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Topical ADA Archive

Mitigating Measures

• Arnold v. United Parcel Service, (CA 1), 7 AD Cases 1489, 2/20/1998
  
  Summary: Court of Appeals held that the lower court, which determined that diabetic job applicant was not disabled in light of ameliorative effects of his insulin medication, did not afford adequate consideration to EEOC guideline stating that determinations of whether an individual has an impairment and whether it substantially limits major life activity should be made without regard to mitigating measures, where EEOC's interpretation is consistent with ADA's legislative history and broad remedial purposes. (But see conflicting view by 6th Circuit)
  
  
• Baert v. Euclid Beverage Limited, (CA 7), 8 AD Cases 973, 7/10/1998
  
  Summary: Whether insulin-dependent diabetic driver's condition constitutes impairment should be determined without regard to fact that he is apparently able to control effects of disease with insulin; whether condition constitutes impairment and extent to which impairment limits individual's major life activities is to be evaluated without regard to availability of mitigating measures such as medicines or assistive or prosthetic devices. (Note: 6th Circuit holds opposite view. See Gilday v. Mecosta County, (CA 6) 7 AD Cases 348, 9/2/1997)
  
  
• Matczak v. Frankford Candy & Choc. Co., (CA 3), 7 AD Cases 1050, 11/18/1997
  
  Summary: Individuals who control their disability with medication may still invoke protections of ADA, since EEOC has stated that determination of whether individual is substantially limited in major life activity must be made without regard to mitigating measure such as medicines, or assistive or prosthetic devices, and ADA's legislative history reveals Congress' intent to exclude mitigating measures from assessments of disability; one report noted that persons with impairments, such as epilepsy or diabetes, that substantially limit major life activity are covered under ADA even if effects of impairment are controlled by medication. (But see conflicting view by 6th Circuit)
  
  
• Murphy v. United Parcel Service, Inc., (Sup.Ct.) (97-1992), (BNA cite not yet available), 6/22/1999
  
  Summary: United Parcel Service, Inc. (UPS), hired petitioner as a mechanic, a position that required him to drive commercial vehicles. To drive, he had to satisfy certain Department of Transportation (DOT) health certification requirements, including having "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." 49 CFR § 391.41(b)(6). Despite petitioner's high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, respondent fired him on the belief that his blood pressure exceeded the DOT's requirements. The Court held that under the ADA, the determination of whether petitioner's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs. The Tenth Circuit concluded that, when medicated, petitioner's high blood pressure does not substantially limit him in any major life activity. Because the question of whether petitioner is disabled when taking medication is not before this Court, there is no occasion here to consider whether he is "disabled" due to limitations that persist despite his medication or the negative side effects of his medication.
  
  
• Sutton v. United Air Lines, Inc., (Sup.Ct.) (97-1943), (BNA cite not yet available), 6/22/1999
  
  Summary: Applicants for jobs as pilots suffered from severe myopia, but their vision impairments were fully corrected through optical lenses. Applicants argued that the airline violated ADA by requiring minimum standards of uncorrected visual acuity; the district court held that applicants had no standing to sue under ADA, since their corrected vision left them fully able. The Court held that the determination whether an individual is disabled under 42 U.S.C. § 12102(2) should be made in the light of measures, such as eyeglasses and contact lenses, that mitigate the individual's impairment.
  
  
• Washington v. HCA Health Services, (CA 5), 8 AD Cases 1044, 9/3/1998
  
  Summary: Cases holding that mitigating measures must be taken into account in determining whether impairment substantially limits major life activity offer most reasonable reading of ADA. However, the statute is ambiguous, and EEOC's guideline interpreting statute to measure impairment in unmitigated state must be given more than minimal deference inasmuch as this guideline has been part of its regulations since they were promulgated. The regulations have consistently interpreted "disability'' to mean "without regard to mitigating measures." The legislative history supports EEOC's interpretation, and EEOC has significant expertise and authority to interpret and promulgate regulations under ADA.
  
  EEOC guideline interpreting ADA to measure impairment in unmitigated state will be read narrowly, since nothing in EEOC's Interpretative Guidelines or legislative history suggests that all impairments must be considered in their unmitigated states or that no mitigating measures may ever be taken into account.
  
  Whether impaired individual must be evaluated without regard to mitigating measures in determining whether he is substantially limited in major life activity depends on both nature of impairment and mitigating measures that he employs, and, therefore, these issues must be considered on case-by-case basis.