How not to do a 'failure to mitgate' study in an ADA case

Statistics and the ADA - 'Is the glass half empty or half full?'

(From Jottings by an employment lawyer)

In a nutshell, the plaintiff's statistical vocational study was used against them! The voc expert estimated that the person because of their injury was not able to work in 57% of the jobs that the person was qualified.

The court, instead of concluding that this was evidence of a disability, found that this meant that the injured plaintiff could work in 43% of jobs that were out there. This to the court showed that the person could in fact work.

Note: One thing that the plaintiff's consultant missed that was huge, was there was not a labor market study done by a economist to determine the supply and demand for the jobs that the injured person was able to work. There may have been relatively few job demand for the jobs that the person could do. In this case the labor market impairment may have been more apparent.

From: Jottings....

... the 4th Circuit holds an employee who needed to lift 75 pounds to do his job, and had a 30 pound lifting restriction following a back injury, was not disabled as that term is defined in the Americans with Disabilities Act. The plaintiff had tried using a statistical finding by a vocational counselor to show he had a substantial impairment in the major life of activity of working:

The vocational consultant estimated that Taylor’s work experience and educational background qualified him for 3,281 job titles out of the 12,741 job titles listed in the Department of Labor’s Dictionary of Occupational Titles. According to the consultant, Taylor’s injury excluded him from 1,871 job titles, or 57 percent of the job titles for which he would have been qualified absent his injury. These figures translate into disqualification from 370,000 jobs in the Baltimore-Washington metropolitan area. Despite his impairment, Taylor remained able to perform the work involved in 1,410 job titles, or over 130,000 jobs in the region.

The Court assumed without deciding that working is a major life activity, but found the district court's grant of summary judgment for the employer in light of these statistics plus evidence that the plaintiff could engage in a "range of daily activities requiring endurance, flexibility, and some strength" was not wrong. Taylor v. Federal Express Corp. (4th Cir. 11/16/05) [pdf].

Responding specifically to the argument that the district court had not given appropriate deference to the consultant's finding, the Court instead held:

Taylor admittedly retains the ability to engage in a wide range of daily activity and to work in over 100,000 jobs in his geographic region, a reasonable juror could not find that his impairment substantially limits his ability to work.