# Amicus Curiae Brief — Murphy v. United Parcel Service, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0185%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 516 ## Text - 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=