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

Supreme Court, U.S,

x FILED

FEB 23 1999

NO. 97-1992 a Me CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

VAUGHN MURPHY,

Petitioner,

V.

UNITED PARCEL SERVICE, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF OF AMICI CURIAE IN SUPPORT OF

THE PETITIONER

THOMAS F. REILLY

Attorney General

of Massachusetts

CATHERINE C. ZIEHL*

Assistant Attorney General

One Ashburton Place, Room 1915

Boston, Massachusetts 02108

(617) 727-2200, ext. 2918

*Counsel of Record

Additional Counsel Listed on Inside Cover

\08

DARRELL V. McGRAW

Attorney General of

West Virginia

MARY C. BUCHMELTER

Deputy Attorney General

P.O. Box 1789

Charleston, West Virginia 25236-1789

JANET NAPOLITANO

Attorney General of Arizona

BILL LOCKYER

Attorney General of California

M. JANE BRADY

Attorney General of Delaware

ALAN G. LANCE

Attorney General of Idaho

JAMES E. RYAN

Attorney General of Illinois

CARLA J. STOVALL

Attorney General of Kansas

JOSEPH P. MAZUREK

Attorney General of Montana

PATRICIA A. MADRID

Attorney General of New Mexico

EEL iv

STATEMENT OF AMICUS INTEREST ......................... l

Ee 2

nT IE Yin cu Uiuvnccccvsccccccecececcceecs 2

ERE ESS ES Se 2

ERS Se a 2

ll. APPLYING THE EEOC’S “NO MITIGATING MEASURES”

IV.

INTERPRETIVE GUIDANCE FOR DETERMINING WHETHER AN

EMPLOYEE SUFFERS FROM A DISABILITY RESULTS IN

CONSISTENT APPLICATION OF THE ADA, AS A THRESHOLD

MATTER, TO EMPLOYEES WITH SIMILAR UNDERLYING

MEDICAL CONDITIONS AND ALSO PROMOTES SOUND PUBLIC

THE TENTH CIRCUIT'S DECISION CREATES A CONUNDRUM

FOR EMPLOYEES WHO ARE BARRED FROM JOBS BECAUSE OF

THEIR UNDERLYING IMPAIRMENT, EVALUATED WITHOUT

REFERENCE TO MITIGATING MEASURES, AND YET ARE

UNABLE TO CHALLENGE THE LEGAL BASIS OF THE

DISQUALIFICATION BECAUSE THEY ARE NOT DEEMED

DISABLED UNDER THE ADA.............................. 9

PROTECTION UNDER THE ADA IS ESSENTIAL FOR EMPLOYEES

WITH UNDERLYING IMPAIRMENTS, EVEN WHEN THE

IMPAIRMENT IS PARTLY OR FULLY CONTROLLED BY

MITIGATING MEASURES, SO THAT SUCH EMPLOYEES ARE

ENTITLED TO A REASONABLE ACCOMMODATION SHOULD

Table of Authorities.

Arnold v. United Parcel Service, Inc.,

B56 F368 S56 (hat Cir. IGPED .. 0 2c ccc cnn: passim

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

RSS FOG Tae Gone Cie. BOGE. oo c ccc ccccccces a

Bragdon v. Abbott,

ee tes Ce ae SEU ENEUED pcr cocpece cs 8

Doane v. City of Omaha,

115 F.3d 624 (8th Cir. 1997), cert. denied

___ U.S. __ ,118 S.Ct. 693, 139 L.Ed.2d 638

56 6.e ew 6 kee ble’ empiaiaretlé abe ces ccc. 4

Fallacaro v. Richardson,

ee ee, Oe a, BOOP ccc ccc cceses 8

Gilday v. Mecosta County,

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

Harris v. H&W Contracting Co.,

102 F.3d 516 (11th Cir. 1996) ........... 4, 14, 15

Holihan v. Lucky Stores, Inc.,

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

__ US. _, 117 S.Ct. 1349, 137 L.Ed.2d 506....... 4

Latch v. Southeastern Pennsylvania Transp. Auth.,

964 F.Supp. 317 (E.D.Pa. 1997) .............. 5

Matczak v. Frankford Candy & Chocolate Co.,

UI ME os acs cu seve cs 4

Penny v. United Parcel Serv.,

128 F.3d 408 (6th Cir.1997) ..........52520e- 8

Roth v. Lutheran Gen. Hosp.,

57 F.3d 1446 (7th Cir. 1995)... ... 2.22. ee ees 4

Sutton v. United AirLines, Inc.,

130 F.3d 893 (10th Cir. 1997) cert. granted

MOUS. | cis iiie sd onkekakis cnn 4

Woods v. Friction Material, Inc.,

TS J: te | errr rr Ty ee 5

Statutes, Regulations & Court Rules.

4B UBL. 0 BIGRIEDD «onc kWens «dc be Vb ows conve teses 9

4B UBL. 8 CRURRGIIAD 2 ccc cccccccsedeesocssseses 3, 15

UBL: BUBB. . cc cccncscvcedecbesdsec des 6tcbbun 12

BGUSL. 0 MIE. ..cccccccvsstevenbepann es eseeess es 12

29 C.F.R. Part 1630, App. §§ 1630.2(h) and 1630.2) ........... 3

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

No. 97-1992

VAUGHN MURPHY, Petitioner

UNITED PARCEL SERVICE, INC., Respondent.

STATEMENT OF AMICUS INTEREST

The Commonwealth of Massachusetts, the State of West

Virginia and the undersigned _ amici states have a direct interest

in the resolution of this case. First, the states seek to assure that

Americans with Disabilities Act (“ADA”). Second, many of the

amici states follow federal law in deciding employment-related

disability issues under their state law and would likely be

impacted by the decision in this case. Finally, the States have a

strong public policy interest in this case because of their interest

in: (1) promoting self-help of disabled persons without putting at

risk their protection under the ADA, including their right to a

reasonable accommodation; (2) assuring consistent coverage

under the ADA, as a threshold matter, for persons with similar

disabilities under state and federal law; and (3) providing a forum

for challenging automatic job disqualifications based on

underlying medical conditions.

STATEMENT OF FACTS

The Commonwealth of Massachusetts, the State of West

Virginia and the undersigned adopt the statement of facts set forth

in the Petitioners’ Briefs in Murphy v. United Parcel Service, Inc.

No. 97-1992.

SUMMARY OF ARGUMENT

The Tenth Circuit’s decision, if affirmed, would have the

deleterious effect of disadvantaging people with underlying

impairments who engage in self-help, by denying them protection

under the ADA, if their mitigating measures are successful. Such

employees who have mitigated theii impairments and would not

be considered disabled under the ADA, therefore, would lose

their right (1) to a legal forum to challenge job exclusions which

are, in fact, based on the underlying impairment and (2) to request

a reasonable accommodation under the Act.

ARGUMENT

I. INTRODUCTION

The Amici states are submitting this brief on the first issue

before the Court which concerns the standard by which a

2

determination of “disability” is made under the first prong of its

statutory definition. See 42 U.S.C. §12102(2)(A) ( a disability is

“ a physical or mental impairment that substantially limits one or

more of the major life activities of [an] individual”). Specifically,

the question is whether the “impairment” should be evaluated

without considering the ameliorative effects of medication,

prosthetic devices or other forms of assistance as required under

an Equal Employment Opportunity Commission (“EEOC”)

Interpretive Guidance. See 29 C.F.R. Part 1630, App. §§1630.2(h)

and 1630.2(j) (whether an individual has an “impairment” and

whether that impairment “substantially limits a major life

activity” should be made “on a case by case basis, without regard

to mitigating measures such as medicines, or assistive or

prosthetic devices”). Or alternatively, as the Tenth Circuit has

held in this case, that ameliorative measures should be considered

when making the threshold determination of whether a person

suffers from a disability.’

' The amici states believe that the First Circuit conducted

a particularly thorough and persuasive analysis of this issue in

Arnold v. United Parcel Service, Inc., 136 F.3d 854, 857 (ist

Cir. 1998), when it held that the EEOC Interpretive Guidance

setting forth the “no mitigation measures” rule was a reasonable

interpretationof the ADA. The court determined, first, that “the

plain language of the ADA is not so clear and unambiguous” on

the subject. Therefore, it looked to the legislative history of the

Act, from which it concluded that it was “abundantly clear that

Congress intended the analysis . . . to be made on the basis of

the underlying (physical or mental) condition, without

considering the ameliorative effects of medication, prostheses,

or other mitigating measures.” Jd. 136 F.3d at 859. The court

3

It is the view of the Amici that the EEOC’s “no mitigating

measures” Interpretive Guidance embodies the correct position.

The use of mitigating measures does not eliminate the underlying

disability, although it may reduce or control its effects in the short

or long term. It is illogical and contrary to the public policy the

states seek to promote to disadvantage employees who engage in

successful self-help, by denying them the protection of the ADA,

while at the same time providing ADA protection for similarly

situated employees who do not ameliorate their underlying

medical conditions.

For this reason, and others articulated below, this Brief of

Amici is submitted.’

also took into consideration what it concluded were the broad

remedial goals of Congress in enacting the Act. /d., 136 F.3d

at 861.

The majority of circuit courts that have considered this issue

have reached the same result. See Bartlett v. New York State Bd.

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

Frankford Candy & Chocolate Co., 136 F.3d 933 (3d Cir.

1997); Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir.

1997); Harris v. H&W Contracting Co., 102 F.3d 516, 520-21

(11th Cir. 1996); Holihan v. Lucky Stores, Inc., 87 F.3d 362,

366 (9th Cir. 1996); Roth v. Lutheran Gen. Hosp., 57 F.3d

1446, 1454 (7th Cir. 1995). But see Sutton v. United AirLines,

130 F.3d 893 (10th Cir. 1997); Gilday v. Mecosta County, 124

F.3d 760 (6th Cir. 1997) (Kennedy, J., concurring in part and

dissenting in part).

2 Many states interpret provisions of their state disability

statutes by looking to federal court interpretations under the

ADA. See, e.g., Arnold 136 F.3d at n.2 (the First Circuit, when

4

Se

Il. APPLYING THE EEOC’S “NO MITIGATING

MEASURES” INTERPRETIVE GUIDANCE FOR

DETERMINING WHETHER AN EMPLOYEE

SUFFERS FROM A DISABILITY RESULTS IN

CONSISTENT APPLICATION OF THE ADA, AS A

THRESHOLD MATTER, TO EMPLOYEES WITH

SIMILAR UNDERLYING MEDICAL CONDITIONS

AND ALSO PROMOTES SOUND PUBLIC POLICY.

Under the Tenth Circuit’s decision, which requires that the

threshold question of disability be determined only after

ameliorative measures are taken into consideration, people with

disabilities are penalized for their diligent efforts to reduce the

impact of their impairments on major life activities because they

lose the protection of the ADA. The fundamental unfairness and

deleterious impact of such a rule is demonstrated in Gilday v.

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

In that case, the plaintiff suffered from non-insulin dependent

interpreting the Maine Human Rights Act, concluded that

because “the ADA has ‘provided guidance to Maine courts in

interpreting the state statute ,’” [citations omitted], determination

of ADA claim also resolves state claim); Latch v. Southeastern

Pennsylvania Trans. Auth.., 984 F. Supp. 317 (E.D.Pa. 1997)

(Pennsylvania courts look to the ADA in interpreting state's

anti-discrimination statutes). See also Woods v. Friction

Material, Inc., 30 F.3d 255, 263 (ist Cir. 1994)

(Massachusetts’ highest court “may look to the interpretations

of analogous federal statutes,” [citation omitted], in interpreting

state anti-discrimination statutes).

5

diabetes which, once it was diagnosed, he was able to control

through a strict regimen of oral medication, rigorous monitoring

of blood sugar levels, diet, exercise and proper rest. Jd. at 761.

In the absence of these mitigating measures, the plaintiff

employee testified that his blood sugar level “fluctuated widely,”

resulting in a personality change that substantially limited his

ability to work. /d.

The court in Gilday, with one judge dissenting, rejected the

EEOC Interpretive Guidance. It concluded that while the plaintiff

was “impaired” under the ADA, the question of whether the

impairment amounted to a disability within the meaning of the

ADA must be determined by taking into consideration any

mitigating measures the plaintiff undertook to control his

impairment. Since the plaintiff, through the strict regimen

discussed above, could control his condition, he was not found to

be “substantially limited” in the major life activity of working

and, therefore, was not disabled under the ADA.

As a result of this ruling, an individual with the same general

“impairment” as the plaintiff in Gilday -- non-insulin dependent

diabetes which results in a personality change that affects the

major life activity of working -- who does not adopt self-help

measures, would likely be covered by the ADA even though he

has been “unable to muster the self-discipline to follow his

regimen.” Gilday, 124 F.3d at 764 n.5 (Moore, J., dissenting).

Whereas, the plaintiff in Gilday, who independently took the

initiative and successfully brought his diabetes under control,

would be denied such coverage. Such an approach not only

discourages self-help, but also results in inconsistent application

of the ADA -- as a threshold coverage matter -- to employees with

similar underlying medical conditions.

6

Thus, in the case before this Court, the Tenth Circuit ruling

would render contrary findings of ADA coverage for a plaintiff

like Murphy who takes his hypertension medication and has

controlled his underlying impairment and a plaintiff who suffers

from the same underlying medical condition as Murphy but does

not take his medications (either because he refuses or cannot

afford them) or does not take them regularly as medically

required. While the latter would be protected under the ADA, the

former would not.

The First Circuit noted the illogic of this result in another

diabetes case, Arnold, 136 F.3d at 863 n.7. In that case, the

plaintiff suffered from type I insulin-dependent diabetes mellitus

which required that he monitor his blood glucose levels

throughout the day and give himself injections of insulin two to

four times a day, keep constant attention to possible signs of

hypoglycemia, and follow a strict diet and exercise regimen to

control the disease. By these mitigating measures, the plaintiff

was able to control the disease. /d. The First Circuit commented

as follows:

That a person with a disability is able to use medical

knowledge or technology to overcome many of the effects

of his illness (in Arnold’s case, by a continuing regimen

of medicine, proper eating habits, and rest) may mean that

he will, in practice, rarely require any sort of

accommodation from his employer; but his achievement

should not leave him subject to discrimination based on

his underlying disability. He should not be denied the

protections of the ADA because he has independently

taken the initiative and successfully brought his diabetes

7

under control. 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.

Id. See also Bragdon v. Abbott, 524 U.S. _, 118 S. Ct. 2196,

2206 (1998) (“[T]he disability definition does not turn on

personal choice. When significant limitations result from the

impairment, the definition is met even if the difficulties are not

insurmountable”); Fallacaro v. Richardson, 965.F. Supp. 87, 93

(D.D.C. 1997) (“Individuals who need wheelchairs, artificial

limbs, hearing aids and other prosthetic devices clearly have

impairments that may substantially limit their major life

activities. Neither as a matter of law nor of common sense would

we say that they are not impaired or disabled because their

prosthetic device happens to be exceptionally good.”).

Also, under the Tenth Circuit’s decision, an employee without

insurance, who cannot afford treatment for an underlying medical

condition, would be protected in the hiring process under the

ADA. Once he was hired, however, and was insured under a

company’s health plan and able to obtain treatment, he would no

longer be considered “disabled” and would lose the protections of

the ADA. Therefore, he could be fired on the basis of his

disability without the ability to resort to the protections of the

ADA. This interpretation of the ADA “would be inconsistent

with the Act’s broad remedial purposes.” Arnold, 136 F.3d at

862. See also Penny v. United Parcel Serv., 128 F.3d 408, 414

(6th Cir. 1997).

The concern that applying the EEOC Interpretive Guidance

(which requires that the threshold question of “disability” be

determined without regard to mitigating measures) would result

in coverage under the ADA of a larger number of Americans, is

unpersuasive in light of clear Congressional intent. As the First

Circuit noted, that is what Congress intended:

The very first finding Congress listed in the preamble to the

Act is that “some 43,000,000 million Americans have one or

more physical or mental disabilities, and this number is

increasing as the population as a whole is growing older.” 42

U.S.C. §12101(a)(1). It thus appears that Congress not only

considered but actually intended that the ADA’s protections

sweep broadly, covering a significant portion of the American

populace.

Arnold, 136 F.3d. at 862.

Il. THE TENTH CIRCUIT’S DECISION CREATES A

CONUNDRUM FOR EMPLOYEES WHO ARE

BARRED FROM JOBS BECAUSE OF THEIR

UNDERLYING IMPAIRMENT, EVALUATED

WITHOUT REFERENCE TO MITIGATING

MEASURES, AND YET ARE UNABLE TO

CHALLENGE THE LEGAL BASIS OF THE

DISQUALIFICATION BECAUSE THEY ARE

NOT DEEMED DISABLED UNDER THE ADA.

The decision of the Tenth Circuit in Murphy highlights the

dilemma faced by employees whose disabilities are evaluated in

9

a mitigated state. The petitioner job applicant in Murphy was

automatically disqualified from the position of mechanic at

United Parcel Service, Inc. (“UPS”) because he suffered from

severe hypertension and failed to meet a Department of

Transportation (“DOT”) blood pressure standard. Therefore, he

could not be qualified to operate a commercial motor vehicle. He

was disqualified despite the fact that he had worked as a

mechanic for Ryder Truck Rental for the past 22 years and was

able to perform the job adequately.

Thus, the job applicant was barred by a DOT standard from

the mechanic’s job because of his underlying impairment of

severe hypertension, which is evaluated in its unmitigated state.

However, the Tenth Circuit concluded that Murphy was not

“disabled” under the ADA -- a determination it made after

considering the mitigating measures Murphy undertook, which

effectively controlled the underlying impairment. As a disabled

person, Murphy would have been able to litigate the legality of

the DOT standard under the ADA (and whether it was properly

interpreted and applied by his employer).’ Since he is not

considered disabled, however, his employer's decision is

insulated from review.

This is precisely the predicament the First Circuit in Arnold,

136 F.3d at 862, sought to avoid by applying the EEOC’s

> Apparently, there is some question as to whether the

DOT regulation mandated disqualification of applicants with

blood pressure in excess of 160/90 (since this standard is based

in a DOT publication) or whether UPS’s reliance on this

regulation was misplaced and the company was in fact imposing

its Own requirement on applicants.

10

Interpretive Guidance to the threshold question of disability. The

First Circuit stated:

Arnold’s diabetes makes him just the type of person the

ADA was designed to protect. He would have been hired

by UPS but for his inability to get a commercial vehicle

license, which was prevented only because he had

diabetes (the underlying medical condition, without

taking into account ameliorative treatments). But Arnold

alleges that, with treatment, he can perform the job

despite his impairment if UPS will reasonably

accommodate him. This would ordinarily be a factual

question on the merits for the court to determine. Yet,

under UPS’ and the district court’s interpretation of the

ADA, a person in this archetypical situation is not

protected from discrimination by the ADA because he is

not disabled and hence not even a proper plaintiff under

the Act. According to UPS, in such circumstances, the

trier of fact never gets to the merits of the alleged

discrimination, or the “qualified individual” requirement,

or of reasonable accommodation.

Id. at 862.

Under the Tenth Circuit’s decision, employees who are

barred from jobs for failure to meet impairment-based company

policies, guiuances or regulations have no legal recourse for

challenging the basis of those policies, guidances or regulations.

Permitting employees the opportunity to challenge the

consistent with Congrecs’s broad remedial goals in enacting the

11

ADA. Arnold, 136 F.3d at 861.*

* The two plaintiff job applicants in the Sutton case, No.

97-1943, which is also before this Court, were automatically

disqualified from positions as pilots for a major global air

carrier because of a company policy that required applicants to

have uncorrected vision of 20/100 or better—despite the fact that

the Federal Aviation Agency had awarded both applicants first

class medical certificates under which they had long been

employees as commercial pilots for commuter airlines. As in

Murphy, their underlying impairment was evaluated without

reference to mitigating measures and their legal blindness

automatically disqualified them under a company policy from

While vision cases may present a different standard of

analysis since vision is easily correctable with eyeglasses or

contacts lenses, see Arnold, 136 F.3d at 866 n.10, including

such plaintiffs within the scope of the ADA, by evaluating the

vision impairment in an unmitigated state, will at least permit an

employee the opportunity to test the legitimacy of the company

policy under the ADA. If the Suttons were deemed disabled in

their unmitigated state, their employer could still assert that: (1)

they are unable to perform an essential function of the job with

or without a reasonable accommodation; (2) any accommodation

requested would create an undue hardship; or (3) public safety

justified the blanket disqualification. 42 U.S.C.§§12111 and

12113. See also Arnold, 136 F.3d at 861.

12

IV. PROTECTION UNDER THE ADA _ IS

ESSENTIAL FOR EMPLOYEES WITH

UNDERLYING IMPAIRMENTS, EVEN

WHEN THE IMPAIRMENT IS PARTLY OR

FULLY CONTROLLED BY MITIGATING

MEASURES, SO THAT SUCH EMPLOYEES

ARE ENTITLED TO A REASONABLE

ACCOMMODATION SHOULD THE NEED

ARISE.

Another anomalous result that flows from the Tenth Circuit

decision is that people who would otherwise be covered by the

ADA for an underlying impairment, but for their amieliorative

efforts, are not entitled to even the most minor accommodation.

The dissent in Gilday, 124 F.3d at 764 (Moore, J. dissenting),

provided an example which highlights this problem. It noted that

a person with a heart condition who ameliorates the condition by

obtaining a pacemaker will be refused protection under the ADA

because the mitigation measure successfully controlled the

underlying condition. That person, therefore, will not be entitled

to any reasonable accommodation -- even one as simple as

moving 0 Cock anny Sem a microwave oven to avoid Clavupting

the medical device.

There are countless examples of the kinds of

accommodations that people with a “controlled” impairment

might need. First, “ameliorating” the impairment itself may

require absences from work -- for example, to attend doctor’s

appointments, physical therapy, or to obtain testing. Additionally,

the mitigating measures may take up work time where, for

13

example, an employee must take medications on a prescribed

schedule or undergo self-testing of the underlying condition.

Also, a controlled condition may not remain permanently

controlled. The Harris case demonstrates the dilemma an

employee can face in this circumstance. In that case, the plaintiff

employee suffered from Graves’ disease, an endocrine disorder

which affected the thyroid gland. She had been diagnosed with

the disease twenty years previously and prescribed medication

which controlled the condition -- with one exception. In her third

year of employment as a comptroller with the defendant

company, Harris experienced a “panic attack” due to an overdose

in her medication. The overdose occurred because of a change in

the manufacturer of the drug. She was hospitalized for eight days

in a psychiatric ward and out on sick leave for approximately two

months. Harris, 102 F.3d at 518.

While Harris was on sick leave, her employer hired another

individual to become comptroller. When she returned to work,

Harris was informed that she would need to seek other

employment. /d. According to papers submitted on summary

judgment, the plaintiff's employer stated that he “felt that the

company was put in jeopardy, at a disadvantage due to her type

[of] illness.” Id., 102 F.3d at 523 (italics in original).

The employee filed an ADA claim against her employer

which was dismissed by the district court on summary judgment.

The district court held that the employee’s impairment did not

rise to the level of a disability. /Jd., 102 F.3d at 519. It reached this

decision by taking mitigating measures into consideration and

concluded that, except for this one instance, the employee’s

impairment was controlled. Thus, under this approach (which is

the same as the Tenth Circuit’s), Harris would be barred from

14

challenging her employer’s actions under the ADA, even though

they were clearly based on her medical condition. Moreover, the

plaintiff would not be allowed to assert that her two month sick

leave was a reasonable accommodation of her disability.

The Eleventh Circuit reversed the decision of the district court

after applying the EEOC Interpretive Guidance and concluded

that Graves’ disease (which in its unmedicated state would lead

to coma and death) was a disability within the meaning of ihe

ADA, and the employee’s legal action could go forward. Jd., 102

F.3d at 521.

medications, or when the existing medications cease to be as

effective as in the past, and can readily result in inconsistent

control of the impairment. “[T]Jhe manifested symptoms of an

‘underlying disability may be episodic or temporary in nature

while the impairment itself is both chronic and permanent.’”

Harris v. H&W Contracting, Company, 102 F.3d at 520. For this

reason, an employee who has an underlying impairment which in

its unmitigated state “substantially limit{s] one or more of the

major life activities” of that individual; 42 U.S.C. §12102(2)(A);

should be covered as a disabled person under the ADA.°

° An employee is entitled to a reasonable accommodation

only if deemed to be disabled under the first prong of the ADA

definition. See Gilday, 124 F.3d at 764 n. 4. (Moore, J.

prong (“regarded as” disabled) for employees who control their

underlying impairments through mitigating measures would be

inadequate. An employee who is deemed “regarded as” disabled

is not entitled to an accommodation. Jd.

15

CONCLUSION

For the foregoing reasons, the amici states respectfully

request that the Court reverse the Tenth Circuit decision in this

case.

THOMAS F. REILLY

Attorney General

of Massachusetts

CATHERINE C. ZIEHL*

Assistant Attorneys General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

DARRELL V. MCGRAW

Attorney General

of West Virginia

MARY C. BUCHMELTER

Deputy Attorney General

P.O. Box 1789

Charleston, WV 25326-1789