• Disability Laws Provide Additional Protection for the Disabled
  • April 30, 2003 | Author: Peter J. Petesch
  • Law Firm: Ford & Harrison LLP - Washington Office
  • TheADA is not the exclusive law or set of remedies protecting persons with disabilities. The ADA provides remedies such as back pay, attorney fees, reinstatement or injunctive relief, and additional damages available under the 1991 Civil Rights Act (varying by the number of employees). Many states, counties, and municipalities have laws that further restrict employment practices regarding individuals with disabilities. While many of these state statutes mirror the ADA, others create different substantive standards governing employers, different definitions of who is protected under the law, different remedies, and, in some cases, even the specter of individual liability. See, e.g., Dichner v. Liberty Travel, 141 F.3d 24 (1st Cir. 1998) (given the different evidentiary standards for proving disability discrimination under state and federal laws, a jury could rationally find conduct that violated Massachusetts law does not breach the ADA), abrogation recognized by Lemire v. Silva, 104 F. Supp. 2d 80 (2000); Viscik v. Fowler Equipment Co., 800 A.2d 826 (N.J. 2002) (individual with obesity need not demonstrate substantial limitation in major life activity in order to establish physical handicap within meaning of New Jersey state law against discrimination); Reeves v. Johnson Controls World Servs., 140 F.3d 144 (2d Cir. 1998) (under New York law, a person with a medical impairment is protected regardless of whether the impairment limits a major life activity); see also California Fair Employment and Housing Act (does not have ADA's "substantial limitation" requirement and includes HIV, cancer, epilepsy, and diabetes as disabilities per se). Some states also have differing interpretations of their definitions, such as whether to take mitigating measures into account.

    The U.S. Court of Appeals for the Third Circuit recently underscored the significance of state laws governing disability discrimination. In Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565 (3d Cir. 2002), the court held that the federal cap on damages for ADA claims did not apply to at $2 million compensatory damages verdict awarded by a jury in a case involving both federal and state claims under the Pennsylvania Human Rights Act. The jury never apportioned the damages between the federal and state law claims. See also Olsen v. Toyota Technical Center USA, Inc., 2002 WL 31958183 (Mich. Ct. App. 2002) (affirmed $6.4 million verdict, plus costs and attorney fees, for employee who claimed he was harassed and denied accommodations for bad back).

    B. Brief Summary of State Disability Discrimination Laws -

    • Alabama: Only applies to state and publicly funded employment.

    • Alaska: Similar in coverage to ADA, but also covers physical or mental impairments that substantially limit a person's major life activities "as a result of the attitudes of others toward the impairment." No minimum number of employees.

    • Arizona: Similar scope to ADA; does not provide for compensatory damages.

    • Arkansas: Similar scope of protection to ADA; also provides damage caps similar to federal civil rights act.

    • California: Bars discrimination on basis of physical or mental disability, or "medical condition." Wider scope of individuals protected under law, and includes conditions that are not presently disabling; applies to smaller employers, specifically bars harassment, and provides compensatory damages.

    • Colorado: Similar scope of protection to ADA, but covers private employers regardless of minimum number of employees. Damages limited to back pay and injunctive relief.

    • Connecticut: Does not contain "substantial limitation of major life activity" proviso in definition of disability; covers smaller employers.

    • Delaware: Definition of "handicapped person" similar to ADA; affects employers of 20 or more; specifically accounts for burden on other workers in reasonable accommodation analysis and creates presumption that cost of under 5% of employee's salary is not an undue hardship.

    • District of Columbia: Similar scope of protection to ADA, but covers all employers and does not limit compensatory or punitive damages.

    • Florida: "Disability" not defined in statute; compensatory damages and up to $100,000 in punitive damages are recoverable. Specific prohibitions against HIV/AIDS discrimination.

    • Georgia: Similar scope of protection to ADA but does not include persons perceived or regarded as having a "handicap." No specific provision on compensatory/punitive damages.

    • Hawaii: Similar scope of protection to ADA; covers employers of one or more; allows recovery of punitive and compensatory damages. Specific prohibitions against HIV testing.

    • Idaho: Covers "substantial" disabilities; prohibitions and affirmative requirements are otherwise similar to ADA; allows compensatory damages but only up to $1,000 in punitives.

    • Illinois: Statute and case law define "physical or mental handicap" as a determinable physical or mental characteristic believed to impose severe restrictions on major life functions; covers smaller employers and provides for "actual damages."

    • Indiana: Similar scope of protection to ADA, but does not provide for compensatory or punitive damages.

    • Iowa: Covers "substantial" physical or mental handicap or HIV/AIDS, with prohibitions and requirements similar to ADA; covers small employers and allows recovery of "actual damages."

    • Kansas: Similar scope of protection to ADA; covers smaller employers but limits pain and suffering damages to $2,000.

    • Kentucky: Similar scope of protection to ADA; allows compensatory damages including but not limited to damages for "humiliation and embarrassment." Separate law specifically bars discrimination on basis of "substantial disability" and/or HIV infection.

    • Louisiana: Similar scope of protection to ADA; allows compensatory damages, including damages for humiliation and embarrassment. Allows employers to recover fees and damages for "frivolous" claims.

    • Maine: Covers "substantial handicaps" as determined by physician, psychiatrist or psychologist; no compensatory damages and only $1,000 punitive damages.

    • Maryland: State and charter county statutes and case law provide similar scope of protection to ADA; regulations specifically include HIV/AIDS as a "handicap." Allows recovery of compensatory damages, limited to 36-month period.

    • Massachusetts: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and punitive/exemplary damages.

    • Michigan: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and punitive damages; separate statute bars weight and height discrimination.

    • Minnesota: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and punitive/exemplary damages.

    • Mississippi: Only applies to public employees.

    • Missouri: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory damages - but no right to jury trial. Separate statute bars HIV/AIDS discrimination.

    • Montana: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and punitive damages.

    • Nebraska: Similar scope of protection to ADA; and allows recovery of compensatory and "special" damages.

    • Nevada: Similar scope of protection to ADA; and allows recovery of compensatory and punitive damages.

    • New Hampshire: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory damages and an administrative fine up to $50,000.

    • New Jersey: "Handicap" definition does not require that handicap, disability, infirmity, trait, or birth defect substantially limit any major life activity. Specifically protects HIV/AIDS and epilepsy; covers smaller employers and allows recovery of compensatory and punitive damages.

    • New Mexico: Substantially similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory damages through State Human Rights Commission.

    • New York: Definition of disability covers conditions preventing exercise of normal bodily functions or that is a medically accepted diagnosis - and no requirement of substantial limitation of major life activities. Covers smaller employers and allows recovery of compensatory damages; also allows individual liability of supervisors.

    • North Carolina: Similar scope of protection to ADA; covers smaller employers and allows recovery of back pay, reinstatement and attorneys' fees, but not compensatory damages. No right to jury trial; separate law prohibiting HIV discrimination.

    • North Dakota: Similar scope of protection to ADA; covers employers of 10 or more; but does not allow for compensatory or punitive/exemplary damages.

    • Ohio: Similar scope of protection to ADA; defines some "major life activities" as working, learning, performing manual tasks, working, and caring for one's self. Covers smaller employers and allows civil damage actions in lieu of Civil Rights Commission proceeding.

    • Oklahoma: Prohibits discrimination on basis of "handicap," which is defined similarly to ADA. Right to court action does not provide for compensatory or punitive damages.

    • Oregon: Similar scope of protection to ADA; covers smaller employers and allows court action, but not substantial compensatory or punitive damages; separate law for public employees enumerates certain protected disabilities.

    • Pennsylvania: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and punitive damages; separate law bars HIV discrimination and provides for reasonable accommodation.

    • Rhode Island: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and punitive damages in court action.

    • South Carolina: Definition of "handicap" requires "substantial," lifetime physical/mental impairment; does not require reasonable accommodations and prohibits discrimination without "reasonable justification." Civil penalties for aggrieved "handicapped" persons do not exceed $5,000.

    • South Dakota: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and punitive damages.

    • Tennessee: Definitions similar to ADA, but no reasonable accommodation requirement. Covers smaller employers and aggrieved individuals may seek compensatory and punitive damages in court action.

    • Texas: Similar scope of protection to ADA, but excludes AIDS and communicable diseases as disabilities; provides remedies similar in scope to 1991 Civil Rights Act.

    • Utah: Nondiscrimination law defines "handicap" similarly to ADA and Rehabilitation Act; covers employers of 15 or more; does not specifically limit remedies.

    • Vermont: Similar scope of protection to ADA; covers smaller employers and allows recovery of compensatory and limited ($10,000) punitive damages.

    • Virginia: Similar scope of protection to ADA but excludes active alcoholism; accommodations costing over $500 presumed to impose undue hardship to smaller employers; covers all employers but provides only limited damages.

    • Washington: Statute and case law define disability as abnormal sensory, mental or physical condition, and is substantially broader than ADA; prohibits discrimination and requires reasonable accommodations; covers smaller employers and allows recovery of limited compensatory damages and all damages allowed under federal law.

    • West Virginia: Similar scope of protection to ADA; covers employers of 12 or more and allows recovery of compensatory damages.

    • Wisconsin: Definition of "handicapped" requires that impairment limits achievement or capability to work; covers smaller employers; bars discrimination and requires reasonable accommodations; does not provide for compensatory or punitive damages.

    • Wyoming: "Handicap" is not defined, but individual must be capable of performing job with/without reasonable accommodation; covers smaller employers but does not provide for compensatory or punitive damages.