RULING LIMITS CLAIMS OF BIAS UNDER ADA

NEW YORK-A federal judge in New York has limited the circumstances under which employees with disabilities can seek protection from job-related discrimination under the Americans with Disabilities Act.

But, at least one employer attorney said she will advise her clients not to follow the "troubling" guidelines the ruling establishes.

In his Sept. 16 summary judgment, U.S. District Judge John S. Martin Jr. ruled that a woman suffering from colitis and major depression is not protected by the ADA because her maladies did not limit her ability to work or other major life activities.

The woman charged that her former employer discriminated against her by changing her administrative duties to clerical and secretarial tasks after she took a short leave of absence to receive treatment.

The plaintiff last week had not decided whether to appeal, said her attorney, Lee Nuwesra of New York. Mr. Nuwesra would not comment further on the case.

Defense attorney Barbara E. Hoey of Kelley Drye & Warren L.L.P. could not be reached for comment.

But, employer attorney Shirley Lerner, who was not involved in the case, predicted the decision will be appealed and reversed.

She also does not foresee other courts ruling similarly.

"In many ways for employers, it's a fantastic decision," said Ms. Lerner, a partner with Meagher & Geer P.L.L.P. in Minneapolis.

"But if you rely on this, you're going to have problems," she warned. "I would be hesitant to let my clients act this way."

The plaintiff, Karin A. Johnson, had been employed at the New York Medical College for nearly 11 years and had received a couple promotions before she was fired in September 1994.

She was hired as a clerk, secretary and administrative assistant in 1983.

In 1987, she was promoted to supervisor of the faculty practice for the college's new pediatrics department. Ms. Johnson later also helped establish new pediatric practices in two other locations.

In May 1993, the college promoted her to administrative coordinator of the pediatric department and boosted her salary nearly 17%. In her new job, Ms. Johnson worked in the office of the pediatric department's chairman. But, Maryann Wagner, the department's administrator, remained Ms. Johnson's direct supervisor.

Ms. Johnson was diagnosed with colitis in 1989. Medication alleviated but did not eliminate her symptoms, which included diarrhea, fatigue and nausea.

Ms. Johnson also suffers from depression, for which she began receiving treatment in 1993. She said colitis was one symptom of that condition. Other symptoms included poor concentration, sleep disruption, exhaustion and disinterest in sex.

In early 1994, Ms. Johnson took a two-week leave of absence to receive in-patient treatment at a psychiatric hospital for her mental and physical disabilities.

When Ms. Johnson returned to work, Ms. Wagner assigned her to a variety of clerk duties and to fill in for vacationing secretaries in the pediatrics department. The college also gave another secretary Ms. Johnson's desk and assigned the secretary some of Ms. Johnson previous duties.

The college, though, did not cut Ms. Johnson's salary or change her title.

The college in September 1994 fired Ms. Johnson after she refused a temporary assignment at another location. Ms. Johnson said she would have difficulty commuting to the location. Because of her colitis, she also rejected the college's offer for a male co-worker to drive her.

Ms. Johnson argued that her conditions meet two of the ADA's three definitions of a disability: Her impairments limit two major life activities-work and sex-and the college, by changing her work duties, showed that it considered her impaired.

Judge Martin disagreed. Citing decisions by three other federal district courts in New York and Louisiana, he ruled that while colitis is a physical impairment "within the meaning of the ADA," it did not limit any of Ms. Johnson's major life activities.

Judge Martin noted that while Ms. Johnson said her colitis often forced her to make restroom stops while commuting to and from work, the condition neither harmed her job performance nor caused her to miss a substantial amount of work.

He also ruled that her disinterest in sex "is not a substantial limitation on a major life activity."

Similarly, Judge Martin ruled that Ms. Johnson's depression did not limit any of her major life activities. Aside from her hospital stay, her mental illness did not impair her ability to perform her job, he ruled.

He said courts have ruled depression interferes with major life activities only when the illness causes numerous hospitalizations, repeated absences from work and poor job performance.

The judge also rejected Ms. Johnson's argument that the college perceived her as disabled. He agreed with the college that Ms. Johnson's new duties after returning to work were no more than temporary assignments she was qualified to perform.

"The (employer's) perception must involve the belief that plaintiff's impairment is significant and limits more than her ability to perform a specific job, but that it hinders her ability to work generally," Judge Martin ruled.

Ms. Lerner, the employer attorney not involved in the case, said she sees "a lot of problems with this ruling and wouldn't rely on it."

The judge's reasoning that a worker with a disability is not protected under the ADA unless the disability is so detrimental that it affects the individual's work is unsound, she asserted.

"The law is supposed to protect those who have a disability that affects a major life function but who still can do a job," she said. "If that's the definition-you're able to work, therefore you're not protected-we won't have anyone protected, will we?"

The judge's ruling is especially surprising considering the recently issued Equal Employment Opportunity Commission guidelines on how employers should accommodate mentally ill workers under the ADA, Ms. Lerner said (BI, May 5). The federal agency said a mental illness substantially limited a major life activity if, for example, it causes sleeplessness or a loss of concentration over several months-symptoms Ms. Johnson claimed she had.

Ms. Lerner also emphasized that the ADA's definition of a disability does not require a disabled worker to seek an accommodation from his or her employer. "You still can't terminate them or change their duties based on their disability."

Karin A. Johnson vs. New York Medical College and Maryann Wagner, U.S. District Court for Southern District of New York; 95 Civ. 8413.