As the United States Supreme Court moves through its
current term, its docket packed with controversial issues, it is worth taking a look back
at the conclusion of the last term, when the court issued several decisions having a
substantial impact on employers and employees.
particular, the court decided three cases on June 22, 1999 Sutton v. United Air
Lines Inc., 119 S. Ct. 2139 (1999), Murphy v. United Parcel Service Inc., 119 S. Ct. 2133
(1999), and Albertsons Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999) that clarified,
at least in part, what is required to state a claim under the Americans With Disabilities
Act of 1990 (ADA), 104 Stat. 328, 42 U.S.C. §12101 et seq.
Those cases focused on what plaintiffs must be able to show in order
to be considered disabled under the act or to show that an employer regarded
them as disabled. While the effects of those decisions have been and will be significant,
there are many issues raised by the act, such as, for example, an employers
obligation to provide a reasonable accommodation, that the cases do not address. Thus,
both plaintiffs and defendants must recognize that there is much more to the act than
these three cases discuss. This article, however, will focus only on the issues addressed
in this recent trilogy.
The ADA prohibits employers from discriminating against a
qualified individual with a disability because of that disability. 42 U.S.C.
§12112(a). The primary focus of the Supreme Courts trilogy is what is needed to
show that you are an individual with a disability. The act defines disability
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment. 42
As with most statutory definitions, it raises more questions than it
answers. The United States Equal Employment Opportunity Commis-sion (EEOC) has offered
written guidance on what it believes that definition encompasses. But, while it did not
decide the issue, the Supreme Court questioned the authority of that governmental agency
to provide such guidance. Sutton, 119 S. Ct. at 2145 (Most notably, no agency has
been delegated authority to interpret the term disability. ). The court
focused on the first and third aspects of the definition of disability:
whether one has an actual impairment that substantially limits a major life activity or is
regarded as having such an impairment.
Sutton clearly is the leading case of the three, as the other two
make reference to, and rely on, the holdings it reaches. Sutton and her co-plaintiff twin
sister had severe myopia, such that their uncorrected visual acuity was 20/200 or worse in
one eye and 20/400 or worse in the other eye. With the use of corrective lenses, however,
each has vision that is 20/20 or better. The women applied to United Air Lines for
employment as commercial airline pilots. Because they did not meet Uniteds minimum
vision requirement (uncorrected visual acuity of 20/100 or better), they were not hired.
They sued, contending that United had discriminated against them because of their visual
disability or because it regarded them as having a substantially limiting disability.
The court initially addressed the first aspect of the disability
definition did the plaintiffs have a physical impairment that substantially limited
them in one or more major life activities? and recognized that the answer to that
question turns on whether disability is to be determined with or without reference
to corrective measures. Sutton, 119 S. Ct. at 2146. The EEOC, and several circuit
courts, had concluded that persons should be evaluated in their uncorrected state, but the
court held that interpretation was impermissible: [I]t is apparent that if a person
is taking measures to correct for, or mitigate, a physical or mental impairment, the
effects of those measures both positive and negative must be taken into
account when judging whether that person is substantially limited in a major
life activity and thus disabled under the act. Sutton, 119 S. Ct. at
Three aspects of the act led to the courts conclusion.
First, the language substantially limits, being in the
present indicative verb form, suggests that a person presently be substantially limited,
as opposed to a person who might, could, or would be
substantially limited if corrective measures were not taken.
Second, the definition focuses on the individual it asks
whether the impairment substantially limits the major life activities of such
individual. 42 U.S.C. 12102(2). Evaluating persons in their uncorrected state, the
court found, would force courts to consider how an uncorrected impairment usually affects
individuals rather than on an individuals actual condition.
Third, the court considered the congressional finding which
had been enacted as part of the ADA that some 43 million Americans have one
or more physical disabilities. Sutton, 119 S. Ct. at 2147. If Congress had intended
to include within the definition of disability all those who were able to take corrective
measures such as eyeglasses the congressional finding would have been 160
million or more.
The court was quick to point out, however, that use of a corrective
device did not automatically exclude a plaintiff from coming within the definition of
having a disability: The use or non-use
of a corrective device does not determine whether an individual is disabled; that
determination depends on whether the limitations an individual with an impairment actually
faces are in fact substantially limiting. Sutton, 119 S. Ct. at 2149.
The court next turned to the third aspect of the disability
definition did the plaintiffs show that the employer regarded them as
having an impairment that substantially limited them from performing one or more major
life activities. The court found that if a physical characteristic or a medical condition
does not rise to the level of substantially limiting, an employer is free to
decide that it makes individuals less than ideally suited for a particular job. Sutton,
119 S. Ct. at 2150.
To establish a substantial limitation in the major life activity of
working, the court held, a plaintiff must be precluded from more than one type of
job, a specialized job, or a particular job of choice. Sutton, 119 S. Ct. at 2151. Plaintiffs thus are required to show that they are
unable to work in a broad class of jobs. Because the plaintiffs in Sutton alleged that
United regarded them as unable to do only a particular job commercial global pilot
it did not regard them as substantially limited in the major life activity of
working, and their claims properly had been dismissed. Interestingly, the court again took
a pot shot at the EEOC regulations, questioning (without deciding) whether major
life activities properly included work.
The Murphy case
In Murphy, the court relied on its decision in Sutton to conclude
that a mechanic dismissed from his job at UPS because of his high blood pressure had not
stated a claim under the ADA. The court noted the presence of evidence showing that with
medication, the plaintiffs high blood pressure [did] not significantly
restrict his activities, and, in general, he could function normally and
engage in activities that other persons normally do. Murphy, 119 S. Ct. at 2136.
The court noted that it was not considering because petitioner
did not seek certiorari on this issue whether the plaintiff was disabled due to (i)
limitations that might persist despite his medication or (ii) the negative side effects of
his medication. Murphy, 119 S. Ct. at 2137. Thus, as the court suggested in Sutton,
persons might meet the definition of disability even though they are taking corrective
measures to meet the disability; indeed the corrective measures themselves (medication)
could have side effects that bring the individual within the disability definition.
As in Sutton, the court in Murphy also concluded that he could not
establish that UPS regarded him as having an impairment that substantially
limited him from engaging in the (assumed) major life activity of working. The court based
this conclusion on the evidence that UPS did not regard him as unable to perform a broad
class of jobs, but rather only the specific mechanic job that required a certification to
drive a commercial vehicle, a certification that Murphy could not get because of his high
The Albertsons case
In Albertsons, the court addressed whether the plaintiff had
established that he was disabled under the act, but also looked at whether
Kirkingburg was a qualified individual with a disability.
Kirkingburg was a truck driver for Albertsons who suffered from
amblyopia, an uncorrectable condition that leaves him with 20/200 vision in his left
eye and monocular vision in effect. Albertsons, 119 S. Ct. at 2165-66. When
Albertsons discovered the visual impairment which caused him to fail to meet basic
Department of Transportation standards for truck drivers it fired him.
Kirkingburg had applied to the DOT for a waiver of its standards
under an experimental program the DOT had instituted as a means of collecting data on the
effects of visual impairments. Kirkingburg received a waiver subsequent to his
termination, but Albertsons would not rehire him.
The Ninth Circuit had found that Kirkingburg was disabled because
the manner in which he sees differs significantly from the manner in which most
people see. Albertsons, 119 S. Ct. at 2167. The Supreme Court, however, concluded
that the Ninth Circuit was too quick to find a disability. Id. at 2168.
The court made three important points:
(1) a mere difference in the way an individual performs a
major life activity does not amount to a substantial limitation;
(2) mitigating measures should be considered even if they are the
bodys own responses, rather than external measures Kirkingburgs brain
had developed subconscious methods to adjust for the visual deficiency; and
(3) the disability determination must be on an individual basis:
monocularity, without evidence of the individuals degree of loss, was not in and of
itself enough to establish a disability.
The court then focused on whether Kirkingburg was a qualified
individual, given that he did not meet minimal DOT standards, but had qualified for
a waiver. The court found that the waiver in this instance was part of an experimental
program by the DOT and did not modify the general visual acuity standards. Albertsons was
permitted, therefore, to rely on Kirking-burgs failure to meet general standards for
its conclusion that he was not a qualified individual.
The trilogy provides a great deal of guidance to employees who
attempt to assert and employers who attempt to defend claims brought under the act. As
noted, however, the primary focus is only on the definition of disability. The act and the
judicial opinions it has spawned reach far beyond this narrow issue and must be considered
by plaintiffs and defendants alike.
George W. Abele is a partner
in the Los Angeles office of Paul, Hastings, Janofsky & Walker LLP. He represents
private and public employers in all aspects of employment law, including wrongul
discharge, discrimination and sexual harassment litigation, as well as more traditional
labor law issues, including collective bargaining, arbitrations, organizing campaigns and
wage/hour issues. The majority of his practice has focused on trial and appellate
litigation, with a particular emphasis on dispositive motions before trial, post-trial
motions and appellate briefs.