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Testing the Scope of ADA: What do the Justices Face in 1999

Heather Roberts Fox
APA Science Directorate

Plaintiff in Test-Anxiety Case May Appeal to the Supreme Court

Attorneys for plaintiff-appellant Kevin M. McGuinness, a former University of New Mexico medical student, announced that they are planning a U.S. Supreme Court appeal after a federal appellate court rejected his claim that the university should recognize his test anxiety as a disability protected under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973. Employment and educational test administrators have been particularly concerned that the number of text-anxiety claims under ADA has risen, and were pleased that the appellate court upheld the position of the university and the district court that an impairment limited to specific stressful situations is not a disability.

When Mr. McGuinness entered the University of New Mexico Medical School in 1992, he had a bachelor of science degree in chemistry and biology, a degree in physiological psychology, and a doctorate in psychology. Mr. McGuinness informed his professors that he had an "anxiety disorder" that manifests itself when he takes chemistry and mathematics tests. However, he also indicated he did not need any test-taking accommodations because he had acquired study habits in both graduate and undergraduate school that allowed him to overcome his difficulties. During his first year in the medical school program, Mr. McGuinness received a grade of "marginal" in two courses. According to the medical school's grading policy, students who receive "marginal" grades in more than 15% of their first-year courses must repeat the first year or leave the program. He was offered but refused the opportunity to take makeup exams in biochemistry, and after three makeup tests in the cardiovascular pulmonary physiology, he still did not obtain a "satisfactory" grade. Mr. McGuinness left the university and filed suit against the University of New Mexico Medical School.

In his complaint to the federal district court, Mr. McGuinness attempted to assert a claim under the ADA but failed to distinguish between Title I and Title II. Title I proscribes discrimination against employees or prospective employees because of their disabilities, while Title II bars public entities from discrimination on the basis of disability in the provision of programs and benefits. The district court granted summary judgment for the medical school on the ground that Mr. McGuinness was not disabled within the meaning of the ADA.

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ("Tenth Circuit") affirmed the district court's grant of summary judgment. They agreed that the district court correctly held that such a disorder, limited to certain academic subjects, does not constitute a disability under the ADA. On appeal, the judges treated the Title I and Title II claims separately, even though they did not appear distinguished in the complaint to the district court, and found that both claims failed because he did not show that he has a disability within the meaning of the ADA. The term "disability" means "a physical or mental impairment that substantially limits one or more of the major life activities" of the individual. "For the purposes of the ADA, inability to pursue one career, such as medicine, does not constitute a severe impact on an individual's life," Judge Paul J. Kelly, Jr., wrote for the panel. Judge Kelly also noted that even if Mr. McGuinness had shown a disability under the ADA, he could not demand an unreasonable accommodation from the medical school. "Requiring the University of New Mexico to advance Mr. McGuinness to the next level of the medical school program would represent a substantial, rather than a reasonable accommodation," he continued.

The Tenth Circuit court also reviewed the plaintiff-appellant's cause of action under the Rehabilitation Act of 1973, and concluded that it contained the same flaw as his ADA claims because the statute defines "disability" in the same way as ADA.

In December, the office of Mr. McGuinness's lawyer, Dennis W. Montoya, issued a statement announcing their intention to appeal the decision to the Supreme Court.

U.S. Supreme Court Agrees to Hear Arguments on Scope of ADA

Justices of the Supreme Court recently agreed to decide whether the Americans with Disabilities Act applies to workers whose condition may be corrected by medicine or other measures. At issue is whether the determination that a person has a disability under the law must be made without regard to mitigating measures, such as medicines or glasses that can correct the problem. The ADA defines "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities" of the individual. The federal Circuit courts have rendered conflicting opinions about whether mitigating measures should factor into an evaluation of whether the disability is covered under the law.

The Supreme Court said it will hear arguments on three cases in April, and will decide the reach of the ADA by the end of June. The first case involved two nearsighted pilots for United Air Lines. A federal judge and a U.S. appeals court ruled that the two pilots were not protected by the law because their nearsighted vision was fully correctable when they use glasses or contact lenses (see Toner & Arnold, November 1998 PTC newsletter for a complete discussion of the Tenth Circuit court ruling).

The second case involved a United Parcel Service mechanic suffering from high blood pressure. His job required him to drive a commercial motor vehicle, but the U.S. Department of Transportation prohibits individuals from driving commercial vehicles if blood pressure readings are higher than 160/90. He filed a lawsuit after he was fired, but a federal appeals court ruled that the high blood pressure was not a disability under the law because it is correctable if medication is administered.

The third case involved a truck driver for Albertson's Inc., who did not meet the U.S. Transportation Department requirements of 20_40 vision in each eye, with correctable lenses. Even with lens, the plaintiff did not meet the minimum vision requirements. He also filed a lawsuit after he was fired, and a federal appeals court ruled that he was disabled. It rejected the company's argument that it tried to accommodate his disability by offering him another job, which he declined.

Newly Released Reports of Interest for I-O Practitioners

Listed below are three important government reports that were released within the past few months that may be of particular interest to I-O psychologists.

U.S. Commission on Civil Rights, Helping Employers Comply With the ADA: An Assessment of How the United States Equal Employment Opportunity Commission is Enforcing Title I of the Americans with Disabilities Act, September, 1998, 312 pp. No. 906-00013-0.

This report focuses specifically on the efforts of the U.S. Equal Employment Opportunity Commission (EEOC) to enforce Title I of the Americans with Disabilities Act, which prohibits discrimination based on disability in employment. The report evaluates and analyzes EEOC's regulations and policies clarifying the language of the statute, processing of charges of discrimination based on disability; litigation activities under Title I of the Americans with Disabilities Act; and outreach, education, and technical assistance efforts relating to the act.

U.S. Commission on Civil Rights, Helping State and Local Governments Comply with the ADA: An Assessment of How the United States Department of Justice is Enforcing Title II, Subpart A, of the Americans with Disabilities Act, September 1998, 167 pp. No. 907-00590-1.

This report focuses specifically on the efforts of the U.S. Department of Justice (DOJ) to enforce Title II, subtitle A, of the Americans with Disabilities Act, which prohibits discrimination based on disability by public entities such as state and local governments. This report evaluates DOJ's regulations and policies clarifying the language of the statute; processing of complaints of discrimination based on disability; litigation; and outreach, education, and technical assistance efforts relating to the act. The report also assesses DOJ's effectiveness in its role as coordinator of the Americans with Disabilities Act enforcement efforts of seven other designated Federal agencies.

Commission publications may be obtained from:

U.S. Commission on Civil Rights
624 Ninth Street NW
Washington, DC 20425
Telephone: (202) 376-8128
http://www.usccr.gov/catalog.html

Presidential Task Force on Employment of Adults with Disabilities, Re-charting the Course: The First Report from the Presidential Task Force on Employment of Adults with Disabilities (Washington, DC: Presidential Task Force on Employment of Adults with Disabilities, November 1998).

As mandated by Executive Order 13078, the Task Force on Employment of Adults with Disabilities has been charged to examine programs and policies related to employment of adults with disabilities, to "determine what changes, modifications and innovations may be necessary to remove barriers to work faced by adults with disabilities" and to recommend options for such changes. The ultimate mission of the Task Force is to create a coordinated and aggressive national policy to bring adults with disabilities into gainful employment at a rate that is as close as possible to that of the general adult population. This first report tracks the progress of the Task Force as it develops recommendations for the President.

Copies of this report are available from:

Presidential Task Force on Employment
of Adults with Disabilities
200 Constitution Avenue, NW, Room S2312
Washington, DC 20210
(202) 219-6081
http://www.dol.gov


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