Supreme Court Limits Coverage of the Americans With Disabilities Act
In mid-July, the U.S. Supreme Court issued three opinions construing the Americans With Disabilities Act1 ( ADA) that narrow considerably the class of people eligible to pursue disability discrimination actions under the ADA and the Rehabilitation Act.2 The most far-reaching bright line rule established by the Court in these three cases is that the determination of whether a person has a disability shall be made with reference to the extent to which he or she overcomes the effects of a physical or mental impairment through the use of “mitigating measures,” such as medication, assistive mechanical aids, or even the body’s own means of compensating for physical or mental impairments. The decisions reverse the legal standard previously applied to disability discrimination cases by the Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ), and eight of the nine U.S. circuit courts of appeals to consider the issue.
Under the ADA, a person may establish a disability by making one or a combination of three separate showings. First, he or she may do so by demonstrating the presence of what the court referred to as an “actual” disability.3 A person claiming ADA coverage under the “actual” disability definition of the act must show a physical or mental impairment that substantially limits the performance of a major life activity, such as seeing, walking, or standing.4 Second, a person may do so by demonstrating a record of such an impairment.5 Third, a person may do so by demonstrating that he or she is “regarded as” having such an impairment.6 The Court’s decisions construing the ADA shed much needed light on what a plaintiff must allege and prove to obtain the protection of the ADA’s coverage under the first (“actual”) and third (“regarded as”) definitions of “disability.”
The lead decision, to which the other decisions repeatedly refer, is Sutton v. United Air Lines, 119 S. Ct. 2139 (1999). In Sutton, twin sisters had applied for airline pilot jobs with United Airlines. Both sisters were commercial pilots with thousands of flying hours and employed by a regional commuter airline. Both sisters were severely nearsighted, with visual acuity of 20/200 or worse when uncorrected. However, with corrective lenses (glasses or contacts) their vision was perfect. Although they both met the Federal Aviation Administration’s visual acuity standard, United declined to hire them because they failed to meet United’s self-imposed standard requiring pilots to have uncorrected vision of 20/100 or better. The Suttons sued under the ADA, alleging they were disabled under the “actual” and “regarded as” definitions of disability. Without corrective lenses, they argued, they were substantially limited in the major life activity of seeing and were actually disabled. Additionally, they argued United regarded them as being substantially limited in the major life activity of working—specifically the major life activity of working as a “global airline pilot.”
In Albertson’s Inc., v. Kirkingburg, 119 S. Ct. 2162 (1999), Albertson’s had hired Hallie Kirkingburg as a truck driver in August 1990. At the time Albertson’s hired him, he had more than 10 years of truck driving experience, and performed well on a road test. Prior to starting work for Albertson’s, a physical exam revealed that he suffered from amblyopia, which for the most part rendered him able to see out of only one eye. The doctor who discovered the condition nonetheless erroneously certified that he met the Department of Transportation’s basic vision standard. Kirkingburg injured himself on the job in December 1991 and did not return to work for 11 months. Prior to returning, he underwent a company-required physical. This time the doctor conducting the examination correctly noted that Kirkingburg’s vision did not meet basic DOT standards and told him he’d have to request a waiver under an experimental program DOT had implemented during Kirkingburg’s medical absence. DOT granted Kirkingburg’s waiver request in early 1993, but Albertson’s refused to rehire him. Kirkingburg sued under the ADA, arguing he was disabled under the “actual” definition of disability insofar as his visual impairment substantially limited him in the major life activity of seeing.
The third case is Murphy v. UPS Inc, 119 S. Ct. 2133 (1999). UPS hired Vaughn Murphy as a mechanic in August 1994. Although Murphy had been diagnosed with severe high blood pressure when he was 10 years old, with medication he was not limited in any routine daily activities. Indeed, he had worked as a mechanic for more than 20 years when UPS hired him. The mechanic position into which Murphy was hired required employees to have a commercial vehicle certification from the DOT, and at the time UPS hired Murphy his blood pressure was outside DOT’s qualifying limits. In October, after a medical supervisor noticed the oversight, UPS fired Murphy, believing that his blood pressure rendered him not certifiable under DOT standards. Murphy sued under the ADA, alleging he was disabled under the “actual” and “regarded as” definitions of disability.
The Supreme Court resolved all three cases in favor of the employers on the grounds that the plaintiffs failed to state a claim upon which relief could be granted. Specifically, all three plaintiffs failed, for various reasons spelled out by the Court, to allege that they were “disabled” within the meaning of the ADA according to either the “actual” or “regarded as” definitions of the term “disability.” Factually, the cases are strikingly similar in two respects.
The first is obvious. Indeed, the first similarity served as the landmark issue—all of the plaintiffs had impairments which if unmitigated, either by medication, assistive technology, or the body’s own ability to compensate, would result in substantial limitations in major life activities, but which when mitigated did not have such an impact.
The second similarity is more subtle but is, when considered in light of the findings upon which the ADA was based,7 more helpful to understanding the macro impact of these three decisions. The plaintiffs in all three cases would appear to the average observer to be anything but disabled in spite of their impairments. They were all accomplished, and by most measures successful in their chosen professions. The Sutton sisters were regional commercial airline pilots. Murphy was a veteran mechanic with two decades of experience, and Kirkingburg had been driving trucks for over 10 years. Moreover, all three were still able, as of the date of the Court’s decisions, to continue in those chosen professions, albeit not in the specific jobs they desired.
Consideration of “Mitigating Measures”
In Sutton, the Court laid out three bases supporting its holding that mitigating measures should be considered when determining if a person is “actually” disabled. First, the Court focused on the precise language of the “actual” disability definition, reasoning the statute dictates that an impairment rises to the level of a disability only if it “substantially limits” a major life activity. The Court noted the phrase “substantially limits” describes a condition in the present indicative form of the verb “limit.” Accordingly, the specific language of the statute requires an adjudicatory body to inquire whether a plaintiff claiming to be disabled under the “actual” disability definition is presently substantially limited—not whether a person would hypothetically or speculatively be limited without the use of mitigating measures such as assistive devices or medication. “To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected, it does not ‘substantially limi[t]’ a major life activity.”8
Second, the Court reasoned that a rule prohibiting the consideration of mitigating measures in the “actual” disability analysis “would require courts and employers to speculate about a person’s condition and would, in many cases, force them to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual’s actual condition.”9 The Court reasoned that such a requirement to homogenize people with similar impairments into single groups according to the nature of their impairments would run counter to the ADA’s requirement for individualized assessment.
Third, citing the first Congressional finding in §12101(1) of the ADA (that 43 million Americans have one or more physical or mental disabilities), the Court concluded:
[The] 43 million figure reflects an understanding that those whose impairments are largely corrected by medication or other devices are not “disabled” within the meaning of the ADA. . . . Had Congress intended to include all persons with corrected physical limitations among those covered by the Act, it undoubtedly would have cited a much higher number of disabled persons in the findings. That Congress did not cite a higher number is evidence that the ADA’s coverage is restricted to only those whose impairments are not mitigated by corrective measures.10
Broadly Defined “Mitigating Measures”
When deciding whether Murphy (medically correctable high blood pressure) and Kirkingburg (monocular vision) were actually disabled, the Court followed the rule it established in Sutton, holding they were not actually disabled because mitigating measures were capable of ameliorating the adverse effects of their respective impairments to such an extent that those impairments fell short of substantially limiting any major life activities. What sets Kirkingburg apart from the other two cases in terms of precedential significance is the apparent breadth of the Court’s understanding of what constitutes a mitigating measure. In Sutton, the mitigating measure was the use of lenses to correct nearsightedness. In Murphy, the mitigating measure was blood pressure medication, which one would assume is rather common, like corrective lenses. In Kirkingburg, however, the Court introduced the notion that the body’s own means of adapting to and, presumably, overcoming to a great extent, disabling conditions, may also sufficiently abate the limiting effects of an impairment so much so that the impairment is no longer considered disabling. The Court pointed out the Ninth Circuit “acknowledged that Kirkingburg’s ‘brain has developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensates for his disability.’”11 Following Sutton, the Court “s[aw] no principled basis for distinguishing between mitigating measures undertaken with artificial aids, like medications and devices, and measures undertaken whether consciously or not, with the body’s own systems.”12
The Sutton sisters also argued that because they were denied employment on the basis of their uncorrected vision, they were “regarded as” disabled by United Airlines. Addressing their argument, the Court clarified what a plaintiff must allege to make a prima facie showing that an employer regarded him or her as disabled. In particular, the Suttons did not make what the majority referred to as the “obvious argument,”13 that, because of their nearsightedness, United regarded them as substantially limited in the major life activity of seeing. They likely would have been entirely reasonable in making such an argument. As Justice Stevens pointed out in his dissent, less than two percent of the population suffers from such severe myopia. Nevertheless, the Suttons argued “only that [United] mistakenly believes their physical impairments substantially limit them in the major life activity of working. . . [in] the job of global airline pilot, which they argue is a ‘class of employment.’”14
The Court began its analysis of the Suttons’ “regarded as” argument by reciting the two ways a person is covered under the ADA’s “regarded as” definition of disability. A person may be so covered if an employer mistakenly believes he or she has a physical impairment that substantially limits one or more major life activities, or mistakenly believes that an actual nonlimiting impairment substantially limits one or more major life activities. “In both cases, it is necessary that a covered entity entertain misperceptions about the individual—it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.”15
The Court assumed, without specifically deciding, that working is in fact a major life activity under the ADA.16 Given that assumption, the Court resolved the question whether the Suttons were substantially limited in the major life activity of working by reference to EEOC and DOJ regulations and published guidance addressing that issue. According to the EEOC, a person is significantly limited in the major life activity of working if he or she is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”17 Against that backdrop, the Court was left to define the concepts “range of jobs” and “class of jobs.” It did so broadly.
Interpreting the regulations and guidance, the Court held,
[O]ne must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.18
The Court held “[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”19 The Court rejected the Suttons’ argument that “global airline pilot” was a “class of jobs” under the act, instead finding them perfectly capable of working in other jobs requiring similar skills, training, and ability, such as commercial airline pilot, instructor pilot, or commercial courier service pilot.
Kirkingburg apparently made the same tactical error in arguing his case as did the Suttons by failing to offer evidence about the extent to which he was substantially limited in any major life activity other than working. In Sutton, the Court considered the evidentiary shortfall in the context of a “regarded as” argument, and in Kirkingburg it considered the evidentiary shortfall in the context of an “actual” disability argument, but the underlying point is the same. Plaintiffs hoping to avail themselves of coverage of the ADA should offer as much evidence as possible about the extent to which they are limited in major life activities. Also, according to the Court in Kirkingburg, simply showing the employee performed major life activities in a manner “different” from other people is not sufficient to entitle a person to ADA coverage. Rather, the plaintiff must be substantially limited performing those activities.20 In Kirkingburg, the Court recognized that most people with impairments that leave them with only monocular vision will meet easily the ADA’s definition of “actual disability.” Nonetheless, plaintiffs with such a disability still have an obligation to do what Kirkingburg and the Suttons failed to do: offer evidence of substantial limitation in a major life activity other than working.
[T]he Ninth Circuit was too quick to find a disability.. . . That category [of people with impairments like Kirkingburg], as we understand it, may embrace a group whose members vary by the degree of visual acuity in the weaker eye, the age at which they suffered their vision loss, the extent of their compensating adjustments in visual techniques, and the ultimate scope of the restrictions on their visual abilities. These variables are not the stuff of a per se rule.21
The Court concluded, “We simply hold that the Act requires monocular individuals, like others claiming the Act’s protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial.”22
Murphy’s “regarded as” argument failed for the same reason the Sutton’s argument failed. He argued that since UPS fired him due to his hypertension, it must have regarded him as being substantially limited in the major life activity of working. UPS contended that it did not regard Murphy as limited in the major life activity of working, only that Murphy was unqualified to work as a UPS mechanic because he was unable to be DOT certified.23 The Court retraced the analytical path it followed in Sutton, referencing much of the same regulatory and guidance language (inability to perform either a class or a broad range of jobs) and rejected Murphy’s argument for the same reason. Like the Suttons, Murphy didn’t argue he was regarded as disabled because of some combination of factors or beliefs held by UPS, including the fact that UPS believed he could not meet DOT requirements. Rather, he balanced his case on the narrow assertion that UPS’s belief that he could not meet those requirements—in and of itself—raised a genuine issue of material fact that UPS regarded him as disabled. The Court held,
At most, petitioner has shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle. . . . Petitioner has put forward no evidence that he is regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus does not require a DOT certification. Indeed it is undisputed that petitioner is generally employable as a mechanic.24
Just as the Court in Sutton had found the sisters generally employable in other pilot jobs, in Murphy the Court specifically noted,
[R]espondent presented uncontroverted evidence that petitioner could perform jobs such as diesel mechanic, automotive mechanic, gas-engine repairer, and gas-welding equipment mechanic, all of which utilize petitioner’s mechanical skills. Consequently, in light of petitioner’s skills and the array of jobs available to petitioner utilizing those skills, petitioner has failed to show that he is regarded as unable to perform a class of jobs.25
Employer’s Reliance on Established Standards
With regard to the fact that United’s vision requirement was more stringent than the FAA’s, the Court held,
Standing alone, the allegation that respondent has a vision requirement in place does not establish a claim that respondent regards petitioners as substantially limited in the major life activity of working.. . . [A]n employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment—such as one’s height, build, or singing voice—are preferable to others, just as it is free to decide that some limiting, but not substantially limiting impairments make individuals less than ideally suited for a job.26
Whereas Sutton addresses the extent to which an employer can require its employees to meet its own self-imposed standards, Kirkingburg and Murphy flesh out the extent to which an employer may rely on governmentally established standards that operate to disqualify employees on the basis of their impairments without such reliance perfecting the disqualified employee’s “regarded as” case.
In Kirkingburg, Albertson’s had hired Kirkingburg after erroneously determining he met DOT certification standards. That error went undiscovered for over two years. In the interim DOT implemented a program whereby people not meeting existing standards could apply for a waiver in certain cases. Kirkingburg argued, and the Ninth Circuit held, that Albertson’s failure to allow Kirkingburg to seek a waiver before discharging him violated the ADA. The Supreme Court reversed. Upon close inspection, the Court determined that DOT’s waiver program was never intended to substantively alter the basic DOT requirements, on which an employer may rely, but was merely an experimental period during which DOT could gather data in an effort to determine the validity of its then existing standards. It followed, according to the Court, “[t]he only question, then, is whether the ADA should be read to require. . . an employer to defend a decision to decline the experiment.” Noting that Congress recognized in passing the ADA “that federal safety rules would limit application of the ADA as a matter of law,”27 The Court answered the question in the negative. The bright line rule appears to be, when an employer makes an employment decision based on its reliance on governmentally defined criteria, it need not consider allowing the employee to seek a waiver that the agency did not intend to substantively change the basic criteria of the regulation.
In Murphy, the Court discussed an interesting twist on the notion that an employer is entitled to rely on governmentally defined job criteria discussed in Kirkingburg. Justice O’Connor, writing for the majority, suggests rather unambiguously that an employer who acts on an erroneous belief that an employee would not meet some governmentally defined standard, in and of itself, would not be actionable under the ADA.28 The rationale was entirely consistent with what appears to be the Court’s more macro understanding of the evil the ADA was enacted to eradicate, in that so long as the employer’s error is based on a misunderstanding of the regulatory requirement, rather than a myth, fear, or stereotype about the employee’s impairment, there is no actionable discrimination under the ADA.
In the wake of these three cases, the bright line rule is: The determination of whether a person is “actually disabled” under the first definition of disability is to be made with reference to mitigating measures. The mitigating measures employers and courts must consider when making this determination include the body’s own means of adapting to impairments, as well as assistive devices and medications.
As for cases in which an employee claims ADA protection under the “regarded as” definition of disability, an employee must show more than that the employer fired or refused to hire him or her based on the employee’s impairment-related inability to meet some predefined standard for a particular job or a particular type of job. In order to show successfully that the employer regarded the employee as disabled, the plaintiff should be prepared to marshal as much evidence as possible demonstrating the employer’s belief that he or she was substantially limited in one or more major life activities. In this regard, it is important to remember that a person whose physical condition does not render him or her “actually” disabled, may nonetheless be “regarded as” disabled. Unquestionably, in the wake of the Supreme Court’s decisions in these three cases, plaintiffs will face a greater burden in their attempts to show they are disabled under the ADA. However, the plaintiffs’ bar would do well to recall that in the majority of employment discrimination cases, the discrimination is alleged to have resulted from the misdeeds of an animate culprit, like a single manager or hiring officer, rather than a preexisting hiring physical standard, such as those addressed in these cases.
Specifically, in the garden-variety disability case, although it may be much more difficult to establish an aggrieved employee is actually disabled, the “regarded as” door is still wide open. Read carefully, the new ADA cases do very little to reign in the avenues available to plaintiffs seeking to show they were “regarded as” having disabilities. This is especially true in the case of plaintiffs’ claiming to be regarded as disabled due to mental impairments and disabilities, about which most people, regrettably, still harbor many of the myths, fears, and stereotypes the ADA was enacted to eradicate. The Suttons, Murphy, and Kirkingburg failed in their attempts to show they were entitled to ADA coverage because they proffered very little—if any—evidence of substantial limitations, “actual” or “regarded,” other than that they could not have the particular jobs they wanted. (Of course, the reason they did not offer such evidence is probably because they were not in fact so limited.) Nonetheless, plaintiffs with less “widely shared”29 impairments, such as mental disorders and illnesses, will in all likelihood continue to confront the stereotypical reflexive reactions by employers the likes of which the act was intended to overcome.
Good Decision, Bad Decision?
Despite the doomsdayish public lament of disability rights advocates, the cases do not appear to “cut the heart out of the ADA.”30 The “findings” section of the act repeatedly addresses what Congress had in mind when it passed the ADA, using phrases such as: “Historically, society has tended to isolate and segregate individuals with disabilities. . . discrimination against individuals with disabilities continues to be a serious and pervasive social problem.”31 & #x201c;People with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally.”32 & #x201c;Individuals with disabilities are a discrete and insular minority. . . relegated to a position of political powerlessness in our society, based on. . . resulting from stereotypical assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.”33 There should be “equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”34 & #x201c;The continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting form dependency and nonproductivity.”35
With utmost respect for disability rights advocates and others criticizing the Court for, as they suggest, unfairly undoing what Congress has done, one still cannot help but respond, “Huh?” Do they really suggest that commercial airline pilots, successfully employed truck drivers, and specialty mechanics fall in the category of people who have been historically isolated, severely disadvantaged socially, vocationally, economically, and educationally, politically powerless, nonproductive dependents who have been excluded from our justifiably famous free society? As the Court found, the answer seems clearly to be “no.”
1 4 2 U.S.C. §§12101 et seq. (1990).
2 On October 29, 1992, the President signed the Rehabilitation Act Amendments of 1992. The amendments substituted the word “disability” for “handicap” throughout the Rehabilitation Act. Moreover, the 1992 amendments provide in pertinent part that the ADA standards will be applicable to the Rehabilitation Act. Specifically, 29 U.S.C. §791(g) provides: “The standards used to determine whether this section has been violated in a complaint alleging non-affirmative action employment discrimination under this section shall be the standards applied under title I of the [ADA](42 U.S.C.12111 et seq. ) and the provisions of sections 501 through 504, and 510, of the [ADA](42 U.S.C. 12201-12204 and 12210) as such sections relate to employment.”
3 Sutton v. United Air Lines, 119 S. Ct. 2139, 2144 (1999).
4 4 2 U.S.C. §12102(2)(A).
5 4 2 U.S.C. §12102(2)(B).
6 4 2 U.S.C. §12102(2(C).
7 4 2 U.S.C. §1201(a).
8 Sutton, 119 S. Ct. at 2146.
9 Id. at 2147.
10 Id. at 2149. The Court pointed out that corrective devices, medications or, by implication, other ameliorative measures, by themselves do not relieve a person’s disability. “The use or nonuse 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.”
11 Kirkingburg, 119 S. Ct. at 2168.
12 Id. at 2169.
13 Sutton, 119 S. Ct. at 2150.
14 Id. (emphasis added).
16 The EEOC, and the DOJ have consistently contended that working is a major life activity. Regulations published by both agencies describe in detail how a complainant’s allegation that he is substantially limited in the major life activity of working should be analyzed.
17 Sutton, 119 S. Ct. at 2151.
19 Id. (citing 29 C.F.R. 1630.2(j)(3)(i)).
20 Kirkingburg, 119 S. Ct. at 2168–2169.
21 Id. at 2169.
23 As in Kirkingburg, there was a question about whether Murphy may have been eligible for an optional temporary health certification. But since that issue was neither addressed by the circuit nor raised in the petition for certiorari, the Court never addressed it.
24 Murphy, 119 S. Ct. at 2139.
26 Sutton, 119 S. Ct. at 2150.
27 Kirkingburg, 119 S. Ct. at 2172.
28 & #x201c;The only issue remaining is whether the evidence that petitioner is regarded as unable to obtain DOT certification (regardless of whether he can, in fact, obtain optional temporary certification) is sufficient to create a genuine issue of material fact as to whether petitioner is regarded as substantially limited in one or more major life activities.” Murphy, 119 S. Ct. at *13.
29 Sutton, 119 S. Ct. at 2158 (Stevens, J., dissenting).
30 A Sharper Image of Bias: Three Major Disability Decisions Put Stricter Limits on Who Can Sue Employers for Discrimination in Hiring, Newsweek, July 5, 1999, at 27 (quoting Chai Feldblum, professor, Georgetown University Law Center).
31 4 2 U.S.C. §12101(a)(2).
32 4 2 U.S.C. §12101(a)(6).
33 4 2 U.S.C. §12101(a)(7).
34 4 2 U.S.C. §12101(a)(8).
35 4 2 U.S.C. §12101(a)(9).
Peter A. Marksteiner is a judge advocate in the U. S. Air Force assigned to the Employment Litigation Branch, Air Force General Litigation Division, in Arlington, VA. He received a B.S. in criminology from Florida State University in 1986; master of aeronautical science, Embry-Riddle Aeronautical University in 1991; J.D. from Florida State University College of Law in 1992; and LL.M. in labor and employment law from Georgetown University Law Center in 1998. The opinions expressed herein are solely those of the author and do not represent an opinion, position, or policy of the U. S. Government, the Department of Defense, or the Department of the Air Force.