What's The Meaning?

Colorado twin sisters Karen Sutton and Kimberly Hinton wanted to become commercial airline pilots. But when they applied for pilot positions with United Airlines, the twins met all the basic job requirements except one: Both are severely nearsighted. Although each has 20/20 vision with the aid of her glasses, United still refused to hire them. In response to the airline's decision, the sisters sued under the Americans with Disabilities Act (ADA), which prohibits discrimination against disabled people. But are they really disabled?

That's the question the U.S. Supreme Court agreed to consider when it took the case, after both the District Court and the Tenth Circuit U.S. Court of Appeals ruled in favor of the airline. And on June 22, the Supreme Court handed down its decision in this case, in addition to two others, all raising the question of exactly who is entitled to ADA protection. In all three cases, the court issued rulings that narrow the definition of disability. According to the rulings, none of the plaintiffs--three with poor eyesight and one with high blood pressure--qualified for protection under the ADA.

So what does this mean for entrepreneurs? The decisions could make life easier for employers fraught with questionable lawsuits over alleged discrimination.

In the Sutton case, the sisters offered two arguments. First, they argued that although otherwise qualified for the job, they were actually disabled because of their eyesight, so the employer was obligated by law to provide reasonable accommodations. Second, they argued that they were "regarded" as disabled, which under the ADA qualifies people for protection just as much as actual disability.

On the first issue, the key question was whether the determination of disability should be made with or without reference to measures taken to mitigate the disability. That is, should the court consider whether the twins are disabled without the aid of their glasses, or with the benefits their glasses provide? The justices noted that the language of the ADA defines a disability as an impairment that "substantially limits one or more major life activities," not that it "could" or "might" limit them. Since the sisters applied for the job with their vision improved by corrective lenses, they did not qualify as disabled. Further, the justices noted, the ADA found that 43 million Americans have one or more physical or mental disability. But if everyone who needed glasses, a hearing aid, heart medication or other corrective device was classified as disabled, the group would include approximately 160 million people.

But were the twins denied employment because they were "regarded" as disabled? The sisters argued that the airline's vision requirement was based on myth and stereotype, and that it wrongly assumed they were substantially limited from the major life activity of working. The court disagreed, noting that the women were precluded from only one type of job, so the employer wasn't operating according to its belief in stereotypes. The ADA allows employers to prefer some physical attributes over others, so long as the discouraged attributes aren't actual disabilities.

Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

Who's Disabled?

The other two cases decided by the court concerned similar issues. In Oregon, a doctor erroneously certified that truck driver Hallie Kirkingburg, who is nearly blind in one eye, met Department of Transportation (DOT) standards for commercial truck drivers. With that assessment, Kirkingburg worked as a truck driver for two years for the supermarket chain Albertsons Inc. When his vision was correctly assessed in a subsequent physical, Albertsons discharged him, refusing to accept a DOT waiver of the vision standard. Kirkingburg sued under the ADA. Although the lower court ruled in favor of the employer, the Ninth Circuit U.S. Court of Appeals ruled that Kirkingburg had established a disability because his manner of seeing was "different" from the way most people see.

In accord with its decision in the Sutton case, the Supreme Court ruled that because Kirkingburg's mind had compensated for the impairment, he didn't qualify as being disabled under the ADA. Albertsons wasn't required by law to participate in the waiver program, which amounted to a DOT experiment.

The third case concerned Vaughn Murphy, a Kansas mechanic for UPS Inc. Murphy was discharged because high blood pressure precluded his meeting DOT health standards--a requirement because his job included test-driving the vehicles he repaired. The Supreme Court upheld the ruling of the Tenth Circuit U.S. Court of Appeals that, because Murphy's high blood pressure was controlled by medication, he was not disabled. Nor was he regarded as disabled, because the reason for termination was his inability to obtain DOT health certification, not some perception that he wasn't capable of performing a broad range of jobs.

Court V. EEOC

"The ADA isn't meant to guarantee every individual the ability to get every job that's out there," says employment law specialist Jennifer Kearns, a partner with Brobeck, Phleger & Harrison LLP in San Diego. Kearns notes that the June 22 decisions are especially significant because the Supreme Court calls into question the interpretive guidelines promulgated to the Equal Employment Opportunity Commission (EEOC). "We have the statute--the ADA--plus the whole body of EEOC guidelines and regulations," she says.

While employers have taken for granted that EEOC regulations have the force of law, the Supreme Court opinion specifically overruled one EEOC guideline by stating that the decision whether someone is disabled should take into account corrective measure. The court even stated that the EEOC's regulation to the contrary is "an impermissible interpretation of the ADA." On another issue, whether the EEOC's definition of "major life activity" includes working, the justices noted that they were not ruling on whether the regulations were valid. "I think that's a red flag for issues that are going to be litigated in the future," Kearns says.

Law professor Ruth Colker of The Ohio State University College of Law in Columbus and co-author of The Law of Disability Discrimination (Anderson Publishing), the leading casebook on the ADA, considers the rulings a watershed. She explains that the ADA only allows people to sue under the act if they meet the definition for being disabled. Anyone can sue over alleged discrimination under Title VII of the Civil Rights Act, leaving it to the courts to decide whether or not discrimination took place. Under the ADA, however, people who don't meet the definition of being disabled aren't permitted to sue. "These decisions raise the threshold," says Colker, who contends the court's decision runs contrary to the intent of Congress in framing the ADA.

Fewer ADA Lawsuits

Irving Miller, an employment law attorney with Akerman, Senterfitt & Eidson in Miami, disagrees. "The framers of the ADA had the most altruistic motives in mind," he says. "They believed people with disabilities weren't getting access to the working world." But in practice, he contends, most of those who sue under the ADA aren't really disabled. "Anyone fired at work finds a way to tie it to some protected category."

"These decisions are going to cut down considerably on the number of frivolous lawsuits filed against employers by people with all kinds of phantom disabilities," predicts Miller, who worked for the EEOC for 15 years before entering private practice. He contends that the decisions will discourage plaintiffs' attorneys, who are typically paid a percentage of the damages, from taking disability discrimination cases that really have no merit.

So what's the message that employers need to consider? Experts offer the following observations:

• Be aware. "You definitely need to be aware of potential ADA issues," says Kearns. While businesses with 15 or fewer employees are presently not covered by the ADA, state laws may have lower thresholds. California's equivalent, for instance, applies to businesses with five or more employees.
• Don't assume. "The fact that someone has an impairment or needs correction doesn't mean he or she is disabled," Kearns adds. Nor does it mean this person isn't disabled. An employee taking medication for a heart problem might function normally, or might not be able to walk 10 steps without resting. Disability questions must be decided on a case-by-case basis.
• Expect fewer lawsuits. The Supreme Court precedent should discourage frivolous lawsuits over disabilities, without doing harm to those who genuinely need the protection of the ADA. For those cases that fall in between, Colker predicts employers will be in a stronger position for settlement.
• Consider appeals. "If your business has recently lost an ADA case, talk to a lawyer about appealing," Colker says. Because the rulings are an authoritative interpretation of existing law, prior cases could be affected if appealed now.

Contact Sources

Akerman, Senterfitt & Eidson,imiller@akerman.com

Brobeck, Phleger & Harrison LLP,jkearns@brobeck.com, http://www.brobeck.com