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It has now been a little over a year since the Supreme Court handed down its decision on the Americans with Disabilities Act (“ADA”) in Sutton v. United Airlines, Inc. [FOOTNOTE 1]While it is much too early to tell how Suttonwill affect the overall frequency and viability of ADA claims, it is interesting to note certain trends that have developed as the federal circuit courts have applied Sutton’s three mandates: (1) the determination as to whether an individual is disabled must be made on an individualized basis; (2) consideration must be given to corrective or mitigating measures (including any side effects) in determining whether an individual is disabled; and (3) to establish that employees are “regarded as disabled,” they must show that their employers believe they are significantly impaired in one or more major life activities. This column discusses some of the federal circuit court cases which have applied Sutton‘s directives. INDIVIDUALIZED INQUIRIES REINFORCED BY SUTTON While Suttondid not create a new requirement that disability determinations be made on an individualized basis, the Supreme Court certainly reinforced this notion. In McInnis v. Alamo Community College Dist. [FOOTNOTE 2]and EEOC v. R.J. Gallagher Co. [FOOTNOTE 3]the 5th U.S. Circuit Court of Appeals, relying at least in part on Sutton‘s mandate that disability determinations must be made on an individualized basis, concluded that summary judgment was inappropriate. In Gallagher, a case which involved an individual with a history of cancer, the court specifically rejected the Equal Employment Opportunity Commission’s (EEOC) interpretative regulation protecting “former cancer patients from discrimination on the basis of their prior medical history,” [FOOTNOTE 4]ruling that “this broad position obviously cannot be the rule in the wake of Sutton.” [FOOTNOTE 5]The court nevertheless denied the employer’s motion for summary judgment. On the other hand, the 8th Circuit in Weber v. Strippit, Inc. , [FOOTNOTE 6]upheld judgment in favor of the employer finding that even though an individual’s “heart disease substantially impacts his cardiovascular system, [this] does not automatically render him disabled under the ADA.” [FOOTNOTE 7]The court concluded that the plaintiff had established only moderate limitations in several major life activities. [FOOTNOTE 8] This small sampling of federal circuit cases suggests that courts may rely on the “individualized assessment” requirement in denying summary judgment to employers. In other instances, the courts may rely on this same requirement by rejecting the per sedisability argument of employees and concluding they have failed to proffer specific evidence of a significant impairment in a major life activity. MITIGATING MEASURES AND THEIR SIDE EFFECTS The heart of the Suttondecision, of course, was the Supreme Court’s holding that corrective measures must be considered in determining whether an individual is disabled under the ADA. This ruling is expected to significantly limit ADA cases in years to come. Several interesting issues have developed as the courts have applied this directive. One is the extent to which mitigating measures may create side effects and thus cause an individual to be considered disabled. [FOOTNOTE 9]In McAlindin v. County of San Diego , [FOOTNOTE 10]the plaintiff alleged he was disabled under the ADA as a result of diagnosed anxiety, panic, and somatoform disorders. In countering defendant’s motion for summary judgment, McAlindin stated in his declaration that his medications caused impotency and significantly disrupted his sleep at night. The 9th Circuit relied on this evidence in denying summary judgment on the issue of whether he was disabled under the ADA. [FOOTNOTE 11] The McAlindincase perhaps exemplifies how employees may turn the Sutton“corrective measures” decision to their advantage. By focusing on the negative side effects of medications or other corrective measures, individuals claiming they are disabled may be able to withstand summary judgment on this issue. This strategy may be particularly prevalent in cases of alleged mental disabilities, such as McAlindin, where the side effects of medication are dependant upon a person’s subjective complaints. An intriguing question remains as to how the courts will assess the effect of corrective measures where individuals who are required to take medication do not in fact do so. [FOOTNOTE 12]In other words, in this situation, should the disability determination be made assuming that individuals are taking their required medication? It will be interesting to see how courts address this issue, particularly in cases where employees or their treating physicians, perhaps not unexpectedly, argue that the mental illness makes the employees more prone to failing to take the medication. THE “REGARDED AS DISABLED” ANALYSIS OF SUTTON The final Suttondirective concerned the analysis of one of the alternative methods by which employees may establish disability — that they are “regarded as disabled” by their employer. As Suttonnoted, a person is regarded as disabled within the meaning of the ADA if “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that the person’s actual, non-limiting impairment substantially limits one or more major life activities.” [FOOTNOTE 13]The starting point in this analysis is that individuals do not have to have obvious, specific handicaps in order to be regarded as disabled by their employers. [FOOTNOTE 14]The critical determination is whether employers treat the employees as if they have impairments which substantially limit one or more major life activities. Moreover, the “regarded as disabled” method of establishing disability normally involves only the major life activity of working. The reason for this is that an employer’s alleged perception of disability generally becomes relevant only in situations where the employer takes some action toward the employee at work, such as denying the employee a position of employment or requiring some form of medical testing which draws into the question the person’s ability to work. [FOOTNOTE 15]Thus, absent a particular prejudice by an employer against individuals with certain types of maladies, the inquiry is almost always limited to the major life activity of working. In any event, the decisions following Suttonhave adhered to the principle that employees must do more than merely establish that the employers considered them unable to perform one job, or one type of job — the employees must show that their employers viewed them as unable to perform a broad range of jobs. [FOOTNOTE 16]This appears to be a formidable evidentiary hurdle for plaintiffs to overcome. CONCLUSION Suttonand its two accompanying cases certainly changed the landscape of ADA litigation. While these cases resolved major issues and significantly limited the scope of the ADA, questions still remain. Suffice it to say that with the complexity of the ADA and its elements, as well as the case-by-case determinations that must be made, new areas of inquiry will undoubtedly develop for a statute that is still less than ten years old. This article is excerpted with permission from CCH’s Journal of Alternate Dispute Resolution in Employment, Summer 2000 Edition. Martin K. LaPointe, a shareholder in the Chicago law firm of Burke, Warren, MacKay & Serritella, PC, heads up Burke’s Labor and Employment Practice Group. He has represented employers nationwide in employment litigation at the trial court level, as well as on appeal in the various U.S. Courts of Appeals. He is a former law clerk for the Honorable Charles R. Norgle, Sr. of the U.S. District Court for the Northern District of Illinois. He received his law degree from IIT Chicago-Kent College of Law. FOOTNOTES: FN1119 S. Ct. 2139 (1999). The companion cases of Murphy v. United Parcel Services, Inc.,and Albertsons, Inc. v. Kirkingburg,119 S. Ct. 2133 (1999) were decided on the same day. FN2207 F.3d 276 (5th Cir. 2000). FN3181 F.3d 645 (5th Cir. 1999). FN429 C.F.R. �1630.2. FN5181 F.3d at 655. FN6186 F.3d 907, 913 (8th Cir. 1999). FN7186 F.3d at 913. FN8Id. at 913-14. FN9 Suttonrecognized that side effects may cause a person to be substantially limited in a major life activity. 119 S. Ct. at 2146-47. FN10192 F.3d 1226 (9th Cir. 1999). FN11192 F.3d at 1235-36; see also Belk v. Southwestern Bell Telephone Co.,194 F.3d 946 (8th Cir. 1999) (individuals use of leg brace, to help correct symptoms of polio, contributed to significant impairment in major life activity of walking). FN12The 7th Circuit in Krocka v. City of Chicago,203 F.3d 507 (7th Cir. 2000) seemed to indirectly allude to this issue when it stated: “[W]e are to evaluate Krocka’s condition taking into consideration the ameliorating effects of the medication he is taking to control that condition. Krocka acknowledges that when taking Prozache exhibits no symptoms of depression and is able to perform the duties of his job adequately. “Id . FN13 Sorrensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1088 (10th Cir. 1999), quoting Sutton v. United Airlines, Inc., 119 S. Ct. 2139, 2149-50 (1999); see also EEOC vs. R.J. Gallagher Co., 181 F.3d 645, 656 (5th Cir. 1999). FN14 Gallagher,181 F.3d at 656. FN15See Weber v. Strippit, Inc., 186 F.3d 907, 914-15 (8th Cir. 1999); Broussard v. Univ. of California,192 F.3d 1252, 1256-57 (9th Cir. 1999). FN16Id. � 2000, CCH INCORPORATED. All Rights Reserved.

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