TO PARAPHRASE THE grade-school riddle: When is a disability not a disability? Some say, when it is controlled or corrected by medication or an assistive device-for example, eyeglasses for myopia. Others disagree, saying that mitigation does not matter in assessing whether or not a disability exists.

The question is now knocking on the door of the U.S. Supreme Court in Sutton v. United Air Lines Inc., 97-1943 (U.S. June 1, 1998), petition for cert. filed from 130 F.3d 893 (10th Cir. 1997).

The issue raised in Sutton, and what we can call the other "mitigation" cases, is far more significant than that addressed last term in Bragdon v. Abbott, 118 S. Ct. 2196 (1998), when the Supreme Court held that nonsymptomatic HIV infection is a disability protected under the Americans With Disabilities Act of 1990.

The mitigation cases, which affect a wide range of asserted disabilities, can involve issues at the core of an employer's managerial discretion and will likely shape the ADA's reach for decades to come.
 

Should Mitigation Count In Assessing Impairment?

The basic ADA definition of "disability" is a physical or mental impairment that substantially limits one or more major life activities. 29 U.S.C. 12102(2). Having a "record" of such an impairment or being "regarded" as having such an impairment also constitute ADA-protected disabilities. Id.

According to the Equal Employment Opportunity Commission, in its Interpretive Guidance on the ADA, the existence or nonexistence of an actually disabling impairment must be determined "without regard to mitigating measures such as medicine, or assistive or prosthetic devices." 29 C.F.R. Pt. 1630 App. to Sec. 1630.2(j). So, for example, a person whose epilepsy is controlled by medication, someone with a prosthetic arm, someone with controlled hypertension and someone with a glass eye would all have an ADA-protected disability under this view.

The majority of the federal circuits agree with the EEOC approach. See, e.g., Baert v. Euclid Beverage Ltd., 149 F.3d 626 (7th Cir. 1998); Arnold v. United Parcel Service Inc., 136 F.3d 854 (1st Cir. 1998). Under those decisions, the ADA's coverage is extended to numerous individuals who might not customarily be considered to be suffering from a disability.

For example, in Baert, a truck driver took insulin daily to control his diabetes. The plaintiff lost his commercial driver's license under government regulations that disqualified people with insulin-dependent diabetes, and he could no longer do his job. When his company failed to offer him a different job as a reasonable accommodation, he sued under the ADA. By his own admission, the plaintiff was "perfectly healthy and his diabetes [did] not affect his day-to-day activities." Baert, 149 F.3d at 629. Nonetheless, the 7th U.S. Circuit Court of Appeals held that the truck driver was disabled for purposes of the ADA, since he would have to be hospitalized if he did not take his insulin.

A small minority of circuit courts reject the EEOC's nonmitigation approach, finding it to be in direct conflict with the plain language of the ADA, which is concerned with whether an "impairment [substantially] affects the individual in fact, not whether it would hypothetically affect the individual without the use of corrective measures." Sutton, 130 F.3d at 902. See also Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. 1997) (two judges concurring in relevant part).

For that reason, Sutton rejected the claim of two commercial airline pilots whose myopia was corrected by eyeglasses and who were rejected from hire by a national airline because they could not meet its minimal standard for uncorrected vision.
 

There Appears to Be No Viable Middle Ground

Just three months ago, the 5th Circuit weighed in to this dispute and "split the baby." See Washington v. HCA Health Serv. of Texas Inc., 152 F.3d 464 (5th Cir. 1998).

The plaintiff there was an accountant with Adult Stills Disease, a degenerative rheumatoid condition affecting his bones and joints. By taking four prescription medications daily, the plaintiff was able to control the pain and other symptoms of the disease. Without the medication, he would have been bedridden.

As this accountant's workload increased, he was required to raise his typical working time from 50 hours to 60-80 hours weekly. The plaintiff requested less work as a reasonable accommodation because, according to his doctor, the increased hours aggravated his disease. The employer refused, and the plaintiff unilaterally reduced his working hours. Some time later, he was fired in a work-force reduction, and he sued.

The Washington court was torn between the reasoning of Sutton, which it found persuasive, and the EEOC interpretation, which it found worthy of deference. It compromised by holding that "only serious impairments and ailments that are analogous to those mentioned in the EEOC Guidelines and the legislative history-diabetes, epilepsy and hearing impairments-will be considered in their unmitigated state." Id. at 470. Conditions that are not "serious in common parlance" should, the court said, be considered with regard to mitigation, as should conditions subject to "permanent correction," such as by an artificial joint or transplanted organ. The court then held the disease to be sufficiently serious so that "mitigating measures should not be taken into account." Id. at 471.

Although tempting, this compromise begs the question: The purpose of the statutory definition is to distinguish between impairments that are serious enough to deserve ADA protection and those that are not; to employ a "common parlance" notion of "serious" in determining how to apply the disability definition presupposes precisely the determination that the court is required to make.
 

The Mitigation Dispute Masks More Basic Issues

There is something surreal about struggling to include within the rubric of actual disability people whose impairment is controlled or corrected. Those same individuals would also presumably have a record of disability or could be regarded as having a disability, and either of those situations are covered under the last two prongs of the ADA definition of disability.

So, for example, the recovered drug addict is protected under the ADA from discriminatory discharge or refusal to hire. People with mitigated disabilities, too, would have ADA protection against adverse employment actions based on past or perceived disability. The "no-mitigation" standard, therefore, provides no additional protection from outright discrimination based on discriminatory animus or outmoded stereotypes. What, then, is it for?

Courts often get fixated on the word "disability" as if it were the medical impairment that needed defining. But under the employment title of the ADA, the central concept is not disability itself; rather, it is whether the person claiming statutory protection is a "qualified individual with a disability." Id. at Sec. 12111(8).

Both the EEOC and the courts have emphasized repeatedly that this statutory concept requires an individualized assessment of the person claiming rights under the statute. Indeed, the ADA definition of "disability" asks whether "with respect to an individual" there is an impairment that substantially limits the life activities of "such individual"-presumably, the specific person claiming to have a disability as defined by the ADA. See 29 U.S.C. 12102(2).

A focus on the individual permeates the ADA. For example, individuals who pose a "direct threat" to co-workers are not protected. This disqualifying condition, however, is not assessed in the abstract-for example, "Are all paranoid schizophrenics dangerous?"-but with respect to a particular individual and considering all relevant factors, including the extent to which the individual's potentially aggressive behavior is controlled by medication. There does not appear to be any cogent explanation as to why medication is considered with respect to the application of the "direct threat" concept but not with respect to the existence of a disability.

The ADA focuses not only on individual people, but on individual jobs. The ADA is unique among discrimination statutes in that it bars discrimination only against a "qualified" individual with a disability, and that is, in turn, defined as one who can, with or without reasonable accommodation, perform the essential functions of the job he or she has or seeks. 42 U.S.C. 12112(a).

Most of the mitigation cases deal with people who challenge a qualification standard for the job they hold or want, such as the myopic commercial airline pilots in Sutton. If their claim were not dismissed for lack of a disability, the whole case would turn on whether the plaintiffs should be excused from the employer's uniformly applied qualification standard.

As in the case of "direct threat," this issue would be decided by considering the job-specific impact of the plaintiffs' vision impairment in its corrected state and, for good measure, all the reasonable accommodations the employer could make-such as, for example, restricting their assignments to the less stressful or demanding flights. See, e.g., Gilday v. Mecosta County, 124 F.3d 760 (paramedic with non-insulin-dependent diabetes sought transfer to "less chaotic station" so he could better maintain his regimen of oral medication, blood-sugar monitoring, strict diet and exercise).
 

Inability to Do a Job Is Not The Same as Disability

Although one would not know it from reading the cases, the real issue in the mitigation cases is this: Which group of workers should be permitted to "shoehorn" themselves into a specific job they intensely want but do not fit or would not fit without some accommodation by their employer? Judge Cornelia G. Kennedy, of the 6th Circuit, got it right when she pointedly noted that "[t]he inability to perform a particular job or the job of one's choice is not a disability." Id. at 767 (citing cases).

So, for example, the employee with a chemical sensitivity who cannot do her job because of noxious odors in her assigned workplace is not disabled under the ADA, since she can still do that same type of work for other employers and, indeed, for her own employer in a different workplace. See Heiweil v. Mount Sinai Hosp., 32 F.2d 718 (2d Cir. 1994). Does the ADA require a different result for people with corrected or controlled impairments who cease to satisfy some qualification standard for the particular job they hold or want? That is, after all, how most of these mitigation cases find their way into court.

The EEOC approach to the ADA-and the ADA itself-puts employers in a double bind on the question of qualification standards. On the one hand, the law and the EEOC are quite clear that employers can set their own production standards, both as to quality and quantity, and are not required to lower them for people with disabilities. 29 C.F.R. App. to Sec. 1630.2(n). On the other hand, people with disabilities who fail to meet nonessential job functions are protected and entitled to reasonable accommodation, which can include transferring those nonessential functions to co-workers-called "job restructuring" in ADA argot.

Furthermore, the ADA prohibits the use of "employment standards" or "selection criteria" that "screen out or tend to screen out" ADA-protected individuals, unless those standards or criteria are job-related and consistent with business necessity, but not if satisfactory performance can be achieved with a reasonable accommodation. 29 U.S.C. 12112(b)(3), (5) and (6).

Reasonable accommodation can include a permanent transfer of the disabled individual to a vacant position, usually a light-duty and less-stressful one, if the individual is no longer able to perform satisfactorily the job he or she was hired to do. See Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998). Transferring to a less-stressful position and reassigning job duties are common themes of the mitigation cases.
 

Trade-Off Between Scope Of Coverage and Remedies

It can be a heavy burden on employers to make the workplace adjustments required by the ADA, and it can be a burden on co-workers, too. Society as a whole clearly accepts the burdens as a small price to pay for increasing the employability of people with severe disabilities. But the question remains whether similar burdens are acceptable with respect to people who, with corrective devices or medication, can live quite normal lives although they suffer from medical conditions that would have left them sickly or bedridden were it not for the wonders of modern medicine.

Every piece of social welfare legislation must make a trade-off between the scope of coverage and the range of remedies. At the turn of the century, for example, society made such a trade-off by adopting workers' compensation laws: All workplace injuries were covered, even without showing employer negligence or the absence of employee contributing negligence, but the remedies were restricted to a prescribed schedule of benefits, which precluded compensatory and punitive damages. For the ADA, the trade-off is in the opposite direction: affording exceptional remedies for protected people but limiting coverage to people with what we would generally regard as serious disabilities.

The challenge for courts in cases like Sutton is to keep the ADA true to its purpose, not to make the full panoply of ADA remedies available to every worker who, by unhappy circumstance, becomes unable to perform the tasks of his or her particular job. Taking mitigating measures into account when deciding ADA coverage is one way of doing this. It is far from perfect and may result in seeming injustices in particular instances. Still, it is better than the alternative.
 

FNa. Mr. Starr, a partner at New York's Squadron, Ellenoff, Pleasent & Sheinfeld L.L.P., can be reached at mstarr@squadronlaw.com. Jordan Lippner, an associate at the firm, assisted in the preparation of this column.