Battle Over Workplace Disabilities Reaches New Level; National Human Resources Group Goes to Supreme Court.

WASHINGTON--(BUSINESS WIRE)--March 24, 1999--The Society for Human Resource Management (SHRM), the nation's leading group representing human resources professionals, today questioned the government's interpretation of the Americans With Disabilities Act, in a brief filed with the U.S. Supreme Court.

SHRM argues, among other things, that the Equal Employment Opportunity Commission's definition of a disability could include the 55 percent of Americans who wear glasses, for example, and places an impossible burden on employers to determine who is an individual with a disability. Today's brief intensifies the already vigorous debate over workplace disabilities that will affect virtually every employer.

In an amicus brief filed on behalf of United Air Lines in the case of Karen Sutton and Kimberly Hinton v. United Airlines (No. 97-1943), Peter J. Petesch, partner in the Washington office of the national labor and employment law firm Ford & Harrison, LLP, urges the Supreme Court to "seize the opportunity" to create a clear and workable interpretation of the law's definition of "disability."

Petesch, as counsel of record, leads a team that includes Ford & Harrison lawyers Thomas J. Walsh Jr., and Timothy Bland of Ford & Harrison's Memphis office (901/756-1550), and David S. Harvey, Jr., of Ford & Harrison's Tampa office (813/229-6481).

The definition of workplace disabilities is especially urgent in light of inconsistent interpretations of the lower courts and the EEOC, and in light of demanding new guidance from the EEOC on employers' duties to provide "reasonable accommodations" to persons with disabilities.

In the brief, the Society specifically challenges the EEOC's and petitioners' contention that mitigating measures (e.g., medical treatments, prosthetic devices, auxiliary aids) should never be considered in determining whether an employee has a disability under the ADA. Such a restriction, the brief states, puts human resource professionals in an untenable position.

"For purposes of determining 'disability' status under the ADA, individuals should be assessed in light of their actual ability to function and any actual 'substantial limitation' to their major life activities," said Sue Meisinger, Senior Vice President of SHRM. "The assessment should take into account both the beneficial and detrimental effects, if any, of measures, devices, and treatments used to ameliorate or eliminate the condition in question. This principled, common-sense approach will facilitate employers' ADA compliance, while also protecting those whom Congress intended to protect."

The petitioners, Karen Sutton and Kimberly Hinton, are twin sisters and commercial airline pilots for regional commuter airlines. In 1992, they both applied for commercial pilot positions with United Air Lines, Inc., but were told their uncorrected vision disqualified them as pilots. United required uncorrected vision of 20/100 or better in each eye. Their uncorrected vision was 20/200 in the right eye and 20/400 in the left eye. Their corrected vision is 20/20 in both eyes.

They sued United, asserting the airline discriminated against them on the basis of their "disabilities." They claimed they had disabilities under the ADA because their uncorrected vision limits their major life activity of seeing and thwarts their self-proclaimed "life-long goal to fly for a major air carrier." After their suit was dismissed by a lower court, they appealed, and the United States Court of Appeals, Tenth Circuit (No. 96-1481), affirmed their appeal in November 1997. The Supreme Court agreed to hear the case during the current 1998-99 session. The EEOC intervened on the Petitioners' behalf.

In today's brief, Mr. Petesch argues that the EEOC's broad interpretation of the ADA would wreak havoc in the workplace. "Petitioner's proposed rule would by definition force persons from the mainstream - indeed, the vast majority of Americans - into the ranks of persons with disabilities." The brief said these could include:

-- The 147 million Americans who wear glasses -- The 96.8 million American adults with high cholesterol -- The 50 million Americans with hypertension -- The 15 million Americans with asthma -- The 9.4 million Americans suffering from depression in any

six-month period -- The 8.7 million Americans with diabetes

Still, he says, many people with any one of the above conditions function with distinction in the workplace. "By and large, society does not view such persons as these, fully functional in all or virtually all respects, as 'people with disabilities.' To do so otherwise in order to stretch a statutory definition a trivializes the ADA and its purposes," said Petesch. "Worse, such a broad-brush approach distracts attention from the ADA's intended beneficiaries, who truly have disabilities but who can still work and make a significant contribution to our society."

With more than 100 attorneys in six offices - Atlanta, Los Angeles, Memphis, Miami, Tampa and Washington, D.C. - Ford & Harrison LLP provides its employer clients with strategies to face today's complex employment challenges.

EDITORS NOTE: Amicus Curiae can be read in full at www.fordharrison.com. See "News." Oral arguments before the Supreme Court scheduled for April 28.