Amicus Curiae Brief — Lucky Stores, Inc. v. Holihan

JN FILED

DEC - 5 1996

No. 96-723

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

Lucky SToRES, INC.,

a Petitioner,

RICHARD D. HOLIHAN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE A BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

ANN ELIZABETH REESMAN *

ROBERT E.. WILLIAMS

MARY CHLOPECKI

McGUINESS & WILLIAMS

1015 15th Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

December 5, 1996 * Counsel of Record

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-723

Lucky STorgs, INC.,

‘ Petitioner,

RICHARD D. HOLinAN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION OF THE EQUAL EMPLOYMENT ADVISORY

COUNCIL FOR LEAVE TO SUBMIT A BRIEF AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

To the Honorable, the Chief Justice and the Associate

Justices of the United States Supreme Court:

Pursuant to Rule 37 of the Rules of this Court, the

Equal Employment Advisory Council ( EEAC) respect-

fully moves this Court for leave to file the accompanying

brief amicus curiae in support of Lucky Stores, Inc., Pe-

titioner, whose written consent has been provided to the

Clerk of the Court.

Counsel for Respondent, Charles Don Crawford, after

being asked, has not consented. Because all parties have

not consented, a motion to file this brief is required.

In support of this motion, EEAC, by the following,

shows that its brief brings relevant matters to the atten-

tion of this Court that have not been presented by the

parties.

1. EEAC is a voluntary association of employers or-

ganized to promote sound approaches to the elimination

of employment discrimination. Its membership includes

nearly 300 major U.S. corporations, as well as several

associations which themselves have hundreds of corporate

members. EEAC has a unique depth of understanding of

the practical, as well as legal, considerations relevant to

the proper interpretation and application of equal employ-

ment policies and requirements. EEAC’s members are

firmly committed to the principles of nondiscrimination

and equal employment opportunity.

2. All of EEAC’s members and the constituents of its

association members, are employers subject to the Ameri-

cans with Disabilities Act, 42 U.S.C. § 12101 et seq.

(ADA), and other equal employment statutes and regu-

lations. In addition, many are federal contractors subject

to § 503 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 793.

3. As employers, and as potential respondents to dis-

ability discrimination charges, EEAC’s members are con-

cerned about the scope of the definition of “disability,”

which establishes the parameters of the protected class

under the ADA.

4. The issues presented in the petition are also ex-

tremely important to EEAC’s members because most offer

Employee Assistance Programs (EAPs). If the Ninth

Circuit’s decision stands, member companies will be forced

to assess the extent to which, and manner in which, they

will be able to continue offering EAPs and related

programs.

5. Because of its inter st in the application of the

nation’s civil rights laws, EEAC has, since its founding in

1976, filed briefs as amicus curiae in cases before the

United States Supreme Court, the United States Circuit

Courts of Appeals and various state supreme courts. As

part of this amicus activity, EEAC has participated in

several cases involving the proper interpretation of the

Americans with Disabilities Act,’ as well as numerous

cases in this and other courts involving the proper inter-

pretation of the Rehabilitation Act of 1973, the predeces-

sor to the ADA, and similar laws and regulations.» EEAC

also filed extensive comments in response to the Equal

Employment Opportunity Commission’s Notice of Pro-

posed Rulemaking on its substantive regulations imple-

menting the employment provisions of the ADA. 56 Fed.

Reg. 8578 (1991) (final regulations codified at 29 C.F.R.

§ 1630). In addition, EEAC has briefed a number of

other employment issues in this Court.*

1E.g., EEOC v. AIC Sec. Investigations, 55 F.3d 1276 (7th Cir.

1995) (individual liability); Hedberg v. Indiana Bell Tel. Co., 47

F.3d 928 (7th Cir. 1995) (ADA not violated where employer was

unaware of disability at time of adverse decision); Carrozza v.

Howard County, 45 F.8d 425 (4th Cir. 1995) (elimination of es-

sential function not a reasonable accommodation) ; McKay v. Toyota,

No. 95-5617 (6th Cir. 1995) (decision pending) (EEOC’s interpre-

tation of major life activity of “working” under the ADA).

2E.g., School Bd. of Nassau County v. Arline, 480 U.S. 273

(1987) ; Sharpe v. American Tel. & Tel. Co., 66 F.3d 1045 (9th

Cir. 1995) (scope of reasonable accommodation obligation) ; Pan-

dazides v. Virginia Bd. of Educ., 13 F.3d 8283 (4th Cir. 1994)

(scope of accommodation obligation regarding licensing or certifi-

cation examination) ; Buckingham v. United States, 998 F.2d 735

(9th Cir. 1993) (extent of reasonable accommodation obligation) ;

Walders v. Garrett, 956 F.2d 1163 (4th Cir. 1992) (attendance as

essential job function) ; Russell v. Frank, 971 F.2d 744 (ist Cir.

1992) (per curiam) (termination for falsification of medical

questionnaire).

3 E.g., O’Connor v. Consolidated Coin Caterers Corp., —— U.S.

, 116 S. Ct. 1307 (1996); Harris v. Forklift Sys., 510 U.S. 17

(1993) ; Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993); and

International Bhd. of Teamsters v. United States, 481 U.S. 324

(1977).

6. Thus, EEAC has an interest in, and a familiarity

with, the issues and policy concerns presented to the Court

in this case. Indeed, because of its significant experience

in these matters, EEAC is uniquely situated to brief this

Court on the importance of the issues beyond the imme-

diate concerns of the parties to the case.

7. This brief is timely as it is being filed within the

time allowed in Supreme Court Rule 37.2 for filing a brief

in support of the petition for writ of certiorari.

WHEREFORE, for the reasons stated, the Equal Em-

ployment Advisory Council respectfully requests that the

Court grant it leave to file a brief as amicus curiae in this

case in support of Petitioners.

Respectfully submitted,

ANN ELIZABETH REESMAN *

ROBERT E. WILLIAMS

MARY CHLOPECKI

McGUINESs & WILLIAMS

1015 15th Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

December 5, 1996 * Counsel of Record

TABLE OF CONTENTS

WF ME Dy bis povesoipnicarienipcntancansmanantntin ent te ame ane

REASONS FOR GRANTING THE WRIT...

I,

II.

Il.

THE NINTH CIRCUIT’S RULING CON-

FLICTS WITH THIS COURT’S DECISION IN

SCHOOL BD. OF NASSAU COUNTY V. AR-

LINE, BECAUSE IT FAILS TO REQUIRE A

CAUSAL CONNECTION BETWEEN THE

ALLEGED PERCEPTION OF IMPAIRMENT

AND AN ADVERSE EMPLOYMENT AC-

TGP RY anes cnticesionsetaesaiipaiaiinin ipesieindaitaiaii aaah lata:

THE NINTH CIRCUIT’S DECISION TO CON-

STRUE AN EMPLOYER’S EFFORTS TO AS-

SIST AN EMPLOYEE, WHOSE BEHAVIOR

WARRANTS DISCIPLINE BUT ALSO SUG-

GESTS THE POSSIBLE EXISTENCE OF AN

UNDERLYING PERSONAL PROBLEM, AS

EVIDENCE THAT THE EMPLOYER RE-

GARDS THE EMPLOYEE AS DISABLED, IS

CONTRARY TO THE INTENT OF CON-

GRESS AND THE RULING OF THIS COURT

IN SCHOOL BD. OF NASSAU COUNTY YV.

ARLINE ....... aiieiniiicidintcliat aehelsta ica a iieeeeasieadaaa tiaalies

THE NINTH CIRCUIT'S RULING CREATES

A STRONG DISINCENTIVE FOR EMPLOY-

ERS TO ATTEMPT TO ASSIST, THROUGH

REFERRAL TO EAPS OR OTHERWISE, EM-

PLOYEES DEMONSTRATING SIGNS OF

PERSONAL PROBLEMS, THEREBY DIMIN-

ISHING VALUABLE OPPORTUNITIES FOR

SUCH EMPLOYEES TO GET HELP ...............

CRIA RADMIEN Snicsicvmmnicsenegiedsa nage seam green

11

ii

TABLE OF AUTHORITIES

CASES Page

Aucutt v. Six Flags Over Mid-America, 85 F.3d

TBLT CBR CEE. BD cccescnncinepicichacdieainecionnatncteisiocas 11

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) —....... 6

Johnson v. Boardman Petroleum, Inc., 923 F. Supp.

REGS CE EPAAe, BOE cece veciternitsheaccestebaiinsaataintataacieds 13

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

BORG | ceviionoxtrischtsiennbundasinanandeeeaaes 10-11

School Board of Nassau County v. Arline, 480 U.S.

SEO CRED iinccaticennsceueen be Ne passim

STATUTES

Americans with Disabilities Act (ADA), 42 U.S.C.

SB SOEs Oe be aciiiwctcdenn are eciiaeaeunninions 4,6

Pte Soe |} RUPRRRer min Pale eA ee "5 4

GB US SEAS. & BEE ERC TD CRD ects ccesinesewcenectieniersne 12

Rehabilitation Act of 1978, 29 U.S.C. § 701 et seq... 4,7

LEGISLATIVE HISTORY

H.R. Rep. No. 101-485, 101st Cong., 2nd Sess., pt.

2 (1990), reprinted in, 1990 U.S.C.C.A.N. 3038..... 7, 12

H.R. Rep. No. 101-485, 101ist Cong., 2nd Sess., pt.

3 (1990), reprinted in, 1990 U.S.C.C.A.N. 445....passim

S. Rep. No. 101-116, 101st Cong., Ist Sess. (1989).. 7,12

REGULATIONS

OO lk tie DREAD cccinvssiicssnrsascsinspipninnsasonnaspenamisien 8

MISCELLANEOUS

Bernice Caldwell, EAPs: Survey Identifies Uses,

Employee Benefit Plan Review, December 1994.. 15

Changed Workplace Expands Role of EAPs, Em-

ployee Benefit Plan Review, December 1994 ........ 15

Directory of Employee Assistance Program Ven-

dors, Business Insurance, June 26, 1995 ................ 14

EAPs Broaden Their Horizons, HR Focus, July

DID iscsi tllscesscvnicenvenciitentpnnicpiicipmiiegeintetictetlele ceili dea cit ati. 15

iii

TABLE OF AUTHORITIES—Continued

Page

Equal Employment Opportunity Commission,

EEOC Compliance Manual, reprinted in, EEOC

Compliance Manual (BNA) (1995) ................. .....6, 9, 10

Equal Employment Opportunity Commission,

EEOC Technical Assistance Manual..................... 9

Sharon A. Haskins and Brian H. Kleiner, Em-

ployee Assistance Programs Take New Direc-

tions, HR Focus, January 1994... 15

Intervention at Work, Working Woman, February

REESE 2 8 95 ADRES Obert ARCOM Se Re 15

8 Eee kee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-723

LucKY STORES, INC.,

Petitioner,

L-

RICHARD D. HOLIHAN,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council (EEAC) re-

spectfully submits this brief amicus curiae, contingent on

the granting of the accompanying motion for leave. The

brief supports the petition for writ of certiorari.

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is set forth fully in

the preceding motion.

STATEMENT OF THE CASE

Respondent Richard D. Holihan began working for

Petitioner Lucky Stores, Inc. (Lucky) in 1966. (Pet. App.

at A2.) He became store manager in 1976, and until the

spring of 1992, managed eight different stores without any

2

significant problems. (/d.) Between April and July of

1992, however, Lucky received numerous employee com-

plaints charging Holihan with hostile and abusive behavior,

including manhandling, berating, and threatening em-

ployees. (/d.)

As a consequence of the complaints, on July 30, 1992,

Lucky District Manager Mark Church and Grocery Super-

visor Gary Doone met with Holihan. Seeking an explana-

tion for the recent incidents, Church asked Holihan if he

was having any “problems” with which Lucky could help

him. Holihan denied that the alleged incidents had

occurred as charged and denied having any problems.

Church and Doone decided to move Holihan to another

store, where there had been no previous personnel prob-

lems. (Jd. at A2-A3.)

Complaints regarding Holihan, however, persisted. In

the next three month period, thirteen employees filed 51

complaints with Lucky regarding Holihan’s abusive be-

havior. Among other things, the complaints charged that

Holihan threw food off the store shelves and ordered em-

ployees to clean it up, repeatedly threatened, without

justification, to terminate the entire staff, and violated

money handling and other office procedures. (/d. at A-3.)

In response to these new complaints, Church and Lucky

South Division Operations Vice President Jim Horsley met

with Holihan on October 22, 1992. After reviewing the

allegations in the complaints, which Holihan claimed were

untrue or exaggerated, Church offered Holihan a choice.

Either Holihan would take a standard leave of absence ’

and contact the company’s Employee Assistance Program

(EAP) for counseling, or he would be suspended, pending

Lucky’s investigation into the complaints. Holihan chose

to take the leave and contact the EAP. (J/d.)

1 Lucky maintained a leave policy permitting store managers,

among others, six months continuous leave for any reason.

3

Holihan contacted the EAP on October 26, 1992 and

began a medical leave of absence. (/d.) Through a re-

ferral from the EAP, Holihan was examined and diagnosed

by a psychologist, who concluded Holihan was “experienc-

ing stress related problems precipitated by work.” (J/d.)

This diagnosis was sent to Lucky, along with a recom-

mendation that Holihan remain off work until February 1,

1993. (/d.)

Subsequently, in relation to a workers’ compensation

claim he filed, Holihan was seen by another doctor, who

diagnosed him as suffering from “Organic Mental Syn-

drome, Not Otherwise Specified,” a condition rendering

him “partially psychiatrically disabled from his job.” This

diagnosis was not sent to Lucky, although it was sent to

Lucky’s insurance carrier. (/d. at A3-A4.)

Holihan did not return to work on February 1, 1993,

but requested an extension of his leave until March of

1993, contending that he remained disabled. (/d. at A-4.)

Lucky granted his request. Lucky also granted Holihan’s

subsequent request to extend his leave through April 30,

1993, which was supported by a doctor’s statement that

Holihan was suffering from “depression and anxiety.”

Holihan obtained yet another extension of leave in April

of 1993. (/d.)

Meanwhile, during the months of March and April,

Holihan began working up to 80 hours a week on two new

businesses. He sought suppliers and trained himself in

sign and banner production in order to open a sign-making

business, and he obtained a real estate license and began

selling homes. (/d.)

When Holihan requested additional time off in May of

1993, Lucky denied his request and terminated his em-

ployment. Lucky explained to Holihan that he already

had exceeded the limit for leave and that the additional

time he sought would have extended his leave three months

beyond the amount permitted under company policy. (/d.)

4

Holihan reapplied for a position with Lucky on Sep-

tember |, 1993. Having no store manager positions avail-

able, Lucky offered to hire Holihan as a clerk and invited

him to apply for the next available store manager position.

Holihan declined the offer. (/d.)

Holihan then sued Lucky in federal district court, alleg-

ing disability discrimination. (Jd. at A5.) The District

Court granted summary judgment in favor of Lucky, hold-

ing that Holihan had failed to come forward with sufficient

evidence to show that he was disabled within the meaning

of the ADA or regarded as such by Lucky. (/d.) The

Ninth Circuit affirmed in part and reversed in part, agree-

ing that Holihan had failed to produce sufficient evidence

to show that he was actually disabled, but concluding that

Holihan had come forward with enough evidence to raise

an issue of material fact on the question of whether Lucky

regarded him as disabled. (/d. at A8-A9.)

The Ninth Circuit subsequently denied Lucky’s Petition

for Rehearing and Suggestion for Rehearing En Banc.

(Pet. App. at Bl.) Lucky then filed the instant petition

for a writ of certiorari.

SUMMARY OF REASONS FOR GRANTING THE WRIT

This case raises the question of what essential elements

an employee must show in order to demonstrate that an

employer regarded the employee as disabled under the

Americans with Disabilities Act (ADA), 42 U.S.C.

$ 12101 et seg., or the Rehabilitation Act of 1973, 29

U.S.C. § 701 et seg. In denying Lucky Stores, Inc.’s

(Lucky’s) motion for summary judgment, the Ninth Cir-

cuit misinterpreted or misapplied the ADA’s standards

for establishing such a claim, contrary to this Court’s rul-

ing in School Bd. of Nassau County v. Arline, 480 U.S.

273 (1987).

As reflected in the Arline decision, as well as the ADA’s

legislative history and the United States Equal Employ-

5

ment Opportunity Commission’s (EEOC’s) implementing

regulations and interpretive guidance, in order to demon-

strate that an employer has regarded an employee as dis-

abled, the employee must produce evidence establishing a

causal link between the employer’s perception of the em-

ployee as disabled and the action taken by the employer of

which the employee complains. Where no such link exists,

the employee has not been regarded as disabled within the

meaning of the ADA.

Accordingly, it is essential for an employee claiming

ADA coverage on the basis that he or she was regarded

as disabled, to offer evidence that the employer acted on

the basis of a perceived disability. In the case at bar, the

Ninth Circuit failed to require this necessary showing.

Accordingly, its denial of summary judgment is inappro-

priate and at odds with Arline.

Also in conflict with Arline and with the intent of the

ADA is the Ninth Circuit’s conclusion that an employer’s

inquiry as to whether an employee, about whom 51 con-

duct-related complaints had been filed in three months,

was having “problems”; its referral of that employee to the

company’s EAP; and its receipt of doctors’ diagnoses that

the employee was suffering from stress, depression, and

anxiety, sufficed to show that the employer regarded the

employee as disabled. The ADA’s provision extending

coverage to employees regarded as disabled was aimed at

eliminating the effects of ignorance and fear about dis-

ability, not punishing employers for trying to respond in

an enlightened, sensitive, and neutral manner to an em-

ployee’s conduct problems.

Finally, the Ninth Circuit’s ruling will have the perverse

and harmful effect of discouraging employers from trying

to assist employees exhibiting signs of distress through

referral to EAPs or by other means. Such a result would

be detrimental not only to employees, who may lose jobs

or their best opportunities to obtain help for a whole

6

spectrum of problems, but also to employers, who may

have to let these once valued employees go or continue

to suffer the effects relating to employees’ unaddressed

personal problems.

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUITS RULING CONFLICTS

WITH THIS COURT’S DECISION IN SCHOOL BD.

OF NASSAU COUNTY v. ARLINE, BECAUSE IT

FAILS TO REQUIRE A CAUSAL CONNECTION

BETWEEN THE ALLEGED PERCEPTION OF IM-

PAIRMENT AND AN ADVERSE EMPLOYMENT

ACTION

The Ninth Circuit’s denial of summary judgment to

Lucky in this case is based upon a misapplication or mis-

interpretation of the Americans with Disabilities Act’s

(ADA’s), 42 U.S.C. § 12101 et seg., provision prohibit-

ing discrimination against individuals regarded as disabled

and is contrary to this Court’s ruling in School Bd. of

Nassau County vy. Arline, 480 U.S. 273 (1987).

In order to survive summary judgment, a party bearing

the burden of proof at trial must put forth evidence es-

tablishing the essential elements of the party’s case. Celo-

tex Corp. v. Cartrett, 477 U.S. 317, 322 (1986). At

issue is whether the Ninth Circuit, in reaching the conclu-

sion that Plaintiff offered sufficient evidence to establish

that his employer, Lucky Stores, Inc. (Lucky), regarded

him as disabled, considered all of the elements necessary

to support that claim.

A threshold requirement for coverage under the ADA

is that the Plaintiff be an “individual with a disability”

as that term is defined in law. Equal Employment Op-

portunity Comm’n, EEOC Compliance Manual 902-1,

(1995), reprinted in, EEOC Compl. Man. (BNA)

902:0001 (1995). An individual can establish that he

or she is a member of the protected class in any of three

ways. The individual can show that he or she: 1) has

|

7

a physical or mental impairment that substantially limits

one or more of his or her major life activities; 2) has a

record of such an impairment; or, 3) is regarded as hav-

ing such an impairment. 42 U.S.C. § 12102(2).

By definition, an individual who is a member of the

ADA’s protected class under the third prong of the defini-

tion of “disability” does not have a substantially limiting

impairment, but is “regarded as” if he did. In discussing

the rationale behind this same provision in the Rehabilita-

tion Act of 1973, 29 U.S.C. § 701 et seq., upon which

the ADA’s provision is based, this Court stated in Arline

that

[b]y amending the definition of “handicapped indi-

vidual” to include not only those who are actually

physically impaired, but also those who are regarded

as impaired and who, as a result, are substantially

limited in a major life activity, Congress acknowl-

edged that society’s accumulated myths and fears

about disability and disease are as handicapping as

are the physical limitations that flow from actual

impairment.

480 U.S. at 284 (emphasis added). This language reflects

the need for a causal connection between the impairment

and an adverse employment action.”

Congress adopted this interpretation from Arline when

it passed the ADA. H.R. Rep. No. 101-485, 101st Cong.,

2nd Sess., pt. 2, at 53 (1990), reprinted in, 1990

U.S.C.C.A.N. 303, 335; H.R. Rep. No. 101-485, 101st

Cong., 2nd Sess., pt. 3, at 29-30 (1990), reprinted in,

1990 U.S.C.C.A.N. 445, 452-453 (citing Arline); S. Rep.

No. 101-116, 101st Cong., Ist Sess. 23-24 (1989) (citing

Arline). This legislative history further elaborates on the

types of situations the “regarded as” provision was in-

? The need for a showing that Lucky indeed perceived Holihan as

having a substantial limitation, and the applicable standard of

proof, are set out fully in the Petition for a Writ of Certiorari

and will not be repeated here.

8

tended to cover. It provides several examples, such as

when an employee has a “stigmatic condition,” like scar-

ring, or a medical condition that is under control, such

as diabetes or epilepsy, or a condition that has been diag-

nosed but causes no symptoms. In each example, the

condition results in the employer’s perceiving the individ-

ual as disabled and imposing a limitation on that individ-

ual’s opportunities to work. Jd. Each includes, as a nec-

essary element, an evaluation of the employer’s conduct.

For example, the Report of the House Committee on the

Judiciary explains: “The perception of the covered entity

is a key element of this test. A person who perceives him-

self to have an impairment, but does not have an im-

pairment, and is not treated as if he has an impairment,

is not protected under this test.” H.R. Rep. No. 101-485,

101st Cong., 2nd Sess., pt. 3, at 30 (1990), reprinted in,

1990 U.S.C.C.A.N. 445, 452-453 (emphasis added).

The United States Equal Employment Opportunity Com-

mission’s (EEOC’s) regulations break down the different

scenarios under which an individual may be regarded as

disabled into three categories. These are: when the in-

dividual

(1) Has a physical or mental impairment that does

not substantially limit major life activities but is

treated by a covered entity as constituting such a

limitation;

(2) Has a physical or mental impairment that sub-

stantially limits major life activities only as a result of

the attitudes of others toward such impairment; or

(3) Has none of the impairments defined . . . in

this section but is treated by a covered entity as

having a substantially limiting impairment.

29 C.F.R. § 1630.2(1) (emphasis added). Consistent

with Arline and the ADA’s legislative history, in defining

what it means to be regarded as disabled, these regula-

tions focus on the employer’s treatment of the employee.

a MRT TT ee en Em

9

Similarly, the EEOC’s ADA Technical Assistance Man-

ual indicates that “[t]his part of the definition protects

people who are not substantially limited in a major life

activity from disciplinary actions taken because they are

perceived to have such a limitation.” EEOC Technical As-

sistance Manual § 2.2(c) (emphasis added). Likewise,

the EEOC’s internal guidance to its own investigators

advises that “[t]o determine whether an employer regards

an individual as having an impairment that substantially

limits major life activities, one must examine the employ-

er’s perception and treatment of the charging party.”

Equal Employment Opportunity Comm’n, EEOC Com-

pliance Manual, 902-45 (1995), reprinted in EEOC

Compl. Man. (BNA) 902:0045 (1995).

As these sources reflect, it is the existence of a causal

link between the employer’s perception of an employee

as disabled and its imposition of a limitation on that em-

ployee that creates this special category of “disability.”

For this reason, it is essential that the employer’s reasons

for acting be examined. Absent evidence that the em-

ployer acted on a perception that the individual had an

impairment that substantially limited a major life activity,

the individual fails to show that he or she was regarded

as disabled.

That such a showing is required is confirmed by the

House Judiciary Committee Report (which refers to

Arline for its rationale), where is states in its discussion

of “regarded as” disability,

if a person is disqualified [from employment oppor-

tunities] on the basis of an actual or perceived physi-

cal or mental condition, and the employer can articu-

late no legitimate job-related reason for the rejection,

a perceived concern about employing persons with

disabilities could be inferred and the plaintiff would

qualify for coverage under the “regarded as” test.

H.R. Rep. No. 101-485, 101st Cong., 2nd Sess., pt. 3,

at 30-31 (1990), reprinted in, 1990 U.S.C.C.A.N. 445,

10

452-454 (emphasis added). Similarly, the EEOC Com-

pliance Manual explains, “If the employer cannot articu-

lete a non-discriminatory reason for the employment ac-

tion, an inference that the employer is acting on the basis

of ‘myth, fear or stereotype’ may be drawn.” Equal

Employment Opportunity Conim’n, EEOC Compliance

Manual 902-44 (1995), reprinted in, EEOC Compl. Man.

(BNA) 920:0044 (1995).

Upon examining the evidence in this case, the Ninth

Circuit concluded that the Plaintiff had made a sufficient

showing to raise an issue of material fact, and thereby

avoid summary judgment, on the question of whether the

employer regarded him as disabled. The Court failed, how-

ever, as dictated by Celotex, to require evidence on an

essential element of Plaintiff's claim—i.e., evidence tying

Lucky’s actions to a perception of impairment. Specifi-

cally, the Court observed that Lucky’s managers met

twice with Plaintiff to discuss his abberational behavior;

that Lucky’s District Manager had, at one of those meet-

ings, inquired of Plaintiff as to whether he was having any

“problems”; that Lucky’s Managers strongly encouraged

Plaintiff to seek counseling through Lucky’s EAP; and that

Lucky received doctors’ reports diagnosing Plaintiff with

stress, depression, and anxiety. This evidence, the Court

concluded, was sufficient to permit a reasonable jury to

conclude that Lucky “regarded Plaintiff as suffering from

a disabling mental condition that substantially limited his

ability to work.” (Pet. App. at A8.)

The Ninth Circuit gave no rationale for its conclusion.

What is clear, however, is that the Ninth Circuit com-

pletely overlooked a key part of the analysis, i.e., why

Lucky took the actions of which Plaintiff complains. As

the Third Circuit Court of Appeals has recently held, “the

fact that an employer is aware of an employee’s impair-

ment is insufficient to demonstrate either that the employer

regarded the employee as disabled or that the perception

caused the adverse employment action.” Kelly v. Drexel

11

University, 94 F.3d 102, 109 (3d Cir. 1996). Accord,

Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311

(8th Cir. 1996) (upholding summary judgment for em-

ployer where employee failed to show that employer, who

had knowledge of employee’s impairment, “perceived or

treated him as having a substantially limiting impairment” ).

Lucky took three actions in this case the Plaintiff might

argue imposed a limitation on him: it gave him the op-

tion between being suspended pending an investigation

of the charges against him, or taking a leave of absence

and going for EAP counseling; it terminated him follow-

ing an extended leave of absence; and, it did not rehire

him for a store manager position, when none were avail-

able. Lucky, however, offered legitimate non-discrimina-

tory reasons for each of these actions. The Ninth Cir-

cuit apparently did not consider Lucky’s reasons or re-

quire any evidence that Lucky’s actions resulted from a

perception that Plaintiff had a disability. In so doing, the

Court either misapplied or misinterpreted, in a manner

inconsistent with this Court’s ruling in Arline, as well as

the legislative history and EEOC interpretation, the pro-

vision of the ADA protecting individuals regarded as dis-

abled from discrimination.

Il. THE NINTH CIRCUIT'S DECISION TO CONSTRUE

AN EMPLOYER’S EFFORTS TO ASSIST AN EM-

PLOYEE, WHOSE BEHAVIOR WARRANTS DISCI-

PLINE BUT ALSO SUGGESTS THE POSSIBLE

EXISTANCE OF AN UNDERLYING PERSONAL

PROBLEM, AS EVIDENCE THAT THE EMPLOYER

REGARDS THE EMPLOYEE AS DISABLED, IS

CONTRARY TO THE INTENT OF CONGRESS AND

THE RULING OF THIS COURT IN SCHOOL BD. OF

NASSAU COUNTY V. ARLINE

In passing the ADA, as with the Rehabilitation Act

before it, Congress sought to create equal employment

opportunities for individuals with disabilities, and to

eliminate the handicapping effects of society’s accumu-

12

lated myths and fears relating to disability and disease.

H.R. Rep. No. 101-485, 10st Cong., 2nd Sess., pt. 2,

at 53 (1990), reprinted in, 1990 U.S.C.C.A.N 303, 335;

H.R. Rep. No. 101-485, 101st Cong., 2nd Sess, pt. 3, at

22 (1990); S. Rep. No. 101-116, 10ist Cong., Ist Sess.

24 (1989). Congress hoped and expected that passage

of the ADA would result in greater inclusion of disabled

individuals in the workplace. Jd. Toward that end, Con-

gress imposed affirmative requirement on employers that

go beyond mere equal treatment. Namely, Congress in-

corporated into the ADA a requirement that employers

provide reasonable accommodation to individuals with

disabilities. 42 U.S.C. § 12112(b)(5)(A). In so doing,

Congress expressed a policy that employers have a role

in helping create opportunities to enable individuals with

disabilities to work. Benign neglect would no longer be

acceptable. Indeed, it would be unlawful.

Cognizant that ignorance and fear about disabilities—

real or imagined—also leads to discrimination, Congress

included within the definition of disability individuals

regarded as disabled. 42 U.S.C. 12102(2); H.R. Rep.

No. 101-485, 101st Cong., 2nd Sess., pt. 2, at 53 (1990),

reprinted in, 1990 U.S.C.C.A.N. 303, 335; H.R. Rep.

No. 101-485, 101st Cong., 2nd Sess., pt. 3, at 29-30

(1990), reprinted in, 1990 U.S.C.C.A.N. 445, 452-453;

S. Rep. No. 101-116, 101st Cong., Ist Sess. 23-24 (1989).

In so doing, Congress explicitly adopted the rationale set

out in Arline.

The case at bar presents circumstances totally unlike

those described in the various sources, including Arline,

that explain the purpose and meaning of the “regarded

as provision.” As discussed in detail in the previous

section, the provision was aimed at eliminating the ill

effects of ignorance, fear, stereotyping, and the like, re-

lating to disabilities that result in lost employment oppor-

tunities for individuals. In contrast, the employer in the

instant case took an enlightened, sensitive, and affirma-

13

tive approach—just what the ADA seeks—to addressing

an employee’s behavior problem. Before suspending

Plaintiff, Lucky first gave him the benefit of the doubt

by transferring him to another store for a fresh start.

Then, when a new rash of complaints were registered,

Lucky offered the Plaintiff a chance to obtain counseling

from the company EAP in lieu of being suspended.

Lucky permitted Plaintiff to use over six months of leave

before it fired him, and even offered to rehire Plaintiff,

when Plaintiff subsequently reapplied.

Lucky was not acting on an assumption or stereotype

relating to disability, but, as the undisputed record evi-

dence reflects, on dozens of employee complaints about

Plaintiff's disruptive, improper, and sometimes violent be-

havior. Lucky was not acting to limit Plaintiffs oppor-

tunities for work when it addressed the complaints with

Plaintiff and later offered to rehire him, but rather to

preserve them. When Lucky fired Plaintiff, it was only

because Plaintiff himself indicated he could not return

to work. In a case presenting facts similar to these, one

district court granted summary judgment to the em-

ployer and observed,

This suit flies in the face of the policy concerns

underlying the ADA because it encourages employers

to dehumanize their relationship with their employees

for fear that showing concern for and recognizing

their employees’ emotional problems would land them

in court facing a discrimination claim based upon a

perceived mental disability.

Johnson v. Boardman Petroleum Inc., 923 F. Supp. 1563,

1568 (S.D.Ga. 1996).

The clear message the Ninth Circuit’s decision sends

to employers faced with the circumstances presented here

is: do not show concern, do not try to help, and do not

give the employee a chance to obtain any assistance he

or she might need, lest you might be deemed to have

14

regarded the employee as disabled; instead, simply im-

pose discipline. This result is contrary to the intent of

Congress in passing the ADA and the spirit of the Act.

Ill. THE NINTH CIRCUIT'S RULING CREATES A

STRONG DISINCENTIVE FOR EMPLOYERS TO

ATTEMPT TO ASSIST, THROUGH REFERRAL TO

EAPS OR OTHERWISE, EMPLOYEES DEMON-

STRATING SIGNS OF PERSONAL PROBLEMS,

THEREBY DIMINISHING VALUABLE OPPOR-

TUNITIES FOR SUCH EMPLOYEES TO GET HELP

When an employee commits misconduct on the job,

the employer must decide how to respond. The employ-

er’s options include taking no action, addressing the rea-

sons for the misconduct and offering assistance, or simply

imposing discipline, up to and including termination. If

the employer takes no action, the problem may fester

and grow, particularly where, as here, the employee's

conduct negatively effects others. If the employer im-

poses discipline without addressing the underlying causes

of the misconduct, the employer may face the same prob-

lem again, and may eventually have to discharge an em-

ployee who could have been turned around had the em-

ployee received timely assistance. In such instances, both

parties in the employment relationship suffer: the em-

ployee loses a job and a chance to rehabilitate, and the

employer loses a once valued employee.

Many employers offer, as a benefit of employment, ac:

cess to a company-paid internal or external Employee

Assistance Program (EAP). EAPs “provid[e] counseling

and training to assist employees in the identification and

resolution of personal problems, which may include re-

ferrals to specialists for treatment.” Directory of Em-

ployee Assistance Program Vendors, Business Insurance,

June 26, 1995, at 12-13. A 1993 survey indicates that

roughly 87% of employers offer EAPs for their em-

ployees. Mental and Physical Health Programs Prolif-

15

erate, HR Focus, May 1995, at 12. EAPs provide em-

ployees assistance with a variety of personal problems,

including family or marital problems, grief and loss,

stress management, workplace concerns, workplace and

domestic violence, mental health, legal problems, child

or elder care concerns, and substance abuse, according

to industry surveys. EAPs Broaden Their Horizons, HR

Focus, July 1995, at 6; Bernice Caldwell, EPAs: Survey

Identifies Uses, Employee Benefit Plan Review, Decem-

ber 1994, at 36; Sharon A. Haskins and Brian H. Kleiner,

Employee Assistance Programs Take New Directions, HR

Focus, January 1994, at 16; Intervention at Work, Work-

ing Woman, February 1995, at 56.

Among the benefits of EAPs is that they “provide a

user-friendly, barrier-free, entry point to behavioral health

services.” Changed Workplace Expands Role of EAPs,

Employee Benefit Plan Review, December 1994, at 38.

As such, they provide help to those who might not other-

wise receive it.

Given these alternatives, it makes sound business sense

for an employer faced with employee misconduct, particu-

larly that which is out of character for an employee, to

consider the possibility that such conduct is being caused

by a personal problem and attempt to help the employee

obtain appropriate assistance to address the problem.

EAPs are ideally suited for this very purpose.

Should the Ninth Circuit’s ruling stand, many employ-

ers will likely cease referring employees to EAPs alto-

gether, recognizing that the mere act of making such a

referral may subject them to ADA liability. A valuable

resource will thereby be lost to their employees.

The magnitude of that loss may never be known with

certainty. But what is clear is that many people who

would have been helped, will not be. Employees in need

of grief management may not get it. Whereas the Plain-

tiff in this case obtained a diagnosis and treatment for his

16

problems through the EAP, those in his wake may not

do so. Women who suffer from domestic violence may

not receive the counseling and referrals that may save

their lives. Everything that EAPs offer employees—from

improved well-being, to an opportunity to save a job, to

a new shot at life—is placed in jeopardy by the Ninth

Circuit’s ruling.

And, it is not only EAPs that are jeopardized. Under

the Ninth Circuit’s ruling, it appears that any employer

inquiry into the reason for an employee’s abberational

behavior or inappropriate conduct, or any effort by the

employer to direct the employee toward obtaining assist-

ance in connection with whatever might be causing the

behavior or conduct, may suffice to establish that the

employer regards the employee as disabled. Accordingly,

some employers may cease efforts to help employees alto-

gether. Such a result is antithetical to the spirit and pur-

pose of the ADA and totally unnecessary.

CONCLUSION

For the foregoing reasons, the amicus curiae EEAC

respectfully requests that the Court grant certiorari in

this case.

Respectfully submitted,

ANN ELIZABETH REESMAN *

ROBERT E. WILLIAMS

MARY CHLOPECKI

MCGUINESS & WILLIAMS

1015 15th Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

December 5, 1996 * Counsel of Record