Who is a person with a disability under the ADA ... - IOS Press

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Journal of Vocational Rehabilitation 24 (2006) 177–182 IOS Press

Who is a person with a disability under the ADA? Mitigating circumstances, the US Supreme Court, and the case of diabetes Brian T. McMahon∗, Steven L. West and Jessica E. Hurley Department of Rehabilitation Counseling, Virginia Commonwealth University, Richmond, VA, USA

Abstract. Nine years after enactment of the Americans with Disabilities Act, three Supreme Court decisions, known as the Sutton trilogy, required that mitigating circumstances be considered in determining whether or not a particular individual has a disability under the statute. This article evaluates how the Sutton trilogy has altered the nature and scope of employment discrimination experienced by Americans with diabetes. Allegations of workplace discrimination filed by Americans with diabetes with the Equal Employment Opportunity Commission were examined. Pre-Sutton allegations (n = 5644) were compared and contrasted with Post-Sutton allegations (n = 5793) on specified characteristics including industry, issue, and rate of merit resolution. Findings fail to support the position that the Sutton trilogy deterred Americans with diabetes from registering formal complaints, but it may have emboldened employers to engage in more widespread and egregious levels of discrimination. Keywords: Employment discrimination, Americans with Disabilities Act, diabetes, Supreme Court

1. Introduction: The impact of the Sutton Trilogy upon workplace Discrimination for Americans with Diabetes

– In the Diabetes group, allegations occurred in higher proportions among Charging Parties who are male, African American, Hispanic, or over 50 years of age. – In the Diabetes group, allegations occurred in higher proportion when the discrimination Issue involves matters of Discharge, Constructive Discharge, Suspension or Discipline. Conversely, allegations occur in lower proportion when the discrimination Issue involved matters of Reasonable Accommodation, Hiring, Layoff, or Benefits other than insurance or pension. – In the Diabetes group, allegations occur in higher proportion against Respondents with certain characteristics; i.e., smaller employers, those located in the Southern United States, or those in the Transportation and Utilities industry.

McMahon et al. [4] examined allegations of discrimination investigated by the Equal Employment Opportunity Commission (EEOC) filed under Title One of the Americans with Disabilities Act (ADA) from the first effective date, July 27, 1992, through September 30, 2003. Key dimensions of workplace discrimination involving 11,437 allegations derived from Charging Parties with Diabetes were compared and contrasted with 163,173 allegations derived from Charging Parties with other physical, sensory, and neurological impairments. With a few notable exceptions, allegations and their Resolutions were similar for both groups; however, the following specific differences were apparent: ∗ Address

for correspondence: Brian T. McMahon, Department of Rehabilitation Counseling, Virginia Commonwealth University, P. O. Box 980330, Richmond, VA 23298-0330, USA. Tel.: +1 804 827 0917; Fax: +1 804 828 1321; E-mail: [email protected].

Although this research provided an overview of workplace discrimination involving Americans with diabetes, it did not address all aspects of the topic. Americans with diabetes have historically been treated differently than persons with other types of disabilities. For

1052-2263/06/$17.00 © 2006 – IOS Press and the authors. All rights reserved

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B.T. McMahon et al. / ADA and the Supreme Court

example, federal legislation has been in effect to limit workforce participation of people with type 1 diabetes in such industries as transportation and aviation [4]. These distinctions arise from varying interpretations of disability, particularly with regard to the functional limitations experienced by the individual. According to the ADA, the definition of actual “disability” requires, “a physical or mental impairment that substantially limits one or more major life activities” (42 ISC §12102(2)2000). Most Americans with diabetes have no difficulty qualifying for the “physical impairment” and “major life activity” components of the definition. “Substantial limitation,” however, is an altogether different matter. In a recent and definitive treatise on disability and civil rights law, Blanck et al. [1] report that there is no clear standard as to when the impairment is substantially limiting to the degree that ADA protection is warranted. According to ADA Title One Interpretive Guidelines (29 CFR § 1630.2(j)(1)(i)–(ii) (2003)), an individual must be unable to perform a major life activity or be significantly restricted as to the condition, manner or duration of performance. The standard is performance of the major life activity by the average person in the general population. Complete inability to perform the activity is not necessary, but the ability to perform the activity must be reduced by more than a mere difference to meet this standard. The determination of substantial limitation is intended to be individualized. Considerations should include: a) the nature and severity of the impairment, b) the expected duration of the impairment, c) the expected long-term impact of the impairment, and d) the combined effect of multiple impairments, not uncommon for persons with diabetes. Blanck et al. [1] point out that early in the development of the ADA, the House Committee on Education and Labor and the Senate Committee on Labor and Human Resources jointly stated that (H.R. Rep. 101–485, Pt. 2, at 50–53 (1990); S. Rep. 101–116, at 21–24): Whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodations or auxiliary aids . . .. persons with impairments such as epilepsy or diabetes, which substantially limit a major life activity, are covered under the . . . definition of disability, even if the effects of the impairment are controlled by medication. Following this line of thought, the EEOC developed the ADA Title 1 Technical Assistance Manual [2] re-

flective of this general position; i.e., mitigating circumstances were not to be considered in determining whether or not impairment is substantially limiting. This was the standard in the first nine years after the ADA date of enactment (July 26, 1990). However, the landscape changed markedly in June 1999 when the US Supreme Court began to severely restrict the scope of ADA protection in a series of employer-friendly decisions. The three cases, colloquially referred to as, “the Sutton trilogy”, made clear that mitigating measures must be added to the considerations previously enumerated in determining substantial limitations for purposes of ADA protection. The Sutton trilogy was summarized by Blanck [1] as follows: – In Sutton v. United Air Lines, Inc. (527 US 471, 489 (1999)) twin sisters had vision worse than 20/200 in both eyes, but corrective lenses gave them 20/20 vision. United rejected them for positions as pilots based on a company requirement that pilots must have uncorrected vision of at least 20/100. In brief, the sisters were not protected because their eyeglasses improved their vision to 20/20. – In Albertson’s Inc. v. Kirkingburg, (527 US 555, 564 (1999)), the plaintiff was a truck driver who was blind in one eye. When the company discovered that he did not meet a federal vision guideline, it fired him without exploring the possibility of a waiver of the federal guideline. In sum, Mr. Kirkinburg was not protected because his brain had developed subconscious adjustments to compensate for reduced depth perception. – In Murphy v. United Parcel Service, Inc., (527 US 516, 518 (1999)), the plaintiff was a mechanic with high blood pressure that was near normal when medicated. His job required him to drive commercial vehicles and he was fired because the employer believed this high blood pressure would not meet a federal requirement. In short, Mr. Murphy was not protected because his medication allowed him to function normally. Mitigating measures may include medications, assistive and adaptive devices, and even internal coping mechanisms that reduce the limiting effects of impairment. The addition of mitigating measures significantly altered the original criteria for ADA protection, and led many consumer and advocacy groups to assert that the rights of Americans with disabilities were greatly diminished. This statement from Ragged Edge Online [6] is representative of this reaction:


To the extent that mitigating measures are successful in reducing the negative effects of an individual’s condition to a manageable level, the Supreme Court’s stance on mitigating measures deprives the individual of the right to . . . challenge acts of disability discrimination she or he has encountered, because such a person is not eligible for the ADA’s protection. This means an employer . . . may discriminate with impunity against such individuals in various flagrant and less flagrant ways. 1.1. Mitigation and diabetes The Sutton trilogy has direct relevance to Americans with diabetes and their experiences with workplace discrimination. Mitigating measures for people with diabetes may include medications such as insulin, weight loss, exercise, hygiene, transplantation, and psychological coping skills. Consider, for example, the case of a pharmacist with diabetes who managed his condition with insulin injections and a controlled diet (Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002)). Mr. Orr asked his employer that he be allowed one halfhour for lunch so that he could administer his medications and eat his lunch uninterrupted to avoid hypoglycemic episodes. It was alleged that the employer refused Mr. Orr’s request and terminated him. The Court of Appeals for the Eighth Circuit found that Mr. Orr was not substantially limited in any major life activities when the effects of insulin and a controlled diet were considered, and it ruled that he was not protected by the ADA. The issues of reasonable accommodation or termination were never reached. Such cases are dismissed on the coverage issue and the question of whether discrimination actually occurred is never addressed. Questions of great concern have surfaced: Did the Sutton trilogy narrow the pool of Americans with diabetes protected by ADA, placing large numbers outside of its protective sphere? Would the Sutton trilogy allow an employer to discharge an employee solely because of diabetes, but escape liability by arguing that the impairment does not rise to the ADA standard of disability because the individual takes insulin? If so, the “catch 22” becomes obvious: a person with diabetes may be wrongly considered unfit to work, but not impaired enough to be protected by the ADA. Perhaps the Sutton trilogy would reduce the willingness of people with diabetes to file allegations with the EEOC, or reduce the ability of the EEOC to find discrimination when complaints are resolved. These issues lead to the central research question for the present study: Has the

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nature and scope of workplace discrimination against persons with diabetes changed in the wake of the Sutton trilogy?

2. Methods One way to address this question is to re-analyze the receipt, investigation, and resolution of allegations of workplace discrimination brought by Americans with diabetes to the EEOC, and to compare and contrast these activities before and after the date of the Sutton decision – June 22, 1999. Data for this study come from the EEOC database known as the Integrated Mission System (IMS). The IMS is a rich and robust source of data, but it is not a panacea for rehabilitation researchers. For example, the IMS makes no distinction between type 1 and type 2 diabetes. Additionally, many, if not most, incidents of workplace discrimination go unreported. As with most civil or criminal offenses, it is not possible at this time to determine the prevalence of unreported discrimination in the workplace. From the IMS, a study dataset was extracted for this study, and all forms of discrimination were not included. For example, allegations were excluded that involved retaliation or Charging Parties with a record of disability or regarded as disabled, or those who were associates of persons with disabilities. Also excluded were allegations that contained errors or were currently unresolved, and those in which merit was determined by an agency other than the EEOC (e.g., the Office of Federal Contract Compliance Programs, civil court, or the State Fair Employment Practice Agency). Two specific hypotheses (stated in the null form) are: 1. There exist no differences in Allegation activity involving Charging Parties with Diabetes after June 22, 1999, the date of the Sutton decision. 2. There exist no differences in the rate of NonMerit Resolutions (or those with an absence of actual discrimination) involving Charging Parties with Diabetes after June 22, 1999, the date of the Sutton decision. To answer these hypotheses, all Allegations meeting the aforementioned extraction criteria, as well as their Resolutions, were compared using t-tests. These comparisons were based upon groups of Allegations and Non-Merit Resolutions closed pre- and post-June 22, 1999.

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3. Results

4. Discussion

The first t-test analyzing differences in the numbers of Employment Discrimination Allegations pre- and post- June 22, 1999 was significant [t(1) = 76.76, p < 0.01, 95% Confidence Interval = 4771.89, 6665.11]. Thus the first null hypothesis was rejected. A marked increase was detected in Allegation activity during the 51 months following the Sutton decision (113.5 per month) as compared to the 83 months prior to the Sutton decision (68 per month). When considering the rates of Non-Merit Resolutions, the results of the analysis were again significant [t(1) = 32.61, p < .05, 95% Confidence Interval = 2706.96, 6163.04]. Thus the second null hypothesis was also rejected. A marked decrease was detected in the proportion of Non-Merit to Total Resolutions in the 51 months following the Sutton decision (74.2%) as compared to the 83 months prior to the Sutton decision (80.9%). The proportion of Non-Merit resolutions dropped significantly during the post-Sutton period. These results are summarized in Table 1. A close examination of the results shows clearly that Resolutions Without Merit decreased post-Sutton in terms of both “no reasonable cause” findings and administrative closures. Conversely, increases in Merit Resolutions post-Sutton (from 12.9 to 29.3 per month) are driven by two areas: 1) negotiated settlements which involved engagement by the EEOC, and 2) unsuccessful conciliations in which evidence of discrimination was found by the EEOC, but the Respondent would not accept the recommended remedy. Additional analyses involved tests of proportion to examine precisely how Allegation and Merit Resolution activity changed in relation to various industry classifications and discriminatory issues. Industry findings for the top five classifications are provided in Table 2. These data illustrate significant declines in the proportion of Allegations filed post-Sutton in Manufacturing (18.9% to 15.4%) and Public Administration (11.3% to 7.6%), but a significant increase in Transportation/Utilities (9/7% to 10.8%). With respect to Merit Resolutions, there was a significant decline in the Public Administration industry only (10.8% to 6.5%). Issue findings for the top five issues (or personnel actions) are provided in Table 3. These data illustrate a significant decline in the proportion of Allegations filed involving Hiring, but significant increases in matters of Reasonable Accommodation and Harassment. With respect to Merit Resolutions, there was a significant decline only regarding the Issue of Discipline.

There are several explanations for these findings, each of which is somewhat speculative at this time. The valence and veracity of each can only be determined through additional research. First, some advocates predicted that the Sutton trilogy would deter both the filing of allegations and the overall proportion of merit resolutions. These data do not support this prediction. With respect to Allegations, the opposite occurred: the number and rate of Allegations of workplace discrimination to the EEOC by Americans with diabetes increased post-Sutton. Furthermore, the number and overall proportion of Non-Merit Resolutions decreased over the same period and the number of Merit Resolutions increased. Second, the EEOC was markedly more engaged post-Sutton in mediation, and the rate of successfully negotiated settlements more than doubled. The EEOC was utilized more frequently as a mediator and with positive results. Perhaps the increase in mediation was requested by both Charging Parties and Respondents, stimulated to some extent by confusion regarding the interpretation of the Sutton trilogy. Perhaps EEOC utilization was stimulated by outreach and education efforts of the American Diabetes Association and its Advocacy Action Center. In either instance, the reader is reminded that this study is limited to Charging Parties whose basis for protection is diabetes (a substantially limiting impairment) and not “record of disability” or “regarded as a person with a disability.” The prediction of the National Council on Disability [5], however, may be accurate; it is possible that the Sutton trilogy has indeed emboldened some employers to engage in more discrimination, and that this is reflected in both higher Allegation activity and higher rates of Merit Resolution. One might infer from the large increase in Merit Resolutions that the nature of the violations reported is more egregious or flagrant postSutton, and this is confirmed by the issues of increased Allegation activity: Reasonable Accommodation and Harassment. Finally, the sharp increase in conciliation failures suggests that Respondents became more intransigent post-Sutton, defiantly resisting EEOC remedies for breach even after investigations revealed positive evidence that discrimination had occurred. It may be true that the Sutton trilogy has “wound back the clock” in civil rights and disability if we measure progress by EEOC activity alone. On the positive side, the EEOC appears active and vigilant in processing Allegations and in rendering more decisions


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Table 1 EEOC Allegations brought by Americans with Diabetes and their Merit Resolutions, July 27, 1992 to September 30, 2003 ALLEGATIONS MONTHS ∗ ALLEGATIONS/MO RESOLVED w/MERIT Merit Resolutions/Month Settled w/CP Settled w/ CP+EEOC Conciliation Success Conciliation Failure a RESOLVED w/o MERIT NO REAS. CAUSE ADMIN CLOSURE ∗ Denotes a Denotes

TOTAL DIABETES 11,437 134 85.4 2567 19.2 (643) (1023) (286) (615) 8870 (7836) (1034)

% TOT 100%

22.4% (5.6%) (8.9%) (2.5%) (5.3%) 77.6% (68.5%) (9.1%)

PRE SUTTON 5644 83 68 1073 12.9 (374) (332) (130) (237) 4571 (3969) (602)

% PRE 100%

19.1% (6.6%) (5.8%) (2.3%) (4.1%) 80.9% (70.3%) (10.6%)

POST SUTTON 5793 51 113.5 1494 29.3 (269) (691) (156) (378) 4299 (3867) (432)

% POST 100%

25.8% (4.6%) (11.9%) (2.6%) (6.5%) 74.2% (66.7%) (7.4%)

domain with significant difference in pre- vs. post-Sutton means, p 0.01. domain with significant difference in pre- vs. post-Sutton means, p 0.05.

Table 2 Comparison of Diabetes Allegations and Merit Resolutions, Pre and Post Sutton Decision by Largest Industry Classifications∗ ALLEGATIONS INDUSTRY by GENDIS RANK 1.SERVICES 2.MANUFAC. 3.RETAIL TR. 4.PUB.ADM. 5.TRANS/UTIL

PRE-ALLEG N = 5644 1598 1072 603 643 549

% PRE (÷5644) 28.3% 18.9% 10.6% 11.3% 9.7%

POST-ALLEG N = 5793 1626 894 623 441 628

% POST (÷ 5793) 28.0% 15.4%a 10.7% 7.6%a 10.8%b

MERIT RESOLUTIONS (actual discrimination) PRE-MERIT % PRE POST-MERIT N = 1073 (÷1073) N = 1494 292 27.2% 440 211 19.6% 280 95 8.8% 160 116 10.8% 98 125 11.6% 153

% POST (÷1494) 29.4% 18.7% 10.7% 6.5%a 10.2%

∗ Cutoff

for industry group inclusion was set at 8,000 allegations or above, about 4.5% of total. These five industries account for 2/3 of all allegations in the parent dataset known as GENDIS, which includes 174,610 allegations from all known physical, sensory, or neurological impairment groups. a Significantly higher proportion, test for difference in proportion, p 0.05. b Significantly lower proportion, test for difference in proportion, p 0.05. Table 3 Comparison of Diabetes Allegations and Merit Resolutions, Pre and Post Sutton by Largest Issues ALLEGATIONS ISSUE RANK for ALL DISABILITIES 1.DISCHARGE∗ 2.REAS.ACCOM. 3.TERMS/COND 4.HARASSMENT 5.HIRING 6.DISCIPLINE

PRE-ALLEG N = 5644 2071 941 488 407 288 255

% PRE (÷5644) 36.7% 16.6% 8.6% 7.2% 5.1% 4.5%

POST-ALLEG N =5793 2054 1091 501 494 200 293

% POST (÷5793) 35.4% 18.8%a 8.6% 8.5%a 3.4%b 5.1%

MERIT RESOLUTIONS (actual discrimination) PRE-MERIT % PRE POST-MERIT N =1073 (÷1073) N =1494 319 29.7% 467 210 19.5% 328 95 8.8% 119 59 5.4% 103 32 2.9% 60 96 8.9% 68

% POST (÷1494) 31.2% 21.9% 7.9% 6.8% 4.0% 4.5%b

∗ includes

constructive discharge. higher proportion, test for difference in proportion, p 0.05. b Significantly lower proportion, test for difference in proportion, p 0.05. a Significantly

in favor of Charging Parties with Diabetes. Following the Sutton decision, the EEOC moved quickly to modify field instructions but clearly underscored the importance of conducting a case-by-case, individualized analysis regarding ADA coverage for each Charging Party [3]. From these instructions, the EEOC clearly understands:

– Disability status is assessed with regard to the plaintiff’s current condition after factoring in the effect of mitigating measures that the person is using at the time of the alleged discriminatory incident. – The side effects of any mitigating measures a person is using, and whether these may be substan-

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tially limiting must be considered. – The differences between “curative” and “compensatory” measures must be distinguished. In Sutton, the Court seems to distinguish between measures that cure or affect the impairment itself, and other measures that do not cure or affect the impairment directly but merely compensate for the inability to perform a particular life activity. – A person whose impairment is fully mitigated by corrective measures may still be able to show that he has a history of disability or is regarded as having a disability. – Working should be alleged as a major life activity for which the claimant is limited only if there exists a limitation in no other major life activity. Whereas the Sutton trilogy may provide a winning defense strategy in civil litigation, it is possible that the, “you are not disabled,” tactic is more transparent in EEOC investigations. EEOC investigators may attempt mediation before the coverage issue is resolved. Alternately, EEOC investigators may refer the charge promptly to the State Fair Employment Practices Agency if the state anti-discrimination statute is more favorable to the Charging Party in terms of coverage; e.g., California. (Such an allegation would not be picked up in this study due to the aforementioned extraction criteria). Most important, the EEOC understood that the Sutton trilogy did not hold that Charging Parties are not disabled because they receive effective treatment for their impairment. The Court merely held that evidence of the effects of treatment must be considered along with the effects of the impairment. This means that the ameliorating effects of treatment should be considered along with the adverse effects of treatment. To corroborate these findings and to shed more light on the impact of the Sutton trilogy, similar analyses are in progress involving Charging Parties with other impairments that regularly involve medications; e.g., epilepsy, depression, and multiple sclerosis. Such studies will assist researchers in further interpreting the present findings. It is also plausible that the observed results have little to do with Sutton. A reasonable observer may con-

clude that the increase in allegations results from a confluence of factors including greater public awareness of EEOC reporting methods; the increasing incidence of diabetes; outreach and education activities by the American Diabetes Association; or greater familiarity with the ADA by EEOC investigators, consumers, and employers. These data suggest that with respect to workplace discrimination and diabetes, something dramatic has changed on or about the time of the Sutton trilogy, but the precise contribution of the Supreme Court is far from conclusive.

Acknowledgements This study was supported through a Distinguished Research Fellowship to Dr. McMahon awarded by the National Institute of Disability and Rehabilitation Research, US Department of Education (PR # H133F040034). Appreciation is extended to Dr. Ronald Edwards, Office of Research, Information and Planning, US Equal Employment Opportunity Commission. Database support was provided by Mehdi Mansouri of Herzing College.

References [1] P. Blanck, E. Hill, C.D. Siegal and M. Waterstone, Disability Civil Rights Law and Policy, St. Paul, MN: Thomson-West, 2004. [2] Equal Employment Opportunity Commission, Employment Provisions (Title I, Americans with Disabilities Act), Technical Assistance Manual, Washington, DC: Author, 1992. [3] Equal Employment Opportunity Commission, Instructions for field offices: Analyzing ADA charges after Supreme Court decisions clarifying “Disability” and “Qualified,” Washington, DC: Author, 2003. [4] B.T. McMahon, S.L. West, M. Mansouri and L. Belongia, Workplace discrimination and diabetes: The EEOC ADA research project, WORK: A Journal of Prevention, Disability, and Rehabilitation 25 (2005), 9–18. [5] National Council on Disability, Policy Brief Series: Righting the ADA, Number 11, The Role of Mitigating Measures in the Narrowing of the ADA’s Coverage, Washington, DC: Author, 2003. [6] Ragged Edge Online, Supreme Court shows lack of understanding of ADA (1999), Retrieved June 2, 2005, from http:// www.raggededgemagazine.com/extra/edgextracourt1.htm.