Academic journal article Public Personnel Management

How Much Better Are You? Impairments, Mitigating Measures and the Determination of Disability

Academic journal article Public Personnel Management

How Much Better Are You? Impairments, Mitigating Measures and the Determination of Disability

Article excerpt

The Americans with Disabilities Act (ADA) states that an individual is disabled when that person has a physical or mental impairment that places a significant limitation on one or more major life activities. Within "interpretative guidelines," both the EEOC and Department of Justice had indicated that the evaluation of the effects of an impairment should be made without regard to any mitigating measures the person might be utilizing. In June 1999, the United States Supreme Court (Sutton v. United Air Lines) affirmed a decision by the Tenth Circuit Court of Appeals. The Tenth Circuit (discounting the guidelines of the above-mentioned agencies) had ruled that an impairment must be evaluated with regard to any "mitigating measures" used to lessen its impact on major life activities. This paper examines subsequent court decisions and the effect Sutton has demonstrated.

A hallmark issue in the judicial determination of unlawful discrimination is the McDonnell-Douglas shifting burden framework. This process involves three stages:

1. Establishment of aprimafacie case of discrimination;

2. If a prima facie case is established, the employer must articulate some legitimate, nondiscriminatory reason for the adverse job action;

3. If the employer satisfies its burden, the plaintiff must then, by a preponderance of evidence, show that the proffered reason was a pretext for unlawful discrimination.

Considering only the first stage, the first step here requires that the plaintiff establish membership in a protected group. Normally this is not major issue under either Title VII or the Age Discrimination in Employment Act. However, under the Americans with Disabilities Act (ADA), class membership can be very problematical. A large percentage of court decisions have turned on the success/failure of the plaintiff in showing disability as defined by the ADA.

First it is necessary to consider the definition of disability under the statute: 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. (1)

The regulations issued by the EEOC for implementing the ADA contain a lengthy list of physical and mental impairments that can be considered; consequently, the establishment of an impairment is usually not a difficult hurdle. The specification of major life activities has been somewhat more difficult--the EEOC cites a relatively short list but indicates that the list is only illustrative of activities that may qualify. Certainly the most difficult determination has been whether the impairment places a great enough limitation on the major life activity to be judged as disabling.

The EEOC regulations further stipulate the manner in which the question of substantial limitation will be resolved:

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular 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. (2)

In addition, "interpretive guidelines" go on to indicate that the effect of an impairment should be evaluated in its unmitigated state. That is, how would the impairment limit a major life activity without considering any corrective measure or medication the individual might be utilizing.

Until 1999, there was conflict between the Circuits regarding the consideration of mitigating measures. While the First, Third, Seventh and Ninth Circuits (3) gave deference to the guidelines and the Second and Fifth gave limited deference, the Tenth refused to disregard mitigating measures in determining disability. …

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