Recent and Pending Cases Before the United States Supreme Court Webcast. May 14, 2003 Presenter: Peter Blanck Aaron: Good afternoon everybody and welcome to the webcast titled recent and pending cases before the United States Supreme Court. My name is Aaron McCullough, and I'm with the Disability Law Resource Project, your host for today's event. I'll be moderating the webcast and voicing your questions to our presenter and shortly I'll introduce our distinguished presenter, professor Peter Blanck. I want to address a few technical issues before we get started however. In order to submit a question you click the submit question button at the bottom of your RealOne player screen or address it to us at webcast at ILRU.org and again that E-mail address is webcast at ILRU.org. Please send those now or at any point during the presentation. I will pose your question to Professor Blanck as he pauses for questions. Lastly, if anyone has any technical difficulties in accessing the webcast today, please give us a call at (713)-520-0232. Again, that number is (713)-520- 0232. Okay, we're ready to get into the meat of today's webcast and again the topic is recent and pending cases before the United States Supreme Court. Professor Blanck will discuss the legal and policy implications of recent and pending cases before the United States Supreme Court with particular focus on three cases which have been detailed in the material that you can download or access on line. And to go ahead and introduce your presenter whose advised me that he will also have a co-presenter, professor Peter Blanck is a Charles M. and Marion Kierscht professor of law and professor of psychology and public health at the University of Iowa. He received his Ph.D. from Harvard and law degree from Stanford. He is a director of the law, health policy and disability center at Iowa College of Law. The center is a leader in law technology, education and research which focuses on improving the qualities of life for persons with disabilities. The center is concentrated its efforts on public policy and its impact on persons with disabilities with an emphasis on employment, technology, self-determination and self-sufficiency. Professor Blanck is the author of over 100 articles and numerous books on the ADA and he's received grants that study disability law and policy and has represented clients before the United States Supreme Court as well as testifying before Congress. He's a former member of the president's committee on the employment of people with disabilities as well as past commissioner of the American Bar Association commission on mental and physical disability law and chair of the American psychological association. He strikes me as somebody who is very humble and I want to give him more -- I could read again into his qualifications for the entire length of this webcast but I want to let him have a chance to introduce his topics and get into the meat of the material. Professor Blanck, are you there? Peter: Yes, Aaron, thank you for that gracious introduction, generous introduction. I'm sitting here with one of my colleagues who is the associate director of our research center, James Schmeling. We both say hello from Iowa City. Aaron: We're happy to have you both here and in hopes that this process goes smoothly because again if you guys have noticed on the calendar, professor Blanck is going to come back and present in the future on some other topics. So we're hoping that this goes smoothly and please help us a long and send us some questions. I guess from this point why don't we just let you proceed into the material. Peter: That will be great and thank you again. It's a pleasure to be a part of this important series. We're at a very interesting time now at the jurisprudence of the United States Supreme Court. Oh, by the way, I'm sorry -- I should have said I'm happy to take questions, at any time, Aaron and to make this as interactive as possible and as responsive to the clientele that are listening to this webcast. I was saying we're at a very interesting time, an important time, and perhaps one of the major legacies of the RENQUIST Supreme Court and in particular that is limiting what it sees in appropriate ways the power of Congress to regulate in areas where the court sees that perhaps states should be otherwise regulating and we've seen that, fore, ample, under the Americans with Disabilities Act in a prior case which I'm sure your viewers have heard of and you've talked about in prior talks, that would be the Garrett case, for example, where the United States Supreme Court said that state employees didn't necessarily have a cause of action, did not have a cause of action under ADA tight 28 for monetary damages in federal court. At the same time, we've seen the RENQUIST court take a very narrow view in provision of the ADA. We've seen that in Sutton which you've talked about prior and prior in this series about the extent to which mitigating measures must be taken into account in determining whether or not somebody is a person with a disability for purposes of the ADA. We've seen that in cases like Toyota where a person is a person with a disability who substantially limited in a major life activity only when that limitation affects a whole range of common activities, daily life activities and not necessarily just a particular work task. So we came to this term in light of some of those decisions, and I'm a professor as Aaron had said of law. I also work on the substantive side as well, and I'm fortunate to work with colleagues in a law school at a center for public policy and disability, which I think is the only one of its kind in the country where disability law and policy are analyzed in the context of legal and social policy issues, and that is what you referred to as the law health policy and disability center. Last term, before the United States Supreme Court I was privileged to represent the national council of disability in their amicus filing before the United States Supreme Court in a case called Chevron vs. Echazabal. Many of you probably have heard about that case and that will be one I will talk about today. The second case I'd like to talk about which was recently decided by the United States Supreme Court is again a case in which I've written an article and had discussions with counsel in the case and that was the case of Clackamas vs. Wells, which involved the definition of who was an employee for purposes of the ADA. And last, I'd like to touch upon today a case which is now being decided by the United States Supreme Court which comes out of the 9th circuit, called Hernandez vs. Hughes miss will system company. Which is a very important case in the line of cases which will determine the scope and reach of the Americans with Disabilities Act. So let's start with Chevron vs. Echazabal and Aaron, as I've said, if there are particularly relevant questions at any time, I'll be glad to stop and clarify and discuss further anything I'm discussing at the time. Aaron: All right, and I'll bring those to you when they proceed in. Peter: Thank you. Chevron vs. Echazabal in my view was a very important case. It came down last term before the United States Supreme Court. Some have called it the disabilities term because there were so many ADA cases coming that term and prior terms. And it was a case which many lawyers or at least on the technical side might consider it a purely administrative law type case. It was actually a case at heart about whether or not certain regulations that were promulgated by an enforcement agency, in this case it was the Equal Employment Opportunity Commission, which is the agency that's responsible for overseeing compliance with the ADA, Title I, in fact, that is the employment provisions. The question was whether or not the EEOC had essentially properly interpreted the ADA and in drafting its compliance regulations. Now, Mario Echazabal was the plaintiff originally in the case. This case originated out of the 9th circuit out of California from the 9th circuit United States Court of Appeals. Mario had worked for Chevron's oil refinery for 20 years or more. He had been a pipefitter and a laborer and a maintenance contractor, and he primarily worked in what was called their Coker unit. After a period of time, around 1992, Mario applied to work directly for Chevron's refinery, as a pipefitter and mechanic, a job which he had done for years and presumably was in fact qualified to do. He was not -- he did not receive that job, and he again applied in 95 for a position he had done also, which was a plant helper. Each time, which is very interesting here, Chevron determined that Mario was in fact qualified for the job, at least on the basis that he had done it in the past, and could perform its essential functions at least again based on his past work history. So what Chevron did as many companies do, which is of course quite appropriate in some circumstances, was to extend Mario a job offer contingent upon him passing a physical examination. And as you and the listeners know this is quite appropriate under the Americans with Disabilities Act. Employers can make hires conditional on passing a physical examination. So for example, a fire person, man or woman, may receive a conditional hire to do the job and that could be contingent upon them passing a physical that they can effectively carry out of a burning building, say, a 40 or 50 pound person which is in effect the essential function of the job if in fact they're applying for on firefighter's position. So Mario Echazabal went to have his examination, and after this series of medical examinations, in fact, Chevron's physicians concluded that Mario should not be exposed to the particular toxins and solvents in the refinery and they withdrew their hire to offer him. They did this because they believed that he had a liver condition that would be worsened, that could be life threatening if in fact he worked in this position. Now, Chevron's decision was based on its medical assessment, and in fact in the mid 1990's, 1993 around that time, Mario was in fact diagnosed as having chronic hepatitis C. which was asymptomatic and which is a very serious liver condition. So the issue became whether or not Chevron could properly deny Mario Echazabal a job based on what its physician's believed would be a threat to his health in the workplace. It was not contended by the way that he would harm others or couldn't do the job. Now a little background is required at this point. Under the ADA, as the listeners probably know, an individual who brings a lawsuit with the EEOC must -- and eventually in federal court -- must prove his or her what's called prima facie case. That's the person has a disability, they're qualified to do if job. There was an adverse employment action and so forth. And in response to this offer of proof, there are also what's called affirmative defenses that an entity that sued like Chevron can raise. For example, in an accommodation case where somebody wants a workplace accommodation, one defense by an employer is that it would be ridiculously costly or an undue burden. Another important defense is what's called the direct threat defense in the ADA. And the direct threat according to the ADA includes a requirement that an individual not pose a direct threat to the health or safety of others in the workplace. In other words, even if the person is qualified and is a person with disability, the employer would not be obligated to hire that person, i.e., not violate the ADA if they didn't hire that person if in fact the person would pose a risk to the health or safety of other individuals in the workplace. Now, that is the language in the statute itself. Here is where the administrative law issue kind of comes into play. Subsequent to passage of the ADA and its implementation in 1992, Title I, the EEOC as the authorizing agency issued regulations and interpreted guidance of Title I of the ADA. And in that guidance the EEOC interpreted the direct threat defense to include not only a threat of risk to the health or safety of other individuals in the workplace as the statute specifically said, but also an individual shall not pose a direct threat to the health or safety of that individual. So that person him or herself in the workplace. So here what we had was an extension by the EEOC that many of us thought -- at least it wasn't in the statute, it wasn't clear from the legislative history was made so nat direct threat defense would be a.m.able to people who both were threats to others as well as threats to self. Now, in the facts of this case, I think it was fair to say that based on his prior history, in fact, Chevron had offered the job conditioned upon him passing a physical examination, that Mario Echazabal was a qualified individual. Now, the court did not reach that legal determination and one of the issues on remand may have to address that, but presumably, because they hired him contingent on passing a physical examination, reasonably you would think that he was a qualified individual. Reasonably also, you would think -- although again this could be disputed on remand. It wasn't litigated fully at this time because it was not an issue taken up by the United States Supreme Court, but there could be an issue about whether or not he's a person with a disability for purposes of the ADA and the logic of that would flow from cases like Toyota and Sutton to the extent that Mario is asymptomatic. He may not be substantially limited in a major life activity because he can't do this particular job. That would be the logic of Toyota, but that was not litigated at this point. So the Supreme Court basically had to decide whether or not the EEOC interpretation of the direct threat defense, i.e., the extension to threat to self, was legitimate, was reasonable, was not capricious and did not exceed the discretion afforded to the agency which is the typical Chevron defense. It's kind of ironic that it's the same company, not to be confused with this case, but in administrative law Chevron case, which is a different case, Chevron defense means that generally an agency will be afforded reasonable discretion interpreting the statute. So what the Supreme Court did was basically decide that in this circumstance, it was not unreasonable for the EEOC to interpret the language of the ADA to include in the direct threat defense, threat to self. In other words, that it was a reasonable -- the court's view was that this was a reasonable interpretation which balanced the important goals and admittedly so of workplace safety, i.e., not putting people in dangerous situations that would harm themselves or others, and at the same time, not necessarily indicative of workplace paternalism. Now, the threat to self issue was somewhat debated in the legislative history and before the law was passed and that was because the drafters did not want it to be seen as an excuse by employers not to hire people for their own good in quotes. For example, the person with HIV disease in particular, the drafters realized that it would be inappropriate for an employer to say, well, you can do the job, person with HIV, but for your own sake, there is a lot of colds and toxins in this law firm environment. You might get sick here. So it's not a safe environment for you and we're going to make that determination. So the issue of paternalism, the issue of the extent to which the employee in consultation with his or her physician should make this decision, as opposed to the employer solely, was an important issue before the court. And of course was an important issue that would be affected by how the court decided this case. So the court decided that when balancing the important concerns of workplace safety, which is a legitimate concern under the ADA, I would add, there is nothing in the ADA which would suggest that employers are required to lessen legitimate and specific workplace standards or rules that affect safety or anything else, productivity or what have you. In other words, employers are entitled to have a drug free workplace, violence free workplace. Employees are expected to do the jobs, their essential functions. But the issue in this case was given that Mario was a qualified individual, purportedly, why shouldn't he make this determination in consultation with his physician that he could or could not do this job, assuming he was otherwise qualified. So what happened was the court decided that the EEOC interpretation was legitimate. It upheld that, and it remanded the case, the United States Court of Appeals for the 9th circuit basically to determine whether or not the -- that Chevron had in fact made an appropriate individualized determination that Mario was a threat to himself. In other words, the court basically said the rule can be direct threat can include threat to self and others, now 9th circuit, go back and analyze that specific rule in the context of the Echazabal case. A couple of final points on the Echazabal case to note which the court did not rule on, number one, one concern by those of us involved in this case was that the court did not and in fact it did not in this case make as an essential element of the plaintiff's case that he or she prove that he is not a direct threat to him or herself. Now, it is the case, of course, as part of the plaintiff's case that he or she must prove he's a person with a disability and a qualified individual. We were concerned that the determination and the proof of a qualified individual not necessarily include a determination that the person could do the job safely, although admittedly, there is some circlearity there. To do the job of a school bus driver must mean you have the right license, you have all the qualifications and so forth, but does it also mean if you have diabetes that you have to show that you have a perfect track record and that you haven't had any accidents on the basis of some sort of reaction to diabetes or any other disability for that point. But be that as it may, the court did not decide that issue. The court did not decide nor suggest that as part of the plaintiff's prima facie case the plaintiff was required to show that he or she could do the job safely. Of course there are elements of that implicit in the qualification standard, but the burden is to dispute that is really still on the employer as part of the affirmative defense. So Aaron, that's perhaps longer than I expected, an overview of the first case and perhaps would be a good time to pause here, ask you if you have any questions or comments or James, and take a moment to see if there are any relevant questions. Aaron: We do have one question. It's sort of a comment, but it's a question also from a listener. And the meat of it is this: It seems to me that the company -- in fact everyone involved in this was taking that paternalistic view. This person had a critical health issue, but can't you say that anybody who does a dangerous job has a critical health issue? For example, if they're a construction site or mining dynamite handler, they're dynamite disabled, are they not? This seems to be a silly position to be taking that this person can't -- mindful of the risks that they now -- that they now may be taking with regards to the health of their liver, isn't this their decision alone? Peter: You know, that's a very good question and something we grappled with quite a lot in preparing the brief for the United States Supreme Court. It is the case, at least it was our view, as the listener says that encountering risk is an element of everything we do. And the question is, as the listener again I think quite interestingly points out, who is going to decide whether or not we want to accept those risks? Assuming the person is competent, of course. How do we decide whether we want to work within a particular environment or not, and in fact we make those determinations every day. Now, of course, your listener is also haver astute in reaching into another underlying issue and that is really the big question on what constitutes a risk to self? For example, if somebody has a genetic predisposition for lower back injury, which in fact there are I believe tests that can be shown or purportedly tests shown for lower back injury or breast cancer or colon cancer or whatever, should an employer because of a particular work environment prevent that person from working in that environment? That might be a little extreme and there are laws sprouting up around the country under the HIPAA laws that genetic discrimination is prohibited. The point is as the listener says at what point should an employer be allowed to say this job is not safe for you and therefore for your own good I want to keep you out of the workplace? That's very much an individual determination at least we argued on a case-by-case basis in consultation of the individual with the disability and his or her physician. That's basically what was our position because to do otherwise would risk the kind of workplace paternalism that your listener quite accurately points out. I would also suggest that there are many millions of people, probably, in work positions every day as your listener says who are in, quote, dangerous positions where something can go wrong and they're allowed because perhaps their disability is less stigmatized. For example, people who are alcoholics, people who have other sorts of drug dependent conditions. People with mental disabilities -- I mean, the question is -- the issue becomes where do you draw the line. And a lot of times that line drawing is based on stigma and misconceptions about the person's disability rather than on whether the person can actually do the job. So that's a very good question, Aaron. Do you have others? Aaron: Not at this time. Peter: Okay, so I guess we can proceed -- James, would you add anything else? James: No, I think the only thing -- the only thing I think is important to adhere is that there is a variety of interest in where those standards for workplace safety are going to be decided and how they're going to make determinations given workers' compensation claims and OSHA and other requirement safety as well and those are individualized inquiring that needs to be made. And they will be deciding whether he's a qualified individual and perhaps at that point he can make determinations he can safely do the job given those workplace safety requirements. Peter: That's a very good point, Aaron, also because one of the things we've seen in the evolution of the ADA is tension where the law seems to conflict with other laws. For example, here, OSHA, occupational safe and health ak, everybody wants a safe and healthy workplace. That's not an issue here. As a matter of fact, at oral argument that became clear that the justices were very concerned about protecting workers in the workplace. This is really not about that issue. This is about whether or not this individual could do this job in a safe way with the consultation of his positions. And I would add that the physicians' disagreed in this case. Chevron's physician said he could not do the job safely because the liver would hurt him and other physicians decisions were not as clear. Anything else, Aaron before we proceed? Aaron: No, I suspect there is just some lull in getting some of these things printed out and to me. But it's ironic that we do things in this electronic and modern fashion, but we still wait for them to get printed out before I read them to you. Peter: Do I have any questions, Aaron on the Echazabal case? Aaron: Again, not at this time. I'll tell you what, I'll go check, but -- Peter: I meant you individually. Aaron: Oh, you mean do I have? Well, no, actually, I would have to say that the last thing you said would have cleared up my concerns. I'm very interested in the second case that you have lined up, which if I'm correct has been recently decided the Wells vs. Clackamas case. Peter: Yes, that case if I may go into that now was decided the end of April, April 22nd. And it's another interesting case. It's a little technical from a technical legal point of view, but actually in my view, it will have strong implications for many, many thousands of persons with disabilities who may or may not work in small businesses around the country. Here is the overview of the Clackamas case. The Clackamas group is a gastroenterology group. And this is also out of the 9th circuit interestingly, and they were practicing on the west coast. They were in Oregon, I believe, and a woman named Debra Wells worked for them. And under the Americans with Disabilities Act, again, a very focused question, the act is very clear, at least we thought it was, that individuals that -- firms are covered by the ADA if they have 15 or more employees, and that they work for 20 weeks each required by the ADA. So, in other words, to be covered by the Americans with Disabilities Act, in other words, so that a plaintiff could sue under the ADA, a firm, that firm or covered entity has to have 15 or more employees. The question, which was an interesting one, in the Clackamas case was who is an employee? How do we define an employee for purposes of the ADA and also for Title VII more generally. As you and your listeners know the ADA is part of a larger fabric very Title VIIlaw, and many of its compliance provisions and many of its remedies are based on the civil rights act of 1991 which set out the framework for dealing with these sorts of issues. So the facts in this case, again, are very interesting because you can conceive of it as affecting small accounting firms, small physician groups, small law firms, small insurance companies, any sort of small business you can think of -- dry cleaner, whatever. The Clackamas group was incorporated as a PC. And as you know in the last couple of years, many companies have moved for tax reasons from partnerships to PC's to avoid a double taxation or to basically enhance their ability to have certain tax benefits. In the Clackamas physician group, they had roughly 15 people working there. So on its surface, because it was a PC, they had 15 employees of the corporation, which was the GI associate group. Interestingly, though, the question was whether or not three or four of those purported employees who were the physicians, i.e., the shareholders or the owners of the corporation, whether or not they should be counted as employees for purposes of figuring the 15 number coverage requirement under the ADA. And that was essentially the issue in the case. How do you determine whether or not somebody is a partner or owner, for example, or whether or not they are an employee and therefore counted in the magic 15 number? Now, the circuit courts were split on this issue. Some circuit courts concluded that regardless of whether or not these individuals were incorporated as a PC, and perhaps technically employees of the corporation, that in fact many times the physicians were acting in effect as partners. They were taking a draw. They were having partnership meetings. They really weren't a corporation in business form. The 9th circuit in the lower decision decided that, well, maybe these groups can have it both ways. If you're going to be a PC, and get the benefits -- the taxation benefits of that business entity, then your employees, including the physicians who work there, and why should you then be able to later claim your partners for purposes of anti discrimination law and therefore not covered under disability, gender, anti discrimination laws like the ADA? The Supreme Court here kind of split the baby again. Or at least it wasn't a particularly definitive decision in that the Supreme Court basically said what really counts is what these physicians are doing. In other words, a business operations test, a business reality test. In other words, even though - - the Supreme Court decided even though these physicians were working as a PC group, in other words, might on its face have the required number of employees, which was in fact consistent with the statute. Nevertheless, they might be shareholders or directors, and therefore, the court decided there needs to be a more factual determination of what that really means and sent it back to the 9th circuit. In fact, the United States Supreme Court here also adopted the EEOC guidance on this issue in saying that there are certain factors which should be considered in making this determination. And so the court did not read the law as literally as some of us would have liked. In other words, if you're incorporated by definition you have employees, and if you have more than 15 employees, then you're covered by the ADA. Well, that's not necessarily the case right now. It's an important case on a couple of levels. Number one, there was an opportunity I think here -- and I think Justice Ginsberg got it right, there was an opportunity here to have a plain reading of a statute which says if you have 15 or more employees, you're covered by the law. End of discussion. Now, what we're going to have from a lawyers point of view or a plaintiff's point of view, another threshold burden to deal with in bringing your ADA case. And that threshold burden will be a motion to dismiss which will be immediately filed by the lawyers which will say that this entity is not a covered entity. In other words, the case won't even have to get to a summary judgment phase which is more costly, and requires depositions and so forth, although you can have that in prior motions as well, but it's an immediate threshold issue, almost a juster distribution al issue which will say this case should be over because in fact it doesn't have the wreck wi sit number of employees. Now, of course, the empirical question, Aaron, will be how many firms are in this sort of situation? Well, there are hundreds of thousands of small firms in this situation, and in my view, you'll see a lot of firms on the cusp working hard with their corporate lawyers probably as we speak here and their business advisors to modify their rules of incorporation and their bylaws to basically enable to maintain the PC status while at the same time enabling them to be -- the owners being seen as partners operating this entity. I don't see this as a bad thing per se. Businesses should act smart and they should do what's best to maximize their profits. Of course, within the law and reasonable bounds and so forth, but what the court failed to do here was to provide a message to suggest that this should be a broad reach of this law and it shouldn't be limited, once again, on the basis of this very fact based inquiry which in fact many plaintiffs will not overcome. Number one, it will chill plaintiff's lawyers to again takes these sorts of cases because that's an immediate, very expensive threshold to face, and number two, it will involve a very factual inquiry. In addition to that, and I've written about this elsewhere, my hope is that the decision will not chill these small employers from considering, regardless of whether or not they're covered by the law, that they might want to make accommodations to otherwise qualified individuals with disabilities. So the Clackamas case in summary, in my view, could have been decided more simply. Now we have a more heavily factual based determination which some people may say is very good, and you can look at it on a case-by-case basis. My view is that it will chill to some extent the ability of qualified people with disabilities to maintain an action where it's appropriate. Nobody is suggesting there should be frivolous lawsuits or lawsuits which are not appropriate, but again, it will be a technical threshold issue which will affect literally thousands of individuals with disabilities and tens of thousands of small businesses. So that's my overview on Clackamas, Aaron and I'll be happy to take questions from you and the listeners at this point. James, would you add anything? James: Purely from a technical point of view, I'm interested in your evaluation of the seven factors that they're endorsing that you have to use to determine whether or not they are employees or directors. I think that that's a question that will help a lot of people make a determination at the beginning as to whether or not they should be filing a lawsuit or whether their entities are covered. Peter: And to answer that question -- that's a good one. Basically, the Supreme Court has adopted the EEOC's approach on this factual determination. And you can see it in the EEOC manual, but they're going to ask questions to determine whether or not somebody is a shareholder, director or an employee like can they fire this person? To what extent is this person a supervisor or is supervised by others? To what extent do they report to somebody else? To what extent do they share in the profits, the losses and the liabilities? How are the employment agreements written in the contracts and so forth. Once again, all very reasonable determinations, I just happen to think in the context of this -- what was supposed to be a broad civil rights law, it puts up strong barriers for individuals to pursue their rights. And I would have thought that the Supreme Court didn't have to go that route in this particular case. And it could be the case sometimes -- and again, I'm not anti business and I think where appropriate it perfectly makes sense, but it will be the case that people who -- firms that incorporate as PC's or whatever or LLC's or whatever, and enjoy particular tax advantages will not be covered by anti discrimination laws because some of their employees will be deemed partners. Aaron? Aaron: I'm going to disagree to a certain extent. It seems to me this is something -- I'm going to agree with you that my guess is there is going to be a number of business managers urging firms to quickly struggle and amend their articles of organization or incorporation. I just -- it seems to me somewhat less benign though just having -- you know, having regularly taken technical assistance calls or questions. It seems all too often people will structure businesses in less legitimate ways to fall underneath that number. Peter: What sort of examples have you seen in that regard? Aaron: Multiple businesses owned and controlled by the same set of people with various official business -- registered business entities running them, but they're being operated essentially as -- controlled by seining will individual or a family, and you could easily get caught up in a small town the 50 or 60 people who work for these four companies or what have you. Peter: With this specific intent to avoid these sorts of laws? Aaron: Well, that's the inference you would draw, and which seems -- this seems to be somewhat regular. I'm not saying that it's a daily question that we get, but you know, trying to reach the 15 minimum, trying to reach the 15 employees as a minimal standard is the question that comes up. And when you begin to make the inquiry, it seems fairly deliberate that small employers are aware of this, and when their business opportunities grow or expand, they do whatever they can to abort them from that responsibility. Peter: And do you feel that -- of course this is driven by the perception that it's costly for them to comply with such laws? Aaron: I'm going to agree that it's driven by probably a fear that it's much more expensive to comply to provide accommodations. I don't think it's an animus in the part of the business community against people with disabilities. I don't think they woke up and decided to be hostile to people with disabilities, but it's that fear of the cost. Peter: So it's perceived as another OSHA workplace rule, just not cost of doing business, not animus towards person with disabilities. James is shaking his head now. James: The only thing I see there is I spoke with my uncle this weekend during a family reunion and he tells me that in his small business, he uses a service which supplies him with all of the posters that he has to have up in his workplace. And that he has to keep up with this for every different program that's out there. It's a very minimal cost. It really surprised me. It costs about $60 a year for them to supply all the posters and keep him up to date. But his fear concerning the ADA is that there the is going to be an another set of regulations that he and his attorney our accountant would have to keep up with. However, the issue becomes how do I comply? Not concern about actually doing what's required of the law in substance, but in form. Peter: You know, Aaron, I have another question for you. I think I know the answer. It's interesting that you think that this will encourage also firms to hire temporary employees or to hire temp firms? I know many firms do that for secretarial or janitorial and so forth and those people would not necessarily be counted towards the magic number of 15. Have you seen that? Aaron: I haven't had that come up as an issue, but that seems to be a reality among these -- well, when we have -- we do have the break up of these large accounting and medical and legal firms, and we're seeing smaller, mid size firms pop up or divide out of some of these larger firms. And they're trending towards outsourcing services towards hiring temporary employees, and we do get more calls generally from temporary employees seeking to be accommodated. I, again, I would suspect that, too. I'm not harboring any more resentment against the business community than you are, but people who form PC's or professional Corp. races are fairly savvy, and if they can look to limit their exposure to additional regulatory control, then I think they will. Peter: Let me ask you a question, Aaron, I think I know the answer. Say a temp firm provides a temporary employee to a small firm, and that person happens to be a person with a disability who needs an accommodation. I think it would be the case, and correct me if I'm wrong, that the cost of that accommodation, assuming it's done appropriately and so forth, would be born by the temp firm, but they would then pass it on in their costs back to the client, you know, as part of what they have to do to get the business done; is that correct? Aaron: My guess is it's contractual. You know, I'm sure the larger temp agencies have dealt with that as an issue, but there are some small temp firms around that I'm not sure they've dealt with that in negotiating their contract with particular employers. Peter: So they couldn't contract away their requirements under the ADA, but certainly they could pass on that cost. Aaron: Surely. Peter: Okay, well that's a very interesting discussion on Clackamas. Do you think I'm over stating the impact of this case? Aaron: I really don't. I thought it was a bigger -- I thought it was a bigger case than most people did. I remember at the beginning of the term people -- (Inaudible) stood out and scared everybody, another case that was of course settled. I thought this case had a potential to do substantial impact because you do see -- you do see issues, you know, issues arising out of the need to reach 15 people to be covered. And of course our service area is largely rural. I mean we have six population centers in five states, more or less, but there is a lot of these small employers. So we do get calls from people and it's unfortunate when you start doing the count to them, and they realize they may or may not be covered and this is the only reason why. It's because there is two owners and 11 employees and they're never going to reach that 15. Peter: Okay, it's an interesting empirical question as well. One of the things I've been asking our researchers to look at here and maybe Aaron you know some of this data maybe the U.S. chamber of commerce might know. But in fact, how many firms and what types of firms are we talking about at this level? I wonder if there are manufacturing firms, I'm sure there are, other sorts of service firms, and whether it's unique to this more professional organization or not. Aaron: Again, I guess I would look at it jurisdiction by jurisdiction. You made the comment on this was creating a complicated factual inquiry so you're going to have to look at how the state organizes a professional corporation, what they require in articles of incorporation, and then how they actually act within that structure and so you've got a pretty deep inquiry, and you know, I don't know. I guess I don't agree with you. So I don't disagree with you at all on how complicated this is and that they could have made the decision in a much more easier fashion. Or one that wouldn't require so much factual inquiry. Peter: The Supreme Court of course took this case because there was a split in the circuits on this issue which interestingly the split of course was not an ADA issue. I think the other case was maybe age discrimination. Aaron: It was an ADA case. There you go. It shows its broad impact. We did get another question in on the Chevron case. If you'd be interested in backtracking a little? Peter: Yes, of course. We're listener friendly, this station? Aaron: Well, yeah. But everybody E-mail your questions in, don't hesitate. Let's see, I'm trying to figure out who this is from. The direct threat affirmative defense is triggered by an employee's inability to safely perform essential functions of the job. And in this case, Chevron used the direct defense although it was not his performance that would cause any danger, it was an environmental factor. Nothing he did caused the direct threat to him, so Chevron should not have had that defense available, should they have had that defense available? Peter: Well, Aaron, do you want to take a shot of that by way of review or do you want me to go? Aaron: You go ahead. It's your show. Peter: If I understood the question, I'm not sure that the defense includes that sort of analysis, in other words, where the threat comes from. Is that what I understood it to be? Aaron: Yes. Peter: There is an element -- maybe I'll go I field and if I didn't tans question, please steer me back. Another aspect very this, of course, is the come back to an affirmative defense of direct threat by the employer is the employee saying, well, you could accommodate me. I could have been accommodated, and for example, again, I'm taking a rather simple illustration, but put one of these face masks over me or giving me different break times or something, so that in fact the exposure to my liver would be less limited and I could tolerate it more easily. In other words, there is a possibility hereof another factual determination in Echazabal in whether or not they could have effectively accommodated him so that the threat would not reach the level of threat to self. And by the way, your listener's question is very good. The threat to self and threat to others is not just any old sort of hypothesized threat. It's got to be substantial, immediate, it has to be proven with specificity to show that in fact it's a real imminent threat. That is not capable of being lessened as a result of an accommodation. With regard to the question in particular, if I understood it correctly, I don't think for purposes of the analysis here we would discuss who caused the threat. I mean, assuming the job description was legitimate and this person had to work in that plant and these toxins were a natural byproduct of this plant which of course may or may not have been -- I assume they're in compliance with OSHA and other things, that it was the particular susceptibility of this individual that would allow him to work in this environment. That's not to say that everybody could work in this environment. You have to ask yourself, and we raise this, how can you let him work in this place for 20 years before that and never raise the issue? And one bit of speculation is, of course, once he applied to be an employee of Chevron, if he became an employee, then Chevron would be on the line for benefits, health benefits and so forth, and perhaps -- again, I don't know, but perhaps they didn't want to assume that possibility. Maybe that was really driving their interpretation here because in fact he did work for 20 years effectively for an independent contractor. And as a matter of fact up to the very end, when they eventually Chevron ask that he not work in there as an independent contractor, but they didn't dispute the fact that the independent contractor was allowing him to work in that environment. So does that address the question, Aaron? Aaron: Yes, I believe it does. Peter: Do you have anything, James? No. Aaron, would you add anything? Aaron: No. Peter: Any other questions? Aaron: Not at this point. Why don't we go to the last case and then we'll have plenty of on time or other discussions. This is an important case, very factually interesting case which will have important implications. It comes out of the 9th circuit again. You know, a little bit of tongue in cheek, but it's no coincidence that the 9th circuit has presented so many cases for review to the United States Supreme Court. I think the 9th circuit, Aaron, correct me if I'm wrong, is often one of the most reversed circuits of cases that come before the United States Supreme Court. Perhaps in part because there is a different philosophy in the 9th circuit. I don't know. Aaron: I believe it was in 97 the Supreme Court took 29 cases from the 9th circuit to review and reversed 27. Peter: There you go. That's good empirical basis for what I'm talking about. So we have a case now that is going to be heard in oral argument in the fall by the United States Supreme Court I believe. It's the briefs will be developed over the summer or in the coming months and it's called Hernandez vs. Hughes missile system. It will have important implications of,000 ADA is implicated over time. In this case, you have a plaintiff James Joel Hernandez. I apologize if I'm not pronouncing his name correctly. He worked at Hughes missile system for 25 years in various capacities. I think he was a janitor and a calibration service technician. And in 1999, after working there for many years, he received a drug test at Hughes, and tested positive for cocaine use. Hughes was also aware at the time that Hernandez may be an alcoholic or another least was struggling with alcoholism. As that fact became known, which is perfectly appropriate on some level for affirm to do as I've said. There is nothing in the ADA which prohibits drug testing or drug free workplace. You know, no alcohol in the workplace and so forth of course as long as it's not discriminatory. As long as it's not targeted towards a particular group. But rather than being terminated, for some reason, Hernandez at that time was given an option by the company to resign. Which was instead of the termination, which he chose to do. And he signed some employee separation agreement which basically documented that he was terminated or he decided to resign. He quit in lieu of a discharge, for personal -- what they called personal conduct. And as your listeners can tell and you can tell, what we're going to go towards here in this case is how you disentangle purported misconduct in the workplace from the disability itself. So what happened was Hernandez quit in lieu of discharge in 1991. And several years passed, and three years later, two or three years later in 1994, he applied to be rehired by Hughes in a position he had done already. Which was this service technician job, and they rejected his application. And he filed a claim with the EEOC. The basis of his claim was that he was not hired because of his record of drug addiction or he was regarded as having a drug addiction. But primarily, his record with the company that he had a drug addiction. So, number one, we see right away that this is a case not brought under the traditional first prong analysis of the ADA of an actual impairment. It's brought under the record of which is of course geared to prevent stigma advertise am and the discrimination against people who perhaps were covered from a disability, but now capable of working. Okay, so he brought this case with the EEOC and they filed a right to sue letter and so forth. Went to district court, but the facts were very interesting from that point out. When he applied to be rehired in 1994, he attached to his application a couple of references, which a tested to the fact that he was a recovered addict. His pastor I think did one, and perhaps a counselor or social worker did another which basically said he maintains his sobriety, he's committed to his recovery. In other words, the letters together suggested I would think as an important piece of evidence that in fact Hernandez was no longer a cocaine addict or an alcoholic. Then when he got down on the application further when he was trying to be rehired, he checked the box which said he had previously worked for Hughes. Now, to make a long story short, of course Hughes processed this application. It went through HR, and at the initial look in the HR department or the labor relations department, the woman, the individual who looked at this, testified that once she saw this quit in lieu of discharge box checked, she concluded that he could not be rehired. She concluded this because she said there was an unwritten policy of not rehiring former employees due to termination that resigned presumably because of misconduct. She also interestingly testified in court at the time, in deposition I assume as well, that she did not know the underlying basis for why he resigned. In other words, she testified that she did not know that he was a former cocaine addict and/or alcoholic. And this is of course important because it would suggest that she didn't believe any way that he was - - that he was possibly an individual with an impairment that substantially limited his major life activity based on his record of alcoholism and illegal drug use. Now, let me take aside step here for a second before we go on with the facts. As you and your listeners know under the ADA, there are three ways you can be a person with a disability. Actual impairment, record of, regarded as. There is also language in the ADA itself which basically says that recovered alcoholics or recovered illegal substance users, if they are rehabilitated, and I don't have the exact language in front of me, but if they're rehabilitated, cannot be discriminated against on the basis of that record under the ADA. That is not to suggest that the ADA supports illegal drug users or drunks working in the workplace. You are subject to determination whether or not you have a disability if you violate those drug free, alcohol free workplace rules which are legitimate and appropriate for business to uphold. So the question then became whether or not on this first level the company, i.e., through this human resource person regarded him as having a disability, the disability of recovered alcoholism and him not being hired on that basis was discrimination under the ADA. Now, under the ADA as you know, for him to be -- have a record of disability, and here is an interesting development as well, which will have to be figured out, he has to have a record of a substantial limitation in a major life activity. The question here becomes is this record of illegal drug use an alcoholism enough to carry that threshold? And that hasn't been decided yet. In somewhat of a summary way, the 9th circuit did not address that issue, but just assumed on the basis of his record of illegal drug use and alcoholism, that in fact he was a person with a record of a disability. But that of course is subject to debate as well and may be debated in oral arguments before the Supreme Court and may be debated if the court remands this as it did in the Echazabal for that determination. Now, another aspect of the case which is very interesting, is that -- is this whole relationship between conduct and disability and how do you disentangle the two. Was Hernandez fired or did he quit in lieu of discharge. That's the proper way to say it. Excuse me if I said fired -- on the basis of misconduct or on the basis of disability? The question is, is that a relevant discussion and/or does it matter? Or should it be considered that in fact he has a record of disability because he had this illegal drug use? And you can see the problem there. The ADA is not meant to disturb normal workplace rules and practices. If in fact he was a casual drug user or came to work drunk and was fired on that basis, we wouldn't necessarily say he was a person with a disability. And the question becomes how do you show that the person should be -- have a record of an impairment if you don't know at the time the real nature of their substance abuse and the impact on major life activities and so forth. So be that as it may berings what's also complicating in this case, was that Hughes -- I guess which a lot of companies do -- had this unwritten blanket policy which basically said they wouldn't rehire anybody who was fired or discharged or resigned for what they considered to be amiss conduct issue. The 9th circuit said that that blanket policy by definition will likely include a sub class of individuals with disabilities who may be discriminated against on that basis. In other words, say you have a really good case. Forget about the facts of this case for a second, and you have an individual -- again, not comparing it to this one good or bad, say you have an individual who is clear. Hasn't for ten years used illegal substances. Or, you know, you could have another -- was institutionalized for a mental health issue. You know, and maybe received electroshock therapy or something. Whatever. Again, just being characterizing this a little bit. Ten years later, if that person has been perfectly healthy and sober and so forth, should that individual be precluded from employment later on solely on the basis of that record of impairment? And is that, quote, record of impairment, a misconduct under the ADA? The facts here in Hernandez are a little bit unclear, but I would suggest that it didn't seem like the disability in the Hernandez case was any way tied to the particular misconduct. At least the initial statement of the HR person, although there was some testimony later on from the HR person's higher up or different line that if fact they knew he was a person with a particular drug problem. So it's a little murky in that regard. So basically what the 9th circuit did was say a couple of things. Number one, as I interpret the decision, they glossed over a little bit, frank I, of how they're going to think about whether or not the person who was a former substance abuse error alcoholic has a record of an impairment that substantially limits a major life activity. More analysis could have been done there. They did state quite clearly that they thought the blanket policy would violate the ADA because by definition it would include people who maybe could not get a job simply because they had a record of an impairment but who now are perfectly fine, are qualified and are simply not hired because the company has this blanket determination. One of the questions will be can such a blanket policy stand even if it perhaps somehow affects people who arguably are or are not disabled at the time. The other of course tough issue, Aaron, I'd be interested in your reaction on this as well, how do you distinguish between the casual drug user as I've said earlier, not minimizing that or the person who comes to work drunk say one day and is fired on that basis? Would that person -- if that person is not considered disabled for purposes of the law, which is probably not the case, then there is no case there and yet the person who is more disabled, in an alcoholic sense would be covered. Interestingly if you read some of the footnotes in the 9th circuit case and the way Hughes went about deciding this case, I think it was the case that people who were first time hires who maybe had some sort of drug history or alcoholic impairment were held to a lesser standard than people who had been qualified, became or were drug users and then tried to be rehired. The implications of this case are very broad, Aaron, on a number of levels. Number one, again, it goes to the definition of disability. How we figure out who is disabled. How we disentangle workplace misconduct from disability, and here, the problem is that many people in my view somehow seem to think that the ADA is meant to promote inappropriate behavior in the workplace. This case is not about, in any way condoning inappropriate behavior in the workplace, violence, drug use, alcoholism, any sort of workplace -- legitimate workplace standard. What it is about is trying to disentangle what we mean by workplace misconduct from the disability itself and the extent to which that prior history is at all relevant to the person's present ability to perform the job and whether or not these blanket standards should preclude whole classes of people from being able to get rehired. And of course independent of the ADA, I would think substance abuse is a huge issue in our society. Alcoholism as well, and we do want to have ways in which people can be sober and drug free, but at the same time not punish them for the rest of their lives. So it's a tough issue in that regard. And I would also add that it's possible that on remand, Hughes' lawyers could argue that in any event he's into the a person with a disability because he's not substantially limited in a whole range of jobs, if in fact they said -- if plaintiff's position was that he had a record of being substantially limited in major life activity of working. What's tea substantial limitation of a major life activity near this case? Is it liver functioning? Is it thinking? It's hard to say because in fact up to that point he was doing his job presumably well for 20 years. As a matter of fact, he got good or fair ratings. He never was really said that he was unqualified to do the particular job. So it's another one of these interesting factually complex cases which will have broader implications that go to the employer's ability to decide what workplace misconduct means and how it's intertwined with concepts of disability? It will have implications for persons with mental disabilities, perhaps persons with other sorts of impairments, and make for very interesting case decision. James, would you add anything? James: Oh, I think that there are interesting applications of this that you're seeing all the time in the news. For instance, the New York times and others picked up recently the story about an Iowa state coach who was terminated or resigned, and another coach in the south, and I can't remember which school, Alabama, and I think that it's interesting to be able to distinguish and separate the behavior from the disability and if there is in fact a disability as opposed to current alcoholism as may have been claimed in one of those cases and how those cases might differ because of the disability claim? Peter: Right. Remember in this case, if the person is presently an alcoholic or an illegal drug user, the game is over. They're not qualified. The employer does not have to hire them. What we're talking about here is assuming somebody who is now sober or healthy, or not manic depressive or not violent or whatever, maybe those aren't the best examples because there is a straight concern overwork place violence and workplace safety and so forth, but if in fact it is the case that presently after a legitimate analysis the person is qualified to do the job, should we continue to not allow that person to enter the workforce? James: And how will it affect their next job application? Do they look at conductor do they look at the alcoholism and the reformed alcoholism? How will that affect future opportunities that they may have and can they look at conduct separately from the alcoholism and make a determination on conduct? Even if it was influenced previously by active alcoholism. Peter: Again in summary what you see in all these cases, and prior cases, is this tension between the free marketplace, the ability of the employer to legitimately, and we support that -- I mean most people would support that -- to legitimately conduct their business in safe and productive ways. And in my view the ADA is not meant to undermine that. At the same time, in are certain protections in place from this law which prevent this sort of attitudinal and actual discrimination and these cases all lie at the border of those issues. That's why they're particularly difficult. That's why the press, for example, will always question some press some not somehow the ADA is meant the lessen workplace standards or make the workplace less safe, and so forth, which is not true. Because here I would emphasize in the Hernandez case, if you take the issues on face value, and it may require another factual determination, but he's not an addict and he's not an alcoholic presently. So should he be able to do this job in fact he can now do it? There are some other twists here which I won't go into, but he didn't pass this job test in 1994 and then they offered him to do it again in 1999, but again his skills five years later were so rusty that perhaps he couldn't Pates. The real issue is whether at the time in 1994, when perhaps he was still qualified to do the job and sober, whether or not he -- Hughes violated a law by not hiring him. Aaron, what do you think of that case? >> Aaron: I agree with you it's incredibly. And I mean, there is a certain threshold of hostility against people who have been substance abusers and not as much sensitivity as there is to other people with quote-unquote good disabilities. And that's evident in the way that a lot of workplace policies have been formed, but you're right there, is definitely legitimate workplace safety concerns and I'm kind of fearful what this case is going to say because we don't want to punish people who are in recovery. But then I agree with you, how do you establish that they're currently substantially limited? And I'm curious how the court is going to -- if the court is going to get to that and what they're going to make of it, and with the sitting court, I have some concerns on whether or not that may limit the ADA. Peter: Well, you have to be a realist, too, based on the facts you gave. It's a 9th circuit case so we would be safe in betting that the court is more likely to overturn it than not. Why else would they have taken it? And if that's true, then I think the job of counsel in this case, very able counsel on plaintiff's side and I'm sure very able counsel on defense side will be to illustrate to the court that this in fact is not really about lessening workplace standards, and this is in fact not about broadening the definition of disability. This is a pure attitudinal discrimination case because at the moment this person applied for hire again in 1994, he was qualified to do the job, and the only reason he was not hired was on the basis of this prior record. The problem in this case, as you say, Aaron, we're always colored by sub tans abuse issues. That's a difficult issue. What if the case involved a woman or a man who had an anxiety or stress disorder which was a legitimate disability, and you know, say it permeated his or her life. She was not violent, but flew off the handle, yelled at a supervisor or something and then they had the same sort of quit in lieu of discharge. And now she has been on medication, say, antidepressant or something for a couple of years, has been in therapy. She's very qualified to do the job. Would we feel the same way about that individual if she were to come forward or he were to come forward in 1994 and that person was just not hired on that basis? What do you think of those facts, Aaron? Aaron: Well, again, there are some threshold issues. I think there is some bias against people with mental health issues as well. It's a little more sympathetic set of facts. We just don't have as much hostility against somebody -- because we can feel it resonate with us and we've all had levels of anxiety or depression and somebody who gets that to a point where it's clinical, and their reaction is -- creates this negative workplace behavior and it's something we can kind of believe in and be very sensitive towards. So it's a better set of facts. Peter: Can you think of, and I'm not sure I can, can you think of a set of facts which don't involve substance abuse or mental health issues which would be more sympathetic? Aaron: Well, somebody's neurological damage, let's say it's short term. I can't come up with one specifically, but you can imagine somebody with a closed head injury with some fairly bizarre behavior that with adequate medical treatment goes away. Peter: Yeah, or perhaps Tourrets. Aaron: Again, you know, some people are going to see that more as a psychiatric issue. I will agree, a neurological issue with -- that responds to a new medication regime. Peter: Of course the easier case, which is a little furlt away from the issue is the person recovering from cancer. The person was tired and was, you know -- Aaron: Was tired, in pain, irritable, you know, actually that's a great example. Someone going through chemo may not be the most patient. Peter: And who is now cancer free. A woman with breast cancer who is now cancer free. Are they going to not rehire this person on the basis of that record of impairment? Well, the further you move away from the conduct issue, the easier it becomes. Because the easier the case in terms of looking at discrimination, particularly in that case for example they didn't want to rehire because they were fearful their insurance rates would go up. That's the kind of case the ADA is designed to deal with. What's difficult here is that you've got a double wham my of what's perceived to be misconduct and the substance abuse issue. Aaron: Another issue that came up in discussing Hernandez with employers is that -- or human resource folks is that they're concerned now because of the case that the statements that Hughes made in the investigation stage were used against them and actually proved Hernandez' case at the 9th circuit. And their claim is that now employers are having to take much better care in what they say, be more -- I guess be more careful and -- I guess there would be a chilling effect against the truth. Peter: Well, Aaron, let me ask you a question. It's a little bit rhetorical, what would you have done if you were Hughes in this case? How would you have handled it? Aaron: That's a great question. I don't put myself on that side of the fence very often. Peter: The guy comes back in 1994. We have to assume some facts. Assume that he has rehabilitated. That's the 64 dollar questions which could be litigated unto itself. Does it mean no relapse? Does it mean six months? How do you determine rehabilitated, but assuming he's rehabilitated, why not give this guy a shot? I mean he did the job for 20 years? Aaron: Welshing I'm not going to disagree. I think if he provides some evidence of his rehabilitation, you know, then give him a chance. I mean -- Peter: And to stop you there, I think in fact Hughes may have done that. they said retake the test in 1994, didn't they? Aaron: Yes. Peter: I don't believe he passed it, did he? Aaron: I don't really recall. I'm trying to run through some notes here, but... It's not really emphasized too heavily. Let's assume that is the case. Well, if that's the case, and he failed to -- he failed to pass a test that would indicate his legitimate ability -- Peter: Then he's not qualified; but if he wasn't hired in 1994 because of this record, then that's a different story. Aaron: And that's the statements that Hughes made. Peter: What do you think about whether or not he's a person with a disability for purposes of the ADA? In light of Toyota, for example, does he have a record of a substantial limitation on a major life activity of working? Maybe not because he did the job for 20 years. Aaron: Maybe not. That's very problematic. I don't think he'd have problems assuming he was a user or abuser of drugs and alcohol over an extended period of time. He could probably prove that up in other arenas. I'm willing to bet he could show substantial limitations. Peter: And impairment because I think the parties stipulated he was a drug user, not that he was a person with a disability or an addicts. I forget the word they used. There are all these sorts of issues that could come up in that regard. Do your listeners have any questions? Aaron: Yes, we do have we have one on this -- I think there is someone you know. I wouldn't reveal her name to you on the air. Hi, Peter, I won dir if you could talk a little bit more about how you -- how employers seem to be giving more leeway in determining who gets to participate in the workplace and what risk individuals can expose themselves to? Peter: So help me a little bit. This is my friend, but I couldn't get all the question. Aaron: Okay. Peter: What is the question? How do you interpret it? Just the question is how do you reconcile these cases? Aaron: Yeah, I think they're look ag the -- it seems employers with the current judiciary would be interpreting these decisions are getting -- I guess getting decisions late on their side of the table and so they're getting to make the determinations on some of these threshold disability issues. Peter: Well, that's an interesting question. I got a little better. One response is that state advocates are saying that line we're not going to take it anymore. And what they're doing, as you know, Aaron, and perhaps people across the country know who are listeners is increasingly a number of state legislatures have revised their state disability laws like in California to undue what is perceived to be the implications of the Supreme Court cases. So for example, feeHA, the anti discrimination law this California now specifically says that you don't take mitigating measures into account in defining disability. And it doesn't -- I believe it also says a disability doesn't have to be substantially limiting, it just has to be limiting. So other states are following in that regard. So interestingly, Aaron, in a perverse way you have this RENQUIST court, which is pushing authority down to the states and in fact the states may be responding. What may be perceived as kind of a death Nell for the ADA, I don't perceive it that way, is an enhancement of local state advocacy and more and more plaintiff's attorneys who of course in addition to filing in federal court under the ADA will have state comeser which are advantageous not only in substantive ways, but in other ways. For example, many state disability laws don't have limits on punitive damages. You know the cap of 300,000 dollars and it goes down under the ADA depending on the size of the employer. Many plaintiff attorneys will decide to file in state court for exactly the reasons we're talking about. I would also add in response to this question which is a very good question, that I'm not so dejected to think this is part of natural design of our constitutional system. This is a pendulum swinging in a different way than it swung under the Warren court. This court is pushing authority back to the states. This of course would not have worked with racial discrimination in the 1960's because there was terrific section al differences in the south because of segregation, and there is no reason to think that with a different administration over time it might not swing back the other way depending on the other issues. The question is not whether or not the ADA has had an impact, it certainly has, and a minimum under the physical environment, as well as in employment and awareness raising. I would pay less attention to what the federal courts are doing, although it's important, the terrifically high win rate for defendants, but the interesting rise I also look at in state court decisions, which we're looking at now and plaintiffs and advocacy groups, disability advocacy groups working with their state legislators in California and New York, North Carolina, and elsewhere, to undue what's perceived to be some of these Supreme Court decisions which have not aided the disability community in that regard. That's an interesting thing to keep in mind that it's not always black and white. That this is the natural part of the swing that occurs. Aaron: It does seem kind of ironic that advocates who began -- who had sought these rights in the states and then were dissatisfied with the results and then went to the federal government are now heading back to the states. Peter: Ironic or just maybe part of the natural play in this system which is a good thing. Of course, of course, I and many others don't think the ADA is a good law and can be interpreted in reasonable ways, but I wouldn't throw a whole baby out with the bath water with what we were just talking about, that in fact there is a natural pressure that goes on in our system and what the court is doing today will have a lasting impact but so did the Warren court 20 years ago. That's why it's increasingly important for disability advocates at the national and local level, I think, to pursue advocacy in a number of ways. And we're seeing that. Today and at the same time I would say, Aaron, for your defense lawyers and I work with corporations and others as well, none of this is to suggest that all of this has to be own Russ for employers. The whole underlying premise is that this law can enhance the abilities of American employers to retain qualified workers. And as taxpayers, we can either pay social security and taxes to support greater social security benefits to larger numbers of people, say recovered alcoholics like Hernandez who maybe can't get back into work or we can work with employers through these efforts to perhaps get these folks back to work. So we shouldn't think that just because there is a victory at the Supreme Court level on Hernandez or any other case, that we're not going to come back to pay it one way or the other. It's just a question of how we distribute those issues and the ADA is meant to support employment of qualified people rather than having them resort back to support on social security or governmental programs. That's probably a good place to end, huh? Want to take some questions, Aaron? Aaron: We've got a question on the Hernandez discussion. The question is this: Do you think that the fact that most of the other illnesses or disabilities you're discussing have a more sympathetic view than alcoholism, and is this because meant tall ill necessary -- meaning that while one does not choose to become an add Dick, one does choose to take cocaine? Do you think this has the implication to affect court decisions? Peter: My answer is absolutely for the reasons we've talked about. Some impairments are more stigmatized than others. The question is where do you draw the line? The person who by choice smoked for 20 years, and now has lung cancer, and can't work, or the person who has unprotected sex or the person who works in a dangerous job, how do you make those value judgments for one person over another? The ADA is meant to uphold this sort of individual approach within reason to being able to work, but it certainly is the case as we've talked about, Aaron, I'd be interested in your view as well, that this case is complicated by the fact that these -- these impairments have a perceived aspect of choice to them and they're choices which we don't condone in our society. What do you think? Aaron: I agree. I mean, you know, behavior is still stigmatized. You know, there is no doubt that we're still taking a hostile view to the use of illegal drugs and we're not sympathetic to somebody who loses control of legal substances. Peter: The key point in Hernandez in my view if I were looking the justices in the eye would be at the time he applied for the job, he arguably was a qualified worker with a disability. I mean, you have to take that position. And the only reason he was not hired at that time was not because he was a risk to anybody or to self and not because he had done anything wrong, it was because they simply did not want to hire him because of his record of impairment. And I'm not sure the justices will be able to get to that as you say, Aaron. They probably will look for ways to circumvent that view earlier on. Aaron: Results (Inaudible). Not in our court. Peter: No different than any other court or any other court. Liberal or conservative I would think. Aaron: No doubt. Well, I think this is probably a good point to close and we will entertain additional E-mail questions, but I want to note before we -- before we do the formal closing that professor Blanck will be back with us I believe tomorrow. Peter: I just have a very minor role. I've been asked to moderate a discussion with some fantastic folks on participatory action research and grassroots activities for people with disabilities which actually relates to some of things we were talking about today. Aaron: And you're going to moderate a discuss between Glen White and Monika -- I don't want to try her last name -- Suchowierska Peter: I just say Monika. Aaron: Monika and Glen tomorrow at 2:30 central. Please feel free to check out our webcast calendar for some upcoming events and we will be having professor Blanck back in the middle of June for another presentation. And I encourage you to view our 2003 calendar of upcoming events. I want to once again thank professor Peter Blanck, and Mr. Schmeling for participating today. James: Thank you, Aaron. I want to commend you and your staff for really a fantastic opportunity to share and learn together so thank you very much. Aaron: Well, I thank you for coming. I really appreciate your style, your willingness to be interrupted with questions and I look forward to working with you again. Thank you both. I hope everybody has learned a lot from today's webcast, but I want to encourage you to take the opportunity to review it as it will be archived. Again, please check our website for additional webcasts. I want to make some thank yous and some acknowledge letters. I would like to acknowledge NIDRR, who funds the Disability Law Resource Project who is your host for today's webcast. The other people that I'd like to thank who without their services this webcast would be impossible, and that's the ILRU webcast team, of Rachel Kosoy, Marj Gordon, Sharon Finney, Dawn Heinsohn, the technical skills of Rob Dickehuth and Marie Bryant, who is our realtime captioner and I hope again that I didn't speak too quickly for her. You guys all have a good day.