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HELP YOURSELF? - Mitigating Measures Affect Protection of Disabled Employees Under ADA

By John J. Balitis, Jr.

Does federal law protect a disabled employee from discrimination, even if the employee can control or mitigate the disability with self-help, such as wearing eyeglasses? Employers must beware of recent legal developments in Arizona that have changed the approach to analyzing disability cases.

The Americans with Disabilities Act ("ADA") of 1990, 42 U.S.C.A. Section 12101 et seq., is the landmark federal statute that prohibits employers with 15 or more employees from discriminating against any current or prospective employee with a disability. In ADA jargon, a disability is a mental or physical impairment that "substantially limits" one or more major life functions. If a disability is established, the individual is protected, so long as he or she can perform the essential functions of the job at hand with or without a reasonable accommodation.

U.S. Supreme Court Reverses a Trend

A key issue that has developed under the ADA involves whether an employer should consider medication, prosthesis or other self-help measures in determining if a disabled employee's limitations are substantial enough to trigger ADA protection. In other words, should the employer look to how well an individual gets along in life taking insulin, wearing glasses or using an artificial limb? Or should the employer focus on how the individual functions without these measures?

Historically, the Equal Employment Opportunity Commission, the Justice Department and eight federal courts of appeals agreed that employers could not consider mitigating measures in the disability analysis. Thus, if a vision-impaired employee corrected her eyesight with glasses, her employer had to evaluate her for ADA purposes as if she did not wear them. Although the ADA by its plain terms only covers impairments that result in substantial limitations, this approach extended coverage to individuals who, by virtue of corrective measures, had little or no limitations.

In a move that affected millions of employers and employees, the U.S. Supreme Court in 1999 rewrote the rules on analyzing mitigating measures under the ADA. According to the court's ruling in Sutton v. United Airlines, 119 S.Ct. 2139 (1999), mitigating measures now must be considered in determining whether an employee is disabled under the ADA. Thus, in Sutton, two prospective pilots with poor vision lost their bid for protection because they had corrected their eyesight with glasses. The message in Sutton was clear. The ADA only covers impairments if they result in actual limitations, not hypothetical or potential ones.

Arizona's New Ruling on ADA Protection

Although Sutton now requires employers to consider mitigating measures in the ADA disability analysis, the decision does not address what an employer should do if an employee rejects a mitigating measure, thereby effectively sustaining a limitation that otherwise could be eliminated. The question this scenario raises is significant for employers. Can employees who would have lost ADA protection under Sutton get it back simply by refusing to help themselves?

The U.S. District Court in Arizona answered this question late last year in Finical v. Collections Unlimited, 65 F.Supp.2d 1032 (D. Ariz. 1999). In Finical, the court evaluated an ADA claim brought by a hearing-impaired employee who would not wear hearing aids because she found them "annoying." The employer argued that the employee forfeited her rights under the ADA because she refused to take advantage of a mitigating measure that, under Sutton, would have removed her from the protected class.

The court in Finical rejected the employer's argument based on a strict reading of Sutton. The court reasoned that if the edict in Sutton is to evaluate every employee individually based on his or her actual condition, employers should not hypothesize about how corrective measures could help an employee any more than they should speculate about how an employee might function without corrective measures. Accordingly, the employee in Finical enjoyed protection under the ADA, despite her refusal to engage in self help.

An Era of Narrower Protection

Congress described the scope of coverage under the ADA by proclaiming in 1990 that "some 43 million Americans have one or more physical or mental disabilities." According to statistics developed by the National Council on Disability; this figure represents the number of individuals in the United States with functional limitations like those covered under Sutton. By contrast, some sources put the pool of all disabled Americans ae those with and without functional limitations ae at 160 million.

Sutton returned the bar for ADA protection to where Congress set it originally. Cases like Finical are natural complements to Sutton. They apply the correct standard for coverage under the ADA, but ultimately acknowledge that a self-help decision is a personal one that only the employee can make.

Copyright 2000 Daily Journal Corp. Reprint with Permission.