Sutton: Use of Mitigating Measures to Determine Disability Under the Ada

• Publication year: 1999
• Pages: 59
• Citation: Vol. 28 No. 3 Pg. 59

28 Colo.Law. 59 Colorado Lawyer 1999.

1999, March, Pg. 59. Sutton: Use of Mitigating Measures to Determine Disability Under the ADA

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59

Vol. 28, No. 3, Pg. 59

The Colorado Lawyer
March 1999
Vol. 28, No. 3 [Page 59]

Specialty Law Columns
Disability Law Column
Sutton: Use of Mitigating Measures to Determine Disability Under the ADA
by Susan E. Dallas

As an increasing number of Americans with Disabilities Act ("ADA")1 cases pass through the courts, the parameters are becoming more well defined for individuals seeking to make claims under the Act. This column has previously noted the difficulty for plaintiffs in surviving summary judgment in ADA cases.2 Due to a recent holding by the U.S. Court of Appeals for the Tenth Circuit in Sutton v United Air Lines, Inc.,3 plaintiffs' efforts to establish their cases in this circuit may continue to be difficult. In April, however, the U.S. Supreme Court will consider the issues discussed in this article and related issues in a review of Sutton and two other cases.4

The Tenth Circuit decided Sutton, in part, based on the threshold inquiry in ADA cases—whether the individual is disabled within the meaning of the Act.5 The ADA defines a "disability" as "(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 impairment; or (C) being regarded as having such an impairment."6 This article focuses on subsection (A) and the split of authority that exists as to whether courts must follow guidelines promulgated by the Equal Employment Opportunity Commission ("EEOC") in determining whether an individual is disabled

The Issue of Mitigating Measures

Because subsection (A) does not define the terms "physical or mental impairment," "substantially limits," or "major life activity," courts routinely look to the regulations promulgated by the EEOC for guidance as to the interpretation of these terms. One issue on which courts have disagreed however, is the EEOC's interpretation of whether to consider the existence of mitigating measures in determining whether an individual is disabled. For example, if an individual has impaired vision or hearing, may a court consider the fact that the person has mitigated his or her impairment with the use of glasses, contacts, or a hearing aid? Similarly, may a court consider that an individual controls his or her illness, such as diabetes or epilepsy, with medication?

The Tenth Circuit has answered these questions in the affirmative, rejecting the EEOC's guidance on this issue, in holding that the court should consider such mitigating factors in making the threshold determination of whether a person is disabled under the ADA.

Interpretive Guidance/Legislative History

The EEOC regulations interpreting Title I of the ADA7 contain an Interpretive Guidance that represents the EEOC's interpretation of the issues discussed therein.8 The Interpretive Guidance states that "[t]he existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices."9 Similarly, with regard to determining whether a physical or mental impairment substantially limits a major life activity, the Interpretive Guidance provides that such determination must be made "on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices."10

This viewpoint also is supported by the legislative history of the ADA. Both the House Report and the Senate Report on this subject follow the view that whether a person has a disability "should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids."11

Tenth Circuit's Ruling in Sutton

In Sutton,12 the plaintiffs, commercial airline pilots for regional commuter airlines, were twin sisters who both had uncorrected vision of 20/200 in the right eye and 20/400 in the left eye. When they applied for commercial airline pilot positions with United Airlines, they were rejected because of United's policy of requiring uncorrected vision of 20/100 or better.

The plaintiffs sued under the ADA, asserting that they were disabled because their uncorrected vision substantially limited their major life activity of seeing.13 Further, they argued that United regarded them as disabled in violation of the ADA because United's policy of requiring uncorrected vision of 20/100 or better blocked them from an entire class of employment, global airline pilots.14 The Tenth Circuit applied a step-by-step analysis to reach the conclusion that although the plaintiffs had established that their vision was a physical impairment within the meaning of the ADA for purposes of a motion to dismiss, they had failed to establish that their vision substantially limited their major life activity of seeing.15

First, the court focused on the issue of whether the plaintiffs' vision qualified them as "individuals with a disability" within the meaning of the ADA. The court noted that for the plaintiffs to qualify as having a disability, "[p]laintiffs must establish (1) that their vision is a 'physical or mental impairment'; and (2) if their vision is an impairment, that it 'substantially limits one or more of the[ir] major life activities.'"16 The court noted that the ADA does not define the term "impairment" and relied on the definition promulgated by the EEOC. In addition, the court cited the EEOC's Interpretive Guidance on Title I of the ADA, which states that "the existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices."17 The court concluded that...