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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 970

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0445%3A05. Public record. Not legal advice.