Court Watch
July 19, 1999

On June 22, 1999, the U.S. Supreme Court issued three widely anticipated decisions interpreting the Americans With Disabilities Act ("ADA"). The decisions significantly constrict the scope of the ADA. As a result, we expect to see plaintiffs' lawyers becoming increasingly selective about ADA cases, and we expect pressure to increase for additional disability protections at the state level.

In Sutton v. United Airlines, Inc., severely nearsighted twins (Sutton and Hinton) used corrective lenses to achieve 20/20 vision. Without corrective measures, neither could see to drive, shop or perform a variety of activities. Sutton and Hinton, both regional pilots, applied with United for positions as commercial airline pilots. Both twins met United's basic requirements with one exception - its requirement that commercial pilots have uncorrected vision of 20/100 or better. Consequently, United offered neither twin a position. The twins sued under the ADA, alleging that the severity of their myopia, left uncorrected, created a substantially limiting impairment. Alternatively, the twins argued that they were covered by the ADA because United regarded them as being disabled. The District Court dismissed the complaint, finding the twins were not disabled "within the meaning of the ADA" because their myopia could be corrected, and that they failed to allege that United regarded them as having impairments which "foreclose generally the type of employment involved." The Tenth Circuit Court of Appeals affirmed the District Court's judgment. The Supreme Court affirmed the Tenth Circuit's decision, rejecting EEOC and Department of Justice Guidelines to the contrary. In doing so, the Supreme Court ruled that ameliorative measures (positive or negative) must be considered when deciding whether an individual suffers from a physical or mental impairment as defined by the statute. Where, as with the twins, corrective measures allow a claimant to function normally with no substantial limitation on a major life activity, the claimant is not disabled under the statute and cannot invoke ADA protection. Notably, the Supreme Court highlighted the ADA's requirement that courts make highly individualized inquiries about the particular effect a condition has on the individual. As a consequence, employers will run afoul of the ADA by applying formulaic guidelines. Rather, each determination must be made individually, based on the condition's effect on the particular individual in light of any mitigating measures employed. Employers may also find noteworthy the high Court's confirmation that employers are free to impose conditions on employment based on physical characteristics or medical conditions (not impairments) and are "free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job."

In Albertsons, Inc. v. Kirkingburg, Kirkingburg suffered from an uncorrectable eye condition that left him with monocular vision. Albertsons required all commercial drivers to meet the Department of Transportation ("DOT") visual acuity standards; persons with monocular vision cannot meet the DOT's basic vision standards. However, when Kirkingburg applied for a commercial driver's job, the physician erroneously certified that Kirkingburg met DOT standards, so Albertsons hired him. Kirkingburg worked for Albertsons as a commercial driver for nearly two years before Albertsons discovered the physician's error. At that point, Albertsons terminated Kirkingburg for failing to meet DOT standards and refused to rehire him even after he received a DOT waiver. Kirkingburg sued, claiming that Albertsons violated the ADA by firing him. The district court granted summary judgment to Albertsons, and the Ninth Circuit Court of Appeals reversed.

The Supreme Court reversed the Ninth Circuit's decision, because in the Court's view Kirkingburg failed to prove he had a covered disability since he failed to establish the degree to which his condition, in this particular experience, resulted in a substantial limitationof a major life activity. The Court reiterated the central elements of the Sutton holding: that courts must take into account any mitigating measures in determining whether a person possesses a disability, and that courts must "determine the existence of disabilities on a case-by-case basis." An ADA claimant's failure to produce evidence of particularized, substantial limitations attendant to a disability precludes recovery because the ADA "concerns itself only with limitations that are, in fact, substantial."

The third ADA case decided by the high Court, Murphy v. United Parcel Service, Inc., also involved an employer's application of DOT regulations. Murphy applied for a mechanic's position with United Parcel Service, Inc. ("UPS"), which required some commercial driving. Consistent with its standard policies, UPS required Murphy to submit a DOT certification of fitness to operate commercial vehicles. Although Murphy had suffered from high blood pressure since childhood, the physician erroneously granted DOT certification. The next month UPS discovered the error and terminated him. Murphy sued under the ADA, claiming that without medication his hypertension met the definition of a qualified disability under the ADA and that UPS violated the ADA by regarding him as disabled even though when medicated he functioned without substantial limitations.

Once again the Court framed its decision in light of the Sutton ruling, i.e., that for ADA purposes, the determination of a petitioner's disability must be made with reference to any mitigating measure employed. Given the evidence that Murphy effectively managed his hypertension with medicine, he could not prove that his condition substantially limited him in any major life activity. Moreover, the Court found that Murphy failed to show that UPS violated the ADA by regarding him as disabled simply because UPS regarded him as unable to meet DOT standards for a particular job.

In sum, these decisions result in several new touchstones for management. First, employers may consider mitigating measures taken (including artificial aids such as medications or devices, as well as compensation undertaken by the body's own systems) in determining whether an employee's condition meets the ADA's definitional strictures of a covered disability. Second, management must eschew any pro forma approaches to this critical determination - every ADA case must be analyzed with an eye toward the particular individual and the particular circumstances using a functional approach. Third, employers gained new latitude in imposing some health or physical standards for employees and applicants. This is particularly true for employers who use federal health and safety regulations as hiring criteria. Fourth, ADA claimants who fail to establish an impairment which substantially limits a major life activity will not survive an employer's summary judgment challenge.