Testing the Scope of ADA: What do the Justices Face in 1999
Heather Roberts Fox
APA Science Directorate
Plaintiff in Test-Anxiety Case May Appeal to the Supreme Court
Attorneys for plaintiff-appellant Kevin M. McGuinness, a former
University of New Mexico medical student, announced that they are planning a U.S. Supreme
Court appeal after a federal appellate court rejected his claim that the university should
recognize his test anxiety as a disability protected under the Americans with Disabilities
Act ("ADA") and the Rehabilitation Act of 1973. Employment and educational test
administrators have been particularly concerned that the number of text-anxiety claims
under ADA has risen, and were pleased that the appellate court upheld the position of the
university and the district court that an impairment limited to specific stressful
situations is not a disability.
When Mr. McGuinness entered the University of New Mexico Medical School
in 1992, he had a bachelor of science degree in chemistry and biology, a degree in
physiological psychology, and a doctorate in psychology. Mr. McGuinness informed his
professors that he had an "anxiety disorder" that manifests itself when he takes
chemistry and mathematics tests. However, he also indicated he did not need any
test-taking accommodations because he had acquired study habits in both graduate and
undergraduate school that allowed him to overcome his difficulties. During his first year
in the medical school program, Mr. McGuinness received a grade of "marginal" in
two courses. According to the medical school's grading policy, students who receive
"marginal" grades in more than 15% of their first-year courses must repeat the
first year or leave the program. He was offered but refused the opportunity to take makeup
exams in biochemistry, and after three makeup tests in the cardiovascular pulmonary
physiology, he still did not obtain a "satisfactory" grade. Mr. McGuinness left
the university and filed suit against the University of New Mexico Medical School.
In his complaint to the federal district court, Mr. McGuinness
attempted to assert a claim under the ADA but failed to distinguish between Title I and
Title II. Title I proscribes discrimination against employees or prospective employees
because of their disabilities, while Title II bars public entities from discrimination on
the basis of disability in the provision of programs and benefits. The district court
granted summary judgment for the medical school on the ground that Mr. McGuinness was not
disabled within the meaning of the ADA.
A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit
("Tenth Circuit") affirmed the district court's grant of summary judgment. They
agreed that the district court correctly held that such a disorder, limited to certain
academic subjects, does not constitute a disability under the ADA. On appeal, the judges
treated the Title I and Title II claims separately, even though they did not appear
distinguished in the complaint to the district court, and found that both claims failed
because he did not show that he has a disability within the meaning of the ADA. The term
"disability" means "a physical or mental impairment that substantially
limits one or more of the major life activities" of the individual. "For the
purposes of the ADA, inability to pursue one career, such as medicine, does not constitute
a severe impact on an individual's life," Judge Paul J. Kelly, Jr., wrote for the
panel. Judge Kelly also noted that even if Mr. McGuinness had shown a disability under the
ADA, he could not demand an unreasonable accommodation from the medical school.
"Requiring the University of New Mexico to advance Mr. McGuinness to the next level
of the medical school program would represent a substantial, rather than a reasonable
accommodation," he continued.
The Tenth Circuit court also reviewed the plaintiff-appellant's cause
of action under the Rehabilitation Act of 1973, and concluded that it contained the same
flaw as his ADA claims because the statute defines "disability" in the same way
In December, the office of Mr. McGuinness's lawyer, Dennis W. Montoya,
issued a statement announcing their intention to appeal the decision to the Supreme Court.
U.S. Supreme Court Agrees to Hear Arguments on Scope of ADA
Justices of the Supreme Court recently agreed to decide whether the
Americans with Disabilities Act applies to workers whose condition may be corrected by
medicine or other measures. At issue is whether the determination that a person has a
disability under the law must be made without regard to mitigating measures, such as
medicines or glasses that can correct the problem. The ADA defines "disability"
as a "physical or mental impairment that substantially limits one or more of the
major life activities" of the individual. The federal Circuit courts have rendered
conflicting opinions about whether mitigating measures should factor into an evaluation of
whether the disability is covered under the law.
The Supreme Court said it will hear arguments on three cases in April,
and will decide the reach of the ADA by the end of June. The first case involved two
nearsighted pilots for United Air Lines. A federal judge and a U.S. appeals court ruled
that the two pilots were not protected by the law because their nearsighted vision was
fully correctable when they use glasses or contact lenses (see Toner & Arnold,
November 1998 PTC newsletter for a complete discussion of the Tenth Circuit court ruling).
The second case involved a United Parcel Service mechanic suffering
from high blood pressure. His job required him to drive a commercial motor vehicle, but
the U.S. Department of Transportation prohibits individuals from driving commercial
vehicles if blood pressure readings are higher than 160/90. He filed a lawsuit after he
was fired, but a federal appeals court ruled that the high blood pressure was not a
disability under the law because it is correctable if medication is administered.
The third case involved a truck driver for Albertson's Inc., who did
not meet the U.S. Transportation Department requirements of 20_40 vision in each eye, with
correctable lenses. Even with lens, the plaintiff did not meet the minimum vision
requirements. He also filed a lawsuit after he was fired, and a federal appeals court
ruled that he was disabled. It rejected the company's argument that it tried to
accommodate his disability by offering him another job, which he declined.
Newly Released Reports of Interest for I-O Practitioners
Listed below are three important government reports that were released
within the past few months that may be of particular interest to I-O psychologists.
U.S. Commission on Civil Rights, Helping Employers Comply With the
ADA: An Assessment of How the United States Equal Employment Opportunity Commission is
Enforcing Title I of the Americans with Disabilities Act, September, 1998, 312 pp. No.
This report focuses specifically on the efforts of the U.S. Equal
Employment Opportunity Commission (EEOC) to enforce Title I of the Americans with
Disabilities Act, which prohibits discrimination based on disability in employment. The
report evaluates and analyzes EEOC's regulations and policies clarifying the language of
the statute, processing of charges of discrimination based on disability; litigation
activities under Title I of the Americans with Disabilities Act; and outreach, education,
and technical assistance efforts relating to the act.
U.S. Commission on Civil Rights, Helping State and Local Governments
Comply with the ADA: An Assessment of How the United States Department of Justice is
Enforcing Title II, Subpart A, of the Americans with Disabilities Act, September 1998,
167 pp. No. 907-00590-1.
This report focuses specifically on the efforts of the U.S. Department
of Justice (DOJ) to enforce Title II, subtitle A, of the Americans with Disabilities Act,
which prohibits discrimination based on disability by public entities such as state and
local governments. This report evaluates DOJ's regulations and policies clarifying the
language of the statute; processing of complaints of discrimination based on disability;
litigation; and outreach, education, and technical assistance efforts relating to the act.
The report also assesses DOJ's effectiveness in its role as coordinator of the Americans
with Disabilities Act enforcement efforts of seven other designated Federal agencies.
Commission publications may be obtained from:
U.S. Commission on Civil Rights
624 Ninth Street NW
Washington, DC 20425
Telephone: (202) 376-8128
Presidential Task Force on Employment of Adults with Disabilities, Re-charting
the Course: The First Report from the Presidential Task Force on Employment of Adults with
Disabilities (Washington, DC: Presidential Task Force on Employment of Adults with
Disabilities, November 1998).
As mandated by Executive Order 13078, the Task Force on Employment of
Adults with Disabilities has been charged to examine programs and policies related to
employment of adults with disabilities, to "determine what changes, modifications and
innovations may be necessary to remove barriers to work faced by adults with
disabilities" and to recommend options for such changes. The ultimate mission of the
Task Force is to create a coordinated and aggressive national policy to bring adults with
disabilities into gainful employment at a rate that is as close as possible to that of the
general adult population. This first report tracks the progress of the Task Force as it
develops recommendations for the President.
Copies of this report are available from:
Presidential Task Force on Employment
of Adults with Disabilities
200 Constitution Avenue, NW, Room S2312
Washington, DC 20210
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