Mending a Monumental Mountain: Resolving Two Critical Circuit Splits Under the Americans with Disabilities Act for the Sake of Logic, Unity, and the Mentally Disabled

I. INTRODUCTION Welcome to Mount ADA. Now please picture yourself in a group of fifty hikers on this large and diverse mountain.1 You have a guide that is responsible for leading you and your colleagues along the tricky trails and over the rocky terrain. A number of hikers in your group-ten to be exact2-need special assistance in order to successfully navigate the mountain, and the guide has provided them with the necessary accommodations. As you make your way along the mountain's paths, you encounter some difficulties. You feel weighed down by unhappy thoughts, and, as a result, your relationship with your guide deteriorates. In fact, your melancholic mood makes it difficult to communicate and work with most of the people in the group. The guide considers you to be substantially limited in your ability to interact with others and questions your capability to continue the hike. You, however, feel confident in your abilities to perform the necessary tasks involved with the hike-provided that the guide relieves you of duties that require significant interaction with the other hikers. What should be done? Must the guide provide the accommodations necessary for you to remain with the group? Can she send you packing?3 In the context of the workplace environment, the answers to these and other questions are to be found by looking to the Americans with Disabilities Act (ADA) of 1990.4 Congress enacted the ADA in an attempt to provide comprehensive protection against discrimination for individuals with real or perceived disabilities. Title I of the ADA states that employers are prohibited from discriminating against qualified individuals with disabilities in all facets of employment.5 In addition to the requirement of equal treatment, the ADA requires employers "to make 'reasonable accommodations' or adjustments in the workplace not offered to applicants or employees without disabilities, which permit the person with a disability to perform the essential functions of his or her job."6 Thus, an employer that is subject to the requirements of the ADA is prohibited from discriminating against qualified individuals with disabilities and is required to provide reasonable accommodations that do not amount to an undue hardship.7 The courts' application of Title I of the ADA has, at times, been considerably inconsistent.8 One significant fissure in the ADA mountain involves the question of whether an individual's ability to interact with others is a major life activity under the ADA.9 This is an important issue because unless an individual is substantially limited in a major life activity (i.e., seeing, hearing, or walking), that individual does not qualify as disabled under the ADA, and an employer has no responsibility to accommodate that individual.10 Although most circuits have not directly addressed this issue, the First Circuit and the Ninth Circuit have come to different conclusions, creating the "interacting with others divide."11 In August 2005, the Eleventh Circuit expanded another critical divide when it rejected the precedent of four sister circuits and joined the First, Third, and Tenth Circuits in holding that the ADA requires employers to reasonably accommodate those employees they perceive as disabled.12 The Eleventh Circuit's decision deepened what one might call the "accommodation divide." This split in authority is significant because a mentally impaired individual will often base his discrimination claim on the fact that the employer perceived him as disabled, and if a court does not recognize a duty to accommodate such an individual, that person has no recourse under the ADA. These two splits in authority impact a significant number of discrimination claims and have created considerable confusion in the employment arena.13 The Supreme Court should quickly act to resolve these disputes and should do so by looking to the plain language of the ADA, congressional intent, Supreme Court precedent, and explicit guidance from the Equal Employment Opportunity Commission ("EEOC"). …