Class actions alleging disability discrimination are rare. In addition to the challenges posed in other types of cases, efforts to cobble a class together face an additional layer of problems relating to the identity of the class itself. Unlike a sex discrimination case, for example, in which a class may be defined by a single trait, disabilities take myriad forms and make it all but impossible to claim that class issues predominate.

One arena in which plaintiffs have had at least some success relate to policies relating to return to work following an absence, or other blanket policies that may affect disabled individuals irrespective of the nature of their disability. A recent case, however, reflects that even plaintiffs in these types of cases will face an uphill battle.

In Lee v. City of Columbus.pdf, Case No. 09-3899 (Feb. 23, 2011), the City of Columbus implemented a policy requiring employees returning from leave or light duty to disclose the nature of their illnesses to their supervisors. Two classes of police department employees challenged the requirement, arguing that it violated the prohibition against medical inquiries under the Rehabilitation Act, 29 U.S.C. §§ 791 et seq. (which has been held to incorporate the requirements under the ADA, see 42 U.S.C. § 12112(d)(4)(A)), and their constitutional privacy rights. The district court found that the policy did, indeed, violate the Rehabilitation Act, granted summary judgment for the plaintiff classes, and also enjoined its enforcement.

The Sixth Circuit, however, reversed. Unlike the district court, it did not find a question about a general diagnosis as being overly intrusive. It also found that while the policy might result in the disclosure of a disability to the supervisor, that was not the policy’s intent and such an inquiry would not necessitate the disclosure of disabilities. It similarly rejected a ruling by the district court that the policy violated the Rehabilitation Act because the disclosure was to the direct supervisor, and not the human resources department. Finally, it concluded that the rule did not violate the employees’ constitutional rights. It remanded the case for the entry of judgment in the city’s favor.

The Bottom Line: Class action disability cases are difficult to hold together. Even uniform policies, which may make identity of the class feasible, often have legitimate underpinnings that will deprive the plaintiffs of any right to relief.