Legal Advocacy
AARP Asks Federal Appeals Court to Uphold ADA Claims
AARP Foundation Litigation attorneys filed AARP’s brief for workers challenging UPS policies limiting workers’ return to work from medical leave. AARP defended the workers’ right to band together to assert class action claims based on common grievances. An adverse ruling would set disability law apart from other civil rights laws, a result not intended by Congress in enacting the Americans with Disabilities Act (ADA).
Background
UPS has a “Ten Step ADA Compliance Policy” that sets out procedures by which employees with disabilities can request accommodations. The policy is implemented across all UPS facilities and involves many different levels of management and decision makers. It applies, among other situations, to all workers seeking to return to work from medical leave.
Workers sued, arguing that the “Ten Step Policy” is unduly complex and is implemented so as to delay UPS duty to accommodate disabled workers, including in returning to work from leave. The workers, in Hohider v. UPS, also argue that UPS enforces its policy in a discriminatory manner by, among other things, requiring unreasonably tight filing deadlines, utilizing job descriptions that include unnecessary requirements (in an effort to exclude people with disabilities), and that the policy conflicts with their union-based seniority rights.
Most significantly, plaintiffs allege that the company has a widespread and ingrained but unwritten policy of refusing to reinstate employees who have taken a leave for injury or disability until they have a release from their doctor stating they are “100% healed.” In these ways, the workers allege, UPS both effectively denies deserving employees reasonable accommodation and retaliates against those who do request accommodation.
Dispute
The workers filed a class action lawsuit on behalf of themselves and similarly situated current and former workers. The Hohider case is before the U.S. Court of Appeals for the Third Circuit, which is considering the specific question whether a lower court’s decision to grant class action status to the dispute was in error.
At the heart of the appeal is UPS’ argument that class action certification based on a “pattern or practice” theory (i.e., once plaintiffs show a “pattern or practice” of bias, the burden shifts to an employer to show that this specific plaintiff was not injured by that pattern or practice), is improper under the ADA. UPS argues that the ADA differs from other civil rights statutes because it is more difficult to determine if a person is disabled than whether the person is a particular race or gender. UPS also argues that the ADA requires individualized consideration of every disabled worker’s situation, and so, is fundamentally at odds with a class action approach.
AARP’s brief
If adopted, UPS’ argument would punch a tremendous hole in the ADA and set back established disability rights, as the brief filed by AARP and the National Employment Lawyers Association points out.
The brief notes that when the ADA was enacted in 1990, Congress specifically intended it to track other federal civil rights laws. Under a U.S. Supreme Court decision articulated more than three decades ago – and 13 years before the ADA -- federal civil rights laws have supported class action lawsuits in “pattern and practice” cases.
As for UPS’ claims that it is sometimes difficult to identify disabilities, the brief notes that ethnic heritage and religious affiliation are sometimes just as “hidden” and yet civil rights laws protect against bias on these grounds. And AARP’s brief notes that the question of individualized assessment should not be an issue in cases like this, which concern a company-wide blanket policy alleged to discriminate against people with disabilities.
If the Third Circuit agrees with AARP, it will set the ADA on a course like that of Title VII of the 1964 Civil Rights Act, to permit vindication of class claims as well as individual claims. If the Court rules for UPS, this will set people with disabilities apart from those protected by civil rights laws against other forms of longstanding discrimination. Further, as AARP’s brief notes, in that event employers will be able to force victims to litigate claims on an individual basis instead of a class basis, thus increasing the cost and length of time required for litigation of common patterns of discrimination. Another result would be a patchwork of results from various lawsuits challenging identical corporate practices and policies.
If class actions are unavailable under the ADA, employees with disabilities may feel economic pressure not to enforce their rights at all, regardless of how meritorious their potential claims, either because they will not be able to afford litigation or because they will fear for their individual job security. In contrast, a class action lawsuit represents collective action; thus, it may allow workers to share litigation costs, avoid duplicative lawsuits, challenge company policies just once, and bring about firm-wide remedies in a single proceeding.
Contact person:
Dan Kohrman
dkohrman@aarp.org
(202) 434-2060
October 24, 2008