|||United States Supreme Court
|||119 S.Ct. 2139, 144 L.Ed.2d 450, 9 A.D. Cases 673, 1999.SCT.42131 <http://www.versuslaw.com>,
67 USLW 3681, 67 USLW 4537
|||June 22, 1999
||| KAREN SUTTON AND KIMBERLY HINTON, PETITIONERS
UNITED AIR LINES, INC.
|||SYLLABUS BY THE COURT
|||OCTOBER TERM, 1998
|||SUTTON v. UNITED AIR LINES, INC.
|||NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
|||SUPREME COURT OF THE UNITED STATES
|||SUTTON et al. v. UNITED AIR LINES, INC.
|||certiorari to the united states court of appeals for the tenth circuit
|||Argued April 28, 1999
|||Decided June 22, 1999
|||Petitioners, severely myopic twin sisters, have uncorrected visual acuity
of 20/200 or worse, but with corrective measures, both function identically
to individuals without similar impairments. They applied to respondent,
a major commercial airline carrier, for employment as commercial airline
pilots but were rejected because they did not meet respondent's minimum
requirement of uncorrected visual acuity of 20/100 or better. Consequently,
they filed suit under the Americans with Disabilities Act of 1990 (ADA),
which prohibits covered employers from discriminating against individuals
on the basis of their disabilities. Among other things, the ADA defines
a "disability" as "a physical or mental impairment that substantially limits
one or more ... major life activities," 42 U. S. C. §12102(2)(A), or
as "being regarded as having such an impairment," §12102(2)(C). The
District Court dismissed petitioners' complaint for failure to state a claim
upon which relief could be granted. The court held that petitioners were
not actually disabled under subsection (A) of the disability definition
because they could fully correct their visual impairments. The court also
determined that petitioners were not "regarded" by respondent as disabled
under subsection (C) of this definition. Petitioners had alleged only that
respondent regarded them as unable to satisfy the requirements of a particular
job, global airline pilot. These allegations were insufficient to state
a claim that petitioners were regarded as substantially limited in the major
life activity of working. Employing similar logic, the Tenth Circuit affirmed.
|||Held: Petitioners have not alleged that they are "disabled" within the
ADA's meaning. Pp. 4-21.
|||(a) No agency has been delegated authority to interpret the term "disability"
as it is used in the ADA. The EEOC has, nevertheless, issued regulations
that, among other things, define "physical impairment" to mean "[a]ny physiological
disorder . . . affecting . . . special sense organs," "substantially limits"
to mean "[u]nable to perform a major life activity that the average person
in the general population can perform," and "[m]ajor [l]ife [a]ctivities
[to] mea[n] functions such as . . . working." Because both parties accept
these regulations as valid, and determining their validity is not necessary
to decide this case, the Court has no occasion to consider what deference
they are due, if any. The EEOC and the Justice Department have also issued
interpretive guidelines providing that the determination whether an individual
is substantially limited in a major life activity must be made on a case
by case basis, without regard to mitigating measures such as assistive or
prosthetic devices. Although the parties dispute the guidelines' persuasive
force, the Court has no need in this case to decide what deference is due.
|||(b) Petitioners have not stated a §12102(2)(A) claim that they have
an actual physical impairment that substantially limits them in one or more
major life activities. Three separate ADA provisions, read in concert, lead
to the Conclusion that the determination whether an individual is disabled
should be made with reference to measures, such as eyeglasses and contact
lenses, that mitigate the individual's impairment, and that the approach
adopted by the agency guidelines is an impermissible interpretation of the
ADA. First, because the phrase "substantially limits" appears in subsection
(A) in the present indicative verb form, the language is properly read as
requiring that a person be presently -- not potentially or hypothetically
-- substantially limited in order to demonstrate a disability. A "disability"
exists only where an impairment "substantially limits" a major life activity,
not where it "might," "could," or "would" be substantially limiting if corrective
measures were not taken. Second, because subsection (A) requires that disabilities
be evaluated "with respect to an individual" and be determined based on
whether an impairment substantially limits the individual's "major life
activities," the question whether a person has a disability under the ADA
is an individualized inquiry. See Bragdon v. Abbott, 524 U. S. 624, 641-642.
The guidelines' directive that persons be Judged in their uncorrected or
unmitigated state runs directly counter to this mandated individualized
inquiry. The former would create a system in which persons would often be
treated as members of a group having similar impairments, rather than as
individuals. It could also lead to the anomalous result that courts and
employers could not consider any negative side effects suffered by the individual
resulting from the use of mitigating measures, even when those side effects
are very severe. Finally, and critically, the Congressional finding that
43 million Americans have one or more physical or mental disabilities, see
§12101(a)(1), requires the Conclusion that Congress did not intend
to bring under the ADA's protection all those whose uncorrected conditions
amount to disabilities. That group would include more than 160 million people.
Because petitioners allege that with corrective measures their vision is
20/20 or better, they are not actually disabled under subsection (A). Pp.
|||(c) Petitioners have also failed to allege properly that they are "regarded
as," see §12101(2)(C), having an impairment that "substantially limits"
a major life activity, see §12102(2)(A). Generally, these claims arise
when an employer mistakenly believes that an individual has a substantially
limiting impairment. To support their claims, petitioners allege that respondent
has an impermissible vision requirement that is based on myth and stereotype
and that respondent mistakenly believes that, due to their poor vision,
petitioners are unable to work as "global airline pilots" and are thus substantially
limited in the major life activity of working. Creating physical criteria
for a job, without more, does not violate the ADA. The ADA allows employers
to prefer some physical attributes over others, so long as those attributes
do not rise to the level of substantially limiting impairments. An employer
is free to decide that physical characteristics or medical conditions that
are not impairments 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. In addition, petitioners have not sufficiently
alleged that they are regarded as substantially limited in the major life
activity of working. When the major life activity under consideration is
that of working, the ADA requires, at least, that one's ability to work
be significantly reduced. The EEOC regulations similarly define "substantially
limits" to mean significantly restricted in the ability to perform either
a class of jobs or a broad range of jobs in various classes as compared
to the average person having comparable training, skills and abilities.
The Court assumes without deciding that work is a major life activity and
that this regulation is reasonable. It observes, however, that defining
"major life activities" to include work has the potential to make the ADA
circular. Assuming work is a major life activity, the Court finds that petitioners'
allegations are insufficient because the position of global airline pilot
is a single job. Indeed, a number of other positions utilizing petitioners'
skills, such as regional pilot and pilot instructor, are available to them.
The Court also rejects petitioners' argument that they would be substantially
limited in their ability to work if it is assumed that a substantial number
of airlines have vision requirements similar to respondent's. This argument
is flawed because it is not enough to say that if the otherwise permissible
physical criteria or preferences of a single employer were imputed to all
similar employers one would be regarded as substantially limited in the
major life activity of working only as a result of this imputation. Rather,
an employer's physical criteria are permissible so long as they do not cause
the employer to make an employment decision based on an impairment, real
or imagined, that it regards as substantially limiting a major life activity.
Petitioners have not alleged, and cannot demonstrate, that respondent's
vision requirement reflects a belief that their vision substantially limits
them. Pp. 15-21.
|||130 F. 3d 893, affirmed.
|||O'Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Ginsburg,
J., filed a Concurring opinion. Stevens, J., filed a Dissenting opinion,
in which Breyer, J., joined. Breyer, J., filed a Dissenting opinion.
|||Court Below: 130 F. 3d 893
|||The opinion of the court was delivered by: Justice O'Connor
|||Opinion of the Court
|||SUTTON v. UNITED AIR LINES, INC.
|||____ U. S. ____ (1999)
|||On Writ Of Certiorari To The United States Court Of Appeals For The Tenth
|||The Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 328,
42 U. S. C. §12101 et seq., prohibits certain employers from discriminating
against individuals on the basis of their disabilities. See §12112(a).
Petitioners challenge the dismissal of their ADA action for failure to state
a claim upon which relief can be granted. We conclude that the complaint
was properly dismissed. In reaching that result, we hold that the determination
of whether an individual is disabled should be made with reference to measures
that mitigate the individual's impairment, including, in this instance,
eyeglasses and contact lenses. In addition, we hold that petitioners failed
to allege properly that respondent "regarded" them as having a disability
within the meaning of the ADA.
|||Petitioners' amended complaint was dismissed for failure to state a claim
upon which relief could be granted. See Fed. Rule Civ. Proc. 12(b)(6). Accordingly,
we accept the allegations contained in their complaint as true for purposes
of this case. See United States v. Gaubert, 499 U. S. 315, 327 (1991).
|||Petitioners are twin sisters, both of whom have severe myopia. Each petitioner's
uncorrected visual acuity is 20/200 or worse in her right eye and 20/400
or worse in her left eye, but "[w]ith the use of corrective lenses, each
... has vision that is 20/20 or better." App. 23. Consequently, without
corrective lenses, each "effectively cannot see to conduct numerous activities
such as driving a vehicle, watching television or shopping in public stores,"
id., at 24, but with corrective measures, such as glasses or contact lenses,
both "function identically to individuals without a similar impairment,"
|||In 1992, petitioners applied to respondent for employment as commercial
airline pilots. They met respondent's basic age, education, experience,
and FAA certification qualifications. After submitting their applications
for employment, both petitioners were invited by respondent to an interview
and to flight simulator tests. Both were told during their interviews, however,
that a mistake had been made in inviting them to interview because petitioners
did not meet respondent's minimum vision requirement, which was uncorrected
visual acuity of 20/100 or better. Due to their failure to meet this requirement,
petitioners' interviews were terminated, and neither was offered a pilot
|||In light of respondent's proffered reason for rejecting them, petitioners
filed a charge of disability discrimination under the ADA with the Equal
Employment Opportunity Commission (EEOC). After receiving a right to sue
letter, petitioners filed suit in the United States District Court for the
District of Colorado, alleging that respondent had discriminated against
them "on the basis of their disability, or because [respondent] regarded
[petitioners] as having a disability" in violation of the ADA. App. 26.
Specifically, petitioners alleged that due to their severe myopia they actually
have a substantially limiting impairment or are regarded as having such
an impairment, see id., at 23-26, and are thus disabled under the Act.
|||The District Court dismissed petitioners' complaint for failure to state
a claim upon which relief could be granted. See Civ. A. No. 96-5-121 (Aug.
28, 1996), App. to Pet. for Cert. A-27. Because petitioners could fully
correct their visual impairments, the court held that they were not actually
substantially limited in any major life activity and thus had not stated
a claim that they were disabled within the meaning of the ADA. Id., at A-32
to A-36. The court also determined that petitioners had not made allegations
sufficient to support their claim that they were "regarded" by the respondent
as having an impairment that substantially limits a major life activity.
Id., at A-36 to A-37. The court observed that "[t]he statutory reference
to a substantial limitation indicates ... that an employer regards an employee
as handicapped in his or her ability to work by finding the employee's impairment
to foreclose generally the type of employment involved." Id., at A36 to
A37. But petitioners had alleged only that respondent regarded them as unable
to satisfy the requirements of a particular job, global airline pilot. Consequently,
the court held that petitioners had not stated a claim that they were regarded
as substantially limited in the major life activity of working. Employing
similar logic, the Court of Appeals for the Tenth Circuit affirmed the District
Court's judgment. 130 F. 3d 893 (1997).
|||The Tenth Circuit's decision is in tension with the decisions of other
Courts of Appeals. See, e.g., Bartlett v. New York State Bd. of Law Examiners,
156 F. 3d 321, 329 (CA2 1998) (holding self-accommodations cannot be considered
when determining a disability), cert. pending, No. 98-1285; Baert v. Euclid
Beverage, Ltd., 149 F. 3d 626, 629-630 (CA7 1998) (holding disabilities
should be determined without reference to mitigating measures); Matczak
v. Frankford Candy & Chocolate Co., 136 F. 3d 933, 937-938 (CA3 1997) (same);
Arnold v. United Parcel Service, Inc., 136 F. 3d 854, 859-866 (CA1 1998)
(same); see also Washington v. HCA Health Servs. of Texas, Inc., 152 F.
3d 464, 470-471 (CA5 1998) (holding that only some impairments should be
evaluated in their uncorrected state), cert. pending, No. 98-1365. We granted
certiorari, 525 U. S. ___ (1999), and now affirm.
|||The ADA prohibits discrimination by covered entities, including private
employers, against qualified individuals with a disability. Specifically,
it provides that no covered employer "shall discriminate against a qualified
individual with a disability because of the disability of such individual
in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions,
and privileges of employment." 42 U. S. C. §12112(a); see also §12111(2)
("The term `covered entity' means an employer, employment agency, labor
organization, or joint labor-management committee"). A "qualified individual
with a disability" is identified as "an individual with a disability who,
with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires." §12111(8).
In turn, a "disability" is defined as:
|||"(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;"
|||"(B) a record of such an impairment; or"
|||"(C) being regarded as having such an impairment." §12102(2).
|||Accordingly, to fall within this definition one must have an actual disability
(subsection (A)), have a record of a disability (subsection (B)), or be
regarded as having one (subsection (C)).
|||The parties agree that the authority to issue regulations to implement
the Act is split primarily among three Government agencies. According to
the parties, the EEOC has authority to issue regulations to carry out the
employment provisions in Title I of the ADA, §§12111-12117, pursuant
to §12116 ("Not later than 1 year after [the date of enactment of this
Act], the Commission shall issue regulations in an accessible format to
carry out this subchapter in accordance with subchapter II of chapter 5
of title 5"). The Attorney General is granted authority to issue regulations
with respect to Title II, subtitle A, §§12131-12134, which relates
to public services. See §12134 ("Not later than 1 year after [the date
of enactment of this Act], the Attorney General shall promulgate regulations
in an accessible format that implement this part"). Finally, the Secretary
of Transportation has authority to issue regulations pertaining to the transportation
provisions of Titles II and III. See §12149(a) ("Not later than 1 year
after [the date of enactment of this Act], the Secretary of Transportation
shall issue regulations, in an accessible format, necessary for carrying
out this subpart (other than section 12143 of this title)"); §12164
(substantially same); §12186(a)(1) (substantially same); §12143(b)
("Not later than one year after [the date of enactment of this Act], the
Secretary shall issue final regulations to carry out this section"). See
also §12204 (granting authority to the Architectural and Transportation
Barriers Compliance Board to issue minimum guidelines to supplement the
existing Minimum Guidelines and Requirements for Accessible Design). Moreover,
each of these agencies is authorized to offer technical assistance regarding
the provisions they administer. See §12206(c)(1) ("Each Federal agency
that has responsibility under paragraph (2) for implementing this chapter
may render technical assistance to individuals and institutions that have
rights or duties under the respective subchapter or subchapters of this
chapter for which such agency has responsibility").
|||No agency, however, has been given authority to issue regulations implementing
the generally applicable provisions of the ADA, see §§12101-12102,
which fall outside Titles I-V. Most notably, no agency has been delegated
authority to interpret the term "disability." §12102(2). Justice Breyer's
contrary, imaginative interpretation of the Act's delegation provisions,
see post, at 1-2 (dissenting opinion), is belied by the terms and structure
of the ADA. The EEOC has, nonetheless, issued regulations to provide additional
guidance regarding the proper interpretation of this term. After restating
the definition of disability given in the statute, see 29 CFR §1630.2(g)
(1998), the EEOC regulations define the three elements of disability: (1)
"physical or mental impairment," (2) "substantially limits," and (3) "major
life activities." See id., at §§1630.2(h)-(j). Under the regulations,
a "physical impairment" includes "[a]ny physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular, reproductive, digestive,
genito-urinary, hemic and lymphatic, skin, and endocrine." §1630.2(h)(1).
The term "substantially limits" means, among other things, "[u]nable to
perform a major life activity that the average person in the general population
can perform;" or "[s]ignificantly restricted as to the condition, manner
or duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major life
activity." §1630.2(j). Finally, "[m]ajor [l]ife [a]ctivities means
functions such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working." §1630.2(i).
Because both parties accept these regulations as valid, and determining
their validity is not necessary to decide this case, we have no occasion
to consider what deference they are due, if any.
|||The agencies have also issued interpretive guidelines to aid in the implementation
of their regulations. For instance, at the time that it promulgated the
above regulations, the EEOC issued an "Interpretive Guidance," which provides
that "[t]he determination of whether an individual is substantially limited
in a major life activity must be made on a case by case basis, without regard
to mitigating measures such as medicines, or assistive or prosthetic devices."
29 CFR pt. 1630, App. §1630.2(j) (1998) (describing §1630.2(j)).
The Department of Justice has issued a similar guideline. See 28 CFR pt.
35, App. A, §35.104 ("The question of whether a person has a disability
should be assessed without regard to the availability of mitigating measures,
such as reasonable modification or auxiliary aids and services"); pt. 36,
App. B, §36.104 (same). Although the parties dispute the persuasive
force of these interpretive guidelines, we have no need in this case to
decide what deference is due.
|||With this statutory and regulatory framework in mind, we turn first to
the question whether petitioners have stated a claim under subsection (A)
of the disability definition, that is, whether they have alleged that they
possess a physical impairment that substantially limits them in one or more
major life activities. See 42 U. S. C. §12102(2)(A). Because petitioners
allege that with corrective measures their vision "is 20/20 or better,"
see App. 23, they are not actually disabled within the meaning of the Act
if the "disability" determination is made with reference to these measures.
Consequently, with respect to subsection (A) of the disability definition,
our decision turns on whether disability is to be determined with or without
reference to corrective measures.
|||Petitioners maintain that whether an impairment is substantially limiting
should be determined without regard to corrective measures. They argue that,
because the ADA does not directly address the question at hand, the Court
should defer to the agency interpretations of the statute, which are embodied
in the agency guidelines issued by the EEOC and the Department of Justice.
These guidelines specifically direct that the determination of whether an
individual is substantially limited in a major life activity be made without
regard to mitigating measures. See 29 CFR pt. 1630, App. §1630.2(j);
28 CFR pt. 35, App. A, §35.104 (1998); 28 CFR pt. 36, App. B, §36.104.
|||Respondent, in turn, maintains that an impairment does not substantially
limit a major life activity if it is corrected. It argues that the Court
should not defer to the agency guidelines cited by petitioners because the
guidelines conflict with the plain meaning of the ADA. The phrase "substantially
limits one or more major life activities," it explains, requires that the
substantial limitations actually and presently exist. Moreover, respondent
argues, disregarding mitigating measures taken by an individual defies the
statutory command to examine the effect of the impairment on the major life
activities "of such individual." And even if the statute is ambiguous, respondent
claims, the guidelines' directive to ignore mitigating measures is not reasonable,
and thus this Court should not defer to it.
|||We conclude that respondent is correct that the approach adopted by the
agency guidelines -- that persons are to be evaluated in their hypothetical
uncorrected state -- is an impermissible interpretation of the ADA. Looking
at the Act as a whole, it is apparent that if 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. The Dissent relies on the legislative
history of the ADA for the contrary proposition that individuals should
be examined in their uncorrected state. See post, at 10-18 (opinion of Stevens,
J.). Because we decide that, by its terms, the ADA cannot be read in this
manner, we have no reason to consider the ADA's legislative history.
|||Three separate provisions of the ADA, read in concert, lead us to this
Conclusion. The Act defines a "disability" as "a physical or mental impairment
that substantially limits one or more of the major life activities" of an
individual. §12102(2)(A) (emphasis added). Because the phrase "substantially
limits" appears in the Act in the present indicative verb form, we think
the language is properly read as requiring that a person be presently --
not potentially or hypothetically --substantially limited in order to demonstrate
a disability. A "disability" exists only where an impairment "substantially
limits" a major life activity, not where it "might," "could," or "would"
be substantially limiting if mitigating measures were not taken. A person
whose physical or mental impairment is corrected by medication or other
measures does not have an impairment that presently "substantially limits"
a major life activity. 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
|||The definition of disability also requires that disabilities be evaluated
"with respect to an individual" and be determined based on whether an impairment
substantially limits the "major life activities of such individual." §12102(2).
Thus, whether a person has a disability under the ADA is an individualized
inquiry. See Bragdon v. Abbott, 524 U. S. 624, ____ (1998) (declining to
consider whether HIV infection is a per se disability under the ADA); 29
CFR pt. 1630, App. §1630.2(j) ("The determination of whether an individual
has a disability is not necessarily based on the name or diagnosis of the
impairment the person has, but rather on the effect of that impairment on
the life of the individual").
|||The agency guidelines' directive that persons be Judged in their uncorrected
or unmitigated state runs directly counter to the individualized inquiry
mandated by the ADA. The agency approach would often require courts and
employers to speculate about a person's condition and would, in many cases,
force them to make a disability determination based on general information
about how an uncorrected impairment usually affects individuals, rather
than on the individual's actual condition. For instance, under this view,
courts would almost certainly find all diabetics to be disabled, because
if they failed to monitor their blood sugar levels and administer insulin,
they would almost certainly be substantially limited in one or more major
life activities. A diabetic whose illness does not impair his or her daily
activities would therefore be considered disabled simply because he or she
has diabetes. Thus, the guidelines approach would create a system in which
persons often must be treated as members of a group of people with similar
impairments, rather than as individuals. This is contrary to both the letter
and the spirit of the ADA.
|||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 very
severe. See, e.g., Johnson, Antipsychotics: Pros and Cons of Antipsychotics,
RN (Aug. 1997) (noting that antipsychotic drugs can cause a variety of adverse
effects, including neuroleptic malignant syndrome and painful seizures);
Liver Risk Warning Added to Parkinson's Drug, FDA Consumer (Mar. 1, 1999)
(warning that a drug for treating Parkinson's disease can cause liver damage);
Curry & Kulling, Newer Antiepileptic Drugs, American Family Physician (Feb.
1, 1998) (cataloging serious negative side effects of new antiepileptic
drugs). This result is also inconsistent with the individualized approach
of the ADA.
|||Finally, and critically, findings enacted as part of the ADA require the
Conclusion that Congress did not intend to bring under the statute's protection
all those whose uncorrected conditions amount to disabilities. Congress
found that "some 43,000,000 Americans have one or more physical or mental
disabilities, and this number is increasing as the population as a whole
is growing older." §12101(a)(1). This figure is inconsistent with the
definition of disability pressed by petitioners.
|||Although the exact source of the 43 million figure is not clear, the corresponding
finding in the 1988 precursor to the ADA was drawn directly from a report
prepared by the National Council on Disability. See Burgdorf, The Americans
with Disabilities Act: Analysis and Implications of a Second-Generation
Civil Rights Statute, 26 Harv. Civ. Rights-Civ. Lib. L. Rev. 413, 434, n.
117 (1991) (reporting, in an article authored by the drafter of the original
ADA bill introduced in Congress in 1988, that the report was the source
for a figure of 36 million disabled persons quoted in the versions of the
bill introduced in 1988). That report detailed the difficulty of estimating
the number of disabled persons due to varying operational definitions of
disability. National Council on Disability, Toward Independence 10 (1986).
It explained that the estimates of the number of disabled Americans ranged
from an overinclusive 160 million under a "health conditions approach,"
which looks at all conditions that impair the health or normal functional
abilities of an individual, to an underinclusive 22.7 million under a "work
disability approach," which focuses on individuals' reported ability to
work. Id., at 10-11. It noted that "a figure of 35 or 36 million [was] the
most commonly quoted estimate." Id., at 10. The 36 million number included
in the 1988 bill's findings thus clearly reflects an approach to defining
disabilities that is closer to the work disabilities approach than the health
|||This background also provides some clues to the likely source of the figure
in the findings of the 1990 Act. Roughly two years after issuing its 1986
report, the National Council on Disability issued an updated report. See
On the Threshold of Independence (1988). This 1988 report settled on a more
concrete definition of disability. It stated that 37.3 million individuals
have "difficulty performing one or more basic physical activities," including
"seeing, hearing, speaking, walking, using stairs, lifting or carrying,
getting around outside, getting around inside, and getting into or out of
bed." Id., at 19. The study from which it drew this data took an explicitly
functional approach to evaluating disabilities. See U. S. Dept. of Commerce,
Bureau of Census, Disability, Functional Limitation, and Health Insurance
Coverage: 1984/85, p. 2 (1986).
|||It measured 37.3 million persons with a "functional limitation" on performing
certain basic activities when using, as the questionnaire put it, "special
aids," such as glasses or hearing aids, if the person usually used such
aids. Id., at 1, 47. The number of disabled provided by the study and adopted
in the 1988 report, however, includes only noninstitutionalized persons
with physical disabilities who are over age 15. The 5.7 million gap between
the 43 million figure in the ADA's findings and the 37.3 million figure
in the report can thus probably be explained as an effort to include in
the findings those who were excluded from the National Council figure. See,
e.g., National Institute on Disability and Rehabilitation Research, Data
on Disability from the National Health Interview Survey 1983-1985, pp. 61-62
(1988) (finding approximately 943,000 noninstitutionalized persons with
an activity limitation due to mental illness; 947,000 noninstitutionalized
persons with an activity limitation due to mental retardation; 1,900,000
noninstitutionalized persons under 18 with an activity limitation); U. S.
Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United
States 106 (1989) (Table 168) (finding 1,553,000 resident patients in nursing
and related care facilities (excluding hospital-based nursing homes) in
|||Regardless of its exact source, however, the 43 million figure reflects
an understanding that those whose impairments are largely corrected by medication
or other devices are not "disabled" within the meaning of the ADA. The estimate
is consistent with the numbers produced by studies performed during this
same time period that took a similar functional approach to determining
disability. For instance, Mathematica Policy Research, Inc., drawing on
data from the National Center for Health Statistics, issued an estimate
of approximately 31.4 million civilian noninstitutionalized persons with
"chronic activity limitation status" in 1979. Digest of Data on Persons
with Disabilities 25 (1984). The 1989 Statistical Abstract offered the same
estimate based on the same data, as well as an estimate of 32.7 million
noninstitutionalized persons with "activity limitation" in 1985. Statistical
Abstract, supra, at 115 (Table 184). In both cases, individuals with "activity
limitations" were those who, relative to their age-sex group could not conduct
"usual" activities: e.g., attending preschool, keeping house, or living
independently. See National Center for Health Statistics, U. S. Dept. of
Health and Human Services, Vital and Health Statistics, Current Estimates
from the National Health Interview Survey, 1989, Series 10, pp. 7-8 (1990).
|||By contrast, nonfunctional approaches to defining disability produce significantly
larger numbers. As noted above, the 1986 National Council on Disability
report estimated that there were over 160 million disabled under the "health
conditions approach." Toward Independence, supra, at 10; see also Mathematica
Policy Research, supra, at 3 (arriving at similar estimate based on same
Census Bureau data). Indeed, the number of people with vision impairments
alone is 100 million. See National Advisory Eye Council, U. S. Dept. of
Health and Human Services, Vision Research -- A National Plan: 1999-2003,
p. 7 (1998) ("[M]ore than 100 million people need corrective lenses to see
properly"). "It is estimated that more than 28 million Americans have impaired
hearing." National Institutes of Health, National Strategic Research Plan:
Hearing and Hearing Impairment v (1996). And there were approximately 50
million people with high blood pressure (hypertension). Tindall, Stalking
a Silent Killer; Hypertension, Business & Health 37 (August 1998) ("Some
50 million Americans have high blood pressure").
|||Because it is included in the ADA's text, the finding that 43 million
individuals are disabled gives content to the ADA's terms, specifically
the term "disability." Had Congress intended to include all persons with
corrected physical limitations among those covered by the Act, it undoubtedly
would have cited a much higher number of disabled persons in the findings.
That it did not is evidence that the ADA's coverage is restricted to only
those whose impairments are not mitigated by corrective measures.
|||The Dissents suggest that viewing individuals in their corrected state
will exclude from the definition of "disab[led]" those who use prosthetic
limbs, see post, at 3-4 (opinion of Stevens, J.), post, at 1 (opinion of
Breyer, J.), or take medicine for epilepsy or high blood pressure, see post,
at 14, 16 (opinion of Stevens, J.). This suggestion is incorrect. The use
of a corrective device does not, by itself, relieve one's disability. Rather,
one has a disability under subsection A if, notwithstanding the use of a
corrective device, that individual is substantially limited in a major life
activity. For example, individuals who use prosthetic limbs or wheelchairs
may be mobile and capable of functioning in society but still be disabled
because of a substantial limitation on their ability to walk or run. The
same may be true of individuals who take medicine to lessen the symptoms
of an impairment so that they can function but nevertheless remain substantially
limited. Alternatively, one whose high blood pressure is "cured" by medication
may be regarded as disabled by a covered entity, and thus disabled under
subsection C of the definition. 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.
|||Applying this reading of the Act to the case at hand, we conclude that
the Court of Appeals correctly resolved the issue of disability in respondent's
favor. As noted above, petitioners allege that with corrective measures,
their visual acuity is 20/20, App. 23, Amended Complaint ¶ ;36, and
that they "function identically to individuals without a similar impairment,"
id., at 24, Amended Complaint ¶ ;37e. In addition, petitioners concede
that they "do not argue that the use of corrective lenses in itself demonstrates
a substantially limiting impairment." Brief for Petitioners 9, n. 11. Accordingly,
because we decide that disability under the Act is to be determined with
reference to corrective measures, we agree with the courts below that petitioners
have not stated a claim that they are substantially limited in any major
|||Our Conclusion that petitioners have failed to state a claim that they
are actually disabled under subsection (A) of the disability definition
does not end our inquiry. Under subsection (C), individuals who are "regarded
as" having a disability are disabled within the meaning of the ADA. See
§12102(2)(C). Subsection (C) provides that having a disability includes
"being regarded as having," §12102(2)(C), "a physical or mental impairment
that substantially limits one or more of the major life activities of such
individual," §12102(2)(A). There are two apparent ways in which individuals
may fall within this statutory definition: (1) a covered entity mistakenly
believes that a person has a physical impairment that substantially limits
one or more major life activities, or (2) a covered entity mistakenly believes
that an actual, nonlimiting impairment substantially limits one or more
major life activities. In both cases, it is necessary that a covered entity
entertain misperceptions about the individual -- it must believe either
that one has a substantially limiting impairment that one does not have
or that one has a substantially limiting impairment when, in fact, the impairment
is not so limiting. These misperceptions often "resul[t] from stereotypic
assumptions not truly indicative of ... individual ability." See 42 U. S.
C. §12101(7). See also School Bd. of Nassau Cty. v. Arline, 480 U.
S. 273, 284 (1987) ("By amending the definition of `handicapped individual'
to include not only those who are actually physically impaired, but also
those who are regarded as impaired and who, as a result, are substantially
limited in a major life activity, Congress acknowledged that society's accumulated
myths and fears about disability and disease are as handicapping as are
the physical limitations that flow from actual impairment"); 29 CFR pt.
1630, App. §1630.2(l) (explaining that the purpose of the regarded
as prong is to cover individuals "rejected from a job because of the `myths,
fears and stereotypes' associated with disabilities").
|||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 in the major life activity of working.
|||To support this claim, petitioners allege that respondent has a vision
requirement, which is allegedly based on myth and stereotype. Further, this
requirement substantially limits their ability to engage in the major life
activity of working by precluding them from obtaining the job of global
airline pilot, which they argue is a "class of employment." See App. 24-26,
Amended Complaint ¶ ;38. In reply, respondent argues that the position
of global airline pilot is not a class of jobs and therefore petitioners
have not stated a claim that they are regarded as substantially limited
in the major life activity of working.
|||Standing alone, the allegation that respondent has a vision requirement
in place does not establish a claim that respondent regards petitioners
as substantially limited in the major life activity of working. See Post-Argument
Brief for Respondent 2-3 (advancing this argument); Post-Argument Brief
for the United States et al. as Amici Curiae 5-6 ("[U]nder the EEOC's regulations,
an employer may make employment decisions based on physical characteristics").
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.
|||Considering the allegations of the amended complaint in tandem, petitioners
have not stated a claim that respondent regards their impairment as substantially
limiting their ability to work. The ADA does not define "substantially limits,"
but "substantially" suggests "considerable" or "specified to a large degree."
See Webster's Third New International Dictionary 2280 (1976) (defining "substantially"
as "in a substantial manner" and "substantial" as "considerable in amount,
value, or worth" and "being that specified to a large degree or in the main");
see also 17 Oxford English Dictionary 66-67 (2d ed. 1989) ("substantial":
"[r]elating to or proceeding from the essence of a thing; essential"; "of
ample or considerable amount, quantity or dimensions"). The EEOC has codified
regulations interpreting the term "substantially limits" in this manner,
defining the term to mean "[u]nable to perform" or "[s]ignificantly restricted."
See 29 CFR §§1630.2(j)(1)(i),(ii) (1998)
|||When the major life activity under consideration is that of working, the
statutory phrase "substantially limits" requires, at a minimum, that plaintiffs
allege they are unable to work in a broad class of jobs. Reflecting this
requirement, the EEOC uses a specialized definition of the term "substantially
limits" when referring to the major life activity of working:
|||"significantly restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities. The inability to
perform a single, particular job does not constitute a substantial limitation
in the major life activity of working." §1630.2(j)(3)(i).
|||The EEOC further identifies several factors that courts should consider
when determining whether an individual is substantially limited in the major
life activity of working, including the geographical area to which the individual
has reasonable access, and "the number and types of jobs utilizing similar
training, knowledge, skills or abilities, within the geographical area,
from which the individual is also disqualified." §§1630.2(j)(3)(ii)(A),
(B). To be substantially limited in the major life activity of working,
then, one must be precluded from more than one type of job, a specialized
job, or a particular job of choice. If jobs utilizing an individual's skills
(but perhaps not his or her unique talents) are available, one is not precluded
from a substantial class of jobs. Similarly, if a host of different types
of jobs are available, one is not precluded from a broad range of jobs.
|||Because the 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, for instance, by reason of [an impairment,
from working with others] . . . then that exclusion constitutes an impairment,
when the question you're asking is, whether the exclusion itself is by reason
of handicap." Tr. of Oral Arg. in School Bd. of Nassau Co. v. Arline, O.
T. 1986, No. 85-1277, p. 15 (argument of Solicitor General). Indeed, even
the EEOC has expressed reluctance to define "major life activities" to include
working and has suggested that working be viewed as a residual life activity,
considered, as a last resort, only "[i]f an individual is not substantially
limited with respect to any other major life activity." 29 CFR pt. 1630,
App. §1630.2(j) (1998) (emphasis added) ("If an individual is substantially
limited in any other major life activity, no determination should be made
as to whether the individual is substantially limited in working" (emphasis
|||Assuming without deciding that working is a major life activity and that
the EEOC regulations interpreting the term "substantially limits" are reasonable,
petitioners have failed to allege adequately that their poor eyesight is
regarded as an impairment that substantially limits them in the major life
activity of working. They allege only that respondent regards their poor
vision as precluding them from holding positions as a "global airline pilot."
See App. 25-26, Amended Complaint ¶ ;38f. Because the position of global
airline pilot is a single job, this allegation does not support the claim
that respondent regards petitioners as having a substantially limiting impairment.
See 29 CFR §1630.2(j)(3)(i) ("The inability to perform a single, particular
job does not constitute a substantial limitation in the major life activity
of working"). Indeed, there are a number of other positions utilizing petitioners'
skills, such as regional pilot and pilot instructor to name a few, that
are available to them. Even under the EEOC's Interpretative Guidance, to
which petitioners ask us to defer, "an individual who cannot be a commercial
airline pilot because of a minor vision impairment, but who can be a commercial
airline co-pilot or a pilot for a courier service, would not be substantially
limited in the major life activity of working." 29 CFR pt. 1630, App. §1630.2.
|||Petitioners also argue that if one were to assume that a substantial number
of airline carriers have similar vision requirements, they would be substantially
limited in the major life activity of working. See Brief for Petitioners
44-45. Even assuming for the sake of argument that the adoption of similar
vision requirements by other carriers would represent a substantial limitation
on the major life activity of working, the argument is nevertheless flawed.
It is not enough to say that if the physical criteria of a single employer
were imputed to all similar employers one would be regarded as substantially
limited in the major life activity of working only as a result of this imputation.
An otherwise valid job requirement, such as a height requirement, does not
become invalid simply because it would limit a person's employment opportunities
in a substantial way if it were adopted by a substantial number of employers.
Because petitioners have not alleged, and cannot demonstrate, that respondent's
vision requirement reflects a belief that petitioners' vision substantially
limits them, we agree with the decision of the Court of Appeals affirming
the dismissal of petitioners' claim that they are regarded as disabled.
|||For these reasons, the decision of the Court of Appeals for the Tenth
Circuit is affirmed.
|||It is so ordered.
|||Ginsburg, J., Concurring
|||SUTTON v. UNITED AIR LINES, INC.
|||____ U. S. ____ (1999)
|||SUPREME COURT OF THE UNITED STATES
|||KAREN SUTTON and KIMBERLY HINTON, PETITIONERS v. UNITED AIR LINES, INC.
|||on writ of certiorari to the united states court of appeals for the tenth
|||[June 22, 1999]
|||Justice Ginsburg, Concurring.
|||I agree that 42 U. S. C. §12102(2)(A) does not reach the legions
of people with correctable disabilities. The strongest clues to Congress'
perception of the domain of the Americans with Disabilities Act (ADA), as
I see it, are legislative findings that "some 43,000,000 Americans have
one or more physical or mental disabilities," §12101(a)(1), and that
"individuals with disabilities are a discrete and insular minority," persons
"subjected to a history of purposeful unequal treatment, and relegated to
a position of political powerlessness in our society," §12101(a)(7).
These declarations are inconsistent with the enormously embracing definition
of disability petitioners urge. As the Court demonstrates, see ante, at
11-14, the inclusion of correctable disabilities within the ADA's domain
would extend the Act's coverage to far more than 43 million people. And
persons whose uncorrected eyesight is poor, or who rely on daily medication
for their well-being, can be found in every social and economic class; they
do not cluster among the politically powerless, nor do they coalesce as
historical victims of discrimination. In short, in no sensible way can one
rank the large numbers of diverse individuals with corrected disabilities
as a "discrete and insular minority." I do not mean to suggest that any
of the constitutional presumptions or doctrines that may apply to "discrete
and insular" minorities in other contexts are relevant here; there is no
constitutional dimension to this case. Congress' use of the phrase, however,
is a telling indication of its intent to restrict the ADA's coverage to
a confined, and historically disadvantaged, class.
|||Stevens, J., Dissenting
|||SUTTON v. UNITED AIR LINES, INC.
|||____ U. S. ____ (1999)
|||SUPREME COURT OF THE UNITED STATES
|||KAREN SUTTON and KIMBERLY HINTON, PETITIONERS v. UNITED AIR LINES, INC.
|||on writ of certiorari to the united states court of appeals for the tenth
|||[June 22, 1999]
|||Justice Stevens, with whom Justice Breyer joins, Dissenting.
|||When it enacted the Americans with Disabilities Act in 1990, Congress
certainly did not intend to require United Air Lines to hire unsafe or unqualified
pilots. Nor, in all likelihood, did it view every person who wears glasses
as a member of a "discrete and insular minority." Indeed, by reason of legislative
myopia it may not have foreseen that its definition of "disability" might
theoretically encompass, not just "some 43,000,000 Americans," 42 U. S.
C. §12101(a)(1), but perhaps two or three times that number. Nevertheless,
if we apply customary tools of statutory construction, it is quite clear
that the threshold question whether an individual is "disabled" within the
meaning of the Act -- and, therefore, is entitled to the basic assurances
that the Act affords -- focuses on her past or present physical condition
without regard to mitigation that has resulted from rehabilitation, self-improvement,
prosthetic devices, or medication. One might reasonably argue that the general
rule should not apply to an impairment that merely requires a nearsighted
person to wear glasses. But I believe that, in order to be faithful to the
remedial purpose of the Act, we should give it a generous, rather than a
|||There are really two parts to the question of statutory construction presented
by this case. The first question is whether the determination of disability
for people that Congress unquestionably intended to cover should focus on
their unmitigated or their mitigated condition. If the correct answer to
that question is the one provided by eight of the nine Federal Courts of
Appeals to address the issue,*fn1 and
by all three of the Executive agencies that have issued regulations or interpretive
bulletins construing the statute -- namely, that the statute defines "disability"
without regard to ameliorative measures -- it would still be necessary to
decide whether that general rule should be applied to what might be characterized
as a "minor, trivial impairment." Arnold v. United Parcel Service, Inc.,
136 F. 3d 854, 866, n. 10 (CA1 1998) (holding that unmitigated state is
determinative but suggesting that it "might reach a different result" in
a case in which "a simple, inexpensive remedy," such as eyeglasses, is available
"that can provide total and relatively permanent control of all symptoms").
See also Washington v. HCA Health Servs., 152 F. 3d 464 (CA5 1998) (same),
cert. pending, No. 98-1365. I shall therefore first consider impairments
that Congress surely had in mind before turning to the special facts of
|||"As in all cases of statutory construction, our task is to interpret the
words of [the statute] in light of the purposes Congress sought to serve."
Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 608 (1979).
Congress expressly provided that the "purpose of [the ADA is] to provide
a clear and comprehensive national mandate for the elimination of discrimination
against individuals with disabilities." 42 U. S. C. §12101(b)(1). To
that end, the ADA prohibits covered employers from "discriminat[ing] against
a qualified individual with a disability because of the disability" in regard
to the terms, conditions, and privileges of employment. 42 U. S. C. §12112(a)
|||The Act's definition of disability is drawn "almost verbatim" from the
Rehabilitation Act of 1973, 29 U. S. C. §706(8)(B). Bragdon v. Abbott,
524 U. S. 624, 631 (1998). The ADA's definition provides:
|||"The term `disability' means, with respect to an individual --"
|||"(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;"
|||"(B) a record of such an impairment; or"
|||"(C) being regarded as having such an impairment." 42 U. S. C. §12102(2).
|||The three parts of this definition do not identify mutually exclusive,
discrete categories. On the contrary, they furnish three overlapping formulas
aimed at ensuring that individuals who now have, or ever had, a substantially
limiting impairment are covered by the Act.
|||An example of a rather common condition illustrates this point: There
are many individuals who have lost one or more limbs in industrial accidents,
or perhaps in the service of their country in places like Iwo Jima. With
the aid of prostheses, coupled with courageous determination and physical
therapy, many of these hardy individuals can perform all of their major
life activities just as efficiently as an average couch potato. If the Act
were just concerned with their present ability to participate in society,
many of these individuals' physical impairments would not be viewed as disabilities.
Similarly, if the statute were solely concerned with whether these individuals
viewed themselves as disabled -- or with whether a majority of employers
regarded them as unable to perform most jobs -- many of these individuals
would lack statutory protection from discrimination based on their prostheses.
|||The sweep of the statute's three-pronged definition, however, makes it
pellucidly clear that Congress intended the Act to cover such persons. The
fact that a prosthetic device, such as an artificial leg, has restored one's
ability to perform major life activities surely cannot mean that subsection
(A) of the definition is inapplicable. Nor should the fact that the individual
considers himself (or actually is) "cured," or that a prospective employer
considers him generally employable, mean that subsections (B) or (C) are
inapplicable. But under the Court's emphasis on "the present indicative
verb form" used in subsection (A), ante, at 9, that subsection presumably
would not apply. And under the Court's focus on the individual's "presen[t]
-- not potentia[l] or hypothetica[l]" -- condition, ibid., and on whether
a person is "precluded from a broad range of jobs," ante, at 18, subsections
(B) and (C) presumably would not apply.
|||In my view, when an employer refuses to hire the individual "because of"
his prosthesis, and the prosthesis in no way affects his ability to do the
job, that employer has unquestionably discriminated against the individual
in violation of the Act. Subsection (B) of the definition, in fact, sheds
a revelatory light on the question whether Congress was concerned only about
the corrected or mitigated status of a person's impairment. If the Court
is correct that "[a] `disability' exists only where" a person's "present"
or "actual" condition is substantially impaired, ante, at 9-10, there would
be no reason to include in the protected class those who were once disabled
but who are now fully recovered. Subsection (B) of the Act's definition,
however, plainly covers a person who previously had a serious hearing impairment
that has since been completely cured. See School Bd. of Nassau Cty. v. Arline,
480 U. S. 273, 281 (1987). Still, if I correctly understand the Court's
opinion, it holds that one who continues to wear a hearing aid that she
has worn all her life might not be covered -- fully cured impairments are
covered, but merely treatable ones are not. The text of the Act surely does
not require such a bizarre result.
|||The three prongs of the statute, rather, are most plausibly read together
not to inquire into whether a person is currently "functionally" limited
in a major life activity, but only into the existence of an impairment --present
or past -- that substantially limits, or did so limit, the individual before
amelioration. This reading avoids the counterintuitive Conclusion that the
ADA's safeguards vanish when individuals make themselves more employable
by ascertaining ways to overcome their physical or mental limitations.
|||To the extent that there may be doubt concerning the meaning of the statutory
text, ambiguity is easily removed by looking at the legislative history.
As then-Justice Rehnquist stated for the Court in Garcia v. United States,
469 U. S. 70 (1984): "In surveying legislative history we have repeatedly
stated that the authoritative source for finding the Legislature's intent
lies in the Committee Reports on the bill, which `represen[t] the considered
and collective understanding of those Congressmen involved in drafting and
studying the proposed legislation.' " Id., at 76 (quoting Zuber v. Allen,
396 U. S. 168, 186 (1969)). The Committee Reports on the bill that became
the ADA make it abundantly clear that Congress intended the ADA to cover
individuals who could perform all of their major life activities only with
the help of ameliorative measures.
|||The ADA originated in the Senate. The Senate Report states that "whether
a person has a disability should be assessed without regard to the availability
of mitigating measures, such as reasonable accommodations or auxiliary aids."
S. Rep. No. 101-116, p. 23 (1989). The Report further explained, in discussing
the "regarded as" prong:
|||"[An] important goal of the third prong of the [disability] definition
is to ensure that persons with medical conditions that are under control,
and that therefore do not currently limit major life activities, are not
discriminated against on the basis of their medical conditions. For example,
individuals with controlled diabetes or epilepsy are often denied jobs for
which they are qualified. Such denials are the result of negative attitudes
and misinformation." Id., at 24.
|||When the legislation was considered in the House of Representatives, its
Committees reiterated the Senate's basic understanding of the Act's coverage,
with one minor modification: They clarified that "correctable" or "controllable"
disabilities were covered in the first definitional prong as well. The Report
of the House Committee on the Judiciary states, in discussing the first
prong, that, when determining whether an individual's impairment substantially
limits a major life activity, "[t]he impairment should be assessed without
considering whether mitigating measures, such as auxiliary aids or reasonable
accommodations, would result in a less-than-substantial limitation." H.
R. Rep. No. 101-485, pt. III, p. 28 (1990). The Report continues that "a
person with epilepsy, an impairment which substantially limits a major life
activity, is covered under this test," ibid., as is a person with poor hearing,
"even if the hearing loss is corrected by the use of a hearing aid." Id.,
|||The Report of the House Committee on Education and Labor likewise states
that "[w]hether a person has a disability should be assessed without regard
to the availability of mitigating measures, such as reasonable accommodations
or auxiliary aids." Id., pt. II, at 52. To make matters perfectly plain,
the Report adds:
|||"For example, a person who is hard of hearing is substantially limited
in the major life activity of hearing, even though the loss may be corrected
through the use of a hearing aid. Likewise, persons with impairments, such
as epilepsy or diabetes, which substantially limit a major life activity
are covered under the first prong of the definition of disability, even
if the effects of the impairment are controlled by medication." Ibid. (emphasis
|||All of the Reports, indeed, are replete with references to the understanding
that the Act's protected class includes individuals with various medical
conditions that ordinarily are perfectly "correctable" with medication or
treatment. See id., at 74 (citing with approval Straithe v. Department of
Transportation, 716 F. 2d 227 (CA3 1983), which held that an individual
with poor hearing was "handicapped" under the Rehabilitation Act even though
his hearing could be corrected with a hearing aid); H. R. Rep. No. 101-485,
pt. III, at 51 ("[t]he term" disability includes "epilepsy, . . . heart
disease, diabetes"); id., pt. III, at 28 (listing same impairments); S.
Rep. No. 101-116, at 22 (same).*fn2
|||In addition, each of the three Executive agencies charged with implementing
the Act has consistently interpreted the Act as mandating that the presence
of disability turns on an individual's uncorrected state. We have traditionally
accorded respect to such views when, as here, the agencies "played a pivotal
role in setting [the statutory] machinery in motion." Ford Motor Credit
Co. v. Milhollin, 444 U. S. 555, 566 (1980) (brackets in original; internal
quotation marks and citation omitted). At the very least, these interpretations
"constitute a body of experience and informed judgment to which [we] may
properly resort" for additional guidance. Skidmore v. Swift & Co., 323 U.
S. 134, 139-140 (1944). See also Bragdon, 524 U. S., at 642 (invoking this
maxim with regard to the Equal Employment Opportunity Commission's (EEOC)
interpretation of the ADA).
|||The EEOC's Interpretive Guidance provides that "[t]he determination of
whether an individual is substantially limited in a major life activity
must be made on a case by case basis, without regard to mitigating measures
such as medicines, or assistive or prosthetic devices." 29 CFR pt. 1630,
App. §1630.2(j) (1998). The EEOC further explains:
|||"[A]n individual who uses artificial legs would . . . be substantially
limited in the major life activity of walking because the individual is
unable to walk without the aid of prosthetic devices. Similarly, a diabetic
who without insulin would lapse into a coma would be substantially limited
because the individual cannot perform major life activities without the
aid of medication." Ibid.
|||The Department of Justice has reached the same Conclusion. Its regulations
provide that "[t]he question of whether a person has a disability should
be assessed without regard to the availability of mitigating measures, such
as reasonable modification or auxiliary aids and services." 28 CFR pt. 35,
App. A, §35.104 (1998). The Department of Transportation has issued
a regulation adopting this same definition of "disability." See 49 CFR pt.
|||In my judgment, the Committee Reports and the uniform agency regulations
merely confirm the message conveyed by the text of the Act -- at least insofar
as it applies to impairments such as the loss of a limb, the inability to
hear, or any condition such as diabetes that is substantially limiting without
medication. The Act generally protects individuals who have "correctable"
substantially limiting impairments from unjustified employment discrimination
on the basis of those impairments. The question, then, is whether the fact
that Congress was specifically concerned about protecting a class that included
persons characterized as a "discrete and insular minority" and that it estimated
that class to include "some 43,000,000 Americans" means that we should construe
the term "disability" to exclude individuals with impairments that Congress
probably did not have in mind.
|||The EEOC maintains that, in order to remain allegiant to the Act's structure
and purpose, courts should always answer "the question whether an individual
has a disability . . . without regard to mitigating measures that the individual
takes to ameliorate the effects of the impairment." Brief for United States
and EEOC as Amicus Curiae 6. "[T]here is nothing about poor vision," as
the EEOC interprets the Act, "that would justify adopting a different rule
in this case." Ibid.
|||If a narrow reading of the term "disability" were necessary in order to
avoid the danger that the Act might otherwise force United to hire pilots
who might endanger the lives of their passengers, it would make good sense
to use the "43,000,000 Americans" finding to confine its coverage. There
is, however, no such danger in this case. If a person is "disabled" within
the meaning of the Act, she still cannot prevail on a claim of discrimination
unless she can prove that the employer took action "because of" that impairment,
42 U. S. C. §12112(a), and that she can, "with or without reasonable
accommodation, . . . perform the essential functions" of the job of a commercial
airline pilot. See §12111(8). Even then, an employer may avoid liability
if it shows that the criteria of having uncorrected visual acuity of at
least 20/100 is "job-related and consistent with business necessity" or
if such vision (even if correctable to 20/20) would pose a health or safety
hazard. §§12113(a) and (b).
|||This case, in other words, is not about whether petitioners are genuinely
qualified or whether they can perform the job of an airline pilot without
posing an undue safety risk. The case just raises the threshold question
whether petitioners are members of the ADA's protected class. It simply
asks whether the ADA lets petitioners in the door in the same way as the
Age Discrimination in Employment Act of 1967 does for every person who is
at least 40 years old, see 29 U. S. C. §631(a), and as Title VII of
the Civil Rights Act of 1964 does for every single individual in the work
force. Inside that door lies nothing more than basic protection from irrational
and unjustified discrimination because of a characteristic that is beyond
a person's control. Hence, this particular case, at its core, is about whether,
assuming that petitioners can prove that they are "qualified," the airline
has any duty to come forward with some legitimate explanation for refusing
to hire them because of their uncorrected eyesight, or whether the ADA leaves
the airline free to decline to hire petitioners on this basis even if it
is acting purely on the basis of irrational fear and stereotype.
|||I think it quite wrong for the Court to confine the coverage of the Act
simply because an interpretation of "disability" that adheres to Congress'
method of defining the class it intended to benefit may also provide protection
for "significantly larger numbers" of individuals, ante, at 13, than estimated
in the Act's findings. It has long been a "familiar canon of statutory construction
that remedial legislation should be construed broadly to effectuate its
purposes." Tcherepnin v. Knight, 389 U. S. 332, 336 (1967). Congress sought,
in enacting the ADA, to "provide a . . . comprehensive national mandate
for the discrimination against individuals with disabilities." 42 U. S.
C. §12101(b)(1). The ADA, following the lead of the Rehabilitation
Act before it, seeks to implement this mandate by encouraging employers
"to replace . . . reflexive reactions to actual or perceived handicaps with
actions based on medically sound judgments." Arline, 480 U. S., at 284-285.
Even if an authorized agency could interpret this statutory structure so
as to pick and choose certain correctable impairments that Congress meant
to exclude from this mandate, Congress surely has not authorized us to do
|||When faced with classes of individuals or types of discrimination that
fall outside the core prohibitions of anti-discrimination statutes, we have
consistently construed those statutes to include comparable evils within
their coverage, even when the particular evil at issue was beyond Congress'
immediate concern in passing the legislation. Congress, for instance, focused
almost entirely on the problem of discrimination against African-Americans
when it enacted Title VII of the Civil Rights Act of 1964. See, e.g., Steelworkers
v. Weber, 443 U. S. 193, 202-203 (1979). But that narrow focus could not
possibly justify a construction of the statute that excluded Hispanic-Americans
or Asian-Americans from its protection -- or as we later decided (ironically
enough, by relying on legislative history and according "great deference"
to the EEOC's "interpretation"), Caucasians. See McDonald v. Santa Fe Trail
Transp. Co., 427 U. S. 273, 279-280 (1976).
|||We unanimously applied this well-accepted method of interpretation last
Term with respect to construing Title VII to cover claims of same-sex sexual
harassment. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998).
We explained our holding as follows:
|||"As some courts have observed, male-on-male sexual harassment in the workplace
was assuredly not the principal evil Congress was concerned with when it
enacted Title VII. But statutory prohibitions often go beyond the principal
evil to cover reasonably comparable evils, and it is ultimately the provisions
of our laws rather than the principal concerns of our legislators by which
we are governed. Title VII prohibits `discriminat[ion] ... because of ...
sex' in the `terms' or `conditions' of employment. Our holding that this
includes sexual harassment must extend to sexual harassment of any kind
that meets the statutory requirements." Id., at 79-80.
|||This approach applies outside of the discrimination context as well. In
H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229 (1989), we
rejected the argument that the Racketeer Influenced and Corrupt Organization
Act (RICO) should be construed to cover only "organized crime" because Congress
included findings in the Act's preamble emphasizing only that problem. See
Pub. L. 91-452 §1, 84 Stat. 941. After surveying RICO's legislative
history, we concluded that even though "[t]he occasion for Congress' action
was the perceived need to combat organized crime, . . . Congress for cogent
reasons chose to enact a more general statute, one which, although it had
organized crime as its focus, was not limited in application to organized
crime." 492 U. S., at 248.*fn3
|||Under the approach we followed in Oncale and H. J. Inc., visual impairments
should be Judged by the same standard as hearing impairments or any other
medically controllable condition. The nature of the discrimination alleged
is of the same character and should be treated accordingly.
|||Indeed, it seems to me eminently within the purpose and policy of the
ADA to require employers who make hiring and firing decisions based on individuals'
uncorrected vision to clarify why having, for example, 20/100 uncorrected
vision or better is a valid job requirement. So long as an employer explicitly
makes its decision based on an impairment that in some condition is substantially
limiting, it matters not under the structure of the Act whether that impairment
is widely shared or so rare that it is seriously misunderstood. Either way,
the individual has an impairment that is covered by the purpose of the ADA,
and she should be protected against irrational stereotypes and unjustified
disparate treatment on that basis.
|||I do not mean to suggest, of course, that the ADA should be read to prohibit
discrimination on the basis of, say, blue eyes, deformed fingernails, or
heights of less than six feet. Those conditions, to the extent that they
are even "impairments," do not substantially limit individuals in any condition
and thus are different in kind from the impairment in the case before us.
While not all eyesight that can be enhanced by glasses is substantially
limiting, having 20/200 vision in one's better eye is, without treatment,
a significant hindrance. Only two percent of the population suffers from
such myopia.*fn4 Such acuity precludes
a person from driving, shopping in a public store, or viewing a computer
screen from a reasonable distance. Uncorrected vision, therefore, can be
"substantially limiting" in the same way that unmedicated epilepsy or diabetes
can be. Because Congress obviously intended to include individuals with
the latter impairments in the Act's protected class, we should give petitioners
the same protection.
|||The Court does not disagree that the logic of the ADA requires petitioner's
visual impairment to be Judged the same as other "correctable" conditions.
Instead of including petitioners within the Act's umbrella, however, the
Court decides, in this opinion and its companion, to expel all individuals
who, by using "measures [to] mitigate [their] impairment[s]," ante, at 1,
are able to overcome substantial limitations regarding major life activities.
The Court, for instance, holds that severe hypertension that is substantially
limiting without medication is not a "disability," Murphy v. United Parcel
Service, Inc., post, p. ___ and -- perhaps even more remarkably -- indicates
(directly contrary to the Act's legislative history, see supra, at 7) that
diabetes that is controlled only with insulin treatments is not a "disability"
either, ante, at 10.
|||The Court claims that this rule is necessary to avoid requiring courts
to "speculate" about a person's "hypothetical" condition and to preserve
the Act's focus on making "individualized inquiries" into whether a person
is disabled. Ante, at 9-10. The Court also asserts that its rejection of
the general rule of viewing individuals in their unmitigated state prevents
distorting the scope of the Act's protected class to cover a "much higher
number" of persons than Congress estimated in its findings. And, I suspect,
the Court has been cowed by respondent's persistent argument that viewing
all individuals in their unmitigated state will lead to a tidal wave of
lawsuits. None of the Court's reasoning, however, justifies a construction
of the Act that will obviously deprive many of Congress' intended beneficiaries
of the legal protection it affords.
|||The agencies' approach, the Court repeatedly contends, "would create a
system in which persons often must be treated as members of a group of people
with similar impairments, rather than individuals, [which] is both contrary
to the letter and spirit of the ADA." Ante, at 10. The Court's mantra regarding
the Act's "individualized approach," however, fails to support its holding.
I agree that the letter and spirit of the ADA is designed to deter decision
making based on group stereotypes, but the agencies' interpretation of the
Act does not lead to this result. Nor does it require courts to "speculate"
about people's "hypothetical" conditions. Viewing a person in her "unmitigated"
state simply requires examining that individual's abilities in a different
state, not the abilities of every person who shares a similar condition.
It is just as easy individually to test petitioners' eyesight with their
glasses on as with their glasses off.*fn5
|||Ironically, it is the Court's approach that actually condones treating
individuals merely as members of groups. That misdirected approach permits
any employer to dismiss out of hand every person who has uncorrected eyesight
worse than 20/100 without regard to the specific qualifications of those
individuals or the extent of their abilities to overcome their impairment.
In much the same way, the Court's approach would seem to allow an employer
to refuse to hire every person who has epilepsy or diabetes that is controlled
by medication, or every person who functions efficiently with a prosthetic
|||Under the Court's reasoning, an employer apparently could not refuse to
hire persons with these impairments who are substantially limited even with
medication, see ante, at 14-15, but that group-based "exception" is more
perverse still. Since the purpose of the ADA is to dismantle employment
barriers based on society's accumulated myths and fears, see 42 U. S. C.
§12101(a)(8); Arline, 480 U. S., at 283-284, it is especially ironic
to deny protection for persons with substantially limiting impairments that,
when corrected, render them fully able and employable. Insofar as the Court
assumes that the majority of individuals with impairments such as prosthetic
limbs or epilepsy will still be covered under its approach because they
are substantially limited "notwithstanding the use of a corrective device,"
ante, at 14-15, I respectfully disagree as an empirical matter. Although
it is of course true that some of these individuals are substantially limited
in any condition, Congress enacted the ADA in part because such individuals
are not ordinarily substantially limited in their mitigated condition, but
rather are often the victims of "stereotypic assumptions not truly indicative
of the individual ability of such individuals to participate in, and contribute
to, society." 42 U. S. C. §12101(a)(7).
|||It has also been suggested that if we treat as "disabilities" impairments
that may be mitigated by measures as ordinary and expedient as wearing eyeglasses,
a flood of litigation will ensue. The suggestion is misguided. Although
vision is of critical importance for airline pilots, in most segments of
the economy whether an employee wears glasses -- or uses any of several
other mitigating measures -- is a matter of complete indifference to employers.
It is difficult to envision many situations in which a qualified employee
who needs glasses to perform her job might be fired --as the statute requires
-- "because of," 42 U. S. C. §12112, the fact that she cannot see well
without them. Such a proposition would be ridiculous in the garden-variety
case. On the other hand, if an accounting firm, for example, adopted a guideline
refusing to hire any incoming accountant who has uncorrected vision of less
than 20/100 -- or, by the same token, any person who is unable without medication
to avoid having seizures -- such a rule would seem to be the essence of
|||In this case the quality of petitioners' uncorrected vision is relevant
only because the airline regards the ability to see without glasses as an
employment qualification for its pilots. Presumably it would not insist
on such a qualification unless it has a sound business justification for
doing so (an issue we do not address today). But if United regards petitioners
as unqualified because they cannot see well without glasses, it seems eminently
fair for a court also to use uncorrected vision as the basis for evaluating
petitioners' life activity of seeing.
|||Under the agencies' approach, individuals with poor eyesight and other
correctable impairments will, of course, be able to file lawsuits claiming
discrimination on that basis. Yet all of those same individuals can already
file employment discrimination claims based on their race, sex, or religion,
and -- provided they are at least 40 years old -- their age. Congress has
never seen this as reason to restrict classes of antidiscrimination coverage.
Indeed, it is hard to believe that providing individuals with one more antidiscrimination
protection will make any more of them file baseless or vexatious lawsuits.
To the extent that the Court is concerned with requiring employers to answer
in litigation for every employment practice that draws distinctions based
on physical attributes, that anxiety should be addressed not in this case,
but in one that presents an issue regarding employers' affirmative defenses.
|||In the end, the Court is left only with its tenacious grip on Congress'
finding that "some 43,000,000 Americans have one or more physical or mental
disabilities," 42 U. S. C. §12101(a)(1) -- and that figure's legislative
history extrapolated from a law review "article authored by the drafter
of the original ADA bill introduced in Congress in 1988." Ante, at 11. We
previously have observed that a "statement of congressional findings is
a rather thin reed upon which to base" a statutory construction. National
Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 260 (1994). Even
so, as I have noted above, I readily agree that the agencies' approach to
the Act would extend coverage to more than that number of people (although
the Court's lofty estimates, see ante, at 13-14, may be inflated because
they do not appear to exclude impairments that are not substantially limiting).
It is equally undeniable, however, that "43 million" is not a fixed cap
on the Act's protected class: By including the "record of" and "regarded
as" categories, Congress fully expected the Act to protect individuals who
lack, in the Court's words, "actual" disabilities, and therefore are not
counted in that number.
|||What is more, in mining the depths of the history of the 43 million figure
-- surveying even agency reports that predate the drafting of any of this
case's controlling legislation -- the Court fails to acknowledge that its
narrow approach may have the perverse effect of denying coverage for a sizeable
portion of the core group of 43 million. The Court appears to exclude from
the Act's protected class individuals with controllable conditions such
as diabetes and severe hypertension that were expressly understood as substantially
limiting impairments in the Act's Committee Reports, see supra, at 6-7 --
and even, as the footnote in the margin shows, in the studies that produced
the 43 million figure.*fn6 Given the
inability to make the 43 million figure fit any consistent method of interpreting
the word "disabled," it would be far wiser for the Court to follow -- or
at least to mention -- the documents reflecting Congress' contemporaneous
understanding of the term: the Committee Reports on the actual legislation.
|||Occupational hazards characterize many trades. The farsighted pilot may
have as much trouble seeing the instrument panel as the near sighted pilot
has in identifying a safe place to land. The vision of appellate Judges
is sometimes subconsciously obscured by a concern that their decision will
legalize issues best left to the private sphere or will magnify the work
of an already-overburdened judiciary. See Jackson v. Virginia, 443 U. S.
307, 326, 337-339 (1979) (Stevens, J., Dissenting). Although these concerns
may help to explain the Court's decision to chart its own course -- rather
than to follow the one that has been well marked by Congress, by the overwhelming
consensus of circuit Judges, and by the Executive officials charged with
the responsibility of administering the ADA -- they surely do not justify
the Court's crabbed vision of the territory covered by this important statute.
|||Accordingly, although I express no opinion on the ultimate merits of petitioners'
claim, I am persuaded that they have a disability covered by the ADA. I
therefore respectfully Dissent.
|||Breyer, J., Dissenting
|||SUTTON v. UNITED AIR LINES, INC.
|||____ U. S. ____ (1999)
|||SUPREME COURT OF THE UNITED STATES
|||KAREN SUTTON and KIMBERLY HINTON, PETITIONERS v. UNITED AIR LINES, INC.
|||on writ of certiorari to the united states court of appeals for the tenth
|||[June 22, 1999]
|||Justice Breyer, Dissenting.
|||We must draw a statutory line that either (1) will include within the
category of persons authorized to bring suit under the Americans with Disabilities
Act of 1990 some whom Congress may not have wanted to protect (those who
wear ordinary eyeglasses), or (2) will exclude from the threshold category
those whom Congress certainly did want to protect (those who successfully
use corrective devices or medicines, such as hearing aids or prostheses
or medicine for epilepsy). Faced with this dilemma, the statute's language,
structure, basic purposes, and history require us to choose the former statutory
line, as Justice Stevens (whose opinion I join) well explains. I would add
that, if the more generous choice of threshold led to too many lawsuits
that ultimately proved without merit or otherwise drew too much time and
attention away from those whom Congress clearly sought to protect, there
is a remedy. The Equal Employment Opportunity Commission (EEOC), through
regulation, might draw finer definitional lines, excluding some of those
who wear eyeglasses (say, those with certain vision impairments who readily
can find corrective lenses), thereby cabining the overly broad extension
of the statute that the majority fears.
|||The majority questions whether the EEOC could do so, for the majority
is uncertain whether the EEOC possesses typical agency regulation-writing
authority with respect to the statute's definitions. See ante, at 6-7. The
majority poses this question because the section of the statute, 42 U. S.
C. §12116, that says the EEOC "shall issue regulations" also says these
regulations are "to carry out this subchapter" (namely, §12111 to §12117,
the employment subchapter); and the section of the statute that contains
the three-pronged definition of "disability" precedes "this subchapter,"
the employment subchapter, to which §12116 specifically refers. (Emphasis
|||Nonetheless, the employment subchapter, i.e., "this subchapter," includes
other provisions that use the defined terms, for example a provision that
forbids "discriminat[ing] against a qualified individual with a disability
because of the disability." §12112(a). The EEOC might elaborate through
regulations the meaning of "disability" in this last-mentioned provision,
if elaboration is needed in order to "carry out" the substantive provisions
of "this subchapter." An EEOC regulation that elaborated the meaning of
this use of the word "disability" would fall within the scope both of the
basic definitional provision and also the substantive provisions of "this"
later subchapter, for the word "disability" appears in both places.
|||There is no reason to believe that Congress would have wanted to deny
the EEOC the power to issue such a regulation, at least if the regulation
is consistent with the earlier statutory definition and with the relevant
interpretations by other enforcement agencies. The physical location of
the definitional section seems to reflect only drafting or stylistic, not
substantive, objectives. And to pick and choose among which of "this subchapter['s]"
words the EEOC has the power to explain would inhibit the development of
law that coherently interprets this important statute.
|||*fn1 See Bartlett v. New York State
Bd. of Law Examiners, 156 F. 3d 321, 329 (CA2 1998), cert. pending, No.
98-1285; Washington v. HCA Health Servs. of Texas, 152 F. 3d 464, 470-471
(CA5 1998), cert. pending, No. 98-1365; Baert v. Euclid Beverage, Ltd.,
149 F. 3d 626, 629-630 (CA7 1998); Arnold v. United Parcel Service, Inc.,
136 F. 3d 854, 859-866 (CA1 1998); Matcza v. Frankford Candy & Chocolate
Co., 136 F. 3d 933, 937-938 (CA3 1997); Doane v. Omaha, 115 F. 3d 624, 627
(CA8 1997); Harris v. H & W Contracting Co., 102 F. 3d 516, 520-521 (CA11
1996); Holihan v. Lucky Stores, Inc., 87 F. 3d 362, 366 (CA9 1996). While
a Sixth Circuit decision could be read as expressing doubt about the majority
rule, see Gilday v. Mecosta County, 124 F. 3d 760, 766-768 (1997) (Kennedy,
J., Concurring in part and Dissenting in part); id., at 768 (Guy, J., Concurring
in part and Dissenting in part), the sole holding contrary to this line
of authority is the Tenth Circuit's opinion that the Court affirms today.
|||*fn2 The House's decision to cover
correctable impairments under subsection (A) of the statute seems, in retrospect,
both deliberate and wise. Much of the structure of the House Reports is
borrowed from the Senate Report; thus it appears that the House Committees
consciously decided to move the Discussion of mitigating measures. This
adjustment was prudent because in a case in which an employer refuses, out
of animus or fear, to hire an individual who has a condition such as epilepsy
that the employer knows is controlled, it may be difficult to determine
whether the employer is viewing the individual in her uncorrected state
or "regards" her as substantially limited.
|||*fn3 The one notable exception to
our use of this method of interpretation occurred in the decision in General
Elec. Co. v. Gilbert, 429 U. S. 125 (1976), in which the majority rejected
an EEOC guideline and the heavy weight of authority in the federal courts
of appeals in order to hold that Title VII did not prohibit discrimination
on the basis of pregnancy-related conditions. Given the fact that Congress
swiftly "overruled" that decision in the Pregnancy Discrimination Act of
1978, 92 Stat. 2076, 42 U. S. C. §2000e(k), I submit that the views
expressed in the Dissenting opinions in that case, 429 U. S., at 146 (opinion
of Brennan, J.), and id., at 160 (opinion of Stevens, J.), should be followed
|||*fn4 J. Roberts, Binocular Visual
Acuity of Adults, United States, 1960-1962, p. 3 (National Center for Health
Statistics, Series 11, No. 30 Department of Health and Welfare, 1968).
|||*fn5 For much the same reason, the
Court's concern that the agencies' approach would "lead to the anomalous
result" that courts would ignore "negative side effects suffered by an individual
resulting from the use of mitigating measures," ante, at 10, is misplaced.
It seems safe to assume that most individuals who take medication that itself
substantially limits a major life activity would be substantially limited
in some other way if they did not take the medication. The Court's examples
of psychosis, Parkinson's disease, and epilepsy certainly support this presumption.
To the extent that certain people may be substantially limited only when
taking "mitigating measures," it might fairly be said that just as contagiousness
is symptomatic of a disability because an individual's "contagiousness and
her physical impairment each [may result] from the same underlying condition,"
School Bd. of Nassau Cty. v. Arline, 480 U. S. 273, 282 (1987), side effects
are symptomatic of a disability because side effects and a physical impairment
may flow from the same underlying condition.
|||*fn6 See National Council on Disability,
Toward Independence 12 (1986) (hypertension); U. S. Dept. of Commerce, Bureau
of Census, Disability, Functional Limitation, and Health Insurance Coverage:
1984/85, p. 51 (1986) (hypertension, diabetes); National Institute on Disability
and Rehabilitation Research, Data on Disability from the National Health
Interview Survey 1983-1985, p. 33 (1988) (epilepsy, diabetes, hypertension);
U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United
States 114-115 (1989) (Tables 114 and 115) (diabetes, hypertension); Mathematica
Policy Research, Inc., Digest of Data on Persons with Disabilities 3 (1984)
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