As part-time work has become an increasing option for those who cannot--or do not want--to put in the standard 40 hours a week, courts have been struggling with the question of just how much of a job is a job. The issue comes up in claims for disability benefits filed by those who because of physical or psychological infirmities can manage only a few hours of employment at a time.

Are they disabled or aren't they?

The Social Security Act provides monthly benefits for those who cannot engage in "substantial gainful activity," but it is regulations of the Department of Health & Human Services which define just how much activity that is. And they say that even a part-time job is "substantial" if it provides more than $300 a month. It is that line-drawing that judges have been incresingly called on to scrutinize.

In the most recent ruling on the question, from the U.S. Court of Appeals in St. Louis on July 7 in Burkhalter v. Schweiker, HHS won a sweeping victory. The government admits that Viola Burkhalter has problems, including obesity, back pains from a degenerative disc disease, and "a hypocondrical neurosi." But they say that she's not disabled since she has been able to work from 5 to 10 o'clock each evening, five days a week, dusting, vacuuming, and emptying trash cans in doctors' offices. Even at the minimum wage, her pay tops $300 a month.

Being able to work 25 hours a week "involved the performance of significant duties, productive in nature, for pay, and constituted substantial gainful activity," noted Judge John R. Gibson. And given the deference that he and his judicial collegues are supposed to show to regulations drawn up by HHS, Burkholter was denied a disability pension.

But had she lived not in Arkansas but across the border in Louisiana, the outcome of the case might well have been different. For the Court of Appeals in New Orleans three years ago, in another challenge to a Social Security decision, ruled that "a physical limitation which reprevents a claimant from working a full workday, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the act." Similarly, in 1978, the appellate court in Richmond held that a disability claimant who was able to work a few hours a day at home transcribing from a dictation machine was not able to do the kind of "substantial gainful activity" that would support a denial of disability benefits.

It is the kind of circuit-to-circuit variation that calls out for a national clarification from the Supreme Court.

In other cases, courts ruled that:

It can be a civil rights violation to fire a worker with poor performance if that bad record is itself the result of unlawful discrimination. The U.S. District Court in Houston acknowledged that the woman who brought the sex bias suit had been doing substandard work, but traced her problems to sexual harassment from her immediate superior. Because the company did not respond when she first complained about the harassment, it in essence created the situation itself, the judge said. And so the firing violated the equal employment opportunity provisions of the 1964 Civil Rights Act.

(Lamb v. Drilco Division, June 16)