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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The v. ELLA WILLIAMS. IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - -X TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC., Petitioner : : : : : No. 00-1089

- - - - - - - - - - - - - - - -X Washington, D.C. Wednesday, November 7, 2001 above-entitled matter came on for oral

argument before the Supreme Court of 10:02 a.m. APPEARANCES:

the United States at

JOHN G. ROBERTS, JR., ESQ., Washington, D.C.; on behalf of the Petitioner. BARBARA B. McDOWELL, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae. ROBERT L. ROSENBAUM, ESQ., Lexington, Kentucky; on behalf of the Respondent.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF JOHN G. ROBERTS, JR., ESQ. On behalf of the Petitioner BARBARA B. McDOWELL, ESQ. On behalf of the United States, as amicus curiae ROBERT L. ROSENBAUM, ESQ. On behalf of the Respondent REBUTTAL ARGUMENT OF JOHN G. ROBERTS, JR., ESQ. On behalf of the Petitioner 49 26 18 3 C O N T E N T S PAGE

Alderson Reporting Company
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was now in CHIEF JUSTICE No. 00-1089, REHNQUIST: P R O C E E D I N G S (10:02 a.m.) We'll hear argument Ella

Toyota Motor

Manufacturing v.

Williams. Mr. Roberts. ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONER MR. ROBERTS: Thank you, Mr. Chief Justice, and

may it please the Court: The respondent, Sixth Ms. Circuit below held that the

Williams, was

substantially

limited in under the could not

performing manual tasks Americans with

and therefore disabled Act because she

Disabilities

perform the manual tasks associated with her assembly line job, specifically gripping a sponge and repetitively for an

wiping down

cars with her arms

at shoulder level

extended period of time. That test for wrong because it disability status was wrong. is inconsistent with It

the statute life

which requires a activity. shoulder

substantial limitation down

on a major

Repetitively wiping level for an

cars with

arms at not a

extended period

of time is

major life activity, does not constitute

and being

limited in that

activity the

being substantially

limited in

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reasons. in major life activity of performing manual tasks in general. A plaintiff a broad range must show a substantial limitation the statutory could

of manual that Ms.

tasks to meet the court

standard. extrapolate

The most was that

of appeals

Williams

was

substantially required arms at

limited in the gripping tools

tasks associated and repetitive

with jobs that activity with

shoulder level for an extended period of time. specialized and idiosyncratic limitation. It

That is a is not a

substantial limitation -QUESTION: Mr. Roberts, can I just ask you at

the outset, so you have plenty of time to comment, there's expert testimony, as I read the briefs, that -on your the

opponent's side that she suffers labor market of from 50 to 55

a lack of access to

percent of the

jobs, both

nationwide and in Kentucky. MR. ROBERTS: A number of things about that.

First, that was not pertinent on the manual tasks inquiry. That was submitted under the major life activity of as

working in an effort to working.

to show a substantial limitation

The district

court rejected that limitation.

The court of appeals did not reach it. The district court rejected it for a number of

First, the 50 to 55 percent was based largely on that she -- she could not do medium duty

the assumption

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and said show, a district work, but as the evidence showed -- and I would point

particularly to

page 24 of Dr. Weikel's deposition -- she she could do medium duty work in And in

never established that the first place

and had never done medium duty work. you take out that loss --

what Dr. Weikel said is, if other words, her loss

the loss of eliminating medium goes down to 10

duty work -which

of jobs

to 15 percent,

would not be in working.

sufficient to show a

substantial limitation

The district court also said was not geographically specific national figures and it was

that that evidence It was based down on

enough.

not narrowed

to the was

particular job

market, so

that the --

the evidence

properly rejected by the district by the court of appeals because

court and never reached it was submitted on the

working life activity and not the manual tasks. QUESTION: When you say it was rejected by the You

court, you don't mean

it was inadmissible.

mean it was given no weight by the district court. MR. ROBERTS: it was The district court of what considered it to

not probative

it purported

loss of access to the job

market.

She failed to

-- to meet the test for working because she didn't show an exclusion from a class of jobs. All she showed was that That was the

some assembly line jobs were closed to her.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different Justice main reason. The other reason was because the evidence that

she showed wasn't probative of what

it purported to show,

again an issue that the court of appeals did not reach. What the court of appeals erred in doing was

artificially narrowing the manual tasks quite clearly it was adopting a

inquiry.

It said

class-based analysis. tasks associated

We're only

going to look

at the manual

with your job. QUESTION: Stevens' Mr. Roberts, question, how in the same the vein as worker's

does

compensation notion of disability fit in?

As I understand

it, she was assessed as having a 20 percent -- what was it -- partial disability for worker's compensation So, that's another statutory scheme -uses purposes. the same

concept, disability. MR. ROBERTS: But And -but pursuant are two to very

standards.

there

worker's she was

compensation proceedings. rotated into

The first one, before the 20 percent one, she sought

this new job, was The second

that Your worker's denied in

Honor referred to.

compensation also after

this one, and that was

-- in a denial affirmed by the Kentucky Supreme Court. But there are different standards. Worker's than --

compensation is looking

to very different things

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 brother, Sixth pertinent than the Americans with Disabilities Americans with Disabilities Act, Act. you And under the a

have to

show

substantial limitation on not the standard -QUESTION: limitation --

a major life activity.

That's

Well,

why

wouldn't

20

percent a

20 percent

occupational

impairment be

substantial limitation? MR. ROBERTS: Well, first of all, it may be

if the standards were

the same, but only under

the working category. looking to was under

The worker's compensation system is The court of appeals analysis tasks category. But

impact on work. the

performing manual

again -QUESTION: addressing the Why did the court of appeals avoid

work approach?

Was it

because it thought

this Court had rejected that? MR. ROBERTS: the Well, a couple of reasons. My the

respondent's that the

counsel, strongest

represented to claim was

Circuit

under and a think as of

performing

manual

tasks

and not

under

working,

recent Sixth Circuit made it quite

precedent, the that in she

McKay case, I not

clear

would

qualify activity

substantially working.

limited

the

major

life

QUESTION:

Should we address that, or because it

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 done. was not addressed below, leave that alone? MR. ROBERTS: approach would be not of working this since it The Well, I think the more typical

to address the major was not addressed

life activity to

below, except the

extent.

major

problem

with what

Sixth

Circuit did in looking only at the manual tasks associated with working replicates, problems rather, that this under that category, all has noted or the of the

Court

concerns, to the

that this

Court has

noted with

respect

major life activity of working. QUESTION: limitation, cannot do do we do? MR. ROBERTS: tasks, you have to look do In --

The test is circular. at a substantial the person What

in looking

we focus

on the

things that

or the things they still can

do or both?

Certainly with respect

to manual enough,

at both because it's not

obviously, to say there's one I can't do.

particular manual task that

That wouldn't show a substantial limitation, is probably not going have to look to

and that particular manual task be a major life activity.

So, you

at the

broad range. And that is what the courts of appeals have

They've taken a list of everyday manual tasks that and said, well, where does the plaintiff

we all perform fall in

this -- in this --

against this list of everyday

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because tasks? The Sixth Circuit did not do that. They looked

just at the work-related activities. When you do that, the record is quite clear that Ms. Williams can do a broad range of manual tasks. With

respect to personal hygiene, she can brush her teeth, wash her face, bathe. With respect to everyday activities breakfast, the house. particular, line work at

around the house,

the record

shows she makes

can cook, laundry, pick up and organize around And, of course, found what the district court, in can do assembly

most compelling, she

the Toyota plant. QUESTION: Mr. Roberts, may I just stop you on

something you just said? in its opinion that

I thought the Sixth Circuit said it had considered recreation, the work-

household chores, living related impairments. MR. ROBERTS: think has to be

generally, as well as

A very important sentence In

that I it

read carefully.

the first place,

doesn't say that we've looked at the record and considered those. It was a generic assumption. The assumption is, must

well, if she can't do

this assembly line work, that

affect other areas, recreation and household chores. A generic assumption like the ADA specifies you that is wrong, first, have to look at the

individual impacts; second,

because the impairments we're

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 talking about, myotendinitis people in and that sort of thing, You the

affect different can't assume,

widely different someone

ways. do

just for

because

cannot of

repetitive

work

an extended

period

time, that

that's going to have an effect. QUESTION: cases, couldn't you? a person says I cannot can't is he's blind. wouldn't it?

Of course -that, though, in some

You can assume

I mean, you're not -- if -- suppose be a watchmaker and the reason That would be the end he

of the case,

I mean, it would be clear he's disabled. Certainly. Even though he only mentioned

MR. ROBERTS: QUESTION: watchmaking. MR. ROBERTS: QUESTION:

Certainly. So, why can't this woman

All right.

here say I cannot lift more than lift more than 10 pounds

20 pounds ever, I cannot I cannot perform

frequently?

repetitive motions with both hands over an extended period of time, and I cannot work with my hands above my head. I'll

Now, that's the problem. tell you that makes find a job. MR. ROBERTS: QUESTION: disability that

Now, in addition, that --

me too -- it makes it

hard for me to

Well -But it's -it's on, really and in the the

we're

focusing

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 does it you said circumstances someone like that would be able not only not to perform the job but also not to do the things that the a reasonable inference from the nature

judge said below, of the disability.

MR. ROBERTS:

First,

because that record.

type of

an can

inference is contradicted by the do other assembly line work, manual tasks. The record She

She says I

including work that involves shows she can take care of

personal hygiene.

can do

chores around the

house.

The inference would be -- it's contradicted by the record. Second, the looking at can't use problem is an -- the type of manual no one task that you're she The

problem is

suggests that side of a car.

a sponge and wipe down the

with the repetitive aspect of it, doing it for time. The only setting in which

extended period of

someone would have to do that is and therefore, if be

in an assembly line job, disability should

anything, the -- the

analyzed under the major

life activity of working, if

that is a major life activity. QUESTION: Why -- that's what I -- my -until need a

the last part, my

thought was, well, we

trial on this. MR. ROBERTS: QUESTION: Oh, no. What

How serious is this disability? But

disqualify her from doing?

do we have to go

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You're on to categorize between whether it's working, gardening, I mean, isn't it just is

what is a major life activity? this person

hurt badly enough that there are an awful lot

of things that she can't do? MR. ROBERTS: No, no. The statute sets forth a

standard, substantial limitation on a major life activity. Therefore, the way the cases have been tried, you identify a major life activity. QUESTION: That's the part that's bothering me. I wonder is whether as to say, whether

absolutely right.

And what

this statute intends the courts to be so rigid well, you've got it's to get into an

argument about

working, gardening, this or that or the other thing, broad, general judgment, is this person

or to use a more

incapable of doing a lot of things that people do in life. MR. ROBERTS: Well, first of all, with respect

to working, it is important I think to identify what major life activity you're talking about because as the EEOC has recognized in its regulations, as this Court has

indicated, there working is

are all sorts life

of problems when The

you say

a major

activity.

problems are,

first, that it's completely circular.

The -- the need for

an accommodation establishes the entitlement to it if your life activity should work. is working. That's not how the statute

It should work by

identifying a disability

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shows tasks. of the cases draw a course, and then seeing if it can be accommodated. Working is also unusual in the sense that it is

not the individual's physical characteristics or condition that are primarily significant in deciding whether there's a disability, but the demands of the job. That's unlike

the other major life activities

that Congress was talking Working -- it looks like

about, seeing, hearing, breathing, walking. suddenly becomes not only circular,

but it

you're talking more about the job than the individual. That's why I do think it is important to -to

distinction, and what the court of appeals did, of was look at manual tasks but then say only the

manual tasks associated with work. And with respect again to the record, the record that Ms. Williams can do a broad range of manual

When you compare the approach here to the approach other courts of that we've appeals, the Eleventh in our brief, Circuit in Chanda and

discussed

Hillburn, or the Fifth Circuit come close. She Yes -Well, can do

in Dutcher. a broad

This of

doesn't manual

range

activities.

QUESTION: interrupt again? figure is

Mr.

Roberts,

can

I

just

I -- you've explained by the 50 percent But assume for the moment that

-- is wrong.

there were -- she was

disabled from performing 50 percent

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the job opportunities available in the State, and in

addition, there were a random like playing tennis

number of additional things the piano and so forth

and playing Would

that she could not do. be impermissible to inability to

it still not be -- would it disability being and the

analyze this as the

use the hands like

most people can

major part of the evidence relates to work, but then there are these other things she also cannot do? to have the other things -you have to Does she have separate them.

Can't you look at the two together? MR. ROBERTS: in a manual tasks case, here's an example of Yes, you can, and -- and certainly you can submit evidence and say,

manual tasks that

I can't perform,

the ones that are required at work. with that.

There's nothing wrong

The problem is in artificially limiting it to it and looking only at the manual tasks associated with work. That's not enough. But yes, it certainly could be part of But there shown has a of

her case that I can't do this job at work. to be more because otherwise the she

hasn't life

substantial

limitation on

major

activity

performing manual tasks. QUESTION: Is it -- is it your view that by

including the non-work of increase the

impairment that she has, things she has

you sort you

universe of

to --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the I compare it to, and therefore, there's a smaller percentage of an impairment, and therefore, it's not substantial? MR. ROBERTS: manual tasks, you the other If the claim is I'm limited in

do have to look,

and this is

what all

courts of appeals have done, the broad range of It's not enough, obviously, at one extreme

manual tasks.

if there's a peculiar do everything else. QUESTION: suppose is the the fact

task that you can't do, but you can

What you're objecting to particularly sentence of Williams the court's can perform opinion which a range of

says

that

isolated, short

non-repetitive

manual tasks as

performed

over a

period of

time, such

tending to

her personal

hygiene or carrying out personal or household chores, does not affect a determination that her impairment range of

substantially limits her

ability to perform the

manual tasks associated with an assembly line job. MR. ROBERTS: QUESTION: That's right. In other words, it made that

criterion of whether she's -- she's substantially limited. MR. ROBERTS: court of appeals That's wrong. said, okay, In that sentence, do a lot of and not

you can

things, but

you can't do the

assembly line job,

being able to

do the assembly line job is

enough for us.

And that was what was wrong with the court of appeals --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 under -it under tasks. QUESTION: MR. under working, Yes. If you're going to look at it QUESTION: So, the nub of it is the -the

limitation to considering one job; job. MR. ROBERTS: QUESTION: overriding sin, that

i.e., an assembly line

With respect to working -That was if it, -if there it? was one of of

wasn't

Instead

considering a range jobs --

of jobs

-- I'm sorry

-- a class

MR. ROBERTS:

If -- if they're going to look at to look at all manual

manual tasks, you've got

ROBERTS:

you've got to look at

either a class or a

broad range of jobs. QUESTION: I was going to say if you're doing it life activity of manual tasks,

under the major

you wouldn't just look at jobs. MR. ROBERTS: broad range. Not just jobs. It has to be the

And typically what the courts have done -Yes, but it -- I didn't mean to

QUESTION: interrupt you.

I was going to say, but if --

assume they and

start out, our category is they had come up with 100

going to be manual tasks, jobs in which she

could not

perform manual tasks, would that not have satisfied the --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what if things? MR. ROBERTS: Then it would case. seem to me to be her probably about the required inquiry under -- under manual tasks? MR. ROBERTS: everyday I would still need to the jobs know what involved

activities.

Maybe

specialized, idiosyncratic manual tasks. QUESTION: Yes, but at this it?

Can she -point, aren't we

getting sort of academic about

If somebody --

let's

assume the category is manual tasks, but they identify 100 jobs which she -- I mean, a great range of things that she can't do. might Isn't it a little unrealistic to say, well, she vacuum the floor at home? I mean, at facie case,

be able to

that point, haven't you?

you've made a

pretty good prima

MR. ROBERTS: not be that

The she

-- the can

evidence then care of

would

take

herself

generally.

She can cook.

She can do laundry.

She can --

as the evidence is in this case. QUESTION: the No. But the question that could he's -these

evidence did

show she

do all

properly analyzed as problem

a working

That's where

is, according to the -- this unusual record we've a problem at work. Then look at it as you have to

hypothesized, only a working case.

If it's a manual task case,

look at the broad range of manual tasks.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the on a incorrect I'd like to reserve the remainder of my time. QUESTION: Very well, Mr. Roberts.

Ms. McDowell, we'll hear from you. ORAL ARGUMENT OF BARBARA B. McDOWELL ON BEHALF OF THE UNITED STATES MS. McDOWELL: may it please the Court: We agree in that the Sixth Circuit a applied person activity an is of Thank you, Mr. Chief Justice, and

test

determining in the

whether

substantially

limited

major

life

performing manual tasks. The correct test asks whether a person is

significantly restricted relative to the average person in performing those basic everyday life, manual tasks such as that are central grasping That to

tasks

objects, inquiry is

manipulating objects,

holding objects.

indicated by the statutory focus on substantial limits and major life activities. The Sixth Circuit's approach, which focuses only plaintiff's ability to perform particular manual over-

tasks required by a specific

job, seems to us both

inclusive and under-inclusive. First, the Sixth Circuit's approach would extend protections of the act to persons who are

substantially limited only in performing a particular job,

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wasn't I Honor. not in everyday life and not in performing a range of jobs or a class of jobs. That approach would undermine the

established test for establishing a substantial limitation based on the major life activity of working. That test,

as the Court recognized in

Sutton, requires the plaintiff limited in a class or a

to show that she's substantially range of jobs. QUESTION:

Ms. McDowell, I didn't think that the we're looking only at one job. I

Sixth Circuit had said

thought they were looking at assembly line work as a broad category of jobs. MS. McDOWELL: No, we don't think so, Your

And I would refer you to the court

page 4a of the petition its analysis. It that with

appendix where

is engaging

refers to certain types of manual assembly line jobs require the hands and gripping of tools and repetitive work

arms extended out

or above shoulder

level for Sixth

extended periods of time. Circuit was focusing on a

So, it appears that the

particular category of assembly

line jobs and not assembly line jobs generally. QUESTION: Types. It uses the plural. So, it

just talking about a particular job, which is what reduced this to, and I think that is not

thought you

quite a fair characterization of what the court said. MS. McDOWELL: That may be correct, Justice

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. person to be an Ginsburg. about It may be that the Sixth Circuit was jobs that would thinking these

categories

of

require

particular limits. though, of that would performing. QUESTION: roofing, et cetera.

There is no

indication in the record, jobs there are from

how many -- the

other assembly line

plaintiff would

be disqualified

It refers to painting, plumbing, and

MS. McDOWELL:

That's correct.

And that appears There does record

assumption by the court of appeals.

not appear, at least

from our examination of what

has been presented to this of building trades, record. QUESTION: who can't

Court, any specific discussion et cetera in the

plumbing, roofing,

I suppose raise their

it's perfectly hands above

obvious a

heart level

couldn't paint the ceiling at least. MS. McDOWELL: That may well be correct, Your

The analysis, if one -QUESTION: She'd have to paint floors

presumably.

Right?

(Laughter.) QUESTION: And most painters are not limited to

just painting floors, I don't think. MS. McDOWELL: That's correct.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Scalia. the And if one correct is focusing on limitations is whether jobs, a in work, is

analysis from a

plaintiff

disqualified

class of

jobs

that require

similar training, abilities, skills, et cetera, or a range of jobs, jobs that do not necessarily require the same could

skills and perform.

training, but

jobs that

the plaintiff

We have no

position at

this point whether

the

plaintiff in this case could she is substantially court -QUESTION: Under

or couldn't demonstrate that test the

disabled under the working

the working test, do

you just

look at the whole scope of to jobs that this

jobs, or isn't it just limited -has some demonstrated

person is I

capacity for or interest in? can't be a -- you know,

mean, you know, what if I pilot? You know, I'm in

a jet

disabled from being a being a jet pilot. not enable me to be

jet pilot.

I have no interest

My other abilities would not -- would a jet pilot anyway. Is -- is that

irrelevant to the -- to working inquiry? MS. McDOWELL: The No, it's not irrelevant, Justice on those jobs that the

analysis focuses

plaintiff, without

her impairment, would have

the skills

and ability to perform. QUESTION: Right. And had she been a roofer

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with the but it Act before? MS. McDOWELL: QUESTION: QUESTION: and Compensation Act, No, Your Honor.

I didn't think so. Under the Longshore Harbor Workers what

the courts

routinely look at

jobs are in the community that this person is eligible for after they've suffered an injury. Is that about the same

approach that we should use in this case -- in these kinds of cases -MS. McDOWELL: the statutory -QUESTION: -- when we're looking at the -- when I'm not entirely familiar with

we're looking at the employment aspect? MS. McDOWELL: Yes. I'm not entirely familiar referring to,

specific statutory

scheme you're

may be similar to looks at in

that under the

Social Security perform and any the

which

whether the

somebody can

gainful

activity

national

economy, broad a way at

Disabilities Act It looks at is

doesn't require that a more limited

standard. whether a

-- in

plaintiff There

substantially limited may be jobs that she

in

performing jobs. perform. The

still

can

question is whether there is a substantial limitation that would disqualify her from a -QUESTION: Ms. McDowell, in looking at the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your -lifting manual task approach, how -- how is the fact finder sufficiently How do

supposed

to decide

which manual

tasks are

important to constitute a substantial you weigh that? How do we decide

limitation? it? Is

there any

guidance on that? MS. McDOWELL: The courts of appeals thus far

have looked at -- aside from the Sixth Circuit, of course, have looked to those manual tasks that are basic to

everyday life.

We would say, perhaps in some disagreement it's not necessary to be substantially There may be to or

with Toyota, that impaired

in a broad range of tasks that are such as the

manual tasks.

certain manual everyday life,

particularly important grasp a pen

ability to

pencil and write, that in

themselves may be sufficient to

constitute a -- a substantial limitation on the major life activity. QUESTION: certainly you wouldn't you? MS. McDOWELL: Oh, certainly it would become a On -- on a question like substantial,

would get to a jury question at some point,

jury question in many cases. QUESTION: your way. or Conceptually it You seems to work better is just on like

say life activity and the

breathing,

issue turns

what's

substantial.

What do we do about the EEOC regs

that seem

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the wrong view. So, to embody what you would call a conceptual confusion?

They talk about working being a substantial life activity, that working shouldn't be there. of whether It should be evidentiary

the -- of whether the impairment of being able substantial, and if you can't hold

to lift your hands is

half the jobs, that's fairly good evidence.

And if you --

you know, whether it's enough or not, I don't know. But what do we do about the EEOC regs that don't seem to take the simple conceptual way you're advocating? MS. McDOWELL: The EEOC regs that you're

referring to discuss the major life activity of working. QUESTION: MS. Yes, that wrecks it. The regs also recognize that

McDOWELL:

performing manual tasks is a separate major life activity. QUESTION: -- they're I know. I know, but they're taking in your

taking the

wrong approach

whereas I find your view much simpler -- and I

agree with you, it isn't any harsher or more lenient, just simpler. What do we do about the fact that the agency in

charge seems not to have taken that route? MS. consistent McDOWELL: I believe this route is

with what

the agency

has said,

specifically

that one should consider working only if

as a major life activity

a plaintiff cannot satisfy any of the other major

life activities, including performing manual tasks.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 may also lack of sure QUESTION: May I ask you one question? Is it

relevant that she may not be able to perform a lot of jobs she never performed? For example, is it relevant that she

couldn't be a roofer, for example? MS. McDOWELL: that we have a It may or position on may not, and that at this I'm not point,

Justice burden

Stevens. to

It may,

in fact,

be the

defendant's a plaintiff duty

come forward

with

evidence that

couldn't perform, for work.

example, in

this case medium

The mere fact that she hadn't done it -QUESTION: But you don't -- you don't suggest we and that's the only

just look at possible

her employment history we look at in

thing

determining

whether her

working ability has been impaired. MS. McDOWELL: No, I don't think you look only

at the plaintiff's working history. QUESTION: It would be relevant then that or a painter or a she lot

couldn't be a roofer, electrician, of other things. MS. McDOWELL: It

may well be relevant. evidence that would she had

There other from

be countervailing skills and so

on that

prevent her

performing those particular jobs. I'd also like to note that the Sixth Circuit's

approach not only is over-inclusive

in some respects, but

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it's also under-inclusive in some respects. to preclude a plaintiff from the performance of manual the work It would seem

establishing a disability in tasks based on In manual tasks a

performed

outside

place.

many cases,

plaintiff may be capable of performing manual tasks in the work place, when the work place in does not impose but

particularly

demanding obligations

that regard,

still may be limited outside the work place. QUESTION: To what extent do we take account of For example, for a someone who it

the particular individual? is making a high

income as

corporate executive,

wouldn't matter that

she couldn't vacuum the

rug because So,

she has paid someone else to do that for many years. to what extent do we -- are what extent

we thinking of a generalized individual who is

person to

the particular

claiming to be disabled? MS. McDOWELL: QUESTION: MS. activity of generalized May I answer, Your Honor?

Yes. In focusing on a major life

McDOWELL:

manual tasks, we would suggest looking at the person. With respect to working, it's a

somewhat more tailored analysis. QUESTION: Thank you. Thank you, Ms. McDowell.

Mr. Rosenbaum, we'll hear from you. ORAL ARGUMENT OF ROBERT L. ROSENBAUM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it I do. Justice. QUESTION: But not the reasoning? Not in its entirety, but part of the ON BEHALF OF THE RESPONDENT MR. ROSENBAUM: please the Court: This case is not about a single job. upon The Sixth Circuit that Ms. the inability to perform did not rest its opinion was only unable to Mr. Chief Justice, and may it

a finding

Williams

perform one

solitary job.

While I believe that there are Circuit opinion which cannot

inconsistencies in the Sixth be reconciled

and while I disagree with part of the legal other than the reasons advanced by

analysis for reasons

petitioner, it's not a single job case. The Sixth Circuit stated at 6a of the opinion of appendix to the petition, here the impairments of deformed limbs, associated with associated with

limbs are sufficiently and such working,

severe to be like manual tasks tasks

activities affect as well as

manual

recreation, household chores, and living generally. QUESTION: presented here is, opinion? MR. ROSENBAUM: I defend the result, Mr. Chief Mr. Rosenbaum, so far as the question you would defend the Sixth Circuit's

MR. ROSENBAUM:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reading Yes. (Laughter.) MR. ROSENBAUM: appreciated that. (Laughter.) MR. ROSENBAUM: At -- at 3a of the appendix, Well, then I -- yes, sir, and I QUESTION: MR. Circuit says substantially Well, where do you disagree? I disagree when the Sixth is

ROSENBAUM: that after limited,

you determine you must go

an individual farther and

that

individual must work.

show that their

limitation affects their

And I think that that is the additional requirement

that the Sixth Circuit would place on defining substantial limitation. I think it's, at best, superfluous and, at

worst, makes every disability a working disability. But the Sixth Circuit -some extent. I must defend them to

They quoted the correct statute. Well, they ruled for your client.

QUESTION:

they cite the correct statutory that the impairment what the opinion law is.

language.

They emphasize They know

must substantially limit.

They specifically refer to this Court's says you can't prove a disability

in Sutton and

based upon a failure to do one particular job. QUESTION: of Well, in do you think at a -a fair the

the opinion

the --

the

end of

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 carryover paragraph at 4a, it says, of the it would appear, EEOC's Sutton,

nevertheless, from

the language

act, the

interpretation of the

Supreme Court

analysis in

that in order to be disabled, the plaintiff must show that her manual disability involves a class of manual

activities affecting the ability to perform tasks at work. You want class of us to read that as saying work activities, at a to perform tasks at a broad range of work

activities. MR. ROSENBAUM: QUESTION: Your Honor --

I -- I think -I'm sorry. you want us to interpret it that

MR. ROSENBAUM: QUESTION: way and that --

we have to interpret it that way in order to

save it, don't we? MR. ROSENBAUM: that sentence -QUESTION: -- come close to saving it. -- that sentence has no place in Your Honor, I would say that

MR. ROSENBAUM: the analysis at all.

That's what's superfluous about the

Sixth Circuit analysis. QUESTION: opinion then. MR. ROSENBAUM: (Laughter.) That's correct. Okay. So, I'll x that out of the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which are that pain, she opinion. MR. ROSENBAUM: QUESTION: (Laughter.) MR. ROSENBAUM: has The -- the Sixth Circuit found myofacial that she Well, it is not, Your Honor. QUESTION: I though that was the heart of the

It's x'ed out now.

the impairment, tunnel syndrome.

myotendinitis, They found

carpal

identified the major life activity of working -- excuse me -- of manual tasks. limited And in then they found that the she was life

substantially activity of

performing

major

manual tasks because

of the

uncontroverted,

uncontradicted evidence as to how this affected her life. And they should have stopped there. It was when

they went on, apparently out of some kind of concern about Sutton, that I think they lost their way, and I think that this concept of class probably only fits into of the major life activity of working. If you look at the regulations involving this, an analysis

in the petitioner's brief on the merits at 19a, says with respect to substantially the major means

subparagraph number 2, it life activity of

working,

limits

significantly restricted in the

ability to perform either I would suggest It doesn't have

a class of jobs or a broad range of jobs. to you this only has to do with working.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 limited to do with page 19a. And analysis of really, in formulating what the correct I manual tasks. Manual tasks is at the top of

substantial limitation obvious.

under the

ADA is,

think the question is regulation. regulations, Commission No

It is spelled out

in the the

party to

this proceeding challenges

says that

the Equal

Employment Opportunity to promulgate the are

didn't

have

authority

regulations. valid, and Court valid. And has

Everyone

agrees that

the regulations

in past cases in -- in that circumstance, this been willing to accept those regulations as

the

regulations It means

say

what

substantially

means.

that

they

are significantly or

restricted as to the condition, manner, or duration --- that is disjunctive, not

conjunctive -- under which an

individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can

perform -QUESTION: Yes, a particular major life task it is

activity, not a single major and not a limited number

-- not a single manual tasks. But

of manual

disjunctive, either the whatever. But of

duration or the --

the severity, So, you're

the major

life activity.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 differ I talking about a person who cannot perform for a long

duration substantial -- substantially can't perform manual tasks. And -- and the evidence here didn't support that a

except for -- except for

certain manual tasks done for

long period above shoulder level. MR. ROSENBAUM: with you. Your Honor, I would respectfully record is to the contrary. in the

I think the to you

would point out

the restrictions found page 45.

joint

appendix at, I think,

These restrictions

were permanent in nature. Justice want to

They existed since May of 1992. them a moment ago. I don't

Breyer referred to

be unduly repetitive about this, but it said that

she cannot repetitively flex or extend her wrists, flex or extend her elbows. her shoulders She can't use her arms. She can't pick She can't use up more than

repetitively.

20 pounds ever. and she a

She can only regularly pick up 10 pounds, And

can't use vibratory or pneumatic type tools. or appliance, I presume --

vibratory --

a vibratory

appliance would mixer.

be a vacuum cleaner, a hair drier, a hand

It's not that she wants to maintain that on each individual thing such as gardening, picking up getting dressed, who

playing with

her children,

a grandchild

weighs -- weighs got to prove

more than 20 -- 20 pounds,

that she has to all of

she's substantially

limited as

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that, it's that she has the generic overall limitation And

which manifests itself when -QUESTION:

in these

specific examples.

So, that's -- that's what I'd like to exactly. My impression, which may

know how to deal with

be yours, is that the simplest thing to say is the major life disability. activity, refer really to the nature

words, of the

For example, use of hands. example, would

A person who has in moving But

torticollis, for his neck, you don't

be restricted

and that interferes with necessarily have to

lots of things.

pin down one. people.

You say it

interferes with dealing with other with working around the house. a job.

It interferes

It interferes with holding

It interferes with all of them. Then the issue becomes whether it's substantial.

And all of to are

these work-related things that in respect to the

you're talking question of

evidentiary

substantiality.

Is that the right framework?

And if so,

how do we get there? MR. ROSENBAUM: QUESTION: I think we are there. Good.

We are there.

Well, what about -- so, then I saw the EEOC reg, which talks working, and isn't -about the major -- the major life activity of that would be a category a major mistake because it of working.

there isn't

life activity

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What happens at work moving is evidentiary hands is of a whether the

restriction restriction.

on

your

substantial

MR. ROSENBAUM: of substantiality that the degree

I would submit it's

a question

always, that you're

correct in stating the

of impairment and

the definition of

major life activity are inevitably analysis. guidance But what this Court and clarification

linked together in the give the

I hope will do is to how substantial

as to

limitation has to be before it is a substantial limitation under the Americans with Disabilities Act, that this Court will view the regulations, which are uncontroverted,

uncontradicted, not questioned, and will say that this, at least in this case certainly, is the standard of how

substantial it is. QUESTION: Do you think we should say that

working is a major life activity? MR. ROSENBAUM: a major life activity. is separate It is my opinion that working is It is a major life activity which tasks, and we are in

from performing manual

agreement in this case that, as activity -major

regards the separate life of performing manual

life activity

tasks, we can consider how that affects work. QUESTION: It's a little hard to think of a

disability that affects a broad

range of employment tasks

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they had matter said, point. MR. ROSENBAUM: QUESTION: life activity. MR. ROSENBAUM: case is a strong case. QUESTION: But the Sixth Circuit did not rely on That's why this -- Ms. Williams' Well, that's why Ms. Williams -that doesn't affect other areas of life. MR. ROSENBAUM: QUESTION: Well, of course.

I -- I can't -- and as Justice Breyer matters that go to a larger

these are evidentiary

But the statute does talk about major

working being a major life activity. MR. ROSENBAUM: They never got there because as a

already found Ms. Williams hence it

to be disabled

of law and

was unnecessary to

find her

disabled. QUESTION: Rosenbaum, no, they As a -not as a matter of law, that Mr.

did

say simply

summary

judgment should not have been granted for Toyota, but that summary judgment should be granted for Ms. Williams? MR. ROSENBAUM: It is my belief that that's what

the opinion says, and I -QUESTION: Well, but -but now surely we

shouldn't have to talk about beliefs as to what an opinion said.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defining MR. ROSENBAUM: I -- I have to give a caveat

about my remarks, which is in this opinion. I know

that there are inconsistencies that on the first page of the

opinion the court enunciates the summary judgment standard and says, we're judgment here to determine whether or not the

summary

against Ms.

Williams

was appropriate, But at

giving Ms. Williams the benefit of the inferences. the end of the opinion, they say, because we

have found

her ADA disabled as determine whether

a matter of law, we the requested

remand solely to was

accommodation

reasonable or whether the employer had some other defense. I can't reconcile it. QUESTION: inconsistencies. MR. ROSENBAUM: the inconsistencies. And there's They -- and I also disagree with the the they her Yes, Your Honor, that is one of That's one -that's one of the

legal analysis.

didn't make

the mistake that

petitioner says they made. made was by going

The mistake they met -step, after finding

that extra

substantially disabled, and said you've got to relate that particularly to her work, and I don't think that that's

the law, nor do I think it should be the law. QUESTION: what The trouble, of course, is means. -- is Unlike

substantially

disabled

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we employment compensation laws, this statute was not

intended to require accommodation for

everybody who is in I mean, lost a

fact disabled in -- in one way or another.

thumb, you know, lost -- lost an arm, whatever. You know, in our earlier have -we have referred opinions in this area, fact that -- that

to the

Congress clearly did not think that half of the population would be covered by -- by this. thought was a limited class It was addressing what it

limited class of people, the handicapped, a of people against I say whom there -- feelings had been of

traditional -disfavor. And limited notion substantial

what should

of --

now, do you of the

think that --

that given that meant by it's to

handicapped and a major

what it

limitation of

life activity,

sufficient to -- to refer

to simply what you referred

in the appendix, the statement of Dr. Kleinert, which says she cannot lift 20 pounds -- she no frequent 10 of can only lift 20 pounds carrying of objects

maximum and weighing

lifting or She

up to use

pounds?

cannot make of

constant,

repetitive Constant. work and are the

flexion/extension

wrist/elbow. No overhead Those

She can do it, but not constantly. no use of vibratory

or pneumatic tools. -- now, do you -- the

only things that he bring her

think that's the

enough to

within the

category of

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that evidence Honor. (Laughter.) MR. in ROSENBAUM: this case The that -first recited of I all, think the is handicapped that this piece of legislation was addressing? And that's really the question here. MR. ROSENBAUM: It was several questions, Your

you

sufficient to bring her within the coverage of the act. Secondly, there supports Ms. is more evidence in position than the record what you

Williams'

referred to, and I can go care for me to. QUESTION: you referred to. MR. ROSENBAUM: and -- and I can tell wrist case. Ms.

into it in detail if you

would

I only used

that because that's what

I can't -- I have limited

time, a sore board

you that this is not simply was diagnosed by a

Williams

certified orthopedic surgeon. knotting which were palpable.

She had muscular spasms and Those were injected with

medications, with trigger point injections. MRI of her shoulder There showing

There was an and

inflammation

peritendinitis.

is uncontradicted

testimony that housework.

she has trouble dressing. She has

She has -- does do

pain when she vacuums.

Gardening has been pretty

much abandoned.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 QUESTION: Well, now she did get workman's

compensation benefits presumably. MR. ROSENBAUM: where she initially -QUESTION: Does -does the existence of As a result of the initial event

workman's compensation schemes to substantial limitation Act?

help us in

giving meaning

language under the Disabilities

I mean, it wasn't intended to replace workman's comp somebody who gets a bad back or a tendinitis tunnel syndrome presumably can resort to

schemes, and or a carpal

workman's comp to

get some compensation and

some relief. broader

But do you think that

the Disabilities Act had a

scope and maybe was focused more on discrimination against people who are wheelchair-bound or tended to say, something like that to

where employers

gosh, I'm

not going

consider hiring anybody like that? MR. ROSENBAUM: The worker's compensation award

is probative as to the issue of disabled. it --

whether or not she is ADA or the other, but the

It is not preclusive one way a good piece of

but it's

evidence because

worker's compensation award says that this because of her injuries, in the was has suffered a area of available

is a lady who, decrease in the lives of and 20

earning capacity percent of what

where she to her,

that's

substantial.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I also want to go Scalia's comment back, if I might, to Justice

on the limited number.

When the ADA was

passed in 1990, Congress specifically million Americans who would come the act. refers to indicates The

noted there were 43

within the protection of Lawyers amicus year before, passed brief which this

National Employment of the

census data that at

1989, the time

Congress

legislation, 17.3 percent of the be considered ADA the number of disabled, and

population were going to it was anticipated that disability that would

individuals meeting went by. it's a And

increase as time say that, yes, it's

so, I think it's and

fair to of

limited 20

discrete group the is

people, but population. qualify.

close to out

percent of Americans

American going to

One

of five

QUESTION:

Well,

you're

exaggerating it

now.

It's -- it's under 20 percent, and -- and I wonder whether -- you know, when you count just -- just the wheelchair-

bound or, you know, the homebound, those who really cannot -- cannot walk, cannot you -- it brings you And -and when walk outside the house, it brings figure. you

pretty high up towards that adding people

you start

who have,

know, relatively carpal tunnel

minor manual disabilities -for example. you from

let's take that a

syndrome, Does

Is

disability?

it disable

certain manual

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether things? a Certainly it does. Would you consider that a -as a -- an impairment of a

disability that qualifies

major life activity? MR. ROSENBAUM: or not an We know that the inquiry individual That's is disabled as to an

is

individualized inquiry. have a per se

per Sutton. based

You

can't the

finding of

disability

upon

nomenclature

of a medical diagnosis.

I understand and I

think the AFL-CIO brief talks about what carpal tunnel and tendinitis and all of this in a medical sense. But there

are varying degrees of severity, and so to tell me that an individual has question of carpal tunnel syndrome that individual doesn't answer the is ADA disabled.

whether

We've got to go on and look. QUESTION: So -- so, you think that the most

severe case of carpal tunnel syndrome would qualify. MR. ROSENBAUM: QUESTION: question no. If it -answered my

Otherwise you could have

You -- you think -I -- I certainly -to be an individualized case of carpal

MR. ROSENBAUM: QUESTION: determination

-- there has the

because

most severe

tunnel syndrome could disabled person

qualify as rendering that the meaning of this

person a -this

within

specialized legislation.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of what MR. regulations ROSENBAUM: say is that That's if right because the

they're

significantly manner, or the

restricted concerning the duration of disabled. the

condition, the they

activity, then

are

substantially say that and is

And in this situation,

no one would

the average person in the American society can't flex extend repetitively, can't do repetitive motion,

limited in lifting, has trouble -QUESTION: Mr. Rosenbaum, do you have any notion

percentage of the population would be taken in if class that she was put in for

we use the standard -- the

worker's compensation purposes, a impairment -- how many people? MR. ROSENBAUM: I

20 percent occupational

have no

figures that

would

relate that to the population as a whole. QUESTION: those people, the disabled, category against? but are Is there anything that suggests that sense not the most quite in that

people who are in a who are

the people the ones the

not

who ones

are who

really can't

discriminated work at all, who

Because

obviously, are not would

discriminated against.

The ones

be discriminated against work, but -- which

would be the is something

ones who -bothering me How is

who might

about using

the major life activity

of working.

that -- how does that play out?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROSENBAUM: Well, I'm not sure that I can

explain all of its ramifications, but I can say that there was certainly a concern that people who were labeled

disabled would be stereotyped and

that employers would be

hesitant to give them the same vocational opportunities as non-disabled people would had no effect on the job. having more worker's be, even though the disability

They would perhaps be afraid of claims. They would

compensation

perhaps be afraid of thing. But -QUESTION:

of excess absenteeism, all of this type

One -- one of the problems with this disability,

is we're looking at the entry classification,

but on the facts of this case, she was able to do a job if the employer sliced it a certain way. And then the

employer

says, well, for

the good

of my work

force and

company, I don't want people to do just that narrow thing. I want them to be able to do four different practice. jobs and the --

rotate.

That's a common business

And

the concern is

does it mean if she is able

to do, as she

was able to do for 3 years, a simple job, she uniquely and all the people who work there has special job when the others different positions. MR. ROSENBAUM: this case. That issue is not reached in to be able to have this four

all have to rotate into

That is an issue

of whether or not,

with or

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what couple of to what without accommodation, Ms. Williams can perform all of the essential tasks of the employment. QUESTION: is the -And -we -- we don't get would be

I -- I know that how much

accommodation to keep that

required, but because if

it's a little hard

from view

the employer doesn't have -- would not have to seeking, then this case just a question at what

make the accommodation that she's is not very significant. It's

stage she loses. MR. ROSENBAUM: Well, let me -- let me say a Ms.

things.

It wasn't

an essential

task of

Williams' job that she body for 3 years.

performed the wiping in perform a

the shell for 3 say

She could

full job

years without that --

having to

do that,

and so,

we would

QUESTION:

But the

employer decided

to change

the workers do, and as uncommon to day, day

I understand assembly lines, from doing the out, train them same for

that's not thing

take people in and day

every

several jobs, and then they rotate. MR. ROSENBAUM: In the Sixth Circuit, there's

the case of Kiphart v. Saturn where that issue

was put to

the jury where the employer said, you've got to be able to rotate through all of the you, the tasks in your group, and person, were not since

allegedly disabled

able to,

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that we're entitled to fire you. The jury did not accept the

employer's statement because the employer did not, every job. And the area in this that in fact,

jury determined that the employees to do

require all

particular Williams

case, the went back

evidence is into, the

Ms. a job

inspection job, was would be

where medically placed

people

put, people who were known to have problems with That's the quote from up of matter

their hands and arms and shoulders. Kendall Hall. And so, this

entire group was made were put there as a And in

physically limited people and of accommodation by Toyota.

those circumstances, to argue -- a it

if Toyota on remand, if -- if we go there, wants to the jury that it jury will was essential, then have to

this is a

matter the wasn't.

determine, but

we say

QUESTION: accommodation, is it?

Essential is

not

the

standard of

MR. ROSENBAUM: QUESTION:

Excuse me? Isn't -essential isn't the it's

standard, is it, that the essential -MR. ROSENBAUM: QUESTION: MR.

employer has to show that

No.

-- that their work be arranged -No, no. There are

ROSENBAUM:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case is look at reasonableness considerations to accommodation. the definition protection individual are is of the individual that that It is -to ADA

who is eligible is a

individual

qualified

with a disability,

meaning that although they limited in a major of

significantly and

substantially

life activity, they can do

all of the essential tasks

the employment either with or without accommodation. And there was a -- if I might go on, there was a refrain in the -- in the question that you asked about, they be It do,

well, if they can do all of these things, how can disabled. The ADA looks at what

a person can't do.

doesn't help or further the

inquiry to say what they

if they can do all these things. QUESTION: both in Well, doesn't -don't you have the extent to of

-- in

trying to

assess

somebody's incapacity to do a major life activity? MR. ROSENBAUM: QUESTION: MR. You -- you inevitably --

What they can do and what they can't? In fact, inevitably by But

ROSENBAUM:

considering one, you

consider the other, obviously.

it's not a defense to the ADA claim to say, look, they can do a lot of do. That's about. what the Southeastern That's what Community College it says, stuff. You've got to look at what they can't

Bragdon means when

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the the you on to you don't have to be utterly unable. You have to have a

lot of capacity to do ADA -- to be an ADA disabled person. The ADA is about working. try to keep a job. This is It's about a lawsuit a basic, fundamental

American value.

Why shouldn't it be promoted? Mr. Rosenbaum, do? could -- could you

QUESTION: tell us what

you want us to

Assuming we

agree with --

you, you want us to as affirming a portion.

take the Sixth Circuit opinion as

summary judgment for you on the disability

Correct? MR. ROSENBAUM: QUESTION: -on the us Correct.

Now, let's assume we don't agree with point. As I understand Sixth it, the

petitioner

wants

to reverse

the

Circuit and against

reinstate the you.

district court's

summary judgment

Isn't that correct? MR. ROSENBAUM: QUESTION: Not in total. They --

I thought that's

-- that's what they

say, and I'm wondering -MR. ROSENBAUM: QUESTION: They want -can do that when you know, the

-- wondering why we

Sixth Circuit hasn't

addressed the --

other areas of disability. MR. ROSENBAUM: procedural posture The case is before the Court of proceedings for a in

summary

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the concerns judgment. law, The outcomes in the case can be, as a matter of disabled and

she's insubstantially, insignificantly

she loses, or as a matter of law, she is substantially and is significantly impaired and she wins, or she's someplace in the middle, and there's a -QUESTION: It goes to a jury. It goes to the jury. probably reach that as this Court can

MR. ROSENBAUM:

This Court, I think, can manual tasks, but

certainly

clarify, say what the correct standards are, send the case back and let the lower courts And apply the standard if -- if to the not

record before it. going

-- and so,

we are

to prevail on

our contention that

Ms. Williams is for

disabled as a matter of law,

then we want to go back

the jury trial, is what we want to do. And I know I'm 50 percent, Justice almost out. I've got to 50 to say on

Stevens, the

55 percent

vocational

testimony, that was area. It is

related to in the

Ms. Williams' It is

geographical

record.

appropriate evidence,

and it is

not mentioned at

all by

petitioner in any of petitioner's filings.

And I think as

concerns working, it is extremely strong evidence. I also want to say we have never conceded that

Ms. Williams is incapable of prevailing on working. QUESTION: Thank you, Mr. Rosenbaum.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issues? MR. ROSENBAUM: QUESTION: remaining. REBUTTAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONER MR. ROBERTS: Thank you, Your Honor. be enough to x out to x is Thank you. Roberts, you have 2 minutes

Mr.

Justice Kennedy, it will not that one sentence on page 4a.

You would also have

out the sentence on page

5a saying that an individual

disabled if their impairment, quote, seriously reduces her ability to perform the manual tasks that are job-related.

You would also have to x out the other sentence on page 4a that says a plaintiff quote, is disabled if tasks they're limited in with an

performing,

manual

associated

assembly line job, end quote.

And you would have to x out

the sentence on page 2a that says the key issue is whether the plaintiff shoulders, I in this case can use her arms, hands, and

quote, as required by

her new job, end quote. time you should get through go one step

respectfully submit that all those

by the

x-ing out

sentences, you

further and x

out the opinion as a whole

by holding that

it is reversed. Thank you, Your Honor. QUESTION: I mean, What about the other -- the other two the -- the court of appeals did not

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be fact respect tasks. purport activity activity. to reach the working as a substantial life

and what

else?

Lifting as a

substantial life

How can we reverse

it without addressing those we have the tools to do

issues also, which I don't think here? MR. ROBERTS: to the summary You can

certainly reverse on performing

with

judgment

manual working

The issues with

respect to

lifting and

were not addressed by the court of appeals. QUESTION: So, you acknowledge we would have to

remand for -- for its consideration of those. MR. ROBERTS: that the issues Unless the Court felt, with respect to given the were

working

insinuated into the case by that it was appropriate

the Sixth Circuit's approach, to address that major life

activity as well. QUESTION: asking for a ruling in Even as to manual tasks, are you on

your favor on summary judgment

that, or are you saying it shouldn't have been effectively summary judgment for the plaintiff next stage, that -- that it and then we go to the

could be a jury

question on

manual tasks? MR. ROBERTS: granted in favor No, no. of Summary judgment should you have, with

Toyota because

respect to manual tasks, an undisputed factual record, and

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Roberts. The case is submitted. (Whereupon, at 11:02 a.m., the case in the the question is whether that substantially activity. limited with meets the legal standard respect to a major of

life she

A jury can

decide things like whether can a dispute, can

lift 20 pounds this or that.

or not, if there's But those

she do

facts are all It is a purely

undisputed with legal question

respect to

manual tasks.

whether she meets the statutory standard. CHIEF JUSTICE REHNQUIST: Thank you, Mr.

above-entitled matter was submitted.)

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