Amicus Curiae Brief — Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

MOTION FILED ( 5)

MAR 5 200

In The

- Supreme Gourt of the Un

October Term, 2000

-

TOYOTA MOTOR MANUFACTURING,

KENTUCKY, INC.,

Petitioner,

v.

ELLA WILLIAMS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE,

NATIONAL ASSOCIATION OF MANUFACTURERS,

IN SUPPORT OF THE PETITIONER

PETER A. SUSSER

Counsel of Record

Of Counsel: JOSEPH E. SCHULER

JAN S. AMUNDSON LITTLER MENDELSON, P.C.

QUENTIN RIEGEL 1225 I Street, N.W.

NATIONAL ASSOCIATION Suite 1000

OF MANUFACTURERS Washington, D.C. 20005

1331 Penn. Ave., N.W. (202) 842-3400

Suite 600

Washington, D.C. 20004 Counsel for Amicus Curiae

(202) 637-3000 National Association of

Manufacturers

BEST AVAILABLE COPY ™

No. 00-1089

In The

Supreme Court of the United States

October Term, 2000

TOYOTA MOTOR MANUFACTURING,

KENTUCKY, INC.

Petitioner,

v.

ELLA WILLIAMS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Pursuant to Rule 37.2(b) of this Court, the National

Association of Manufacturers (“NAM”) by its undersigned

counsel, hereby moves for leave to file its brief as an amicus

curiae in support of Petitioner, Toyota Motor Manufacturing,

Kentucky, Inc.” In support of its Motion, the NAM states:

* Prior to filing this Motion, the NAM sought the consent of all

parties to the filing of its brief, as required by Rule 37.2 of this

Court. The Petitioner consented to the NAM’s request. The NAM

received no response from Respondent to its requests,

necessitating this Motion.

The National Association of Manufacturers — “18 million

people who make things in America” — is the nation’s largest

and oldest multi-industry trade association. The NAM

represents 14,000 members (including 10,000 small and mid-

sized companies) and 350 member associations serving

manufacturers and employers in every industrial sector and

all 50 states. Headquartered in Washington, D.C., the NAM

has 11 additional offices across the country.

The NAM believes that its amicus curiae participation

will benefit the Court in this proceeding. It provides the

Court with the broad national perspective of large, medium

and small businesses in a broad range of sectors that work

daily to expand the economic competitiveness of business

enterprises, and enhance their ability to expand opportunities

and improve living standards for working Americans. Many

of the NAM’s members operate in multiple jurisdictions and

federal judicial circuits. It is illogical, unfair and

inappropriate for similarly-situated individuals and business

enterprises to face drastically differing legal standards in the

interpretation of federal law, depending upon their

geographic location. Accordingly, the NAM and its

members have a strong interest in securing the resolution of

conflicting lower court interpretations of an important

Statutory question that has spawned much litigation in

federal courts and agencies.

eee

WHEREFORE, the National Association of

Manufacturers respectfully requests that the Court grant its

motion and permit it to file the accompanying brief as an

amicus curiae in support of the Petitioner.

Respectfully submitted,

PETER A. SUSSER

Qf Counsel: Counsel of Record

JAN S. AMUNDSON JOSEPH E. SCHULER

QUENTIN RIEGEL LITTLER MENDELSON, P.C.

NATIONAL ASSOCIATION 12251 Street, N.W.

OF MANUFACTURERS Suite 1000

1331 Penn. Ave., N.W. Washington, D.C. 20005

Suite 600 (202) 842-3400

Washington, D.C. 20004

(202) 637-3000 Counsel for Amicus Curiae,

National Association of

Manufacturers

March 5, 2001

iv

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ............c..cccccccsccresessoserssessesseess vi

INTEREST OF THE ADMBCUS, ......cccccsccsccccsscscesccsccsccssessoosess l

INTRODUCTION AND SUMMARY ...........ccccccsessesseesenees 2

I.

THE DECISION BELOW IS INCONSISTENT

WITH THE ADA, EEOC REGULATIONS, AND

SUPREME COURT PRECEDENT. ............0cscsessesseserseees 7

A. The Decision Below Is Inconsistent With The

Plain Meaning Of The Act And This Court’s

Decision In Sutton As To The Reach Of The

GR Rccunsnmnmnnnnigniesintiiiiiiaibiiinetiell 7

B. The Decision Below Misapplies Section 1360.2(j)

Of The Regulations And This Court’s Decision In

SERITIIED, cccensrssmnenesssnsnsnsiseatsnieteniiemnitiitticenintabitieitmiiiitesid 9

C. The Decision Below Places An Impermissible

Gloss On The Act, Conflicts With This Court’s

Recent “Precedents And Would Create A

Hierarchy Of Plaintiffs That Congress Never

MISCLASSIFYING CTS AS A DISABILITY IN

CIRCUMSTANCES SUCH AS THOSE PRESENT

IN THIS CASE WILL FURTHER INUNDATE

COURT DOCKETS WITH ADA _ CLAIMS,

IMPOSING UNNECESSARY STRAINS ON

EMPLOYERS, EMPLOYEES, AND _ THE

Fle Eee csernnssereneesemsemnmnnenn 14

A. The Additional Cost To Employers Of Defending

Against Unnecessary Lawsuits Would Be Unduly

Burdensome And Counterproductive. ...............000+ 15

B. Our Over-Taxed Judicial System Will Also Feel

The Strain Of Increased Litigation. ....................000+. 17

ce eee 18

vi

TABLE OF AUTHORITIES

CASES:

Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999)

en 7, 10,11, 14

Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996)........ 14

McCleary v. National Cold Storage, Inc., 67

F.Supp.2d 1288 (D. Kamsas 1999) .0000.0........ccccccecesesseeneeees 14

McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d

eT 12

Murphy v. United Parcel Service, Inc., 527 U.S. 516

Fp rencanernssssssenenenmmenenimuniinnssemeinisnennennindutenets 7, 12, 13

Sutton v. United Airlines, 527 U.S. 471 (1999)............ passim

STATUTES:

Americans with Disabilities Act of 1990, Pub. L. No.

101-336, 104 Stat. 327, 42 U.S.C. § 12101 et seg.............. 2

Se ee Op Se ccrensenintninsnnmncnrttinncinctiamintitimaiianniinndl a

ere 0 Se irccnecncirnsnesnnesnemterennscctenmesiinitiantiadssiiaisiieass 3

Se ee © Cee rerrccnsvecnsssnscnemnnnninsnnententenstiittimasiittiatisinnd 5

REGULATIONS:

Ble OF CRD cerrsatienitenmemmmnninniemenntinil 9,10

ee Ye Se 9, 10

DCIR. 6 MOM iiciecitiliaiilviisiitieaaiillial 9, 10

LEGISLATIVE MATERIALS:

H.R.Rep. No. 100-485, pt. II at 52, pt. III at 28

CDIGT issn ninithsiniitcidiiernbniilaiilildacttiitidenn tiaedeials 10

S.Rep. No. 101-116, at 22 (1989) ...cccssccccsssssssssssssssssvsseeeeeee 10

OTHER AUTHORITIES:

1998 JUDICIAL BUSINESS, United States Federal

Judiciary, published at http://www.uscourts.gov/

ee cccracccesnresresenceemnepmnnnesscstenees 17

B. Mahoney ef al., Implementing Delay Reduction

and Delay Prevention Programs in Urban Trial,

Courts: Preliminary Findings, Vol. 8 (1985). .................. 18

Cumulative ADA Charge Data - Monetary Benefits

from July 26, 1992 — September 30, 1999, U.S.

Equal Employment Opportunity Commission,

published at http://www.ceoc. gov/stats .............0ceeeeeeeees 16

Evaluating and Using Employer-Initiated Arbitration

Rules and Agreements in Employment

Discrimination and Civil Rights Actions in Federal

and State Courts (ADLI-ABA Course of Study,

Apr. 28-30) 875, 894 (1994). .........ccccsceseseesessrseeeeeeeneenes 18

Facts About Carpal Tunnel Syndrome, AMERICAN

ACADEMY OF ORTHOPEDIC SURGEONS, published at

viii

Lewis Maltby, Private Justice: Employment

Arbitration and Civil Rights, 30 COLUM. HUMAN

RIGHTS L. REV. 29, 56 (Fall 1998)...........cseeseeseereereenes

Marika F.X. Litras, Civil Rights Complaints in U.S.

District Court, 1990-98, (NCJ-173427)......00cseseesereies

NINDS Carpal Tunnel Syndrome Information Page,

NATIONAL INSTITUTE OF NEUROLOGICAL

DISORDERS AND STROKE, published at

http://www.minds.nih.gov/health_and_medical/...........

Summary of Enforcement Data and Budget and

Staffing Information for the EEOC: FY 1991

through FY 1997, Office of Communications and

Legislative Affairs, Equal § Employment

Opportunity Commission (Dec. 8, 1997)...

No. 00-1089

ee ereneniemmnsnesemsemamneneereenes eres]

In The

Supreme Court of the United States

October Term, 2000

TOYOTA MOTOR MANUFACTURING,

KENTUCKY, INC.,

Petitioner.

v.

ELLA WILLIAMS,

Respondent,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE,

NATIONAL ASSOCIATION OF MANUFACTURERS,

IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICUS'

The National Association of Manufacturers (“NAM”) —

“18 million people who make things in America” — is the

nation’s largest and oldest multi-industry trade association.

The NAM represents 14,000 members (including 10,000

small and mid-sized companies) and 350 member

' The NAM hereby certifies, in accordance with Rule 37.6 of this

Court, that no counsel for a party authored this brief in whole or in

part, and no person or entity, other than the NAM, its members, or

nme aman crataaaemarmaaaal

submission of this brief.

associations serving manufacturers and employers in every

industrial sector and all 50 states. Headquartered in

Washington, D.C., the NAM has 11 additional offices acress

the country.

The NAM has a significant interest in the questions

presented in this case. Its members operate a vast number of

production facilities across the United States, with

employees performing work assignments of various kinds

that require a variety of capabilities and skills. It is essential

to such operations that busimesses have a clear

comprehension of the critical legal standards that govern

their flexibility in assigning work, in assessing employee

performance and production skills, and in making

appropriate decisions in this area. The legal standards

enunciated by the appellate panel in this case differ

drastically from those advanced by other federal courts. The

decision below throws into question the approach of many

employers in comparable fact settings, despite the fact that

the actions taken by the Petitioner appear to be lav. ful and

appropriate in other federal circuits. Clearly, with respect to

an important federal statute that has produced a substantial

volume of litigation, it is essential — for both multi-state

employers and manufacturers that operate only one

production site — that a single national standard determine

the lower courts’ approach to the critical legal issues

involved in this proceeding.

INTRODUCTION AND SUMMARY

A divided panel of the Sixth Circuit has extended the

reach of the Americans with Disabilities Act of 1990

(“ADA” or “Act”), Pub. L. No. 101-336, 104 Stat. 327, 42

U.S.C. § 12101 et seg., in the workplace to individuals

whose impairments, and in particular carpal tunnel

syndrome, preclude them from performing only a narrow

category of tasks associated with their specific job, but

which: a) do not rise to the level of substantially limiting the

major life activity of working, and b) do not substantially

limit any other major life activity except as a narrow subset

of activities associated solely with the workplace. This

ruling is inconsistent with the ADA itself, with the

regulations of the Equal Employment Opportunity

Commission (“EEOC”) implementing the ADA, with recent

precedents from this Court, and with decisions from other

circuits.’ If allowed to stand, it will significantly impair the

ability of employers, particularly those in the manufacturing

sector, to implement uniform, fair policies for their entire

workforce, and will place an unreasonable burden on

employers to accommodate conditions that Congress never

intended the ADA to cover.

The ADA prohibits discrimination by covered entities,

including private employers, against qualified individuals

with a disability. See, e.g., Sutton v. United Airlines, 527

U.S. 471, 477 (1999). The ADA provides that no covered

employer “shall discriminate against a qualified individual

with a disability because of the disability of such individual

in regard to job applications procedures, the hiring,

advancement or discharge of employees, employee

compensation, job training, and other terms, conditions and

privileges of employment.” 42 U.S.C. § 12112(a). A

“qualified individual with a disability” is identified as “an

individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

* The disparity between the Sixth Circuit’s decision in this case

and the holdings of courts in other Circuits is well and fully

addressed in Petitioner’s Petition for a Writ of Certiorari at 9-18,

and will not be reiterated by amicus NAM. The NAM’s support

of the Petition will instead focus on the conflict between the Sixth

Circuit’s decision and recent precedents of this Court construing

the ADA, as well as the other reasons why this important and

recurring question should be addressed by this Court.

employment position that such individual holds or desires.”

42 U.S.C. § 12111(8).

In this case, Respondent Ella Williams was employed by

Petitioner Toyota Motor Manufacturing, Kentucky, Inc.

(“TMMK”) as an assembly line worker. During her

employment, Respondent developed bilateral carpal tunnel

syndrome (“CTS”) in her wrists and bilateral tendinitis in her

neck and arms. This led to an accommodation whereby she

was assigned to what were known as the casi¢St jobs at

TMMK, in the Quality Control Inspection Operations

(“QCIO”) unit of an assembly line at its facility located in

Georgetown, Kentucky. She handled two of the four QCIO

jobs, and performed capably for a period of years, until

TMM instituted a policy that al! QCIO workers should be

cross-trained and capable of performing any of the four jobs.

One of the jobs new to Respondent required her to grip a

block of wood with a sponge attached and wipe down

passing cars with a highlight oil, working at regular intervals

with her .arms at shoulder height. Thereafter, Respondent

allegedly began to experience pain related to her condition

and concluded that she was physically unable to perform the

new job. She requested that she be reassigned exclusively to

her former duties, which she has never disputed that she

could continue to perform. Respondent then brought suit

under the ADA claiming that she was disabled and that

TMMK had failed to offer her a reasonable accommodation.”

The crux of this case — and the question that makes a writ

of certiorari appropriate — is whether Respondent’s inability

to use her arms in that limited range of tasks in a workplace

> In the portion of her suit relevant to the decision below and

consideration of this Petition, Respondent contended that her

~ impairment affected the major life activities of performing manual

tasks and working.

setting qualifies as a disability within the meaning of the

ADA.

“Disability” is defined by the ADA as:

[With respect to an individual — (A) a physical or

mental impairment that substantially limits one or

more of the major life activities of such individual;

(B) a record of such an impairment; or (C) being

regarded as having such an impairment.

42 U.S.C. § 12202(2). At issue in this case is subsection (A),

whether Respondent had an actual disability.

The District Court concluded that she did not, granting

TMMK’s motion for summary judgment. With respect to

the major life activity of performing manual tasks, the court

concluded that Respondent’s claim was “irretrievably

contradicted by [her] continual insistence that she could

perform the tasks in assembly and paint inspection without

difficulty; positions requiring manual tasks. In fact, during

the relevant time period, [her] proposed reasonable

accommodation was to be reassigned to assembly and paint

inspection.” App. 36a. With respect to the major life

activity of working, the court held that Respondent was

required to show more than an inability to perform a single

job, the job of her choice, or a narrow range of jobs, and

concluded that she had failed to produce such evidence.

App. 37a-38a.

Respondent appealed, ont a divided panel of the Sixth

Circuit reversed. App. la-8a. In reaching its decision, the

majority purported to limit its holding to a conclusion that

Respondent is substantially limited in the major life function

* Citation to the unreported opinion of the Distric: Court and to

the cpinion of the Sixth Circuit reversing the District Court will be

to the Appendix to the Petitioner’s Petition for a Writ of Certiorari

(“App. __”).

of “performing manual tasks,” as distinct from that of

“working.” Jd. at 5a. To reach its conclusion, the majority

reached out to this Court’s recent decision in Sutton v.

United Air Lines, Inc., 527 U.S. 471 (1999), to import and

adapt the “class based” analysis applied in Sutton to the

major life activity of working, and misapplied it.

Specifically, the Sixth Circuit held that “in order to be

disabled the [Respondent] must show that her manual

disability involves a ‘class’ of manual activities affecting the

ability to perform tasks at work.” App. 5a. The court then

concluded that Respondent had presented sufficient evidence

that her impairments prevent her from doing tasks

“associated with certain types of manual assembly line jobs .

. . that require the gripping of tools and repetitive work with

hands and arms extended at or above shoulder level for

extended periods of time.” It went on to state that “[tJhe fact

that Williams can perform a range of isolated, non-repetitive

manual tasks performed over a short period of time, such as

tending to her personal hygiene or carrying out personal or

household chores, does not effect a determination that her

imperilment substantially limits her ability to perform the

range of manual tasks associated with an assembly line job.”

Id. (emphasis supplied).

The standard for proving disability set by the Sixth

Circuit effectively creates a new category of major life

activity by merging “performing manual tasks” with

“working” in cases in which a plaintiff otherwise would not

be disabled within the meaning of the ADA under a distinct

analysis of either activity. Moreover, it does so by ignoring

the plain language of the Act and the regulations, by

improperly adapting the “class” analysis of Sutton, and by

establishing a lesser standard than this Court has specified in

its recent decisions. If allowed to stand, the deciston will

have disastrous repercussions by creating a hierarchy of

“disability” within the workplace that will ensure that

similarly situated individuals are treated differently, that

litigation over a range of conditions that impose lesser

limitations explodes, and that the workplace policies of

employers, especially those in the manufacturing sector, are

thrown into disarray.

ARGUMENT

I. THE DECISION BELOW IS INCONSISTENT

WITH THE ADA, EEOC REGULATIONS, AND

SUPREME COURT PRECEDENT.

Less than two years ago, this Court decided three major

cases involving disability in the workplace under the ADA:

Sutton; Murphy v. United Parcel Service, Inc., 527 U.S. 516

(1999); and Albertson's Inc. v. Kirkingburg, 527 U.S. 555

(1999). These cases uniformly instruct that the decision of

the Sixth Circuit is simply wrong.

A. The Decision Below Is Inconsistent With The

Plain Meaning Of The Act And This Court’s

Decision In Sutton As To The Reach Of The

ADA.

Sutton does not lead to the inexorable conclusion drawn

by the Sixth Circuit, i.e., that the ADA and the EEOC

regulations dictate that a “class-based” analysis be employed

for a finding of disability under the major life activity of

performing manual tasks. Indeed, Sutton should be read so

as to lead to exactly the opposite conclusion.

In Sutton, the Court confirmed that the ADA is to be read

as a whole, and given its plain meaning. /d. at 481. The

plain text of the statute is that an individual must be

“substantially limit[ed]” in “one or more major life

activities.” Respondent is impaired, but Sutton confirms that

impairment alone is not enough under the Act. Jd. at 483.

The gloss applied to the Act by the Sixth Circuit is not

consistent with the plain meaning of the ADA. Respondent

was found not to be substantially limited in any major life

activity outside of work — she is able to care for herself and

perform personal and household chores. In terms of

Respondent’s work, the Sixth Circuit concluded that her

impairment limits her ability to perform “the range of tasks

associated with an assembly line job.” App. 4a (emphasis

supplied). Accordingly, the Sixth Circuit found Respondent

has shown that her disability “involves” a class of manual

activities affecting the ability to perform tasks at work. /d.

Simply being unable to perform a limited range of

manual functions — the ability to work with a tool grasped in

the hand at shoulder height for an extended period of time -

is not a disability within the plain meaning of the ADA.

There is no substantial limitation to a major life activity as

intended by Congress. In Sutton, the Court reviewed at

length the origin of the congressional finding contained

within the text of the ADA that 43 million Americans are

disabled. The Court held that this finding “gives content to

the ADA’s terms, specifically the term ‘disability."” Sutton

at 487. While Sutton itself involved the question of whether

Congress intended to include all persons with corrected

physical limitations (such as hypertension controlled by

medication), the same analysis applies to the case at bar.

This Court drew the logical conclusion that by using that

figure, Congress intended coverage under the ADA to take a

functional approach to disability, focusing on activity

limitations of individuals who, relative to their age-sex

group, could not conduct “usual” activities. /d. at 486-87. In

applying a “class” analysis to manual activities and finding

disabled a person with CTS (who admittedly can perform all

of the usual manual tasks of living), simply because she

cannot perform a narrow range of activities limited to one

particular assembly line job, the Sixth Circuit stands this

principle o1 its head.

B. The Decision Below Section 1360.2(j)

Of The Regulations And This Court’

s Decision In

In reaching its conclusion, the Sixth Circuit states that in

addition to the Act, it relies upon the EEOC’s interpretation

of the ADA. Although the court does not explicitly state

which interpretation it relied upon, one may presume that the

‘court intended its reference to encompass at least the

definitions of “disability” and related terms found in Title 29

of the Code of Federal Regulations at section 1630.25 The

* Within section 1630.2, the definitions

. 4, of most relevance to the

decision below are “major life activities” and portions of

29 CFR. § 1630.2(i).

Substantially limits—

(1) The term substantially limits means:

(ii) significantly restricted as to the condition, manner

particular major life activity as compared to the condition,

manner, or duration under which the average person in the

ae population can perform that same major life

(3) With respect to the major life activity of working-

(i) The term substantially limits means significan

restricted in the ability to perform either a class of jobs cx

a broad range of jobs in various classes as compared to the

abilities. The inability to perform a single, particular job

(continued)

10

interpretation of the EEOC as embodied in these definitions

does not support the conclusion reached by the Sixth Circuit.

Rather, it militates against it.

First, the definition of “major life activities” refers to the

itemized activities as “functions.” 29 C.F.R. § 1630.2(i).

This definition, in turn, is taken directly from that utilized in

the several Committee Reports that comprise the most

significant part of the legislative history of the ADA.° Use

of the term “functions” by the EEOC to describe the

examples of major life activities, in turn, reflects back on

Congress's “functional” approach to coverage described and

relied upon by this Court in Sutton, as discussed above.

Further, nothing in these definitions lends any support to

the notion that a “class-based” analysis is appropriate to any

major life activity except “working.” Exactly the opposite is

true. The class-based analysis dictated by the regulations

and adopted by this Court in Sutton is expressly limited to

analysis of the major life activity of working. See 29 C.F.R.

§ 1630.2(j(3).

Finally, by inferring a “class-based” analysis that permits

a plaintiff merely to show that her manual disability involves

“a ‘class’ of manual activities affecting the ability to perform

tasks at work,” App. 4a (emphasis supplied), the Sixth

Circuit has fallen prey to at least one of the several

“missteps” that this Court found necessary to correct in

overturning a decision of the Ninth Circuit in Albertson's.

See Albertson's at 563. In that case, the Ninth Circuit found

that an individual with monocular vision was disabled,

does not constitute a substantial limitation in the major life

activity of working. . . .

29 C.F.R. § 1630.2(4)\1) & (3).

* See, S.Rep. No. 101-116, at 22 (1989); H.R.Rep. No. 100-485,

pt. I at 52, pt. Ill at 28 (1990).

11

‘bl ivi upon the EBOC’s definition of

“substantially limits,” on the premise that the manner in

manner in which most people see. Jd. at 564.

quick to find a disability.” Jd. Of most direct application

here, the Court found first that although the EEOC definition

of “substantially limits” requires a “significant restriction,”

the Ninth Circuit undercut a fundamental statutory

requirement by transforming “significant restriction” into

“difference.” Jd. So too has the Sixth Circuit transformed

the EEOC’s regulation and undercut a fundamental statutory

requirement by equating “affect” with “signi

restrict.” Permitting a finding of disability based upon a

class of manual activities that merely affect the ability to

perform a limited range of particular tasks at work is, quite

simply, at odds with the requirement that only impairments

tat “substantially limit” by “significantly restricting” 2

major life activity constitute disabilities under the ADA.

The Act concerns itself only with disabilities that are in fact

substantial. Jd.

C. The Decision Below Piaces An impermissible

Gloss On The Act, Conflicts With This Court’s

a Precedents And Would Create A

ierarchy Of Plaintiffs That Congress Never

Intended. .

In the final analysis, as pointed out by Judge Boggs in his

dissent below, the majority opinion “mistakenly takes what

is here primarily a subset of abilities related to working, the

‘working’ and on ‘performing manual tasks.” App. 11a. As

pointed out by Judge Boggs, “[tJhese are separate inquiries”

12

[citing to McKay v. Toyota Motor Mfg., U.S.A., Inc., 110

F.3d 369 (6th Cir. 1997)}. Jd.

Indeed, in a case such as this, not only is it improper to

conflate the two categories of major life activity, but the only

major life activity by which Respondent’s claim of disability

should be reviewed is that of “working.” In this case,

Respondent’s physical condition did not restrict her ability to

care for herself or function in any meaningful way except at

work. See App. 4a; 34a-36a. That is, Respondent is ~

evidently capable of performing most manual tasks, such as

tying a shoe, opening a door, gripping a pen or holding a

steering wheel. The only task she alleges she is restricted

from performing (and can support on the record), is working

for extended periods of time with her arms at shoulder height

while holding a tool in her hand. There is no life setting

where this manual task would be relevant to the average

then the only proper analysis under the ADA is whether the

impairment affects the major life activity of working even if

the impairment arguably impacts another category. Any

other analysis inevitably will lead to the strained constructs

and “conflating” engineered by the Sixth Circuit.

This Court’s decisions in Sutton, supra, and in Murphy v.

United Parcel Service, Inc., 527 U.S. 516 (1999), support

purposes is as much a subset of both “flying/driving” and

“working” as grasping a block of wood at shoulder height is

a subset of both “manual tasks” and “working.” Certiorari

13

was granted in Sutton and Murphy on the question of

whether the individuals were regarded as disabled. Yet, the

analysis in both cases concentrated properly and exclusively

on whether the individuals were regarded as disabled under

the major life activity of working. See Sutton at 490-94;

Murphy at 523-25.

In each case, this Court found that the individuals in

question were not disabled from the major life activity of

a particular job or narrow class of jobs. When the major life

activity under consideration in an ADA action is that of

working, the statutory phrase “substantially limits” requires,

at a minimum, that plaintiffs show they are unable to work in

a broad class of jobs. See Sutton at 491-92; Murphy at 523-

24. ail

The same result should obtain in this case, and all others

for individuals is on the major life activity of working.

activity of working when the impairment only or primarily

impacts that facet of the individual’s lives, and other

activities only as they relate to working. Permitting

plaintiffs to construct “classes” or subsets of “major life

activities” that are meaningful only in the workplace -

classes that are, in reality, associated with a particular job or

class of jobs — would eviscerate Sutton and Murphy.- Only

plaintiffs who could not find a way to categorize their

impairment as a “class” of activities associated with another

major life activity would be obliged to prove that they were

restricted from more than one job or a narrow class of jobs.”

” For example, in considering the disability claim of a plaintiff

with a hip impairment that limited his ability to walk and climb

stairs, the Third Circuit had occasion te catalogue numerous

(continued)

14

Il. MISCLASSIFYING CTS AS A DISABILITY IN

CIRCUMSTANCES SUCH AS THOSE PRESENT

IN THIS CASE WILL FURTHER INUNDATE

COURT DOCKETS WITH ADA _ CLAIMS,

IMPOSING UNNECESSARY STRAINS ON

EMPLOYERS, EMPLOYEES, AND THE

JUDICIAL SYSTEM.

The questions raised by this case are of great

consequence to employers, and those in the manufacturing

sector in particular, because conditions such as those present

here are reported with some frequency by workers. In some

instances, recommended limitations may preclude the

affected employee from performing the tasks associated with

a specific job. The extent to which employers must

accommodate such conditions and comparable limitations,

and whether national employers will need to provide

different accommodations in the Sixth Circuit than in other

areas of the country, is thus of considerable and growing

importance.

The ADA and this Court dictate that each individual

claim of disability be evaluated on its own merits. See, e.g.,

Albertson's at 566. But it is inevitable that the Sixth

Circuit’s ruling, if allowed to stand uncorrected, will become

known as “the CTS case,” and invoked by plaintiffs for the

equates to a significant limitation on the “major life activity” of

walking. See Kelly v. Drexel University, 94 F.3d 102, 107-08 (3d

Cir. 1996); see also McCleary v. National Cold Storage, Inc., 67

F.Supp.2d 1288, 1301 (D. Kansas 1999) (same; citing Kelly and

collecting additional cases). Most of the cases reviewed arose in

the employment setting. Under the Sixth Circuit’s analysis, such

plaintiffs could demonstrate a disability by showing that their leg

or foot impairment merely “affects” their ability to perform job-

related tasks that are otherwise insufficient to show disability

based on a substantial limitation to the activities of “walking” or -

“working.” ————

15

proposition that if an individual can demonstrate that her

CTS (or a similar condition) merely “affects” her “ability to

perform at work,” she will have made out a claim of

disability under the ADA. This outcome will inundate court

dockets, the EEOC and deferral agencies with ADA claims,

imposing unnecessary strains on employers, employees and

the judicial system.

A. The Additional Cost To Employers Of Defending

Against Unnecessary Lawsuits Would Be Unduly

Burdensome And Counterproductive.

| Treating carpal tunnel syndrome (and comparable

limitations) that only “affect” a subset of abilities related to

working as a disability will dramatically increase the number

of ADA lawsuits filed against well-meaning employers. The

ultimate result will be that an inordinate amount of time and

resources will be diverted away from broader workplace

safety and health efforts and from accommodation of

individuals who have disabilities that truly restrict major life

activities, to defending against claims not covered by the

statute.

Individual complaints of CTS are a wide-spread

workplace phenomenon. An estimated 849,000 Americans

visit their doctors each year complaining of CTS-like

Two facts relating to reported incidence of CTS-like

symptoms are worth noting. First, many employees

sulisian Gem Gite couties eaten taaaat

are not without recourse. In most states, workers’

compensation coverage provides a range of relief for such

temporary and treatable injuries that arise from and in the

* Facts About Carpal Tunnel Syndrome, AMERICAN ACADEMY OF

ORTHOPEDIC SURGEONS, published at http://www.aaos.org

/wordhtml/press/carpalfa.htm.

16

course of employment. Although common, CTS is usually a

short-lived condition. Only about one percent of individuals

with carpal tunnel syndrome develop permanent injury.”

Most individuals with CTS completely recover.'® Such

short-term injuries are the types of conditions for which

workers’ compensation was designed.

Second, the current cost to employers can be significant.

Attaching “disability” status to a common injury in

circumstances in which limitations are less severe will no

doubt cause defense costs to spiral out of control. Not only

are lawsuits financially crippling, so too are damage awards

to ADA plaintiffs. From July 26, 1992 through September

30, 1999, ADA cases filed with the Equal Employment

Opportunity Commission (“EEOC”) involving claims of

various cumulative trauma disorders resulted in $2,735,556

being paid to 179 individuals.'’ The number of people

receiving monetary benefits increased steadily throughout

this period. In 1999 alone, 52 plaintiffs were aw ded over

half a miilion dollars.”

Presumably, such awards are restricted to actions

impacting individuals whose conditions truly limit major life

activities. Inappropriately classifying cases of CTS that only

“affect” a subset of one’s abilities that relate to working as a

disability under the ADA will dramatically expand employer

* NINDS Carpal Tunnel Syndrome Information Page, NATIONAL

INSTITUTE OF NEUROLOGICAL DISORDERS AND STROKE,

published at http://www.minds.nih.gov/health_and_medical/

disorders/carpal_doc.htm.

° Td.

'' Cumulative ADA Charge Data - Monetary Benefits from July

26, 1992 — September 30, 1999, U.S. Equal Employment

Opportunity Commission, published at http://www.eeoc.gov/stats

/ada-monetary html.

Id.

17

legal and financial exposure, imposing broad costs on the

individual employer and the economy in general.

B. Our Over-Taxed Judicial System Will Also Feel

The Strain Of Increased Litigation.

Placing treatable ailments such as CTS under the ADA

umbrella simply because it affects the ability to perform a

narrow range of manual tasks will open the floodgates to a

crippling surge of litigation. Private employment suits are

already growing at an astronomical rate. In January of the

year 2000, the Bureau of Justice Statistics published a study

_ showing that from 1990 through 1998, private employment-

related civil rights cases nearly tripled. '*

These employment-related complaints accounted for

approximately 65 percent of the overall increase in cases that

have flooded the U.S. District Courts during this period.'*

This surge is due in large part to the ADA.'* Providing legal

redress under the ADA to many of the estimated 849,000

individuals who report CTS-like symptoms each year will

substantially tax the resources of the court system.

The shear number of potential iitigants compounded with

the average delays in case processing will overwhelm the

federal court dockets. The life span of an average

employment case has increased considerably. According to

the Federal Judicial Center, it takes almost two years (679.5

days) from the time an average case is filed in U.S. District

'? Marika F.X. Litras, Civil Rights Complaints in U.S. District

Court, 1990-98, (NCJ-173427). Employment discrimination cases

increased from 8,413 filings in 1990 to 23,735 in 1998.

Id.

'® 1998 JUDICIAL BUSINESS, United States Federal Judiciary,

published at http://www.uscourts.gov/dirrpt98/judbus. pdf.

18

Court until the date of resolution.'© Other surveys have

found this to be a conservative estimate, finding instead that

the average civil case lusts from two-and-one-half years'’ to

eight years,'* depending on the jurisdiction and the nature of

the case.

Additionally, the EEOC’s case resolution process works

slowly. The EEOC itself has reported in recent years that it

can take the agency nearly two years, on average, to process

an employee’s charge.'” Thus, litigation is not a means of

achieving swift justice. The end result is that all parties — the

employee, employer, and court system — will suffer.

CONCLUSION

The National Association of Manufacturers respectfully

urges this Court to grant the writ of certiorari to review the

judgment below, to reverse the ruling that would permit

plaintiffs to assert disability under the ADA based upon an

impairment that only precludes the individual from

performing a narrow subset of manual tasks associated with

a specific job, and to affirm the principle that if an

impairment only affects an individual’s ability to work, that

'° Lewis Maltby, Private Justice: Employment Arbitration and

Civil Rights, 30 COLUM. HUMAN RIGHTS L. REV. 29, 56 (Fall

1998)

'’ B. Mahoney et al., Implementing Delay Reduction and Delay

Prevention Programs in Urban Trial Courts: Preliminary Findings,

Vol. 8 (1985).

'* Evaluating and Using Employer-Initiated Arbitration Rules and

Agreements in Employment Discrimination and Civil Rights

Actions in Federal and State Courts (ADLI-ABA Course of Study,

Apr. 28-30) 875, 894 (1994).

'° Summary of Enforcement Data and Budget and Staffing

Information for the EEOC: FY 1991 through FY 1997, Office of

Communications and Legislative Affairs, Equal Employment

Opportunity Commission (Dec. 8, 1997).

19

asserted disability must be judged under the standards

applicable to the major life activity of “working.”

Respectfully submitted,

PETER A. SUSSER

Of Counsel: Counsel of Record

JAN S. AMUNDSON JOSEPH E. SCHULER

QUENTIN RIEGEL LITTLER MENDELSON, P.C.

NATIONAL ASSOCIATION 1225] Street, N.W.

OF MANUFACTURERS Suite 1000

1331 Penn. Ave., N.W. Washington, D.C. 20005

Suite 600 (202) 842-3400

Washington, D.C. 20004

(202) 637-3000 Counsel for Amicus Curiae,

National Association of

Manufacturers

March 5, 2001