Last year, we marked the 50th anniversary of the Civil Rights Act of 1964. This year the Americans with Disabilities Act turns 25. Two laws with a shared, broader goal—to level the playing field and eradicate unlawful discrimination—but also two laws with different pasts and likely different futures. One of the key distinctions is this: we can all grasp what a “race” or “national origin” might be, but can you really peg, with certainty, what a “disability” is? Probably not, because the legal meaning of this term is constantly evolving. When, for example, we see someone in a wheelchair, or an amputee with crutches, we think there is certainty. But what if the visual cues are not present? What if the disability has nothing to do with one’s fingers and toes being intact, but is “from the neck up”? If the last 25 years of the ADA have demonstrated anything, it is that the realm of mental, psychological and cognitive disorders and afflictions is one of the most significant and uncertain frontiers in employment disability discrimination law. Two recent decisions, Weaving v. City of Hillsboro (9th Circuit) and Higgins-Williams v. Sutter Medical Foundation (California Court of Appeal), provide some clues as to where we are going.
In 2014, the Ninth Circuit decided that Attention Deficit Hyperactivity Disorder (“ADHD”) did not qualify as a disability under the ADA in the circumstances of that case. Although “interacting with others” is recognized as a “major life activity” in the Ninth Circuit, the Court found that the plaintiff had no problem “interacting” with others—he just could not get along with them. The fact that he seemed to be able to get along with superiors, but not peers or subordinates, certainly did not help the plaintiff’s cause. The Court contrasted the plaintiff’s mixed bag of getting along and not getting along with coworkers to the facts from an earlier decision in this same circuit, McAldin v. County of San Diego. In that 1999 decision, the plaintiff was deemed to be disabled in his interactions with others because panic attacks and related afflictions caused him to stay at home for at least 20 hours per day.
2015 has seen the California Court of Appeal step into the fray in Higgins-Williams, although there the law at issue was not the ADA, but the California equivalent, the Fair Employment and Housing Act (“FEHA”), which arguably has a lower bar for disability. (To qualify as a disability under the FEHA, it must “limit a major life activity” versus the “substantially limits” standard of the ADA). There, the plaintiff apparently had issues dealing with supervisors she felt were abusive towards her. She requested and was granted leave, and was diagnosed with having “adjustment disorder with anxiety.” Eventually, after going through an interactive process of several months, the plaintiff was terminated because she (through her doctor) did not provide information of when, or if, she could return to, and perform the essential functions of, that position. Notably, the plaintiff’s doctor did state that she was unable to work under her two immediate supervisors. The Court of Appeal held that the inability to work “under a particular supervisor” did not rise to the level of disability under the FEHA.
So what do these decisions mean? Probably not a great deal. You could argue that the decisions represent a pendulum-swing by the courts in reining in the scope of mental disabilities. This would, I think, be an overstatement. In both cases, the plaintiffs failed to demonstrate the type of broad-based impairment that would lend itself to the definition of a disability: in Weaving, the plaintiff was condescending and acerbic towards his peers and subordinates, but had no issues communicating civilly with his supervisors. Similarly, in Higgins-Williams, the plaintiff apparently could perform her job, but just not with her two assigned supervisors. If you turn these two decisions around, there is every reason to believe that ADHD (Weaving) or adjustment disorder with anxiety (Higgins-Williams) could qualify as disabilities under the ADA and the FEHA, so long as the impairment at issue is broad based, and not specific as to individuals. Where the courts proceed with this narrative will be critical. Our understanding, both legally and in everyday life, of mental health issues continues to expand. Until the case law further develops, though, employers confronted with accommodating claimed disabilities like those presented in Weaving and Higgins-Williams cannot be blamed for feeling a bit like a backcountry hiker who has lost his compass.
Until the case law further develops, though, employers confronted with accommodating claimed disabilities like those presented in Weaving and Higgins-Williams would be well advised to proceed with great caution and thoughtfulness.