High Court Will Tackle Definition of Disability

In the major new civil rights law of this decade, Congress promised an end to job discrimination against “Americans with disabilities.”

However, nine years after this promise became law, it is entirely unclear whether its legal shield protects many millions or just the relative few who are blind or need a wheelchair.

What constitutes a disability has become one of the most disputed questions in employment law. The Supreme Court will take up the question this month, and the eventual answer could shape the job prospects of millions of Americans.

At issue are people who have diseases or conditions that, if medicated, allow them to work. However, these same conditions, some of which are life threatening, might leave them vulnerable to being fired, rejected for promotions or not hired in the first place. They include epilepsy, diabetes, hypertension, Parkinson’s disease, asthma, allergies, depression, cancer and heart disease.

To the dismay of disability-rights activists who championed the Americans with Disabilities Act, judges have been skeptical of the notion that such people are disabled. More than nine of every 10 ADA job-discrimination claims have been rejected by federal courts, according to a study by an Ohio State University law professor.

Most judges, adopting a strict and conservative approach, have said that a person with a disability is someone who cannot function. Those who work well and do their jobs do not have a disability, these judges have ruled, even if they are later fired because of a disease or a physical impairment.

“This is absurd, a Catch-22. [Judges] say if you are working, you don’t have a disability,” says Georgetown University Law Professor Chai Feldblum, who helped draft the 1990 law.

But employers argue that the law was intended to protect only the “truly disabled,” not workers with “common impairments.”

In an unusual move, the high court decided to hear three separate cases to clarify who has a disability.

In each instance, a judge, taking a narrow view of the law, threw out the discrimination claim before a trial.

A Kansas mechanic with high blood pressure, an Oregon truck driver with vision in only one eye and two jet pilots from Colorado who wear glasses are challenging employers who either fired them or denied them a job.

“This is the year [the high court] will try to explain what the ADA means,” says Corbett Gordon, a Portland, Ore., lawyer who is representing a grocery store chain that fired the veteran truck driver with only one good eye.

A fourth ADA case, to be heard April 21, could yield a landmark decision for those who are mentally retarded or mentally ill. The justices will rule on whether the law gives these people a right to escape the “segregation” of mental institutions in favor of community homes.

In its first decision interpreting the law, the Supreme Court ruled on a 5-4 vote last year that people with HIV are protected from discrimination, even if they have no AIDS symptoms.

This ruling, in Bragdon vs. Abbott, gave the law a broad and liberal reading. It did not concern employment, however. Rather, it tested another provision of the law that forbids discrimination in “public accommodations” such as hotels, restaurants and other businesses. In that case, a dentist had refused to fill a cavity for a woman who was HIV-positive.

In the area of employment, however, judges have been skeptical of discrimination claims under the ADA. The case of Vaughn L. Murphy, the Kansas truck mechanic, illustrates what Feldblum and other advocates call the Catch-22 now facing workers.

United Parcel Service fired Murphy in 1994 because of his high blood pressure. Since childhood, Murphy’s blood pressure had been unusually high, hitting 250/160 at one point. Medication brought it under control, however, and he had worked without problems as a mechanic for 22 years.

In a company physical checkup in September 1994, his pressure registered 160/104, just above the limit set by UPS.

The nurse “said I was hazard. She said flat out I could die at any time,” recalled Murphy, 45. “My termination paper just said ‘Hypertension.’ ”

Nonetheless, when Murphy sued UPS for discrimination, a federal judge in Kansas dismissed his claim and ruled he had no disability.

With his medication, Murphy is in fine shape, said U.S. District Judge Sam Crow. “In general, he can function normally,” and his hypertension does not “significantly restrict him in his ability to perform” his job. Therefore, “high blood pressure and its concomitant effects do not constitute a disability under the ADA,” the judge ruled.

In short, although UPS fired Murphy due to his high blood pressure, the court threw out his lawsuit because he was physically capable of doing his job.

The law bars job discrimination against “a qualified individual with a disability,” defining “disability” as a “physical or mental impairment that substantially limits one or more major life activities.” It also includes among the disabled those “regarded as having such an impairment.”

At least 40 million Americans have high blood pressure, Murphy’s lawyer told the court, and his client is among the 1% of them with the most serious form of hypertension. Surely Murphy was “regarded as” having a disability, he argued, since UPS fired him when it learned of his condition.

But when Murphy appealed the judge’s order to the U.S. 10th Circuit Court of Appeals in Denver, he lost there too.

“Mr. Murphy is not an individual with a disability,” the appeals court ruled last year, “because when his blood pressure is medicated, he functions normally.”

The truck mechanic says he finds this logic peculiar. “These kind of judges seem to say, ‘If you lose an arm, but you get a replacement arm, you no longer have a handicap,’ ” he said.

Neither the mechanic nor his lawyer was ready to quit. They appealed to the Supreme Court last summer. “If you follow the 10th Circuit’s view, the whole ADA collapses as meaningless,” said Kirk W. Lowery of Topeka, Kan. “If you can’t work, you are not qualified. And if you can work, you don’t have a disability.”

The justices will hear arguments in the case of Murphy vs. UPS, 97-1992, on April 27.

The handling of the mechanic’s discrimination claim is not unusual.

Ohio State University law professor Ruth Colker has tallied all the ADA cases decided so far in reported rulings and found that employers won 94% of them. Typically, judges reject the claim that the plaintiff has a disability and dismiss the lawsuit before it goes to a jury.

“It’s preposterous to say this is what Congress intended,” Colker said, since the statute refers to at least 43 million Americans having a disability. “The statute is rendered meaningless if the Murphys of the world do not qualify.”

But Washington lawyer William J. Kilberg, who represents UPS, says the law was intended to protect the disabled, not everyone who has an impairment of some sort.

“We all have flaws and impairments, but Congress didn’t intend to have 200 million Americans categorized as disabled,” said Kilberg, a former Labor Department lawyer.

The American Diabetes Assn., which filed a brief supporting Murphy, says 16 million Americans have diabetes. Though diabetes can be controlled with insulin, individuals with the disease have a disability, its lawyers say. “No one should be caught in the Catch-22 of treating their disability only to lose ADA protection,” they conclude.

Every year, about 18,000 workers file discrimination complaints citing a disability with the U.S. Equal Employment Opportunity Commission. The most commonly claimed disabilities are bad backs, emotional and psychiatric problems, crippled legs or arms, heart trouble and diabetes. The agency does not track who wins their claims.

Clinton administration lawyers, speaking for the EEOC, urged the high court to rule for Murphy and adopted a broad definition of a disability. The mechanic’s “hypertension was so severe that, if left unmedicated, it substantially limits all or most of his major life activities,” the administration said.

Probably the most common impairment is weak vision. One survey estimated that 150 million Americans wear glasses or contact lenses to correct their vision.

The case of Sutton vs. United Airlines, 97-1943, tests whether poor vision can be a disability under the law.

Karen Sutton and her twin sister Kimberly Hinton were flying for a commuter airline, even though they must wear glasses. Each has one eye with only 20/400 vision, yet both see 20/20 with their glasses.

When they applied to United Airlines for pilots’ positions, they were rejected because of their eyesight. They sued under the ADA, but once again, a federal judge threw out their claim on the grounds they had no disability.

“The term ‘disabled’ would become a meaningless phrase,” said Judge Daniel Sparr, if it were extended to impairments that are “minor and widely shared.” The U.S. appeals court in Denver agreed, but the high court agreed to hear the case of Sutton vs. United Airlines, 97-1943, on April 28.

Although these two cases focus on what a disability is, the case of the Oregon truck driver also raises the question of who is a qualified worker.

Since 1979, Hallie Kirkinburg had been driving trucks and, both sides agree, had compiled an impeccable record, despite being nearly blind in his left eye.

After an unrelated injury, he was examined by a company doctor in 1992, who noted his vision did not meet federal standards. A few months later, he was fired.

“We felt it was a matter of safety,” said Frank Riddle, a manager for Albertson’s Inc., the grocery chain.

The driver sought and won a waiver from the U.S. Department of Transportation, which certified that he was safe to drive. But Albertson’s refused to rehire him, and he sued.

A federal judge in Portland threw out his claim, ruling he was neither disabled under the law nor qualified to drive trucks. However, the U.S. 9th Circuit Court of Appeals, on a 2-1 vote, reversed this ruling and said his case should be heard by a jury.

“The ADA does not require employers to hire or retain any person who is not capable of doing his job properly,” said Judge Stephen Reinhardt of Los Angeles for the appeals court. “It merely prohibits employers from discriminating against qualified workers on account of their disabilities.” The law says employers may disqualify any worker who poses a “direct threat” to the safety of others, and Reinhardt said the company must prove to a jury that the truck driver poses a danger.

This time, the employer appealed to the Supreme Court, arguing that the 9th Circuit’s decision “will force employers to hire and maintain a work force that could potentially pose a safety hazard to the general public.” The justices will hear the case of Albertson’s vs. Kirkinburg, 98-581, on April 28.

Rulings in all three cases are due before the court recesses for the summer in late June.