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Note: the basis of the Supreme Court decision in Sutton v. United Airlines has been superceded by the ADA Amendment Acts of 2008, effective January 1, 2009.



If you missed last month's bulletin here is a review:


1. Supreme Court Heard a Trilogy of ADA Cases in the 1999 Term.

In mid 1999, the Supreme Court granted certiorari in three separate ADA cases.  The cases presented similar issues of law related to who is a qualified individual with a disability under Title I of the ADA.  These three cases areSutton v. United Air Lines, 119 S.Ct. 2139 (1999); Murphy v. UPS, 119 S.Ct. 2133 (1999); and Kirkenberg v. Albertsons 119 S.Ct. 2162 (1999).  Each of these cases involved disabilities that affected a person's ability to meet minimum physical standards for the purpose of the safe operation of commercial vehicles.  Sutton v. United Air Lines is the first and most significant of the three cases.

It is tempting to view Sutton more broadly than its holding actually permits.  Many disability advocacy groups have considered Sutton to be a substantial retreat from the Court's early decisions in Arline and Bragdon. Groups that oppose or defend claims of employment discrimination are pleased to encourage the perception that Sutton precludes many claims of disability discrimination.  Sutton was obviously a decision against the plaintiffs, but to understand what effect Sutton will have on future claims requires a clear understanding of the narrow scope in which Sutton was decided.

2. The Procedural Posture in Sutton Markedly Narrowed the Issues.

Before looking at how the Court made its decision, it is important to place the decision into the proper  procedural context so that its limitations can be better understood. The issue before the Court was whether the case was properly dismissed by the district court.  A Motion to Dismiss in federal court under Federal Rule of Civil Procedure 12 entitles the district court to dismiss a complaint, if the allegations fail to state a claim for which relief can be granted.  The well established law requires the district court a take all the factual allegations stated in the complaint as true and determine whether the law would permit a recovery if the plaintiff were to prove every allegation made.  Sutton is really about what must be alleged to support a claim under the ADA.  The district court, the court of appeals and Supreme Court were limited by the allegations as they appeared in the complaint.  There was no evidence on the merits.  The only issue is whether the facts as alleged in the complaint were sufficient to support the specific ADA claims stated in the complaint.  Because the Court was limited to the plaintiff's complaint, it only considered the facts as they were alleged and considered only whether those facts would support the claims, as they were alleged by the plaintiffs.  Sutton may be better described as a case that decided whether the plaintiffs properly pleaded their claims, rather than whether the plaintiffs were disabled.  Had the case been pleaded differently, the outcome may have been different.

3. Plaintiffs in Sutton Pleaded Their Disability in a Certain Way.

As another preliminary matter, it is also important to remember that the ADA has three separate definitions of disability.  With regard to an individual, the term disability means "a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment". In Sutton, the plaintiffs alleged disability status in two ways.  The plaintiffs alleged under 42 U.S.C. (A) that they had a substantial limitation in the major life activity of seeing, and were regarded as having a substantial limitation in the life activity of working.  There was no allegation that the plaintiffs had a record of a substantially limiting impairment under (B), and there was no allegation that the plaintiffs were regarded as having a substantial limitation in the life activity of seeing. Before assessing the claims, the court had to first decide whether to assess disability status with or without regard to mitigating measures.

4. Sutton Raises the Issue of Whether to Consider the Effects of Mitigating Measures.

Sutton v. United Air Lines involved two applicants for the position of commercial airline pilot.  The two applicants had severe myopia causing their visual acuity to be about 20/200 without corrective lenses.  Their vision was corrected with lenses to 20/40, which is near perfect vision.  United Airlines requires that applicants for the position of global airline pilots have at least 20/100 visual acuity without lenses to be qualified for consideration.  The major issue in Sutton was whether to assess the plaintiffs' disability status with or without regard to mitigating measure, such as eyeglasses, medication, treatment, prosthetics or other therapies.  The difference is obvious.  Without the corrective lenses, the applicants had very poor eyesight which would most likely be considered as a substantial limitation in the life activity of seeing.  However, with the corrective lenses, the applicants had near perfect vision with no substantial limitation on their ability to see.

Considering mitigating measures makes a difference in whether the claimants were or were not within the class of persons who can claim under the ADA.  If viewed with the mitigating measure of eyeglasses, the plaintiffs would have no disability and they would not be covered by the ADA's protections.  Without a disability, a person cannot state a claim under the ADA and can obtain no relief under the ADA.  The claims of a non-disabled person are subject to dismissal under Rule 12, because a non-disabled person cannot state a claim under the ADA.

5. Reasons Why the Court Found the Disability Status Is Determined With Regard to Mitigating Measures.

The Supreme Court sited three reasons for its conclusion that disability status is determined with regard to mitigating measures.  First, the Court found the agency regulations are not entitled to deference because no agency was given the authority to promulgate regulations on the definition of disability and because administrative interpretations were not reasonable given the language of the statute.  Second, the Court considered the legislative history to be irrelevant because it considered the statutory language to be unambiguous, and therefore it did not have to look behind the language to find the congressional intent.  Third, the Court concluded that if the definition of disability included persons whose conditions could be mitigated, the number of disabled persons would greatly exceed the 43 million disabled persons - which is the number of persons that Congress found to have disabilities.

  (a) Are the Administrative Regulations Really Unreliable?

In Sutton, the Supreme Court attached special significance to the fact that the definition of disability is set forth in the introductory section of the ADA, which has not been assigned to any executive agency for enforcement or interpretation.  Although no executive agency has the expressed authority to promulgate regulations interpreting the introductory section, each agency with enforcement authority has interpreted the definition of the term "disability" because the term is used throughout the various titles for which the agencies have the expressed congressional regulatory authority.  All of the executive agencies that have regulatory authority under the ADA have interpreted the definition of disability in the same way - that disability status is determined without regard to mitigating measures.  See e.g., EEOC Regulations at 29 C.F.R. 1630.2(j); and DOJ Regulations at 28 C.F.R. 35.104.

  (b) Court Previously Relied on EEOC and DOJ Regulations and Judicial Precedent Regarding the Definition of Disability.

The Supreme Court's opinion in Bragdon suggested that the Court would have given deference to the regulatory interpretation.  In Bragdon, the Court stated that it is reasonable to draw guidance from the regulations.  Indeed in Bragdon the Court relied on the EEOC and DOJ regulations interpreting the definition of disability and considered them to be a reliable source of guidance.  Bragdon, 118 S.Ct. at 2209. On this point, the Court in Sutton appears to be departing from its holding in Bragdon.  The Court in Sutton found no reason to accord deference to executive agency interpretation of the meaning of disability and held that the regulatory interpretation of disability is "unreasonable".  As a result, it is difficult to know the weight that should be given to regulations.  Perhaps the line will be drawn between those regulations which have been expressly authorized by Congress and those which are not.  Regulations that are not expressly within Congress's delegation of authority are not necessarily entitled to deference.

 On a similar point, the Court in Bragdon considered the weight of prior judicial interpretation an important factor in finding that HIV infection was within the definition of disability. Bragdon, 118 S.Ct. at 2207-08.  In Bragdon the court recognized the prior judicial opinions holding that HIV infection is a disability under the ADA.  Prior to Sutton, all of the circuit courts that had previously addressed the issue, of mitigating measures have found that such measures should not be considered when assessing a persons disability status. See Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321, 329 (2nd Cir. 1998); Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 937-938 (3rd Cir. 1997); Arnold v. United Parcel Service, 136 F.3d 854, 859-866 (1st Cir. 1998); and Washington v. HCA Health Serv., 152 F.3d 464, 470-471 (5th Cir. 1998).  Yet in Sutton, the Court was unaffected by the weight of prior executive and judicial authority.

 In Bragdon, the Court also gave considerable weight to the statutory and regulatory definition of the term "disability" under the Rehabilitation Act and the Fair Housing Act that existed at the time the ADA was adopted.  In Bragdon, the Court reasoned that when Congress repeats the same language in a statute it presumably intends to incorporate the judicial and administrative interpretations of that language that exist at the time.  When the ADA was adopted in 1990, there was already an understanding that disability status would be assessed without regard to mitigating measures.  However, in Sutton, the Court did not even consider whether the Rehabilitation Act or the Fair Housing Act Amendments (which were adopted before the ADA and used the identical language to define disability) assessed disability status without regard to mitigating measures.  The Court seems to depart from its precedent in Bragdon, at least in terms of the analytical tools and methods it uses to interpret the ADA.

6. Textual Argument Most Persuasive.

  The Court was persuaded by the employer's textual argument. The statue states that an impairment is a disability if it "substantially limits a major life activity."  The Court reasoned that this language requires a presently existing limitation, not a limitation that would hypothetically exist assuming the claimant did not treat the condition with medication or use some other aid or device.  The Court's reasoning does not necessarily compel a single conclusion.  The same reasoning could have gone in the opposite direction.  The text of the statute provides that the "impairment" must be substantially limiting. The language of the statue itself seems to limit the analysis to the effects of the impairment alone - not the impairment plus mitigating measure.  The statute does not require that the "impairment with treatment" or the "impairment with mitigating measures" be substantially limiting.  The Court's reasoning could just as easily be applied to look at the effects caused by the impairment alone, not the effects that might not or would not exist if the impairment were treated.  Perhaps a textual analysis could have just as easily driven the opposite conclusion.  However, the plaintiffs apparently did not advance their own textual argument. In any event, the Court reasoned that the plaintiff's disability status must be determined on the plaintiff's actual condition, which may include mitigating measures if the plaintiff uses such measures.

7. Does the Holding in Sutton Depart from Arline and Bragdon?

 On one level, Sutton seems to depart from precedent.  Mitigating measures only mitigate, not eradicate, the impairment.  The impairment still exists, even though the mitigating measure temporarily represses the characteristic symptoms of the impairment.  In this context, Sutton appears to depart from the precedent.  In Arline, the Court found that a person with tuberculosis is a person with a disability, even while the virus is in remission due to treatment.  In Arline, the treatment put the virus into remission and the plaintiff had no present limitation.  Yet, the Court still found that she was disabled.  It appears that Sutton departs from Arline, because under Arline, a person with no present limitation was still found to be a person with a disability because the impairment was still present in the individual even though it was effectively treated with medication.  The Court in Arline considered the hospitalization twenty years before the litigation to be sufficient evidence of a limitation in a life activity, despite the absence of any current limitation on Arline's ability to care for herself.  Arline did have a recurrence of contagion associated with her tuberculosis at the time of the litigation of her case, and perhaps that was sufficient to be a present limitation.  Despite the evidence of contagion, the Court seemed to consider the prior hospitalization as the evidence that showed a limitation in a major life activity.

Bragdon also suggests that the plaintiff in Sutton would have a disability.  In Bragdon, the Court considered the effects of antiviral therapies on a person with HIV infection.  After acknowledging that antiviral therapies would significantly reduce effects of HIV infection, the Court still found that a person with asymptomatic HIV was disabled from the moment the virus was present in the individual.  If a person is disabled at the moment that the impairment is present in the body, but manifests no symptoms (as in Bragdon), then it would follow in Sutton that the presence of the substantially limiting vision impairment would make the person disabled, regardless of whether the symptoms were mitigated with eyeglasses.

8. How Can Sutton Be Reconciled with Arline and Bragdon?

 If the Sutton standard were applied to the facts in Arline and Bragdon, would one get a different result?  Probably not.  In Arline, the Court did not make a distinction between Arline's mitigated and unmitigated state, but does appear to have considered tuberculosis after factoring in the effect of treatment.  The limitations considered were the impact of the hospitalization on the plaintiff (which is itself a measure to mitigate the effects of the impairment) and the contagion which was present despite the treatment.  The Sutton standard would not likely have changed the outcome in Arline.  Moreover, the plaintiff in Arline alleged a "record of a disability" which was not raised by the plaintiffs in Sutton.

 If the Sutton standard were applied to the facts in Bragdon, the result would probably be the same.  The plaintiff in Bragdon was apparently not using any treatment for the asymptomatic phase of HIV infection.  Consequently, there was no mitigated state in which to evaluate the plaintiff.  However, Sutton says to consider mitigating measures if they are present.  In Bragdon, the plaintiff did not use mitigating measures, so the Sutton rule would require that the plaintiff's limitations be considered in that unmitigated state.  The Court in Bragdon assessed the plaintiff's disability status without mitigating measures because none were used, which is what the Sutton rule would require on these facts.  The defendant in Bragdon suggested that anti-viral therapies were available to reduce the risk of transferring HIV to offspring and thereby reducing the substantially limiting nature if HIV infection.  The Court considered the use of antiviral therapies, but stated that it would still find a substantial limitation because the antiviral therapies reduced, but did not eliminate the limitations.  Even with antiviral therapies the limitation would remain substantial and the plaintiff would have a disability.  So, even after applying the Sutton rule, Bragdon and Arline would have the same result.  Therefore, one can argue that Sutton does not depart from the Supreme Court's precedent.

9. What Sutton Does Not Hold.

 Perhaps the best way to fully understand  Sutton is to look at what Sutton does not stand for, along with what the decision means.  The decision in Sutton does not say that the Sutton sisters could never be within the ADA definition of disability.  Rather, the Court held that the plaintiffs did not have disabilities in the way they claimed to have them.  Remember, the Court did not perform a comprehensive analysis of all possible ways the plaintiffs could have been considered disabled.  It was limited to only the facts alleged and only the claims as alleged in the original complaint.

 The Court did not hold that a person is not disabled because they have received effective treatment for their impairment.  The Court merely held that evidence of the effects of treatment must be considered along with the effects of the impairment.  This means that the ameliorating effects of treatment should be considered along with the adverse affects of treatment.  The Court did not hold that treatment, even treatment that effectively ameliorates the effect of the disability, will cause a person to no longer have a disability.  The Court merely held that a person who does not have a presently existing disability is not within the subsection (A) of the definition in 42 U.S.C. § 12102(2)(A).  The Court expressly stated that a person without a presently existing disability may nevertheless still be within the ADA's definition by having a history of a disability under subsection (B) of the definition in 42 U.S.C. § 12102(2)(B) or because they are regarded as having a disability under subsection (C) of the definition in 42 U.S.C. § 12102(2)(C).  The Court in Sutton was not presented with any allegation that the plaintiffs had a history or record of disability, so the Court could not and did not consider this possibility in Sutton.

 The Court also did not hold that a person whose impairment is fully mitigated by corrective measures cannot be disabled under subsection C.  It merely held that the way the plaintiffs pleaded their case was insufficient to state a claim.  The plaintiffs in Sutton did not allege that they were regarded as limited in the life activity of seeing. Rather, the plaintiffs only alleged that they were regarded as limited in the life activity of working.  The Court found that their factual allegations were insufficient to support the "regarded as" claim as that claim was alleged.  However, the Court observed that being regarded as limited in the life activity of seeing was an obvious allegation that was not made.  The Court even hinted that had the case been plead in this way the result could have been different, but the Court could not consider this possibility.

 Individuals who are alleging that they have a disability which substantially limits their ability to work encounter a tremendous evidentiary burden because they have to establish that they are significantly restricted in their ability to perform a class or broad range of jobs.  This hurdle is especially difficult in cases where an individual is alleging that the employer regarded her as having a work disability, because the individual must not only prove that there is a range of jobs from which she was excluded, but also that the employer believed that she was restricted from performing a full range of jobs.  Additionally, the interpretive guidance of these regulations specifies that the major life activity of work should only be considered if an individual is not substantially limited with respect to any other major life activity.

 There is an important lesson from Sutton.  When claiming disability discrimination, the plaintiff should allege facts (even if in the alternative) that would support each of the three definitions of disability.  For example, in Sutton the plaintiffs obviously had records of vision impairments and it is apparent from the facts that the employer relied on a record of the plaintiffs uncorrected visual acuity to make the employment decision. So an allegation that they had a record of a substantially limiting impairment, and that the employer relied on the record to deny them an employment opportunity may have prevented their case from being dismissed.  Also, when a person has an impairment that affects a particular life activity (like seeing), one could allege that the defendant regarded the impairment to be substantially limiting (if there is a good faith basis for such). A limitation in the life activity of working should be alleged, but reserved only for those rare instances where the plaintiff has no limitation in any other non-working life activity.


PART III -  Pleading and Proving a Disability after Sutton v. United Air Lines


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