# Amicus Curiae Brief — Murphy v. United Parcel Service, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0185%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 516 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0185%3A21. Public record. Not legal advice.