Supreme Court Rules On "Disability"

At the close of the 1998-1999 term, the U.S. Supreme Court handed down a trio of landmark decisions that provided long-awaited interpretations of what it means to be "disabled" under the Americans with Disabilities Act (ADA) of 1990. Employers with 15 or more employees are covered by the Americans With Disabilities Act provisions. Additionally, most states have similar regulations that apply to businesses with fewer than 15 employees. Usually state requirements are more stringent. Employers are required to abide by the stricter of the two.

Nine years and millions of dollars after ADA’s passage, employers across the country are hoping the June 22 series of three rulings will shorten the line of litigants who allege discrimination under ADA. With the Supreme Court behind them, can employers now begin to make rational ADA-related employment decisions?

NOT QUITE YET. In large part, the new rulings are in direct opposition to the Equal Employment Opportunity Com-mission’s (EEOC) position and enforcement of ADA. This is no surprise to many employers who know first-hand about EEOC’s enforcement principles that seem to be, at times, illogical and opposed to all good business sense. So, what’s an employer to do? Before we answer this million-dollar question, let’s review the highlights of the recent rulings, all three of which involve safety standards.

Sutton vs. United Airlines

In Sutton vs. United Airlines, No. 97-1943, the questions before the Court were: (1) Whether the existence of a disability can be determined with consideration for corrective measures (Court’s answer: Yes) and (2) Whether the inability to perform one job substantially limits an employee’s major life activity of "working." (Court’s answer: No)

The case involved twin sisters who applied for commercial pilot positions with United. Both were severely nearsighted, but with corrective glasses or contact lenses, each had perfect vision. Because United’s safety policy required uncorrected visual acuity of 20/100 or better, the sisters were denied employment.

In answering the first Sutton question, the Court completely disagreed with EEOC’s written enforcement guideline that provides that mitigating measures (i.e., eyeglasses) should not be considered. The Court referred to this guideline as "an impermissible interpretation of the ADA" — a serious victory for employers.

In answering the second Sutton question, the Court held that other jobs (i.e., regional pilot or pilot instructor) were available to the sisters, so they were not substantially limited in the major life activity of working. (This would require that they be unable to work in a "broad class of jobs").

Murphy vs. United Parcel Service

In Murphy vs. United Parcel Service, No. 97-1992, again the Court was asked to determine if the inability to perform one job is sufficient to determine if a person is substantially limited in his or her ability to work. (Court’s answer: No)

In this case, Vaughn Murphy was (mistakenly) hired by UPS as a mechanic with driving responsibility. He was required to meet the Department of Transportation’s (DOT) safety requirements including medical restrictions related to high blood pressure. Murphy had high blood pressure but, when medicated, was able to function normally. He was subsequently terminated for not meeting DOT standards.

Relying on the Sutton ruling, the Court maintained that, when medicated, Murphy’s high blood pressure did not substantially limit him in a major life activity.

Additionally, he was qualified to perform several other mechanic positions, so he was not substantially limited in the major life activity of working.

Albertsons vs. Kirkingburg

In Albertsons vs. Kirkingburg, No. 98-591, the question before the Court was: When a government safety standard exists, even though the government occasionally grants waivers from its requirements, must employers justify enforcing the regulation solely because its standard may be waived in an individual case? (Court’s answer: No)

In this case, Hallie Kirkingburg was (erroneously) hired by Albertsons as a truck driver. He had monocular vision, which he learned to compensate for with subconscious adjustments to his depth and peripheral perception. After a leave of absence he was re-examined and terminated for failure to meet DOT requirements. He applied for a DOT waiver, was granted the waiver and reapplied. He was denied employment even with the waiver.

In the Albertsons case, essentially, the Supreme Court ruled that an employer is permitted to enforce government safety standards without violating ADA, even if waivers from those requirements have been granted. Albertsons had the right to rely on defined DOT vision standards and did not have to accept the waiver.

HOW EMPLOYERS SHOULD PROCEED. Thanks to United Airlines (the first ruling), and all the other employers who have paid the costly price of fighting irrational ADA claims, after nine years, there finally is a logical interpretation of "disability." However, employers must now wait for EEOC to accept and actually enforce this interpretation. Right now, EEOC is in the process of, in their words, "assessing the impact of the Court’s ADA decisions."

The pressure is on EEOC to quickly revise their ADA-related investigatory procedures. In the meantime, some employers may be caught in the middle, faced with either accepting an unfavorable ruling from EEOC (with significant monetary liability) or paying attorneys to defend their position in court, where they’ll likely prevail.

Investigators we have met with have advised us to tell our clients, "It’s business as usual at the EEOC." Nevertheless, we recommend you keep the following in mind as you determine if an individual is "disabled" under the Americans with Disability Act:

Consider the effect, positive or negative, of any corrective measures. In some cases, the corrective measures may carry negative side effects that
substantially limit the individual in a major life activity.

Consider both artificial measures (i.e., eyeglasses or medication) and natural adjustments made by the body to compensate for the impairment.

Consider how the condition affects the person on an individual basis. Do not assume individuals with the same condition are equally impaired. Two people with the same impairment may be treated differently, depending on how the impairment and any corrective measures affect each person’s major life activities.

Consider whether or not the individual qualifies for protection under one of the other ADA provisions. If you "regard" the individual as disabled, or if the individual has a "record" of a disability (even prior to the corrective measures), there may be coverage.

Discuss this important ruling with an EEOC investigator if you currently have an open ADA-related charge of discrimination. To the extent possible, use the Supreme Court rulings to justify your position.

CONCLUSION. Because these three cases involve safety standards, courts may be less inclined to apply the rulings to situations that are not related to safety.

A series of instructions have recently been sent to EEOC field investigators which outline a number of strategies for uncovering a disability under the "regarded as" and "record of" prongs of ADA. The instructions use the example of a person with depression who may have experienced episodes of severe depression for several months prior to taking medication to correct the problem. According to EEOC, this individual could meet the definition of "disabled" due to their "record of a disability." This document also lists several conditions that might be only partially controlled through mitigating measures, such as epilepsy, Parkinson’s disease and depression. When this occurs, the individual may still meet the definition of "disabled."

One thing is for certain: Until EEOC clarifies its position, tread carefully in the ADA waters. And, to help sort through all this, you may want to add "medical degree" to the list of the requirements for managers in your company.

Jean Seawright Pileggi is the President of the Winter Park, Florida management consulting firm, Seawright & Associates, Inc. For the past twelve years, she has provided human resource management and compliance advice to PCOs across the country. She can be contacted at 407/645-2433 or www.seawright.com.