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

iD iO ) ; Prep

’ :

Nos. 97-1943, 97-1992 and 98-591 |

—— a hc 'YOQ

In The

Supreme Court of the United States

October Term, 1998

ALBERTSON'S INC.,

y Petitioner,

HALLIE KIRKINGBURG,

Respondent.

—¢

VAUGHN L. MURPHY,

~ Petitioner,

UNITED PARCEL SERVICE,

Respondent.

+

KAREN AND KIMBERLY SUTTON,

“ Petitioners,

UNITED AIRLINES, INC.,

Respondents.

SJ

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth And Tenth Circuits

+

BRIEF OF SENATORS HARKIN AND KENNEDY,

REPRESENTATIVES HOYER AND OWENS AND

FORMER SENATOR DOLE AS AMICI CURIAE

IN SUPPORT OF RESPONDENT KIRKINGBURG

AND PETITIONERS SUTTON AND MURPHY

+

“ARLENE B. Mayerson, Esquire

CHANTAL M. SampoGNna, Esquire

Disability Rights Education and

Defense Fund

2212 Sixth Street

Berkeley, CA 94710

Telephone: (510) 644-2555

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

I. THE DEFINITION OF DISABILITY IS BROAD

IN ORDER TO ACHIEVE THE NON-DISCRIMI-

NATION GOALS OF THE ADA

CONGRESS MADE CLEAR ITS INTENT THAT

THE FIRST PRONG OF THE DEFINITION OF

DISABILITY BE DETERMINED WITHOUT

CONSIDERATION OF MITIGATING MEASURES

A. The Plain Language

B. Given that the Plain Language is At Least

Ambiguous, The Court Should Defer to

Explicit Legislative History and Authoritative

Agency Interpretations

THE “REGARDED AS” PRONG OF THE DEFINI-

TION OF DISABILITY IS INTENDED TO

ADDRESS THE SUBSTANTIALLY LIMITING

IMPACT OF NEGATIVE REACTIONS TO

IMPAIRMENTS THAT ARE NOT OTHERWISE

SUBSTANTIALLY LIMITING

A. Congress and the Enforcing Agencies Adopted

Long Standing Agency Interpretations of the

“Regarded As” Prong of the Definition of Dis-

B. The Proper Analytical Framework

C. Analytical Problems with the Lower Court

Decisions, as Illustrated by the Tenth Circuit

CONCLUSION

il

TABLE OF AUTHORITIES

Feperat Cases

Best v. Shell Oil, 107 F.3d 544 (7th Cir. 1997) ........ 22

Bragdon v. Abbott, 118 S. Ct. 2196 (1998)... .3, 7, 10, 15, 18

Bridges v. City of Bossier, 92 F.3d 329 (Sth Cir. 1996) .... 25

Chevron, USA Inc. v. National Resource Defense

Council, Inc., 467 U.S. 837 (1984) ........... 3, 15, 16

Davis v. Meese, 692 F. Supp. 505 (E.D. Pa. 1988) ...... 7

E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hawaii

BOGE). ccscccnnvceecesseugsoeses saute ann n 26

Harris v. H.W. Contracting Co., 102 F.3d 516 (11th

Cig. 1906) 0. vcsccscuceecneusenss 00-06 pene 22

Hileman v. City of Dallas, 115 F.3d 352 (Sth Cir.

IDOT). cccnccccndasdecac se ebb ee teen ante an anna 29

Holihan v. Lucky Stores, 87 F.3d 362 (9th Cir. 1996) .... 22

Johnson v. American Chamber of Commerce Pub-

lishers, Inc., 108 F.3d 818 (7th Cir. 1997)........... 22

Katz v. City Metal Co., 87 F.3d 26 (Ist Cir. 1996)..... 22

Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996) .... 28

Kirkingburg v. Albertsons, Inc., 143 F.3d 1228 (9th

Cig. 8908) oc ccccnncsvssecsauchcatss sun euueeeeee 1, 21

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876

(Cth Cle. 1996)... .sscicduvcovutun se unaneeeee 7

Kohl v. Woodhaven Learning Center, 865 F.2d 930

(Sth Cig, 1969)... ocisicoccccdnetat vhenee ann eenenneuee 7

Lawrence v. National Westminster Bank of N.J., 98

F.3d 61 (36. Cie. 1996) . cv ccesiccusaa de qabopeeepeneae 7

TABLE OF AUTHORITIES -— Continued

Page

Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985)...... 7

Murphy v. United Parcel Service, 141 F.3d 1185 (10th

Ee a 1, 8, 21, 25

Olson v. General Elec. Astrospace, 101 F.3d 947 (3d.

ee eee Ba aks ook couibe'eece's 0s 7, 22

Reynolds v. Brock, 815 F.2d 571 (9th Cir. 1987) ........ 7

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

EES ee passim

Southeastern Community College v. Davis, 442 U.S.

EE ESS IS SE ee 13

Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th

EEE ETT TY ee ae passim

Taylor v. United States Postal Service, 946 F.2d 1214

ES SE ER ee 27

Vande Zande v. Wisconsin Dept of Admin., 44 F.3d

ES a 20

Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir. 1992)... . 25

Docxerep Case

EEOC v. Joslyn Mfg. Co., No. 95C 4956, 1996 WL

400037 (N.D. Ill. July 15, 1996)................0... 23

STATUES

135 Cong. Rec. $10765, S10766 (Sept. 7, 1989)

(statement of Senator Harkin) ...................... 14

136 Cong. Rec. $9684-03, $9698 (1990)............... 16

28 CFR.

iv

TABLE OF AUTHORITIES — Continued

Page

29 C.F.R.

O BES occ ncecccccuscescneseenienssehetenasteneee 19

§ 1630, app. § 1630.2(j) para. 12................ 15, 28

45 C.F.R.

BS BOTA oo ic cvcccccassccesdeececagisuanaant 18

Rehabilitation Act of 1973, 29 U.S.C.

RB, (Ft, 5 5 eee rere 3, 7

42 USC.

Be eee) tees 6

DB CERO oc ccocnctdocnccséenceseeus“Siebeneh eat 5

BPs ee 6

Bre rrr ee 2, 6

DQ ic os cctcedsccccveuctealiepennanet 2, 6, 9, 16

OS CR oc vt on cvncsneudsccusdeedderseneupeane 4

YL Serre riveree re 4

©. SOOGR. < ci ccci cvthetee cedavededsindssessneuteren 4

House Comm. On the Judiciary, H.R. Rep. No. 485

(111), 101st Cong., 2d Sess. at 28, 29, 33, 42, 50

(1990) [hereinafter House Report (III)].......... passim

S. Rep. No. 872, 88th Cong., 2d Sess. at 23 (1964)

(“The pledge of this Nation is to secure freedom for

every individual” and that “that pledge will be

furthered by the elimination of [discriminatory]

CURSES D «sc cncébuscadidsdecdiieutaaae 6, 9, 12, 15, 19

Section 504 of the 1973 Rehabilitation Act, 29 U.S.C.

OB TOG CORES GED «cn vine ccicnedodstnus cochuasbant 13, 18

TABLE OF AUTHORITIES ~- Continued

Senate Comm. on Labor and Human Resources, S.

Rep. No. 116, 101st Cong., Ist Sess., at 9-10

CRs healed tice d cs ckuaduts acbdvssakeewbid toe

Senate Report at 22, 31, 39, 62, House Comm. On

Education and Labor, H.R. Rep. No. 985 (II), 101st

Cong., 2d Sess. at 51, 52, 62, 72, 79, 80 (1990)

{hereinafter House Report (II)] ....9, 12, 13, 14,

Pe Ee Wee Eh UENO oie coves schsasénctoodas

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

American Diabetes Association, Medical Manage-

ment of Type 1 Diabetes 60 (3d. ed., American

Diabetes Association. 1998) ....................

Equal Employment Opportunity Commission, EEOC

Technical Assistance Manual at Il-11............

Epilepsy Foundation of America, Epilepsy: A Report

eo FRE Rr en ee

Robert L. Burgdorf, “Substantially Limited” Protec-

tion from Disability Discrimination: The Special

Treatment Model and Misconstructions of the Defi-

nition of Disability, 42 Vill. L. Rev. 409 (1997) ..

Ruth Colker, The Americans With Disabilities Act: A

Windfall for Defendants, 34 ....... 0.6.6.6 60005.

Orrin Devinsky, Antiepileptic Drug Therapy, in Guide

to Understanding and Living with Epilepsy. F.A.

Davis & Co., Philadelphia, 1994.................

vi

TABLE OF AUTHORITIES — Continued

Jonathon C. Drimmer, Cripples, Overcomers and

Civil Rights: Tracing the Evolution of Legislation

and Social Policy for People With Disabilities, 40

U.C.L.A. L. Rev. 1341 (1993)............-0 200s

R.S. Fisher, et al., A Large Community-Based Survey

of Quality of Life and Concerns of People with

Epilepsy: Part I, Epilepsia Vol. 39, Supp. 6 (1998) ....

A.G. Herzog, Klein P., Ransil BJ, Three patterns of

catamenial epilepsy, Epilepsia, 1997;38:1082-1088 ....

Frederick K. Goodwin M.D. & Kay Redfield

Jamison, Ph.D., Manic Depressive Illness 597

(Oxford University Press 1990)..................

Richard S. Keefe & Phillip D. Harvey, Understanding

Schizophrenia 437-440 (The Free Press 1994).....

National Alliance for the Mentally Ill, Understanding

Manic Depression (1997). ... 2... 62020202 ee eeende

National Alliance for the Mentally Ill, Understanding

Schizophrenia (1997). .......sccscscccscccssccess

N. Santilli, Selection and Discontinuation of Anti-

epileptic Drugs, in Managing Seizure Disorders: A

Handbook for Health Care Professionals, edited by

N. Santilli, Lippincott-Raven Publishers, Phila-

Galea 1996... cccccvccccewccescccssccscessces

S. Schachter, Treatment of Seizures, in The Compre-

hensive Evaluation and Treatment of Epilepsy: A

Practical Guide. Edited by Steven C. Schachter,

and Donald L. Schomer, Academic Press, San

OE PEI AIGA ETE, UTS

Fuller Torry, M.D., Surviving Schizophrenia 189 (3d

ed., Harper Collins Books 1985).................

Page

I

INTEREST OF AMICI*

The following Senators and Congressmen were primary

authors and sponsors of the Americans with Disabilities Act

and have been leaders in shaping this nation’s disability

policy.

Former Senator Bob Dole, a war veteran with a disability,

was a key proponent of securing equal opportunity for people

with disabilities during his years in the Senate, including

playing a leadership role in the development of the ADA.

Senator Tom Harkin was the chief sponsor and a princi-

pal author of the ADA. As Chair of the Subcommittee on

Disability Policy of the Senate Committee on Labor and

Human Resources, and floor manager, he was involved in all

aspects of the passage of the ADA.

Congressman Steny Hoyer was the lead House co-spon-

sor of the ADA. He led the House passage of the legislation

and was intimately involved in all aspects of its consider-

ation.

Senator Edward Kennedy, a principal author of the ADA,

was the Chair of the Senate Committee on Labor and Human

Resources during its passage.

Congressman Major Owens was Chair of the Subcommit-

tee on Select Education of the Committee of Education and

Labor during the deliberations on the ADA and was involved

in all deliberations in the House.

Amici, current and former members of Congress, file this

brief on behalf of the petitioners in Sutton v. United Air Lines,

Inc., 130 F.3d 893 (10th Cir. 1997) and Murphy v. United

Parcel Service, 141 F.3d 1185 (10th Cir. 1998) and the

respondent in Kirkingburg v. Albertson's, Inc., 143 F.3d 1228

(9th Cir. 1998) in order to address the issues raised about the

proper analytical framework for deciding whether an individ-

ual is “disabled” for purposes of Americans with Disabilities

* The parties have consented to the filing of this brief. Counsel for a

party did not author this brief in whole or in part. No person or entity, other

than the Amicus Curiae, its members, or its counsel made a monetary

contribution to the preparation and submission of this brief.

2

Act (ADA) coverage.' Amici are deeply concerned by the

growing trend in the lower courts to use what was intended as

a broad statutory definition of disability to cut off exactly the

types of claims the ADA was designed to address. Closing the

door at the threshold coverage stage not only denies protec-

tion to millions of Americans that Congress sought to protect

but also condones exactly the conduct Congress intended to

eliminate.

Amici take no position in this brief on the issues raised

about job qualifications. Rather, this brief focuses on the

common issue in these cases, which is that individuals who

are being denied employment because of their impairments

are being barred from an opportunity to demonstrate their

qualifications by being stripped of coverage under the ADA.

The rationale established in these cases will have a profound

impact on the future viability of the ADA for individuals with

a wide variety of other medical conditions — including dia-

betes, epilepsy, mental illness, and cancer — that Congress

clearly intended to be included under the ADA’s definition of

disability.

SUMMARY OF THE ARGUMENT

The fundamental purpose of the ADA is “to provide a

comprehensive national mandate for the elimination of dis-

crimination against individuals with disabilities” 42 U.S.C.

§ 12101(b)(1). This purpose has been eroded by restrictive

interpretations of the threshold requirement in any ADA suit,

that plaintiff be an “individual with a disability.” Dismissals,

often at the summary judgment stage, preclude plaintiffs who

' It is important to note that although the cases currently before the

court arise in the employment context under Title I of the ADA, the

definition of disability contained in 42 U.S.C. § 12102(2) applies to Title II

(state and local governments) and Title III (public accommodations) as

well. If the restrictive interpretations developed in the lower courts in Title

| employment cases are sustained by this court, it will be difficult for any

individual whose impairment is responsive to medication or other assistive

device to bring an action under Titles II or II.

3

have been rejected because of their physical or mental impair-

ments from ever having the opportunity to show that they are

qualified for the job.

As this Court recently recognized in Bragdon v. Abbott,

118 S. Ct. 2196 (1998), the definition of disability in the

ADA is patterned after the definition in the Rehabilitation Act

of 1973, 29 U.S.C. § 706(8)(B) (1988 ed.) In enacting the

ADA, Congress was well aware that the definition was broad

and not limited to traditional disabilities. Congress was

guided by this Court’s decision in School Board of Nassau

County v. Arline, 480 U.S. 273 (1987), which recognized that

the breadth of the definition reflected Congress’ desire to

address a variety of situations where a physical or mental

impairment is used to foreclose participation in the commu-

nity, including working. As the Court stated: “[t}he Act is

carefully structured to replace such reflexive reactions to

actual or perceived handicaps with actions based on reasoned

and medically sound judgments; the definition of [disability]

is broad, but only those individuals who are both [disabled]

and otherwise qualified are eligible for relief.” Arline at

284-285.

The Tenth Circuit opinions in Sutton and Murphy unduly

restrict the definition of disability by refusing to defer to

consistent agency interpretations and legislative history

which states that in evaluating whether an impairment sub-

stantially limits a major life activity, the impairment must be

evaluated without regard to mitigating measures. Since the

language of the statute is at least ambiguous, a court “may not

substitute its own construction . . . for a reasonable [agency]

interpretation.” Chevron, USA Inc. v. National Resource

Defense Council, Inc., 467 U.S. 837, 843-44 (1984).

Indeed, an employer who refuses to consider the mitigat-

ing measure when it rejects the plaintiff based on the underly-

ing impairment should not be able to use the success of the

mitigating measure to defeat ADA coverage. Moreover, the

agencies’ interpretation is more in tune with the actual nature

of mitigating measures. For example, while epilepsy, diabetes

and mental illness are subject to mitigation through medica-

tion, the relative degree of success varies not only from

4

person to person, but for any given individual it depends on a

number of variables. The changing nature of the effectiveness

of medicines and other assistive devices over time makes an

“impairment with mitigation” rule unstable and inconsistent.

If this Court decides that mitigating measures should be

taken into account for purposes of determining whether an

impairment is actually “substantially limiting,” then an alter-

native basis for coverage is the “regarded as” prong of the

disability definition. 42 U.S.C. § 12102(2)(C). As this Court

recognized in Arline, Congress intended to address exclusion-

ary practices based on medical conditions by including in the

definition of disability people whose impairments are not

substantially limiting, but who nevertheless are substantially

limited by the “negative reactions of others to the impair-

ment.” 480 U.S. at 283. The lower courts, as illustrated by the

Tenth Circuit here, have effectively repealed the “regarded

as” prong by requiring that plaintiffs be actually substantially

limited in order to be regarded as such. Moreover, in the

employment context, courts are routinely granting summary

judgment on the grounds that rejection from a “single job”

does not mean that the employer regarded the plaintiff as

substantially limited in working. In so doing, the courts are

creating burdens for plaintiffs which are often illogical and

insurmountable. The proper approach is for the employer's

rejection to be given its natural meaning, which is that the

employer regards the plaintiff as unable to do the tasks

involved in the type of job for which the plaintiff was

rejected. In most cases, this will, at a minimum, raise a

genuine issue of fact as to whether the employer regarded the

plaintiff as substantially limited in working.

The overly restrictive interpretations given to the defini-

tion of disability have resulted in the dismissal of ADA

claims for plaintiffs with a wide variety of disabilities that

Congress explicitly intended to cover. Being “disabled”

within the meaning of the ADA does not mean the plaintiff

wins. The plaintiff must still show that he or she was discrim-

inated against on the basis of disability and is qualified to

perform the essential functions of the job. 42 U.S.C. § 12112;

42 U.S.C. § 12111. As this Court stated in Arline, 480 U.S. at

5

284, exclusion at the coverage stage leaves these individuals

“vulnerable to discrimination on the basis of mytholo-

gy .. . precisely the type of injury Congress sought to

prevent.”

ARGUMENT

I. THE DEFINITION OF DISABILITY IS BROAD IN

ORDER TO ACHIEVE THE NON-DISCRIMINA-

TION GOALS OF THE ADA.

During congressional hearings concerning the ADA,

Congress learned that employers routinely used employment

criteria based on physical and mental characteristics to

deprive otherwise qualified individuals of the opportunity to

work.? The Senate Report stated:

The requirement that job criteria actually measure

ability required by the job is a critical protection

against discrimination based on disability. As was

made strikingly clear during the hearings on the

ADA, stereotypes and misconceptions about the

abilities, or more correctly the inabilities, of per-

sons with disabilities are still persuasive today.*

2 The findings and purposes section of the ADA, 42 U.S.C.

§ 12101(aX(S) (1990) cites “exclusionary qualification standards and

criteria” as a type of discrimination continually faced by people with

disabilities. See Senate Comm. on Labor and Human Resources, S. Rep

No. 116, 101st Cong., Ist Sess., at 9-10 (1989) [hereinafter Senate Report]

(citing testimony enumerating major categories of job discrimination faced

by people with disabilities including: use of standards and criteria that have

the effect of denying opportunities; refusal to hire based on presumptions,

stereotypes and myths about job performance, safety, insurance costs,

absenteeism and acceptance by coworkers; and use of application forms

and other pre-employment inquiries that inquire about the existence of

disability rather than about the ability to perform the essential functions of

the job).

3 Id. at 37.

6

Congress concluded that exclusion on the basis of physical or

mental impairments was not only harmful to the self-suffi-

ciency and dignity of the individual, but to society as a

whole.4 Just as Congress sought to eradicate policies that

discriminated on the basis of race and sex when it enacted

Title VII of the Civil Rights Act of 1964,° so too did Congress

seek to remove the vestiges of exclusionary, irrational poli-

cies based on physical or mental impairments when it enacted

the ADA.®

Congress thus defined the class to be protected under the

ADA broadly, defining an “individual with a disability” as a

person who (a) has a physical or mental impairment that

substantially limits one or more major life activities, (b) has a

record of such an impairment, or (c) is regarded as having

such an impairment. 42 U.S.C. § 12102(2). By passing

through the initial threshold requirement of establishing that

he or she has a disability under the ADA, however, a plaintiff

has only satisfied one part of a three-part prima facie case

4 42 U.S.C. § 12101(a)(9) (“the continuing existence of unfair and

unchanging discrimination and prejudice denies people with disabilities the

opportunity to compete on an equal basis . . . and costs the United States

billions of dollars in unnecessary expenses from dependency and

nonproductivity”); Senate Report at 16-17 (“The Committee also heard

testimony and reviewed reports concluding that discrimination results in

dependency on social welfare programs that cost the taxpayers unnecessary

billions of dollars each year.); 136 Cong. Rec. $10,713 (1990) (statement

of Sen. Harkin quoting Attorney General Richard Thornburgh) (“We must

recognize that passing comprehensive civil rights legislation protecting

persons with disabilities will have direct and tangible benefits for our

country”).

5 42 U.S.C. 2000e-2 through -17 (1994); S. Rep. No. 872, 88th

Cong., 2d Sess. at 23 (1964) (“The pledge of this Nation is to secure

freedom for every individual” and “that pledge will be furthered by the

elimination of [discriminatory] practices”).

6 Congress sought to address pervasive discrimination based on

“stereotypic assumptions,” 42 U.S.C. § 12101(a)(7) through a

“comprehensive national mandate for the elimination of discrimination

against individuals with disabilities,” 42 U.S.C. § 12101(b)(1).

7

under the ADA. The plaintiff nist also show that he or she is

qualified to perform the essential functions of the job, and

that he or she was excluded from employment because of his

or her disability.’ The proper approach to this three-part

prima facie case is to broadly interpret the definition of

disability, so that a fact-specific inquiry into the individual's

qualifications can be pursued.

As the Supreme Court stated in Arline, 480 U.S. at

284-285 (1987), about the virtually identical definition of

disability under the Rehabilitation Act, “[t)he Act is carefully

structured to replace . . . reflexive reactions to actual or

perceived handicaps with actions based on reasoned and med-

ically sound judgments: the definition of handicapped indi-

viduals is broad, but only those individuals who are both

handicapped and otherwise qualified are eligible for relief.”*

The unduly narrow interpretation of the definition of

disability illustrated by the Tenth Circuit opinions in Sutton

and Murphy perpetuates a Catch-22 that was not contemplated

7 See e.g., Lawrence v. Naieteal Westminster Bank of N.J., 98 F.3d 61,

68 (3d. Cir. 1996); Olson v. General Elec. Astrospace, 101 F.3d 947, 951

(3d. Cir. 1996); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 882

(6th Cir. 1996).

8 As this Court stated in Bragdon v. Abbott, 118 S. Ct. 2196, 2201

(1998), “[t}he ADA’s definition of disability is drawn almost verbatim from

the definition of “handicapped individual” included in the Rehabilitation

Act of 1973, 29 U.S.C. § 706(8)(B) (1988 ed.) . .. Congress’ repetition of a

well-established term carried the implication that Congress intended the

term to be construed in accordance with pre-existing regulatory

interpretations.” Section 504 case law consistently recognized individuals

with impairments subject to mitigation or who were asymptomatic as

covered by Section 504. Reynolds v. Brock, 815 F.2d 571 (9th Cir. 1987)

(epilepsy); Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985) (seizure

disorder); Davis v. Meese, 692 F. Supp. 505 (E.D. Pa. 1988), aff'd, 865

F.2d 592 (3rd Cir. 1989), (insulin dependent diabetes); Kohl v. Woodhaven

Learning Center, 865 F.2d 930 (8th Cir. 1989), (asymptomatic hepatitis B).

See also, Bradgon at 2208 (listing section 504 cases covering individuals

with asymptomatic HIV infection).

8

by Congress. Defendants are excluding individuals because of

physical or mental impairments and then claiming that the

rejected applicant or employee is not covered by the ADA

because he or she is not disabled. In other words, the plaintiff

is too disabled to do the job, but not disabled enough to be

protected by the ADA.

For example, UPS argued that Mr. Murphy should not be

able to claim that he was both substantially limited and

qualified.? The Tenth Circuit affirmed the district court’s view

that the plaintiff should not “have it both ways” or withstand

a motion for summary judgment based on “such inconsistent

positions.”'® This is where the Tenth Circuit gets it exactly

wrong. It was Congress’ intent not to let employers “have it

both ways”. It was Congress’ intent to disallow employers

from obtaining summary judgment based on these “inconsis-

tent positions” that motivated Congress to enact an expansive

definition of disability under the ADA.

Instead of allowing the cases to proceed on the merits of

whether an individual is qualified, the courts are fusing these

two distinct inquiries of (1) whether plaintiff is a “person

with a disability” and (2) whether the plaintiff is qualified to

do the job, and penalizing plaintiffs for taking what is charac-

terized as “inconsistent positions.” The whole premise of the

ADA is that individuals can be both “disabled” and able at the

same time. The three prong definition of disability is not

meant to be a legalistic trap but instead was drafted to convey

the wide range of situations where impairment status is the

subject of discriminatory action. This Court’s understanding

and explanation of this Congressional intent in Arline has

been virtually ignored by the lower courts.

° The District Court stated: “To demonstrate that he is disabled,

Murphy sets forth several of the serious consequences which can result

from his high blood pressure. Then in subsequent section of his brief,

Murphy, in an effort to demonstrate that he is qualified for the position at

UPS, essentially argues that his high blood pressure posed no threat or

obstacle to the performance of his duties as mechanic. Murphy, 946

F. Supp. 872, 878 (1996).

10 Jd. at 878-879.

9

There can be no doubt that Congress did not intend

medical and technological advancements which mitigate the

effect of impairments enabling independence and self suffi-

ciency to strip individuals with physical or mental conditions

of protection under the first prong of the definition of disabil-

ity. Moreover, Congress was not only concerned with protect-

ing people with actual disabilities but also with prohibiting

employers from using arbitrary medical criteria as the basis

for excluding individuals with physical or mental impair-

ments. The “regarded as” prong of the ADA was enacted so

that employers cannot “have it both ways.”

Il. CONGRESS MADE CLEAR ITS INTENT THAT

THE FIRST PRONG OF THE DEFINITION OF DIS-

ABILITY BE DETERMINED WITHOUT CONSID-

ERATION OF MITIGATING MEASURES.

The only plausible interpretation of the plain language of

the ADA, the legislative history and agency interpretations is

that coverage under the first prong of the definition of disabil-

ity must be decided without reference to mitigating factors.

A. The Plain Language.

The first prong of the statutory definition of disability

states that “[t]he term disability” means, with respect to an

individual — a physical or mental impairment that substan-

tially limits one or more of the major life activities of such

individual.” 42 U.S.C. § 12102(2). The purpose of the phrase

“substantially limits one or more major life activities” is to

distinguish minor, trivial impairments, from those that have a

significant impact on a person’s life.'' By prohibiting dis-

crimination against people who fall within the first prong of

the definition of disability, Congress intended to protect

individuals with significant impairments from being discrimi-

nated against on the basis of those impairments.

'! As stated in the Senate Report, “Persons with minor, trivial

impairments, such as a simple infected finger, are not impaired in a major

life activity.” Senate Report at 23; House Report (II) at 52.

10

The plain language of the statute simply looks at whether

the impairment substantially limits a major life activity.

Requiring a court to look at the impairment in its mitigated

state (/.e., after the individual has taken medication or used a

prosthetic device) would undermine the purpose of the first

prong, which is to prohibit discrimination on the basis of the

impairment itself. In Bragdon, Justice Ginsburg stated that

“[n]o rational legislator . . . would require nondiscrimination

once symptoms become visible but permit discrimination

where the disease, though present, is not yet visible.” Brag-

don, 118 S. Ct. at 2214. It would make just as little sense to

prohibit discrimination on the basis of an impairment where

the impairment is not ameliorated by mitigating measures, but

to permit discrimination on the basis of the very same impair-

ment simply because the individual with the impairment is

taking medication or using a prosthetic device.

A rule which relies on mitigating measures is also prob-

lematic from a practical point of view. While there have been

great strides in medications to help mitigate the effects of a

variety of disabilities, factoring in mitigating measures adds

often unpredictable and ever changing variables. Most people

with conditions that rely on medication are constantly read-

justing their doses and prescriptions, with more or less suc-

cess. If the “disability” determination was contingent on the

success or failure of mitigating measures, someone could be

covered by the ADA one month and not the next.

For example, insulin, food, and exercise are mitigating

measures persons with diabetes can use to achieve health and

independence.'* However, even the most stringent awareness

and the most diligent balancing of these factors cannot elimi-

nate the inherent limitations of diabetes.'* Blood sugar levels,

and, therefore, insulin needs, unpredictably respond to exter-

nal forces such as stress, allergies, and illness.'* While one

'2 American Diabetes Association, Medical Management of Type |

Diabetes, 60 (3d ed. 1998).

'3 Jd. at 60-61, 71-72.

14 Jd. at 73, 77-79, 82.

may know how much insulin to administer to maintain a

healthy blood sugar range in the normal course of a normal

day, one cannot know how much insulin to give to ameliorate

the effects of uncontrollable external forces. /d. at 61, 71-72,

76.

Like diabetes, mental illnesses fluctuate in severity over

time.'S Moreover, medications like Lithium for bipolar disor-

der and Risperdol for schizophrenia help control the most

severe symptoms of these disorders, but they do not cure

them.'® In fact, it is very common for people with bipolar

disorder to remain stable on Lithium for extended periods of

time, only to deteriorate and require intensive interventions to

stabilize their Lithium levels.'? Moreover, psychiatric medi-

cations, particularly the more powerful psychotropics, have

strong side effects that, in some instances, can be debilitating

in and of themselves.'*

Likewise, while the majority of people with epilepsy

have their seizures controlled through medications,'® there are

few who can maintain complete control at all times. Approxi-

mately fifty percent of the 2.3 million people with epilepsy

achieve good control through current therapies.2° Another 30

'S Fuller Torry, M.D., Surviving Schizophrenia, 189 (3rd ed. 1985),

(“Both schizophrenia and diabetes have relapses and remissions in a course

which often lasts over many years, and both can be well controlled, but not

cured, by drugs”).

'© National Allionce for the Mentally Ill, Understanding Manic

Depression (1997); \.Jonal Alliance for the Mentally Ill, Understanding

Schizophrenia (1997).

'7 Frederick K. Goodwin, M.D. & Kay Redfield Jamison, Ph.D.,

Manic Depresssive Illness 597 (Oxford University Press 1990).

'S Richard S. Keefe & Philiip D. Harvey, Understanding

Schizophrenia 437-440 (The Free Press 1994).

' Epilepsy Foundation of America, Epilepsy: A Report to the Nation

(1999).

20 R.S. Fisher, et al., A Large Community-Based Survey of Quality of

Life and Concerns of People with Epilepsy: Part 1, Epilepsia Vol. 39, Supp.

6 (1998).

12

percent achieve partial control, and the rest have seizures that

cannot be controlled through any current treatment.?' There

may be a period of weeks, months, or even years, where

seizures are well controlled, and then seizures may recur.??

Breakthrough seizures, even among people on medica-

tions, can occur for any number of reasons, but commonly

include illness,?> lack of sleep,?* hormonal or metabolic

changes,*> and changes in medications.“ Moreover, anti-

seizure medication may also cause side effects that have vary-

ing degrees of impact on individuals’ daily lives.2”? Because of

side effects, people with epilepsy struggle with finding the

right medication, in the smallest possible dose, to maintain

seizure control, while obtaining optimal functioning.?*

2" Id.

22 Id.

23 _N. Santilli, Selection and Discontinuation of Antiepileptic Drugs,

in Managing Seizure Disorders: A Handbook for Health Care

Professionals, edited by N. Santilli, Lippincott-Raven Publishers,

Philadelphia 1996.

*4 Schachter, S. Treatment of Seizures, in The Comprehensive

Evaluation and Treatment of Epilepsy: A Practical Guide. Edited by

Steven C. Schachter, and Donald L. Schomer, Academic Press, San Diego

1997,

*5 Herzog AG, Klein P., Ransil BJ, Three patterns of catamenial

epilepsy, Epilepsia, 1997,38: 1082-1088.

26 Supra n.21.

27 Id.

28 Devinsky, Orrin, Antiepileptic Drug Therapy, in Guide to

Understanding and Living with Epilepsy. F.A. Davis & Co., Philadelphia,

1994.

Epilepsy, diabetes, and mental illness are repeatedly referenced in the

legislative history as conditions which Congress intended to cover in the

ADA. (epilepsy) Senate Report at 22, 31, 39, 62, House Comm. On

Education and Labor, H.R. Rep. No. 985 (II), 101st Cong., 2d Sess. at 51,

52, 62, 72, 79, 80 (1990) (hereinafter House Report (I1)], House Comm. On

the Judiciary, H.R. Rep. No. 485 (111), 101st Cong., 2d Sess. at 28, 29, 33,

42, 50 (1990) [hereinafter House Report (III)]; (diabetes) Senate Report at

——-

13

Just as an individual could be disabled one month and not

the next, two individuals with the exact same impairment

could be “disabled” or not, depending on, among other things,

their level of responsibility and commitment to a medical

regimen and access to good medical care. Ironically, the more

disciplined individual would be unable to invoke ADA pro-

tection if discriminated against based on the underlying

impairment, while the less disciplined counterpart could

invoke the ADA’s protections. This simply does not make

sense.

The next logical step in this line of reasoning could even

be that in determining coverage under the ADA, courts would

have to inquire whether the effects of the impairment could be

controlled if the individual was more vigilant, had a better

doctor, was better educated about the consequences of failing

to follow a medical regimen, etc. There is no natural stopping

point in the proposition that mitigating measures should be

considered in determining first prong coverage. Never would

this Court have anticipated that when it stated in Southeastern

Community College v. Davis, 442 U.S. 397, 412 (1984) that

“technological advances can be expected to . . . qualify

[people with disabilities] for . . . employment,” that those

same technological advances would be used to strip plaintiffs

of coverage under the ADA.?9

B. Given that the Plain Language is At Least

Ambiguous, The Court Should Defer to Explicit

Legislative History and Authoritative Agency

Interpretations.

When drafting the ADA, Congress explicitly considered

the issue of mitigating measures, and consistent with the

22, House Report (II) at 51-52, House Report (III) at 42; (mental illness)

Senate Report at 39, 62, House Report (II) at 72, 79, House Report (III) at

28.

29 Like Arline, Southeastern interpreted the ADA's predecessor

statute, Section 504 of the 1973 Rehabilitation Act, 29 U.S.C. § 794 (1988

ed.).

14

intent that coverage be broad, concluded that mitigation

should not be considered in determining first prong cover-

age.*° For instance, the House Committee on Education and

Labor declared that:

Whether a person has a disability should be

assessed without regard to the availability of mit-

igating measures, such as reasonable accommoda-

tions or auxiliary aids. For example, a person who

is hard of hearing is substantially limited in the

major life activity of hearing, even though the loss

may be corrected through the use of a hearing aid.

Likewise, persons with impairments, such as epi-

lepsy 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.

House Report (II) at 52.

3° In addition to the authoritative Committee Reports discussed

below, there is also ample evidence in the legislative record that Congress

intended individuals who took medicine to ameliorate the effects of

impairments to be covered by the ADA. See 135 Cong. Rec. $10765,

$10766 (Sept. 7, 1989) (statement of Senator Harkin):

[I}f the disability would affect the performance of that person’s

job . . . then the employer could say this person was not

qualified. If, however, the disability in question, whether

schizophrenia, manic-depressive, or whatever it might be, is,

let us say, controlled by drugs, the person is under a doctor's

care, and the person is qualified for the job . . . [then] the

employee would be able to go to the EEOC and file a

complaint... .

See also Statement of Senator Domenici, /d. at 10779.

{T)here may have been a time in history when if you had

diabetes somebody asked you, do you have diabetes and they

could have said to you, we cannot hire you. Certainly that is

not the case today. Certainly you can have a disease as grave as

that and fit more jobs. You are either in the process of being

maintained, or we are coming close to finding a cure, or your

disability is sporadic.

-—— —~——<—f -— -

15

Likewise, the House Judiciary Committee Report and the

Senate Report state that the impairment “should be assessed

without considering whether mitigating measures, such as

auxiliary aids or reasonable accommodations, would result in

a less-than-substantial limitation.” House Report (III) at 28,

Senate Report at 23.%!

The agencies charged with interpreting and implementing

the ADA appropriately incorporated this legislative history in

directing that first prong coverage be decided without regard

to mitigating measures. As this Court stated in Bragdon, with

regard to interpretations by the Department of Justice, “[a]s

the agency directed by Congress to issue implementing regu-

lations, see U.S.C. § 12186(b) . . . and enforce Title III in

court, the Department’s views are entitled to deference.” 118

S. Ct. at 2209. The same can be said of the EEOC, which has

been charged with the obligation to issue regulations imple-

menting Title I, 42 U.S.C. § 12116.

Both the DOJ and EEOC interpret the first prong of the

definition as requiring a determination of substantial limita-

tion to be made without regard to mitigating measures such as

medicines, or assistance, or prosthetic devices. 29 C.F.R. pt.

1630, app. § 1630.2(j) (1999); 28 C.F.R. pt. 35, app. A

§ 35.104; pt. 36, app. B § 36.104 (1999). Given that the

agency interpretations are not inconsistent with the plain

meaning of the statute and are a reasonable interpretation,

considering the uncertainties of mitigation, this Court should

be guided by the admonition in Chevron, U.S.A., Inc. v.

3! Much has been made of the fact the Senate Report uses the

example of individuals with controlled diabetes or epilepsy to illustrate

third prong “regarded as” coverage. See discussion of “regarded as,” infra.

The Senate Report example only serves to underscore Congress’ intent to

cover such individuals. First, a person with diabetes or epilepsy that is

controlled with medication or diet may not be substantially limited even

without such measures. Second, and most importantly, the definition of

disability is fluid, so that the example can be seen as either first prong if the

effects of medication are not considered or third prong if they are. All of

is that the individual is covered by the ADA, as Congress clearly intended.

16

National Resource Defense Council, Inc., 467 U.S. 837,

843-44 (1984):

The power of an administrative agency to adminis-

ter a congressionally created . . . program neces-

sarily requires the formulation of policy and the

making of rules to fill any gap left, explicitly or

implicitly by Congress . . . [and] a court may not

substitute its own construction . . . for a reasonable

[agency] interpretation . . . ” (quoting Morton v.

Ruiz, 415 U.S. 119, 231 (1974)).

Ill. THE “REGARDED AS” PRONG OF THE DEFINI-

TION OF DISABILITY IS INTENDED TO

ADDRESS THE SUBSTANTIALLY LIMITING

IMPACT OF NEGATIVE REACTIONS TO

IMPAIRMENTS THAT ARE NOT OTHERWISE

SUBSTANTIALLY LIMITING.

If this Court decides that substantial limitation must be

decided after consideration of mitigating measures, then the

plaintiffs should be covered under the “regarded as” prong of

the definition of disability. 42 U.S.C. § 12102(2). The

“regarded as” prong reflects the “civil rights” approach to

disability discrimination, recognizing that problems faced by

people with disabilities are often not inherent to the medical

condition itself, but are rather the product of ignorance and

prejudice.*? This was perfectly understood by this Court in

Arline.*?

52 As Senator Weicker testified, “people with disabilities spend a

lifetime overcoming not what God wrought, but what man imposed by

custom and law.” 136 Cong. Rec. $9684-03, *S9698 (1990). See, Jonathon

C. Drimmer, Cripples, Overcomers and Civil Rights; Tracing the Evolution

of Legislation and Social Policy for People With Disabilities, 40 U.C.L.A.

L.Rev. 1341 (1993).

33 Congress adopted the Court's interpretation of the definition of

disability in the ADA. House Report (II) at 53; House Report (III) at 305.

17

To combat the effects of erroneous but nevertheless

prevalent perceptions about the handicapped, Con-

gress expanded the definition of “handicapped indi-

vidual” so as to preclude discrimination against “[a]

person who has a record of, or is regarded as hav-

ing, an impairment [but who] may at present have

no actual incapacity at all.” Arline at 279... .

.... By amending the definition . . . to include not

only those who are actually 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

accumulated myths and fears about disability and

disease are as handicapping as are the physical

limitations that flow from actual impairment. /d. at

284.

The entire purpose of the third prong is to provide a

vehicle for examining exclusionary practices and to provide

recognition that these exclusionary practices constitute sub-

stantial limitations in the lives of people with a wide variety

of medical conditions. As the Supreme Court stated in Arline,

“the basic purpose of [the statute] . . . is to ensure that

[disabled] individuals are not denied jobs or other benefits

because of the prejudicial attitudes or ignorance of others.”

Id. at 284.*4 Instead of giving credence to the breadth of the

third prong, courts are creating burdens of proof for plaintiffs

which are often illogical and insurmountable. Most troubling

is the overuse of summary judgment to cut off ADA claims at

the threshold coverage stage.**

*4 In Arline, the Court quoted an amicus brief of the Epilepsy

Foundation of America for the proposition that “[a] review of the history of

epilepsy provides a salient example that fear rather than the handicap itself

is the major impetus for discrimination against persons with handicaps.”

480 U.S. at 285 n.13.

35 See, Ruth Colker, The Americans With Disabilities Act: A Windfall

for Defendents, 34 Harvard Civil Rights — Civil Liberties Law Review 99,

18

A. Congress and the Enforcing Agencies Adopted

Long Standing Agency Interpretations of the

“Regarded As” Prong of the Definition of Dis-

ability.

Congress patterned the ADA’s “regarded as” prong on

regulations implementing Section 504 of the Rehabilitation

Act of 1973. See Bragdon, at 2202 (noting that Congress

adopted previous regulatory interpretations of Section 504

when it enacted the ADA). As the House Judiciary Report

explains,

The ADA uses the same “regarded as” test set forth

in the regulations implementing Section 504 of the

Rehabilitation Act. Those regulations provide:

(iv) “Is regarded as having an impairment” means

(A) has a physical or mental impairment that does

not substantially limit major life activities but that

is treated by a recipient as constituting such a lim-

itation; (B) 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 (C) has none of the impairments

defined in paragraph (j)(2)(i) of this section but is

treated by a recipient as having such an impairment.

House Report (III) at 29 citing 45 C.F.R. 84.3(j)(2)(iv).

Congress explicitly relied on the rationale articulated by

this Court in Arline for an understanding of the meaning and

scope of the “regarded as” prong.

The rationale for this third test, as used in the

Rehabilitation Act of 1973, was articulated by the

Supreme Court in School Board of Nassau County v.

Arline. [480 U.S. 273 (1987).] The Court noted that

although an individual may have an impairment that

does not in fact substantially limit a major life

activity, the reaction of others may prove just as

110 (1999) (courts have misused the summary judgment rules to the

disservice of plaintiffs in ADA employment cases).

19

disabling. “Such an impairment might not diminish

a person's physical or mental capabilities, but could

nevertheless substantially limit that person’s ability

to work as a result of the negative reactions of

others to the impairment.” 480 U.S. at 283.

Senate Report at 23; House Report (II) at 53; House Report

(III) at 30.

The Section 504 regulation was adopted by both the

EEOC and the Department of Justice in their ADA regula-

tions. 29 C.F.R. § 1630.2; 28 C.F.R. § 35.104. The interpre-

tive guidance to the EEOC and DOJ regulations tracks the

committee reports. 29 C.F.R. pt. 1630; app. § 1630.2; 28 pt.

35, app. A § 35.104 pt. 36, app. B § 36.104, respectively.

Accordingly, the “regarded as” prong is (1) intended to

cover individuals who do not satisfy the requirements of the

first two prongs of the definition of disability under the ADA,

and (2) is meant to acknowledge that the negative reactions of

others can be just as “substantially limiting” as the impair-

ment itself. In other words, the third prong is intended to

address societal barriers to full participation based on physi-

cal or mental impairments.

Courts, however, have had trouble reconciling the label

“disabled” with an individual who is functioning well enough

to work and take part in community events. Yet, this is

exactly what Congress intended. As Judge Posner explained,

Disability is broadly defined. It includes not only “a

physical or mental impairment that substantially

limits one or more of the major life activities of [the

disabled] individual,” but also the state of ‘being

regarded as having such an impairment.’ The latter

definition, although at first glance peculiar, actually

makes a better fit with the elaborate preamble to the

Act, in which people who have physical or mental

impairments are compared to victims of racial and

other invidious discrimination. Many such impair-

ments are not in fact disabling but are believed to

be so, and the people having them may be denied

20

employment or otherwise shunned as a conse-

quence. Such people, objectively capable of per-

forming as well as the unimpaired, are analogous to

capable workers discriminated against because of

their skin color or some other vocationally irrele-

vant characteristic.

Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538,

541 (7th Cir. 1995). It is necessary to provide an analytical

framework for enforcing the “regarded as” prong which gives

effect to Congress’ purpose.

B. The Proper Analytical Framework.

It is useful to remember that the definition of disability is

generic to the ADA, not attached to the specific provisions of

any one Title. Therefore, it is necessary to develop an analyti-

cal framework that will work for all the Titles of the statute. It

is helpful to first look at Title III, which covers public

accommodations, because in the employment context the

analysis often gets muddled and confused by issues related to

qualifications for the job.

Under Title III, if a bakery refused service to an individ-

ual with facial scars, the bakery would be regarding the

individual as disabled. It would not matter if there were other

bakeries that would serve the person, or whether the baker

thought that eating bakery goods was a major life activity.

The prejudice of the baker is the limitation the third prong is

meant to address. If the individual can establish that the

bakery refused to serve the individual because of his facial

scars, that would be sufficient to establish a prima facie case

of discrimination under the third prong.*© Cf. House Report

(111) at 30. (“For example, sc. *re burn victims often face

discrimination in employment ana participation in community

3© The Department of Justice, in its section-by-section analysis to its

regulations implementing Title II], adopts the view that a rejection based

on disability by a public accommodation invokes the third prong of the

definition of disability. The Department of Justice states:

SE A A

eG Re a =

21

which results in substantial limitation of major life activ-

ities.”’)

The question raised by Sutton, Murphy, and Kirkingburg,

is how the third prong analysis should work in a Title I case.

The legislative history indicates that when an applicant or

employee is rejected from a job because of the individual’s

physical or mental impairment, there is at least a factual

question as to whether the employer regarded the individual

as being substantially limited in a major life activity, includ-

ing working. The Senate Report gives as an example of

individuals covered by the third prong “people who are

rejected for a particular job for which they apply because of

findings of a back abnormality on an x-ray.”%’

The Judiciary Report confronts the issue directly, stating:

Thus, a person who is rejected from a job because

of myths, fears, and stereotypes associated 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 con-

sidered a disability under the first or second part of

the definition.**

To underscore Congress’ broad interpretation of cover-

age, the Judiciary Report states:

It is not necessary for the covered entity to articu-

late one of these concerns. In the employment con-

text, if a person is disqualified on a basis of an

actual or perceived physical or mental condition,

and the employer can articulate no legitimate job-

related reason for the rejection, a perceived concern

about employing persons with disabilities could be

inferred and the plaintiff qualifies for coverage

under the “regarded as” test.*?

37 Senate Report at 24.

38 House Report (III) at 30.

39 House Report (III) at 30-31.

22

Using this analysis, the EEOC cites concerns related to

productivity, safety, insurance, liability, attendance, cost,

accommodation, accessibility, worker’s compensation costs or

acceptance by co-workers and customers as examples of ste-

reotypes, fears or misconceptions about disabilities.4° The

EEOC concludes that if an employer makes an adverse

employment decision based on beliefs or fears that a person’s

perceived disability will cause problems in any of these areas,

and the employer cannot show a legitimate nondiscriminatory

reason for the action, the individual would be covered under

the third prong of the definition.*!

Too often, however, in the employment context, the

lower courts are granting summary judgment to defendants,

with the rationale that rejection from a “single job” is not

enough to show that the employer regarded the rejected appli-

cant or employee as substantially limited in the major life

activity of working, or in any other major life activity.4? At

40 29 C.FR. pt. 1630, app. §1630.2(1) (1999); EEOC Technical

Assistance Manual at Il-11.

41 Jd

42 Fortunately, some of the circuit courts are beginning to vacate such

dismissals, recognizing that in most instances the issue of whether the

employer regarded the plaintiff to have a disability is a question of fact. See

Johnson v. American Chamber of Commerce Publishers, Inc., 108 F.3d

818, 819-20 (7th Cir. 1997) (leaving issue of whether defendant was

regarded as having disability for lower court on remand); Best v. Shell Oil,

107 F.3d 544, 549 (7th Cir. 1997) (“[A] trier of fact could find that

{defendant} perceived [plaintiff] as having a disability that prevented him

from working”); Harris v. H.W. Contracting Co., 102 F.3d 516, 524 (11th

Cir. 1996) (finding question of fact still exists with respect to “regarded as”

prong); Olson v. General Elec. Astrospace, 101 F.3d 947, 955 (3d Cir.

1996) (“[I}t is clear that a reasonable fact-finder could infer that

[defendant] perceived [plaintiff] to be disabled”); Holihan v. Lucky Stores,

87 F.3d 362, 366-67 (9th Cir. 1996) (holding that lower court erred in

granting judgment as matter of law because the evidence could support

finding that defendant regarded plaintiff as having disability); Katz v. City

Metal Co., 87 F.3d 26, 33-34 (ist Cir. 1996) (finding evidence created

ee A lt

23

least part of the problem appears to stem from a misapplica-

tion of the EEOC’s regulations, which define substantially

limited in the major life activity of working as

“significantly restricted in the ability to perform

either a class of jobs, or a broad range of jobs in

various classes as compared to the average person

having comparable training, skill, 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)(i).

Hence, in a case under the first prong of the definition of

disability, the plaintiff must allege that his/her impairment

actually restricts him/her from performing a “class of jobs.”*

genuine issue of material fact with respect to “regarded as” prong); See

also EEOC v. Joslyn Mfg. Co., No. 95SC 4956, 1996 WL 400037, at *7

(N.D. Ill. July 15, 1996) (“[{I)n order to survive summary judgment, the

[plaintiff] only need raise a genuine issue of facts as to whether [the

plaintiff's] perceived impairment substantially limited his ability to work,

not actually prove as much.”).

43 The “single job” exception has also been interpreted too broadly

by lower courts, to defeat first prong coverage. See Robert L. Burgdorf,

"Substantially Limited” Protection from Disability Discrimination: The

Special Treatment; Model and Misconstructions of the Definition of

Disability, 42 Vill. L. Rev. 409 (1997).

The exclusion-from-one-job-is-not-enough formula has

resulted in, or contributed to, the dismissal of ADA or section

504 of the Rehabilitation Act claims by plaintiffs with, among

others, the following kinds of impairments: replacement of

hips and shoulders (as a result of a vascular necrosis); diabetes;

cancer; laryngectomy (removal of larynx); hemophilia; heart

attack; absence of one eye; degenerative hip disease resulting

in a limp; permanent severe limitations in use of the right arm

and shoulder; various serious back injuries; depression and

paranoia; a six-inch scar on the face resulting in supervisors

calling the employee “scarface; ‘bilateral carpal tunnel

syndrome;’ ” asthma; asbestosis; HIV infection; traumatic

brain injury resulting in vision limitations, memory

deficiencies, problems with verbal fluency, problems

a3

However, under the third prong, a plaintiff is alleging

that he/she can perform the class of jobs represented by the

job in question. Therefore, the plaintiff will not be able to

demonstrate, nor would he or she have any interest in demon-

Strating, that he or she is precluded from the class of jobs

involved. In most cases, the only evidence which will be

available to plaintiff is the rejection by the defendant. It is not

the rejection per se which gives rise to the “regarded as”

claim, but the natural and ordinary implication of such a

rejection. Usually, if an employer rejects an individual from a

job because of the individual’s impairment, it means the

employer thinks the individual’s impairment precludes the

individual from doing the types of tasks the job requires.

Therefore, in most cases, a rejection based on a medical

condition raises, at a minimum, a material issue of fact as to

whether the employer “regarded” the individual as “disabled”

within the meaning of the ADA.

Summary judgment on the definition issue is inappropri-

ate, except in cases where there is no conceivable set of facts

from which a trier of fact could conclude that plaintiff was

“regarded as” substantially limited in working or in any other

major life activity. Self serving statements by a defendant that

it did not regard the plaintiff as so limited cannot be the basis

of summary judgment when the natural and predictable impli-

cation of the adverse treatment is otherwise.

abstracting and motor deficits; and stroke resulting in the loss

of use of the left hand, arm and leg. (footnotes omitted)

For case cites see id. at 539-541 nn.643-661.

25

C. Analytical Problems with the Lower Court Deci-

sions, as Illustrated by the Tenth Circuit Opin-

ions.

The mistakes of the lower courts are illustrated by the

Tenth Circuit opinion in Sutton,* where the court:

1. Required, in essence, that plaintiffs be actually

substantially limited (lst prong) in order to

establish a “regarded as” case; and

2. Required that the plaintiffs demonstrate that the

employer regarded them to be disqualified from

similar jobs by other employers.

Both of these requirements, often combined, constitute

insurmountable obstacles for plaintiffs.4° Since an employer

is only concerned with the particular job it is offering, it is

not likely to be thinking about other jobs the impaired indi-

vidual could or could not obtain and certainly is not thinking

about how the plaintiff's impairment affects other activities

besides working. The only way to give meaning to the

“regarded as” prong is to interpret the rejection from the job

in question to signify the employer's view of the plaintiff's

ability to perform the class of jobs to which the job in

question belongs.

Yet, employers are being allowed to defend suits under

the ADA by proving that other employers do not utilize the

same discriminatory criteria as that employed by the defen-

dant and that, therefore, the discriminatory criteria does not

constitute a substantial barrier to employment.*© In other

* The Sutton decision provides a more thorough analysis of the

“regarded as” prong than Murphy.

* See e.g., Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir.

1992) (rejecting plaintiff's “regarded as” claim because he was not

substantially limited in major life activity).

4© See Burgdorf at 441, 456, n.234; see e.g., Bridges v. City of Bossier.

92 F.3d 329 (Sth Cir. 1996). (In a case involving rejection as a fire fighter

because of hemophilia, where the court refused to consider the policy of

the city to require all EMT and paramedic positions to meet firefighting

26

words, the more arbitrary and prejudicial the physical or

mental criteria, the more likely the employer will be able to

escape review under the ADA.*’ This argument would be

untenable in other areas of civil rights law, where proof of

other employers’ nondiscriminatory job criteria would be

used as evidence of the defendant's discrimination.

The Tenth Circuit opinion in Sutton illustrates how both

the infusing of first prong analysis in “regarded as” cases and

requiring a plaintiff to demonstrate the employer's perception

beyond the natural implications of the rejection itself under-

mines the “regarded as” prong. In determining whether

United “regarded” plaintiffs as unable to do a class of jobs,

the court immediately shifted its inquiry to the first prong

analysis of whether plaintiffs’ impairment actually substan-

tially limited their employment in a “class of jobs”. Sutton at

903-904. The Court then concluded that if the plaintiffs are

not substantially limited in working in actuality, they also

cannot be found to have been regarded as substantially lim-

ited. This judicial construction effectively repeals the third

prong of the definition.

The court also improperly applies the “single job” excep-

tion in the EEOC regulations defining “substantially limited

in working” to the “regarded as” analysis. Although the Tenth

Circuit accepts plaintiffs’ allegations that United rejected

standards in consideration of whether plaintiff was excluded from a “class

of jobs” because there was no proof that other employers did the same

thing.)

47 The case which gave rise to the “class of jobs” analysis recognized

that in “evaluating whether there 1s a substantial handicap to employment,

it must be assumed that all employers offering the same job or similar jobs

would use the same requirement or screening process,” E.E. Black v.

Marshall, 497 F. Supp. 1088, 1100 (D. Hawaii 1980). The court in EE.

Black underscored the importance of a presumption of common usage of

the discriminatory criteria. Jd. Otherwise, according to the court, an

employer using the “aberrational type of job qualification . . . would be

rewarded if his reason for rejecting the applicant were ridiculous enough.”

Id.

27

them from all pilot jobs at United the court concludes that this

rejection is not sufficient to demonstrate rejection from a

“class of jobs,” which would include not only global airlines,

such as United, but all other types of carriers as well

(national, commuter, regional, cargo/courier airlines). How-

ever, the court gives absolutely no indication as to how

plaintiffs are to demonstrate whether or not United regarded

them as able or unable to work for the other types of airlines.

The court simply states that it cannot adopt a “reasoning

[that] would imply that anyone who failed to obtain a single

job because of a single requirement of employment could

become a “disabled individual . . . This reading would stand

the Act on its head.” Sutton at 905.

As the Sixth Circuit stated in Taylor v. United States

Postal Service, 946 F.2d 1214, 1218 (6th Cir. 1991),

... @ per se rule that never permitted an unsuccess-

ful job applicant to prove he was perceived as being

handicapped by pointing to the fact that he did not

possess a so-called job requirement due to physical

impairment would likewise stand the Act on its

head. How else would a person who, for example,

had a cosmetic disfigurement ever prove that he was

handicapped under the Act except by pointing to the

fact that an employer did not hire him for that

reason?

In most cases, the plaintiff will only know that the

employer rejected him or her because of an impairment.

Absent contrary evidence, the rejection from the job in ques-

tion must be viewed as a perception that the plaintiff is unable

to perform the class of jobs of which the particular job is a

part. For example, if an employer rejects an applicant for a

teaching job because of an impairment, the applicant is

regarded as unable to teach. Plaintiffs’ allegation that there is

nothing unique about the United pilot jobs should suffice to

establish that United regarded plaintiffs (or all those with

28

uncorrected vision of 20/100 or worse) as unable to perform

the class of jobs of piloting.**

Moreover, since plaintiffs were rejected because of their

uncorrected vision, United cannot claim that it did not regard

them as substantially limited in seeing because they can wear

glasses. It would be unfair to look at the “regarded as” prong

with mitigating measures that the defendant refused to con-

sider in the rejection.

The Tenth Circuit’s results-oriented approach car per-

haps be explained by the courts’ fundamental misunderstand-

ing of the significance of finding that plaintiffs were

“regarded as” disabled under the ADA. Immediately after

rejecting plaintiffs’ “regarded as” claim, the court cited Kelly

v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996) for the

proposition that accepting plaintiffs’ claim would mean that

“anyone could establish a prima facie discrimination case

merely by demonstrating some adverse action against the

individual... . ”

The fundamental misunderstanding revealed by this

quote is the assumption that establishing coverage is suffi-

cient to establish a prima facie case. As stated earlier, the

coverage question is just the first prerequisite of a prima facie

ADA case.*? The plaintiff must also show that he or she is

qualified to perform the essential functions of the job and that

48 The Tenth Circuit references the EEOC’s example that “an

individual who cannot be a commercial pilot because of a minor vision

impairment, but who can be a commercial airline co-pilot or a pilot for a

courier service, would not be substantially limited in the major life activity

of working,” 29 C.F.R. §1630, app. §1630.2(j) para. 12. This example is

used to explain whether, under the first prong of the definition of disability,

an individual is actually substantially limited in working. Again, as

explained above, in a “regarded as” case the allegation that United rejected

plaintiffs from all pilot positions with United must be interpreted to at least

raise a factual issue that United regarded plaintiffs as unqualified for pilot

jobs in general.

* See infra.

29

the rejection was based on disability. As the Supreme Court

warned in Arline, 480 U.S. at 285, by excluding an impaired

individual from coverage, the individual loses the opportunity

to have the condition evaluated in light of medical evidence,

thus making him or her “vulnerable to discrimination on the

basis of mythology — precisely the type of injury Congress

sought to prevent.”

Another insight into the Tenth Circuit's restrictive inter-

pretation of coverage is revealed in the Court's statement that

“[w]e refuse to construe the . . . The Act as a handout to those

who are in fact capable of working in substantially similar

jobs.” Sutton at 906. Citing Hileman v. City of Dallas, 115

F.3d 352, 354 (Sth Cir. 1997). Coverage under the ADA is not

a hand-out. The fact that an individual might be able to find

work elsewhere should not shield an employer from having its

exclusionary medical criteria evaluated in light of objective

medical evidence. As was emphasized time and time again in

the legislative history of the ADA, “[b]y including the phrase

‘qualified individual with a disability’ the Committee intends

to reaffirm that this legislation does not undermine an

employer's ability to choose and maintain qualified

workers. .. . ” Senate Report at 26. “An employer may still

devise physical and other job criteria and tests for a job so

long as the criteria and tests are job related and consistent

with business necessity.” /d. at 27.

ADA plaintiffs want to work; they want to be tax-paying,

contributing members of our society. Courts are accustomed

to the term “disability” meaning “inability” in cases for bene-

fits and tort awards. The ADA provides a new framework for

the term disability. The third prong of the definition, in

particular, is causing confusion because it uses the term

“disabled” to describe people whose biggest limitation is the

attitudes of others. Amici, current and former members of

Congress, look to this Court to set forth the proper analytical

framework for the lower courts, to give effect to Congres-

sional intent to eliminate attitudinal barriers which limit the

30

opportunities of millions of Americans with a wide range of

medical conditions.

CONCLUSION

For the foregoing reasons, the judgments of the Court of

Appeals for the Tenth Circuit should be reversed and the

judgment of the Court of Appeals for the Ninth Circuit

affirmed.

Dated: February 19, 1999

Respectfully submitted,

ARLENE MAYERSON

Disability Rights Education &

Defense Fund

2212 Sixth Street

Berkeley, California 94710

Telephone: (510) 644-2555