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Recent Supreme Court ADA Rulings:
Mixed Messages From the Court

Arthur Gutman
Florida Institute of Technology

Before claiming discrimination under Title I of the Americans with Disabilities Act of 1990 (or the ADA), plaintiffs must first prove (1) disability within the meaning of the statute, and (2) qualification to perform essential job functions (or duties). These two factors are illustrated in McKay v. Toyota (1997), where, McKay's prima facie burden of proof was defined as follows:¹

(1) that she is a disabled person within the meaning of the Act; (2) that she is qualified to perform the essential functions of her job with or without reasonable accommodation; and (3) that she suffered an adverse employment decision because of her disability.

For reasons to be discussed below, McKay was never permitted to state Factor 3 (the "adverse employment decision") because she failed to prove Factor 1 (that she was "a disabled person within the meaning of the Act").

Table 1 depicts four late-term 1999 Supreme Court ADA rulings. Albertsons v. Kirkingburg, Murphy v. United Parcel Service, and Sutton v. United Air Lines address the role of mitigating factors in proving disability (Factor 1) and Cleveland v. Policy Management addresses the relationship between social security disability (or SSDI) benefit claims and ADA claims of qualification (Factor 2). Judging from some initial reactions,² Kirkingburg, Murphy, and Sutton are major defeats for ADA plaintiffs and Cleveland is a major victory. This paper examines reasons why both conclusions are, if not wrong, at least limited in their generalizability.

Table 1: 1999 Supreme Court Title I ADA Rulings

¹ This burden of proof is standard for both the ADA and the Rehabilitation Act of 1973.

² The reader interested in a sampling of complaints by disability advocates to the Kirkingburg, Murphy and Sutton rulings are directed to www.disabilitynews.com/Editorials.htm.

Overview of Factor 1: Proving Disability

The ADA uses a three-part definition of disability. Accordingly, the term disability means, with respect to the individual:

(a) a physical or mental impairment that substantially limits or more of the major life activities of such individual; (b) a record of such impairment; or (c) being regarded as having such an impairment.

For present purposes, the focus is on Part (a) and Part (c). Part (a) requires (1) a current physical or mental impairment that (2) substantially limits a major life activity. The limitation (or severity) test is stiff, as comparisons must be made to "average" people, and the impairment must be relatively permanent. For example, moderate difficulty in walking (Penny v. UPS, 1997) and the inability to lift 25 pounds (Williams v. Channel Master, 1996) have failed the average-person test, and the effects of major surgery (McDonald v. Pennsylvania, 1998) and even heart attacks (Katz v. City Metal, 1996) have failed the permanence test.

As important, if there are no apparent restrictions, courts generally follow EEOC guidelines and assess working as the major life activity. However, to pass the severity test in this domain, the restriction must apply to a broad range of jobs. For example, in McKay v. Toyota (1997), McKay's carpal tunnel syndrome prevented her from performing secretarial work, but McKay failed the severity test because her educational background qualified her for a broader range of higher level jobs. As we will witness below, caveats associated with working as a major life activity are implicated in both the Murphy and Sutton rulings.

The Part (c) definition of disability is illustrated by Hollihan v. Lucky Stores (1996). Hollihan, a store manager, was fired for repeated outbursts at work.

The Part (a) claim (that he was mentally impaired) failed the severity test. Nevertheless, because he was forced to seek counseling for his outbursts, the 9th Circuit ruled that the employer (Lucky) may have "regarded Hollihan as disabled."

In a more relevant case for present purposes (Doane v. Omaha, 1997), Doane, a police officer, developed glaucoma in one eye (i.e., amblyopia) and was fired based on a police department regulation, even though he effectively performed his job duties relying on monocular cues. Doane won on Part (a) for reasons later rejected by the Supreme Court in the Kirkingburg case. However, Doane also won on Part (c) for reasons which, as we will witness below, would likely survive the Kirkingburg ruling.³

³ The 8th Circuit, in upholding an award of nearly $100,000, ruled that the Part A victory was unnecessary, since the basis for Doane's termination (the departmental regulation) was evidence that the police department falsely regarded Doane as being disabled.

Overview of Factor 2: Proving Disability

Factor 2 addresses the nexus between disabilities and essential duties. The ADA requires performance of essential duties, with or without accommodations. In general, employers are not required to eliminate or alter essential duties. As a result, courts have habitually required plaintiffs to make at least a "facial showing" that essential duties can be performed with or without accommodations (e.g., White v. York, 1995).⁴ It follows that if essential duties cannot be performed, even with accommodations, the plaintiff faces what the 5th Circuit in Prewitt v. Postal (1981) termed an "insurmountable barrier."

⁴ The requirement to "facially show" (or articulate) how essential duties are performed first appeared in Prewitt v. Postal (1981) and is now routine in both ADA and Rehabilitation Act cases.

For example, in Southeastern v. Davis (1979), Davis, who was nearly deaf, requested changes in the core curriculum of a college nursing program. The Supreme Court ruled that the college was not obligated to alter its requirements. Similar rulings were subsequently rendered in workplace claims in both pre-ADA cases (e.g., Treadwell v. Alexander, 1983; Simon v. St. Louis, 1984; & Gilbert v. Frank, 1991) and post-ADA cases (e.g., Milton v. Scrivner, 1995; Allison v. Corrections, 1996; & Miller v. Illinois, 1996). As we will witness below, the Cleveland ruling addresses whether SSDI benefit claims constitute an admission for ADA purposes that the disability barriers to performing essential job duties are insurmountable.

The Supreme Court ADA Rulings

Although each of the marquee rulings was decisive (either 9-0 or 7-2), these numbers are deceptive. Cleveland, which reads like a victory for ADA plaintiffs who claim SSDI benefits, also contains an ominous warning. The other three rulings, which read like defeats for ADA plaintiffs with self-mitigating impairments (Kirkingburg) or externally mitigated impairments (Murphy) and (Sutton), contain critical clues that read like "how to do it" instructions for crafting stronger ADA claims.

Cleveland v. Policy Management

Cleveland satisfied the Part A definition of disability (a stroke that severely restricted her concentration, memory & language). At issue, however, was the tension between her SSDI and ADA claims. In other like cases, district courts routinely ordered summary judgment for employers (ruling that SSDI claims automatically estop ADA claims as a matter of law) and circuit courts were divided on whether to affirm (McNemar v. Disney Store, 1966; Simon v. Safelite Glass, 1997; Weigel v. Target, 1997), or reverse these rulings (Swanks v. Washington Transit, 1997; Talevera v. Palm Beach Co., 1997). There was also confusion in the rulings favoring employers regarding the bases on which those summary judgments were affirmed.⁵

⁵ For example, in McNemar v. Disney, it was unclear whether the 3rd Circuit favored automatic estoppel, or whether the lower court ruling was affirmed because of narrower fact-specific issues.

Cleveland fit this mold. The trial judge favored automatic estoppel and the 5th Circuit ruled as follows:

It is at least theoretically conceivable that under some limited and highly unusual set of circumstances, the two claims would not necessarily be mutually exclusive, as the SSA's determination of an applicant's entitlement to social security disability benefits would not be synonymous with a determination that a plaintiff is or is not a "qualified individual with a disability" under the ADA.

The Supreme Court rejected the need for "highly unusual" circumstances. The Court also ruled that ADA claims are not automatically estopped, since SSDI claims do not consider whether essential job duties can be performed with reasonable accommodations.

Much was at stake for Cleveland. She suffered a stroke; filed for SSDI benefits 2 weeks later; then returned to work; was denied SSDI benefits because she returned to work; and was later fired. Recall that in related cases (e.g., Katz v. City Metal, 1996; McDonald v. Pennsylvania, 1998), ADA claims were disallowed because the impairments were deemed temporary. Consequently, if recovery from an illness or injury is possible, automatic estoppel based on SSDI claims could force potential ADA plaintiffs to forego SSDI benefits at a time when the ultimate prognosis is unclear.

However, the Supreme Court's ruling removes only part of that conflict. It prevents trial judges from ordering summary judgment without examining the facts of both the SSDI and ADA claims, but it does not divorce the two claims. More specifically, in his ruling, Justice Souter stated:

To defeat summary judgment ... [an] ... explanation must be sufficient to warrant a reasonable juror's concluding that ... [in] ... the earlier statement, the plaintiff could nonetheless "perform the essential functions" of her job with or without "reasonable accommodation."

In short, the very trial judges who routinely opted for automatic estoppel can still prevent jury trials after they compare the two claims.

Albertsons v. Kirkingburg

In part, Kirkingburg is Doane v. Omaha (1997) revisited. Like Doane, Kirkingburg, an amblyopic, effectively performed his job (truck driving) relying on his monocular vision. However, unlike Doane, who was excluded because of a police department regulation, Kirkingburg was excluded because of a federal (Department of Transportation, or DOT) regulation. Kirkingburg was initially misdiagnosed, and was fired after a correct diagnosis by a second doctor. The second doctor suggested that Kirkingburg seek a freshly minted DOT waiver for individuals with good driving records. Kirkingburg obtained the DOT waiver, but Albertsons did not rehire him.

The only question in district court was whether the DOT waiver was valid. The district court ruled it was not (because it was "experimental"). On appeal, Albertsons argued for the first time that Kirkingburg was not disabled, since his "impeccable" driving record proved that he had adjusted to (or self-mitigated) his amblyopia (and thus, was not severely restricted in his vision). A divided 9th Circuit, citing Doane, ruled that Kirkingburg was disabled, since there is a "significant difference" in how people with binocular and monocular vision view the world. However, the Supreme Court ruled that "significant difference" does not equate to "significant restriction," meaning the 9th Circuit misfired on the "average person" test for evaluating the severity of an impairment. The Supreme Court also struck down the DOT waiver program.

Although bad news for Kirkingburg, this ruling does not imply that individuals are unprotected by the ADA if they can self-mitigate and perform their work. This would render the ADA applicable only if accommodations are needed, a clear contradiction to plain ADA statutory language. Rather, the implication is that plaintiffs must prove their "substantial limitations" on a case-by-case basis. Accordingly, in what was essentially a 7-0 ruling with two abstentions,⁶ Justice Souter stated the following:

This is not to suggest that monocular individuals have an onerous burden in trying to show that they are disabled. On the contrary, our brief examination of some of the medical literature leaves us sharing the Government's judgment that people with monocular vision "ordinarily" will meet the Act's definition of disability....We simply hold that the Act requires monocular individuals, like others claiming the Act's protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial.

In short, Kirkingburg made an unforced error. Instead of focusing on how his impairment affected himself, he wrongly assumed that amblyopia is a disability as a matter of law.

⁶ All nine justices agreed that the DOT waiver program was invalid, but Breyer and Stevens, who dissented in the Murphy and Sutton rulings on the issue of external mitigation, neither concurred with nor dissented to that portion of the Kirkingburg ruling that addressed self-mitigation.

Murphy v. United Parcel Service

The marquee issue in Murphy and Sutton was external mitigation. An EEOC guideline (that severity should be assessed without mitigation) was supported by some courts (e.g., Arnold v. UPS, 1998; Matczak v. Frankford, 1997), but not others (Bartlett v. NY State, 1998; Baert v. Euclid, 1998). The 10th Circuit rejected the EEOC guideline for both medication (Murphy) and eye lenses (Sutton), and the Supreme Court affirmed. However, there is much more to both cases.

Murphy's job (mechanic) required road testing of the trucks he repaired, but he was excluded from doing so based on a DOT regulation on high blood pressure. Like Kirkingburg, Murphy was initially misdiagnosed and later fired when his impairment was discovered. Critically, Murphy's medication enabled him to maintain normal blood pressure levels (and to perform all other activities except heavy lifting). Therefore, by invalidating the aforementioned EEOC guideline on external mitigation, the Supreme Court left Murphy with no basis for his Part A claim.

Murphy also lost his Part C claim, the ruling here being that his termination was based of failure to obtain DOT certification, not on "stereotypical views" relating to hypertension. Therefore, the same regulation that excluded Murphy on Part A also insulated UPS on Part C. Another limiting factor was that Murphy was eligible for other mechanic jobs in which road testing was not an essential duty, thus dealing a fatal blow to any potential argument (Part A or Part C) relating to working as a major life activity.

On face, this seems like a clear-cut loss with wide-ranging implications. But there was more. According to Justice O'Connor:

Because the question whether petitioner is disabled when taking medication is not before us, we have no occasion here to consider whether petitioner is "disabled" due to limitations that persist despite his medication or the negative side effects of his medication.

In other words, Murphy could have claimed he was substantially limited in spite of the medication. Instead, he assumed that the EEOC guideline was correct and, therefore, like Kirkingburg, falsely assumed that his impairment was a disability as a matter of law.

Interestingly, the magnitude of Murphy's error was explained in the Sutton case. More specifically, in explaining why the EEOC interpretation of external mitigation was invalid, Justice O'Connor stated the following:

The guidelines approach could also lead to the anomalous result that in determining whether an individual is disabled, courts and employers could not consider any negative side effects suffered by an individual resulting from the use of mitigating measures, even when those side effects are severe.

O'Connor then cited scientific evidence indicating why individuals with diabetes, psychosis, Parkinson's disease, and epilepsy would likely be disabled in spite of their medications. Of course, this evidence was cited to rationalize why the EEOC interpretation of mitigating factors runs counter to a case-by-case assessment of disability.

As interesting, O'Connor also suggested in the Sutton ruling, that for the Part C definition of disability, "one whose high blood pressure is `cured' by medication may be regarded as disabled." Of course, this suggestion did not help Murphy, since UPS was insulated for Part C by the DOT regulation. However, as suggested earlier, there are other relevant Part C claims (e.g., Doane v. Omaha, 1997) in which employers were not insulated by federal agency regulations.

Sutton v. United Air Lines

Finally, the Sutton plaintiffs were twin sisters with severe myopia correctable to 20-20 with lenses (in both eyes). They had already flown small commuter planes, but wanted to fly the bigger commercial jets. Unlike Kirkingburg or Murphy, the twins met federal regulations (by the Federal Aviation Authority, or FAA), but were excluded by a UAL regulation that exceeded FAA standards.⁷ The Part A claim was rejected for the same reason as in Murphy. However, the twins misfired on their Part C claim. This is illustrated in the following quote from Justice O'Connor's ruling:

⁷ The FAA requirement is vision correctable to 20-20 in each eye, which the twins did meet. The UAL requirement was for uncorrected vision of 20-100 in each eye, which the twins did not meet.

There is no dispute that petitioners are physically impaired. Petitioners do not make the obvious argument that they are regarded due to their impairments as substantially limited in the major life activity of seeing. They contend only that respondent mistakenly believes their physical impairments substantially limit them on the major life activity of working.

In other words, the twins made a claim (substantial limitation in working) that was destined to fail, since their work history (flying smaller planes) was proof that they were not broadly excluded from their profession.

There was yet another irony. Specifically, Justice O'Connor doubted the validity of any disability claim (Part A or Part C) based on working. Accordingly:

Because parties accept that the term "major life activities" includes working, we do not determine the validity of the cited regulations. We note, however, that there may be some conceptual difficulty in defining "major life activities" to include work, for it seems "to argue in a circle to say that if one is excluded...that the exclusion constitutes an impairment, when the question you're asking is, whether the exclusion itself is by reason of handicap."

In short, there were two good reasons to cite vision as the restricted life activity, and had the twins done so in their Part C claim, they might have, for reasons to be discussed shortly, forced UAL into a direct threat defense.

Conclusions: Mixed Messages From The Court

In an earlier era, the Supreme Court issued a seemingly hard message in Southeastern v. Davis (1979). Justice Powell, speaking for a unanimous Court, ruled that an "otherwise qualified person" in the Rehabilitation Act must "meet all of a program's requirements in spite of his handicap." Qualified experts interpreted Powell as saying that reasonable accommodations were not required (e.g., Player, 1981). However, there were softer messages by Powell in this ruling, a fact later echoed by the Supreme Court in Alexander v. Choate (1985) and School Board v. Arline (1987).⁸ The most recent rulings, particularly in Kirkingburg, Murphy, and Sutton, are also suggestive of such mixed messages. Table 2 depicts six messages to consider.

⁸ The "hard" and "soft" messages in the Davis case are discussed in detail by Gutman (in press).

 Table 2: Messages From The Supreme Court

1. SSDI claims imply critical caveats for both employers and employees

2. No EEOC guideline or regulation is bullet proof

3. No other federal agency guideline or regulation is bullet proof

4. Substantial limitations must be proven on a case-by-case for any impairment

5. Working is not a viable major life activity

6. Employers should expect to defend company-specific exclusionary rules

Message 1 attaches to Cleveland v. Policy Management. Employers should not read SSDI claims as admissions that essential job duties cannot be performed even with accommodations. At the same time, dual SSDI and ADA claimants should avoid SSDI statements implying such insurmountable barriers, as district court judges retained the discretion to use such statements to preempt a jury trial in the Cleveland ruling.

Message 2 attaches to Murphy v. UPS and Sutton v. UAL. Both plaintiffs assumed that their disabilities would be evaluated in their unmitigated states based on an EEOC guideline that was ultimately struck down.

Message 3 attaches to Albertsons v. Kirkingburg, where Kirkingburg relied on a DOT waiver that was also struck down. Indeed, Murphy could have challenged the DOT regulation to which the waiver applied (but instead, was encouraged by a doctor to apply for the waiver). For example, a DOT regulation excluding bus drivers with hearing aids was struck down in Strathie v. DOT (1983). Had Kirkingburg made such a challenge, his "impeccable" driving record would have worked to his advantage.⁹ Instead, his abilities to self-mitigate worked to his disadvantage.

⁹ This case could have been Strathie revisited. Strathie proved that hearing aids are no more dangerous for bus drivers than eye glasses (which are permitted by DOT rules). Kirkingburg could have forced the DOT to prove why reliance on monocular vision poses a direct threat to safety.

Message 4 attaches to all for rulings, but it impacted Kirkingburg and Murphy more so than the other plaintiffs. Based on Souter's ruling, Kirkingburg could have passed the severity test in spite of self-mitigation, and based on O'Connor's ruling (in Sutton), Murphy could have done likewise in spite of external mitigation. Clearly, no impairment should be viewed as a disability as a matter of law.

Message 5 attaches to Sutton v. UAL, and closely relates to Message 2. Lower courts routinely evaluate working as a major life activity based on EEOC guidance. However, the author is aware of no plaintiff victory in this domain.¹⁰. O'Connor strongly suggested (in Sutton) that the EEOC guidance on this issue in invalid, but did not rule so directly because the defendant did not challenge working as a valid major life activity.

¹⁰ There are numerous cases illustrating the difficulties in using working as a major life activity. The interested reader is directed to Modjeska (1993), Gutman (1994), Perritt (1994), Hartman, Homer & Reff (1998) & Gutman (in press) for more specific case descriptions.

Message 6 attaches to Sutton v. UAL, and to other company-specific exclusionary rules. The twins could not challenge the UAL because they blundered (by citing working, not vision, as the major life activity). In comparison, in Sarsycki v. UPS (1994), Sarsycki defeated a UPS rule that exceeded DOT standards (for diabetics), and in Doane v. Omaha (1997), there was no federal regulation to rely on. In the author's opinion, had the plaintiffs in Sutton not blundered, UAL would have been forced into a statutory direct threat defense (which UPS lost in the Sarsycki case). This is not to imply that UAL would have lost in the Sutton case, but rather, that any employer should be prepared to prove direct threat for company-specific exclusionary rules.

In conclusion, there are a myriad of "hard" and "soft" messages for both plaintiffs and defendants that are likely to be explored in more detail in future cases.

References

Albertsons v. Kirkingburg (1999) WL 407456 (No. 98-591).

Alexander v. Choate (1985) 469 US 287.

Allison v. Corrections (CA2 1996) 94 F.3d 494.

Arnold v. United Parcel Service (CA1 1998) 136 F.3d 854.

Baert v. Euclid Beverage, Ltd. (CA7 1998) 149 F.3d 626.

Bartlett v. NY State (CA2 1998) 156 F.3d 321.

Cleveland v. Policy Management (1999) 140 LED 2d 664 (No. 97-1008).

Doane v. City of Omaha (CA8 1997) 115 F.3d 624.

Gilbert v. Frank (CA2 1991) 949 F.2d 637.

Gutman, A. (1994). Reexamining the status of preemployment psychological testing under the ADA. Criminal Justice Digest, 13, 1_6.

Gutman, A. (in press). EEO Law and Personnel Practices (2nd Edition). Newbury Park, CA Sage Publications.

Hartman, G.S., Homer, G.W. & Reff, A.H. (1998). Current Employment Law and Related Litigation. Winston-Salen, NC: University of Wake Forest Law School.

Hollihan v. Lucky Stores (CA9 1996) 87 F.3d 362.

Katz v. City Metal (CA1 1996) 87 F.3d 426.

Matczak v. Frankford Candy & Chocolate (CA 3 1997) 136 F.3d 933.

McDonald v. Pennsylvania (CA3 1998) 62 F.3d 62.

McKay v. Toyota (CA6 1997) 110 F.3d 369.

McNemer v. Disney Stores (CA3 1996) 91 F.3d 610.

Miller v. Illinois (CA7 1996) 107 F.3d 483.

Milton v.. Scrivner, Inc. (CA10 1995) 53 F.3d 1118.

Modjeska, L.M. (1993). Employment Discrimination Law (3rd Edition). Rochester, NY The Lawyers Co-operative Publishing Co.

Murphy v. United Parcel Service (1999) 119 S.Ct. 1331.

Perritt, Henry H., Jr. (1994). Americans With Disabilities Act Handbook (3rd Edition). New York: John Wiley & Sons.

Penny v. UPS (CA6 1997) 128 F.3d 408.

Player, M.A. (1981). Federal Law of Employment Discrimination. St. Paul, MN West Publishing.

Prewitt v. U.S. Postal Service (CA5 1981) 662 F.2d 292.

Sarsycki v. UPS (W.D.Ok 1994) 862 F.Supp 336.

School Board of Nassau County v. Arline (1987) 480 US 273.

Simon v. Safelite Glass (CA2 1997) 128 F.3d 68.

Simon v. St. Louis (CA8 1984) 656 F.2d 316.

Southeastern Community College v. Davis (1979) 442 US 397.

Strathie v. Dept. of Transportation (CA3 1983) 716 F.2d 227.

Sutton v. United Air Lines (1999) WL 407488 (No. 97-1943).

Swanks v. Washington Transit (CA DC 1997) 116 F.3d 582.

Talevera v. Palm Beach County (CA11 1997) 129 F.3d 1214.

Treadwell v. Alexander (CA11 1983) 707 F.2d 473.

Weigel v. Target Stores (CA7 1997) 122 F.3d 461.

White v. York Int'l Corp. (CA10 1995) 45 F.3d 357.

Williams v. Channel Master (CA6 1996) 101 F.3d 346.

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