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

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ra Bupreme Court, U.S.

4) FILED

No. 97-1943 | FEB 22 1999

In THE

Supreme Court of the United States

OCTOBER TERM, 1998

KAREN SUTTON and KIMBERLY HINTON,

. Petitioners,

UNITED Arr LINES, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF THE PETITIONERS

JONATHAN P. HIATT

815 16th Street, N.W.

Washington, D.C. 20006

MARSHA S. BERZON

177 Post Street, Suite 300

San Francisco, CA 94108

LAURENCE GOLD *

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

WILSON - Erase Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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APPENDIX OF LEGISLATIVE HISTORY |...

ii iii

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

CASES Page Page

Batson v. Kentucky, 479 U.S. 79 (1986) ............... 7 Note, Toward Reasonable Equality: Accommodat-

Bragdon v. Abbott, 118 S. Ct. 2196 (1998) ......... 3, 7, 8, 14 ing Learning Disabilities Under the o_o

Murphy v. United Parcel Service, No. 97-1992........ 23 pet a Act, 111 Harv. L. Rev. 1 e

School Board of Nassau County 9. Avime,430UB 8 j- § f (i SERRRBIRD eetetatecsensentenienstecrnssveesenensencsuseccnsnocssoosenssooscaress

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” (09) a with Disabilities Act Handbook (1991)... 9

Sutton v. United Air lines, 180 F.3d 893 (10th

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Teague v. Lane, 489 U.S. 288 (1989) ......0000000.. 7

Western Air Lines v. Criswell, 472 U.S. 400

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STATUTES AND REGULATIONS

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MISCELLANEOUS

EEOC, Technical Assistance Manual on the Em-

ployment Provisions of the Americans with Dis-

abilities Act (1992) ... 16

BRIEF OF THE AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF THE PETITIONERS

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO), a federation of 75

SUMMARY OF ARGUMENT

The Tenth Circuit held that the Americans with Dis-

abilities Act (ADA), 42 U.S.C. 12101 et seq., generally

application to individuals (such as the plaintiffs

are able to function normally in their daily

lives through the use of ameliorative mechanisms (such as,

here, eyeglasses) or medications, even where an employer

relies on that individual's underlying, uncorrected, dis-

abling medical condition (here, seriously impaired eye-

sight) as the reason why the individual is not suitable for

hire. The ADA defines “disability” to include “(A) a

physical or mental impairment that substantially limits

one or more of the major life activities of such individual,”

as well as “(B) a record of such an impairment” and

“(C) being regarded as having such an impairment.” 42

U.S.C. § 12102. While the parties, and the Tenth Circuit,

have concentrated on subsections (A) and (C) in deter-

mining whether the ADA applies to circumstances such

as those in this case, it is our submission that subsection

(B), the “record of impairment” definition, applies

1 No counsel for a party authored this brief amicus curiae in

whole or in part, and no person or entity, other than the amicus

curiae, made a monetary contribution to the preparation or sub-

mission of this brief.

1. Unlike other civil rights statutes, the ADA does not

set our inflexible prohibitions but, instead, establishes

parameters for making employment decisions so that the

employer reasonably considers and takes into account any

employee disability. In this case, for example, the ADA

if it applied would require United to consider and justify

its uncorrected vision rule in light of evidence indicating

whether the risk that impaired uncorrected eyesight could

hamper a pilot with normal corected vision in exigent

situations is realistic and, if so, whether there are any

prophylactic measures that would eliminate that risk.

The answer to those questions are surely not self-

evident, although it is certainly possible that United would

be able to establish that, given the extremely high safety

standards to which it quite properly aspires, the rule is a

proper one under the ADA.

United’s position in this case, however, is that Congress

in the ADA exempted its uncorrected vision rule entirely

from the self-scrutiny that the statute requires. That posi-

tion, if excepted, would of course exempt from the ADA

not only standards such as United, as to which one can

perceive a logic if there is evidence to support it and no

acceptable reasonable accommodation, but, as well, en-

tirely arbitrary, facially irrational exclusions of normally-

functioning individuals with underlying, albeit medically

controlled, disabling conditions.

2. The “record of impairment” aspect of the ADA’s

definition of “disability” is directly applicable here.

(a) There is, we believe, no dispute in this case at

this juncture as to whether or not the plaintiffs have an

“impairment.” The Tenth Circuit so held, recognizing

that this aspect of the “disability” definition is directed at

consideration on a biological level of the state of the

individual’s physiological systems. And, that understand-

ing of the “impairment” prong of the definition was con-

firmed by this Court last year in Bragdon v. Abbott, 118

S. Ct. 2196, 2202-04 (1998).

_(b) The language of the “record of impairment” defi-

nition applies here. Individuals who have a medically-

diagnosed impairment and who then obtain medical care

or advice that results in the prescription of devices, med-

ications, or lifestyle changes to control that impairment

ordinarily have a “record of” that impairment in their

medical files, and it is ordinarily easily possible, as it is

here, to determine whether that impairment is one that

necessarily substantially hmits a major life activity absent

medical intervention.

(EEOC’s) understanding of this “record of impairment”

provision confirms that it is applicable to circumstances

such as those in this case. The administrative materials

confirm, for example, that medical records are among the

types of records that suffice; that the subsection apriies to

Present, controlled as well as historical, cured impair-

ments; that the subsection applies whether or not the

individual is currently substantially limited in a major

life activity; and that the record itself need not show

a rene was : ~ a substantial interference with major

e Vities, i impairment is one that necessaril

would limit such activities. ,

. (d) Finally, a comparison of the controlled impairment

situation presented here with the circumstances and anal-

ysis of the only case in this Court applying a “record of

impairment” “disability” definition (under a parallel stat-

ute), School Board of Nassau County vy. Arline, 480

U.S. 273 (1987), demonstrates that the “record of im-

pairment” subsection does apply. Arline held that an

individual with a history of hospitalizations for tubercu-

losis had a “record of” a substantially limiting impair-

ment, so that her discharge for fear of further contagion

was subject to scrutiny under the Rehabilitation Act of

1973.

Both in Arline and in circumstances such as those in

this case, the individual has at present no functional sub-

stantially limiting impairment because of an earlier medi-

cal intervention. In both instances, however, the individual

has a teal, not imagined, history of serious medical im-

pairment, objectively documented, and the employer is

relying on that history as the basis for making its em-

ployment decision. And, in both instances, the employer's

concern is that an apparently cured, dormant or controlled

medical situation will reoccur on the job due to failure

of the controls or cure, interfering with the employee's

work in a significant way.

As Arline makes clear, the “record of impairment”

definitional provision is intended precisely to subject these

medically-driven decisions to the Act’s structured inquiry

requitements, assuting individuals with such a “record of

impaitment” that they will not be driven from the work-

place on the basis of unexamined assumptions about the

possible manifestation in the workplace of a medical im-

pairment that is otherwise controlled or cured.

ARGUMENT

This case arises under the employment title of the

Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101 et seqg., which, broadly speaking, prohibits em-

ployer discrimination against persons with disabilities in

hiring, assignment, and the like.

The plaintiffs are qualified, licensed commercial pilots

who have 20/20 eyesight with their medically prescribed

corrective lenses but 20/200 and 20/400 uncorrected

eyesight—eyesight so poor that they could not, without

corrective lenses, drive a car, watch television, or engage

ina myriad of other daily activities.

The defendant is United Airlines, which rejected plain-

tiffs for employment by reason of its rule that only other-

wise qualified individuals with uncorrected eyesight of

20/100 or better can be United passenger plane pilots.

United thus distinguishes for employment purposes be-

tween pilots with 20/100 eyesight, hiring only those who

meet that eyesight test without any medical correction and

rejecting those who meet it with a medical correction and

whose natural eyesight is impaired.

From this bare bones summary one would think that

the question here is the substantive ADA question of

whether United Airlines can make such a distinction

between two pilot applicants, both of whom by hypothesis

meet United’s eyesight requirement for pilots in oper-

ational terms—viz., both of whom test 20/100 in a test

of actually operational eyesight—on the express basis

that one applicant has an underlying physical impairment.

According to the court of appeals one would be wrong

in so thinking. Indeed, according to that court there

is no such ADA substantive question. That is, said the

court of appeals, because the ADA at the threshold only

protects “individual{s] with a disability’ (42 U.S.C.

§ 12112(a)), and a person whose eyesight is corrected to

20/100 or better is not a person with a disability. Thus,

according to the court below, any adverse employment

action against such a person expressly based on the per-

son’s uncorrected eyesight—even though such eyesight is

admittedly a disabling condition unless corrected—is ad-

verse employment action against a person without a dis-

ability and is entirely outside the ADA’s purview.

Put more generally, on the decision below, the ADA

has no application whatever to individuals who are able

to function normally in their daily lives through the use

of ameliorative mechanisms or medications, even where—

as here—the employer relies precisely on that individual's

underlying, uncorrected, disabling medical condition as

the reason why the individual is not suitable for hire. In

other words, the Tenth Circuit held, and United is arguing

in this Court, that Congress meant in a broad range of

circumstances to entirely exempt employer decisionmak-

ing concerning whether a particular underlying medical

condition should preclude an individual from holding a

job from ADA challenges and scrutiny.

It is our submission in this brief that the ADA’s cover-

age is not unnaturally confined so as to put that entire

class of cases beyond substantive scrutiny. In more spe-

cific terms, we argue here that where the employer's

decisionmaking process turns on the proposition that it is

the prospective employees’ actual, known, recorded, phys-

ical condition that is the critical, disqualifying factor pre-

cluding their employment Congress specifically provided

for coverage under the Act in the subsection of the defi-

nition of “disability,” which states that “disability” means

“a record of” a “physical or mental impairment that sub-

stantially limits one or more . . . major life activities,”"—

a subsection of the ADA “disability” definition section

that has been heretofore ignored, as far as we are aware,

in this litigation.?

2 The narrow focus of this brief is not intended to suggest any

disagreement with the positions of the plaintiffs or the United

States regarding the application of the two other subsections of

So that we are not misunderstood, before turning to our

submission we hasten to add that a proper reading of

§ 12102(B) will not determine whether or not United

Airlines’ eyesight requirement for pilots is valid or not.

Rather, an affirmative answer to the threshold coverage

question will only trigger the application of the ADA

to the particular situation here. And, that statute, like

its predecessor, § 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794, is “carefully structured” so as not to

preclude employment decisions based upon pertinent med-

ical conditions but rather to require employer decision-

making regarding the impact of employee medical con-

ditions on their ability to perform job tasks “based on

reasoned and medically sound judgments” rather than on

“reflexive reactions to actual and perceived handicaps.”

School Board of Nassau County v. Arline, 480 U.S. 273,

284 (1987).°

the “disability” definition. Rather, we seek to avoid repetition of

arguments ably made by others and to present for the Court’s con-

sideration what we believe is a most straight forward approach to

the issue here, and one unlikely to be otherwise presented. In so

doing, we note that our showing that this case is brought within

the ADA by § 12102(2)(B) does not mean that it is not as well,

brought within the ADA by either or both of the two subsec-

tions relied upon by plaintiffs and the United States, § 12102(2)(A)

and (C).

We recognize that it is this Court’s “practice to decide cases on

the grounds raised and considered in the Court of Appeals and

included in the question on which [the Court] granted certiorari.”

Bragdon v. Abbett, 118 S. Ct. 2195, 2205 (1998). Nonetheless, that

practice is not invariable (see, e.g., Teague v. Lane, 489 U.S. 288,

300 (1989) ; Batson v. Kentucky, 479 U.S. 79, 84-85 n.4 (1986)) and

should not, we would suggest, be applied to preclude a decision on

the basis of one of three aspects of a single, integrated definition.

And be that as it may, it appears to us to be beyond doubt that

it would be useful for the Court to have before it the full panoply

of posible applications of the ADA’s “disability” definition to this

ease in considering the question whether the plaintiffs are “dis-

abled” and therefore covered by the Act.

3 Arline, as indicated, was decided under § 504 of the Reha-

bilitation Act of 1973. The ADA’s employment provisions were

To put matters in perspective we begin by considering

the role of the definition of “disability” in the ADA’s

employment provisions as a whole. After providing that

background, we go on to demonstrate that while the com-

plex drafting of the ADA as a whole. and of the “dis-

ability” definition in particular, can be said to make the

first and third subsections of the “disability” definition

somewhat ambiguous with regard to medical conditions

that are for almost all purposes controlled through medi-

cation or medical devices, the language, function, and

purposes of the “record of impairment” portion of the

definition shows that the subsection straightforwardly en-

compasses a known medical condition documented in an

individual’s medical records that would necessarily “sub-

stantially limit[] one or more of the major life activities”

of the individual absent correction or amelioration.

1. Statutory Structure: The ADA defines “disability”

for all its purposes, including for the purpose of Title I

of the Act, “Employment,” as:

(A) a physical or mental impairment that sub-

stantially limits one or more of the major life activi-

ties of such individual;

(B) arecord of such an impairment; or

ment. [42 U.S.C. § 12102(2)].

Section 12111(8), in turn, defines a “qualified individ-

ual with a disability” for purposes of the ADA employ-

ment provisions as “an individual with a disability who,

closely modeled on those of the Rehabilitation Act, and the ADA

directs that “nothing in this chapter shall be construed to apply a

lesser standard than the standards applied under title V of the

Rehabilitation Act of 1973 ... or the regulations issued by Federal

agencies pursuant to such title.” 42 U.S.C. § 12201(a). For that

reason, constructions of the Rehabilitation Act are routinely relied

upon in ADA cases. See Bragdon v. Abbott, supra, 118 S. Ct. at

2202, 2205, 2207-08.

with or without reasonable accommodation, can perform

the essential functions of the employment position that

such individual holds or desires,” and specifies that in de-

termining what job functions are “essential,” “considera-

tion shall be given to the employer’s judgment” as well

as to a written job description used in advertising or inter-

viewing for the job.

The Act goes on to proscribe discrimination against a

“qualified individual with a disability.” 42 U.S.C. § 12112

(a) and (b). “Discriminate” is defined to include “not

making reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual

with a disability, unless the covered entity can demon-

strate that the accommodation would impose an undue

hardship on the operation of the business of such covered

entity.” 42 U.S.C. § 12112(b)(5). “Undue hardship” in

its turn means “an action requiring significant difficulty

or expense, when considered in light of a list of many

factors, including the cost of the accommodation, the

financial resources of the employer, the number of em-

ployees, and the composition of the workforce. 42 U.S.C.

§ 12111(10). Finally, the ADA provides that an em-

ployer may establish safety requirements that screen out

individuals with disabilities if that requirement eliminates

or limits a “direct threat” to the health and/or safety

of others, where “direct threat” is “a significant risk to

the health or safety of others that cannot be eliminated

by reasonable accommodation.” 42 U.S.C. §§ 12111(3),

12113(b).

As this short summary indicates, “the ADA rules simply

establish parameters to guide employers in how to con-

sider, and take into account, the disabling condition in-

volved.” U.S. Equal Employment Opportunity Commis-

sion and U.S. Department of Justice, Americans with

Disabilities Act Handbook (1991), at I-1. The Act does

so by posing a series of filtering inquiries that rely heavily

on “relative standards instead of categorical prohibitions”

(Note, Toward Reasonable Equity: Accommodating

Learning Disabilities Under the Americans with Disabil-

ities Act, 111 Harv. L. Rev. 1560, 1575 n.104 (1998)),

and that are designed to provide a “ ‘reasonableness’ focus”

(id. at 1572) to the employer’s decisionmaking process

concerning whether an individual with particular physical

or mental attributes can perform a particular job.

More specifically, and using the circumstances of this

case as illustrative, assuming for the moment that the

plaintiffs have a “disability” and are covered by the stat-

ute, United Airlines would first determine whether they

are “qualified” employees for the pilot job they seek.

Since plaintiffs have all the requisite skills and license re-

quirements, that inquiry would in all probability focus

upon United’s apparent safety-based concern, embodied

in its 20/100 uncorrected vision requirement, that the

corrective measures—glasses or contact lenses—could fail

at critical moments, leaving the pilot to read instruments

and judge conditions in the air and on the ground with

impaired vision.

United would begin quite properly, that the safe oper-

ation of the airplane, even in emergency situations, is

as a general matter an “essential function” of piloting

a plane. Cf. Western Air Lines v. Criswell, 472 US.

400, 418 (1985) (discussing the Federal Aviation Ad-

ministration’s rigorous, safety-based requirements for

pilots, including mandatory retirement at age 60). Apply-

ing the “essential functions,” “reasonable accommodation,”

and “direct threat "statutory provisions, United would then

go on to examine self-critically the additional, more spe-

cific assumptions underlying its uncorrected vision rule—

viz., that there is an unacceptable risk that the corrective

lenses of pilots whose uncorrected vision is worse than

20/100 will fail at critical junctures and thereby endanger

the passengers and others.

That inquiry might include such considerations as evi-

dence concerning how often, and with what consequences,

the feared failures of corrective lenses have in fact

occurred (as to which data should be available because

individuals with better than 20/100 uncorrected vision

do wear corrective lenses); whether there is any record

of accidents or near-accidents due to failed corrective

lenses for commercial pilots (such as plaintiffs) who have

seriously impaired uncorrected vision but who do fly

commuter, cargo, and other planes; whether substitute

requirements such as multiple sets of replacement glasses

placed in predetermined places in the cockpit would

suffice to eliminate that risk; and so on.

The answers to these questions and others like them

are not self-evident, and depend upon medical and avia-

tion expertise, data, and careful analysis. And, the ADA

does not purport to provide inflexible or unequivocal

answers. Rather, the ADA poses these questions for the

employer in the first instance and directs that the em-

ployer’s answers be reviewed in court, if necessary, on a

case-by-case, context-specific basis.

United Airline’s position in this case is that none of the

foregoing is of any legal pertinence. According to United

as long as applicants for employment as pilots have

normal vision when corrected and therefore are not im-

peded for most purposes in their daily lives by their

severe biological vision impairment, Congress did not

intend to require that United engage at all in the mode

of inquiry outlined above when determining that that

severe impairment is a disqualification for employment

as a pilot.

To exaggerate that position for illustrative purposes

(for we recognize that the actual rule United imposes

may prove defensible when scrutinized as the ADA re-

quires), on United’s understanding of the statute, a law

firm could similarly require specified uncorrected vision

as a medical requirement for attorney positions, and the

firm in so doing would be wholly outside the ADA’s

purview.

Yet, unlike an airline with respect to pilot positions, a

law firm could not, in all probability, without demonstrat-

ing an undue hardship, demand a specified level of cor-

rected vision under the ADA for any and all attorney

positions, given the availability of readers, computer tech-

nology, and other accommodations that make it possible

for vision impaired lawyers and judges to perform, and to

perform at a high level.

While it is difficult in that light to see what the justifi-

cation for a law firm uncorrected vision rule could be,

the very heart of United’s position is that Congress did not

require in the ADA that employers have any justification

for disadvantaging an individual on the basis of that in-

dividual’s actual, biological, serious medical impairment,

if that impairment is medically corrected to allow normal

functioning as a general matter. That position rests on

a serious misreading of the ADA’s “disability” definition.

2. The “Record of Impairment” Definition of “Dis-

ability”: The basis for the employer’s insistence that Con-

gress had this anomalous intention in enacting the ADA,

and for the Tenth Circuit’s holding, succinctly stated, is

that (1) individuals in plaintiffs’ situation are not “dis-

abled” under the § 12102(2)(A) definition because a

physical impairment that is corrected to normal for almost

any purpose one can imagine does not “substantially

limit{] one or more of the major life activities of such

person” (emphasis supplied); and (2) such individuals

are not “being regarded as having such an impairment”

because the only “major life activity” implicated by

United’s uncorrected vision rule is “working” (see 29

C.F.C. § 1630.2(i)), and that rule does not suggest

that United “regarded” plaintiffs, because of their un-

corrected vision, as unqualified for “all pilot positions at

all airlines.” Sutton v. United Air Lines, 130 F.3d 893,

905 (10th Cir. 1997).

We are somewhat perplexed as to why the litigants in

the courts below, and the lower courts, viewed this case

through the inherent complexities of subsections (A) and

detail, subsection (B) of that definition section, stating

that a “disability” is also “a record of” an impairment of

the kind defined as a disability in subsection (A)—viz.,

an impairment that substantially limits a major life activ-

ity—both in its plain language and in its underlying

purpose brings this case within the ADA’s coverage.*

4It suffices here to note that subsection (A) raises thorny legal

interpretation questions explored at length in the decision below

and the parties’ submissions. And, as we develop below, a literal

reading of the “regarded as impaired” subsection and the applica-

ble negotiations raises conceptual difficulties of some dimension.

Without discussing those difficulties fully, we note that the lan-

guage of the “regarded as” provision suggests an inquiry into the

employer's perceptions and frame of mind. See 29 C.F.R. Pt. 1630,

App. § 1630.2(1) (interpretive guidance construing the “regarded

as” provision as pertaining, inter alia, to circumstances in which

“(t}he individual [has] . . . an impairment which is not sub-

stantially limiting [of a major life activity] but is perceived by

the employer . . . as constituting a substantially limiting impair-

ment”) (emphasis supplied). Yet, as the interpretive guidance just

quoted indicates, that language can also be read to incorporate on

the perceptual level the whole of the “substantially limit” provision

of § 12102(2)(A), thereby necessitating an understanding of what

the employer thought about the employee's or prospective employee's

overall work prospects, and not only what the employer thought

about the prospective employee's suitability for employment by that

particular employer or what the employee's actual work prospects

were given the actual employment practices of other employees.

See E.B. Black, Ltd. v. Marshall, 407 F. Supp. 1088, 1099-1101

(1980) (opinion treating as an original proposition with the in-

terpretive difficulties posed under the parallel language of the

Rehabilitation Act of 1973 with regard to determining the range

of jobs for which an employer “regards” an employee as disquali-

fied and whether that range of jobs is sufficiently broad to demon-

strate that the employer “regards” the employee as disabled from

the major life activity of working).

As we noted at the outset (n.2, supra), we in no way disagree

with the plaintiffs’ position concerning the application of the “re-

garded as” provision to this case. Our point is simply that the

application of that provision entails certain complexities, both ana-

lytically and factually, and that in a broad range of cases those

(a) At the outset, we do not understand there to be any

dispute in this case at present as to whether the plaintiffs’

have “a physical or mental impairment.” The Tenth

Circuit recognized that they do, because “[i]f the under-

lying disorder or condition makes worse or diminishes in

a material respect any of the enumerated [in 29 C.F.R.

§ 1630(h)] body systems of the individual, then it should

be considered an “impairment,” regardless of whether the

individual compensates for this worsening or diminish-

ment by corrective measures.” Sutton v. United Air Lines,

supra, 130 F.3d at 898-99. This analysis of what con-

stitutes an “impairment” was later confirmed by this Court

in Bragdon v. Abbott, supra. See 118 S. Ct. at 2202-04

(concluding that asymptomatic HIV infection is an ”im-

pairment” because of the detrimental biological changes

caused by the infection, and considering the functional

impact of those biological effects only with regard to the

separate inquiry whether the “impairment” affects a major

life activity).

(b) On a purely linguistic level, individuals who have

a medically-diagnosed impairment and who then obtain

medical care or advice that results in the prescription of

devices, medications, or lifestyle changes (or more than

one of those forms of intervention) that mitigate the

functional effects of that impairment necessarily have a

“record of” that impairment in their medical files. That

“record” will ordinarily be sufficient to determine whether

or not the recorded untreated impairment is one that

“substantially limits one or more of the major life activi-

ties” (§ 12102(2)(A)) of the individual. From the medi-

cal records of an epileptic or a diabetic, for example,

one would be able to determine whether the impairment

at the biological level is one that, left untreated, would

have a substantial negative effect on the patent's daily life

activities—as vision impairment of the kind suffered by

the plaintiffs here surely would.

complexities do not arise under the “record of impairment” defini-

tion of disability.

(EEOC)’s regulations and interpretive guidance confirm

the applicability of the “record of impairment” subsection

of the ADA disability definition to situations, such as this

one, where the employer is relying upon a known, actual—

but ordinarily controlled—substantially limiting impair-

ment as the basis for disadvantaging an individual.

The pertinent EEOC regulation reads in its entirety:

Has a record of such impairment means has a history

pedir y Rane Poomy eyo Dew OE apthed

Fey tne : ial? aoe on

oa major life activities. [29 C.F.R. § 1630.2(k)

(emphasis added ).]

The pertinent EEOC interpretive guidance adds:

has or has had a substantially limiting impairment.

The impairment indicated in the record must be an

impairment that would substantially limit one or

more of the individual's major life activities. There

are many of records that could potentially con-

tain this information, including but not limited to,

education, medical, or employment records. [29

C.F.R. Part 1630, App. § 1630(k) (emphasis

added).}®

Finally, the EEOC’s Technical Assistance Manual on

the Employment Provisions of the Americans with Dis-

abilities Act (1992) provides further guidance, including

the following:

This part of the definition protects people who have

a history of a disability from discrimination, whether

or not they currently are substantially limited in a

major life activity.

oe AR renqyedy sgh: Sng dl

cancer, heart disease, or other debilitating illness

whose illnesses are either cured, controlled or in re

mission. . . . [/d. at Il-8 (emphasis added).]

The EEOC administrative materials, then, taken to-

gether, confirm that the “record of impairment” aspect of

the statutory “disability” definition applies here.

These analyses, first, make explicit the seemingly self-

evident proposition that the record relied upon can include

medical records.

Further, the EEOC’s understanding of the statute is

that a relevant record need not indicate any current ac-

tual or perceived substantial limitation on a major life

activity, and may document either a history of an impair-

ment or a present impairment. According to the enforc-

ing agency, ‘this part of the definition is satisfied if a

record relied on by an employer indicates that the indi-

vidual has or has had a substantially limiting impair-

5 There is one additional paragraph in the EEOC’s Interpretive

Guidance that discusses the relevance of records concerning eligi-

bility for veteran's, retirement, or other benefits; that paragraph

is not here pertinent.

The administrative materials quoted in the text closely track the

available ADA legislative history, and we do not believe that that

history adds anything of interpretive utility. For completeness,

however, we set out the pertinent language of the committee reports

in the Appendix to this brief.

ment.” 29 C.F.R. Part 1630, App. § 1630(k); see also

id. (explaining that an individual currently misclassified

in records is covered).

Additionally, the EEOC construes the “record” sub-

section, consistently with its language, as providing that

the record itself need not reflect that the individual has in

fact suffered a substantial effect on major life activities.

Thus, an entirely erroneous record of an impairment suf-

fices (such as an erroneous record that an individual has

a learning disability), as does a record of an impairment

that “would substantially limit one or more of the in-

dividual’s major life activities” (29 C.F.R. Part 1630 App.

§ 1630(k), emphasis supplied ) .®

6 One can, in any event, quite sensibly characterize an individual

with a controlled impairment that would be substantially limiting

if uncontrolled as having a history of a substantial limitation.

For it is almost surely true that the individual suffered the im-

pairment uncorrected for at least some period in the past; children

usually obtain corrective lenses, for example, only after they can-

not read the blackboard or it otherwise becomes evident to them

that they are having vision problems in their daily lives.

And, in any event, no reason appears why Congress would dis-

tinguish between situations in which an individual’s underlying,

potentially substantially limiting impairment is diagnosed and

recorded before rather than after suffering the debilitation that

the impairment is capable of causing if left uncontrolled. There

would be no basis, for example, for treating differently for pur-

poses of the “record of impairment” definition an individual diag-

nosed with diabetes on the basis of blood tests, before suffering a

diabetic coma or any other debilitating symptoms, and one for

whom the diagnosis was made only after she suffered such

symptoms. The two individuals’ later underlying conditions, after

medical and diabetic interventions, and their medical diagnoses

in their medical records could well be identical. Employers, more-

over, could well have as much basis in the one case as in the other

to consider the individual’s medical history in deciding on their

suitability for a job. To require that such consideration be sub-

jected to the careful self-scrutiny required by the ADA in the one

instance and not in the other makes no sense, and there is no evi-

dence that Congress intended any such senseless result.

Similarly, the repeated reference in the administrative materials

and in the legislative history (see Appendix) to bringing individ-

And, the EEOC specifically construes the “record” sub-

section to cover “controlled” illnesses or impairments,

indicating once more that the underlying impairment can

be continuing, and that it is the usual untreated impact

of the recorded impairment on major life activities, not

the current functioning of the individual, that matters.

(d) Finally, the purposes served by the “record of

impairment” aspect of the statutory definition of “dis-

ability,” as those purposes are described and implemented

in the only case of this Court addressing the issue, School

Board of Nassau County v. Arline, supra, pushes toward

the conclusion that that subsection provides for ADA

coverage where employers rely on known, potentially de-

bilitating, demonstrable biological conditions, even if

those conditions have no significant present effect on an

individual's usual daily activities.

Arline concerned a teacher who had been diagnosed

with tuberculosis and hospitalized with the disease three

times in the recent past. 480 U.S. at 276, 281. The

Court held that these facts established that the plaintiff

had a “record of . . . impairment” within the meaning of

the definitional provision of the Rehabilitation Act that

is identical to the “record of impairment” provision of the

ADA, and that, since she therefore had a “disability,”

she was covered by the Act. /d. at 281.

In explaining its conclusion, the Court briefly de-

scribed the reasons for amending the Rehabilitation Act

in 1974 to include both the “record or impairment” and

uals with a history of cancer within the ADA through the “record

of impairment” language gives no indication that Congress was

distinguishing between cancers that had already caused substantial

impairment (usually because of the treatment, such as surgery or

chemotherapy, not because of the cancer itself) and those equally

serious cancers (such as melanomas) that may be treatable in the

first instance through forms of surgery that do not impair the

patient’s functioning even temporarily.

“regarded as impaired” prongs of the “disability” defini-

tion:

The amended definition reflected Congress’ con-

cern with protecting the handicapped against discrim-

ination stemming not only from simple prejudice,

but also from “archaic attitudes and laws” and from

“the fact that the American people are simply un-

familiar with and insensitive to the difficulties con-

front[ing] individuals with handicaps.” S, Rep. No.

93-1297, P. 50 (1974), U.S. Code Cong. & Admin.

ph » We he To yee A, the effects of

ess prevalent perceptions

about the handicapped, Congress expanded the defi-

nition of “handicapped individual” so as to preclude

discrimination against “[a] person who has a record

of, or is regarded as having, an impairment [but

who] may at present have no actual incapacity at

all.” Id. [480 U.S. at 279 (emphasis added).]

A comparison of the problem presented by employer

reliance on past episodes of a disabling illness as the basis

for disadvantaging an individual with “no actual incapacity

at all,” as in Arline, and that presented by similar em-

ployer reliance on a recorded, continuing, substantially

limiting medical condition that, because it is controlled

by medicine or medical devices, also creates at present

“no actual incapacity at all” confirms two points: first,

there is no functional difference of significance between

the two types of reliance on an individual’s medical rec-

ords; and second, both present identical issues of policy

regarding the appropriate employer treatment of em-

ployee medical conditions.

_ In both instances, the individual has a real, not imag-

ined, history of serious medical impairment, objectively

documented, and the employer is relying on that history,

and on information contained in those documents, in

making its employment decision. That the two situations

are similar in every relevant regard explains why the

statute does not distinguish between the two but encom-

passes both in the “record of impairment” definition.’

It is also relevant that the situations are distinct—and

distinct in the same way— for purposes of appropriate

employer decisionmaking processes from the situation in

which an employer is simply mistaken about the medical

facts concerning the individual. In the latter situation,

the Act endeavors only to prohibit employers from acting

upon misperceptions concerning individual employee’s ac-

tual medical circumstances. In the former situations, the

policy questions to be addressed are considerably more

complex.

In particular, in both the Arline kind of case and in

this kind of case, the employer’s ~Jncern is that an

apparently dormant or controlled medical condition is

capable of becoming active or that the controls are capa-

ble of failing while the individual is at work, with the

result that the underlying impairment could interfere in

some important way with the employee’s ability to do

her work. In Arline the concern was that the individual

was not cured and remained contagious; in the case of

an individual with a history of heart disease, the concern

may well be that there remains an underlying heart con-

dition that will cause a heart attack at a critical moment;

in the case of an individual with controlled diabetes or

epilepsy, the concern is likely to be that the controls are

7In the line of cases of which Arline is a paradigm, the individ-

ual may or may not have a continuing underlying biological con-

dition; viz., the plaintiff in Arline could have a latent tuberculesis

infection—which is apparently what the employer feared—or could

in fact finally have been permanently cured. The very point of

this Court’s holding in the cases, is that it does not matter for

purposes of the “record of impairment” definition of disability

which is the case; rather, bringing that circumstances within the

ADA serves to require the employer to ascertain the true medical

facts and their significance. Thus, Arline confirms that the “record

of impairment” provision is not limited to past, cured medical

conditions.

not perfect, and that the individual will have an epileptic

seizure or diabetic reaction despite the medication; and

in the present, impaired vision circumstances, the con-

cern, similarly, is that the correction will fail, in this in-

stance through broken, clouded over, or displaced lenses

and affect the pilot’s ability to cope with an exigent cir-

cumstance—e.g., a difficult landing.

In all these situations, the employer’s concerns may or

may not prove justified when subjected to careful self-

scrutiny and, if necessary, to judicial scrutiny. And in all

these situations, the relevant factors in undertaking that

scrutiny involve consideration of both the medical evi-

dence and of the particular job in question, to deter-

mine whether the individual’s underlying medical situation

could in fact come to the fore on the job and undermine

the individual’s ability to carry out the job’s essential

functions.

As Arline makes clear, a central thrust of the Rehabili-

tation Act was to “require[] employers to respond ration-

ally” to individuals with medical records demonstrating a

substantially limiting medical condition, by undertaking

a prescribed, structured consideration of the pertinent

facts and considerations. 480 U.S. at 286 n.15. Similarly,

a primary purpose of the ADA, as we have seen (see

part 1, supra), is setting standards for how potentially

relevant medical information should be evaluated in deter-

mining whether the individual is “otherwise qualified” for

the position sought. The “record of impairment” portion

of the disability definition furthers that purpose identically

both in the Arline past medical incidents circumstance

and in the present, controlled impairment situation.

In contrast, the statutory interpretation urged by United

and adopted by the Tenth Circuit would, with no apparent

justification, recognize the ADA’s requirement of reasoned,

evidenced-based decisionmaking for individuals such as the

plaintiff in Arline, who may or may not have a continuing

impairment but in the past suffered a substantially limit-

ing impairment, but would negate that requirement and

permit totally arbitrary reliance on known, serious, cur-

rent, potentially disabling impairments if the impair-

ment is seemingly under present control and therefore not

disabling in the individual's present daily life.*

In sum, the “record of impairment” aspect of the

ADA’s “disability” definition, in its language, administra-

tive interpretation, and avowed purpose, was intended

precisely to bring within the ADA employer decision-

making based upon the fear that underlying medical or

physical impairments documented in an individual’s medi-

cal records and substantially impairing unless controlled

or cured will not remain cured or corrected but will return

to affect the individual’s ability to perform the job in

question.® The plaintiffs here therefore had a “record”

8 We note once again (see n.2, supra) that ADA coverage here

should also obtain by reason of the “regarded as impaired” provi-

sion, albeit, as we have also noted, through a more circuitous in-

terpretive path.

For example, the “regarded as impaired” analysis appears to turn

not upon whether the underlying physical or mental impairment

is substantially limiting if untreated but upon whether a suffi-

ciently broad group of job opportunities are precluded, or rather

perce-ved by the employer to be precluded, by the impairment as

controlled. Thus, by reason of the “regarded as impaired” sub-

section, an individual denied a job because of controlled diabetes

may or may not demand that the employer consider her suitability

for employment under the sequential reasoning and evidence-

gathering process prescribed by the ADA, depending upon the

seemingly irrelevant consideration whether the employer under-

stands the employee to be precluded from a broad or a narrow

range of jobs in the labor market. Yet, the actual medical circum-

stances remain constant, and it is difficult to imagine why Congress

would treat the two situations differently or demand complex evi-

dentiary showings regarding employer perceptions about the labor

market, as the entry price for triggering the ADA’s protections.

The “record of impairment” subsection makes no such distinction.

and therefore provides more certainty of similar result in concep-

tually similar cases.

®With limited knowledge, it is not plain to us whether the

“record of impairment” subsection is pertinent to the other case

of a substantially limiting disability, and are covered by

the ADA. As such, they are, like the plaintiff in Arline

and for similar reasons, entitled to “the opportunity to

have their condition evaluated in light of the medical

evidence and a determination made as to whether they

were ‘otherwise qualified’,” rather than being “vulnerable

to discrimination on the basis of mythology—precisely the

type of injury Congress sought to prevent.” Arline, 480

USS. at 286.

relating to a controlled medical condition on which this Court has

granted certiorari, Murphy v. United Parcel Service, No. 97-1992.

In Murphy, the employer’s preclusionary standard is based not

on Mr. Murphy’s uncorrected medical condition—high blood pres-

sure so serious that the patient could not live unless it was under

control—but on Mr. Murphy’s blood pressure readings after partial

medical correction. Whether the “record of impairment” section

should apply to that situation is less clear than it is here.

On the one hand, in both instances, the individual in fact has a

record of an impairment that is undeniably substantially limiting.

On the other hand, in Murphy the employer’s exclusionary standard

was not based on the recorded, uncorrected impairment, but on the

plaintiff's actual, controlled medical condition.

As such, Murphy is similar to a situation in which an individual

has an impairment that is substantially limiting but that the em-

ployer does not treat as disqualifying or is willing to accommodate,

and has additionally another impairment that the employer does

treat as disqualifying and as to which there is a dispute whether

it is substantially limiting. A lawyer restricted to a wheelchair who

also has controlled diabetes would be an example; if the employer

denies the lawyer a position because of the diabetes but employs

several lawyers who use wheelchairs, we doubt that the fact that

the individual has a disability (inability to walk) answers the ques-

tion whether the ADA applies to the employer’s diabetes preclu-

sion. In that situation, that is, the conclusion that the lawyer is

an individual with a disability by reason of his inability to walk,

without more, would not appear to trigger ADA coverage where the

employer action concerns a separate physical or mental impairment.

We are in no way suggesting that the plaintiff in Murphy does

not come within subsections (A) or (C) of the “disability” defini-

tion, but only that it is much less clear than it is here that subsec-

tion (B) applies.

CONCLUSION

For the reasons stated above, the judgment below should

be reversed.

Respectfully submitted,

JONATHAN P. HIATT

815 16th Street, N.W.

Washington, DC. 20006

MARSHA S. BERZON

177 Post Street, Suite 300

San Francisco, CA 94108

LAURENCE GOLD *

1000 Connecticut Avenue, N.W

Washington, D.C. 20086

(202) 833-9340 A be Pp E N D t ».4

* Counsel of Record

APPENDIX

ADA LEGISLATIVE HISTORY OF “RECORD OF

IMPAIRMENT” “DISABILITY” DEFINITION,

42 U.S.C. § 12102(2)(B)

(1) The second prong of the definition of the term “dis-

ability” includes an individual who has a record of

such an impairment, i.e., an individual who has a

history of, or has been misclassified as having, a

mental of physical impairment that substantially

limits one or more major life activities.

This provision is included in the definition in part

to protect individuals who have recovered from a

physical or mental impairment which previously sub-

stantially limited them in a major life activity. Dis-

crimination on the basis of such a past impairment

would be prohibited under this legislation. Frequently

occurring examples of the first group (i.e., those who

have a history of an impairment) are persons with

histories of mental or emotional illness, heart disease,

or cancer; examples of the second group (i.e., those

who have been misclassified as having an impair-

ment) are persons who have been misclassified as

mentally retarded. [Senate Comm. on Labor and

Human Resources, S. Rep No. 116, 101st Cong,

Ist Sess, at 21, 23 (1989).]

(2) The second prong of the definition of the term “dis-

ability” includes an individual who has a record of

such impairment, i.e., an individual who has a history

of, or has been misclassified as having, a mental or

physical impairment that substantially limits one or

more major life activities.

This provision is included in the definition in part

to protect individuals who have recovered from a

physical or mental impairment which previously sub-

stantially limited them in a major life activity. Dis-

crimination on the basis of such a past impairment

ta teyaee

i He

Bate

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.