Plaintiffs in Sutton are twin sisters who are commercial pilots.
They are both severely myopic, with uncorrected vision of worse than 20/200.
They applied to be airline pilots and were turned down because the airline required
pilots to have uncorrected vision of 20/100 or better. Plaintiffs sued under
the ADA, claiming discrimination. The plaintiffs' specific claim is not clear
from the case because the court dismissed their case finding they were not covered
by the ADA. It is assumed that they claimed that either the uncorrected 20/100
standard is discriminatory because it ignores the effectiveness of their accomodation,
or that they were otherwise qualified because of their corrected vision.
The district court's opinion points up the dilemma of an ADA
discrimination claim based on being otherwise qualified because of an accomodation:
if the plaintiff shows that the accomodation eliminates the effect of the disability,
the defendant will then counter that the plaintiff is not covered by the ADA.
As the court found:
"First, Plaintiffs do not claim any restrictions on their activities
other than their inability to obtain employment as passenger airline pilots
for United. Plaintiffs do not allege that they have any medical restrictions.
Plaintiffs do not allege any activity that they are unable to perform that the
average person in the general population can perform, nor do they state that
they suffer from any significant restrictions in any activities as compared
to the average person. See 29 C.F.R. § 1630.2(l)(i) and (ii). Indeed, they
are currently employed as commercial airline pilots. Plaintiffs concede that,
with their corrective lenses, they are able to function identically to individuals
without a similar impairment. An individual is not substantially limited in
a major life activity if the limitation, when viewed in light of the factors
in 29 C.F.R. § 1630.2(j)(2), does not amount to a significant restriction
when compared with the abilities of the average person. 29 C.F.R. Pt. 1630 App.
Thus, when mitigations are considered, plaintiffs are only impaired
in the life activity of working as an airline pilot. The court rejects this
argument, finds that a specific job is not a significant life activity. To interfere
with the significant life activity of working, a person must either be unable
to work, or at least unable to work at a broad class of jobs. That plaintiffs
were able to work as pilots, albeit not as airline pilots, meant that they were
impaired in the significant life activity of working and thus, not being impaired
in any significant life activity, they were not covered by the ADA. The district
court also rejected their claim that they were perceived as disabled. It found
that it is not an improper presumption of disability to assume someone has a
condition that itself, with mitigation, is not a disability.
The Supreme Court accepted the district court's rationale and
upheld the determination that the plaintiffs are not disabled as defined by
the ADA. The court based this on both the plain language of the ADA and on a
reading of the legislative history as regards the number of people that Congress
said would be covered by the ADA. The court found that the number of covered
individuals would be much larger if it included persons with successfully mitigated
conditions such as the plaintiffs. The court also argued that considering the
unmitigated condition would foreclose plaintiff from claiming that the mitigation
itself, such as anti-psychotic medications, were disabling.
The court found that employers may make decisions based on an
employee's physical and mental conditions, as long as those conditions under
consideration do not significantly impair a major life activity:
"By its terms, the ADA allows employers to prefer some physical
attributes over others and to establish physical criteria. An employer runs
afoul of the ADA when it makes an employment decision based on a physical or
mental impairment, real or imagined, that is regarded as substantially limiting
a major life activity. Accordingly, an 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."
There are some flaws in the court's analysis. In this case,
plaintiffs' corrected vision did not significantly interfere with a major life
activity, which would disqualify plaintiffs from the coverage of the ADA. The
defendant's standard, however, is a standard for plaintiff's uncorrected vision,
which is bad enough to be an impairment of the significant life activity of
seeing. Thus plaintiffs' corrected vision forecloses them from challenging defendant's
standard, even though defendant's standard is based on uncorrected vision. This
is very different from the court's examples of better singing voices or different
heights or eye colors. A bad singing voice, being 5'6', or having blue eyes
does not make a person disabled. Having vision worse than 20/200 does, when
the issue is uncorrected vision.
Sutton may be a case of bad facts making bad law. Uncorrected
vision may be important to an airline pilot because there are circumstances
when the pilot may have to rely his/her uncorrected vision. (Smoke and condensation
could make glasses and contacts ineffective, for example.) The court may have
been reluctant to interfere with the employer's ability to consider uncorrected
vision because of this safety issue. It would have been better, however, to
acknowledge the safety issue and analyze the employee's fitness and the appropriateness
of the uncorrected vision standard under the direct threat standard of the ADA
as explicated in Bragdon.
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