Vande Zande v. State of Wis. Dept. of Admin.

Citation44 F.3d 538
Decision Date05 January 1995
Docket NumberNo. 94-1884,94-1884
Parties, 3 A.D. Cases 1636, 8 A.D.D. 159, 6 NDLR P 27 Lori L. VANDE ZANDE, Plaintiff-Appellant, v. STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION, James R. Klauser, Lee Martinson, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Lawrence Bensky (argued), Melanie E. Cohen, Lafollette & Sinykin, Madison, WI, for plaintiff-appellant.

Jennifer Sloan Lattis, Asst. Atty. Gen. (argued), Michael J. Losse, Wisconsin Dept. of Justice, Madison, WI, for defendants-appellees.

James R. Scott, Robert E. Schreiber, Jr., Jonathan T. Swain, Lindner & Marsack, Milwaukee, WI, for MRA-Management Ass'n, amicus curiae.

Richard M. Stephens, Bellevue, WA, for Nat. Federation of Independent Business, amicus curiae.

Before POSNER, Chief Judge, and ENGEL * and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

In 1990, Congress passed the Americans with Disabilities Act, 42 U.S.C. Secs. 12101 et seq. The stated purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," said by Congress to be 43 million in number and growing. Secs. 12101(a), (b)(1). "Disability" is broadly defined. It includes not only "a physical or mental impairment that substantially limits one or more of the major life activities of [the disabled] individual," but also the state of "being regarded as having such an impairment." Secs. 12102(2)(A), (C). The latter definition, although at first glance peculiar, actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impairments are not in fact disabling but are believed to be so, and the people having them may be denied employment or otherwise shunned as a consequence. Such people, objectively capable of performing as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrelevant characteristic. (The Act is not limited to employment discrimination, but such discrimination, addressed by Subchapter I of the Act, is the only kind at issue in this case and we limit our discussion accordingly.)

The more problematic case is that of an individual who has a vocationally relevant disability--an impairment such as blindness or paralysis that limits a major human capability, such as seeing or walking. In the common case in which such an impairment interferes with the individual's ability to perform up to the standards of the workplace, or increases the cost of employing him, hiring and firing decisions based on the impairment are not "discriminatory" in a sense closely analogous to employment discrimination on racial grounds. The draftsmen of the Act knew this. But they were unwilling to confine the concept of disability discrimination to cases in which the disability is irrelevant to the performance of the disabled person's job. Instead, they defined "discrimination" to include an employer's "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless ... [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the ... [employer's] business." Sec. 12112(b)(5)(A).

The term "reasonable accommodations" is not a legal novelty, even if we ignore its use (arguably with a different meaning, however, Prewitt v. United States Postal Service, 662 F.2d 292, 308 n. 22 (5th Cir.1981); H.R.Rep. No. 485, 101st Cong., 1st Sess. 68 (1990) U.S.Code Cong. & Admin.News 1990, p. 267) in the provision of Title VII forbidding religious discrimination in employment. 42 U.S.C. Sec. 2000e(j); see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84-85, 97 S.Ct. 2264, 2276-77, 53 L.Ed.2d 113 (1977). It is one of a number of provisions in the employment subchapter that were borrowed from regulations issued by the Equal Employment Opportunity Commission in implementation of the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701 et seq. See 29 C.F.R. Sec. 1613.704; S.Rep. No. 116, 101st Cong., 2d Sess. 31 (1989). Indeed, to a great extent the employment provisions of the new Act merely generalize to the economy as a whole the duties, including that of reasonable accommodation, that the regulations under the Rehabilitation Act imposed on federal agencies and federal contractors. We can therefore look to the decisions interpreting those regulations for clues to the meaning of the same terms in the new law.

It is plain enough what "accommodation" means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work. The difficult term is "reasonable." The plaintiff in our case, a paraplegic, argues in effect that the term just means apt or efficacious. An accommodation is reasonable, she believes, when it is tailored to the particular individual's disability. A ramp or lift is thus a reasonable accommodation for a person who like this plaintiff is confined to a wheelchair. Considerations of cost do not enter into the term as the plaintiff would have us construe it. Cost is, she argues, the domain of "undue hardship" (another term borrowed from the regulations under the Rehabilitation Act, see S.Rep. No. 116, supra, at 36)--a safe harbor for an employer that can show that it would go broke or suffer other excruciating financial distress were it compelled to make a reasonable accommodation in the sense of one effective in enabling the disabled person to overcome the vocational effects of the disability.

These are questionable interpretations both of "reasonable" and of "undue hardship." To "accommodate" a disability is to make some change that will enable the disabled person to work. An unrelated, inefficacious change would not be an accommodation of the disability at all. So "reasonable" may be intended to qualify (in the sense of weaken) "accommodation," in just the same way that if one requires a "reasonable effort" of someone this means less than the maximum possible effort, or in law that the duty of "reasonable care," the cornerstone of the law of negligence, requires something less than the maximum possible care. It is understood in that law that in deciding what care is reasonable the court considers the cost of increased care. (This is explicit in Judge Learned Hand's famous formula for negligence. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947).) Similar reasoning could be used to flesh out the meaning of the word "reasonable" in the term "reasonable accommodations." It would not follow that the costs and benefits of altering a workplace to enable a disabled person to work would always have to be quantified, or even that an accommodation would have to be deemed unreasonable if the cost exceeded the benefit however slightly. But, at the very least, the cost could not be disproportionate to the benefit. Even if an employer is so large or wealthy--or, like the principal defendant in this case, is a state, which can raise taxes in order to finance any accommodations that it must make to disabled employees--that it may not be able to plead "undue hardship," it would not be required to expend enormous sums in order to bring about a trivial improvement in the life of a disabled employee. If the nation's employers have potentially unlimited financial obligations to 43 million disabled persons, the Americans with Disabilities Act will have imposed an indirect tax potentially greater than the national debt. We do not find an intention to bring about such a radical result in either the language of the Act or its history. The preamble actually "markets" the Act as a cost saver, pointing to "billions of dollars in unnecessary expenses resulting from dependency and nonproductivity." Sec. 12101(a)(9). The savings will be illusory if employers are required to expend many more billions in accommodation than will be saved by enabling disabled people to work.

The concept of reasonable accommodation is at the heart of this case. The plaintiff sought a number of accommodations to her paraplegia that were turned down. The principal defendant as we have said is a state, which does not argue that the plaintiff's proposals were rejected because accepting them would have imposed undue hardship on the state or because they would not have done her any good. The district judge nevertheless granted summary judgment for the defendants on the ground that the evidence obtained in discovery, construed as favorably to the plaintiff as the record permitted, showed that they had gone as far to accommodate the plaintiff's demands as reasonableness, in a sense distinct from either aptness or hardship--a sense based, rather, on considerations of cost and proportionality--required. 851 F.Supp. 353 (W.D.Wis.1994). On this analysis, the function of the "undue hardship" safe harbor, like the "failing company" defense to antitrust liability (on which see International Shoe Co. v. FTC, 280 U.S. 291, 302, 50 S.Ct. 89, 92-93, 74 L.Ed. 431 (1930); United States v. Greater Buffalo Press, Inc., 402 U.S. 549, 555, 91 S.Ct. 1692, 1696, 29 L.Ed.2d 170 (1971); 4 Phillip Areeda & Donald F. Turner, Antitrust Law pp 924-31 (1980)), is to excuse compliance by a firm that is financially distressed, even though the cost of the accommodation to the firm might be less than the benefit to disabled employees.

This interpretation of "undue hardship" is not inevitable--in fact probably is incorrect. It is a defined term in the Americans with Disabilities Act, and the definition is "an action requiring significant difficulty or expense." 42 U.S.C. Sec. 12111(10)(A). The financial condition of the...

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