Unfulfilled promise: the Americans with Disabilities Act.

The Americans with Disabilities Act (ADA) was adopted in 1990 with great fanfare.(1) In a ceremony held on the South Lawn of the White House, President George Bush compared the act with the dismantling of the Berlin Wall in its symbolic importance.(2) Sandra Swift Parrino, the head of the National Council on Disability, said the legislation "heralds a new beginning for the 43 million Americans with disabilities and their families ... [and] its provisions will shape the lives of those with disabilities for decades to come."(3)

However, a decade of litigation under the act has produced mostly frustrating results for plaintiffs invoking its protections. In a recent article, law professor Ruth Colker presented a comprehensive statistical analysis of the disposition of cases under the ADA. Colker found that "defendants prevail in more than 93 percent of reported ADA employment discrimination cases decided on the merits at the trial court level. Of those cases appealed, defendants prevail in 84 percent of reported cases."(4)

These numbers, of course, do not measure voluntary compliance with the ADA, nor favorable settlements for plaintiffs. The statistics, though, are stark in showing plaintiffs' lack of success under the act.

In June, the U.S. Supreme Court handed down three decisions that significantly curtail the reach of the ADA and that will make successful litigation under the act even more difficult.(5) The issue in all three cases was the same: Is there discrimination based on a disability if a person is disadvantaged because of a medical condition that is under control so that it does not interfere with major life activities?

All three cases involved people who were denied employment because of physical conditions. In each instance, the condition was corrected or controlled so that there was no claim that it would interfere with job performance. Each of the plaintiffs claimed that the denial of employment because of the condition was discrimination based on disability in violation of the ADA. Each of the defendants argued that the individuals were not disabled because their conditions were corrected and did not interfere with any major life activities.

Sutton v. United Air Lines, Inc., involved twin sisters who are severely myopic.(6) With corrective lenses, each has vision that is 20/20 or better. Although they are pilots on regional airlines and although they met all the requirements for certification by the Federal Aviation Administration, United Air Lines refused to hire them because of a company policy that prohibited hiring pilots who did not meet its requirements for uncorrected visual acuity.

The Supreme Court, in a 7-2 decision with only Justices Stephen Breyer and John Paul Stevens dissenting, held that a condition is to be evaluated in its corrected state and that therefore the two plaintiffs were not disabled. Justice Sandra Day O'Connor, writing for the Court, declared that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses."(7) The Court ruled that the district court correctly dismissed the plaintiffs' complaint and that the failure to hire them because of their poor uncorrected eyesight was not discrimination based on a disability.

O'Connor's majority opinion offered three reasons for interpreting "disability" based on a person's corrected condition. First, she stressed the text of the ADA, which defines a "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities."(8) O'Connor explained that the "phrase `substantially limits' appears in the act in the present indicative verb form" and that therefore "the language is properly read as requiring that a person be presently--not potentially or hypothetically--substantially limited in order to demonstrate a disability."(9) If the condition is corrected, then the impairment is not to be regarded as a disability because it does not limit a major life activity.

Second, O'Connor explained that the ADA requires an individualized inquiry and that this necessitates looking at whether the person's condition is corrected. She wrote that looking at conditions in their uncorrected state "would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals. This is contrary to both the letter and the spirit of the ADA."(10)

Finally, O'Connor said the congressional findings concerning the number of people with disabilities indicate that Congress must have been considering only those with uncorrected conditions. Congress found that 43 million Americans "have one or more physical or mental disabilities."(11)

But, she noted, accepting the plaintiffs' definition would mean over 160 million people would be considered "disabled" under the act.(12) She concluded that "had Congress intended to include all persons with corrected physical limitations among those covered by the act, it undoubtedly would have cited a much higher number of disabled persons in the findings."(13)

The second case, Murphy v. United Parcel Service, Inc., involved an employee who was fired from his job as a mechanic and driver because of high blood pressure.(14) Uncorrected, the plaintiff's hypertension would not meet the Department of Transportation's requirements for certification. The issue before the Court, though, was whether the condition should be considered in its corrected or uncorrected state.

The Court, again in an opinion written by O'Connor, said the Sutton decision resolved the case. In determining whether a condition interferes with a major life activity, a court should consider it as corrected by medication.

Finally, in Albertsons, Inc., v. Kirkingburg, the Court considered the discrimination claims of a person with a vision disorder that could not be corrected but that did not interfere with his life or job performance.(15) Kirkingburg, a truck driver, suffers from amblyopia, an uncorrectable condition that essentially results in his seeing out of only one eye. Although he had more than a decade of successful truck-driving experience and although the Department of Transportation certified him despite his vision problems, Albertsons fired him and refused him reinstatement.

The Court, in an opinion by Justice David Souter, held that Kirkingburg was not disabled within the meaning of the ADA. Souter pointed out that monocular individuals, those who see with one eye, often develop unconscious compensating mechanisms so their condition does not significantly impair their vision. Souter said this must be taken into account in assessing whether a person has a disability.

He wrote, "We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems."(16) People with monocular vision must "prove a disability by offering evidence [of] ... the extent of the limitation in terms of their own experience, as in [showing that] loss of depth perception and visual field is substantial."(17)

Narrower protections

Eight of the nine U.S. courts of appeals to consider the issue had concluded that in determining whether there is a disability a court should evaluate whether the uncorrected condition interferes with a major life activity.(18) Even more important, the Supreme Court rejected the definition of disability chosen by the Equal Employment Opportunity Commission, the federal agency with the primary responsibility for interpreting and enforcing the ADA.(19)

The Court's decisions substantially narrow the definition of disability and therefore the protections of the ADA. If a person has a medical condition that is corrected, there is not a disability, and the employer can refuse to hire the person solely out of irrational prejudice against those with the impairment. However, if the condition is not corrected, the employer can refuse to hire the person because the impairment could hinder job performance.

For instance, if a job applicant has epilepsy that is under control with medication so that the person can perform the job and all other major life activities, the applicant is not deemed disabled under the ADA. An ignorant or biased employer could refuse to hire the person solely because of the epilepsy, and no cause of action would exist. On the other hand, if the epilepsy was not under control, the employer would be justified under the ADA in not hiring the person for that reason.

This dilemma, which always works to the employee's detriment, was evident in all three cases. Because the plaintiffs in Sutton had their vision corrected, they were not disabled; but if their vision could not be corrected, the defendant obviously could refuse to hire them as pilots. In Murphy, the hypertension was controlled so that it was not a disability; but uncontrolled high blood pressure would disqualify a person from being a truck driver.

In Kirkingburg, the Court said a plaintiff must demonstrate that monocular vision significantly interferes with sight to qualify as a person with a disability. Of course, if Kirkingburg proved that his vision was significantly impaired, he would be disqualified from being a truck driver. But if his sight is unimpaired, then he is not to be regarded as disabled and can be denied employment for a condition that won't affect his job performance.

The Court thus drastically narrowed the scope of the ADA. After these cases, who can successfully use it?

Apparently, the ADA will apply to a person with a condition that interferes with major life activities but who is completely able to perform the job. For instance, a year ago, the Court ruled that HIV-positive status is a disability within the meaning of the ADA because it interferes with the major life activity of reproduction.(20) An employer who refused to hire a person because of this medical condition would be violating the ADA unless there was proof that the condition would interfere with job performance.

O'Connor recognized this when she stated in the majority opinion in Sutton:

   [O]ne has a disability ... if, notwithstanding the use of a corrective
   device, that individual is substantially limited in a major life activity.
   For example, individuals who use prosthetic limbs or wheelchairs may be
   mobile and capable of functioning in society but still be disabled because
   of a substantial limitation on their ability to walk or run.(21)

Thus, the challenge for plaintiffs seeking relief under the ADA is to show a condition that even after correction interferes with a major life activity but that will not interfere with job performance. Conditions that have been corrected so they do not impair a person's life are not considered disabilities and can be the basis for discrimination, however irrational or arbitrary.

The Americans with Disabilities Act was adopted with great promise, but the reality has been that few plaintiffs have succeeded under it. The likelihood of success has been greatly diminished by the Supreme Court's decisions narrowly interpreting what constitutes a "disability." Congress, if it chooses, can remedy this by statutory amendment to overturn these rulings and broaden the protections of the act.

Reining in the act

The U.S. Supreme Court recently handed down three decisions that significantly curtail the reach of the Americans with Disabilities Act.

Notes

(1.) 42 U.S.C. [sections] 12101-12213 (1994).

(2.) Terry Wilson, For the Disabled, It's `Independence Day,' CHI. TRIB., July 27, 1990, at D1.

(3.) Ann Devroy, In Emotion-filled Ceremony, Bush Signs Rights Law for America's Disabled, WASH. POST, July 27, 1990, at A18.

(4.) Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 HARV. C.R.-C.L. L. REV. 99, 100 (1999).

(5.) The Court also decided a fourth case under the ADA that day, which deals with a different issue and different provision of the act. In Olmstead v. L.C., No. 98-536, 1999 WL 407380 (U.S. June 22, 1999), the Court held that under Title II of the ADA, which prohibits discrimination based on disability in the provision of government services, the government has a duty to provide mental health treatment in the least confining environment. The Court ruled that the government has the duty to treat people in community settings rather than institutions when the state's mental health professionals determine that community treatment is appropriate, transfer from institutional treatment is not opposed by the patient, and placement can be reasonably accommodated in light of the state's resources.

(6.) No. 97-1943, 1999 WL 407488, at *1 (U.S. June 22, 1999).

(7.) Id. at *3.

(8.) Id. at *8 (quoting 42 U.S.C. [sections] 12102(2)(A)) (emphasis in O'Connor's opinion).

(9.) Id.

(10.) Id.

(11.) Id. at *9.

(12.) Id.

(13.) Id.

(14.) No. 97-1992, 1999 WL 407472 (U.S. June 22, 1999).

(15.) No. 98-591, 1999 WL 407456 (U.S. June 22, 1999).

(16.) Id. at *6.

(17.) Id. at *7.

(18.) See Sutton, 1999 WL 407488, at *16 n.1 (Stevens, J., dissenting) (listing court of appeals decisions).

(19.) Id. at *7.

(20.) Bragdon v. Abbott, 524 U.S. 624 (1998).

(21.) 1999 WL407488, at *11.

Erwin Chemerinsky is Sydney M. Irmas Professor of Law and Political Science at the University of Southern California Law School in Los Angeles. He thanks Alexis Lury for her excellent research assistance.