California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - FEBRUARY 2000
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California Bar Journal

The State Bar of California


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Front Page - February 2000
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Appeal court denies bar's petition to reverse Brosterhous
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The Supreme Court and the ADA
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Legal Tech - If the hype is right, ASPs are H-O-T
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Public Comment

MCLE SELF-STUDY

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The Supreme Court and the ADA

In ruling on three cases, justices clarify, at least in part, what is required to state a disability claim

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By GEORGE W. ABELE
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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.

George W. AbeleIn 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 employer’s 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.

Definition

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 Court’s trilogy is what is needed to show that you are an “individual with a disability.” The act defines “disability” as follows:

“(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 U.S.C. 12102(2).

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 United’s 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.

First steps

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 2146.

Key points

Three aspects of the act led to the court’s 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 individual’s 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. 

Impairments

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 plaintiff’s 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 blood pressure.

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 body’s own responses, rather than external measures — Kirkingburg’s 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 individual’s 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-burg’s failure to meet general standards for its conclusion that he was not a qualified individual.  

Guidance

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.