Correctable Disabilities as Mitigating Measures

Last month's Supreme Court decisions on the definiton of "disability" under the Americans with Disabilities Act erected new barriers to individuals whose disabilities are mitigated or controlled by technological aids or medical treatment. The Court held that individuals with a correctable condition, like high blood pressure or nearsightedness, do not fall within the ADA's protection against discrimination.

The lower Federal courts had been divided over whether to evaluate a person's asserted disability with or without regard to any "mitigating measures," as courts in these cases typically refer to high blood pressure treatment or other medications, as well as glasses and other devices that allow a person to function normally.

The ADA defines disability as "a physical or mental impairment that substantially limits one or more . major life activities," 42 U.S.C. 12102(2)(A), or as "being regarded as having such an impairment," 42 U.S.C. 12102(2)(C). The law bars discrimination against a person with a disability that can perform a job with a reasonable accommodation. But the law does not specify whether the limitation itself, the factor that brings a person within the law's protection in the first place, should be judged with or without corrective measures.

In one of the cases, Sutton et al. v. United Air Lines, Inc., No. 97-1943 (June 22, 1999), identical twin sisters, both nearsighted but with 20/20 vision or better when wearing glasses, were turned down for jobs as pilots by United Air Lines because their uncorrected vision did not meet the airline's standard of 20/100. Both women, Karen Sutton and Kimberly Hinton, fly as pilots for regional carriers.

The Court held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses." Thus, the Court ruled that because the sisters' vision was correctable, they did not have a disability as defined under the ADA.

In the second case, Murphy v. United Parcel Service, Inc., No. 97-1992 (June 22, 1999), a mechanic for United Parcel Service, whose job regularly required him to drive a truck, suffered from high blood pressure that was controlled with medication. He sued after the company fired him. The Court held that because the mechanic's high blood pressure was controlled by medication, he was not disabled and therefore, did not receive the protections of the ADA.

In the third case, Albertson's, Inc. v. Kirkingburg, No. 98-591 (June 22, 1999), the Court ruled that a truck driver with a vision impairment failed to show that his disability substantially impairs a major life activity. As in Sutton, the Court concluded that mitigating measures must be taken into account in judging whether an individual has a disability - whether the measures taken are with artificial aids, like medications and devices, or with the body's own systems.

Notably, the Court invited the federal government to file a brief on its position. The federal government argued that the existence of a disability - even a correctable vision impairment - should be assessed without regard to any mitigating measures. That was the intent of Congress as well as the long-held view of the Equal Employment Opportunity Commission, the brief said.

The Court emphasized the importance of an individualized inquiry to determine if a person has a disability and explicitly stated that an assistive device or mitigating measures will not preclude a finding of disability if the person can show that he has an impairment that substantially limits a major life activity. As an example, the Court said that a person who uses a wheelchair might be able to function but that he still has a disability because he is substantially limited in his ability to walk.

The Court's reasoning has profound implications for many people who face persistent discrimination and whom Congress meant to protect. "The ruling that the term 'disability' in the ADA is determined by examining the individual claiming discrimination in their 'corrected' state, even if the employer's reason for not hiring or firing was the underlying corrected condition, leads to the perverse result that a person with a disability who avails him/herself of the benefits of technological and medical advances thereby risks losing protection from job discrimination," announced in a statement by the Disability Rights Education and Defense Fund ("DREDF").

Consequently, DREDF anticipates that a person with epilepsy or diabetes for example, who manages through medication and discipline to control the effects of her condition, may have a hard time bringing an ADA case even if she was fired from her job simply because she has the condition and even if the condition has no impact on job performance. "In other words, the employer is free to act on every bigoted and irrational impulse that it may have toward a particular disability," reasoned DREDF.

The intent of Congress with the enactment of the ADA was to provide broad and comprehensive protection against the irrational exclusion of people with disabilities from jobs and public programs. However, the Court ignored the legislative history on this point, as well as the view of the Equal Employment Opportunity Commission charged with interpreting the statute. As Justices Steven and Breyer explain in their dissent, the majority's "miserly" interpretation is a disservice to the law.