ADA Amendments — What Difference Will They Make If They Become Law? (Part III)

woman in wheelchair with arms outstretched
We continue our series on legislation to amend the Americans with Disabilities Act (ADA) by examining how the the ADA Amendments Act of 2008 (“ADAAA”), now before the Senate, would change the impact of mitigating measures such as prostheses and medication on the determination of whether an individual has a disability for ADA purposes.

This series is now even more timely, as last week the Senate passed the ADAAA by unanimous consent, and the bill (S. 3406) now moves to the House for approval. If passed there, it will be sent to President Bush. If the House accepts the Senate version of the bill, it could arrive on the President’s desk with a veto-proof majority.

Mitigating Measures and Proof of ADA Disability Under Sutton

Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), preceded the Toyota case, discussed in Part II of this series.

Like Toyota, Sutton is a Supreme Court decision that the ADAAA is expressly intended to overrule. Section 2(b)(2) of the ADAAA states that the Act’s purposes include:

to reject the requirement enunciated by the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures.

Sutton involved a pair of severely myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline’s policy required “uncorrected visual acuity of 20/100 or better,” which they did not have.

The Court held that because the sisters’ vision was corrected they did not satisfy the definition of “disability” and thus could not challenge the airline’s policy. The Court announced this rule:

[I]f a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures -– both positive and negative –- must be taken into account when judging whether that person is “substantially limited” in a major life activity and thus “disabled” under the Act.

With this rule applied, the sisters failed to cross the “disability” threshold. Therefore, the Court never dealt with the core issue of whether the airline’s requirement of relatively good uncorrected vision was justifiable.

On the facts of Sutton, that requirement may not appear problematic, as it seems quite reasonable for airline pilots, especially post-9/11 (one can easily imagine glasses being knocked off during a fracas with a terrorist in a pilot’s cabin).

The Companion Cases to Sutton: Murphy and Albertsons

In Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), UPS hired a mechanic who had high blood pressure that was being treated with medication.

The position required him to drive commercial vehicles, so he had to satisfy Department of Transportation (DOT) health certification requirements, including having “no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely.”

He was erroneously granted certification and commenced work. After the error was discovered, UPS fired him, believing his blood pressure exceeded DOT requirements. His doctor testified that he functioned normally in everyday activities when medicated.

The Court held in Murphy that the high blood pressure was not a disability because under Sutton the determination of whether an impairment substantially limits one or more major life activities is made taking into account any mitigating measures used.

As in Sutton, this holding precluded consideration of the legitimacy of the employer’s action under ADA standards.

Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999), also involved DOT requirements. The case was brought by a truck driver who had uncorrectible poor vision in one eye that caused him to effectively have monocular vision. The employer terminated him when it learned this fact.

The Supreme Court again applied Sutton. But what was the mitigating measure? The driver’s own brain, which had adequately learned to compensate automatically for his vision impairment.

Thus, the lesson of Albertsons is that mitigating measures must be taken into account in judging whether an individual has a disability, whether the measures are artificial aids, like medications and devices, or the body’s own systems.

In the next part of this series: how the ADAAA changes the role of mitigating measures in proof of disability under the ADA.

Thanks to Karen Tofte for her invaluable assistance in the preparation of this series.

Photo credit bunnyandcoco via flickr


  1. David Cope

    It appears that according to the amendments to the ADA, a transitory impairment such as the flu would qualify as a disability under the first prong, since temporary impairments are explicitly excluded from the definition of disability only in the third prong.

    Would you consider a future article that addresses this significant expansion of the need for accommodations?

  2. Dave Ryan

    Transitory means it comes and goes (think remission). The flu runs its course and is gone forever.

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