Amicus Curiae Brief — Albertson's, Inc. v. Kirkingburg

Bupreme Court, U.S.

FILED

| FEB 22 1999

No. 98-591 | OFFICE OF THE CLERM

Jn the Supreme Court of the United States

OCTOBER TERM, 1998

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ALBERTSONS, INC., PETITIONER,

V.

HALLIE KIRKINGBURG, RESPONDENT.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE FOR THE AMERICAN

TRUCKING ASSOCIATIONS, ET AL.,

IN SUPPORT OF PETITIONER

ROBERT DIGGES JAMES D. HOLZHAUER

ATA Litigation Center Counsel of Record

2200 Mill Road TimoTnHy S. BISHOP

Alexandria, VA 22314 SUSAN E. PROVENZANO

(703) 838-1865 NICOLA JACKSON

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Counsel for Amici Curiae

QUESTION PRESENTED

The amici curiae will address the following question:

Whether an impairment which merely affects, but does

not significantly restrict, a major life activity, and which is

ameliorated by internal compensating mechanisms or external

mitigating measures, falls within the Americans with

Disabilities Act’s definition of disability as a physical or

mental impairment that “substantially limits” a major life

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................

INTEREST OF THE AMICI CURIAE ........... 1

NN ost. Pe ng Sy ice og 3

INTRODUCTION AND SUMMARY OF ARGUMENT .. 6

pr. GRABS haa. ne ee Gear eae 7

I. THE NINTH’ CIRCUIT’S HOLDING

CONFLICTS WITH THE PLAIN LANGUAGE

OF THE ADA AND ITS IMPLEMENTING

on are ee ee ee 7

A. By Equating A _ Difference With A

Disability, The Ninth Circuit Disregarded

The ADA’s’ Requirement Of An

Individualized, Functional Analysis Of

Substantial Limitations ............ 7

B. Compensating Mechanisms And Mitigating

Measures Must Be Factored Into The

Determination Of Whether An Individual Is

SE, Soa wd @ Winkie a EG Noe me eb eae 13

Il. THE NINTH CIRCUIT’S “DIFFERENCE”

TEST EXPANDS THE ADA BEYOND ITS

INTENDED SCOPE AND DISRUPTS THE

FAIR DISPENSATION OF ITS BENEFITS .. 18

et ie Ee aa er Sree ome Te rar 24

iii

TABLE OF AUTHORITIES

Page

Cases:

Bailey v. United States, 516 U.S. 137 (1995) ...... 8

Bragdon v. Abbott, 118 S. Ct. 2196 (1998) .. 10, 12, 17

Champagne v. Servistar Corp., 138 F.3d 7 (1st Cir.

She by e404 eee th i ak eek we 8 20

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

Council, Inc., 467 U.S. 837 (1984) ......... 12

Daugherty v. City of El Paso, 56 F.3d 695 (Sth Cir.

ED i eee Lites ok Sia kw as sb a oa Ole ek 21

Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997),

cert. denied, 118 S. Ct. 693 (1998) .......... )

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

es WB liiro sre Ob oe 0 Se ee’ 8 8, 14

Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) .... 10

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

Rie las bab 8 ee hb & Code. Oaers 20

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

SNA PELE COANE LENE eT 15

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

re ad 6 a bie ae Men 6 8

Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir.

OS ale ks ed hae ey ot a ea ee hee 19

Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d 959

NN re er eee 11

iv

TABLE OF AUTHORITIES-Continued

Page

Hughes Aircraft Co. v. Jacobson, No. 97-1287 (U.S.

a. EE Se ks VERE e eRe ee eens 8

Joyce v. Suffolk County, 911 F. Supp. 92 (E.D.N-Y.

ROD iss 658.0-s ee oes he otek Cee, 21

Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) .. 12

Kelly v. Drexel Univ. , 94 F.3d 102 (3d Cir. 1996) .. 8,9, 17

Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir.

SOO vd chic aries Caeser ol 21

Martin v. Occupational Safety and Health Review

Comm'n, 499 U.S. 144 (1991) ............ 15

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

Ala.), aff'd, 103 F.3d 149 (11th Cir. 1996) .... 20

Penny v. United Parcel Serv., 128 F.3d 408 (6th Cir.

ee rire re Pn 20

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

SRGOD. «bwin eb oe pak Cee 8, 9, 13, 14, 22

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

ONE ic ikcin es ee oe 8, 9, 11, 12, 17

Shalala v. Guernsey Memorial Hosp., 514 U.S. 87

to PRR Pn Pas, a! ekg we atari E* 15

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

Serer Sey ee 9, 12, 13, 15

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

1997), cert. granted, No. 97-1943 (Jan. 8, 1999) . 9

v

TABLE OF AUTHORITIES-Continued

Page

Swain v. Hillsborough Cty. Sch. Bd., 146 F.3d 855

NE Sis acces dba be der wee 9, 13

Statutes and Regulations:

NG pico 5 85 ds ee eS 10

I NS ans a SU baits ea 16

42 U.S.C. § 12102(2(A) ......... 6, 8, 11, 14, 18

I ss ours Seer tsa's duets hare 5

ss ie he aes Cas 16

alga ig aR a eae 22

42 U.S.C. § 12112(0)(SMA) ..........-.--. 16, 20

A eae 22

42 U.S.C. § 12182(b)(2MAMiii) 2... eee 16

SEEN ee ae a 10

Ne eos wsdl s atk 14

Ms ewe aawe es 12

Ee ere 12

ee ee. Sac ce ene 4

vi

TABLE OF AUTHORITIES-Continued

Page

Miscellaneous:

ee RK a eee ee 10

H.R. Rep. No. 485, Pt. II, 10ist Cong., 2d Sess.

CUED. - 5 .c-0-ee ee aera ele ee 10, 16, 18

S.R. Rep. No. 116, 101st Cong., Ist Sess. (1989) . 10, 16-18

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

CORSE es cet as o BS ee So es ee 9

BRIEF AMICUS CURIAE OF THE AMERICAN

TRUCKING ASSOCIATIONS, ET AL., IN SUPPORT

OF PETITIONER

INTEREST OF THE AMICI CURIAE'

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

a trade association of motor carriers, state trucking associa-

tions, 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 American Moving & Storage Association (“AMSA”)

is the national trade association of the moving and storage

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

' 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

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 transport-

ers, crane and rigging companies, millwright contractors, and

transporters of construction and military equipment.

The Truckload Carriers Association (“TCA”) is a

national trade associaiion 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 special-

izing in transporting hazardous materials, substances, and

wastes in cargo tank trucks. Its members operate throughout

the United States, Mexico, and Canada.

The Association of Waste Hazardous Materials Trans-

porters (“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 environ-

ment, public health, and safety.

The National Automobile Transporters Association

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

of all new motor vehicles through either driveaway or

truckaway operations. NATA represents the joint interest of

3

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 discrimination in all forms should

be eliminated from the workplace. At the same time, amici’s

members, as employers of millions of workers, have a large

stake in ensuring that the provisions of the Americans with

Disabilities Act are fairly applied.

The Ninth Circuit’s definition of disability allows

individuals whose medical conditions merely make them

“different” to qualify as “disabled” persons entitled to the

ADA’s full panoply of protections. This overly-broad

interpretation ignores the statutory requirement that an

impairment “substantially limit” one or more of a person’s

major life activities. At odds with congressional intent, the

Ninth Circuit’s position would make a huge segment of the

American population into “disabled” persons covered by the

Act, imposing unwarranted costs on employers and under-

mining the ADA’s goal to eliminate discrimination 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

Respondent Hallie Kirkingburg has very poor vision in

his left eye, which is caused by amblyopia (“lazy eye”). This

condition is not correctable with lenses. However, because

Kirkingburg has had the condition since birth, his brain has

developed subconscious mechanisms to compensate for his

visual deficiencies. Pet. App. 10a, 14a. These mechanisms

4

have been so effective that over the years Kirkingburg has

successfully worked at several jobs that depended on his

ability to see.’

As the second largest grocery chain in the country,

Albertsons employs scores of over-the-road drivers to

transport its goods and has a strict company policy directed

at maintaining safe highway conditions: every one of its

drivers must meet or exceed minimum Department of

Transportation (“DOT”) vision standards. Pet. App. 11a.

DOT regulations provide that drivers cannot be certified as

medically competent to operate commercial vehicles unless

their visual acuity scores are at least 20/40, corrected, in

both eyes. 49 C.F.R. § 391.41(b) (10). When Kirkingburg

began working as a driver for Albertsons in 1990, he could

not fulfill these criteria. Although his right eye has a visual

acuity rating of 20/20 with corrective lenses, his left eye

visual acuity has always been 20/200. Pet. App. 9a-10a.

Inexplicably, two different medical examiners initially

certified Kirkingburg as meeting DOT and Albertsons’ vision

standards. Pet. App. 9a. In 1991, Kirkingburg underwent

another eye examination. This time, the examining physician

correctly determined that Kirkingburg’s left eye visual acuity

was 20/200. This did not meet DOT and company standards;

thus, the physician refused to certify Kirkingburg. /d. at 10a.

Because Kirkingburg could not satisfy the necessary vision

requirements, Albertsons determined that he was not quali-

fied to drive the company’s commercial vehicles and termi-

nated him from his truck driver position. /d. at 1la.

> Before working as a truck driver for petitioner Albertsons, Kirking-

burg trained and worked as a jet aircraft mechanic and crew chief to

the basic air commander (1957-60), worked as an auto mechanic for

Los Angeles County (1968-78 or '79), ana beginning in 1979, drove

commercial vehicles. Appellee Br. at 21 n.6.

5

A few months later, Kirkingburg presented the company

with a vision waiver from the Federal Highway Admiwistra-

tion (“FHA”), which he had obtained under a new program

that granted exemptions from DOT regulatory requirements.

Pet. App. lla, 372-38a. Out of concern for public and driver

safety, Albertsons has never accepted these waivers for any

of its drivers. It declined to do so for Kirkingburg. Pet. App.

lla, 37a, 41a.

Kirkingburg filed suit in the United States District Court

for the District of Oregon claiming that Albertsons violated

the Americans with Disabilities Act, 42 U.S.C. § 12110 et

seq., by refusing to accommodate his eye condition. Albert-

sons moved for summary judgment, arguing that Kirkingburg

was not a qualified individual with a disability because he

could not perform an essential function of his job—satisfying

minimum DOT vision standards. The district court granted

summary judgment on that ground. Pet. App. 36a-44a.

In a 2-1 decision, the Ninth Circuit reversed. The

majority held that Kirkingburg is disabled under the ADA

because he is substantially limited in the major life activity

of seeing. The majority viewed Kirkingburg’s “monocular”

vision, in and of itself, as decisive: it necessarily meant that

he sees in a “different” manner from most people. In the

alternative, Kirkingburg raised a genuine issue of fact as to

whether Albertsons regarded him as disabled. The majority

further held that Kirkingburg raised a material fact question

as to whether he could perform the essential functions of a

commercial truck driver, and that Albertsons’ policy of

requiring drivers to satisfy DOT vision acuity standards,

without regard to whether they have FHA vision waivers, is

not a valid job-related requirement. Finally, the majority

ruled that Albertsons failed to show that Kirkingburg and

other waiver recipients posed a direct threat to safety. Pet.

App. 8a-28a.

6

Judge Rymer dissented on the ground that satisfying the

DOT’s usual vision acuity regulations was an essential

function of Kirkingburg’s job and that Albertsons was not

obliged to employ as a driver a person who satisfied only the

requirements of the FHA’s experimental waiver program, not

the DOT safety standards themselves. Since the DOT had not

determined thz* the vision waiver program was consistent

with highway safety, there was no justifiable reason that

employers should be compelled to accept such waivers. Pet.

App. 28a-33a.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Ninth Circuit’s decision fundamentally—and

erroneously—alters the standards that an individual must

satisfy in order to qualify as “disabled” under the Americans

with Disabilities Act. The first of the ADA’s three alternative

definitions of disability is “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). By

finding that it is sufficient for a plaintiff merely to possess an

impairment that renders him or her “different,” the court of

appeals simply discarded much of this language. Gone is the

1quirement of a significant restriction in functioning, which

is plain from the words “substantially limits.” And gone is

the emphasis on the “individual.” There is no need to inquire

into the consequences of a disorder for a particular person if

he or she has a known condition. A diagnosis alone is

adequate to ascertain that the person is “different.”

The Ninth Circuit’s decision squarely conflicts not only

with the plain language of the ADA, but also with its

legislative history and with regulations promulgated under the

Act. These demand a functional, fact-based analysis of

whether an impairment severely constrains an individual.

Because the proper approach to the disability determination

involves examining an individual’s specific limitations, it

7

necessarily follows that any mitigating measures (such as the

plaintiff's natural adaption here) must be taken into account.

Otherwise, the person’s actual restrictions are ignored.

The Ninth Circuit’s approach unjustifiably expands the

scope of the ADA by providing coverage to plaintiffs with

non-limiting impairments. This distorts the Act’s legitimate

anti-discrimination goals. It invites strategic behavior by

persons with medical conditions that do not impair function-

ing. And it creates unwarranted costs for employers and co-

workers at whose expense mildiy limited individuals must be

accommodated. This Court should restore the appropriate,

congressionally-intended balance to the ADA by making

clear (as other circuits have done) that persons are disabled

within the meaning of the Act only if they estaolish that an

impairment in fact substantially limits a major life activity.

ARGUMENT

I. THE NINTH CIRCUIT’S HOLDING CONFLICTS

WITH THE PLAIN LANGUAGE OF THE ADA

AND ITS IMPLEMENTING REGULATIONS

A. By Equating A Difference With A Disability, The

Ninth Circuit Disregarded The ADA’s Require-

ment Of An Individualized, Functional Analysis

Of Substantial Limitations

The Ninth Circuit concluded that Kirkingburg is disabled

within the meaning of the ADA because his “inability to see

out of one eye affects his peripheral vision and depth

perception.” Pet. App. 14a (emphasis added). Discounting

the adjustments that Kirkingburg’s brain has made to

compensate for his vision deficiencies, the court explained

that “Kirkingburg sees using only one eye; most people see

using two.” Jd. at 14a-15a. Based on these conclusory

observations, the court held that “there is no question that

Kirkingburg is substantially limited in the major life activity

8

of seeing.” Jd. at 14a. The Ninth Circuit, therefore, focused

solely on Kirkingburg’s medical impairment and the fact that

he sees “differently” from other people. /bid. Because the

court stopped at finding an impairment, it read the statutory

phrase “substantially limits” out of the text. It neglected to

make a reasoned assessment of whether Kirkingburg’s

monocular vision actually impacts his functioning in a

significant way.

The Ninth Circuit’s holding that a “difference” is

equivalent to a disability should be rejected for a simple

reason: the ADA means what it says. In any case of statutory

construction, the inquiry begins with the “language of the

statute.” Bailey v. United States, 316 U.S. 137, 144 (1995).

Where, as here, “the statutory language provides a clear

answer, it ends there as well.” Hughes Aircraft Co. v.

Jacobson, No. 97-1287, slip op. at 5 (U.S. Jan. 25, 1999).

By its own terms, the ADA mandates more than just a

recognition of a “difference” in, or effect on, the perfor-

mance of life activities. See Dutcher v. Ingalls Shipbuilding,

Inc., 53 F.3d 723, 726 (Sth Cir. 1995) (“A physical impair-

ment, standing alone, is not necessarily a disability as

contemplated by the ADA”); Kelly v. Drexel Univ., 94 F.3d

102, 108 (3d Cir. 1996) (same). Rather, by defining a

disability as a physical or mental 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”); Ryan v. Grae & Rybicki, P.C., 135

F.3d 867, 870-872 (2d Cir. 1998) (“in assessing whether a

9

plaintiff has a disability, courts have been careful to dis-

tinguish impairments which merely affect major life activities

from those that substantially limit those activities”); see also

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2280

(1986) (defining “substantial” as “being of moment: import-

ant, essential” and “considerable in amount”).

The statute also requires analysis of whether an impair-

ment produces significant disadvantages for the particular

person who is seeking to invoke the protections of the Act. It

is simply not possible to gauge the “limits” that a condition

imposes on “the major life activities of [the] individual”

without examining the individual. 42 U.S.C. § 12102(2)(A).

See, e.g., Sutton y. United Air Lines, Inc., 130 F.3d 893,

897 (10th Cir. 1997), cert. granted, No. 97-1943 (Jan. 8,

1999) (the statutory phrase “with respect to the individual”

signifies that there must be an individualized, case-by-case

evaluation of whether a given impairment amounts to a

substantial limitation). Thus, the dividing line between the

“disabled” and the impaired is judged by how an impairment

manifests itself in constraints on a person’s daily life, and the

degree to which it does so. That is the core of the “disabil-

ity” determination.’

Although the interpretive process need go no further,

because the statutory language is unambiguous, the legislative

* The majority of circuits use this fact-based approach, concentrating

on whether the plaintiff has significant limitations in his functional

abilities. See Ryan v. Grae & Rybicki, P.C, 135 F.3d 867, 870-872

(2d Cir. 1998); Kelly v. Drexel Univ., 94 F.3d 102, 106-107 (3d Cir.

1996); Still v. Freeport-McMoran, Inc., 120 F.3d 50, 52 (Sth Cir.

1997); Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir.

1995); Sutton v. United Air Lines, 130 F.3d 893, 900-901 (10th Cir.

1997); Swain v. Hillsborough Cty. Sch. Bd., 146 F.3d 855, 858 (1 Ith

Cir. 1998). But see Doane v. City of Omaha, 115 F.3d 624, 627-628

(8th Cir. 1997) (using “difference” test).

10

history supports the ordinary understanding of the ADA’s

definition of disability. Committee Reports from both the

House and the Senate highlight the importance of confining

disability coverage under the ADA’s first prong to those who

experience profound limitations in life activities. The reports

state that “[a] physical or mental impairment does not

constitute a disability * * * for purposes of the ADA unless

its severity is such that it results in a ‘substantial limitation

of one or more major life activities.” H.R. Rep. No. 485,

Pt. Il, 101st Cong., 2d Sess., at 52 (1990); S.R. Rep. No.

116, 101st Cong., Ist Sess., at 23 (1989). “[Ml]inor, trivial

impairment[s]” are excluded. /bid. Moreover, in order to

decide if a person is “substantially limited,” the congressio-

nal reports direct the courts to engage in a factual inquiry as

to the “condition, manner, or duration under which [life

activities] can be performed in comparison to most people.”

Ibid. in sum, the existence of an impairment is not enough.

“The ADA includes a functional rather than a medical

definition of disability.” 136 Cong. Rec. 9072 (1990)

(statement of Rep. Bartlett, House Manager of the ADA).

Furthermore, Congress was not writing on a blank slate

when it drafted the ADA. The Committee Reports indicate

that “the definition of the term ‘disability’ included in the bill

is comparable to the definition of the term ‘individual with

handicaps’” in the Rehabilitation Act of 1973 (“RHA”), 29

U.S.C. § 701 et seq. H.R. Rep. No. 485, Pt. Il, at 50; S.

Rep. No. 116, at 21. And the ADA itself provides that

“nothing in this chapter shall be construed to apply a lesser

standard than * * * applied” under the RHA. 42 U.S.C.

§ 12201(a). At the time the ADA was passed, courts had

interpreted the RHA’s “statutory language, requiring a

substantial limitation” as “emphasiz[{ing] that the impairment

must be a significant one.” Forrisi v. Bowen, 794 F.2d 931,

933-934 (4th Cir. 1986). Accordingly, Congress intended the

phrase to have the same meaning under the ADA. See

"==

11

Bragdon v. Abbott, 118 S. Ct. 2196, 2202 (1998) (Con-

gress’s repetition of well-established terms from the RHA in

§ 12102 (2)(A) of the ADA implies that they should be given

the same construction as under the RHA).

The ADA and its legislative history, therefore, preclude

a finding of “disability” “based on abstract lists or categories

of impairments.” Homeyer v. Stanley Tulchin Assocs., Inc.,

91 F.3d 959, 962 (7th Cir. 1996); see also Ryan, 135 F.3d

at 872 (“the determination whether an impairment ‘substan-

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

that is exactly the method the Ninth Circuit endorsed. The

decision below is devoid of any evaluation of the conse-

quences Kirkingburg’s monocular vision has upon his life.

That Kirkingburg is “almost totally blind in his left eye”

(Pet. App. 14a) comprises the beginning and the end of the

court’s “analysis.” Using monocular vision as the touchstone

impermissibly recasts the disability determination from an

udividualized process to a collective approach. If seeing with

one eye is tantamount to a disability regardless of the extent

to which it impedes the performance of everyday tasks,

everyone with that same visual impairment is automatically

disabled. On a broader scale, once functionality is elimi-

nated, whether an impairment is a “disability” under the first

prong becomes a question of diagnosis instead of actual

limitations in life activities. This squarely conflicts with the

ADA’s focus on each individual’s ability level.

The ADA’s implementing regulations underscore the vast

gulf between the Ninth Circuit’s view that an impairment

which is a disability for one person is a disability for all and

the Act’s recognition that “there are varying degrees of

impairments as well as varied individuals who suffer from

the impairments.” Homeyer, 91 F.3d at 962. Precisely as

Congress envisioned, the EEOC regulations define “substan-

tial limitations” as “[s]ignificant restrict{ions]” in “the

12

condition, manner or duration” of the plaintiff's activities in

relation to the “average person.” 29 C.F.R. § 1630.2

(j)(1)(). The regulations add that relevant considerations are

the nature and severity of the impairment, its duration, and

its long-term impact. Jd. § 1630.2(j(2). There is no conceiv-

able means by which to undertake any of these assessments

without looking beyond a medical diagnosis. Nothing short

of a fact-based inquiry into the functional limitations of the

particular individual will suffice. See Bragdon, 118 S. Ct. at

2202-2206 (conducting a fact-intensive examination of

impairment, major life activity, and substantial limitation);

Ryan, 135 F.3d at 871-872 (using factors listed in § 1630.2

(j)(2) to guide appraisal of plaintiff's specific circumstances);

Katz v. City Metal Co., 87 F.3d 26, 31-32 (1st Cir. 1996)

(same).

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

Defense Council, Inc., 467 U.S. 837, 844 (1984), the EEOC

regulations are entitled to deference. But while the Ninth

Circuit referred to the regulations in its opinion, it did little

more than that. Pet. App. 14a (citing 29 C.F.R. § 1630.2

(j)(1 (ii) & (j)(2)). The court simply asserted that due to the

“the nature of [Kirkingburg’s] condition and its perma-

nence,” he must be disabled. Ibid. If the Ninth Circuit had

seriously considered the severity and impact of Kirkingburg’s

monocular vision, it would have ruled in Albertsons’ favor.

Kirkingburg is not significantly restricted when measured

against the “average person”; he did not establish that “he is

unable to engage in any usual activity because of his partial

blindness.” Still v. Freeport-McMoran, Inc., 120 F.3d 50, 52

(Sth Cir. 1997) (plaintiff with monocular vision who could

“perform normal daily activities” was not disabled); see also

Sutton, 130 F.3d at 902-903 (plaintiffs with poor vision who

could “go about all their normal daily activities” in the

“same or similar” manner as the majority of the population

were not disabled).

13

In fact, Kirkingburg’s body has learned to offset the

deficiencies in his vision to such a degree that he has

managed to hold steady jobs in various lines of work and has

driven trucks for 20 years. Pet. App. 9a. See Still, 120 F.3d

at 52 (wide range of jobs plaintiff had held demonstrated that

he was not legally disabled); Roth, 57 F.3d at 1455 (plain-

tiffs past work experience, including working as a pharma-

cist, attorney, and university lecturer repudiated his claim

that he was significantly restricted in seeing); Swain v.

Hillsborough Cty. Sch. Bd., 146 F.3d 855, 857 (11th Cir.

1998) (plaintiff who worked as a teacher and administrator

for 20 years was not substantially limited by her physical

impairments). In addition, when the Federal Highway

Administration issued Kirkingburg a waiver, it presumed that

he was capable of driving commercial vehicles. Therefore,

to say that Kirkingburg is substantially limited in the major

life activities of seeing or working ignores the evidence and

defies common sense.

B. Compensating Mechanisms And Mitigating Measures

Must Be Factored Into The Determination Of

Whether An Individual Is Disabled

The Ninth Circuit’s decision dismisses the internal

adjustments Kirkingburg’s brain makes for his condition. The

ADA and its regulations, while silent on the issue of

mitigating measures, do not justify such an approach.‘ To the

contrary, by emphasizing the importance of the individual

and the current constraints that he experiences as a result of

his impairment, the ADA dictates that natural adaptions must

be factored into the disability determination. The ADA

* The Court is presented with the question of whether mitigating

measures should be considered in the “substantial limitation” analysis

in two pending cases, Sutton v. United Airlines, No. 97-1943 and

Murphy v. United Parcel Serv., No. 97-1992.

14

expressly covers only those impairments that actually place

“substantial limitations” on life activities, not impairments

that may do so. 42 U.S.C. § 12102(2)(A). If mitigating

measures are discounted, the effect is to pretend that substan-

tial limitations exist when, in fact, they do not.

Other courts of appeals have pointed to plaintiffs’ own

Capacities to adjust to their impairments as grounds for

finding that they are not “substantially limited” in their life

activities. For example, in Roth v. Lutheran Gen. Hosp., 57

F.3d 1446, 1449, 1455 (7th Cir. 1995), as in this case, the

plaintiff's visual condition was not completely correctable

with lenses, but he had “‘adapted well to daily activities.’”

The Seventh Circuit concluded that plaintiff had failed to

demonstrate that he was disabled. Similarly, the Fifth

Circuit has ruled that a 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.”

Dutcher v. Ingalls Shipbuilding, 53 F .34 723, 726 (Sth Cir.

1995).

Even the EEOC’s interpretive guidelines, which in

critical respects misinterpret the statute, support this position.

The guidelines say that disability should be assessed by

excluding external compensations: “whether an individual is

substantially limited in a major life activity must be made

* * * without regard to mitigating measures, such as medi-

cines, or assistive or prosthetic devices.” 29 C.F.R. pt.

1630.2(j) app. This suggests that internal adaptions like

Kirkingburg’s should be considered in making the disability

determination.

The line apparently drawn in the EEOC’s guidelines

between internal and external mitigating measures is not,

however, a tenable one given the ADA’s language and

congressional intent that only actual, significant limitations

15

should lead to a finding of disability.’ Properly understood,

we believe the ADA requires that both internal and external

mitigating factors must be taken into account in determining

as internal mitigating measures in assessing an individual’s

true capabilities. While the EEOC guidelines appropriately

deal with internal adaptions, the same cannot be said for their

exclusion of external remedies. See Sutton, 130 F.3d at 902

(refusing to follow EEOC interpretive guidance on mitigating

measures due to its conflict with the text of the ADA);

Gilday v. Mecosta County, 124 F.3d 760, 767, 768 (6th Cir.

1997) (same) (Kennedy, J. and Guy, J., concurring in part

and dissenting in part).

Internal and external compensating measures similarly

affect the extent to which a limitation interferes with life

activities. Kirkingburg does not experience “substantial

limitations” because adjustments in his brain alleviate the

effects of his poor eyesight. Another person may not have a

disabling impairment because he can improve his vision with

corrective lenses. Likewise, one person may manage his high

blood pressure with medication, whereas another may lower

it through relaxation techniques, so that neither is restricted

in carrying out everyday tasks. In each instance, the end

result is identical—the person is not substantially limited in

major life activities. Consequently, it is nonsensical to afford

the protection of the ADA to one class of plaintiffs but not

to the other.

Any contention that legislative history justifies ignoring

external mitigating measures is flawed. The Senate Report

* Interpretive guidelines are not entitled to the same deference as

regulations. See Shalala v. Guernsey Memorial Hosp., 514 U.S. 87

(1995); Martin v. Occupational Safety and Health Review Comm'n,

499 U.S. 144, 157 (1991).

ee an ee enn ee ee EEE Se Ae OS RT A

16

states 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.” S. Rep. No. 116, at 23

(emphasis added). “Reasonable accommodations” and

“auxiliary aids” are specifically defined in the statute as job-

assistive devices supplied by employers. 42 U.S.C.

§ 12111(9) (reasonable accommodations include “the

provision of qualified readers or interpreters,” the “acquisi-

tion and modification of equipment or devices,” and other

“similar” accommodations); 42 U.S.C. § 12102(1) (listing

the same measures as auxiliary aids). They do not include

employee-supplied mitigating measures. Accordingly, the

Senate Report stresses that “personal use items such as

hearing aids or eyeglasses” do not fall within the definition

of reasonable accommodations. S. Rep. No. 116, at 33.

The logical reading of the Senate Report is therefore that

a person must first be adjudged as disabled using the

“substantially limited” test, which takes account of mitigating

measures. Only then, if the person is disabled, do potential

reasonable accommodations or auxiliary aids become an

issue. See, e.g., 42 U.S.C. § 12112(b)(5)(A) (it is a violation

of the Act to neglect to make reasonable accommodations for

a qualified individual with a disability); 42 U.S.C. § 12182

(b)(2)(A)(iii) (it is a violation of the Act for a place of public

accommodation to fail to furnish auxiliary aids to a disabled

person).°

* The House Report contains the same language as the Senate

Report, but adds that a person should be considered “substantially

limited” “even if the effects of the impairment are controlled” by

medication or medical devices. H.R. Rep. No. 485, Pt. Il, at 52. The

House Report is in this regard both internally inconsistent and at odds

with the Senate Report (not to mention the plain language of the

statute). We believe that the Senate Report serves as the better guide.

re

17

That the Senate did not intend its reference to “mitigating

measures” to encompass personal medications and aids as

opposed to on-the-job accommodations is bolstered by its

description of the purpose of the “regarded as” prong of the

disability definition:

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. For example, individuals with controlled

diabetes or epilepsy are often denied jobs for which

they are qualified.

S. Rep. No. 116, at 24.’ This passage clearly indicates that

” Of course, an individual who takes medication, wears glasses, or

internally compensates for a medical condition is not automatically

disabled under the “regarded as” prong. There must be a separate

inquiry into whether the employer perceived the individual as having

a substantially limiting impairment and discriminated against the

individual for that reason. See, e.g., Kelly, 94 F.3d at 109; Ryan, 135

F.3d at 872. The Ninth Circuit’s alternative holding that Kirkingburg

had raised a fact question about whether Albertsons perceived him as

having a disability ignores these requirements: “substantial limita-

tion” was neither part of the court’s inquiry nor part of Kirkingburg’s

argument. The Ninth Circuit’s observation that one manager

described Kirkingburg as “blind in one eye or legally blind” shows

only that Albertsons perceived him as impaired, not that it perceived

him as substantially limited. Pet. App. 16a-17a. Three members of

this Court have declared that this does not satisfy the “regarded as”

prong. See Bragdon, 118 S. Ct. at 2214 n.1 (Rehnquist, C.J., Scalia

and Thomas, JJ., concurring in the judgment in part and dissenting in

part) (“Respondent has offered no evidence to support the assertion

that petitioner regarded her as having an impairment that substan-

tially limited her ability to reproduce, as opposed to viewing her as

simply impaired”).

ila Me MY

18

individuals who can adequately compensate for their impair-

ments are not disabled under the ADA’s first prong, 42

U.S.C. § 12102(2)(A), and can only qualify as disabled

under the “regarded as” prong. And it can only mean that

the assessment of disability under subsection (A) requires

looking at the individual’s level of functioning with the

benefit of ameliorative or corrective measures. Thus, the

ADA’s legislative history strongly supports taking mitigating

measures into account, just as the statutory text requires.

fl. THE NINTH CIRCUIT’S “DIFFERENCE” TEST

EXPANDS THE ADA BEYOND ITS INTENDED

SCOPE AND DISRUPTS THE FAIR DISPENSA-

TION OF ITS BENEFITS

Most circuits employ a functional, fact-based evaluation

of whether a plaintiff has significant restrictions. This allows

for the fair and even-handed treatment of all potential

plaintiffs because eligibility for coverage under the Act turns

on each person’s specific situation. In contrast, the Ninth

Circuit's “difference” test substitutes a medical diagnosis for

an individualized examination of a particular plaintiff,

thereby overlooking the inevitable variations in ability that

occur between people with the same, or similar, impair-

ments. The practical danger with using the Ninth Circuit's

approach is that it permits those who have non-limiting or

minor impairments to benefit from the ADA’s remedial

provisions, despite Congress’s express directive to the

contrary. See S. Rep. No. 116, at 23; H.R. Rep. No. 485,

at 52.

This problem is most likely to manifest itself in the

numerous cases involving non-traditional impairments.

Plaintiffs with conditions such as joint disorders, depression

and anxiety, and non-blinding vision problems—conditions

that do not always produce obvious limitations—would all be

subsumed within the umbrella of the ADA. Although these

19

conditions can have disparate outcomes and may disable

some people but not others, a court would never reach the

point of making such distinctions. The mere diagnosis of the

impairment would be enough, even if the plaintiff had

completely adapted to the condition or experienced only a

minor reduction in functioning.

Holihan v. Lucky Stores, Inc., 87 F.3d 362, 364-366

(9th Cir. 1996), provides an example of how the failure to

apply the “substantially limits” standard creates a new class

of ADA beneficiaries who do not warrant, or require,

protection. In Holihan, the plaintiff suffered from depression

and anxiety. He was terminated as the store manager at a

supermarket after he exceeded the six months of medical

leave authorized by company policy. When the supermarket

refused to rehire him as anything but a clerk, he filed a

discrimination suit. The court held that Holihan’s mental

condition “did not substantially limit any of his major life

activities.” It was persuaded by the fact that while on leave,

Holihan had pursued other business ventures, including

selling real estate and setting up a sign-making shop. Under

the Ninth Circuit’s revised articulation of the disability

determination, Holihan would be deemed “disabled” simply

because a physician labelled him as having an “organic

mental syndrome.” The absence of constraints on his daily

life, which should readily disqualify him from ADA protec-

tion, would be of no moment.

The ADA cannot properly be interpreted in a way that

renders the words “substantially limits” superfluous. An

observation frequently made by the courts aptly summarizes

the consequences of doing so and of indulging the strategic

Claims of plaintiffs with minor impairments:

[T]he ADA assures that truly disabled, but genuinely

capable, individuals will not face discrimination in

employment because of stereotypes about the

20

insurmountability of their handicaps. It would debase

this high purpose if the statutory protections avail-

able 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. 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).

The Ninth Circuit’s expansion of the definition of

disability threatens to disrupt the ADA beyond just the

threshold disability determination. One of the employers’

obligations under the ADA is to provide “reasonable

accommodations” to its disabled employees. 42 U.S.C.

§ 12112(b)(5)(A). Enabling the many individuals who are

“different” rather than “disabled” to demand accommoda-

tions would potentially impose enormous costs on employers

without improving the lot of the truly disabled.

Accommodations to these essentially unimpaired individ-

uals would be a matter of convenience, not legitimate need,

and would thus result in unfairness to other employees. For

instance, in the trucking industry an often-requested accom-

modation is a change in route. See, e.g., Champagne v.

Servistar Corp., 138 F.3d 7, 10 (1st Cir. 1998) (request to

remain on “regular route” due to psychological problems);

Penny v. United Parcel Serv., 128 F.3d 408, 410 (6th Cir.

1997) (request to be assigned “lightest route possible” due to

back and shoulder problems). Ordinarily, assignments to

preferred positions are based on merit or seniority (or are

reserved for the truly disabled). But if a driver whose

limitations are not genuinely significant has the force of law

ae

21

behind him, he may be able to demand and get a better or

reduced route. Hence, while in this and other circumstances,

employers may have to make minimal expenditures, the cost

to other employees is always high.

The Ninth Circuit’s overreaching may also come at the

expense of safety. Many individuals are not sufficiently

restricted to be disabled, but nevertheless present genuine

safety risks to themselves and others. Employers must be

entitled to refuse to hire such employees, particularly in

industries where safeguarding the public is a serious concern.

See Joyce v. Suffolk County, 911 F. Supp. 92, 96-97

(E.D.N.Y. 1996) (officer with 20/200 vision that was

correctable to 20/20 was not substantially limited and police

force could reject him because officers cannot “call a ‘time

out’ in emergencies while they look for their glasses or lost

contact lenses”); see also Knapp v. Northwestern Univ., 101

F.3d 473, 479-482 (7th Cir. 1996) (student with internal

defibrillator was not disabled, and university could prohibit

him from playing intercollegiate basketball due to risk that he

would suffer cardiac death). Otherwise, in complying with

the ADA, employers not only jeopardize the public but also

open themselves up to huge liabilities for negligence.

As one court expressed it, ““Woe unto the employer who

put such an employee behind the wheel of a vehicle * * *

which was involved in a vehicular accident.’” Daugherty v.

City of El Paso, 56 F.3d 695, 698 (Sth Cir. 1995) (citations

omitted). And as the district court in this case observed, if

Kirkingburg “were ever involved in an accident, defendant

would have difficulty explaining why it hired a driver who

could not meet DOT vision requirements.” Pet. App. 41a.

22

Employers should not have to choose between violating the

ADA or being sued for negligence.*

The Ninth Circuit’s “difference” test creates a perverse

incentive to misrepresent non-limiting impairments when

convenient to secure employment. A good example of this is

Roth v. Lutheran Gen. Hosp., 57 F.3d 1446 (7th Cir. 1995),

in which a would-be pediatrician claimed that he had been

discriminated against during the selection process for a

residency program due to his poor vision. Dr. Roth was born

with eye impairments that altered his ability to fuse images

and to sense depth. /d. at 1449. He alleged that these

problems prevented him from pursuing his chosen profession

because he could not work for more than eight to ten hours

at a time and all residency programs require long shifts. /d.

at 1454. On school and job applications, however, Dr. Roth

either failed to list his visual condition when specifically

asked about “handicaps” or characterized himself as “cured.”

Id. at 1448. He completed pharmacy and law degrees—earn-

ing the latter full time while working as a pharmacist—and

served as a faculty lecturer and defense attorney/consultant

while attending medical school, all without accommodation.

Id. at 1455-1456. The Seventh Circuit denied Dr. Roth’s

request for a preliminary injunction ordering his admission

to the residency program, holding that he was not substan-

tially limited in seeing or learning. Dr. Roth’s impairment

may have “affected” his major life activities, but it did not

“ris[e] to the level of a disability.” Jd. at 1454.

* The defense that the employee is not “qualified” and poses “a

direct threat to the health or safety of other individuals” may not

always shield employers in this situation. 42 U.S.C. §§ 12112(a),

12113(b). Plaintiffs who are covered under the ADA because they are

“different” do not have significant functional restrictions; therefore,

a court might find them “qualified” and dismiss safety standards that

exclude them as being unnecessarily strict.

a

23

The application of the Ninth Circuit’s “difference” test

to these facts would produce an absurd and unjust result. Dr.

Roth's diagnosed eye conditions and the evidence that they

had some effect on his sight would render him disabled.

Ignored would be the contrary evidence that he could

perform lengthy, uninterrupted, eye-straining work, and the

fact that he had informed employers and educators that he

suffered no limitations. In short, Dr. Roth would be permit-

ted to use his impairment “when it was beneficial and

opportune”—to get him the job of his choice. 57 F.3d at

1456. But as the Seventh Circuit observed, “there is a clear

bright line of demarcation between extending the statutory

protection to a truly disabled individual (so that he or she can

lead a normal life * * *) and allowing an individual with

marginal impairment to use disability laws as bargaining

chips to gain a competitive advantage.” Jd. at 1460.

The benefits an individual can receive under the ADA

certainly carry the potential to encourage opportunistic

behavior. The Ninth Circuit’s “difference” test would reward

that behavior, transforming the ADA into an instrument

through which individuals with minor impairments can obtain

the jobs of their choice, structured as they choose, in the

process generating unacceptable costs for employers, employ-

ees, and the public. Amici urge this Court to make clear that

only real disabilities that substantially impinge on a person’s

ability to carry out normal life functions when internal

compensations or external mitigating measures are taken into

account, are within the protection of the ADA.

24

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

ROBERT DIGGES JAMES D. HOLZHAUER

ATA Litigation Center Counsel of Record

2200 Mill Road TIMOTHY S. BISHOP

Alexandria, VA 22314 SUSAN E. PROVENZANO

(703) 838-1865 NICOLA JACKSON

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Counsel for Amici Curiae

FEBRUARY 1999