• The Law That Wouldn't Die -- The Re-Emergence of Disability Discrimination in Oregon
  • August 19, 2003 | Author: Richard R. Meneghello
  • Law Firm: Fisher & Phillips LLP - Portland Office
  • Since the U.S. Supreme Court's 1999 trilogy of decisions granting employers sweeping victories in Americans with Disabilities Act cases (Albertsons v. Kirkingburg, Sutton v. United Airlines and Murphy v. United Parcel Service), defense attorneys have felt very comfortable defending ADA cases. The overwhelming majority of ADA decisions favored employers, with federal jurisdictions reporting over 90% of such cases being dismissed on defense motions before trial. Some plaintiff's attorneys announced that they would no longer bring ADA cases, recognizing the futility of their efforts. Although some liberal federal jurisdictions (most notably, the Ninth Circuit Court of Appeals, in which Oregon sits) would occasionally grant the rare plaintiff a victory, the momentum was decidedly on the employers' side. This momentum reached a high point in June 2002, when the U.S. Supreme Court issued a decision which characterized the plaintiff's burden of proving "disability" as being a "demanding standard" (Toyota Motors Manufacturing, Kentucky v. Williams).

    However, Oregon employers may have witnessed the turning of the tide in late 2002 when the Oregon Court of Appeals issued its decision in Evans v. Multnomah County Sheriff's Office. This case has the potential to bring about a new round of ADA litigation which could dwarf the number of cases brought in the mid-1990's when the ADA was at its peak.

    The Evans case was brought under Oregon's statutory equivalent of the ADA (currently ORS 659A.112), which was thought to mirror the ADA in most respects. It involved an employee who was prescribed medication that increased the risk of severe bleeding or hemorrhage if he were physically injured. The employee's doctor advised the employee to avoid contact with prison inmates, which had been part of his job duties as a correctional officer. Initially after his surgery, the employer placed him on light duty and assigned him general office functions. However, when the employee requested a permanent transfer to the light duty post, the employer balked and pointed to the job description, which required all officers to rotate through all posts. It eventually terminated his employment and an Oregon disability discrimination suit followed.

    The Court of Appeals held that the plaintiff was a "disabled individual" who could bring a discrimination charge, and that he could have been qualified to perform the essential functions of his position had he been granted a reasonable accommodation. In holding that he was "disabled," the Court held that the plaintiff was substantially limited in the major life activity of employment (i.e., working) since his condition precluded him from a broad range of jobs that may have a high incidence of physical injury - construction, maintenance, law enforcement, manufacturing, etc.

    More importantly, the Court held that the employee was "qualified," ignoring the employer's preexisting job descriptions requiring officers to be able to perform all possible duties, including those requiring inmate contact. The employer cited to the U.S. Supreme Court's employer-friendly ADA decisions, which are usually followed by Oregon state courts due to the similarity between Oregon's statute and the federal statute. However, the Oregon Court of Appeals threw employers a curveball and cited to a statutory policy statement contained in the preamble of the statute which states that Oregon's "public policy" guarantees disabled persons "the fullest possible participation in the...economic life of the state,"and that the statute should be interpreted to effectuate that policy. ORS 659A.103. Citing to this policy, the Court of Appeals held:

    It is not possible to achieve consistency between an implicit federal policy mandating a narrow interpretation of the ADA and an explicit Oregon policy mandating a broad one.

    What is the fallout from this case?

    With these words, the Oregon Court of Appeals essentially re-opened the floodgates of disability discrimination litigation in the state of Oregon. Although the employer asked the Oregon Supreme Court to review the case on appeal, the state's high court recently rejected the appeal, solidifying the Evans decision for the foreseeable future. At a gathering of employment law litigators at the Oregon State Bar's Disability Law Seminar held on February 28, 2003, several plaintiffs' attorneys publicly announced that they were back in business. They stated that they saw no reason to file ADA claims in a hostile federal court when they could simply file state disability discrimination claims in a receptive state court, and that they had already begun to reenter the fray.

    What does this mean for employers?

    Simply put, you should expect to see more ADA lawsuits filed against your company in the state of Oregon. State law allows plaintiffs to seek all of the same remedies they would find in federal court, including economic damages, noneconomic emotional distress damages, punitive damages, attorney fees, and the right to a jury trial, so there is no disadvantage to file in state court. What's more, the $300,000 damages cap for ADA claims does not exist in Oregon state courts, allowing runaway juries to grant millions of dollars of damages against employers.

    What can employers do?

    Employers can take preventative steps to minimize the chance of ADA suits and maximize the success rate of defending such lawsuits when they inevitably hit. First, you should have your employment law attorney review your written policies to ensure they contain necessary language and guidance regarding disability discrimination, reasonable accommodations, and the interactive process. Second, you should ensure that your managers and supervisors have sufficient training to know how to spot and respond to requests for accommodation. Third, you should consider re-evaluating your standard response to accommodation requests and err on the side of granting accommodations rather than approaching them with a conservative frame of mind. Fourth, you should reeducate yourself and your key human resource personnel in the art of the interactive process by having a discussion with your employment law attorney.