October 1999 

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"Well, this whole act is metaphysical. We've been here [in oral argument] for two days."1

-- Judge Anthony Kennedy

On a single day in June, 1999, the U.S. Supreme Court may have reduced the number of potential plaintiffs under the Americans with Disabilities Act ("ADA") by the equivalent of nearly half the population of the United States. According to estimates issued by the Court, 100 million individuals who would have been considered disabled under the ADA before the June rulings now stand outside the protection of the act. These numbers suggest that the decisions of the Court in Sutton v. United Air Lines, Inc. and its two companion cases are the most important rulings on the ADA since Congress enacted the disability discrimination statute in 1990.

In the three cases before the Court this summer, the primary question was one that lies at the threshold of every ADA case. When deciding whether a plaintiff is "an individual with a disability," should the person be considered with or without "mitigating measures" that lessen or eliminate the effect of the disability? In Sutton, the Supreme Court directly contradicted the Equal Employment Opportunity Commission ("EEOC"), the Justice Department, and eight of the nine federal circuit courts that had considered the issue.

The main holding of these cases is framed in Sutton, while the other two cases announce versions of it: an individual is not disabled, and accordingly not within the class protected by the ADA, if he or she is not substantially limited in a "major life activity" after "mitigating measures," such as medication or prosthetic devices, are taken into account. For example, an insulin-dependent diabetic is not disabled under the ADA unless, with the insulin regimen in place, he still is substantially limited in at least one of his major life activities. Likewise, a person with vision in only one eye is not disabled if her brain subconsciously adjusts in a way that renders the effects of the impairment insubstantial.

The result in these cases has been widely hailed by employers as a major step toward limiting ADA litigation. Plaintiffs' lawyers and disability advocates, not surprisingly, have criticized the decisions as denigrating congressional intent to eradicate societal barriers to full participation by persons with disabilities.

While the rulings answer whether mitigating measures are to be considered in the disability analysis, other important questions remain. For example, the degree of deference due from courts to various EEOC guidelines is more uncertain than ever. And what about employees who choose not to mitigate their disabilities? Can employers require employees to mitigate? How should clients be advised in light of these decisions?

To prove a disability under the ADA, a plaintiff must show that he 1) actually has a physical or mental impairment that substantially limits one or more of his major life activities; or 2) has a record of such an impairment; or 3) is regarded as having such an impairment.2 The EEOC and the Justice Department adopted identical interpretations of this required showing. In the words of the EEOC Interpretive Guidance, "[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices."3

Tamara Hjelle Olsen practices employment and higher education law at Gray Plant Mooty, and serves on the board of directors of the firm. She is a 1986 cum laude graduate of Harvard Law School and a 1982 summa cum laude graduate of Moorhead State University.

Mark S. Mathison is an associate in the Employment Law Practice Group at Gray Plant Mooty. He received his J.D. magna cum laude from Hamline University School of Law in 1998 and his B.A. summa cum laude from the University of Minnesota in 1995.

"the Sutton opinion seems to invite litigation over the treatment in the [EEOC] Guidance of 'working' as one of the 'major life activities' under the act."

The first circuit court to consider the mitigation issue did so in 1995.4 In that case, the 7th Circuit held that the determination of whether or not a condition constitutes an impairment, or the extent to which an impairment limits an individual's major life activities, must be made without regard to the availability of mitigating measures, thus concurring with the EEOC position on the issue. In 1997, the 6th Circuit ruled to the contrary, endorsing two to one, in dicta, the view that the EEOC Guidance was not a permissible interpretation of the act.5 The 10th Circuit, in Murphy v. United Parcel Service, Inc. and Sutton -- two of the trio of cases that went up on certiorari6 -- then followed suit, also rejecting the EEOC view. For both the 6th and 10th circuits, the essential ground for rejecting the EEOC position was, as the Supreme Court ultimately held, that the position directly conflicts with the textual requirement of the ADA that plaintiffs show that an impairment actually and substantially limits their lives.

From 1995 to 1998, seven other circuit courts held, in accord with the EEOC position, that mitigation should not be considered when determining whether a plaintiff is an individual with a disability. These courts almost uniformly found the statute to be silent on the mitigation issue, and consequently consulted both the legislative history and the Interpretive Guidance -- both of which, they asserted, required that mitigation not be considered in analyzing a disability.7

The Sutton plaintiffs were twin sisters with uncorrected vision of 20/200 to 20/400. With corrective lenses, however, both were able to "function identically to individuals without a similar impairment."8 Plaintiffs were rejected when they applied for jobs as "global pilots" with United Airlines, because their vision was worse than 20/100 in its uncorrected state. In response, the sisters filed suit under the ADA, alleging that the airline had violated the act by discriminating against them on the basis of their disability or because it regarded them as having a disability.

The United States District Court for the District of Colorado granted the motion by United to dismiss for failure to state a claim upon which relief could be granted, ruling that the sisters were not substantially limited in any major life activity because they could fully correct their impairments. In addition, because plaintiffs had not pleaded that the airline regarded them as limited in the major life activity of working, but instead only as limited from performing the requirements of the job of global airline pilot, the court ruled that the complaint failed to state a claim that the two were regarded as disabled. The 10th Circuit affirmed the lower court's decision, and the plaintiffs appealed to the United States Supreme Court.

In the Supreme Court opinion affirming the decision of the 10th Circuit, Justice O'Connor, writing for the majority, noted that the 10th Circuit holding was "in tension with the decisions of other Courts of Appeals."9 The other appellate courts, she stated, had incorrectly relied on the approach of the EEOC Guidance, which requires that mitigating measures be ignored in assessing disability. Such a requirement "is an impermissible interpretation of the statute," and, as such, is not entitled to any deference whatever.

Key to O'Connor's opinion is the finding that the text of the ADA is "unambiguous" on the issue of whether mitigating measures are taken into account in defining "disability." This finding is noteworthy in light of the many federal courts that had considered the question and determined the text to be silent on the issue. As support for her position, O'Connor pointed out that the phrase "substantially limits" in the act is couched in the present indicative form,10 using this fact as evidence that the act requires "that a person be presently -- not potentially or hypothetically -- substantially limited in order to demonstrate a disability."11 As further support for the argument, O'Connor noted that the act requires an individualized assessment of whether an impairment substantially limits an individual, and that assessing persons in their unmitigated state would force employers to make a determination on the basis of general information about "how an uncorrected impairment usually affects individuals."12 Justice O'Connor supported the holding at considerable length with language from the preamble to the act, which states that some 43 million Americans have disabilities. She asserted that the figure would be much higher if Congress had been referring to individuals who are able to effectively mitigate their impairments. Finally, Justice O'Connor considered the sisters' claim under the "regarded as" section of the disability definition. The complaint, she wrote, failed to state a claim under this section because the sisters alleged only that United regarded them as unsuited to be global pilots, and not as unable to work in a broad class of jobs.

Justice Stevens, joined by Justice Breyer, dissented.13 The heart of the dissenters' concern is that the majority interpretation of the statute leaves millions of Americans unprotected from disability discrimination. In Stevens' view, the majority opinion "leaves the airline free to decline to hire petitioners on [the basis of their uncorrected eyesight] even if it is acting purely on the basis of irrational fear and stereotype."14 Unlike the majority, the dissenters found the text of the act to be ambiguous, and argued both that legislative history should be consulted and that the Court should construe the remedial statute liberally. "In order to be faithful to the remedial purpose of the Act, we should give it a generous, rather than a miserly, construction," Stevens wrote.

In Murphy,15 which, like Sutton, came out of the 10th Circuit, the Court affirmed summary judgment for the employer. When unmedicated, the plaintiff in Murphy had high blood pressure. With medication, however, the plaintiff was able to function normally. UPS hired Murphy as a mechanic, subject to U.S. Department of Transportation regulations that disallowed his certification on the basis of his blood pressure. The Court held that because UPS regarded plaintiff as limited from performing only one particular job, and not from a broad class of jobs, UPS did not regard him as substantially limited in the activity of working. Plaintiff's claim, therefore, was defeated.

The third case in the trio is Albertsons, Inc. v. Kirkingburg.16 The Albertsons plaintiff had uncorrectable monocular vision of 20/200. Albertsons fired the plaintiff when it learned that he did not meet the federal vision standards for the position. The United States District Court for the District of Oregon granted summary judgment. The 9th Circuit reversed, but the Supreme Court reinstated the dismissal on summary judgment. Significantly, the Supreme Court applied Sutton, holding that the alleged disability must be analyzed taking into account the natural mitigation performed by the plaintiff's brain in adjusting to his monocular vision. In applying Sutton, the Court held that there is no reason to distinguish between artificial mitigating measures and those taken via systemic responses of the body itself. Because the plaintiff's brain had developed subconscious mechanisms for coping with his visual impairment, thus compensating for it and minimizing its effects, the plaintiff is not disabled.

Critics of Sutton argue that it permits employers to discriminate on the basis of stereotypes about employees with unmitigated disabilities, as long as those employees against whom it discriminates mitigate their impairments well enough to fall outside coverage of the act. The dissenters, who argue that the rulings will leave many acts of discrimination unremedied by the ADA, also express this concern. In the past, some discrimination against persons who cannot prove they are disabled has been remedied on the basis that the person was "regarded as" disabled. The Sutton opinion, however, significantly limits the use of that argument as well.

Some plaintiffs' attorneys have suggested that the new Supreme Court decisions put disabled workers in an untenable position. To qualify for protection under the act, a worker now must have an impairment that is sufficiently severe, considering all mitigation efforts, to substantially limit a major life activity, but that is not so severe that it renders the worker unable to perform the essential functions of a job with or without reasonable accommodation.17

Notwithstanding these objections, the posture of the Court in these cases -- consistently viewing persons with disabilities in the condition in which they are best able to perform -has a certain logic. Certainly, courts and employers are required to consider only the mitigated state of a disability when determining whether the individual can perform the essential functions of a job. The Sutton sisters, who argued that their vision should be a protected disability because of its limiting effect in its unmitigated state, argued on the other hand that they should be permitted to fly airplanes because of their vision in its mitigated state. By requiring that we consistently view plaintiffs through the lens of the mitigated state, the Court has clarified what is otherwise a difficult factual analysis.

At oral argument in Sutton, Justice Stevens posed the following question to the attorney for United Air Lines.

Stevens: Supposing a person needs a drug in order to -- to avoid whatever the uncorrected condition is. He has to take a pill of some kind, and he wants to be a truck driver. But he can't afford to buy the pill. Do you look at him as uncorrected or corrected?"

Mr. Englert: Uncorrected. . . . Our position is that the verb "substantially limits" is meant to make an actual and not a hypothetical - - -. . . You take into account the state you find the person in.18

Justice Stevens' question may foreshadow one of the next frontiers of ADA litigation under Sutton. If someone with an impairment refuses to mitigate or is unable to mitigate an impairment that could be mitigated, what is that the ADA status of that person? The act and its regulations do not appear to require that the individual take such mitigating measures. If his impairment in its unmitigated state substantially limits him in a major life activity, thus qualifying him as an individual with a disability, can the individual request that his employer provide the mitigating measures as reasonable accommodations? For instance, the regulations state that personal items such as hearing aids, glasses, or medication are not the responsibility of the employer. But assistive devices, such as TDD equipment on the telephone of a hearing-impaired individual, are commonly considered reasonable accommodations for which the employer is responsible. If a hearing-impaired individual refuses to wear a hearing aid, can she require the employer to provide a TDD device on her telephone? Can a vision-impaired employee refuse to wear glasses and request large print materials from his employer instead?

"Critics of Sutton argue that it permits employers to discriminate on the basis of stereotypes about employees with unmitigated disabilities, as long as those employees against whom it discriminates mitigate their impairments well enough to fall outside coverage of the act."

One of the issues repeatedly raised in these cases is the degree of deference due interpretive regulations and guidance issued by the EEOC. The issue was side-stepped by the Court, which simply held in defining disability that 1) the agency has not been delegated authority to define the term "disability" and, 2) the agency guidance is due no deference on the issue whatsoever because its interpretation constituted an impermissible construction of the act. Additionally, the Court seemed to go out of its way to invite further litigation over the question of deference. For example, in the Albertsons opinion, Justice Souter explicitly noted that the case did not present an occasion to determine the level of deference due the regulations or the Interpretive Guidance position on mitigating measures. Moreover, the Albertsons opinion calls into question the Guidance position regarding use of safety-related qualification standards.19 Perhaps most significantly, the Sutton opinion seems to invite litigation over the treatment in the Guidance of "working" as one of the "major life activities" under the act. The Court accepted working as a major life activity for the purposes of these cases (because, as it noted pointedly, no one had argued otherwise). However, the Court also noted that "it seems to argue in a circle to say that if one is excluded, for instance, by reason of an impairment, from working with others, then that exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap." It would seem inevitable now that employers and their counsel will take up the challenge to litigate this question.

In public remarks shortly after the release of the opinions, EEOC Commissioner Ida B. Castro admitted that the rulings "appear to significantly narrow the scope of those covered under the ADA."20 The practitioner and the client are left to wonder: what is the status of the Guidance now? Should the sections not explicitly rejected by the Court still be followed? While employers may disfavor some EEOC interpretations of the act, most would readily agree that being left without the assistance of agency guidance is not helpful. The ADA is broad, and often difficult to apply to everyday situations. If Congress did not intend for the EEOC to have authority to provide practical guidance, where are employers to receive it? Is a congressional response needed to these rulings? Is such a congressional response inevitable?

What effect should Sutton have on lawyers' advice to their clients? In many respects, it is simply too early to give a confident answer. While employers may justifiably breathe a small sigh of relief over the decisions, and plaintiffs may be justifiably wary of bringing ADA cases based on less-than-severe impairments, much remains the same in terms of the advice that clients should receive. In states such as Minnesota, which have their own nondiscrimination laws, only time will tell whether state courts will follow suit in adopting a more restrictive definition of disability. Regardless of whether state nondiscrimination laws are more restrictive, however, no responsible attorney will advise an employer that it may now safely ignore the ADA as to most individuals it had previously considered to be disabled. Likewise, no responsible attorney will suggest to his employee-client that he discontinue mitigating the effects of an impairment just so that he might be eligible for coverage under the ADA. It will still be necessary, whenever potential disability issues arise, for employers and employees to begin the dialogue known to the EEOC as "the interactive process," together determining reasonable accommodation for a disability. An employee must still be able to perform the essential functions of a job. The wise employer will still make reasonable accommodations to enable its workers who may be disabled to perform the essential functions of their jobs. Moreover, given the state of the labor market, employers are unlikely to reject help from any quarter, making accommodation attempts wise regardless of whether a worker is technically disabled under the act.

While advising employers on ADA issues will change little after Sutton, litigation under the act will likely be different. Plaintiffs' lawyers may have more trepidation than ever about accepting ADA cases, which were difficult to win even before these decisions. Defense attorneys, on the other hand, may be more confident than before about chances of success on summary judgment in many ADA cases. In sum, although the Sutton trio is significant, it is likely of greater interest to litigators than to client counselors, because for counselors, much less has changed.

An editorial in the Los Angeles Times shortly after the decisions were released suggested that the cases might ultimately be a win not only for employers, but for individuals with disabilities as well. The reduction in the number of potential ADA plaintiffs, according to the Times, could result in better and stronger focus on the rights of the most severely disabled, undiluted by some of the arguably frivolous lawsuits that had been making their way into American courtrooms. "The disability community should see the blow dealt to all disabled people perpetrated by the Supreme Court as an opportunity to hone the Americans with Disabilities Act into a law that will benefit those who most need protection, and to enforce a refocused act more intensively."21 Perhaps surprisingly, such a sensible result may turn out to be good for both employers and employees.

1 Transcript of Oral Argument, No. 97-1943, 1999 WL 86487, at *48 (U.S.).

2 42 U.S.C. 12102(2).

3 29 C.F.R. §1630.2(j), App. (1998) (emphasis added). See also 28 C.F.R. §35.104, App. A (1998) (Justice Department regulations).

4 Roth v. Lutheran General Hosp., 57 F.3d 1446 (7th Cir. 1995).

5 Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir. 1997) (arguably rejecting the EEOC Guidance on mitigation).

6 See Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Cir. 1997); Murphy v. United Parcel Serv., 141 F.3d 1185 (10th Cir. 1998) (Table).

7 See e.g. Harris v. H & W Contracting Co., 102 F.3d 516, 521 (11th Cir. 1996).

8 Sutton v. United Airlines , Inc., No. 97-1943, 119 S.Ct. 2139, 1999 WL 407488 *3 (U.S. June 22, 1999).

9 Id. at *4.

10 The "present indicative" form of a verb indicates how something is now, as in "the disability substantially limits the employee" as opposed to the "present subjunctive" form, used to express a condition contrary to fact, as in "the disability would be substantially limiting were it not for her mitigating measures." See e.g. J. Warriner & F. Griffith, English Grammar and Composition 157-160 (1977).

11 Sutton, 1999 WL 407488 at *8.

12 Id.

13 Justice Breyer also wrote a separate dissent on the issue of whether the EEOC has authority to define the term "disability." See 1999 WL 407488 at * 26.

14 Id. at *21.

15 Murphy v. United Parcel Service, Inc. No. 97-1992, 119 S.Ct. 2133, 1999 WL 407472 (U.S. June 22, 1999).

16 Albertsons, Inc. v. Kirkingburg. No. 98-591, 119 S.Ct 2162, 1999 WL 407456 (U.S. June 22, 1999).

17 See e.g. Marshall H. Tanick, "Cases Make ADA Plaintiffs Face Even Higher Hurdles," Minnesota Lawyer, July 12, 1999, p.10.

18 Transcript of Oral Argument, No. 97-1943, 1999 WL 86487, at *57 (U.S.).

19 See 1999 WL 407456 at *7, n.15. Souter states that "it might be questioned . . . whether the [EEOC's] interpretation . . . is a sound one," citing, for example, EEOC v. Exxon Corp., 1 F. Supp. 2d 635, 645 (N.D.Tex. 1998).

20 EEOC Press Release, July 1, 1999 available at:
http://www.eeoc.gov/press/7-1-99.html.

21 "Commentary," Los Angeles Times, June 27, 1999, 1999 WL 2172089.