The June 23, 1999 headline of the Chicago Tribune reads "Ruling Trims the Scope of Disability Law. High Court Excludes Correctable Impairments from Job Protection." The next day the Chicago Tribune hailed the Supreme Court rulings in an editorial entitled "Sensibly Reading the Disability Law." In the August, 1999 edition of the ABA Journal, David G. Savage’s,"ADA Umbrella Starting to Close," provides an interesting overview of four Supreme Court cases which are turning points in the application of the ADA. To understand the significance of these opinions, a brief glance at the statute may help.
Americans With Disabilities Act of 1990
The Americans With Disabilities Act of 1990, 42 USCS § 12101 et seq. (ADA) falls under a chapter called "Equal Opportunity for Individuals with Disabilities." The statute is divided into several sections, including congressional findings and purposes with definitions, employment, public services, public accommodations and services operated by private entities, and miscellaneous provisions.
The ADA is intended to provide a national mandate for the elimination of discrimination against individuals with disabilities, creating strong and enforceable standards, ensuring that the Federal Government plays a central role in the enforcement of the standards and invoking the sweep of congressional authority to address major areas of discrimination faced daily by people with disabilities.
The Equal Opportunity Employment Commission is involved in the process as well as the Civil Rights Act of 1964. Of significance is the definition of the term "employer," which, generally speaking, is a person engaged in an industry affecting commerce who has 15 or more employees. The thrust of the ADA, with respect to employers, is one sentence: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." (§ 12112) However, a charge of discrimination can be defended if the application of qualifications, standards, tests, or selection criteria that screen out individuals with a disability has been shown to be job-related and consistent with business necessity and such performance cannot be accomplished by reasonable accommodation. The qualification standards may include a requirement that an individual not impose a direct threat to the health or safety of other individuals in the workplace.
Enforcement procedures in place pursuant to the Civil Rights Act and the requirements of the EEOC apply, and the prevailing party may be entitled to attorneys’ fees.
The June, 1999 Supreme Court decisions deal with the now-restricted scope of the ADA in an employment setting and the now-expanded scope of ADA prohibition of discrimination in providing public services.
The Sutton Trilogy
The lead employment-related case is Sutton v. United Airlines, 119 S.Ct. 2139. Severely myopic twin sisters had uncorrected visual acuity of 20/200 or worse, but with corrective measures both could function identically to individuals without similar impairments. Their applications to become commercial airline pilots were rejected because they did not meet the employer’s minimum requirement of uncorrected visual acuity of 20/100 or better. Since the ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more ... major life activities," or as "being regarded as having such an impairment," the District Court dismissed the complaint because the plaintiffs were not actually disabled since they could fully correct their visual impairments. The District Court determined that the plaintiffs were not regarded by the airline as disabled as they had only alleged that the airline regarded them as unable to satisfy the requirements of a particular job – that is, a global airline pilot. These allegations were held to be insufficient to state a claim that the plaintiffs were regarded as substantially limited in the major life activity of working. The dismissal was upheld by the Tenth Circuit Court of Appeals.
The United States Supreme Court noted that while no agency had been delegated the authority to interpret the term "disability," the EEOC has issued regulations that define "physical impairment" to mean any physiological disorder affecting special sense organs, "substantially limits" to mean unable to perform a major life activity that the average person in the general population can perform and "major life activities" to mean functions such as working.
The EEOC and the Justice Department issued interpretive guidelines providing that the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as assistive or prosthetic devices. The Supreme Court found that three separate ADA provisions, read in concert, lead to the conclusion that the determination whether an individual is disabled should be made with reference to measures, such as eyeglasses and contact lenses, that mitigate the individual’s impairment and that the approach adopted by the agency guidelines is an impermissible interpretation of the ADA.
So: creating physical criteria for a job, without more, does not violate the ADA, which allows employers to prefer some physical attributes over others, so long as they do not rise to the level of substantially limiting impairments. An employer is free to decide that physical characteristics or medical conditions that are not impairments are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less ideally suited for a job. You have just finished reading the most important paragraph of this article.
Stated differently, an employer’s physical criteria are permissible so long as they do not cause the employer to make an employment decision based on an impairment, real or imagined, that it regards as substantially limiting a major life activity.
The Related Cases
United Parcel Service, Inc. hired a mechanic who had to drive commercial vehicles. To do that, he had to satisfy Department of Transportation health certification requirements, including not having high blood pressure which is likely to interfere with his ability to operate a commercial vehicle safely. Despite his high blood pressure, he was erroneously granted certification and started to work. When the error was discovered, he was fired. The District Court granted summary judgment for the employer and that was affirmed by the Tenth Circuit Court of Appeals.
Referring to Sutton, the Supreme Court held that under the ADA, the determination whether the mechanic’s impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs; when medicated, his high blood pressure does not substantially limit him in any major life activity. Therefore, he is not regarded as disabled because of his high blood pressure. A person is regarded as disabled (under the ADA) if, essentially, the employer mistakenly believes that the person’s actual, non-limiting impairment substantially limits one or more major life activities. UPS merely regarded the mechanic as unqualified to work because he could not obtain a health certification. All the mechanic could show was that he was regarded as unable to perform the job of mechanic only when that job requires driving a commercial vehicle – a specific type of vehicle used on a highway and interstate commerce. He was generally employable as a mechanic and he could perform a number of mechanic jobs. He was therefore unable to show, as a matter of law, that he was regarded as substantially limited in the major life activity of working. Summary judgment for UPS was affirmed. Murphy v. United Parcel Service, Inc. , 119 S.Ct. 2133.
Before starting a truck driver’s job, Hallie Kirkingburg was examined to see if he met the Department of Transportation’s basic vision standards for commercial truck drivers, which required corrected distant visual acuity of at least 20/40 in each eye and distant binocular acuity of at least 20/40. Although he has amblyopia, an uncorrectable condition that leaves him with 20/200 vision in his left eye (and thus effectively monocular vision), the doctor erroneously certified that he met DOT standards. When he was later correctly assessed at a physical examination, he was told he had to get a waiver from the DOT. The employer fired him for failing to meet the basic vision standards and refused to rehire him even though he received the waiver. The District Court found that the employee was not qualified without an accommodation because he could not meet the basic DOT standards and that the waiver program did not alter those standards. The Ninth Circuit reversed and was reversed.
The ADA requires monocular individuals, like others claiming the protection of the Act, to prove a disability by offering evidence that the extent of the limitation on a major life activity caused by the impairment is substantial. An employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation does not have to justify enforcing the regulation solely because the standard was waived experimentally in an individual case. The job qualification was not of the employer’s devising, but was a federal regulation binding on the employer. The employer was entitled to insist on maintaining those standards and the ADA does not require an employer to defend its decision not to participate in such an experiment. Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162.
Now, the Other Direction
According to the ADA, the isolation and segregation of individuals with disabilities is a serious and pervasive form of discrimination – therefore, no qualified individual with a disability, by reason of that disability, is to be excluded from participation in, or be denied the benefits of, a public entity’s services, programs or activities. The Attorney General issued regulations, one of which requires a public entity to administer programs in the most integrated setting appropriate to the needs of qualified individuals with disabilities ("integration regulation") and further public entities are to make reasonable modifications to avoid discrimination on the basis of disability, although measures that fundamentally alter the nature of the programs are not required ("reasonable-modifications regulation").
Two mentally retarded women were voluntarily admitted to and confined in a state hospital’s psychiatric unit. Even though their treatment professionals later concluded that they could be cared for in a community-based program, the women remained institutionalized and a lawsuit was filed seeking placement in community care. It was alleged that the state violated Title II of the ADA by failing to place the plaintiffs in a community-based program once their treating professionals determined that such treatment was appropriate. The District Court rejected the state’s claim that inadequate funding alone defined its decision to keep the plaintiffs hospitalized. The trial court felt that unnecessary institutional segregation constitutes discrimination per se – which could not be justified by lack of funding. There was no concern that requiring immediate transfers in these kinds of cases would fundamentally alter the state’s program. The Eleventh Circuit Court of Appeals affirmed the District Court but remanded the case for reassessment of the state’s cost-based defense. The Supreme Court found that states are required to provide community-based treatment for persons with mental disabilities when the state’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities. Olmstead v. L.C. ex rel. Zimring, 119 S.Ct. 2176. As Mr. Savage notes in his article, "In dissent, Justice Clarence Thomas, joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia, said the ruling ‘imposes significant federalism costs’ because it tells states how they must deliver services." ABA Journal/August 1999, p. 46. From a state’s point of view, those concerns are serious; Olmstead does at least preserve the right to make the appropriate defense if it can be made.
The Sutton trilogy have understandably brought a storm of both praise and criticism but the previous-expanding view of the ADA was leading, in some cases, to potentially absurd results. The Supreme Court has redirected the focus of the ADA to conform with the original intention to provide protection and accommodation for those who really need it.
Ronald J. Broida, J.D. is a principal of Broida and Farrow in Naperville, where he concentrates in civil litigation in the state and federal courts at the trial and appellate levels. He has authored other articles concerning civil litigation. He received his B.A. in 1966 and his J.D. in 1969 from the University of Illinois.