Supreme Court Decisions Interpreting
the Americans with Disabilities Act

Updated September 17, 2002

National Council on Disability
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ACKNOWLEDGMENT

The National Council on Disability (NCD) wishes to express its appreciation to Professor Robert L. Burgdorf Jr. for developing this analysis of Supreme Court decisions interpreting the Americans with Disabilities Act (ADA).

INTRODUCTION

NCD is composed of 15 members, appointed by the President of the United States and confirmed by the U.S. Senate. The overall purpose of the agency is to promote policies, programs, practices, and procedures that guarantee equal opportunity for all people with disabilities, regardless of the nature or severity of the disability, and to empower them to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society. Part of NCD's statutory mandate is to gather information about the implementation, effectiveness, and impact of ADA.

In the last few years, the Supreme Court has issued a number of decisions that have dramatically changed the way ADA is interpreted, in most cases, contrary to what Congress intended. One decision in particular, Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), devastatingly stripped the right of state workers to sue their employers for money damages for violations of Title I of ADA, which prohibits employment discrimination against people with disabilities. In response, NCD convened a series of meetings with disability policy experts to gain their assessment of the breadth and nature of the impact of Supreme Court decisions on ADA and other key civil rights laws.

This paper is intended to increase public awareness of ADA as interpreted by the Supreme Court and to give policymakers and ADA stakeholders an overview of ADA issues addressed by the Supreme Court, a synopsis of the decisions, and the significant implications of each decision in helping or hindering implementation of ADA. Finally, this paper is intended to assist in the examination of the work that remains to be done to realize the law's promise.

I. OVERVIEW OF ISSUES ADDRESSED BY THE COURT IN ADA CASES

A. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998).

ISSUE: Whether Title II of ADA covers state prisons and prisoners.

B. Bragdon v. Abbott, 524 U.S. 624 (1998).

ISSUES: Whether a dental patient's asymptomatic HIV infection constituted a disability under ADA, and whether the evidence in the case was sufficient to defeat the dentist's asserted defense that filling the patient's cavity in his office would in his professional judgment have presented a direct threat to health or safety.

C. Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998).

ISSUE: Whether a general arbitration clause in a collective bargaining agreement requires an employee to use the arbitration procedure to address an alleged violation of ADA.

D. Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).

ISSUE: The extent to which application for and receipt of disability benefits precludes a person with a disability from bringing an ADA claim.

E. Sutton v. United Airlines, 527 U.S. 471 (1999).

ISSUES: Whether, in a lawsuit brought by two job applicants with severe nearsightedness (myopia) to challenge an airline's minimum vision requirement for global pilots, corrective and mitigating measures should be considered in determining whether an individual is disabled under ADA, and whether the applicants had stated a valid claim that the airline regarded them as disabled.

F. Murphy v. United Parcel Service, 527 U.S. 516 (1999).

ISSUES: Whether the condition of a mechanic whose high blood pressure was controlled by medication should be considered in a medicated or nonmedicated state in determining whether he has a disability, and whether an employer's belief that the employee's high blood pressure prevented him from satisfying a DOT health requirement for driving commercial vehicles constituted regarding him as having a disability under ADA.

G. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999).

ISSUES: Whether having monocular vision constitutes per se disability under ADA and whether a DOT safety regulation justified an employer's visual-acuity job qualification standard, even though the DOT regulation contained a waiver provision under which the standard could be waived in an individual case.

H. Olmstead v. L.C., 527 U.S. 581 (1999).

ISSUES: Whether ADA requires a state to place people with mental disabilities in community settings rather than in institutions when the state's treatment professionals have determined that community placement is appropriate, and what standard is to be applied in assessing a state's assertion of a fundamental alteration defense to the obligation to afford such community placement.

I. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).

ISSUE: Whether the Eleventh Amendment bars employees of a state from recovering monetary damages from the state for violations of Title I of ADA.

J. Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835 (2001).

ISSUE: Whether federal statutes that allow courts to award attorney's fees and costs to the "prevailing party" authorize awards of fees to parties whose lawsuits brought about voluntary changes in the defendants' conduct but did not result in judgments on the merits or court-ordered consent decrees.

K. PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879 (2001).

ISSUES: Whether Title III of ADA protects qualified entrants with disabilities participating in professional golf tournaments, and whether allowing a golfer with a disability to use a golf cart when all other competitors must walk would "fundamentally alter the nature" of the tournaments.

L. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S.Ct. 681 (2002).

ISSUE: whether a worker's carpal tunnel syndrome and other painful conditions of her wrists, elbow, and shoulders substantially limited her in the major life activity of performing manual tasks and thus constituted a disability under the ADA.

M. Equal Employment Opportunity Commission v. Waffle House, Inc., 122 S.Ct. 754 (2002).

ISSUE: whether an agreement between an employer and an employee to arbitrate any employment-related dispute or claim bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific remedies, such as backpay, reinstatement, and damages, against the employer for allegedly violating the ADA.

N. U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002).

ISSUE: whether the rights of a worker with a disability who seeks assignment to a particular position as a reasonable accommodation under the ADA take precedence over other workers' rights to bid for the position under the employer's seniority system.

O. Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002).

ISSUE: whether the Equal Employment Opportunity Commission regulation that allows employers to refuse to hire applicants because their performance on the job would endanger their health due to a disability is permitted under the ADA.

P. Barnes v. Gorman, 122 S.Ct. 2097 (2002).

ISSUE: whether punitive damages may be awarded in private causes of action brought under either Title II of the ADA or under Section 504 of the Rehabilitation Act of 1973.

CHART - Supreme Court Decisions Interpreting the Americans with Disabilities Act

II. SYNOPSES OF THE CASES

A. PENNSYLVANIA DEPARTMENT OF CORRECTIONS v. YESKEY

Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998).

Ronald Yeskey was convicted of a crime and sentenced to serve 18 to 36 months in a Pennsylvania correctional facility; the sentencing judge recommended that Yeskey be placed in a Motivational Boot Camp for first-time offenders. Successful completion of the boot camp program would have made Yeskey eligible for release on parole in six months. Yeskey was refused admission to the boot camp because he had a history of hypertension. Yeskey sued the Pennsylvania Department of Corrections and several corrections officials under Title II of ADA, alleging that his exclusion from the boot camp constituted discrimination on the basis of disability. The district court dismissed Yeskey's case for failure to state a claim; it ruled that ADA does not apply to inmates in state prisons. The Third Circuit Court of Appeals disagreed and reversed the district court's decision.

In a unanimous opinion delivered by Justice Scalia, the Supreme Court ruled that ADA does cover state prisons and prisoners. The Court considered in turn and rejected several arguments put forth by the correctional officials. First, the officials contended that federal laws should not be interpreted to cover traditional and essential state functions, such as prisons, unless the language of the statute makes the coverage of such functions "unmistakably clear." Id. at 208-09, quoting Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991). The Supreme Court assumed without deciding that the "unmistakably clear" standard applies to ADA's coverage of state prisons, but ruled, however, that this requirement is "amply met" by Title II of ADA. 524 U.S. at 209. The Court declared that "the statute's language unmistakably includes State prisons and prisoners within its coverage." Id.

The prison officials contended that ADA's prohibition of discrimination in regard to the "benefits of the services, programs, or activities of a public entity," 42 U.S.C. § 12132, could not apply to state prisons because they do not provide "benefits" of "services, programs, or activities." The Supreme Court rejected this argument, finding that modern prisons provide inmates with many recreational activities, medical services, and educational and vocational services that prisoners may benefit from. The Court noted that the boot camp that Yeskey was excluded from was described as a "program" in the statute that established it.

The state officials also argued that the term "qualified individual with a disability" in ADA is defined as including those who meet "essential eligibility requirements for the receipt of services or the participation in programs or activities," Id., § 12131(2), and that the words "eligibility" and "participation" imply voluntariness that does not fit the situation of prisoners. The Supreme Court ruled that these words do not connote voluntariness, as one can be eligible and participate even if participation is required for those prisoners who are eligible. Even if the words did connote voluntariness, said the Court, the use of various services at prisons, including prison law libraries, is clearly on a voluntary basis. Participation in the boot camp program involved in the case was voluntary under Pennsylvania law.

The prison officials argued that the statement of findings and purpose in ADA does not mention prisons or prisoners and that Congress did not envision the law's application in the context of prisons. The Court questioned the contention that ADA does not mention prisons, since the Act refers to "institutionalization," Id., § 12101(a)(3), which the Court noted can be thought of as including "penal institutions." But even if ADA did not mention prisons and Congress never considered them in its ADA deliberations, the Court said that it would not matter because ADA's text is unambiguous. The Court recited a principle that it had applied in other contexts in which it had declared that "the fact that a statute can be 'applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.'" 524 U.S. at 212, quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985).

Because it found ADA to be unambiguous as to coverage of prisons, the Court also rejected the state officials' contentions regarding the implications of Title II of ADA's title, "Public Services," and the application of a doctrine called "constitutional doubt." The Court ruled that these arguments would be applicable only if the statutory language was ambiguous. Ultimately, the Supreme Court affirmed the judgment of the Third Circuit "[b]ecause the plain text of Title II of ADA unambiguously extends to state prison inmates ...." 524 U.S. at 213.

B. BRAGDON v. ABBOTT

Bragdon v. Abbott, 524 U.S. 624 (1998).

Sidney Abbott sought dental treatment at the office of Dr. Randon Bragdon in 1994. She had been infected with HIV since 1986 but had not yet experienced any serious symptoms. On the patient registration forms, Ms. Abbott disclosed that she was HIV-infected. Dr. Bragdon performed a dental examination and found that Ms. Abbott had a cavity. He then informed her that he had a policy against filling the cavities of patients with HIV in his office. He offered to fill her cavity at a hospital, and added that she would have to pay for the costs of using the hospital's facilities. Ms. Abbott declined this offer and filed suit under ADA and state law charging Dr. Bragdon with discriminating on the basis of disability. In particular, Abbott charged Bragdon with violating Title III of ADA which prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ... operates a place of public accommodation." 42 U.S.C. § 12182(a). Title III defines "public accommodation" to include the "professional office of a health care provider." Id., § 12181(7)(F).

After the discovery process had been completed, both Abbott and Bragdon filed motions for summary judgment. The federal district court granted summary judgment in favor of Ms. Abbott, ruling that her HIV infection constituted a disability under ADA and that there was no issue of fact left to be decided. The district judge held that Dr. Bragdon could not successfully defend his actions under ADA provision that excuses a covered entity from including an individual on an equal basis if that person poses a "direct threat to the health or safety of others." Id., § 12182(b)(3). Relying on affidavits submitted in the case by the Director of the Division of Oral Health of the Centers for Disease Control and Prevention (CDC), the district court concluded that it was safe for dentists to treat patients infected with HIV in dental offices so long as "universal precautions" prescribed by the CDC in 1993 were followed.

Dr. Bragdon appealed the decision of the district court, and the United States Court of Appeals for the First Circuit affirmed the lower court's decision in favor of Ms. Abbott. It agreed with the district court that Abbott's HIV infection was a disability under ADA even though it was not yet in the symptomatic stage. The Court of Appeals decided not to rely on the CDC official's affidavits regarding the "direct threat" issue as the district court had, but found that the 1993 CDC Dentistry Guidelines (officially titled "Recommended Infection-Control Practices for Dentistry") and the American Dental Association's 1991 Policy on AIDS, HIV Infection and the Practice of Dentistry led to the same conclusion--that dental procedures can be safely performed in dental offices if universal precautions are followed.

The Supreme Court examined the question whether Ms. Abbott's condition constituted a disability under ADA at great length, and ultimately found that it did. The Court began with the statutory language in ADA that defines disability:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. §12201(a).

The Court noted that this definition of disability was "drawn almost verbatim" from the definition of "handicapped individual" in the Rehabilitation Act of 1973 and of "handicap" under the Fair Housing Amendments Act of 1988. 524 U.S. at 631. The Court observed that Congress intended the term to be construed consistently with prior regulatory interpretations, and noted ADA's provision that nothing in ADA is to be construed to apply a lesser standard under ADA than under the Rehabilitation Act of 1973 and the regulations that implement it. 42 U.S.C. § 12201(a). The Court ruled that Ms. Abbott's HIV infection was a disability under subsection (A)--the actual disability prong--of ADA definition, and that, therefore, the Court did not need to consider the second and third subsections of the definition.

The Court went through a methodical analysis of each of the elements of the first prong of ADA definition: physical or mental impairment, major life activity, and substantially limiting. In considering whether HIV infection is a physical impairment, the Court examined in some detail the process through which the infection progresses. The opinion describes how, when a person is infected with HIV, the virus invades cells in the blood and body tissues, particularly certain white blood cells, and eventually kills the cells it invades. The initial phase of HIV infection is known as the "acute or primary" stage, typically lasting about three months, and, during this phase, the virus concentrates in the blood and assaults the white blood cells. Fever, headaches, muscle pain, rash, and other symptoms may appear, but typically go away after two or three weeks. The Court's opinion observes that after these symptoms have subsided, the disease enters what is sometimes called the "asymptomatic phase." The term is somewhat misleading because enlarged lymph nodes, skin disorders, oral lesions, and bacterial infections may continue to be present. During this phase, which usually lasts from 7 to 11 years, the virus switches its focus from the blood cells to the lymph nodes. Finally, the immune system of the individual is sufficiently damaged that the disease enters the AIDS stage, in which a variety of serious symptoms usually appear.

Based upon its review of the course of HIV infection, the Court reached the following conclusion:

In light of the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease, we hold that it is an impairment from the moment of infection. 524 U.S. at 637.

Having ruled that Ms. Abbott's condition was a physical impairment, the Court next turned to the issue of whether it was an impairment that affects a major life activity. This question was narrowed somewhat by the fact that Abbott's claim throughout the litigation was that the major life activity affected was the ability to reproduce and bear children. The Court noted that "[g]iven the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry," and that there was little doubt that "had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities." Id. The Court felt constrained, however, in the circumstances in which the case had been brought and litigated, to consider only the question whether reproduction is a major life activity. Despite arguments on behalf of Dr. Bragdon that Congress intended ADA to apply only to limitations on a person that have a public, economic, or daily character, the Court had little trouble finding reproduction was a major life activity, observing that "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself." Id. at 638.

Finally, the Court considered whether HIV infection "substantially limits" the major life activity of reproduction. The Court found that Ms. Abbott's condition substantially limited her ability to reproduce in two independent ways--by causing a significant risk that male sexual partners would be infected and by the significant risk that the disease will be transmitted to her child during pregnancy and childbirth. The Court ruled that these effects amounted to substantial limitations even though they did not make it totally impossible for a woman with HIV infection to reproduce, observing that "[t]he Act addresses substantial limitations on major life activities, not utter inabilities." Id. at 641.

In light of its conclusions regarding each of the elements of the definition, the Court affirmed the rulings of the district court and the Court of Appeals that Ms. Abbott's HIV infection was a physical impairment that substantially limited a major life activity under ADA. Having ruled that Ms. Abbott's condition met the statutory definition, the Court added that it did not need to address the question whether HIV infection is a per se disability under ADA. Designation as a per se disability means that every person who has the condition automatically meets the definition of a person with a disability and does not have to prove the effect on major life activities in her or his particular circumstances. Having announced that it was not going to reach the issue, however, the Court then devoted several pages of its opinion to a discussion of regulations, administrative interpretations, and prior court decisions supporting the Court's conclusion that "HIV infection, even in the so-called asymptomatic phase, is an impairment which substantially limits the major life activity of reproduction." Id. at 647.

The Court next turned to the other question upon which it had granted an appeal--whether the courts should defer to a health care provider's reasonable professional judgment that a procedure involves a direct threat to health or safety. The Court noted that this issue involves two separate inquiries: whether the courts should defer to Dr. Bragdon's professional judgment, and whether Dr. Bragdon's assessment of the situation was reasonable. The Court ruled that a health care professional's view regarding the existence of a direct threat is not entitled to special deference and that courts should assess the objective reasonableness of the risk based upon the objective, scientific information available to members of the profession. Therefore, Dr. Bragdon's "belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability." Id. at 649.

Regarding the reasonableness of Dr. Bragdon's belief that treating Abbott would pose a direct threat in light of the available medical evidence, the Court found the record and briefings before it to be insufficient to allow it to resolve the issue. In particular, the Court had reservations regarding the conclusiveness of the 1993 CDC Dentistry Guidelines relied on by the Court of Appeals and regarding the significance of the American Dental Association's 1991 Policy, in the absence of additional information on the manner in which the Association developed this Policy. The Court noted, however, that there was other evidence in the record that might support affirmance of the district court's ruling, but that the record did not make clear which of these pieces of evidence was based on information that was available when Dr. Bragdon refused to treat Abbott in his office in September of 1994. Because the briefs and arguments to the Supreme Court did not focus on the question of the sufficiency of all the evidence submitted by the parties to the district court on the cross motions for summary judgment, the Supreme Court felt constrained from trying to resolve such issues at this juncture. The Court concluded that the best course was to remand the case to the Court of Appeals to explore the issues more fully and to clarify the significance of the various pieces of evidence in the record. The Court noted that it was not foreclosing the possibility that the Court of Appeals would reach the same conclusion as it had earlier, and observed that there were "reasons to doubt whether [Bragdon] advanced evidence sufficient to raise a triable issue of fact on the significance of the risk." Id. at 653.

Accordingly, the Supreme Court affirmed the ruling of the Court of Appeals that Abbott's HIV infection was a disability under ADA, and remanded the case to the Court of Appeals to allow it to reconsider the evidence on the direct threat issue. The ruling of the Supreme Court was by a 5-4 margin, with Justice Kennedy delivering the majority decision in which he was joined by Justices Stevens, Souter, Ginsburg, and Breyer. In a concurring opinion, Justices Stevens and Breyer indicated that they would have preferred fully affirming the decision of the Court of Appeals and not remanding the case for further consideration of the direct threat issue. Justices Rehnquist, Scalia, Thomas, and O'Connor all concurred with the majority on the necessity of remanding the direct threat issue, but dissented from the majority on the determination that Ms. Abbott's condition constitutes a disability under ADA.

On remand, the First Circuit reconsidered its earlier summary judgment ruling on the issue of direct threat. Abbott v. Bragdon, 163 F.3d 87 (1st Cir. 1998). It first considered whether Ms. Abbott had provided adequate evidence to warrant summary judgment in her favor, and, as the Supreme Court had directed, reexamined the evidentiary impact of the CDC Guidelines and the American Dental Association Policy. The Court of Appeals found that the 1993 Guidelines were an update of earlier versions that had explicitly declared that universal precautions were effective in preventing HIV infection and made other additional precautions unnecessary. Accordingly, the court determined that the Guidelines were competent evidence that public health authorities considered treatment of the kind that Ms. Abbott needed safe if performed using universal precautions. Similarly, the First Circuit reviewed the weight to be accorded the American Dental Association Policy and considered the "cornucopia of information" it received in supplemental briefings. Id. at 89. The court concluded that the Policy had been drafted by the Association's scientific component, in contrast to ethical policies drafted by its ethics component. Thus, the Policy had an adequate scientific foundation and was appropriately relied on for summary judgment. The Court of Appeals found that the Guidelines and Policy were likely sufficient "in and of themselves," to support summary judgment, and noted that they represented "only a fraction of the proof advanced to support Ms. Abbott's motion." Id.

Having concluded upon reexamination that Ms. Abbott's evidence was sufficient to support her motion for summary judgment, the First Circuit proceeded to reconsider the evidence of direct threat offered by Dr. Bragdon. The Supreme Court had directed the Court of Appeals to reexamine a particular piece of evidence that Dr. Bragdon had offered, to the effect that CDC had identified seven "possible" cases of patient-to-dental-worker HIV transmission prior to the time that Dr. Bragdon refused to treat Ms. Abbott in his office, and to determine whether this evidence might provide sufficient proof of direct threat to avoid summary judgment on that issue. Citing articles in scientific journals published before Ms. Abbott came to Dr. Bragdon's office, the First Circuit found that the CDC's use of the word "possible" meant no more than that the CDC could not determine whether workers were infected occupationally, including the possibility that such workers had simply failed to present themselves for testing after being exposed to the virus at work. Id. at 90. The First Circuit also rejected Dr. Bragdon's attempts to extrapolate from reports of documented cases of occupational transmissions of HIV to health care workers outside the dental field, because of the absence of any showing that risks in dental and non-dental settings are comparable. Ultimately, the court found that each piece of evidence offered on behalf of Dr. Bragdon was, upon reexamination, "still 'too speculative or too tangential (or, in some instances, both) to create a genuine issue of material fact.'" Id., quoting Abbott v. Bragdon, 107 F.3d 934, 948 (1st Cir. 1997).

Based upon its review of the evidence and arguments, the First Circuit again affirmed the district court's entry of summary judgment in favor of Ms. Abbott. Dr. Bragdon filed an appeal of the decision on remand to the Supreme Court. On May 24, 1999, the Supreme Court denied his petition for certiorari. Bragdon v. Abbott, 526 U.S. 1131 (1999).

C. WRIGHT v. UNIVERSAL MARITIME SERVICE CORPORATION

Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998).

In 1992, Ceasar Wright, a longshoreman in Charleston, South Carolina, injured his heel and back while working for the Stevens Shipping and Terminal Company. Mr. Wright was a member of Local 1422 of the International Longshoreman's Association (AFL-CIO). The Stevens company was represented by the South Carolina Stevedores Association. The union and the Stevedores Association had entered into a collective bargaining agreement that established an arbitration process for addressing matters under dispute between the union local and an employer.

Mr. Wright sought compensation for his injuries from the Stevens company in the form of permanent disability under the Longshore and Harbor Workers' Compensation Act. The claim was settled for $250,000 plus $10,000 in attorney's fees. He was also able to obtain Social Security disability benefits. In 1995, Mr. Wright, cleared by his physician, returned to the hiring hall and asked for a referral for work. For nine days, in early 1995, Mr. Wright worked for four stevedore companies, without any reported complaints regarding his performance. Upon learning that Mr. Wright had previously settled a claim for permanent disability, however, the stevedore companies informed the union that they no longer would hire Mr. Wright because they regarded him as having been certified as permanently disabled and thus as no longer qualified to work as a longshoreman under the collective bargaining agreement. The union responded that the companies were misconstruing the collective bargaining agreement, that ADA entitled Mr. Wright to return to work if he could perform his duties, and that refusing him employment would constitute a "lockout" under the collective bargaining agreement. When Mr. Wright contacted the union and asked how he could get back to work in the face of the companies' refusal to accept him for employment, the union suggested that he hire an attorney and file a claim under ADA. He did so, and filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and the South Carolina State Human Affairs Commission. After receiving a "right to sue" letter from the EEOC, Mr. Wright filed suit in federal court against the Stevedores Association and six individual companies alleging that they had violated ADA by refusing him work.

The trial court dismissed Mr. Wright's case without prejudice on the ground that he had failed to pursue the arbitration procedure for resolving complaints provided by the collective bargaining agreement. Mr. Wright appealed and the Fourth Circuit affirmed.

In a unanimous opinion delivered by Justice Scalia, the Supreme Court disagreed with the rulings of the lower courts. The Court characterized the Fourth Circuit's ruling as involving two conclusions: (1) that the general arbitration provision in the collective bargaining agreement at issue in Wright was broad enough to encompass a statutory claim under ADA, and (2) that such a provision was enforceable. The Supreme Court observed that addressing the second issue would necessarily involve resolving the tension between two lines of cases. The first line of cases is represented by Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), in which the Court held that there can be no prospective waiver of an employee's right under Title VII to a judicial forum for alleged discriminatory discharge, because "there can be no prospective waiver of an employee's rights under Title VII." Id. at 51. The second line of cases is represented by Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), in which the Court ruled that a claim under the Age Discrimination in Employment Act could be subject to compulsory arbitration pursuant to a collective bargaining agreement provision. In Wright, however, the Court found it unnecessary to sort out these conflicting precedents about the validity of a union-negotiated waiver of statutory rights, because the Court found that on the facts before it no such waiver had occurred.

The Court recognized that there is "a presumption of arbitratability" in collective bargaining agreements, Wright, 525 U.S. at 78, but ruled that the presumption extends only to interpreting or applying the terms of the collective bargaining agreement. Id. Mr. Wright's cause of action, said the Court, arises not out of the labor contract but out of ADA. Id. Moreover, the Court found that any union-negotiated waiver of employees' statutory right to a judicial forum for claims of employment discrimination, if valid at all, must be "clear and unmistakable." Id. at 80. The Supreme Court could not find such a clear and unmistakable waiver in the facts before it, neither in the collective bargaining agreement nor in the Longshore Seniority Plan. Accordingly, the Court vacated the judgment of the Fourth Circuit and remanded the case for proceedings consistent with the Supreme Court's opinion.

D. CLEVELAND v. POLICY MANAGEMENT SYSTEMS CORPORATION

Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).

Carolyn Cleveland was employed by the Policy Management Systems Corporation to perform background checks on employees. In 1994, she suffered a stroke that resulted in loss of concentration, memory, and language skills. Three weeks after the stroke, Ms. Cleveland filed for Social Security Disability Insurance (SSDI) benefits with the Social Security Administration (SSA); in her application she stated that she was "disabled" and "unable to work." About three months later, Ms. Cleveland's condition had improved and she returned to work. She notified SSA that she had returned to work, and, noting that fact, the SSA denied her SSDI application. Three months after Ms. Cleveland returned to work, Policy Management Systems fired her. She thereafter asked SSA to reconsider its denial of her SSDI application, and stated that she had been terminated due to her condition and that she had "not been able to work since." Later, in SSA administrative proceedings, Ms. Cleveland declared, "I am unable to work due to my disability." In September, 1995, Ms. Cleveland filed an ADA lawsuit against Policy Management Systems alleging that the company had terminated her employment without reasonably accommodating her disability. A week after she filed her ADA suit, the SSA awarded her SSDI benefits retroactive to the day of her stroke.

The district court did not consider Ms. Cleveland's ADA reasonable accommodation claim on the merits; instead, it granted summary judgment to the defendant. The district court viewed Ms. Cleveland's applying for and receiving disability benefits as a concession on her part that she was totally disabled. And the court considered that fact as estopping her from proving an essential element of her ADA claim--that she could "perform the essential functions" of the job. 42 U.S.C. § 12111(8).

The Fifth Circuit affirmed the trial court's grant of summary judgment. It reasoned that the application for or receipt of social security disability payments creates a rebuttable presumption that the individual is estopped from asserting that she or he is "qualified" under ADA. The Fifth Circuit indicated that the situations in which the presumption might be rebutted was "theoretically conceivable" and would involve "some limited and highly unusual set of circumstances." Cleveland v. Policy Management Systems Corp., 120 F.3d 513, 517 (5th Cir. 1997). In Ms. Cleveland's case, however, the Court of Appeals felt that because she had consistently represented to the SSA that she was totally disabled, she was judicially estopped from asserting that she was a qualified individual with a disability.

The Supreme Court noted that there was disagreement among the circuit courts about the legal effect upon an ADA suit of the application for and receipt of disability benefits. 526 U.S. at 800. The Court explained that it had granted certiorari in the Cleveland case in an effort to settle this disagreement among the circuit courts. In a unanimous decision delivered by Justice Breyer, the Court vacated the Fifth Circuit's decision and remanded the case for further proceedings.

The Court observed that a representation that one has a total disability in seeking social security disability benefits often implies "a context-related legal conclusion, namely, 'I am disabled for purposes of the Social Security Act.'" Id. at 802. The Court distinguished this type of statement from statements about purely factual matters, regarding which a person might be estopped from later contradicting in legal proceedings. The Court characterized the Fifth Circuit as having applied "a special judicial presumption" to prevent Ms. Cleveland from asserting what the Court of Appeals viewed as "two directly conflicting propositions, namely, 'I am too disabled to work' and 'I am not too disabled to work.'" Id. In the Supreme Court's view, however, ADA suits and disability benefits claims do not inherently conflict to the point that courts should apply such a special negative presumption. This is because "there are too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side." Id. at 802-03.

The Court identified five different rationales for claimants' making legitimate representations of total disability in seeking disability benefits while simultaneously pursuing ADA claims. One such rationale, applicable in Ms. Cleveland's case, is that the Social Security Act does not take into account the possibility of reasonable accommodation, while this is an express statutory right under ADA. An allegation in an ADA suit that the plaintiff can perform her job with reasonable accommodation may, therefore, be consistent with an SSDI claim that the plaintiff could not perform her job or other jobs without such accommodation. Second, the Court found that the Social Security Administration administers the SSDI through a five-step procedure that embodies a set of presumptions that grow out of administrative efficiency in managing the program rather than accounting for the details of each individual's ability to perform particular jobs. One of the steps in the SSDI procedure (accounting for about 60 percent of SSDI awards) merely compares the applicant's condition with a list of impairments and automatically, without any additional evidence, accepts individuals with one of the listed conditions as permanently disabled and entitled to disability benefits. Thus, a person can qualify for SSDI and still be able to perform the essential function of her or his job. Third, the Court observed that the Social Security Administration sometimes grants benefits to people who are employed, including under trial work programs; under some such programs, individuals can continue to receive benefits for up to 24 months, despite working at a job. Fourth, the Court noted that the nature of a person's disability can change over time, so that a statement about disability at the time of applying for SSDI benefits may not reflect the person's capacities at the time of the employment decision subject to an ADA complaint. Fifth, the Court declared that for individuals who have applied for but not yet been awarded disability benefits, the inconsistency in statements in SSDI and ADA claims is of the type normally permitted in our legal system under the theory that parties are allowed to assert legal theories whether or not they are consistent. The Court quoted Federal Rule of Civil Procedure 8(a)(e) which permits parties to "set forth two or more statements of a claim or defense alternately or hypothetically," and to "state as many separate claims or defenses as the party has regardless of consistency." Id. at 805.

In light of these examples, the Court found it inappropriate to apply a special legal presumption that would permit applicants for or recipients of SSDI benefits to pursue ADA claims only in "some limited and highly unusual set of circumstances." Id., quoting 120 F.3d at 517. The proper standard, the Supreme Court ruled, is to require an ADA plaintiff not to rebut a presumption of estoppel but instead only to "proffer a sufficient explanation" of the apparent contradiction that arises out of an earlier SSDI total disability assertion. 526 U.S. at 806. To defeat summary judgment, a plaintiff must offer an explanation that would permit a reasonable conclusion that, assuming the earlier assertion was true or asserted by the plaintiff in good faith, the plaintiff would nonetheless be able to perform the essential functions of the job. The Court found that Ms. Cleveland had explained the discrepancy between her SSDI assertions and her ADA allegations by stating that the SSDI statements were made in a forum where reasonable accommodations were not considered, and that her SSDI statements were accurate if examined in the time period in which they were made. Accordingly, the Court vacated the judgment of the Fifth Circuit and remanded the case to permit the parties to present or contest these explanations before the trial court.

E. SUTTON v. UNITED AIRLINES

Sutton v. United Airlines, 527 U.S. 471 (1999).

In 1992, twin sisters, Karen Sutton and Kimberly Hinton, applied to United Airlines for jobs as commercial airline pilots. They met United's basic age, education, and experience requirements, and had obtained the appropriate Federal Aviation Administration pilot certifications. Both of the women, however, were severely nearsighted (myopic). Their visual acuity tested at 20/200 or worse in the right eye and 20/400 or worse in the left eye without corrective lenses; with lenses, their visual acuity improved to 20/20 or better. With glasses or contact lenses, therefore, their vision was functionally the same as people without myopia, but without glasses or contacts, they could not see well enough to drive or watch television. After United received their applications for employment, it invited the sisters to an interview and flight simulator tests. During their interviews, however, United informed each of the women that a mistake had been made in inviting her to interview because she did not meet United's minimum vision requirement of uncorrected visual acuity of 20/100 or better. At that point, United terminated the job interviews.

After pursuing complaint procedures with the Equal Employment Opportunity Commission (EEOC), the sisters filed an ADA suit in federal court alleging that United Airlines had violated ADA by discriminating against them on the basis of their disability, or, alternatively, that United discriminated against them because it regarded them as having a disability. The federal district court dismissed their complaint for failure to state a claim upon which relief could be granted, on the grounds that they had not shown that they had a disability under ADA, and the Court of Appeals for the Tenth Circuit affirmed the district court's judgment. Sutton v. United Airlines, 130 F.3d 893 (10th Cir. 1997). Both of the lower courts ruled that the sisters were not actually substantially limited in any major life activity because they could fully correct their visual impairments. The courts also determined that they had not made allegations sufficient to support their claim that they were "regarded" by United as having an impairment that substantially limits a major life activity, as they had alleged only that United regarded them as unable to satisfy the requirements of a particular job, global airline pilot, and not that it regarded them as foreclosed more generally in the activity of employment.

The Supreme Court noted that the Tenth Circuit's ruling that the determination of disability should take mitigating measures into account was "in tension with the decisions of other Courts of Appeals." Sutton, 527 U.S. at 477. The Court, however, affirmed the decision of the Tenth Circuit in Sutton, by a vote of 7 to 2, with Justice O'Connor writing the Court's opinion for the majority. The Supreme Court began its analysis of the case with the definition of disability in ADA:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment. 42 U.S.C. § 12102(2).

"Accordingly," the Court observed, "to fall within this definition one must have an actual disability (subsection (A)), have a record of a disability (subsection (B)), or be regarded as having one (subsection (C))." 527 U.S. at 478.

ADA gives the EEOC the responsibility for issuing regulations to carry out the employment requirements found in Title I of ADA. Id., § 12116. Because the definitions section of ADA precedes the substantive Titles (I-V) of ADA, the Court suggested that "no agency has been delegated authority to interpret the term 'disability.'" 527 U.S. at 479. However, because both parties in Sutton accepted the EEOC regulations defining "disability" as valid, and because the Court determined that the validity of the regulations was not necessary to decide the case, it declined to determine what deference, if any, should be accorded these regulations. The Court also noted that EEOC had issued an "Interpretive Guidance" providing that "[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." 29 C.F.R. pt.1630, App. § 1630.2(j) (1998) (describing § 1630.2(j)). The Court again declined to determine how much deference was due to the Interpretive Guidance, but in this instance did so because it found that EEOC's position on mitigating measures was "an impermissible interpretation of ADA." 527 U.S. at 482.

The Court viewed three provisions of ADA as supporting the conclusion that mitigating measures should be considered when determining whether a disability exists. First, because the phrase "substantially limits" appears in the present tense in ADA definition of disability, the Court construed it as requiring a present substantial limitation, not a potential or hypothetical one: "A 'disability' exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if mitigating measures were not taken." Id. Second, the Court noted that the definition of disability under ADA requires an individualized inquiry, while evaluating impairments in their uncorrected or unmitigated state would, in the Court's view, require courts and employers to speculate about a person's condition and to make determinations based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual's actual condition. This "would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals." Id. at 483-84. The Court added that the failure to focus on individualized circumstances of actual impairment would mean courts and employers could not consider negative side effects of mitigating measures on a particular individual, even if those side effects were very severe.

Finally, the Court relied heavily on the statement in ADA findings that "some 43,000,000 Americans have one or more physical or mental disabilities," 42 U.S.C. § 12101(a)(1), and concluded that the finding means that Congress did not intend to have ADA protect all individuals whose uncorrected conditions amount to disabilities. The Court noted that the version of ADA introduced in Congress in 1988 had included a figure of 36 million persons with disabilities, an estimate drawn from the NCD's report Toward Independence (1986). NCD had declared that 35 or 36 million was "the most commonly quoted estimate" of the number of people with disabilities in the United States, and had contrasted it with a "health conditions approach" that looks at all conditions that impair the health or normal functional abilities of an individual and a "work disability" approach that focuses on individuals self-reporting of limitations on their ability to work. Id. at 3. The Supreme Court concluded that the 36 million figure more closely reflects a work disabilities approach than the health conditions approach to defining disability. NCD's 1988 report On the Threshold of Independence had quoted a Census Bureau study finding that 37.3 million individuals have difficulty performing one or more basic physical activities such as seeing, hearing, speaking, walking, using stairs, lifting or carrying, getting around outside, getting around inside, and getting into or out of bed. Id. at 9. The Court speculated that the 43 million figure included in the 1989 versions of ADA legislation may have resulted from "an effort to include in the findings those who were excluded from the National Council figure." 527 U.S. at 486.

Regardless of the exact source of the 43 million figure, however, the Court found that it could not include persons whose impairments are corrected by medication or other devices. The Court reasoned that the magnitude of the figure aligned it with estimates of disability based on what the Court called "a functional approach to determining disability" as opposed to "nonfunctional approaches to defining disability" that produce significantly larger numbers. Id. at 486-87. Thus, the Court declared, "had Congress intended to include all persons with corrected physical limitations among those covered by the Act, it undoubtedly would have cited a much higher number of disabled persons in the findings." Id. at 487. The Court recognized that people who make use of corrective devices may still have a disability because the device does not correct the condition sufficiently to prevent a substantial limitation on a major life activity. Moreover, an individual whose impairment is effectively corrected may nonetheless be regarded as disabled by a covered entity, and thus disabled under subsection (C)--the "regarded as" prong--of the definition. But such persons, ruled the Court, do not have an impairment that is actually substantially limiting.

Having decided that determinations of disability under ADA are to take corrective measures into account, the Supreme Court agreed with the lower courts that Karen Sutton and Kimberly Hinton had not stated a valid claim that they were substantially limited in any major life activity.

The remaining question was whether the sisters had stated a valid claim that they were "regarded as" having a disability within the meaning of subsection (C) of the definition of disability in ADA. 42 U.S.C. § 12102(2)(C). The Court suggested that there are two apparent ways in which individuals may be "regarded as" having a disability: (1) a covered entity may mistakenly believe that a person has an impairment that substantially limits a major life activity, or (2) a covered entity may mistakenly believe that an actual, nonlimiting impairment substantially limits a major life activity. Both situations entail a covered entity entertaining misperceptions, either that there is a substantially limiting impairment when there is not or that an impairment is substantially limiting, when in fact it is not. Such misperceptions, the Court noted, often result from stereotypic assumptions not truly indicative of individual ability.

There was no dispute in Sutton that the plaintiff sisters had a physical impairment, and they contended that United Airlines mistakenly believed their impairment substantially limited them in the major life activity of working and that it had a vision requirement based on myth and stereotype. The Court ruled, however, that United's having a vision requirement did not establish that it regarded the sisters as substantially limited in the major life activity of working. The Court interpreted ADA as allowing employers to prefer some physical attributes over others and to establish physical criteria, so long as the employer does not make an employment decision based on a physical or mental impairment, real or imagined, that the employer regards as substantially limiting a major life activity. Consistent with EEOC regulations, the Court held that when the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires, "at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs." 527 U.S. at 491; see 29 C.F.R. § 1630.2(j)(3)(i).

The Supreme Court suggested that there may be "some conceptual difficulty" in ADA's inclusion of working as a major life activity (a difficulty the Court illuminates by quoting a somewhat confused statement of the Solicitor General of the United States during oral argument in a Section 504 case, School Bd. of Nassau Co. v. Arline), but the Court found it unnecessary to determine the validity of the relevant EEOC regulations because the parties in Sutton accepted that "major life activities" includes working. 527 U.S. at 492. In these circumstances, the Court assumed without deciding that working is a major life activity and that the EEOC regulations interpreting the term "substantially limits" are reasonable. Accordingly, for purposes of this case, the Court accepted and applied the EEOC regulatory declaration that "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i) (1998). The Court found that the plaintiff sisters' allegation that United regarded their poor vision as precluding them from positions as a "global airline pilot" was not sufficient to support the claim that United regarded them as having a substantially limiting impairment. The Court indicated that a number of other positions utilizing the sisters' skills, such as regional pilot and pilot instructor, were available to them, and quoted from a statement in the EEOC's Interpretive Guidance that "an individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be a commercial airline co-pilot or a pilot for a courier service, would not be substantially limited in the major life activity of working." 527 U.S. at 493, quoting 29 C.F.R. pt. 1630, App. § 1630.2 (1998).

Because the Court found that Karen Sutton and Kimberly Hinton had not claimed that United's vision requirement reflected a belief that their vision substantially limits them, the Supreme Court agreed with, and affirmed, the decision of the Court of Appeals affirming the dismissal of their claim that they were regarded as having a disability.

Justice Ginsburg filed a concurring opinion in which she agreed with the majority that the actual disability prong of ADA definition of disability "does not reach the legions of people with correctable disabilities." 527 U.S. at 494. She explained that she found the "strongest clues" to congressional intent on this issue in the 43 million figure and the finding that "individuals with disabilities are a discrete and insular minority who have been ... subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society." 42 U.S.C. § 12101(a)(7). She believed that these declarations are inconsistent with "the enormously embracing definition of disability" that would result from including correctable conditions. 527 U.S. at 494.

Justices Stevens and Breyer dissented. Justice Stevens, in an opinion joined by Justice Breyer, wrote that the application of customary tools of statutory construction make it "quite clear" that the existence of disability should focus on an individual's condition "without regard to mitigation that has resulted from rehabilitation, self-improvement, prosthetic devices, or medication." Id. at 495. He noted that this was the view of eight of the nine circuit courts to address the issue, and of all three of the executive agencies that had issued regulations or interpretive bulletins construing ADA definition. Examining the text of ADA definition of disability, Justice Stevens argued that the three parts of the definition do not identify mutually exclusive, discrete categories, but, rather, furnish three overlapping formulas aimed at ensuring that individuals who now have, or ever had, a substantially limiting impairment are protected. He cites the example of a person who has lost a limb, but who, with prostheses, can perform all major life activities. Under the majority's reasoning, he argues, persons with such conditions would not be disabled under ADA, though he believes the sweep of the three-pronged definition makes it clear that Congress intended the Act to cover such persons.

In Justice Stevens' view, the three parts of the definition should be read together not to focus solely on current functional limitations, but instead to inquire whether any present or past impairment substantially limits, or did limit, the individual's performance of major life activities. Such a reading would avoid "the counterintuitive conclusion that ADA's safeguards vanish when individuals make themselves more employable by ascertaining ways to overcome their physical or mental limitations." Id. at 499. Justice Stevens contended that any ambiguity about this conclusion is removed by looking at ADA's legislative history, and he quoted from several statements in ADA committee reports indicating that determinations of disability should be made without regard to mitigating measures. He noted that the EEOC, the Department of Justice, and the Department of Transportation had all reached the same conclusion.

Justice Stevens clarified that the question raised in the Sutton appeal was not whether the sisters were qualified to be pilots, nor whether their condition might endanger passengers and crew, but only the threshold question whether they are protected by ADA. He believed it was "quite wrong" for the majority to restrict the coverage of the Act, when remedial legislation such as ADA should be construed broadly to effectuate its purposes. Id. at 504. He considered it appropriate to require United to clarify why having, for example, 20/100 uncorrected vision or better is a valid job requirement. He noted that the sisters' condition of having 20/200 vision in the better eye is a significant hindrance that precludes a person from driving, shopping in a public store, or viewing a computer screen from a reasonable distance. To the fear that considering as "disabilities" impairments that may be mitigated by measures as ordinary and expedient as wearing eyeglasses might cause a flood of litigation, Justice Stevens responded that whether or not workers wear glasses is a matter of complete indifference to most employers and thus will not give rise to legal actions. Moreover, he pointed out that all individuals can already file employment discrimination claims based on their race, sex, or religion, and--provided they are at least 40 years old--their age, and yet this has never been found to be a reason to restrict classes of antidiscrimination coverage. To the extent that the Court is concerned that employers will be required to answer in litigation for every employment practice that draws distinctions based on physical attributes, Justice Stevens suggested that such problems should be addressed in the context of employers' affirmative defenses, not of the scope of applicants or employees protected by the Act.

Justice Stevens contended that, in the end, the majority is "left only with its tenacious grip on Congress' finding that 'some 43,000,000 Americans have one or more physical or mental disabilities.'" Id. at 511. He argued that the majority's interpretation of this figure will have "the perverse effect of denying coverage for a sizeable portion of the core group of 43 million." Id. at 512. And he asserted that 43 million cannot be a fixed cap, since Congress included the "record of" and "regarded as" categories in the definition, with the expectation that the Act would protect individuals who do not have "actual" disabilities and therefore are not counted in the number.

While joining in Justice Stevens' dissenting opinion, Justice Breyer wrote separately to suggest that if the broad interpretation of the definition of disability led to too many lawsuits that ultimately proved without merit or drew time and attention away from those whom Congress clearly sought to protect, the EEOC could remedy this problem through regulations drawing finer definitional lines, thereby preventing the overly broad extension of the statute that the majority feared.

F. MURPHY v. UNITED PARCEL SERVICE

Murphy v. United Parcel Service, 527 U.S. 516 (1999).

In August, 1994, United Parcel Service (UPS) hired Vaughn L. Murphy as a mechanic. The job required Mr. Murphy to drive commercial motor vehicles. The Department of Transportation (DOT) has established health requirements for drivers of commercial vehicles. See 49 C.F.R. § 391.41(a) (1998). Among other requirements, the DOT regulations mandate that the driver of a commercial motor vehicle in interstate commerce have "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." Id., § 391.41(b)(6). Mr. Murphy had a history of hypertension (high blood pressure) dating from an initial diagnosis when he was 10 years old. With medication, however, Mr. Murphy's condition was controlled so that he could function normally without any significant restrictions on his activities, except that he was restricted from lifting heavy objects. At the time UPS hired him, Mr. Murphy's blood pressure was too high for Mr. Murphy to qualify for DOT health certification, but, due to an error, he was erroneously granted certification and started working for UPS. About a month later, a UPS medical supervisor discovered the error while reviewing Murphy's medical files and requested that he have his blood pressure retested. Upon retesting, Murphy's blood pressure, at 160/102 and 164/104, was not low enough to qualify him for the 1 year certification that he had incorrectly been issued, but it was sufficient to qualify him for an optional temporary DOT health certification. UPS fired Mr. Murphy because it believed that his blood pressure exceeded DOT's requirement, and UPS did not allow him to attempt to obtain the optional temporary certification.

Mr. Murphy filed suit against UPS under Title I of ADA. The federal district court granted UPS's motion for summary judgment on the grounds that Mr. Murphy was neither "disabled" nor "regarded as" disabled under ADA. 946 F.Supp., at 881-82. The Court of Appeals for the Tenth Circuit affirmed the district court's judgment. Both the district court and the Court of Appeals declared that the determination whether Mr. Murphy had a disability should be based on an evaluation of his condition in its medicated state, and both found that when he was under medication Mr. Murphy functioned normally.

By a vote of 7 to 2, the Supreme Court affirmed the decisions of the lower courts, largely based on the decision it issued on the same day in Sutton v. United Airlines, 527 U.S. 471 (1999). The first question the Court addressed in Murphy was whether the determination of disability should be made with reference to the mitigating measures Mr. Murphy employed, a question that it had already answered in the affirmative in Sutton. The Court of Appeals had concluded that, when medicated, Mr. Murphy's high blood pressure did not substantially limit him in any major life activity, a conclusion that Mr. Murphy had not challenged on appeal. Therefore, the Supreme Court ruled that the grant of summary judgment in UPS's favor on the claim that Mr. Murphy was substantially limited in one or more major life activities, and thus disabled under ADA, was correct.

The other issue the Supreme Court considered was whether UPS had regarded Mr. Murphy as having a disability. Mr. Murphy argued that UPS regarded his hypertension as substantially limiting him in the major life activity of working, even though in fact it did not. The Court viewed this issue as again having been largely resolved by its opinion in Sutton. As in Sutton, the Court assumed for the purposes of argument that the Equal Employment Opportunity Commission (EEOC) regulations regarding the disability determination are valid, and quoted the EEOC definition of "substantially limits" in regard to the major life activity of working: "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i) (1998). The Court also noted EEOC's clarification that "[T]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. Applying these standards, the Court found that evidence that UPS regarded Mr. Murphy as unable to meet the DOT regulations was not sufficient to create a genuine issue as to whether he was regarded as unable to perform a class of jobs utilizing his skills. At most, Mr. Murphy was regarded as unable to perform the job of mechanic only when that job required driving a commercial motor vehicle, and otherwise was generally employable as a mechanic. Consequently, the Court found that Mr. Murphy had failed to show that he was regarded as unable to perform a class of jobs, but had demonstrated only that he was regarded as unable to perform a particular job. The Supreme Court found this evidence insufficient, as a matter of law, to prove that he was regarded as substantially limited in the major life activity of working.

Justice Stevens, joined by Justice Breyer, dissented from the Court's decision, for reasons he had explained in his dissenting opinion in Sutton v. United Airlines, 527 U.S. at 495. In his view, Mr. Murphy had a "disability" under ADA because his hypertension--in its unmedicated state--"substantially limited" his ability to perform several major life activities, and would likely cause him to be hospitalized if he was not medicated. Indeed, Justice Stevens viewed Mr. Murphy's situation even more clearcut than that considered in Sutton: "Severe hypertension," in his view, "easily falls within ADA's nucleus of covered impairments." 527 U.S. at 525.

G. ALBERTSON'S, INC. v. KIRKINGBURG

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999).

In August 1990, Albertson's, Inc., a grocery-store chain, hired Hallie Kirkingburg as a truckdriver to be based at its warehouse in Portland, Oregon. Mr. Kirkingburg had more than ten years driving experience and Albertson's' transportation manager found that he performed well on a road test. Mr. Kirkingburg had an uncorrectable vision condition (amblyopia), that involves weakened vision in one eye--20/200 vision in the left eye in Kirkingburg's case--so that the individual in effect sees only with the other eye. When a person uses only one eye to see, the condition is referred to as "monocular" vision. Before he started working, Albertson's required Kirkingburg to be examined by a doctor to see if he met federal standards for commercial truckdrivers. These standards, issued by the United States Department of Transportation (DOT), include a "basic vision" requirement that corrected distant visual acuity be at least 20/40 in each eye and distant binocular (two-eye) acuity be at least 20/40. Despite Kirkingburg's weak left eye, the doctor who examined him certified, erroneously, that he met the DOT basic vision standard.

In December 1991, Kirkingburg took a leave of absence after injuring himself on the job. Albertson's required returning employees to undergo a physical examination, so, in November 1992, Kirkingburg went for a physical. This time, the examining physician correctly assessed Kirkingburg's vision and found that his eyesight did not meet the basic DOT standards. Either the physician, or his nurse, told Kirkingburg that he would have to obtain a waiver of the basic vision standards. DOT had a process for giving certification to applicants who had three years of recent experience driving a commercial vehicle with a clean driving record (as defined by DOT). A waiver applicant had to agree to have his or her vision checked annually, and to submit reports regarding his or her driving experience to DOT's Federal Highway Administration. Mr. Kirkingburg applied for a waiver, but while his application was pending, Albertson's fired him from his job as truckdriver because he could not meet the basic DOT vision standard. Ultimately, Mr. Kirkingburg received a DOT waiver, but Albertson's refused to rehire him. Mr. Kirkingburg brought suit alleging that Albertson's violated ADA by firing him.

The district court granted summary judgment for Albertson's, ruling that the company had reasonably concluded that Mr. Kirkingburg was not qualified without an accommodation because he could not meet the basic DOT vision standards, and that Albertson's was not required, as a reasonable accommodation, to give him time to get a DOT waiver. The Court of Appeals for the Ninth Circuit reversed the district court's decision. The Court of Appeals held that Albertson's could not use the DOT vision standard as the justification for its vision requirement and yet disregard the waiver program which was a legitimate part of the DOT program. Albertson's argued for the first time before the Ninth Circuit that it was entitled to summary judgment because Mr. Kirkingburg did not have a disability within the meaning of ADA. The Court of Appeals rejected this contention because it concluded that Mr. Kirkingburg had presented evidence that his vision was effectively monocular, and thus that the manner in which he sees differs significantly from the manner in which most people see.

The Supreme Court granted review of both the question whether Mr. Kirkingburg had a disability and whether he was qualified. In a unanimous ruling, the Court reversed the judgment of the Ninth Circuit. Because the Supreme Court decided that Kirkingburg was not "qualified" under ADA, the Court did not have to resolve the issue of whether he was an individual with a disability. The Court decided to address the issue of standards for determining the existence of disability, however, because of what it called "three missteps the Ninth Circuit made" in its discussion of the issue. 527 U.S. at 562. Although Mr. Kirkingburg had originally alleged both that he had a disability and that Albertson's had regarded him as having a disability, the Supreme Court discussed only the issue of actual disability, because Kirkingburg did not raise the "regarded as" issue in his petition to the Supreme Court. In assessing whether Mr. Kirkingburg's vision impairment substantially limited the major life activity of seeing, the Court considered the Ninth Circuit as having been "too quick to find a disability." Id. at 564. The Supreme Court ruled that the Court of Appeals had accepted as sufficient to establish disability Mr. Kirkingburg's evidence that the manner in which he sees differs significantly from the manner in which most people see. In the Supreme Court's view, the Ninth Circuit had accepted a mere difference in manner instead of requiring a showing of significant restriction in order to establish substantial limitation.

Second, the Court found that the Ninth Circuit had not taken sufficient account of evidence that Mr. Kirkingburg had developed subconscious mechanisms for compensating and coping with his visual impairment, suggesting that the Court of Appeals believed that in gauging whether an individual has a disability a court need not consider the individual's ability to compensate for the impairment. The Supreme Court found this approach to be inconsistent with its ruling in Sutton v. United Airlines, supra, that mitigating measures must be taken into account in judging whether an individual has a disability, and the Court saw no "basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems." 527 U.S. at 565-66.

Third, the Court observed that the Ninth Circuit did not sufficiently heed the statutory obligation to determine the existence of disabilities on a case-by-case basis. While recognizing that there may be some impairments that invariably cause a substantial limitation of a major life activity, the Court did not consider monocularity to be such a condition, because people with monocularity may have variations in the degree of visual acuity in the weaker eye, in the age at which they suffered their vision loss, in the extent of their compensating adjustments in visual techniques, and in the ultimate scope of the restrictions on their visual abilities. The Court of Appeals did not identify the degree of loss suffered by Mr. Kirkingburg, and the Supreme Court could find no evidence in the record specifying the extent of his visual restrictions. The Court declared that it was not suggesting that monocular individuals have an onerous burden in trying to show that they have a disability; indeed, it recognized that "people with monocular vision 'ordinarily' will meet the Act's definition of disability." Id. at 567. But it held that, as with other persons who seek ADA's protection, individuals with monocular vision must offer evidence that the extent of the limitation, as in loss of depth perception and visual field, is substantial in their personal situation.

The Court then turned to Albertson's' primary contention--that Mr. Kirkingburg was not qualified. Mr. Kirkingburg and the United States argued that in applying a qualification standard, grounded in safety concerns, that screens out applicants with a disability, Albertson's was required to demonstrate that the standard was "job-related and consistent with business necessity, and ... performance cannot be accomplished by reasonable accommodation ....," and that the standard was necessary to prevent "a direct threat to the health or safety of other individuals in the workplace," 42 U.S.C. § 12113(a), 12113(b).

The Court found it significant that Albertson's was applying a job qualification imposed upon it by federal law rather than a criterion it had devised. The Court declared that Albertson's had both a "right" and an "unconditional obligation" to follow the DOT commercial truckdriver regulations. Id. at 570. The Court of Appeals had considered the regulatory provisions for the waiver program in conjunction with the basic visual acuity provision. The Supreme Court ruled, however, that the regulations establishing the waiver program did not modify the general visual acuity standards, and that DOT had no evidentiary basis for concluding that the pre-existing standards could be lowered consistent with public safety. The Court found that DOT had developed the waiver scheme as a means of obtaining data to be considered in exploring whether the existing vision standards should be revised. As DOT was giving waivers solely to collect information, "[t]he waiver program was simply an experiment with safety" and did not purport to modify the substantive content of the general acuity regulation.

The Court ruled that the DOT regulation does not require employers of commercial drivers to participate in the waiver program, so that Albertson's was free to decline to do so unless ADA is "read to require such an employer to defend a decision to decline the experiment." Id. at 577. In the Court's view, such an interpretation would require employers to justify a safety regulation issued by the Government, to "reinvent the Government's own wheel," on a case-by-case basis. Id. As Congress had enacted ADA before there was any waiver program, the Court ruled that it was not credible that Congress intended that employers choosing to abide by the DOT's visual acuity regulation would be required to defend the regulation's application in the face of an experimental waiver program. Accordingly, the Court reversed the judgment of the Ninth Circuit.

Justice Thomas wrote a concurring opinion. While agreeing with the majority that Albertson's was legally entitled to apply the DOT visual acuity standard, he wished to add that the regulation applied to Mr. Kirkingburg as well as to Albertson's and it operated to render him not qualified to be a commercial truckdriver as a matter of law. He added that requiring Albertson's to permit Mr. Kirkingburg to obtain a waiver as an accommodation would have been "unreasonable." Id. at 580. Justices Stevens and Breyer did not join in the portion of the Court's opinion (part II) that discussed the definition of disability and the standards for determining whether Mr. Kirkingburg's condition qualified as a disability. Their reasons for not joining that part of the opinion presumably were related to their rationale for dissenting in the Sutton and Murphy cases, but they did not write separately in Kirkingburg to explain their thinking.

H. OLMSTEAD v. L.C.

Olmstead v. L.C., 527 U.S. 581 (1999).

In 1992, L.C., a woman with mental retardation and diagnosed as having schizophrenia, was voluntarily admitted to the Georgia Regional Hospital at Atlanta (GRHA), a state psychiatric hospital. A year later, L.C.'s treatment team at the hospital determined that her psychiatric condition had stabilized, and that her needs could be met appropriately in one of the community-based programs supported by the State of Georgia. This evaluation did not result, however, in any change in her placement. In 1995, L.C. filed suit in federal court against the hospital's superintendent, the Commissioner of the Georgia Department of Human Resources, and the executive director of a county regional board, challenging L.C.'s continued confinement in a segregated environment. She alleged that the failure to place her in a community-based program, once her treating professionals determined that such placement was appropriate, violated Title II of ADA. To remedy this ADA violation, L.C. asked that the State place her in a community care residential program, and provide her treatment with the ultimate goal of integrating her into the mainstream of society. In January 1996, E.W., a woman with mental retardation and diagnosed as having a personality disorder, entered the case as an additional plaintiff. She had been voluntarily admitted to GRHA in February 1995, and remained there even after her treating psychiatrist concluded that she could be treated appropriately in a community-based setting.

While the lawsuit and appeals were still pending, both women were eventually transferred to community-based treatment programs. The courts elected, however, to decide the issues raised in the case, because multiple institutional placements was a problem that is "capable of repetition, yet evading review"--an exception to the situations in which courts dismiss cases as "moot." The State could keep such an issue from ever being resolved by the courts by simply transferring the plaintiffs to community-based facilities whenever such a lawsuit is filed, so courts are authorized to decide such issues despite the subsequent changes in placement.

The district court granted partial summary judgment in favor of L.C. and E.W., ruling that the State's failure to place the two women in an appropriate community-based treatment program violated Title II of ADA. The district court rejected the State's argument that inadequate funding, not discrimination against L.C. and E.W. by reason of their disabilities, accounted for their retention at GRHA. The district court ruled that under Title II unnecessary institutional segregation of individuals with disabilities constitutes discrimination per se, that cannot be justified by a lack of funding. The district court also rejected the State's contention that requiring immediate transfers in cases of this type would "fundamentally alter" the State's activity, a defense to obligations imposed under Title II. The court observed that existing state programs provided community-based treatment of the kind for which L.C. and E.W. qualified, and community-based service programs would cost considerably less than maintaining them in an institution.

The Court of Appeals for the Eleventh Circuit affirmed the judgment of the district court, but remanded for reassessment of the State's cost-based defense. The appeals court directed the lower court to consider "whether the additional expenditures necessary to treat L.C. and E.W. in community-based care would be unreasonable given the demands of the State's mental health budget." 138 F.3d at 905.

The Supreme Court viewed the central issue in the case as whether the prohibition of discrimination in ADA may require placement of persons with mental disabilities in community settings rather than in institutions. The Court's answer was "a qualified yes." 527 U.S. at 587. Six Justices agreed that Title II's integration provision requires states to place individuals with mental disabilities in community-based facilities in some circumstances. No single opinion in its entirety, however, garnered the votes of a majority. Justice Ginsburg delivered the judgment of the Court, and authored the opinion of the Court in three of its parts, in which she was joined by Justices Stevens, O'Connor, Souter, and Breyer. The fourth part of Justice Ginsburg's opinion, dealing primarily with the fundamental alteration defense, garnered only four votes, as Justice Stevens did not join. Justice Kennedy did not agree to join in any part of Justice Ginsburg's opinion, but concurred in the judgment of the Court; essentially this means that he agreed with the result but not the reasoning of the majority. Justice Thomas wrote a dissenting opinion in which he was joined by Chief Justice Rehnquist and Justice Scalia.

Justice Ginsburg began her opinion for the Court on the issue of the integration requirement's application to institutionalization by noting that "the opening provisions of ADA" contain findings that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem"; "discrimination against individuals with disabilities persists in such critical areas as ... institutionalization"; and "individuals with disabilities continually encounter various forms of discrimination, including ... segregation ...." Id. at 588-89, quoting 42 U.S.C. § 12101(a)(2), (3), (5). The Court declared that ADA was the first statute in which Congress referred expressly to segregation of persons with disabilities as a form of discrimination and to discrimination in the area of institutionalization. 527 U.S. at 589 n. 1.

The Court noted that in authorizing the Attorney General to issue regulations to implement Title II, ADA directed that such regulations were to be consistent with the coordination regulations under Section 504 of the Rehabilitation Act applicable to recipients of federal financial assistance. One provision of the coordination regulations requires recipients of federal funds to administer programs and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities. 28 C.F.R. § 41.51(d) (1998). Accordingly, in issuing ADA Title II regulations, the Attorney General included a provision that the Supreme Court referred to as the "integration regulation." It states: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d) (1998). The preamble to the Title II regulations elaborates that "the most integrated setting appropriate" means "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. pt. 35, App. A, p. 450 (1998). The Court also noted that another provision of the Title II regulations requires public entities to make "reasonable modifications" to avoid discriminating on the basis of disability, unless the public entity can show that the modifications would "fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7) (1998). The Court viewed the Attorney General's Title II regulations as reflecting "two key determinations"--(1) that unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination based on disability prohibited by Title II; and (2) that the states' obligation to avoid unjustified isolation of individuals with disabilities does not require states to make modifications that would involve a fundamental alteration. 527 U.S. at 596-97. The issue before the Court was whether the Attorney General was correct in these "key determinations," and, if so, whether the Eleventh Circuit had applied them correctly.

The state officials had argued that L.C. and E.W. were not subjected to discrimination "by reason of" their disabilities because they were not denied community placement on account of those disabilities, and they could not identify any similarly situated individuals given preferential treatment. The Court responded: "We are satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in ADA." Id. at 598. Comparing ADA with prior statutes such as the Developmentally Disabled Assistance and Bill of Rights Act of 1975 and Section 504 of the Rehabilitation Act, the Court viewed ADA as having "stepped up earlier measures to secure opportunities for people with developmental disabilities to enjoy the benefits of community living." Id. at 599. Relying on ADA "Findings" quoted above, the Court ruled that in ADA Congress not only required all public entities to refrain from discrimination, but it had explicitly identified unjustified "segregation" of persons with disabilities as a form of discrimination. The Court observed that this recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two judgments: (1) that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life;" and (2) that "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." Id. at 600-01. Therefore, despite the Georgia officials' arguments to the contrary, the Court found that dissimilar treatment had been established: "In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice." Id. at 601.

The Georgia officials contended that the findings in ADA should not outweigh the Medicaid statute's congressional policy preference for treatment in institutions over treatment in the community. The Court responded that, while that may have been true in the past, since 1981 Medicaid has provided funding for state-run home and community-based care through a waiver program, and the Department of Health and Human Services (HHS) has encouraged states to take advantage of it to fund community-based placements.

The key ruling of the Court in Olmstead was that "[u]njustified isolation ... is properly regarded as discrimination based on disability," Id. at 597, and the Court therefore affirmed the ruling of the Eleventh Circuit on this issue. The Supreme Court added, however, some clarifications regarding how that principle should be applied. First, the Court stated that nothing in ADA or the regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. Second, a state generally may rely on the reasonable assessments of its own professionals in determining whether an individual meets essential eligibility requirements for placement in a community-based program, and should not remove individuals from the more restrictive setting if they do not qualify for community-based placement. Third, federal law does not create any requirement that community-based treatment be imposed on persons who do not desire it. Id. at 601-02. In regard to L.C. and E.W., there was no genuine dispute that they were qualified for noninstitutional care, the State's own professionals determined that community-based treatment would be appropriate for them, and both women sought community-based placements.

On the second issue addressed by the Court in Olmstead--the standard of "fundamental alteration" that should be applied to the cost-based defense asserted by the Georgia officials--none of the various opinions filed by the Justices garnered a majority. It is significant, however, that a total of eight Justices (all except Justice Stevens) concluded that the Eleventh Circuit had applied too restrictive an interpretation of the defense. Justice Stevens would have affirmed the Eleventh Circuit's decision as to the fundamental alteration defense.

Justice Ginsburg's opinion on the fundamental alteration defense issue, in which she was joined by Justices O'Connor, Souter, and Breyer, declares that a state's responsibility to provide community-based treatment to qualified persons with disabilities is not boundless, and is subject to the "fundamental alterations" limitation. The Eleventh Circuit, however, construed this limitation as permitting a cost-based defense "only in the most limited of circumstances," and remanded to the district court to consider, among other things, "whether the additional expenditures necessary to treat L.C. and E.W. in community-based care would be unreasonable given the demands of the State's mental health budget." 138 F.3d at 902, 905. Justice Ginsburg believed that such a standard would leave the State "virtually defenseless," because measuring the expense entailed in placing one or two people in a community-based treatment program against the State's entire mental health budget would make it unlikely that a state could ever succeed in establishing a fundamental alteration defense. 527 U.S. at 603. In Justice Ginsburg's view, a sensible construction of the fundamental alteration concept would allow the State to show that immediate relief for the plaintiffs would be inequitable in light of the responsibility the State has undertaken, and the allocation it has made of available resources, for the care and treatment of persons with mental disabilities. The district court simply compared the cost of caring for the plaintiffs in a community-based setting with the cost of caring for them in an institution, and concluded that community placements cost less than institutional confinements. Justice Ginsburg stated that such a comparison overlooks the increased overall expenses involved in funding community placements while still incurring the costs of maintaining institutions. And even if states eventually were able to close some institutions in response to an increase in the number of community placements, the States would still incur the cost of running partially full institutions in the interim. Justice Ginsburg does not believe that ADA can be reasonably read to force states to phase out institutions, nor to move institutionalized patients into an inappropriate setting, such as a homeless shelter. To maintain a range of facilities and to administer services with an even hand, therefore, she believes the State must have more leeway than under the lower courts' interpretation of the fundamental-alteration defense. In her view, a state could meet ADA reasonable modification requirement by having a "comprehensive, effectively working plan" for placing qualified persons with mental disabilities in less restrictive settings. Id. at 605-06. And this would be sufficient even if the plan involved a waiting list, so long as the waiting list "moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated ...." Id. at 606.

While holding that unjustified isolation is properly regarded as discrimination based on disability, Justice Ginsburg would also recognize the states' need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the states' obligation to administer services with an even hand. In evaluating a state's fundamental alteration defense, she believed the proper standard is to consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the state provides others with mental disabilities, and the State's obligation to mete out those services equitably.

Justice Stevens concurred in the judgment of the Court and entered a separate opinion explaining why he concurred in part in Justice Ginsburg's opinion. He believed that the Eleventh Circuit had been correct in ruling that unjustified institutionalization constitutes a violation of the integration mandate of ADA, so he joined that part of Justice Ginsburg's opinion that affirmed that portion of the Eleventh Circuit's ruling, thus making a fifth vote so that that part of the opinion represented a majority of the Court. On the fundamental alteration defense issue, Justice Stevens thought the Eleventh Circuit had made a correct ruling, so he would have voted to affirm the Eleventh Circuit's ruling in its entirety. Therefore, he did not join Justice Ginsburg's opinion on that issue.

Justice Kennedy concurred in the judgment of the Court. He wrote a separate opinion emphasizing his views on both the integration/deinstitutionalization issue and the fundamental