The Supreme Court's 1999 ADA Decisions

• Implications of the Sutton, Murphy and Kirkingburg Decisions
• List of Limitations on Major Life Activities
• Who Is Still Protected by the ADA
• New Directions: Untested Theories
• Seventh Circuit Ruling Upholds Limitations
• See also February 2000 Garrett decision.

In July 1999, the United States Supreme Court issued a set of decisions defining the protections of the Americans with Disabilities Act (ADA). One, Olmstead v. L.C., upheld the ADA's integration mandate, banning the unnecessary segregation of people with disabilities in state institutions. The other three, Sutton v. United Airlines, Inc., Murphy v. United Parcel Serv., and Albertsons, Inc. v. Kirkingburg,¹ were disappointing. This page describes their implications for people with disabilities and their legal advocates and proposes some advocacy strategies.

Implications of the Sutton, Murphy and Kirkingburg Decisions

The Supreme Court held in these three cases that, in determining whether a person has a disability under the ADA, any measures taken to control the effects of the person's impairment-such as medication or therapy-must be considered. For example, someone who controls the effects of depression through medication may be unable to claim the protections of the ADA, even if discriminated against because of the depression.

As a result of these decisions, many people who use such mitigating measures may be at risk of losing the protections of the ADA. The mere fact that an individual takes medication or other mitigating measures, however, does not mean that he is not a person with a disability. Determining whether someone has a disability now requires a very careful analysis of what limitations the person continues to experience despite medication and/or therapy. It may be necessary to look at a much broader universe of limitations than was previously necessary.

A May 2000 circuit court decision gives some grounds for hope.

List of Limitations on Major Life Activities

To assist consumers, advocates and attorneys in assessing whether an individual with a psychiatric impairment is a "person with a disability" for purposes of the ADA, the Bazelon Center has compiled a list of some limitations on major life activities that may be experienced by people with psychiatric disabilities.

You will want to be extremely cautious about bringing claims based on an individual's being substantially limited in the major life activity of working. While our list includes limitations on work activities, we urge that you focus on substantial limitations on major life activities other than working, because the viability of claims based on work limitations has been severely limited by the Supreme Court's decisions. It is important to remember that the greater the limitation in work activities, the more likely it is that the person will be found unqualified to perform the essential functions of a job. Accordingly, even if an individual is substantially limited in performing a broad range of jobs, it is helpful to focus instead on his limitations in other major life activities, such as eating, sleeping or reproduction, or muscle impairments and speech impairments, to the extent possible.

By the same token, you should also be cautious about claims that an individual is substantially limited in major life activities that are strongly related to work performance-for example, concentration, maintaining attention, interacting with others.

More expansive lists of potential limitations on life activities may be found in the World Health Organization's International Classification of Impairments, Activities and Participation (ICIDH- 2), available on the WHO website, http://www.who.int/icidh/, and the DSM IV Primary Care Version, available from the American Psychiatric Association.

Who Is Still Protected by the ADA

The Supreme Court's decisions, while severely limiting the population protected by the ADA, nonetheless leave room for many people who use mitigating measures to be covered by the law. The ADA defines a person with a disability as: (1) someone who is substantially limited in major life activities (including working), (2) someone who has a record of being substantially limited in major life activities, or (3) someone who is regarded as substantially limited in major life activities even though she is not actually so limited. Despite the Supreme Court's directive to consider mitigating measures, many individuals, including the following, may still be covered by the ADA even though they use such measures:

(A) individuals who are currently substantially limited in major life activities, either because:

1. the measures they use do not fully control the effects of their impairments (for example, a person with depression whose depression substantially limits him in self care, even while he is taking medication),
2. the measures do generally control the effects of their impairments, but the individuals face intermittent periods during which they are substantially limited (for example, a person with bipolar disorder whose symptoms are generally controlled by medication, but whose symptoms periodically arise even while taking medication), or
3. the side effects of the mitigating measures themselves substantially limit the individual in major life activities (for example, a person who takes medication that alleviates delusions caused by schizophrenia, but who is substantially limited in mobility due to muscle stiffness caused by the medication). The substantial limitation may be caused by a combination of the side effects of the mitigating measures and the effects of the impairment itself.

(B) individuals who have a record of being substantially limited in major life activities, such as individuals who are currently taking measures that control the effects of their impairments but who have previously experienced a period of substantial limitation. For example, a person who had substantial limitations before finding an appropriate combination and/or dosage of medication that alleviated the limitations, or before achieving control over his limitations through therapy, would be covered. Advocates should rely on information demonstrating a specific substantial limitation of a major life activity. Merely demonstrating a record of a prior hospitalization for an impairment, for example, may not be sufficient.

(C) individuals who are regarded as substantially limited in major life activities even though they are not, in fact, so limited. Attorneys should proceed with caution if claiming that a person is regarded as substantially limited in working. Many courts have interpreted the "regarded as" prong as requiring proof of someone else's state of mind, and it is extremely difficult to prove that an employer regarded someone as substantially limited in performing not only the job in question but also a class of jobs or a broad range of jobs. The Supreme Court's decision in Sutton makes this type of claim even more difficult. The court interpreted the ADA to require a substantial limitation in performing an extremely broad class of jobs. The court also held that an employer's use of job criteria does not, by itself, establish that the employer regards someone who fails to meet those criteria as substantially limited in working. In light of the difficulty of bringing claims based on substantial limitations in working, arguments that an employer has regarded a person as substantially limited in other major life activities will generally fare better, provided that there is evidence to support them.

New Directions: Untested Theories

Intermittent or periodic limitations
One theory that may be particularly useful for showing that a person with a psychiatric impairment is covered by the ADA is the argument that, while the effects of the impairment are generally controlled by medication and/or therapy, the individual does experience substantial limitations on major life activities on an intermittent or periodic basis. This may occur, for example, when changes in medication become necessary or when particular events occur that cause old or new limitations to arise. This theory has not been tested in the courts, but for some people, it may be the best method of demonstrating that they are individuals with disabilities in light of the Sutton, Murphy, and Kirkingburg decisions.

Barriers to mitigating measures
Another approach that attorneys may wish to consider: Even if an individual uses mitigating measures to control a disability, when a covered entity does not allow the person to use those measures as an accommodation, the measures should not be considered in determining whether he is a person with a disability. For example, if a child with insulin-dependent diabetes is denied admission to a day care center because the center refuses to administer insulin injections, then the day care center cannot defeat an ADA claim by arguing that the child's diabetes is controlled by insulin and therefore is not a disability. As the Supreme Court noted in Sutton, the person's actual circumstances must be considered. If the child is not actually able to take insulin at the day care center, then for purposes of his claim against the day care center, the determination of whether he has a disability must be made without considering the insulin. Similarly, if an individual is denied the workplace accommodation of a flexible time schedule or an absence needed for purposes of psychiatric treatment, then the determination of whether he has a disability should be made without considering the availability of the treatment.

Reasonable accommodation for a person with a record of a limitation
Advocates should note that people who are covered by the "record of" prong may have claims for reasonable accommodations. For example, an individual with a history of depression who no longer experiences symptoms of depression may require ongoing treatment, including medication, to prevent the depression from recurring. The person may require the accommodation of a flexible work schedule due to the side effects of medication or to permit appointments with a treating professional.

Generalized fears and stereotypes
Finally, advocates should consider the possibility of bringing a "regarded as" claim based on a covered entity's generalized fears and stereotypes about particular conditions. For example, an individual with a psychiatric impairment may be regarded as substantially limited in working due to generalized fears about psychiatric impairments expressed by an employer. If the employer refuses to hire a person diagnosed with schizophrenia because of a perceived fear that people with schizophrenia are likely to engage in workplace violence, then the employer regards the individual as substantially limited not only in performing the job in question but also in most other jobs.

Updates on significant developments in this area will be posted here.

Seventh Circuit Ruling Upholds Limitations

The 7th Circuit has issued a decision in United Airlines v. Gile, holding that despite the medication she was taking, the plaintiff's depression and anxiety continued to substantially limit her in major life activities. Accordingly, she is protected by the ADA.

The woman had won a substantial verdict before a jury, and her employer, United Airlines, appealed to the Seventh Circuit. One of United's arguments was that the woman was not a person with a disability because she took medication for her depression and anxiety. United claimed that the trial court had wrongly instructed the jury that the woman's medication could not be considered in determining whether she had a disability. The trial had occurred before the Supreme Court decided in Sutton v. United Airlines that mitigating measures such as medication and therapy must be considered when determining whether a person has a disability—that is, whether the person is substantially limited in major life activities. The plaintiff argued that any error caused by the trial court's instruction to the jury was harmless because she was substantially limited in major life activities, such as sleeping and performing basic parenting and other daily tasks, despite her medication.

The Bazelon Center, together with Equip for Equality in Illinois, had filed an amicus brief in the case on the issue of whether the pre-Sutton jury instruction on mitigating measures required reversal of the jury verdict. The brief educated the court about the many ways in which an individual with a psychiatric disability may still be substantially limited in major life activities despite—or because of—mitigating measures such as medication and therapy. The decision doesn't discuss the issue expansively but the result is good. In addition, the court looked at the plaintiff's limitations at the time the relevant events occurred, rather than when she filed the lawsuit. The court also upheld the judgment for the plaintiff in all other respects except for the award of punitive damages. United Airlines v. Gile, No. 99-2509, 2000 U.S. App. LEXIS 11354 (7th Cir. May 22, 2000).

1. Sutton v. United Air Lines, Inc., No. 97-1943, 119 S. Ct. 2139 (June 22, 1999); Murphy v. United Parcel Serv., No. 97-1992, 119 S. Ct. 2133 (June 33, 1999); and Albertsons, Inc. v. Kirkingburg, No. 98-591, 119 S. Ct. 2162 (June 22, 1999). Back to text.

This summary was prepared by Jennifer Mathis, jenniferm@bazelon.org.

Posted 8/11/99; updated 5/30/00.