Chapter 3

Opening doors to true equality was the vision for the Americans with Disabilities Act when it was signed into law. The ADA's vision, like those for other federal laws, will be realized or clouded by how it is interpreted by the Supreme Court of the United States. Many of the panelists who testified at the Commission s ADA hearing anticipated the issues that the Supreme Court would be addressing few predicted the results. The Supreme Court in a series of decisions has now given its view on some of the cutting issues raised by the ADA. Is the ADA's vision of having all Americans with disabilities pass through once-closed doors into a bright new era of equality, independence and freedom still intact after the Supreme Court has spoken?[2]

When the American Bar Association's (ABA) Mental & Physical Disability Law Reporter published its first survey of Title I employment cases under the ADA, it found that employees prevailed in only 8 percent of the final court decisions for cases brought from 1992 through 1997.[3]

In 1998, the second annual survey found the percentage of employer victories increased from about 92 percent to about 94 percent ;[4] in 1999, employees were even more unsuccessful, prevailing in only 4.3 percent of the cases in which a final decision was rendered, while employers prevailed 95.7 percent of the time. [5] Moreover, an analysis of EEOC's administrative complaints revealed that employers prevailed in 86 percent of the administrative complaints resolved by the EEOC from 1992 through 1997, and over 85 percent in both 1998 and 1999.[6]

The results of the ABA's three surveys show that employees have lost and continue to lose the vast majority of ADA discrimination claims. Most significant is data that show that only 12 percent of the claims filed were resolved on the merits. In fact, in the majority of claims filed, employers prevailed summarily without addressing the merits of the employees claims. [7]

The reasons employers succeed in a significant percentage of disability cases brought under Title I of the ADA, the ABA suggests, is that the procedural and technical requirements contained in the ADA, as interpreted by the courts, create difficult obstacles for plaintiffs to overcome. [8] According to the ABA, the obstacles include:

Employers argue that the number of case dismissals is due, in large part, to the vast number of frivolous claims that are brought under the ADA. These employer advocates assert that courts are dismissing cases in an attempt to preserve the definition of disability originally intended by Congress.[10] Representatives for individuals, on the other hand, assert that the ADA is not achieving its potential. These advocates argue that individuals with impairments lose in court because the evidence of disability they offer is used against them when they try to prove they are able to perform the job. According to advocates for individuals with disabilities, this Catch-22 is depriving individuals of the opportunity to have their disability discrimination allegations decided on the merits.[11]

Several controversies developed as courts attempted to define the class of individuals entitled to ADA's protections. Two issues, mitigating measures and judicial estoppel, created disagreement among the federal Courts of Appeals and were eventually addressed by the Supreme Court. Additionally, the Supreme Court rendered several other decisions interpreting the ADA. This chapter examines these legal developments, the policy arguments made by interested parties, and the future implications of these decisions.

To gain protection under most civil rights statutes, an individual must first show that he or she is within the class of people the law was intended to protect. Under other civil rights laws prohibiting discrimination, proof that one is of a certain race, gender, or age is relatively easy, as these characteristics tend to be readily apparent. For example, under the Age Discrimination in Employment Act (ADEA)[13] one can demonstrate age by merely showing a driver's license or other form of personal identification containing a date of birth.[14]

According to the EEOC Compliance Manual, [u]nlike Title VII and the ADEA, under which the charging party's status as a member of a protected group is seldom in doubt, coverage is frequently a significant issue in ADA cases. In such cases, it is necessary to determine whether the individual has a disability and is qualified. [15] These terms are not defined in the ADA, but the agencies with primary authority for enforcing its provisions have attempted to add workable substance to these concepts.[16] Additionally, in three cases decided after the Commission's ADA hearing, the Supreme Court answered the question of whether the effects of mitigating measures, such as medications and assistive devices, should be considered in determining whether someone has a disability. Despite agency guidance and the Supreme Court decisions, however, courts continue to struggle with the concept of disability under the ADA.

To be protected by the ADA, an individual must show that he or she (1) has an impairment that substantially limits a major life activity ( an actual disability ); (2) has a record of having a substantially limiting impairment ( a record of a disability ); or (3) is regarded as having such an impairment (regarded as having a [disability] ).[17]

Under the actual disability prong, an ADA complainant must show that he or she (1) has an impairment ; (2) the impairment limits a major life activity ; and (3) the limitation caused by the impairment is substantial.[18] Impairments include the following conditions:

Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. [20] One who is substantially limited in a major life activity is either unable to perform the function or [s]ignificantly restricted as to the condition, manner or duration for which the person can perform the activity.[21]

Under the record of prong, an individual must prove there was discrimination because he or she had a history of or was misclassified as having an impairment substantially limiting a major life activity.[22] This prong is intended to ensure that there is no discrimination because a person may have a history of disability. It also is intended to cover a situation in which a person may have been misclassified as having a disability and suffers discrimination because someone acts on this misclassification.[23]

To prove that one is entitled to ADA protection under the regarded as prong, the individual must show that an employer has made an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity. [24] The individual need not actually have a substantially limiting impairment. The act protects individuals from being discriminated against because of the false belief that they have such impairments.[25]

In determining whether a person has a physical or mental impairment that substantially limits one or more major life activities, [26] courts had to address the issue of whether this assessment should take into account any mitigating measures the individual may have used.[27] The term mitigating measures has been used in the ADA context to refer to medicines, or assistive or prosthetic devices. [28]

Because medicines or other measures may greatly alleviate the symptoms of an impairment, considering their impact could lead a court to find that a condition, which without medication would be severely limiting, is not sufficiently serious to warrant ADA protection. An example of a mitigating measure is an employee with diabetes who is able to control the condition by administering insulin injections and taking other precautions.[29] However, without medical assistance, the employee might be wholly unable to function.[30] Thus, the decision whether to evaluate the severity of the employee's condition while the employee is taking medications is critical in the ultimate determination of whether there is an impairment substantially limiting a major life activity.

Although this is crucial to determining whether a person can prove he or she is an individual with a disability, the ADA does not expressly address it. The issue of whether mitigating measures should be taken into account was discussed when Congress was considering the legislation. After the ADA was enacted, the EEOC and the Department of Justice issued guidelines directly addressing this issue.

Three congressional committee reports contain guidance on the issue of mitigating measures. The House Education and Labor Committee report states:

Similarly, the House Judiciary report states that impairments should be assessed without considering whether mitigating measures, such as auxiliary aids or reasonable accommodations, would result in a less-than-substantial limitation. [32] The Senate Labor and Human Resources Committee report contains similar language: whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids. [33] The Senate report also states:

These two sections of the Senate report create some confusion. The Senate report first states that mitigating measures should not be taken into account in determining whether a person has a disability, but later the report appears to state that if a person's impairment is controlled by mitigating measures, he or she is protected under the regarded as language of the law but does not have an actual impairment. [35] While some may believe this confusion is evidence that Congress never clearly answered the question of if, or how, mitigating measures should be treated, others believe this clearly demonstrates Congress intent to cover individuals with controlled conditions under either the actual or the regarded as prongs of the definition of disability.[36]

The ADA delegated authority primarily to three agencies to enforce specific provisions of the act. The EEOC has authority to issue regulations to implement ADA s employment provisions,[37] the Attorney General of the United States has the authority with respect to the public service provisions,[38] and the Secretary of Transportation has the power pertaining to the ADA s transportation provisions.[39] Further, these agencies are mandated to offer technical assistance to help implement the provisions they are responsible for enforcing.[40]

Although the regulations promulgated by the Equal Employment Opportunity Commission address the definition of substantially limits, the regulations do not address the role mitigating measures should play in that determination.[41] The EEOC did address mitigating measures in the interpretive guidance that is an appendix to the regulations.[42] Citing the congressional committee reports, the guidance states that the 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. [43]

The Department of Justice in its interpretive guidance states, The question of whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable modifications, auxiliary aids and services. [44] The Department of Transportation had adopted this same definition.[45]

Eight out of the nine United States Courts of Appeals that considered the issue recognized the legislative intent and agreed with the three enforcement agencies interpretation that the effects of mitigating measures should not be considered.[46] One court of appeals did not.[47] It is against this backdrop that the Supreme Court addressed the issue.

In Sutton, the complainants are twin sisters who have severe myopia worse than 20/200 vision in one eye and worse than 20/400 vision in the other eye.[48] Thus, without eyeglasses or contact lenses, they cannot see to engage in many activities.[49] While wearing eyeglasses, they can function identically to individuals without a similar impairment. [50] The sisters applied to United Airlines for positions as commercial airline pilots.[51] They were told that they did not meet the airline's minimum vision requirement, which was uncorrected visual acuity of 20/100 or better. [52] Because of their failure to meet the requirement, their job interviews were terminated and they were not offered positions as pilots.[53]

Justice O Connor wrote the opinion for the 7 2 majority. Addressing the contention that all the federal agencies charged with enforcing the ADA had taken the position that the effects of mitigating measures should not be considered, the Supreme Court acknowledged that under the ADA the EEOC, the Attorney General, and the Secretary of Transportation were given authority to issue regulations under the act.[54] The Court went on, however, to observe that no agency had been given the explicit authority to issue regulations implementing the generally applicable provisions of the ADA [citations omitted] which fall outside of Titles I V. Most notably, no agency has been delegated authority to interpret the term disability. [55] The Court then held that the agency guidelines at issue here (those discussing mitigating measures) were an impermissible interpretation of the ADA. [56]

The Court refused to decide what deference should be given to the other agency regulations purporting to define disability. Likewise, the Court did not decide what persuasive force the agencies interpretive guidance on what constitutes a disability should be accorded by the courts.[57] As for any legislative intent mandating a different conclusion, the Court merely stated, [B]ecause the ADA cannot be read [to ignore the effects of mitigating measures], we have no reason to consider the ADA's legislative history. [58]

The Court gave several reasons for its conclusion. Preliminarily, the Court found that the language of the statute was clear, and therefore, it was unnecessary to consider the legislative history of the act.[59] The Court then referenced three provisions of the ADA that it found evidenced an intent to consider the effect of conditions in a mitigated state. First, the act requires that a person be presently not potentially or hypothetically substantially limited. [60] The Court arrived at that conclusion because the statutory language, substantially limits, is in the present indicative verb form.[61] Thus, the effect that the condition could or would have without mitigating measures is not relevant.[62] The Court reasoned that the relevant inquiry is the current effect of the condition, even if the person is using mitigating measures.[63]

Second, the Court noted, that under the ADA, whether a person has a disability . . . is an individualized inquiry. [64] However, judging an individual's impairment in its unmitigated state runs directly counter to this mandated individualized inquiry.[65] The Court stated that judging impairments in an unmitigated state would often require courts to speculate about a person's condition . . . and . . . force them to make a disability determination based on general information about how an uncorrected impairment usually affects people in general, rather than on the individual's actual condition. [66] The Court found that such an approach, which would require treating individuals as members of groups, was contrary to both the letter and the spirit of the ADA. [67]

Finally, the Court observed that Congress stated in the statute 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. [68] The Court concluded that the number 43 million was inconsistent with the definition of disability advocated by the employees in the Sutton case that they should be viewed in an unmitigated state.[69] The Court cited a law review article, written by Robert Burgdorf, who was a primary contributor to the original ADA bill introduced to Congress in 1988, which noted the distinction between two definitions of disability the heath conditions versus working conditions approaches.[70] According to the health conditions approach, the term disability includes any condition that impair[s] the health or normal functional abilities of an individual. [71] This definition includes individuals who wear eyeglasses, because they would have a condition that affects their health or normal functional activities. Based on the health conditions definition of disability, in 1986 there were more than 160 million individuals with disabilities.[72] By contrast, the working conditions approach focuses on an individual s ability to work.[73] According to this definition of disability, 22.7 million people are individuals with disabilities.[74] The Court concluded that the 43 million figure was closer to the work disabilities approach than the health conditions approach. [75] The Court stated that 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. [76] By using the 43 million figure, rather than the 160 million figure, the Court reasoned that Congress could not have intended to cover all conditions but only intended to cover those that were not corrected through the use of mitigating measures.

The Supreme Court held 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. [77] The Court explained:

On the same day it handed down Sutton, the Supreme Court, in an opinion written by Justice O Connor for a 7 2 majority, also affirmed the dismissal of another case where the employee failed to show he was entitled to protection under the ADA.[79] Vaughn Murphy was first diagnosed with high blood pressure when he was a child. His blood pressure, when unmedicated, is 250/160 and imposes substantial restrictions on his life.[80] When he is on medication his hypertension does not significantly restrict his activities and . . . in general he can function normally and can engage in activities that other persons normally do. [81] He was hired by United Parcel Service to drive a commercial motor vehicle, which required a Department of Transportation (DOT) certification that he was physically qualified to do so and that he had no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely. [82] At the time he was hired, despite the fact that his blood pressure was so high that he did not qualify for a DOT certification, he was erroneously granted one by the medical examiner. After UPS discovered the error, Murphy was re-evaluated. The examination indicated that his blood pressure was too high for DOT certification and he was fired.[83]

Murphy argued in his ADA lawsuit that his unmedicated condition was an actual impairment substantially limiting a major life activity or was regarded as such a condition.[84] Relying on its analysis in Sutton, the Supreme Court affirmed the lower court's decision that when medicated, [Murphy s] high blood pressure does not substantially limit him in any major life activity. [85] Relying on Sutton, the Court rejected Murphy's argument that he was regarded as being substantially limited in a major life activity. The Court explained that a person is regarded as disabled within the meaning of the ADA if the covered [employer] mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities. [86] The Court continued that Murphy is, at most, regarded as unable to perform only a particular job. This is insufficient as a matter of law, to prove that [Murphy] is regarded as substantially limited in the major life activity of working. [87]

On the same day it decided Sutton and Murphy, the Supreme Court also decided whether Hallie Kirkingburg, whose vision was described by the Court as amblyopia, an uncorrectable condition that leaves him with 20/200 vision in his left eye and monocular vision in effect, was entitled to protection under the ADA.[88] Kirkingburg was erroneously certified by a doctor as meeting DOT's basic vision standards.[89] After returning from a leave of absence his vision was correctly assessed and he was fired because he could not meet DOT's basic vision standards. The DOT had a provision that allowed the vision requirement to be waived in certain circumstances. Kirkingburg received a DOT waiver after he was fired, but his employer, Albertsons, still refused to hire him.[90]

After finding that Kirkingburg's amblyopia was a physical impairment, the Court turned to the question of whether it substantially limited his ability to see.[91] Referring to the EEOC regulations,[92] the Court first reiterated that the law requires the limitation to be substantial or in the words of the EEOC regulations, the impairment must significantly restrict the major life activity, not merely require that the activity be done in a different manner. The Court explained, While the Act addresses substantial limitations on major life activities, not utter inabilities, it concerns itself only with limitations that are in fact substantial. [93]

The Court next addressed Kirkingburg's ability to compensate for and adapt to his vision impairment. Here the Court recognized that Kirkingburg's brain has developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensated for his disability. [94] Again relying on Sutton, Justice Souter explained that the Court saw no principled basis for distinguishing between measures undertaken with artificial aids, like medicine and devices, and measures undertaken, whether consciously or not, with the body's own systems. [95] In other words, Kirkingburg's ability to adapt and compensate for his impairment had to be taken into consideration in determining whether his vision impairment substantially limits his ability to see. The Court emphasized that this had to be done on a case-by-case basis, and that those claiming protection under the ADA must prove a disability by offering evidence that the extent of the limitation in terms of their own experience . . . is substantial. [96] While the DOT standard involved here could be waived, the Supreme Court went on to explain that an employer does not have to justify or defend its reliance on a federal safety standard that contains an experimental waiver provision like the one relied on by Albertsons.[97] The Supreme Court then reversed the lower appeals court decision, which affirmed the trial court decision dismissing Hallie Kirkingburg's discrimination claim.[98]

One who has succeeded in proving that he or she is an individual with a disability must next prove that he or she is qualified for the position and able with or without reasonable accommodation . . . [to] perform the essential functions of [the] . . . position. [99] This determination is not made in a vacuum but in many cases is affected by statements an employee may have made in attempting to secure other disability-related benefits. The interplay between statements made by employees seeking these benefits and the person's rights under the ADA often creates issues of judicial estoppel.[100]

Judicial estoppel arguments usually arise when employees seeking ADA protection have also applied for some type of disability benefit. In applying for Social Security, workers compensation, or other similar benefits, applicants usually must certify that they are totally disabled and unable to engage in any employment.[101] Using the doctrine of judicial estoppel, employers have argued, often successfully, that employees who have made such declarations should be barred from later asserting in ADA litigation that they are able to perform the essential functions of the position.[102]

Cases in which courts have addressed this issue have involved a variety of factual scenarios. For example, in McNemar v. Disney Store, an HIV positive employee was fired because he allegedly removed $2 from a store's cash supply and used the money for personal purposes with no intention of returning it.[103] Shortly before the employee was terminated, the employer questioned the employee about a rumor that the employee had tested positive for HIV.[104]

The employee brought suit under the ADA, alleging that he was fired because of his HIV status in violation of the ADA.[105] After the employee lost his job, he applied for state disability benefits and Social Security Disability Insurance benefits.[106] In the SSDI benefits applications, the employee asserted that he was unable to work. [107]

Relying upon this statement, the trial court ruled that the plaintiff, McNemar, could not prove he was a qualified individual with a disability under the ADA because he had claimed that he was unable to work in his application for SSDI.[108] Faced with similar factual scenarios highlighting the apparent inconsistency between asserting that one is unable to work for Social Security purposes and that one can perform the essential functions of the position under the ADA, other courts have precluded plaintiffs from proceeding with their ADA claims.[109]

Other cases have reached an opposite conclusion and have not automatically precluded employees from attempting to make a claim under the ADA, while at the same time applying for disability benefits. In Griffith v. Wal-Mart Stores, Inc.,[110] an employee began working in a retail store after disclosing in the employment application that he had previously suffered a back injury.[111] Although the employer accommodated his physical restrictions, the employee, Griffith, subsequently re-injured his back.[112] After a leave of absence, the plaintiff returned to work, subject to physical limitations.[113] Shortly thereafter, the employer fired the employee for allegedly failing to report to work and lack of dependability. [114] The employee filed a charge with the EEOC alleging he was fired because of his back injury, which violated the ADA.[115]

After he was fired, the employee applied for Social Security Disability Insurance benefits and stated in the application that he was unable to work because of [his] disabling condition. . . . [116] The Sixth Circuit Court of Appeals recognized the differences behind the ADA and the Social Security Act, and that under the Social Security Act, there is no need to consider the concept of reasonable accommodation.[117] As opposed to how the McNemar court had ruled, the Sixth Circuit ruled that the trial court had erred when it barred Griffith from pursuing his ADA claim based upon the statements he had made in his Social Security disability application.[118]

This issue was the subject of substantial testimony at the Commission's ADA hearing. Employee rights advocates claim that rigidly applying the doctrine of judicial estoppel places an aggrieved person unemployed with a disability in what the courts have called the untenable choice of having to choose between the relatively immediate disability benefits that are needed for financial subsistence . . . or to wait and gamble on an ADA lawsuit, [119] and, as a practical matter, the ADA is going to go unenforced. [120] Employer representatives, on the other hand, claim that the employee should not be permitted to make statements under oath in one forum and have them ignored in another.[121] For employers, in the ADA context, these [s]worn statements in other forums represent one of the few ways to evaluate the truthfulness of that claim and separate the legitimate claims from the illegitimate claims. [122]

To place this controversy in context, the differences between being disabled for the purpose of Social Security coverage and being a qualified individual with a disability under the ADA must be examined. Under Social Security laws,[123] an individual is considered disabled if he cannot engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. [124] To satisfy the eligibility requirement, an individual must have a physical or mental impairment or impairments . . . of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . . [125]

The Social Security application process proceeds in five steps.[126] In the first step, the Social Security Administration (SSA) determines whether the applicant is currently engaged in any substantial gainful activity. [127] If not, the inquiry continues to the next step, which is a determination of whether the applicant's condition (or combination of conditions) is severe ; i.e., significantly limits the individual's physical or mental ability to do basic work activities. If the condition(s) is not severe, the application is denied. If it is considered severe, the SSA proceeds to the third step, at which it determines whether the condition (or combination of conditions) is included in the SSA's Listing of Impairments or is equivalent in severity to one of SSA's listings.[128] If the condition(s) is included, the SSA concludes that the applicant is disabled.[129] If the condition(s) does not meet or equal the severity of a listing, the inquiry proceeds to the fourth step. Here the SSA determines whether the condition prevents the applicant from performing his or her past relevant work. [130]

If the applicant is able to perform his or her past relevant work, the claim is denied.[131] If not, the inquiry proceeds to the fifth and final step, in which the SSA decides whether, considering the applicant's remaining functional capacity, age, education, and work experience, the applicant can perform other work that exists in the national economy ; i.e., exists in significant numbers either in the region where the individual lives or in several regions of the country.[132] The Social Security Act specifies that this inquiry is without regard to whether such work exists in the immediate area in which the applicant lives, whether a specific job vacancy exists for the applicant, or whether the applicant would be hired if he or she applied for work.[133] If the individual cannot perform other work, SSA concludes that he or she is disabled.[134] If the individual can, the application is denied.[135]

On February 12, 1997, the EEOC issued an Enforcement Guidance setting forth the agency's position that representations made in connection with an application for disability benefits should not be an automatic bar to an ADA claim. [136] The EEOC set forth two main distinctions between the ADA and Social Security laws. First, the ADA always requires an individualized evaluation of the individual's condition and the employment position at issue. On the other hand, Social Security laws rely on generalized inquiries.[137] Second, the ADA's definition of disability requires courts to consider the possibility of a reasonable accommodation.[138] By contrast, Social Security laws do not weigh the impact a reasonable accommodation could have on an individual's employability. Based on these distinctions between the statutory schemes, the EEOC asserts that representations made on Social Security applications should not automatically bar a plaintiff from seeking relief under the ADA.[139] Rather, the representations should be given some evidentiary value, depending on the timing of the statements and the context in which they were made.[140] The EEOC concludes with two policy arguments in support of its position. First, it asserts that allowing complainants to pursue their claims is important in order to achieve the ADA's goals. Second, the EEOC argues that individuals should not be forced to choose between Social Security benefits and ADA protections.[141]

In a rare unanimous decision, the Supreme Court resolved the debate when it held that pursuit, and receipt, of [Social Security Disability Insurance] benefits does not automatically estop the recipient from pursuing an ADA claim. [142] Carolyn Cleveland had a stroke while employed by Policy Management Systems.[143] She initially applied for SSDI benefits. But when her condition improved she returned to work, and her application for disability benefits was denied on that basis.[144] She was fired and requested the Social Security Administration to reconsider her application for benefits, asserting that [she] was unable to work due to [her] disability. [145] Upon her firing, she had also filed a claim under the ADA arguing that her employer had failed to reasonably accommodate her disability. The lower court dismissed her ADA claim based on the fact that in the SSDI proceeding she had alleged she was totally disabled. Now in her ADA petition she claimed she could perform the essential functions of her job. The lower court believed these two claims conflicted with each other.[146]

The Supreme Court rejected the employer's arguments and vacated the lower court s dismissal of her claim giving Ms. Cleveland her day in court.[147] The Court did caution that employees cannot simply ignore statements they made in pursuit of SSDI benefits but must be able to explain why any SSDI contention is consistent with [their] ADA claim, that they can perform the essential job functions with or without reasonable accommodations.[148]

Within days of the conclusion of the Commission's ADA hearing,[149] the Supreme Court also analyzed the issue of whether a general arbitration clause in a union agreement required a union member to utilize the collective bargaining agreement's arbitration procedures even though the union member was alleging a violation of the ADA.[150] Ceasar Wright, a longshoreman and a member of the AFL-CIO, returned to work following settlement of a work-related injury claim for permanent disability.[151] After he returned, Mr. Wright was referred by the union hiring hall to several jobs, none of which complained about his performance.[152] When one of the companies learned that he had previously settled a claim for permanent disability, the company refused to accept him for further employment.[153]

Mr. Wright ultimately filed suit in the United States District Court for the District of South Carolina alleging violations of the ADA. The trial court dismissed his claim because he had not used the grievance procedure provided for by the collective bargaining agreement. The appeals court affirmed this decision, finding that the general arbitration provision in the collective bargaining agreement was broad enough to encompass claims arising under the ADA.[154]

The Supreme Court disagreed, vacated the order dismissing Mr. Wright's claim, and sent the matter back to the trial court for further proceedings. In doing so, the Court held that the collective-bargaining agreement in this case does not contain a clear and unmistakable waiver of the covered employees rights to a judicial forum for federal claims of employment discrimination. [155]

In reaching this decision the Court recognized that there is tension between the line of cases holding that there can be no prospective waiver of an employee s federal right to work in an environment free of discrimination under Title VII of the Civil Rights Act of 1964,[156] and a second line of cases which have held that some federal claims of discrimination can be subject to compulsory arbitration.[157] The Court in Wright avoided resolving this tension, finding the collective bargaining agreement did not contain a waiver of the employees right to pursue their ADA claims.[158]

The Supreme Court did not limit its ADA decisions to those involving employment. At the Commission's ADA hearing there was substantial testimony regarding the ADA s requirement that government services be provided in the most integrated setting appropriate to the needs of the individual with a disability, and whether this requirement mandates placing individuals with disabilities in community rather than institutional settings.[159] The Supreme Court addressed this issue directly in Olmstead v. L.C. [160]

In Olmstead, the state of Georgia's own health care professionals determined that two women who are mentally retarded and were confined to a state hospital by the state would be appropriately treated in a community setting, a determination neither woman opposed. Despite these recommendations, the women remained institutionalized.[161] One woman filed suit under Title II of the ADA, arguing that the most integrated setting requirement of the ADA mandated her placement in a community setting as opposed to an institution.[162] The Court answered with a qualified yes. [163] The Court explained:

The Court's decision was an attempt to balance competing interests. The Court explicitly held that [u]njustified isolation . . . is properly regarded as discrimination . . . in this instance the institutionalization of individuals with mental disabilities.[165] The Court went on to recognize that states need to maintain a full range of options available for the treatment of individuals with mental disabilities. In light of this obligation, the Court pointed out that in determining whether community placement was required the states must consider not only the cost of providing community-based care to the [persons requesting or desiring community placement], but also the range of services the State provides others with mental disabilities, and the State's obligation to mete out those services equitably. [166]

One issue that the United States Supreme Court had before it last term but which it did not reach was whether the provisions of the ADA that permit an individual to sue a state entity are constitutional.[167] The Court on October 11, 2000, heard oral arguments on this issue and a decision is expected in the spring.[168] The precise ADA issue the Court is considering is [w]hether the Eleventh Amendment to the United States Constitution bars suits by private citizens against non-consenting states. [169]

The Court's agreement to consider this issue comes on the heels of another decision, Kimel v. Florida Board of Regents,[170] where the Court found that similar provisions in the Age Discrimination in Employment Act did not override the state's 11th Amendment immunity.[171] Already the lower courts are split on this issue. Following Kimel, several courts have already held that Congress exceeded its authority by allowing private individuals under the ADA to sue state entities in federal court.[172] Others have observed that there are significant differences between the legislative underpinnings of the ADA and the Age Discrimination in Employment Act, and have used that difference to uphold private citizens right to sue states in the federal courts for violations of the ADA.[173]

The Supreme Court answered directly several of the issues debated at the Commission s ADA hearing.[174] These answers may have raised as many questions as they resolved. One major concern that was expressed by employer representatives was that because of the vagueness of the terms of the ADA there was going to continue to be very expensive, long, drawn-out litigation. [175] [T]he experience of many employers . . . is as the recipient of a charge of discrimination or worse yet, of an ADA lawsuit. The ADA is a statute over which everything is litigated. [176] The employer representatives maintain that the answers to these questions come through litigation to great expense by employers. [177] The Supreme Court decisions may have ensured that the answers to these ADA questions will continue to come at great expense through litigation, absent congressional action.

The Supreme Court's decisions in Murphy, Sutton, and Albertsons, while answering the precise question of whether mitigating measures should be considered in determining whether an impairment substantially limits a major life activity, will probably increase rather than decrease litigation on these issues. The Court has changed the target of the litigation. The Court in Sutton explained that the effects of any mitigating measure both positive and negative must be taken into account. . . . [178] The litigation pre-Sutton focused on limitations caused by the impairment. Now the focus will be on limitations caused by mitigating measures.[179] For example, if an impairment is treated by medication, the limitation caused by that medication must be considered. Indeed, in Sutton the Court acknowledged that the negative side effects resulting from the use of mitigating measures might be severe.[180] In cases where the impairment in its mitigated state may not be a substantial limitation on a major life activity, the effects of the mitigating measures will still have to be examined. Employees who seek to prove they are entitled to ADA protection now must provide substantial evidence demonstrating the effect of the mitigating measure; meanwhile, employers will counter with expert testimony, attempting to show that these effects are hypothetical and not substantial.

Following these Supreme Court cases, the EEOC issued guidance to its field offices to assist the EEOC investigators in determining whether a person has a disability under the ADA and whether the person is qualified. [181] The EEOC's guidance is extremely detailed and demonstrates just how fact intensive these threshold determinations have become.[182] On May 12, 2000, the EEOC also issued a new Compliance Manual section on threshold issues, which contains additional guidance on how to make the threshold determination of whether a person is an individual with a disability under the ADA.[183]

In addition to continuing costly litigation, others argue that the Supreme Court decisions in Sutton, Murphy, and Albertsons will drastically reduce the scope of ADA s protection. [184] It is argued that these decisions ignore the intent of Congress, and have hard ramifications for individuals with treatable disabilities because they will still be subject to discrimination but will not have the protection of the ADA. [185] These decisions fueled the widespread perception that the Supreme Court rendered the ADA powerless in the workplace. [186] This does not appear to be a hypothetical concern. The lower courts, relying on Sutton, have as a rule curtailed the applicability of the ADA where the employee has used mitigating measures.[187] Many of these cases involve impairments that pre-Sutton were believed to be exactly the types of conditions that Congress intended the ADA to cover,[188] including conditions like epilepsy,[189] cancer,[190] and multiple sclerosis.[191]

In the ADA cases reviewed by the Supreme Court the parties did not question the validity or deference due the regulations and guidelines defining disability that have been promulgated by the EEOC and the Department of Justice (DOJ).[192] Despite this fact, the Court pointed out that it was not ruling on either the validity of, or deference, due these regulations.[193] In Sutton, the Court explained:

As to the Interpretive Guidance that has been issued by the EEOC and the DOJ, the Court also concluded there was no need to determine what deference, if any, this guidance should be given by the courts.[195]

Because the Supreme Court raised this issue, employers will challenge the regulations and interpretative guidance that have been issued by the EEOC and the DOJ. While the regulations and guidance represent a reasoned and logical effort by the DOJ and the EEOC to help guide entities through the issues surrounding ADA enforcement, their validity will be continually suspect and attacked by businesses until the Supreme Court or Congress addresses the matter.

In Cleveland, the Court recognized that both the ADA and the Social Security Act seek to help individuals but do it in different ways.[196] The Court likewise recognized the different purposes of the two laws.[197] While the Court acknowledged there was a difference between these two laws, the Court also recognized that statements made by an applicant for SSDI benefits were relevant in determining whether the individual could also pursue an ADA claim. The Court held that pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. [198]

The Court went on to point out that an ADA Plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. [199] Rather, the ADA plaintiff must be able to provide an explanation of the SSDI statement sufficient for a juror to conclude that the person could have done the essential job functions at issue in the ADA action with or without reasonable accommodation.[200] Employers will most likely require this explanation in every case. In many of the cases since Cleveland, the employees have been unable to offer this required explanation.[201]

Even before the Cleveland decision, employers were attempting to lock employees into statements made on disability benefits forms, in an attempt to ensure estoppel on ADA claims.[202] For example, some employers were considering having disability benefits forms that use the exact language of the ADA.[203] These efforts will probably result in more ADA claims being dismissed as some courts have rigidly applied judicial estoppel when the disability benefits application language has tracked the ADA.[204]

In ADA litigation, costs associated with explaining the meaning of statements made on disability applications will continue to be incurred by both parties. The focus of the parties also will be diverted from the issue of whether the employee can perform the essential functions of the job in question with or without reasonable accommodation.

Since the Commission's ADA hearing, the Supreme Court had an opportunity to amplify the ADA's vision of a bright new era of equality for every man, woman and child. [205] The Court gave no bright line rules resolving the issues before it or ensuring the ADA's vision. Given these Supreme Court decisions and absent congressional action, the result of these decisions may continue to be [t]oo much money going to [ ] attorneys rather than towards addressing pressing concerns . . . of those who face serious challenges because of their disabilities. [206]

[1] President George Bush s Statement on Signing the Americans with Disabilities Act of 1990, Public Papers of the Presidents of the United States, George Bush (1990), book 2, p. 1079, reprinted in 1990 U.S.C.C.A.N., pp. 601 02.

[2] This chapter does not review all Supreme Court cases analyzing the ADA but only addresses those decisions handed down after the Commission's ADA hearing, which was held Nov. 12 13, 1998.

[3] American Bar Association, Trend: Employment Decisions Under ADA Title I Survey Update, Mental & Physical Disability Law Reporter, vol. 23, no. 3 (May/June 1999), p. 294. The results of the ABA survey were consistent with EEOC's data, which showed that employees were successful in only about 14 percent of the administrative complaints the EEOC handled. Ibid.

[4] John Parry, American Bar Association Survey on Court Rulings Under Title I of the Americans with Disabilities Act, Daily Labor Report (BNA), June 22, 1998, p. D-25. Mr. Parry is the director of the ABA Commission on Mental and Physical Disability Law and editor-in-chief of the Mental & Physical Disability Law Reporter.

[5] Parry, Trend: 1999 Employment Decisions Under the ADA Title I Survey Update, p. 348.

[6] Ibid., p. 350.

[7] Ibid., pp. 349 50.

[8] Ibid., pp. 348 50.

[9] Ibid., p. 350.

[10] Ann E. Reesman, testimony before the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov. 12 13, 1998, transcript, p. 178 (hereafter cited as Hearing Transcript). Ms. Reesman is general counsel of the Equal Employment Advisory Council, a nonprofit association whose stated purpose is to promote sound approaches to eliminating employment discrimination. Its members include over 300 of the nation's largest private sector employers. Ibid., pp. 156, 161. In an interview with Commission staff, Lisa Hogan, an attorney who represents employers, said many complaints are frivolous and courts are defining disability appropriately. Telephone interview, Oct. 13, 1998. Ms. Hogan is a shareholder of the law firm Brownstein, Hyatt, Farber & Strickland, where she most often represents employers in discrimination cases. Lisa Hogan Testimony, Hearing Transcript, pp. 216, 224. Another employer representative opined that courts are not undermining congressional intent. Dana S. Connell, telephone interview, Oct. 6, 1998. Mr. Connell is a partner in the law firm of Littler, Mendelson. Dana Connell Testimony, Hearing Transcript, p. 215.

[11] James G. Frierson, Hearing Transcript, pp. 227 29, 262 63. James G. Frierson is a professor at East Tennessee State University in the College of Business. Ibid., p. 216. See also Robert Burgdorf Jr., Hearing Transcript, pp. 51 54. Robert Burgdorf Jr. is a professor of law at the University of the District of Columbia, David A. Clarke School of Law. Burgdorf Testimony, Hearing Transcript, p. 26.

[12] Adam C. Wit, Should Mitigating Measures Be Considered in the Disability Analysis under the ADA? Employee Relations Law Journal, vol. 24, no. 1 (Summer 1998), p. 74 (hereafter cited as Wit, Should Mitigating Measures Be Considered ).

[13] 29 U.S.C. 621 634 (1994).

[14] Frierson Testimony, Hearing Transcript, pp. 228 29.

[15] Equal Employment Opportunity Commission, Compliance Manual, Threshold Issues, <http://www.eeoc.gov/docs/threshold.html> (June 6, 2000), p. 12.

[16] The EEOC has promulgated regulations further defining the requirements of the ADA (see 29 C.F.R. Part 1630 (1999)) and has issued Interpretive Guidance, which is attached as an appendix to the formal regulations. The Justice Department has promulgated regulations attempting to clarify the parts of the ADA it is responsible for enforcing (see 28 C.F.R. Part 35 (1999)) and has also provided assistance in the form of Interpretive Guidance as an appendix to the regulations.

[17] See 42 U.S.C. 12102 (1994); Sutton, 119 S. Ct. at 2144.

[18] Bragdon v. Abbott, 118 S. Ct. 2196, 2202 (1998).

[19] 29 C.F.R. 1630.2(h) (1999).

[20] 29 C.F.R. 1630.2(i).

[21] 29 C.F.R. 1630.2(j).

[22] 29 C.F.R. 1630.2(k).

[23] 29 C.F.R. Part 1630, app. p. 351 (1999).

[24] Sutton, 119 S. Ct. at 2150.

[25] Id. See also 29 C.F.R. 1630.2(l) (1999).

[26] 42 U.S.C. 12102(2)(A).

[27] See Wit, Should Mitigating Measures Be Considered, p. 74.

[28] 29 C.F.R. Part 1630, app. (1999), pp. 345, 349 50.

[29] See Arnold v. United Parcel Servs., Inc., 136 F.3d 854, 856 (1st Cir. 1998).

[30] Id.

[31] H.R. Rep. No. 101-485, pt. II, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334.

[32] H.R. Rep. No. 101-485, pt. III, at 28 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 451.

[33] S. Rep. No. 101-116, at 23 (1989).

[34] S. Rep. No. 101-116, at 24 (1989).

[35] Perry Meadows, M.D., and Richard Bales, Using Mitigating Measures to Determine Disability Under the Americans With Disabilities Act, South Dakota Law Review, vol. 45 (2000), pp. 33, 40.

[36] Sutton, 119 S. Ct. at 2154 55 (1999) (Stevens, J., dissenting).

[37] 42 U.S.C. 12116.

[38] 42 U.S.C. 12134.

[39] 42 U.S.C. 12164.

[40] 42 U.S.C. 12206(c)(1).

[41] 29 C.F.R. 1630.2(j) (1999).

[42] 29 C.F.R. Part 1630, app., pp. 349 50.

[43] Ibid., p. 350. On June 8, 2000, the EEOC issued a final rule that rescinded those parts of the Interpretive Guidance ( 1630.2(h), (j)), which had stated mitigating measures should not be considered in determining whether an individual has a disability. Interpretive Guidance on Title I of the Americans with Disabilities Act, 65 Fed. Reg. 36327 (2000) (to be codified at 29 C.F.R. Part 1630, Appendix).

[44] 28 C.F.R. Part 35, app. A 35.104 (1999).

[45] 49 C.F.R. Part 37.3 (1998). This provision was changed after the Supreme Court decisions on the definition of disability. Compare 49 C.F.R. Part 37.3 (1999).

[46] Arnold v. United Parcel Servs., Inc., 136 F.3d 854 (1st Cir. 1998); Bartlett v. New York State Bd. of Law Exam rs, 156 F.3d 321 (2d Cir. 1998); Matczak v. Frankfork Candy & Chocolate Co., 136 F.3d 933 (3d Cir. 1997); Washington v. HCA Health Servs. of Texas, 152 F.3d 464 (5th Cir. 1998); Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (8th Cir. 1998); Doane v. Omaha, 115 F.3d 624 (8th Cir. 1997); Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996); and Harris v. H&W Contracting Co., 102 F.3d 516 (11th Cir. 1996).

[47] Sutton v. United Airlines, Inc., 130 F.3d 893 (10th Cir. 1997).

[48] Sutton, 119 S. Ct. at 2143.

[49] Id.

[50] Id. (citation omitted).

[51] Id.

[52] Id.

[53] Id.

[54] Id. at 2144 45.

[55] Id.

[56] Id. at 2146.

[57] Id. at 2145 46.

[58] Id.

[59] Id.

[60] Id. (emphasis added).

[61] Id.

[62] Id.

[63] Id. at 2147 (emphasis added).

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Id. (quoting 42 U.S.C. 12101(a)(1)).

[69] Id.

[70] Id.

[71] Id. at 2148.

[72] Id.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Id. at 2143.

[78] Id. at 2146.

[79] Murphy v. United Parcel Servs., Inc., 119 S. Ct. 2133 (1999).

[80] Id. at 2136. See also Justice Stevens dissent at 2139.

[81] Id. at 2136.

[82] Id.

[83] Id.

[84] Id. at 2137.

[85] Id.

[86] Id.

[87] Id. at 2139 (citation omitted).

[88] Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162, 2165 66 (1999).

[89] Id. at 2165 66.

[90] Id. at 2166.

[91] Id. at 2167 68.

[92] Id. at 2168. The Court emphasized it was referring to the EEOC regulations because no party had questioned their validity. The Court explained that it was doing so without deciding that such regulations are valid or deciding what level of deference, if any, they are due. Id. at 2167, n. 10 (citation omitted). The Court made similar observations in Sutton, 119 S. Ct. at 2145 46; and Murphy, 119 S. Ct. at 2138.

[93] Albertsons, 119 S. Ct. at 2168.

[94] Id. (citation omitted).

[95] Id. at 2169.

[96] Id.

[97] Id. at 2170 72.

[98] Kirkingburg, 119 S. Ct. at 2165 67, 2174.

[99] 29 C.F.R. 1630.2(m) (1999). The EEOC regulations clarify that [t]he term essential functions does not include the marginal functions of the position. 29 C.F.R. 1630.2(n) (1999).

[100] The term judicial estoppel has been described as follows: a party is bound by his judicial declarations and may not contradict them in a subsequent proceeding involving [the] same issues and parties. . . . [A] party who by his pleadings, statements or contentions, under oath, has assumed a particular position in a judicial proceeding [may not] . . . assume an inconsistent position in a subsequent action. Black's Law Dictionary 848 (6th ed. 1990). This concept and the concepts of res judicata, collateral estoppel, and the Rooker-Feldman doctrine have a close affinity to one another and for the purposes of this discussion will be discussed collectively under judicial estoppel. Sheehan v. City of Glouchester, 207 F.3d 35, n. 5 (1st Cir. 2000) (citation omitted).

[101] See 42 U.S.C. 423(d)(2)(A) (1994) (stating that an applicant for Social Security disability benefits must show that he is not only unable to do his previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy. . . . ).

[102] See, e.g., McNemar v. Disney Store, Inc., 91 F.3d 610, 619 (3d Cir. 1996), cert. denied, 519 U.S. 1115 (1997) (upholding trial court's conclusion that McNemar failed to prove the requisite elements of an ADA claim because he was judicially estopped from arguing that he could perform the essential functions of the position).

[103] Id. at 614.

[104] Id. at 613.

[105] Id. at 616.

[106] Id. at 615 16.

[107] Id. (quoting the employee s Social Security Disability Insurance application).

[108] Id. at 617 19.

[109] Id. at 619.

[110] 135 F.3d 376 (6th Cir. 1998).

[111] Id. at 378.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Id.

[117] Id. at 380 83.

[118] Id. at 384.

[119] Maureen C. Weston Testimony, Hearing Transcript, p. 221. Maureen C. Weston is an associate professor of law at the University of Oklahoma, where she teaches courses in disability law. Ibid., pp. 215, 220.

[120] Weston Testimony, Hearing Transcript, p. 235.

[121] Dana S. Connell Testimony, Hearing Transcript, p. 219.

[122] Ibid.

[123] Claims have been barred based on applications for workers compensation benefits under state laws, private employer disability applications, and applications for other forms of assistance. Social Security is the focus here because it is applied uniformly throughout the United States.

[124] 42 U.S.C. 423(d)(1)(A), 1382c(a)(3)(A) (1994 & Supp. II 1996).

[125] 42 U.S.C. 423(d)(2)(A), 1382c(a)(3)(B) (1994 & Supp. II 1996).

[126] 20 C.F.R. 44.152, 416.920 (1999).

[127] Griffith, 135 F.3d at 393 (quoting 20 C.F.R. 404.1520(b) (1999)).

[128] Id.

[129] Id.

[130] Id. (quoting 20 C.F.R. 404.1520(e) (1999)).

[131] Id.

[132] Id. (quoting 20 C.F.R. 404.1560(c) (1999)).

[133] See 42 U.S.C. 423(d)(2), 1382c(3)(B) (1998 Supp.).

[134] Griffith, 135 F.3d at 395.

[135] Id.

[136] Equal Employment Opportunity Commission, EEOC Enforcement Guidance on Disability Representations, Daily Labor Report (BNA), Feb. 14, 1997, p. E-1 (hereafter cited as EEOC Enforcement Guidance on Disability Representations). This is also available at Equal Employment Opportunity Commission, EEOC Enforcement Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person Is a Qualified Individual with a Disability Under the Americans with Disabilities Act of 1990, Feb. 12, 1997, <http://www.eeoc. gov/docs/qidreps.txt.com> (June 22, 2000). The EEOC's recently issued Threshold Issues contains an entire section on this issue titled Preclusion Based on a Prior State of Federal Court Decision. This provides EEOC investigators detailed instructions on how to attempt to deal with preclusion issues when they are raised in an investigation. EEOC Compliance Manual, Threshold Issues, <http://eeoc.gov/ docs/threshold.html> (June 6, 2000).

[137] EEOC Enforcement Guidance on Disability Representations I.C.1.

[138] 42 U.S.C. 12111(8) (1994).

[139] EEOC Enforcement Guidance on Disability Representations II.A.

[140] Ibid.

[141] Ibid.

[142] Cleveland v. Policy Mgmt. Sys., Corp., 119 S. Ct. 1597, 1600 (1999).

[143] Id.

[144] Id.

[145] Id.

[146] Id.

[147] Id. at 1604.

[148] Id. at 1600.

[149] While this issue was not the subject of testimony at the Commission's ADA hearing, to ensure a complete discussion of all Supreme Court decisions rendered after the hearing, it is briefly discussed.

[150] Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391 (1998).

[151] Wright, 119 S. Ct. at 393.

[152] Id.

[153] Id.

[154] Id. at 394.

[155] Id. at 397.

[156] Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).

[157] Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

[158] Wright, 119 S. Ct. at 395 97.

[159] Ira Burnim, A. Kathryn Powers, Joseph Rogers, and Dr. E. Fuller Torrey Testimony, Hearing Transcript, pp. 116 94. Mr. Burnim is the legal director of the Judge David Bazelon Center for Mental Health. Ms. Power is director of the Rhode Island Department of Mental Health, Retardation, and Hospitals. Joseph Rogers is executive director of the Mental Health Association of Southeastern Pennsylvania. Dr. Torrey is president of the Board of Treatment and executive director of the Stanley Foundation for Research on Schizophrenia and Bi-Polar Disorders. Ibid., pp. 116 17.

[160] Olmstead v. L.C., 119 S. Ct. 2176 (1999). This case and its practical effect will be discussed in greater detail in chapter 5 Psychiatric Disabilities and the ADA.

[161] Olmstead, 119 S. Ct. at 2183.

[162] Id. at 2183 84.

[163] Id. at 2181.

[164] Id. at 2190.

[165] Id. at 2185.

[166] Id.

[167] The Court had agreed to review this issue in Florida Dept of Corrections v. Dickson, 120 S. Ct. 976 (2000) and Alsbrook v. Arkansas, 120 S. Ct. 1003 (2000), which raised 11th Amendment immunity under both Titles I and II of the ADA. The Court dismissed those petitions after the parties settled. Dickson, 120 S. Ct. at 1236; Alsbrook, 120 S. Ct. 1265 (2000).

[168] Garrett v. Univ. of Alabama, 193 F.3d 1214 (11th Cir. 1999), cert. granted, 120 S. Ct. 1669 (2000) No. 99-1240 (Oct. 11, 2000).

[169] Id.

[170] 120 S. Ct. 631 (2000).

[171] Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000).

[172] Stevens v. Illinois Dept of Transportation, No. 98-3550, 2000 U.S. App. LEXIS 6496 (7th Cir. Apr. 11, 2000); Erickson v. Northeastern Illinois Univ., 207 F.3d 945 (7th Cir. 2000). In Erickson, the court emphasized that the 11th Amendment only bars private litigation against states in federal courts and that [t]he ADA is valid legislation, which both private and public actors must follow. Id. The court wanted to make it clear that the federal government could still enforce the ADA against state entities and that private individuals could still bring their ADA claims against consenting state courts. See also Neinast v. Texas Dept of Transportation, No. 99-50811, 2000 U.S. App. LEXIS 14577 (5th Cir. June 26, 2000).

[173] Kilcullen v. New York State Dept of Labor, 205 F.3d 77 (2d Cir. 2000). See also Becker v. Oregon Dept of Corrections, No. 99-35296, 2000 U.S. App. LEXIS 12847 (9th Cir. June 8, 2000).

[174] For example one entire panel was devoted to Judicial Trends in Defining Qualified Individuals With a Disability: Mitigating Measures and Judicial Estoppel. Dana Connell, Maureen Weston, Lisa Hogan, and James Frierson Testimony, Hearing Transcript, pp. 214 67. See discussion on Sutton, Murphy, and Albertsons earlier in this chapter.

[175] Roger Clegg Testimony, Hearing Transcript, p. 90. Mr. Clegg is the vice president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization. Ibid., p. 26.

[176] Christopher G. Bell Testimony, Hearing Transcript, p. 159. Mr. Bell is a managing partner in the law firm of Jackson, Lewis, Schnitzler & Krupman. Ibid., pp. 155 56.

[177] Bell Testimony, Hearing Transcript, p. 160. See also Ann E. Reesman Testimony, Hearing Transcript, pp. 178 79.

[178] Sutton, 119 S. Ct. at 2146 (emphasis added).

[179] Perry Meadows, M.D., and Richard Bales, Using Mitigating Measures to Determine Disability Under the Americans with Disabilities Act, South Dakota Law Review, vol. 45 (2000), p. 33; Lauren J. McGarity, Disabling Corrections and Correctable Disabilities: Why Side Effects Might be the Saving Grace of Sutton, Yale Law Journal, vol. 109 (2000), p. 1161.

[180] Sutton, 119 S. Ct. at 2147.

[181] Equal Employment Opportunity Commission, Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing Disability and Qualified, <http://www.eeoc.gov/docs/field-ada.html> (Apr. 26, 2000).

[182] Ibid.

[183] Equal Employment Opportunity Commission, Compliance Manual, Threshold Issues, <http://eeoc.gov/docs/threshold.html> (June 6, 2000), pp. 12 13.

[184] Barbara M. Smith-Duer, Too Disabled or Not Disabled Enough: Between a Rock and a Hard Place After Murphy v. United Parcel Service, Inc., Washburn Law Journal, vol. 39 (2000), p. 255.

[185] Ibid.

[186] McGarity, Disabling Corrections and Correctable Disabilities, p. 1162 (citation omitted).

[187] Ibid., p. 1173, n. 74 for a compilation of recent cases rejecting claims of individuals using corrective measures.

[188] H.R. Rep. No. 101-485, pt. II, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334. S. Rep. No. 101-116, at 24.

[189] Arnold v. City of Appleton, 97 F. Supp. 2d 937, 947 (S.D. Wis. 2000) (finding There is no dispute that the plaintiff has epilepsy. . . . The plaintiff has not shown that he is disabled as contemplated by the ADA ). See also id. Todd v. Academy Corp., 57 F. Supp 2d 448, 452 54 (S.D. Tex. 1999) (finding that the employee's epilepsy was an impairment for ADA purposes but as medicated did not substantially limit a major activity).

[190] EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999). In Gallagher, while finding that the employees condition if left untreated, would affect the full panorama of life activities, and indeed would likely result in an untimely death, the court held that the predicted effects of the impairment in its untreated state could not be considered an actual disability under the Supreme Court's recent decisions. Id. at 653. The court did find that the jury should determine whether the employee was regarded as disabled under the ADA. Id. at 657.

[191] Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1086 89 (10th Cir. 1999) (holding that an employee with multiple sclerosis was not an individual with a disability under any prong of the ADA's definition of disability).

[192] Sutton at 2145; Albertsons at 2167, n. 10.

[193] Sutton at 2145; Murphy at 2138; Albertsons at 2167, n. 10; Olmstead at 2183.

[194] Sutton, 119 S. Ct. at 2145 (citation omitted).

[195] Id. at 2146.

[196] Cleveland, 119 S. Ct. at 1601.

[197] Id.

[198] Id. at 1600.

[199] Id.

[200] Id. at 1604.

[201] See Mitchell v. Washingtonville Central Sch. Dist., 190 F.3d 1 (2d Cir. 1999) (holding that an employee alleging on a Social Security application that he is unable to stand cannot proceed with an ADA claim because he cannot do the essential functions of the job); Motley v. New Jersey State Police, 196 F.3d 160 (3d Cir. 1999) (holding that an employee's claims for disability insurance could not be reconciled with his claims under the ADA); Feldman v. American Memorial Life Ins. Co., 196 F.3d 783 (7th Cir. 1999) (holding that an employee's claims for Social Security disability precluded her from claiming she could do the essential job functions); and Lloyd v. Hardin County, 207 F.3d 1080 (8th Cir. 2000) (holding that an employee could not explain away the representations made on an application for Social Security benefits).

[202] Connell Testimony, Hearing Transcript, p. 245.

[203] Ibid.

[204] Pena v. Houston Lighting & Power Co., 154 F.3d 267, 269 (5th Cir. 1998).

[205] President Bush's Signing Statement, book 2, p. 1079.

[206] Lisa Hogan Testimony, Hearing Transcript, p. 225.