Academic journal article Vanderbilt Law Review

Disabled Former Employees under the ADA: Unprincipled Decisions and Unpalatable Results

Academic journal article Vanderbilt Law Review

Disabled Former Employees under the ADA: Unprincipled Decisions and Unpalatable Results

Article excerpt


A number of disabled former employees have turned to the Americans with Disabilities Act (ADA") to redress alleged discrimination in their termination or in the benefit plans of their former employers.l Several courts, however, have held that these plaintiffs are not "qualified individual[s] with a disability,"2 and, therefore, may not recover under the ADA.3 Other courts of appeals have recently found the ADA's proscription of discrimination in the "terms, conditions, and privileges of employment"4 to contradict the definition of qualified individuals.5 These courts resolved the ambiguity by allowing disabled former employees a federal right to sue their former employers for denying certain disability benefits.6

This difference of opinion presents a significant problem for employers, employees, and insurers. Support payments to the disabled amount to billions of dollars annually,7 and a large percentage of current workers will ultimately suffer a disability.8 Given these economic and demographic realities, if the approach of the Second and Third Circuits gains momentum, litigation on the issue will force a great number of employers and insurers to defend the structure of their benefit plans. While this litigation will not likely force employers and insurers to change their plans to end discrimination among disabilities-discrimination that the ADA does not prohibit9-the cost of this litigation will naturally pass first to employers,1 and then to consumers.

This Note argues that those courts of appeals that granted a right to sue under the ADA to former employees alleging discrimination in post-employment benefits found ambiguity where none existed. In so doing, these courts rendered useless the "essential functions" requirement of the ADA. Besides reaching a result contrary to the express language of the Act, these courts leave unresolved the question of eligibility to sue in termination discrimination cases, where ADA protection is impossible by the terms of the statute. This serves only to complicate matters for employers, who must, under the holdings of these courts, address the possibility of discrimination in their benefits plans and who, given the implications of these decisions, may be forced to retain disabled employees unable to perform the essential functions of their jobs.

Part II of this Note reviews the historical development of federal statutory protections for disabled employees under the Rehabilitation Act and the ADA and explains the judicial conclusion that neither act protects former employees who are unable to perform the essential functions of their former jobs. Part III examines the recent holdings of the Second and Third Circuits and argues that these courts arrive at a result contrary to the express language of the statute. Part IV argues that, in light of the limitations placed on the ADA, Congress-not the judiciary-has the option of changing the meaning of the statute. In addition, this Note observes that the application of the Second and Third Circuits' benefits discrimination reasoning to discrimination in termination cases is irrational. Given the express language of the ADA and the silence of Congress on the issue, courts should continue to interpret the ADA as not providing a cause of action for former employees.


The Rehabilitation Act of 1973 was the first law to prohibit discrimination against otherwise qualified persons with disabilities.ll Yet the Rehabilitation Act did not go so far as to protect completely disabled former employees from discrimination.l2 Since the ADA shall be interpreted consistently with the Rehabilitation Act,13 a number of courts have relied on the earlier act and refused to extend the ADA's protections to completely disabled former employees.l4

A. The Rehabilitation Act

The Rehabilitation Act protects the employment positions and benefits of employees and participants in programs receiving federal financial assistance. …

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