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Recently, the U.S. Supreme Court and the California legislature have taken divergent approaches to the definition of disability under federal and state disability discrimination laws. Under the Americans with Disabilities Act (ADA), a person with a disability must be “substantially limited in a major life activity” to prove membership in the protected class. The U.S. Supreme Court has focused on the “substantial” requirement and placed a fact-specific burden on plaintiffs to document the limitations their disabilities caused. Mitigating measures an employee has taken, such as assistive devices and medications, must be taken into consideration in determining whether a person with a disability is “substantially limited in a major life activity.” See School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987); Sutton v United Airlines, Inc., 527 U.S. 471 (1999); and Albertson’s, Inc. v Kirkingburg, 527 U.S. 555 (1999). In contrast, on January 1, 2001, an amendment to California’s Fair Employment and Housing Act, A.B. 2222 (primarily amending Government Code ��12926 and 12940 and adding �12926.1), became law. A.B. 2222 eliminates “substantially” from the definition of disability and requires that “limits” be determined without regard to mitigating measures unless the mitigating measure itself limits a major life activity. This new law in California sharply contrasts with the Supreme Court’s approach to the ADA and provides an opportunity to analyze the dichotomy between the high court’s analysis and state law. THE MEANING OF “DISABILITY” UNDER FEDERAL AND STATE LAW The Americans with Disabilities Act of 1990 (“ADA”), Pub. L. No. 101-336, prohibits employment discrimination against persons with disabilities. To claim protection under the ADA, a plaintiff must be “a qualified individual with a disability.” Section 3(2) of the Act provides a three-pronged definition of “disability:”
(A) a physical or mental impairment that substantially limits one or more of the major life activities of �[an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

California’s A.B. 2222 defines disability as “any mental or physical disability as defined in Section 12926 of the Government Code.” Government Code Section 12926 provides separate but similar definitions for both mental and physical disability. Both require that the impairment “limits a major life activity,” with “limits” defined as:

“Limits” shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

“SUBSTANTIALLY LIMITED IN A MAJOR LIFE ACTIVITY” In several Supreme Court cases, the Court placed the burden on plaintiffs to document the limitations their disabilities caused. See School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987); Sutton v United Airlines, Inc., 527 U.S. 471 (1999); and Albertson’s, Inc. v Kirkingburg, 527 U.S. 555 (1999). The Arline case which involved the California Rehabilitation Act, is a useful comparative case for several reasons: 1) the definition of “handicapped individual” under the Rehabilitation Act is identical to the definition under the ADA; 2) the language of the ADA and associated regulations borrow extensively from Rehabilitation Act law; and 3) Congress provided that courts should not construe the ADA as providing lesser standards than those under the Rehabilitation Act and its accompanying regulations. In Arline, the Supreme Court found that plaintiff Arline’s tuberculosis represented an impairment “serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment.” However, Arline’s hospitalization occurred more than 20 years before the adverse employment action took place. Since Arline, the lower federal courts have commented on this determination. The 5th Circuit, for example, in Burch v. Coca-Cola Co., 119 F.3d 305, 317 (5th Cir. 1997) opined:

[ Arline] cannot be construed to obviate the requirement, explicit in the ADA and its implementing regulations, that purported conditions be examined to ascertain whether a specific condition substantially limited a major life activity. The ADA requires an individualized inquiry beyond the mere existence of a hospital stay. Although the Court in Arline noted that the plaintiff’s hospitalization established a record of impairment, the defendant had conceded that her acute tuberculosis had been substantially limiting … [The contrary reading of Arline] would work a presumption that any condition requiring temporary hospitalization is disabling — a presumption that runs counter to the very goal of the ADA.

Thus, in decisions following Arline, courts clarified that a record of hospitalization in and of itself may not meet the fact-specific burden to document the limitations the disability caused. In Sutton, twin sisters with severe myopia sought employment as commercial airline pilots for a major carrier. In attempting to establish an impairment to a major life activity, the twins maintained that their major life activity of working was substantially limited by their disability. Under the Court’s standard in which “disability under the Act is to be determined with reference to corrective measures,” with the use of corrective lenses, each sister had vision that was 20/20 or better. The divided Court concluded:

“respondent is correct that the approach adopted by the agency guidelines — that persons are to be evaluated in their hypothetical uncorrected state — is an impermissible interpretation of the ADA. Looking at the Act as a whole, it is apparent 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 and thus “disabled” under the Act.”

The Court concluded that the phrase “substantially limits” requires that a person be presently –not potentially or hypothetically — substantially limited in order to demonstrate a disability. Interestingly enough, the Court seemed to express sympathy for the plaintiffs’ plight. The opinion suggested that if the sisters had alleged that their major life activity of seeing, rather than working, was substantially limited, they may have been more successful in proving membership in the protected class. Referring to the example of individuals who use prosthetic limbs or wheelchairs, the Court stated that although these individuals may be mobile and capable of functioning in society, they are still disabled because of the substantial limitation on their ability to walk or run. As a result of the Court’s approach to interpreting the ADA, fewer impairments constitute “disability” under the Act. Citing the statistic from the 1990 Act that about 43 million Americans have one or more physical or mental disabilities, the Court appeared to be concerned that a broader reading of the Act would greatly increase the number of individuals covered under the ADA. In his dissent, Justice Stevens referred to the fact that eight of the nine Federal Courts of Appeals that addressed the issue and all three of the Executive agencies that issued regulations or interpretive bulletins construing the statute interpreted the ADA’s definition of “disability” based on an individual’s uncorrected state. In response to the majority’s concern of encompassing too many individuals within the ADA’s protection, Justice Stevens stated that the Sutton case simply raised the threshold question of whether the ADA allowed the petitioners into the protected class. Once in, they would still need to prove that the employer took action “because of” that impairment, and that they could, “with or without reasonable accommodation, � perform the essential functions” of the job. See 42 U.S.C. ��12112(a) & 12111(8). An employer could avoid liability by showing that the job criteria was “job-related and consistent with business necessity” or if such impairment, (even if correctable) would pose a health or safety hazard. See Id. �� 12113(a) and (b). Similarly, Justice Breyer, in his dissent, noted that there was a remedy against the threat of too many lawsuits that ultimately prove meritless or otherwise draw too much time and attention away from other cases. For example, the Equal Employment Opportunity Commission, through regulation, could draw finer definitional lines, excluding those “minor, trivial impairments” in which the availability of a simple, inexpensive remedy, such as eyeglasses, could provide total and relatively permanent control of all symptoms, and thereby confine the overly broad extension of the statute that the majority feared. Albertsons, Inc. v Kirkingburg spotlights a plaintiff’s burden to document the limitations caused by his disabilities. Kirkingburg, a truck driver with more than 10 years of driving experience, suffered from amblyopia, an uncorrectable condition that left him with 20/200 vision in his left eye or essentially monocular vision. Although Kirkingburg’s vision did not meet the Department of Transportation vision standards for commercial truck drivers, he was erroneously certified and hired as a truck driver by Albertsons, a grocery-store chain. In considering whether Kirkingburg was an individual with a disability under the ADA, the Court inquired into whether his monocular vision alone “substantially limit[ed]” his vision. The Court opined that although the EEOC definition of “substantially limits” requires a “significant restriction” in an individual’s manner of performing a major life activity, the lower federal court appeared willing to settle for a mere difference. By transforming “significant restriction” into “difference,” the federal court undercut the fundamental statutory requirement that only impairments causing “substantial limitations” in an individual’s ability to perform major life activities constitute disabilities. The Court also concluded that mitigating measures must be taken into account in determining whether an individual possesses a disability, and that treating monocularity as sufficient in itself to establish disability was inappropriate. In determining whether Kirkinburg was disabled within the meaning of the Act, the Court had to consider his ability to compensate for the impairment by developing subconscious mechanisms for coping with his visual impairment. In addition, the Court found that the existence of disability should be determined on a case-by-case basis. The Court suggested that while some impairments in and of themselves invariably cause a substantial limitation of a major life activity, monocularity does not. The extent to which the impairment affects vision depends on various factors, including the degree of visual acuity in the weaker eye and the age at which the individual suffered vision loss. Therefore, the Court required the plaintiff to specifically identify the degree of vision loss suffered and set forth evidence specifying the extent of his individual visual restrictions. Interestingly enough, the Court in Kirkingburg stated that individuals with monocular vision do not have “an onerous burden” to show that they are disabled. The Court wrote:

On the contrary, our brief examination of some of the medical literature leaves us sharing the Government’s judgment that people with monocular vision “ordinarily” will meet the Act’s definition of disability and we suppose that defendant companies will often not contest the issue.

Nevertheless, the Kirkingburg decision makes clear that courts considering even obviously disabling impairments must examine such individual’s condition on a case-by-case basis to determine if such impairments are, in fact, substantially limiting. The Court also indicated that courts must base this decision on detailed medical evidence, specific to the individual, demonstrating the precise way in which an impairment substantially limits major life activities. CONCLUSION As discussed above, the federal courts and executive agencies have interpreted the ADA in accordance with California’s analysis of A.B. 2222, which favors a broad reading of the statute and determines the existence of a disability without regard to mitigating measures. This approach contrasts with the Supreme Court’s narrow interpretation of the standard, rooted in the concern that failing to take into account mitigating measures will result in a floodgate of potentially meritless and time-consuming lawsuits. Ultimate reconciliation of these disparate approaches is unclear. However, despite the explicit terms of A.B. 2222, which provide that “limits” shall be determined without regard to mitigating measures, California courts may take a more cautious approach to determining the existence of a disability, given the Supreme Court’s concern of a plethora of baseless disability discrimination claims. Kim Clark, J.D. is a California-based educator and employment coach specializing in employment discrimination law. Much thanks to Steven Narolewski who assisted in the preparation of this article. Author’s Note: This article is intended for informational purposes only and in no way constitutes legal advice.

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