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

Bupreme Court, (Lg.

: FILED

Nos. 97-1943 and 97-1992 . MAR 28 1999

i IN THE Bie 3 | awe OE HE CLERIC |

Supreme Court of the United States

October Term, 1998

Karen Sutton and Kimberly Hinton,

Petitioners,

v.

United Air Lines, Inc..,

Respondent.

and

Vaughn L. Murphy,

Petitioner.

Vv.

United Parcel Service, Inc.

Respondent.

On Writs of Certiorari to the United States

Court of Appeals For the Tenth Circuit

BRIEF OF AMICUS CURIAE

SOCIETY FOR HUMAN RESOURCE MANAGEMENT

IN SUPPORT OF RESPONDENTS

Of Counsel: Peter J. Petesch

Thomas J. Walsh, Jr. Counsel of Record

Timothy S. Bland FORD & HARRISON, LLP

FORD & HARRISON, LLP 1920 N Street, N.W.

6750 Poplar Avenue, Suite 600 Suite 200

Post Office Box 171375 Washington, D.C. 20036

Memphis, Tennessee 38187-1375 (202) 463-6633

(901) 756-1550

Counsel for Amicus

David S. Harvey, Jr.

FORD & HARRISON, LLP

205 Brush Street

Post Office Box 1427

Tampa, Florida 33601

(813) 229-648 1

March 23, 1999

Balmar Legal Publishing Services, Washington, DC (202) 682-9800

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERES 1 OF AMICUS CURTAE cccsscoccccsscccccccssscsescceconsceses

SU EOAARS © OFS PARES EI INET D ccenicnsvcoctocerescccesevescesesccovesonsese 2

ARGUMENT

I. Petitioners’ proposed rule, to disregard

the actual, salutary effects of ameliorating

treatments in determining “disability”

status and “substantial limitations,” ts

unworkable and ignores Congressional

intent and the ADA’s express language. ............. 4

A. By Petitioner's Approach,

Most Americans Have

“Disabilities” Under The ADA

Considering The Individual’s

Actual Substantial Limitations is

Most Consistent With the ADA’s

Definition of “Disability”

Legislative history, other EEOC inter

pretations, and the record of the ADA in

practice support Respondents’ position

HT. Considering mitigating measures will stll

protect persons with disabilities, «0.00... 1S

CONCLUSION

ii

TABLE OF AUTHORITIES

CASES: | Pages]

Bragdon vy. Abbott, 524 U.S. 624, 118 S. Ct. 2196,

141 LB 20 S404 1998) co ccice cui ce 8.14,15,17

Buko v. American Medical Laboratories,

830 F. Supp. 899 (E.D. Va. 1992), aff'd 28 F.3d 1208

(4th Cie. 1996) ...ccccosccccccestediuscbdhincnibansbeienensiien sunnasnnnnInE 7

Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993),

reh' eg, en banc, denied, 9 F.3d 105 (5th Cir. 1993),

cert. denied, $11 US. 101 T CABG iisscc cites 14

Christian v. St. Anthony Medical Center, 117 F.3d 1051

(7th Cir. 1997), cert. denied, —U.S.—, 118 S. Ct.

1304 ( 199B)) .....c000cccesneesescesensnainunabesnaliasainnenniiiaiaannnnnnan 12

Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986).............ccceeee 7

Gilbert v. Frank, 949 F.2d 637 (2nd Cir. 1991)... cccceeeeeeee 14

Halperin v. Abacus Technology Corp., 128 F.3d 191

(4th Cig. 1997) ..1sssrccosccsesssessssitisenssceionssanninannnamnnae 13

Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928 (7th Cir.

1995) ..cccevevecossocessscssscenssossusetutaserounheteseheiininnnnnsininnnannE 11

Mackie v. Runyon, 804 F.Supp.

1506 (M.D. Fla. 1992) cccrescccocessosccconistvecnssninnecnannnanian 14

McDonald v. Pennsylvania,

62 F.3d 92 (Sad Cir, 1993)...cccorscsscesssevsncsnnneiinseciansialanaiaa “13

Reynolds v. Brock, 815 F.2d 571 (9th Cir, 1987) .......cccccceees 13

Tiff v. Secretary of Transp., 1994 WL 579912

(D.D.C.. 1994) ....ccccccsecsnsesasedenaicdvsntepsnisiinneniiaaiaaana 14

Trembczsynski v. City of Calumet City,

1987 WL 16604 (NLD. TEL. 19967) oiscscccccssnavessscecsnummniemanans 13

iii

Page(s]

STATUTES, REGULATIONS AND RULE:

Americans With Disabilities Act of 1990, 42 U.S.C. §

SPS Md siciatinhceslbccnsbidesecndbdacsseecén: 1, 4,5, 7, 8, 10, 15

EEOC Policy Guidance on Reasonable Accommodation

Under ADA, March 1999, Question 5 .......ccccssereeeeeeees 12

EEOC Policy Guidance on Reasonable Accommodation

Under ADA, March 1999, Question 22, example A.......... 18

EEOC Policy Guidance on Reasonable Accommodation

Under ADA, March 1999, Question 38 «0.0.00... 12, 13

EEOC Policy Guidance on Psychiatric Disabilities,

ES Ee a ae 13

Family and Medical Leave Act of 1993, 29 U.S.C. §§

LESSEE ToT A 17

Occupational Safety and Health Act, 29 U.S.C. §§ 561. et. seq. .....17

29 C.F.R. Pt. 1630:

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Teen recipe nacentintncemnaresioansetanceatoeqnennenestes 10

I lind ddeiesidaiaiertetutbshsouvintabeteereasbesitecestes 11

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icc cnreertntagenpestonenenes 9,15

SEES SIIET NG SN ea 12

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iv

Page(s]

MISCELLANEOUS:

Caring for the Eyes of America, the annual report of the

American Optometnc Association, St. Louis, Missouri (1998)........4

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

1998 UBC CAM, Fabs FIA ccrceresinesecrssviieniiscrsnantiythiniatiin e

S. Rep. No. 101-116 at 22-23, 24 (1989) ......ccccseeeeenereeeneees 12

SB Fed. Rag, GESSO (000 a Pececsrecsecccsrecsssasesscessstnceentnnitemstants 6

SB Fed. Tene, SEO CP ccncccsscasesenasensesqsssvesseescetngaennganann 6

INTEREST OF AMICUS CURIAE

The Society for Human Resource Management

(“SHRM”), the voice of human resource professionals for

over 50 years, submits this brief in support of Respondents

United Air Lines and United Parcel Service.! SHRM

represents over 113,000 human resource professionals in the

United States and in 80 other countries. SHRM leads,

educates, and provides a forum for human resource

professionals regarding matters of critical daily importance to

managing employees in the workplace. Human resource

professionals develop and administer structures to recruit,

train, and manage employees in all types of work

environments. SHRM and its members are deeply concerned

with understanding and implementing all non-discrimination

and equal opportunity laws and principles in the workplace.

In this particular case, SHRM’s members are typically

the persons involved in implementing, administering and

training on non-discrimination policies covering employees

with disabilities, guarding employees’ medical information,

and developing reasonable accommodations under the

Americans With Disabilities Act of 1990, 42 U.S.C. § 12101,

et seq. (“ADA”). Grasping the ADA’s fluid requirements,

especially in light of inconsistent EEOC interpretations and

conflicting court rulings, poses a unique challenge to SHRM

members and anyone managing disabilities in the workplace.

The cases before this Court on the value of mitigating

measures and treatments highlight this challenge. Though

trained in evaluating job performance and _ functional

limitations of individuals (with or without disabilities), human

resource departments and staffs lack the medical training

' Amicus files this brief, pursuant to Supreme Court Rule 37.3, with

the written consent of the parties. Evidence of said consent is filed

concurrently with this brief. No person or entity other than amicus curiae,

its members, or its counsel authored any portion of this brief or made any

monetary contribution to the preparation or submission of this brief.

2

necessary to speculate on how physical or mental conditions

would theoretically affect an individual in the absence of

effective treatments that render a person perfectly functional

in and out of the workplace. Yet, the rule urged by Petitioners

and some amici -- that mitigating measures such as medical

regimens, auxiliary aids, or common treatments should never

be considered in determining whether an individual with a

physical or mental impairment is substantially limited in a

major life activity so as to have a “disability” under the ADA

-- places human resource professionals precisely in_ this

untenable position. The practical experience of SHRM

members teaches that such a rule is simply unworkable.

Moreover, Petitioners’ proposed rule defies the language and

intent of the ADA.

SHRM urges the Court to seize this opportunity to

formulate a clear and consistent rule, one that protects the

interests of the intended beneficiaries of the ADA, that

comports with the statutory language and with the EEOC’s

approach to other aspects of the ADA, and that allows for

ease of application in the real world of the workplace,

benefitting employers and employees alike. Employees

should be assessed solely on the basis of how they actually

function, with whatever medical aids they normally use.

SUMMARY OF ARGUMENT

In enacting the ADA, Congress intended to protect the

minority of Americans with true physical or mental

disabilities who, despite their condition, can function in the

world of work. The ADA seeks to bring formerly

marginalized persons into the mainstream of society, not vice

versa. The vast majority of people who wear eyeglasses, or

who take medications that fully or substantially relieve the

effects of a wide variety of common conditions, are not

generally seen as having “disabilities.” have not been

marginalized, and should not fall within the ADA’s special

definition of its protected class. In determining who has a

“disability” under the ADA, employers and courts should

ee

3

evaluate persons individually as they actually function, and

not speculate on how they might function in some

hypothetical state.

The entire language and structure of the ADA bespeak

Congress’ intent to look to individuals’ actual abilities, and to

discourage employers from conjuring up imaginary scenarios

that only feed stereotypical views of persons with physical or

mental impairments as persons who cannot function. Thus

the rule urged by Petitioners and the EEOC not only

trivializes the ADA’s purposes, it works against those

purposes. It also places an impossible burden on employers,

who lack the resources and medical expertise to predict the

potential dysfunctions of a now-functional individual if

medications or devices were removed.

The EEOC’s interpretations of other aspects of the ADA

affirm the guiding principle that any inquiry should focus on

actual function and actual “substantial limitations” to the

individual's major life activities. Its argument that mitigating

measures should not be considered in defining an individual's

disability is therefore inconsistent with its overall approach to

the ADA. Along with an ambiguous legislative history, this

inconsistent approach has in turn led to conflicting court

rulings, and to hopeless confusion among employers and

employees alike. Again, the Court needs to articulate a clear,

simple rule, one that comports with the actual language of the

statute, that protects those intended to be protected, and that

can be readily applied in the real world of work. This real-

world, total-picture approach, one that regards each person as

a functioning individual, is far superior to the inflexible,

artificial, and confusing definitional scheme that Petitioners

seek to advance. It is also truer to the ADA’s language and

purposes.

The rule SHRM urges will not leave ADA’s intended

beneficiaries unprotected. Some ameliorative measures, such

as medication with severe side effects, may impair an

employee's function, or leave the individual _ still

“substantially limited” in his or her major life activities. In

4

such cases, those effects, too, should be taken into account in

a functional-ability test,

ARGUMENT

I. PETITIONERS’ PROPOSED RULE, TO DISREGARD

THE ACTUAL, SALUTARY EFFECTS OF AME-

LIORATING TREATMENTS IN DETERMINING

“DISABILITY” STATUS AND “SUBSTANTIAL LIMI-

TATIONS.” IS UNWORKABLE AND IGNORES

CONGRESSIONAL INTENT AND THE ADA’S

EXPRESS LANGUAGE.

In several respects, the rule which Petitioners and the

EEOC propose runs directly counter to the ADA’s purposes

as expressed in the statutory language.

A. By Petitioners’ Approach, Most Americans Have

“Disabilities” Under the ADA.

In its Findings and Purposes accompanying the ADA,

Congress hailed the protection of 43 million Americans with

disabilities, and declared the laudable goals of eliminating

disability discrimination and bringing persons’ with

disabilities into the mainstream of American society. 42

U.S.C. § 12101 (a). Far from bringing persons with

disabilities in the mainstream, however, Petitioner's proposed

rule would by definition force persons from the mainstream --

indeed, the vast majority of Americans -- into the ranks of

persons with “disabilities.”

The numbers alone reveal the fallacy of Petitioners’ rule.

For example, 147 million Americans, or 55% of the

population, wear eyeglasses or other corrective lenses. This

' Caring for the Eves of America, the annual report of the American

Optometric Association, St. Louis, Missouri (1998). In its amicus brief,

the EEOC cites a government study which found that an even higher

number of adults -- 63% -- wear eyeglasses or contact lenses. Brief for the

United States and the Equal Employment Opportunity Commission as

Amicus Curiae Supporting Petitioners, p. 10, n.1. Other statistics which

5

does not even include the persons who no longer wear

corrective lenses due to successful corrective laser surgery. In

most cases, these persons function normally in virtually all

occupations. They fly airplanes, drive trucks, and even excel

in professional sports. Yet, Petitioners and the EEOC declare

that ameliorating measures should not be taken into account

in determining whether an individual has a “disability” under

the ADA.’ B- this interpretation, conceivably 55% of the

U.S. population -- individuals without their corrective lenses,

a great many of whom could not function normally in their

present jobs without eyesight correction -- falls within ADA

coverage. Congress could not have intended to afford the

ADA such a wide sweep.’

Indeed, the example of corrective lenses represents only

the tip of the iceberg.

e The American Heart Association estimates that 96.8

million American adults (51%) have high cholesterol

levels. Often, this condition is successfully

controlled by cholesterol-lowering medication.

e As many as 50 million Americans have hypertension,

according to the American Heart Association. Many

take blood pressure medication that completely

controls their condition,

appear below were derived from the official websites of the organizations

cited: The American Heart Association (www.ambhrt.org); the National

Center for Health Statistics (www.cde.nchswww/default.htm); — the

American Psychiatric Association (www.psych-.org ).

’ The EEOC's Interpretive Guidance on Title | of the Americans with

Disabilities Act, an appendix to the EEOC’s regulations, opines that “|t}he

determination of whether an individual is substantially limited in a major

life activity must be made on a case by case basis, without regard to

mitigating measures such as medicines, or assistive or prosthetic devices.”

29 C.F.R. Pt. 1630 App. 1630.2 (j). The regulations themselves are silent

on the issue.

* Congress viewed persons with disabilities as a “minority of the

population.” 42 U.S.C. § 12101 (a) (7).

6

Nearly 15 million Americans have asthma, according

to the National Center for Health Statistics. A large

number of asthma sufferers function normally with

the use of an inhaler to alleviate their condition.

According to the American Psychiatric Association,

in any six-month period 9.4 million Americans suffer

from depression. One in four women and one in ten

men can expect to develop it during their lifetime.

As many as one in five Americans will suffer at least

one episode of major depression during their

lifetimes. Of those who suffer from depression, 80-

90% can be effectively treated. Many persons who

take antidepressants can and do remain fully

functional.

28 million Americans have some degree of hearing

loss -- but just over 2 million are profoundly deaf.

(58 Fed. Reg. 64356 (1993)). Many millions of these

individuals are fully functional, sometimes with

hearing aids.

The American Heart Association reports that

approximately 8.7 million Americans have diabetes,

with 625,000 new cases diagnosed each year. Most

diabetics live relatively normal lives through the use

of insulin and/or dietary measures.

37 million Americans have some form of arthritis (58

Fed. Reg. 5524, 5526-27 (1993)). Many take over-

the-counter pain relievers and function fully.

Many persons with seizure disorders take medication

that fully controls their condition (i.e., they have not

had a seizure in 10 years).

Millions of persons with psychological needs are

rendered fully functional by professional counseling.

7

¢ Persons with heart arrhythmia take anticoagulants to

minimize the risk of a heart attack, and live and work

as part of mainstream America.

These are but a few examples of persons with potentially

debilitating conditions who, thanks to modern medicine,

pursue normal lives and work in every kind of job imaginable.

By and large, society does not view such persons as these,

fully functional in all or virtually all respects, as having

“disabilities.” To do otherwise in order to stretch a statutory

definition, as Petitioners and the EEOC urge, trivializes the

ADA and its purposes. Worse, such a broad-brush approach

distracts attention from the ADA’s intended beneficiaries,

those who truly have disabilities but who can still work and

make significant contributions to society. A statute that

protects everyone protects no one. Moreover, such

indiscriminate labeling tends to heap suspicion and ridicule on

the very persons whom the statute seeks to protect. This

result runs directly counter to Congress’s stated intent to

protect individuals with disabilities from unequal treatment

“based on characteristics that are beyond the control of such

individuals and resulting from stereotypic assumptions not

truly indicative of the individual ability of such individuals to

participate in, and contribute to, society.” 42 U.S.C.

§121101(a\(7).

In sum, with the ADA, Congress intended to protect a

limited class of persons: specifically, those who suffer from

substantial limitations significantly more severe than those

encountered by the average person in everyday life, not those

who suffer from relatively minor, widely shared non-limiting

conditions. Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir.

1986) (to hold otherwise would “debase” the “high purpose”

of a statute that seeks to protect “those truly handicapped”);

Buko v. American Medical Laboratories, Inc, 830 F. Supp.

899, 904 (E.D. Va. 1992), aff'd 28 F.3d 1208 (4th Cir. 1994).

In order to serve these legislative purposes, and to discourage

rather than to feed negative stereotypes that the statute

decries, employers and courts should consider individuals in

8

their actual state, with their actual substantial limitations, if

any, and not in a hypothetical condition.

B. Considering the Individual’s Actual Substantial

Limitations is Most Consistent with the ADA’s

Definition of “Disability.”

The ADA defines an actual disability 25 “a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual.” 42 U.S.C. § 12102

(2) (A). It does not say an individual has a disability if he or

she has an impairment that might or could substantially limit a

major life activity.” Thus, a plain, common-sense reading of

the statute requires a determination of whether an individual

is currently or actually “substantially limited.” If he or she is

not substantially limited because of some reasonable

mitigating measure, then that person should not be considered

to have a “disability.” Any other reading of the statute would

not only corrupt its plain meaning, but would place an

impossible burden on the lay business persons responsible for

adhering to it.

The definition stresses actual function rather than

theoretical condition, and individual assessment rather than

blanket categorization. As this Court held last term in

Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196. 141 L.Ed

2d 540 (1998), a physical impairment, including poor vision,

must first be “substantially limiting” to the individual in order

to rise to the level of “disability.” 141 L.E.2d at 557 and 14]

L.Ed.2d at 574 (O'Connor, concurring in the judgment in part

and dissenting in part). Although a nearsighted person whose

vision is corrected to 20/20 by corrective lenses. or a person

with asthma who uses an inhaler. may have a “physical

* Ignoring the beneficial effects of medical treatments, as Petitioners

and the EEOC urge, reduces the statutorily-mandated disability equation

to speculation and stereotypes about an impairment. If Congress wished

to link protection to impairments alone, it would have -- but C ongress

instead added the individualized inquiry on “substantial limitations” to the

disability definition.

9

impairment,” neither impairment is, in reality, “substantially

limiting” with respect to major life activities. thanks to simple

medical devices. For all practical purposes, millions of

persons benefitting from salutary effects of modern medicine

are no different from the mythical “average person” -- against

whom “substantial limitations” are measured. See 29 U.S.C,

§ 1630.2 (j) (1) (i) and (ii). Indeed, at 55% of the population

(or 63% of adults), the “average person” uses corrective

lenses.

Yet, Petitioners and the EEOC advocate imagining these

persons in a theoretical condition, without their eyeglasses or

inhalers. The EEOC’s vacillating position in this very case

illustrates the impossibility of maintaining one’s balance on

this logical tightrope. In its Certiorari Brief in Sutton, the

EEOC correctly conceded that both the Sutton vy. United Air

Lines and the Murphy v. United Parcel Service cases present

the identical question on “whether the existence of an actual

disability under the ADA is to be assessed with or without

taking into consideration mitigating or ameliorative measures

employed by the individual involved.” U.S. Brief as Amicus

Curiae on the Petitions for Writs of Certiorari at 8 (emphasis

added); see also id. at 13. The EEOC then argued that

Murphy was the better vehicle to address the issue, or that the

Situation raised in Sutton should be avoided. because the

example of correctable vision in Sutton may pose a “special”

exception. /d. at 8, 13-14, fn. 3. The EEOC offered no

reasoned explanation why mitigating measures should be

considered only in the case of correctable vision impairments.

Indeed, given the wide variety of accessible medical

treatments for a wide variety of impairments, the same

reasons that support creation of a “special exception” for

corrective lenses also call for consideration of mitigating

measures in many other cases. Apparently recognizing that

this argument exposed the fatal flaws in its entire position, the

EEOC then reversed field in its amicus briefs and argued

against treating corrective lenses as an exception. The

EEOC’s own shifting positions beg the question of whether

other measures which not only alleviate certain symptoms of

10

an impairment, but which virtually eliminate any “substantial

limitations” emanating from the impairment, can be ignored

in applying a statute dedicated to mainstreaming, and not

segregating, persons with “disabilities.” Such measures

should not be ignored. They affect the way people actually

function, as well as the way people are perceived as

functioning.

This leads to yet another dissonance between the

EEOC’s position and the ADA’s language. As the third

prong of the ADA’s definition of “disability” stresses, the

perception of disability where none actually exists creates a

new protected class that, but for the active imaginations of

others, never had to exist. See 42 U.S.C. § 12102 (2) (C)

(“disability” means “being regarded as having such an

impairment [that substantially limits one or more of the major

life activities of such individual]”).” Under the ADA, then.

the employer should focus not on the least that individuals

theoretically could do, but rather, on the most they actually

can do. Yet, the EEOC’s approach to mitigating measures

would require the employer, through an imaginative leap, to

perceive as “disabled” a person who functions normally.

Thus, even aside from the practical difficulty or impossibility

of asking employers to imagine functional persons in a

hypothetical, less-functional state, such an exercise runs

directly counter to Congress’ purposes. Indeed, elsewhere the

As the EEOC’s own interpretive guidance explains, “[{a}n individual

satisfies the first part of this definition if the individual has an impairment

that ts not substantially limiting, but the covered entity perceives the

impairment as being substantially limiting. For example, suppose an

employee has controlled high blood pressure that is not substantially

limiting. If an employer reassigns the individual to less strenuous work

because of unsubstantiated fears that the individual will suffer a heart

attack if he or she continues to perform strenuous work, the employer

would be regarding the individual as disabled.” 29 C.F.R. Pt. 1630, App.

§ 1630.2 (1) (emphasis added). Also implicit in this guidance is the

EEOC’s observation that controlled conditions may not be “disabilities.”

~

ADA and the EEOC encourage employers to view employees

in their maximum and actual, present functioning capacity.

In other contexts, including a case involving an employer

unaware of an employee’s medical condition, courts have

correctly surmised that “[t}he ADA does not require

clairvoyance.” Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928,

934 (7th Cir. 1995). Similar “clairvoyance” should not be

required to picture functional persons as “substantially

limited.”

Il. LEGISLATIVE HISTORY, OTHER EEOC INTER-

PRETATIONS, AND THE RECORD OF THE ADA IN

PRACTICE SUPPORT RESPONDENTS’ POSITION.

As explained above, the ADA’s plain language only

mandates protection of those who are “substantially limited,”

and not persons who “would be” or who are, hypothetically,

“substantially limited.” Similarly, the ADA’s legislative

history does not mandate protection of individuals who can

function normally with mitigating measures. Indeed, the

legislative history itself is inconsistent. At times, it indicates

that disability should be determined without regard to

mitigating measures. At other times, though, the legislative

history indicates that the focus should be on an impairment’s

effects on the individual with the impairment, not on the

impairment’s qualities, and seems to indicate that it would be

appropriate to consider mitigating measures.” Thus the

?

The EEOC discourages other forms of speculation. As the EEOC’s

interpretive guidance on qualified persons with disabilities explains,

“[t}his determination should be based on the capabilities of the individual

with a disability at the time of the employment decision, and should not be

based on speculation that the employee may become unable in the future

or may cause increased health insurance premiums or workers

compensation costs.” 29 C.F.R. Pt. 1630, App. § 1630.2 (m) (emphasis

added).

Parts of the ADA’s legislative history suggest that Congress

intended disability to be determined without regard to mitigating

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

U.S.C.C.A.N. 303, 334. Yet, a Senate report indicated that in determining

]?

legislative history taken as a whole does not preclude

consideration of mitigating measures in determining

“disability.”

The EEOC is equally inconsistent. While the agency

argues that mitigating measures should not be taken into

consideration when determining whether an individual has a

disability, it is perfectly willing to consider mitigating

measures in other circumstances under the ADA. For

example, in addressing “reasonable accommodations.” the

EEOC correctly explains that it is the individual’s known

functional limitations -- and not the underlying “impairment”

-- that must be accommodated. 29 C.F.R. § 1630.9 (a). See

also “EEOC Policy Guidance on Reasonable Accommodation

Under ADA,” March i999, Questions 5, 38.

The glaring contradictions of the EEOC’s Positions on

mitigating measures are most evident its approach to negative

side effects of medication. In its Enforcement Guidance on

the Americans with Disabilities Act and Psychiatric

Disabilities, the EEOC unequivocally states, “If medications

cause negative side effects, these side effects should be

considered in assessing whether the individual is substantially

limited.” (emphasis added). Accord, Christian v. St. Anthony

Medical Center, 117 F.3d 1051, 1052 (7th Cir. 1997), cert.

denied, 118 S. Ct. 1304 (1998). The EEOC reiterates this

position in its March 1999 Policy Guidance on Reasonable

Accommodation Under ADA, explaining that “[{t}he side

whether a disability exists, the focus should be on an impairment's effects

on the individual with the impairment, not on the impairment’s qualities.

S. Rep. No. 101-116 at 22-23 (1989). The same report noted that an

individual who wears a hearing aid could be “regarded as” disabled even if

the hearing aid compensated for the impaired hearing. Id. at 24. If such

an individual were covered under the “substantially limited” language of

the definition of disability without regard to the mitigating measure

(hearing aid), there would have been no need to look to the “regarded as”

portion of the definition. 29 C.F.R. § 1630.2 (g). That is, others’

perceptions concerning the hearing aid would be irrelevant unless the

individual's hearing were not covered by the “substantially limited”

language.

eS ll—“—i—N

13

effects caused by the medication that an employee must take

because of the disability are limitations resulting from the

disability.” “EEOC Policy Guidance on Reasonable

Accommodation Under ADA,” March 1999, Question 38. By

way of example, the Guidance on Psychiatric Disabilities

states that if an employee with major depression is often late

for work because of medication side effects that make him

extremely groggy in the morning, the employer, absent undue

hardship, must consider offering a reasonable accommodation

such as allowing him to come into work one hour later each

day. On the other hand, that same Guidance also

unequivocally states that the “corrective effects of

medications” should not be considered in deciding if an

impairment is so severe that it substantially limits a major life

activity. It defies logic for the EEOC and ADA claimants to

have it both ways. SHRM’s approach would eliminate these

inconsistencies.

* Rehabilitation Act cases decided prior to the ADA suppor

Respondents’ position that ameliorative measures belong in the disability

equation. See Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987)

(evaluated plaintiff in actual, medicated state, not a hypothetical,

unmedicated state); Trembczsynski v. City of Calumet City, 1987 WL

16604 (N.D. Ill. 1987) (officers do not have “handicaps” if vision is

correctable to 20/20). Cases decided under the Rehabilitation Act since

ADA offer little if any additional guidance. As under the ADA, courts

4

Accordingly, taking the ADA’s legislative history and

pre-ADA cases as a whole, nothing definitively endorses

Petitioner's approach or precludes that of Respondent. On the

other hand, the checkered history of the ADA in practice

strongly commends Respondents’ proposed rule. The chaos

that preceded the statute has only grown since its enactment.

It has spawned a legion of litigation, and has sown discord

and confusion among employees as well as employers." A

clear and simple rule, such as the one Respondent proposes,

will establish a consistent principle that lay persons can

understand and follow. It is a rule that employers can live

with and employees can work with. Most important of all, it

is a rule whose implementation will serve the original purpose

of the ADA: to assure that employers, and society as a whole,

will view all individuals at their best and not their worst, and

as they actually function.

split on whether to consider mitigating measures in determining handicap

are split. See, e.g.. Mackie v. Runyon, 804 F.Supp. 1508, 1510-11 (M.D.

Fla. 1992) (bipolar disorder stabilized by medication is not substantially

limiting); Chandler v. City of Dallas, 2 F.3d 1385, 1390-91 (Sth Cir.

1993\(an insulin-dependent diabetic did not have a disability), reh'g, en

banc, denied, 9 F.3d 105 (Sth Cir. 1993), cert. denied, 511 U.S. 1011

(1994). Cf. Tiff v. Secretary of Transp.. 1994 WL 579912, at *3-*4

(D.D.C.1994\(depression controlled by medication was a disability);

Gilbert v. Frank, 949 F.2d 637, 641 (Qnd Cir. 1991 (an individual who

could not function without kidney dialysis had a substantially limiting

impairment). Thus, although this Court stated in Bragdon that the ADA

provides no less protection than the Rehabilitation Act, 141 L.Ed.2 at 553.

the issue was never conclusively decided under the Rehabilitation Act.

“ The EEOC argues that adopting SHRM’s position “would inject

uncertainty and instability into the system. See 97-1943 U.S. Brief at 8:

97-1992 U.S. Brief at 16-17. Yet, actual experience has shown that the

EEOC’s approach to this issue has itself created that unhappy result. A

consistent rule based on actual observation and function, rather than on

prediction and speculation, will far more likely contribute to a stable

system.

1S

fl. CONSIDERING MITIGATING MEASURES WILL

STILL PROTECT PERSONS WITH DISABILITIES

Contrary to Petitioners’ and the EEOC’s contentions,

SHRM’s approach would not set such a restrictive definition

of “disability” as to gut the ADA and leave virtually no

individuals subject to its protections. Rather, SHRM’s rule

prevents ADA compliance from becoming a free-for-all

haven for every individual with some minor, correctable

physical or mental condition and focuses the ADA’s

protections on the individuals Congress intended to protect.

The effect of each individual's condition, as well as the effect

(both good and bad) of any medical treatment or device.

should all be taken into account as they affect the ability to

function.

The ADA defines “disability” as “a physical or mental

impairment that substantially limits one or more of the major

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

“Substantially limits,” as defined by the EEOC, means:

Unable to perform a major life activity that the

average person in the general population can

perform; or

Significantly restricted as to the condition, manner

or duration under which an individual can perform a

particular major life activity as compared to the

condition, manner, or duration under which the

average person in the general population can

perform the same major life activity.

29 C.F.R. § 1620.2(j)(1)(i and ii). More significantly, as the

Court observed in Bragdon, “the Act addresses substantial

limitations on major life activities, not utter inabilities.” 141

L.Ed.2d at 559. “When significant limitations result from the

impairment, the definition is met even if the difficulties are

not insurmountable.” /d. Under SHRM’s proposed

interpretation, an employer or court confronted with an

individual claiming to have a disability and to be subject to

the ADA’s protections would first determine if the

16

employee's abilities during the relevant time period

demonstrate a substantial limitation of a major life activity as

compared to the “average” person.'' It is the individual's

present ability, as affected by the impairment and any side

effects of medication or treatment, that would be the focus of

the examination. Courts and employers would not be

expected to speculate about what the individual's limitations

could be if untreated (or create hypothetical limitations where

none currently exist).

Borrowing the EEOC’s generalized example used on

page 14 of its Amicus Brief in Murphy v. United Parcel

Service, Inc., an employee who requires a modification of his

work to accommodate an uncontrollable condition would be

entitled to the modification (provided it is reasonable,

effective and did not cause an undue hardship to the

employer). If another employee's condition is somewhat

controlled (but still substantially limiting), the employee

would also be entitled to reasonable accommodation from the

employer. Nevertheless, an employee whose medication

eliminates an impairment would not be entitled to an

accommodation as none would be needed."

The EEOC's interpretation creates additional conflicts and

questions. For example, when determining what the “average” person can

do, are the “average” person's abilities examined with or without

mitigating measures? If the “average” person's abilities are examined

with mitigating measures, then it is possible that every individual (or a

majority of individuals) could be classified as having “disabilities” since

they would be substantially limited in some major life activity (without

mitigation) that the “average” person could perform (with mitigation). If

the “average” person's abilities are examined without mitigating

measures, then courts and employers will be forced to speculate twice --

first, with regard to the individual's limitations in the absence of

mitigation and, again, with respect to the “average” person's abilities in

the absence of mitigation.

“ The EEOC complains in its example that employers would be free to

discharge employees who sought permission to take medication or

treatment that eliminates their condition. Such unfounded concerns ignore

several key principles. First, the EEOC attempts to paint an improbable

17

SHRM’s proposed standard when applied to real life

examples proves that the EEOC’s proposed interpretation is

unneeded, and that individuals whose condition and/or

treatment substantially limits a major life activity will be

protected by the ADA. In the case of human

immunodeficiency virus (“HIV”), this Court determined that

an individual's HIV infection rises to the level of a disability.

This Court noted the “predictable and, as of today, an

unalterable course” of the disease on an individual’s immune

system. Bragdon, 141 L.Ed.2d at 554 (emphasis added).

With or without protease inhibitors, part of the combination

therapies that help keep many persons with HIV healthy for

longer, the retrovirus’ genetic material becomes integrated

with the chromosomes of the body's cells. /d. The latent

viral reservoir of HIV slowly attacks the immune system even

though anti-retroviral therapies can prolong persons’ disease-

free states. These particular “mitigating measures” therefore

do not eliminate the “substantial limitations” on the major life

activities that the Court discussed and appeared willing, but

unable, to discuss in Bragdon. Moreover, this vigorous

medical regimen exacts other real costs and limitations on the

individuals undergoing combination therapies. The regimen

itself requires strict adherence to diet and medication

schedules. Acute side-effects associated with the treatment

picture of some Orwellian employer who fires employees for taking

prescribed medication. The EEOC is attempting to push the protections of

the ADA into areas Congress never intended it to cover. Everyone would

equally be offended if an employer fired an employee for taking aspirin

because the employee had a headache. Yet, an employee with a one time

headache who is taking aspirin would not have a “disability” under any

standard adopted by the Court. Second, an employee's restricted regimen

of treatment (that, for example, required a certain diet and timing for the

taking of medication) may substantially limit a major life activity and still

allow the employee to be protected by the statute. Finally, Congress and

employee's ability to seek and receive medical treatment (such as the

Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601. er. seq.. the

Occupational Safety and Health Act, 29 U.S.C. §§ 561, ef. seg. and state

leave and workers compensation laws).

18

may include nausea, diarrhea, and neuropathy (numbness in

the extremities). In the everyday context of the workplace, it

is more often these disruptive regimens and the individual

side-effects that human resource professionals must

accommodate than the underlying viral infection itself."

There is every reason to believe that, in viewing the HIV-

positive employee in the actual condition that must be

accommodated under ADA, the person is still “substantially

limited” even with the mitigating treatments and is therefore

protected under the ADA.

This example, as in the case of persons with prosthetic

legs or using a wheelchair, shows that under SHRM’s

proposed rule, the persons intended to be protected under

ADA may still be “substantially limited,” protected, and

entitled to reasonable accommodations even when helpful

medical treatments and devices -- which affect the actual

condition and functional limitations of the individual -- are

taken into account.

CONCLUSION

The Court should resolve the inconsistencies in the

courts below and the internal contradictions in the Petitioners’

and EEOC’s position by articulating a clear, simple rule: For

purposes of determining “disability” status under the ADA,

individuals should be assessed in light of their actual ability to

function and any actual “substantial limitation” to their major

life activities. The assessment should take into account both

the beneficial and detrimental effects, if any, of measures,

devices and treatments used to ameliorate or eliminate the

condition in question. This principled, common-sense

~ The EEOC’s new guidelines on reasonable accommodations even

explain that it is these limitations from treatments that must be

accommodated. “EEOC Policy Guidance on Reasonable Accommodation

Under ADA.” March 1999, Question 22, example A (citing limitations

and side effects from HIV treatment regimen to be accommodated).

19

approach will facilitate employers’ ADA compliance, while

also protecting those whom Congress intended to protect.

Respectfully submitted,

Of Counsel: Peter J. Petesch

Thomas J. Walsh, Jr. Counsel of Record

Timothy S. Bland FORD & HARRISON, LLP

FORD & HARRISON, LLP 1920 N Street, N.W.

6750 Poplar Avenue, Suite 600 — Suite 200

Post Office Box 171375 Washington, D.C. 20036

Memphis, Tennessee 38187- (202) 463-6633

1375

(901) 756-1550 Counsel for Amicus

David S. Harvey, Jr.

FORD & HARRISON, LLP

205 Brush Street

Post Office Box 1427

Tampa, Florida 33601

(813) 229-6481

March 23, 1999