The recent Supreme Court decision to allow professional golfer Casey Martin to compete in all PGA tournaments riding instead of walking the course despite the PGA’s walking-only rule may upset the golf cart for many employers.
While the decision on its face applies to disability claims by would-be competitors in sporting events, courts may interpret it to have broader implications for employment discrimination claims. That is because the Court relied on the federal Americans with Disabilities Act (ADA) in ruling that Martin is entitled to use a motorized golf cart during tournaments.
Although the Court was not addressing the part of the ADA that deals with employment, the decision highlights a long-standing bone of contention between courts and employers in ADA cases. The ADA says that employers must make adjustments to enable a disabled employee to perform a job, but not if the adjustments change the essence of the job itself. The outcome of many ADA cases hinges on where reasonable accommodation to a disability ends and a fundamental change in the underlying activity begins. At issue is who gets to define the “essence” of a particular job. Arguably, this decision sends a strong message that the courts do.
Generally, the ADA prohibits discrimination based on disability in employment, physical access to public spaces and the enjoyment of “public accommodations” such as golf courses. Discrimination in public accommodation includes the failure to make reasonable changes in any rules or practices that have the effect of discriminating against the disabled unless the change would “fundamentally alter the nature” of the goods, services or other accommodations provided.
PGA rules provide that golfers may use carts during the first two stages of its competition to qualify for the PGA Tour, known as the "Q-School", but not during the third and final stage of the Q-School or any of the tournaments on the PGA Tour. Martin, who suffers from a painful and debilitating circulatory disorder in his right leg, progressed through the first two stages of the Q-School using a cart. When Martin asked to use a cart in the third stage, however, the PGA refused to consider a waiver of the walking rule for him.
The PGA contended that allowing Martin to use a cart during the third stage of the qualifying rounds would fundamentally alter the nature of the competition. It argued that Martin would not be playing the same game as the other golfers because he would not face the risk of fatigue from walking the course, which is an integral part of the competitive challenge.
A majority of eight justices felt that PGA tournaments fit comfortably into the definition of “public accommodations.” They saw the critical issue as whether using a cart fundamentally alters the nature of the tournament. To resolve this question, the majority gave little weight to the PGA's argument that a test of stamina is a legitimate part of the tournament. Instead, it set about defining the game of golf. The majority concluded that the game of golf consists of striking the ball so that it is propelled from the tee to the hole in the fewest number of strokes. Once the majority defined golf in this way, it was able to conclude that using a cart did not alter the fundamental character of the competition despite the PGA rules, because the essence of golf is the ability to hit the ball, not the ability to walk the course.
The decision potentially does more than just shift from the governing association to the courts the power to define the nature of the competition when it comes to disability claims by would-be competitors in sporting events. It may also extend to an employer's prerogative to define jobs. The courts now have a strong precedent to justify giving even less deference than they currently do to an employer’s definition of what a job involves. It is now more important than ever that employers carefully analyze and define the essential duties of each job to better position themselves to head off second-guessing by the courts.
Katherine Brewer practices law in the Labor and Employment Law Department of Eckert Seamans Cherin and Mellott. She may be reached at katherine.brewer@escm.com.