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Vande Zande v. Wisconsin Dep't of Admin.

United States Court of Appeals for the Seventh Circuit

October 5, 1994, Argued ; January 5, 1995, Decided

No. 94-1884


 [*541]  POSNER, Chief Judge. In 1990, Congress passed the Americans with Disabilities Act, 42 U.S.C. §§ 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. §§ 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." §§ 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 [**2]  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 [**3]  cases in which the disability is irrelevant to the performance of the disabled person's job.  [*542]  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." § 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)) in the provision of Title VII forbidding religious discrimination in employment. 42 U.S.C. § 2000e(j); see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84-85, 53 L. Ed. 2d 113, 97 S. Ct. 2264 (1977). It is one of a number of provisions in the employment subchapter that were borrowed from regulations issued [**4]  by the Equal Employment Opportunity Commission in implementation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. See 29 C.F.R. § 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.

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44 F.3d 538 *; 1995 U.S. App. LEXIS 99 **; 3 Am. Disabilities Cas. (BNA) 1636; 133 A.L.R. Fed. 713


Prior History:  [**1]  Appeal from the United States District Court for the Western District of Wisconsin. No. 93 C 182. Barbara B. Crabb, Chief Judge.

Disposition: AFFIRMED.


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Labor & Employment Law, Disabilities Under ADA, Mental & Physical Impairments, Major Life Activities, Disability Discrimination, Scope & Definitions, General Overview, Business & Corporate Compliance, Labor & Employment Law, Discrimination, Accommodation, Reasonable Accommodations, Undue Hardship, Religious Discrimination, Defenses, Reasonable Accommodation & Undue Hardship, Federal & State Interrelationships, Title VII Discrimination, Employers, Employment Relationships, At Will Employment, Definition of Employers, Evidence, Burdens of Proof, Employee Burdens of Proof, Civil Rights Law, Protection of Disabled Persons, Americans With Disabilities Act, Accommodations, Governments, Legislation, Effect & Operation, Prospective Operation, Retrospective Operation, Employee Privacy, Disclosure of Employee Information, Public Employees, Torts, Pain & Suffering, Emotional Distress