Editor’s
note: The authors wish to thank Peter J. Petesch,
Thomas J. Walsh Jr., Timothy Bland, and David S. Harvey Jr. of Ford & Harrison. Many
of the arguments in this article are based on an amicus brief they filed for the Society
of Human Resource Management on behalf of United Air Lines in the case of Sutton v. United
Airlines.
The U.S. Supreme Court will soon decide an issue that could put millions of Americans
under the protection of the Americans with Disabilities Act (ADA) even though their health
conditions, when treated, do not adversely affect their ability to function in everyday
society.
In two cases pending before the Court, the Equal Employment Opportunity Commission
(EEOC) is urging the Court to adopt an interpretation of the ADA that requires employers
to determine whether an employee is disabled without considering his use of medication or
corrective devices such as eyeglasses. This interpretation could apply ADA protection to
people with conditions such as high blood pressure and high cholesterol levels as well as
those who wear glasses or contacts. Employers could find themselves required to act as
physicians, theorizing whether an employee’s condition would be severe enough to
render him disabled if it went untreated.
In effect, the EEOC seeks to expand a complex and inconsistent law so that it would
reach out to almost every American worker, ignoring the ability of modern medicine to
control and manage disease and illness.
The ADA’s Terms and Definitions
Since its enactment, the ADA has caused confusion and litigation exposure for employers
even when they attempt to comply with its requirements. The ADA, among other things,
prohibits an employer from discriminating against disabled individuals in employment.
While the definitions of some key terms are found within the statute itself, other terms
have been left to the courts to define, resulting in time-consuming and expensive
litigation. Even when definitions are provided in the statute, they are often ambiguous or
circular, further exacerbating the confusion about and the increase in ADA-related
litigation.
Unlike most other employment-related legislation, the ADA imposes an affirmative duty
on an employer to provide a reasonable accommodation to a "qualified individual with
a disability." The ADA defines the term "disability" as a physical or
mental impairment that substantially limits one or more major life activities.
Additionally, a person may be defined as disabled if he is regarded by the employer as
having such an impairment.
Major life activities are those that an average person can perform with little or no
difficulty, such as walking, speaking, breathing, performing manual tasks, seeing,
hearing, learning, caring for oneself, working, sitting, standing, lifting, or reading. To
meet the threshold of "substantially limited" a person must show that he is
"significantly restricted" in the ability to perform that activity.
For example, in order to prove that he is substantially limited in the ability to work,
a person must prove that he is unable to perform the general type of employment in
question rather than just a narrow range of job tasks. It is the definition of who is
disabled under the ADA that has created the conflict now before the Supreme Court.
Significantly Restricted With or Without Medication?
Sutton v. United Air Lines is focusing the attention of the Supreme Court on the
definition of disability.
The case involves twin sisters who applied for and were denied jobs as pilots with
United Air Lines. The company refused to hire the sisters because their uncorrected vision
did not meet the company’s requirement that its pilots have uncorrected vision of
20/100 or better. The sisters’ vision was 20/200 in the right eye and 20/400 or worse
in the left eye, which is below the level often used to define legal blindness.
The sisters claim that without glasses or contacts they cannot perform basic
activities, such as driving a car or watching television. With glasses or contact lenses,
however, both women have 20/20 vision. In fact, both possess Federal Aviation
Administration first-class medical certificates and were employed as pilots for a commuter
airline when they applied for work with United.
The lower federal courts dismissed the sisters’ lawsuit based on the determination
that the women were not substantially limited in any major life activity when they wore
glasses or contact lenses, a conclusion unacceptable to the sisters.
In a similar case, Murphy v. United Parcel Service, Inc., a former UPS employee claimed
that the company discriminated against him when it discharged him from a driver position
because his blood pressure was too high. Without treatment, Murphy’s blood pressure
was 250/160. Prior to his discharge, Murphy’s blood pressure was tested on several
occasions and the final tests showed it at 160/104 and 160/102. UPS required that drivers
have blood pressure of 160/90 or lower.
Prior to being hired by UPS Murphy passed a Department of Transportation physical
examination. As a result he received a health card certifying him as fit to drive. About a
month later, a UPS nurse reviewed Murphy’s
results from the physical and noticed that his blood pressure was reported as 186/124.
She ordered him off work to be tested again because his blood pressure exceeded the
company’s maximum standard. Eventually UPS fired Murphy.
Murphy claims that he is disabled and that his termination violates the ADA. According
to Murphy, without medication his blood pressure would put him in the hospital, he would
incur organ damage, and he would eventually die of high blood pressure. Therefore, since
the consequences of the untreated illness were so severe, he was due reasonable
accommodation under the ADA, even though the medication virtually eliminated the risk of
those consequences.
The lower federal courts dismissed Murphy’s claim on the grounds that he did not
suffer a disability covered by ADA because, with treatment, his high blood pressure did
not substantially limit a major life activity. His case has also found its way to the U.S.
Supreme Court.
The issue before the Supreme Court in both Murphy and Sutton is whether the effect of
medication or other corrective treatment should be considered in determining whether an
individual is substantially limited in the ability to perform a major life activity and
thus entitled to the protection of the ADA.
The individuals bringing these lawsuits have urged the Court to analyze their status as
disabled under the ADA without regard to their use of medication or corrective devices.
Specifically, Murphy asserts that the ADA should be construed broadly to cover hundreds of
thousands, if not millions of individuals who rely on medication, such as those with high
blood pressure, diabetes, and epilepsy.
In both cases the plaintiffs and the EEOC express concern that, by allowing employers
to consider the corrective effects of medication and other devices, the Court would
exclude numerous individuals whom Congress intended to protect by the ADA. The question
the Supreme Court must ultimately decide is whether the ADA was intended to protect a
broad range of people who, with some form of medical intervention, can function fully in
society.
The Disabled Majority?
If the Supreme Court decides that disabilities are to be evaluated under the ADA
without considering medication or other devices, the vast majority of the population could
be considered protected by the ADA. According to the 1998 annual report of the American
Optometric Association, 147 million Americans, or 55 percent of the population, wear
eyeglasses or other corrective lenses. This figure does not include people who no longer
need vision correction because they have successfully undergone corrective laser surgery.
In most cases, these visually impaired individuals are not limited in their ability to
function in everyday life and can perform all of the activities of the "average"
person.
Millions of Americans suffer from potentially serious health conditions (such as high
cholesterol, hypertension, asthma, depression and other psychological disorders, diabetes,
seizure disorders, and heart arrhythmia) that could have severe debilitating effects if
left untreated but that are fully treatable with medication. The great majority of these
individuals do undergo some form of treatment that allows them to live as fully
functioning individuals.
The original and admirable purpose of the ADA was to eliminate discrimination against
disabled persons and to bring them into the mainstream of American society.
Numerous court decisions, in analyzing claims brought under the ADA, have reiterated
that in enacting the statute Congress intended only to protect a limited class of persons.
Specifically, Congress intended to protect those who suffer from impairments significantly
more severe than those encountered in everyday life.
The ADA was never intended to protect those who suffer from common, relatively minor
conditions, because to hold otherwise would debase the laudable purpose of a statute that
seeks to protect those who are truly handicapped. In Fussell v. Georgia Ports Authority,
the court expressed the concern that the ADA had the potential of becoming the greatest
generator of litigation ever. The judge in Fussell wondered whether Congress, "in its
wildest dreams or wildest nightmares" intended such a result. In construing the ADA
to exclude claims by those with minor impairments, courts have acted consistently with the
views of Congress that disabled persons are a "minority of the population."
Perception of Disability?
EEOC’s position that protection under the ADA should be analyzed without
considering the effects of medication or other medical assistance conflicts with its
interpretation of other aspects of this statute.
For example, EEOC’s interpretive guidance on qualified persons with disabilities
explains that a determination of whether an individual is qualified should be based on the
person’s capabilities at the time the employment decision is made. It should not be
based on speculation that the employee may become unable to perform his duties and
responsibilities in the future.
EEOC also requires employers to consider the negative side effects of medication in
determining whether a condition is substantially limiting. Yet in the two pending Supreme
Court cases, EEOC takes the position that the positive effects of medication should be
ignored.
Moreover, adopting EEOC’s position on this issue requires an employer to
"perceive" an individual as disabled, even when that person is capable of
functioning in society without restriction. Adopting the EEOC’s argument on this
issue would mandate that, instead of evaluating an individual based upon his current
ability to function, an employer would be required to attribute speculative limitations to
an employee or applicant who lacks such limitations because of his use of medication.
It is evident that the Supreme Court’s decision on this issue will have
far-reaching implications for employers covered by the ADA. Employers can only hope that
the Court will recognize the illogic and impracticality of requiring employers to
disregard an employee’s use of medication and corrective devices. Such an
interpretation of the ADA, which undermines the purpose and intent of that statute, will
undoubtedly serve only to increase the confusion and litigation surrounding the ADA and
further detract from its original, laudable goals.
John-Edward Alley and Amy W. Littrell are with the law firm of Ford &
Harrison, LLP, where Alley is a partner (e-mails: jalley@fordharrison.com or alittrell@fordharrison.com).
May/June 1999 -- Florida Business Insight, PO Box 784, Tallahassee, Fla. 32302
(850)224-7173, insight@aif.com
