Corrective Measures in the Determination of Disability Under the Ada

• Publication year: 1999
• Pages: 5
• Citation: Vol. 28 No. 11 Pg. 5

28 Colo.Law. 5 Colorado Lawyer 1999.

1999, November, Pg. 5. Corrective Measures in the Determination of Disability Under the ADA

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Vol. 28, No. 11, Pg. 5

The Colorado Lawyer
November 1999
Vol. 28, No. 11 [Page 5]

Articles

Corrective Measures in the Determination of Disability Under the ADA
by John M. Husband, Monique A. Tuttle

In a trio of major decisions released June 22, 1999, the U.S Supreme Court examined whether corrective measures (such as contact lenses or medication) must be taken into account when determining whether an individual has a disability under the Americans with Disabilities Act of 1990 ("ADA") These decisions also provided needed guidance on the definition of a disability under the ADA. Since 150 million workers wear glasses or contact lenses to correct their vision, five million wear hearing aids, and as many as fifty million use medications for such things as hypertension, the issue of corrective measures is significant. It has divided the federal courts of appeal since the passage of the ADA

This article provides an in-depth look at the three Supreme Court decisions holding that mitigating measures must be taken into account in the determination of whether a claimant has a disability under the ADA. It then discusses several of the appeals court and district court rulings that have followed. These subsequent decisions show that plaintiffs will have a more difficult time clearing the threshold of a covered disability. Although the article primarily focuses on the employers' perspective, its detailed review of recent ADA rulings should be of interest to the plaintiffs' bar as well.

PROHIBITING DISABILITY DISCRIMINATION

In general terms, Title I of the ADA prohibits employers with at least fifteen employees from discriminating against individuals on the basis of their disabilities, and further requires employers to provide reasonable accommodations to employees with qualifying disabilities, if necessary to perform the essential functions of their positions. To state a claim under the ADA, plaintiffs must establish that: (1) they are disabled within the meaning of the ADA; (2) they are qualified, i.e., that with or without a reasonable accommodation, they can perform the essential functions of the job; and (3) they suffered an adverse employment action because of their disability.1

Attorneys facing a potential ADA claim must begin their analysis by determining whether a plaintiff is disabled as defined by the ADA. To come within the definition of disabled under the ADA, a plaintiff may be actually disabled, regarded as disabled, or have a record of a disability.2 There is a three-pronged analysis to determine the existence of a disability under the ADA: (1) is there a physical or mental impairment?; (2) does that impairment impact a major life activity?; and (3) does the impact result in a substantial limitation in the ability to perform that major life activity?3

The U.S. Supreme Court's recent rulings substantially narrow the impairments that will come under the ADA's definition of disability, because these decisions found that corrective measures must be taken into account when determining whether an individual is substantially limited in the ability to perform major life activities.

EEOC AND DOJ REGULATIONS

Many employers and employee representatives look to the guidance and regulations issued by the U.S. Equal Employment Opportunity Commission ("EEOC") to determine if their behavior is within the bounds of the law. Therefore, it is significant that the recent U.S. Supreme Court's holdings reject the position taken by the U.S. Department of Justice ("DOJ") and the EEOC that disabilities should be evaluated without considering the effects of medication or assistive devices. Specifically, the EEOC Interpretive Guidance provides that "the 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 medication or assistive or prosthetic devices."4

While finding that the EEOC provided an "impermissible interpretation of the ADA," the Court sidestepped the issue of how much deference is due to interpretive regulations, such as that noted above, by finding that no agency had been delegated the authority by Congress to issue regulations implementing the generally applicable provisions of the ADA, which include the term "disability."5

Because courts will continue to look, and often defer, to the EEOC for guidance on how to interpret the various anti-discrimination laws, counsel should not view these decisions as license to ignore the EEOC's guidelines. However, these decisions do serve as a reminder that the EEOC's interpretations of the anti-discrimination laws sometimes stretch the statutes beyond what the courts will view as permissible bounds. In light of this, this article now discusses the U.S. Supreme Court cases. The three cases reviewed by the U.S. Supreme Court include two from the Tenth Circuit Court of Appeals, one of which originated out of Colorado in District Court Judge Daniel Sparr's courtroom, and the other out of the District Court of Kansas. The third case comes from the Ninth Circuit Court.

THE KEY DECISION—
SUTTON V. UNITED AIRLINES, INC.

In this Colorado case, Karen Sutton and Kimberly Hinton, twin sisters, applied for positions with United Airlines as passenger airline pilots.6 At the time, both were employed as commercial airline pilots for regional commuter airlines and both had the "life long goal to fly for a major air carrier."7 During their interviews, United told Sutton and Hinton that they were disqualified from the positions because all applicants for pilot positions with United must have uncorrected vision of 20/100 or better in each eye.8 Both had uncorrected vision exceeding the limit. However, their corrected vision with the aid of eyeglasses and/or contact lenses was 20/20 in both eyes.9

Sutton and Hinton sued United, claiming the airline violated the ADA. The twins asserted that they were disabled because their uncorrected vision substantially limited the major life activity of seeing. They contended that without corrective measures, they would "effectively be unable to see" well enough to conduct normal everyday activities.10 In addition, they claimed that United regarded them as disabled because the 20/100 vision requirement excluded them from an entire class of employment—global airline pilots—without any objective evidence of job-relatedness or safety.11

United argued that the twins were not disabled under the ADA Specifically, United argued that millions of Americans suffer vision impairments and that adopting the applicants' expansive reading of "disabled" would make the term meaningless. United contended the applicants were not disabled under the ADA because their vision did not substantially limit a major life activity. United pointed out that, with corrective measures, the twins...