Deference and disability discrimination.

• Author: White, Rebecca Hanner

1. INTRODUCTION

   For thirty-five years, the civil rights community has paid scant attention to administrative law principles. Those interested in advancing on-the-job equality for this country's working men and women (or in preserving employer autonomy vis-a-vis federal encroachment) have all but ignored what many consider the arcane technicalities of administrative law.

   This state of affairs is strange when one considers that administration and enforcement of each of our major federal laws outlawing employment discrimination have been confided to an administrative agency, the Equal Employment Opportunity Commission ("EEOC").(1) The EEOC, however, has historically been given short shrift by litigants and by the judiciary.(2) It is the courts, not the agency, that have given meaning to our nation's employment discrimination statutes.(3)

   This is an unfortunate result for those who believe that political accountability and agency expertise matter in determining the meaning of indeterminate statutes. And it is a result at odds with developments in administrative law that, at least since 1984, have ostensibly required courts to pay close attention to the views of agencies charged with the administration of statutory regimes.(4)

   But in 1999, the question of deference to the EEOC grabbed the spotlight. It surfaced in a case(5) that arose under the Americans with Disabilities Act of 1990 (the "ADA"), a relatively new, and sweeping, anti-discrimination law that prohibits workplace discrimination against qualified individuals with a disability.(6) A difficult substantive question was presented: Is the determination of whether one has a disability within the meaning of the ADA to be made with or without regard to mitigating measures?(7) Instinctively, either a "yes" or a "no" answer seems problematic. On the one hand, defining disability without regard to the corrective effects of medication or other devices, such as eyeglasses or hearing aids, could so enlarge the class of legally protected people as to trivialize the very real concerns that prompted the enactment of the ADA. On the other hand, if a corrected impairment is not considered disabling, the statute is likely to exclude a large number of people whose exclusion seems perverse. For example, an epileptic or diabetic whose condition is controlled through medication, or perhaps an amputee whose prosthetic limb enables her to walk or even run, may not be substantially limited in performing major life activities because of the mitigating effects of the medication or prosthesis. If the impairment is then not considered disabling, an employer would be free to fire or not to hire the individual because she was an epileptic, a diabetic, or an amputee. Whatever else Congress had in mind when it passed the ADA, protecting individuals from such status discrimination would seem to have been firmly within the scope of the statute's prohibitions.(8)

   The ADA is a broadly worded statute,(9) and Congress recognized that its implementation would require administrative agencies to flesh out its terms. Consequently, Congress granted the EEOC substantive rulemaking authority to promulgate regulations for carrying out the ADA's employment provisions,(10) an authority that Congress had withheld from the agency under Title VII of the Civil Rights Act of 1964.(11) The EEOC complied with Congress's directions to have its ADA regulations in place one year before the statute took effect.(12) The EEOC's regulations included an Interpretive Guidance that specifically addressed the issue of mitigating measures.(13) The EEOC took the position that whether one has a disability should be assessed without regard to mitigating measures.(14)

   A number of lower courts subsequently confronted this question, with some accepting the agency's position and others rejecting it.(15) The question of deference to the EEOC's views became a focal point of discussion among the circuit courts.(16) The central issue was how the Chevron doctrine should apply to the EEOC's Interpretive Guidance on mitigating measures.

   In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,(17) the Supreme Court held that agency interpretations of silent or ambiguous statutes are binding on courts if the interpretations are reasonable and if Congress has delegated interpretive power to the agency.(18) Under Chevron, a reviewing court will first ask whether the statute itself answers the interpretive question being asked. If it does, then no deference to the agency is due, as Congress has made the policy choice itself and incorporated the chosen policy in the statute.(19) If the court determines that the statute does not address the issue, however, and if Congress has delegated interpretive authority to the agency, the court, under Chevron, will defer to the agency's reading of the statute so long as that reading is a reasonable one, even if it is not the reading the court itself would have chosen.(20)

   Increasingly, the Supreme Court has chosen to resolve interpretive questions at Step One of the Chevron analysis. It frequently has done so by using a textualist approach to statutory interpretation that finds in the statute itself an answer to the interpretive question posed.(21)

   Lower courts (and the academic literature) debated whether the "mitigating measures" question posed by the ADA could be resolved at Step One of Chevron.(22) In Sutton v. United Air Lines,(23) the Tenth Circuit asserted that it could, holding that the language of the ADA clearly states that disability determinations are to take into account the effects of any mitigating or corrective measures utilized by the individual.(24) The Tenth Circuit rejected the EEOC's contrary view, published in the EEOC's Interpretive Guidance.(25) After granting certiorari to hear Sutton v. United Air Lines, the Supreme Court, in an opinion by Justice O'Connor, affirmed the Tenth Circuit and held that an impairment must be assessed in its mitigated state.(26)

   As a matter of substantive law, the Sutton Court's narrow interpretation of the definition of disability is troubling, particularly in the context of workplace discrimination.(27) The employment provisions of the ADA, located in Title I, protect only those disabled persons who can perform the essential functions of their jobs.(28) Often it is the mitigating measure that enables an individual to do her work. Under Sutton, mitigating measures that would otherwise have brought the individual within the ADA's Title I protections against employment discrimination will now often keep her outside the scope of the ADA altogether.(29)

   At least as troubling, however, is the Court's refusal to defer to the EEOC's statutory interpretation. As EEOC Vice-Chair Paul Igasaki observed, in response to the Court's Sutton decision, "[W]hen the Supreme Court `respectfully disagrees' with the EEOC, that has an impact."(30) Not only is the EEOC's influence on the substantive law of employment discrimination reduced, but the agency's credibility is likewise compromised.

   The Sutton Court's refusal to defer to the EEOC, however, raises questions that transcend both the EEOC's credibility and the substantive law of employment discrimination. Sutton was a case at the intersection of administrative and discrimination law, presenting a vehicle for exploring a number of unanswered questions about the Chevron doctrine. First, Sutton presented an opportunity for the Court to consider the role of administrative agencies in determining the scope of government programs for the disabled. The Court previously had recognized that determining legal protections for the disabled is a task for which the judiciary is not well-suited.(31) In Sutton, however, the Court ignored both the EEOC's and the Attorney General's opinions in determining the scope of ADA protections. Second, Sutton also presented an opportunity for the Court to explore whether deference on matters of employment discrimination, matters that involve some of this country's most deeply pressing social problems, are appropriate for Chevron analysis. Perhaps the Sutton result signifies the Court's reluctance to surrender interpretive authority to an administrative agency when confronting statutes aimed at implementing civil rights. Third, although the Court has been inconsistent in its application of Chevron,(32) the interpretive methodology the Court used to resolve the Sutton case at Chevron's Step One reflects an intent to imprint the Court's own meaning on ambiguous statutory language. This judicial activism at Chevron's Step One is at odds with the deference to agency interpretation that the Chevron doctrine symbolizes.(33)

   Taking apart the deference questions presented in Sutton and its companion cases allows exploration of the role that administrative agencies should play in developing solutions to some of this country's most intractable problems, while also highlighting various ambiguities in the Chevron doctrine itself. Part II discusses the various types of judicial deference to agency decisionmaking that a court might apply to administrative agencies. Part III examines the EEOC's statutory authority under Title VII, the ADEA, and the ADA, and the degree of deference that courts have historically accorded to EEOC interpretations of these statutes. Part IV examines the Court's holding in Sutton v. United Air Lines and reviews the options available to it for extending or withholding deference to the EEOC. Part V takes a step back from the case law and reflects on the appropriate roles of administrative agencies and courts in implementing civil rights in general and in setting policies for the disabled in particular. Part VI suggests how best to resolve the question of deference to the EEOC's regulations and Interpretive Guidance addressing Title I of the ADA, an issue the Court eventually will have to confront. Part VII concludes that jurisprudential and policy...