Determining the intended beneficiaries of the ADA in the aftermath of Sutton: limiting the application of the disabling corrections corollary.

• Author: Dunn, Richard C.
• Position: Americans with Disabilities Act of 1990

A recent advertisement for athletic shoes shows a young woman running around a track. As the commercial ends, the camera zooms out and the viewer is able to see that the woman is running on two prosthetic limbs. (1) Until recently, most observers--both laymen and the judiciary--certainly would have considered this woman "disabled" and therefore deserving of protection from discrimination under the Americans with Disabilities Act of 1990 (ADA). (2) A recent trilogy of Supreme Court decisions, (3) however, suggests otherwise.

In Sutton v. United Air Lines, Inc., (4) the Supreme Court rejected the predominant understanding of what constitutes a disability under the ADA (5)--resolving a split among the circuits (6)---and held that courts must consider the individual's ability to mitigate or correct his or her impairment when evaluating whether an individual is entitled to the statute's protections. (7) Thus, those individuals who can utilize "corrective measures"--either artificial or the body's own--may not be entitled to ADA protection. Immediately following the decision, the legal community and popular press perceived the Court's holding as "gutting" the ADA and rendering it useless in the workplace. (8) There is already strong indication that lower courts are interpreting Sutton in a manner that severely limits the scope of protection granted to those who use corrective measures. (9)

A closer reading of the Court's decision, however, suggests that the Court's language may not be as limiting as initially anticipated. In particular, the Court held that when considering whether an individual is "`substantially limited' in a major life activity and thus disabled under the [ADA]," it is imperative to evaluate the effects--"both positive and negative"--of the corrective measures. (10) Notably, the Court emphasized that evaluating individuals in their mitigated or corrected state is the only way to permit courts to "consider any negative side effects suffered by an individual resulting from the use of mitigating measures." (11) Sutton therefore suggests a "disabling corrections" corollary: (12) individuals who use corrective measures for an otherwise nondisabling mental or physical impairment, and who have disabling negative side effects, may require ADA protection. (13)

As the next wave of post-Sutton ADA litigation begins, courts are going to be faced with plaintiffs who invoke the "disabling corrections" language in Sutton to argue that the side effects of their corrective measures are disabling. (14) Sutton, however, fails to address the scope of the disabling corrections corollary. Strict adherence to the language in Sutton would mandate accepting the claims of a wide range of potential plaintiffs. "Individuals who take medications that cause extreme drowsiness, nausea, or other severe side effects would be appropriately considered `individuals with disabilities' under [Sutton], as would individuals who have had corrective surgeries, such as colostomies or hysterectomies, that give rise to permanently disabling conditions." (15) If courts strictly adhere to the language in Sutton, however, an absurd anomaly arises. On the one hand, individuals who are not otherwise disabled, but take corrective measures for nondisabling impairments, may receive protection under the ADA if they suffer from negative side effects. (16) On the other hand, individuals who are otherwise disabled (e.g., individuals with diabetes), but are able to mitigate the effects of their impairment, will be barred from coverage. Surely, Congress never intended such a result when it enacted the ADA. (17)

This Note argues that a narrow construction of the disabling corrections alluded to in Sutton most consistently supports the legislative history and congressional intent of the ADA. In particular, courts should not engage in the disabling corrections analysis unless the plaintiff would be disabled in his unmedicated or uncorrected state. If the plaintiff fulfills this threshold requirement, the court may then evaluate both the positive and negative side effects of the corrective measure to assess whether the individual is "substantially limited" in a major life activity and thus disabled under the ADA. Such an approach has the advantage of balancing the ADA's explicit goal of encouraging individuals with disabilities to participate in the workplace without fear of discrimination, while at the same time fulfilling the goal of both employers and the Court of minimizing trivial, unwarranted litigation.

This Note contains three sections. The first summarizes the history of the ADA, along with the framework and rationale supporting its enactment. Moreover, this section focuses on the ADA's definition of "disability," paying particular attention to the impact of mitigating measures litigation on the evolution of its definition. The next section analyzes the "disabling corrections" language in Sutton and the subsequent case law that has examined the corollary, arguing that a narrow interpretation of the disabling corrections corollary best serves both the Supreme Court's goals in Sutton and the legislative intent of the ADA. The third section suggests that the Equal Employment Opportunity Commission (EEOC) should promulgate regulations under title I of the ADA endorsing a narrow construction of the disabling corrections language in Sutton. (18) Furthermore, this final section discusses the importance of judicial deference to the proposed EEOC regulations, as the ADA is "ambiguous with respect to the [disabling corrections] issue" (19) and the proposed EEOC regulations are "a permissible construction of the statute." (20)

THE ADA DEFINITION OF "DISABILITY"

The History, Framework, and Rationale of the ADA (21)

In 1973, with the enactment of the Rehabilitation Act, (22) the federal government ushered in an era of legislation targeted at eliminating discrimination against the disabled. The Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." (23) Although the Rehabilitation Act was meaningful legislation, it failed to eliminate a significant aspect of discrimination based on disability--discrimination in the private employment context--because it only applied to federal government agencies and businesses that received federal government funding. (24) In response to growing concern over the failure of the Rehabilitation Act to eliminate discrimination in private employment, Congress passed the Americans with Disabilities Act in 1990. (25) Congress intended the ADA to broaden the scope of the Rehabilitation Act and extend protection to the private sector. (26) Moreover, in his remarks at the White House signing ceremony, President Bush described the ADA as "an `historic new civil rights Act ... the world's first comprehensive declaration of equality for people with disabilities."' (27) Indeed, the ADA is intended "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (28)

The ADA is divided into five subchapter titles: I-Employment; II-Public Services; III-Public Accommodations and Services operated by Private Entities; IV-Telecommunications Relay Services; and V-Miscellaneous Provisions? Title I of the Act, aimed specifically at eliminating discrimination in the workplace, prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." (30) Therefore, an employee who intends to assert a claim under the ADA faces the threshold question of whether he is disabled within the meaning of the statute. Unlike prior civil rights laws, however, the intended beneficiaries of the ADA are neither discrete nor well-defined. (31)

Defining Disability under the ADA (32)

To establish a prima facie case of discrimination and to be entitled to protection under title I of the ADA, a plaintiff must prove that he is disabled, that he is otherwise qualified for the job, and that he has been discriminated against "because of" his disability. (33) The existence of a disability can be established in one of several methods, (34) but the principle method requires a three-step process. (35) First, the court must consider whether the condition constitutes a physical or mental impairment. (36) Second, the court must identify the plaintiff's life activity and determine if it qualifies as a "major life activity" under the ADA. (37) Finally, the court must assess whether the plaintiffs impairment substantially limits the major life activity. (38) Aside from occasional inquiry and debate, the courts have analyzed the first two prongs consistently. In contrast, the third prong resulted in "a firestorm of controversy," (39) a split among the federal circuit courts, (40) and voluminous litigation.

Agency Interpretations (41)

The authority to issue regulations to implement the ADA is split primarily between three government agencies. (42) The EEOC was granted authority to issue regulations to carry out the employment provisions in title I of the ADA. (43) "No agency, however, [was delegated the] authority to issue regulations implementing the generally applicable provisions of the ADA ... which fall outside Titles I-V." (44) Despite its apparent lack of authority, the EEOC promulgated interpretive guidelines to its regulations defining the term "disability" in the context of employment. (45) In particular, the EEOC regulations expand on two of the necessary components of the statutory definition of...