On August 15, 2002, the Chicago Sun Times ran a very interesting story about a teenager who swims competitively in suburban Atlanta despite a disability.1 Because the Americans With Disabilities Act ("ADA") and its applications to all levels of sports has long been one of my areas of interest and scholarship,2 I started to think how about this particular case might play itself out under the ADA in light of recent Supreme Court decisions construing that Act.
Facts and Issues Involved
The facts in this section are taken from the Chicago Sun Times article.3 In August 2002, Hunter Scott was an athletic fourteen-year-old boy who had been swimming competitively for eight years. A birth defect stopped development in his thigh, and doctors had to remove his foot when he was two. In the summer of 2001, Hunter Scott started using a flipper when swimming. According to Hunter, the flipper helps because, "without it my body tends to roll in the water." Swim league officials say that Hunter’s time has improved by about four seconds since he started using the flipper. A year later, a coach questioned the use of the flipper, and the local swim league’s board decided that the flipper would violate the rules of USA Swimming, the governing body, and prohibited Hunter from using the flipper in competition. Hunter’s parents threatened to sue under the ADA and seek an injunction to halt divisional and championship competition. The local swim league’s board then decided to allow Hunter to use the flipper in 2002 and to set rules on such equipment beginning in the spring of 2003. The local board members, however, were worried about being sued under the ADA and resigned en masse. Hunter used the flipper in the championships in July of 2002, and finished fifth in the 100 meter freestyle and ninth in the fifty meter butterfly.
There are three major issues to be resolved here: (1) Is Hunter Scott a person with a disability for purposes of the ADA? (2) Is USA Swimming or the swim club for which Hunter Scott swims for a place of public accommodation under the ADA? (3) Assuming that Hunter Scott is a person with a disability under the ADA, does the use of a flipper fundamentally alter the nature of the contest, thus preventing Humter from asking for reasonable accomodations under the ADA?
Resolution of the Issues
First, under the ADA, disability is defined as "a physical or mental impairment that substantially limits a major life activity."4 Whether a person has a disability is no longer a simple issue in light of the United States Supreme Court decisions in Sutton v. United Airlines5 and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.6 In Sutton, the Supreme Court held that mitigating measures must be factored into the decision of whether a person is substantially limited in a major life activity.7 Thus, if Hunter uses a prosthesis while in the real world, that prosthesis must be factored into whether he has a disability under the ADA. In Toyota Motor, the Supreme Court held that a person is substantially limited in a major life activity if the person is severely restricted or prevented from performing an activity of central importance to most people’s daily lives, regardless of the particular task for which the person is seeking an accommodation.8 Thus, more facts are needed to answer the question whether Hunter is disabled. For example, does he wear a prosthesis when not swimming? Further, because walking is a major life activity, how does he walk with that prosthesis? And finally, does the prosthesis severely restrict or prevent him from walking as compared to most people? Obviously, the prosthesis would not prevent him from walking, but it might severely restrict him, and it remains to be seen how the courts will define the term "severely restricts."
One would think that due to the nature of Hunter’s disability, he would automatically be considered to be disabled under the ADA. However, the point made here is that under the Sutton and Toyota Motor decisions, the practitioner no longer can make that assumption without investigating further.
The second issue is whether USA Swimming or the local swim club are places of public accommodation. The ADA covers discrimination on the basis of disability in employment, governmental programs, and places of public accommodation.9 Obviously, this case does not concern either employment or a governmental program, so the question is whether a place of public accommodation is involved. The ADA lists twelve categories of public accommodations,10 and two of those categories are arguably applicable here. First, a place of public accommodation includes, "a park, zoo, amusement park, or other place of recreation."11 Second, a place of public accommodation also includes "a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation."12 In light of the PGA Tour v. Martin decision,13 it is a safe bet that a place of public accommodation is involved under either "other place of recreation,"14 or under "other place of recreation or exercise."15
The final issue needing resolution, assuming the first two issues are decided in Hunter’s favor, is whether using the flipper would fundamentally alter the nature of the activity.16 When one reviews the rules of USA Swimming, there is nothing in those rules to define the fundamental purpose of competitive swimming.17 We know that the fundamental purpose of golf is shot making,18 but what exactly is the fundamental purpose of competitive swimming? While nothing in the rules of USA Swimming answers that question, one could reasonably surmise that one of the fundamental purposes of competitive swimming would be to move through the water as effectively and as fast as the swimmer can. Support for this proposition comes from Rule 102.10.10, which states, "No swimmer is permitted to wear or use any device or substance to help his/her speed or buoyancy during a race. Goggles may be worn, and rubdown oil applied if not considered excessive by the referee."19
Thus, if Rule 102.10.10 is illustrative of competitive swimming’s fundamental purpose, then Hunter is in trouble regarding his ADA suit. The Chicago Sun Times article points out that he is four seconds faster than last year, when he did not use the flippers.20 Also, he says that with the flipper he is able to stop his body from rolling in the water.21 Thus, it appears that the device is helping him with speed and buoyancy, both of which are violations of Rule 22.214.171.124 Again, it is not the violation of Rule 102.10.10 per se that is problematic; rather, his ADA suit would be defeated by the violation of this rule if and only if the rule is deemed fundamental to the purpose of competitive swimming.23
What I have attempted to do in this article is take the reader through application of the ADA to a particular competitive sport. In light of recent Supreme Court opinions, ADA cases have become considerably complex. To resolve Hunter’s legal situation, one has to ask whether the swimmer was disabled; whether a place of public accommodation was involved; and finally, whether the flipper fundamentally altered the nature of the activity. It’s very hard to say how this case would resolve itself, but it is likely that the case would turn on the fundamental purpose of competitive swimming and whether Rule 102.10.10 advances that purpose.
1 Justin Bachman, "Flipper Flap Engulfs Swim League," Chicago Sun Times, August 16, 2002, 2002 WL 6468119.
2 E.g. William D. Goren, Understanding the Americans With Disabilities Act: An Overview for Lawyers, at 109-116 (American Bar Association 2000).
3 See supra note 1.
4 42 U.S.C. § 12102(2).
5 Sutton v. United Airlines, 527 U.S. 471, 482-83 (1999).
6 Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, _ U.S. _ , 122 S. Ct. 681 (2002).
7 Sutton, 527 U.S. at 482-483.
8 Toyota Motor, 122 S. Ct. at 691.
9 See 42 U.S.C. §12101.
10 42 U.S.C. § 12181(7).
11 42 U.S.C. § 12181(7)(I).
12 42 U.S.C.§ 12181(7)(L).
13 See P.G.A. Tour, Inc. v. Martin, 532 U.S. 661, 121 S. Ct. 1879 (2001).
14 42 U.S.C. § 12181(7)(I).
15 42 U.S.C.A. § 12181(7)(L).
16 P.G.A. Tour, 121 S. Ct. at 1893-94.
17 See Rules and Regulations of USA Swimming, http://www.usa-swimming.org/programs/officials/02_USASwimmingRulesReg.pdf.
18 See supra note 4.
19 See supra note 17.
20 See supra note 1.
22 For a definition of buoyancy, see, Merriam-Websters Collegiate Dictionary, http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=buoyancy.
23 P.G.A. Tour, 121 S. Ct. at 1896.
William D. Goren is an attorney and adjunct professor of paralegal studies at Harper Community College in Palatine, Illinois. He has published and presented widely on the rights of persons with disabilities and is the author of the book, Understanding the Americans With Disabilities Act: An Overview for Lawyers (American Bar Association, 2000). Mr. Goren is also a trained mediator.