Why Can't Discrimination Be Discrimination? Johnson v. K Mart Corp. and the Meaning of "Discrimination" Under the Americans with Disabilities Act

I. INTRODUCTION In March of 1994, Ms. Helen Weyer "became unable to work because of severe depression" and has remained "totally disabled" since that time.1 She began receiving disability benefits (payments in lieu of salary)2 from a group long-term disability (LTD) plan in which she had enrolled through her employer.3 After two years, however, those benefits ceased because her LTD plan classified her disability as a mental illness. Under the group plan, individuals with physical disabilities were able to receive benefits until age sixty-five, while mental disabilities had a twenty-four-month cap.4 Weyer filed suit against her employer, claiming that the disparity in coverage of mental and physical disabilities under the LTD plan was discrimination under the Americans with Disabilities Act (ADA). Her claim failed because, according to the Ninth Circuit, the ADA did not prohibit this type of discrimination.5 At about the same time, the Equal Employment Opportunity Commission (EEOC) filed two separate suits. One was for a person who, due to a panic disorder, had become eligible for LTD benefits in 1992 and then received a letter two years later stating that the benefits had been terminated "pursuant to the two-year limitation" for "'mental or emotional conditions.'"6 The other suit was for a person (and twenty-seven "similarly situated individuals") who had become "unable to work because of major depression and anxiety" and who had been denied all LTD benefits after eighteen months because of a time limit placed on mental disability benefits.7 Like Weyer, these plaintiffs were unsuccessful in establishing discrimination claims under the ADA.8 Modern managed care systems have consistently contained "greater restrictions and limitations for mental illness than for physical illness."9 While managed care continues to limit coverage for mental disabilities, mental illness and the disabilities associated with it are becoming more prevalent. Recent studies have indicated that "[t]he leading cause of hospital admissions nationwide is psychiatric illness"10 and that "one out of every two Americans alive today will suffer from a mental illness at some point in her lifetime."11 But as the need for mental health services has increased, the insurance companies' willingness to cover the costs has decreased. Weyer noted that in the context of LTD plans, policies without a time limit on mental disabilities were "rare in the industry and more expensive because of the increased risk."12 The battle over mental health coverage is being waged on many fronts. For example, in 1996, proponents of parity pushed the Mental Health Parity Act (MHPA)13 through Congress. Additionally, scholars have attempted to demonstrate the misleading nature of distinctions between mental and physical diseases and disabilities.14 In the courts, the EEOC and other organizations have challenged disparate plans under the ADA. On the other side, insurance companies and their lobbyists have been fighting to create loopholes in disability statute mandates. They have lobbied diligently for provisions that have weakened the ADA and MHPA.15 A large portion of the battle in the courts has been waged against disparate LTD plans like the one that affected Weyer. Until Johnson v. K Mart Corp.,16 the circuit courts had unanimously upheld these plans, finding that such disparity did not amount to discrimination under Title I of the ADA.17 Though courts addressing this issue must address other legal obstacles before determining the validity of disparate LTD plans under Title I,18 the question of disparate treatment of physical and mental disabilities is still at the crux of the legal debate. This Note focuses on the physical/mental disparity under Title I, which affects not only the future development of LTD plans in response to the increased awareness of the need for mental disability coverage, but also affects the more important issue of the development of a consistent discrimination standard under the ADA. …