Summers (and the Americans with Disabilities Act) in Wisconsin

Late last month, the Fourth Circuit issued an opinion on the Americans with Disabilities Act that made headlines in legal blogs everywhere. The court confirmed what many believed about the definition of “disability” under federal law after legislative changes were made in 2008. For Wisconsinites, however, the ruling may foretell the direction of future disability claims that will be brought in our state.

In Summers v. Altarum Institute, Corp., (4th Cir. Jan. 23, 2014), the Fourth Circuit became the first circuit court of appeals to address the definition of disability following the Americans with Disabilities Amendments Act of 2008. On his way to work one day, Mr. Summers fell and sustained significant injuries to both of his legs. To fully recover as soon as possible, Mr. Summers required six weeks of bed rest and physical therapy thereafter. Mr. Summers did not expect to fully recover for a year. As an analyst for a government contractor, Mr. Summers sought an accommodation that would allow him a period of time off from work, then returning on a part-time basis while working remotely, and eventually back to work full-time. Altarum did not respond to this request but rather terminated Mr. Summer’s employment. The lower court dismissed Summers’ disability discrimination lawsuit finding that he had a “temporary condition” that did not make him a protected individual with a disability under the ADA.

The Fourth Circuit reversed and found Mr. Summers was protected by the ADA. In 2008, Congress passed the ADA Amendments Act that responded to several court opinions narrowing the definition of disability. Specifically, Congress sought to override a U.S. Supreme Court decision suggesting that a temporary impairment could not qualify as a disability. The EEOC responded to Congressional instruction and passed regulations providing that impairments lasting fewer than six months can qualify as a disability if sufficiently severe. Following these developments, the Fourth Circuit held, “[A]n impairment is not categorically excluded from being a disability simply because it is temporary.” Thus, Mr. Summers’ disability discrimination claim could proceed.

What does this mean in Wisconsin? The Fourth Circuit is the federal court of appeals hearing cases from federal district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina. It does not cover Wisconsin, which is under the jurisdiction of the Seventh Circuit. But the Fourth Circuit is the first federal appellate court to publish an opinion on this issue, making it persuasive to other courts addressing similar matters.

In Wisconsin, the Summers decision will likely continue to convince individuals with disability claims to seek remedies through federal courts. Like the federal ADA, the Wisconsin Fair Employment Act protects individuals from employment discrimination on the basis of their disability. Under the WFEA, an impairment must be permanent in order to be protected. Injuries are unlikely to be protected under the WFEA. This is not the case with the ADA under Summers. Thus, this will mean more ADA claims against Wisconsin employers rather than the WFEA alternative.