Federal appeals courts hostile to employment discrimination suits under ADA, new study finds

November 09, 2001

COLUMBUS, Ohio - The nation's appellate courts have overwhelmingly ruled against people suing under the employment provisions of the Americans with Disabilities Act, according to new research.

The study of federal appellate court cases from 1992 to 2000 found that between 83 and 89 percent of the decisions per year in employment-related ADA cases favored the defendants.

In other words, those who claimed discrimination because of disabilities won fewer than 17 percent of their cases on appeal, said Ruth Colker, professor of law at Ohio State University and author of the study.

"The judiciary has been hostile to plaintiffs in ADA employment cases," Colker said. "This suggests that litigation - particularly appellate litigation involving employment issues - has not been an effective vehicle for ADA enforcement."

Enacted in 1990, the ADA was designed to protect the rights of people with disabilities in employment, public entities and public accommodations. This study focused on the employment title of the ADA and involved 730 relevant cases in the appeals courts between 1992 and 2000 that were available electronically through Westlaw.

The results showing plaintiffs winning fewer than 17 percent of their cases on appeal includes those in which the plaintiffs won in the original trial court, Colker noted. It is particularly surprising that ADA plaintiffs are losing on appeal even when they won in the original trial court, Colker said, because the rules of law are biased toward affirming lower court decisions.

About 60 percent of defendants in ADA cases who lost at the original trial had the decisions against them reversed in appeals court -- well above the average for other types of cases, she said. Colker compared her data to that from a study by Stewart J. Schwab and Theodore Eisenberg of Cornell University, who also looked at cases in federal appeals courts. Comparing data from the two studies, Colker concluded that ADA plaintiffs fared about half as well as plaintiffs in commercial litigation cases.

"Despite the bias toward affirmances on appeal, plaintiffs are losing their ADA cases on appeal at an astonishing rate," she said. "The high rate of reversal of pro-plaintiff trial court judgments suggests a hostility to ADA plaintiffs by the courts of appeals rather than poor litigation judgment by plaintiffs."

Colker said that if the ADA were consistently enforced, plaintiffs would likely do better in court as time went on because plaintiff lawyers would learn which cases have the best chance of success based on previous court decisions.

However, the results show the success rate of plaintiffs has not improved over the years. "We have seen a consistent line of decisions which moves the statute in a pro-defendant direction," she said.

However, Colker found some factors that did seem to help plaintiffs if their cases made it to appellate courts. Plaintiffs were more likely to have positive outcomes if:

They prevailed at the original trial They alleged discriminatory demotion on their job, rather than discrimination in hiring.

They had specific types of impairments. Those who had diabetes or who had impairments of their arms or legs, such as arthritis or amputated limbs, had more favorable outcomes compared to those with other kinds of impairment, such as back problems. The Equal Employment Opportunity Commission filed an amicus (friend of the court) brief on behalf of the plaintiff.

The best predictor, however, appeared to be in which circuit court the lawsuit was heard. The Fourth Circuit Court - which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia - was the most hostile to those filing suit under the ADA. Plaintiffs have only a 2.8 percent chance of prevailing in a typical ADA case before the Fourth Circuit, the study revealed.

"Unfortunately, my data can give little help to plaintiffs' lawyers in trying to predict what types of cases to appeal because the circuit in which they are litigating is rarely a factor within their control," Colker said.

In a related analysis, Colker said the adverse results with the ADA may have hurt the enforcement of another, pre-existing statute designed to help people with disabilities: Section 504 of the Rehabilitation Act. This statute prohibits discrimination on the basis of disability within entities that receive federal funds. The language of Section 504 was used as a blueprint for enacting the ADA.

However, the passage of the ADA has resulted in the "narrowing of rights that had been understood to exist under Section 504," she said.

In appellate court cases decided before 1994 -- shortly after the ADA was enacted - defendants accused of employment-related discrimination under Section 504 were successful in court 64.9 percent of the time. In 1994 and after, the success rate of defendants jumped significantly, to 87.5 percent.

"The popular media has often portrayed the Americans with Disabilities Act as a windfall statute for plaintiffs," Colker said. "This research suggests those media portrayals are extremely inaccurate."
Parts of this research have been published recently in the Ohio State Law Journal. The study was supported by a grant from the USX Foundation.

Contact: Ruth Colker, (614) 292-0900; Colker.2@osu.edu
Written by Jeff Grabmeier, (614) 292-8457; Grabmeier.1@osu.edu

Ohio State University

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