By Laura Hershey
The Americans with Disabilities Act has sustained another legal blow. The Seventh Circuit Court of Appeals ruled this week that Congress went too far in authorizing employment discrimination lawsuits against states.
"Rational discrimination against persons with disabilities is constitutionally permissible," the opinion reads.
The Court ruled Tuesday, in the case of Erickson v. Northeastern Illinois University (case No. 98-3614), that stopping disability discrimination is not a compelling enough goal to abrogate the 11th Amendment of the U.S. Constitution. That clause prohibits private citizens from bringing federal lawsuits against states.
This ruling once again raises the ADA's constitutional stakes. One by one, circuit courts around the country have been coming down on one side or the other of the 11th Amendment question. Each decision makes an eventual Supreme Court ruling all the more important to states, advocates, and potential plaintiffs.
Melinda Erickson worked for five years at the university, as a secretary and program associate. She was undergoing treatment for infertility, which was physically and emotionally draining. She was fired for frequently missing work and being late for work. In her suit, Erickson argued that the university should have accommodated her disability, by tolerating absences and tardiness that it would not have condoned from a healthy employee.
The Court's ruling is highly critical of the ADA's "reasonable accommodation" requirements. The Constitution's 14th Amendment "equal protection" clause, the Court writes, requires that employers ignore characteristics such as race, sex, and disability. Workplace policies cannot be designed to discriminate against minorities, but nothing in the Constitution forbids policies that happen to affect certain groups differently than others.
By this view, the ADA's mandate to accommodate disabilities contradicts that more traditional definition of nondiscrimination: Whereas the 14th Amendment of the Constitution tells employers not to consider disabilities at all in making employment decisions, the ADA requires that disabilities be considered, and accommodated.
"Rational discrimination against persons with disabilities is constitutionally permissible," the opinion reads. Indeed, the Court seems to feel that much disability discrimination does fall into this category of "rational" -- including discrimination based on visual impairment, as explained in the following example:
"It is rational for a university to favor someone with good vision over someone who requires the assistance of a reader. The sighted person can master more of the academic literature (reading is much faster than listening), improving his chance to be a productive scholar, and also is less expensive (because the university need not pay for the reader). An academic institution that prefers to use a given budget to hire a sighted scholar plus a graduate teaching assistant, rather than a blind scholar plus a reader, has complied with its constitutional obligation to avoid irrational action. But it has not complied with the ADA, which requires accommodation at any cost less than undue hardship."
The opinion concludes, "The 11th Amendment and associated principles of sovereign immunity block private litigation against states in federal court." The ruling does point out that, while private citizens cannot sue states, the U.S. government could pursue the case on the plaintiff's behalf.
The Seventh Circuit includes Illinois, Indiana, and Wisconsin.
To read the full opinion, go to the Seventh Circuit Court's website, at http://www.ca7.uscourts.gov/scripts/foxweb.exe/ca7/Op3 (see related links).
Enter the case number, 98-3614, or the case name, Erickson v. Northeastern Illinois University.
(This story was posted on 31 Mar 2000)