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Note: the basis of the Supreme Court decision in Sutton v. United Airlines has been superceded by the ADA Amendment Acts of 2008, effective January 1, 2009.

Defining Disability Before And After Sutton V. United Air Lines

Part I. The Supreme Court's View Before Sutton.


Ten years after the enactment of the Americans with Disabilities Act of 1990, the most hotly contested issue in disability rights remains who is covered by the law.  Showing that one is entitled to the protection of the ADA is the first threshold that an individual must cross before even having the opportunity to reach the substantive issues of discriminatory treatment based on disability.  The issue of disability status does not go to the merits of the claims of discrimination, rather it goes only to the issue of whether the aggrieved person is entitled to have his claim heard.

Proving disability status is different from proving membership in other protected classes. The definition of disability status is different.  Unlike other protected classifications, proving disability status often requires more than the self-evident assertion that the claimant is in the protected class.  Rather, the civil rights claimant with a disability must produce affirmative and substantive evidence regarding his medical condition, the manner in which the condition affects his life and the degree to which he experiences limitation just to establish the threshold fact that he is a disabled person and has the right to have his claim heard.


(1)  Rehabilitation Act has Precedential Value in ADA Cases

The Supreme Court's first look at the definition of disability was in School Board of Nassau County v. Airline, 480 U.S. 273 (1987), which was a case brought under the Rehabilitation Act of 1973.  29 U.S.C. d794.  Although not brought under the ADA, this case is good authority for ADA cases because the statutory and regulatory definition of disability under the Rehabilitation Act is identical to the language under the Americans with Disabilities Act and its implementing regulations.  Moreover, the ADA specifically provides that the ADA should be construed in concert with and provide no less protection than the Rehabilitation Act.  Also, the Supreme Court has relied on the Rehabilitation Act regulations, even in ADA cases, to better understand what Congress knew and intended at the time the ADA was adopted.  See e.g., Bragdon v. Abbott, 524 U.S. 624 (1998).

(2) Airline Suggested That Disability Status Did Not Require Onerous Proof

Airline suggested that disability status did not require onerous proof.  Evidence of a substantial limiting impairment was sufficient to raise a genuine issue of material fact of disability.  A material issue of genuine fact will not assure that the plaintiff would prevail, but it will allow the plaintiff to proceed and have the issue submitted to the judge or jury at trial for a finding of fact.

(3) Challenge of Disability Status was Perhaps the only Defense in Airline

In Airline, the plaintiff was infected with and hospitalized for treatment of tuberculosis in 1957.  The tuberculosis went into remission and became active again twenty years later when the plaintiff was a schoolteacher.  After her second relapse with tuberculosis, she was fired.  Airline, (480 U.S. at 276).  There was no dispute that the sole reason for her suspension and discharge was her illness.

The employer, however, claimed that the discharge was not discriminatory because (it contended) a person with a contagious disease was not a person with a disability.  It is important to note that this defense, which is the same tactic used in defending Americans with Disabilities Act claims, was perhaps the only option available to the defendant given the factual context of Airline.  Because there was no dispute that the employer was motivated by the plaintiff's health condition, the employer would have been liable for unlawful discrimination if that health condition was found to be a disability within the Act's definition of disability.

(4) Airline Had a Presently Existing Disability under All Three Definitions of Disability

(a)  Presently Existing Disability.

The Supreme Court in Airline had no difficulty finding that the teacher with tuberculosis was disabled under each of the three definitions of disability.  Under the first definition of having a physical or mental impairment that substantially limits a major life activity, the supporting evidence was simple and direct.  The presence of the infection and acute condition were sufficient evidence to support a finding that she had an impairment.  A couple of lines from the treating physician's testimony provided enough evidence on this point. The fact that the condition required hospitalization was sufficient to support the element that one or more major life activity was substantially limited.  (Id.  at 280).  The court did not identify what life activity was effected, but it would presumably be fair to conclude that breathing was affected by the tuberculosis.  The hospitalization was sufficient to support a finding that the plaintiff was unable to care for herself.

(b)  Record of Disability.

With regard to the "record of such an impairment" definition of disability, the Supreme Court concluded that the plaintiff's hospitalization twenty years earlier was sufficient to support a finding that the plaintiff had a record of a disability (Id. at 281)  Circuit Courts have in ADA cases, retreated from this holding by the Supreme Court, stating that an individualized assessment requires the plaintiff to also produce evidence of how and whether the hospitalization limited major life activities.  Where the hospitalization is required to administer aggressive treatment, Courts have found sufficient facts to support a finding that the hospitalization was itself a substantial limitation on life activities.  See e.g., EEOC v. R. J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999).

(c)  Regarded as having a Disability.

The evidence in Airline in the reported opinion was somewhat unclear about whether or to what degree Airline's tuberculosis was contagious.  The Court, however, seemed unconcerned over whether there was or was not evidence of contagion.  Here the court expresses a deep sense of understanding of the nature of discriminatory attitudes and the purpose for enacting the anti-discrimination statutes.  The court accepted the premise that the accumulated myths and fears about illnesses can be as limiting as the actual physical limitations that flow from the condition itself.  Airline, (480 U.S. at 284).  Whether Airline was or was not contagious was not as relevant as whether the employer perceived her as contagious and regarded her as being unable to doing the things required of a teacher.  If the employer treated her as a person with a disability, then she is within the definition of disability, even if the assumptions made by the employer were incorrect.

(5) A Parting Lesson from Airline

Airline suggested that the amount of evidence required to support a finding of disability was not particularly onerous.  Evidence to support the essential elements of the definition under the opinion in Airline should at least survive a motion to dismiss and a motion for summary judgment filed by the defendant.  If such evidence is ultimately insufficient to prevail at trial, it should at least permit the claimant to proceed to trial and allow the fact finder to decide the questions of fact.  In Airline, the Court concluded that if the definition of disability were read to exclude persons whose condition was a health or safety risk, then the individuals "would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were 'otherwise qualified.'  Rather they would be vulnerable to discrimination on the basis of mythology -- precisely the type of injury Congress sought to prevent."  Airline, 481 U.S. at 285.  This holding will later be very difficult to reconcile with Sutton v. United Air Lines, 119 S.Ct.  2139 (1999).  Before deciding Sutton, the Court considered an individual with HIV infection in Bragdon v. Abbott, 524 U.S. 624 (1998).


(1) Bragdon Substantially Follows Airline

When the Supreme Court again addressed the definition of disability ten years later in Bragdon v. Abbott, 524 U.S. 624 (1998), the plaintiff had asymptomatic HIV infection.  While asymptomatic HIV infection is a phase of the disease that does not produce any outward manifestations of the condition, the infection still causes discernible physiological effects on the individual with HIV.  One of the effects is the substantially limited ability to procreate.  In Bragdon, the Court followed reasoning that was suggested in Airline.  First, it looked to evidence that showed that the discernible physiological effects of HIV infection in the body were immediate upon infection and were predictable and unalterable (Id. at 633).  Therefore, the infection was a physical impairment from the moment of infection. (Id. at 637.)

(2) Court Develops an Analysis to Determine Which Life Activities Are "Major"

The plaintiff argued that reproduction was the one major life activity affected by the HIV infection.  (Id. at 637)  The Court noted that it was perhaps too legalistic to consider only the effects of HIV infection on reproduction because HIV infection has a profound impact on almost every phase of an infected person's life (Id. at 637).  The Court willingly accepted that HIV affects major life activities other than reproduction.  The Court also expressed its certainty that had another plaintiff with HIV infection brought a similar action they would have been able to maintain that HIV affects other major life activities  (Id. at 637).

While the court was willing to accept that reproduction is a major life activity, it nevertheless conducted an analysis that is a useful illustration.  The Court noted that the statute does not define major life activity, but accepted the regulatory definition.  It reasoned that the term "major" connotes comparative importance or significance (Id. at 638.)  The Court then compared the importance of reproduction to the illustrative list of life activities in the regulations.  If the activity that the impairment limits is at least as important as those listed in the regulations, then the activity will be a "major life activity."  In the instance of reproduction, the Court had "little difficulty" concluding that reproduction was at least as important as working and learning-- two of the representative major live activities listed in the regulations.

(3)  No Arbitrary Limits on the Types of Activities That Can Be "Major"

An important conclusion in Bragdon is that there are no arbitrary limits on the types of activities that can be "major."  The defendant in Bragdon claimed that life activities must have a public, economic or daily activity to be considered a major life activity (Id. at 638.)  The Supreme Court rejected any limitation to the meaning of major life activity other than the limitations expressed in the statutory language.  A life activity does not need to be economic, public or daily to be "major."  The activity need only be comparatively important in the individual's life.  Walking generally is a major life activity, and is not limited to only walking in public or walking for economically motivated purposes (Id. at 639).  Bearing children is a major life activity, even though it may occur only once in a person's life.

Nothing in the regulation's representative list of activities or the statute suggest that only activities that have economic value are life activities.  The argument that life activities need to have a economic character is especially insidious in the potential that this argument has to undermine the ADA.  If life activities were limited to economic activities such as working, purchasing goods and services or making other transactions, it would eviscerate the Americans with Disabilities Act protections.  Limiting life activities to economic activities would limit the meaning of life activities to essentially the types of activities that would qualify individuals for work, or qualify them for access to public accommodation or other programs and activities.  If "major life activities" included only those activities that would also make the individual a "qualified individual," then there would be no way of obtaining protection under the Act.  There would be no protection, because the plaintiff would be limited to showing that the impairment limited activities that would qualify him, then the same evidence that proved disability status would simultaneously prove that he is not a qualified individual.  The Court rejected this argument, although not specifically for this reason.  In any event, it is an important addition to the disability rights jurisprudence that life activities are not limited to any particular category of activity, rather the activity merely needs to have comparative importance.

(4) Substantial Limitation Is Not Only Physical Inability or Physical Restrictions

(a)  Substantial Limitation Is Not Utter Impossibility

Another important aspect of the Courts decision in Bragdon is the types of evidence that are considered to determine whether an impairment is substantially limiting or not.  The court made plain that physical impossibility is not the correct legal standard.  (Bragdon, 524 U.S. at 641).  In Bragdon, the Court acknowledged that HIV infection did not make it physically impossible to engage in sexual relations.  Nor did HIV infection make it utterly impossible to conceive and bear children.  Physical impossibility is not the correct legal standard.  Rather the Court only required evidence of a substantial limitation.  The court concluded that an approximately 20 to 25% (or more) risk of transmitting HIV infection to sexual partners or to offspring was enough risk to be a substantial limitation on the major life activity of procreation.  The court also considered that a risk as low as 8% would still be a substantial limitation.  The court did not limit its analysis to only factors that related to the physical limitations or risks.

(b) Proper to Consider Factors Other than Direct Physical Limitation on the Individual

The court also looked to social, economic, legal and other contextual factors to determine if the limitation was substantial. (Id. at 641).  In the case of HIV infection, the Court looked beyond the medical and physical impact on the individual, and considered the context in which the impact occurred.  It considered evidence of the effect of HIV infection on the general state of public health as evidence in favor of finding that HIV was substantially limiting.  The Court also considered evidence the resulting expensive insurance and medical treatment for the offspring or partner who may potentially become infected to be relevant factors to determine the substantially limiting nature of the condition.  The court noted that some jurisdictions have laws that prohibit even consensual sexual intercourse, and that this legal or social restriction on the life activity of procreation must be taken into account to determine if the restrictions on the life activity are substantial.  Therefore, a substantial limitation is determined not only by the utter inability to perform the life activity in question, but by the adverse consequences that would occur from attempting or engaging in the life activity.

(c) Bragdon Did Not Consider Mitigating Measures of Anti-Viral Therapies

In Bragdon, the defendant argued that with the mitigating measure of anti-viral therapies, the risk of cross infection is not so high as to be substantial.  With antiviral therapies, the risk of transferring the HIV infect to offspring is closer to 8%.  The Court specifically stated that it was not then deciding the issue of whether an individual's disability status should be determined with or without regard to mitigating measures (Id. at 640).  The Court's holding, however, suggests that an impairment is evaluated with reference to the impairment alone.  After all, the court was presented with evidence of the mitigating effects of anti-viral therapies, but decided the case based on the effects of the impairment alone, without regard to mitigating measures.

(5) Bragdon suggests that Mitigating Measures are not considered in determining Disability Status

In Bragdon, the Supreme Court decided that asymptomatic HIV infection was a disability from the moment of infection even though the plaintiff had no outward symptomatic expression of the condition (Id. at 637).  If a person with asymptomatic HIV infection is a disabled person because of the mere presence of the impairment without symptoms, then it would follow that a person who has an impairment present but which manifests no symptoms because of medication would similarly have a disability.  Indeed, the language of the statute suggests that the individual should be assessed without regard to mitigating measures.  The definition of disability is "an impairment" that substantially limits a major life activity, not "an impairment as treated" or "an impairment as mitigated."  Considering that earlier in Airline the Court did not even mention the effects of treatment, and it found Airline to be disabled by virtue of having a history of a substantially limiting impairment even during the twenty years that the tuberculosis infection was in remission, the Court seemed to be moving to the conclusion that disability status is determined without regard to mitigating measures.

While the Court seemed to suggest in Bragdon and Airline that an individual's disability status would be assessed without regard to mitigating measures, the Court took a surprising turn in Sutton v. United Air Lines.



A. Sutton v. United Air Lines: Is it a Departure from or an Extension of Precedent?


B. Pleading and Proving an Individual Has a Disability after Sutton v. United Air Lines

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