Legal E-Bulletin - April 2000

Note: the basis of the Supreme Court decision in Sutton v. United Airlines has been superceded by the ADA Amendment Acts of 2008, effective January 1, 2009.

PART III -  Issues Surrounding Questions About Mitigating Measures After Sutton v. United Air Lines

This is the third in a series of legal E-Bulletins that has been dedicated to analyzing the definition of disability under the Americans with Disabilities Act, before and after the United Supreme Courts decision in Sutton v. United Airlines.  The previous E-Bulletins covered the following definitional issues and can be found on our Web site at http://www.ilru.org/dbtac/materials.htmlor e-mail wendy@ilru.org and we will be glad to forward them to you.

February E-Bulletin:
Defining Disability Before And After Sutton V. United Air Lines
Part I: The Supreme Court's View Before Sutton

March E-Bulletin:
Defining Disability in Sutton v.United Airlines
Part II: The Supreme Court Opinion in Sutton v. United Air Lines
 

In This Edition:

PART III -  Issues Surrounding Questions About Mitigating Measures After Sutton v. United Air Lines

A.  Applying the Rule from Sutton v. United Air Lines

B.  The Sutton Rule Expounded in the Companion Cases
 1. Murphy v. United Parcel Service
  a. Background and Legal Issues
  b. Could UPS Have Reasonably Accommodated Murphy by Reassigning Marginal Driving Tasks?
  c. Applying the Sutton Rule in Murphy
  d. The Court did not Address the Inherent Conflict in the Decision-- UPS terminated Mr. Murphy because of their assessment of him in his "umitigated" state, then they defended their action by assessing him in his "mitigated state."
  e. The Sutton Rule and Being Regarded as Having a Disability
  f. Employer Offered its Own Evidence of its State of Mind and Uses the Employee Qualifications Against Him
  g.  Making sense of Murphy
 2. Kirkingburg v. Albertsons -- the Other Companion Case to Sutton
  a. Kirkingburg Resembles Murphy
  b.  The Sutton Rule and A Remarkable Argument
C. Sutton Raises New Issues Without Answers
 1.  Does a Court Consider Available but Unused Mitigating Measures?
 2.  How Current Is Current?
 3. Does the Court Consider Only the Ameliorating Effects of the Mitigating Measure?
 4. What Is a Mitigating Measure?
D. Conclusion

A.  Applying the Rule from Sutton v. United Air Lines

After the Supreme Court's decision in Sutton v. United Airlines the central question in every disability case is now "How will the new Sutton Rule be applied?"  In addressing this question there are a few principles from Sutton that must be kept in mind.  First and most obvious, is that disability status must be assessed with regard to the plaintiff's current condition with regard to mitigating measures.  Second and more subtle, one must keep in mind what Sutton does not hold.  Sutton does not hold that effective treatment for an impairment will always preclude an individual from having a disability. Also, the Court did not hold that a person whose impairment is fully mitigated by corrective measures is precluded from being regarded as or as having a record of a disability.

B.  The Sutton Rule Expounded in the Companion Cases.

The Supreme Court has already given some guidance about how to apply the new standard set forth in Sutton when it decided two companion cases along with Sutton.  The cases are Murphy v. United Parcel Service, 119 S.Ct. 2133 (1999) and Kirkingburg v. Albertsons, 119 S.Ct. 2162 (1999).

1. Murphy v. United Parcel Service

a. Background and Legal Issues.

The first of the companion cases is Murphy v. United Parcel Service (UPS).  In this case, an automobile mechanic with severe hypertension was terminated from his mechanic position because he was unable to obtain a U.S. Department of Transportation commercial vehicle drivers' certification.  Mr. Murphy was unable to obtain a Department of Transportation (DOT) certification because those regulations deem persons who have high blood pressure ineligible for certification.  Mr. Murphy did, however, take medications to bring his blood pressure within normal ranges.

Although UPS required that Mr. Murphy be certified to drive commercial vehicles, Mr. Murphy was not employed as a driver.  He was employed as a mechanic.  His primary job functions were to repair and maintain the vehicles.  Nevertheless, UPS required a Department of Transportation certification because an incidental aspect of his job was to test drive the vehicles he fixed.  Because the vehicles he repaired were commercial vehicles and the test drives were on the public roads, UPS maintained that he needed Department of Transportation certification.
 

b. Could UPS Have Reasonably Accommodated Murphy by Reassigning Marginal Driving Tasks?

If Murphy had fallen within the ADA's definition of disability, he might have been able to show that driving the vehicles was a marginal job function, which could be reassigned to others as a reasonable accommodation.  With such a reasonable accommodation, Murphy would have been able to perform the essential functions of this job, repairing and maintaining the vehicles.  However, the threshold issue (as always) was whether Murphy qualified as a person with a disability, as defined by the ADA.  If one does not meet the ADA definition of disability, he does not have the opportunity to request a reasonable accommodation and the employer is under no obligation to provide one.

c. Applying the Sutton Rule in Murphy

The Supreme Court used Murphy v. UPS to demonstrate how the Sutton Rule would be applied.  Without medication, the hypertension may have effected Mr. Murphy's ability to remain conscious, think, concentrate, apply mental focus, engage in even mild physical exertion and other activities.  Rather then viewing the effects of the impairment alone, without medication, the Supreme Court applied the new Sutton Rule and evaluated Mr. Murphy's condition, as it existed with the medication.

Because the medication effectively controlled the hypertension, the Court concluded that Murphy did not have a presently existing physical or mental impairment that substantially limited a major life activity.  The Court reasoned that when it took into account the mitigating measure of medication, Murphy's blood pressure was similar to that of a person without such an impairment.  Hence, the impairment had no substantially limiting effect on him.

d. The Court did not Address the Inherent Conflict in the Decision-- UPS Terminated Mr. Murphy Because of their Assessment of Him in His "Unmitigated" State, Then They defended their Action by Assessing Him in His "Mitigated State"

Murphy raises an interesting and unresolved problem:  The Court assessed the claimant's disability status with regard to the effects of medication, yet the employer made an adverse employment decision based on the employee's condition without regard to medication.  UPS did not fire Mr. Murphy because he was unqualified as a mechanic.  UPS agreed that he was a fine mechanic and had worked to the employer's satisfaction.  UPS fired Mr. Murphy because the existence of his hypertension, without the mitigating factor of medication, limited his ability to drive commercial vehicles.  The impairment was the reason that he was discharged, yet the impairment did not affect  his ability to repair and maintain vehicles.  This seems to be the type of discrimination the ADA was intended to prevent - discharge from a job because of health conditions that do not affect one's ability to do their job.  However, Murphy did not resolve this conceptual problem with the Sutton Rule.

e. The Sutton Rule and Being Regarded as Having a Disability

In Sutton, the Supreme Court left open the possibility that a person who is unable to show he has an existing disability may still be able to show that he has a history of disability or is regarded as having a disability.  The plaintiffs in Sutton did not allege that they were regarded as being disabled, so the court never considered that issue.  However, in Murphy the plaintiff did make the alternative argument that the employer had regarded him as being disabled, namely that the employer regarded him as limited in the life activity of working as a mechanic.

The Court, however, concluded that there was no evidence to show that the employer regarded the plaintiff as being limited in the life activity of working.  Like intent, proving that someone regarded another as being disabled is very difficult to prove with direct evidence, because it involves a subjective state of mind.  Generally, a party will have to show the state of mind or mental attitude through circumstantial evidence, such as conduct or comments.  In Murphy no such evidence was presented.

f. Employer Offered its Own Evidence of its State of Mind and Uses the Employee Qualifications Against Him

In Murphy, UPS offered affirmative evidence that it did not regard the plaintiff as disabled. Rather, they offered, that they regarded the plaintiff as being unqualified because he lacked an essential qualification, namely the Department of Transportation certification.  The employer advanced the curious argument that Murphy was a very skilled mechanic and would be able to work almost anywhere, except for UPS.

The employer's argument is curious because the employer is able to use the employee's qualifications against him.  Generally an employee will offer evidence of his qualification to show that he is a qualified individual with a disability and therefore within the protected class of individuals.  In Murphy, however, the employer used the employee's qualifications to show that Murphy was able to find other work in similar positions.  By doing so, the employer showed that Murphy was not substantially limited in the life activity of working because the impairment did not prevent him from performing a class or range of jobs.

Another lesson one can take from these cases is that working should be alleged as a major life activity that a claimant is limited in, only if they are not limited in any other major life activities. The EEOC clearly specified this in its regulations and technical guidance. Indeed, if Murphy had identified a life activity other than working (such as maintaining concentration, applying mental focus, etc.) the outcome might have been different. Individuals who only allege that they have a disability which substantially limits their ability to work encounter tremendous evidentiary burdens because they have to establish that they are significantly restricted in their ability to perform a class or broad range of jobs.  This surprisingly strict regulatory requirement often makes it difficult for a plaintiff who has been subjected to an adverse employment action because of a work disability to establish the full range of jobs in which their performance would be restricted.

g.  Making sense of Murphy

Murphy is hard to reconcile with the principles of the ADA because the plaintiff's condition did not effect his ability to do his job as a mechanic, nor did the employer claim that it did so.  If one views this case as a ruling on the qualifications of the claimant, it may make more sense.  The court appears to be saying that if an individual lacks a specific requirement for employment, the reason the individual lacks the requirement is irrelevant.  A person who lacks Department of Transportation certification is not qualified for the job, whether or not the reason he cannot obtain it is due to disability.  A person with a disability who is denied a job because they lack  Department of Transportation certification is not being treated differently, if he is treated in the same way as a non-disabled person who also lacks a certificate.

One issue not addressed in Murphy was whether the ability to test drive vehicles was a bonafide essential job function or whether it was a marginal function which could have been reassigned to other workers.  The Court never had the opportunity to analyze that question because it was unable to find, on the evidence presented, that Murphy was a person with a disability under the Sutton Rule and within the protected class. In Kirkingburg, another companion case decided along with Sutton and Murphy, the Court addressed similar issues where Department of Transportation certification was essential to the job.

2. Kirkingburg v. Albertsons -- the Other Companion Case to Sutton.

a. Kirkingburg Resembles Murphy

The facts in Kirkingburg v. Albertsons closely resemble those in Murphy.  In Kirkingburg, the claimant was a driver of a commercial vehicle for Albertson's Grocery Stores.  As a commercial vehicle driver, Mr. Kirkingburg was required by law to have a valid Department of Transportation certification.  Kirkingburg could not meet the general Department of Transportation vision standard because he was essentially blind in one eye, giving him monocular vision.  Albertson's fired Kirkingburg because he did not have a valid Department of Transportation certificate.  However, Kirkingburg later obtained a waiver from the Department of Transportation, which meant that he was not required to have certification.  The waiver was issued under a special program designed to collect information on transportation safety.  An applicant who did not otherwise meet the general standards could obtain a waiver if he could show that he had safely operated a commercial vehicle for a period of time.

Albertson's still refused to rehire Kirkingburg because he lacked Department of Transportation certification, despite the fact that he had obtained the Department of Transportation waiver.  Kirkingburg sued, claiming that the refusal to hire was based on disability because, with the waiver, he was licensed and permitted to operate commercial vehicles.

As with all ADA cases, the first issue the court considers is whether the claimant meets the ADA definition of disability.  In Kirkingburg, the employer's arguments on this issue are peculiar.  The employer claimed that Kirkingburg was ineligible to work because of his poor eyesight--a substantial reduction in peripheral vision and depth perception.  Yet, the employer later argued that it did not discriminate based on disability and that, in fact, Kirkingburg's vision impairment was not substantially limiting and, therefore not a disability.

b.  The Sutton Rule and A Remarkable Argument

How can such contradictory statements by the employer be considered consistent with each other and consistent with the law?  The Sutton Rule played a role in the advancement of these arguments.  If the claimant undertook some measure that mitigated the effects of the vision impairment, the claimant's disability status would be evaluated in that mitigated state.  However, there is not a corrective lens (as in Sutton) that could adjust, correct or mitigate the claimant's loss of vision in one eye.  However, the employer argued that by some unspecified organic mechanism, the claimant's brain had retrained itself to process the images viewed by one eye as if viewed by two.  The employer argued that without the use of medications or devices the claimant, through some internal process, had self- compensated for the loss of vision in one eye and was able to see as if he had two eyes.  The effect of this unspecified brain retraining was that the depth perception and peripheral range of the claimant was not substantially limiting.  It appears remarkable that the defendants made this argument and equally remarkable that the Supreme Court accepted it.

The Court concluded that although Kirkingburg applied no external mitigating measure to his vision, there was some unspecified internal mechanism that compensated for the loss of vision in one eye and he therefore did not experience the loss of depth perception or peripheral field that others with a similar condition might experience.  The Court acknowledged that Kirkingburg may have been a unique case, and that most other persons with monocular vision will likely be disabled because they will be able to show the loss of depth perception and horizontal field.

C. Sutton Raises New Issues Without Answers

The Sutton Rule raises new uncertainties.  Because all but one of the Circuit Courts of Appeal that considered the issue of mitigating measures before Sutton had arrived at a contrary conclusion, the circuit courts are now trying to reform their jurisprudence to conform with the Supreme Court's view of the ADA.  The Sutton Rule also raises some new questions that do not yet have answers.

1.  Does a Court Consider Available but Unused Mitigating Measures?

 The Sutton Rule generally directs lower courts to assess disability status with regard to currently available mitigating measures.  One new question is whether a court should consider mitigating measures that are available, but that the person chooses not to use.

At least two courts have already addressed this.  In Finical v. Collections Unlimited, Inc., 65 F. Supp. 2d 1032 (D. Ariz. 1999), the court was presented with a telephone collections operator with a hearing impairment.  The employer terminated the operator because of her hearing impairment.  Yet when the operator sued under the ADA, the employer argued that the claimant was not disabled and therefore not entitled to make a claim under the ADA.

The employer argued that according to Sutton, the employee should be evaluated with regard to available mitigating measures.  Because the use of a hearing aid may mitigate the effects of the claimant's impairment, the employer argued that the claimant's disability status should be evaluated as though it were mitigated by a hearing aid.  However, the claimant did not use a hearing aid at the time of the adverse employment decision.  The plaintiff chose not to use a hearing aid because it amplified all sound, including background noise, which was uncomfortable and annoying.

The employer presented evidence that at the time of employment termination, the plaintiff's doctor had recommended she use a hearing aid, and that she would benefit from the use of a hearing aid.  Consequently, the employer contended that the court should consider the measures that were prescribed by a healthcare professional and that would benefit the plaintiff, even if the plaintiff chose to disregard the medical advice.

The implications of this argument are significant.  The employer took the position that it and the court are entitled to look beyond an individual's decision regarding his healthcare and treatment options.  If this argument were successful, courts and employers would be entitled to second guess treatment decisions.  Courts and employers would be able to deprive a person of disability status because they disagree with the course of treatment the individual has chosen for herself. This argument, when combined with Sutton, would foreclose any opportunity for disabled persons to claim under the ADA.  If an individual did use an effective mitigating measure, the Sutton Rule would be applied to deem him not disabled.  If an individual did not use a mitigating measure, but a mitigating measure may be available, he would not be able to claim under the ADA.  This argument was not successful in Finical.

In Finical, the Court applied Sutton, but did so in a more careful manner than suggested by the defendant.  In Sutton, the court rejected any hypothesizing about how the person's impairment would affect him if he did not use mitigating measures.  Instead, Sutton strongly held that the plaintiff must be evaluated as he is, even if that included the effects of some mitigating measure.  The Court in Finical concluded that Sutton precludes consideration of measures that the claimant hypothetically could or should use.  To consider how Finical might be able to hear with a hearing aid, when she does not regularly use one, was only speculation.  A case-by-case evaluation of the effects of an impairment on an individual does not permit speculation as to what his condition might be like if he did use a mitigating measure.  To evaluate the potentially corrected state of the claimant with available but unused measures would be just as speculative as evaluating the uncorrected state of a person who does use mitigating measures.

Not all courts apply this same reasoning.  In Spradley v. Custom Campers, 68 F. Supp. 2d 1225 (D. Kan. 1999), the plaintiff had a seizure disorder.  His doctor prescribed medication to treat the disorder, but the claimant apparently did not take the medication as prescribed.  Consequently, he suffered seizures with a greater frequency then predicted, if he had taken the mediation as prescribed.

The Court concluded that if the plaintiff had taken his medication as prescribed, he would have had fewer seizures and therefore would not have experienced a substantial limitation in any major life activity due to the seizure disorder.  The court indicated that it would consider the mitigating effects that could have been achieved had the plaintiff taken medication. The consideration of mitigating measures that could have been used denies this claimant any argument for coverage under the ADA.  If he had taken the medication as prescribed and controlled his seizures, the court would have found that he was not covered by the ADA.  If he did not take the medication, as prescribed, to control the seizures, he would not be covered under the ADA because, it appears. he could have controlled the symptoms.  Either way, the court precludes this claimant from being covered under the ADA.

2.  How Current Is Current?

Sutton speaks of "currently used mitigating measures", but what does current mean?  The court's determination of disability status will necessarily refer to the time at which the adverse employment decision occurred.  Because the crucial point in time, in any discrimination case, is the time that the discrimination occurred, "current" must be interpreted to refer to the time of the discrimination.  Whether a claimant is within the protected class of disabled persons at the time of trial, summary judgment, or other judicial or administrative proceeding is irrelevant.  The court in Taylor v. Phoenixville School Dist., 184 F.3d 296 (3rd Cir. 1999) concluded that, when applying Sutton to evaluate the disability status of the plaintiff, the court must look to the effects of the impairment on the individual at the time of the alleged discrimination, not three years later when the matter is presented in court.


However, the critical determination is not only whether there is a presently existing disability at the time of the discrimination, but whether the claimant is within any of the three definitions of disability at the time of the discrimination.  For example, in EEOC v. R. J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999) the court found that the claimant did not have a disability at the time of the discriminatory discharge.  However, the claimant could still be considered to have a disability under the ADA at the time of discharge, because there was sufficient evidence to support a finding of a record of disability and a finding of being regarded as disabled at the time of the discharge.

3. Does the Court Consider Only the Ameliorating Effects of the Mitigating Measure?

Another issue raised by Sutton is whether the court should only consider the ameliorating effects of the mitigating measure, or whether the courts should also consider the adverse side effects of the measure.  Sutton itself indicates that the effects of the measure, both good and bad must be considered when assessing disability status.  In Taylor, the court had issued its opinion about the claimant's disability status before Sutton was decided.  It assessed whether the claimant's bipolar condition was substantially limiting without regard to the mitigating effects of medication.

The court later reconsidered its decision in light of Sutton and reassessed the claimants condition with regard to the effects of the medication used to treat her condition.  The court ruled that the evidence was sufficient to show that the medication reduced the symptoms, but did not cure the condition.  The medication also had substantial side effects such as nausea, diminished mental focus, impaired memory, and problems in thinking.  The court concluded that the side effects of mitigating measures should be considered along with their other effects. If the side effects cause substantial limitations in a person's major life activities, then the individual may still have a disability.

Similarly, in EEOC v. R. J. Gallagher, the side effects of the mitigating measures were considered by the court.  Although the court did not find the claimant to have an existing disability at the time of the discrimination, the court found that the adverse effects of his cancer and cancer treatment, which occurred before his cancer went into remission, were sufficient to create a history or record of disability.

4. What Is a Mitigating Measure?

Sutton makes a distinction between curative measures and compensating measures.  However, the court gives no genuine guidance on how to distinguish between these different measures.  It did not define what is and what is not a mitigating measure.  The Supreme Court suggested in Sutton that curative measures and measures that reduced the symptoms caused by the impairment are mitigating measures.  In the example before the court in Sutton, eyeglasses were a mitigating measure because, according to the court, they corrected the vision impairment. [Of course one could argue that because the eyeglasses do not produce any physical or physiological change in the body, they are not truly curative or relieving of the symptoms.  The vision impairment still exists despite the use of the lenses.]

The court seems to make a distinction between curative measures and compensating measures.  In Sutton, the court (in response to concerns raised by the dissenting opinion) distinguished curative measures from devices such as wheelchairs.  The majority of the court observed that a person who cannot walk may compensate for that inability by using a wheelchair for mobility, but that the wheelchair does not enable the person to walk.  The court seems to be distinguishing between measures that cure or affect the impairment itself, and other measures that do not cure or affect the impairment directly but merely compensate for the inability to perform a particular life activity.

However, the distinction between curative measures and compensating measures does not explain the holding in Kirkingburg, where the court accepted that a mitigating measure which should be taken into account is an intangible process within the claimant's brain that adjusted for the loss of vision in one eye.

D. Conclusion

In the wake of Sutton, Murphy and Kirkenburg:

  • Disability status should be assessed with regard to the plaintiff's current condition after factoring in the effect of mitigating measures.
  • A person whose impairment is fully mitigated by corrective measures may still be able to show that he has a history of disability or is regarded as having a disability.
  • Consider mitigating measures that the person is using at the time of the alleged discriminatory incident.
  • Consider the side effects of any mitigating measures a person is using.
  • Distinguish between "curative" and "compensatory" measures. In Sutton, the Court seems to be distinguish between measures that cure or affect the impairment itself, and other measures that do not cure or affect the impairment directly but merely compensate for the inability to perform a particular life activity.
  • Working should be alleged as a major life activity that a claimant is limited in, only if they are not limited in any other major life activities (Lesson from Murphy--if he had identified a life activity other than working, such as maintaining concentration, applying mental focus, etc. the outcome might have been different).

This has been the third part of a discussion of the definition of disability pre- and post-Sutton.  As the courts continue to refine the definition of disability under the ADA we will continue to keep you posted as to the latest developments. If you have questions about the issues discussed here please e-mail them to wendy@ilru.org.


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