IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______
)
JOE HOUSE, )
) Civil Action No. 1:99-1306
Plaintiff, )
)
v. ) Judge Todd
)
CITY OF JACKSON and the )
JACKSON POLICE DEPARTMENT, )
)
Defendants. )
______)
UNITED STATES’ BRIEF AS AMICUS CURIAE
IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
BILL LANN LEE
Assistant Attorney General
Civil Rights Division
JOHN L. WODATCH, Chief
RENEE M. WOHLENHAUS, Deputy Chief
PHILIP L. BREEN, Special Legal Counsel
M. CHRISTINE FOTOPULOS, Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 305-7475
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
BACKGROUND 1
STATUTORY AND REGULATORY BACKGROUND 3
ARGUMENT 6
I. STATUTORY PROVISIONS MANDATING THE BLANKET EXCLUSION FROM EMPLOYMENT OF ALL PERSONS WITH ANY “APPARENT MENTAL DISORDER” LISTED IN THE DSM ARE FACIALLY INVALID UNDER THE ADA 6
A. THE BLANKET EXCLUSION IS NOT JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY 7
B. THE BLANKET EXCLUSION CANNOT BE JUSTIFIED UNDER THE “DIRECT THREAT” PROVISION 13
II. STATUTORY PROVISIONS MANDATING THIS BLANKET EXCLUSION ARE PREEMPTED BY THE ADA AND HAVE NO LEGAL FORCE OR EFFECT 19
A. EMPLOYERS MAY NOT RELY UPON THE STATUTORY PROVISIONS AS A DEFENSE TO A CLAIM OF UNLAWFUL DISCRIMINATION UNDER THE ADA 23
B. EMPLOYERS MAY BE HELD FULLY LIABLE FOR THEIR VIOLATIONS OF THE ADA NOTWITHSTANDING THE STATUTORY PROVISIONS 26
CONCLUSION 27
XXX
TABLE OF AUTHORITIES
CASES
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999) 10, 24
Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997) 6, 13
Bombrys v. City of Toledo, 849 F.Supp. 1210 (N.D. Ohio 1993) 9, 17
Bragdon v. Abbott, 524 U.S. 624 (1998) 14-15
Brickers v. Cleveland Board of Education, 145 F.3d 846 (6th Cir. 1998) 25-26
Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993) 17
Coleman v. Casey County Board of Education, 510 F.Supp. 301 (W.D. Ky. 1980) 20
Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 17
Davis v. City of Camden, 657 F.Supp. 396 (D.N.J. 1987) 28
EEOC v. Chrysler Corp., 917 F.Supp. 1164 (E.D. Mich. 1996) 9, 17
EEOC v. County of Allegheny, 705 F.2d 679 (3rd Cir. 1983) 21, 27
EEOC v. Exxon Corp., 203 F.3d 871 (5th Cir. 2000) 10, 16, 19
EEOC v. State of Illinois, 69 F.3d 167 (7th Cir. 1995) 20
Felder v. Casey, 487 U.S. 131 (1988) 21, 22
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) 21
Free v. Bland, 369 U.S. 663 (1962) 22
Gade v. National Solid Wastes Management Ass’n, 112 S.Ct. 2374 (1992) 20-21
Garneau v. Raytheon Co., 323 F.Supp. 391 (D.C. Mass. 1971) 20
General Electric Co. v. Young, 3 FEP Cases 560 (W.D. Ky. 1971) 20
Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir. 1988) 16
Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999) 15-16
Hammer v. Board of Education, 955 F.Supp. 921 (N.D. Ill. 1997) 9
Heise v. Genuine Parts Co., 900 F.Supp. 1137 (D. Minn. 1995) 9
Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) 11
Hines v. Davidowitz, 312 U.S. 52 (1941) 21
Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) 17-20
Homemakers, Inc., L.A. v. Div. of Industrial Welfare, 356 F.Supp. 111 (N.D. Cal. 1973) 20
Hutchinson v. United Parcel Service, 883 F.Supp. 379 (N.D. Iowa 1995) 9
Int’l Union, United Auto Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991) 26
Jones v. Rath Packing Co., 430 U.S. 519 (1977) 20
Kapche v. City of San Antonio, 176 F.3d 840, 844 (5th Cir. 1999) 17
Kober v. Westinghouse Elect. Corp., 480 F.2d 240 (3rd Cir. 1973) 27-28
Kreitner v. Bendix Corp., 501 F.Supp. 415 (W.D. Mich. 1980) 20
Krocka v. Bransfield, 969 F.Supp. 1073 (N.D. Ill. 1997) 9, 17
Local 246, Utility Wkr’s Union v. So. Cal. Ed. Co., 320 F.Supp. 1262 (D.C. Cal. 1970) 20-21
Oconomowoc Res. Prog., Inc. v. City of Greenfield, 23 F.Supp.2d 941 (E.D. Wis. 1998) 20
Perez v. Campbell, 402 U.S. 637 (1971) 21
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981) 12
Quinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995) 27
Quinones v. City of Evanston, 829 F.Supp. 237 (N.D. Ill. 1993) 27
Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758 (5th Cir. 1996) (“Rizzo I”) 16
Rizzo v. Children’s World Learning Centers, Inc., 173 F.3d 254 (5th Cir. 1999) (“Rizzo II”) 19
Rizzo v. Children’s World Learning Centers, Inc., 213 F.3d 209 (5th Cir. 2000) (“Rizzo III”) 19
Rosenfield v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971) 27
Sarsycki v. United Parcel Service, Inc., 862 F.Supp. 336 (W.D. Okl. 1994) 9, 17
School Board of Nassau County v. Arline, 480 U.S. 273 (1987) 14-15
Spirt v. Teachers Insurance and Annuity Ass’n, 691 F.2d 1054 (2nd Cir. 1982) 20
Stillwell v. Kansas City Bd. of Police Comm., 872 F.Supp. 682 (W.D. Mo. 1995) 8-9, 17
T.E.P. v. Leavit, 2 A.D. Cases (BNA) 1299 (D. Utah 1993) 20
Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir. 1989) 21-22
Vogel v. Trans World Airlines, 346 F.Supp. 805 (W.D. Miss. 1970) 20
Williams v. General Foods, 492 F.2d 399 (7th Cir. 1974) 27
FEDERAL STATUTES, REGULATIONS AND INTERPRETIVE GUIDANCE
Americans with Disabilities Act (ADA), 42 U.S.C. §§12101, et seq. passim
EEOC Title I Regulations and Interpretive Appendix (29 C.F.R. part 1630) passim
EEOC’s Technical Assistance Manual on Title I of the ADA passim
LEGISLATIVE HISTORY
H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess (1990) (Labor Report) passim
H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. (1990) (Judiciary Report) passim
S. Rep. No. 116, 101st Cong., 1st Sess. (1989) (Senate Report) passim
H. Conf. Rep. No. 101-596, 101st Cong., 2d Sess. (1990), 1990 U.S.C.C.A.N. 593. 23
STATE STATUTES
Tenn. Code Ann. §38-8-106 passim
Tenn. Code Ann. §38-8-104 2
Tenn. Code Ann. §37-5-117 1
Tenn. Code Ann. §41-1-116 1
Tenn. Code Ann. §7-86-201 1, 2, 3
Tenn. Code Ann. §8-8-102 1
MISCELLANEOUS
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”) American Psychiatric Association (Washington, D.C. 1994) passim
XXX
BACKGROUND
The State of Tennessee has enacted five state statutes which mandate various minimum qualification standards for all persons employed or seeking employment in any of five different law enforcement positions in the state: “police officer” (Tenn. Code Ann. §38-8-106); “sheriff” (Tenn. Code Ann. §8-8-102); “correctional officer” (Tenn. Code Ann. §41-1-116); “youth service officer” (Tenn. Code Ann. §37-5-117); and “public safety dispatcher” (Tenn. Code Ann. §7-86-201). Among the numerous standards imposed by each of these statutes is the following requirement, which is stated in nearly identical language in all five statutes:
Persons employed in these positions must “be free of all apparent mental disorders as described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association,” and “must be certified as meeting these criteria by a qualified professional in the psychiatric or psychological fields.”[1]
By means of this provision, these statutes mandate the automatic exclusion from employment of all persons who have any mental condition listed in the DSM, without allowing for an individualized assessment of whether a particular individual can safely perform the essential functions of the particular job in question with or without a reasonable accommodation, and without providing for any exception.[2]
On November 16, 1999, Plaintiff Joe House, a police officer, brought this suit against his former employers, Defendants City of Jackson and the Jackson Police Department, alleging that they unlawfully discriminated against him on the basis of disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101, et seq. Among his other claims, Plaintiff alleges that Defendants unlawfully relied upon Tenn. Code Ann. §38-8-106[3] when they refused to reassign him to a desk officer position as a reasonable accommodation of his disability (post-traumatic stress disorder). See Plaintiff’s Complaint, p. 4. Plaintiff alleges that this statutory provision conflicts with the ADA and is therefore preempted, and that Defendants are estopped from relying upon it as a defense to a claim of unlawful discrimination under the ADA. Id. at 4-5. In addition to other requested relief, Plaintiff prays for injunctive relief and a declaration that this provision violates the ADA. Id. at 6.[4]
On October 13, 2000, Defendants filed a Motion for Summary Judgment, arguing, inter alia, that Plaintiff, who has been diagnosed with a “mental disorder” as defined by the statute,
“could not perform duties as a desk officer...because he was a safety threat to himself and others.” Defendants’ Memorandum of Law, p. 12. Defendants also argue that “Plaintiff cannot, as a matter of law, be considered a ‘qualified individual with a disability’ [under the ADA] since he cannot satisfy the requirements of Tenn. Code Ann. §38-8-106,” and that “[t]he ADA does not require an employer to accommodate a person’s disability by ignoring duties imposed by state or federal statute.” Id., p. 13. Thus, Defendants have invoked as an affirmative defense the very statutory provision asserted by both Plaintiff and the United States to be facially invalid under and preempted by the ADA.[5]
STATUTORY AND REGULATORY BACKGROUND
Title I of the ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees,...and other terms, conditions, and privileges of employment.” 42 U.S.C. §12112(a). A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. §12111(8).[6]
As used in the ADA, the term “discriminate” specifically includes “using qualification standards...that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity...” 42 U.S.C. §12112(b)(6); 29 C.F.R. §1630.10.[7] The law also prohibits subjecting applicants and employees to medical or psychological examinations except as specifically permitted, and using the results of any such testing in any manner that is inconsistent with the requirements of the ADA. 42 U.S.C. §12112(d); 29 C.F.R. §1630.14(c). In particular, “if certain criteria are used to screen out an employee or employees with disabilities as a result of such examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions [must not be capable of being] accomplished with reasonable accommodation.” 29 C.F.R. §1630.14(b)(3).[8]
The ADA provides two defenses to employers who use employment qualification standards:
(a) In General. It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.
(b) Qualification standards. The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.
42 U.S.C. §12113. In addition, the EEOC’s interpretive guidance to its Title I regulations regarding these defenses provides that:
With regard to safety requirements that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, an employer must demonstrate that the requirement, as applied to the individual, satisfies the “direct threat” standard in §1630.2(r) in order to show that the requirement is job-related and consistent with business necessity.
29 C.F.R. part 1630, App. §1630.15(b) & (c). The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. §12101(3). Implementing regulations establish the analysis to be used in determining whether an applicant or employee poses a direct threat:
Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the nature of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
29 C.F.R. §1630.2(r). Finally, the EEOC’s interpretive guidance for the “direct threat” provision provides that:
[a]n employer...is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient...Determining whether an individual poses a significant risk of substantial harm to others must be made on a case-by-case basis. The employer should identify the specific risk posed by the individual. For individuals with mental or emotional disabilities, the employer must identify the specific behavior on the part of the individual that would pose the direct threat...[C]onsideration [of the relevant factors] must rely on objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes – about the nature or effect of a particular disability, or of disability generally.
29 C.F.R. part 1630, App. §1630.2(r) (citations omitted).
ARGUMENT