The Sutton ruling: more than meets the eye - Sutton v. United Air Lines Inc - Supreme Court cuts back on the people covered by the Americans with Disabilities Act

HR Magazine, Sept, 1999 by Jonathan A. Segal

The Supreme Court cuts back the number of people covered by the ADA. But the decision raises many peripheral issues.

An employee with severely limited eyesight asks you for accommodation under the Americans with Disabilities Act (ADA). While her condition would appear to be a disability (because it substantially limits the major life activity of seeing), she is able to completely control it with corrective lenses.

In short, her impairment seems serious enough to be protected by the law, but the reality is that, when she wears her glasses, she can see as well as most people.

Is she considered disabled - and therefore protected by the law - or not?

Federal courts had offered contradictory answers in such cases. So, the Supreme Court addressed the issue recently in the case of Sutton v. United Air Lines, Inc. (No. 97-1943, 1999). The high court determined that employees who can substantially control their conditions are not considered disabled under the law.

That ruling drastically limits the number of individuals who are protected by the act. (For starters, it appears to eliminate anyone who has easily correctable vision problems from the law's protection.) In response, some employee advocates have said that the decision rips the heart out of the ADA.

However, while the Sutton decision undeniably limits the ADA, it is hardly a death knell for employees who have limiting conditions - or a time for unbridled celebration on the part of employers. Here's why: The decision was applied to employees who were able to completely mitigate their conditions. In cases where corrective measures are only partially successful, the guidance for HR professionals and employers isn't quite so clear.

To understand this point further, one needs to understand the basics of the high court's recent decision.

The Case

The Sutton case involved twin sisters who applied for jobs as commercial airline pilots. Both sisters had severe myopia, a condition that limited their ability to see, but that was correctable with lenses.

The airline required its pilots to meet certain vision requirements without the aid of corrective lenses. Because the sisters could not meet this requirement, they were not hired. The sisters then sued under the ADA.

The airline argued that the sisters were not disabled - and therefore were not protected by the ADA - because their vision was 20-20 when they wore their corrective lenses. The high court agreed with the airline and determined that the sisters were not disabled under the law.

The key in this case was that the sisters were able to completely mitigate their vision problems. But that won't be true for everyone. Even with corrective measures, many individuals with physical or mental disorders may remain substantially limited and, therefore, will retain the protection of the ADA.

And in some cases, medication may actually turn an insubstantial impairment into a substantial impairment that is covered by the ADA. The Supreme Court's opinion states that if a person takes measures to correct or mitigate an 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." (Emphasis supplied.)

HR professionals, therefore, cannot automatically assume that employees who can partially control their conditions are not protected by the ADA. Further, in such cases, HR may find itself in the unenviable position of determining the effectiveness of such mitigating measures.

This vital element of the Sutton decision is as important as the court's ruling on corrective measures. In particular, the court affirmed the long-standing position of the Equal Employment Opportunity Commission (EEOC) that the ADA requires employers to determine disability on a case-by-case basis. A case-by-case approach, however, provides employers with little guidance. In some cases, it also forces employers to become medical diagnosticians, which is hardly the goal of the ADA.

For example, assume one of your employees has a stress disorder and requests a relatively minor reduction in his responsibilities as an accommodation. Although the request is not unreasonable (because the duties at issue are not essential), you fear that granting the accommodation will send a dangerous message to other workers: Claim a disability and get rid of undesirable job assignments.

Generally speaking, employers can deny accommodation requests only if the requesting employee is not disabled or if the requested accommodation is unreasonable. Because the accommodation in this example is not unreasonable, you can deny it only if the employee is not disabled.

To determine if the employee is disabled, you cannot look solely at the nature of the condition. Instead, according to the Supreme Court, you must assess how the condition affects the employee's ability to perform major life activities. As a result, you will need to engage a medical expert who can make this assessment.