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

Aug 3 | 22]

No. 00-1089

IN THE

Supreme Court of the Gnited States

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 OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

JONATHAN P. HIATT

LYNN RHINEHART

815 Sixteenth Street, NW

Washington, DC 20006

MICHAEL H. GOTTESMAN

600 New Jersey Avenue, NW

Washington, DC 20001

LAURENCE GOLD *

805 Fifteenth Street, NW

Washington, DC 20005

(202) 842-2600

* Counsel of Record

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

® Seo 6O

“BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

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SUMMARY OF ARGUMENT ...............cccccsssssssesesseeees I

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Cee ia S cxeccccescesenaccssssnnevecscnonsaqnossovenssensessvesccoveves 17

(i)

TABLE OF AUTHORITIES

CASES Page

Sutton v. United Air Lines, Inc., 527 U.S. 471

€ FIP cecuceccecssnssscssscsncesseniacmtiniesesenel 5, 16

STATUTES

G2 UB. © CSI? cecesssccsndcinciiiicniaas 5, 16

REGULATIONS

y fet ee 5

29 CPA. § STALE ercersvsscssssessessinimetimensinmniaa 3, 6, 16

29 C.F.R. pt. 1630, App. § 1630.2(1) ......... cece 5

29 C.F.R. pt. 1630, App. § 1630.2(j) .......cccceeeeeees 6

SCIENTIFIC AND MEDICAL LITERATURE

Martin Cherniack, “Upper Extremity Disorders,”

Textbook of Clinical Occupational and

Environmental Medicine 376 (Linda

Rosenstock, et al., eds., 1994)..........c.ccccccccccsceees 7,8

Sandra Curwin & William D. Stanish, Ten-

dinitis: Its Etiology and Treatment (1984)......... 8,9

Mats Hagberg, “Neck and Shoulder Disorders,”

Textbook of Clinical Occupational and

Environmental Medicine 356 (Linda

Rosenstock, et al., eds., 1994)........cccsseceeeeseeees 9,10

Robin Herbert, et al., Clinical Evaluation and

Management of Work-Related Carpal Tunnel

Syndrome, 37 Am. J. Ind. Med. 62 (2000) ........ 7

James Keogh, et. al., The Impact of Occu-

pational Injury on Injured Worker and Family:

Outcomes of Upper Extremity Cumulative

Trauma Disorders in Maryland Workers ........... 10-11

Lisa Mani & Fredric Gerr, Work-Related Upper

Extremity Musculoskeletal Disorders, 27 Occ.

and Env. Med. 845 (2000) ........ccccccccscssssssseseeeees 8, 10

iti

TABLE OF AUTHORITIES—Continued

Page

J. Steven Moore, Carpal Tunnel Syndrome, 7

NS Wt CII ccrcsnieccnensesenessscessnenessesseses 7,8

Timothy F. Morse, et. al., The Economic and

Social Consequences of Work-related Muscu-

loskeletal Disorders: The Connecticut Upper-

extremity Surveillance Project (CUSP), 4 Int.

J. Occup. Environ. Health 209 (1998) ............... 1]

National Institute of Arthritis and Musculo-

skeletal and Skin Diseases, Questions and

Answers About Shoulder Problems, http://

www.nih.gov/niams/healthinfo/shoulderprobs/

ES 9-10

National Institute for Occupations! Safety and

Health, Musculoskeletal Disorders and Work-

ae 6

National Research Council, Musculoskeletal

Disorders and the Workplace: Low Back and

Upper Extremities (2001) ..........ccccccscscsseceseeeeees 6,7

Preventing the Work-Related Carpal Tunnel

Syndrome: Physician Reporting and Diag-

nostic Criteria, 112 Annals of Int. Med. 317

Robert B. Salter, Textbook of Disorders and

Injuries of the Musculoskeletal System (Third

ty ATID caserstenensncnsennsnseesenessessscesensossnessecsscssssccses 7

David A. Zohn, Musculoskeletal Pain: Diag-

nosis and Physical Treatment (2nd ed. 1988)... 6

TESTIMONY

Robin Herbert, M.D., Testimony on the Need for

a National OSHA Ergonomics Program Rule,

before the Occupational Safety and Health

Administration (OSHA) (March 2, 2000).......... 12

iv

TABLE OF AUTHORITIES—Continued

Testimony of Eugenia Barbosa before OSHA

(April 6, 2000), http://www.osha-sic.gov/

ergonomics-standard/PROPOSED/transcripts/

Testimony of Heidi Eberhardt before OSHA

(April 6, 2000), http://www.osha-sic.gov/

ergonomics-standard/PROPOSED/transcripts/

Testimony of Jan Garrett before OSHA (March

30, 2000), http://www.osha-sic.gov/ergo-

nomics-standard/PROPOSED/transcripts/ergo

Testimony of John Nalenpinski before OSHA

(April 14, 2000), http://www.osha-slc.gov/

ergonomics-standard/PROPOSED/transcripts/

OO

Testimony of Carol Py before OSHA

(March 31, 2000), http://www.osha-sic.gov/

ergonomics-standard/PROPOSED/ transcripts/

GRD GED E TINGS cxssecccszssssssscssssssesssenesssnsnseensens

Page

a I Nm me

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE IN SUPPORT

OF THE RESPONDENT

The American Federation of Labor and Congress of

Industrial Organizations (AFL-CIO), a federation of 66

national and international unions representing approximately

13 million working men and women, files this brief amicus

curiae with the consent of the parties as provided for in the

Rules of this Court.'

SUMMARY OF ARGUMENT

In this case, the Court of Appeals concluded that “taking

the evidence in the light most favorable to the plaintiff [Ella

Williams] . . . the plaintiff's set of impairments to her arms,

shoulders and neck are sufficiently disabling to allow the fact

finder to find she crosses the threshold into the protected class

of individuals under the ADA who must be accorded

reasonable accommodation.” Pet. App. 4a. In so doing the

court below stated that Ms. Williams was substantially

limited in performing manual tasks—not only “manual

tasks associated with working,” but also “manual tasks

associated with recreation, household chores and living

generally.” /d. 6a.

According to the Petitioner, the theory of the Court of

Appeals’ disability ruling is that “Williams’s inability to

perform the particular manual tasks associated with her

specific job, without more, demonstrate[d] that she [was]

‘substantially limited’ in the major life activity of performing

manual tasks.” Pet. Br. 11-12. That theory is erroneous, says

Petitioner, in that it makes the inability to do the particular

manual tasks of a specific job the hallmark of inability to

perform manual tasks as a major life activity. /d.

' No counsel for a party authored this brief amicus curiae in whole or

in part, and no person or entity, other than the amicus curiae, made a

monetary contribution to the preparation or submission of this brief.

2

This attack on the Court of Appeals’ ruling is doubly

flawed.

First, it fundamentally mischaracterizes the Court of

Appeals’ decision, which does not conflate the inability to do

a particular manual task job and inability to do manual tasks

more generally.

Second, the Petitioner’s basis for so collapsing the Court of

Appeals’ disability ruling is the following erroneous prop-

osition: the physical impairments of carpal tunnel syndrome/

tendinitis substantially limit the impaired person’s ability to

perform certain manual tasks that are solely and particularly

associated with working and do not limit the impaired

person’s ability to perform a range of tasks associated with

“recreation, household chores and living generally.” The

scientific literature on the nature of carpal tunnel

syndrome/tendinitis, and the literature, as well as the

testimony by individuals with these impairments, on the

nature of that impairment’s functional effects, refute that

proposition.

ARGUMENT

Ella Williams—who was diagnosed with bilateral carpal

tunnel syndrome and bilateral tendinitis in her hands, wrists,

arms, neck and shoulders—sought a work” assignment

accommodation from her employer, Toyota Motor Manufac-

turing, Kentucky, Inc. (“Toyota”) in the following form:

reassignment from a Quality Control Inspection Operations

position that entailed physically demanding manual tasks,

back to her former Quality Control Inspection Operations

position, which imposed other performance demands but not

the performance of such manual tasks. Pet. App. 25a-28a.

Toyota did not provide Ms. Williams the requested

accommodation.

Ms. Williams brought suit under the Americans with

Disabilities Act contending, inter alia, that Toyota had failed

to reasonably accommodate her disability as required by the

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ADA. The District Court granted summary judgment in

Toyota’s favor on the ground that Ms. Williams’ carpal

tunnel syndrome/tendinitis was not a “disability” within the

ADA’s meaning of that term. Pet. App. 42a. The Court of

Appeals reversed the District Court’s grant of summary

judgment to Toyota and remanded for further proceedings on

Ms. Williams’ ADA claim. Pet. App. 6a-7a.

In reversing the District Court, the Court of Appeals

concluded that “taking the evidence in the light most

favorable to the plaintiff [Ms. Williams], . . .the plaintiff's set

of impairments to her arms, shoulders and neck are

sufficiently disabling to allow the fact finder to find she

crosses the threshold into the protected class of individuals

under the ADA who must be accorded reasonable

accommodation.” Pet. App. 4a. These impairments were

“sufficiently severe” to make Ms. Williams’ arms and hands

“like deformed limbs,” and rendered “Williams ‘[s]ignifi-

cantly restricted as to the condition, manner or duration under

which [she] can perform [manual tasks] as compared to the

condition, manner, or duration under which the average

person in the general population can perform [them].”” /d. 6a

(quoting 29 C.F.R. § 1630.2(j)(1)(ii)) (bracketed language by

the Court). That being so, Ms. Williams was substantially

limited in performing manual tasks—not only “manual tasks

associated with working,” but also “manual tasks associated

with recreation, household chores and living generally.” Jd.’

Having “conclude[d] that Williams is substantially limited in

performing manual tasks,” the Court of Appeals expressly

* Toyota emphasizes a sentence in the Sixth Circuit's opinion that

acknowledges that Williams “can perform a range of isolated, non-

repetitive manual tasks performed over a short period of time [involving]

personal or household chores.” Pet. App. 4a. Toyota would read that

sentence to say that Ms. Williams can as a general matter perform non-

work-related manual tasks. Pet. Br. 16-18. But that plainly is not what

the Court of Appeals was saying, as is evident from the subsequent

passages in the opinion quoted in text. 2

4

declined to consider the separate questions of “whether

Williams is substantially limited as to the major life activities

of lifting or working.” /d. Sa.

According to Toyota, the theory of the Court of Appeals’

disability ruling is that “Williams’s inability to perform the

particular manual tasks associated with her specific job,

without more, demonstrate[d] that she [was] ‘substantially

limit{ed]’ in the major life activity of performing manual

tasks.” Pet. Br. 11-12. That theory is erroneous, says Toyota,

in that it makes the inability to do the particular manual tasks

of a specific job the hallmark of inability to perform manual

tasks as a major life activity. /d. This attack on the Court of

Appeals’ ruling is doubly flawed.

First of all, Toyota fundamentally mischaracterizes the

Court of Appeals’ decision. What the court below ruled was

that Ms. Williams’ set of impairments—bilateral carpal

tunnel syndrome and bilateral tendinitis of the hands, wrists,

arms, neck and shoulders—which were “sufficiently severe”

to make Ms. Williams’ arms and hands “like deformed

limbs,” and which limited her ability to perform the manual

tasks associated with her Toyota job, were a set of impair-

ments that as a general matter limited her ability to perform

the manual tasks associated “with recreation, household

chores and living generally,” viz, with the major life activity

of performing manual tasks. Given the nature of those

impairments, the nature of their functional effect on a

person’s ability to use her arms and hands to perform manual

tasks, and the nature of the range of manual tasks associated

with recreation, household chores, and living generally, that

ruling is entirely sound.

Second, insofar as Toyota goes beyond arguing that the

Court of Appeals’ disability ruling is contrary to the evidence

on Ms. Williams’ ability to perform a range of manual tasks,

Toyota’s basis for collapsing that ruling into one that equates

inability to do a particular manual task job with inability to do

5 CREE POO

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5

manual tasks more generally is the following erroneous

proposition: the physical impairments of carpal tunnel

syndrome/tendinitis substantially limit the impaired person's

ability to perform certain manual tasks that are solely and

particularly associated with working and do not limit the

impaired person’s ability to perform a range of tasks

associated with “recreation, household chores and living

generally.” As we show in the argument that follows, the

scientific literature on the nature of carpal tunnel syndrome/

tendinitis and on the nature of its functional effects refutes

that proposition.

1. So far as relevant here, the ADA defines “disability” as

“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). The Equal Employment Opportunity

Commission (EEOC) has adopted comprehensive regulations

that “provide additional guidance regarding the proper

interpretation of th[e statutory] term [disability.]” Sutton v.

United Air Lines, Inc., 527 U.S. 471, 479 (1999).

According to the EEOC’s regulations, “major life

activities” are “those basic activities that the average person

in the general population can perform with little or no

difficulty.” 29 C.F.R. pt. 1630, App. § 1630.2(i). The regu-

lations further elaborate on the meaning of “major life

activities” by providing that such activities include “functions

such as caring for oneself, performing manual tasks, walking,

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

29 C.F.R. § 1630.2(i). And, the regulations add that a person

is “substantially limited” if he or she is “[uJnable to perform a

major_life activity that the average person in the general

population can perform,” or is “[s]ignificantly restricted as to

the condition, manner or duration under which an individual

can perform a particular major life activity as compared to the

condition, manner, or duration under which the average

person in the general population can perform that same major

6

life activity.” 29 C.F.R. § 1630.2(j). So, for example, “an

individual who, because of an impairment, can only walk for

very brief periods of time would be substantially limited in

the major life activity of walking.” 29 C.F.R. pt. 1630, App.

§ 1630.2(j).

2. We make physical uses of our shoulders, arms, and

hands in performing a range of manual tasks associated with

working and a range of manual tasks associated with

recreation, household chores, and living generally. Our

physical capacities in that regard are affected by a family of

disorders known as “musculoskeletal disorders,” or MSDs.

The MSDs pertinent here are denominated carpal tunnel

syndrome and tendinitis of the hands, arms, neck and

shoulders.’

MSDs are “conditions that involve the nerves, tendons,

muscles, and supporting structures of the body.” National

Institute for Occupational Safety and Health, Musculoskeletal

Disorders and Workplace Factors (1997), at x. MSDs are

“soft tissue” disorders, as contrasted with “hard tissue”

disorders involving the bone and cartilage. David A. Zohn,

Musculoskeletal Pain: Diagnosis and Physical Treatment (2nd

ed. 1988), at 4. “The soft tissues composing the musculo-

skeletal system are the muscles and their fascial envelopes,

tendons and tendon sheaths, ligaments, joint capsules,

and bursae.” Jd. at 3-4. The soft tissues serve several

functions, most importantly to “support and move joints.”

Id. at 4. Soft tissues also serve as linings of joints and

serve as “*bumpers’ to friction over bony prominences.” /d.

The MSDs that involve the upper extremities of the body

* Following an exhaustive review of the scientific literature, the

National Research Council of the National Academy of Sciences

concluded that “musculoskeletal disorders of the low back and upper

extremities” are “an important national health problem.” National Re-

search Council, Musculoskeletal Disordersand the Workplace: Low Back

and Upper Extremities (2001), at 8.

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include disorders such as “rotator cuff injuries (lateral and

medial), epicondylitis, carpal tunnel syndrome, tendinitis,

[and] tenosynovitis of the hand and wrist.” National

Research Council, Musculoskeletal Disorders and_ the

Workplace: Low Back and Upper Extremities (2001), at 431.

(a). Carpal tunnel syndrome (CTS), a particularly per-

vasive and serious MSD, is caused by compression of the

median nerve at the wrist. Robin Herbert, et al., Clinical

Evaluation and Management of Work-Related Carpal Tunnel

Syndrome, 37 Am. J. Ind. Med. 62 (2000), at 62.

The mechanism by which median nerve compression

occurs can be described as follows. “At the wrist, the median

nerve and flexor tendons pass through a common tunnel

whose rigid walls are formed by the carpal bones and joints

and the transverse carpal ligament (flexor retinaculum).”

Robert B. Salter, Textbook of Disorders and Injuries of the

Musculoskeletal System (Third ed. 1998). “Because of its

tight internal dimensions and full content of nine flexor

tendons enclosed in synovial sheaths, the carpal canal offers

little tolerance for volume change.” Martin Cherniack,

“Upper Extremity Disorders,” Textbook of Clinical Occupa-

tional and Environmental Medicine 376-388 (Linda Rosen-

stock, et al., eds., 1994), at 381. Thus, “[aJny disorder that

takes up space in this already crowded tunnel compresses the

most vulnerable structure, the median nerve, and produces

carpal tunnel syndrome.” Salter, supra, at 326 (emphasis

in original).

Carpal tunnel syndrome has beeri a recognized disorder for

nearly 150 years. “Median nerve compression at the wrist,”

now known as carpal tunnel syndrome, was first reported in

1860. J. Steven Moore, Carpal Tunnel Syndrome, 7 Occ.

Med. 741 (1992), at 741-2. The term “carpal tunnel

syndrome” was first used in the early 1950s, although the

disorder was also described as tardy median palsy, partial

thenar atrophy, and median neuritis. /d. By 1957, however,

8

“(t]he term carpal tunnel syndrome [was] now used to

describe all cases of compression neuropathy of the median

nerve at the wrist.” /d.

The symptoms and effects of carpal tunnel syndrome are

well documented. Carpal tunnel syndrome is identified by “a

characteristic pattern of pain, paresthesias, and weakness

following the distribution of the median nerve distal to the

transcarpal ligament in the wrist.” Cherniack, supra, at

380-81. Individuals with CTS experience “[s]ymptoms of

pain, numbness, tingling, or burning” and may also report

“clumsiness of the hand and decreased grip strength.” Lisa

Mani & Fredric Gerr, Work-Related Upper Extremity

Musculoskeletal Disorders, 27 J. Occ. Env. Med. (2000) at

859. In addition, “weakness and atrophy of the thenar

[thumb] muscles [may occur] in advanced cases [of CTS].”

Herbert, supra, at 63.

Carpal tunnel syndrome is diagnosed through “evaluating

the medical history, physical findings, and results of

electrophysiologic testing.” Preventing the Work-Related

Carpal Tunnel Syndrome: Physician Reporting and Dia-

gnostic Criteria, 112 Annals of Int. Med. 317 (1990). “[MJost

authorities agree that a combination of clinical symptoms and

signs and electrodiagnostic findings is the most valid means

of diagnosing carpal tunnel syndrome.” Herbert, supra, at 63.

(b). Tendinitis, in its turn, is inflammation of the tendons.

Sandra Curwin & William D. Stanish, Tendinitis: Its Etiology

and Treatment (1984), at 25. Tendons are “ropelike

structures that connect muscles to bone.” /d. at 1. Tendons

are essential to the movement of limbs. “The muscles are the

prime movers of the body—they contract and produce force.

Tendons allow precise application of this force to the limb

being moved. . . . [W]hile muscle and tendon are structurally

separate, functionally they are one unit—the muscle-tendon

unit.” Jd.

9

“Most tendon injuries fall into the classification known as

overuse syndromes. . . .The term overuse means that the

tendon has been loaded repeatedly until it is unable to

withstand further loading, at which point damage occurs.”

Curwin & Stanish, supra, at 25 (emphasis in originai).

“The injured tendon . . . is one with microscopic or macro-

scopic damage to both its structural units and its blood

supply. In this state, the tendon is predisposed to further

injury...” /d. at 31.

Tendon degeneration can play a significant role in the

development of tendinitis. Compression of the tendons,

which occurs when the arm is elevated, impairs blood

circulation which, in turn, accelerates tendon degeneration.

Circulation can also be impaired during static contractions of

the shoulder muscles. Impairment of circulation causes cell

death within the tendon, forming debris in which calcium

may deposit. “[E]xertion may trigger an inflammatory

response to the debris of dead cells, resulting in an active

tendinitis.” Mats Hagberg, “Neck and Shoulder Disorders,”

Textbook of Clinical Occupational and Environmental

Medicine 356-364 (Linda Rosenstock, et al., eds., 1994), at

360. Given this biomechanical process, “[iJt is not surprising

to find a high risk of shoulder tendon lesions in activities

involving static contractions of the supraspinatus muscle or

repetitive shoulder forward flexions or abductions.” /d.

The shoulder is highly susceptible to tendinitis. In par-

ticular, the rotator cuff muscles are a common site of

tendinitis, as are the biceps muscles. Hagberg, supra, at 359.

At these locations, the tendons perform large movements as

they pass the shoulder joint. /d. As the National Institute of

Arthritis and Musculoskeletal and Skin Diseases explains,

“(t]he shoulder is the most movable joint in the body. How-

ever, it is an unstable joint because of the range of motion

allowed. It is easily subject to injury because the ball of the

upper arm is larger than the shoulder socket that holds it. To

remain stable, the shoulder must be anchored by its muscles,

10

tendons, and ligaments.” National Institute of Arthritis and

Musculoskeletal and Skin Diseases, Questions and Answers

About Shoulder Problems, available at http://www.nih.gov/

niams/healthinfo/shoulderprobs/shoulderga.htm.

Shoulder tendinitis has been described as having three

stages. “Stage I is characterized by edema and hemorrhage,

often seen acutely after excessive tendon stress during

overhead use of the arm in sports or work. In stage II,

fibrosis and tendinitis result in repeated episodes of

mechanical inflammation. Bone spurs and tendon rupture are

evidence of a stage III impingement lesion.” Hagberg, supra,

at 360. Moreover, “[a] history of shoulder tendinitis (stages I

or II) makes a worker doing repetitive or overhead work

susceptible to a relapse of tendinitis.” /d. at 361.

Tendinitis of the arms and hands is accompanied by

tenderness, swelling, warmth, and, on occasion, redness.

Mani & Gerr, supra, at 857. Individuals with rotator cuff

tendinitis typically experience weakness, pain, and tender-

ness, and may have limited ranges of shoulder movement as

well. /d. at 852.

(c). The scientific literature demonstrates that MSDs—

including carpal tunnel syndrome and tendinitis—can and do

impair the ability of individuals to perform the range of

physical tasks associated with daily living.

A group of researchers conducted a survey of 575 Mary-

land individuals with MSDs, including carpal tunnel syn-

drome, tendinitis of the arm, wrist, shoulder or rotator cuff,

and other disorders. Half of the respondents reported that

their MSDs had a continuing adverse effect on their ability to

perform normal manual tasks. Respondents reported that “the

impact of [their] symptoms was felt more at home than on

the job.” James Keogh, et al., The Impact of Occupational

Injury on Injured Worker and Family: Outcomes of Upper

Extremity Cumulative Trauma Disorders in Maryland

Workers, available at the OSHA Docket Office, Docket No.

S-777, Exhibit 30-65 1-1.

These researchers found a high percentage of respondents

reporting that their disorders interfered with their ability to

perform a variety of basic, simple tasks. For example,

individuals with MSDs reported difficulty with activities

involving arm and shoulder strength and coordination, such

as pushing open a window (49%) or pushing up from

an armchair (43%). Respondents also had difficulty with

activities requiring grip strength and coordination, such as

writing with a pen (49%) and pouring from a container into a

glass (43%). Myriad other basic and simple tasks posed

difficulties for people with MSDs: pulling open a door,

carrying a small bag of groceries, holding an umbrella,

turning a doorknob, holding a phone to the ear, turning a key,

picking up a coin, lifting a child over a crib rail, lowering

oneself into a bathtub, mopping floors, cooking at a stove top,

scratching the back, and putting items on a high shelf.

Individuals with carpal tunnel syndrome were more likely to

report such difficulties than people with other MSDs.

Keough, et al., supra at 8-9, 20.

Another study surveyed Connecticut individuals with

MSDs, including carpal tunnel syndrome and tendinitis.

Timothy F. Morse, et al., The Economic and Social Conse-

quences of Work-related Musculoskeletal Disorders: The

Connecticut Upper-extremity Surveillance Project (CUSP), 4

Int. J. Occup. Environ. Health 209 (1998). Nearly half of the

respondents reported that they had to cut back on activities at

home because of their disability. /d. at 212. This cohort was

far more likely to report difficulty performing various tasks of

daily living as compared to a control group. Specifically,

individuals with MSDs were much more likely to report

difficulty with basic tasks such as child care, bathing, writing,

gripping, household chores, opening jars, carrying bags,

brushing hair and/or teeth, and driving. /d. at 212-13.

12

Dr. Robin Herbert, an expert in MSDs, recently reported on

the preliminary results of a an additional pilot study involving

individuals who used computers on their jobs who had MSDs,

including hand/wrist tendinitis and carpal tunnel syndrome.

Robin Herbert, M.D., Testimony on the Need for a National

OSHA Ergonomics Program Rule, before the Occupational

Safety and Health Administration (March 2, 2000), available

at the OSHA Docket Office, Docket No. S-777. Again, high

percentages of these individuals reported significant impair-

ment in their ability to perform a variety of manual tasks. For

example, 49 percent reported moderate to severe difficulty in

writing; 53 percent of respondents reported moderate to

severe difficulty opening jars; and 54 percent reported

moderate to severe difficulty doing household chores.

The findings of these studies are borne out by the testi-

mony of individual workers at recent rulemaking hearings

before the federal Occupational Safety and Health Admin-

istration (OSHA).*

Jan Garrett, a poultry worker at a poultry processing plant

in Roberts, Kentucky, contracted carpal tunnel syndrome

while working in the “final trims” department at her plant,

where her job involved cutting off various parts of chickens

as they passed her on the line. She described the impact of

her impairment as follows:

My hands would go numb, tingle, and ache deep down.

At home I have trouble cutting vegetables, peeling,

slicing, chopping. I haven’t been able to cut a head of

lettuce . . . because I just cannot put the pressure on it

with a knife.

* An ergonomics program standard was promulgated by OSHA after an

intensive rulemaking process. 65 Fed. Reg. 68261 (Nov. 14, 2000). The

standard was however disapproved under the Congressional Review Act.

P.L. 107-5, March 20, 2001. The record from the OSHA rule-

making is available at the OSHA Docket Off ce, and the transcripts from

the informal rulemaking hearings are available on the Internet.

13

I’ve had a lot of trouble around Christmas where you do

all your cookies and all like that because | can’t do all

the stirring and mixing that you need to do.

Cleaning is a big problem because of trying to grip the

handles of the vacuum cleaner, mops, and such. And

just using a spray bottle is just a killer. I mean you just

can't do it.

Laundry, I have problems getting clothes out of the

washer because you have to grab them and pull them out

and everything. And I hang my laundry out a lot, as

much as I can. But my husband and son have to help me

do that because you can’t hold onto the clothespin very

long.

We bought us a home last summer and my husband and

sister did most of the cleaning before we moved in

because I can’t do it.

I still haven’t been able to wash my windows yet.

I have cramps in my hands and wrists if I get heavy pots

and pans, skillets out of the oven. So I haven't even tried

to clean the oven. I get burned a lot because I can’t feel

the heat ‘til I’ve already blistered my finger tips.

[Testimony of Jan Garrett before the Occupational Safety

and Health Administration (March 30, 2000), at 6002-06,

available at ttp://www.osha-slc.gov/ergonomics-standard/

PROPOSED/iAtranscripts/ergo03302000. pdf]

Heidi Eberhardt—a 32-year-old graduate of Dartmouth

College who was employed as a writer/researcher on

international trade issues by a .com Internet publishing

company and who has bilateral tendonitis, tenosynovitis, and

DeQuervain’s syndrome—described the impact of her

impairment in these terms:

Here are a few simple things that | used to take for

granted, but I now have difficulty with: squeezing

shampoo bottles, dishwashing detergent, toothpaste

tubes, turning on and off faucets, clipping finger and toe

nails, driving, shifting gears, holding the steering wheel,

14

carrying groceries, cooking, carrying heavy pots,

opening cans, cutting things, putting away dishes,

cutting my food, opening milk carton ends, opening

bottles, opening cans, making coffee, holding coffee,

getting ice cubes out of the ice tray, moving anything

heavy, dressing myself, buttoning pants and shirts,

pulling things on, hanging up clothes, doing laundry,

carrying clothes to the laundromat, pulling clothes in and

out of the washer and dryer, folding clothes, cleaning the

house, washing counters, bathrooms, vacuuming, writing

letters, grocery lists, writing checks for bills, opening

mail, opening doors and windows, turning my house key

in the lock or my car key in the ignition, picking up my

nephew.

In short, almost anything you need your hands to do, and

this list does not include anything I might want to do for

fun nor does it include computer or work activities.

[Testimony of Heidi Eberhardt before OSHA (April

6, 2000) at 7343-44, available at http://www.osha-

sic.gov/ergonomics-standard/PROPOSED/transcripts/

ergo04062000. pdf. }

Eberhardt added:

I would like to get married and have children some

day. And I am worried about not being able to

physically raise my children. [/d. at 7343.]

John Nalenpinski—a 43-year old machine operator who

has worked for Briggs and Stratton in Milwaukee, Wisconsin

for 24 years and who was diagnosed with bilateral carpal

tunnel syndrome—testified about the impact of his injury as

follows:

I had problems sleeping, just working around the house,

such as cutting the grass, trimming the bushes.

Because the vibration from the tools made my hands

ache real bad. I was always dropping stuff, such as

coffee cups, soda, even fly wheels at work.

15

The pain started. And it was so intense at night. And in

the morning, my fingers were so tight I could hardly

move them.

I had a hard time just pulling my pants up or turning the

door knob. . . . I still have problems today almost two

years later. I have a hard time opening up jars and even

getting my gas cap off my truck. . . . I have lost

sensitivity in my hands to the point where I cannot tell if

the clothes in the dryer are wet or dry. [Testimony of

John Nalenpinski before OSHA (April 14, 2000), at

9416-9417, available at http://www.osha-sic.gov/ergo

nomics-standard/PROPOSED/ftranscripts/ergo04 1 42000.

pdf.} a

Eugenia Barbosa, an assembly line worker who was diag-

nosed with severe damage to her rotator cuff, radial nerve,

and wrist, testified:

My life has completely changed for myself and for my

family.

Every day, I must deal with my pain. I am no longer

able to work. . . . | am unable to cook and clean for my

family. Even comb[ing] my hair and tak[ing] care of

my own personal needs is very difficult for me.

[Testimony of Eugenia Barbosa before OSHA (April 6,

2000), at 7324-7329, available at http://www.osha-

slc.gov/ergo-nomics-standard/PROPOSED/transcripts/

ergo04062000.pdf. |

Carol Py, a clerk typist with bilateral carpal tunnel synd-

rome and other MSDs of her hands and arms, added:

I have trouble turning the pages. . . .

I have difficulty driving, cleaning, cooking, and food

shopping. And my husband, he mostly does all my

shopping for me. And my grandchildren do a lot of the

cleaning for me, too.

The yard work is out of the question since I cannot rake

or mow the lawn. I had to give up the things that I used

to love like sewing and gardening. Before I was injured,

I even had a green belt in karate.

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My arms are so weak now that I can barely take care of

my three grandchildren. [Testimony of Carol Py before

OSHA (March 31, 2000), at 6319-6322, available

at http://www.osha-sic.gov/ergonomics-standard/7 RO-

POSED/{transcripts/ergo033 | 2000.pdf.]

4. The foregoing materials make it plain that individuals

with MSDs can be—and that many are—‘substantially

limited” by their impairment in the “major life activity” of

performing manual tasks associated with recreation, house-

hold chores and living generally, either because they cannot

perform the activity at all, or because they are “significantly

restricted as to the condition, manner or duration” that they

can perform that activity. 42 U.S.C. § 12102(2); 29 C.F.R.

§ 1630.2(j).° The functional effect of a particular MSD or

ame on a particular individual’s capacities depends on a

multitude of factors, including how long the condition existed

before it was diagnosed, whether the MSD was properly

treated, and whether exposure to the activity causing the

MSD has continued.

This Court has made it plain that “whether a person

has a disability under the ADA is an individualized inquiry”

which is to be “determined based on whether an impairment

substantially limits the ‘major life activities of such indivi-

dual.’” Sutton v. United Air Lines, Inc., supra, 527 U.S. at

483. In a case like this one where the impairment is carpal

tunnel syndrome/tendinitis, the point of that individualized

inquiry is to determine whether the impairment’s functional

effect is to substantially limit the impaired individual’s ability

to perform manual tasks—both those associated with working

and those associated with recreation, household chores, and

living generally.

* Even Toyota recognizes that MSDs may qualify as a disability under

the ADA. As Toyota notes, “[i}t is not difficult to imagine a case of CTS

{carpal tunnel syndrome] so severe that it precludes an individual from

performing a broad range of basic manual functions that the average

person typically performs without difficulty.” Pet. Br. at 18 n.6.

17

Here, the Sixth Circuit made that “individualized inquiry”

and determined that Ms. Williams was substantially limited in

the major life activity of performing manual tasks. As we

have shown, the Sixth Circuit made that determination by

applying the correct legal standard. And, while Toyota

claims that the Court of Appeals’ determination is not

supported in the evidence, this Court does not ordinarily sit to

review court of appeals’ fact finding. There is no occasion to

do so here.

CONCLUSION

For the foregoing reasons, the judgment below should be

affirmed.

Respectfully submitted,

JONATHAN P. HIATT

LYNN RHINEHART

815 Sixteenth Street, NW

Washington, DC 20006

MICHAEL H. GOTTESMAN

600 New Jersey Avenue, NW

Washington, DC 20001

LAURENCE GOLD *

805 Fifteenth Street, NW

Washington, DC 20005

(202) 842-2600

* Counsel of Record