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

No. 97-1943 )

Supreme Court. ¥j S

Lc.

IN THE FEB 22 {990

Supreme Court of the Hnitgd States

OCTOBER TERM, 1998 -

>

KAREN SUTTON, er al.,

Petitioners,

UNITED AIR LINES, INC.,

Respondent.

ON WRIT OF CERTIORARI! TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF AMICUS CURIAE OF

THE AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONERS

Louis M. Bograd

(Counsel of Record)

American Civil Liberties Union

Foundation

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 234-1817

Chai R. Feldblum

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(202) 662-9595

Steven R. Shapiro

Matthew A. Coles

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500 age?

_——————————————————————

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ll

INTEREST OF AMICUS

STATEMENT OF THE CASI

SUMMARY OF ARGUMENT

ARGUMENT ~ 4

THE ADA WAS INTENDED TO

BROADLY PROTECT QUALIFIED PER-

SONS WITH PHYSICAL AND MENTAI

IMPAIRMENTS FROM DISCRIMINA-

TION IN EMPLOYMENT 4

i

| A. Congress, In Enacting The ADA,

Sought To Provide Broad Protection

Against Employment Discrimination

For Persons With Disabilities 4

B. Congress Adopted The ADA’s Defini-

tion Of Disability From Title V Of

[he Rehabilitation Act, Which Had

Been Interpreted Expansively 5

| C. The Critical Issue Under the ADA Is

| Whether The Plaintiff Is Qualified To

| Perform The Essential Functions Of

[he Job; Courts That Construe The

ADA’s Definition Of Disability Too

Narrowly Never Reach This Critical

Inquiry teeleis | | ) )

DI IIOEIEIIIEIEIEIIIIINEE Eeeeee

ll. UNDER THE ADA, WHETHER A

PHYSICAL OR MENTAL IMPAIRMENT

SUBSTANTIALLY LIMITS A MAJOR

LIFE ACTIVITY MUST BE DETER-

MINED WITHOUT REGARD TO MITI-

GATING OR CORRECTIVE MEASURES

lil. AN EMPLOYER WHO TAKES AN AD-

VERSE EMPLOYMENT ACTION

AGAINST A PERSON BECAUSE OF A

PHYSICAL OR MENTAL IMPAIRMENT

NECESSARILY REGARDS THAT PER-

SON AS SUBSTANTIALLY LIMITED

IN WORKING AND HENCE AS DIS-

ABLED FOR PURPOSES OF THE ADA ...

CONCLUSION

il

Page

20

30

ee eee

TABLE OF AUTHORITIES

Page

Cases

Ackerman v. Western Elec. Co.,

643 F.Supp. 836 (N.D.Cal. 1986) 7

Arnold v. United Parcel Service, Inc

136 F.3d 854 (Ist Cir. 1998) 5, 11, 16, 17, 18, 19

Bailey v. Tisch

683 F.Supp. 652 (S.D. Ohio 1988)

Bartlett v. New York State Bd

of Law Examiners,

156 F.3d 321 (2d Cir. 1998) 16

Bentivegna v. United States Dep t of Labor.

694 F.2d 619 (9th Cir. 1982) : 7

Bolthouse v. Continental Wingate Co,,

656 F.Supp. 620 (W.D.Mich. 1987) 7

Bolton v. Scrivner,

36 F.3d 939 (10th Cir. 1994) .. 27

Bowen v. American Hosp. Ass n,

476 U.S. 610 (1986) , s

Bragdon v. Abbott,

524 U.S. _, 118 S.Ct. 2196 (1998) .. 6, 7, 15

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc..,

467 U.S. 837 (1984) ..... 15

Coley v. Secretary of Army,

689 F.Supp. 519 (D.Md. 1987) 7

Colin K. v. Schmidt,

715 F.2d 1 (ist Cir. 1983) . 7

il]

Dancy v. Kline.

639 F.Supp. 1076 (N.D.IIL 1986)

Daubert v. United States Postal Service.

733 F.2d 1367 (10th Cir. 1984)

de la Torres v. Bolger.

781 F.2d 1134 (Sth Cir. 1986)

Deas v. River West. LP.

152 F.3d 471 (Sth Cir. 1998)

Doane v. City of Omaha

LIS F.3d 624 (8th Cir. 1997).

ceri cde nied. | ie. S Ct 693 { 1998)

Doe v. Region 13 Mental Health-

Vental Retardation Comm ‘n.

704 F.2d 1402 (Sth Cir. 1983)

Doherty } Southern ( ollege

of Optometry

659 F.Supp. 662 (W.D.Tenn. 1987)

Ellison v. Software Spectrum.

85 F.3d 187 (5th Cir. 1996)

Fynes v. Weinberger.

677 F.Supp. 315 (E.D.Pa. 1985)

Gardner v. Morris,

752 F.2d 1271 (8th Cir. 1985)

Gilday v. Mecosta County.

124 F.3d 760 (6th Cir. 1997)

Harris v. H & W Contracting Co..

102 F.3d 516 (11th Cir. 1996)

Page

16.

~~

ne

Page

Holihan v. Lucky Stores, Inc..,

87 F.3d 362 (9th Cir. 1996),

cert. denied, 117 S.Ct. 1349 (1997) teal 16

Homeyer v. Stanley Tuchin Associates.

91 F.3d 959 (7th Cir. 1996) | 27

Kampmeier v. Nyquist,

553 F.2d 296 (2d Cir. 1977) 7

Kirkingburg v. Albertson's, Inc..

143 F.3d 1228 (9th Cir. 1998),

cert. granted.

67 U.S.L.W. 3433 (an. 8. 1999) 5. 10

Kling v. County of L.A..

633 F.2d $76 (9th Cir. 1980) 8

Matczak v. Frankford Cand,

and Chocolate Co..

136 F.3d 933 (3d Cir. 1997) 16

Miller v. City of Springfield.

146 F.3d 612 (8th Cir. 1998) ... ) | 24

Vew York State Ass'n for

Retarded Children v. Carey,

612 F.2d 644 (2d Cir. 1979) . 7

Olson v. GE Astrospace,

101 F.3d 947 (3d Cir. 1996) 26

Poole v. South Plainfield Bd of Educ.

490 F.Supp 948 (D.N.J. 1980) 7

Prewitt v. United States Postal Service.

662 F.2d 292 (Sth Cir. 1981) | | 7

Pushkin v. University of Colo..

658 F.2d 1372 (10th Cir. 1981) | , 7

\

Redlich v. The Albany Law School

of Union University,

899 F.Supp. 100 (N.D.N.Y. 1995)

Reynolds v. Brock,

815 F.2d 571 (9th Cir. 1987) .

Ross v. Beaumont Hosp.,

687 F.Supp. 1115 (E.D.Mich. 1988)

Roth v. Lutheran General Hospital,

$7 F.3d 1446 (7th Cir. 1995) .

Ryan v. Grae & Rybicki,

135 F.3d 867 (2d Cir. 1998)

School Bd. of Nassau County v. Arline,

480 U.S. 273 (1987)

Skorup v. Modern Door Corp..,

153 F.3d 512 (7th Cir. 1998) .

Steven v. Stubbs.

$76 F.Supp. 1409 (N.D.Ga. 1983) .

Strathie v. Dep't of Transp.,

547 F.Supp. 1367 (E.D.Pa. 1982) ..

Thompson v. Holy Family Hosp..,

121 F.3d 537 (9th Cir. 1997) ...

Tudyman vy. United Airlines,

608 F.Supp. 739 (C.D.Cal. 1984) ......

Ward v. Mass. Bay Transp. Auth.,

550 F.Supp. 1310 (D.Mass. 1982)... ...

Washington v. HCA Health Services

of Texas, Inc..

152 F.3d 464 (5th Cir. 1998) ..

vi

Page

...« » passim

Travers 24

Witter v. Delta Air Lines, Inc..

ne Sn ae wig 24

Wolff v. South Colonie Cent. School Dist.,

S55 FUR. Tae GURROL SN. BBEE) ow ce ewdeescwcs en 7

Statutes and Regulations

Americans with Disabilities Act.

ee eT eee ee ee . passim

Se ee EE On nb b o.0e eke dA Cea cn 4

42 U.S.C. §12101(ay(9) ...... ce RR a i % hy

42 U.S.C. §12101(b)1) .. . . . ... satel <i 4

ey I ES oS Sk diac ems aps Or 5

Cs ae ee 20

EN A eee ee Sad ers be ewe )

ee oa od che neces escees y

ep ee EN nie as «66 cesiv-redeh's “an y

Se ee ES kid WEibis Coe ou 0 cone in

eS re eee 9

PU LeU cate eee ev cecedet 14

ge Ee Dr re er 8

Rehabilitation Act, 29 U.S.C. §794 ............ passim

a re eee. ck em ae Khe emia’ a

es ED ik vw eo wb o's 0 hoe an Oe Ge 14

i en 2 cok deen sk a ek maine 15

a nn <. s ko et hawa db ea dak cee 15

ype ys SR eee re eee 14, 21, 24, 26, 27

ir re EE oss) su wk Maveee ep oews ee es 14

29 C.F.R. §1630.2(j)(3)

Vu

Page

29 C.F.R. §1630.2(1) .. 0... ee eee tees 20

56 Fed.Reg. 35,726 (1991)... .-- seer r eee 14

Legislative History

136 Cong.Rec. H4629

(daily ed. July 12, 1990) ......--- eee reer rere

136 Cong.Rec. $9695

(daily ed. July 13, 1990) .. 1... eee cere eres s

H.R. Rep. No. 101-485, pt.2 (1990) ..... 4, 6, 10, 13, 23

H.R. Rep. No. 101-485, pt.3 (1990) ......--. . passim

H.R. Rep. No. 101-485, pt.4 (1990) ....-- esse eee 6

S. Rep. No. 101-116 (1989) ....--..55- 4, 6, 10, 13, 23

Other Authorities

Burgdorf, Jr., Robert L., DISABILITY Dis-

CRIMINATION IN EMPLOYMENT LAW (1995) ....----. 8

Feldblum, "The (R)evolution of Physical

Disability Anti-Discrimination Law:

1976-1996," Mental and Physical Dis-

ability Law Rep. 613 (Sept.-Oct. 1996) .....-.--+-> 9

Memorandum from

Douglas W. Kmiec,

Acting Asst Att’y Gen.,

Office of Legal Counsel, to

Arthur B. Culvahouse, Jr.,

Counsel to the President

(Sept. 27, 1988), reprinted in

8 Fair Empl. Prac. Cases (BNA) ;

Be cet E Verh Sekt mek Caer UNH. 23

INTEREST OF AMICUS '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to preserving the principles of

liberty and equality embodied in the Constitution and our

nation’s civil rights laws. Since its founding in 1920, the

ACLU has fought to give meaning to the concept of the

“equal protection of the laws" enshrined in the Fourteenth

Amendment for members of racial, ethnic, and religious

minorities, for women, and for persons with disabilities.

The ACLU has vigorously supported the enactment and en-

forcement of the major federal civil rights statutes that are

designed to end discrimination in employment including, in

particular, the Americans with Disabilities Act (ADA), Pub.

L. No. 101-336, 104 Stat. 327 (1990). Because the decision

below threatens to limit substantially the protections af-

forded by that legislation, this case involves issues of critical

importance to the ACLU and its members.’

STATEMENT OF THE CASE

Petitioners Karen Sutton and Kimberly Hinton are twin

sisters who applied for commercial airline pilot positions

with respondent United Air Lines, Inc. (United). United re-

Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amicus states that no counsel for a party authored this brief in

whole or in part and no person, other than amicus, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

* Rather than burdening the Court with multiple briefs, amicus respect-

fully requests that the Court consider the arguments presented herein in

connection with its consideration of the related cases of Murphy v

United Parcel Service, Inc., No. 97-1992, and Albertson's, Inc. v

Kirkingburg, No. 98-591.

jected their applications because each of the sisters has un-

corrected vision that is worse than 20/100 in each eye. The

sisters’ corrected vision is 20/20 in both eyes.

Petitioners sued United for employment discrimination

under the ADA. They alleged that their uncorrected vision

is a disability and that, with corrective eyeglasses or contact

lenses, they are qualified to serve as commercial pilots.

Therefore, petitioners contended that United’s policy of re-

fusing to hire pilots with uncorrected vision worse than

20/100 constituted unlawful discrimination against persons

with disabilities.

Neither the district court nor the court of appeals ever

considered whether, with corrective lenses, the sisters are

qualified to be airline pilots or whether United's policy is

justified. Instead, both courts ruled that the petitioners are

not “individuals with a disability" who can invoke the ADA.

First, both courts ruled that the petitioners do not have a

physical impairment that substantially limits a major life ac-

tivity because their vision has been corrected. Second, both

courts ruled that United did not regard the sisters as dis-

abled; it simply viewed them as lacking a requirement of the

pilot positions they sought. Petitioners sought review in this

Court.

SUMMARY OF ARGUMENT

Congress enacted the ADA to provide a comprehensive

national mandate for the elimination of discrimination

against persons with disabilities, including employment dis-

crimination. To effectuate this goal, Congress adopted a

broad definition of "disability" in the ADA. Congress took

this definition of disability directly from the definition of

"handicapped individual" in the Rehabilitation Act, 29

U.S.C. §794, which Congress knew had been interpreted

broadly, and instructed courts to interpret the ADA at least

as broadly. As this case demonstrates, a narrow reading of

the ADA’s definition of disability would frustrate the pur-

poses of the Act by effectively precluding courts from ever

reaching the critical inquiry under the Act: whether the

plaintiff is qualified, with or without reasonable accommo-

dation, to perform the essential functions of the job.

Under the first prong of the ADA’s definition of disa-

bility, the question of whether a plaintiff's physical or men-

tal impairment substantially limits a major life activity must

be determined without regard to mitigating or corrective

measures. This reading of the statute is required by the

clear legislative history of the ADA, uniform regulatory

guidance from the administrative agencies charged with en-

forcement of the Act, and the virtually unanimous weight of

appellate authority. Most importantly, consideration of miti-

gating measures in the determination of disability is logical-

ly inconsistent with the underlying purpose and structure of

the ADA itself. It would create an absurd result if the cor-

rective measures that often make individuals with disabilities

qualified for jobs could be used to exclude them from cov-

erage under the ADA in the first place.

For similar reasons, under the third prong of the ADA’s

definition of disability, an employer who takes an adverse

employment action against a person because of a physical or

mental impairment necessarily regards that person as sub-

stantially limited in working and hence as disabled for pur-

poses of the Act. Again, the clear legislative history of the

ADA and its interpretation by regulatory agencies, along

with this Court’s interpretation of an identical provision in

the Rehabilitation Act, School Bd. of Nassau County vy.

Arline, 480 U.S. 273 (1987), provide strong support for this

reading of the “regarded as" prong of the ADA. A number

of lower courts, including the court below, have adopted an

unduly narrow construction of this third prong by taking the

narrow "class of jobs" exception that applies to the first

prong of the definition and misapplying that exception to the

third prong. This Court should correct that misunderstand-

ing and clarify that a person denied employment because of

an impairment has necessarily been regarded as disabled.

ARGUMENT

I. THE ADA WAS INTENDED TO BROADLY

PROTECT QUALIFIED PERSONS WITH

PHYSICAL AND MENTAL IMPAIRMENTS

FROM DISCRIMINATION IN EMPLOYMENT

A. Congress, In Enacting The ADA, Sought

To Provide Broad Protection Against

Employment Discrimination For Persons

With Disabilities

Congress enacted the ADA to "provide a clear and com-

prehensive national mandate for the elimination of discrimi-

nation against individuals with disabilities," 42 U.S.C.

§12101(b)(1), and "to bring persons with disabilities into the

economic and social mainstream of American life... ." S.

Rep. No. 101-116, at 2 (1989); H.R. Rep. No. 101-485,

pt.2, at 22 (1990). Congress recognized, after extensive leg-

islative hearings, that "some 43,000,000 Americans have one

or more physical or mental disabilities, and this number is

increasing,” 42 U.S.C. §12101(a)(1), and that discrimination

against persons with disabilities was a pervasive, societal

problem.

Congress was particularly concerned about employment

discrimination against individuals with disabilities based on

fears, myths, and stereotypes about their conditions. Con-

gress noted that two-thirds of all working-age Americans

with disabilities were unemployed, S. Rep. No. 101-116, at

9: H.R. Rep. No. 101-485, pt.2, at 32, and concluded that

"the continuing existence of unfair and unnecessary discrim-

ination and prejudice . . . costs the United States billions of

4

dollars in unnecessary expenses resulting from dependency

and nonproductivity.". 42 U.S.C. §12101(a)(9).

Thus, when Congress passed the ADA by overwhelming

majorities in both houses,’ it understood that it was enact-

ing "comprehensive" remedial legislation against discrimina-

tion based on disability. See Kirkingburg v. Albertson's,

Inc., 143 F.3d 1228, 1233 (9th Cir. 1998), cert. granted, 67

U.S.L.W. 3433 (Jan. 8, 1999)("The Act was drafted in

broad language in order to protect a large class of physically

impaired individuals from unwarranted discrimination -- it

was not drafted narrowly to protect only those with the most

severe disabilities"). Courts construing the ADA, and in

particular its definition of "disability," 42 U.S.C. §12102(2),

must be guided by this broad congressional purpose. Cf.

Arnold v. United Parcel Service, Inc., 136 F.3d 854, 861

(1st Cir. 1998)("Conceptually, it seems more consistent with

Congress’s broad remedial goals in enacting the ADA, and

it also makes more sense, to interpret the words ‘individual

with a disability’ broadly, so the Act’s coverage protects

more types of people against discrimination.").

B. Congress Adopted The ADA’s Definition

Of Disability From Title V Of The

Rehabilitation Act, Which Had Been

Interpreted Expansively

The ADA defines "disability" in 42 U.S.C. §12102(2):

The term "disability" means, with respect to an

individual --

(A) a physical or mental impairment that sub-

stantially limits one or more of the major life

* The votes on final passage of the ADA were 377-28 in the House of

Representatives and 91-6 in the Senate. 136 Cong.Rec. H4629-30 (daily

ed. July 12, 1990); 136 Cong.Rec. $9695 (daily ed. July 13, 1990).

5

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impair-

ment.

As this Court has recognized, this definition of disabil-

ity "is drawn almost verbatim from the definition of ‘handi-

capped individual’ included in the Rehabilitation Act of

1973, and the definition of ‘handicap’ contained in the Fair

Housing Amendments Act of 1988." Bragdon v. Abbott,

524 U.S. _, _., 118 S.Ct. 2196, 2202 (1998)(citations

omitted); see also S. Rep. No. 101-116, at 21; H.R. Rep.

No. 101-485, pt.2, at 50; H.R. Rep. No. 101-485, pt.3, at

27.4. Normally, "Congress’ repetition of a well-established

term carries the implication that Congress intended the term

to be construed in accordance with pre-existing regulatory

interpretations." Bragdon, 118 S.Ct. at 2202. As this Court

observed, the Congress went further in the ADA to drive

this point home:

In this case, Congress did more than suggest

this construction; it adopted a specific statutory

provision in the ADA directing as follows:

"Except as otherwise provided in this chapter,

nothing in this chapter shall be construed to ap-

ply a lesser standard than the standards applied

under title V of the Rehabilitation Act of 1973

(29 U.S.C. §790 et seq.) or the regulations is-

sued by Federal agencies pursuant to such ti-

tle.” 42 U.S.C. §12201(a).

* The change in terminology from “handicap” to “disability” represented

an effort by Congress to utilize “up-to-date, currently accepted terminol-

ogy.” As each of the committee reports explained: “No change in defi-

nition or substance is intended nor should be attributed to this change in

phraseology.” S. Rep. No. 101-116, at 21; H.R. Rep. No. 101-485, pt.2,

at 51; H.R. Rep. No. 101-485, pt.4, at 36.

6

The directive requires us to construe the ADA

to grant at least as much protection as provided

by the regulations implementing the

Rehabilitation Act.

118 S.Ct. at 2202.

In cases decided under Section 504 of the Rehabilitation

Act (Section 504) prior to the enactment of the ADA, the

term “handicapped individual" was applied very broadly to

persons with a wide variety of physical and mental impair-

ments.” When deciding cases under Section 504, moreover,

‘ Doherty v. Southern College of Optometry, 659 F Supp. 662 (W.D.

Tenn. 1987)retinitis pigmentosa); Kampmeier v. Nyquist, 553 F.2d 296

(2d Cir. 1977)(vision in only one eye); Strathie v. Dep't of Transp., 547

F.Supp. 1367 (E.D.Pa. 1982)impaired hearing and use of hearing aids):

Doe v. Region 13 Mental Health-Mental Retardation Comm'n, 704 F.2d

1402 (Sth Cir. 1983)\(depressive neurosis); Gardner v. Morris, 752 F.2d

1271 (8th Cir. 1985\(manic depressive syndrome); Reynolds v. Brock,

815 F.2d 571 (9th Cir. 1987)epilepsy); Wolff v. South Colonie Cent

School Dist., 534 F.Supp. 758 (N.D.N.Y. 1982)(congenital limb defi-

ciency); Pushkin v. University of Colo., 658 F.2d 1372 (10th Cir. 1981)

(multiple sclerosis); Bolthouse v. Continental Wingate Co., 656 F.Supp.

620 (W.D.Mich. 1987)(cerebral palsy); Daubert v. United States Postal

Service, 733 F.2d 1367 (10th Cir. 1984)(degenerative spinal condition):

Dancy v. Kline, 639 F.Supp. 1076 (N.D.IIl. 1986)(chronic lower back

syndrome with disc disease); Prewitt v. United States Postal Service, 662

F.2d 292 (Sth Cir. 1981)(limited mobility of arm and shoulder); Coley v.

Secretary of Army, 689 F.Supp. 519 (D.Md. 1987)(osteoarthritis in hip):

Ward v. Mass. Bay Transp. Auth, 550 F Supp. 1310 (D.Mass. 1982)(ar-

tificial leg); Colin K. v. Schmidt, 715 F.2d | (lst Cir. 1983)(learning

disabilities); Bentivegna v. United States Dep't of Labor, 694 F.2d 619

(9th Cir. 1982)(diabetes); Bailey v. Tisch, 683 F.Supp. 652 (S.D. Ohio

1988)(heart disease); Ackerman v. Western Elec. Co., 643 F.Supp. 836

(N.D.Cal. 1986)(asthma); Poole v. South Plainfield Bd of Educ., 490

F.Supp 948 (D.N.J. 1980)(absence of kidney); New York State Ass'n for

Retarded Children v. Carey, 612 F.2d 644 (2d Cir. !979)(hepatitis B

carrier); Ross v. Beaumont Hosp., 687 F.Supp. 1115 (E.D.Mich. 1988)

(continued...)

courts tended to accept readily that a plaintiff was a member

of a protected class, ie., a handicapped person, and would

then move on to the merits of the case. As one district

court noted: "Very few cases spend much time on this issue

{of who is a handicapped individual], as the issue usually re-

quires little analysis.". Tudyman v. United Airlines, 608 F.

Supp. 739, 744 (C.D.Cal. 1984).° This Court itself recog-

nized, prior to the enactment of the ADA, that the definition

of "handicapped individual" in the Rehabilitation Act was

"broad." School Bd. of Nassau County v. Arline, 480 U.S.

at 285.

By drawing the definition of "disability" in the ADA

from the Rehabilitation Act, and by enacting the construc-

tion rule in 42 U.S.C. §12201(a), Congress clearly expressed

its intent that the class of people protected by the ADA

should be at least as sweeping as those who were found to

have been covered under Section 504. Courts construing the

ADA’s definition of disability must respect this legislative

judgment.

> (...continued)

(narcolepsy); Bowen v. American Hosp. Ass'n, 476 U.S. 610 (1986)

(birth defects); Fynes v. Weinberger, 677 F.Supp. 315 (E.D.Pa. 1985)

(asbestosis); Kling v. County of L.A., 633 F.2d 876 (9th Cir. 1980)

(Crohn's disease). These examples are taken from Robert L. Burgdorf,

Jr., DISABILITY DISCRIMINATION IN EMPLOYMENT LAW 137-40 (1995).

° Tudyman itself represents a small class of cases that proved to be an

exception to this rule. These were cases in which courts concluded that

plaintiffs did not have a real impairment at all, but simply had unusual

physical characteristics. See, e.g., Tudyman, 608 F.Supp. at 745-46

(muscular build is not an impairment), de la Torres v. Bolger, 781 F.2d

1134, 1138 (Sch Cir. 1986)(left-handedness is not an impairment); Steven

v. Stubbs, 576 F Supp. 1409 (N.D.Ga. 1983)(temporary illness with no

permanent effect on plaintiff's health is not an impairment). In this

case, there is no dispute that, absent corrective measures, petitioners

have an impairment that substantially limits the life activity of seeing.

C. The Critical Issue Under the ADA Is

Whether The Plaintiff Is Qualified To

Perform The Essential Functions Of The

Job; Courts That Construe The ADA’s

Definition Of Disability Too Narrowly

Never Reach This Critical Inquiry

It is important to stress that the determination whether

an ADA plaintiff has a disability is the beginning, not the

end, of the legal analysis of an ADA employment claim.

Title | of the ADA prohibits discrimination "against a guali-

fied 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." 42 U.S.C. §12112(a) (emphasis

added). The term "qualified individual with a disability"

means “an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desires." /d. at §12111(8).’

"A “reasonable accommodation" is a modification to policies or prac-

tices or to physical surroundings, or the use of an assistive device or in-

dividual (such as a sign language interpreter or reader), that enables a

person with a disability to fully perform the functions of a job. 42

U.S.C. §12111(9A) & (B). The “reasonable” component of “reasona-

ble accommodation” does not refer to financial feasibility, but rather to

whether the modification or acquisition will be reasonably effective in al-

lowing the person with the disability to perform the job. Financial and

practical costs are reflected instead in the “undue hardship" defense

available to employers: an employer is not required to make a reasona-

ble accommodation if doing so would impose an “undue hardship" on

the business. 42 U.S.C. §12112(b\(5). See generally Feldblum, "The

(Revolution of Physical Disability Anti-Discrimination Law: 1976-

1996," Mental and Physical Disability Law Rep. 613 (Sept.-Oct. 1996).

9

Congress was quite clear that the ADA protects only

qualified workers. As the Senate Report explained:

By including the phrase “qualified individual

with a disability,” the Committee intends to re-

affirm that this legislation does not undermine

an employer's ability to choose and maintain

qualified workers. This legislation simply pro-

vides that employment decisions must not have

the purpose o[r] effect of subjecting a qualified

individual with a disability to discrimination on

the basis of his or her disability.

S. Rep. No. 101-116, at 26; see also H.R. Rep. No. 101-

485, pt.2, at 55 (same). The report from the House Judici-

ary Committee was perhaps even more blunt:

The underlying premise of [Title | of the

ADA] is that persons with disabilities should

not be excluded from job opportunities unless

they are actually unable to do the job. The re-

quirement that job criteria actually measure

skills required by the job is a critical protec-

tion, because stereotypes and misconceptions

about the abilities and inabilities of persons

with disabilities continue to be pervasive.

H.R. Rep. No. 101-485, pt.3, at 31. Thus, before a plaintiff

with a disability can prevail on an ADA employment claim,

she will have to establish both that she was discriminated

against because of her disability and also that, with or with-

out reasonable accommodation, she is qualified for the job.

Cf. Kirkingburg v. Albertson's, Inc., 143 F.3d at 1233.

Like the ADA’s definition of disability, this multi-step

analysis and focus on qualification was taken directly from

the Rehabilitation Act. As this Court explained in Arline,

"The Act is carefully structured to replace . . . reflexive re-

10

actions to actual or perceived handicaps with actions based

on reasoned and medically sound judgments: the definition

of ‘handicapped individual’ is broad, but only those individ-

uals who are both handicapped and otherwise qualified are

eligible for relief." 480 U.S. at 284-85 (emphasis in origi-

nal). "*[W]here reasonable accommodation does not over-

come the effects of a person's handicap, or where reasona-

ble accommodation causes undue hardship to the employer,

failure to hire or promote the handicapped person will not

be considered discrimination."" /d. at 287 n.17 (quoting 45

C.F.R. pt.84, App.A, p.315 (1985)).

. Unfortunately, if a court defines disability in an imper-

missibly narrow manner and improperly concludes that an

ADA plaintiff is not a person with a disability, the case will

never reach these critical questions of qualification, reasona-

ble accommodation, and undue hardship. In such a case, the

plaintiff will be denied relief even if the defendant employer

does not dispute that the plaintiff has a physical or mental

impairment, that the defendant took an adverse employment

action because of that impairment, and that the plaintiff can

perform the essential functions of the job. As the First Cir-

cuit explained in Arnold:

Arnold’s diabetes makes him just the type of

person the ADA was designed to protect ... .

Yet under UPS's and the district court’s inter-

pretation of the ADA, a person in this arche-

typal situation is not protected from discrimina-

tion by the ADA because he is not disabled

and hence not even a proper plaintiff under the

Act. According to UPS, in such circumstances,

the trier of fact never gets to the merits of the

alleged discrimination, of the ‘qualified indi-

vidual” requirement, or of reasonable accommo-

136 F.3d at 862.*

Thus, for this reason as well, a broad construction of

the definition of disability is essential to give effect to the

ADA’s remedial scheme. With this understanding in place,

we now turn our attention to the two particular statutory in-

terpretation questions before the Court.

Il. UNDER THE ADA, WHETHER A PHYSICAL

OR MENTAL IMPAIRMENT SUBSTAN-

TIALLY LIMITS A MAJOR LIFE ACTIVITY

MUST BE DETERMINED WITHOUT RE-

GARD TO MITIGATING OR CORRECTIVE

MEASURES

Petitioners Karen Sutton and Kimberly Hinton contend

that they are persons with disabilities under the first prong

of the ADA’s definition of disability because their poor eye-

sight is a physical impairment that substantially limits them

in the major life activity of seeing. The court below agreed

that their poor vision was "a physical impairment within the

meaning of the ADA." 130 F.3d at 900. The Tenth Circuit

nevertheless concluded that the petitioners were not substan-

tially limited in seeing because their eyesight had been cor-

rected through the use of eyeglasses or contact lenses; in the

court of appeals’ view, "[t}he determination of whether an

individual’s impairment substantially limits a major life ac-

tivity should take into consideration mitigating or corrective

measures utilized by the individual." /d. at 902.

* Cf Arline, 480 U.S. at 285 (exclusion of all persons with actual or

perceived contagious diseases “would mean that those accused of being

contagious would never have the opportunity to have their condition

evaluated in light of medical evidence and a determination made as to

whether they were ‘otherwise qualified.’ Rather, they would be vulnera-

ble to discrimination on the basis of mythology -- precisely the type of

injury Congress sought to prevent”).

12

The Tenth Circuit’s decision to consider mitigating

measures in the determination of disability is erroneous and

must be reversed. It is flatly inconsistent with the clear leg-

islative history of the ADA, uniform regulatory guidance

from the administrative agencies charged with enforcement

of the statute, and the virtually unanimous weight of appel-

late authority from its sister circuits. Most importantly, con-

sideration of mitigating measures is logically inconsistent

with the underlying purpose and structure of the ADA itself.

_ Although the statutory text is silent on the question, the

legislative history of the ADA is replete with explicit refer-

ences to Congress’ clear intention that a person’s disability

should be determined without regard to mitigating or correc-

tive measures. The Senate Report states:

A person is considered an individual with a

disability for purposes of the first prong of the

definition when the individual’s important life

activities are restricted as to the conditions,

manner, or duration under which they can be

performed in comparison to most people ... .

Moreover, whether a person has a disability

should be assessed without regard to the avail-

ability of mitigating measures, such as reasona-

ble accommodations or auxiliary aids.

S. Rep. No. 101-116, at 23. The report from the House

Education and Labor Committee repeats this guidance virtu-

ally verbatim, then adds: “Likewise, persons with impair-

ments, such as epilepsy or diabetes, which substantially limit

a major life activity are covered under the first prong of the

definition of disability, even if the effects of the impairment

are controlled by medication." H.R. Rep. No. 101-485, pt.2,

at 52. Finally, the report from the House Judiciary Commit-

tee makes the point in a slightly different manner: "The im-

pairment should be assessed without considering whether

mitigating measures, such as auxiliary aids or reasonable ac-

13

commodations, would result in a less-than-substantial limita-

tion.” H.R. Rep. No. 101-485, pt.3, at 28. Thus, there can

be no question that Congress understood that a corrected

disability was still a disability under the ADA.

The agencies charged with responsibility to enforce the

ADA followed this express intent of Congress in promulga-

ting regulations and interpretive guidance under the statute.

The Equal Employment Opportunity Commission (EEOC),

the agency responsible for issuing regulations under Title l,

42 U.S.C. §12116, adopted extensive Interpretive Guidance

in conjunction with its regulations.’ See 29 C.F.R. pt.1630,

Appendix. The interpretive guidance to the regulation

defining the term "substantially limits," 29 C.F.R. §1630.2

(j), provides, in relevant part: "The determination of

whether an individual is substantially limited in a major life

activity must be made on a case by case basis, without re-

gard to mitigating measures such as medicines, or assistive

or prosthetic devices." 29 C.F.R. pt.1630, App., p.348. In

the section-by-section analysis that accompanied the publi-

cation of its final regulations, the EEOC explained that it

had revised the interpretive guidance to make this point

clear, in response to comments received on the proposed

guidance from “disability rights groups, which were con-

cerned that the [proposed] discussion could be misconstrued

to exclude from ADA coverage . . . individuals with disabil-

ities who function well because of assistive devices or other

mitigating measures." 56 Fed.Reg. at 35,728.

The regulations issued by the Department of Justice to

implement Titles II and III of the ADA reach the same con-

clusion. 28 C.F.R. §35.104 and 28 C.F.R. §36.104 contain

regulatory definitions of “disability.". The _ccompanying

* The proposed version of this Interpretive Guidance was itself published

for public comment and revised in accordance with the comments re-

ceived, just like the underlying regulations. 56 Fed.Reg. 35,726 (1991).

14

analysis prepared by the Justice Department provides:

The question of whether a person has a disabil-

ity should be assessed without regard to the

availability of mitigating measures, such as rea-

sonable modifications or auxiliary aids and

services. For example, a person with hearing

loss is substantially limited in the major life ac-

tivity of hearing, even though the loss may be

improved through the use of a hearing aid.

Likewise, persons with impairments, such as

epilepsy or diabetes, that substantially limit a

major life activity, are covered under the first

prong of the definition of disability, even if the

effects of the impairment are controlled by

medication.

28 C.F.R. pt.35, App.A, p.442 (1998); 28 C.F.R

, A, Pp. 4 F.R. pt.36,

App.B, p.583 (1998), ’

| The court of appeals rejected the EEOC’s interpreti

guidance on this issue, 130 F.3d at 902, and held that it oe

not subject to deference under Chevron U.S.A. Inc v. Natu-

ral Resources Defense Council, Inc., 467 U.S. 837, 844

( 1984). 130 F.3d at 899 n.3. But, as this Court explained

in Bragdon, the views of agencies charged by Congress with

responsibility for issuing implementing regulations, render-

ing technical assistance, and enforcing the ADA "are entitled

to deference." Bragdon, 118 S.Ct. at 2209 (relying on both

Justice Department regulations and accompanying analysis).

This is especially true in this case where the Statutory text

does not explicitly address the question of mitigating meas-

ures, Chevron, 467 U.S. at 844, and, where, as here, there

ae been a oe course of agency interpretation by

vary x Be aes

v a, - i th ADA responsibilities. Bragdon,

In addition to Congress, the EEOC, and the Department

15

of Justice, virtually every court of appeals other than the

Tenth Circuit to consider the question has concluded that the

determination of disability under the ADA must be made

without regard to mitigating measures. See, e.g., Arnold v.

UPS, 136 F.3d 854; Bartlett v. New York State Bd. of Law

Examiners, 156 F.3d 321, 329 (2d Cir. 1998); Matczak v.

Frankford Candy and Chocolate Co., 136 F.3d 933, 937 (3d

Cir. 1997); Roth v. Lutheran General Hospital, 57 F.3d

1446, 1454 (7th Cir. 1995); Doane v. City of Omaha, 115

F.3d 624, 627 (8th Cir. 1997), cert. denied, 118 S.Ct. 693

(1998); Holihan y. Lucky Stores, Inc., 87 F.3d 362, 366 (9th

Cir. 1996), cert. denied, 117 S.Ct. 1349 (1997); Harris v. H

& W Contracting Co., 102 F.3d 516, 520-21 (11th Cir.

1996); cf. Washington v. HCA Health Services of Texas,

Inc.. 152 F.3d 464, 470-71 (Sth Cir. 1998)(following EEOC

guidelines and legislative history, but construing them nar-

rowly). But see Gilday v. Mecosta County, 124 F.3d 760

(6th Cir. 1997). This consistent pattern of appellate prece-

dent lends further support to the conclusion that the Tenth

Circuit’s ruling is in error.

The court below concluded that the EEOC’s Jnterpretive

Guidance concerning mitigating measures was "in direct

conflict with the plain language of the ADA" because, with

their corrective lenses, the petitioners were not "substantially

limitfed]" in seeing. 130 F.3d at 902. This position, how-

ever, "confuses the disease with its treatment." Matczak,

136 F.3d at 937. The petitioners’ poor eyesight does sub-

stantially limit their major life activity of seeing; their eye-

glasses and contact lenses simply correct that limitation. '°

‘© The assumption that the EEOC’s guidance directly conflicts with the

plain language of the ADA was expressly rejected by the Eleventh Cir-

cuit in Harris:

[T]here is no direct conflict between the interpretation

(continued...)

16

Finally, and perhaps most importantly, the Tenth Cir-

cult's approach is logically inconsistent with the purpose and

structure of the ADA. The court of appeals concluded its

discussion of the mitigating measures issue with the sugges-

eee the petitioners were trying to have their cake and

it too:

Plaintiffs cannot have it both ways. They are

either disabled because their uncorrected vision

substantially restricts their major li[f]e activity

of seeing and, thus, they are not qualified indi-

viduals for a pilot position with United, or they

are qualified for the position because their

vision is correctable and does not substantially

limit their major life activity of seeing.

130 F.3d at 903.

But it is the lower court’s analysis that i i

flawed. It "conflates two separate eo of the aca ran

threshold determination of whether a person is disabled and

the subsequent determination of whether such a person has

been discriminated against in connection with an employ-

ment position for which she is qualified. See Arnold v

UPS, 136 F.3d at 863. Under the Tenth Circuit’s misinter-

pretation of the statute, an employer can blithely discrim-

inate against a qualified individual with a correctable or mit-

'° (...continued)

contained in the appendix to the regulations and the

itself. There is nothing inherently illogical about Pocket

the existence of a substantial limitation without regard to

mitigating measures such as medicines or assistive or pros-

thetic devices, and there is nothing in the language of the

Statute itself that rules out that approach.

102 F.3d at 521.

17

igable disability without fear of ADA liability because the

target of the discrimination would be unable to invoke the

ADA’s protections. Jd. at 862.

Under the proper, logical ADA analysis, a court first

determines whether a person’s physical or mental impair-

ment substantially limits that person in some major life ac-

tivity. Because this first step of the analysis is designed

simply to determine whether the individual has the type of

serious medical condition contemplated by Congress, courts

should make that determination without regard to any cor-

rective devices or mitigating measures.

In the second step of the analysis, a court must deter-

mine whether an individual who has a serious medical con-

dition is nonetheless still qualified to perform the job in

question. At that stage, corrective devices or measures used

by the individual might well be critical. Indeed, it is often

by using such corrective measures that people with serious

medical conditions become qualified for employment. As

examples, a person with diabetes who takes insulin, a person

with epilepsy who takes anti-seizure medication, a person

without a leg who uses a prothesis, and a person with seri-

ous myopia who uses glasses may all ultimately be qualified

for the jobs they seek, despite the fact that they have serious

medical impairments.

It would create an absurd "“Catch-22," however, if the

very corrective measures that make these individuals with

disabilities qualified for jobs also serve to exclude them

from coverage under the ADA in the first place. Under

such a misguided reading of the ADA, the majority of indi-

viduals with serious medical conditions who would remain

covered would likely also be the ones not qualified for the

jobs they seek. Congress could not have intended such an

18

|

ee ee ae ee

absurd result.”' Rather, it is precisely persons such as peti-

tioners -- i.é., those with disabilities that do not preclude

them from working -- for whom Congress enacted Title I of

the ADA in order to unlock the d gainful

ployment.” oors to em-

' The fallacy in the Tenth Circuit’s reasoning is demonstrated

pothetical posed by the First Circuit in Aracid Under the nae ce

cuit’s interpretation, "someone who could not afford treatment for his

impairment would be protected by the ADA from discrimination in

hiring. But once he was hired and obtained treatment under the employ-

er’s health plan, he would lose the ADA’s protection because he seas

no longer be ‘disabled.’ The employer could then fire him on the basis

of his disability without fear of the protective ied i

the ADA." 136 F.3d at 862. pr steer a ops gla

? The fact that this analysis would bring numerous people in this coun-

try who have significantly impaired eyesight and wear corrective lenses

within the coverage of the ADA should not be a cause for concern

Most civil rights laws cover a vast number of people. For example Ti-

tle VII of the Civil Rights Act of 1964 covers every single sais he this

country because everyone has a race and a gender. Nevertheless, most

white people and most men (and, for that matter, many women and mi-

norities) do not experience the type of job discrimination that requires

them to invoke the protection of Title VII. Similarly, while the ADA

covers a large number of people with corrective lenses, the vast majority

of such individuals will never encounter the type of job discrimination

that would require them to invoke the protection of the Act.

19

ll. AN EMPLOYER WHO TAKES AN AD-

VERSE EMPLOYMENT ACTION AGAINST

A PERSON BECAUSE OF A PHYSICAL OR

MENTAL IMPAIRMENT NECESSARILY

REGARDS THAT PERSON AS SUBSTAN-

TIALLY LIMITED IN WORKING AND

HENCE AS DISABLED FOR PURPOSES OF

THE ADA

Even if a person does not have an actual physical or

mental impairment that substantially limits a ‘major life ac-

tivity, or has a relatively nonserious physical or mental im-

pairment that does not in practice limit any major life activi-

ty, she may nevertheless qualify as an individual with a dis-

ability for purposes of the ADA if she is “regarded as

having such an impairment." 42 U.S.C. §12102(2)(C). The

EEOC regulations define this term to mean:

(1) Has a physical or mental impairment that

does not substantially limit major life activities

but is treated by a covered entity as constitu-

ting such limitation;

(2) Has a physical or mental impairment that

substantially limits major life activities only as

a result of the attitudes of others toward such

impairment; or

(3) [Does not have a physical or mental im-

pairment as defined in the regulations] but is

treated by a covered entity as having a substan-

tially limiting impairment.

29 C.F.R. §1630.2(1). According to the court below, peti-

tioners did not satisfy the third prong of the ADA’s defini-

tion of disability because United did not regard them as sub-

stantially limited in the major life activity of working; it

merely viewed them as unable to perform the requirements

of its pilot position. 130 F.3d at 905.

20

The Tenth Circuit's understanding of the "regarded as"

prong of the definition of disability is inconsistent with con-

gressional intent in establishing this third prong of the defi-

nition, with the EEOC’s regulatory guidance concerning the

“regarded as" prong, and with this Court’s explication of an

identical provision under Section 504. Under a proper inter-

pretation of the third prong, the determination that United

considers the petitioners unfit to be pilots because of their

eyesight satisfies the statutory requirement that United "re-

gards" them as substantially limited in working and th;e-

fore as persons with disabilities under the Act. In fact. any

employer who takes an adverse employment action against a

person because of a physical or mental impairment necessar-

ily regards. that person as substantially limited in the life ac-

tivity of working and hence as a person with a disability.

As the EEOC’s Interpretive Guidance explains:

[I]f an individual can show that an employer or

other covered entity made an employment deci-

sion because of a perception of disability based

on "myth, fear, or stereotype,” the individual

will satisfy the "regarded as" part of the defini-

tion of disability. If the employer cannot artic-

ulate a non-discriminatory reason for the em-

ployment action, an inference that the employer

is acting on the basis of "myth, fear, or stereo-

type” can be drawn.

See 29 C.F.R. pt.1630, App., p.350.

This Court in Arline, interpreting an identical provision

under Section 504, articulated the following rationale for the

“regarded as" prong:

[T}he basic purpose of §504 ... is to ensure

that handicapped individuals are not denied

jobs or other benefits because of the prejudiced

attitudes or the ignorance of others. By

21

amending the definition of "handicapped indi-

vidual" to include not only those who are actu-

ally physically impaired, but also those who

are regarded as impaired and who, as a result,

are substantially limited in a major life activity,

Congress acknowledged that society’s accumu-

lated myths and fears about disability and

disease are as handicapping as are the physical

limitations that flow from actual impairment.

480 U.S. at 282-84 (footnotes omitted).

In response to an assertion by the Solicitor General at

oral argument that such an interpretation of the third prong

would be a “totally circular argument which lifts itself by its

bootstraps,"'"’ id. at 283 n.10, this Court respectfully dis-

agreed. It pointed out that:

The argument is not circular, however, but di-

rect. Congress plainly intended the Act to

cover persons with a physical or mental impair-

ment (whether actual, past, or perceived) that

substantially limited one’s ability to work.

Id."

’ The perceived circularity of the interpretation stems from the fact that

it is the defendant's allegedly discriminatory act (such as a failure to

hire or the decision to fire) that gives rise to the plaintiff's coverage

under the Act.

‘* In a previous footnote, this Court noted that the legislative history to

Section 504 reflected "Congress’ desire to prohibit discrimination based

on the effects a person's handicap may have on others... ." 480 U.S.

at 282 n.9. The Department of Justice subsequently observed that “the

{Supreme Court] relied on legislative history which does indicate that at

least some Members of Congress believed that the perception of a physi-

cal disability by others does not have to include the belief that the per-

ceived condition results in a limitation of major life activities, but

(continued...)

22

When Congress included the third prong of the defini-

tion of disability in the ADA, it relied heavily on this

s explication of that prong as set forth in Arline. For

example, the Senate Report described, in some detail, this

Court's analysis in Arline and then concluded:

A person who is excluded from any activity

covered under this Act or is otherwise discrimi-

nated against because of a covered entity's

negative attitudes towards disability is being

treated as having a disability which affects a

major life activity. For example, . . . if an em-

ployer refuses to hire someone . . . because of

the employer's perception that the applicant

had a disability which prevented that person

from working, that person would be covered

under the third prong.

S. Rep. No. 101-116, at 24 (citations omitted)(emphasis

added); see also H.R. Rep. No. 101-485, pt.2, at 53 (same):

H.R. Rep. No. 101-485, pt.3, at 30 (to the same effect).'*

:

'* (continued)

simply that the perception of the condition by others in itself has that

effect." Memorandum from Douglas W. Kmiec, Acting Asst Att'y

Gen., Office of Legal Counsel, to Arthur B. Culvahouse, Jr, Counse! to

the President (Sept. 27, 1988), reprinted in 8 Fair Empl. Prac. Cases

(BNA) No. 641 at 405:8, n.14 (discussing footnote 9 in Ar/ine).

'* The Hous» Judiciary Committee elaborated further:

Sociologists have identified common barriers that frequently

result in employers excluding disabled persons. These include

concerns regarding productivity, safety, insurance, liability, at-

tendance, cost of accommodation, and accessibility, and ac-

ceptance by co-workers and customers .. . . This list of fre-

quent workplace concerns is not exhaustive. It illustrates.

however, the attitudinal barriers that Congress clearly intended

to include within the meaning of "regarded as” having a disa-

(continued...)

23

The EEOC’s Interpretive Guidance to its implementing reg-

ulations closely tracks this legislative history. See 29

C.F.R., pt.1630, App., p.350.

Both Congress and the implementing agency were thus

quite clear: when a person is denied a position based on an

actual or perceived physical or mental condition, the offend-

ing employer has regarded that individual as substantially

limited in working, and here as a person with a disability

under the “regarded as" prong of the definition. Such an in-

dividual is then entitled to invoke the protection of the

ADA.

Despite this clear legislative history and regulatory

guidance, a significant number of courts, like the court be-

low, have adopted an unduly narrow construction of the

third prong of the definition of disability and have thereby

prevented plaintiffs from pursuing their claims. Courts that

have reached this result have done so by taking a narrow

exception that applies to the first prong of the definition,

and misapplying that exception to the third prong of the def-

inition of disability."°

Under the first prong of the definition of disability, an

individual is substantially limited in the major life activity

of working if she is

significantly restricted in the ability to perform

* (continued)

bility under the Rehabilitation Act, and now under the ADA.

H.R. Rep. No. 101-485, pt.3, at 30.

° See. eg., Ryan v. Grae & Rybicki, 135 F.3d 867, 872 (2d Cir. 1998),

Deas v. River West, L.P., 152 F.3d 471, 481 (Sth Cir. 1998); Skorup v.

Modern Door Corp., 153 F.3d 512, 515-16 (7th Cir. 1998), Miller v.

City of Springfield, 146 F.3d 612, 614-15 (8th Cir. 1998), Thompson v.

Holy Family Hosp., 121 F.3d 537, $41 (9th Cir. 1997), Witter v. Delta

Air Lines, Inc., 138 F.3d 1366 (11th Cir. 1998).

24

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. The inability to perform a single,

particular job does not constitute a substantial

limitation in the major life activity of working.

29 C.F.R. §1630.2(j)(3)."”

The EEOC guidance explains that this type of analysis

should be quite rare in determining whether an individual

has a disability under the first prong of the definition. Most

individuals with physical or mental impairments will be lim-

ited in some major life activity other than working. For

example, a person with severe arthritis may be limited in

lifting and bending, a person with a stroke may be limited

’ This analysis with regard to individuals who are unable to perform a

“single, particular job” is drawn from the legislative history of the ADA.

As the report from the House Judiciary Committee explained:

A person with an impairment who is discriminated against in

employment is also limited in the major life activity of work-

ing. However, a person who is limited in his or her ability to

perform only a particular job, because of circumstances

unique to that job site or the materials used, may not be sub-

stantially limited in the major life activity of working. For

example, an applicant whose trade is painting would not be

substantially limited in [t]he major life activity of working if

he has a mild allergy to a specialized paint used by one em-

ployer which is not generally used in the field in which the

painter works.

H.R. Rep. No. 101-485, pt.3, at 29. Even if this analysis were applica-

ble to the present case, which we contend it is not, petitioners should

nevertheless have been found to be substantially limited in working.

There was nothing unique about the job site or materials used on

United's airplanes that precluded pilots with petitioners’ impairment.

Rather, United considered petitioners’ condition disqualifying for the

entire “class” of pilot positions.

25

‘es

in walking and talking, and a person with esophageal fungal

infections may be limited in eating. Indeed, it should be the

exception for any person with a serious medical condition to

argue that her impairment substantially limits her in the life

activity of working -- particularly since, in the second stage

of analysis under the ADA, that individual must also prove

she is qualified to work. Thus, as the EEOC guidance ex-

plained:

If an individual is nor substantially limited in

any other major life activity, the individual's

ability to perform the major life activity of

working should be considered. If an individual

is substantially limited in any other major life

activity, mo determination should be made as to

whether the individual is substantially limited

in working.

29 C.F.R. pt.1630, App., p.348 (emphasis added).

There are some very rare situations, however, as one of

the committee reports observed, in which an impairment is

so unique that the on/y limitation it will cause the individual

is in that person's work setting. See n.17, supra. In those

rare cases, the EEOC guidance explains that the individual

must prove she is precluded from working in a class of jobs

or a broad range of jobs, not just a single job for one partic-

ular employer. 29 C.F.R. pt.1630, App., p.348."*

* A surprising number of courts have either completely misunderstood

or ignored the EEOC’s regulations in this regard. Under the first prong

of the ADA’s definition, they have analyzed whether a plaintiff's im-

pairment limits the individual's ability to work, even though the impair-

ments at issue could clearly have been understood as limiting life activi-

ties other than working. See, e.g. Olson v. GE Astrospace, \0\ F.3d

947, 952-53 (3d Cir. 1996\ depression, sleep disorder, and multiple per-

sonality disorder), Ellison v. Software Spectrum, 85 F.3d 187, 191 (Sth

(continued...)

26

While this narrow exception that requires an analysis of

“class of jobs" or "broad range of jobs" may appropriately

be invoked in certain rare situations under the first prong of

the definition, it has no place under the third prong of the

definition. As the House Judiciary Committee explained, in

discussing the "regarded as" prong of the definition of disa-

bility:

Thus, a person who is rejected from a job be-

cause of the myths, fears and stereotypes asso-

ciated with disabilities would be covered under

this third test, whether or not the employer's

perception was shared by others in the field

and whether or not the person’s physical or

mental condition would be considered a disa-

bility under the first or second part of the def-

H.R. Rep. No. 101-485, pt.3, at 30-31. This same distinc-

tion was made in the EEOC Interpretive Guidance to the

third prong of the definition of disability. 29 C.F.R. pt.

1630, App., p.350.

This distinction, drawn by the committee reports and

the EEOC, makes perfect sense. A plaintiff's argument

'* (continued)

Cir. 1996\(radiation treatment for breast cancer); Bolton v. Scrivner, 36

F.3d 939, 944 (10th Cir. 1994)(work-related injury to shoulder and both

feet); Redlich v. The Albany Law School of Union University, 899 F.

Supp. 100, 106-07 (N.D.N.Y. 1995)impaired use of leg, arm, and hand

due to stroke). In most of these cases, the courts rely on the evidence

plaintiffs have submitted to demonstrate that they are qualified for the

jobs in question to rule that the plaintiffs are not substantially limited in

working and hence not covered under the ADA in the first place. Bur

see Homeyer v. Stanley Tuchin Associates, 91 F.3d 959 (7th Cir. 1996)

(correctly rejecting this “Catch-22" for plaintiff with chronic severe

allergic rhinitus and sinusitis).

27

‘y

under the third prong of the definition is not that her impair-

ment actually limits her in the life activity of working, as

might be the case in certain rare situations under the first

prong of the definition. Rather, her argument is that she is

being regarded as limited in working by the defendant. In

such circumstances, the plaintiff should logically be able to

prove her point simply by establishing that the defendant re-

fused to hire her, or fired her, because of her impairment.

Whether the defendant felt the plaintiff was capable or not

capable of performing any number of other jobs in the econ-

omy should be irrelevant to the "regarded as" analysis under

the third prong of the definition. Indeed, that issue never

even arose in this Court’s analysis of the identical third

prong in Arline.

Finally, the misguided incorporation of first-prong

"class of jobs” analysis into the third prong of the ADA’s

definition yields an irrational and ironic result. Although

the "regarded as" prong is logically supposed to turn solely

on the perceptions of the employer, the inclusion of a focus

on a "class of jobs" has led some lower courts -- as a practi-

cal matter -- to also look at how other employers in the

same industry treat a particular disability. For example, in

this case, the Tenth Circuit explained:

We are concerned with whether United regards

plaintiffs as ‘disabled,’ not whether the airline

industry as a whole regards individuals with

uncorrected vision of 20/100 or worse as ‘sub-

stantially limited’ in a major life activity ... .

However, we do examine the airline industry to

assist in determining whether Plaintiffs’ impair-

ment substantially limits their employment gen-

erally in a "class of jobs.”

130 F.3d at 905. The result of such an analysis is perverse.

If a business has the same standards for exclusion of persons

28

with disabilities as others in the industry, it would be subject

to suit under the ADA because the plaintiff will legitimately

have been perceived as being substantially limited in work-

ing in a class of jobs." However, if a business has a

uniquely discriminatory policy that is not shared by others

in the field, that business would be shielded from ADA lia-

bility because the plaintiff would not in practice have been

excluded from a "class of jobs." Congress could not have

intended such an irrational result.

Again, it is important to stress that a determination that

an employer fails to hire, or fires, an individual because the

employer views that individual’s impairment as limiting her

in the major life activity of working does not mean that

such an individual will prevail in an ADA suit. It means

only that the case will proceed to the next question:

whether the individual is a qualified person with a disability,

i.e., whether she could perform the essential functions of the

position with or without reasonable accommodation. In the

present case, it is undisputed that United rejected petitioners’

applications to become pilots because it regarded their poor

vision as rendering them unable to perform that job. This is

all that petitioners were required to show in order to estab-

lish that they are persons with disabilities under the third

prong of the ADA definition.

’ Of course, if this view of the impact of the disability on certain jobs

is so widely held, it may also be the case that persons with such disabili-

ties are legitimately not qualified for such jobs.

29

CONCLUSION

For the reasons stated above, the judgment below

should be reversed.

Respectfully submitted,

Louis M. Bograd

(Counsel of Record)

American Civil Liberties Union

Foundation

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 234-1817

Chai R. Feldblum

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(202) 662-9595

Steven R. Shapiro

Matthew A. Coles

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Dated: February 22, 1999