Disabling corrections and correctable disabilities: why side effects might be the saving grace of Sutton.

AuthorMcGarity, Lauren J.

On June 22, 1999, Maine attorney Peter Thompson reluctantly called two of his clients to inform them that he was dropping their employment discrimination cases.(1) Thompson bluntly explained to his two diabetic clients that the Supreme Court had just declared that diabetics and other individuals with "correctable" impairments were not individuals with disabilities, and thus not entitled to the protections of the Americans with Disabilities Act (ADA). As word of the surprising ruling spread, many attorneys across the nation were no doubt inclined to follow in Thompson's footsteps. However, Thompson and his colleagues may have picked up the phone too soon. Though the Court's recent decisions in the correctable disabilities cases have been a magnet for controversy, the spirited debate over their normative implications has displaced careful analysis of their practical legal effects. Closer examination of the language of these opinions reveals that, despite the advocacy community's understandably panicked reaction to these decisions, the impact of the Supreme Court's holding on the scope of the ADA's protections may be significantly narrower than initial interpretations would indicate.

In Sutton v. United Air Lines,(2) Albertsons, Inc. v. Kirkingburg,(3) and Murphy v. United Parcel Service,(4) the Supreme Court rejected the predominant understanding of what constitutes a disability under the ADA and clarified that, in evaluating whether or not an individual is entitled to the statute's protections, the individual's ability to mitigate or correct his or her impairment must be considered.(5) Thus, those individuals who use medications or medical devices to correct their impairments (or who are able to compensate for their impairments without the aid of such corrective measures) may not be entitled to the law's protections. Interpretations of the decisions in the popular media reveal a widespread perception that the Supreme Court rendered the ADA powerless in the workplace.(6) Newspapers reported alarmingly (and inaccurately) that these decisions declared individuals with diabetes, cancer, and amputated limbs to be ineligible for the ADA' s protections,(7) and one plaintiff reportedly felt guilty that his suit would cause courts to "throw cases out" and "cost a lot of people their jobs."(8) Indeed, the first handful of lower-court cases decided under the new Supreme Court precedents seems to confirm the dire predictions that many individuals with disabilities have "lost their best protection against employment discrimination."(9)

A closer reading of the majority opinions in the correctable disabilities cases, however, reveals that the majority was keenly aware of the devastating effect that an expansive interpretation of its holdings could have on the ADA's beneficiaries. In an explicit attempt to narrow the impact of the decisions and to clarify the specific nature of its holding, the majority was careful to identify groups of individuals who would still be entitled to the law's protections,(10) Notably, the Court emphasized in Sutton--the leading case in this series of decisions--that one of the rationales underlying the majority's holding was its belief that viewing disabilities in their "corrected" or "mitigated" state was the only way to permit courts and employers to "consider any negative side effects suffered by an individual resulting from the use of mitigating measures."(11) Though the dissent challenged the accuracy of this statement,(12) the majority's tacit identification of individuals who use "disabling corrections" as a group entitled to the protections of the ADA is significant.

As the next wave of post-Sutton ADA litigation begins to focus on what constitutes a correctable disability,(13) courts will undoubtedly encounter both (1) plaintiffs who argue that their corrective measures are "imperfect" and (2) plaintiffs who invoke the "disabling corrections" language in Sutton to argue that the side effects of their corrective measures substantially limit a major life activity.(14) While the former group of plaintiffs is likely to present courts with relatively familiar factual disputes about the precise nature of their individual limitations, courts that encounter disabling corrections claims will face novel legal questions that have the potential to influence significantly the practical impact of the correctable disabilities decisions. Future courts' answers to these questions will determine whether the Sutton ruling truly "cuts the heart out of the ADA"(15) or whether the decision merely narrows the Act's applicability in a manner that is consistent with the goals of the statute's authors.

Sutton's "disabling corrections" language encompasses 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 this language, as would individuals who have had corrective surgeries, such as colostomies or hysterectomies, that give rise to permanently disabling conditions. Arguably, even drags that are known to cause birth defects would be properly considered disabling corrections for the purposes of the ADA.(16) If courts conceptualize the disabling correction broadly, this interpretation will partly offset Sutton's constraints on the size of the ADA's protected class. Sutton could then be read to exclude from the ADA's protections only those individuals with conditions that are truly minor and easy to correct, like nearsightedness, and to include most individuals with more serious conditions, such as epilepsy and diabetes, which often require disabling treatments. The effect of the Sutton opinion would be to target the ADA's protections in a manner that would achieve a proper balance between the statute's protective goals and the Supreme Court's apparent desire to reduce frivolous litigation and to protect the autonomy of employers' decisions regarding the terms and conditions of employment.

The relatively few judicial opinions that have addressed disabling corrections, however, have not applied that concept expansively. The courts seem disinclined to view corrective measures as disabilities, especially when, as is frequently the case, their adverse effects are transient in nature. At least two courts have even indicated a willingness to second-guess employees and their doctors by permitting employers to question the need for and appropriateness of such disabling corrections.

This Note argues that the concept of disabling corrections alluded to in Sutton has the potential to strike an appropriate balance between the ADA's rather explicit goal of encouraging and enabling individuals with disabilities to participate in the workplace and its countervailing goal, captured in the correctable disabilities cases, of shielding employers and courts from burdensome litigation filed by plaintiffs with minor or trivial impairments. This potential will be realized, however, only if the Equal Employment Opportunity Commission (EEOC) and the lower courts make a conscious effort to conceptualize disabling corrections broadly and to give proper deference to the informed judgment of employees who face the unattractive choice between living with existing disabilities and subjecting themselves to potentially disabling corrective measures. Part I introduces the ADA, the correctable disabilities decisions, and the "disabling corrections" language contained therein. Part II analyzes past federal-court opinions addressing disabling corrections and discusses the reasoning behind the apparent disinclination of courts to define such corrective measures as disabilities under the ADA. Part III suggests that the EEOC amend its implementing regulations under Title I of the ADA to facilitate broader applicability of the ADA to individuals who must use disabling corrections to mitigate other impairments. Finally, Part IV discusses the importance of judicial and employer deference to the judgment of employees and their treating physicians in accommodating and protecting the rights of such individuals.

  1. THE ADA AND THE CORRECTABLE DISABILITIES CASES

    1. The History and Goals of the ADA

      The ADA was enacted in 1990 in response to growing public awareness and concern about discrimination against people with disabilities and the effects of such discrimination on the economic and employment opportunities available to these individuals.(17) The Act's statutory precursor was the Rehabilitation Act of 1973, which prohibited "any program or activity receiving Federal financial assistance" from discriminating against an individual "solely by reason of his handicap."(18) The ADA extends this nondiscrimination mandate to private employers (Title I);(19) state and local governments (Title II);(20) and other private entities that provide public accommodations (Title III).(21) In the employment context, Title I 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."(22) The discriminatory behaviors prohibited by the Act include "limiting, segregating, or classifying" an individual adversely because of a disability, using criteria or tests that have a discriminatory effect, and failing to provide reasonable accommodations to allow an employee with a disability to participate fully in the workplace.(23)

      The ADA is unquestionably a pro-work statute. The plain language of the statute, its legislative history, and the legislative findings included in it all evince a clear intent on the part of Congress to encourage and enable individuals with disabilities to obtain and retain employment.(24) At the time of the ADA's enactment, numerous studies indicated...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT