes in school districts that have had to comply with the federal Individuals with Disabilities Education Act.

The Harris polls conducted in 1986 and earlier this year show the percentage of disabled Americans without high school diplomas has dropped significantly in the past 18 years, from 39 percent to 21 percent.

It's nearly twice the percentage of the general population that never finished high school but a marked improvement.

And a higher percentage of young adults with disabilities is attending college and becoming professionals, according to Roy Grizzard, assistant secretary of Labor for Disability Employment Policy.

People without jobs include many Americans — both disabled and not — who are not considered part of the work force because they are students, retirees and homemakers. Others don't have a job because they are unwilling or physically unable to work.

However, to be unemployed means a person is ready, able and willing to take a job immediately.

Advocates for the disabled and government officials often note that 50 percent to 70 percent of disabled adults aren't employed and call it the unemployment rate.

That statistic — though incorrect — is often quoted because the Labor Department does not measure unemployment among disabled people.

The privately financed National Organization on Disability tried to rectify this lack of information earlier this year by asking the polling firm Harris Interactive to estimate the percentage of disabled adults who are truly unemployed.

Their estimate was 19 percent.

The Harris survey, released in June, also indicated a significant variation in unemployment depending on the severity of a person's disability:
  • Among the slightly disabled — for example, someone who has a slight limp or is a diabetic with the disease under control — the jobless rate was estimated at 11 percent.
  • But among those with severe disabilities — perhaps wheelchair users or people who are blind, deaf or missing a limb — the jobless rate more than doubled to 25 percent.
  • Among people considered moderately disabled — perhaps blind in one eye or using a prosthetic limb — unemployment ran between 18 percent and 19 percent.

Source: The Marion (OH) Star, 11/28/04, via Great Lakes ADA & Accessible IT Center

Mental Disabilities

By Michael Starr and Megumi Sakae

There is no question that the Americans with Disabilities Act protects individuals with both physical and mental disabilities. The application of the ADA to people with mental disabilities, however, has been particularly difficult for courts to deal with.

In its 1997 Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, the Equal Employment Opportunity Commission (EEOC) stated, following the statutory scheme, that people with mental impairments could have an ADA-protected disability if, as a consequence of those impairments, they were substantially limited in one or more major life activities.

But the EEOC expanded the list of possible "major life activities" from such things as walking, seeing, hearing, speaking and breathing (enumerated as examples in the ADA legislative history) to a range of new activities geared to psychiatric disabilities, such as, "thinking, concentrating, [and] interacting with others." This new array of potential "major life activities" is hard to grapple with.

Over a decade after passage of the ADA, no one would seriously doubt that an individual could succeed admirably in virtually any job even if he or she had a physical disability, such as a limitation on walking, provided suitable accommodations were made. But it is harder to imagine how someone could succeed in today's global, high performance, team oriented workplace if he were substantially limited in his ability to think, concentrate or interact with other people.

Equally problematic is the important distinction between disabilities and what can be termed "inabilities." From the outset, it was recognized that the ADA protected, for example, the person with dyslexia but not the person who was illiterate. There are, truth be told, people in the workplace who are irritable, quick tempered, cantankerous or prone to poor judgment. The ADA does not, however, protect people with obnoxious personality traits but only those who (in the case of mental impairments) have a mental or psychological disorder.

Difficulty in Defining Major Life Activities

Courts have struggled with defining the types of major life activities that are impaired by mental disabilities and distinguishing between "substantial" limitations in these activities and those less grievous consequences that do not implicate the ADA. Often, courts have avoided the issue, declining to decide whether "thinking" or "interacting with others" for example, is a major life activity and resolving the case by saying that, however that activity is defined, the plaintiff failed to show that he was "substantially limited" with respect to it. This equivocation has now come to an end with three conflicting appellate decisions on the activity of "interacting with others."

Just prior to publication of the EEOC guidelines, the 1st U.S. Circuit Court of Appeals in Soileau v. Guilford of Maine Inc., 105 F.3d 12 (1st Cir. 1997), rejected the "ability to get along with others" as a major life activity. There, Randall Soileau suffered from dysthymia, a chronic depressive disorder that interferes with a person's ability to interact with others. Soileau's psychologist advised that his work duties should be restricted "so as to avoid responsibilities which require significant interaction with other employees." Despite this accommodation, Soileau failed to improve his performance and he was terminated from employment.

Soileau sued, claiming that his dysthymia substantially limited the major life activity of "getting along with others." The 1st Circuit rejected the ability to "get along with others" as a major life activity, finding that while a "skill to be prized," it was too vague, elastic and unworkable to impose a legal duty on an employer. The 1st Circuit added that even if it were a major life activity, Soileau failed to show that the limitation was substantial because he was only unable to get along with his supervisor.

Two years later, the 9th Circuit expressly rejected Soileau's analysis and became the first federal appellate court to hold unequivocally that interacting with others was a major life activity, describing it as "an essential regular function, like walking and breathing, [which] easily falls within the definition." McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir. 1999).

There, Richard McAlindin was diagnosed with anxiety, panic and somatoform disorders. During a leave of absence, McAlindin requested a transfer as an accommodation for his disability because his doctor believed that the "negative association" with his previous position would impede his recovery.

His employer agreed to put McAlindin's name on the transfer list, but refused to make special efforts to ensure that the transfer would occur.

McAlindin then returned to his former position and sued for, among other things, failure to accommodate his asserted disability.

Citing the EEOC guidance, the 9th Circuit defined substantial limitation with respect to "interacting with others" as having relations with others "characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary." Though sounding a cautionary note that it would not regard "any cantankerous person" as being substantially limited in "interacting with others," the court concluded that, because of McAlindin's condition, there was a genuine issue of material fact as to whether his ability to interact with others was substantially limited.

Just recently, in Jacques v. DiMarzio Inc., 386 F.3d 192 (2d Cir. 2004), the 2nd Circuit took the 9th Circuit (and by implication the EEOC) to task for its definition of "substantial" limitation with respect to "interacting with others." In that case, Audrey Jacques, a factory worker who packaged and assembled guitar components, suffered from "severe and major depression" for most of her adult life and was diagnosed with a chronic form of bipolar II disorder. The symptoms were unpredictable mood swings, fluctuating unreliable interpersonal and/or occupational functioning, irritability, apathy, poor judgment and denial, none of which could be regularly controlled.

Throughout her employment, Jacques had had repeated confrontations with her co-workers and supervisors, to the point where her supervisors described their relationship with her as "poisonous," and her co-workers complained that she was harassing them. Eventually one of her supervisors offered her the option of becoming an outside contractor who worked from home. This option, however, was overruled by the company's owner, who instead instructed that her employment be terminated. After a jury verdict in Jacques' favor, the issue before the 2nd Circuit was whether her bipolar disorder, which was conceded to be a "mental impairment," resulted in a "substantial" limitation in the major life activity of "interacting with others."

Like the 1st Circuit, the 2nd Circuit concluded that "getting along with others" was too "unworkably subjective" to be regarded as a major life activity for ADA purposes. It nonetheless ruled that "interacting with others," though "overarching," was sufficiently objective for ADA purposes to serve as a major life activity. It disagreed, however, with the 9th Circuit's formulation of "substantial limitation," which it characterized as "unworkable, unbounded and useless as a guidance for employers, employees, judges and juries." The 2nd Circuit found that the presumed demarcation in the EEOC guidance between the merely cantankerous individual and the individual who had "consistently high levels" of hostility, social withdrawal and communicative failure simply did not exist.

The court was also troubled by a standard that gave greater legal protection and created greater litigation risk as employees became "more troublesome and nasty." It therefore held that someone was "substantially limited" in "interacting with others" only if his impairment "severely limited the fundamental ability to communicate with others," which could only be satisfied if the worker was severely limited in her "ability to connect with others — at the most basic level of these activities." Examples of conditions that would satisfy the standard are "acute or profound cases — of autism, agoraphobia and depression."

The Burden of Reasonable Accommodation

In reality, the verbal formulas adopted by the 2nd and 9th circuits are not that easy to differentiate. What is more pronounced is a difference in approach. Lurking behind the 2nd Circuit's decision — and noticeably lacking from the 9th Circuit and EEOC analysis — is the realization that once a court finds an individual to have an ADA-protected disability, the statutory requirement of reasonable accommodation can be quite onerous. It, consequently, seems to be a strange expansion of legislative intent to bring the full range of ADA protections to people whose limitations make them ill-suited for the essentially cooperative enterprise that work has become in modern America. Employers who would not tolerate hostile and anti-social behavior when the product of a "mere" personality trait might be forced to do so when, according to a testifying expert, it is the product of a mental or psychiatric disorder. Restricting the concept of "substantial" limitation in the activity of "interacting with others" to a profound and near total inability to communicate (such as in cases of autism) could avoid putting employers in this untenable bind.

Source: The National Law Journal, 11/24/04 via Great Lakes ADA & Accessible IT Center

Council for Disability Rights

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