phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.285

In Sutton, both plaintiffs were denied employment as commercial pilots with United Airlines because they failed to meet the carrier's minimum vision requirement of an "uncorrected visual acuity of 20/100 or better."286 In considering whether the plaintiffs had a physical impairment that substantially limited a major life activity, the Court said that measures taken to mitigate a condition "must be taken into account."287 The fact that the plaintiffs could undertake mitigating measures in the form of corrective lenses that adjusted their visual acuity to 20/20 caused the Court to conclude that they had "not stated a claim that they are substantially limited in any major life activity."288

If the use of a corrective measure precludes an individual from claiming that he has a disability within the meaning of the ADA, then the application of the statute to abusive work situations that create or exacerbate psychological disorders may be severely limited. Many such conditions are treatable with medication, such as the use of prescription drugs to treat schizophrenia. The majority in Sutton responded to this type of argument by pointing out that "one whose high blood pressure is 'cured' by medication may be regarded as disabled by a covering entity,"289 thereby possibly falling within the statutory definition. The Court urged that the central inquiry is "whether the limitations an individual with an impairment actually faces are in fact substantially limiting."290

The ADA has built-in limitations as a weapon in the fight against abusive work environments. In addition, the consideration of what is a disability in Sitton casts further questions on the viability of the use of the ADA for this purpose_ In short, while the ADA offers some promise as a legal response to abusive work environments, it should not be the first line of legal defense against workplace bullying.291

E. NATIONAL LABOR RELATIONS ACT (NLRA)

The NLRA creates rights and responsibilities that can serve as a check on workplace bullying in two ways.292 First, the NLRA grants employees the "right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing."293 If the presence of a union has the effect of discouraging workplace bullying;294 then this statutory right to form and join unions is an important means toward that end. In fact, in unionized sites that have experienced problems with workplace bullying, a union could recommend some type of antibullying provision for the collective bargaining agreement, conceivably mirroring the new cause of action proposed in Part III. Second, the NLRA grants employees the right to engage in concerted activity for "mutual aid or protection," regardless of whether they are union members.295 This provision potentially protects workers who collectively address workplace bullying, especially abusive supervision.