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| [1] | UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1997 |
| [2] | Docket No. 97-9162 |
| [3] | 2000.C02.0042334 <http://www.versuslaw.com> |
| [4] | August 30, 2000 |
| [5] | MARILYN J. BARTLETT, PLAINTIFF-APPELLEE, v. NEW YORK STATE BOARD OF LAW EXAMINERS, ET AL., DEFENDANTS-APPELLANTS. |
| [6] | Eliot Spitzer, Attorney General of the State of New York, Robert A. Forte,
Deputy Solicitor General, Deon J. Nossel, Assistant Solicitor General, State
of New York, Ny, Ny, For Appellants. Jo Anne Simon, Brooklyn, Ny, Ruth Lowendron,
Roberta Mueller, Marianne Engelman Lado, John A. Gresham, New York Lawyers
for the Public Interest, Inc., Ny, Ny, For Appellee. Robert Lewin, James
McGovern, Kevin J. Curnin, James T. Cunningham, Stroock & Stroock &
Lavan, New York, Ny, for Amici Curiae The Association on Higher Education
and Disability, Disability Rights Advocates, Disability Rights Education
and Defense Fund, Inc., The International Dyslexia Association, The Learning
Disabilities Association of America, The National Association of Protection
and Advocacy Systems, The National Center of Higher Education for Learning
Problems Program, The New York Branch of the International Dyslexia Association,
The Society of American Law Teachers, United Cerebral Palsy Associations
of New York State, Inc., The National Coalition For Students With Disabilities
Education and Defense Fund, The Bazelon Center for Mental Health Law, and
American Association of People With Disabilities. Bill Lann Lee, Acting
Assistant Attorney General, Washington, D.C., Mary Jo White, United States
Attorney, Sara L. Shudofsky, Assistant United States Attorney, Southern
District of New York, New York, Ny, Jessica Dunsay Silver, Marie K. McElderry,
Attorneys, Department of Justice, Washington, D.C., for Amicus Curiae The
United States. |
| [7] | Meskill and Cabranes, Circuit Judges, and Nickerson, *fn1 District Judge. |
| [8] | The opinion of the court was delivered by: Meskill, Circuit Judge |
| [9] | Argued June 2, 1998 |
| [10] | Decided September 14, 1998 |
| [11] | ON REMAND FROM THE SUPREME COURT |
| [12] | On remand from an order of the Supreme Court granting certiorari and vacating
our earlier decision in Bartlett v. New York State Bd. of Law Exam'rs, 156
F.3d 321 (2d Cir. 1998, we hold that (1) despite appellee's self-accommodations,
she may be disabled under the Rehabilitation Act and the Americans With
Disabilities Act if her impairment "substantially limits" her
with respect to the major life activity of reading, and (2) appellee's impairment
"substantially limits" her with respect to the major life activity
of working only if it is her impairment that causes her to be excluded or
significantly restricted in a class of jobs or a broad range of jobs in
various classes. The district court's judgment is affirmed in part and vacated
and remanded in part. Judge Cabranes concurs in part and dissents in part
in a separate opinion. |
| [13] | In this appeal we consider whether plaintiff-appellee Marilyn J. Bartlett
has a disability within the meaning of the Americans with Disabilities Act
of 1990 (ADA). Bartlett has been diagnosed with dyslexia, a learning impairment.
However, not every impairment constitutes a disability under the ADA. |
| [14] | "Disability" is defined to include "a physical or mental
impairment that substantially limits one or more of the major life activities"
of an individual. ADA § 3(2)(A), 42 U.S.C. § 12102(2)(A). The district court
found that Bartlett was not substantially limited with respect to major
life activities such as reading or learning, but that she was substantially
limited with respect to the major life activity of working. Therefore the
court held that the defendant-appellant New York State Board of Law Examiners
(the Board) was required to provide Bartlett with reasonable accommodations
on the New York State Bar Examination. See Bartlett v. New York State Bd.
of Law Exam'rs, 970 F.Supp. 1094 (S.D.N.Y. 1997) (Bartlett I); see also
Bartlett v. New York State Bd. of Law Exam'rs, 2 F.Supp.2d 388 (S.D.N.Y.
1997) (Bartlett II) (denying motion for post-judgment relief). |
| [15] | The defendants appealed. We affirmed in part, vacated in part and remanded.
See Bartlett v. New York State Bd. of Law Exam'rs, 156 F.3d 321 (2d Cir.
1998) (Bartlett III). We agreed that Bartlett was disabled, but on different
grounds. In particular, in determining whether Bartlett was substantially
limited with respect to reading, we held that the district court should
not have taken into account Bartlett's ability to "self-accommodate,"
stating that Bartlett's "history of self-accommodations, while allowing
her to achieve roughly average reading skills (on some measures) when compared
to the general population, do not take her outside of the protective provisions
of the ADA." Id. at 329 (internal quotation marks omitted). Because
we concluded that Bartlett was substantially limited with respect to reading,
we did not consider whether she also was substantially limited with respect
to working. Id. We vacated and remanded solely as to the proper measure
of compensatory damages. See id. at 331-32. A petition for rehearing, with
a suggestion for rehearing en banc, was denied. |
| [16] | The Supreme Court granted certiorari and vacated and remanded in light
of Sutton v. United Air Lines, 527 U.S. 471 (1999), Murphy v. United Parcel
Serv., 527 U.S. 516 (1999), and Albertson's, Inc. v. Kirkingburg, 527 U.S.
555 (1999). See New York State Bd. of Law Exam'rs v. Bartlett, 527 U.S.
1031-32 (1999) (mem.). We now hold that, although the district court properly
considered corrective or mitigating measures such as Bartlett's self-accommodations,
see, e.g., Albertson's, 527 U.S. at 565-66, it nevertheless applied the
wrong legal standard when it found that Bartlett was not substantially limited
with respect to reading because she has "roughly average reading skills
(on some measures) when compared to the general population." Bartlett
I, 970 F.Supp. at 1120. It is not enough that Bartlett has average skills
on "some" measures if her skills are below average on other measures
to an extent that her ability to read is substantially limited. In fact,
the district court found that Bartlett reads "slowly, haltingly, and
laboriously." Id. at 1099; see also id. ("She simply does not
read in the manner of an average person."). Therefore, we remand for
the district court to determine, in the first instance, whether Bartlett
is substantially limited in the major life activity of reading by her slow
reading speed, or by any other "conditions, manner, or duration"
that limits her reading "in comparison to most people." See 28
C.F.R. Pt. 35, App. A, § 35.104 (1999). |
| [17] | We also disagree with the district court's analysis of whether Bartlett
was substantially limited with respect to the major life activity of working.
The district court held that "[i]f plaintiff's disability prevents
her from competing on a level playing field with other bar examination applicants,
then her disability has implicated the major life activity of working."
Bartlett I, 970 F.Supp. at 1121. However, it is not enough for a plaintiff
to prove that an impairment "implicates" a major life activity
-- she is required to prove that the impairment "substantially limits"
that activity. In this case, it has not been shown that Bartlett's inability
to practice law results from her reading impairment, rather than from other
factors that might prevent her from passing the bar. Therefore, we remand
for the district court to determine, if necessary, whether it is Bartlett's
impairment, rather than factors such as her education, experience or innate
ability, that "substantially limits" her ability to work. |
| [18] | BACKGROUND |
| [19] | After a 21 day trial, the district court found the following relevant
facts. Bartlett has a cognitive disorder that impairs her ability to read.
Despite her limitation, she has earned a Ph.D. in Educational Administration
from New York University, a law degree from Vermont Law School, and has
met all prerequisites to sit for the New York State Bar Examination. The
Board is a state entity charged with testing and licensing applicants seeking
admission to the New York State Bar. |
| [20] | Since 1991, Bartlett has taken the bar examination five times. On at least
three and possibly four separate occasions, she applied as a reading disabled
candidate to take the bar examination with accommodations. She requested
accommodations for the July 1991, February 1993 and July 1993 examinations.
Bartlett did not seek accommodations for the February 1992 bar examination,
and the record is unclear as to whether she sought accommodations for the
July 1992 exam. With respect to the July 1992 exam, the district court found
that "[Bartlett] claims she [applied for accommodations], but the Board
has no record of the request." Bartlett I, 970 F.Supp. at 1102. |
| [21] | Bartlett sought unlimited or extended time to take the test and permission
to tape record her essays and to circle her multiple choice answers in the
test booklet rather than completing the answer sheet. The Board denied her
request each time, contending that her application does not support a diagnosis
of a reading disability or dyslexia. In total, Bartlett has taken the examination
four times without accommodations and has yet to pass. On July 20, 1993,
after the Board denied her most recent application for accommodations, she
commenced this action in the district court alleging, among other things,
violations of titles II and III of the ADA, 42 U.S.C. § 12101 et seq., and
§ 504 of the Rehabilitation Act, 29 U.S.C. § 794. In her complaint, she
sought, among other things, injunctive relief in the form of reasonable
testing accommodations and compensatory and punitive damages. |
| [22] | On July 26, 1993 -- a mere two days before the July 1993 bar examination
-- the parties entered into a stipulation. Under its terms, Bartlett received
some, but not all, of the accommodations she sought, including time-and-a-half
for the New York portion of the test and the use of an amanuensis *fn2
to read the test questions and to record her responses. In addition, the
Board allowed Bartlett to mark the answers to the multiple choice portion
of the examination in the test booklet rather than on a computerized answer
sheet. However, the parties agreed that if Bartlett passed the examination,
the results would not be certified unless she prevailed in this lawsuit.
Despite the accommodations, Bartlett failed the examination. |
| [23] | Prior to July 1993, the Board denied Bartlett's requested accommodations
because its expert on learning disabilities, Dr. Frank R. Vellutino, did
not believe that Bartlett had dyslexia or a reading disability. Dr. Vellutino's
opinion was grounded primarily on Bartlett's performance on two subtests
of the Woodcock Reading Mastery Test--Revised (the Woodcock), a battery
of tests commonly employed to assess learning disabilities. |
| [24] | The two subtests at issue are the Woodcock "Word Attack" and
"Word Identification." According to Dr. Vellutino, these tests
are designed to measure a subject's "[w]ord [i]dentification and phonetic
decoding or word analysis skills (ability to 'sound out' a word)."
Bartlett I, 970 F.Supp. at 1112 (internal quotation marks omitted). Specifically,
the "Word Attack" subtest requires the subject to sound out 45
nonsense words of varying complexity. The "Word Identification"
subtest, on the other hand, measures a subject's ability to identify 106
real words in isolation that range from a simple "is" to the more
difficult "zymolysis." Both tests are untimed and the scores do
not reflect incorrect tries that precede a correct answer. Because "the
incidence of learning disabilit[ies] in the population is estimated at between
5% and 20%," id., Dr. Vellutino concluded that a 30% cutoff is reasonably
certain to capture all disabled applicants. Accordingly, he generally recommended
against providing accommodations to applicants who performed above the 30th
percentile, although he would occasionally "give applicants the benefit
of doubt" if either their Word Attack or Word Identification scores
were below 30% or 1 or 2 percentage points above. Id. |
| [25] | When Bartlett applied for accommodations for the July 1991 bar examination,
she submitted Woodcock Word Attack and Word Identification scores that were
above the 30th percentile, and her request for accommodations was denied.
When she applied for accommodations for the July 1993 bar examination, she
submitted a new evaluation from a clinical psychologist, Dr. Richard F.
Heath, indicating at least one Word Attack score below the 30th percentile.
Nevertheless, Dr. Vellutino did not give Bartlett "the benefit of doubt"
or recommend accommodations because he considered that score to be "an
anomaly." Id. |
| [26] | At trial, Bartlett challenged Dr. Vellutino's opinion. She presented expert
testimony and other evidence that her reading disability could not be measured
solely by the Woodcock. Bartlett's lead expert witness, Dr. Rosa A. Hagin,
opined that Bartlett was learning disabled, placing "considerable emphasis"
on Bartlett's performance on the Diagnostic Reading Test (DRT), which "demonstrat[ed]
plaintiff's slow rate of reading." Id. at 1109. On the DRT, when compared
to college freshmen, Bartlett's reading rate of 195 words per minute, timed,
placed her in the 4th percentile, while her reading rate of 156 words per
minute, untimed, placed her below the 1st percentile. Id. at 1110. Dr. Hagin
concluded that "plaintiff does not read in the same condition, manner
or duration of the average adult reader in that plaintiff does not read
with the automaticity or speed of an average reader." Id. |
| [27] | On July 3, 1997, the district court issued its opinion and order. After
a thorough and painstaking discussion of the evidence, the district court
found fatal infirmities in Dr. Vellutino's reliance on the Woodcock and
the Board's subsequent rejection of Bartlett's claim of disability. Specifically,
the court found (a) the Woodcock could not measure Bartlett's lack of "automaticity,"
i.e., her ability to recognize a printed word and read it accurately and
immediately without thinking; (b) the Woodcock was not timed and thus could
not measure the slowness of reading -- an important characteristic of adult
dyslexics like Bartlett, who had demonstrated a reading rate comparable
to the bottom fourth percentile of college freshman or worse; (c) the Woodcock
was designed principally to assess children and did not have enough items
in the difficult range; and (d) Bartlett's Woodcock results exhibited discrepancies,
revealing high reading comprehension scores in comparison to low, but average,
Word Attack and Word Identification scores. See id. at 1114. Furthermore,
the district court found that Dr. Vellutino's use of a 30th percentile cutoff
was arbitrary and flawed because other studies demonstrated that one third
of adults with dyslexia scored above that percentile on similar tests. See
id. |
| [28] | In sum, the court agreed with Bartlett's experts that "a reading
disability is not quantifiable merely in test scores. . . . [D]iagnosing
a learning disability requires clinical judgment." Id. In this regard,
the district court found that Bartlett's low "test scores on the Woodcock,
combined with clinical observations of her [slow and halting] manner of
reading amply support a conclusion that she has an automaticity and a reading
rate problem." Id.; see also id. at 1107. Moreover, the court agreed
with Bartlett's experts that her "earlier work as a school teacher
where phonics were stressed allowed [her] to develop 'self-accommodations'
that account for her ability to spell better and to perform better on word
identity and word attack tests than would be expected of a reading disabled
person." Id. at 1109; see also id. at 1120. |
| [29] | The district court, however, did not find that Bartlett is substantially
limited in the major life activities of reading or learning, reasoning that
her "history of self-accommodation has allowed her to achieve . . .
roughly average reading skills (on some measures) when compared to the general
population." Id. Rather, the court, relying on regulations promulgated
under Title I of the ADA, held that Bartlett is disabled in her ability
to "work" because her reading rate compared unfavorably with "persons
of comparable training, skills, and abilities." Id. at 1121 (internal
quotation marks omitted). Specifically, the court concluded that Bartlett's
inability to compete on the bar examination constituted a work disability,
stating: |
| [30] | If plaintiff's disability prevents her from competing on a level playing
field with other bar examination applicants, then her disability has implicated
the major life activity of working because if she is not given a chance
to compete fairly on what is essentially an employment test, she is necessarily
precluded from potential employment in that field. In this sense, the bar
examination clearly implicates the major life activity of working. Id. |
| [31] | The court then concluded, inter alia, that Bartlett is disabled within
the meaning of the ADA and § 504 of the Rehabilitation Act, id. at 1126,
and that the Board's failure to accommodate her constituted violations of
those statutes. |
| [32] | As a remedy for the violations found, the court ordered injunctive relief
in the form of reasonable testing accommodations including double time in
taking the examination over four days, the use of a computer, permission
to circle multiple choice answers in the examination booklet, and large
print on both the New York State and Multistate Bar Exam. Id. at 1153. The
court also awarded compensatory damages in the amount of $12,500 for fees
paid and the cost of review courses taken in connection with the five bar
examinations that Bartlett failed. Id. at 1152. |
| [33] | On July 14, 1997, the Board moved for relief from the judgment or, in
the alternative, to amend the judgment, pursuant to Fed. R. Civ. P. 59(e)
and 60(b). When that motion was denied, see Bartlett II, 2 F.Supp.2d at
396, the Board appealed. We identified the legal issues presented by the
appeal to be: |
| [34] | (1) whether the district court erred in refusing to defer to the Board's
determination that Dr. Bartlett is not disabled; (2) whether the district
court erred in concluding that Dr. Bartlett is disabled under the ADA and
the Rehabilitation Act in her ability to work and thus entitled to accommodations
in taking the New York State Bar Examination; (3) whether the district court
erred in concluding that the Board is subject to the strictures of the Rehabilitation
Act; and (4) whether the district court erred in awarding Dr. Bartlett compensatory
damages in the amount of $12,500 from the Board for fees paid in connection
with the five bar examinations that she failed. Bartlett III, 156 F.3d at
324. |
| [35] | Because the Supreme Court's decisions in Sutton, Murphy and Albertson's
have no bearing on issues (1) and (3), we adhere to our earlier resolution
of those issues. In other words, for the reasons stated in Bartlett III,
we hold that the Board is not entitled to deference on the question of whether
Bartlett suffers from a disability under the ADA and the Rehabilitation
Act, see id. at 327 ("The Board has no expertise in assessing learning
disabilities."), and we hold that the Board is subject to the strictures
of the Rehabilitation Act because it is a recipient of federal funds, see
id. at 329-30. We also adhere to our earlier determination that Bartlett
is entitled to compensatory damages if her rights under the ADA were violated,
see id. at 331 (finding that exclusive reliance on two Woodcock subtests
constituted "deliberate indifference to a strong likelihood of violating
. . . federally protected rights"), but we provide additional guidance
on the question of the proper measure of compensatory damages. We turn now
to whether Bartlett suffers from a statutorily cognizable disability and,
if so, the proper measure of compensatory damages. |
| [36] | DISCUSSION |
| [37] | I. Whether Bartlett Has A Disability |
| [38] | Title II, subtitle A of the ADA prohibits discrimination by public entities,
such as the Board, on the basis of disability: |
| [39] | Subject to the provisions of this title, no qualified individual with
a disability shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity. ADA
§ 202, 42 U.S.C. § 12132. |
| [40] | Regulations promulgated by the Attorney General (Department of Justice
regulations) pursuant to delegated authority, see ADA § 204, 42 U.S.C. §
12134, specifically provide that "[a] public entity may not administer
a licensing or certification program in a manner that subjects qualified
individuals with disabilities to discrimination on the basis of disability."
28 C.F.R. § 35.130(b)(6) (1999). *fn3 |
| [41] | An individual has a disability under the ADA if, inter alia, that individual
has "a physical or mental impairment that substantially limits one
or more of the major life activities of such individual." ADA § 3(2)(A),
42 U.S.C. § 12102(2)(A). Thus, to decide whether an individual has a disability
under the ADA, a three-step inquiry is called for: first, we must decide
whether that individual suffers from a "physical or mental" impairment;
second, we must determine whether the life activity on which the individual
relies amounts to a "major" life activity; and third, we must
ask whether the specified impairment "substantially limits" that
major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998). |
| [42] | Our analysis is guided by the Department of Justice regulations. Although
"no agency has been delegated authority to interpret the term 'disability,'"
Sutton, 527 U.S. at 479, the agency authorized to issue regulations implementing
specific provisions of the ADA is entitled to "great deference"
on the meaning of "disability" as used in those provisions. See
Muller v. Costello, 187 F.3d 298, 312 & n.5 (2d Cir. 1999) (according
"great deference" to Equal Employment Opportunity Commission's
interpretation of "disability" in employment discrimination case
under title I). As noted previously, the Attorney General has authority
to issue regulations implementing title II, subtitle A, under which this
case arises, so the Department of Justice regulations interpreting "disability"
are entitled to great deference. |
| [43] | A. Physical or Mental Impairment |
| [44] | With respect to the first step of our analysis, the regulations provide
that the phrase "physical or mental impairment" means "[a]ny
mental or psychological disorder such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning disabilities."
28 C.F.R. § 35.104 (1999). The Board contends that Bartlett does not suffer
from a specific learning disability but is merely a slow reader with otherwise
average reading skills. The district court rejected the Board's argument: |
| [45] | [A] reading disability is not quantifiable merely in test scores. . .
. By its very nature, diagnosing a learning disability requires clinical
judgment. Clinicians need to examine a patient to ensure that low or disparate
scores are not the result of low intelligence, or emotional or other social
problems. . . . [A]s much as the Board would like to find an easy test discriminator
for a reading disability in its applicants, such a test does not exist.
Bartlett I, 970 F.Supp. at 1114. |
| [46] | The district court's conclusion that Bartlett suffers from a mental impairment,
in this case "an automaticity and a reading rate problem," and
not from "low intelligence, or emotional or other social problems,"
is not clearly erroneous. See id.; see also Bartlett II, 2 F.Supp.2d at
394 n.4. |
| [47] | B. Major Life Activities |
| [48] | Next, we must decide whether the life activities allegedly implicated
by Bartlett's impairment are "major" life activities. "The
term 'major life activit[y],' by its ordinary and natural meaning, directs
us to distinguish between life activities of greater and lesser significance."
Reeves v. Johnson Controls World Servs., 140 F.3d 144, 151 (2d Cir. 1998)
(alteration in original); see Bragdon, 524 U.S. at 638. The question is
whether the life activity is "major" as contemplated by the ADA,
not whether the life activity is particularly important to the plaintiff.
Reeves, 140 F.3d at 151-52. The regulations list life activities that are
"major life activities per se," id. at 152, including "caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working," 28 C.F.R. § 35.104 (1999). "[T]his
list . . . is meant to be illustrative and not exclusive." Reeves,
140 F.3d at 150. |
| [49] | In this case, Bartlett claimed that her impairment limits her with respect
to the major life activities of learning, reading, writing, studying, test-taking
and working. See Bartlett I, 970 F.Supp. at 1117. However, the district
court, and the parties on appeal, focused primarily on the life activities
of reading and working. Therefore, we do not decide whether life activities
such as studying and test-taking are "major." It is sufficient
for us to hold that "reading" and "working" are major
life activities. See Bartlett III, 156 F.3d at 328 n.3 (reading); EEOC v.
R.J. Gallagher Co., 181 F.3d 645, 654-55 (5th Cir. 1999) (working). Indeed,
the Board presents no arguments to the contrary. |
| [50] | C. Substantial Limitation |
| [51] | Thus, we reach the central question presented by this appeal: whether
Bartlett's impairment "substantially limits" her with respect
to the major life activities of reading or working. Whether an individual
is substantially limited with respect to a major life activity is a mixed
question of law and fact. See, e.g., Bridges v. City of Bossier, 92 F.3d
329, 333 (5th Cir. 1996). We therefore review this aspect of the district
court's judgment de novo. See, e.g., Hirschfeld v. Spanakos, 104 F.3d 16,
19 (2d Cir. 1997). |
| [52] | The Department of Justice regulations do not define the phrase "substantially
limits," but the preamble to the regulations provides: "A person
is considered an individual with a disability . . . when the individual's
important life activities are restricted as to the conditions, manner, or
duration under which they can be performed in comparison to most people."
28 C.F.R. Pt. 35, App. A § 35.104 (1999) (emphasis added). Thus, a person
who has lost a leg but who is able to walk or run with the aid of a prosthetic
limb is still considered disabled if that person is substantially limited
by any "conditions, manner, or duration" that limits his or her
ability to walk or run "in comparison to most people." See id. |
| [53] | The Supreme Court acknowledged this point in Sutton. In Sutton, the Supreme
Court held 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."
Sutton, 527 U.S. at 482; see also Murphy, 527 U.S. at 521; Albertson's,
527 U.S. at 565-66. The Court noted, however, that the use of corrective
devices or mitigating measures "does not, by itself, relieve one's
disability." Sutton, 527 U.S. at 488. |
| [54] | 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.
Id. |
| [55] | Thus, we must account for Bartlett's self-accommodations in determining
whether she is disabled, but the fact that she is able to self-accommodate
does not itself determine whether she is disabled. "[T]hat determination
depends on whether the limitations [Bartlett] actually faces are in fact
substantially limiting." Id. |
| [56] | Bartlett is required to show that any limitations "are in fact substantial,"
not amounting to only a "mere difference" in "conditions,
manner, or duration." See Albertson's, 527 U.S. at 564-65. The burden
is not necessarily an onerous one, and in fact, certain limitations will
"ordinarily" qualify as disabilities. See id. at 567 (agreeing
that monocular vision will ordinarily be a disability under the ADA); see
also Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) ("Because
the [Rehabilitation] Act is a remedial statute, it and the regulations promulgated
under it are to be construed broadly."). |
| [57] | 1. Substantial Limitation With Respect to Reading |
| [58] | In Bartlett III, we observed that "Bartlett suffers from a lack of
automaticity and a phonological processing defect that significantly restricts
her ability to identify timely and decode the written word, that is, to
read as compared to the manner and conditions under which the average person
in the general population can read or learn." Bartlett III, 156 F.3d
at 329. We concluded that Bartlett was substantially limited with respect
to reading, but our conclusion was premised in part on a mistaken belief
that Bartlett's self-accommodations should not have been considered when
evaluating her condition. See id. ("'A disability should be assessed
without regard to the availability of mitigating measures, such as reasonable
accommodations or auxiliary aids.'" (quoting H.R. Rep. No. 101-485(II),
at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334)). |
| [59] | Although the district court properly accounted for Bartlett's self-accommodations,
we cannot rely on its conclusion that Bartlett is not substantially limited
with respect to reading because the court did not apply the correct legal
standard. In particular, the court relied on its finding that Bartlett had
achieved "'roughly average reading skills (on some measures) when compared
to the general population.'" Id. at 326 (emphasis added) (quoting Bartlett
I, 970 F.Supp. at 1120). It is not enough that Bartlett has average skills
on "some" measures if her skills are below average on other measures
to an extent that her ability to read is substantially limited. Compare
Gonzales v. National Bd. Of Med. Exam'rs, 2000 WL 1179798, at *5 (6th Cir.
Aug. 22, 2000) (quoting expert testimony that "in all areas that were
assessed, . . . [Gonzales] performed in the average to superior range"
(emphasis added and internal quotation marks omitted)). Slow reading speed
is clearly a condition or manner that can present a substantial limitation
-- unlike, perhaps, wearing contact lenses. Cf. Sutton, 527 U.S. at 488
(noting that petitioners did not claim that the use of contact lenses was
itself substantially limiting). Alternatively, Bartlett's slow reading rate
may be viewed as a "negative side effect[] suffered by an individual
resulting from the use of mitigating measures." See id. at 484. |
| [60] | In fact, the district court found that Bartlett "reads slowly, haltingly,
and laboriously." Bartlett I, 970 F.Supp. at 1099. "She simply
does not read in the manner of an average person." Id. The court credited
the testimony of Dr. Hagin, Bartlett's lead expert witness, see id. at 1110,
1114, who testified that Bartlett "does not read in the same condition,
manner or duration of the average adult reader in that [she] does not read
with the automaticity or speed of an average reader," id. at 1110;
see also id. at 1107 (Dr. Heath, another of Bartlett's experts credited
by the district court, "noted in his evaluation that 'Dr. Bartlett
decoded words slowly and without automaticity.'"). The district court's
factual finding, that Bartlett lacks automaticity and is a slow reader,
is not clearly erroneous. However, it is not dispositive, because the ultimate
question is whether Bartlett's lack of automaticity and slow rate of reading
amount to a substantial limitation in comparison to most people or only
a "mere difference." See Albertson's, 527 U.S. at 565. The evidence
on the point is mixed. One of Bartlett's own experts, Dr. Massad, had asked
her to read a test passage aloud "to get a feel" for her reading
rate but "didn't see anything remarkable to report." Bartlett
I, 970 F.Supp. at 1105-06. Bartlett's DRT test results, which show a reading
rate in the fourth percentile or below as compared to college freshmen,
are of limited value, because the proper reference group is "most people,"
not college freshmen. Therefore, we remand to the district court to determine,
in the first instance, whether Bartlett is substantially limited in the
major life activity of reading by her slow reading rate, or by any other
"conditions, manner, or duration" that limits her reading "in
comparison to most people." |
| [61] | 2. Substantial Limitation With Respect to Working |
| [62] | Although the district court held that Bartlett was not substantially limited
with respect to reading, it held that Bartlett was disabled because she
was substantially limited with respect to working. We cannot affirm the
district court's finding of disability on this alternative ground. |
| [63] | The district court applied the definition of "substantially limits"
that was promulgated by the Equal Employment Opportunity Commission (EEOC),
holding that "the EEOC's interpretation of substantial limitation in
the context of the major life activity of working is both a part of, and
consistent with, the Department of Justice's regulations." Bartlett
II, 2 F.Supp.2d at 390. The EEOC regulations provide that, with respect
to the major life activity of working, the term "substantially limits"
means "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."
29 C.F.R. § 1630.2(j)(3)(i) (1999). Thus, rather than comparing Bartlett
to the average person in the general population, the district court compared
her to "the average person having comparable training, skills, and
abilities" in determining whether Bartlett was substantially limited
with respect to working. Bartlett I, 970 F.Supp. at 1120-21. The district
court then concluded that Bartlett was significantly restricted in the ability
to perform the "class of jobs" involving the practice of law.
Id. at 1121. |
| [64] | The Board argues that the district court erred in adopting the EEOC definition
of "substantially limits" and that Bartlett should be considered
disabled only if she is substantially limited compared to the average person
in the general population. The Board also argues that Bartlett is not excluded
from a class of jobs, but only from the job of "practicing attorney."
In addition, the National Board of Medical Examiners and the Federation
of State Medical Boards of the United States of America, Inc., as amici
curiae on the initial appeal in this case, argued that the district court
erred in failing to require a causal "nexus" between Bartlett's
impairment and her purported substantial limitation with respect to working.
We do not agree with the Board's arguments, but we find merit in the position
of the amici curiae. |
| [65] | The EEOC is one of three agencies authorized to issue regulations to implement
the ADA. See Sutton, 527 U.S. at 478. The EEOC is granted authority to issue
regulations implementing the employment provisions of title I, rather than
the title II provisions at issue here, see id., so it is not entitled to
the same "great deference" that we accord regulations promulgated
by the Attorney General. Nevertheless, the EEOC's views "constitute
a body of experience and informed judgment to which courts and litigants
may properly resort for guidance." See Bragdon, 524 U.S. at 642 (internal
quotation marks omitted). See generally Christensen v. Harris County, 120
S.Ct. 1655, 1662-63 (2000) (discussing various degrees of deference to which
an agency interpretation may be entitled). |
| [66] | The district court correctly recognized that, if permitted by the relevant
regulations, the phrase "substantially limits" should be given
a consistent meaning throughout the ADA, especially in light of the "cooperative
spirit in which the regulations were promulgated." Bartlett I, 970
F.Supp. at 390 (citing 1 Henry H. Perritt, Jr., Americans With Disabilities
Act Handbook § 1.9 (3d ed. 1997)); see also Price v. National Bd. Of Med.
Exam'rs, 966 F.Supp. 419, 425 & n.2 (S.D.W.Va. 1997) ("Congress
clearly intended for the term 'disability' (and, therefore, the phrase 'substantially
limits') to have a uniform meaning throughout the ADA."). But see Gonzales,
2000 WL 1179798, at *8. |
| [67] | As noted earlier, the Department of Justice regulations do not define
"substantially limits." The preamble to the regulations provides
some guidance and specifies that impairments must be evaluated in comparison
to "most people," but it is ambiguous insofar as it "neglects
to explain[] whether 'most people' refers to most people in the general
population or to most people engaging in that particular life activity."
Bartlett I, 970 F.Supp. at 390 n.2. We conclude, as the Department of Justice
as amicus curiae argues, that the EEOC regulations defining "substantially
limits" with respect to working are not inconsistent with the Department
of Justice regulations. Cf. Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding
agency's interpretation of its own regulation to be "controlling unless
plainly erroneous or inconsistent with the regulation" (internal quotation
marks omitted)). Therefore the district court did not err in relying on
the EEOC regulations. |
| [68] | Next, the Board argues that Bartlett's impairment excludes her from only
"one type of job -- practicing attorney." However, we do not find
clear error in the district court's painstaking analysis of this issue.
See Bartlett I, 970 F.Supp. at 1121-26. EEOC regulations provide that an
individual is substantially limited with respect to working if she is "significantly
restricted in the ability to perform either a class of jobs or a broad range
of jobs in various classes." 29 C.F.R. § 1630.2(j)(3)(i) (1999). The
regulations further elaborate on what is meant by a "class of jobs,"
id. § 1630.2(j)(3)(ii)(B), or a "broad range of jobs in various classes,"
id. § 1630.2(j)(3)(ii)(C), limiting the inquiry to the geographical area
"to which the individual has reasonable access," id. § 1630.2(j)(3)(ii)(A).
With respect to "a class of jobs," a court must consider "[t]he
job from which the individual has been disqualified because of an impairment,
and the number and types of jobs utilizing similar training, knowledge,
skills or abilities." Id. § 1630.2(j)(3)(ii)(B). |
| [69] | The district court weighed "the number and types of jobs involving
the practice of law in New York City alone, much less in the broader geographical
market to which plaintiff has reasonable access," and found that "[a]ll
of these countless jobs and opportunities are foreclosed to plaintiff."
Bartlett I, 970 F.Supp. at 1122; see also id. at 1123-26. Even though, as
explained below, Bartlett has not shown that her exclusion from those "countless
jobs" was a result of her impairment, we do not doubt that the many
and varied jobs utilizing legal training constitute a "class of jobs."
Cf. Department of Labor, Dictionary of Occupational Titles 84-86 (4th ed.
1991) (listing 26 jobs under the heading "Occupations in Law and Jurisprudence"
including twelve categories of lawyers). |
| [70] | We begin by identifying Bartlett's pertinent "training, knowledge,
skills or abilities," and then we compare the jobs utilizing those
qualifications with the jobs from which Bartlett is excluded and ask whether
exclusion from the latter is a significant restriction with respect to the
former. See, e.g., 29 C.F.R. § 1630.2(j)(3). To be "significant,"
it is not necessary that Bartlett be excluded from every job for which she
is qualified, see, e.g., Fjellestad v. Pizza Hut of Am., 188 F.3d 944, 955
(8th Cir. 1999) ("[T]he Act does not require a showing that absolutely
no employment opportunities exist."), but it is also not enough for
her to be excluded from only "one type of job, a specialized job, or
a particular job of choice," Sutton, 527 U.S. at 492. See generally
29 C.F.R. Pt. 1630, App. § 1630.2(j). In this case, the pertinent qualification
is that Bartlett completed law school and earned a law degree, and we ask
whether Bartlett's purported exclusion from the practice of law is a significant
restriction relative to the class of jobs utilizing a law degree. Like the
district court, we answer yes. Although the Board argues that certain jobs
in the legal profession are not foreclosed to Bartlett, e.g., law professor
or legal consultant, those jobs, if in fact available to her, are the exception
and not the rule. |
| [71] | The Supreme Court's decision in Sutton is distinguishable. In Sutton,
the Supreme Court held that the position of "global airline pilot"
was only a single job among "a number of other positions utilizing
[flying] skills, such as regional pilot and pilot instructor to name a few."
Sutton, 527 U.S. at 493. However, the number of lawyers practicing law,
relative to the number of people holding a law degree, is surely larger
in proportion than the number of global airline pilots relative to the number
of people who hold licenses to fly. Similarly, in Murphy, the plaintiff
was "generally employable as a mechanic," but claimed that he
was excluded from mechanic jobs that required driving a commercial motor
vehicle. See Murphy, 527 U.S. at 524. The number of mechanic jobs that require
driving a commercial motor vehicle is presumably small, relative to the
number of mechanic jobs generally, so the Court understandably concluded
that the plaintiff "failed to show that he is regarded as unable to
perform a class of jobs." Id. at 525. Thus, neither Sutton nor Murphy
undermine our conclusion: if an impairment bars a person with a law degree
from practicing law, then that impairment is a disability under the ADA.
*fn4 |
| [72] | In the end, however, we disagree with the district court's conclusion
that Bartlett is substantially limited with respect to working. The court
reasoned as follows: |
| [73] | If plaintiff's disability prevents her from competing on a level playing
field with other bar examination applicants, then her disability has implicated
the major life activity of working because if she is not given a chance
to compete fairly on what is essentially an employment test, she is necessarily
precluded from potential employment in that field. In this sense, the bar
examination clearly implicates the major life activity of working. Bartlett
I, 970 F.Supp. at 1121. |
| [74] | However, it is not enough for a plaintiff to prove that an impairment
"implicates" a major life activity -- he or she must prove that
it is the impairment that "substantially limits" the activity.
In other words, the definition of "disability" ("a physical
or mental impairment that substantially limits one or more . . . major life
activities") encompasses the requirement that it be the impairment,
and not some other factor or factors, that causes the substantial limitation.
See Hainke v. Gleeson, Sklar, Sawyers & Cumpata LLP, 71 F.Supp.2d 885,
890 (N.D. Ill. 1999) (finding no substantial limitation with respect to
working absent "any showing that [plaintiff's] chronic fatigue and
sleeping problems were the cause of her tardiness"); see also Hill
v. Metropolitan Atlanta Rapid Transit Auth., 77 F.Supp.2d 1291, 1296 (N.D.
Ga. 1999) ("No medical evidence was presented showing any kind of a
link between [plaintiff's] impairments and tardiness."). Compare Aquinas
v. Federal Express Corp., 940 F.Supp. 73, 78 (S.D.N.Y. 1996) (finding that
poor work attendance was "unrelated to" plaintiff's medical condition)
with Dutton v. Johnson County Bd. of County Comm'rs, 859 F.Supp. 498, 506
(D. Kan. 1994) (finding that plaintiff's headaches "contributed significantly"
to absenteeism). |
| [75] | In most cases, of course, the causation requirement is obviously met.
If a person is impaired because he has lost a leg and is substantially limited
with respect to the major life activity of walking, there is little room
to doubt that the impairment is the cause of the substantial limitation.
In this case, however, it has not been shown that Bartlett's inability to
practice law results from her reading impairment, rather than from other
factors that might prevent her from passing the bar. Cf. Bartlett I, 970
F.Supp. at 1152 (denying damages for lost wages and benefits because "[a]s
defendants correctly point out, 'plaintiff has failed to prove that with
accommodations she would have passed the Bar exam.'" (quoting letter
submitted to court)). |
| [76] | However, Bartlett need not prove that she would have passed the bar examination
"but for" the denial of accommodations, because even under the
best of circumstances a well qualified candidate may not pass on any given
sitting. In this case, notwithstanding Bartlett's failure to pass the July,
1993 bar exam, Bartlett may be able to show that the denial of accommodations
was a substantial factor preventing her from passing the exam. The July
1993 examination is an especially poor indicator, given that Bartlett was
not granted accommodations until two days before the exam and apparently
had no opportunity "to practice with her amanuensis, an accommodation
she had never previously used." See Bartlett I, 970 F.Supp. at 1104.
We therefore remand for the district court to determine, if necessary, whether
plaintiff has shown that it is her impairment, rather than factors such
as her education, experience, or innate ability, that "substantially
limits" her ability to work. |
| [77] | II. Compensatory Damages |
| [78] | In Bartlett I the district court awarded $12,500 in compensatory damages,
$2,500 for each of the five times that the plaintiff took the bar exam.
See id. at 1152. The Board argued that Bartlett was not entitled to compensation
for three of the exams, two where Bartlett's requests for accommodations
were submitted late and one where accommodations were granted. The district
court rejected the Board's argument. With respect to the late-filed applications,
the court found that the Board "consistently through the years considered
untimely applications" and that the denials were clearly decisions
on the merits. Bartlett II, 2 F.Supp.2d at 396 n.7. With respect to the
grant of accommodations, the court held that recovery was proper "given
that the accommodations granted were neither those that the plaintiff requested
nor those to which the Court has deemed plaintiff was entitled." Id. |
| [79] | On appeal we vacated the award, explaining that the Board was liable "only
for bar examination expenses incurred where the Board denied accommodations
because of illegal discrimination." Bartlett III, 156 F.3d at 332.
Because Bartlett did not seek accommodations for the February 1992 exam,
we held that "the Board is not liable for damages arising from its
failure to accommodate." Id. |
| [80] | We adhere to our earlier reasoning. In addition, we note that the district
court should consider, if it finds a disability, whether the Board had enough
information to determine that Bartlett was disabled. In other words, the
district court may conclude that Bartlett is substantially limited by her
slow rate of reading, but it may not be the case that the requests for accommodations
and the accompanying reports provided to the Board reflected that limitation.
See Bartlett I, 970 F.Supp. at 1137 ("[E]ven plaintiff's own experts
in their evaluations did not address or identify plaintiff's reading problem
with clarity."). But see id. at 1107 (Dr. Heath "noted in his
evaluation that 'Dr. Bartlett decoded words slowly and without automaticity.'").
If Bartlett's requests for accommodations did not provide enough information
for the Board to determine that she was disabled, the Board would not be
liable. See Heilweil, 32 F.3d at 725 ("[A]n employer is only responsible
for employment decisions based on information available to it when it decides."). |
| [81] | CONCLUSION |
| [82] | For the foregoing reasons, we affirm the district court insofar as it
(1) declined to defer to the Board's determination that Bartlett does not
suffer from a disability, (2) found that the Board is subject to the strictures
of the Rehabilitation Act, and (3) held that Bartlett is entitled to compensatory
damages if her rights under the ADA were violated. |
| [83] | We vacate and remand as to (1) whether Bartlett has a disability under
the ADA and the Rehabilitation Act, and (2) if so, the proper measure of
compensatory damages. We leave it to the district court on remand to decide
whether to allow the parties to submit further evidence or whether to resolve
these questions on the existing record. |
| [84] | José A. Cabranes, Circuit Judge, concurring in part and dissenting in
part: |
| [85] | I concur in the majority's thorough and well-reasoned opinion insofar
as it (1) concludes that the District Court applied the wrong legal standard
for purposes of determining whether Bartlett is disabled with respect to
the major life activity of reading and (2) vacates the judgment and remands
to the District Court on that basis. However, I cannot concur in the majority's
decision to vacate and remand for further proceedings on whether Bartlett
is disabled with respect to the major life activity of working. In my view,
the evidence in the record supports only one conclusion on that issue-namely,
that Bartlett is not disabled with respect to the purported major life activity
of working-and the majority reaches a contrary conclusion only by equating
the act of test-taking with the fundamentally different act of working.
I would reverse the judgment of the District Court insofar as that Court
concluded that Bartlett is disabled with respect to the major life activity
of working, and I therefore respectfully dissent in part. |
| [86] | I. |
| [87] | The Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101
et seq., defines individuals with disabilities to include any individual
with "a physical or mental impairment that substantially limits one
or more of the major life activities of such individual." Id. § 12102(2)(A).
I agree with the majority that Bartlett's dyslexia constitutes a mental
impairment. For purposes of this opinion, I also agree that working is a
major life activity under the ADA. But cf. Sutton v. United Air Lines, Inc.,
527 U.S. 471, 492 (1999) (noting "that there may be some conceptual
difficulty in defining major life activities to include work, for it seems
to argue in a circle" (internal quotation marks omitted)). However,
I cannot agree with the majority insofar as it holds that Bartlett is substantially
limited with respect to working so long as her dyslexia substantially limits
her ability to pass the bar examination. |
| [88] | To state the majority's holding in this respect is to reveal the fundamental
flaw in its reasoning: Taking the bar examination is not working. The regulations
promulgated by the Equal Employment Opportunity Commission ("EEOC")
with respect to Title I of the ADA state that a person is substantially
limited with respect to working if he or she is "significantly restricted
in the ability to perform . . . a class of jobs." 29 C.F.R. § 1630.2(j)(3)(i)
(1999) (emphasis added). *fn5
Whether or not Bartlett is excluded from practicing as a lawyer by virtue
of her inability to pass the bar examination (a predicament shared by many
non-dyslexic bar candidates)-that is, whether or not Bartlett is eligible
to perform such legal work-the only evidence in the record with respect
to her ability to perform as a lawyer suggests that she is not limited in
that major life activity. See Bartlett v. New York State Bd. of Law Exmr's,
970 F. Supp. 1094, 1101-02 (S.D.N.Y. 1997) ("Bartlett I") (discussing
Bartlett's employment history). Moreover, to reason, as the District Court
did and the majority does, that Bartlett would be entitled to accommodations
on the bar examination if she is unable to "compet[e] on a level playing
field with other bar examination applicants," id. at 1121, assumes
the conclusion of the ultimate inquiry-namely, that Bartlett is disabled
and thus requires accommodations on the bar examination to compete on a
level playing field. |
| [89] | To be sure, Bartlett can (and does) argue that she is substantially limited
with respect to test-taking. *fn6
However, even assuming for the argument that test-taking is a "major
life activity" within the meaning of the ADA, to prove that she is
substantially limited in that respect the applicable regulations require
Bartlett to demonstrate that she is "significantly restricted,"
29 C.F.R. § 1630.2(j)(1)(ii), in her test-taking when compared to "most
people," 28 C.F.R. Pt. 35, App. A, § 35.104, or to "the average
person in the general population," 29 C.F.R. § 1630.2(j)(1). In contrast,
by treating test-taking as working, the majority permits Bartlett to prove
that she is disabled with respect to test-taking merely by showing that
she is substantially limited when compared to "the average person having
comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i)
(emphasis added). In so doing, the majority makes it significantly easier
for Bartlett-and similarly situated candidates for any number of tests like
the bar examination, including the Law School Aptitude Test, the Medical
College Aptitude Test, and the United States Medical Licensing Examination-to
prove that she is disabled under the ADA. |
| [90] | In defining who is entitled to accommodations under the ADA, Congress
struck a delicate balance. As one court explained, "The ADA is not
designed to allow individuals to advance to professional positions through
a back door. Rather, it is aimed at rebuilding the threshold of a profession's
front door so that capable people with unrelated disabilities are not barred
by that threshold alone from entering the front door." Price v. National
Bd. of Med. Exam'rs, 966 F. Supp. 419, 421-22 (S.D. W. Va. 1997) (internal
quotation marks and citation omitted). I believe that, by treating test-taking
as working, the majority today upsets this delicate balance, and that its
decision will permit some "to advance to professional positions through
the proverbial back door." Id. at 422. |
| [91] | II. |
| [92] | In sum, I respectfully dissent from the majority's opinion insofar as
it vacates and remands for further proceedings on whether Bartlett is disabled
with respect to the major life activity of working. I would reverse the
judgment of the District Court on that point and remand for further proceedings
only with respect to whether Bartlett's dyslexia substantially limits her
in the major life activity of reading. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [93] | *fn1 Honorable Eugene H. Nickerson, United States District Judge for the
Eastern District of New York, sitting by designation. |
| [94] | *fn2
An amanuensis is "'one employed to write from dictation or to copy
manuscript.'" United States v. Burd, 86 F.3d 285, 288 (2d Cir. 1996)
(quoting Webster's Seventh New Collegiate Dictionary (1965)). |
| [95] | *fn3
Bartlett also asserts a claim under title III of the ADA. Title III of the
ADA provides in pertinent part: Any person that offers examinations or courses
related to applications, licensing, certification, or credentialing for
secondary or post- secondary education, professional, or trade purposes
shall offer such examinations or courses in a place and manner accessible
to persons with disabilities or offer alternative accessible arrangements
for such individuals. ADA § 309, 42 U.S.C. § 12189. In the context of this
case, title II and title III of the ADA impose largely the same requirements,
so we do not address title III of the ADA separately. Likewise, we do not
separately address the Rehabilitation Act, which "prohibits the same
type of discrimination" as the ADA. Francis v. City of Meriden, 129
F.3d 281, 283 (2d Cir. 1997). |
| [96] | *fn4
The dissent contends that there is no evidence to show that Bartlett is
limited in the "ability to perform" as a lawyer, but is merely
ineligible, having failed to pass the bar examination. See also Gonzales,
2000 WL 1179798, at *9 n.17. Considering the remedial purpose of the ADA,
see Muller, 187 F.3d at 308-09; see also Heilweil, 32 F.3d at 722, we believe
that the dissent takes an unjustifiably narrow reading of the regulation.
"Ability" is not limited, by definition, to aptitude or competence;
Webster's, for example, defines it to include also the "legal power
to perform." See Merriam- Webster's Collegiate Dictionary 2 (10th ed.
1994). By that definition, Bartlett lacks the "ability" to practice
law, unless she passes the bar exam. The EEOC interpretive guidance also
undermines the dissent's interpretation of the regulation. The EEOC explains
that an individual who is allergic to a substance found in high rise office
buildings but not found elsewhere would be substantially limited with respect
to working. See 29 C.F.R. Pt. 1630, App. § 1630.2(j) (1999). However, by
the dissent's interpretation, such an individual would not be disabled,
because he or she would not lack the "ability to perform" as a
secretary, lawyer, banker, or other office employee. |
| [97] | *fn5
For purposes of this opinion, I assume that the EEOC regulations on the
meaning of "substantially limited" with respect to the major life
activity of working are both valid and applicable to cases under Title II
or III of the ADA. But cf. Gonzales v. National Bd. of Med. Exam'rs, -F.3d
-, No. 99-1931, 2000 WL 1179798, at *8-10 (6th Cir. Aug. 22, 2000) (holding
that the EEOC regulations do not apply to cases under Title III of the ADA).
Insofar as the majority decides these issues, I express no views on its
analysis or conclusions. |
| [98] | *fn6
Although Bartlett focuses in this appeal almost exclusively on the major
life activities of reading and working, she argued before the District Court
that her dyslexia also limits her with respect to the major life activity
of test-taking. The District Court concluded, correctly in my view, that
asking whether Bartlett is disabled with respect to test-taking is essentially
the same as asking whether she is disabled with respect to reading. See
Bartlett I, 970 F. Supp. at 1117 ("For purposes of this case, plaintiff's
claimed disability collapses into an inability to read like the average
person on tests like the bar examination, for that is the skill that plaintiff
claims constricts her ability to engage in all the other relevant major
life activities."). |
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