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

Reine

Supreme Court, U.S

i pe a

MAR 24 1999

No. 97-1992

Jn the Supreme Court of the United States

OCTOBER TERM, 1998

VAUGHN L. MURPHY, PETITIONER,

V.

UNITED PARCEL SERVICE, INC., RESPONDENT.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF AMICUS CURIAE FOR THE AMERICAN

TRUCKING ASSOCIATIONS AND THE NATIONAL

ASSOCIATION OF MANUFACTURERS, ET AL.,

IN SUPPORT OF RESPONDENT

ROBERT DIGGES JAMES D. HOLZHAUER

ATA Litigation Center Counsel of Record

2200 Mill Road TIMOTHY S. BISHOP

Alexandria, VA 22314 NICOLA JACKSON

(703) 838-1865 Mayer, Brown & Platt

190 South LaSalle Street

JAN AMUNDSON Chicago, IL 60603

General Counsel (312) 782-0600

QUENTIN RIEGEL

Deputy General Counsel

National Association of Manufacturers

1331 Pennsylvania Avenue, N. W.

Washington, DC 20004

(202) 637-3000

Counsel for Amici Curiae

QUESTIONS PRESENTED

The amici curiae will address the following questions:

1. Whether assessment under the Americans with Disabili-

ties Act of a plaintiff's limitations must include consideration

of corrective measures that ameliorate the effects of an

impairment on major life activities.

2. Whether, when an employer terminates an employee

because that employee fails to satisfy an objective job

requirement as the result of a medical condition, that

employer necessarily regards the employee as disabled.

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED ...... kee

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

STATEMEMT ......:.0<ihvnies ee

ARISUMENT ... «0s <5) aa see

ARGSUBMIENE ...2000046 ene 4 be ee

I. MITIGATING MEASURES MUST BE CON-

SIDERED IN DETERMINING IF AN INDI-

VIDUAL IS DISABLED UNDER THE AMER-

ICANS WITH DISABILITIES ACT .......

A. To Give Meaning To The Statutory Phrase

“Substantially Limits,” Courts Must Incor-

porate Mitigating Measures Into The As-

sessment Of Disability .......s60600.%

B. Legislative And Administrative Sources Do

Not Undercut The Statutory Directive That

Mitigating Measures Be Factored Into The

Disability Determination ..........

1. The legislative history does not support

disregarding a plaintiff's use of medi-

cations or medical devices .......

2. The EEOC’s guidelines warrant no

deference because they conflict with

the statutory text and are internally

a ee eee ey

13

13

TABLE OF CONTENTS—Continued

C. Ignoring Mitigating Measures Expands The

ADA Well Beyond Its Intended Scope By

Affording Protection To A Widespread

Group Of Individuals With Non-Limiting

RR a eS a

Il. AN EMPLOYEE CANNOT QUALIFY AS

DISABLED UNDER THE “REGARDED AS”

PRONG MERELY BECAUSE HE FAILED

TO SATISFY AN OBJECTIVE REQUIRE-

MENT OF A SPECIFIC JOB ..........

ete tc ells 5 din ces ks ss 900

19

iv

TABLE OF AUTHORITIES

Cases Page

Arnold v. United Parcel Serv., Inc., 136 F.3d 854

Oe I UR a ee ee 11, 16

Batterton v. Francis, 432 U.S. 416 (1977) ....... 16

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

Ee dks ork tae SS eek 25, 26

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

Council, Inc., 467 U.S. 837 (1984) ....... 16, 17

City of Chicago v. Environmental Defense Fund,

508 Wa See CD cial Gin Ra Wk Cee eR 0s 13

Connecticut Nat'l Bank v. Germain, 503 U.S. 249

CORED cok Owe wee wes Oe eee er 7

Cook v. Rhode Island, 10 F.3d 17 (ist Cir. 1993) 23, 24

Deas v. River West, L.P., 152 F.3d 471 (Sth Cir.

SED. owiehe ne Ceo Dba 22, 23, 26

Dutcher v. Ingalls Shipbuilding, Inc., 53 F.3d 723

CG, Meee wesete ks awk ond 9, 18, 22, 23

Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) . . 23, 25

Francis v. City of Meriden, 129 F.3d 281 (2d Cir.

re es Pe ere Oy 19, 23, 24

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

BERU) au vous Swe 244 8, 10, 16, 17, 21

Hal erin v. Abacus Technology Corp., 128 F.3d

RD! GG Ge chew eccet eh dee es Fas 8

Homeyer \. Stanley Tulchin Assocs., Inc., 91 F.3d

ot fe) eee 10, 11

Vv

TABLE OF AUTHORITIES-Continued

Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996) . 9, 22

Martin v. Occupational Safety & Health Review

Comm'n, 499 U.S. 114 (1991) ............ 16

Matzcak v. Frankford Candy & Chocolate Co., 136

Pe, OE os ce cow 8 ae 6 0 16

Patrick v. Southern Co. Servs., 910 F. Supp. 566

(N.D. Ala.), aff'd, 103 F.3d 149 (11th Cir.

Se ou ok hed 50 NOs on webs 19, 20

Public Employees Retirement Sys. v. Betts, 492 U.S.

ee So ee 17

Ratzlaf v. United States, 510 U.S. 135 (1994) ..... 13

Roth v. Lutheran Gen. Hosp., 57 F.3d 1446 (7th

2 BRS ee ee ee 8,9, 18

Runnebaum v. Nationsbank of Md., N.A., 123 F.3d

SE EE cba cla od Mahe a cb dd lkny oo 22

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d

it ED (6 WS niches oo nates « bute e ss be 11, 22

School Bd. v. Arline, 480 U.S. 273 (1987) ..... 22, 24

Still v. Freeport-McMoran, Inc., 120 F.3d 50 (Sth

ye CD. db. weve e.6 0 '6.450.0 a ee phe 8,9

ee ee ene

vi

TABLE OF AUTHORITIES-Continued

Page

Sutton v. United Air Lines, 130 F.3d 893 (10th

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

WO sete cesar eke Cu 8, 10, 16, 17

Swain v. Hillsborough County Sch. Bd., 146 F.3d

Saw Gee EE 6 ove oe oa ee 7)

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

Gav Ge a, BOs cs ee ee te 16

Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir.

OE bday a br A oe dhe Re beer. 25

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

SD. as wen eee se ce ta oe bee 24, 25

Statutes

SS UBER & Meee ke Sa ba kay cca 21

Tp We rh 6 6 Sa e's Oe ore 14

42 U.S.C. § 12102(2)......... Reapers tyke Fen 6

Ce Wi. BERR nc ccc eee 6, 7, 8, 10, 14

Sp ees OD 6-6 6 oo bd he i Dee 22

SP We ES ees os 4s ok cece: 5

A E00 SUR! See 13

29 C.F.R. gt. 1630.20) app. .......... 16, 17, 18

SP CP GSE vnc cc bcc cuuene.. 26

Vii

TABLE OF AUTHORITIES-Continued

Page

a Cae OD v's os Svc ivic. 17, 18, 22, 24

PN, a5 o's oe os bb 6 cee 27

TP See Do so sdk kw ene Odean 4

Sp ei bw bo Se. stiles dd ce 4

Miscellaneous

American Heart Association, 1999 Heart and Stroke

Statistical Update—High Blood Pressure (vis-

ited Mar. 12, 1999 at http:// www.amhrt.org/

Br esi y ate ae ce Ba ane 20

So a ee 11

H.R. Rep. No. 485, Pt. II, 101st Cong., 2d Sess.

pa SE PE AS pe aa 12, 13, 14, 19, 21, 24

H.R. Rep. No. 485, Pt. Ill, 101st Cong., 2d Sess.

ah Pd din arate os aS bee clon acs 22

National Advisory Health Council, Vision Re-

search—A National Plan: 1999-2003, U.S.

Dep’t of Health and Human Servs., NIH Pub.

MEW a 36 6 oe bab ob a eels ed oe 20

Se Oe ee Cee er

Vili

TABLE OF AUTHORITIES-Continued

Page

National Center For Health Statistics, Number of

Persons Using Assistive Technology Devices by

Age of Person and Type of Device: United

States, 1994, Centers for Disease Control,

Table 1 (visited Mar. 16, 1999, at http://www.

cdc.gov/nchswww/about/major

/nhis_dis/ad292tbl.htm) ................ 20

National Institutes of Health Consensus Statement

Online, Noise and Hearing Loss (Jan. 22-24.

1990) (visited Mar. 12, 1999, at http:// odp.od.

nih. gov/consensus/cons/hearing. htm) Bh eaiae a 20

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

BRIEF AMICUS CURIAE OF THE AMERICAN

TRUCKING ASSOCIATIONS AND THE NATIONAL

ASSOCIATION OF MANUFACTURERS, ET AL., IN

SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE'

The American Trucking Associations, Inc. (“ATA”) is

a trade association of motor carriers, state trucking

associations, and national trucking conferences, created to

promote and protect the interests of the trucking industry.

ATA membership includes more than 3,700 trucking

companies and industry suppliers of equipment and services.

Directly and through its affiliated organizations, ATA

represents over 34,000 companies and every type and class

of motor carrier operation in the United States. ATA

regularly advocates the trucking industry’s common interests

before this Court and other courts.

The National Association of Manufacturers (“NAM”) is

the nation’s oldest and largest broad-based industrial trade

association. Its nearly 14,000 member companies and

subsidiaries, including 10,000 small manufacturers, employ

approximately 85% of all manufacturing workers and

produce over 80% of the nation’s manufactured goods.

More than 158,000 additional businesses are affiliated with

the NAM through its Associations Council and National

Industrial Council.

The American Moving & Storage Association (“AMSA”)

is the national trade association of the moving and storage

' The written consents of the parties to the filing of this brief have

been filed with the Clerk. This brief was not authored in whole or

in part by counsel for a party, and no person or entity, other than

the amici curiae, their members, and their counsel made a

monetary contribution to the preparation and submission of this

brief.

|

2

industry. It has approximately 3,500 members worldwide and

represents the entire spectrum of the United States domestic

moving and storage industry. AMSA’s membership includes

25 national van lines, 1,100 independent regulated carriers,

1,600 agents of van lines (1,000 of whom are also regulated

carriers), and over 500 international movers.

The Towing & Recovery Association of America

(“TRAA”) is a national association of more than 1,400

towing and recovery operators serving North America.

TRAA is charged with promoting professionalism, quality

customer service, and safety in towing operations throughout

the country.

The Specialized Carriers & Rigging Association

(“SC&RA”) is a national association of motor carriers that

transport commodities whose unusual size or weight requires

special transportation equipment. SC&RA’s over 1,000

members include steel haulers, oil field equipment

transporters, crane and rigging companies, millwright

contractors, and transporters of construction and military

equipment.

The Truckload Carriers Association (“TCA”) is a

national trade association representing the motor carrier

industry’s irregular-route truckload segment (such as dry

van, refrigerated, flatbed, and dump trailers). TCA’s more

than 600 motor carrier members are domiciled throughout

the continental United States, and serve the United States,

Mexico, and Canada.

The National Tank Truck Carriers, Inc. (“NTTC”) is a

national trade association of 200 corporate members

specializing in transporting hazardous materials, substances,

and wastes in cargo tank trucks. Its members operate

throughout the United States, Mexico, and Canada.

3

The Association of Waste Hazardous Materials

Transporters (“AWHMT”) is a national! association of motor

carriers that transport hazardous waste materials, such as

industrial and radioactive wastes. Through its approximately

80 members, the AWHMT promotes professionalism and

performance standards that minimize risks to the

environment, public health, and safety.

The National Automobile Transporters Association

(“NATA”) represents motor carriers that transj ort over 95%

of all new motor vehicles through either driveaway or

truckaway operations. NATA represents the joint interest of

its nineteen carrier members, and seeks continuously to

improve their quality of service, safety, and productivity.

The issues at stake in this case are of direct concern to

amici and their members. Amici strongly support, and are

deeply committed to, equality of employment opportunity for

all persons and believe that unlawful discrimination in all

forms should be eliminated from the workplace. At the .ame

time, members of amici, as employers of millions of

workers, have a large stake in ensuring that the provisions of

the Americans with Disabilities Act are correctly and fairly

applied.

If this Court reverses the Tenth Circuit’s decision and

excludes mitigating measures from the disability deter-

mination, individuals whose medicated or otherwise corrected

conditions do not significantly restrict their functional

abilities could qualify as “disabled” persons entitled to the

ADA’s full panoply of protections. Such an expansion of the

term “disability” would ignore the statutory requirement that

an impairment “substantially limit” one or more of a

person’s major life activities. At odds with congressional

intent, it would automatically turn a huge segment of the

American population into “disabled” persons covered by the

Act, undermining the ADA’s goal to eliminate discrimination

4

against the truly disabled. Amici have strong interests in

establishing a fair and workable standard of disability that,

by taking into account internal and external mitigating

factors, encompasses only those persons who are truly

limited in a major life activity.

STATEMENT

Petitioner Vaughn Murphy has lived with high blood

pressure for most of his life. Pet. App. 2a, 13a. He

experiences virtually no limitations from his hypertension

because he controls the condition with medication. Jd. at 4a,

13a. Murphy’s extensive employment history exemplifies the

lack of constraints that his high blood pressure places on his

daily life. Prior to applying for a mechanic position with

respondent United Parcel Service (“UPS”) in 1994, he had

worked in mechanic jobs for over 22 years. Jd. at 13a. As

his doctor testified, Murphy “functions normally doing

everyday activity that an everyday person does.” Jd. at 4a.

Unlike Murphy’s previous mechanic jobs, however, the

UPS position involved some driving and so required medical

certification pursuant to Department of Transportation

(“DOT”) regulations. Those regulations mandate that

commercial vehicle drivers maintain blood pressure of

160/90 or lower. They exist to ensure that every driver on

the road can operate vehicles safely. Pet. App. 3a & n.1,

14a-16a; 49 C.F.R. §§ 391.41(b)(6), 391.43. Murphy knew

that he would have to pass DOT physical standards to secure

the job with UPS. Pet. App. 13a. Yet Murphy has never

been—and will never be—capable of reducing his blood

pressure to the necessary level. Jd. at 16a.

When Murphy took his pre-employment DOT physical

in August 1994, his blood pressure was 186/124, well above

the maximum permissible. Nonetheless, the testing clinic

erroneously issued Murphy a DOT health card, which

—

5

allowed him to begin work at UPS. In September 1994.

supervisor discovered the clinic’s mistake. Pet. App. 2a-3a,

16a. UPS had Murphy’s blood pressure tested again, but it

was still above the DOT standard. /d. at 17a. Because

Murphy could not obtain DOT certification, UPS terminated

him. Jd. at 3a, 17a. A few weeks later, Murphy found a

mechanic position, which did not require DOT certification,

with another employer. /d. at 17a.

Murphy filed suit in the United States District Court for

the District of Kansas, claiming that UPS violated the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 ef seq., by terminating him due to his hypertension.

Pet. App. 9a. The district court granted UPS’s motion for

summary judgment. The court held that in determining if

Murphy had a “disability,” his condition must be assessed in

its medicated state. Jd. at 23a-32a. Because the evidence

showed that Murphy experienced no significant restrictions

from his hypertension, the court decided that “a rational fact-

finder would be unable to conclude that Murphy’s high blood

pressure constitutes a disability.” /d. at 31a. The court also

held that “UPS did not regard Murphy as disabled, only that

he was not certifiable under DOT regulations.” Jd. at 32a.

The Tenth Circuit affirmed, holding that Murphy was not

disabled and that UPS did not regard him as disabled. Pet.

App. 2a, 5a. Examining the impact of Murphy’s medicated

hypertension, the court concluded that he was not

substantially limited in any major life activity. His condition

did not affect his daily life. In addition, UPS did not “regard

Mr. Murphy as having an impairment that substantially limits

a major life activity”; it terminated him because his blood

pressure exceeded DOT requirements. Jd. at 4a-Sa.

6

INTRODUCTION AND SUMMARY OF ARGUMENT

The Americans with Disabilities Act sets out three ways

in which to qualify as “disabled”: (i) by having an actual

disability, (ii) by having a “record of” disability, and (iii) by

being “regarded as” disabled. 42 U.S.C. § 12102(2).

Excluding mitigating measures from the evaluation of

whether someone is “actually disabled” twists the first of

these alternate definitions to create a new, unintended class

of ADA beneficiaries: those who are not in fact disabled, but

who could create a disability if they were to cease alleviating

their health conditions with medications or assistive devices.

To include such hypothetically restricted persons within

the reach of the ADA is to read out the statutory requirement

that the “impairment * * * substantially limits” the

individual. 42 U.S.C. § 12102(2)(A) (emphasis added).

Under petitioner’s approach, a plaintiff does not have to

establish that he is currently severely limited in a major life

activity, or even that he is limited at all; it is enough that his

underlying condition, untreated, would have that effect. By

honing in on the conditions themselves instead of the

plaintiff's functional limitations, this interpretation of the

ADA also eradicates the statute’s emphasis on the

“individual”: the plaintiff is in effect replaced by his

disorder.

Since the statute itself precludes omitting mitigating

measures from the disability determination, the legislative

history and EEOC interpretive guidelines cannot be invoked

to assert otherwise. In any event, the congressional reports

bolster the plain reading of the statutory text. And the EEOC

guidelines have little value because they are internally

contradictory and create an unsound distinction between

internal and external compensating factors.

7

Besides nullifying the statutory text, the removal of

mitigating measures from the analysis of “disability”

unjustifiably extends ADA coverage to people with non-

limiting, widely-shared impairments. This distorts the Act’s

legitimate anti-discrimination goals and disrupts the even-

handed distribution of its benefits. Although plaintiffs with

uncorrectable impairments must still demonstrate that they

are substantially limited, those with correctable conditions

can qualify for protection despite their lack of actual

restrictions.

Finally, petitioner cannot resort to the “regarded as”

prong in an attempt to show that he is disabled under the

ADA. That definition of disability applies when an employer

acts due to misperceptions about the plaintiff's abilities, not

when the plaintiff fails to meet an objective and valid

standard.

ARGUMENT

I. MITIGATING MEASURES MUST BE CONSID-

ERED IN DETERMINING IF AN INDIVIDUAL IS

DISABLED UNDER THE AMERICANS WITH

DISABILITIES ACT

A. To Give Meaning To The Statutory Phrase

“Substantially Limits,” Courts Must Incorporate

Mitigating Measures Into The Assessment Of

Disability

As this Court “has stated time and again,” “courts must

presume that a legislature says in a statute what it means and

means in a statute what it says there.” Connecticut Nat’l

Bank v. Germain, 503 U.S. 249, 253-254 (1992). The first

of the ADA’s definitions of disability provides that a person

is disabled if he has “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) (emphasis

8

added). The ordinary and natural meaning of these words is

that this subsection covers only those individuals whose

impairments actually place “substantial limitations” on the

performance of life activities. But if the disability determina-

tion is conducted without regard for mitigating measures,

impairments that have the potential to impose restrictions or

may hypothetically do so are subsumed within the ADA. See

Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir.

1997) (Kennedy, J., concurring in part and dissenting in

part); Sutton v. United Air Lines, 130 F.3d 893, 902 (10th

Cir. 1997), cert. granted, No. 97-1943 (Jan. 8, 1999).

Because that construction offends the plain language of the

Statute, it must be rejected.

By defining a disability as an impairment that “substan-

tially limits” the individual, the ADA on its face is con-

cerned with severe restrictions in functioning. 42 U.S.C.

§ 12102(2)(A). See Halperin vy. Abacus Technology Corp..,

128 F.3d 191, 199 (4th Cir. 1997) (the “ordinary or natural

meaning of ‘substantially limits’ requires that an impairment

significantly restrict an individual’s ability to perform a

major life activity”); Roth v. Lutheran Gen. Hosp., 57 F.3d

1446, 1454 (7th Cir. 1995) (“not every impairment that

affect[s] an individual’s major life activities is a substantially

limiting impairment”). If mitigating measures are ignored,

the effect is to pretend that such restrictions exist when, in

fact, they do not. As the court below recognized, individuals

who use medications or other compensating mechanisms to

control their conditions so that they can “functio[n] nor-

mally,” do not endure severe limitations in their daily lives.

Pet. App. 4a. See Sutton, 130 F.3d at 902-903 (when

wearing glasses, plaintiffs with poor vision could “go about

all their normal daily activities” in the “same or similar”

manner as the majority of the population and, therefore, were

not disabled); Still v. Freeport-McMoran, Inc., 120 F.3d 50,

52 (Sth Cir. 1997) (plaintiff who could “perform normal

9

daily activities” was not disabled). Thus, conferring benefits

on that group of plaintiffs destroys the boundary delineated

by the statute between those who suffer profound constraints

from their conditions and those who are merely impaired.

See Dutcher v. Ingalls Shipbuilding, Inc., 53 F.3d 723, 726

(Sth Cir. 1995) (a physical impairment, “standing alone,” is

not equivalent to a disability as contemplated by the ADA);

Kelly v. Drexel Univ., 94 F.3d 102, 108 (3d Cir. 1996)

(same).

The facts of this case aptly illustrate how petitioner's

approach eliminates the requirement that an impairment

“substantially limit” an individual. With medication to reduce

his high blood pressure, Murphy can do “everyday activity

that an everyday person does.” Pet. App. 4a. The medication

is so effective that for over 22 years—and up to the present

day—he has been able to work at various mechanic jobs for

which he does not need DOT certification. /d. at 13a, 17a.

Granting Murphy relief just because his unregulated blood

pressure averages 250/160 (a condition he never experiences)

would render meaningless all this evidence of his ample

functional abilities. To say that despite his capacity to engage

in usual activities and despite his full employment history, he

is somehow “substantially limited” guts the Act of those

words. See Swain v. Hillsborough County Sch. Bd., 146

F.3d 855, 857 (11th Cir. 1998) (teacher who worked as an

educator and administrator for 20 years was not substantially

limited by her physical impairments); Still, 120 F.3d at 52

(numerous jobs plaintiff had held demonstrated that he was

not legally disabled); Roth, 57 F.3d at 1455 (plaintiff's past

work experience as a pharmacist, attorney, and university

lecturer repudiated his claim that he was significantly

restricted in seeing).

The ADA also directs courts to inquire into the “limits”

that a condition imposes on the “major life activities of [the]

10

individual.” 42 U.S.C. § 12102(2)(A) (emphasis added).

This compels an analysis of whether an impairment produces

significant disadvantages for the particular person who is

seeking to invoke the protections of the Act. See, ¢.g.,

Sutton, 130 F.3d at 897 (the statutory phrase “with respect

to the individual” signifies that there must be an individual-

ized, case-by-case assessment of whether a given impairment

amounts to a substantial limitation); Homeyer v. Stanley

Tulchin Assocs., Inc., 91 F.3d 959, 963 (7th Cir. 1996) (“It

is precisely because there are usually many person-specific

considerations that are relevant to the issue of disability that

we have held that the finding should be based on an individu-

alized inquiry and is ‘best suited to case-by-case determina-

tion’”). In order to undertake such an evaluation, it is

necessary to fully account for all the circumstances of the

person’s specific situation, including the impact of any aids

or medications upon his daily life.’

A rule that disability is determined without reference to

mitigating measures would transform what should be an

individualized appraisal of a plaintiff's true capabilities into

generalizations about how the impairment in question

typically affects people who are not taking medication or

using assistive devices. See Gilday, 124 F.3d at 767 (Ken-

* This emphasis easily disposes of the Government's criticism that

ki ° er en oatinen instabil-

ity to the definition of disability” inasmuch as their effectiveness

for, and use by, an individual may “vary * * * over time.” In

concentrating on the individual impact of an impairment, the ADA

accepts that not everyone with a particular condition will qualify

as “disabled” and that if the severity of a person’s condition

changes, his ADA status may as well. Thus, the “instability” that

the Government is worried about already exists and is an integral

feature of the statutory scheme. If Congress thought such results

were intolerable, it would have defined “disability” differently.

"——_.

eC

11

nely, J., concurring in part and dissenting in part) (if we fail

to consider mitigating measures, “we ¢»% not make an

individualized comparison to the average person in the

general population”). The plaintiff's condition would be

looked at in the abstract, not in terms of the challenges it

presents for him day to day. That impermissibly substitutes

mere medical diagnoses for the ADA’s focus on the plain-

tiffs own functional limitations.

If Congress had intended for disorders alone to constitute

“disabilities,” it could have said so in the statute. Instead,

Congress chose a functional definition of disability, giving

full recognition to the fact that “there are varying degrees of

impairments as well as varied individuals who suffer from

impairments.” Homeyer, 91 F.3d at 962 (the ADA precludes

a finding of disability based on “categories of impairments” );

see also 136 Cong. Rec. 9072 (1990) (“The ADA includes

a functional rather than a medical definition of disability”);

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872 (2d Cir.

1998) (“the determination whether an impairment ‘substan-

tially limits’ a major life activity is fact specific”).

Seeking to circumvent the plain language of the ADA,

the petitioner and his amici contend that the statute’s struc-

ture warrants the exclusion of mitigating measures when

deciding if a plaintiff is “disabled.” The Government in

particular stresses that mitigating measures should be

examined after the initial judgment as to disability because

that is the way the statute handles “reasonable accommoda-

tions.” Otherwise, the Government submits, there is a

“‘disincentive to self-help’” in that individuals who utilize

mitigating measures will not be accorded protection, while

those who await reasonable accommodations will be (citing

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

1998)).

12

This reasoning is flawed. First, the “reasonable accom-

modations” that employers must supply to their qualified,

disabled employees do not include personal items, such as

medications, eyeglasses, or hearing aids. H.R. Rep. No.

485, Pt. Il, 101st Cong., 2d Sess., at 64 (1990); S. Rep. No.

116, 101st Cong., Ist Sess., at 33 (1989). Hence, Congress

has already concluded that the onus is on employees in the

first instance to help themselves. Second, it is highly improb-

able that individuals will forego allaying the effects of their

conditions just to secure coverage under the ADA. Many

individuals may have no choice but to invest in mitigating

measures. Petitioner himself claims that without his medica-

tion he would have to be “hospitalized” and would “eventu-

ally die from [his] high blood pressure.” Pet. 7. The sugges-

tion that Murphy (or even those who would face less serious

consequences) would risk his well-being or reduce his quality

of life for the sake of potential benefits under the ADA is

simply not plausible.

The Government's further argument that evaluating an

impairment in its untreated state is the only way to effectuate

the ADA’s “reasonable accommodation” mandate is similarly

unconvincing. The Government incorrectly posits that, absent

such a rule, employers would not have to adjust the work-

place for employees who request accommodations necessi-

tated by their use of mitigating measures, stating that “[i]n

many employment situations, giving the employee a brief

break so that the employee could take * * * medication

would be a reasonable accommodation.” Clearly, in unusual

situations the need to take corrective measures to alleviate a

condition might itself interfere so greatly with normal life

activities as to render an individual disabled and might

require reasonable accommodation. But that does not mean

that someone who simply has to take a pill periodically (or

put on glasses or a hearing aid) is disabled. Taking account

of mitigating measures recognizes the difference between

—

13

these individuals; it does not deprive truly disabled employ-

ees of required accommodations.

B. Legislative And Administrative Sources Do Not

Undercut The Statutory Directive That Mitigating

Measures Be Factored Into The Disability Deter-

mination

1. The legislative history does not support disre-

garding a plaintiff's use of medications or

medical devices

Unambiguously , the ADA defines as disabled only those

individuals who are in fact “substantially limited.” The Act’s

words can be given effect only by incorporating mitigating

measures into the disability determination. There is no need

to “resort to legislative history to cloud a statutory text that

is Clear.” Ratzlaf v. United States, 510 U.S. 135, 147-148

(1994). “[I}t is the statute, and not the Committee Report,

which is the authoritative expression of the law.” City of

eae v. Environmental Defense Fund, 511 U.S. 328, 337

Even if the statute were ambiguous, the legislative

history does not justify disregarding mitigating measures.

‘Petitioner and his amici rely heavily on the statement in both

committee reports that, under the ADA’s first prong,

“[w]hether a person has a disability should be assessed

without regard to the availability of mitigating measures,

such as reasonable accommodations or auxiliary aids.” H.R.

Rep. No. 485, Pt. II, at 52; S. Rep. No. 116, at 23. It is

wrong, however, to construe that statement as supporting the

exclusion of mitigating measures.

“Reasonable accommodations” and “auxiliary aids” are

terms of art. They are specifically defined in the statute as

job-assistive devices furnished by employers, not employee-

supplied mitigating measures. 42 U.S.C. § 12111(9) (exam-

14

ples of reasonable accommodations are “the provision of

qualified readers or interpreters,” the “acquisition or mod-

ification of equipment or devices,” and other “similar”

accommodations); 42 U.S.C. § 12102(1) (listing the same

measures as “auxiliary aids”). Consistent with these

definitions, the congressional reports themselves stress that

“personal use items such as hearing aids or eyeglasses” do

not fall within the definition of reasonable accommodations.

H.R. No. 485, Pt. Il, at 64; S. Rep. No. 116, at 33.

Consequently, the simple message of the congressional

reports, which is amply supported by the statutory language,

is that employer-provided job-assistive measures are not

taken into account in determining whether a person is

disabled. The passage in question says nothing at all to

suggest that employee-provided measures that are not

specifically job-related but that serve to mitigate the em-

ployee’s medical condition are irrelevant to determining

disability.

Another passage of the Senate Report supports this

conclusion. Explaining the purpose of the “regarded as”

prong of the ADA, the Senate Report states:

Another important goal of the [regarded as] prong of

the definition is to ensure that persons with medical

conditions that are under control, and that therefore

do not currently limit major life activities, are not

discriminated against on the basis of their medical

conditions. Fer example, individuals with controlled

diabetes or epilepsy are often denied jobs for which

they are qualified.

S. Rep. No. 116, at 24 (emphasis added). This passage

clearly conveys that individuals who can adequately compen-

sate for their impairments are not disabled under the ADA’s

first prong, 42 U.S.C. § 12102(2)(A), and must turn to the

15

“regarded as” prong if they wish to qualify as disabled. And

it can only mean that gauging whether someone has a

disability under subsection (A) requires looking at the

individual’s level of functioning with the benefit of ameliora-

tive or corrective measures.’ Consequently, taken as a whole,

the legislative history advances rather than detracts from the

position that mitigating measures are an indispensable part of

the disability determination.‘

* The Government (at footnote 2) contends that the Senate Report

cannot be interpreted as precluding someone with a controlled

condition from falling within the actual disability prong of the

ADA because an individual may be “disabled” under both that

prong and the “regarded as” prong. That explanation is unavail-

ing: the Senate Report expressly says that the very reason a person

with a mitigated impairment must resort to the “regarded as”

prong is that his impairment is controlled and, as a result, he is

“not currently limit{ed) [in] major life activities.” S. Rep. No.

116, at 24. Moreover, if people with controlled conditions could

fit under the actual disability prong, the “regarded as” prong

would not be needed to serve the “important goal” (id.) of

protecting their interests.

* The House Report at one point suggests that individuals who use

hearing aids or take medication are considered substantially limited

“even if the effects of the impairment are controlled.” H.R. Rep.

No. 485, Pt. Il, at 52. But these examples are at odds with the

House Report’s own description of reasonable accommodations as

job-related aids, with the Senate Report and, most important, with

the plain language of the statute itself. They should therefore be

disregarded. At best, the House Report adds confusion, not clarity,

to the issue of mitigating measures. °

16

2. The EEOC’s guidelines warrant no deference

because they conflict with the statutory text

and are internally inconsistent

The EEOC addresses mitigating measures only in

interpretive guidelines issued as an appendix to the ADA

regulations. The guidelines state that mitigating measures

should be omitted from the analysis of whether a plaintiff is

“disabled.” 29 C.F.R. pt. 1630.2(j) app. However, this

“guidance” should be rejected because it conflicts with the

plain meaning of the ADA, as well as other portions of the

appendix, and establishes a faulty distinction between internal

and external mitigating measures.

It is unnecessary to decide what weight should be accord-

ed to the EEOC guidelines, because they do not survive even

the highest level of deference under Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984).° The guidelines’ statement that “whether an individ-

ual is substantially limited in a major life activity must be

made * * * without regard to mitigating measures, such as

medicines, or assistive or prosthetic devices,” we have

already shown, directly contravenes the ADA’s mandate that

‘> Nevertheless, the EEOC guidelines ought not to carry the same

force of law as the regulations themselves because they are purely

interpretive rules. See Martin v. Occupational Safety & Health

Review Comm'n, 499 U.S. 144, 157 (1991) (interpretive guidelines

are not entitled to the same deference as regulations); Batterton v.

Francis, 432 U.S. 416, 425 n.9 (1977) (“a court is not required to

give effect to an interpretative regulation”). Most circuit courts

confronting this issue have agreed. See Arnold, 136 F.3d at 864;

Matzcak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 937

(3d Cir. 1997); Washington v. HCA Health Servs., Inc., 152 F.3d

464, 469-470 (Sth Cir. 1998); Gilday, 124 F.3d at 766 (Kennedy,

J., concurring in part and dissenting in part); id. at 763 n.2

(Moore, J., minority opinion); Sutton, 130 F.3d at 899 n.3.

17

an individual experience “substantial limitations” from a

medical condition. Since “[nJo deference is due to agency

interpretations at odds with the plain language of the statute

itself,” the guidelines must be rejected. Public Employees

Retirement Sys. v. Betts, 492 U.S. 158, 171 (1989); see also

Gilday, 124 F.3d at 767 (Kennedy, J. and Guy, J., concur-

ring in part and dissenting in part) (declining to defer to

EEOC guidance because it “conflicts with the text of the

ADA” and thus is not a “‘permissible construction of the

statute’”); Sutton, 130 F.3d at 901 n.8 (listing numerous

courts that have refused to defer to the EEOC guidelines

because they conflict with the statute); Chevron, 467 U.S. at

843 n.9 (“The judiciary is the final authority on issues of

Statutory construction and must reject administrative con-

structions which are contrary to clear congressional intent”).

Furthermore, the EEOC guidelines are self-contradictory.

To begin with, like the Senate Report, the guidelines indicate

that someone with a “controlled [condition] that is not sub-

stantially limiting” would fit within the definition of “re-

garded as” disabled—assuming all other elements of the

claim were met. 29 C.F.R. pt. 1630.2() app. The district

court clearly explained the “tension” this statement produces

within the EEOC’s guidance (Pet. App. 26a):

This section appears to be at odds with interpretative

guidelines found in § 1630.2(j). Under § 1630.2(j)

of the EEOC’s interpretive guidelines, a person’s

unmedicated high blood pressure would constitute a

disability. Yet, the interpretative guidelines in

§ 1630.2() implicitly suggest that a person who has

controlled his blood pressure by medication does not

have a disability; if this were not so, why would a

person suffering from high blood [pressure] ever

have to look to the “regarded as” section of the

ADA to prove the existence of a disability?

18

In addition, part 1630.2(j) (app.) recognizes that

“whether an individual has a disability is not necessarily

based on the name or diagnosis of the impairment the person

has, but rather on the effect of that impairment on the life of

the individual.” Inconsistently, the EEOC would bar courts

from evaluating the effects of mitigating measures, even

though it is impossible to assess the true impact of an

impairment on an individualized basis without taking such

measures into account.

The value of the EEOC guidelines is further reduced

because they are, at least in one respect, irrational. All of the

guidelines’ examples of “mitigating measures” are external

compensations—medicines and medical devices. 29 C.F.R.

pt. 1630.2(j) app. This suggests that internal, or personal,

adaptions should be factored into the disability determination.

See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (Sth

Cir. 1995) (plaintiff was not “substantially limited” because

she had “trained herself” to do “‘all of the basic things’ she

needs to do in life with her [injured] arm”); Roth v. Lutheran

Gen. Hosp., 57 F.3d 1446, 1449, 1455 (7th Cir. 1995)

(plaintiff was not disabled where his visual condition was not

completely correctable with lenses, but he had “‘adapted well

to daily activities’”).

We agree that internal adjustments must be taken into

account when ascertaining whether a person is disabled. See

Brief Amicus Curiae of American Trucking Associations, ef

al., filed in Albertsons, Inc. v. Kirkingburg, No. 98-591. But

there is no defensivle reason for drawing a line between

internal and external mitigating measures. Since internal and

external corrections similarly affect the extent to which a

limitation interferes with life activities, both should be

considered in the “disability” decision. Murphy is not

“substantially limited” because he manages his hypertension

with medication. Another person may not have a disabling

19

impairment because he can lower his blood pressure through

relaxation techniques. Likewise, one person may wear

corrective lenses to improve his vision, whereas another may

have developed subconscious mechanisms that alleviate the

effects of his poor eyesight, so that neither is restricted in

carrying out everyday tasks. In every instance, the end result

is identical—the person is not substantially limited in major

life activities. By creating this untenable distinction between

internal and external compensating measures, the EEOC

guidelines arbitrarily dole out protection under the ADA.

C. Ignoring Mitigating Measures Expands The ADA Well

Beyond Its Intended Scope By Affording Protection

To A Widespread Group Of Individuals With Non-

Limiting Impairmerts

The approach to determining disability urged by peti-

tioner and his amici has far-reaching practical consequences.

It would expand the ADA’s definition of disability to include

individuals who, because of their use of medication or other

corrective measures, do not currently experience substantial

limitations from their iinpairments. Individuals who have

non-limiting or mild impairments could then take advantage

of the ADA’s remedial provisions, despite Congress’s

express directive to the contrary. Congress could not have

been more clear, both in the statutory language it chose and

in the committee reports, that “minor, trivial impairment[s]”

are not within the scope of the Act. S. Rep. No. 116, at 23;

H.R. Rep. No. 485, at 52.

Courts have frequently observed that “[i]t would debase

[the] high purpose [of the ADA] 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.” Francis v. City

of Meriden, 129 F.3d 281, 286 (2d Cir. 1997); see also

Patrick v. Southern Co. Servs., 910 F. Supp. 566, 567 (N.D.

20

Ala.) (“Much of the criticism of the ADA in practice has

come from the truly disabled who recognize that * * *

attempted stretches [of the definition of disability] can cause

negative reaction to the Act and perhaps undermine its true

purposes”), aff'd, 103 F.3d 149 (11th Cir. 1996). But if all

it takes to be covered under the ADA is a correctable

condition that, unmitigated, would interfere with everyday

tasks, a huge segment of the population would unjustifiably

be swept under the umbrella of the statute.

One in four adult Americans has high blood pressure,

which is “easily detected and usually controllable.” American

Heart Association, 1999 Heart and Stroke Statistical

Update—High Blood Pressure (visited Mar. 12, 1999, at

http://www.amhrt.org/statistics). Approximately half of those

persons are on medication, and a quarter have their hyperten-

sion completely under control. /bid. That results in between

15 to 25 million additional people who may be “disabled”

due to their underlying (not their actual) conditions under

petitioner’s theory of ADA disability. /bid.

Other common problems that are likewise easily reme-

died are visual deficiencies and hearing impairments. In the

United States, “more than 100 million people need corrective

lenses to see properly.” National Advisory Health Council,

Vision Research—A National Plan: 1999-2003, at 7, U.S.

Dep’t of Health and Human Servs., NIH Pub. No. 98-4120.

And more than 28 million people have hearing loss, 15% of

whom use hearing aids. National Institutes of Health Con-

sensus Statement Online, Noise and Hearing Loss (Jan. 22-

24, 1990) (visited Mar. 12 1999, at http://odp.od.

nih. gov/consensus/cons/hearing.htm); National Center For

Health Statistics, Number of Persons Using Assistive

Technology Devices by Age of Person and Type of Device:

United States, 1994, Centers for Disease Control, Table 1

ee

21

(visited Mar. 16, 1999, at http://www.cdc.gov/ nchswww/

about/major/nhis dis/ad292tb1.htm).

Examining these individuals without their medication or

assistive devices would create a vast new class of ADA

beneficiaries who, in fact, should readily be disqualified from

protection because of the absence of constraints on their daily

lives. Their prevalent, correctable conditions allow them to

function within “the economic mainstream of our society”

(S. Rep. No. 116, at 10; H.R. Rep. No. 485, Pt. II, at 34);

they are not part of a “discrete and insular minority who

have been faced with restrictions and limitations,” 42 U.S.C.

§ 12101(a)(7).

Ignoring mitigating measures in determining disability

creates unfairness instead of parity in the provision of

benefits. It subjects those with correctable impairments to a

“different standard” than persons who have no way to

alleviate their conditions. Gilday, 124 F.3d at 767 (Kennedy,

J., concurring in part and dissenting in part). It is only the

latter group who must demonstrate that they are actually

severely restricted in their daily lives in order to come within

the statute’s protections, while individuals who are less

impaired due to their use of medication or other aids—but

whose underlying conditions are more severe—are covered

by the statute. Such results do obvious damage to the even-

handed treatment of plaintiffs under the ADA. ;

22

Il. AN EMPLOYEE CANNOT QUALIFY AS DIS-

ABLED UNDER THE “REGARDED AS” PRONG

MERELY BECAUSE HE FAILED TO SATISFY AN

OBJECTIVE REQUIREMENT OF A SPECIFIC JOB

The Tenth Circuit correctly held that UPS did not regard

Murphy as disabled so as to bring him within the ADA’s

third definition of “disability,” because UPS did not have

“an unsubstantiated fear that he would suffer a heart attack

or stroke.” Pet. App. 5a (quoting 29 C.F.R. pt. 1630.2()

app.). “Rather, UPS terminated Mr. Murphy because his

blood pressure exceeded the DOT’s requirements for drivers

of commercial vehicles.” Jbid. Thus, UPS did not act based

on “reflexive reactions” to a perceived handicap, but on a

“reasoned and medically sound judgment” expressed by the

DOT. School Bd. v. Arline, 480 U.S. 273, 285 (1987)

(discussing “regarded as” prong of Rehabilitation Act, from

which ADA provision was drawn).

As the Tenth Circuit recognized, the focus of the

“regarded as” prong is “not on [the plaintiff] and his actual

abilities, but rather on the reactions and perceptions of the

persons interacting or working with him.” Kelly v. Drexel

Univ., 94 F.3d 102, 108-109 (3d Cir. 1996). See also H.R.

Rep. No. 485, Pt. Ill, 101st Cong., 2d Sess. 30 (1990)

(“The perception of the covered entity is a key element of

[the ‘regarded as’] test”); Deas v. River West, L.P., 152

F.3d 471, 476 n.9 (Sth Cir. 1998) (“Under the ‘regarded as’

prong, the disability status of the plaintiff turns not on the

plaintiff's physical condition, but rather on how the plaintiff

was perceived and treated by those individuals alleged to

have taken discriminatory action”), Runnebaum v.

Nationsbank of Md., N.A., 123 F.3d 156, 172 (4th Cir.

1997) (same). The plaintiff must show that he is perceived as

having an impairment that substantially limits a major life

23

activity. 42 U.S.C. § 12102(2)(C); see, e.g., Dutcher, 53

F.3d at 727; Ryan, 135 F.3d at 872.

The Government and petitioner insist that Murphy’s

inability to obtain DOT certification is sufficient to establish

that UPS regarded him as disabled in the major life activity

of working. That argument is meritless. It ignores the fact

that it is the employer's subjective intent that is important

under the “regarded as” prong. Francis v. City of Meriden,

129 F.3d 281, 284 (2d Cir. 1997) (liability under the

“regarded as” prong “turns on the employer's perception of

the employee, a question of intent, not whether the employee

has a disability”); Deas, 152 F.3d at 480 (“the plaintiff bears

the burden of making a prima facie showing that the

impairment, as the defendant perceived it, was substantially

limiting”). The termination of an employee for his failure to

satisfy the objective requirements of a specific job simply

does not give rise to an inference that the employer had a

forbidden “intent.” See Forrisi v. Bowen, 794 F.2d 931,

934-935 (4th Cir. 1986) (employee whose acrophobia

prevented him from doing necessary climbing for job was not

“regarded as” disabled); Dutcher, 53 F.3d at 728 (plaintiff

denied welding position because she could not climb with

injured arm was not “regarded as” disabled). Moreover,

where, as here, the employment decision is grounded on an

independent, government-supplied standard, there is no

employer input ar ail with respect to the underlying basis for

disqualification. The contention that recovery should be

allowed under these circumstances is, therefore, all the more

unreasonable .°

* The Government objects that an employer could always escape

liability by claiming that it perceived the employee as unable to

satisfy an element of the job. But an employer cannot prevail in an

ADA case by setting forth a rationale for its decisions that is mere

pretext. And if the employer does act due to its misperception that

24

Congress's stated purpose in adopting the “regarded as”

prong was to combat “society’s accumulated myths and fears

about disability and diseases.” H.R. Rep. No. 485, Pt. Il, at

53; S. Rep. No. 116, at 24 (each citing Arline, 480 U.S. at

284); see also 29 C.F.R. pt. 1630(/) app. (reciting legislative

history). In view of this aim, courts have recognized that the

employer's opinion about the restrictions imposed by the

employee's purported impairment must be inaccurate. See,

e.g., Francis, 129 F.3d at 286-87 (“The [ADA] reach{es]

discrimination where an individual does not have a physical

impairment but is erroneously perceived as having one,” and

“address[es] the problem of the employer who, based on

nothing more than superstition or irrational fear, regards an

individual as having a substantially limiting impairment when

the individual is either capable of working or has no impair-

ment at all”); Wooten v. Farmland Foods, 58 F.3d 382, 386

(8th Cir. 1995) (dismissing “regarded as” claim as there was

no evidence that employer's perception was “based upon

speculation, stereotype, or myth”). The Government disputes

the need for such a showing. But the requirement of some

kind of misperception on the employer’s part follows from

the regulations’ explication of what it means to be “regarded

as” disabled.

The regulations say that an individual fits under the

“regarded as” prong if he (i) has an impairment that is not

substantially limiting but is treated as having such an

impairment, (ii) has an impairment that is substantially

limiting only as a result of the attitudes of others, or (iii)

does not have an impairment but is treated as having a

an impairment barred an employee from a large class of jobs, it

may be held responsible. See Cook v. Rhode Island, 10 F.3d 17,

26 (ist Cir. 1993) (affirming judgment for plaintiff where

defendant believed her obesity foreclosed her from a broad range

of employment).

25

substantially limiting impairment. 29 C.F.R. § 1630.2().

The common thread through these three criteria is that the

employer must mistake the reality of the plaintiff’s situation.

UPS’s accurate application of legally mandated health

standards does not meet that requirement; such objective

decisions are simply not the “evils” the “regarded as” test

seeks to rectify. See Wooten, 58 F.3d at 385-386 (plaintiff's

termination was due to physical restrictions imposed by his

doctor, not an erroneous perception, and so there was no

indication that defendant regarded him as having a

substantially limiting impairment).

UPS's termination of Murphy was also proper because

“[ajn employer’s belief that an employee is unable to

perform one task with an adequate safety margin does not

establish per se that the employer regards the employee as

having a substantial limitation on his ability to work in

general.”’ Chandler v. City of Dallas, 2 F.3d 1385, 1393

(Sth Cir. 1993). Instead, the employer must view “the

employee's impairment [as] foreclos{ing] generally the type

of employment involved.” Forrisi, 794 F.2d at 935; see also

Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th Cir.

1992) (“an impairment that an employer perceives as limiting

an individual’s ability to perform only one job is not a

handicap under the Act”).

The EEOC regulations reflect this same analysis:

The term substantially limits means significantly

restricted in the ability to perform either a class of

jobs or a broad range of jobs in various classes as

” For this reason, even if it is accurate to characterize the DOT’s

guidelines on blood pressure above 160/90 as permissive rather

than mandatory—which would render UPS's termination of

Murphy discretionary—Murphy still has not made his case.

26

compared to the average person having comparable

training, skills and abilities. The inability to perform

a single, particular job does not constitute a

substantial limitation in the major life activity of

working.

29 C.F.R. § 1630.2(j3)(i). Murphy’s claim falls on the

wrong side of these standards. His blood pressure was too

high for him to be able to do the driving that was an integral

part of the UPS position and, thus, he was fired because

could not perform an essential function of that particular

mechanic job. See, e.g., Chandler, 2 F.3d at 1392-1393

(plaintiffs could not prove that they were “regarded as”

disabled where “[t}he only relevant limitation perceived by

the City regarding the plaintiffs’ ability to work concerned

their abilities to drive City vehicles on the job without risk

to themselves or others”); Deas, 152 F.3d at 481-482

(defendant did not regard plaintiff who suffered seizures as

“disabled” in working, but only as “substantially limited as

to * * * a few, highly specialized jobs that required relatively

high levels of vigilance or uninterrupted awareness”).

Murphy was, and is, perfectly capable of performing other

mechanic jobs for which he does not have to pass DOT

tests."

A ruling that UPS regarded Murphy as disabled would,

therefore, upset the uniform consensus that the mere

incapacity to meet a certain job’s physical requirements does

not render an employee “disabled.” Absent such a rule, all

* That Murphy has continually worked as a mechanic for more

than two decades negates the Government's argument that DOT

certification should be used as a proxy for a “class of jobs.”

Murphy's elevated blood pressure clearly leaves many employment

options in his field open to him, and he has taken advantage of

them.

27

employees who were fired or denied a specific position for

that reason could automatically qualify for coverage under

the ADA. That would again subvert the Act’s purpose to

addition, employers would be stripped of their ability to rely

in good faith on the results of post-offer,

medical exams. See 29 C.F.R. § 1630.14(b) (employers may

condition offers upon the outcome of medical tests or

inquiries, provided each entering employee for that job

category is subjected to the same examination). That could

have disastrous consequences in cases where the job, whether

it be commercial truck driver, airline pilot, or police officer,

28

CONCLUSION

[he judgment of the court of appeals should be affirmed

Respectfully submitted

ROBERT DIGGES JAMES D. HOLZHAUER

ATA Litigation Center Counsel of Record

2200 Mill Road TIMOTHY S. BISHOP

Alexandria, VA 22314 NICOLA JACKSON

(703) 838-1865 Mayer, Brown & Platt

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

JAN AMUNDSON

General Counsel

QUENTIN RIEGEI

Deputy General Counsel

National Association of Manufacturers

1331 Pennsylvania Avenue, N.W

Washineton, DC 20004

(202) 637-3000

Counsel for Amici Curiae

MARCH 1999