# Amicus Curiae Brief — Albertson's, Inc. v. Kirkingburg > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0238%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 555 ## Text (10) (90) ( 8) a ee ae | Firs Nos. 97-1943, 97-1992 and 98- ae 1999 pee a Supreme Court of the Unite October Term, 1998 « ALBERTSON’S INC., . Petitioner, HALLIE KIRKINGBURG, Respondent. * VAUGHN L. MURPHY, . Petitioner, UNITED PARCEL SERVICE, Respondent. 6 KAREN AND KIMBERLY SUTTON, . Petitioners, UNITED AIRLINES, INC., Respondents. ¢ On Writ Of Certiorari To The United States Court Of Appeals For The Ninth And Tenth Circuits + BRIEF OF SENATORS HARKIN AND KENNEDY, REPRESENTATIVES HOYER AND OWENS AND FORMER SENATOR DOLE AS AMICI CURIAE IN SUPPORT OF RESPONDENT KIRKINGBURG AND PETITIONERS SUTTON AND MURPHY ¢ *ARLENE B. Mayerson, Esquire CHANTAL M. Sampocna, Esquire Disability Rights Education and Defense Fund 2212 Sixth Street Berkeley, CA 94710 Telephone: (510) 644-2555 *Counsel of Record TABLE OF CONTENTS THE DEFINITION OF DISABILITY IS BROAD IN ORDER TO ACHIEVE THE NON-DISCRIMI- NATION GOALS OF THE ADA CONGRESS MADE CLEAR ITS INTENT THAT THE FIRST PRONG OF THE DEFINITION OF DISABILITY BE DETERMINED WITHOUT CONSIDERATION OF MITIGATING MEASURES A. The Plain Language B. Given that the Plain Language is At Least Ambiguous, The Court Should Defer to Explicit Legislative History and Authoritative Agency Interpretations THE “REGARDED AS” PRONG OF THE DEFINI- TION OF DISABILITY IS INTENDED TO ADDRESS THE SUBSTANTIALLY LIMITING IMPACT OF NEGATIVE REACTIONS TO IMPAIRMENTS THAT ARE NOT OTHERWISE SUBSTANTIALLY LIMITING A. Congress and the Enforcing Agencies Adopted Long Standing Agency Interpretations of the “Regarded As” Prong of the Definition of Dis- ability B. The Proper Analytical Framework C. Analytical Problems with the Lower Court Decisic _—_as Illustrated by the Tenth Circuit Opinions CONCLUSION il TABLE OF AUTHORITIES Feperat Cases Best v. Shell Oil, 107 F.3d 544 (7th Cir. 1997) ........ 22 Bragdon v. Abbott, 118 S. Ct. 2196 (1998)....3, 7, 10, 15, 18 Bridges v. City of Bossier, 92 F.3d 329 (Sth Cir. 1996)... . 25 Chevron, USA Inc. v. National Resource Defense Council, Inc., 467 U.S. 837 (1984) ........... 3, 15, 16 Davis v. Meese, 692 F. Supp. 505 (E.D. Pa. 1988) ...... 7 E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hawaii MT ir hea en hah Pers rary Oe meta iin A Ae 26 Harris v. H.W. Contracting Co., 102 F.3d 516 (11th | OP Pee Prey hearer fey ey eee 22 Hileman v. City of Dallas, 115 F.3d 352 (Sth Cir. kk PES a Oe PAE pay YON C eT hes pee Oy 29 Holihan v. Lucky Stores, 87 F.3d 362 (9th Cir. 1996)... . 22 Johnson yv. American Chamber of Commerce Pub- lishers, Inc., 108 F.3d 818 (7th Cir. 1997)........... 22 Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996)..... 22 Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996)... . 28 Kirkingburg v. Albertsons, Inc., 143 F.3d 1228 (9th CAE: . FE kar chen Ge aah't Urwecaddas eeeen peas ves 1, 21 Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 | Ry Peer Ts poet ee Ee 7 Kohl v. Woodhaven Learning Center, 865 F.2d 930 Ca. Gas. FOE a ik chk o Racin eS Ha see hee Vee 7 Lawrence v. National Westminster Bank of N.J., 98 F.56 68 (56. Cae TPO an eek crac iae 6 esac 7 ee TABLE OF AUTHORITIES — Continued Page Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985)...... 7 Murphy v. United Parcel Service, 141 F.3d 1185 (10th ED oo oki eval hac wahws cee Nea wi'eb 6 ks 1, 8, 21, 25 Olson v. General Elec. Astrospace, 101 F.3d 947 (3d. i Pe Sid Ck oe shee seek he sh Kodubinbadeec 7, 22 Reynolds v. Brock, 815 F.2d 571 (9th Cir. 1987) ........ 7 School Board of Nassau County v. Arline, 480 US. ND oa a a i a a passim Southeastern Community College v. Davis, 442 U.S. I aed eo Sacks i wkeh eee ba tansedeatdcds 13 Sutton v. United Air Lines, Inc., 130 F.3d 893 (10th Se Tats va hel Wek Tddnteteienheeeel We passim Taylor v. United States Postal Service, 946 F.2d 1214 GWE Wale Ua 9 dud we CN 604s bob 00d ots Obe cts 27 Vande Zande v. Wisconsin Dept of Admin., 44 F.3d Cain eiadenbhinseuheneketsecces 20 Welsh v. City of Tulsa, 977 F.2d 1415 (10th Cir. 1992) .... 25 Docxerepo Case EEOC v. Joslyn Mfg. Co., No. 95C 4956, 1996 WL | ee 23 STATUES 135 Cong. Rec. $10765, S10766 (Sept. 7, 1989) (statement of Senator Harkin) ...................... 14 136 Cong. Rec. $9684-03, $9698 (1990)............... 16 28 C.FR. ia i ar AU ei welen count 19 iv TABLE OF AUTHORITIES — Continued Page 29 C.F.R. BB BRS co coscccicchensdwdnewnsendsaedetens cheamen 19 § 1630, app. § 1630.2(j) para. 12................ 15, 28 45 C.FR. DS PROD Moreover, medications like Lithium for bipolar disor- der and Risperdol for schizophrenia help control the most severe symptoms of these disorders, but they do not cure them.'® In fact, it is very common for pecple with bipolar disorder to remain stable on Lithium for extended periods of time, only to deteriorate and require intensive interventions to stabilize their Lithium levels.'’? Moreover, psychiatric medi- cations, particularly the more powerful psychotropics, have strong side effects that, in some instances, can be debilitating in and of themselves.'* Likewise, while the majority of people with epilepsy have their seizures controlled through medications,'® there are few who can maintain complete control at all times. Approxi- mately fifty percent of the 2.3 million people with epilepsy achieve good control through current therapies.2° Another 30 'S Fuller Torry, M.D., Surviving Schizophrenia, 189 (3rd ed. 1985), (“Both schizophrenia and diabetes have relapses and remissions in a course which often lasts over many years, and both can be well controlled, but not cured, by drugs”). '© National Alliance for the Mentally Ill, Understanding Manic Depression (1997), National Alliance for the Mentally Ill, Understanding Schizophrenia (1997). '? Frederick K. Goodwin, M.D. & Kay Redfield Jamison, Ph.D., Manic Depresssive Iliness 597 (Oxford University Press 1990). 'S Richard S. Keefe & Phillip D. Harvey, Understanding Schizophrenia 437-440 (The Free Press 1994). '? Epilepsy Foundation of America, Epilepsy: A Report to the Nation (1999). 20 R.S. Fisher, et al., A Large Community-Based Survey of Quality of Life and Concerns of People with Epilepsy: Part 1, Epilepsia Vol. 39, Supp. 6 (1998). 12 percent achieve partial control, and the rest have seizures that cannot be controlled through any current treatment.2! There may be a period of weeks, months, or even years, where seizures are well controlled, and then seizures may recur.?? Breakthrough seizures, even among people on medica- trons, can occur for any number of reasons, but commonly include illness,?* lack of sleep,** hormonal or metabolic changes,*> and changes in medications.2© Moreover, anti- seizure medication may also cause side effects that have vary- ing degrees of impact on individuals’ daily lives.2” Because of side effects, people with epilepsy struggle with finding the right medication, in the smallest possible dose, to maintain seizure control, while obtaining optimal functioning.?* 2" Id. 22 Id. 25 N. Santill, Selection and Discontinuation of Antiepileptic Drugs, in Managing Seizure Disorders: A Handbook for Health Care Professionals, edited by N. Santilli, Lippincott-Raven Publishers, Philadelphia 1996. 24 Schachter, S. Treatment of Seizures, in The Comprehensive Evaluation and Treatment of Epilepsy: A Practical Guide. Edited by Steven C. Schachter, and Donald L. Schomer, Academic Press, San Diego 1997. *5 Herzog AG, Klein P., Ransil BJ, Three patterns of catamenial epilepsy, Epilepsia, 1997,38: 1082-1088. 26 Supra n.21. 27 Id. 28 Devinsky, Orrin, Antiepileptic Drug Therapy, in Guide to Understanding and Living with Epilepsy. F.A. Davis & Co., Philadelphia, 1994. Epilepsy, diabetes, and mental illness are repeatedly referenced in the legislative history as conditions which Congress intended to cover in the ADA. (epilepsy) Senate Report at 22, 31, 39, 62, House Comm. On Education and Labor, H.R. Rep. No. 985 (II), 101st Cong., 2d Sess. at 51, 52, 62, 72, 79, 80 (1990) [hereinafter House Report (I1)], House Comm. On the Judiciary, H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. at 28, 29, 33, 42, 50 (1990) [hereinafter House Report (II1)j; (diabetes) Senate Report at 13 Just as an individual could be disabled one month and not the next, two individuals with the exact same impairment could be “disabled” or not, depending on, among other things, their level of responsibility and commitment to a medical regimen and access to good medical care. Ironically, the more disciplined individual would be unable to invoke ADA pro- tection if discriminated against based on the underlying impairment, while the less disciplined counterpart could invoke the ADA’s protections. This simply does not make sense. The next logical step in this line of reasoning could even be that in determining coverage under the ADA, courts would have to inquire whether the effects of the impairment could be controlled if the individual was more vigilant, had a better doctor, was better educated about the consequences of failing to follow a medical regimen, etc. There is no natural stopping point in the proposition that mitigating measures should be considered in determining first prong coverage. Never would this Court have anticipated that when it stated in Southeastern Community College v. Davis, 442 U.S. 397, 412 (1984) that “technological advances can be expected to . . . qualify [people with disabilities] for . . . employment,” that those same technological advances would be used to strip plaintiffs of coverage under the ADA.?9 B. Given that the Plain Language is At Least Ambiguous, The Court Should Defer to Explicit Legislative History and Authoritative Agency Interpretations. When drafting the ADA, Congress explicitly considered the issue of mitigating measures, and consistent with the 22, House Report (II) at 51-52, House Report (III) at 42; (mental illness) Senate Report at 39, 62, House Report (II) at 72, 79, House Report (III) at 28. 29 Like Arline, Southeastern interpreted the ADA's predecessor statute, Section 504 of the 1973 Rehabilitation Act, 29 U.S.C. § 794 (1988 ed.). 14 intent that coverage be broad, concluded that mitigation should not be considered in determining first prong cover- age.*° For instance, the House Committee on Education and Labor declared that: Whether a person has a disability should be assessed without regard to the availability of mit- igating measures, such as reasonabie accommoda- tions or auxiliary aids. For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of a hearing aid. Likewise, persons with impairments, such as epi- lepsy or diabetes, which substantially limit a major life activity are covered under the first prong of the definition of disability, even if the effects of the impairment are controlled by medication. House Report (II) at 52. 3° In addition to the authoritative Committee Reports discussed below, there is also ample evidence in the legislative record that Congress intended individuals who took medicine to ameliorate the effects of impairments to be covered by the ADA. See 135 Cong. Rec. S10765, $10766 (Sept. 7, 1989) (statement of Senator Harkin): [I)}f the disability would affect the performance of that person's job . . . then the employer could say this person was not qualified. If, however, the disability in question, whether schizophrenia, manic-depressive, or whatever it might be, is, let us say, controlled by drugs, the person is under a doctor's care, and the person is qualified for the job .. [then] the employee would be able to go to the EZOC and file a complaint... . See also Statement of Senator Domenici, /d. at 10779. [T}here may have been a time in history when if you had diabetes somebody asked you, do you have diabetes and they could have said to you, we cannot hire vou. Certainly that is not the case today. Certainly you can have a disease as grave as that and fit more jobs. You are either in the process of being maintained, or we are coming close to finding a cure, or your disability is sporadic. 15 Likewise, the House Judiciary Committee Report and the Senate Report state that the impairment “should be assessed without considering whether mitigating measures, such as auxiliary aids or reasonable accommodations, would result in a less-than-substantial limitation.” House Report (III) at 28, Senate Report at 23.3! The agencies charged with interpreting and implementing the ADA appropriately incorporated this legislative history in directing that first prong coverage be decided without regard to mitigating measures. As this Court stated in Bragdon, with regard to interpretations by the Department of Justice, “[a]s the agency directed by Congress to issue implementing regu- lations, see U.S.C. § 12186(b) . . . and enforce Title III in court, the Department’s views are entitled to deference.” 118 S. Ct. at 2209. The same can be said of the EEOC, which has been charged with the obligation to issue regulations imple- menting Title I, 42 U.S.C. § 12116. Both the DOJ and EEOC interpret the first prong of the definition as requiring a determination of substantial limita- tion to be made without regard to mitigating measures such as medicines, or assistance, or prosthetic devices. 29 C.F.R. pt. 1630, app. § 1630.2(j) (1999); 28 C.FR. pt. 35, app. A § 35.104; pt. 36, app. B § 36.104 (1999). Given that the agency interpretations are not inconsistent with the plain meaning of the statute and are a reasonable interpretation, considering the uncertainties of mitigation, this Court should be guided by the admonition in Chevron, U.S.A., Inc. vy. 3! Much has been made of the fact the Senate Report uses the example .f individuals with controlled diabetes or epilepsy to illustrate third prong “regarded as” coverage. See discussion of “regarded as,” infra. The Senate Report example only serves to underscore Congress’ intent to cover such individuals. First, a person with diabetes or epilepsy that is controlled with medication or diet may not be substantially limited even without such measures. Second, and most importantly, the definition of disability is fluid, so that the example can be seen as either first prong if the effects of medication are not considered or third prong if they are. All of the contortions about the appropriate prong are unnecessary. What matters is that the individual is covered by the ADA, as Congress clearly intended. 16 National Resource Defense Council, Inc., 467 U.S. 837, 843-44 (1984): The power of an administrative agency to adminis- ter a congressionally created . . . program neces- sarily requires the formulation of policy and the making of rules to fill any gap left, explicitly or implicitly by Congress . . . [and] a court may not substitute its own construction . . . for a reasonable [agency] interpretation . . . ” (quoting Morton v. Ruiz, 415 U.S. 119, 231 (1974)). Ill. THE “REGARDED AS” PRONG OF THE DEFINI- TION OF DISABILITY IS INTENDED TO ADDRESS THE SUBSTANTIALLY LIMITING IMPACT OF NEGATIVE REACTIONS TO IMPAIRMENTS THAT ARE NOT OTHERWISE SUBSTANTIALLY LIMITING. If this Court decides that substantial limitation must be decided after consideration of mitigating measures, then the plaintiffs should be covered under the “regarded as” prong of the definition of disability. 42 U.S.C. § 12102(2). The “regarded as” prong reflects the “civil rights” approach to disability discrimination, recognizing that problems faced by people with disabilities are often not inherent to the medical condition itself, but are rather the product of ignorance and prejudice.*? This was perfectly understood by this Court in Arline.*? 32 As Senator Weicker testified, “people with disabilities spend a lifetime overcoming not what God wrought, but what man imposed by custom and law.” 136 Cong. Rec. $9684-03, *S9698 (1990). See, Jonathon C. Drimmer, Cripples, Overcomers and Civil Rights; Tracing the Evolution of Legislation and Social Policy for People With Disabilities, 40 U.C.L.A. L.Rev. 1341 (1993). 33 Congress adopted the Court's interpretation of the definition of disability in the ADA. House Report (II) at 53; House Report (III) at 305. 17 To combat the effects of erroneous but nevertheless prevalent perceptions about the handicapped, Con- gress expanded the definition of “handicapped indi- vidual” so as to preclude discrimination against “[a] person who has a record of, or is regarded as hav- ing, an impairment [but who] may at present have no actual incapacity at all.” Arline at 279... . ....» By amending the definition . . . to include not only those who are actually physically impaired, but also those who are regarded as impaired, and who as a result are substantially limited in a major life activity, Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. /d. at 284. The entire purpose of the third prong is to provide a vehicle for examining exclusionary practices and to provide recognition that these exclusionary practices constitute sub- stantial limitations in the lives of people with a wide variety of medical conditions. As the Supreme Court stated in Arline, “the basic purpose of [the statute] . . . is to ensure that [disabled] individuals are not denied jobs or other benefits because of the prejudicial attitudes or ignorance of others.” Id. at 284.*4 Instead of giving credence to the breadth of the third prong, courts are creating burdens of proof for plaintiffs which are often illogical and insurmountable. Most troubling is the overuse of summary judgment to cut off ADA claims at the threshold coverage stage.>5 44 In Arline, the Court quoted an amicus brief of the Epilepsy Foundation of America for the proposition that “[a] review of the history of epilepsy provides a salient example that fear rather than the handicap itself is the major impetus for discrimination against persons with handicaps.” 480 U.S. at 285 n.13. 8S See, Ruth Colker, The Americans With Disabilities Act: A Windfall for Defendents, 34 Harvard Civil Riglits — Civil Liberties Law Review 99, 18 A. Congress and the Enforcing Agencies Adopted Long Standing Agency Interpretations of the “Regarded As” Prong of the Definition of Dis- ability. Congress patterned the ADA’s “regarded as” prong on regulations implementing Section 504 of the Rehabilitation Act of 1973. See Bragdon, at 2202 (noting that Congress adopted previous regulatory interpretations of Section 504 when it enacted the ADA). As the House Judiciary Report explains, The ADA uses the same “regarded as” test set forth in the regulations implementing Section 504 of the Rehabilitation Act. Those regulations provide: (iv) “Is regarded as having an impairment” means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a lim- itation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment. House Report (III) at 29 citing 45 C.F.R. 84.3(j)(2)(iv). Congress explicitly relied on the rationale articulated by this Court in Arline for an understanding of the meaning and scope of the “regarded as” prong. The rationale for this third test, as used in the Rehabilitation Act of 1973, was articulated by the Supreme Court in School Board of Nassau County v. Arline. [480 U.S. 273 (1987).] The Court noted that although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as 110 (1999) (courts have misused the summary judgment rules to the disservice of plaintiffs in ADA employment cases). 19 disabling. “Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment.” 480 U.S. at 283. Senate Report at 23; House Report (II) at 53; House Report (III) at 30. The Section 504 regulation was adopted by both the EEOC and the Department of Justice in their ADA regula- tions. 29 C.F.R. § 1630.2; 28 C.F.R. § 35.104. The interpre- tive guidance to the EEOC and DOJ regulations tracks the committee reports. 29 C.F.R. pt. 1630; app. § 1630.2; 28 pt. 35, app. A § 35.104 pt. 36, app. B § 36.104, respectively. Accordingly, the “regarded as” prong is (1) intended to cover individuals who do not satisfy the requirements of the first two prongs of the definition of disability under the ADA, and (2) is meant to acknowledge that the negative reactions of others can be just as “substantially limiting” as the impair- ment itself. In other words, the third prong is intended to address societal barriers to full participation based on physi- cal or mental impairments. Courts, however, have had trouble reconciling the label “disabled” with an individual who is functioning well enough to work and take part in community events. Yet, this is exactly what Congress intended. As Judge Posner explained, Disability is broadly defined. It includes not only “a physical or mental impairment that substantially limits one or more of the major life activities of [the disabled] individual,” but also the state of ‘being regarded as having such an impairment.’ The latter definition, although at first glance peculiar, actually makes a better fit with the elaborate preamble to the Act, in which people who have physical or mental impairments are compared to victims of racial and other invidious discrimination. Many such impair- ments are not in fact disabling but are believed to be so, anc the people having them may be denied ST Ee ee 20 employment or otherwise shunned as a conse- quence. Such people, objectively capable of per- forming as well as the unimpaired, are analogous to capable workers discriminated against because of their skin color or some other vocationally irrele- vant characteristic. Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995). It is necessary to provide an analytical framework for enforcing the “regarded as” prong which gives effect to Congress’ purpose. B. The Proper Analytical Framework. It is useful to remember that the definition of disability is generic to the ADA, not attached to the specific provisions of any one Title. Therefore, it is necessary to develop an analyti- cal framework that will work for all the Titles of the statute. It is helpful to first look at Title Ill, which covers public accommodations, because in the employment context the analysis often gets muddled and confused by issues related to qualifications for the job. Under Title III, if a bakery refused service to an individ- ual with facial scars, the bakery would be regarding the individual as disabled. It would not matter if there were other bakeries that would serve the person, or whether the baker thought that eating bakery goods was a major life activity. The prejudice of the baker is the limitation the third prong is meant to address. If the individual can establish that the bakery refused to serve the individual because of his facial scars, that would be sufficient to establish a prima facie case of discrimination under the third prong.*® Cf. House Report (111) at 30. (“For example, severe burn victims often face discrimination in employment and participation in community ‘© The Department of Justice, in its section-by-section analysis to its regulations implementing Title III, adopts the view that a rejection based on disability by a public accommodation invokes the third prong of the definition of disability. The Department of Justice states: 21 which results in substantial limitation of major life activ- ities.”) The question raised by Sutton, Murphy, and Kirkingbure, is how the third prong analysis should work in a Title I case. The legislative-ttstery indicates that when an applicant or employee is rejected from a job because of the individual's physical or mental impairment, there is at least a factual question as to whether the employer regarded the individual as being substantially limited in a major life activity, includ- ing working. The Senate Report gives as an example of individuals covered by the third prong “people who are rejected for a particular job for which they apply because of findings of a back abnormality on an x-ray.”37 The Judiciary Report confronts the issue directly, stating: Thus, a4 person who is rejected from a job because of myths, fears, and stereotypes associated with disabilities would be covered under this third test, whether or not the employer’s perception was shared by others in the field and whether or not the person's physical or mental condition would be con- sidered a disability under the first or second part of the definition.** To underscore Congress’ broad interpretation of cover- age, the Judiciary Report states: It is not necessary for the covered entity to articu- late one of these concerns. In the employment con- text, if a person is disqualified on a basis of an actual or perceived physical or mental condition, and the employer can articulate no legitimate job- related reason for the rejection, a perceived concern about employing persons with disabilities could be inferred and the plaintiff qualifies for coverage under the “regarded as” test.*° *7 Senate Report at 24. ‘8 House Report (III) at 30. *? House Report (III) at 30-31. 22 Using this analysis, the EEOC cites concerns related to productivity, safety, insurance, liability, attendance, cost, accommodation, accessibility, worker's compensation costs or acceptance by co-workers and customers as examples of ste- reotypes, fears or misconceptions about disabilities.4° The EEOC concludes that if an employer makes an adverse employment decision based on beliefs or fears that a person's perceived disability will cause problems in any of these areas, and the employer cannot show a legitimate nondiscriminatory reason for the action, the individual would be covered under the third prong of the definition.*! Too often, however, in the employment context, the lower courts are granting summary judgment to defendants, with the rationale that rejection from a “single job” is not enough to show that the employer regarded the rejected appli- cant or employee as substantially limited in the major life activity of working, or in any other major life activity.4? At 40 29 C.FR. pt. 1630, app. §1630.2(1) (1999); EEOC Technical Assistance Manual at I-11. 4) Id. 42 Fortunately, some of the circuit courts are beginning to vacate such dismissals, recognizing that in most instances the issue of whether the employer regarded the plaintiff to have a disability is a question of fact. See Johnson v. American Chamber of Commerce Publishers, Inc., 108 F.3d 818, 819-20 (7th Cir. 1997) (leaving issue of whether defendant was regarded as having disability for lower court on remand); Best v. Shell Oil, 107 F.3d 544, 549 (7th Cir. 1997) (“[A] trier of fact could find that {defendant} perceived [plaintiff] as having a disability that prevented him from working”); Harris v. H.W. Contracting Co., 102 F.3d 516, 524 (11th Cir. 1996) (finding question of fact still exists with respect to “regarded as” prong); Olson v. General Elec. Astrospace, 101 F.3d 947, 955 (3d Cir. 1996) (“[I}t is clear that a reasonable fact-finder could infer that [defendant] perceived [plaintiff] to be disabled”); Holihan v. Lucky Stores, 87 F.3d 362, 366-67 (9th Cir. 1996) (holding that lower court erred in granting judgment as matter of law because the evidence could support finding that defendant regarded plaintiff as having disability); Katz v. City Metal Co., 87 F.3d 26, 33-34 (ist Cir. 1996) (finding evidence created ee 23 least part of the problem appears to stem from a misapplica- tion of the EEOC’s regulations, which define substantially limited in the major life activity of working as “significantly restricted in the ability to perform either a class of jobs, or a broad range of jobs in various classes as compared to the average person having comparable training, skill, 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(j)(3)(i). Hence, in a case under the first prong of the definition of disability, the plaintiff must allege that his/her impairment actually restricts him/her from performing a “class of jobs.”43 genuine issue of material fact with respect to “regarded as” prong); See also EEOC vy. Joslyn Mfg. Co., No. 9SC 4956, 1996 WL 400037, at *7 (N.D. Ill. July 15, 1996) (“[I)n order to survive summary judgment, the [plaintiff] only need raise a genuine issue of facts as to whether [the plaintiff's} perceived impairment substantially limited his ability to work, not actually prove as much.”). 43 The “single job” exception has also been interpreted too broadly by lower courts, to defeat first prong coverage. See Robert L. Burgdorf, "Substantially Limited” Protection from Disability Discrimination: The Special Treatment; Model and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 409 (1997). The exclusion-from-one-job-is-not-enough formula has resulted in, or contributed to, the dismissal of ADA or section 504 of the Rehabilitation Act claims by plaintiffs with, among others, the following kinds of impairments: replacement of hips and shoulders (as a result of a vascular necrosis); diabetes; cancer; laryngectomy (removal of larynx); hemophilia; heart attack; absence of one eye; degenerative hip disease resulting in a limp, permanent severe limitations in use of the right arm and shoulder; various serious back injuries; depression and paranoia; a six-inch scar on the face resulting in supervisors calling the employee “scarface; ‘bilateral carpal tunnel syndrome;’ ” asthma; asbestosis; HIV infection; traumatic brain injury resulting in vision limitations, memory deficiencies, problems with verbal fluency, problems 24 However, under the third prong, a plaintiff is alleging that he/she can perform the class of jobs represented by the job in question. Therefore, the plaintiff will not be able to demonstrate, nor would he or she have any interest in demon- strating, that he or she is precluded from the class of jobs involved. In most cases, the only evidence which will be available to plaintiff is the rejection by the defendant. It is not the rejection per se which gives rise to the “regarded as” claim, but the natural and ordinary implication of such a rejection. Usually, if an employer rejects an individual from a job because of the individual’s impairment, it means the employer thinks the individual's impairment precludes the individual from doing the types of tasks the job requires. Therefore, in most cases, a rejection based on a medical condition raises, at a minimum, a material issue of fact as to whether the employer “regarded” the individual as “disabled” within the meaning of the ADA. Summary judgment on the definition issue is inappropri- ate, except in cases where there is no conceivable set of facts from which a trier of fact could conclude that plaintiff was “regarded as” substantially limited in working or in any other major life activity. Self serving statements by a defendant that it did not regard the plaintiff as so limited cannot be the basis of summary judgment when the natural and predictable impli- cation of the adverse treatment is otherwise. abstracting and motor deficits; and stroke resulting in the loss of use of the left hand, arm and leg. (footnotes omitted) For case cites see id. at 539-541 nn.643-661. 25 C. Analytical Problems with the Lower Court Deci- sions, as Illustrated by the Tenth Circuit Opin- ions. The mistakes of the lower courts are illustrated by the Tenth Circuit opinion in Sutton,** where the court: 1. Required, in essence, that plaintiffs be actually substantially limited (Ist prong) in order to establish a “regarded as” case; and 2. Required that the plaintiffs demonstrate that the employer regarded them to be disqualified from similar job« by other employers. Both of these requirements, often combined, constitute insurmountable obstacles for plaintiffs.4° Since an employer is only concerned with the particular job it is offering, it is not likely to be thinking about other jobs the impaired indi- vidual could or could not obtain and certainly is not thinking about how the plaintiff's impairment affects other activities besides working. The only way ‘to give meaning to the “regarded as” prong is to interpret the rejection from the job in question to signify the employer's view of the plaintiff's ability te perform the class of jobs to which the job in question belongs. Yet, employers are being allowed to defend suits under the ADA by proving that other employers do not utilize the same discriminatory criteria as that employed by the defen- dant and that, therefore, the discriminatory criteria does not constitute a substantial barrier to employment.*© In other * The Sutton decision provides a more thorough analysis of the “regarded as” prong than Murphy. * See e.g., Welsh v. City of Tulsa, 977 F2d 1415, 1419 (10th Cir 1992) (rejecting plaintiff's “regarded as” claim because he was not substantially limited in major life activity). © See Burgdorf at 441, 456, n.234, see e.g., Bridges v. City of Bossier. 92 F.3d 329 (Sth Cir. 1996). (In a case involving rejection as a fire fighter because of hemophilia, where the court refused to consider the policy of the city to require all EMT and paramedic positions to meet firefighting 26 words, the more arbitrary and prejudicial the physical or mental criteria, the more likely the employer will be able to escape review under the ADA.*’ This argument would be untenable in other areas of civil rights law, where proof of other employers’ nondiscriminatory job criteria would be used as evidence of the defendant's discrimination. The Tenth Circuit opinion in Sutton illustrates how both the infusing of first prong analysis in “regarded as” cases and requiring a plaintiff to demonstrate the employer's perception beyond the natural implications of the rejection itself under- mines the “regarded as” prong. In determining whether United “regarded” plaintiffs as unable to do a class of jobs, the court immediately shifted its inquiry to the first prong analysis of whether plaintiffs’ impairment actually substan- tially limited their employment in a “class of jobs”. Sutton at 903-904. The Court then concluded that if the plaintiffs are not substantially limited in working in actuality, they also cannot be found to have been regarded as substantially lim- ited. This judicial construction effectively repeals the third prong of the definition. The court also improperly applies the “single job” excep- tion in the EEOC regulations defining “substantially limited in working” to the “regarded as” analysis. Although the Tenth Circuit accepts plaintiffs’ allegations that United rejected standards in consideration of whether plaintiff was excluded from a “class of jobs” because there was no proof that other employers did the same thing.) *” The case which gave rise to the “class of jobs” analysis recognized that in “evaluating whether there ts a substantial handicap to employment, it must be assumed that all employers offering the same job or similar jobs would use the same requirement or screening process,” E.E. Black vy. Marshall, 497 F. Supp. 1088, 1100 (D. Hawaii 1980). The court in EE. Black underscored the importance of a presumption of common usage of the discriminatory criteria. Id. Otherwise, according to the court, an employer using the “aberrational type of job qualification . . . would be rewarded if his reason for rejecting the applicant were ridiculous enough.” Id. ee a 27 them from all pilot jobs at United the court concludes that this rejection is not sufficient to demonstrate rejection from a “class of jobs,” which would include not only global airlines, such as United, but all other types of carriers as well (national, commuter, regional, cargo/courier airlines). How- ever, the court gives absolutely no indication as to how plaintiffs are to demonstrate whether or not United regarded them as able or unable to work for the other types of airlines. The court simply states that it cannot adopt a “reasoning [that] would imply that anyone who failed to obtain a single job because of a single requirement of employment could become a “disabled individual . . . This reading would stand the Act on its head.” Sutton at 905. As the Sixth Circuit stated in Taylor v. United States Postal Service, 946 F.2d 1214, 1218 (6th Cir. 1991), ... @ per se rule that never permitted an unsuccess- ful job applicant to prove he was perceived as being handicapped by pointing to the fact that he did not possess a so-called job requirement due to physical impairment would likewise stand the Act on its head. How else would a person who, for example, had a cosmetic disfigurement ever prove that he was handicapped under the Act except by pointing to the fact that an employer did not hire him for that reason? In most cases, the plaintiff will only know that the employer rejected him or her because of an impairment. Absent contrary evidence, the rejection from the job in ques- tion must be viewed as a perception that the plaintiff is unable to perform the class of jobs of which the particular job is a part. For example, if an employer rejects an applicant for a teaching job because of an impairment, the applicant is regarded as unable to teach. Plaintiffs’ allegation that there is nothing unique about the United pilot jobs should suffice to establish that United regarded plaintiffs (or all those with 28 uncorrected vision of 20/100 or worse) as unable to perform the class of jobs of piloting.** Moreover, since plaintiffs were rejected because of their uncorrected vision, United cannot claim that it did not regard them as substantially limited in seeing because they can wear glasses. It would be unfair to look at the “regarded as” prong with mitigating measures that the defendant refused to con- sider in the rejection. The Tenth Circuit's results-oriented approach can per- haps be explained by the courts’ fundamental misunderstand- ing of the significance of finding that plaintiffs were “regarded as” disabled under the ADA. Immediately after rejecting plaintiffs’ “regarded as” claim, the court cited Kelly v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996) for the proposition that accepting plaintiffs’ claim would mean that “anyone could establish a prima facie discrimination case merely by demonstrating some adverse action against the individual... . ” The fundamental misunderstanding revealed by this quote is the assumption that establishing coverage is suffi- cient to establish a prima facie case. As stated earlier, the coverage question is just the first prerequisite of a prima facie ADA case.** The plaintiff must also show that he or she is qualified to perform the essential functions of the job and that #8 The Tenth Circuit references the EEOC’s example that “an individual who cannot be a commercial pilot because of a minor vision impairment, but who can be a commercial airline co-pilot or a pilot for a courier service, would not be substantially limited in the major life activity of working,” 29 C.F.R. §1630, app. §1630.2(j) para. 12. This example is used to explain whether, under the first prong of the definition of disability, an individual is actually substantially limited in working. Again, as explained above, in a “regarded as” case the allegation that United rejected plainuffs from all pilot positions with United must be interpreted to at least raise a factual issue that United regarded plaintiffs as unqualified for pilot jobs in general. *” See infra. 29 the rejection was based on disability. As the Supreme Court warned in Arline, 480 U.S. at 285, by excluding an impaired individual from coverage, the individual loses the opportunity to have the condition evaluated in light of medical evidence, thus making him or her “vulnerable to discrimination on the basis of mythology — precisely the type of injury Congress sought to prevent.” Another insight into the Tenth Circuit's restrictive inter- pretation of coverage is revealed in the Court's statement that “[wle refuse to construe the .. . The Act as a handout to those who are in fact capable of working in substantially similar jobs.” Sutton at 906. Citing Hileman v. City of Dallas, 115 F.3d 352, 354 (Sth Cir. 1997). Coverage under the ADA is not a hand-out. The fact that an individual might be able to find work elsewhere should not shield an employer from having its exclusionary medical criteria evaluated in light of objective medical evidence. As was emphasized time and time again in the legislative history of the ADA, “[b]y including the phrase ‘qualified individual with a disability’ the Committee intends to reaffirm that this legislation does not undermine an employer's ability to choose and maintain qualified workers. .. . " Senate Report at 26. “An employer may still devise physical and other job criteria and tests for a job so long as the criteria and tests are job related and consistent with business necessity.” /d. at 27. ADA plaintiffs want to work; they want to be tax-paying, contributing members of our society. Courts are accustomed to the term “disability” meaning “inability” in cases for bene- fits and tort awards. The ADA provides a new framework for the term disability. The third prong of the definition, in particular, is causing confusion because it uses the term “disabled” to describe people whose biggest limitation is the attitudes of others. Amici, current and former members of Congress, look to this Court to set forth the proper analytical framework for the lower courts, to give effect to Congres- sional intent to eliminate attitudinal barriers which limit the 30 opportunities of millions of Americans with a wide range of medical conditions. CONCLUSION For the foregoing reasons, the judgments of the Court of Appeals for the Tenth Circuit should be reversed and the judgment of the Court of Appeals for the Ninth Circuit . affirmed. Dated: February 19, 1999 Respectfully submitted, ARLENE MAYERSON Disability Rights Education & Defense Fund 2212 Sixth Street Berkeley, California 94710 Telephone: (510) 644-2555 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0238%3A14. Public record. Not legal advice.