Academic journal article Northwestern University Law Review

Sutton Misconstrued: Why the Ada Should Now Permit Employers to Make Their Employees Disabled

Academic journal article Northwestern University Law Review

Sutton Misconstrued: Why the Ada Should Now Permit Employers to Make Their Employees Disabled

Article excerpt

"[I]n criminal law as in tort law, the injurer takes his victim as he finds him."1


Although it is a well-established principle in other fields, the notion that a defendant must accept the status quo of the party it injures is not nearly so straightforward in the context of the employment discrimination provisions of the Americans with Disabilities Act (ADA). This Comment reveals that due to the unique nature of ADA analysis, the law compels employers not simply to face the victims of their discrimination as the employers find them, but often as they make them as well.

A. Sutton v. United Airlines

In July 1999 the Supreme Court decided Sutton v. United Airlines, Inc.,2 resolving a dispute among lower courts, legal commentators, and the Equal Employment Opportunity Commission (EEOC) over whether "mitigating measures"3 should be considered when determining if a plaintiff is disabled under the ADA. The Court held that such measures should be taken into account in the disability analysis.4 In so doing, however, the Supreme Court failed to address an important question which its ruling created: whether the plaintiff has an affirmative "duty to mitigate"5 his or her disability.

Curiously, in the five years since the holding, the fact that this critical question remains open has gone nearly unnoticed both by the judiciary and the academic community. Several courts6 and legal scholars7 have concluded (explicitly or implicitly) that an ADA plaintiff's disability, if it can be mitigated, should always be considered in its corrected condition. Others have embraced a second interpretation, taking the Sutton holding to mean that if a plaintiff fails to take reasonable action to mitigate the disability, then he should nonetheless be treated in accordance with his mitigated state.8 This Comment shows that if the first interpretation or some versions of the second9 continue to take hold in the federal courts, then employers would be free to make their employees disabled and take adverse action against them, and the ADA would provide no remedy.

Fortunately, a careful reading of Sutton reveals that the majority opinion dictates neither of the two prevailing interpretations. A third interpretation exists which the majority of jurists considering the issue have overlooked.10 In contrast to the first two, this interpretation does not impose a duty on plaintiffs to mitigate their disabilities. Rather, plaintiffs may be assessed under this reading without regard to any mitigating measures.

Some commentators, writing soon after Sutton, acknowledged the possibility of different interpretations of the mitigation issue,11 but lacking a body of post-Sutton case law, these scholars were unable to analyze the issue in light of lower court analyses, and the majority of them considered only the first two interpretations.12 In fact, only one recent published work has explicitly identified this third interpretation.13 For reasons explained below, tacit acceptance by the rest of the legal community of a duty to mitigate in Sutton has caused some courts and authors to endorse-albeit only implicitly-a bizarre and counterintuitive notion: that employers may, without violating the ADA, deny an employee the opportunity to mitigate the symptoms of her disability and then deny her reasonable accommodations for her condition or even terminate her for being disabled.14

In this Comment, I demonstrate the fallacy of this position by proving two separate yet related propositions. I first discuss and provide support for the little-known interpretation of Sutton, which I call "no duty to mitigate." I then show that this interpretation is a vehicle through which employers who deny their employees the opportunity to mitigate can be found to violate the ADA.

B. An Example

Ronnie Collins had served for thirteen years in local law enforcement, establishing an exemplary record of service. …

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