Amicus Curiae Brief — Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

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No. 00-1089 ——

IN THE

Supreme Court of the Anite

TOYOTA MOTOR MANUFACTURING,

KENTUCKY, INC.,

Petitioner,

Vv.

ELLA WILLIAMS,

Respondent.

n Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE NATIONAL ASSOCIATION

OF MANUFACTURERS

IN SUPPORT OF PETITIONER

JAN S. AMUNDSON ANN ELIZABETH REESMAN

General Counsel Counsel of Record

QUENTIN RIEGEL KATHERINE Y.K. CHEUNG

Deputy General Counsel MCGUINESS, NORRIS &

NATIONAL ASSOCIATION OF WILLIAMS, LLP

MANUFACTURERS 1015 Fifteenth Street, N.W.

1331 Pennsylvania Avenue, N.W. Suite 1200

Washington, DC 20004 Washington, DC 20005

(202) 637-3000 (202) 789-8600

Attorneys for Amicus Curiae Attorneys for Amicus Curiae

National Association of Equal Employment Advisory

Manufacturers Council

June 2001

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......csssssssssssssssssssssssssssssssee

INTEREST OF THE AMICI CURIAE...s.ssssssssssssssssssses

STATEMENT OF THE CASE.7..cssssssssscsccsscssssssssssssse

SUMMARY OF ARGUMENT ....sccsssssssccssccccssssssssssses

I. THE ADA DOES

NOT COVER AN

INDIVIDUAL WHO IS_ LIMITED IN

PERFORMING ONLY A SUBSET OF

ACTIONS ASSOCIATED WITH A MAJOR

A.

D.

\

The ADA Protects a “Discrete and Insular

Minority” of 43 Million Substantially

i enencninscntiisteestnntiiatiiniais

The Legislative History Shows That

Congress Intended the Reach of the ADA

FO PROM PERIIIW ccccccscessssssscessenesescoremnensees

Loosening the Test to Determine Whether

an Individual Has a Disability Would

Compromise the Goals of the ADA.............

The Sixth Circuit Erred in Lowering the

Burden of Proof To Establish a Disability

Il. “WORKING” IS NOT PROPERLY A

“MAJOR LIFE ACTIVITY” FOR ADA

A.

The Court Below Used a Tortured Version

of the “Working” Analysis To Reach Its

nO -& WW WN

11

13

ii

TABLE OF CONTENTS—Continued

B. The EEOC Lacks Congressional Authority

To Define “Disability” ............cccccccceeeeeeeees

C. This Court’s Concern That the Inclusion of

“Working” as a “Major Life Activity”

Under the ADA Creates a Circular

Definition Is Well-Founded ...................000

D. The Vague and Amorphous Concept of

“Substantially Limited in Working”

Violates the ADA’s Mandate To Provide

“Clear, Strong, Consistent, Enforceable

Standards” To Address Discrimination.......

14

15

17

19

21

iii

TABLE OF AUTHORITIES

FEDERAL CASES Page

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555

ee 12

Bragdon v. Abbott, 524 U.S. 624 (1998) ..........0006 20

Broussard v. University of Cal., at Berkeley, 192

Ay. T, fs 3 13

Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th

0 11

Chevron U.SA., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) .........000+. 14

Duncan v. Washington Metro. Area Transit

Auth., 240 F.3d 1110 (D.C. Cir. 2001) .......... 16, 18, 19

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

Cie. BBD ccccsczessessecnssessssnsnsescnssssnsessssssssssesssesseme 14

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

| 12

McKay v. Toyota Motor Mfg., U.SA., Inc., 110

F.3d SED CG Cis. 1G 7) ccccececcesscezsszscssecccssesnceses 13

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ...... 14, 15

Sutton v. United Airlines, Inc., 527 U.S. 471

(ee passim

United States v. Mead Corp., No. 99-1434, 2001

U.S. LEXIS 4992 (June 18, 2001) ..........000se0s 14

STATUTES

Americans with Disabilities Act,

42 U.S.C. § 1ZIGE 68 9G. cercerececeressreccccvccesccceeseee 2, 3, 6

42 USL. § TZIDRCAI Ta .cccreccccceccccscesccssscccssscccee 4,6

43 U.S.C. § IDIDRGRITT) nnccccerrcccesccssescsccccsssesesesee 4

4B UBL. § TBIDRERD cecreccvseessssnsscccssccccssccssesesses 19

42 U.S.C. § 12101(O)(2) .........ccecceeseercreserreeennees 17

42 U.S.C. § IZIGIEA) nnrccccecresecvecencsscccccscesssessesess 6

42 U.S.C. § 121 L2(DM SMA) ......cccccccccccrreeeerseeees 9

iv

TABLE OF AUTHORITIES—Continued

REGULATIONS Page

29 C.F.R. § 1630.2(i) (2000)........ccccvccccssseseesssseceees 14

29 C.F.R. pt. 1630, App. (2000) ........s0ssseeceessssseees 17

LEGISLATIVE HISTORY

135 Cong. Rec. $10711 (daily ed. Sept. 7, 1989)... 9

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

1990 U.S.C.C.A.N. 303 scccccscssccccsssssessseseessnsssees 7,8

S. Rep. No. 101-116 (1989) .......cccccsscsscsseeseesssveeeee 8

OTHER AUTHORITIES

Mark R. Frietas, Closing the Floodgates: The

Employee's Duty to Mitigate and Why

Working Is Not a Major Life Activity, 19 Rev.

SA, SEP GD coremerenntennnmemenemennmnsncen 15, 16, 18

IN THE

Supreme Court of the United States

No. 00-1089

TOYOTA MOTOR MANUFACTURING,

KENTUCKY, INC.,

Petitioner,

Vv.

ELLA WILLIAMS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

AND THE NATIONAL ASSOCIATION

OF MANUFACTURERS

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council and the National

Association of Manufacturers respectfully submit this brief as

amici curiae.' Letters of consent from all parties have been

filed with the Court. The brief urges this Court to reverse the

decision below, and thus supports the position of the

petitioner, Toyota Motor Manufacturing, Kentucky, Inc.

' Counsel for amici curiae authored the brief in its entirety. No person

or entity, other than the amici, their members, or their counsel, made a

monetary contribution to the preparation or submission of the brief.

2

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (““EEAC” or the

“Council”) is a nationwide association of employers

organized in 1976 to promote sound approaches to the

elimination of employment discrimination. Its membership

includes over 350 of the nation’s largest private sector

corporations, collectively employing over 17 million people

throughout the United States. EEAC’s directors and officers

include many of industry’s leading experts in the field of

equal employment opportunity. Their combined experience

gives the Council a unique depth of understanding of the

practical, as well as legal, considerations relevant to the

proper interpretation and application of equal employment

policies and requirements. EEEAC’s members are firmly

committed to the principles of nondiscrimination and equal

employment opportunity.

The National Association of Manufacturers (“NAM”) is

the nation’s largest multi-industry trade association. NAM

represents 14,000 member companies (including 10,000 small

and mid-sized manufacturers) and 350 member associations

serving manufacturers and employees in every industrial

sector and all 50 states.

All of EEAC’s and NAM’s members are employers subject

to the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101 et seq., and other equal employment statutes and

regulations. As employers, and as potential defendants to

claims asserted under these laws, EEAC’s and NAM’s

members have a substantial interest in the issue presented in

this case, i.e., whether an individual whose impairment

affects her ability to perform only a subset of manual tasks

associated with her job is substantially limited in the major

life activity of performing manual tasks so as to have a

“disability” under the ADA.

3

EEAC and NAM seek to assist this Court by highlighting

the impact its decision may have beyond the immediate

concerns of the parties to the case. Accordingly, this brief

brings to the attention of this Court relevant matter that the

parties have not raised. Because of their experience in these

matters, EEAC and NAM are well situated to brief this Court

on the concerns of the business community and the

significance of this case to employers.

STATEMENT OF THE CASE

Ella Williams sued her former-employer Toyota Motor

Manufacturing, Kentucky, Inc. (Toyota), alleging Toyota

failed to accommodate her disability and fired her in violation

of the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101 et seq.’ Williams worked on an assembly line at one

of Toyota’s automobile assembly plants. Her job included

three duties—inspecting cars for defective paint, manually

wiping down newly painted cars, and wiping down passing

cars with a highlight oil. This last task required Williams to

grip a block of wood with a sponge on the end while keeping

her hands and arms raised at shoulder height for several

hours. Williams alleges this position exacerbated her

ligament and muscle problems, resulting in carpal tunnel

syndrome and tendonitis affecting her hands, arms, shoulders

and neck. Pet. App. 2a. Williams claims Toyota refused to

remove this last duty from her job. Toyota denies this

allegation.

The district court concluded that Williams did not have a

“disability” under the ADA and granted summary judgment

in favor of Toyota on this claim. On appeal, the Sixth Circuit

reversed, holding that Williams’ inability to perform certain

? She also claimed Toyota denied her leave and reinstatement rights in

violation of the Family and Medical Leave Act (FMLA). The district

court granted summary judgment in favor of Toyota on this claim and the

Sixth Circuit affirmed.

4

specific manual tasks associated with her assembly line job

was sufficient to allow a fact finder to conclude that her

condition substantially limited her in the major life activity of

performing manual tasks and thus, that she was an individual

with a disability protected by the ADA. According to the

Sixth Circuit, Williams’ ability to carry out a range of

isolated, non-repetitive manual tasks that were not associated

with her work, such as tending to her personal hygiene and

Carrying out personal or household chores, did not alter this

conclusion. Pet. App. 4a. The appellate court then held that a

factual issue existed on whether Toyota had failed to

accommodate Williams’ condition.

Judge Boggs wrote a separate opinion concurring in part

and dissenting in part in the opinion. With respect to

Williams’ ADA claim, Judge Boggs disagreed with the

court’s decision and criticized the majority for “conflat[{ing]

(and erod{ing]) the standards for demonstrating a substantial

limitation on ‘working’ and on ‘performing manual tasks.””

Pet. App. Illa. According to him, the majority erred in

reducing the test for determining whether an individual is

substantially limited in performing manual tasks to looking at

the individual’s ability to perform only a subset of them—

certain manual tasks required by her job.

This Court granted certiorari to address the issue of

whether an impairment that prevents an individual from

performing only a limited number of manual tasks associated

with her work qualifies as a disability under the ADA.

SUMMARY OF ARGUMENT

The ADA does not cover an individual who is limited in

performing only a subset of actions associated with a major

life activity. Instead, the language of the ADA is clear that

the statute protects a “discrete and insular minority” of

43 million substantially limited individuals. 42 U.S.C.

§ 12101(a}{7) and (a)(1). The legislative history also shows

— —~— — —

5

that Congress intended the reach of the ADA to remain

narrow. Loosening the test to determine whether an

individual has a disability, as this case would require, would

compromise the goals of the ADA and create unintended

hardships for both employers and employees.

The Sixth Circuit impermissibly circumvented the standard

for determining when an impairment constitutes a disability

by requiring a limitation in only a subset of manual tasks.

Unless this Court reverses the decision below, the Sixth

Circuit’s opinion will permit plaintiffs to do an end-run

around the statutory requirement that an individual’s ability to

perform a major life activity be substantially limited before

gaining the protection of the ADA.

Moreover, this Court should reject the Equal Employment

Opportunity Commission’s (EEOC) improper definition of

“major life activities” to include working. Congress did not

give the agency authority to issue such a regulation. This

Court already has questioned the inclusion of “working” as

circular. The lack of clear and consistent standards on when

an individual is substantially limited in working also violates

the ADA’s mandate to provide “clear, strong, consistent,

enforceable standards” to address discrimination. In addition,

“working” is not intrinsically central enough to life to

constitute a major activity under the ADA.

6

ARGUMENT

I. THE ADA DOES NOT COVER AN INDIVIDUAL

WHO IS LIMITED IN PERFORMING ONLY A

SUBSET OF ACTIONS ASSOCIATED WITH A

MAJOR LIFE ACTIVITY

A. The ADA Protects a “Discrete and Insular

Minority” of 43 Million Substantially Limited

Individuals .

The threshold requirement for coverage under the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et

seq., is that the plaintiff be an “individual with a disability.”

The law defines that term as follows:

The term “disability” means, with respect to an

individual—

(A) a physical or mental impairment that sub-

stantially limits one or more of the major life

activities of such individual;

(B) arecord of such an impairment; or

(C) being regarded as having such an impairment.

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

The language of the ADA states unequivocally that

Congress intended to protect from discrimination a narrow

group of individuals with disabilities—persons whose serious

physical and mental impairments prevent them from

functioning at the level of the average person in at least one

major life activity. The very first legislative finding in the

ADA is that “some 43,000,000 Americans have one or more

physical or mental disabilities.” 42 U.S.C. § 12101(a)(1).

This Court recognized in Sutton v. United Airlines, Inc., 527

U.S. 471, 484 (1999), that this relatively small number shows

that Congress and the President intended the ADA to improve

the circumstances of a limited group of significantly impaired

7

people. Had Congress intended the scope of the ADA’s

protection to be larger, it would have cited a much higher

number of protected individuals. /d.

Additional language in the findings confirms the narrow

scope of the protected class. As Justice Ginsburg points out

in her concurring opinion in Sutton, Congress described the

protected class selectively as “a discrete and insular

minority,” who have been faced with restrictions and

limitations, “subjected to a history of purposeful unequal

treatment, and relegated to a position of political

powerlessness in our society, § 12101(a)(7).” Jd. at 494

(internal quotations omitted). Like the majority, Justice

Ginsburg concluded that “Congress’s use of the phrase

[discrete and insular minority] is a telling indication of its

intent to restrict the ADA’s coverage to a confined, and

historically disadvantaged, class.” /d. at 495.

These legislative findings convinced this Court in Sutton

that the ADA was never intended to cover individuals with

correctable disabilities, since to do so would greatly expand

the Act’s coverage beyond the intended protected class of 43

million people. 527 U.S. at 484. The same logic applies

here.

B. The Legislative History Shows That Congress

Intended the Reach of the ADA To Remain

Narrow

The legislative history of the ADA also provides strong

support for interpreting the Act’s protection to extend only to

a limited group. As the House Committee on Education and

Labor Report explains, “[a] person is considered an

individual with a disability for purposes of the first prong of

the definition when the individual’s important life activities

are restricted as to the conditions, manner, or duration under

which they can be performed in comparison to most people.”

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

8

U.S.C.C.A.N. 303, 334; S. Rep. No. 101-116, at 23 (1989).

Once again, Congress utilized language showing that it

intended to protect individuals who are restricted as compared

to the significant majority who are not.

Congress’ own description of those who stand to benefit

under the ADA provides further evidence of the limited scope

of the protected class. Like the text of the ADA, the Senate

Committee on Labor and Human Resources Report identifies

43 million individuals who “will be entitled to the protections

of this legislation as employees, job applicants, clients and

customers of places of public accommodation, and users of

telephone services.” S. Rep. No. 101-116, at 88 (1989)

(emphasis added). Of that number, the Senate Committee

identified approximately 24 million hearing impaired and

2.75 million speech impaired persons in the country who

would benefit from the increased availability of

telecommunications services as a result of the legislation. °

Id. at 88-89. The sum of almost 27 million individuals with

hearing and speech impairments that Congress intended the

ADA to help leaves only 16 million individuals in the country

with other physical or mental impairments so severe that they

would qualify as disabled. The small size of this residual

group strongly indicates that it cannot include individuals

with impairments affecting only a subset of tasks associated

with a major life activity. See Sutton, 119 S. Ct. at 2149

(noting that “the number of people with vision impairments

alone is 100 million”).

* This benefit refers to Title IV of the legislation, which amended Title

II of the Communications Act of 1934 to require telephone common

carriers to provide adequate telecommunications services to hearing and

speech impaired individuals to enable them to communicate effectively

with hearing individuals.

9

C. Loosening the Test to Determine Whether an

Individual Has a Disability Would Com-

promise the Goals of the ADA

Throughout debate and passage of the ADA, Congressional

sponsors reiterated the statute’s important goal of extending

opportunities to individuals with disabilities. As Senator

Harkin stated, “For too long, individuals with disabilities

have been excluded, segregated, and otherwise denied equal,

effective, and meaningful opportunity to participate in the

economic and social mainstream of American life. It is time

we eliminate these injustices.” 135 Cong. Rec. $10711 (daily

ed. Sept. 7, 1989) (statement of Sen. Harkin). Extending

coverage under the ADA to individuals based merely on a

subset of tasks in a major life activity would expand the

protected class well beyond the statutory definition and create

substantial problems for both employers and *™mp!syees.

Most importantly, an overly expansive reading of the

protected class could compromise the rights the ADA has

created for those truly in need of statutory protection. The

ADA requires that employers’ provide reasonable

accommodation to individuals with disabilities unless doing

so would impose an “undue hardship” on the employer’s

business. 42 U.S.C. § 12112(b)(5)(A). While some accom-

modations, standing alone, would not impose an undue

hardship, a number of accommodations in the aggregate may

well reach that level. The greater the number of individuals

entitled to accommodation, the sooner the next person to need

an accommodation will be denied one because providing that

additional accommodation would impose an undue hardship

on the employer’s business. By vastly expanding the

protected class, the Sixth Circuit thus has jeopardized the

protection that the ADA provides for those who have true

disabilities within the statutory definition of that term.

The Sixth Circuit’s opinion may even jeopardize an

employer’s operations by forcing it to respond to virtually

10

every request for an accommodation, regardless of whether

the individual actually suffers from a disability under the

ADA. The standard the Sixth Circuit has adopted is so broad

that employers will be hard pressed to determine whether an

individual has an ADA-covered disability when the

individual first requests an accommodation. In view of this

uncertainty, employers may have little choice but to grant the

accommodation, despite the rigorous standards the ADA

actually imposes to determine whether one has a statutorily

protected disability.

As a result, employers may end up with a workforce that is

limited in multiple, potentially inconsistent ways. For

example, some employees may have lifting restrictions, some

may have bending restrictions, and some may have

restrictions on how long they can stand. The employer will

have to try to reconcile all of these restrictions in order to run

its business. In the end, however, the employer may discover

that it lactis enough employees who can perform all the tasks

necessary to operate its business and may have to pare down

its operations as a result.

EEAC’s and NAM’s members have a long history of

providing equal employment opportunities for individuals

with disabilities and a strong commitment’ to

nondiscrimination. These exemplary employers support the

goals of the ADA as applied to individuals with disabilities.

Those efforts will become diluted, however, if the definition

of what constitutes a disability under the ADA is expanded to

include relatively minor impairments as disabilities, even

though they 4o not fit the statutory definition of the term.

11

D. The Sixth Circuit Erred in Lowering the

Burden of Proof To Establish a Disability

Under the ADA

The Sixth Circuit concluded that Williams is substantially

limited in the major life activity of “performing manual

tasks” because her impairments:

prevent her from doing the tasks associated with certain

types of manual assembly line jobs, manual product

handling jobs and manual building trade jobs (painting,

plumbing, roofing, etc.) that require the gripping of tools

and repetitive work with hands and arms extended at or

above shoulder levels for extended periods of time.

Pet. App. 4a. The Sixth Circuit thus focused on the few job-

related manual tasks Williams cannot perform, to the

exclusion of the numerous others she can perform both inside

and outside the workplace. In other words, the Sixth Circuit

found that Williams is a member of the ADA’s protected

class because, out of all of the manual tasks that can be

performed with the human hand, she is unable to perform

some that are needed only at her job.

This broad view of the ADA’s coverage conflicts directly

with the statutory language defining the ADA’s protected

class in terms of an impairment that substantially limits a

major life activity. For an individual to be limited in a major

life activity, that person must be substantially limited as

compared to the average person with respect to the entire

activity, not merely a small subset of it. See, e.g., Chanda v.

Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000) (employee’s

tendonitis, which severely restricted him typing or cutting

foamboard for extended periods of time, only affected a

narrow category of tasks, and thus did not substantially limit

performance of manual tasks generally).

Moreover, the Sixth Circuit’s broad interpretation, if

extended to other major life activities, would inflate the

12

ADA’s coverage exponentially. Under the Sixth Circuit's

view, someone with a minor breathing problem, which

prevented him only from using SCUBA gear, would be

substantially limited in breathing because he could not get a

job as a deep-sea diver. Someone who is colorblind would be

substantially limited in seeing and thus protected by the ADA

if he wanted to be an electrical technician but could not

distinguish among color-coded wires. Someone with an

average voice would be substantially limited in speaking if he

could not produce the mellifluous tones so prized in a radio

announcer. Such results would be well beyond the scope of

the ADA. See, e.g., Kelly v. Drexel Univ., 94 F.3d 102 (3d

Cir. 1996) (individual who suffered a limp, could not walk

more than a mile, could not jog, and had trouble climbing

stairs was not disabled under the ADA).

This Court squarely rejected relaxing the standard for

determining whether an individual is “disabled” under the

ADA in Albertson's, Inc. v. Kirkingburg, 527 U.S. 555

(1999). In that case, this Court criticized the Ninth Circuit for

“appear[ing] willing to settle for a mere difference” in ability

rather than a substantial limitation as compared to the average

person. /d. at 565.

This Court should prevent the Sixth Circuit from

accomplishing the same goal—"undercut[ting] the fund-

amental statutory requirement that only impairments causing

‘substantial limitations’ in individuals’ ability to perform

major life activities constitute disabilities’—albeit through

different means. Jd. The decision circumvents the rationale

in this Court’s opinions in Sutton and Albertson’s—to

interpret the reach of the ADA narrowly to effectuate

Congress’ intent in enacting the legislation. For this reason,

the Court should reverse the Sixth Circuit’s decision in this

case.

eee

13

Il. “WORKING” [S NOT PROPERLY A “MAJOR

LIFE ACTIVITY” FOR ADA PURPOSES

A. The Court Below Used a Tortured Version of

the “Working” Analysis To Reach Its Erron-

eous Conclusion

The Sixth Circuit’s inappropriate standard is a curious

misapplication of the analysis used previously by this Court

regarding the activity of “working.” Assuming without

deciding that “working” is properly considered a major life

activity under the ADA, this Court in Sutton addressed the

meaning of “substantially limited” in that context. In so

doing, the Court concluded that “[wJhen the major life

activity under consideration is that of working, the statutory

phrase ‘substantially limits’ requires, at a minimum, that

plaintiffs allege they are unable to work in a broad class of

jobs.” Sutton, 527 U.S. at 491 (emphasis added). Using

some of the same words, the Sixth Circuit allowed Williams

to show a substantial limitation in “performing manual

tasks”—by “show[ing] that her manual disability involves a

‘class’ of manual activities affecting the ability to perform

tasks at work.” Pet. App. 4a (emphasis added).

Indeed, had the Sixth or any other Circuit analyzed this set

of facts in terms of whether Williams was substantially

limited in “working,” it would have concluded that she was

not.* See, e.g., McKay v. Toyota Motor Mfg., U.SA., Inc.,

110 F.3d 369 (6th Cir. 1997) (holding that employee who

could not use vibrating tools or perform repetitive motions

was not substantially limited in working); Broussard v.

University of Cal., at Berkeley, 192 F.3d 1252 (9th Cir. 1999)

(former employee with carpal tunnel syndrome was not

* Counsel for Williams conceded at oral argument before the Sixth

Circuit that Williams's strongest claim was that she was substantially

limited in the major life activity of performing manual tasks, not working.

Pet. App. 4a n.1.

14

substantially limited in working); Dutcher v. Ingalls

Shipbuilding, 53 F.3d 723 (Sth Cir. 1995) (arm injury that

prevents heavy lifting, repetitive rotational movements and

holding objects tightly or up high for long periods of time

does not substantially limit plaintiff from working).

B. The EEOC Lacks Congressional Authority To

Define “Disability”

The ADA itself does not define the scope of the term

“major life activities,” nor does it establish that “working”

falls within the definition. The EEOC, to whom Congress

gave statutory authority to interpret the employment

provisions contained in Title I of the ADA, issued regulations

defining “major life activities” as “functions such as caring

for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.”

29 C.F.R. § 1630.2(i) (2000) (emphasis added). Based on the

EEOC’s definition, most parties and courts had accepted

“working” within this definition without question.

In Sutton, this Court observed that “[nJo agency . . . has

been given authority to issue regulations implementing the

generally applicable provisions of the ADA, see §§ 12101-

12102, which fall outside Titles I-V. Most notably, no

agency has been delegated authority to interpret the term

‘disability. § 12102(2).” Sutton, 527 U.S. at 479. Thus, the

EEOC’s regulation defining “major life activities” to include

“working” is not entitled to deference under Chevron U.S.A.,

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

842-43 (1984), since the EEOC had no authority to

promulgate it. United States v. Mead Corp., No. 99-1434,

2001 U.S. LEXIS 4992, at *19-20 (June 18, 2001) (slip op. at

12).

Nor does the regulation deserve any deference under

Skidmore v. Swift & Co., 323 U.S. 134 (1944). As the Court

stated in Skidmore, an agency view that is not controlling can

15

be useful as guidance “depend{ing] upon the thoroughness

evident in its consideration, the validity of its reasoning, its

consistency with earlier and later pronouncements, and all

those factors which give it power to persuade, if lacking

power to control.” /d. at 140. As we show below, the

EEOC’s definition of “major life activities” as including

“working”—about which the agency itself has expressed

doubt—lacks such persuasive force.

C. This Court’s Concern That the Inclusion of

“Working” as a “Major Life Activity” Under

the ADA Creates a Circular Definition Is

Well-Founded

This Court itself has suggested that including working

within the definition of “major life activities” is not a

permissible construction of the statute. In Sutton, the Court

observed that: ©

there may be some conceptual difficulty in defining

“major life activities” to include work, for it seems “to

argue in a circle to say that if one is excluded, for

instance, by reason of [an impairment, from working

with others] . . . then that exclusion constitutes an

impairment, when the question you're asking is, whether

the exclusion itself is by reason of handicap.”

Sutton, 527 U.S. at 492 (citation omitted).° As this Court

discerned, an individual’s exclusion from work becomes both

the reason for and the effect of the disability. This construct,

however, is circular and thus impermissible.

“Clearly, the inability to work cannot also be the reason for

the exclusion. Such a concept creates a circular argument

that was not intended in the ADA.” Mark R. Frietas, Closing

* The Supreme Court did not decide what deference to give the

EEOC’s definition in Sutton since neither of the parties had questioned its

validity. Sutton, 527 U.S. at 492.

16

the Floodgates: The Employee's Duty to Mitigate and Why

Working Is Not a Major Life Activity, 19 Rev. Litig. 465, 482

(2000). Viewing “working” as a major life activity circum-

vents the statute’s separate and distinct requirements that an

individual both have a physical or mental impairment that

substantially limits a major life activity and be harmed

because of the disability in order to benefit from the

protection of the ADA.

Recently, three members of the Court of Appeals for the

D.C. Circuit similarly questioned whether “working” is

properly a major life activity within the meaning of the ADA

in Duncan v. Washington Metropolitan Area Transit

Authority, 240 F.3d 1110 (D.C. Cir. 2001). These judges

expressed concern that defining the term “disability” based on

one’s treatment in the workplace draws attention away from

an individual’s physical or mental condition, the intended

focus of the ADA.

[T]o make “working” a major life activity is to create a

residual category, one that matters only if the individual

is not suffering from some serious physical or mental

impairment. (If the individual is so suffering there is no

need to consider working as a separate category). When

“working” is used in this way, the existence of a

disability will necessarily turn on factors other than the

individual’s physical characteristics or medical

condition.

Id. at 1118 (citations omitted) (Randoph, Williams &

Sentelle, JJ., concurring). :

As this Court also pointed out in Sutton, the EEOC itself

showed trepidation about including “working” within the

definition of “major life activities,” making “working” the

major life activity of “last resort,” to be used only if no other

17

major life activity is substantially limited. 527 U.S. at 492.°

This is a telling statement. If no other major life activity is

affected, it would seem unwise to confer ADA coverage on

such a circular basis, particularly in light of the millions of

individuals who are substantially limited in major life

activities such as seeing, hearing, speaking, walking, and

performing manual tasks—and yet are working.

D. The Vague and Amorphous Concept of

“Substantially Limited in Working” Violates

the ADA’s Mandate To Provide “Clear,

Strong, Consistent, Enforceable Standards”

To Address Discrimination

One express purpose of the ADA is to “provide clear,

strong, consistent, enforceable standards addressing discrim-

ination against individuals with disabilities.” 42 U.S.C.

§ 12101(b)(2). Clear and consistent standards would enable

covered entities to understand their obligations under the

ADA, which in turn, would help them achieve the goals of

the statute.

Including working as a major life activity under the ADA,

however, has created confusion on what the law requires and

is problematic for both employers and employees. See also

Section LC., supra.

The concept of working as a major life activity is

remarkably amorphous, encompassing an almost limitless

range of widely varied tasks. In fact, “working” is really a

collection of activities, not discrete by itself. As such, a

substantial limitation in working must result from an

individual’s difficulties in performing other activities.

* See 29 C.F.R. pt. 1630, App. (2000) (§ 1630.2(j)).

As a practical matter, this results in standards that are

virtually impossible to meet. As one commentator aptly has

concluded:

disability claims based upon the major life activity of

working should be deemed insufficiently specific

because they do not afford an employer the opportunity

to consider any accommodations. While an employer

could in certain situations reasonably accommodate an

employee’s specific disability (such as hearing, seeing,

or walking), the employer cannot be expected to

accommodate an employee's inability to work. The

condition alleged is simply too vague.

Frietas, supra, at 481.

The three judges who concurred in the Duncan opinion

raised similar concerns about the lack of standards for

employers as a result of identifying “working” as a major life

activity.

From the employer's point of view, the standards will

hardly appear “clear,” 42 U.S.C. § 12101(b). When

“working” is the allegedly impaired major life activity,

how is the employer to determine whether the employee

is disabled (and thus entitled to a reasonable

accommodation)? The employer certainly cannot tell

just by looking at the employee, or by consulting

medical records, or by insisting upon a physical

examination. Disability will depend on the job market,

on whether there are jobs in some undefined region

“utilizing an individual's skills (but perhaps not his or

her unique talents),” jobs for which the employee is

qualified. Exactly how the employer is to make that

determination is far from certain.

Duncan, 240 F.3d at 1118 (citation omitted) (Randolph,

Williams & Sentelle, JJ., concurring). These judges noted

that varied outcomes inevitably will result depending on the

19

particular circumstances affecting the individual’s own

employment prospects. Whether individuals are disabled thus

may have less to do with their physical or mental conditions

than with how many and what types of jobs are available in

their geographic area. These differences, however, conflict

with the ADA’s express purpose of providing “clear, strong,

consistent, enforceable standards addressing discrimination

against individuals with disabilities.” 42 U.S.C. § 12101(b)

(emphasis added); see also Duncan, 240 F.3d at 1118

(concurring opinion).

In the end, as even Judge Edwards recognized in his

dissent in Duncan, including “working” as a major life

activity may expand the scope of the ADA well beyond what

Congress envisioned.

[A]n expansive view of work as a major !ife activity

might allow a person to claim a disability and

discrimination under the ADA if he/she is allegedly

denied work for a physical impairment, such as cosmetic

disfigurement, which does not rise to the level of an

underlying handicap. In this sense, “work” is arguably

over-inclusive when viewed as a major life activity, at

least when considered in conjunction with the principal

purposes of the ADA.

Duncan, 240 F.3d at 1122 (Edwards, J., dissenting). This

Court should halt this unprecedented expansion now by

rays | to recognize working as a major life activity under

E. Working Is Not Intrinsicaliy Central Enough

to Life To Be a Major Life Activity

. Working, as an activity, does not approach the level of

importance commonly ascribed to the other life activities

recognized as major under the ADA. For example, in holding

that reproduction was a major life activity, this Court found

that “[rjeproduction and the sexual dynamics surrounding it

20

are central to the life process itself.” Bragdon v. Abbott, 524

U.S. 624, 638 (1998)

In contrast, while some people are called “workaholics,”

many individuals do not work—or do not work full time—

and for a variety of reasons. Some adults choose not to work,

because they have other priorities such as caring for children,

or because they are financially independent, or because they

are simply not interested. Some people do not work because

they are children, or because they have chosen to retire.

Other individuals are unemployed involuntarily; they may

want to work, but cannot find a job.

For all of these people, their unemployment may stretch

from days to months to years, yet their lives continue. Their

unemployment need not even affect their other activities, as a

substantial limitation in seeing, or breathing, or walking

would. Accordingly, “working,” if it could be considered a

single activity, would not be “major” under the ADA.

21

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be reversed.

JAN S. AMUNDSON

General Counsel

QUENTIN RIEGEL

Deputy General Counsel

NATIONAL ASSOCIATION OF

MANUFACTURERS

1331 Pennsylvania Avenue, N.W.

Washington, DC 20004

(202) 637-3000

Attorneys for Amicus Curiae

National Association of

Manufacturers

June 2001

Respectfully submitted,

ANN ELIZABETH REESMAN

Counsel of Record

KATHERINE Y.K. CHEUNG

McGUuINESS, NORRIS &

WILLIAMS, LLP

1015 Fifteenth Street, N.W.

Suite 1200

Washington, DC 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council