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Baby Boomers Are Turning Grey
The Americans with Disabilities Act and Aging Americans
In the view of popular culture fixated on eternal youth, one finds that aging often brings with it a number of benefits: senior citizen discounts, early bird dinners, and grandchildren, to name but a few. However, there is another benefit overlooked by many as Americans continue to challenge traditional notions about when one retires or leaves the workforce: the Americans with Disabilities Act (ADA) offers employment protections to millions of citizens who acquire disabilities through the normal process of aging.

Disabilities are typically thought of as physical, cognitive, psychiatric, or sensory impairments that an individual might have from birth, such as deafness or cerebral palsy. They also may be acquired as the result of an injury, such as a spinal cord injury from an automobile accident or a traumatic brain injury sustained by a soldier. However, people also can "age into disability." Recognizing that many people will develop disabilities at some future point in their lives has led to the acronym TAB—temporarily able-bodied—a term used by some individuals with existing disabilities.

As the American population grows older every year and more individuals join the ranks of senior citizens, more Americans inevitably will have disabilities. As such, there will be more Americans covered under the ADA, with important implications for employment and public accommodations. In this article, we highlight some examples of how the ADA has impacted the lives of older Americans.

In 2006, the leading edge of the Baby Boom generation turned 60. According to the American Association of Retired Persons (AARP), an additional four million Americans turn 50 each year. As people age, their chances of developing age-related physical changes that may affect hearing, vision, cognition, and mobility also increase.

At the same time, more and more boomers are choosing to remain in the workforce beyond the once-typical retirement age of 65. A recent survey by AARP shows that seven in 10 Americans plan to continue working past the age of 65, and nearly half expect to work well into their 70s and 80s.

Title I of the ADA, which covers employment, requires that reasonable accommodations be made available to qualified senior workers with disabilities to allow them to remain employed. According to some studies, most of these accommodations are relatively inexpensive—and make good sense. Data collected suggest that more than half of all accommodations cost less than $600. Further, Job Accommodations Network (JAN) statistics show that most employers report financial benefits from providing accommodations. These benefits are due to savings from retention of current employees, reduction in the cost of insurance, and an increase in worker productivity. Whether an adapted keyboard, magnifying monitor screen, or amplified telephone headset, workplace accommodations mandated under the ADA ensure that valuable, experienced, and qualified workers can remain on the job despite acquiring a disability or two . . . or even three, as they age.

What does this convergence of Americans working beyond age 65 and this same population aging into disability mean for business lawyers? For starters, it means that the employment provisions of the ADA will apply to a growing segment of the population, as well as an ever-increasing number of Americans as a whole. One of the key protections provided under Title I of the ADA is the right of qualified individuals with disabilities to reasonable accommodations that will allow them to perform the essential functions of their jobs.

A reasonable accommodation may be a change to the work environment or job tasks that enable a qualified employee with a disability to perform the "essential functions" of the position. An accommodation that constitutes an undue hardship on the operation of a business is not considered reasonable. Undue hardship refers not only to financial difficulty, but to accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular accommodation would cause undue hardship. Furthermore, an employer makes the final decision about which of several possible accommodations is chosen, so long as the accommodation provided is equally effective as the one preferred by the employee.

Reassignment to a vacant position can be a reasonable accommodation. Requirements to prove that a reassignment accommodation is reasonable include (1) the requested reassignment position is vacant and available, (2) the reassignment does not conflict with any "nondiscriminatory" company policy, and (3) the employee is qualified for the reassignment position. However, according to the U.S. Supreme Court in US Airways, Inc. v. Barnett, a reassignment that would violate a seniority system likely warrants a ruling for the employer.

In EEOC v. Stowe-Pharr Mills, Inc., the Fourth Circuit Court of Appeals ruled in favor of an employee with osteoarthritis who was medically constrained from walking on concrete. In that case, the employer, a textile manufacturer, placed the employee on involuntary leave instead of reassigning her to a location with softer floors where she could have performed the essential functions of her job. Similarly, in Kiphart v. Saturn Corp., the Sixth Circuit Court of Appeals reversed a lower court's ruling against an employee who was diagnosed with tendonitis and medically restricted from repetitive use of his hands. In that case, the employer, an automobile manufacturer, placed the employee on involuntary disability leave and made him wait over 1,300 days until a position that reasonably accommodated his condition was found. The court noted that in previous cases, employers had reasonably accommodated employees through job searches lasting as little as 37 days.

However, in Foreman v. Babcock & Wilcox Co., the Fifth Circuit Court of Appeals ruled in favor of a welding and steel fabrication company that did not reassign an employee who, due to his internal pacemaker, was medically restricted from working near welding equipment. In that case, if the employee were granted the reassignment positions he requested, the seniority provisions of a company policy would be violated because the employee lacked the requisite seniority to acquire those positions. Also, the employee did not prove that any of the requested positions were available. Additionally, in Duckett v. Dunlop Tire Corp., a salaried supervisor experienced "dangerously elevated" high blood pressure and requested that he not work as a salaried supervisor, but as a salaried employee in the bargaining unit. The company, however, had a policy against "rolling back" salaried employees into production positions within the bargaining unit. The Eleventh Circuit Court of Appeals held that because the employee's reassignment request to the bargaining unit conflicted with company policy, it was not a reasonable accommodation.
The DBTAC: Southeast ADA Center is a valuable source for information to help you reach out and inform baby boomers about their potential future. Located in Atlanta, the Southeast ADA Center has helped others understand their rights and responsibilities under the Americans with Disabilities Act for 19 years. For more assistance, contact their toll free number (800-949-4232 v/tty) or visit www.sedbtac.org.
Another type of reasonable accommodation includes allowing a qualified employee to telecommute from his or her home. Despite an increasing number of teleworkers, courts generally have been unwilling to recognize telework as a reasonable accommodation for employees with disabilities. Some courts have concluded that a person's physical presence in the workplace is an essential job function, thus denying telework as a reasonable accommodation.

Courts consider many factors when deciding whether a function is "essential," including how many employees hold the position, what specialization or expertise is required, and whether the position exists solely to fulfill the function. In Knutson v. Medtronic, Inc., the court agreed with defendant employer that the employee plaintiff was not an otherwise qualified individual with a disability because she could not meet attendance requirements. Similarly, in Phillips v. Farmers Insurance Exchange, the court found that one of the essential functions of the job was driving; thus, telecommuting would not allow the employee to perform essential job functions. The decisions in Knutson and Phillips suggest the reluctance of courts to recognize telework as a reasonable accommodation for people with disabilities.

In Cripe v. Mineta, the employer defendant fired the employee plaintiff, despite conceding the worker was fully capable of performing the essential functions of the job through telework. The court held there was a genuine issue of material fact about whether office work was an essential function of the plaintiff's position. In Woodruff v. U.S. Department of Transportation, the court found it not unreasonable to determine telework as a reasonable accommodation for an employee, considering its past success as an accommodation in the agency. The decisions in Cripe and Woodruff may indicate a trend in some circuits toward recognizing telework as a reasonable accommodation for those employees whose job functions are amenable to telework.

Public Accommodations
The ADA impacts the lives of aging Americans in other ways besides employment. Title II covers state and local government services, and Title III covers private establishments (called places of public accommodation) that provide goods and services to the general public. Titles II and III mandate access to programs, goods, and services by people with disabilities. Access has been realized most visibly in the form of curb cuts on sidewalks, sloping entrances to buildings, and clearly marked and striped accessible parking spaces, as well as captions for news broadcasts and other shows. But particularly relevant for individuals aging into disability is the fact that accessibility of public accommodations involves more than simple building access. It also includes effective communication in areas such as telecommunications, materials available in alternate formats, and even web access. One example is the ready availability of assistive listening devices in movie theaters or in public forums to increase civic access. Even sports stadiums are beginning to provide open captioning on the scoreboard as an accommodation for spectators with hearing impairments—and a benefit for anyone who can't hear announcements during the game.

Aside from the ADA mandates, it is wise to consider the market power of older Americans, which only reinforces the incentive of business owners to ensure accommodations for these potential customers. This large and growing market of people with disabilities has billions in discretionary spending. AARP notes that Americans age 50 and older spent nearly $400 billion in 2003.

Cases involving access to public accommodations by people with disabilities have just as much bearing on aging individuals. For example, in the 2007 case of Fox v. Morris Jupiter Associates, a Jupiter, Florida, resident, Allen Fox, brought suit against the owners of the Concourse Village Plaza shopping center. Mr. Fox, a wheelchair user, was unable to maneuver throughout the mall. Nor could he enter stores such as Radio Shack or Cingular Wireless without special assistance. Mr. Fox noted a number of ADA violations, including an insufficient number of parking spots for individuals with disabilities, limited wheelchair accessible paths from the parking lot to the shopping facility, inaccessible restrooms, and other barriers that prevented entry into individual shops. In particular, Mr. Fox could not enter the Radio Shack store by himself because of his inability to hold the shop's door open while attempting to cross the raised threshold. The barriers to entry deterred him from making future visits. A federal district court upheld Mr. Fox's lawsuit on the grounds that his allegations were credible and that he faced the real threat of injury in attempting to access the shopping center's shops. Regarding the actual merits of the ADA claim, the court found that because of his desire and intent to return to the shopping mall, Mr. Fox likely would suffer a future harm in violation of the ADA if the barriers were not removed. On these grounds, the court ruled in favor of Mr. Fox.

This case's relevance for business owners, especially retailers, should be apparent where aging individuals are concerned. Many older Americans qualify for and use parking spots for people with disabilities, and many of them may require alternatives to stairs and other routes, especially if they use canes, walkers, wheelchairs, or other mobility aids. Title III accessibility applies just as much to senior citizens with limited mobility as to individuals more narrowly defined as having a disability. But more important than merely following the letter of the law is cultivating a deeper appreciation for accessibility's importance. People who cannot access a mall or shop cannot spend their money there, potentially causing a business owner to lose customers. The purchasing power of aging Americans, combined with the threat of losing it because of inaccessible facilities, makes their accommodation a doubly important issue.

Also consider the highly publicized case of National Federation of the Blind v. Target Corporation, a 2006 lawsuit brought in the state of California. In this case, the National Federation of the Blind (NFB) brought suit against retailer Target, contending that the company's website was inaccessible to online shoppers with vision impairments. Many of the website's images lacked alternate text descriptions, while the website itself lacked image maps. In addition, certain features of the website, such as the checkout page where customers confirmed their purchases and paid, relied heavily on the visual aspects of the website.

Originally, Target requested that the case be dismissed on the grounds that the ADA only applied to physical stores and these locations were accessible to customers with disabilities. However, in an interim decision early in the case, the trial judge ruled that retailers could be sued if their websites were inaccessible to the public. The ADA, she noted, did not apply merely to brick-and-mortar stores but to "goods, services, facilities or privileges," which included websites. The ruling was important as it further established the ADA's position in an increasingly virtual world.

The lawsuit has resulted in an agreement to establish a settlement fund and, more importantly, revisions to the Target.com website and company policies. While the changes would directly affect people who are blind, the accessibility of online retailers is also relevant for individuals aging into disability who may increasingly have to deal with vision impairments. Moreover, the case demonstrates that retailer accommodations are not limited solely to physical storefronts, but also to the world of e-commerce. Again, aging Americans cannot participate in the marketplace, both physical and electronic, if they are denied access to it. They lose as consumers, and retailers lose them as customers, when accessibility is not considered.

The ADA is relevant more than ever for aging Americans. As this population remains part of the nation's workforce past the traditional age of retirement, the law's employment provisions will be increasingly important to workers aging into disability. At the same time, the purchasing power of this segment of society cannot be denied. The ADA ensures that people with disabilities have access to public accommodations, just as it guarantees that seniors can continue to shop in brick-and-mortar stores and online. But the ADA serves store owners indirectly as well, as its mandates ensure that customers will be able to spend their money.
  • Cripe v. Mineta, No. Civ. A. 03-2206, 2006 WL 1805728 (D.D.C. June 29, 2006).

  • Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (11th Cir. 1997).

  • EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000).

  • Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997).

  • Fox v. Morris Jupiter Associates, No. 05-80689-CIV, 2007 WL 2819522 (S.D. Fla. Sept. 25, 2007).

  • Kiphart v. Saturn Corp., 251 F.3d 573 (6th Cir. 2001).

  • Knutson v. Medtronic, Inc., No. Civ. No. 05-180, 2006 WL 1851142 (D. Minn. July 3, 2006).

  • National Federation of the Blind v. Target Corp., No. C 06-01802 MHP, 2007 WL 2846462 (N.D. Cal. Oct. 2, 2007).

  • Phillips v. Farmers Insurance Exchange, No. Civ. 3:04-CV-1113N, 2006 WL 888095 (N.D. Tex. Feb. 9, 2006).

  • US Airways, Inc. v. Barnett, 535 U.S. 391 (2002).

  • Woodruff v. U.S. Department of Transportation, 482 F.3d 521 (D.C. Cir. 2007).

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Moon is a research scientist at the Center for Advanced Communications Policy, Georgia Institute of Technology. His e-mail is nathan.moon@cacp.gatech.edu. Kaplan is co-principal investigator and project director and Weiss is director of Materials Development and Dissemination at DBTAC: Southeast ADA Center in Atlanta. Their respective e-mails are sakaplan@law.syr.edu and szweiss@law.syr.edu.

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