Amicus Curiae Brief — Murphy v. United Parcel Service, Inc.

— oo

upeme Court, U.S.

FILED

es 22 1999

No. 97-1992

a

In the Supreme Court of the United States

OCTOBER TERM, 1998

VAUGHN L. MURPHY, PETITIONER

UNITED PARCEL SERVICE, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AND THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE

SUPPORTING PETITIONER

C. GREGORY STEWART

General Counsel

PHILIP B. SKLOVER

Associate Genera! Counsel

CAROLYN L. WHEELER

Assistant General Counsel

PAULA R. BRUNER

Attorney

Equal Employment

Opportunity Commission

Washington, D.C. 20507

SETH P. WAXMAN

Solicitor General

Counsel of Record

BILL LANN LEE

Acting Assistant Attorney

General

BARBARA D. UNDERWOOD

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

— PEELE! — ——— E ä

QUESTIONS PRESENTED

1. Whether the determination if petitioner’s se-

vere, Stage IV hypertension is a “disability” under the

Americans with Disabilities Act, 42 U.S.C. 12102(2)(A),

should be made without consideration of mitigating

measures such as medication.

2. Whether there are genuine issues of disputed,

material fact concerning whether respondent “re-

garded” petitioner as “disabled” when respondent fired

him because of his high blood pressure.

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument

I. Mitigating measures should not be considered

in determining whether a person has a “dis-

ability” under the Americans with Disabilities

Act

our

A. Congress intended that the existence of

an actual disability should be assessed

without taking into account mitigating

measures 9

B. The agencies charged with enforcing the

ADA have determined that mitigating

measures should not be taken into account,

and that determination is entitled to

deference 16

C. The court of appeals erred in ruling that

petitioner is not disabled 20

II. Respondent could be found to have regarded

petitioner as disabled because it viewed him

as substantially limited in the major life

activity of working 21

Conclusion 30

TABLE OF AUTHORITIES

Cases:

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

854 (Ist Cir. 1998) 11,13

Auer v. Robbins, 519 U.S. 452 (1997) 18

Bartlett v. New York State Bd. of Law Examiners,

156 F.3d 321 (2d Cir. 1998) 12

(IID)

IV

Cases—Continued:

Bowles v. Seminole Rock & Sand Co., 325 US.

410 (1945)

Bragdon v. Abbott, 524 U.S. 624 (1998)

Brotherhood of Locomotive Engers v. Atchison,

Topeka & Santa Fe R.R., 516 U.S. 152 (1996)

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

Council, Inc., 467 U.S. 837 (1984)

Daugherty v. City of El Paso, 56 F. 3d 695 (5th

Cir. 1995), cert. denied, 516 U.S. 1172 (1996) ..............

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

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

17, 18, 19

jesese 29

12

EEOC v. Arabian Am. Oil Co., 499 U.S. 244

(1991)

EEOC v. Commercial Office Prods. Co., 486 U.S.

107 (1988)

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

(1980)

Harris v. H&M Contracting Co., 102 F.3d 516

(11th Cir. 1996)

Longoria v. Harris, 554 F. Supp. 102 (S. D. Tex.

1982)

Matczak v. Frankford Candy & Chocolate Co.,

136 F gd 933 (3d Cir. 1997)

17

National Muffler Dealers Ass'n v. United States,

440 U.S. 472 (1979)

Regions Hosp. v. Shalala, 118 S. Ct. 909 (1998

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

1987)

— 17

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

Strathie v. Department of Transp., 716 F 2d 227

(3d Cir. 1983)

Sutton v. United Air Lines, Inc., 130 F.3d 898

(10th Cir. 1997), cert. granted, No. 97-1943 (Jan. 8,

1999)

4,5, 20

Cases—Continued: Page

Thomas Jefferson Univ. v. Shalala, 512 U.S.

504 (1994) 18

United States v. Moore, 95 U.S. 760 (1877) 20

United States v. Sheffield Bd. of Comm vs,

435 U.S. 110 (1978) 20

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

464 (5th Cir. 1996) 17

Zuber v. Allen, 396 U.S. 168 (1969) 20

Statutes, regulations and rule:

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

12101 et seq. passim

42 U.S.C. 12102(2) 3

42 U.S.C. 12102(2)(A) 8, 21

42 U.S.C. 121020) 21

42 U.S.C. 12111(8) 8, 14, 27

42 U.S.C. 12112(a) 7-8, 15, 26, 29

42 U.S.C. 121 1b. NA) 13, 14

42 U.S.C. 121184 29

42 U.S.C. 12113(b) 15, 28, 29

42 U.S.C. 12116 17

42 U.S.C. 12149 19

42 U.S.C. 12164 19

Rehabilitation Act § 503(b), 29 U.S.C. 793(b) 12

28 C. F. R.:

Pt. 35 App. A § 35.104 19

Pt. 36 App. A § 36.104 19

29 C. F. R. Pt. 1630:

Section 1630. 20h (01) 90

Section 1630.2 20

Section 1630.2(j)(1) 21-22

Section 1630.2(j)(1 (ii) 20-21

Section 1630.2(j2) 22

Section 1630.2(j)(3) 4

Section 1630.2(j)(3)(i) 22, 25

Section 1630.15(e) 15, 29

§ 1630.2(r)

41 C. F. R. Pt. 60-741 (1990):

Section 60-741.2

App. A

49 C. F. R.

Pt. 37:

Section 37.3

Pt. 390:

Section 390.3(a)

Pt. 391:

Section 391.41(b)(6)

Section 391.41(b\(7)

Section 391.43(f)

Fed. R. Civ. P. 56(c)

Miscellaneous:

134 Cong. Rec.:

p. H 2894 (daily ed. May 3, 1988)

p. 85108 (daily ed. Apr. 28, 1988)

135 Cong. Rec. (daily ed. Sept. 7, 1989):

p. 84985

p. 84987

p. $10,711

136 Cong. Rec. H2428 (daily ed. May 17, 1990)

EEOC, A Technical Assistance Manual on the

Employment Provisions (Title I of the Americans

with Disabilities Act (1992)

2 EEOC, Compliance Manual (1995)

41 Fed. Reg. 16,149 (1976)

42 Fed. Reg. 22,685 (1977)

16, 19

VII

Miscellaneous Continued: Page

56 Fed. Reg. (1991):

pp. 35,727-35,728 18

p. 45,584 19

p. 45,585 19

Medical Advisory Criteria for Evaluation Under 49

CFR Part 391.41 (last modified Apr. 8, 1998) http://

/medical.htm

mcregis.fhwa.dot.gov. 23-24

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

pt. 2 6, 10, 11, 12

pt. 3 6, 10

S. Rep. No. 116, 101st Cong., Ist Sess. (1989) 6, 9,

10, 11, 12

US. Dep't of Justice:

The Americans with Disabilities Act: Title II

Technical Assistance Manual (1992) 19

The Americans with Disabilities Act: Title III

Technical Assistance Manual (1992) 19

In the Supreme Court of the United States

OCTOBER TERM, 1998

No. 97-1992

VAUGHN L. MURPHY, PETITIONER

2.

UNITED PARCEL SERVICE, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AND THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE

SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the definition of “disability” in the

Americans with Disabilities Act of 1990 (ADA), 42

U.S.C. 12101 et seg. Congress delegated to the Equal

Employment Opportunity Commission (EEOC) and

Department of Justice authority to promulgate regula-

tions and to enforce the provisions of the ADA. Both

agencies have issued extensive regulations and inter-

pretive guidance concerning the definition of the term

“disability.” The EEOC participated as amicus curiae

in this case in the court of appeals. In response to the

Court’s invitation, the United States and the EEOC

filed a brief as amicus curiae at the petition stage in

this case.

(1)

2

STATEMENT

Petitioner brought this case under Title I of the

Americans with Disabilities Act of 1990 (ADA), 42

U.S.C. 12101 et seq., after he was dismissed from his job

because he had high blood pressure. The district court

granted summary judgment to respondent on peti-

tioner’s claim under the ADA. The court of appeals

affirmed.

1. Petitioner has had high blood pressure (hyperten-

sion) since he was ten years old. For 22 years, peti-

tioner worked as a mechanic. Pet. App. 13a. Despite

the fact that his blood pressure was very high (approxi-

mately 250/160, see id. at 9a), it was controlled by

medication. His own physician and respondent’s physi-

cian both testified that, with medication, petitioner’s

“hypertension does not significantly restrict his activi-

ties and that in general he can function normally and

can engage in activities that other persons normally

do.” Id. at 13a.

In August 1994, respondent hired petitioner as a

mechanic, a position that required him to drive com-

mercial motor vehicles on “road tests” and “road calls,”

and which therefore required satisfaction of Depart-

ment of Transportation requirements. Pet. App. 13a-

14a. Among those requirements is that the driver of a

commercial motor vehicle in interstate commerce h las

no current clinical diagnosis of high blood pressure

likely to interfere with his/her ability to operate a com-

mercial motor vehicle safely.“ 49 C. F. R. 391.41(b)(7).

The district court construed a subsequent DOT publi-

cation to provide that “in order to be physically quali-

fied to drive a commercial motor vehicle * * *, an

individual must maintain blood pressure less than or

equal to 160/90.” Pet. App. 16a. See note 10, infra.

3

At the time he was hired, petitioner’s blood pressure

was measured as 186/124. Pet. App. 16a. In September

1994, when respondent realized that petitioner’s blood

pressure exceeded 160/90, petitioner was retested; his

blood pressure was approximately 160/104. See Pet. 2.

Petitioner’s treating physician “testified that [peti-

tioner] is unable to use medication to reduce his blood

pressure below 160/100 without suffering severe side

effects.” Pet. App. 16a. On October 5, 1994, respondent

fired petitioner. Jd. at 17a.

2. The district court granted summary judgment to

respondent, ruling that petitioner had failed to show

that there were disputed issues of material fact as to

whether he had a “disability.” Under the ADA:

The term “disability” means, with respect to an

individual —

(A) a physical or mental impairment that sub-

stantially limits one or more of the major life

activities of such individual;

(B) arecord of such an impairment; or

(C) being regarded as having such an impair-

ment.

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

The district court held that, for purposes of deter-

mining whether petitioner had shown that he had a

disability, his “impairment should be evaluated in its

medicated state.” Pet. App. 29a. The court noted that

“(t]he only limitation specifically set by [petitioner’s]

treating physician” was a restriction on repetitive lift-

ing of items weighing 200 pounds or more. Id. at 31a;

see also id. at 13a (“[Petitioner’s] own physician and

UPS’ medical expert each testified that [petitioner’s]

hypertension does not significantly restrict his activi-

ties and that in general he can function normally and

4

can engage in activities that other persons normally

do.”). Analyzing whether petitioner was substantially

limited in his major life activity of working, the court

stated that such a limitation “is not of such a nature as

to significantly restrict him in his ability to perform

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

classes as compared to the average person having com-

parable training, skills and abilities,” and that therefore

petitioner’s “high blood pressure and its concomitant

effects do not constitute a disability under the ADA.”

Id. at 31a."

Addressing the “regarded as” prong of the statutory

definition of “disability,” the district court concluded

that “[respondent] did not regard [petitioner] as dis-

abled, only that he was not certifiable under DOT

regulations.” Pet. App. 32a. The court added that

petitioner was not qualified for the job, id. at 33a-35a,

that in any event respondent’s purported compliance

with DOT regulations was a complete defense to

petitioner’s ADA claim, id. at 35a-37a, and that any

accommodation by respondent to petitioner’s condition

“would have been an undue hardship on [respondent],”

id. at 37a.

3. The court of appeals affirmed in an unpublished

opinion. Pet. App. la-6a. The court noted that peti-

tioner’s own doctor had testified that “when his high

blood pressure is medicated, he ‘functions normally

doing everyday activity that an everyday person

does.“ Id. at 4a. Relying on its holding in Sutton v.

United Air Lines, Inc., 130 F.3d 893, 902 (1997), cert.

granted, No. 97-1943 (Jan. 8, 1999), that the “substantial

| Cf. 29 C. F. R. 1630.2(jX8) (“With respect to the major life

activity of working[,] [t]he term substantially limits means

significantly restricted in the ability to perform either a class of

jobs or a broad range of jobs in various classes.”).

5

limitation” inquiry should assess the individual after

mitigating or corrective measures are taken, the court

held that petitioner’s high blood pressure is therefore

not a disability. bid.

The court of appeals also affirmed the district court’s

ruling that respondent did not regard petitioner as

having an impairment that limits a major life activity.

The court stated that “[respondent] did not base its

termination of [petitioner] on an unsubstantiated fear

that he would suffer a heart attack or stroke,” but

dismissed petitioner “because his blood pressure ex-

ceeded the DOT’s requirements for drivers of com-

mercial vehicles.” Pet. App. 5a. In the court’s view, it

followed that respondent “in its termination decision,

did not regard [petitioner] as having an impairment

that substantially limits a major life activity.” Ibid.

The court expressly declined to reach the questions

whether petitioner was otherwise “qualified” for the

job under the ADA, ibid., and whether the DOT

regulations would provide a defense to petitioner’s

ADA claim. Id. at 5a-6a.

4. On January 8, 1999, this Court granted review

limited to the first and fourth questions presented in

the petition for certiorari.

SUMMARY OF ARGUMENT

I. The court of appeals’ conclusion that petitioner

had not shown an actual disability was wrong. There

appears to be no dispute that petitioner has hyperten-

sion so severe that, if left unmedicated, it substantially

limits all or most of his major life activities. Therefore,

he has an actual disability. The fact that petitioner

takes medication to relieve his condition may be rele-

vant to a number of inquiries under the ADA, such as

whether a requested accommodation by the employer is

reasonable, whether the medication is sufficiently effec-

6

tive to render him qualified to perform his job, whether

petitioner can satisfy federal safety standards, and

whether he poses a direct threat to the health or safety

of others. But the fact that he takes mitigating mea-

sures is of no relevance in the threshold inquiry as to

whether he is disabled.

Although the ADA does not in terms address

whether mitigating measures are to be taken into

account in assessing the existence of a disability, Con-

gress’s intent on the question is clear. The relevant

committee reports each stated with unusual clarity that

“{wJhether a person has a disability should be assessed

without regard to the availability of mitigating mea-

sures, such as reasonable accommodations or auxiliary

aids.” S. Rep. No. 116, 101st Cong., Ist Sess. 23 (1989);

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 52

(1990); see also id., pt. 3, at 28. Moreover, assessing the

existence of a disability without regard to mitigating

measures is most consistent with the ADA’s basic pur-

pose to eliminate the exclusion of individuals from the

workplace because of outdated stereotypes and myths

about those individuals’ abilities.

Assessing the existence of a disability without regard

to mitigating measures is also most consonant with the

structure of the statute, which, as noted above,

provides for addressing issues arising out of the use of

mitigating measures at stages of the analysis beyond

the threshold determination of whether a disability

exists. And it would inject uncertainty and instability

into the system, because individuals could gain and lose

status as “disabled” depending on the changing effec-

tiveness of their regimen of mitigating measures and

their changing decisions regarding whether those mea-

sures are warranted in light of their unwanted side

effects.

7

The agencies entrusted with issuing regulations to

carry out the ADA have consistently taken the position

that the existence of a disability should be assessed

without regard to mitigating measures. The EEOC has

taken that position in interpretive guidelines that

were subject to notice and comment at the same time

as—and together with—the formal ADA regulations.

Because the EEOC’s guidelines state its interpretation

of its own ADA regulations, they are entitled to con-

trolling weight, and they therefore establish that

mitigating measures should not be taken into account in

assessing the existence of a disability.

II. The court of appeals also erred in holding that

petitioner was not “regarded as” disabled under the

third prong of the statutory definition of “disability.”

Respondent asserted that it dismissed petitioner be-

cause petitioner’s blood pressure was too high to satisfy

a federal requirement for driving a commercial motor

vehicle in interstate commerce. If respondent were

correct, that would establish that petitioner, because

of his impairment (hypertension), was substantially

limited in the major life activity of working, i.e., he was

severely restricted in a broad class of jobs for which his

training and skills otherwise qualified him. At this

threshold stage of the inquiry, it would be of no signifi-

cance whether or not respondent bore any animus

toward petitioner and whether or not respondent were

correct in its view that petitioner could not satisfy the

federal requirement. So long as respondent regarded

petitioner as substantially limited in the major life

activity of working, petitioner satisfied the statutory

definition of being “regarded as” disabled.

To accept the court of appeals’ theory would permit

employers to circumvent the ADA’s “qualification” in-

quiry in any “regarded as” case. The ADA prohibits

discrimination only against a “qualified individual with

8

a disability.” 42 U.S.C. 12112(a) (emphasis added).

Accordingly, if respondent indeed regarded petitioner

as unqualified under DOT medical standards, that may

be relevant to whether petitioner is “qualified” for the

job, though issues would remain regarding whether

respondent’s views of petitioner were correct and

whether driving a truck is an “essential function” of

the job, see 42 U.S.C. 12111(8). But respondent’s

views concerning petitioner’s qualifications do not

establish—or even support—respondent’s contention

that it did not regard petitioner as “disabled.”

ARGUMENT

I. MITIGATING MEASURES SHOULD NOT BE

CONSIDERED IN DETERMINING WHETHER A

PERSON HAS A “DISABILITY” UNDER THE

AMERICANS WITH DISABILITIES ACT

The term “disability” within the meaning of the

Americans with Disabilities Act is defined in terms of

three separate, alternative criteria. Under the first

criterion—actual disability—a disability is “a physical

or mental impairment that substantially limits one or

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

U.S.C. 12102(2)(A). Parsing that definition in Bragdon

v. Abbott, 118 S. Ct. 2196 (1998), this Court explained

that its application requires first the identification of

the relevant impairment(s) and major life activities and

then, “tying the two statutory phrases together, we ask

whether the impairment substantially limited the major

life activity.” Id. at 2202.

Petitioner’s high blood pressure is a “physical * * *

impairment.” As this Court explained in Bragdon,

Congress’s “repetition” in the ADA of that “well-estab-

lished term carries the implication that Congress

intended the term to be construed in accordance with

pre-existing regulatory interpretations.” 118 S. Ct. at

9

2202. Under those interpretations, codified without

relevant change in the EEOC’s regulations implement-

ing the ADA, see 29 C.F.R. 1630.2(h)(1), a “physical

* * * impairment” is Jalny physiological disorder, or

condition * * * affecting” a number of named body

systems, including the cardiovascular system. Ibid.

Petitioner’s hypertension is a “physiological disorder”

and it affects his cardiovascular system. Accordingly,

he has a “physical impairment” within the meaning of

the Act.

In determining whether petitioner is disabled within

the meaning of the “actual disability” prong of the

ADA, the remaining question is whether petitioner’s

impairment “substantially limits” any of petitioner’s

major life activities. The answer to that question turns

on whether petitioner’s impairment is viewed in its

mitigated or unmitigated state.

A. Congress Intended That The Existence Of An Actual

Disability Should Be Assessed Without Taking Into

Account Mitigating Measures

The text of the ADA itself does not define “sub-

stantially limits” and therefore does not answer the

question whether the inquiry into substantial limitation

of a major life activity is to be undertaken with or

without taking into account mitigating measures. The

legislative history of the statute and its structure, how-

ever, indicate that Congress intended that the exis-

tence of an actual disability is to be analyzed without

regard to mitige ung or ameliorative measures.

1. Both the Senate and House Committee Reports

on the ADA state in plain and direct terms that

“[wJhether a person has a disability should be assessed

without regard to the availability of mitigating mea-

sures, such as reasonable accommodations or auxiliary

aids.” S. Rep. No. 116, 101st Cong., Ist Sess. 23 (1989)

10

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

pt. 2, at 52 (1990) (House Labor Rep.): see also id., pt. 3,

at 28 (1990) (House Judiciary Rep.) (“The impairment

should be assessed without considering whether miti-

gating measures, such as auxiliary aids or reasonable

accommodations, would result in a less-than-substantial

limitation.”). That expression of Congress’s under-

standing, repeated in the three reJevant committee

reports on the ADA, is unusually ele Aid unequivocal,

and it makes Congress’s intent unmistakable.

The House Reports on the ADA reinforced the point

by reciting specific examples of individuals who are

disabled notwithstanding their use of mitigating mea-

sures that control their impairment:

[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 epilepsy or diabetes, which substantially

limit a major life activity are covered under the first

prong of the definition of disability, even if the

effects of the impairment are controlled by

medication.

House Labor Rep. at 52; accord House Judiciary Rep.

at 28-29."

2 In discussing the third (“regarded as”) prong of the disability

definition, the Senate Report also states that an

important goal of the third prong of the [disability] definition is

to ensure that persons with medical conditions that are under

control, and that therefore do not currently limit major life

activities, are not discriminated against on the basis of their

medical conditions. For example, individuals with controlled

diabetes or epilepsy are often denied jobs for which they are

qualified. Such denials are the result of negative attitudes and

‘inf ;

11

2. This specific evidence of congressional intent on

the question presented in this case is consistent with

the overall structure and purpose of the statute. See

Brotherhood of Locomotive Engers v. Atchison, Topeka

& Santa Fe R. R., 516 U.S. 152, 157 (1996) ([The statu-

tory classification must be understood in accord with

that objective.”). Congress determined that “not work-

ing is perhaps the truest definition of what it means to

be disabled in America.” Senate Rep. at 9; House

Labor Rep. at 32.“ In defining the scope of those

covered by the ADA, Congress clearly intended to

include those who could function in the workplace, but

were excluded by the “discrimination by employers

[that] remains an inexcusable barrier to increased

employment of disabled people.” Senate Rep. at 9;

House Labor Rep. at 33; see also id. at 43-46. To

read the statute to exclude from its protections indivi-

duals who have mitigated their impairments (through

either assistive devices or medicines, or self-adapta-

Senate Rep. at 24. An individual may fall within more than one of

the three prongs of the Act’s definition of disability, and some

impairments may present borderline cases with respect to one

prong but not another. Accordingly, the Senate Committee’s

comment that the “regarded as” prong “ensure[{s]” protection of an

individual with “controlled diabetes or epilepsy” under the Act is

not inconsistent with the clear and unequivocal statements in the

Senate Report and the two House Reports that such individuals

would be covered under the “actual disability” prong as well. See

Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 860 (Ist Cir.

1998). |

See also 136 Cong. Rec. H2428 (daily ed. May 17, 1990) (Rep.

Owens); 135 Cong. Rec. $10,711 (daily ed. Sept. 7, 1989) (Sen.

Harkin); id. at $4985, S4987 (daily ed. May 9, 1989) (Sen. Harkin);

134 Cong. Rec. H2894 (daily ed. May 3, 1988) (Rep. Owens); id. at

$5108 (daily ed. Apr. 28, 1988) (Sen. Weicker).

12

tions*) would negate one of the “critical goal{s] of this

legislation—to allow individuals with disabilities to be

part of the economic mainstream of our society.” Senate

Rep. at 10; House Labor Rep. at 34.°

See Bartlett v. New York State Bd. of Law Examiners, 156

F.3d 321, 329 (2d Cir. 1998); Doane v. City of Omaha, 115 F.3d 624,

627-628 (8th Cir. 1997), cert. denied, 522 U.S. 1048 (1998).

In Bragdon, this Court relied in part on the consistent

judicial precedent under the Rehabilitation Act to construe the

ADA. See 118 S. Ct. at 2208. Although no court squarely ad-

dressed the mitigating measures issue under the Rehabilitation

Act, courts routinely treated persons who had mitigated the

effects of their impairment as protected by the statute. See, ¢.g.,

Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987) (“Reynolds’s

epilepsy substantially limits her ability to work. Even though

medication controls her seizures, federal and state regulations and

policies restrict the types of jobs available to her.”); Strathie v.

Department of Transp., 716 F.2d 227, 230 (3d Cir. 1983) (“un-

disputed” that applicant whose hearing aid corrected for hearing

impairment “is a handicapped person”); Longoria v. Harris, 554 F.

Supp. 102, 103-104 (S.D. Tex. 1982) (individual with right leg

amputated below the knee who “was in no way restricted in

mobility by his artificial leg” was handicapped individual). The

Rehabilitation Act regulations are of little additional assistance,

because they do not expressly address the question whether miti-

gating measures are to be taken into account. The Department of

Health, Education, and Welfare declined to define the term

“substantially limits” in the Rehabilitation Act because it did “not

believe that a definition of this term is possible at this time.” 42

Fed. Reg. 22,685 (1977). The Department of Labor, the agency

charged with enforcing federal contractors’ duty to take affirma-

tive action to employ individuals with disabilities under Section

503(b) of the Rehabilitation Act, 29 U.S.C. 793(b), defined “sub-

stantially limited” to mean “likely to experience difficulty in secur-

ing, retaining or advancing in employment because of a handicap.”

41 Fed. Reg. 16,149 (1976); see also 41 C.F.R. 60-741.2 (1990)

(codification of above definition at time ADA was enacted); 41

C. F. R. Pt. 60-741 App. A (1990) (interpretive guidance).

13

3. The structure of the ADA provides strong sup-

port for the proposition that mitigating measures

should not be taken into account in determining the

existence of a disability at the initial stage of the

inquiry. Mitigating measures and reasonable accom-

modations are both types of “adjustments” that may

have to be made on account of a disabling condition.

Congress consistently provided in the ADA that the

effectiveness of such adjustments should be considered

after the initial determination of disability, and not as a

part of that threshold inquiry.

An employer must make “reasonable accommoda-

tions to the known physical or mental limitations of an

otherwise qualified individual with a disability.” 42

U.S.C. 12112(b)(5)(A). Accommodations provided by an

employer are similar to mitigating measures taken by

an employee in that they are both types of adjustments

that make it possible for a disabled person to work.

Under the court of appeals’ construction of the ADA, an

impairment that requires mitigating measures is not a

protected disability, while an impairment that requires

employer accommodations is. “It is hard to imagine

that Congress wished to provide protection to workers

who leave it to their employer to accommodate their

impairments but to deny protection to workers who act

independently to overcome their disabilities, thereby

creating a disincentive to self-help.” Arnold v. United

Parcel Serv., Inc., 136 F.3d 854, 863 n.7 (Ist Cir. 1998).

Indeed, the two types of adjustment are often in-

extricably intertwined. Mitigating measures taken by

an employee will often require some accommodation by

the employer. For example, an employee may develop

a serious and chronic medical condition that can be

effectively controlled only by taking oral medication

several times a day. In many employment situations,

giving the employee a brief break so that the employee

14

could take the medication would be a reasonable accom-

modation. Yet, under the court of appeals’ theory here,

the employer could refuse that accommodation, because

the employee—by virtue of his medication—ceases to

be disabled and is therefore not entitled to the protec-

tions of the ADA.

The example can be generalized. Instead of requiring

reasonable changes to the work environment (as when a

reasonable accommodation is requested), an employee

with a disability for which mitigating measures are

taken simply requests the employer reasonably to

accommodate the employee’s condition by not penaliz-

ing the employee for taking the mitigating measure.

Ironically, however, under the court of appeals’ theory,

in cases in which the mitigating measure is most

effective and imposes the least burden on the employer,

the employer would be most free to refuse it. Thus, an

employee who requires a modification of his work

duties because it is necessary to accommodate his un-

controllable high blood pressure may well be entitled to

it (so long as it does not impose an undue hardship on

the employer, see 42 U.S.C. 12112(b)(5)(A), or alter the

essential functions of the job, see 42 U.S.C. 12111(8); 29

C. F. R. Pt. 1630 App. § 1630.2(0)). And an employee

whose high blood pressure can be somewhat controlled

by medication but who still must observe substantial

limitations on his activities would also be entitled to

reasonable accommodations from the employer. But

the employee who takes medication that effectively

controls the employee’s high blood pressure would not

be entitled to any accommodation from the employer—

not even the simple permission from the employer to

take the medication without losing his job or suffering

other discrimination on the basis of impairment.

The effectiveness of the adjustment, whether in the

form of mitigating measures or reasonable accommoda-

15

tions, is properly addressed by other ADA provisions,

not as part of the threshold determination of liability.

For example, the basic anti-discrimination mandate

under the ADA does not come into play unless the

employee is not only disabled but also “qualified” for

the position in question. 42 U.S.C. 12112(a). If there is

a question whether particular mitigating measures

render the employee able to do the job, the ADA pro-

vides for addressing that issue through the inquiry into

whether the employee is “qualified,” not the initial

inquiry into disability. If there is a question whether

the mitigating measures enable the employee to per-

form the job safely or to be in compliance with federal

safety regulations, the ADA permits the employer to

take adverse action if the employee is “a direct threat

to the health or safety of other individuals in the

workplace.” 42 U.S.C. 12113(b). See also 29 C.F.R.

1630.15(e) (“It may be a defense to a charge of

discrimination * that a challenged action is

required or necessitated by another Federal law or

reguiation.”). The provisions in the Act addressing all

of these “adjustment” questions at later stages of the

analysis suggest that they should not be imported into

the threshold disability determination—as the court of

appeals’ interpretation would require.

4. Finally, the court of appeals’ theory would lead

to a strange instability in the definition of disability.

Determining whether an impairment substantially

limits a major life activity is relatively straightforward,

because it does not require difficult distinctions to be

drawn among impairments based on the extent to

which they can be ameliorated with medications or

assistive devices and the extent to which the medica-

tions or devices impose new limitations or uncertainty

themselves. Indeed, many forms of medication and

other mitigating measures vary in their effectiveness

16

over time and may be accompanied by unwanted side

effects. Under the court of appeals’ theory that miti-

gating measures must be taken into account, an

individual with an impairment that would be disabling

if unmedicated would gradually become disabled if the

medication loses its effectiveness, until new effective

medication is obtained and the cycle would begin again.

Or an individual’s status would alternate between dis-

abled and non-disabled as the individual altered his

assessment of the desirability of taking an available

medication. Although the EEOC has stated that

“temporary, non-chronic impairments of short duration,

with little or no long term or permanent impact,

are usually not disabilities,” 29 C.F.R. Pt. 1630 App.

§ 1630.2(j), that regulation provides little guidance in

addressing the moving target of disability under the

court of appeals’ theory in these kinds of cases. The

result of requiring that mitigating measures should be

taken into account, therefore, would be to inject con-

siderable uncertainty into what should be a relatively

straightforward threshold determination of the exis-

tence of a disability.

B. The Agencies Charged With Enforcing The ADA Have

Determined That Mitigating Measures Should Not Be

Taken Into Account, And That Determination Is

Entitled To Deference

This Court in Bragdon reserved the question

whether the substantiality of a limitation on a major life

activity was to be assessed without regard to available

mitigating measures. 118 S. Ct. at 2206. As the Court

noted (ibid.), however, the EEOC and the Department

of Justice have taken the consistent position that miti-

gating measures are not to be considered in making the

“substantial limitation” determination. That view con-

stitutes the reasonable position of the agencies charged

17

with the enforcement of the statute and should be

followed in the instant case.

In resolving a question regarding the interpretation

of a statute, this Court “ask[s] first whether ‘the intent

of Congress is clear’ as to ‘the precise question at

issue. Regions Hosp. v. Shalala, 118 S. Ct. 909, 915

(1998) (quoting Chevron U.S.A. Inc. v. Natural Re-

sources Defense Council, Inc., 467 U.S. 837, 842 (1984)).

The ADA itself does not directly specify whether the

existence or substantiality of the limitation should be

measured with or without mitigating or ameliorative

measures that the individual could take to improve his

or her functioning.’ Since the ADA “is silent or am-

biguous with respect to the specific issue, the question

for the court is whether the agency’s answer is based

on a permissible construction of the statute.” Id. at 915

(quoting Chevron, 467 U.S. at 843).

Congress required the EEOC to “issue regulations

* * to carry out [Title I of the ADA].“ 42 U.S.C.

12116. “As the agency directed by Congress to issue

implementing regulations, to render technical assis-

tance explaining the responsibilities of covered in-

dividuals and institutions, and to enforce Title [I] in

court, the [EEOC]’s views are entitled to deference.”

Bragdon, 118 S. Ct. at 2209 (statutory citations omitted;

citing Chevron, 467 U.S. at 844). “Such legislative

regulations are given controlling weight unless they are

See Washington v. HCA Health Servs., 152 F.3d 464, 467

(5th Cir. 1998) (“the text of the ADA is not unambiguously clear on

this matter”); Matezał v. Frankford Candy & Chocolate Co., 136

F.3d 933, 937 (3d Cir. 1997) (the ADA itself does not say

whether mitigating measures should be considered”); Harris v. H

& W Contracting Co., 102 F.3d 516, 521 (11th Cir. 1996) (“nothing

in the language of the statute itself * * * rules out” determining

“the existence of a substantial limitation without regard to

mitigating measures”).

18

arbitrary, capricious, or manifestly contrary to the

statute.” Chevron, 467 U.S. at 844." In determining the

meaning of such regulations, similarly, “the ultimate

criterion is the administrative interpretation, which

becomes of controlling weight unless it is plainly

erroneous or inconsistent with the regulation.” Bowles

v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945);

see Auer v. Robbins, 519 U.S. 452, 461 (1997); Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).

Although the EEOC’s regulation regarding the

meaning of the term “substantially limits” does not

itself expressly address the issue of whether mitigating

measures should be taken into account, the EEOC has

consistently interpreted its regulation to mean that

mitigating measures are not to be considered in making

the “substantial limitation” determination. First, to

“respond to comments [to its proposed regulations]

from disability rights groups, which were concerned

that the discussion could be misconstrued to exclude

from ADA coverage individuals with disabilities who

function well because of assistive devices or other

mitigating measures,” the EEOC explained that “the

determination of whether an impairment substantially

limits one or more major life activities is to be made

without regard to the availability of medicines, assistive

devices, or other mitigating measures.” 56 Fed. Reg.

35,727-35,728 (1991). Second, at the same time as it pro-

mulgated the regulations, the EEOC issued an “Inter-

7 Because Congress expressly delegated the authority to issue

binding regulations to the EEOC, these “legislative” regulations

are entitled to deference, as opposed to the mere “power to per-

suade” value sometimes accorded the EEOC’s interpretations of

Title VII published in the Code of Fes eral Regulations. Compare

EEOC v. Arabian Am. Oil Co., 499 U. 244, 257 (1991), with id. at

260 (Scalia, J., concurring), and EEG v. Commercial Office

Prods. Co., 486 U.S. 107, 115 (1988).

19

pretive Guidance” that had been subject to the same

notice and comment as the regulations. Cf. Bragdon,

118 S. Ct. at 2209 (according Chevron deference to,

inter alia, administrative guidance interpreting the

ADA). The Guidance expressly provides that “(t]he

determination of whether an individual is substantially

limited in a major life activity must be made on a case

by case basis, without regard to mitigating measures

such as medicines, or assistive or prosthetic devices.”

29 C.F.R. Pt. 1630 App. § 1630.2(j); accord 2 EEOC,

Compliance Manual § 902.5 (1995); EEOC, A Techni-

cal Assistance Manual on the Employment Provisions

(Title I) of the Americans with Disabilities Act, I1-2

(1992).

The Department of Justice, which is charged with

promulgating regulations under Titles II and III of the

ADA, has reached the same conclusion. See 28 C.F.R.

Pt. 35 App. A § 35.104 (“[tJhe question of whether a

person has a disability should be assessed without

regard to the availability of mitigating measures, such

as reasonable modification or auxiliary aids and serv-

ices.”); 28 C.F.R. Pt. 36 App. A § 36.104, at 583 (same);

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

Act: Title II Technical Assistance Manual, II-2. 4000

(1992) (same); U.S. Dep’t of Justice, The Americans

with Disabilities Act: Title III Technical Assistance

Manual, III- 2.4000 (1992) (same).

Deference to administrative agency views is espe-

cially appropriate here, as the EEOC and Department

of Justice “played a pivotal role in ‘setting [the

statutory] machinery in motion.’” Ford Motor Credit

8 The Department of Transportation, which also has authority

to issue regulations under the ADA, 42 U.S.C. 12149, 12164,

adopted the Department of Justice’s definition of “disability.” See

49 C.F.R. 37.3; 56 Fed. Reg. 45,584, 45,585 (1991).

20

Co. v. Milhollin, 444 U.S. 555, 566 (1980). When

agencies promulgate their regulations virtually con-

temporaneously with a statute’s enactment, utilizing

the insights they derived from their participation in the

legislative process, the rationale for granting deference

is heightened. See National Muffler Dealers Ass’n v.

United States, 440 U.S. 472, 477 (1979); United States v.

Sheffield Bd. of Comm’rs, 435 U.S. 110, 131 (1978);

Zuber v. Allen, 396 U.S. 168, 192 (1969); United States

v. Moore, 95 U.S. 760, 763 (1877).

C. The Court Of Appeals Erred In Ruling That Peti-

tioner Is Not Disabled

In this case, neither the district court nor the court of

appeals assessed petitioner’s impairment in its unmiti-

gated state. Petitioner has asserted that the record

shows that in an unmitigated state his severe hyperten-

sion would damage his kidneys, heart, and eyes, and

would lead to almost immediate hospitalization, Pet. 7;

Pet. C.A. Br. 18-19, which would substantially limit him

in the major life activities of “caring for oneself, per-

forming manual tasks, walking, seeing, * and

working.” 29 C.F.R. 1630.2(i) (defining “major life

activities”); Bragdon, 118 S. Ct. at 2205 (approving

identical regulatory definition of “major life activities”).

If petitioner can prove those facts, he is disabled under

the ADA.

We note, as we explain in our amicus brief (at 11-12)

in Sutton v. United Air Lines, No. 97-1943, that it is not

enough to simply place into evidence that an individual

has a diagnosable disorder or would be worse off

without the mitigating measure. A plaintiff may not

prevail under the “actual disability” prong of the defini-

tion unless the evidence shows that the unmitigated

impairment restricts the “condition, manner or duration

under which an individual can perform a particular

21

major life activity” compared to “the average person.”

29 C. F. R. 1630.2(j)(1)\(ii). If, as petitioner contends, he

would have to be hospitalized, then he would of course

meet that requirement, as he would be substantially

limited in many life activities; unlike the “average

person,” an individual hospitalized for high blood

pressure could not, for example, care for him or herself

or work regularly. Thus, respondent was not entitled

to summary judgment on the ground that petitioner did

not have a “disability” under Section 12102(2)(A).

Il. RESPONDENT COULD BE FOUND TO HAVE

REGARDED PETITIONER AS DISABLED BE-

CAUSE IT VIEWED HIM AS SUBSTANTIALLY

LIMITED IN THE MAJOR LIFE ACTIVITY OF

WORKING

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

the individual has an impairment “that substantially

limits one or more of the major life activities of such

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

individual is “regarded as having such an impairment,”

42 U.S.C. 12102(2)(C). The record in this case demon-

strated that respondent regarded petitioner as having

an impairment (his high blood pressure, whether

viewed in the mitigated or unmitigated state) that sub-

stantially limited petitioner in the major life activity of

working. The Tenth Circuit erred in ruling to the

contrary.

As noted above, the EEOC regulations generally

provide that an individual is substantially limited in a

major life activity if the individual is “[uJnable to per-

form a major life activity that the average person in the

general population can perform” or is “(significantly

restricted as to the condition, manner or duration under

which” the individual can perform the activity as

compared to the “average person in the general popula-

22

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

special guidance, however, for determining the sub-

stantiality of a limitation on the major life activity of

working. In that context, the regulations provide that

At he term substantially limits means significantly re-

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

a broad range of jobs in various classes as compared to

the average person having comparable training, skills

and abilities.” 29 C. F. R. 1630.2(j)(3)@). The regulations

add that “(t]he inability to perform a single, particular

job does not constitute a substantial limitation in the

major life activity of working.” bid.

1. There is no dispute in this case that respondent

was aware of petitioner’s high blood pressure and of its

levels in both the mitigated and unmitigated state, and

there appears similarly to be no dispute that high blood

pressure is a “disorder” of petitioner’s cardiovascular

system. Accordingly, respondent regarded petitioner

as having a physical impairment within the meaning of

the ADA. In determining whether petitioner is dis-

abled under the “regarded as” prong of the definition,

therefore, the sole remaining question is whether

respondent viewed petitioner’s high blood pressure as

substantially limiting one of his major life activities. In

this case, petitioner alleges that the relevant major life

activity is working. If respondent regarded petitioner’s

high blood pressure as substantially limiting that

activity (or if there was at least a genuine issue of

material fact in this regard, see Fed. R. Civ. P. 56(c)),

The regulations also provide that At he following factors

should be considered in determining whether an individual is

substantially limited in a major life activity: (i) The nature and

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

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

the expected permanent or long term impact of or resulting from

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

then the grant of summary judgment to respondent was

erroneous.

2. Viewed in the light most favorable to petitioner,

the record demonstrates that respondent viewed peti-

tioner as substantially limited in the major life activity

of working. That evidence consisted of respondent’s

consistent explanation that it dismissed petitioner

because it believed “that he was not certifiable under

DOT regulations.” Pet. App. 32a; see also id. at 5a

(“[Respondent] terminated [petitioner] because his

blood pressure exceeded the DOT’s requirements for

drivers of commercial vehicles.“).“ Respondent clearly

In our brief at the petition stage of this case (at 17 n.5), we

noted that the courts below erred in construing the DOT standards

to preclude someone with blood pressure higher than 160/90 from

operating a commercial motor vehicle in interstate commerce. The

reason for that error has become clear.

The basic regulation at issue prohibits the operation of com-

mercial motor vehicles by individuals who have a “current clinical

diagnosis of high blood pressure likely to interfere with his/her

ability to operate a commercial motor vehicle safely.” 49 C.F.R.

391.41(b)(6) (emphasis added). The regulations further provide

that, when an individual is tested under that standard, if the

blood pressure is consistently above 160/90 mm. Hg., further tests

may be necessary to determine whether the driver is qualified

to operate a commercial motor vehicle.” 49 C.F.R. 391.43(f)

(emphasis added). Thus, although the general rule prohibits

individuals whose high blood pressure would interfere with vehicle

operation from operating commercial vehicles, blood pressure

above 160/90 does not necessarily or categorically trigger that

prohibition.

The district court referred (Pet. App. 15a-16a) to a document

that is now entitled “Medical Advisory Criteria for Evaluation

Under 49 CFR Part 391.41.“ That document addresses various

medical criteria for commercial driver’s licenses, including high

blood pressure. In its current version (available at http://mcregis.

fhwa.dot.gov/medical.htm (last modified Apr. 8, 1998)), that docu-

ment begins:

24

Unlike regulations which are codified and have a statutory

base, the recommendations in this advisory are simply gui-

dance established to help the medical examiner determine a

driver’s medical qualifications pursuant to Section 391.41 of the

Federal Motor Carrier Safety Regulations (FMCSRs). The

Office of Motor Carrier Research and Standards routinely

sends copies of these guidelines to medical examiners to assist

them in making an evaluation. The medical examiner may, but

is not required to, accept the recommendations. Section

390.3(d) of the FMCSRs allows employers to have more

stringent medical requirements.

Printed versions of this document are divided into specific sub-

documents that address specific medical criteria, and the sub-

documents do not include the above-quoted language. But we are

informed that DOT has typically sent out printed versions of this

document or its subdocuments with a cover letter that includes the

above-quoted language or its close equivalent.

With respect to blood pressure, the medical regulatory criteria

recommends that no driver with blood pressure over 181/105

should be qualified to operate a commercial motor vehicle and that

drivers with blood pressure between 160/90 and 181/105 may drive

for three months and then may be retested to determine whether

their blood pressure has been reduced to 160/90 or below. But, as

the above quoted language makes clear, the fact that petitioner’s

blood pressure is above 160/90 does not absolutely preclude him

from driving a commercial motor vehicle in interstate commerce.

The record in this case appears to contain only a 1988 printed

version of the subdocument regarding medical criteria for high

blood pressure. See C.A. App. 85-87. The medical substance of

that document has not changed in relevant respects since 1988.

Because the general statements regarding the advisory nature of

the document, however, were typically included only in a cover

letter—and not in the subdocuments themselves—the version of

the blood pressure criteria subdocument in the record does not

include the information regarding the nonbinding, advisory status

of its recommendations. The courts below accordingly were ap-

parently unaware that the document did not state a

DOT policy regarding qualifications of individuals with blood

pressure above 160/90. We believe it to be important, however, to

clarify that DOT currently and at the time of the events in this

25

understood—indeed, relied upon—the fact that DOT

certification is required for “all employers, employees,

and commercial motor vehicles, which transport

property or passengers in interstate commerce.” 49

C.F.R. 390.3(a). Under any reasonable view of what is

a substantial limitation of the major life activity of

working, that describes either a “class of jobs or a

broad range of jobs in various classes.” 29 C. F. R.

1630.2(j(3)i)." Petitioner's inability to perform all

such jobs would accordingly be a “substantial limita-

tion” on his major life activity of working. Therefore,

by regarding petitioner as unable to satisfy the DOT

certification requirements, respondent regarded peti-

tioner as substantially limited in his major life activity

of working.

3. The court of appeals rejected petitioner’s argu-

ment that respondent regarded him as substantially

limited in the major life activity of working, on the

ground that “[respondent] did not base its termination

of [petitioner] on an unsubstantiated fear that he would

suffer a heart attack or stroke,” but rather on respon-

dent’s belief that “his blood pressure exceeded the

DOT’s requirements for drivers of commercial ve-

hicles.” Pet. App. 5a. The court’s reasoning is mis-

taken; if respondent regarded petitioner’s impairmert

(his high blood pressure) as exceeding DOT’s require-

ments, it thereby regarded him as sabstantially limited

in the major life activity of working.

case has viewed the medical advisory criteria documents as

nonbinding recommendations for medical examiners. By contrast,

the regulations state DOT’s official policy regarding the medical

qualifications for driving a commercial motor vehicle in interstate

commerce.

1 DOT has informed us that by 1994, when the events at issue

in this case occurred, at least 7.1 million commercial drivers

26

The court of appeals’ reasoning appears to be based

on an unstated premise that an individual’s status as

disabled under the “regarded as” prong depends on

proof that the employer acted with animus toward that

individual or his impairment or with a misperception of

the nature or consequences of that impairment. The

definition of “disability” in the ADA, however, does not

turn on whether an individual has been subject to

invidious discrimination; it simply turns on whether the

individual is, or is regarded as, substantially limited in a

major life activity. Thus, it may be accepted tat

respondent did not have an “unsubstantiated fear”

concerning the health consequences of petitioner’s high

blood pressure, and it may be accepted (although it

appears that the record is not sufficient to support

summary judgment on this point) that respondent be-

lieved that petitioner was perfectly able to drive its

vehicles and perform all the duties of his job as a

mechanic for respondent, but was limited in so doing by

DOT regulations. Nonetheless, even if respondent

harbored no animus toward petitioner, it still regarded

him as disabled under the “regarded as” definition, be-

cause it regarded his impairment as substantially

limiting his ability to obtain or keep a “class of jobs.”

4. To accept the court of appeals’ contrary theory

would permit employers to circumvent the ADA’s

“qualification” inquiry in any “regarded as” case. As

noted above, the basic prohibition of Title I of the ADA

does not forbid an employer to act adversely against an

individual with a disability; rather, the employer may

not discriminate against “a qualified individual with a

disability.” 42 U.S.C. 12112(a) (emphasis added). The

inquiry into whether the employee is “qualified” is

separate from the inquiry into whether the individual

has a “disability.” Indeed, it is essential to the ADA’s

purpose of eliminating discrimination based on “pre-

27

judice, stereotypes, or unfounded fear,” School Bd. v.

Arline, 480 U.S. 273, 287 (1987), that the inquiry into

whether the individual is qualified turns on the

individual’s actual qualifications—not the way in which

the employer regards him. Moreover, the question

whether an individual is “qualified” under the ADA

turns on whether the individual “can perform the

essential functions of the employment position,” 42

U.S.C. 12111(8) (emphasis added), not whether the in-

dividual satisfies every criterion that the employer has

in fact used as a job qualification in the past. That

“essential function” inquiry is also crucial to achieve-

ment of the ADA’s goals.

Under the court of appeals’ theory, both of these

crucial elements of the “qualification” inquiry—the -

need to show actual qualification and the inquiry into

“essential functions” of the job—would simply be

eliminated in cases involving a “regarded as” dis-

ability. That is because the court of appeals’ reasoning

essentially reduces to the proposition that, because

respondent regarded petitioner as unable to satisfy a

job qualification (DOT certification), respondent there-

fore did not regard petitioner as substantially limited in

” The need for the inquiry into actual (as opposed to per-

ceived) qualification can be illustrated by this very case. As noted

above, see note 10, supra, respondent (and both courts below)

erred in concluding that DOT regulations precluded petitioner

from operating a commercial motor vehicle in interstate commerce.

Because this job qualification was mistakenly addressed under the

“regarded as” prong of the disability definition, however, it re-

quired proof only as to what respondent regarded DOT regulations

to require, not what those regulations actually require. Under the

“regarded as disabled” inquiry, respondent’s mistake would have

little to do with its liability under the ADA. Had the issue been

addressed properly under the “qualification” inquiry, however,

petitioner's actual qualification to drive a commercial motor vehicle

could be a dispositive issue in this case.

28

the major life activity of working. In most (or perhaps

every) “regarded as” case, however, the employer could

make a similar assertion: it could claim that it did not

regard the employee as substantially limited in a major

life activity, but rather as unable to satisfy what it (the

employer) believed to be a job qualification. Under the

court of appeals’ reasoning, that assertion, if true,

would result in a determination that the employee was

not “regarded as” disabled, and it would insulate the

employer from all obligations under the ADA.

Nor would the problem be limited to the “qualifica-

tion” inquiry under the ADA. Presumably, the court of

appeals would adopt the same reasoning if, for example,

an employer in a “regarded as” case asserted that the

employer had dismissed an employee not because the

employer regarded the employee as disabled, but

because the employer regarded the employee as having

an impairment that posed a “direct threat to the health

or safety of other individuals in the workplace.” 42

U.S.C. 12113(b). The ADA contemplates that an

employer would have a defense to liability if the

employee actually posed such a “direct threat” and no

“reasonable accommodation * * * would either

eliminate the risk or reduce it to an acceptable level.”

See 29 C. F. R. Pt. 1630 App. S 1630.2(r). But that de-

fense arises after a determination that the employer

regarded the employee as disabled; it is a justification

for the employer’s view, not a denial of it.

Under the court of appeals’ reasoning, the employer

in a “regarded as” case could pretermit the statutory

inquiry into whether the employee actually posed a

direct threat and whether a reasonable accommodation

could eliminate or acceptably reduce that threat.

Instead, the employer could simply claim that the

employee was dismissed not because the employee was

regarded as substantially limited in the major life

29

activity of working, but because the employer regarded

the employee as posing a direct threat to other in-

dividuals in the workplace. So long as the employer

actually did regard the employee as posing a direct

threat to other individuals in the workplace, the em-

ployee would not be “regarded as” disabled, and the

employer’s ADA obligations would cease. The fact that

the employee did not actually pose a direct threat or

that a reasonable accommodation would have eliminat-

ed that threat would be irrelevant. Once again, import-

ing these other statutory standards and defenses into

what should be a relatively straightforward threshold

inquiry into “disability” would threaten to unravel the

statutory scheme that Congress enacted.

5. In short, although an ostensible failure to satisfy

DOT standards may well assist respondent in showing

that petitioner was not qualified for the job, see 42

U.S.C. 12112(a), that he would “pose a direct threat to

the health or safety of other individuals in the work-

place,” 42 U.S.C. 12113(b), or that he failed a “qualifi-

cation standard[]” that “has been shown to be job-

related and consistent with business necessity,” 42

U.S.C. 12113(a), it does not establish that petitioner

was not regarded as having a physical impairment that

substantially limited his major life activity of working.

See 29 C.F.R. 1630.15(e) (recognizing defense “that a

challenged action is required or necessitated by another

Federal law or regulation”); Daugherty v. City of El

Paso, 56 F.3d 695, 697 (5th Cir. 1995), cert. denied, 516

U.S. 1172 (1996).

30

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

f Acting Assistant Attorney

C. GREGORY STEWART n

General Counsel BARBARA D. UNDERWOOD

PHILIP B. SKLOVER Deputy Solicitor General

Associate General Counsel JAMES A. FELDMAN

CAROLYN L. WHEELER Assistant to the Solicitor

Assistant General Counsel General

PAULA R. BRUNER JESSICA DUNSAY SILVER

Attorney SETH M. GALANTER

Equal Employment Attorneys

Opportunity Commission

FEBRUARY 1999