In a series of decisions announced during the summer of 1999, the United States Supreme Court has significantly affected the landscape in disability discrimination cases brought under the Americans with Disabilities Act. The decisions include Sutton v. United Airlines, Inc. 119 S.Ct. 2139, 144 L.Ed.2d 450 (June 22, 1999); Murphy v. United Parcel Service, 119 S.Ct. 2133, 144 L.Ed.2d 484 (June 22, 1999); Cleveland v. Policy Management Systems Corporation, et al., 119 S.Ct. 1597, 143 L.Ed.2d 966 (May 24, 1999); and Albertsons v. Kirkingberg, 119 S.Ct. 2162, 67 U.S. Law Week 4560 (June 22, 1999). The purpose of this article is to provide an overview of these decisions and their effect on disability discrimination jurisprudence.

A. THE CASES

The plaintiffs in Sutton,were twin sisters, both of whom suffered from severe myopia. Each plaintiff´s uncorrected visual acuity was 20/200 or worse in her right eye and 20/400 or worse in her left eye. However, with the use of corrective lenses, each had vision that was 20/20 or better. Consequently, without corrective lenses each plaintiff could not see to conduct numerous activities such as driving a vehicle, watching television, or shopping in public stores. However, with corrective measures such as glasses or contact lenses were able to perform those functions.

In 1992, the plaintiffs applied to United Airlines for employment as commercial airline pilots. The plaintiffs met United Airlines´ age, education, experience, and FAA certification qualifications. After submitting their applications for employment United invited both plaintiffs for an interview and to complete flight simulator tests. Both were told during their interviews, however, that a mistake had been made in inviting them to interview because the plaintiffs did not meet United Airlines´ minimum vision requirement, which was uncorrected visual acuity of 20/100 or better. Due to their failure to meet this requirement the plaintiffs´ interviews were terminated and neither was offered a pilot position.

The District Court dismissed the plaintiffs´ complaint for failure to state a claim upon which relief could be granted. Because petitioners could fully correct their visual impairments, the trial court held that they were not actually substantially limited in any major life activity and thus had not stated a claim that they were disabled within the meaning of the ADA. Employing similar logic, the Court of Appeals for the Tenth Circuit affirmed the district court´s judgment.

At the time the Sutton case was argued, the EEOC had issued an "interpretive guidance" which provided that "the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis without regard to mitigating measures such as medicines or assistive or prosthetic devices." (See 29 C.F.R. Part 1630, App. ß 1630.2(j) (1998).) The Department of Justice had issued a similar guideline. However, the Tenth Circuit´s decision was consistent with the decision of a number of other courts of appeals. (See e.g. Bartlett v. New York State Board of Law Examiners, 156 F.3d 321, 329 (2^nd Cir. 1998) (holding self-accommodations could not be considered when determining a disability); Matczak v. Frankfort Candy and Chocolate Company, 136 F.3d 933 (3^rd Cir. 1977) (same); Arnold v. United Parcel Service, Inc., 136 F.3d 854 (1^st Cir. 1998) (same); Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464 (5^th Cir. 1998) (holding that only some impairment should be evaluated in their uncorrected state).)

The United States Supreme Court accepted certiorari and affirmed the decision of the Tenth Circuit. Despite the fact that courts traditionally defer matters of interpretation to the agency charged with the duty of interpretation and enforcement of those statutes, the Supreme Court held that a claim of disability discrimination under the ADA must be analyzed by taking into account the mitigating measures used by the claimant. The Court stated that it was reaching its decision for three reasons. First, the Court noted that the ADA defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual. Because the phrase "substantially limits" appears in the Act in the present indicative verb form, the Court noted that the language was properly read as requiring that a person be presently -- not potentially or hypothetically -- substantially limited in order to demonstrate a disability. Second, the Court noted that the ADA required an individualized inquiry as to whether or not an individual was disabled under the ADA. The Court stated that the EEOC´s guidelines directing that persons be judged in their uncorrected or unmitigated state ran directly counter to this individualized inquiry that was mandated by the ADA. Finally, the Supreme Court majority opinion argued that the findings enacted as part of the ADA require the conclusion that Congress did not intend to bring under the statute´s protection all those whose uncorrected conditions amount to disabilities. The Court emphasized that Congress found that some 43 million Americans have one or more physical or mental disabilities and this number is increasing as the population as a whole is growing older. The Court emphasized that this figure was inconsistent with the definition of disability pressed by the plaintiffs.

Finally, with respect to the plaintiffs´ claim that they met the definitions of "disabled" because United "regarded them as disabled", the Court emphasized that the plaintiffs must prove that the defendant entertained actual misperceptions about the individual, that is, the plaintiff must show that defendant believed the plaintiffs either had a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when in fact the impairment is not so limiting. Typically such a misperception results from stereotypical assumptions that are not truly indicative of individual ability. Remarkably, the Court went on to somewhat gratuitously state that "accordingly an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment such as one´s height, build, or singing voice - are preferable to others just as it is free to decide that some limiting but not substantially limiting impairments make individuals less than ideally suited for the job."

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2. Murphy v. United Parcel Service,

The plaintiff was diagnosed with hypertension when he was ten years old. Plaintiff´s unmedicated blood pressure was approximately 250/160. With medication, however, the plaintiff´s hypertension did not significantly restrict his activities and in general he was able to function normally.

In August of 1994, UPS hired the plaintiff as a mechanic, a position that required the plaintiff to drive commercial motor vehicles. To drive such vehicles, however, the plaintiff had to satisfy certain health requirements imposed by the Department of Transportation ("DOT"). One such DOT requirement was that the driver of a commercial motor vehicle have no current clinical diagnosis of high blood pressure which was likely to interfere with his or her ability to operate a commercial vehicle safely. At the time the defendant hired him, the plaintiff´s blood pressure was so high, that he was not qualified for DOT health certification. Nonetheless, the plaintiff was erroneously granted certification and began working for UPS. In September of 1994, UPS discovered its mistake and upon retesting the plaintiff´s blood pressure was measured at 160/102 which entitled him to conditional certification. On October 5^th of 1994 the defendant fired the plaintiff on the belief that his blood pressure exceeded the DOT´s requirement for drivers of commercial motor vehicles.

The Supreme Court´s analysis in Murphy was the same with respect to the issue of whether or not mitigating measures should be assessed in analyzing whether or not a plaintiff was disabled is the same as in Sutton, supra.

Although the issue was not one in which cert was granted the Court emphasized that the Court of Appeals had found that the Plaintiff´s high blood pressure did not substantially limit him. With respect to the issue of whether or not the plaintiff was regarded as disabled the Supreme Court noted that the plaintiff in Murphy had alleged that he was regarded as disabled with respect to the major life activity of working. The Court went on to note that to be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job. (See 29 C.F.R. ß 1630(j)(3)(I) ("the inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working"). The Court concluded that the evidence of the petitioner was regarded as unable to meet DOT regulations was not sufficient to create a genuine issue of material fact as to whether the petitioner was regarded as unable to perform a class of jobs utilizing his skills. The Court emphasized that at most the plaintiff had shown that he was regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle, a specific type of vehicle used on a highway in interstate commerce. Because the plaintiff had not put forward evidence that he was regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle, the court found that the plaintiff had not met its burden of proof and that the Court of Appeals had correctly granted summary judgment.

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3. Albertsons, Inc. v. Kirkingburg,

The plaintiff applied for a truck drivers job with Albertsons. The plaintiff suffered from amblyopia, an uncorrectable eye condition that rendered him effectively monocular. Despite this uncorrectable eye condition, a DOT certification doctor granted the plaintiff a basic certification for commercial truck drivers. This certification required corrected distant visual acuity of at least 20/40 in each eye and distant binocular acuity of at least 20/40. Two years later at a follow-up physical exam, the doctor´s error of granting the original DOT certification was revealed. The plaintiff then sought and obtained a waiver of DOT standards from the DOT under a special waive program established by DOT regulations and obtained a renewed certification. Nevertheless, Albertsons terminated the plaintiff for failing to meet the basic DOT vision standards and refused to rehire him.

The plaintiff sued Albertsons and Albertsons was granted summary judgment by the district court. A divided panel of the Ninth Circuit reversed. In addition to pressing its claim that Mr. Kirkingburg was not otherwise qualified, Albertsons for the first time on appeal took the position that it was entitled to summary judgment because the plaintiff did not have a disability within the meaning of the ADA. The Court of Appeals considered but rejected that argument concluding that because Kirkingburg had presented uncontroverted evidence that his vision was effectively monocular and that he had demonstrated that the manner in which he sees differs significantly from the manner in which most people see.

Although the issue of whether or not Mr. Kirkingberg was disabled was not addressed in the district court, the Supreme Court chose to discuss the matter. The Court concluded that the ADA requires monocular individuals like others claiming the ADA´s protection to prove a disability by offering evidence of the extent of a limitation in terms of their own experience. The court emphasized that there was no per se rule that a monocular individual is disabled.

The Court went on to hold that Albertsons did not discriminate against the plaintiff because it complied with government requirements that were consistent with business necessity. The Court found it dispositive that the job qualification was a visual acuity standard which was contained in the federal motor carrier safety regulations codified at 49 C.F.R. ß 391.1. The Court also emphasized that the record of the highway safety department made it clear that the waiver regulation did not rest on any final factual conclusion that the waiver program would be conducive to public safety but was rather an experiment with safety.

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4. Cleveland v. Policy Management Systems Corporation

The plaintiff began work for the defendant in August of 1993. In January of 1994 the plaintiff suffered a stroke which damaged her concentration, memory, and language skills. Shortly thereafter, the plaintiff filed an application for social security benefits in which she stated that she was disabled and unable to work. After filing the SSI application, the plaintiff´s condition improved and she returned to work with Policy Management Systems. Some three months later, the plaintiff was terminated and petitioned the social security administration for reconsideration of its previous denial of social security disability benefits. The social security administration denied the request for reconsideration and plaintiff subsequently brought and ADA lawsuit against Policy Management Systems. It was plaintiff´s contention in that lawsuit that the defendant had terminated her employment without reasonably accommodating her disability. Plaintiff specifically alleged that she had requested but was denied accommodation such as training and addition time to complete her work. The plaintiff submitted a supporting affidavit from her treating physician.

The district court did not evaluate the plaintiff´s reasonable accommodation claim on the merits but granted summary judgment to the defendant because in its view Cleveland, by applying for and receiving social security disability benefits, had conceded that she was totally disabled. The Fifth Circuit affirmed the district court´s decision and on certiorari to the Untied State Supreme Court the Supreme Court reversed.

The Supreme Court noted that the ADA and Social Security Disability Act served the same purpose, that is, helping individuals with disabilities but in different ways. For one thing, the court noted that the ADA defines a qualified individual to include a disabled person "who can perform the essential functions" of her job "with reasonable accommodation." (See e.g. 42 U.S.C. ß 12111(9)(B).) By way of contrast, when the SSA determines whether an individual is disabled for social security disability purposes, it does not take the possibility of reasonable accommodation into account nor need an applicant refer to the possibility of reasonable accommodation when she applies for social security disability benefits. Based upon these distinctions the court held that there was no per se rule that precluded an individual from bringing an ADA claim when an individual had previously applied for social security disability benefits.

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B. OBSERVATIONS

Based upon the Supreme Court´s decision in the above cases a number of observations may be drawn. First, whether or not an individual is disabled must be considered in light of the mitigating measures that are available to the plaintiff at the time of the alleged disability. Second, it appears that employers may now be entitled to information regarding the extent to which mitigating measures are addressing a particular plaintiff´s disability. Employers may argue that the plaintiff should be required to provide medical information about the of mitigating measures as part of the individualized inquiry process which is mandated by the ADA. Third, Plaintiffs would be well-advised to allege that they are substantially limited and regarded as substantially limited with respect to major life activities other than work to survive the analysis in Sutton and Murphy. Fourth, the existence of a regulatory scheme will, in almost all cases provide the basis for a legitimate non-discriminatory reason to take an adverse action against en employee. This is true even where the regulatory scheme envisions the possibility of a waiver from the regulatory or administrative requirements. Finally, contrary to previous decisions which included as a decision out of the United States District Court for the District of Colorado, an applicant for social security benefits will no longer be precluded from bringing an ADA claim. However, the claimant must be careful to explain, in an adequate way, the reason for any representations to the social security administration that the plaintiff was incapable of working and therefore possibly also not a qualified individual with a disability under the ADA.

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