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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 471

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0183%3A09. Public record. Not legal advice.