State Laws May be Tougher than Federal ADA
Employees with disabilities have more than physical limitations
to overcome. The legal system itself may be just as disabling.
By Susan L. Gilpin, CEO, Certification of Disability Management Specialists
At times, the Americans with Disabilities Act (ADA) can seem like a moving
target as court rulings impact the interpretation and scope of the federal law
that defines disability and demands that employers accommodate employees with
disabilities. The legal debate can distract employers from an equally important
issue: state law requirements that are sometimes harsher than those of the ADA.
"The rule of thumb for employers is that the most stringent law is the
governing law," states Rheta Baron King, a California-based ADA expert.
"In some cases, the most stringent law may be the state law, particularly
given the latest Supreme Court ruling, which appeared to narrow the scope of
the ADA." This is particularly important in states like California, which
has disability and employment-discrimination laws that are consciously different
from the federal ADA, adds King, a past chair of the Certification of Disability
Management Specialists Commission (CDMSC).
Differences between federal and state disability laws took the spotlight following
a January 2002 ruling by the U.S. Supreme Court, which narrowed the view of
how disability is defined under ADA. In the ruling, the Supreme Court ordered
a lower court to reconsider a decision in favor of a woman with carpal tunnel
syndrome who sought accommodations from her employer, a Toyota plant in Kentucky.
MOTOR MFG., KY., INC. v. WILLIAMS [534 U.S. 184 (2002)]).
The Court of Appeals for the Sixth Circuit had ruled in favor of the employee,
finding that impairments substantially limited her ability to perform manual
tasks that were part of her job. It also granted her partial summary judgment
on the issue of whether she was disabled under ADA. In the Supreme Courts
reversal, Justice Sandra OConnor wrote: "We conclude that the Court
of Appeals did not apply the proper standard in making this determination because
it analyzed only a limited class of manual tasks and failed to ask whether respondents
impairments prevented or restricted her from performing tasks that are of central
importance to most peoples daily lives."
Miguel Escalera Jr., a labor and employment attorney who represents employers
in disability discrimination litigation, says companies should not regard the
ruling as a reason to "relax or get the sense that they dont have
to worry about the ADA." To the contrary, "the ADA is as vital as
it ever was," comments Escalera, managing partner of the Hartford, Conn.-based
firm Kainen, Escalera & McHale, P.C. "The ADA greatly increased employers
obligations over what they had historically been. The Supreme Court has not
limited ADA so much as it has clarified some instances where lower courts had
gone astray as to what the ADA means."
The Supreme Court ruling underscores the importance of current and future cases
on the dockets of state, district and appeals courts, which may eventually find
their way to the Supreme Court. Clearly, the issue of disability in the workplace
the definition of disability, who is considered disabled and under what
circumstances, and the obligation of employers will be debated and shaped
in the courts for years to come.
More importantly for the present, many employers must deal with a two-tiered
standard in disability law. On the one hand is the sweeping ADA, which addresses
topics from employment discrimination to access to public buildings. On the
other are state laws that may be more stringent in defining disabilities and
mandating employer actions. Thus, employers cannot afford to overlook the requirements
of state laws or the latest rulings from state courts.
States such as California and Massachusetts, for example, apply substantially
broader language than ADA does to the definition of disability. This affects
not only companies headquartered in those states, but also firms with facilities
there. If a company is headquartered in one state but has an office or facilities
in California, an employee in that state would be covered by California law.
"If a company does business in California or in Massachusetts, they have
to be aware of the state laws. If they act as if theyre dealing with just
federal law, thats not going to be good enough," observes Jeffrey
Freedman, an attorney with the Los Angeles-based law firm of Liebert, Cassidy,
Add to this the challenge of state laws that continue to be shaped and interpreted
in the light of court rulings and legislative actions. "In general terms,
many of the state statutes were enacted before the ADA, and in many instances
they were more vague and susceptible to broader interpretations than the ADA,"
adds Escalera. "The process of defining the differences between state and
federal law is ongoing, and one thats really at its infancy. Its
a process that is going to continue to evolve over the next 20 years. No one
can predict where this is going to come out state by state."
The following is a brief review of some state disability laws that differ in
either definition or requirements from the federal ADA.
Under the California Fair Employment and Housing Act (FEHA), the standard for
measuring a disability is based on whether it makes a major life activity "difficult."
Sounds clear, right? Not exactly. This contrasts with federal law stipulating
that a condition must substantially limit one or more major life activities.
But wait, theres more. California law also specifically mentions certain
diseases and/or conditions such as HIV/AIDS, hepatitis, diabetes, bi-polar
disorder, and heart disease that are covered under the state regulation,
whether or not these conditions are chronic or episodic.
Then theres the money issue. Specifically, a maximum payment. Unlike
ADA, California law has no cap on the amount of punitive damages that can be
awarded to a plaintiff in an employment or other discrimination case.
California law also stipulates that mitigating factors such as medication
or assistive devices like eyeglasses, hearing aids or artificial limbs
not be taken into account when considering whether a person is disabled under
the law. Take a truck driver, for example, who is not hired because he needs
eyeglasses in order to see well enough to drive, hypothesizes Freedman. Under
ADA, the driver would not be considered disabled because with glasses he can
drive. But in California, if it turns out that his near-sightedness was the
motivating reason not to hire him, he would be considered disabled and could
pursue an employment discrimination case against the company. If the trucking
company hires the driver, however, his near-sightedness would be subject to
Californias legal requirements for reasonable accommodation to perform
his duties which in this case would probably be eyeglasses.
For companies in California, good business practices go beyond just knowing
the letter of the law on employment discrimination, job accommodation requirements
and the definition of disability. Freedman suggests that companies make sure
they have written job descriptions which delineate the essential functions of
each job. Further, companies must ensure that their job applications, interview
processes and hiring practices are discrimination-free, and that no questions
are being asked which could be viewed as in violation of the federal ADA law
or Californias FEHA.
Another fact for California employers to keep in mind is that the state courts
have historically been more "plaintiff friendly" than federal courts.
Slightly more than half the state disability discrimination cases in California
that have gone to trial have resulted in a favorable ruling for the plaintiff,
King notes. "We also have to remember, in both instances of the federal
ADA and California cases, this is a small fraction of the overall number of
cases. Most get resolved through settlement or the court dismisses them at summary
Massachusetts takes a stance similar to Californias and does not consider
assistive devices or medication when determining if someone is disabled. "An
individual who has a disability under Massachusetts law is entitled to reasonable
accommodation unless it imposes a hardship. Thus, they could request accommodations
that they would not need if they took medication or used assistive devices,"
Unlike the ADA, under Massachusetts law, individuals with no outward manifestation
of any impairment may meet the definition of disability and be entitled to workplace
accommodations. "An individual with a serious heart condition that is controlled
by medication and who is able to perform normally would not be considered disabled
under the ADA," he adds. "However, if the absence of medication would
render the same individual substantially unable to engage in physical exertion,
they would be considered disabled under Massachusetts law. How is the Massachusetts
employer to know which employees are disabled? What accommodations will the
Massachusetts courts require in such circumstances? These issues are yet to
In Michigan, employers must comply with the Michigan Persons with Disabilities
Civil Rights Act of 1976, even if the company only has one employee. "This
is the most major distinction between our statute and the federal statute,"
says Harry R. Smith, director of membership services for MARO Employment and
Training Association, a network that provides employment and rehabilitation
training to people with barriers, including those who have sustained workplace
Smith adds that the Michigan disability law was part of a series of legislative
actions on civil rights and discrimination over several years, which helped
to raise awareness of the laws. "We were on a roll for about eight years,
enacting one piece of legislation after another, making it easier for people
with disabilities to be involved in the larger society," says Smith, a
former deputy in the State Vocation and Rehabilitation Agency.
Connecticut and New York are among the states with broader definitions of disabilities
than the ADA. In Connecticut, for example, disability is defined to include
any long-lasting impairment of infirmity without regard to the impact of the
condition on the individuals life activities. In New York, the definition
of disability includes any physical, mental or medical impairment that is demonstrable
by medically accepted clinical or laboratory diagnostic techniques.
The variation in disability laws from state to state and between state laws
and ADA puts the burden of knowing squarely on the shoulders of employers. This
includes knowing not only how the state law is currently being read and enforced,
but also being aware of cases and circuit-court rulings that may alter current
"Employers are trying to operate consistently with the ADA, and hoping
that eventually the interpretations of state law will be consistent as well,"
Escalera observes. "But in many cases, state laws are going to be interpreted
More Business & Health articles on Disability:
legal advantage of disability management (July/August 2001)
Management: It takes a pro to solve the puzzle (Feb. 1, 2000)
The Americans with Disabilities
Act: Business Connection
Find ADA documents, standards, business briefs, checklists, guidelines and more.
The Certification of Disability Management Specialists
The Certification of Disability Management Specialists Commission (CDMSC) is
the only nationally accredited certification organization for disability management
Susan Gilpin. Disability Legislation: State Laws May be Tougher than Federal ADA. Business and Health 2002;5.