Although Chubbs book of business is mostly driven by race and gender discrimination claims, Mr. Maloney said: “If there are a couple of favorable rulings here and there on the Supreme Court side that will make it a little more challenging to make disability allegations, I think that will be great for us.”

He continued that, “I don't think [the ruling] will have a huge impact. We don't think that Congress intended the ADA to be incredibly broad. If you step back and look at the [Equal Employment Opportunity Commissions] own data, just under 20 percent are disability allegations.”

Mr. Maloney said the new ruling does, however, clarify what constitutes a disability. “If your injury relates to something you do at work and it only hurts you while you're trying to do these one or two things at work, then that's not a disability. It's got to impact the way you manage your whole life.”

He said that disability cases will continue to make their way through the courts, which in turn will define their scope. “At some point, disability advocates will go back to Congress and lobby to expand the law,” he said.

Gerald Maatman, chair of Baker & McKenzie's employment law practice group located in Chicago, said the Supreme Courts ruling is seen as a victory for employers because “the test is a broad test and more employers will win under this new test.”

The ruling is defense minded, Mr. Maatman explained, because it “raised the bar” and made it “a little more difficult” for a worker to demonstrate a disability.

The law, signed in 1990 and passed in 1992, applies to any workplace with 15 or more employees, Mr. Maatman said. “Unlike other employment discrimination laws, which are based on race or sex, the ADA is different,” he said, because it states that, in particular circumstances, the employer might have to do something affirmative, called the “duty of reasonable accommodation,” to enable the employee to compete in the workplace.

While risk managers or personnel decision makers can fairly easily determine who is covered by discrimination laws that are based on race and gender, its more difficult to determine who is protected under ADA because some disabilities are not visible, he said.

“That is what was at issue in the Toyota Motor v. Williams case,” he explained. “Was the person who brought the lawsuit covered by the law? Were they disabled? And if so, did the employer have a duty to provide a reasonable accommodation to change the work environment?”

The Toyota Motor v. Williams case involved Ella Williams, a Toyota factory worker, who said she had impairments which limited her ability to perform some tasks on an assembly line. She asked the company to make allowances for her condition by limiting her tasks on the assembly line (See NU, Jan. 14, 2002, page 6.)

Ms. Williams said Toyota refused her request, while Toyota said she began missing work and was terminated for poor attendance.

The case was important, Mr. Maatman said, because the alleged disability was carpal tunnel syndrome, “something you may not see, but something that affects many people throughout the United States, especially in the new digital workplace,” where many people type on keyboards.

“What Williams teaches us, if we are personnel managers, executives or risk managers,” he explained, is the “proper way now in which to interact with and deal with these workplace situations when people say they need reasonable accommodation. It's a case that ought to be required reading for anybody in the workplace who deals with risk or makes personnel decisions.”

He went on to say that “it is expensive to defend disability discrimination lawsuits.” Employers and risk managers, “if theyre doing their jobs, are trying to keep their companies out of the courthouse to avoid lawsuits.”

Rich Robin, executive vice president with NAS Insurance Services in Encino, Calif., an underwriting manager with full binding authority for underwriters at Lloyds, said his organization has been underwriting employment practices liability insurance in the United States since the mid-1980s.

“Whether or not someone is disabled in the definition of the law isnt necessarily going to be what limits the claim,” Mr. Robin said. “Its going to be the way the company manages the complaint. If they have the right systems in place, they should be a better risk. If not, they wont,” he said.

Mr. Robins, whose firm places a lot of business in California, said that the new ruling doesnt give much protection to California employers because “California law is broader, more in favor of the employee.”

“Also, you cant spin on a dime with everything that comes out. So were not really changing our underwriting as a result of this.”

He expects that the Supreme Court ruling won't have a large impact on his company, whose clients are mostly smaller businesses of under 100 employees. “Larger companies might see a different impact,” he surmised. “Also, HR departments will have a different perspective. Smaller companies dont have risk management programs that are as developed as larger companies.”

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, February 25, 2002. Copyright 2002 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.

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