Amicus Curiae Brief — Sutton v. United Air Lines, Inc.

Supreme Court, U. 5

sepa e-

P FEB 22 1999

No. 97-1943 |

| |

In the Supreme Court of the United States

OCTOBER TERM, 1998

KAREN SUTTON AND KIMBERLY HINTON, PETITIONERS

Vv.

UNITED AIR LINES, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AND THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE

SUPPORTING PETITIONERS

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

C. GREGORY STEWART

General Counsel

PHILIP B. SKLOVER

Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

PAULA R. BRUNER

Attorney

Equal Employment

Opportunity Commission

Washington, D.C. 20507

BARBARA D. UNDERWOOD

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the determination that a person has a

disability within the meaning of the Americans with

Disabilities Act (ADA), 42 U.S.C. 12102(2)(A), must be

made without regard to mitigating measures, such as

medicines, corrective lenses, or other prosthetic de-

vices.

2. Whether petitioners’ complaint stated a claim

that respondent regarded them as substantially limited

in the major life activity of working when it refused to

hire them for any of its jobs as pilot because of their

impairment.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument

II. Petitioners adequately alleged that respondents

major life activity of working, and they there-

fore stated a claim that respondents “regarded

Conclusion

TABLE OF AUTHORITIES

Cases:

Arnold v. United Parcel Serv., Inc., 136 F.3d

F.3d 854 (1998)

Bragdon v. Abbott, 118 S. Ct. 2196 (1998)

Briscoe v. LaHue, 460 U.S. 324 (1983)

Doane v. City of Omaha, 115 F.3d 624 (8th Cir.

1997), cert. denied, 522 U.S. 1048 (1998)

E. E. Black, Ltd. v. Marshall, 497 F. Supp. 1088

(D. Haw. 1980)

Forrissi v. Bowen, 794 F.2d 981 (4th Cir. 1986) ...............

Hardin v. Pitney-Bowes, 451 U.S. 1008 (198157

Hutchinson v. Proxmire, 443 U.S. 11197909

Jasany v. United State Postal Serv., 755 F.2d

1244 (6th Cir. 1985)

School Bd. v. Arline, 480 U.S. 273 (1987)

Washington v. HCA Health Servs., 152 F.3d 464

(5th Cir. 1998)

Young v. Runyon, No. 01942399, 1995 WL 241476

(EEOC Apr. 19, 1995)

(IID)

S &

IV

Statutes, regulations and rule:

Page

Americans with Disabilities Act of 1990, 42 U.S.C. 12101

et seq.

42 U.S. C. 12102(2)

passim

3

42 U.S.C. 12102(2)(A) 3, 7, 10, 12

42 U.S.C. 12102)

4,12

42 U.S.C. 12112(a)

42 U.S.C, 12113(b)

12, 19

Rehabilitation Act, 29 U.S.C. 701 et seq.

14 C. F. R. 67. 1034

18

15

29 C. F. R. Pt. 1630:

Section 1630.2(h)(1)

7

Section 1630.2(j\(1)

13

Section 1630. A jK u

10

Section 1630.2(j\2)

13

Section 1630.23)

19

Section 1630.203003 Xi)

App.:

13, 14, 16

1630. 20h)

1630.20)

§ 1630.2(1)

4

14, 16, 18

17

Fed. R. Civ. P. 12(b)(6)

2

Miscellaneous:

David J. Lee et al., Prevalence of Uncorrected

Binocular Distance Visual Acuity in Hispanic and

Nonhispanic Adults, 105 Ophthalmology 522

(1998)

H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990)

National Center for Health Statistics, U.S. Dep't

of Health & Human Servs., Eye Care Visits and

Use of Eyeglasses or Contact Lenses (Vital & Health

Statistics Series 10, No. 145, 1984)

S. Rep. No. 116, 101st Cong., Ist Sess. (19899 9, 10

U.S. Dep’t of Justice, The Americans with Disabilities

Act: Title II Technical Assistance Manual

(1992)

In the Supreme Court of the United States

OCTOBER TERM, 1998

No. 97-1943

KAREN SUTTON AND KIMBERLY HINTON, PETITIONERS

3 v

UNITED AIR LINES, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AND THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE

SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns the proper definition of “disabil-

ity,” a threshold question addressed in virtually every

case brought under the Americans with Disabilities Act

of 1990 (ADA), 42 U.S.C. 12101 et seg. Congress dele-

gated to the Equal Employment Opportunity Com-

mission (EEOC) and Department of Justice authority

to promulgate regulations and to enforce the provisions

of the ADA. Both agencies have issued extensive

regulations and interpretive guidance concerning the

definition of the term “disability.” The EEOC partici-

pated as amicus curiae on the petition for rehearing

and suggestion for rehearing en banc in this case in the

(1)

2

court of appeals. In response to the Court’s invitation,

the United States and the EEOC filed a brief as amicus

curiae at the petition stage in this case.

STATEMENT

Petitioners brought this case under Title I of the

Americans with Disabilities Act of 1990 (ADA), 42

U.S.C. 12101 et seq., after they were denied the oppor-

tunity to compete for jobs because without corrective

lenses their vision is poor. The district court dismissed

petitioners’ complaint on the ground that it failed to

state a claim upon which relief may be granted under

Federal Rule of Civil Procedure 12(5)(6). The court of

appeals affirmed. Pet. App. Al-A25.

1. The complaint alleged that petitioners, who are

identical twin sisters, sought commercial pilot positions

with respondent in 1992. J.A. 20, 22. Petitioners

alleged that they were regional airline pilots at the

time, and that they amply satisfied the basic age, educa-

tion, experience, and FAA certification qualifications

for a pilot’s job with respondent. J.A. 19-20. They

claimed that respondent granted them interviews for

pilot positions, but informed each of them at the time of

the interview that her uncorrected vision did not

comply with respondent’s minimum requirements. J.A.

21, 23. Petitioners alleged that respondent “rejected

[petitioners] on the basis of their disability, or because

[respondent] regarded [petitioners] as having a dis-

ability.” J.A. 26.

Each petitioner alleged that her uncorrected eye-

sight is 20/200 or worse in her right eye and 20/400 or

worse in her left eye, but each petitioner also alleged

that “[w]ith the use of corrective lenses, [she] has vision

that is 20/20 or better.” J.A. 23. They alleged that,

without corrective lenses, each of them “effectively can-

3

not see to conduct numerous activities such as driving a

vehicle, watching television or shopping in public

stores.” J.A. 24. They also alleged, however, that

with corrective measures, * * * [each of them]

function[s] identically to individuals without a similar

impairment.” Ibid.

Petitioners alleged that respondent’s policy of not

hiring individuals with their vision deficiency as pilots

“is not limited to certain models of aircraft, certain air

routes, or certain flight conditions.” J.A. 25-26. In

addition, they alleged that respondent’s rejection of

them “is not based on an isolated mismatch between

one employer and these applicants.” J. A. 26. The

complaint added that At here is nothing unique about

the job activities of United pilots that distinguishes

United’s requirements from other airlines.” /bid. The

complaint stated that respondent’s policy “blocks thou-

sands of opportunities throughout the world.” /bid.

2. The district court ruled that petitioners had failed

to state a claim upon which relief may be granted. Pet.

App. A27-A37. Under the ADA:

The term “disability” means, with respect to an in-

dividual—

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual;

(B) arecord of such an impairment; or

(C) being regarded as having such an im-

pairment.

42 U.S.C. 12102(2).

The district court first examined the existence of an

actual limiting impairment under clause (A). The court

stated that “numerous federal courts have concluded

that the need for corrective eyewear is commonplace

1

and does not substantially limit major life activities,“

Pet. App. A332, and that petitioners therefore “have not

stated a claim that they are substantially limited in the

major life activity of seeing,” id. at A33. The court also

held that petitioners’ “common moderate vision impair-

ment * * * does not substantially limit their ability to

work within the meaning of the ADA.” Id. at A34. In

the court’s view, “the ADA was intended to protect

only a limited class of persons; specifically, individuals

who suffer from impairments significantly more severe

than those encountered by the average person in every-

day life, not people who suffer from slight shortcomings

that are both minor and widely shared.” Id. at A35.

The district court also held that petitioners had failed

to state a claim that respondent “regarded” them as

disabled under clause (C) of the disability definition.

The court stated that the statutory reference to a

substantial limitation indicates that an employer re-

gards an employee as handicapped in his or her ability

to work by finding the employee’s impairment to fore-

close generally the type of employment involved.” Pet.

App. A36-A37. In the court’s view, alt most, [peti-

tioners] can establish that [respondent] regarded them

as unable to satisfy the requirements of a particular

passenger airline pilot position.” Id. at A37. The court

added that petitioners “have had no difficulty obtaining

other jobs in their field prior to this one.” Ibid.

3. The court of appeals affirmed. Pet. App. Al-A25.

Guided by the EEOC’s regulatory definition of “impair-

ment,” under which At he existence of an impairment is

to be determined without regard to mitigating mea-

sures such as medicines, or assistive or prosthetic

devices,” 29 C.F.R. Pt. 1630 App. § 1630.2(h), the court

held that petitioners had adequately alleged that they

had an “impairment” of vision under the ADA. Pet.

5

App. A9-All. The court held, however, that It Ihe

determination of whether an individual’s impairment

substantially limits a major life activity should take into

consideration mitigating or corrective measures utilized

by the individual.” Jd. at Al6. The court concluded

that. “while [petitioners’] uncorrected vision would un-

doubtedly ‘substantially limit’ their major life activity

of seeing,” they “can prove no set of facts upon which

relief may be granted” because their vision is correct-

able. Id. at A17-A18.

The court also held that they had not set forth a claim

upon which relief could be granted under the “regarded

as” prong of the statute. The court stated that “in

order to establish a disability under the ‘regarded as’

prong of the ADA with respect to the major life activity

of working, an individual must show that the employer

regarded him or her as being substantially limited in

performing either a class of jobs or a broad range of

jobs in various classes.” Pet. App. A21. Although the

court accepted as true petitioners’ allegation that they

“were disqualified from ‘all pilot positions’ as they

alleged in their Amended Complaint,” the court none-

theless held that petitioners “cannot show disqualifica-

tion from a ‘class of jobs.“ Id. at A22 n.10.

SUMMARY OF ARGUMENT

Petitioners’ complaint states a claim that they are

disabled within the meaning of the ADA. There can be

no dispute that “seeing” is a major life activity under

the ADA. The complaint alleges that their vision is so

impaired that, without eyeglasses, they cannot see well

enough to conduct numerous everyday activities. Ac-

cordingly, petitioners alleged that they have a physical

impairment that substantially limits a major life

activity. That does not, of course, establish that myopia

6

is always a disability under the ADA. Because the

inquiry into disability under the ADA must be

undertaken on an individualized basis, other individuals

with vision that is better than that of petitioners, but

that is nonetheless somewhat impaired, may not satisfy

the statutory definition of disability. Petitioners’ com-

plaint was sufficient, however, to allege that they are

disabled.

The court of appeals held that petitioners had not

stated a claim that they were disabled under the ADA

because their complaint stated that their poor vision

was fully correctable through the use of corrective

lenses. As we explain in our brief in Murphy v. United

Parcel Service, No. 97-1992, however, the question

whether an individual has a disability under the ADA

must be answered without regard to mitigating mea-

sures that the individual takes to ameliorate the effects

of the impairment. Although Murphy involves high

blood pressure, rather than poor vision, there is nothing

about poor vision that would justify adopting a differ-

ent rule in this case. Accordingly, the court of appeals

erred in taking mitigating measures into account and

thereby concluding that petitioners’ complaint had not

properly alleged a disability under the ADA.

Petitioners’ complaint also adequately alleged that

they were “regarded as” substantially limited in the

major life activity of working by respondent. Peti-

tioners’ complaint alleges that respondent would not

consider them for any of its pilot positions because of

their poor uncorrected vision, and the reasonable infer-

ence can be drawn from the complaint that respondent

adopted that policy because it regarded them as unable

safely to operate an airplane. Those allegations are

sufficient to state a claim that petitioners were “re-

garded as” disabled by respondents. While respondent

7

may ultimately show that petitioners are not qualified

for the job or that its failure to hire petitioners is

otherwise justified, the court improperly pretermitted

the inquiry before petitioners were given the opportu-

nity to support their claim.

ARGUMENT

I. MITIGATING MEASURES SHOULD NOT BE CON-

SIDERED IN DETERMINING WHETHER A PER-

SON HAS A “DISABILITY” UNDER THE AMERI-

CANS WITH DISABILITIES ACT

The term “disability” within the meaning of the

Americans with Disabilities Act of 1990, is defined in

terms of three separate, alternative criteria. Under the

first criterion—actual disability—a disability is “a phy-

sical or mental impairment that substantially limits one

or more of the major life activities of [an] individual. 42

U.S.C, 12102(2)(A). Petitioners’ poor vision is a “physi-

cal * * * impairment” that satisfies the regulatory

definition of that term, i.e., a “physiological disorder, or

condition,, * * affecting * * * special sense organs.”

29 C. F. R. 1630.2(h)(1). The remaining question is thus

whether that impairment “substantially limits” any of

petitioners’ major life activities. The answer to that

question turns on whether petitioners’ impairment is

analyzed in its mitigated or unmitigated state.

A. We explain in our brief as amicus curiae in

Murphy v. United Parcel Service, No. 97-1992, that the

existence of a disability under the ADA must be

assessed without regard to mitigating or ameliorative

measures. That is the most reasonable interpretation

of the Act itself, and Congress’s intent in this regard is

set forth with unusual clarity in all three of the relevant

committee reports. See 97-1992 U.S. Br. at 9-11.

8

Moreover, assessing the existence of a disability

without regard to mitigating measures is most consis-

tent with the ADA’s basic purpose to eliminate the ex-

clusion of individuals from the workplace because of

outdated stereotypes and myths about those individu-

als’ abilities. It is also most consonant with the struc-

ture of the statute, which generally addresses at a stage

later than the threshold determination of disability is-

sues regarding the various adjustments that may be

required to enable a disabled person to work, e.g.,

whether the employer is being required to make a rea-

sonable accommodation, whether the employee is

genuinely qualified for the job, and whether the em-

ployee poses a health or safety threat to others. See 97-

1992 U.S. Br. at 11-15. To take mitigating measures

into account at the threshold stage of determining the

existence of a disability would distort the analysis re-

quired under the scheme that Congress enacted. It

would also would inject uncertainty and instability into

the system, because individuals would gain and lose

status as “disabled” depending on the changing effecti-

veness of their regimen of mitigating measures and

their changing decisions regarding whether they should

continue taking those mitigating measures in light of

their unwanted side effects. See 97-1992 U.S. Br. at 16-

17.

Finally, we explain in our brief in Murphy that the

agencies entrusted with issuing regulations to carry out

the ADA have consistently taken the position that the

existence of a disability should be assessed without

regard to mitigating measures. The EEOC has taken

that position in interpretive guidelines that were sub-

ject to notice and comment at the same time as—and

together with—the formal ADA regulations. Because

the EEOC’s guidelines state its interpretation of its

9

own ADA regulations, they are entitled to controlling

weight, and they therefore establish that mitigating

measures should not be taken into account in assessing

the existence of a disability. See 97-1992 U.S. Br. at 17-

20.

B. Assessed in its unmitigated state, petitioners’

impairment—as set forth in their complaint—unques-

tionably limits their major life activity of seeing. In-

deed, the court of appeals conceded that fact. Pet. App.

A18 (“[Petitioners’] uncorrected vision would undoubt-

ediy ‘substantially limit’ their major life activity of

seeing.”). Because the question whether en impairment

constitutes a disability must be assessed without taking

mitigating measures into account, petitioners’ com-

plaint states a claim that they were actually disabled.

Some courts of appeals that have accepted the no-

mitigation rule as a general matter have expressed

reluctance to follow it in the context of correctable

vision impairments. For example, the First Circuit in

Arnold v. United Parcel Service, Inc., 136 F.3d 854, 863

(1998), held unequivocally that disabilities (in that case,

diabetes) are generally to be assessed under the ADA

without regard to mitigating measures. The court

nonetheless noted that it “might reach a different result

in the case of a myopic individual whose vision is

correctable with eyeglasses,” because “[t he availability

of such a simple, inexpensive remedy, that can provide

assured, total and relatively permanent control of all

symptoms, would seem to make correctable myopia the

kind of ‘minor, trivial impairment[],’ * * * that would

not be considered a disability under the ADA.” Id. at

866 n.10 (quoting S. Rep. No. 116, 101st Cong., Ist Sess.

23 (1989)). Similarly the Fifth Circuit in Washington v.

HCA Health Services, 152 F.3d 464, 471 (1998), held

that many disabilities (in that case Adult Stills disease)

10

should be assessed without mitigating measures, but

noted that some mitigating measures, such as hip re-

placements, might amount to permanent corrections

that remove the disability, and speculated that eye-

glasses might be properly placed in the same category.

Nothing in the text or history of the ADA supports

the suggestion in dicta of these two courts that mitigat-

ing measures should sometimes be considered at the

threshold stage. Indeed, it would be difficult to find a

principled basis for distinguishing for this purpose

between myopia and other correctable disorders, such

as epilepsy and diabetes, which Congress unquestion-

ably intended to bring within the scope of the ADA.

See S. Rep. No. 116, supra, at 31, 39, 62; H.R. Rep. No.

485, 101st Cong., 2d Sess., pt. 2, at 52, 62, 79, 104 (1990);

id., pt. 3, at 28, 42, 50. Congress adopted a test for

identifying those impairments serious enough to war-

rant coverage under the ADA: the impairment must

“substantially limit{] one or more of the major

life activities.” 42 U.S.C. 12102(2)(A). That test asks

not whether the impairment is uncorrectable,

but whether—in its uncorrected state—its effect is

substantial. And the EEOC has elaborated on that test

by providing that “substantially limits means

[slignificantly restricted * * * as compared to

the average person in the general population.” 29

C. F. R. 1630.2(j)(1)(ii). Thus, moderate myopia might be

excluded from coverage, not because it is correctable,

but because it is quite prevalent in the general popula-

tion; an individual with moderate myopia therefore

One government study found that 63% of adults wear eye-

glasses or contact lenses. See National Center for Health Statis-

tics, U.S. Dep’t of Health & Human Servs., Eye Care Visits and

Use of Eyeglasses or Contact Lenses 29 (Vital & Health Statistics

11

may not be “significantly restricted” compared with the

average person.’ But petitioners’ complaint in this case

alleges that they have a vision impairment severe

enough to “constitute[] legal blindness for purposes of

Supplemental Security Insurance disability classifica-

tion and also under the law of numerous states” if it

could not be corrected. J.A. 24. That is sufficient to

state a claim that they are substantially limited in the

major life activity of seeing.

Although petitioners have stated a claim, the limits

on that claim are significant. As noted above, relatively

few adults have vision as poor as that alleged by

petitioners, and the fact that they have stated a claim

that they are disabled therefore does not mean that

others with better vision would necessarily be able to

do so. See note 1, supra. In addition, although peti-

tioners have stated a claim that respondent discrimi-

nated against them on the ground of their disability,

that kind of claim is likely to be rare; employers do not

commonly discriminate on the basis of poor uncorrected

vision, at least outside a few contexts, such as the

transportation industry and law enforcement. Finally,

Series 10, No. 145, 1984). A recent article reporting data from

older surveys of American adults under 75 indicates that about five

to six percent of the population has uncorrected distance visual

acuity of 20/200 or worse. See David J. Lee et al., Prevalence of

Uncorrected Binocular Distance Visual Acuity in Hispanic and

Non-Hispanic Adults, 105 Ophthalmology 552, 556 (1998).

2 The Department of Justice and the EEOC have both reached

that conclusion. See, e.g., U.S. Dep’t of Justice, The Americans

with Disabilities Act: Title II Technical Assistance Manual, II-

2.4000 (1992) (“A person with a minor vision impairment, such as

20/40 vision, does not have a substantial [limitation] of the major

life activity of seeing.”); Young v. Runyon, No. 01942399, 1995 WL

241476, at *4 (EEOC Apr. 19, 1995) (judging individual with un-

corrected vision of 20/30 not substantially limited).

12

the fact that petitioners or others like them may be

disabled and may suffer discrimination on account of

their disability is not sufficient to make out a claim

under the ADA. Employers like respondent may re-

fuse to hire even disabled individuals on the ground

that they are not “qualified” for the jobs they seek, 42

U.S.C. 12112(a), or if their disability would “pose a

direct threat to the health or safety of other individu-

als,” 42 U.S.C. 12113(b).

II. PETITIONERS ADEQUATELY ALLEGED THAT

RESPONDENTS REGARDED THEM AS SUB-

STANTIALLY LIMITED IN THE MAJOR LIFE

ACTIVITY OF WORKING, AND THEY THERE-

FORE STATED A CLAIM THAT RESPONDENTS

“REGARDED” THEM AS DISABLED

An individual is “disabled” under the ADA not only if

the individual has an impairment “that substantially

limits one or more of the major life activities of such

individual,” 42 U.S.C. 12102(2)(A), but also if the

individual is “regarded as having such an impairment,”

42 U.S.C. 12102(2)(C). Petitioners’ complaint ade-

quately states a claim that respondent regarded them

as having impairments (their poor vision) that sub-

stantially limited them in the major life activity of

working.“ The Tenth Circuit erred in ruling to the

contrary.

The court of appeals stated (Pet. App. A19 n.9) that the com-

plaint alleged that respondent regarded petitioners as substan-

tially limited only in the major life activity of working. The district

court had read the complaint as alleging both seeing and working

as the major life activities at issue (id. at A36), and petitioners had

so argued in the court of appeals (id. at Al9). Taking all allega-

tions of the complaint as true and drawing all the inferences in

favor of the petitioners, the complaint can fairly be read to claim

13

As noted above, the EEOC regulations generally

provide that an individual is substantially limited in a

major life activity if the individual is “[u)nable to per-

form a major life activity that the average person in the

general population can perform” or is “(significantly

restricted as to the condition, manner or duration under

which” the individual can perform the activity as com-

pared to the “average person in the general popula-

tion.” 29 C. F. R. 1630.2(j)(1). The regulations provide

special guidance, however, in determining the substan-

tiality of a limitation on the major life activity of work-

ing. In that context, the regulations provide that t he

term substantially limits means significantly restricted

in the ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the av-

erage person having comparable training, skills and

abilities.” 29 C. F. R. 1630.2(j)(3)(i). The regulations add

that At he inability to perform a single, particular job

does not constitute a substantial limitation in the major

life activity of working.” Ibid.

The requirement that plaintiffs identify “a class of

jobs or a broad range of jobs in various classes,” 29

that respondent refuses to hire job applicants with uncorrected

eyesight worse than 20/100 because respondent regards those ap-

plicants as substantially limited in the major life activity of seeing,

as well as working. If so, petitioners stated a claim under this

theory, as well as their theory relying on the major life activity of

working. See Doane v. City of Omaha, 115 F.3d 624, 627-628 (8th

Cir. 1997), cert. denied, 522 U.S. 1048 (1998).

The regulations also provide that It he following factors

should be considered in determining whether an individual is sub-

stantially limited in a major life activity: (i) The nature and sever-

ity of the impairment; (ii) The duration or expected duration of the

impairment; and (iii) The permanent or long term impact, or the

expected permanent or long term impact of or resulting from the

impairment.” 29 C. F. R. 1630.2(j)(2).

14

C. F. R. 1630.2(j(3)(i), was not intended to impose an

onerous burden. It was intended to ensure that indi-

viduals who had impairments that excluded them from

a small sub-set of jobs that required “extraordinary”

skills, see 29 C.F.R. Pt. 1630 App. § 1630.2(j) at 349, but

whose impairment would not bar them from using the

same “training, skills and abilities” in a broader range

of jobs, 29 C. F. R. 1630.2(j(3)i), were not deemed dis-

abled.

A. Petitioners’ complaint adequately alleges a “re-

garded as” disability because it alleges that respondent

regarded them as significantly restricted in their ability

to perform a class of jobs because of their poor vision.

The court of appeals based its conclusion that peti-

tioners had failed to state a claim on a single aspect of

the “regarded as” analysis. The court did not question

that petitioners properly alleged that respondent

regarded them as having an impairment within the

meaning of the ADA. Nor did the court question that

petitioners properly alleged that working was for them

a major life activity. The court held, however, that

petitioners had failed to state a claim that respondents

regarded them as substantially limited in that major life

activity, because, in the court’s view, petitioners had

failed to state a claim that respondents regarded them

as significantly restricted in their ability to perform a

class of jobs. Pet. App. A22.

The court of appeals’ conclusion is erroneous. Peti-

tioners alleged that respondent stated that their “un-

corrected vision disqualified [them] from employment

as a United pilot.” J. A. 21, 23. Moreover, petitioners

alleged that “[respondent’s] policy * * * is not limited

to certain models of aircraft, certain air routes, or

certain flight conditions.” J.A. 25-26. They also alleged

that respondent’s policy “is not based on an isolated

15

mismatch between one employer and these applicants.”

J. A. 26. Indeed, they specifically alleged that It here is

nothing unique about the job activities of United pilots

that distinguishes United’s requirements from other

airlines.” Ibid.

Those allegations are ample to state a claim that

respondent viewed petitioners as significantly re-

stricted in their ability to perform a class of jobs. In-

deed, petitioners’ complaint is quite specific in alleging

the basis for respondent’s view—that respondent

asserted its vision requirements were a “rational, job-

related, safety requirement.” J.A. 24.° In support of

that allegation, petitioners could certainly attempt to

prove that respondent believed that individuals with a

visual impairment like that of petitioners could not

safely fly an airplane. Such proof would be sufficient to

demonstrate that respondent regarded petitioners as

excluded from being airplane pilots—a “class of jobs”

for which they were amply trained—and it would

thereby demonstrate that respondent regarded them as

substantially limited in their major life activity of

working.

B. The court of appeals concluded that petitioners

failed to state a claim of exclusion from a class of jobs or

a broad range of jobs in various classes, because they

allege only that respondent regards them as ineligible

for positions as global airline pilots, but not for positions

such as the ones they hold (at other airlines) as regional

5 Petitioners alleged that “[eJach possessed (and still does) a

First-Class medical certificate from the Federal Aviation Admini-

stration, which indicates fitness to fly in any capacity, including

that of airline captain.” J. A. 20. FAA regulations require Idlis-

tant visual acuity of 20/20 or better in each eye separately, with or

without corrective lenses.” 14 C. F. R. 67.103(a).

16

airline pilots. Pet. App. A22-A24. According to the

court of appeals, the relevant class of jobs “would

include, but not be limited to, all pilot positions at global

airlines, national airlines, eommuter/ regional airlines,

and cargo/courier airlines.” Id. at A22-A23.

That conclusion misreads petitioners’ complaint. Pe-

titioners allege that respondent regards petitioners as

unqualified for any pilot position, because respondent

believes they cannot safely fly an airplane. Thus, while

petitioners and respondent both acknowledge that

other employers, such as petitioners’ current employ-

ers, may have a different view, that fact does not in any

way contradict the claim that respondent regards peti-

tioners as ineligible for the entire broad class of jobs at

issue. As the court of appeals itself correctly noted,

If petitioners’ complaint alleged (as it does not) that respon-

dent regarded petitioners as qualified for positions as regional

airline pilots, and disqualified only from positions as global airline

pilots, that too might well state a claim under the ADA. The

EEOC’s interpretive guidance suggests that a person barred from

work as a commercial pilot because of a vision impairment but eli-

gible for work as a commercial co-pilot or a pilot for a courier ser-

vice would not suffer a substantial limitation in the major life

activity of working. 29 C.F.R. Pt. 1630 App. § 1630.2(j). That

example is given, however, to illustrate the general principle in the

EEOC’s regulations that exclusion from one specialized job in a

broader class does not constitute a “substantial limitation” unless

the excluded individual is “significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in various

classes as compared to the average person having comparable

training, skills and abilities.” 29 C. F. R. 1630. 200). Cf. Bragdon

v. Abbott, 118 S. Ct. 2196, 2206 (1998) (“The Act addresses sub-

stantial limitations on major life activities, not utter inabilities.”).

Thus, the example assumes that commercial pilot positions are not

sufficiently numerous or important that exclusion from them would

“significantly restrict” a qualified and trained individual's ability to

obtain work as a pilot generally. That assumption has been chal-

17

Ailt is the perception of the employer in the case, not

the perceptions or practices of others in the industry,

that matters.” Pet. App. A22. Nothing in the ADA

suggests that a particular employer who regards an in-

dividual as disabled—perhaps because of the “preju-

dice, stereotypes, or unfounded fear,” School Bd. v. Ar-

line, 480 U.S. 273, 287 (1987), that the ADA and its

predecessor statute were designed to eradicate—has a

defense under the ADA solely because other employers

have freed themselves from those prejudices. See 29

C.F.R. Pt. 1630 App. § 1630.2(/) (“An individual re-

jected from a job because of the ‘myths, fears, and

stereotypes’ associated with disabilities would be cov-

ered under this part of the definition of disability,

whether or not the employer’s or other covered entity’s

perception were shared by others in the field.”); H.R.

Rep. No. 485, supra, pt. 3, at 30 (similar).

The court of appeals stated that petitioners’ “rea-

soning would imply that anyone who failed to obtain a

single job because of a single requirement of employ-

ment would become a ‘disabled’ individual because the

employer would thus be regarding the applicant’s

failure as substantially limiting in the major life activity

of working.” Pet. App. A24. That is mistaken.

To be sure, evidence that an employer had denied a

plaintiff a job on the basis of the plaintiff’s impairment

may well provide the basis for an inference that the

employer viewed the plaintiff as substantially limited in

the major life activity of working. But the employer

lenged by petitioners, and in any event it appears to be premised

on the counterfactual hypothesis that a person excluded for vision

impairment from pilot positions could be hired as a co-pilot. To the

extent the example may be premised on inaccurate factual assump-

tions, of course, the general principle and not the example controls.

18

could introduce contrary evidence that it regarded the

plaintiff as unable to satisfy a particular requirement

applicable only to that particular job.’ The ultimate

question in such a case would be whether the employer

or the plaintiff was correct regarding the reason why

the employer refused to hire the plaintiff; only if it were

ultimately determined that the employer did in fact

regard the plaintiff as unsuitable for a class of jobs

would the plaintiff be “regarded as” disabled under the

ADA.“ In short, if the plaintiff prevailed, it would

Three leading cases decided under the Rehabilitation Act, 29

U.S.C. 701 et seq., and relied on by the EEOC in its interpretive

guidance, see 29 C.F.R. Pt. 1630 App. § 1630.2(j) at 349, illustrate

the distinction between a particular job and a class of jobs. See

Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986) (holding that

employer “never doubted [plaintiff’s] ability to work in his chosen

occupation of utility systems repair,” but “merely saw him as un-

able [because of his acrophobia] to exercise his acknowledged abili-

ties above certain altitudes”); Jasany v. United States Postal

Serv., 755 F.2d 1244, 1250 (6th Cir. 1985) (holding that defendant

whose strabismus (crossed eyes) precluded him from operating a

particular machine at the post office, but whose condition “never

had any effect whatsoever on any of his activities, including his

* * * ability to carry out other duties at the post office,” was not

“regarded as” disabled); E. E. Black, Ltd. v. Marshall, 497 F. Supp.

1088, 1099 (D. Haw. 1980) (explaining that Ja] person who is dis-

qualified from employment in his chosen field has a substantial

handicap to employment, and is substantially limited in one of his

major life activities,” but that Jan individual with acrophobia who

was offered 10 deputy assistant accountant jobs with a particular

company, but was disqualified from one job because it was on the

37th floor” was not disabled).

8 Issues regarding state of mind have long been recognized as

particularly suitable for resolution by the ultimate trier of fact.

See Briscoe v. LaHue, 460 U.S. 325, 343 n.29 (1983); Hutchinson v.

Proxmire, 443 U.S. 111, 120 n.9 (1979); see also Hardin v. Pitney-

Bowes, 451 U.S. 1008, 1008-1009 (1981) (Rehnquist, J., dissenting

from the denial of certiorari).

19

simply establish that, based on all of the facts of the

case, the plaintiff had made out her claim that the

employer had denied the plaintiff the single job because

the employer regarded the plaintiff as having an im-

pairment that, in the employer’s view, would disqualify

plaintiff from a “class of jobs or a broad range of jobs in

various classes.” 29 C. F. R. 1630.2(j)(3).

C. Based on the above analysis, petitioners stated a

claim that they were regarded as” disabled. That

conclusion does not, of course, establish that petitioners

can in fact produce evidence to make out their claim or

that respondent will not produce convincing evidence to

the contrary. Nor does it preclude respondent from

establishing that it is not liable because petitioners

are not “qualified” for the jobs they seek, 42 U.S.C.

12112(a), or because petitioners’ uncorrected vision

would “pose a direct threat to the health or safety of

other individuals,” 42 U.S.C. 12113(b). Because their

complaint adequately states a claim under the ADA,

however, the court of appeals erred in holding that it

must be dismissed.

20

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

C. GR GORY STEWART

Ger eral Counsel

PHILIP B. SKLOVER

Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

PAULA R. BRUNER

Attorney

Equal Employment

Opportunity Commission

FEBRUARY 1999

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys