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

-

Nos. 97-1943 and 97-1992

ak 24 199

IN THE QREICE OF TG OLERM

Supreme Court of the United Stat

OCTOBER TERM, 1998

KAREN SUTTON and KIMBERLY HINTON,

‘ Petitioners,

UNITED AIR LINES, INC.,

Respondent.

VAUGHN L. MURPHY,

- Petitioner,

UNITED PARCEL SERVICE, INC.,

Respondent.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL,

THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA, AND THE

MICHIGAN MANUFACTURERS ASSOCIATION

IN SUPPORT OF RESPONDENTS

STEPHEN A. BOKAT ANN ELIZABETH REESMAN

ROBIN 8. CONRAD CorrIE L. FISCHEL *

SUSSAN MAHALLATI KYSELA McGUuUINESS & WILLIAMS

NATIONAL CHAMBER LITIGATION 1015 Fifteenth St., N.W.

CENTER, INC. Suite 1200

1615 H Street, N.W. Washington, D.C. 20005

Washington, D.C. 20062 (202) 789-8600

(202) 463-5337 Attorneys for Amicus

Attorneys for Amicus Curiae Curiae Equal Employment

The Chamber of Commerce of Advisory Council

the United States of America

J. WALKER HENRY

CLARK HILL P.L.C.

500 Woodward Avenue, Suite #3500

Detroit, MI 48226

(313) 965-8300

Attorneys for Amicus Curiae

Michigan Manufacturers Association

* Counsel of Record

WILSON - Eras PSE-UUBG - WASHINGIC “,

BEST AVAILABLE COPYIs

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE .........................

STATEMENT OF THE CASES .

SUMMARY OF THE ARGUMENT

ARGUMENT ..........

I. THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT WHETHER AN INDI-

VIDUAL HAS A DISABILITY SHOULD BE

ASSESSED BASED ON THE INDIVIDUAL’S

USE OF CORRECTIVE MEASURES

A. The ADA Requires That an Individual Ac-

tually Be Substantially Limited in a Major

Life Activity To Establish a Disability

Under the ADA .....

. The Court Should Not Defer to EEOC’s

Interpretive Guidance

1. EEOC’s Interpretative Guidance Is Not

Entitled to Deference Because It Is Mani-

festly Contrary to the Statute

. The Chevron Doctrine Does Not Apply to

Interpretative Rules

. Ata Minimum, This Court Should Hold That

the ADA Does Not Cover Individuals With

Controlled, Minor Impairments That Are

Widely Shared ............................

. A Ruling That the Use of Corrective Meas-

ures Should Be Considered in Determining

Whether an Individual Is Substantially Lim-

ited Will Not Discourage the Use of Correc-

tive Measures

ii

TABLE OF CONTENTS—Continued

Il. THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT THE EMPLOYERS DID

NOT “REGARD” THE PETITIONERS AS

1 OF ERE Ean nt Be

A. The ADA Requires That a Plaintiff Establish

That an Employer Regarded the Individual

as Substantially Limited in a Major Life

Activity To Establish That the Individual Is

“Regarded As” Disabled ....................-....0--++-

1. The Perception That an Individual Is

Unable To Perform a Particular Job Does

Not Translate Into a Perception That the

Individual Is Substantially Limited..........

2. An Employment Rejection Based on a

Medical Condition Is Not Enough To

Establish an Issue of Fact That an Em-

ployer Regarded an Individual as Dis-

CIID isccckoisicnstsctitsscinmmsistihnimsaiiiaee nian

B. A Ruling That a “Regarded As” Claim Can

Be Established Based on Medical or Physical

Criteria Used in Rejecting an Individual

From an Employment Opportunity Will Re-

strict Significantly an Employer’s Ability to

Establish Job Qualifications 0.000...

CIFOR III, cecensenensocsscosinnsatichicerhisiscnssghaniateaaaaeaeae

Page

iii

TABLE OF AUTHORITIES

CASES

Alexander v. Choate, 469 U.S. 287 (1985) —...........

Page

8

Arnold v. UPS, 186 F.3d 854 (1st Cir. 1998) ...7, 9, 19, 20

Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th

EE ee a ees ee 9

Bartlett v. New York State Board of Law Examin-

ers, 156 F.8d 821 (2d Cir. 1998), petition for

cert. filed, No. 98-1285, 67 U.S.L.W. 3528 (Feb.

ns SE a ES a 9

Baulos v. Roadway Erp. Inc., 139 F.3d 1147 (7th

RI ES AC EE kl 24

Bragdon v. Abbott, 118 8.Ct. 2196 (1998) ._.......... 3

Bridges v. City of Bossier, 92 F.3d 329 (5th Cir.

1996), cert. denied, 519 U.S. 1098 (1997) .......... 27

Burlington Industries v. Ellerth, 524 U.S. 742

EEO OOS IOS ESS SE ee 8

Burroughs v. City of Springfield, 163 F.3d 505 (8th

NESE EE a Se oe 4 22

CONRAIL v. Darrone, 465 U.S. 624 (1984) oda « 3

Central Midwest Interstate Low-Level Waste Com-

mission v. Pena, 118 F.3d 1468 (7th Cir. 1997).. 15

Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.

1998), cert. denied, 511 U.S. 1101 (1994) .......... 27

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

Council, 467 U.S. 887 (1984) -........-..cc-cccecccccceeees 14,17

Chrysler Corp. v. Smolarek, cert. denied, 493 U.S.

I Trine ae a ee 3

Connecticut National Bank v. Germain, 508 U~, s.

EEE ESE” oa A 10, 11

Daley v. Koch, 892 F.2d 212 (2d Cir. 1989) .......... 19

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

1997), cert. denied, 118 S. Ct. 698 (1998)... 9

Elizabeth Blackwell Health Center for Women v.

Kno!l, 61 F.3d 170 (3d Cir. 1995), cert. denied,

EN EE ve ae 15

General Motors Corp. v. Romein, 503 U.S. 181

ESSELTE Soir A 4

Gilday v. Mecosta County, 124 F.3d 760 (6th Cir.

ELST ot 6, 9, 10

Harris v. H&W Contr. Co., 102 F.3d 516 (11th Cir.

1996) case 9

iv

TABLE OF AUTHORITIES—Continued

Page

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)... 3

Herman v. Nationsbank Trust Co., 126 F.3d 1854

(11th Cir. 1997), cert. denied, 119 S. Ct. 54

ER ECE ate ae 15

Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th

Cir. 1996), cert. denied, 502 U.S. 1162 (1997)... 9

I.N.S. v. Cardoza Fonseca, 480 U.S. 421 (1987)... 14

International Union, UAW v. Johnson Controls,

GD pe Sy ED ectvtietteecetainetiie diate nian 3

Jacks v. Crabtree, 114 F.3d 983 (9th Cir. 1997),

cert. denied, 118 S. Ct. 1196 (1998)... 15, 16

Jasany v. United States Postal Service, 755 F.2d

BS GED Oe ED cieenstnienieesteenhietinnsiieiats. 24

2 RE ee A a eee 9

Massachusetts v. FDIC, 102 F.3d 615 (ist Cir.

i re ee eee tree 15

Matczak v. Frankford Candy & Chocolate Co., 136

F.3d 983 (3d Cir. 1997)

McKennon v. Nashville Banner Publ’g Co., 518

> fF: _ eerie

Miller v. City of Springfield, 146 F.3d 612 (8th

Cir. 1998)

eee

OCC H Fe He Oe ee Oe ee own ee eee

22% we ££ a 8 o

*SOSIPOO SNS OS OS CSCS SSUSEESSSSSSeseSeESecessosessoeoenscee

Siefken v. Village of Arlington Heights, 65 F.3d

664 (7th Cir. 1995) ateiaiiie

v

TABLE OF AUTHORITIES—Continued

Page

Skidmore v. Swift & Co., 323 U.S. 134 (1944)........ 17

Smith v. City of Des Moines, 99 F.3d 1466 (8th

> see eis 8 RES le Soe 7, 26, 27

Solileau v. Guilford of Maine, 105 F.3d 12 (ist

ae Te: Ee Ee ee A 6, 18

Southern Ute Indian Tribe v. AMOCO Production

Co., 119 F.3d 816 (10th Cir. 1997), on reh’g en

bane, modified and adopted on other grounds,

151 F.3d 1251 (1998), cert. granted, 119 S. Ct.

i ERC EE PE ae 15, 16

Sutton v. United Air Lines, 130 F.3d 898 (10th

Ge cei ea 4, 5,8

Thompson v. Holy Family Hospital, 121 F.3d 587

|) > eee ee 23, 27, 28

U.S. v. Ramirez-Ferrer, 82 F.8d 1131 (ist Cir.

AS eS eres eas ae 10

United Air Lines, Inc. v. McMann, 434 U.S. 192

ORES a AES ee a NE Eh arta 12

University of Texas v. Camenisch, 451 U.S. 390

REED AE CPR Le Se 3" 8 CT |

Washington v. HCA Health Services of Texas,

Inc., 152 F.3d 464 (5th Cir. 1998), petition for

cert. filed, 67 U.S.L.W. 3561 (Dec. 2, 1998) on one

Witter v. Delta Air Lines, 1388 F.3d 1366 (11th Cir. -

BT cxceattiniiianentel > atatliadian

Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir.

1995) 24, 28

Zirpel v. Toshiba America Information System,

111 F.3d 80 (8th Cir. 1997) ...........0002..... 9

FEDERAL STATUTES

Administrative Procedure Act, 5 U.S.C. § 553... 15

Americans with Disabilities Act, 42 U.S.C. §§ 12101

et seq. 6,8

42 U.S.C. § 12101 (A) (7) VS AME 3 8 21

42 U.S.C. § 12102(2) .... seoineeatibtainduhiatal 6, 7, 8, 23

42 U.S.C. §§ 12111-12117 ........ 2

vi

TABLE OF AUTHORITIES—Continued

fe ere Ne

42 U.S.C. § 12111(9) .............. ictlltenidiitisentnaiivedaiatiis

Ser TE ee Se

ee I bila crrnttitiitatnbicicatinaibadibiiblabibite

43 U.S.C. $6 12181-12189 ..................................-.

42 U.S.C. § 12182(b) (2) (iii) -............-...

Rehabilitation Act of 1973,

29 U.S.C. $§ 701 et seq... ges Mae

og RE ae ee ee

29 U.S.C. § 794 ................ umd ihitiaeeraagsiaensamaes

LEGISLATIVE HISTORY

H.R. Rep. No. 101-485, pt. 2 (1990), reprinted in

1990 U.S.C.C.A.N. BOB nn... ccceccccpeecseeese- 8, 11,

H.R. Rep. No. 101-485, pt. 3 eh, renee

DE EE RE arm Tee ee 4

REGULATIONS AND ADMINISTRATIVE

MATERIALS

29 C.P.R. App. § 16B0.2(1) nee eenncnneeeeeeeee

OG Ped. Mag. SECS CHODE) nnn rescence mnenpeceeeenoees

MISCELLANEOUS

EEOC, A Technical Assistance Manual on the

Employment Provisions (Title I) of the Ameri-

cans With Disabilities Act (1992)...

Kenneth Davis & Richard Pierce, Jr., Administra-

tive Law Treatise (1998 Supp.) 0.0.

Erica W. Harris, Controlled Impairments Under

the Americans with Disabilities Act: A Search

For the Meaning of Disability, 73 Wash. L. Rev.

FE Pe Mite ae

Adam C. Wit, Should “Mitigating Measures” Be

Considered in the “Disability” Analysis under

the ADA? 24 Empl. Rel. LJ. 73 (Summer

SPEED nennadteaenntnnintabiaddlde ete ae

Page

22

11

8

28

2

11

3

2

2

13, 23

11

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL,

THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA, AND THE

MICHIGAN MANUFACTURERS ASSOCIATION

IN SUPPORT OF RESPONDENTS

The Equal Employment Advisory Council, The Cham-

ber of Commerce of the United States of America, and

the Michigan Manufacturers Association respectfully sub-

mit this brief as amici curiae. Letters of consent from

all parties have been filed with the Court. The brief urges

this Court to affirm the decisions below, and thus supports

the position of Respondents United Air Lines, Inc. and

United Parcel Service, Inc.

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (EEAC) is

a nationwide association of employers organized in 1976

to promote sound approaches to the elimination of em-

ployment discrimination. Its members include over 300

of the nation’s largest private sector corporations. EEAC’s

directors and officers include many of industry's leading

experts in the field of equal employment opportunity.

Their combined experience gives EEAC a unique depth

of understanding of the practical, as well as legal, con-

siderations relevant to the proper interpretation and appli-

cation of equal employment policies and requirements.

EEAC’s members are firmly committed to the principles

of nondiscrimination and equal employment opportunity.

The Chamber of Commerce of the United States of

America (the Chamber) is the largest federation of busi-

ness companies and associations in the world. The Cham-

ber represents an underlying membership of more than

1 Counsel for amici curiae authored the brief in its entirety. No

person or entity, other than the amici, their members, or their

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

mission of the brief.

2

three million businesses and organizations of every size,

in every sector and region. An important function of the

Chamber is to represent the interests of its members in

court on employment law issues of national concern to

the business community.

The Michigan Manufacturers Association (MMA) is

an association of private Michigan employers studying

matters of general interest to its members; promoting

their interests and the interests of all Michigan employers

in the proper administration of laws; and otherwise pro-

moting the general business and economic welfare of

Michigan. MMA's over four thousand members employ

90% of the industrial workforce in Michigan—over one

million employees. An important aspect of MMA’s activi-

ties is representing its members’ interests in matters before

the courts as amicus curiae.

All of EEAC’s members and mary of the Chamber’s

and MMA’s members are employers subject to Title I

of the Americans with Disabilities Act of 1990 (ADA),

42 U.S.C. §§ 12111-12117 (Title I). Many own com-

mercial facilities subject to Title III of the ADA, 42

U.S.C. §§ 12181-12189 (Title III), and many own, oper-

ate, lease, or lease to places of public accommodation,

also subject to Title II]. Moreover, many members are

federal contractors subject to Section 503 of the Rehabili-

tation Act of 1973, 29 U.S.C. § 793, which requires

covered employers to take affirmative action to employ

and advance in employment qualified individuals with

disabilities. Also, some members are the recipients of

federal financial assistance and therefore are subject to

the nondiscrimination provisions of the Rehabilitation Act

of 1973, 29 U.S.C. § 794.

The Americans with Disabilities Act of 1990 and the

Rehabilitation Act of 1973 share a common definition of

“disability” which establishes the parameters of the pro-

3

tected class under each statute. Both statutes define

“disability” in terms of an impairment that “substantially

limits” a major life activity. Thus, EEAC’s, the Chamber’s

and MMA’s members have a direct interest in the issues

presented in this case; i.e., whether a court should deter-

mine whether an individual has a disability based on the

individual’s use of corrective measures, and whether an

individual can establish a “regarded as” claim under the

ADA simply because the individual has an impairment or

medical condition that renders the individual unqualified

for a particular job.

Because of their interest in the application of the

nation’s fair employment laws, EEAC, the Chamber, and

MMA have filed briefs as amicus curiae in numerous

cases before this Court.* Thus, EEAC, the Chamber, and

2The ADA definition of “disability” mirrors the definition of

“handicapped individual” that appeared in the Rehabilitation Act

of 1973, 29 U.S.C. §§ 701 et seq., at the time the ADA was passed,

and the ADA’s legislative history confirms the Rehabilitation Act

as the source of the ADA definition. S. Rep. No. 101-116, at 21

(1989); H.R. Rep. No. 101-485, pt. 2, at 50 (1990), reprinted in

1990 U.S.C.C.A.N. 267, 332. See also Bragdon v. Abbott, 118 S. Ct.

2196, 2205 (1998) (“[T]he ADA must be construed to be consistent

with regulations issued to implement the Rehabilitation Act.”)

3 EEAC participated as amicus curiae in Bragdon v. Abbott, 118

S.Ct. 2196 (1998), which addressed the definition of a “disability”

under the ADA. EEAC also participated as amicus curiae in

School Board of Nassau County v. Arline, 480 U.S. 278 (1987), and

other cases in this Court construing the Rehabilitation Act of

1973. E.g., Alexander v. Choate, 469 U.S. 287 (1985); CONRAIL

v. Darrone, 465 U.S. 624 (1984) ; University of Texas v. Camenisch,

451 U.S. 390 (1981). EEAC and the Chamber have participated in

numerous other employment discrimination cases before this Court.

E.g., International Union, UAW v. Johnson Controls, 499 U.S. 187

(1991) (sex discrimination); Burlington Indus. v. Ellerth, 524

U.S. 742 (1998) (sexual harassment); Hazen Paper Co. v. Biggins

507 U.S. 604 (1998) (age discrimination). MMA has also filed

briefs with this Court in Chrysler Corp. v. Smolarek, cert. denied,

493 U.S. 992 (1989) (whether § 301 of the Labor Management Rela-

tions Act preempted claims under Michigan’s Handicappers’ Civil

4

MMA have an interest in, and a familiarity with, the

issues and policy concerns involved in this case.

EEAC, the Chamber, and MMA seek to assist the

Court by highlighting the impact its decision in this case

may have beyond the immediate concerns of the parties

to the case. Accordingly, this brief brings to the attention

of the Court relevant matter that has not been brought

to its attention by the parties. Because of their experience

in these matters, EEAC, the Chamber, and MMA are

well situated to brief the Court on the concerns of the

business community and the significance of this case to

employers.

STATEMENT OF THE CASES

Sutton v. United Air Lines, Inc.

Petitioners Karen Sutton and Kimberly Hinton are twin

sisters who were commercial airline pilots for regional

commuter airlines. Each had a “life long goal to fly for

a major air carrier.” Sutton v. United Air Lines, Inc.,

130 F.3d 893, 895 (10th Cir. 1998). While each of the

Petitioners has 20/20 corrected vision in both eyes, with-

out correction their vision is 20/200 in the right eye and

20/400 in the left eye. Id. As a result, the sisters do not

qualify for commercial airline pilot positions wich United

Air Lines (“United”) because the company requires that

applicants for pilot positions have at least 20/100 un-

corrected vision in each eye. /d.

The sisters sued United under ADA, alleging that

United had discriminated against them because they were

substantially limited in the major life activity of seeing.

Alternatively, the sisters alleged that United regarded them

Rights Act) and General Motors Corp. v. Romein, 508 U.S. 181

(1992) (retroactive application of an amendment to the Workers’

Disability Compensation Act in Michigan). EEAC, the Chamber,

and the MMA all participated in McKennon v. Nashville Banner

Publ’g Co., 513 U.S. 362 (1995) (after-acquired evidence) before

this Court.

5

as disabled by regarding them as substantially limited in

the major life activity of working. Jd. The district court

held that the sisters were not disabled under the ADA

because their vision impairments, when corrected, did not

substantially limit a major life activity. Jd. at 896. The

district court further found that United did not regard

the sisters as disabled. Jd. On appeal, the Tenth Circuit

affirmed the district court’s decision. Id. at 906. The

Court granted the sisters’ petition for a writ of certiorari.

Murphy v. United Parcel Service, Inc.

Petitioner Vaughn Murphy (“Murphy”) has had high

blood pressure since he was ten years old. Murphy v.

UPS, 946 F.Supp. 872, 875 (D. Kan. 1996). In August

of 1994, he applied for a position with United Parcel

Service, Inc. (“UPS”) as a mechanic. Since UPS me-

chanics are required to drive large trucks, they must hold

commercial driver’s licenses. Jd. In order to hold a com-

mercial driver’s license, the Department of Transportation

(“DOT”) requires that an individual meet certain physi-

cal qualification standards, including a blood pressure

level less than 160/90. Id. at 876. When Murphy took

his DOT physical examination in August of 1994, his

blood pressure was 186/124, well above the DOT limit.

The testing clinic, however, erroneously issued him a

“DOT health card.” Approximately one month later,

while reviewing medical records, UPS’ Medical Services

Supervisor discovered the error. UPS terminated Murphy

after retesting his blood pressure, and confirming that it

exceeded the DOT limit. /d.

Murphy sued UPS under the ADA, arguing in part

that UPS had discriminated against him because he had

a disability, or alternatively, because it regarded him as

having a disability. The district court granted summary

judgment in favor of UPS, and Murphy appealed. Id. at

884. The Tenth Circuit affirmed the district court’s deci-

6

sion, finding that whether Murphy was substantially limited

should be determined in his medicated state and that UPS

did not regard Murphy as disabled because it relied on

the DOT blood pressure standards. Murphy v. UPS, 1998

U.S. App. LEXIS 4439 (10th Cir. 1998) (unreported

decision). This Court granted the petition for a writ of

certiorari.

SUMMARY OF ARGUMENT

The Court of Appeals properly concluded that Peti-

tioners are not individuals with disabilities protected by

the Americans with Disabilities Act, 42 U.S.C. §§ 12101

et seq. (ADA). Whether an individual has a “disability”

as defined by the plain language of the ADA turns on

whether the individual has an impairment that in fact

“substantially limits a major life activity.” 42 U.S.C.

§ 12102(2). Therefore, any mitigating measures the in-

dividual uses to reduce the effect of the impairment neces-

sarily affects this determination. Gilday v. Mecosta County,

124 F.3d 760 (6th Cir. 1997). The legislative history,

although conflicting, ultimately supports this conclusion.

Thus, the EEOC’s guidance is entitled to no deference

because it is manifestly contrary to the statute.

The ADA was not intended to cover those individuals

who have common, minor impairments that are easily

controlled. Rather, it requires that an individual be “sub-

stantially limited,” a comparative term that “is to be

measured in relation to normalcy, or in any event, to what

the average person does.” Solileau v. Guilford of Maine,

105 F.3d 12, 15-16 (1st Cir. 1997). An individual with

a commonly controlled, widely-shared condition is simply

not “substantially limited” as compared to the average

person. Indeed, the First and Fifth Circuits both have sug-

gested that even if the EEOC guidance is to be deferred

to on the question of whether mitigating measures should

be used, the guidance is not applicable unless serious im-

pairments are at issue. Washington v. HCA Health Servs.

7

of Texas, Inc., 152 F.3d 464, 470 (Sth Cir. 1998), peti-

tion for cert. filed, 67 U.S.L.W. 3561 (Dec. 2, 1998)

(No. 98-1365); Arnold v. UPS, 136 F.3d 854, 866 (list

Cir. 1998).

The notion that a contrary ruling will prevent individ-

uals from utilizing such measures is meritless. Rational

individuals will not forego necessary medical procedures

simply to obtain the Act’s protections. Further, an in-

dividual who does not utilize available corrective measures

may in fact lose the Act’s protections because they are not

qualified. Siefken v. Village of Arlington Heights, 65

F.3d 664, 667 (7th Cir. 1995).

The Court of Appeals also correctly concluded that the

employers in these cases did not regard the petitioners as

disabled. In order to estabilsh that an individual is re-

garded as disabled, the individual must establish that he

or she is regarded as being substantially limited in a

major life activity. 42 U.S.C. § 12102(2)(C). The sim-

ple perception that an individual is unable to perform a

particular job does not translate into a perception that the

individual is substantially limited in employment oppor-

tunities in general. Further, rejection based on a medical

condition or a medical standard does not automatically

establish a “regarded as” claim. Smith v. City of Des

Moines, 99 F.3d 1466 (8th Cir. 1996). A contrary ruling

not only would prohibit employers from developing legiti-

mate qualification standards, but will result in extensive

litigation for the courts and employers. This is not the

result Congress had in mind when passing the ADA.

8

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY CON-

CLUDED THAT WHETHER AN INDIVIDUAL

HAS A DISABILITY SHOULD BE ASSESSED

BASED ON THE INDIVIDUAL’S USE OF CORREC-

TIVE MEASURES

A. The ADA Requires That An Individual Actually Be

Substantially Limited In a Major Life Activity To

Establish a Disability Under the ADA

The Court of Appeals correctly concluded that the plain

language of the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101 ef seg., requires that an assessment

of whether an individual has a disability under part A

of the ADA’s definition of “disability” take into account

the individual’s use of corrective measures. Sutton v.

United Air Lines, 130 F.3d 893, 902 (10th Cir. 1998).

The ADA prohibits discrimination in employment against

a “qualified individual with a disabitity.” 42 U.S.C.

§ 12112(a). The ADA defines “disability” as follows:

The term “disability” means, with respect to an in-

dividual—

(A) a physical or mental impairment that substan-

tially limits one or more of the major life activities

of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). The verb “limits” is used in its

present tense form. Therefore, an individual who is not

presently “substantially limited” in a major life activity

does not have a “disability” under part A of the statutory

definition. Thus, if an individual currently is able to

control the effects of his or her impairment with medica-

tion or other mitigating measures so that he or she is not

substantially limited in a major life activity, he or she

should not be considered disabled under part A of the

9

Like the Tenth Circuit, the Sixth Circuit has held that

the plain language of the ADA requires that a “disability”

under part A be evaluated based on the individual’s limi-

tations with the use of medication. Gilday v. Mecosta

County, 124 F.3d 760 (6th Cir. 1997) (Kennedy, J. and

Guy, J. concurring on this point.).* Judge Kennedy, in

her concurring opinion, pointed out that the term “sub-

4 Conversely, the Second, Third, and Eleventh Circuits have

unequivocally ruled that mitigating measures should not be con-

sidered. Barlett v. New York State Bd. of Law Exam’rs, 156 ¥ 3d

$21, 329 (2d Cir. 1998), petition for cert. filed, No. 98-1285, 67

U.S.L.W. 3528 (Feb. 23, 1999); Matczak v. Frankford Candy &

Chocolate Co., 186 F.3d 933, 937-938 (8d Cir. 1997); Harris v.

H&W Contr. Co., 102 F.3d 516, 520-521 (11th Cir. 1996). The

Ninth Circuit has mentioned this same principle although it de-

cided the case on other grounds. E.g., Holihan v. Lucky Stores, Inc.,

87 F.3d 362, 364 (9th Cir. 1996), cert. denied, 502 U.S. 1162

(1997); Kirkingburg v. Albertsons, Inc., 143 F.3d 1228 (9th Cir.

1998), cert. granted, 119 S. Ct. 791 (1999). While one Seventh

Circuit panel clearly held that mitigating measures should not be

considered, e.g. Baert v. Euclid Bev., Ltd., 149 F.3d 626, 629-630

(7th Cir. 1998), another Seventh Circuit panel cited the EEOC’s

guidance on evaluating a disability without regard to mitigating

measures, but then proceeded to analyze whether the plaintiff had

a disability based on his use of eyewear. Roth v. Lutheran Gen.

Hosp., 57 F.3d 1446 (7th Cir. 1995). The Eighth Circuit similarly

endorsed the notion that mitigating measures should not be con-

sidered in Doane v. City of Omaha, 115 F.3d 624, 627-628 (8th Cir.

1997), cert. denied, 118 S. Ct. 693 (1998), but took an approach

similar to Roth in Zirpel v. Toshiba Am. Info. Sys., 111 F.3d 80, 81

(8th Cir. 1997) (determining that individual was not disabled based

in part on the fact that the panic disorder was very manageable

with treatment, thereby endorsing argument that mitigating meas-

ures should be considered.) The First Circuit has held that mitigat-

ing measures should not be taken into account, but limited its deci-

sion to diabetes, and suggested that it could take a different ap-

proach if a different medical condition were at issue. Arnold v.

UPS, 136 F.3d 854, 859-866 (1st Cir. 1998). The Fifth Circuit has

taken a middle of the road approach, holding that only “serious

impairments” should be considered without regard to mitigating

measures, but reserving the determination of what is “serious” to

be resolved on a case-by-case basis. Washington v. HCA Health

Servs. of Texas, Inc., 152 F.3d 464, 470-471 (5th Cir. 1998).

10

stantially limited” would be written out of the statute if

a person were not in fact evaluated given the effects of his

or her medication. In rejecting the EEOC’s opposite con-

clusion as to the meaning of the ADA, Judge Kennedy

observed as follows:

The EEOC is creating a different standard for per-

sons who take medication for their condition. This

conflicts with the plain reading of the statute. The

ADA does not provide protection for anyone with

any degree of physical or mental impairment: It

provides protection only for those impairments that

substantially limit their lives. I do not believe that

Congress intended the ADA to protect as “disabled”

all individuals whose life activities would hypotheti-

cally be substantially limited were they to stop taking

medication.

Mecosta, 124 F.3d at 767 (Kennedy, J., concurring in

part, dissenting in part) (emphasis added).

Thus, this Court should look no further than the statu-

tory definition of the ADA to determine whether the use

of medication or other corrective measures should be con-

sidered to determine whether an individual is substantially

limited in a major life activity under part A of the ADA’s

“disability” definition. “The starting point in statutory

interpretation is the language [of the statute] itself.’”

U.S. v. Ramirez-Ferrer, 82 F.3d 1131, 1136 (1st Cir.

1996) (quoting U.S. v. James, 478 U.S. 597, 604 (1986)).

For, as this Court has stated “time and again,” the “courts

must presume that a legislature says in a statute what it

means and means in a statute what it says there.” Con-

necticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254

(1992). Unless a statute’s wording is unclear, a court

should not even pause to consider arguments for a differ-

ent interpretation based on legislative history or purpose.

“When the words of a statute are unambiguous, then, this

first canon is also the last: ‘judicial inquiry is complete.’ ”

il

Id. (quoting Rubin v. United States, 449 U.S. 424, 430

(1981)).

Should the Court choose to look further than the plain

language of the ADA, however, the Court will find that

although conflicting, the legislative history ultimately sup-

ports the conclusion reached by the Court of Appeals

below. The Reports of the House Education and Labor

Committee, the House Judiciary Committee, and the Sen-

ate Committee on Labor and Human Resources (“Senate

Labor Committee”) all state that “whether a person has a

disability should be assessed without regard to the avail-

ability of mitigating measures, such as reasonable accom-

modation or auxiliary aids.” H.R. Rep. No. 101-485,

pt. 2, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303,

334; H.R. Rep. No. 101-485, pt. 3, at 28 (1990), re-

printed in 1990 U.S.C.C.A.N. 445, 451; S. Rep. No.

101-116, at 23 (1989) (emphasis added). The two

House Reports proceed to assert that mitigating measures

include medication and assistive devices such as hearing

aids. H.R. Rep. No. 101-485, pt. 2, at 52, reprinted in

1990 U.S.C.C.A.N. at 334; H.R. Rep. No. 101-485, pt. 3,

at 28-29, reprinted in 1990 U.S.C.C.A.N. at 451.

The Senate Report makes no such assertion, however.

This suggests that at least one Congressional committee

was referring to employer provided accommodations when

stating that mitigating measures should not be considered.

to an individual with a disability, and “auxiliary aids” in

the context of the obligations a place of public accom-

modation has with respect to an individual with a dis-

ability. See 42 U.S.C. §§ 12111(9), 12182(b) (2) (iii).

Further, in its discussion of the meaning of reasonable

accommodation, the Senate report states emphatically that

“(t]he Committee wishes to make it clear that non job-

related personal use items such as hearing aids and eye-

12

glasses are not included in this provision.” S. Rep. No.

101-116 at 33.

Further, the Senate Report unequivocally states that

part of the rationale for including the “regarded as” prong

in the overall definition of a “disability” was to cover

individuals who, because of their ability to control an

impairment, were not in fact substantially limited but

nevertheless were falsely regard=<i as being substantially

limited. This language indicates tuat the Senate contem-

plated that individuals who had controlled conditions and

as a result were not in fact substantially limited would

not be covered by part A of the “disability” definition. As

the Report indicates:

Another important goal of the third prong of the

definition is to ensure that persons with medical con-

ditions that are under control, and that therefore do

not currently limit major life activities, are not dis-

criminated against on the basis of their medical con-

ditions. For example, individuals with controlled

diabetes or epilepsy are often denied jobs for which

they are qualified.

S.Rep. No. 101-116, at 28. (emphasis added) .5

The legislative history also underscores the plain lan-

guage of the ADA that requires an individual to be sub-

stantially limited in fact in order to be covered by part A,

thereby further verifying that Congress contemplated tak-

ing mitigating measures into account when ascertaining

whether a disability exists. The Committee Reports state

unequivocally that “[a] physical or mental impairment

does not constitute a disability under the first prong of

5 Senators Harkin, Dole, and Kennedy argue as amicus that this

provision was not meant to suggest mitigating measures should be

considered in ascertaining whether an individual has a disability.

However, as this Court has previously held, “Legislative observa-

tions 10 years after passage of the Act are in no sense part of

legislative history.” United Air Lines, Inc. v. McMann, 434 U.S.

192, 202 (1977).

13

the definition for purposes of the ADA unless its severity

is such that it results in a ‘substantial limitation’ of one

or more major life activities.” H.R. Rep. No. 101-485,

pt. 2, at 52, reprinted in 1990 US.C.C.A.N. at 334;

S. Rep. No. 101-116, at 22. Evidence that the statute

requires a current, functional analysis of limitation is

demonstrated in an example in the Committee Reports:

A person who can walk for 10 miles continuously is

not substantially limited in walking merely because

on the eleventh mile, he or she begins to experience

pain because most people would not be able to walk

eleven miles without experiencing some discomfort.

H.R. Rep. No. 101-485, pt. 2, at 52, reprinted in 1990

U.S.C.C.A.N. at 334; S. Rep. No. 101-116, at 22.

This example confirms that Congress was focusing not

on the hypothetical, but on how the individual actually is

limited on a functional level in performing the major life

activity. As one commentator noted, the “hypothetical

approach is counterintuitive; legislative history and statu-

tory provisions of the ADA do not support it.” Erica W.

Harris, Controlled Impairments Under the Americans with

Disabilities Act: A Search For the Meaning of Disability,

73 Wash. L. Rev. 575, 580 (1998). Thus, putting the

question of whether mitigating measures should be con-

sidered in the context of the overall guidance provided

by Congress with regard to interpreting the definition of

a disability, it becomes evident that Congress meant only

for individuals functionally challenged to obtain protec-

tions under part A of the definition of a disability. In-

dividuals who by virtue of medication or other devices

are not substantially limited do not fall within the cate-

gory of individuals to be protected.

14

B. The Court Should Not Defer to EEOC’s Interpretive

Guidance

1. EEOC’s Interpretive Guidance Is Not Entitled

to Deference Because It Is Manifestly Contrary

to the Statute

Petitioners argue that the EEOC’s interpretive guidance

should be accorded deference under the so-called Chevron

doctrine, which requires that a court defer to permissible

agency statutory constructions where the statute itself is

silent or ambiguous. Chevron, U.S.A. v. Natural Re-

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

assuming that the Chevron doctrine applies to agency

interpretive rules, however, the EEOC rule at issue here

would fail to meet the Chevron test. This is because the

first prong of the Chevron analysis—the prerequisite for

invoking the deference doctrine—requires that the statute

be silent or ambiguous on the issue subject to the agency

regulation.

First, always, is the question of whether Congress

has directly spoken to the precise question at issue.

If the intent of Congress is clear, that is the end of

the matter; for the court, as well as the agency, must

is whether the agency’s answer is based on a permis-

sible construction of the statute.

Chevron, 467 U.S. at 842-43. See also, I.N.S. v. Cardoza

Fonseca, 480 U.S. 421, 447-48 (1987). As explained

above, the plain language of the ADA requires that the

phrase “substantially limited” be assessed in light of the

corrective measures available to the impaired individual.

ae nl

15

Consequently, the petitioners’ invocation of Chevron is

inapplicable.

2. The Chevron Doctrine Does Not Apply to Inter-

pretive Rules

Even if the Court were to find the statutory provisions

at issue ambiguous, the Chevron doctrine should not apply

to the EEOC rule at issue in this case. This is because

the rule in question was promulgated not as a regulation

or “legislative rule,” but rather, as an “interpretive rule.”

This Court should definitively hold that the Chevron doc-

trine does not apply to interpretive rules.

The majority of the circuits that have addressed this

issue have concluded that Chevron deference should not

be accorded to interpretive rules. Cent. Midwest Inter-

state Low-Level Waste Comm'n v. Pena, 113 F.3d 1468,

1473 (7th Cir. 1997) (“we do not apply Chevron’s “rub-

ber stamp” to interpretive rules”); Jacks v. Crabtree, 114

F.3d 983, 985 n.1 (9th Cir. 1997) (Chevron applies to

legislative rules, not policy guidance), cert. denied, 118

S. Ct. 1196 (1998); Southern Ute Indian Tribe v.

AMOCO Prod. Co., 119 F.3d 816, 833 (10th Cir. 1997),

on reh’g en banc, modified and adopted on other grounds,

151 F.3d 1251 (1998), cert. granted, 119 S. Ct. 899

(1999); Massachusetts v. FDIC, 102 F.3d 615, 621 (\st

Cir. 1996) (policy pronouncements less formal than legis-

lative rules “are not accorded full Chevron deference”);

Washington, 152 F.3d at 470-471 (interpretive rules not

accorded Chevron deference) .®

These courts prudently have concluded that such rules

“are entitled to less deference than published regulations

because they are not promulgated subject to the rigors of

the Administrative Procedure Act, 5 U.S.C. § 553, includ-

6 But see Herman v. Nationsbank Trust Co., 126 F.3d 1354, 1363-

64 (11th Cir. 1997), cert. denied, 119 S. Ct. 54 (1998); Elizabeth

Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170, 182 (3d Cir.

1995), cert. denied, 516 U.S. 1093 (1996).

16

ing public notice and comment, and ‘are merely internal

guidelines {that] may be altered by the [agency] at will.’”

Jacks, 114 F.3d at 985 n.1 (citations omitted). The

Tenth Circuit explained the danger of according Chevron

deference to agency interpretive rules as follows:

[A] practice of routine acceptance for interpretations

expressed in [informal] formats would, in abdication

of judicial duties under Marbury, endow them with

force of law where Congress did not intend them to

have such force. By this process, the agency would

bind the public without itself being bound by inter-

pretations in these formats. And since these formats

are exempt from APA public participation require-

ments, an especially odious frustration is visited upon

the affected private parties: they are bound by a

proposition they had no opportunity to help shape

and will have no meaningful opportunity to challenge

when applied to them.

Southern Ute Indian Tribe, 119 F.3d at 833 (citation and

footnotes omitted) (emphasis in original). Indeed, apply-

ing the Chevron rule to interpretive guidance effectively

would render the notice and comment requirement of the

APA nugatory, as agencies could issue legally binding

mandates on nothing more than the political whims of the

administrators.

For organizations such as EEAC, the Chamber, and

MMA, such a rule would be highly troubling. Companies

are highly regulated by numerous federal agencies. The

notice and comment procedure of the APA provides com-

panies the only available avenue to help shape policies

that will greatly affect their operations. The absence of

strict adherence to this requirement will lead to regulation

by ambush. Based on these considerations, “the better-

reasoned opinions” hold that interpretive rules are not

entitled to Chevron deference. Kenneth Davis & Richard

Pierce, Jr., Administrative Law Treatise §3.5 at 55

(1998 Supp.).

17

In February 1991, when EEOC published its proposed

ADA rules and guidance, the agency made no reference

to the substantive rule of law that it now proclaims—

that the phrase “substantially limited” must be made with-

out regard to corrective devices or mitigating measures.

56 Fed. Reg. 8593 (1991). It was not until EEOC

issued its final interpretive guidance, after all opportunity

for comment by the regulated community had expired,

that EEOC announced this purported rule of law. This

is precisely the sort of danger that the Administrative

Procedure Act was designed to prevent, and it is why this

Court should refuse to accord Chevron deference to agency

interpretive rules.

Although this Court has recognized that interpretive

rules should be shown “some” deference where more than

one interpretation of the statute is permissible, Reno v.

Koray, 515 U.S. 50, 61 (1995), the Court has concluded

that “interpretive rules . . . do not have the force and

effect of law, and are not accorded that weight in the

adjudicatory process.” The weight accorded such rules

is directly proportional to the “thoroughness evident in its

consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those

factors which give it power to persuade . . .” Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944). Under this

standard of review, no deference should be given to the

interpretive rule at issue in this case.”

7 We also note that EEOC’s guidance is internally inconsistent on

this point, further reducing the deference that the Court should

accord these rules. As noted above, the agency’s Interpretative

Guidance asserts that the evaluation of an individual’s impairment

should take place without regard to any mitigating measures taken.

Yet, in its explanation of what “regarded as substantially limited”

means, the agency states as follows:

[T]he individual may have an impairment which is not sub-

stantially limiting, but is treated by the employer as having

such an impairment. For example: an employee has controlled

high blood pressure which does not substantially limit his work

18

Cc. At a Minimum, This Court Should Hold That the

ADA Does Not Cover Individuals With Controlled,

Minor Impairments That Are Widely Shared

Even if this Court determines that controlling measures

should not be a factor in determining whether an in-

dividual is substantially limited, this Court should limit

such a ruling as applicable only to serious impairments,

as opposed to minor impairments that are common and

easily controlled. If this Court extends ADA protection

to individuals with impairments that are easily correctable

and unremarkable, such as high blood pressure that can

be controlled with medication, or poor vision that can be

controlled by wearing ordinary eyeglasses, it will diffuse

the protections given to those individuals actually in need

of the ADA’s protection, those individuals with true dis-

abilities. Individuals with readily correctable impairments

simply are not “substantially limited” compared to the

average person. Indeed, in determining whether an im-

pairment is substantially limiting, it “is to be measured in

relation to normalcy, or in any event, to what the average

person does.” Solileau v. Guilford of Maine, 105 F.3d

12, 15-16 (1st Cir. 1997). The Second Circuit has em-

phasized that the Rehabilitation Act does not cover minor

impairments that are not unusual:

It would debase this high purpose if the statutory

protections available to those truly handicapped could

be claimed by anyone whose disability was minor

and whose relative severity of impairment was widely

shared. Indeed, the very concept of an impairment

implies a characteristic that is not commonplace and

that poses for the particular individual a more gen-

activities. If an employer reassigns the individual to a less

strenuous job because of unsubstantiated fear that the person

would suffer a heart attack if he continues in the present job,

the employer has “regarded” this person as disabled.

29 C.F.R. App. § 1680.2(1). Thus, EEOC’s own example implicitly

recognizes that if a condition can be “controlled,” the individual

may not be substantially limited.

19

eral disadvantage in his or her search for satisfac-

tory employment.

Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) (em-

phasis added) (quoting Forrisi v. Bowen, 794 F.2d 931,

934 (4th Cir. 1986)).

Even two of the courts of appeals that have deferred

to the EEOC guidance on the question of mitigating

measures limited their rulings to suggest that the guidance

is not necessarily applicable when minor or widely shared

impairments are at issue. The Fifth Circuit held that the

EEOC’s interpretative guidance and legislative history

suggested mitigating measures should not be considered

in finding that an individual with Adult Stills Disease had

a disability? but limited its holding as applicable only to

“serious impairments and ailments:”

There is nothing in the Interpretative Guidelines or

the legislative history that suggests that all impair-

ments must be considered in their unmitigated states

and no mitigating measures may ever be taken into

account. We hold that only serious impairments and

ailments that are analogous to those mentioned in

the EEOC Guidelines and the legislative history—

diabetes, epilepsy, and hearing impairments—will be

considered in their unmitigated state.

Washington v. HCA Health Services of Texas, Inc., 152

F.3d 464, 470 (Sth Cir. 1998).

Likewise, the First Circuit, which also determined that

an individual with diabetes mellitus should be evaluated

without the use of mitigating measures to determine if he

had a disability, “venture[d] no opinion as to whether [it]

would reach the same conclusion if other medical condi-

tions or other facts were presented.” Arnold v. UPS, 136

F.3d 854, 866 (1st Cir. 1998). The First Circuit sug-

8 The Fifth Circuit reached this conclusion despite the fact it felt

that the argument that mitigating measures should be taken into

account “offered the most reasonable reading of the ADA.” Id.

20

gested *hat it might take a different approach if a non-

serious condition was at issue:

For example, we might reach a different result in

the case of a myopic individual whose vision is cor-

rectable with eyeglasses. The availability of such a

simple, inexpensive remedy, that can provide assured,

total and relatively permanent control of all symp-

toms, would seem to make correctable myopia the

kind of “minor trivial impairment,” Senate Report at

23, that would not be considered a disability under

the ADA.

Id. at n.10.

Thus, even the courts that have taken the position that

mitigating measures should not be a factor in determining

whether an individual is substantially limited only take

this position so far. These courts eknowledge that to

establish standing under part A of te ADA’s definition

of a “disability,” a condition should not be shared by a

significant portion of the general population. Therefore,

at the very minimum, this Court should endorse Congress’

intent that the ADA does not cover individuals with

minor, widely shared impairments that are readily and

easily correctable.

D. A Ruling That the Use of Corrective Measures

Should Be Considered In Determining Whether An

Individual Is Substantially Limited Will Not Dis-

courage the Use of Corrective Measuress

Petitioners and several of their amici argue that a hold-

ing that corrective measures are to be taken into account

to ascertain whether a disability exists will encourage

individuals to refrain from using corrective measures in

order to obtam the Act’s protections. This argument is

specious for seve: al reasons.

First, the purpose of the ADA is to create a level play-

ing field for individuals with and without disabilities.

Siefken v. Village of Arlington Heights, 65 F.3d 664, 666

21

(7th Cir. 1995). Essentially, Congress designed the ADA

to help those individuals who could not help themselves,

not to give special privileges to individuals who could

control the effects of an impairment but chose not to.

Indeed, part of Congress’ findings in passing the ADA

includes the following:

Individuals with disabilities are a discrete and in-

sular minority who have been faced with restrictions

and limitations, subjected to a history of purposeful

unequal treatment, and relegated to a position of

political powerlessness in our society, based on char-

acteristics that are beyond the control of such indi-

viduals and resulting from stereotypic assumptions

not truly indicative of the individual ability of such

individuals to participate in, and contribute to, so-

ciety.

42 U.S.C. § 12101(A)(7) (emphasis added). To argue

that the ADA’s protections provide an incentive to forego

medical treatment is clearly counter to the purpose of the

ADA.

Moreover, the argument that the consideration of con-

trolled measures in determining whether an individual has

a disability will prevent self-help, taken to its extreme,

Suggests that the ADA could motivate individuals to in-

flict injuries on themselves to obtain the Act’s protections.

It is difficult to believe that individuals would act in such

an irrational manner. As one commentator pointed out:

Most obviously, rational people will not cease to

mitigate their impairments because the cost of living

with an impairment that substantially limits a major

life activity, even when combined with the added

benefit of more generous ADA protection, is far

greater than the cost of undertaking such measures.

Rational individuals would pay a hundred dollars

per month for medication that would enable them

to live free of severe pain rather than sit at home

22

in pain to save a thousand dollars per month and

receive the benefits of ADA protection.

Harris, supra, at 600-601.

Ms. Harris also observes that an individual who chooses

not to control his or her impairment may not be able to

perform the essential functions of a job, with or without

a reasonable accommodation and thus will not be “quali-

fied” under the ADA. Id. See also 42 U.S.C. § 12111(8).

Indeed, as the Eighth Circuit recently decided, a police

recruit who failed to control his diabetes with medication

was not a qualified individual with a disability and there-

fore could not establish a cause of action under the ADA.

Burroughs v. City of Springfield, 163 F.3d 505 (8th Cir.

1998). See also Siefken v. Village of Arlington Heights,

65 F.3d 664, 667 (7th Cir. 1995) (“When an employee

knows that he is afflicted with a disability but needs no

accommodation from his employer, and fails to meet the

employer’s ‘legitimate job expectations,’ due to his failure

to control a controllable disability, he cannot state a cause

of action under the ADA.”) (citation omitted).

An individual’s efforts to control the effects of an

impairment do not automatically disqualify the individual

from the Act’s protections. However, “an individual’s use

of medication, or even a prosthetic limb, is part and

parcel of their condition. Thus, if as part of that condi-

tion, they are capable of performing major life activities

the same as an individual without the condition, they are

not actually ‘substantially limited’ from performing a major

life activity and therefore are not protected by the ADA.”

Adam C. Wit, Should “Mitigating Measures” Be Con-

sidered in the “Disability” Analysis under the ADA? 24

Empl. Rel. L. J. 73, 88 (Summer 1998). The notion

that individuals will avoid self-help simply to achieve the

Act’s protections is unpersuasive and should not be en-

dorsed as a legitimate reason to expand the protections of

the statute beyond its intended reach.

23

Il. THE COURT OF APPEALS CORRECTLY CON-

CLUDED THAT THE EMPLOYERS DID NOT “RE-

GARD” THE PETITIONERS AS DISABLED

A. The ADA Requires That a Plaintiff Establish That

an Employer Regarded the Individual as Substan-

tially Limited in a Major Life Activity To Establish

That the Individual Is “Regarded As” Disabled

An individual also can establish that he or she has a

disability under the ADA by showing that he or she was

“regarded as” having an impairment that substantially

limits a major life activity. 42 U.S.C. § 12102(2)(C)

(hereinafter referred to as the “regarded as” prong).®

Thus, it is not sufficient for a plaintiff simply to allege

that he or she is “regarded as” having an impairment to

establish standing under the “regarded as” prong of the

statute. Rather, the plaintiff must show that the employer

regarded him or her as having an impairment that sub-

stantially limits a major life activity. “As with real im-

pairments, . . . a perceived impairment must be substan-

tially limiting and significant.” Thompson v. Holy Family

Hosp., 121 F.3d 537, 541 (9th Cir. 1997), citing Gordon

v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 913 (11th

Cir. 1996).

1, The Perception That an Individual Is Unable

To Perform a Particular Job Does Not Translate

Into a Perception That the Individual Is Sub-

stantially Limited

The majority of cases brought by plaintiffs under the

“regarded as” prong of the ADA rest on allegations that

9 Congress emphasized that this prong was designed to protect

the individual who was not hired because of the “negative reac-

tions” of employers, and adopted the rationale used in School Board

of Nassau County v. Arline, 480 U.S. 273 (1987), in which this

Court concluded that Congress drafted the Rehabilitation Act to

address the fact that “society’s accumulated myths and fears about

disability and diseases are as handicapping as are the physical

limitations that flow from the actual impairment.” H.R. Rep. No.

101-485, pt. 2, at 53, reprinted in 1990 U.S.C.C.A.N. at 335.

24

the plaintiff is regarded as substantially limited in the

major life activity of “working” because the individual

was denied a job opportunity as the result of an impair-

ment. However, as the Fifth Circuit has observed, “[a]n

employer does not necessarily regard an employee as

having a substantially limiting impairment simply because

it believes she is incapable of performing a particular

job.” Pryor v. Trane Co., 138 F.3d 1024, 1028 (Sth

Cir. 1998). Nor does working mean “working at a par-

ticular job of that person’s choice.” Wooten v. Farmland

Foods, 58 F.3d 382, 386 (8th Cir. 1995). See also 29

C.F.R. App. § 1630.2.

Rather, “a finding that a plaintiff is substantially limited

in working requires a showing that her overall employ-

ment opportunities are limited.” Miller v. City of Spring-

field, 146 F.3d 612, 614 (8th Cir. 1998). See also

Baulos v. Roadway Exp. Inc., 139 F.3d 1147, 1151

(7th Cir. 1998) (“It is now well-established that an in-

ability to perform a particular job for a particular em-

ployer is not sufficient to establish a substantial limitation

on the ability to work; rather, the impairment must sub-

stantially limit employment generally.”)*® Thus, it is not

enough that a plaintiff simply allege that he or she is

precluded from a particular job to establish a claim under

the “regarded as” prong of the ADA based on a limita-

tion in working. Instead, an individual must establish

that the employer regards the individual as substantially

limited in a broad range of job opportunities.

Applying this logic, the Eleventh Circuit found that an

individual who had a personality disorder and therefore

10 Courts interpreting the Rehabilitation Act also have concluded

that “an impairment that interfered with an individual’s ability to

do a particular job, but did not significantly decrease that individ-

ual’s ability to obtain satisfactory employment otherwise, was not

substantially limiting within the meaning of the statute.” Jasany »v.

United States Postal Service, 755 F.2d 1244, 1248 (6th Cir. 1995)

(emphasis in original).

25

was denied FAA Class I Medical Certification was not

substantially limited in the major life activity of working

merely because he could no longer fly a commercial air-

craft. Witter v. Delta Air Lines, 138 F.3d 1366, 1370

(11th Cir. 1998). In making such a finding, the court

observed that

there are non-pilot jobs which utilize “similar train-

ing, knowledge, skills or abilities as piloting jobs.”

Such jobs include pilot ground trainer, flight simu-

lator trainer, flight instructor, aeronautical school in-

structor, as well as executive, management, and ad-

ministrative positions in flight operations for airlines,

and being a consultant for an aircraft manufacturer.

Id™

Thus, rejection from a person’s job of choice is not

enough to establish an individual is substantially limited

in the major life activity of working. Rather, an individ-

11 Indeed, the EEOC uses the following example to demonstrate

the concept of someone not substantially limited in the major life

activity of working:

A person who cannot qualify as a commercial airline pilot be-

cause of a minor vision impairment, but who could qualify as

a co-pilot or a pilot for a courier service, would not be con-

perform the specialized job of pitching baseball.

Technical Assistance Manual on the Employment Provi-

I) of the Americans With Disabilities Act 11-6 (1992).

, the EEOC argues as amicus in these cases that this

not apply because the petitioner disputes it and be-

example assumes

is

Th

that an individual could obtain a co-

EOC overlooks, however, is that the

. Indeed, the plaintiffs in Sutton do

the example demonstrates that an in-

not completely precluded from utilizing his or her

training, education, and job abilities, is not substantially limited in

EEE:

i

=

aie

vist

26

ual must be precluded from the universe of jobs open to

the individual in question based on that individual’s skills

and training. See McKay v. Toyota Motor Mfg., 110

F.3d 369, 373 (6th Cir. 1997) (A plaintiff is not sub-

stantially limited in working, when “the condition does

not significantly restrict her 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.”) Congress did not intend

to give individuals the opportunity to establish a “regarded

as” case against an employer simply because an impair-

ment precluded them from performing a specific job they

wanted. Rather, the “regarded as” prong protects only

individuals who have impairments that limit them, due to

“myth or stereotype,” from performing major life activi-

ties as compared to the general population. The special-

ized activities of flying commercial planes or holding

DOT licenses are not the types of activities most indi-

viduals are regarded as having the capability to perform.

2. An Employment Rejection Based on a Medical

Condition Is Not Enough To Establish an Issue

of Fact That an Employer Regarded an Individ-

ual as Disabled

Petitioners and several of their amici assert that when

an employer rejects an individual from employment based

on a medical condition, an issue of fact is created that

the employer regards the individual as disabled. This

argument ignores the requirement that a plaintiff show

the employer regards the individual as having an impair-

ment that substantially limits a major life activity in order

to establish a “regarded as” case.

Numerous courts have rejected the notion that an in-

dividual can establish a “regarded as” claim only because

he or she was denied employment opportunities based on

physical standards. In Smith v. City of Des Moines, 99

F.3d 1466, 1474 (8th Cir. 1996), the Eighth Circuit

.

g

:

ue

az

employee as disabled merely because the employee fails

to meet physical standards patterned on Department of

Transportation regulations. Chandler v. City of Dallas,

2 F.3d 1385 (Sth Cir. 1993), cert. denied, 511 US.

28

‘based upon the physical restrictions imposed by [her]

doctor . . . does not indicate that [the employer] regarded

[her] as having a substantially limiting impairment.’ ”

Thompson, 121 F.3d at 541, citing Wooten, 58 F.3d 382,

386 (10th Cir. 1995).

The ADA requires that individuals be perceived as

substantially limited to obtain the Act's protections, To

establish a rule that anyone with an impairment can

always establish standing under the “regarded as” prong

of the ADA based solely on a qualificstion standard in-

volving physical criteria expands the Act beyond its in-

tended reach. A decision to reject an individual solely

based on a physical standard or a medical condition is a

determination of whether an individual is qualified for a

particular employment position, not that the individual is

necessarily perceived as substantially limited in general.

B. A Ruling That a “Regarded As” Claim Can Be

Established Based on Medical or Physical Criteria

Used in Rejecting an Individual From an Employ-

ment Opportunity Will Restrict Significantly an

Employer’s Ability To Establish Job Qualifications

To allow an individual to establish a “regarded as”

claim simply because an individual was rejected from an

employment position because he or she could not meet

the employer’s criteria would unduly restrict employers

from maintaining qualification standards in the workplace.

The costs of litigating the standard every time an indi-

vidual suffered an adverse job action would be prohibitive.

It is difficult to believe that Congress intended such a

result. Indeed, as EEAC and the Chamber argued in

their brief to this Court in Albertsons v. Kirkingburg,

98-591, employers should be able to rely on physical

criteria to establish job qualifications if consistent with

business necessity. See 42 U.S.C. § 12113(a). Whether

or not a qualification standard is consistent with business

necessity, however, does not translate into a right to sue

29

under the “regarded as” prong of the ADA'’s disability

According to Petitioners’ logic, any employee rejected

for a job based on a medical condition or impairment

could maintain standing to sue an employer without any

showing that the employer believed the individual was

substantially limited in a major life activity. A hypotheti-

cal demonstrates this result. Two individuals apply for a

lead in a Broadway musical. Both have dreams of star-

dom and both have taken voice lessons. One has a poor

voice because of a throat disorder while the other has a

poor voice because of bad luck. The producer rejects

both individuals because of a simple belief that neither

individual has a voice that is of sufficient quality to

participate in the musical, not because she believes—or

even considered—that one or both of the individuals has

a throat disorder. Petitioners’ argument would support

the notion that the producer could not reject either appli-

cant without risking a “regarded as” claim.

While this example simply involves public taste, the

cases before the Court involve public safety. Employers

develop standards such as these to maintain a workforce

that exceeds the physical qualifications of the average

individual. Therefore, both the average member of the

general population and the individual who is substantially

limited compared to the average member of the general

population will be precluded from such employment op-

portunities. This preclusion does not equal a “regarded

as” claim according to the statutory definition of a “dis-

ability” which requires some evidence that the individual

was “regarded as” substantially limited.

A ruling that a “regarded as” claim exists simply be-

cause employers have relied on medical information about

the employee, or simply utilized physical criteria in de-

veloping job qualifications, will deter employers from

developing legitimate job qualifications, hindering a com-

30

pany from effectively doing business. This Court should

not permit such a result.

CONCLUSION

For the foregoing reasons, amici the Equal Employ-

ment Advisory Council, The Chamber of Commerce of

the United States of America, and the Michigan Manu-

facturers Association respectfully submit that the decisions

below should be affirmed.

Respectfully submitted,

STEPHEN A. BOKAT ANN ELIZABETH REESMAN

Rosin S. CONRAD Corrizé L. FISCHEL *

SUSSAN MAHALLATI KYSELA McGUINESS & WILLIAMS

NATIONAL CHAMBER LITIGATION 1015 Fifteenth St., N.W

CENTER, INC Suite 1200

1615 H Street, N.W Washington, D.C. 20005

Washington, D.C. 20062 202) 789-8600

202) 463-5337 Attorneys for Amicus

Attorneys for Amicus Curiae Curiae Equal Employment

The Chamber of Commerce of Advisory Council

the United States of America * Counsel of Record

J. WALKER HENRY

CLARK HILL P.L.C.

500 Woodward Avenue, Suite #3500

Detroit, MI 48226

(813) 965-8300

Attorneys for Amicus Curiae

Michigan Manufacturers Association