By Phil Clements, Tahl Tyson, Anne Denecke and Liz Staggs-Wilson
In June 1999, the U.S. Supreme Court drastically restricted the types of employees who are protected by the Americans with Disabilities Act ("ADA"). In three separate cases the Court ruled that the ADA does not apply to people with most correctable conditions, such as poor eyesight that can be improved with glasses, or high blood pressure that can be controlled with medication. The Court rejected EEOC guidelines that "disability" should be determined without regard to such mitigating measures. In a ruling viewed as a win for employers, not only did the Court clarify and limit which employees may claim ADA protection, the Court also affirmed the right of employers to rely on safety and other regulations to define job qualifications. These rulings will have immediate impact in states without state anti-discrimination laws. States with laws patterned after the ADA, such as Oregon, will likely follow the lead of the Supreme Court in narrowly construing the definition of disability. Employers in states whose laws do not track the federal model, such as Washington and California, will need to maintain compliance with their state law.
What Is A "Disability"?
The cases turn on the Supreme Court's interpretation of the term "disability" under the ADA. The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more . . . major life activities," or as " being regarded as having such an impairment."
The EEOC has issued regulations that define "physical impairment" as "any physiological disorder . . . affecting . . . special sense organs." The agency has defined the term "substantially limits" as "unable to perform a major life activity that the average person in the general population can perform," and "major life activities" to mean functions such as walking, seeing, and even working. EEOC guidelines interpreting these regulations provide that the determination whether an individual is substantially limited in a major life activity must be made without regard to whether assistive devices or medication mitigate the limitation - an interpretation that was contested before the Supreme Court.
Sutton And Hinton v. United Airlines Inc.
Twin pilots Karen Sutton and Kimberly Hinton are substantially nearsighted but have 20/20 vision when wearing corrective lenses. United Airlines denied them jobs as global airline pilots under a company policy requiring uncorrected vision of 20/100 or better.
The Supreme Court held that the pilots were not "disabled" under the ADA. The Court reasoned that if a disability exists only where an impairment "substantially limits" a major life activity, this requires that there be a present limitation - not a potential or hypothetical one. The Court concluded that, if the pilots wore eyeglasses or contact lenses, they were not presently impaired in the major life activity of seeing. The fact that they "might," "could," or "would" be substantially limited without mitigating measures is irrelevant.
The Court considered also that the ADA requires an individualized inquiry into the question of disability. Evaluating a disability in an uncorrected state, as the EEOC guidelines required, would create a system in which persons were treated as members of a group of people with similar impairments, rather than as individuals. The Court found the EEOC guidelines inconsistent with this requirement of the ADA.
The Court also found support for its conclusion in the ADA's legislative history that approximately 43 million Americans are disabled, and that individuals with disabilities are a "discrete and insular minority subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society." The Court reasoned that this 43 million figure indicated that Congress never intended that the ADA cover the estimated 160 million Americans with correctable impairments. Rather, Congress intended to restrict the ADA's coverage to a confined and historically disadvantaged class.
The sisters further argued that the airline "regarded" them as disabled because it mistakenly believed that their visual impairment substantially limited them in the major life activity of working. The Court rejected this argument as well. The airline, the Court held, only regarded them as unable to satisfy the requirements of a particular job: global airline pilot. Since there were a number of other positions in which they could utilize their piloting skills, such as regional pilot and pilot instructor, they were not substantially limited in working. The Court held that, when the major life activity under consideration is that of working, the ADA requires that one's disability to work be "substantially reduced." The Court called into question the EEOC regulation when it observed that defining major life activities to include "work" has the potential to make the ADA circular.
In addition, the Court held that the United Airlines eyesight requirements did not violate the ADA. The ADA permits an employer to prefer some physical attributes over others, so long as the employer does not make a decision based on a physical impairment, real or imagined, that is regarded as substantially limiting a major life activity. Accordingly, the employer is free to decide that some limiting - but not substantially limiting - impairments make individuals less than ideally suited for a job, just as it is free to decide that physical conditions that do not rise to the level of an impairment "such as one's height, build or singing voice," are preferable to others.
Murphy v. United Parcel Service.
In Murphy the Supreme Court fleshed out its Sutton ruling by applying the same principles to a case involving hypertension. Vaughn Murphy, a truck mechanic with severe hypertension, was fired by UPS after a company nurse noted that his blood pressure exceeded Department of Transportation ("DOT") criteria. UPS mechanics are required to maintain commercial driver's licenses and meet U.S. Department of Health criteria because they perform road tests and road calls on company vehicles.
Relying on Sutton, the Court reasoned that the determination of disability is made with reference to the mitigating measures used. Therefore, Murphy was not "disabled" under the ADA because, when medicated, his high blood pressure did not substantially limit him in any life activity, even though it still exceeded DOT standards.
The Court also found that UPS did not "regard" Murphy as disabled because of his high blood pressure. Murphy would have been "regarded as" disabled only if UPS had mistakenly believed that Murphy's condition substantially limited him from performing a class or broad range of jobs, not just a particular job. Despite his condition, Murphy could perform a range of mechanic jobs that did not require him to drive a commercial vehicle.
Kirkingburg v. Albertsons.
Hallie Kirkingburg is nearly blind in one eye. When he sought to return to work as a commercial truck driver for Albertsons supermarket after an unrelated medical leave, the company refused to certify him because of his monocular vision. Albertsons requires that all its drivers meet the applicable DOT safety regulation. Kirkingburg did not, and Albertsons fired him. The DOT regulation, however, provided for individual waivers. Kirkingburg applied to DOT and received a waiver of the vision requirement. Albertsons refused to accept the DOT waiver on safety grounds, and refused to reemploy Kirkingburg for failing to meet its minimum vision requirements.
The Supreme Court ruled that monocular vision was not a per se disability under the ADA. Rather, the ADA requires that individuals substantiate their disability on a case-by-case basis. Claimants must offer evidence that they suffer limitations on a major life activity in terms of their own experience.
The Court also confirmed that employers may rely on government safety requirements, such as DOT regulations, to establish job qualification despite the existence of a government waiver in a particular case. The Court reasoned that Congress, when it passed the ADA, could not have intended to burden employers with defending federal safety standards.
What Do These Supreme Court Decisions Mean For Employers?
These recent Supreme Court decisions significantly narrow the possible class of persons with ADA-covered disabilities. Employers across the country are greatly relieved: had the court ruled that disabling conditions must be considered without reference to mitigating factors such as eyeglasses or medication, the number and complexity of disability issues facing employers would have greatly expanded.
Distilled to their essence, the Court rulings clarified two important points: First, that an employee or applicant asserting a disability under the ADA must prove that he or she has a "substantial limitation" in a "major life activity" despite efforts to mitigate. Second, that employers may base job criteria on federal regulations even though it may exclude certain persons with disabilities from employment.
The Court did not address the issue whether a claimant may be disabled due to limitations that persist after medication, or as a result of the negative side effects of medication. The answer to both questions is likely "yes," but must be further clarified by the federal courts in light of these rulings.
These rulings have the greatest impact in states without their own anti-discrimination laws, or in which such laws are patterned after the federal model. For example, Oregon's anti-discrimination law closely parallels the ADA. Oregon law requires that a disability "substantially limit" a major life activity, including work. Oregon law also protects disabled individuals who have "a record of" such an impairment, or are "regarded as" having such an impairment. Decisions interpreting what constitutes a "physical or mental impairment" under Oregon law generally are consistent with the ADA, though there are no current guidelines in Oregon interpreting the effect of mitigating factors. While it is likely that the Oregon Courts will follow the Supreme Court's lead, Oregon employers will have to wait to see to what extent, if any, employers are allowed to take mitigating factors into account.
In contrast, many states have anti-discrimination laws that predate the ADA, and that have been interpreted or applied more liberally than the ADA. Under Washington law, for example, "disability" is defined as an "abnormal condition" that is the reason why the adverse employment decision was made. The Washington appellate courts have consistently interpreted this very circular definition of disability more broadly than the federal definition. Moreover, unlike the ADA, Washington law does not require that this condition "substantially limit" a major life activity. Conditions such as myopia, hypertension, and monocular vision would most likely constitute an "abnormal condition" under Washington law, and there is no state guidance on the effect of mitigating factors. Many employees excluded from ADA coverage by the U.S. Supreme Court's decisions are still likely entitled to protection under Washington law. Until the Washington courts or legislature address the issue, these recent cases will have little impact on disability discrimination claims under Washington law.
The new ADA decisions may also have little immediate impact on California employers. The California Fair Employment and Housing Act ("FEHA") definition of disability is similar to the ADA: a physical or mental impairment that "substantially impacts" a "major life activity." However, recently one California appellate court ruled that a mental impairment need not substantially impact a major life activity to be a "disability." Further, the California Supreme Court has held that employees may maintain common law claims for "workplace injury discrimination" if the injury rises to the level of a "disability." Unfortunately, the court offered no guidance as to what type of "disability" could give rise to such a common law claim. While the California courts might look to the recent U.S. Supreme Court decisions for guidance, in the meanwhile cautious California employers should interpret the term "disability" broadly to include virtually any type of workplace injury or mental impairment.
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