Defining Disability in the Aftermath of Sutton
Where Do We Go from Here?
By Arlene B. Mayerson and Kristan S. Mayer
When the Americans with Disabilities Act (ADA) was adopted in 1990, President Bush declared that "every man, woman and child with a disability can pass through once-closed doors into a bright new era of equality, independence and freedom." However, three Supreme Court rulings during the 1998–1999 Term posed new barriers for individuals whose disabilities are mitigated or controlled by medication or devices. Ironically, in its attempt to curb litigation, the Court spawned a whole new generation of litigation on the question of who does or does not fit within the definition of disability.
Defining Disability Under the ADA
To bring a successful claim under the ADA, a plaintiff must satisfy a three-part test. The plaintiff must establish that he or she (1) has a disability, (2) can perform the job or participate in a covered program, and (3) was excluded from employment or the program because of the disability. ( See, e.g., Lawrence v. National Westminster Bank of N.J., 98 F.3d 61, 68 (3d Cir. 1996); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 882 (6th Cir. 1996).) All three Supreme Court rulings on disabilities during the 1998–1999 Term addressed the first part of this prima facie test, i.e., whether the plaintiff has a disability as defined by the ADA.
An individual with a disability is defined by the Act as a person who (1) has a physical or mental impairment that substantially limits one or more of the major life activities of that individual, (2) has a record of such an impairment, or (3) is regarded as having such an impairment (42 U.S.C. § 12102(2)). In considering whether a person has an actual disability under the first portion of this definition, a court first considers whether the plaintiff has a physical impairment. If so, the court then identifies the life activity affected by the impairment and determines whether that activity is major. Finally, the court asks whether the impairment substantially limits the major life activity. In the 1998–1999 Term, the Supreme Court specifically addressed, in determining whether a person is disabled or not, how courts should treat mitigating measures that can make the underlying effects of a disability better.
The Recent Disability Decisions
In June 1998, the Supreme Court had opened the door for an expansive reading of the terms "impairment," "major life activity," and "substantial limitation" in Bragdon v. Abbott (524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998)), holding that a woman with asymptomatic HIV infection has a disability under the ADA. Rejecting the argument that the term "major life activity" should be limited to public or economic activities, the Court held reproduction to be a major life activity (118 S. Ct. at 2205). Further, the Court found that "substantial limitation" does not require "utter inabilities" as long as significant limitations result from the impairment ( id. at 2206).
In June 1999, the Court issued three more disability opinions, this time dealing with the issue of whether an individual has a disability when the impairment is controlled by medication or assistive devices. All three cases involved persons who were denied employment solely because of a physical impairment, even though the effects of the impairment had been ameliorated. The plaintiffs claimed that they were denied employment because of their disabilities, in violation of the ADA. In turn, the defendants argued that the claimants were not disabled because their conditions were corrected and did not interfere with any major life activities.
Sutton v. United Airlines, Inc. (119 S. Ct. 2139 (1999)) involved severely myopic twin sisters. Each had uncorrected vision of 20/200 or worse in the right eye and 20/400 or worse in the left eye. However, with corrective lenses, each had vision of 20/20 or better and thus could function the same as individuals without vision impairments. Although plaintiffs met the defendant’s age, education, experience, and FAA certification requirements, United Airlines refused to hire them because the plaintiffs did not meet the company’s minimum vision requirements of an uncorrected visual acuity of 20/100 or better. In a 7-2 decision, the Court rejected the holdings of eight of nine U.S. Courts of Appeals, which had evaluated a plaintiff’s condition in its uncorrected state, as instructed by the U.S. Equal Employment Opportunity Commission (EEOC). Writing for the Court, Justice Sandra Day O’Connor declared 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." ( id. at 2146.) Thus, the Court upheld the district court’s dismissal of the plaintiffs’ claims, finding that, with the use of corrective measures, the plaintiffs’ visual impairments did not substantially limit a major life activity.
The second case, Murphy v. United Parcel Service, Inc. (119 S. Ct. 2133 (1999)), involved a mechanic who was fired from his position as a mechanic for UPS because of high blood pressure. When unmedicated, the plaintiff’s blood pressure was approximately 250/160, above the U.S. Department of Transportation’s recommendations for certification. However, with medication, the plaintiff functioned normally, except for limitations on his ability to lift heavy objects. Following Sutton, the Court evaluated the plaintiff’s condition in his corrected state, finding him not to be substantially limited and therefore not disabled under the ADA.
Finally, in Albertson’s, Inc. v. Kirkingburg (119 S. Ct. 2162 (1999)), the plaintiff claimed that Albertson’s had fired him from his position as a truck driver because he suffered from amblyopia, an uncorrectable condition that results in monocular vision. Despite his record of successful truck-driving experience and the Department of Transportation’s certification, Albertson’s fired him because of his impairment. In an opinion by Justice David Souter, the Court reversed the Ninth Circuit decision that monocular vision constitutes a disability per se and held that a plaintiff’s ability to make subconscious physical adjustments must be considered in assessing whether the individual is disabled under the Act.
Applying the Sutton Logic in Lower Courts
Rather than clarifying the process for determining whether an individual who employs mitigating measures is disabled, the Sutton trilogy of cases has merely spawned an entirely new group of issues that, in some cases, are more complex than the previous set of challenges. There have been nearly 100 lower court interpretations of these decisions. From this point, we will focus on only three of the many new questions faced by lower courts, but it becomes evident from these discussions that the Court’s recent decisions will not necessarily result in consistent, straightforward decisions.
One interesting issue that has arisen is whether a court should consider whether a plaintiff could employ mitigating measures, even if he or she has chosen not to. In Finical v. Collections Unlimited, Inc. (Civ. A. No. 971649, 1999 WL 730498 (D. Ariz. Aug. 19, 1999)), the plaintiff claimed to have been terminated from her position as a telephone collector due to her hearing impairment. In response, the plaintiff’s employer, Collections Unlimited, argued that when evaluated in light of the mitigating measures that could have been employed by the plaintiff, her impairment did not substantially limit her hearing. The defendant contended that hearing aides should be included among the mitigating measures considered by the court, even though the plaintiff did not wear them at the time of termination. She alleged that her hearing aides picked up background noise, which she found annoying. However, because the plaintiff’s doctor had stated that he thought the plaintiff would benefit from hearing aids, the defendant argued that such measures should be included in the court’s assessment. Rejecting the defendant’s argument, the court concluded that considering the doctor’s opinion would be akin to evaluating the plaintiffs in Sutton without glasses. Hypothesizing as to the limitations the plaintiff would face if she wore a hearing aid would fly in the face of the Supreme Court’s requirement that the court conduct a case-by-case analysis of the limitations experienced by the plaintiff in his or her current state. To evaluate limitations faced by an individual who does not employ corrective devices as if she did would be just as speculative as evaluating a person employing corrective measures in an uncorrected state ( id. at 1038; see also Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999) (finding that plaintiff’s mental condition must be assessed at the time of the alleged discrimination, not three years later)).
Although this reasoning seems to follow naturally from the Supreme Court’s rulings, not all courts agree. For instance, in Spradley v. Custom Campers (No. Civ. A. 98-2577, 1999 WL 760659 (D. Kan. Aug. 19, 1999)) the district court suggested that the ameliorative effects of medication that could have been taken by the plaintiff should be considered in deciding the question of disability. In its opinion, the court pointed out that if the plaintiff, a maintenance worker who suffered from generalized seizure disorder, had been taking his Dilantin as prescribed, he would have been "far less likely" to have suffered from seizures, and would therefore not be substantially limited in any major life activity ( id. at *7).
These cases have troubling implications. Are courts going to second-guess a person’s decision whether or not to pursue medical interventions? How far are courts willing to go? What if an operation would have ameliorated the effects of an impairment but was rejected as too risky? The Finical case adopts the better approach, keeping the courts out of highly personal decisions about whether to accept or reject medical interventions.
Further, the fate of plaintiffs who suffer from impairments that, before Sutton, would clearly have constituted disabilities (such as diabetes or cancer) has become more uncertain. Courts are issuing divergent decisions, and thus rendering it difficult to discern a pattern for future plaintiffs. Some courts, when faced with a plaintiff whose impairment would generally be considered a disability in its untreated state, carefully consider all of the positive and negative effects of the mitigating measure. For example, in Taylor v. Phoenixville School Dist. (184 F.3d 296 (3d Cir. 1999)) the Third Circuit, in a decision issued before Sutton, found a former secretary for a school district who suffered from bipolar disorder disabled in her unmedicated condition ( id. at 302). The plaintiff had worked for the defendant for over twenty years without incident until she suffered the onset of bipolar disorder. She began acting strangely, hiding herself at a train station, believing that someone was after her, and attempting to disguise herself. She was admitted to a psychiatric institution unaware of the severity of her own symptoms. The plaintiff was treated with lithium and Navane and, once her symptoms were controlled, was released to return to work. Over the course of the following year, the plaintiff received numerous disciplinary notices, experienced difficulties adapting to the school’s new computer system, and did not react well to her altered job description. She was subsequently discharged. The court found that in her untreated state, the plaintiff’s mental disorder, which resulted in delusions and severe paranoia, substantially impaired her ability to think ( id. at 307–08).
Following Sutton, the court revisited its decision to determine whether the plaintiff’s condition constituted a disability in its medicated state. In finding that a genuine issue of material fact existed as to whether the plaintiff’s continuing impairment remained a disability, the court carefully evaluated the symptoms the plaintiff continued to experience even when medicated and the negative effects of the medication. The court found that the drug did not perfectly control her symptoms, as evidenced by her continued visits to the doctor despite her limited income, an inability to work on one occasion, and a decline in her work performance. Further, therapeutic levels of lithium can cause side effects such as nausea, impaired concentration, and memory problems that substantially limit an individual’s ability to think. The court concluded that the plaintiff’s difficulties at work may have been caused by the drug’s side effects. The court found that the plaintiff need not prove that she continued to experience symptoms of the same magnitude as those she experienced in an unmedicated state, nor need they occur every day ( id. at 309). Accordingly, the court denied the defendant’s motion for summary judgment, finding that there were issues of fact as to whether the plaintiff was disabled during the alleged period of discrimination. ( See also Franklin v. Consolidated Edison Co. of N.Y., Civ. A. No. 982286, 1999 WL 796170 (S.D.N.Y. Sept. 30, 1999) (finding a person with diabetes who takes medication, the side effects of which include mild sedation and insomnia, to be substantially limited in the major life activities of sleeping and working).)
Other courts, however, have considered plaintiffs whose impairments were just as severe and whose medications resulted in similar side effects—and have found the plaintiffs’ conditions not disabling. For example, in EEOC v. R.J. Gallagher Co. (181 F.3d 645 (5th Cir. 1999)) the plaintiff, the former president of the defendant company, was diagnosed with myelodysplastic syndrome, a type of blood cancer. After undergoing thirty days of chemotherapy, the cancer went into complete remission. The plaintiff was advised by his doctor that he could return to work but would have to continue to undergo three- to five-day chemotherapy sessions six times a month. Upon returning to work, the plaintiff was demoted to vice-president of sales, resulting in a 50 percent cut in salary, out of fear that the plaintiff would not be able to continue to work after having been treated for cancer. With no mention of the side effects associated with chemotherapy, the Fifth Circuit found that the plaintiff was not substantially limited in the major life activity of working ( id. at 655). Relying on the plaintiff’s claims that he could follow his treatment and still maintain his full workload, the court reasoned that, as an executive, the plaintiff could schedule his professional obligations so that he could still undergo treatment ( id.). Effectively, the court found that missing eighteen to thirty days a month for chemotherapy treatment does not substantially limit the plaintiff’s ability to work. (It should be noted that the court found that there was enough evidence to withstand summary judgment on whether the company "regarded" the plaintiff to be disabled.)
Reconciling these two opinions is difficult. On the one hand, a person taking lithium whose side effects include nausea and memory loss is disabled in the life activity of thinking. On the other, a person who would routinely be required to spend eighteen days a month in the hospital is not disabled in the life activity of working. The lesson may be that plaintiffs should present as much information as possible about the limitations of their medication or treatment and the continued symptoms they encounter. In addition, plaintiffs should always include major life activities besides working that are substantially limited. Moreover, courts should be encouraged not to focus on the differences before and after treatment, but on the severity of the current limitations.
Finally, the issue of what constitutes a mitigating measure may become a heavily litigated area as courts try to discern the line between compensatory measures and corrections. In Finical (Civ. A. No. 971649, 1999 WL 730498 (D. Ariz. Aug. 19, 1999)), the court found that the "relevant mitigating measures are those that affect the claimant’s ability to perform that major life activity" ( id. at *6). Rejecting the notion that the use of lipreading by a hearing impaired plaintiff constitutes a mitigating measure, the court reasoned that such measures improve the plaintiff’s ability to communicate and engage in normal activities but not her ability to hear ( id. at *8). According to the court, the measures at issue in Sutton—corrective lenses—actually improved the pilot-applicants’ ability to see, whereas lipreading is similar to devices such as a wheelchair or Braille in that it assists the individual in remaining functional. Although the plaintiff may be able to obtain information from a speaker by lipreading, she still remains substantially limited in her ability to hear. However, the court also found that other measures employed by the plaintiff, such as sitting in the front of her classes and asking people to face her while speaking, both improved the plaintiff’s hearing and compensated for her loss ( id.) Just these types of measures may prove difficult in the future for courts to categorize as either compensatory or corrective. With so much riding on whether a mitigating measure is included in the court’s assessment, the parties may be forced to expend sizeable resources litigating these issues. Even so, the legal analysis is built on rather fine distinctions that are susceptible to murky reasoning.
Implications for the Future
Despite the Supreme Court’s questionable of the definition of disability, one must not assume that a person who employs mitigating measures is not covered by the ADA. A person may be covered because, even with the mitigating measure, he or she is still substantially limited in a major life activity or because the mitigating measure itself is substantially limiting. Moreover, the mitigating measure may be effective at times but not at others, causing the person to have intermittent periods in which he or she is substantially limited.
A person whose symptoms are currently controlled by medication but who experienced symptoms in the past, before the correct medication or device was established, may fall under the second prong of the definition as an individual with a "record of a disability."
Plaintiffs’ attorneys should look expansively at the term "major life activity." Too often, the entire case revolves around the question of whether the plaintiff is substantially limited in working. This approach often creates a catch-22 for plaintiffs who must prove that they are so limited in order to prove coverage under the statute that the next inquiry about whether he or she is qualified is undermined.
Taking a daily inventory from the moment the plaintiff wakes up in the morning until he or she goes to sleep at night is helpful. Often the self-accommodations the person makes to get through the day are invisible, even to the individual himself or herself. For example, many people assume that a person with diabetes can simply take insulin to mitigate any symptoms. In fact, this person may be engaging in a constant balancing act, requiring vigilance and discipline. This involves monitoring body signals for fluctuations in blood sugar levels, checking blood sugar levels mechanically, and adjusting food intake, physical activity, and medications.
An expansive list of potential limitations on life activities may be found in the World Health Organization’s International Classification of Impairments, Activities and Participation (ICIDH-2), available on the WHO Website, <http:// www. int/icidh/>, and the DSM-IV Primary Care Version, available from the American Psychiatric Association. Another useful document for analyzing a potential plaintiff’s ADA claim is the EEOC’s post- Sutton instructions to field officers.
Conclusion
Despite the 1998–1999 Term rulings, litigation will continue on the issues left open by the Supreme Court. People with disabilities will continue to work to redeem the promise of the ADA. They and their allies have fought too long and hard to let this law go undefended.
Arlene B. Mayerson has been directing attorney of the Disability Rights Education and Defense Fund since 1981. One of the nation’s leading experts in disability rights law, she has been a key advisor to both Congress and the disability community on the major legislation in this field over the past decade. Kristan S. Mayer graduated from Stanford Law School in 1997, where she authored a note for the Stanford Law Review addressing the practice of flagging nonstandard test scores in light of the Americans with Disabilities Act. She is currently a litigation associate with Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco, CA.