November 1999

The Increasing Irrelevance of the Americans with Disabilities Act for Employment Discrimination Claims in Washington

by George M. Ahrend

The U.S. Supreme Court recently narrowed the scope of disabilities protected under the Americans with Disabilities Act of 1990 (ADA) in Sutton v. United Air Lines, Inc., No. 97-1943 (U.S., June 22, 1999), and Murphy v. United Parcel Service, Inc., No. 97-1992 (U.S., June 22, 1999). The Court adopted a functional definition of disability and held that otherwise disabling conditions are not covered disabilities if they can be "corrected" or "mitigated." For example, in Sutton, the Court held that severe myopia is not a disability because it can be corrected with eyeglasses or contact lenses. Likewise, in Murphy, the Court held that severe high blood pressure is not a disability because it can be controlled with medication. The decisions depart from the rule formerly applied within the Ninth Circuit. See Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996). They highlight the fact that there is far less protection for employees under the ADA than the Washington Law Against Discrimination (WLAD).

In Sutton, two prospective employees applied for positions as commercial airline pilots with United Air Lines. Both of the individuals, who happened to be twin sisters, suffered severe myopia to a degree that affects only two percent of the population. Without the aid of eyeglasses or contact lenses, both are unable to see sufficiently well to drive a vehicle, watch television, or perform many other daily activities. With the aid of eyeglasses or contact lenses, however, both of them can see as well as individuals who do not suffer from a similar impairment. They were denied employment based on the airline’s uncorrected visual-acuity requirement. The trial court dismissed the case on a 12(b)(6) motion, so no evidence of the necessity for this uncorrected visual-acuity requirement was ever introduced.

In Murphy, a United Parcel Service (UPS) mechanic, whose responsibilities included driving commercial motor vehicles, suffered from severe high blood pressure. Unmedicated, the high blood pressure entailed serious health problems; but with medication, the high blood pressure imposed no limitations on the mechanic’s ability to work, other than a restriction on lifting heavy objects. When UPS discovered the mechanic’s condition, his employment with the company was terminated for the stated reason of compliance with U.S. Department of Transportation (DOT) regulations concerning the health of commercial drivers. Although the trial court dismissed the case on summary judgment, the parties disputed whether the mechanic’s blood pressure actually exceeded DOT requirements.

The U.S. Supreme Court affirmed dismissal of both Sutton and Murphy, holding that the employees in each case were not disabled, nor were they "regarded as" disabled within the meaning of the ADA. The Court held that the employees were not disabled because their disabilities could be corrected or mitigated. The Court relied on the definition of disability in the ADA, which provides:

The term "disability’’ means, with respect to an individual:

(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) (formatting in original). The Court reasoned that, since the definition is phrased in the present tense, "[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." In addition, the Court reasoned that the language of the definition requires an individualized inquiry. Disability is not evaluated in general terms of how it affects all persons challenged by it, but rather, disability is evaluated in specific terms of how it affects a particular person. If that person is able to overcome the disability with corrective or mitigating measures, then he or she may not be disabled.

Apart from the definition of disability, the Court relied on the findings enacted as part of the ADA in holding that the employees in Sutton and Murphy were not disabled. The findings refer to a statistic that estimates that 43 million Americans have disabilities. Although the Court acknowledged that the source of the estimate is unclear, the Court reasoned that since there are approximately 100 million people who need corrective eyewear and approximately 50 million people who suffer from high blood pressure, they could not have been the intended beneficiaries of ADA protection. The Court concluded that "[h]ad 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." The Court declined to address Committee Reports and other legislative history materials that clearly stated an intention to cover correctable conditions, including high blood pressure.

The Court also held that the parties in Sutton and Murphy were not "regarded as" having a substantial impairment of a major life activity by their employers. The plaintiffs argued that they were regarded as substantially limited in the major life activity of working. But in order to be regarded as substantially limited, rather than minimally limited, in work, the Court required them to show that they were excluded from a class of jobs or a broad range of jobs. Since the plaintiffs in Sutton and Murphy merely established that they were excluded from their particular jobs, their proof was insufficient. For reasons not apparent from the text of the opinion, the employees in Sutton did not argue that they were substantially limited in the major life activity of seeing.

Sutton and Murphy create a conundrum for disabled employees. If they are able to correct or mitigate their disabilities so they can perform their jobs, then they may not be considered disabled under the ADA and, therefore, may not be entitled to the Act’s protection. If they are unable to correct or mitigate their disabilities, however, they may not be considered qualified for their jobs. In that event, they would not be entitled to the protection of the ADA because the Act does not require employers to hire or retain unqualified employees.

Sutton and Murphy also cast doubt on the validity of regulations promulgated under the ADA by the Equal Employment Opportunity Commission (EEOC). While acknowledging the EEOC’s authority to issue regulations implementing Title I of the ADA, the Court stated that "[n]o agency . . . has been given authority to issue regulations implementing the generally applicable provisions of the ADA[,]" including the definition of disability.

While the decisions in Sutton and Murphy narrowed the coverage of the ADA, it is unlikely that they will affect interpretation of the disability discrimination provisions under the WLAD. The statutory text of the WLAD prohibits discrimination in employment based on "the presence of any sensory, mental, or physical disability[.]" RCW 49.60.030(1) (general); RCW 49.60.180 (unfair practices of employers). The text does not elaborate on what constitutes a disability [see RCW 49.60.040 (definitions)], but it expressly provides for a liberal construction of all terms (RCW 49.60.020).

The WLAD was previously phrased in terms of "handicap" rather than "disability," 1973 Wash. Laws, 1st Ex. Sess., ch. 214. The Washington cases and regulations use the terms interchangeably, e.g., WAC 162-04-010; WAC 162-22-020. Regulations adopted by the Washington State Human Rights Commission (HRC) define handicap as follows:

(1) For the purpose of determining whether an unfair practice under [the WLAD] has occurred:

(a) A condition is a "sensory, mental, or physical handicap" if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be handicapped by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal.

(b) "The presence of a sensory, mental, or physical handicap" includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) Is medically cognizable or diagnosable;

(ii) Exists as a record or history; or

(iii) Is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a medical record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure, but in fact he did not have high blood pressure.

WAC 162-22-040 (brackets added; formatting in original). In contrast to the ADA, where the validity of EEOC regulations defining and clarifying covered disabilities is in question, the authority of the HRC to define disabilities covered under the WLAD is well settled. Phillips v. Seattle, 111 Wash. 2d 903, 908, 766 P.2d 1099 (1989); Hume v. American Disposal Co., 124 Wash. 2d 656, 670, 880 P.2d 988 (1994); Doe v. Boeing, 121 Wash. 2d 8, 15, 846 P.2d 531 (1993).

The HRC definition of handicap is confusing because it conflates the definition of handicap with the presence of discrimination. As stated in Doe v. Boeing Co., 121 Wash. 2d 8, 15-16, 846 P.2d 531 (1993):

We acknowledge that the definition of "handicap" as defined by WAC 162-22-040 is problematic. The WAC definition requires a factual finding of discrimination because of the condition in order to determine whether the condition is a "handicap" in the first place.

(Emphasis in original.) Nonetheless, it is apparent that handicap refers to an "abnormal condition." Abnormal simply means "not normal, average, typical or usual; deviating from a standard[.]" Webster’s New Universal Unabridged Dictionary, at p. 5 (1996).

The HRC definition of handicap contrasts with the definition of disability under the ADA. There is no basis under this definition for adopting a functional approach to disability as the U.S. Supreme Court did in Sutton and Murphy. The focus of the HRC definition is the existence of an abnormality itself, not the degree of impairment resulting from the abnormality or perceived to result from the abnormality. None of the relevant Washington case law requires proof of the degree of impairment or perceived impairment to establish a prima facie case of discrimination.1 

The broad scope of the HRC definition of disability is confirmed by reference to WAC 162-22-030, which provides:

(1) The commission will recognize a different definition of handicap for purposes of affirmative action and reporting than for purposes of law enforcement. The emphasis in law enforcement is to leave no one out. The emphasis in affirmative action must be to avoid including in so many persons that statistics become meaningless. None of us is a perfect sensory, mental, or physical specimen. Theoretically, every person faces the possibility of being discriminated against because of handicap — although some very remotely. It is therefore necessary to restrict the definition of handicap for purposes of affirmative action and reports on the use of handicapped workers to handicaps that are significant and permanent.

(2) An appropriate definition of handicap for affirmative action and reporting purposes is the following, which is already in use by the Washington State Department of Personnel:

"Handicapped: Persons with physical, mental, or sensory impairments that would impede that individual in obtaining and maintaining permanent employment and promotional opportunities. The impairments must be material rather than slight; static and permanent in that they are seldom fully corrected by medical replacement, therapy, or surgical means."

(Formatting and quotation in original.) The reference to "leav[ing] no one out" and the indication that "every person faces the possibility of being discriminated against because of handicap" contrasts sharply with the intent of the ADA, as divined in Sutton and Murphy, to protect a limited class of disabled persons.

The reporting definition of "handicapped" quoted in subparagraph 2 and used for affirmative action purposes by the state of Washington survives the adoption of Initiative 200 (to be codified at RCW Chapter 49.60). While the Initiative prohibits most forms of affirmative action by the state, it is inapplicable by its terms to affirmative action based on handicap. By implication, the adoption of the definition by the HRC solely for reporting purposes indicates that, for enforcement purposes, handicaps covered under the WLAD include conditions that may be "slight" rather than "material"; temporary rather than "permanent"; and, importantly, capable of being fully mitigated or corrected.

This is confirmed by Phillips v. Seattle, 111 Wash. 2d 903, 766 P.2d 1099 (1989). Phillips involved an employee who suffered from periodic alcoholism. After an adverse jury verdict, the employee appealed. The Court of Appeals held that he was not handicapped as a matter of law because his impairment was not permanent and because it could be ameliorated by treatment, relying on the affirmative action definition of handicap adopted by the HRC for reporting purposes. The Washington Supreme Court reversed the Court of Appeals because "[i]f the affirmative action definition of handicap is used in unfair practice cases, a large number of people will be excluded from the protection of the laws against discrimination." Id. at 908, 766 P.2d 1099. The court stated that the presence of a handicap is a question of fact and clearly implied by its decision that the presence of a handicap may be proven even if the handicap in question is temporary or capable of being mitigated or corrected.

The U.S. Supreme Court decisions in Sutton and Murphy appear to have significantly narrowed the coverage of the ADA. Because the coverage of the WLAD is significantly broader than the ADA, it is expected that most Washington employees who believe they have suffered disability discrimination will bring claims under the WLAD. The only advantage for employees in bringing claims under the ADA is the availability of punitive damages, 42 U.S.C. § 1981a, which are otherwise unavailable under the WLAD, Dailey v. North Coast Life Ins. Co., 129 Wash. 2d 572, 919 P.2d 589 (1996). Given the relatively limited circumstances in which punitive damages may be available, however, this will not be a consideration in most cases. See Kolstad v. American Dental Ass’n, No. 98-208 (U.S., June 22, 1999) (describing standard for imposition of punitive damages under 42 U.S.C. § 1981a). As a result, the ADA is increasingly irrelevant for employment discrimination claims in Washington.

George M. Ahrend is a sole practitioner in employment law, representing employers and employees in Eastern Washington and Northern Idaho. A frequent contributor to Bar News, he can be reached at gmahrend@ior.com.

1 Cases discussing the HRC regulations include Pulcino v. Federal Express Corp., 94 Wash. App. 413, 429, 972 P.2d 522 (1999); Ware v. Mutual Materials Co., 93 Wash. App. 639, 647, 970 P.2d 332 (1999); Swinford v. Russ Dunmire Oldsmobile, Inc., 82 Wash. App. 401, 414, 918 P.2d 186 (1996); Hume v. American Disposal Co., 124 Wash. 2d 656, 670, 880 P.2d 988 (1994); Goodman v. Boeing Co., 75 Wash. App. 60, 85, 877 P.2d 703 (1994); Lords v. Northern Automotive Corp., 75 Wash. App. 589, 599, 881 P.2d 256 (1994); Parsons v. St. Joseph’s Hosp. & Health Care Ctr., 70 Wash. App. 804, 812, 856 P.2d 702 (1993); Doe v. Boeing Co., 121 Wash. 2d 8, 13, 846 P.2d 531 (1993); Phillips v. Seattle, 111 Wash. 2d 903, 906, 766 P.2d 1099 (1989); and Barnes v. Washington Nat. Gas Co., 22 Wash. App. 576, 579, 591 P.2d 461 (1979).

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