Mitigating or Corrective Measures May Be Taken into Account in Determining ADA "Disability"
Three cases decided by the Supreme Court on June 22, 1999, are helpful to employers because they remove from ADA coverage many millions of Americans whose impairments are corrected with medication or with devices like eyeglasses.
In Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999), United required pilot applicants to have uncorrected vision of 20/100 or better. Plaintiffs failed that test, although with corrective lenses they had 20/20 vision. In Murphy v. United Parcel Service, 119 S. Ct. 2133 (1999), UPS fired a mechanic whose high blood pressure was corrected with medication, on the grounds that his blood pressure prevented him from holding DOT certification to drive commercial vehicles, which was required as part of his job.
The Supreme Court ruled that neither impairment was a "disability" under the ADA because as corrected it did not "substantially limit one or more . . . major life activities." The Court reasoned that "limits" means a present limitation -- not a hypothetical limitation that "might" limit a major life activity if corrective measures were not taken. It also held that Congress would not have said there were 43 million disabled people when it enacted the law, had it intended the broader definition urged by the plaintiff and the EEOC, which would yield a far higher count of disabled individuals.
A third case, Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162 (1999), was brought by a monocular truck driver. The Court held that even though no mitigating measures could correct his impaired eye, his brain had compensated; the fact that his brain and eyes functioned "differently" than most individuals did not show that he was significantly restricted in the major life activity of seeing.
In all three cases, the Court refused to find any particular diagnosis or condition to be a disability per se; the determination will be an individual one that depends on all the circumstances, including the condition, the corrective devices or medicines the person is taking, the side effects of those medications, and the resulting level of limitation in major life activities. Although close definitional questions will be less critical in the workplace, for example, in making accommodations, these cases will make intense factual inquiry and discovery essential if litigation is filed, in order to try to position the case for summary judgment on the definition of disability.
The Supreme Court refused to decide the validity of the EEOC regulation that defines the major activity of working with reference to the inability to get a job in a broad class of jobs. The pilot-applicants could use their skills to work at many jobs such as regional airline pilots, or pilot instructor. Likewise, the mechanic could hold any job except one that required him to drive commercial vehicles. Therefore, they clearly were not significantly limited in working.
Regarded As Disabled.
A person who is not actually disabled can also be covered by the ADA if he or she is "regarded as" having an impairment that substantially limits one or more major life activities. The Court ruled that plaintiffs are not "regarded as" having a disability simply because the employer perceives them as unable to meet the physical criteria it has established for a job. The ADA allows employers to prefer some physical attributes over others. "Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment - such as one's height, build, or singing voice - are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." The "regarded as" prong of the definition is satisfied only where there is a misperception, either that the individual has a substantially limiting impairment when he or she doesn't, or that an actual, nonlimiting impairment substantially limits a major life activity.
This prong of the disability definition will undoubtedly be pled far more frequently in the future. Employers can reduce the chances of a finding of liability in this area by taking proactive steps. As is true in the punitive damages and harassment areas, the Court has given employers substantial incentives to train and monitor supervisory behavior and comments. The key in the disability area is to train supervisors and interviewers to discuss applicants' or employees' ability or inability to meet certain criteria or hiring standards rather than any underlying conditions that lead to that result. Questions or comments - no matter how benign - about whether the employee is experiencing a problem (such as depression or alcoholism) that may have led to the failure to perform or qualify, must be avoided. Job relatedness is the touchstone. Supervisors will also need to know that the side effects of medication or corrective devices can themselves constitute a disability, and that many conditions or ailments may be ADA disabilities in one person and not qualify as such as they manifest themselves in others.
Employer Need Not Justify Refusal To Employ Disabled Person Who Does Not Meet Government Safety Standards.
The Court also established in the Albertsons case that an employer does not violate the ADA when it complies with a straightforward governmental safety regulation, i.e., by refusing to employ an individual who does not meet government certification requirements. Albertsons discharged the monocular truck driver because he could not meet the DOT's basic vision test to hold a commercial driver's license, even though the DOT had initiated an experimental program under which he may have been able to get a waiver. The Court held that, even assuming the truck driver was "disabled" within the meaning of the ADA, the company would have been entitled to summary judgment because the truck driver was not a "qualified" individual with a disability.
Effect of Potential Waiver.
The Supreme Court held that Albertsons could rely on the basic DOT vision standard, and did not need to become enmeshed in troublesome questions whether a waiver was a reasonable accommodation because the waiver program did not create a different substantive standard. The waiver program was merely an experiment, to collect data to determine whether the agency could relax the underlying vision standard. The Supreme Court held it would not be reasonable, or fair, to require the employer to defend the underlying safety standard, which the government had developed and tightened over many years. Nor did the employer have to show that the plaintiff was a direct threat to health or safety because he did not meet the standard; the failure to meet the standard was sufficient in and of itself to disqualify him.
Employers should keep in mind that in other situations where a waiver is available, the employer may still need to consider whether it is required to accept a waiver or to provide an applicant an opportunity to obtain a waiver when that is reasonably possible. Each case would appear to turn on whether the waiver program is an integral part of a statutory scheme that mandates individualized determinations to achieve safety standards or whether, as in the Albertsons case, it is an experimental program that does not change the underlying standard.
*article courtesy of Barbara Berish Brown of Paul, Hastings, Janofsky & Walker LLP.