June 23, 1999 

RE: Important Change in the Law 

To Our Clients and Friends: 

Yesterday, the United States Supreme Court issued three decisions which significantly narrowed an employer's obligations under the Americans With Disabilities Act of 1990 (ADA). While the three decisions were highly anticipated, the substance of these decisions and their benefits to the management community are a welcome surprise. 

In the first case, two nearsighted twin sisters were rejected for commercial airline pilot positions by United Air Lines because they did not meet United's in-house standard for uncorrected visual acuity.  However, when they wore corrective lenses, both sisters could see 20/20 or better. 

The primary issue in the United Air Lines case was should the determination of whether the sisters met the ADA's definition of "individual with a disability" be made with or without considering the corrective effects of wearing glasses. 

In a surprising move, the Supreme Court decided that the determination of disability must be made in its mitigated state (with glasses), in part because that is how each sister would report for work if hired.  This decision is a reversal of established case law throughout the areas in which we practice.  The Courts of Appeals for the First and Second Federal Circuits had both held to the contrary.  That case law is nullified in light of the Supreme Court's decision.  The Equal Employment Opportunity Commission's Interpretive Guidance on this subject was similar to the Courts of Appeals case law and has been nullified as well.  The United decision cuts the number of applicants and employees who are entitled to protection under the ADA by a very significant margin. 
 
To be sure a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not "substantially limi(t) a major life activity. . . . "The use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting."  (emphasis original). 
 
The second major holding of the United Air Lines case addressed the question of perceived disability and thus whether United perceived the twins as disabled.  The genesis of this issue arose from United's treatment of corrected vision versus uncorrected vision and the fact that United refused to equate the two even if one's vision could be corrected to exceed United's uncorrected standard. Again, the Supreme Court made a very significant pronouncement in favor of management's rights. "[A]n employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment - such as one's height, build, or singing voice - are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job."  (emphasis original).  In other words, United's standard for requiring a certain level of uncorrected vision did not rise to the level necessary to violate the ADA. 

In the second case, a UPS mechanic with a lifelong blood pressure problem could not be DOT certified.  With medication, he could control his blood pressure but not enough to meet the DOT standard.  Thus, he could work as a mechanic only in situations which did not require a certification. Here, the Supreme Court decided whether the mechanic should be analyzed in his medicated or unmedicated state to determine whether he was an individual with a disability.  The Supreme Court's answer was the medicated state and thus the mechanic was not protected under the ADA.  Again, this decision represents a departure from what our Courts of Appeals have said.  In reviewing whether the mechanic was "regarded as" disabled, the Court said such a finding would require a showing that he was regarded as unable to perform a class of jobs and not just a particular job.  In this instance, only certain mechanics need to be DOT certified and thus this mechanic was not protected under the ADA. Reading between the lines, the Court said that the ADA is designed to protect against general prejudice rather than individual job standards. 

In the third decision, an over the road driver had monocular vision which did not meet federal safety regulations.  However, this driver was able to secure a DOT waiver under an experimental program.  In this case, the driver had otherwise learned to compensate for his vision defect. 

The Supreme Court held that a significant difference in how one sees does not equate with or rise to the level of a significant restriction or limitation.  "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."  After refusing to recognize the DOT waiver program as anything more than an experiment, the Supreme Court also clarified that an employer has the right to insist on the standard set by an applicable federal regulation without running afoul of the ADA. 

Taken as a whole, the Supreme Court gutted the expansive definition of an individual with a disability created by the lower courts over the past seven years.  Going forward, the definition shall be more focused on the reality of how an employee presents himself for work rather than on some expansive abstract notion of disability that bears no relation to the practicalities of the workplace.