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The “Trials” and Tribulations of Mentally Impaired Plaintiffs E-mail
Fall 2011 Issue
Written by William B. Maguire   

In this article I will demonstrate that people with mental impairments chronically and disproportionately are impoverished and unemployed, as compared to their non-mentally impaired counterparts.

I will propose possible reasons why this is the case. Furthermore, I will argue that all too often plaintiffs with mental impairments bringing claims under Title I of the Americans with Disabilities Act (ADA) are denied standing as “disabled” simply because they have been able to overcome some aspects of their impairments.

 

Next I will examine how Congress and the Equal Employment Opportunity Commission (EEOC) have recently expanded the protections for ADA plaintiffs. Finally, I will argue that two illustrative cases might have turned out differently had they been decided after the enactment of these recent expansions.

We begin by previewing an illustrative case that will be analyzed more fully infra1: Charles Irvin Littleton, Jr. was a 29-year-old man who had been diagnosed with “mental retardation” (now referred to as an “intellectual disability”) as a young child.2 He received social security benefits and lived at home with his mother near Leeds, Alabama.3 After graduating from high school with a special education certificate and attending some technical college courses, he worked at various jobs that state agencies and public service organizations had been able to find for him.4 Littleton was eventually referred to an employment coordinator with the Alabama Independent Living Center.5 The coordinator helped him apply for a job as a cart-push associate with a Wal-Mart Store in Leeds.6 Wal-Mart invited Littleton to an interview for the position and things looked promising for Littleton to obtain employment despite his mental impairment.7

Wal-Mart’s personnel manager initially said that Littleton’s employment coordinator could accompany Littleton during the interview.8 However, when the time for the actual interview arrived, Wal-Mart did not allow the employment coordinator to accompany Littleton.9 The interview did not go well and he was not offered the position.10

Littleton sued under Title I of the Americans with Disabilities Act (ADA), alleging he was not offered the position because of his mental impairment.11 The federal district court granted summary judgment in favor of Wal-Mart, stating that Littleton did not make a prima facie showing that he was “disabled” within the meaning of the statute.12 Littleton appealed to the Eleventh Circuit, which affirmed the district court’s grant of Wal-Mart’s motion for summary judgment.13 Among other reasons, the Eleventh Circuit seemed to draw something of a negative inference against Littleton simply because he had been able to largely overcome many aspects of his disability—namely, the fact that he drove a car, in the court’s mind, meant that he was not “disabled.”14

This case is just one example of the endemic discrimination suffered by people with mental impairments in the employment arena. As opposed to many physical impairments, which are often more easily identified, less stigmatized, and more easily accommodated, mental impairments are less easy to identify, more stigmatized, and not easily accommodated. Furthermore, many people with mental impairments are able to partly overcome their impairments and thus, courts have often drawn a negative inference from this to find that such mentally impaired plaintiffs do not meet the legal definition of “disabled” under the ADA. This article will attempt to delineate the contours of mental impairment law under the ADA and demonstrate some of the procedural, substantive, legal, and practical hurdles that people with mental impairments must clear, both in daily life and in court, to prevail on a discrimination claim under the ADA. Finally, it will predict how certain pertinent cases would be decided today under the ADA Amendments Act of 2008 (ADAAA).

Background

This article focuses on ADA Title I plaintiffs with mental impairments because the plight of these plaintiffs is less universally understood, more stigmatized, and less easily accommodated than that of plaintiffs with physical impairments.

A. Tribulations: Employment and Poverty Among Persons with Mental Impairments

Statistics and research suggest that plaintiffs with mental impairments are disproportionately and chronically impoverished and unemployed, as compared to their non-mentally-impaired counterparts. A vicious cycle oscillates between unemployment and poverty, impacting people with mental impairments particularly severely.15 According to the EEOC, “[a]n estimated 2.5 million people in the United States have an intellectual disability.”16 The EEOC also estimates that only “31% of people with intellectual disabilities are employed, although many more want to work.”17 People with severe mental impairments such as schizophrenia and bipolar disease are typically unemployed at a rate of eighty to ninety percent.18

As a result, the mentally impaired are disproportionately poor.19 In fact, between one third and one half of people with mental impairments live at or near the federally defined poverty line.20 By comparison, only 14 percent of the general population is at or below this line.21 Additionally, 43 percent of people with mental impairments who hold college degrees do not work, compared to only 13 percent of college graduates without mental impairments.22

These data suggest that employers are in fact discriminating against people with mental impairments, even though they may be qualified for the position and able to perform the essential job functions. Some may argue that these employment statistics can be explained by the mere fact that the mentally impaired are simply unable to perform the essential job functions. Statistics exist that might support this argument at first blush.23 For example, people diagnosed with depression generally have higher health-related “lost productivity time” (hours per week absent plus hour-equivalents per week of reduced performance) than their peers without depression.24According to Amir Tal and his co-authors, “[s]tudies have identified verbal memory, sustained attention, and executive functions as specific areas of cognitive functioning sometimes impaired in persons with serious mental illness.”25

Instead of accepting the premise that mentally impaired employees are simply ineffective as compared to their non-impaired counterparts, Tal and his co-authors take a different view. They argue that a “combination of the disability itself and external social factors such as the stigma associated with mental illness and its translation into discriminatory behavior by employers” more accurately explains the reasons for the discouraging statistics regarding the correlation between the mentally impaired vis-à-vis their employment and poverty numbers.26

People with mental impairments, as compared to people with physical impairments, are also discriminated against in insurance coverage. For example, long-term disability insurance policies generally cap benefits for people with mental impairments but not for people with physical impairments.27 This is so despite the passage of the Mental Health Parity Act, which applies only to health insurance providers.28 Thus, despite some progress, the mentally impaired remain on uneven footing with the physically impaired in regard to disability insurance, poverty, and unemployment metrics.

B. “Trials”: Mental Impairments and The ADA

Title I of the Americans with Disabilities Act (ADA) prohibits any covered entity from discriminating “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, and other terms, conditions, and privileges of employment.”29 The ADA was passed in 1990 because Congress found that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion . . . and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.”30 In fact, the ADA states as its purpose, inter alia, “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”31

In the first two decades of the ADA’s existence, employers have found loopholes in its statutory definitions and the case law interpreting those definitions to avoid liability.32 Also during this period, the U.S. Supreme Court has been reluctant to let ADA plaintiffs clear certain procedural hurdles and actually have a chance to prove their cases on the merits.33

Defendants have used these loopholes to avoid liability for blatant acts of discrimination. For example, in April of this year, the EEOC filed suit against an employer on behalf of 31 mentally impaired workers alleging, inter alia, that the Henry’s Turkey Service subjected the men to over 20 years of abuse, discrimination, and unpaid wages.34 According to the complaint, the defendant denied workers their lawful wages, paying $65 a month for full-time work, verbally and physically harassed them, restricted their freedom of movement, required them to live in deplorable living conditions, and failed to provide adequate medical care when needed.35

i. Intellectual Disability and the ADA

In Littleton v. Wal-Mart Stores, Inc., introduced supra,36 the 11th Circuit affirmed the trial court’s grant of the defendant’s motion for summary judgment in an employment discrimination case where the plaintiff claimed the defendant refused to hire him as a cart-push associate because of his intellectual disability (referred to in the case as “mental retardation,” the condition’s former name).37 The court reasoned that the plaintiff did not make a prima facie showing that he was covered by Title I of the ADA.38

In order to make the prima facie showing under the ADA, a plaintiff must prove: (1) that he has a disability; (2) that he is a qualified individual; and (3) that he was discriminated against because of his disability.39 As the Eleventh Circuit explained, if plaintiff establishes a prima facie case, “a presumption of discrimination arises and the burden shifts to [defendant] to proffer a legitimate, non-discriminatory reason for the employment action. [internal citation omitted] If [defendant] meets its burden, then plaintiff must show that the proffered reason is a pretext for discrimination.”40

However, Littleton did not even get a chance to engage in the second two steps of this process. The trial court and the Eleventh Circuit both said that he was not even “disabled” within the meaning of the ADA.41 To meet the definition of “disabled” set out in the ADA, the plaintiff must show that he or she has a physical or mental impairment that substantially limits a major life activity, that he or she has a record of such an impairment, or that he or she is regarded as having such an impairment.42Littleton alleged that he was disabled under the first prong (“substantially limited in a major life activity”), or in the alternative, under the third prong (“regarded as”).43

As to the first prong, the court held that he could not show that he was substantially limited in a major life activity.44 Littleton, who was intellectually disabled, did receive a high school certificate in special education and even attended a technical college.45 He was able to drive a car and read too.46 The court drew a negative inference against Littleton primarily based on the fact that he drove a car.47 The court afforded significant weight to the defendant’s argument in this regard: “As Wal-Mart contends, moreover, the fact that Littleton drives a car might be determined to be inconsistent with his assertion that his abilities to think and learn are substantially limited.”48

The court conceded that Littleton’s condition caused him to suffer “certain limitations.”49 However, these admitted limitations were not “substantial limits” on major life activities in the court’s view.50 Instead the court went on to say that it is “unclear whether thinking, communicating, and social interaction are ‘major life activities’ under the ADA.”51 This allowed the three federal appellate judges to hold that Littleton, an intellectually disabled person, did not prove that he was substantially limited in a major life activity.52 They found this despite the fact that mental retardation qualifies as a “mental impairment.”53

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for promulgating regulations implementing the ADA, offers guidance on the issue, stating that a person with a mental impairment is considered intellectually disabled when:
(1) the person’s intellectual functioning level (IQ) is below 70-75; (2) the person has significant limitations in adaptive skill areas as expressed in conceptual, social, and practical adaptive skills; and (3) the disability originated before the age of 18.[internal citation omitted] “Adaptive skill areas” refers to basic skills needed for everyday life. They include communication, self-care, home living, social skills, leisure, health and safety, self-direction, functional academics (reading, writing, basic math), and work.54

ii. Autism Spectrum Disorders and the ADA

Another type of mental impairment that has caused ADA Title I plaintiffs difficulty in proving “disability” is Autism Spectrum Disorder (ASD). In 2009, one out of every 110 children born in the U.S., and one out of every 70 boys, is diagnosed with ASD.55 People with ASD represent a unique and rapidly increasing subset of people with mental impairments under the ADA.56 ASD is by definition a spectrum, and hence, varying degrees of severity present varying challenges in a work setting.57

On the one hand, people with ASD are often extremely “high-functioning” and can integrate into the workplace “seamlessly.”58 However, “[c]hanneling employees with high-functioning autism into high-tech enterprises, emphasizing savantism and mathematical wizardry, does pose ethical and legal dilemmas.”59

On the other hand are people on the opposite end of the spectrum. Those with severe ASD symptoms sometimes are unable to even talk, interact effectively, or comprehend emotions.60 Incorporating these people into the workplace and keeping them there can be a “daunting” task.61Admittedly, the case law surrounding ADA claims brought by employees with ASD is “sparse.”62 However, as more and more people diagnosed with ASD reach employment age, this number is sure to rise.

As discussed supra, in order to make a prima facie showing on a Title I ADA claim, the aggrieved plaintiff must prove that he or she is disabled, has a record of disability, or is regarded as having a disability.63 In order to prove that he is disabled, the plaintiff must also show that he or she is substantially limited in a major life activity.64 In the case of ASD, it had been unclear whether “social interaction” was a major life activity.65 While “social interaction” is not listed among the “major life activities” in the ADAAA, several cases have found it to be so.66

Prior to the ADAAA, discussed infra,67 “communicating” and “speaking” were not included as “major life activities,” under the EEOC’s regulations. Many people with ASD are substantially limited in both communicating and speaking; but since people along the spectrum have such varying symptoms and varying degrees of symptoms, whether the plaintiff is “disabled” under the ADA will likely depend on a factually intensive, case-by-case analysis.

Like Mr. Littleton, supra, who was penalized by the court in his ADA claim by virtue of his high level of functioning as a person with an intellectual disability, Kathleen Comber was similarly penalized by the court in her ADA claim.68 The court noted that “[w]hen she was hired, she told her supervisors that she had multiple medical conditions affecting her ability to learn, read, see, interact with others, and breathe.”69 Comber was diagnosed with autism while she was employed by the defendant as an aide to mentally ill patients at a rehabilitation facility.70 Comber then told her employer of her diagnosis.71

One day Comber suffered an episode after she refused to drive a van that had a particularly strong odor.72 She believed that the odor from a deodorizer would cause her to have an asthma attack.73 Her refusal to be confined in the van with an offensive odor led to a confrontation with her supervisor, with whom she had had a contentious relationship for some time.74 Eventually, after her supervisor refused to alter her duties for that day, Comber lost her cool following the confrontation and kicked a chair out of a room into a hallway.75 The next day her boss fired her for this outburst.76 Comber filed suit, alleging that she was fired in violation of Title I of the ADA.77

The court found that Comber could not prove she was “disabled” under the ADA because she was not substantially limited in the major life activities of breathing and working.78 As to working, the court assumed, without deciding (remember this is pre-ADAAA) that working was a major life activity.79 However, the court found that Comber failed to establish that she was “substantially limited in her ability to perform any of a broad class of jobs,” which was the EEOC standard at the time.80 The court went so far as to characterize Comber’s autism, as it related to her employer, as a mere “personality conflict.”81

Again, just as the court did in Littleton, the court here also alluded to the fact that it was discounting her purported disability because she had been successful in combating it in the past.82 Despite finding that Comber “submitted evidence to show that autism directly affected her ability to form and maintain ordinary social relationships,” the court stated that “[n]evertheless, Comber has worked successfully, despite her claimed conditions, for years.”83 This is another example of federal courts drawing negative inferences against a Title I ADA plaintiff simply because she has partially overcome her disability.

C. Passage of the ADAAA and new EEOC regulations

In 2008 Congress passed the ADA Amendments Act of 2008 (ADAAA) in order to clarify and re-affirm Congress’ intent that persons with disabilities be able to bring claims on the merits.84 Among the purposes of the ADA Amendments Act of 2008 were “. . . reinstating a broad scope of protection to be available under the ADA . . . and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”85

To this end the ADAAA expanded the list of major life activities to include, but not to be limited to: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”86 New EEOC regulations have specifically included “interacting with others” as a major life activity as well.87

The EEOC previously took the view that “substantially limited” in the major life activity of “working” should be interpreted to mean that the person is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”88 However, the EEOC just released new guidance, specifically stating that “‘substantially limits’ is a lower threshold than ‘prevents’ or ‘severely’ or ‘significantly restricts’. . .”89

Another purpose of the ADAAA was to overrule the Supreme Court’s holding in Sutton v. United Airlines 527 U.S., 471 (1999), which held that the ameliorative effects of mitigating measures were to be taken into account when deciding if a plaintiff was substantially limited in a major life activity.90 For example a person with diabetes was not to be considered disabled if the person took insulin and monitored his or her blood sugar. However, the ADAAA specifically mentions “learned behavioral or adaptive neurological modifications” as examples of such ameliorative or mitigating measures not to be taken into account when a court assesses whether someone meets the definition of disability.91 It is clear now that the proper standard against which to measure a plaintiff claiming to be disabled is “. . . the average, functioning human with all original parts intact, and no additions or modifications.”92 This means that more plaintiffs will be able to proceed to the merits of their cases.

Argument

In this section I will argue that neither of the two previously proffered explanations for chronic and disproportionate unemployment and poverty among the mentally impaired fully explains the disparity. I will then propose a middle ground explanation between the two theories. Then I will argue that the definition of disability was previously too narrow, but that it is broadening under the ADAAA and EEOC guidelines. Finally, I will describe how the two above case illustrations could have turned out differently had they been decided after these recent changes.

A. Why are people with mental impairments chronically and disproportionately poor and unemployed?

The previous section noted some staggering statistics related to poverty and unemployment among people with mental disabilities as compared to the population at large.93 It also posited two explanations for this disparity: one argued that the mentally impaired were simply unable to perform essential job functions,94 while the other asserted that the social stigma attached to mental impairments led to discriminatory behavior on the part of the employers.95 Most likely, the real answer lies somewhere between these two extremes.

It is not likely that the first extreme is totally accurate. Mental impairments encompass a myriad of symptoms and levels of severity. Therefore, it is almost impossible to say that “most” or a “majority” or “all” mentally impaired people are one thing or another. It is fair to say, however, that no one wants to live in poverty if it can be avoided. It is likely that most people want to work, if they can, to give their life purpose. Therefore, if people with mental impairments could find work with an employer willing to engage in an iterative process, it stands to reason that they probably would.

However, the premise that mentally impaired people are incapable of performing the essential job functions is probably rooted in some modicum of truth. It is not hard to imagine that people with severe or chronic mental impairments could find regular job attendance difficult, to give one common example. As regular attendance is generally considered an essential function of any job, for which a reasonable accommodation is not required under the ADA, people who have to miss extensive work time because of debilitating mental impairments can, as a result, fail to meet the essential job functions.

The contrary argument is that the employers simply discriminate against the mentally impaired because of the social stigma surrounding them. This argument implies that something nefarious goes on within the mind of the employer. It could be that the employer had a bad experience in the past with an employee with depression. It could also be that the employer truly despises people with ASD or some other impairment. Or it could be that the employer thinks it will be bad for business if he employs an intellectually disabled person.

However, the premise that employers are simply prejudiced against people with mental impairments ignores certain economic and legal realities. First, there are often economic incentives for hiring disabled people, both direct and indirect. Directly, federal grants exist for hiring such people. Indirectly, such hiring often generates goodwill for the business, because the business is seen as a good, inclusive corporate citizen. Second, in today’s overly-litigious society, employers are likely to be aware of the potential legal consequences of taking adverse employment action against a class of people like the mentally impaired (or certainly their lawyers are aware of this).

B. Is the mentally impaired plaintiff “disabled” within the meaning of the ADA?

It defies logic and conventional wisdom to state that thinking, communicating, and social interaction are not major life activities. In fact, they are things human beings spend a significant amount of time on everyday. However, in Littleton, supra, the Eleventh Circuit decided that the “mentally retarded” (now referred to as “intellectually disabled”) plaintiff was not disabled under the ADA in part because he was fairly independent, learned, and capable.96 Of course, a person’s skills and impairments, or lack thereof, do not exist in a vacuum. Determining that an otherwise disabled person is not disabled because he or she has been able to overcome certain aspects of his or her disability flies in the face of the spirit of the ADA. Instead, the totality of the circumstances should be examined. A medical diagnosis of mental retardation should be sufficient to meet the “disabled” threshold prong of the ADA. Mental impairments, along with their accompanying social stigma, should suffice to define a plaintiff as “disabled,” either under the first (“substantially limited in a major life activity”), second (“having a record of a disability”), or third (“regarded as”) prong of the threshold test. This will at least allow the aggrieved plaintiff the opportunity to prove his or her discrimination case on the merits. The ADAAA and new EEOC regulations support this position.

Under EEOC regulations mentioned supra, a plaintiff is no longer substantially limited in the major life activity of working if, and only if, he is significantly restricted from a broad range of jobs compared to the average person having comparable training, skills, and abilities.97 In contrast, new EEOC regulations just promulgated assert that a plaintiff can now be considered “substantially limited” under a lower threshold showing.98

If it were decided today, the plaintiff in Littleton, supra, 99 could use this line of reasoning to argue that his intellectual disability substantially limits his working vis-à-vis non-intellectually disabled people who have comparable skills such as driving, reading, and comprehending, and comparable training such as a high school special education certificate and some technical college. It is nonsensical to infer from this regulation that Littleton has to prove himself substantially limited vis-à-vis other intellectually disabled people. As the ADAAA has made clear, average people are the relevant comparators and thus the Eleventh Circuit erred in its evaluation of Littleton’s relative abilities.

Littleton was decided in 2007. Cases like Littleton are likely the type that led to creation of the ADA Amendments Act of 2008 (ADAAA). Another helpful line of argument that Littleton could have offered under the ADAAA is that “working” is now considered a “major life activity.”100 Among the purposes of the ADAAA was to clarify and re-affirm Congress’s intent to cover persons with impairments and thus afford them the opportunity to prove their cases on the merits.101 Unfortunately, prior to the ADAAA, far too often plaintiffs lost on threshold, standing grounds, before the merits were even reached.

As discussed supra, often people with mental impairments such as Autism Spectrum Disorder (ASD) are pigeonholed into types of jobs that supervisors think they are “suited” for based on gross stereotypes of everyone along the spectrum.102 It is nothing short of exploitative to put people with ASD, or any mental impairment for that matter, into “boxes” that employers think fit them simply by virtue of their mental impairment(s). People with ASD should be given the opportunity to thrive and grow in any position for which they can perform the essential job functions with or without reasonable accommodation, not just those that non-ASD people deem suitable for them, like accountancy or computer programming, to name two typical examples.

Moreover, people with ASD who bring ADA claims may not be able to meet the standing requirements in that they cannot show that they are “disabled” under any of the three prongs. However, the ADAAA’s expanded definition of major life activity should afford such people a better chance of proving that they are substantially limited in major life activities of either “caring for oneself,” “speaking,” “learning” “reading,” “concentrating,” “thinking,” “communicating,” or “working.” Had the Comber case taken place after the enactment of the ADAAA, it is possible that Comber could have proven she was “disabled” as a result of her ASD. Her ability to learn was affected. As learning is now considered a major life activity, she likely could have proven “disability.” She also had problems “interacting with others,” which as the new EEOC guidelines state, is a major life activity.103

Like the plaintiff in Littleton,104 Comber was essentially punished by the court for the fact that she was able to overcome many of the detrimental effects of her condition. The court drew a negative inference against her because for the vast majority of her employment she was able to keep her symptoms in check.105 However, if this case were decided today, since the ADAAA states that mitigating factors are not to be taken into account when assessing whether a plaintiff is “disabled” and expands the definitions of major life activity, the court might reach a different conclusion.

Conclusion

In the past, plaintiffs with mental impairments bringing claims under the ADA have been prematurely dismissed for a lack of standing. Courts have found all too often that plaintiffs like Charles Littleton and Kathleen Comber, despite suffering from intellectual disability and autism spectrum disorder respectively, were not “disabled” within the meaning of the statute, because they were not substantially limited in major life activities. Courts have drawn negative inferences against plaintiffs like Littleton and Comber because of these plaintiffs’ past success in overcoming their impairments.

Today, the ADAAA and new EEOC regulations can help some of these kinds of plaintiffs clear the threshold standing hurdle. Congress and the EEOC now forbid courts to take into account ameliorative or mitigating measures when assessing whether a plaintiff is “disabled.” That means that even though Mr. Littleton was able to drive a car, he should still be considered “disabled” by virtue of his lesser ability to learn compared to a person without an intellectual disability (formerly known as “mental retardation”).

Still, it is clear that people with mental impairments have practical obstacles to overcome in addition to their legal ones under the ADA. People with mental impairments are chronically and disproportionately poor and unemployed, compared to their non-mentally impaired counterparts. Some ascribe this disparity to the employees’ own inability to perform the essential job functions, while others contend it is social stigma and discrimination by the employer. Of course, no one explanation can totally account for this disparity. In order to break this vicious cycle of poverty and joblessness, employers should engage in an iterative process with mentally impaired applicants/employees. At the same time, mentally impaired applicants and/or employees must make every possible effort to overcome their disabilities and demonstrate that they can perform the essential job functions.

—The author wishes to thank his classmates, family, friends, girlfriend Tracey Nelsen, Professor Larson, The Honorable Dale B. Lindman, Nicole Bonine, Esq., and his former co-workers at Halunen & Associates, who fight for the rights of disabled employees every day.

NOTES
1. See infra notes 38-55 and accompanying text (detailing the case of Littleton v. Wal-Mart Stores, Inc., 231 Fed. Appx. 874 (12th Cir. 2007).
2. See Littleton v. Wal-Mart Stores, Inc., 231 Fed. Appx. 874, 875 (11th Cir. 2007).
3. See id.
4. See id.
5. See id.
6. See id.
7. See Littleton, 231 Fed. Appx. at 875.
8. See id.
9. See id.
10. See id. The Wal-Mart employee testified that Littleton “displayed poor interpersonal skills and a lack of enthusiasm about the job.” Id.
11. See generally id.
12. See Littleton, 231 Fed. Appx. at 875.
13. See id.
14. See id. at 876.
15. See generally Amir Tal, et al., “ Using Situation Testing to Document Employment Discrimination Against Persons with Psychiatric Disabilities,” 35.3 Employee Relations L.J. 82 (2009), available online by entering “employee relations law journal amir tal” into Google search engine (arguing that “in light of the role of job-holding in the well-being, functioning, and recovery of persons with psychiatric disabilities, the prevalence of unemployment in this population is disconcerting.”)
16. See supra “EEOC” at note 55 (internal citation omitted). This number only reflects “intellectual disability,” formerly known as “mental retardation,” it does not even reflect those with other mental impairments such as Autism Spectrum Disorder, discussed infra at notes 56-84 and accompanying text.
17. See id. (internal citation omitted).
18. Id. at 83, n 3 (citing R. Drake, et al., “Regional Variation in Competitive Employment for Persons with Severe Mental Illness,” 25 Administration and Policy in Mental Health and Mental Health Services, 493–504 (1998); M. McQuilken, et al., “The Work Project Survey, Consumer Perspectives on Work,” 18 J. of Vocational Rehabilitation, 59–68 (2003).
19. See supra Tal note 16 at 84.
20. Id.
21. U.S. Census Bureau, “Income, Poverty and Health Insurance in the United States: 2009 – Highlights.” http://www.census.gov/hhes/www/poverty/data/incpovhlth/2009/highlights.html. (noting that the poverty rate is up from thirteen percent in 2008, only the second statistically significant increase since 2004).
22. See Tal supra note 16 at 85.
23. See generally Tal supra note 16 at 85.
24. See Tal supra note 16 at 85, n 14 (citing W. Stewart, “Cost of Lost Productive Time Among U.S. Workers with Depression,” J. of the American Medical Association, 289, 3135–3144 (2003). (reporting that according to one study, depressed employees lost an average of 5.6 hours per week of productivity time, compared to only 1.5 hours lost by non-depressed employees).
25. See Tal supra note 16 at 85, n 13 (citing M. Antila, et al., “Cognitive Functioning of Bipolar I Patients and Relatives from Families with or without Schizophrenia or Schizoaffective Disorder,” J. of Affective Disorders (in press, 2009); A. Wingo, P. Harvey, and R. Baldessarini, “Neurocognitive Impairment in Bipolar Disorder Patients, Functional Implications,” Bipolar Disorders, 11, 113–125 (2009); A. McIntosh, et al., “Neuropsychological Impairments in People with Schizophrenia or Bipolar Disorder and Their Unaffected Relatives,” The British J. of Psychiatry, 186, 378–385 (2005).
26. See Tal supra note 16 at 85.
27. Peter Blanck, et al., Disability Civil Rights Law and Policy, 203, West (2009).
28. See 29 U.S.C.A. § 1185a (2011) et seq.
29. 42 U.S.C. § 12112(a) (2008).
30. Id. at § 12101(A)(5).
31. Id. at § 12101(B)(1).
32. The ADA Amendments of 2008 (ADAAA) have attempted to close some of these definitional loopholes and re-clarify Congress’ intent to offer broad coverage to people with disabilities.
33. See Carruthers v. BSA Advertising Inc., 357 F.3d 1213 (11th Cir. 2004) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (stating that the term “disability” is to be “interpreted strictly to create a demanding standard for qualifying as disabled.”).
34. See No. 3:11-cv-0004  CRW-TJS (D.Iowa, April 6, 2011); see also “Workers with Intellectual Disabilities Abused by Texas-Based Company for Years, EEOC Charges,” EEOC Press Release, http://www.eeoc.gov/eeoc/newsroom/release/4-6-11b.cfm.
35. See No. 3:11-cv-0004 CRW-TJS.
36. See supra notes 3-15 and accompanying text (introducing the case of Littleton v. Wal-Mart Stores, Inc.).
37. 231 F. App’x 874, 876 (11th Cir. 2007).
38.  Id.
39.  Id. (quoting Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).
40.  Id.
41. Id. at 877. The court cited Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002), as an example. In Williams, the Supreme Court stated that “[m]erely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity.” Williams, 534 U.S. at 195.
42. 42 U.S.C. § 12102(1)(a-c) (emphasis added).
43. See Littleton, 231 F. App’x at 876.
44. Id. at 876-77.
45. Id. at 877.
46. Id.
47. Id.
48. Littleton, 231 F. App’x at 876.
49. Id. at 877.
50. Id. The court rested its analysis on the fact that the burden rests with plaintiff to prove all elements of the prima facie case. Id.
51. Id.
52. Id. at 877-78.
53. See 29 C.F.R. § 1630.2(h)(2).
54. The U.S. Equal Employment Opportunity Commission, “Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act,” March 17, 2011, http://www.eeoc.gov/facts/intellectual_disabilities.html#N_5_.
55. Autism Society of America, http://support.autism-society.org/site/PageServer?pagename=about_home  citing the Centers for Disease Control and Prevention’s ADDM autism prevalence report).
56. See Andre T. Cavagnaro, “Autistic Spectrum Disorders: Changes in the California Caseload, An Update June 1987- June 2007,” California Health and Human Services Agency, State of California 2003 Survey of Developmental Disabilities (stating that Autism is the fastest growing developmental disability, with a 1,148 percent growth rate in the last 20 years); see also Autism Society of America, Facts and Statistics, http://www.autism-society.org/about-autism/facts-and-statistics.html (stating that the number of children diagnosed with ASD increased 10 to 17 percent per year as of 2003).
57. According to the Autism Society of America’s website, http://support.autism-society.org/site/PageServer?pagename=about_home:
Autism is a complex developmental disability that typically appears during the first three years of life and is the result of a neurological disorder that affects the normal functioning of the brain, impacting development in the areas of social interaction and communication skills. Both children and adults with autism typically show difficulties in verbal and non-verbal communication, social interactions, and leisure or play activities. Autism is a “spectrum disorder” and it affects each individual differently and at varying degrees.
Id.
58. Daniela Caruso, “Autism in the U.S.: Social Movement and Legal Change,” 36 Am. J. L. & Med. 483, 511 (2010) (relating anecdotes about the prevalence of ASD among “math geeks, persons with relational difficulties and often superior analytic intelligence.”).
59. Id. (citing David Wolman, “The Advantages of Autism,” New Scientist, May 4, 2010, reporting that “Michelle Dawson, an autistic cognition researcher at the University of Montreal, Canada, cautions against pigeonholing people: ‘[a]sking what kind of job is good for an autistic is like asking what kind of job is good for a woman. . .’”).
60. See Autism Society of America, “Diagnostic Classifications,” http://www.autism-society.org/about-autism/diagnosis/diagnostic-classifications.html.
61. See supra Caruso note 59 at 512.
62. See supra Caruso note 59 at 512.
63. See supra note 43 and accompanying text (describing the three methods by which a plaintiff can meet the first prong of the ADA’s disability definition).
64. See id.
65. See McAlindin v. County of San Diego, 192 F.3d 1226, 1232-35 (9th Cir. 1999) (finding that “interacting with others” is a major life activity under the ADA); see also Francis v. Chem. Banking Corp., 2000 WL 687715, at *1 (2d Cir. May 24, 2000) (assuming without deciding that “interacting with others constitute[s] [a] major life activity”); Doyal v. Okla. Heart, Inc., 213 F.3d 492, 496 (10th Cir. 2000) (same); But see Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997) (expressing doubt that “the ability to get along with others” is a major life activity under the ADA).
66. See id; See also supra note 87 and accompanying text (recalling that social interaction does not appear in the ADAAA’s definition of “major life activity”).
67. See infra notes 85-93 and accompanying (outlining the ADAAA’s recent additions to the list of “major life activities”).
68. See supra Littleton, notes 44-48, 50-52 and accompanying text, describing the case of Mr. Littleton, whose ADA claim was dismissed on summary judgment because he could not prove he was disabled under the ADA, in large part because he had been successful in overcoming obstacles occasioned by his underlying mental impairment).
69. Comber v. Prologue, Inc., 2000 WL 1481300, at *1 (D. Md. Sept. 28, 2000).
70. See id at *1.
71. See id.
72. Id.
73. Id.
74. Comber, 2000 WL 1481300, at *1.
75. Id.
76. See id. at *2.
77. Id. at *1.
78. See id. at *3-4.
79. Comber, 2000 WL 1481300, at *3.
80. See id. at *3.
81. See id. “In the case of an autism disorder, this distinction between a personality conflict and signs of a disability is perhaps even harder to draw than it is in the case of depression . . . her underlying problem at Prologue is better characterized as a personality conflict.” Id.
82. See id. at *3. “Comber has worked in the past in several counseling positions with mentally disabled people, and has recently retrained with an eye toward working as a computer programmer.” Id.
83. Comber, 2000 WL 1481300, at *3.
84. See ADA Amendments Act of 2008 § 2(b)(1), (5). Among the purposes of the ADA Amendments Act of 2008 were “. . . reinstating a broad scope of protection to be available under the ADA . . . and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Id.
85. Id.
86. 42 U.S.C. § 12102(2)(A) (2008) (emphasis added). This Section went on to further expand the scope of major life activities to include the “major bodily functions” of: “. . . functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Id. at § 12012 (2)(B).
87. See 76 FR 17007 (March 25, 2011).
88. See 29 CFR § 1630.2(j)(3)(i) (2008).
89. See 76 FR 16981 (March 25, 2011).
90. See ADA Amendments Act of 2008 § 2(b)(3).
91. See 42 U.S.C. § 12102 (4)(E)(i)(IV).
92. Collin R. Bockman, “Cybernetic-Enhancement Technology and the Future of Disability Law.” 95 Iowa L. Rev. 1317, 1322 (2010) (arguing that the ADAAA, while well intentioned, could become irrelevant as mitigating factors become more significant with the advent of brain implants, brain-computer interfaces, advanced prosthetic limbs, and other ameliorative devices).
93. See supra notes 16-27 and accompanying text (citing statistics from various sources which reflect the fact that people with mental impairments are disproportionately poor and unemployed compared to their non-mentally impaired counterparts).
94. See supra notes 24-26 and accompanying text (arguing that the reason the mentally impaired are chronically and disproportionately unemployed and poor is because they are incapable of performing the essential job functions).
95. See supra note 27 and accompanying text (maintaining that the reason the mentally impaired are chronically and disproportionately unemployed and poor is because social stigma leads to discrimination by employers).
96. See supra notes 45-48 and accompanying text (detailing the court’s decision that Littleton was not disabled because he had finished high school, could drive a car, and was generally very competent, for a mentally retarded person).
97. See supra notes 89-90 and accompanying text (describing new EEOC regulation which rejects the definition of “substantially limited in a major life activity” in the above described manner and instead substitutes a new, lower threshold standard to include more plaintiffs within the definition).
98. See supra notes 89-90 and accompanying text (describing new EEOC regulation which rejects the definition of “substantially limited in a major life activity” in the above described manner and instead substitutes a new, lower threshold standard to include more plaintiffs within the definition).
99. See supra notes 38-54 and accompanying text (recounting the case of Littleton, who the Eleventh Circuit found to be not disabled, despite his intellectual disability).
100. See supra note 87 and accompanying text (stating that under the ADAAA “working” is now considered a major life activity).
101. See supra notes 85-86 and accompanying text (declaring that among the purposes of the ADAAA was to re-affirm Congress’ intent to cover a broad class of people under the ADA).
102. See supra notes 59-60 and accompanying text (recounting that there are moral and legal ramifications to pigeonholing people with ASD into particular categories of jobs).
103. See supra note 88 and accompanying text (announcing new EEOC regulations, just promulgated, which include interacting with others as a major life activity).
104. See supra notes 38-53 and accompanying text (recalling the Littleton case, in which the court found a mentally retarded person not disabled under the ADA in part because he could drive, work,and graduated high school).
105. See supra notes 70-84 and accompanying text (citing the court’s language in which it admitted that Comber had trouble maintaining ordinary social relationships yet, because she had a successful work history, she could not be considered disabled under the ADA).

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William B. Maguire, a recent graduate of Hamline University School of Law in St. Paul (MN) and a member of the State Bar of California, has worked as a law clerk on behalf of plaintiffs in civil rights, employment, and products liability litigation. He received his B.A. from the University of Wisconsin.