Legal Opinion: GME-0009

Index: 9.207

Subject: MCS Disorder and Environmental Illness as Handicaps

March 5, 1992

MEMORANDUM FOR: Frank Keating, General Counsel, G

FROM: Carole W. Wilson, Associate General Counsel for

Equal Opportunity and Administrative Law, GM

SUBJECT: Multiple Chemical Sensitivity Disorder and

Environmental Illness as Handicaps

This memorandum analyzes whether Multiple Chemical

Sensitivity Disorder (\"MCS\") and Environmental Illness (\"EI\") are

or can be \"handicaps\" within the meaning of subsection 802(h) of

the Fair Housing Act (the \"Act\"), 42 U.S.C. § 3602(h), and the

Department\'s implementing regulation, 24 C.F.R. § 100.201 (1991).

In sum, we conclude that MCS and EI can constitute handicaps

under the Act. Our conclusion is consistent with the weight of

both federal and state judicial authority construing the Act and

comparable legislation, the Act\'s legislative history, as well as

the interpretation of other Federal agencies, such as the Social

Security Administration and the Department of Education,

construing legislation within their respective domains. The

Civil Rights Division of the Department of Justice has also

informed us that it believes MCS and EI can be handicaps under

the Act. In addition, HUD has consistently articulated this

position, and FHEO agrees with our conclusion.

I. Ordinary Allergies, Unlike MCS and EI, Generally Are Not

Handicaps

Before turning to whether MCS and EI can fit within the

definition of \"handicap\" under the Act, it is useful to define

MCS and EI and distinguish these conditions from ordinary

allergies. This memorandum uses the term MCS to refer to a

condition that causes a person to have severe hypersensitive

reactions to a number of different common substances. This

memorandum uses the term EI to refer more generally to a

condition that causes a person to have any type of severe

allergic reaction to one or more substances.

At least one court has accepted the following definition for

MCS:

A n acquired disorder characterized by recurrent

symptoms, referable to multiple organ systems,

occurring in response to demonstrable exposure to many

chemically unrelated compounds at doses far below those

established in the general population to cause harmful

effects. No single widely accepted test of physiologic

function can be shown to correlate with symptoms.

Ruether v. State, 455 N.W.2d 475, 476 n.1 (Minn. 1990) (quoting

Cullen, The Worker with Multiple Chemical Sensitivities: An

Overview, 2 Occupational Medicine: State of the Art Reviews 655,

657 (1987)).

Ordinary allergies, as opposed to MCS and EI, generally

would not constitute a \"handicap\" because, in most cases,

ordinary allergies do not substantially limit a major life

activity. Indeed, the National Academy of Sciences (\"NAS\")

defines MCS to exclude reactions to more common types of

allergens. Thus, while we conclude that MCS or EI can be

handicaps under the Act, ordinary allergies generally would not

be such.

The practical difference between a person with MCS and one

with ordinary allergies is described in a decision which held

that MCS is a \"disability\" under the Social Security Act:

Everyone knows someone with an allergy. If allergic to

eggs, don\'t eat eggs and you will be fine. If you do

eat an egg, have some Kleenex available. But the

plaintiff with MCS represents the extreme. These

extreme cases in the past were either ignored, sent to

a psychiatrist, let die, or treated for other ailments.

It has only been recently that the medical profession

itself has recognized the degree of the problem and the

numbers of persons involved\....

\... A severe exposure of the plaintiff to the elements

to which she reacts causes us to reach not for a

Kleenex box but for the telephone to summon an

ambulance and this has happened in the past.

Slocum v. Califano, No. 77-0298, slip op. (D. Haw. Aug. 27,

1979).

Ordinary allergies are like a host of other common

characteristics, which, although they may pose challenges to

individuals with the characteristic, do not constitute handicaps

because they either are not impairments or do not substantially

impair major life activities. Judicial or other authority have

found that the following characteristics do not constitute

handicaps:

\- left-handedness is not an impairment under Sections 501

and 504 of the Rehabilitation Act of 1973

(\"Rehabilitation Act\"), 29 U.S.C. §§ 791 and 794,

because it is physical characteristic, not a impairment

\- Torres v. Bolger, 781 F.2d 1134, 1138 (5th Cir.

1986), aff\'g, 610 F. Supp. 593 (N.D. Tex. 1985) (ruling

that left-handedness is not an impairment and does not

substantially impair major life activities);

\- shortness is not a disability or impairment under

Wisconsin employment discrimination law - American

Motors Corp. v. Labor and Industry Review Commission, 8

F.E.P. Manual 421:661 (No. 82-389) cited in Torres v.

Bolger, 610 F. Supp. 593, 596 (N.D. Tex. 1985) ;

\- \"For purposes of the definition of \'disability\' in

section 3(2), homosexuality and bisexuality are not

impairments and as such are not disabilities under this

Act.\" - Section 511 of the Americans with Disabilities

Act (\"ADA\"), 42 U.S.C. § 12211.

II\. MCS and EI Generally Meet the Statutory and Regulatory

Definition of Handicaps

Subsection 802(h) of the Act defines \"handicap\" as follows:

\(h\) \"Handicap\" means, with respect to a person \--

\(1\) a physical or mental impairment which

substantially limits one or more of such person\'s major life

activities,

\(2\) a record of having such an impairment, or

\(3\) being regarded as having such an impairment, but

such term does not include current, illegal use of or

addiction to a controlled substance (as defined in section

102 of the Controlled Substances Act (21 U.S.C. 802)).

As under the Rehabilitation Act\'s definition of handicap, 29

U.S.C. § 706(6), a definition substantially similar to that in

the Act, the determination of whether any particular condition

constitutes a \"handicap\" necessarily involves a case by case

determination of all facts and circumstances relevant to whether

the condition meets the Act\'s definition. Forrisi v. Bowen, 794

F.2d 931, 933 (4th Cir. 1986) (case brought under the

Rehabilitation Act); E.E. Black, Ltd. v. Marshall, 497 F. Supp.

1088, 1100 (D. Haw. 1980) (same). Those with MCS or EI generally

attempt to meet the definition by virtue of paragraph (1) of the

Act\'s definition, i.e., by maintaining that their condition

constitutes a physical impairment which substantially limits one

or more of their major life activities. As shown below, our

understanding of the usual effects of MCS and EI is that persons

with these conditions generally meet the Act\'s definition of

persons with a \"handicap.\"

A. Physical or Mental Impairment

The Act does not define its term, \"physical or mental

impairment,\" but the Department\'s regulations define that term as

follows:

\"Physical or mental impairment\" includes:

\(1\) Any physiological disorder or condition,

cosmetic disfigurement, or anatomical loss affecting

one or more of the following body systems:

Neurological; musculoskeletal; special sense organs;

respiratory, including speech organs; cardiovascular;

reproductive; digestive; genito-urinary; hemic and

lymphatic; skin; and endocrine; or

\(2\) Any mental or psychological disorder, such as

\... emotional or mental illness \.... The term

\"physical or mental impairment\" includes, but is not

limited to, diseases and conditions as \... visual,

speech and hearing impairments, \... and emotional

illness \....

24 C.F.R. § 100.201.

As discussed at more length, infra, at Parts III, V, and VI,

courts and administrative agencies (including HUD) have found

persons with MCS and EI to have a physiological disorder or

condition, which, upon exposure to certain substances, causes the

person to suffer substantial impairment of various body systems.

Listed below are some of the systems that we understand can be

affected, as well as some of the ways each can be affected:

1\. neurological - blurred vision and black spots, ear

ringing, incoherent speech, and seizures;

2\. musculoskeletal - muscle aches, fatigue, muscle spasms;

3\. special sense organs - blurred vision, ear ringing;

4\. respiratory (including speech organs) - incoherent

speech, shortness of breath;

5\. hemic - unusually high T-cell count;

6\. digestive - pancreas damage;

7\. immunological - extreme sensitivity to various

chemicals which can be life threatening.

B. Major Life Activities

The Act does not define the term \"major life activities,\"

but HUD regulations define it as follows:

\"Major life activities\" means functions such as

caring for one\'s self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning

and working.

24 C.F.R. § 100.201.

People with MCS and EI can have one or more major life

activities affected by their condition. We understand these to

include, but not be limited to:

1\. working - such persons may be disabled under the Social

Security Act, 42 U.S.C. § 416(i)(1);

2\. speaking - incoherent speech when exposed to chemicals;

3\. breathing - extreme shortness of breath when exposed to

chemicals;

4\. caring for themselves; performing manual tasks - may be

substantially impaired by chronic fatigue and the need

to avoid exposure, they are often bed-ridden;

5\. walking - loss of muscle control;

6\. seeing - blurred vision and black spots;

7\. hearing - ear ringing.

8\. learning - blurred vision, ear ringing, seizures, and

chronic fatigue, all of which may substantially impair

a person\'s ability to learn.

C. Substantially Limited

Neither the Act itself nor HUD\'s implementing regulations

define what it means to be \"substantially limited\" in a major

life activity. Case law, however, provides some guidance.

The Fourth Circuit in Forrisi v. Bowen, 794 F.2d 931 (4th

Cir. 1986), ruled that, under the Rehabilitation Act, in order

for an impairment to substantially limit a major life activity,

\"the impairment must be a significant one.\" Id. at 933-34.

E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw.

1980\) (\"Black\"), ruled that a person who is disqualified from

employment in his chosen field has a substantial handicap in

employment and is substantially limited in his major life

activity of working. Id. at 1099. In contrast, where a person

is disqualified only from certain subfields of work, the

determination of whether the impairment is substantial must be

viewed in light of certain factors. Id. at 1101-02. These

factors are:

1\. the number of types of jobs from which the impaired

individual is disqualified;

2\. the geographical area to which the individual has

reasonable access to find alternative employment; and

3\. the individual\'s own job expectations and training.

Id.

The Sixth Circuit in Jasany v. United States Postal Service,

755 F.2d 1244 (6th Cir. 1985), in discussing the \"substantially

limiting\" requirement, stated that \" a n impairment that affects

only a narrow range of jobs can be regarded either as not

reaching a major life activity or as not substantially limiting

one.\" Id. at 1249 note 3.

Federal agencies appear to have adopted a similar approach

to the \"substantially limited\" requirement, as have state

courts.

Persons with MCS and EI may be substantially limited in

major life activities due to their handicap. For such persons,

exposure to a variety of common substances may cause them

significant limitations to their major life activities, such as

those listed, supra, at Part IIB. Moreover, due to the frequency

that ordinary living normally brings people into contact with the

commonly found substances to which persons with MCS and EI

typically react, persons with these disabilities may be severely

constrained in their daily living and must make major adjustments

to avoid exposure. Since it is critical that people with MCS and

EI minimize their exposure to common substances found in or near

most housing facilities, they generally face a significantly

limited choice of housing.

III\. Case Precedent Recognizes MCS and EI as Handicaps

The weight of judicial precedent supports the conclusion

that MCS and EI can be handicaps.

A. Federal Case Law Recognizes MCS and EI as Handicaps

Vickers v. Veterans Administration, 549 F. Supp. 85, 86-87

(W.D. Wash. 1982), held that a Veterans Administration (\"VA\")

employee who was hypersensitive to tobacco smoke was handicapped

under the Rehabilitation Act. The court ruled that the ability

to work where one will be subject to an ordinary amount of smoke

is a major life activity. Id. at 87. The court specifically

found that the plaintiff had a physical impairment that

substantially limited his ability to work in an environment that

was not completely smoke free, and thus, he was handicapped.

Rosiak v. Department of the Army, 679 F. Supp. 444 (M.D. Pa.

1987), aff\'d, 845 F.2d 1014 (3d Cir. 1988), held that a carpentry

worker who was hypersensitive to \"hydrocarbon-type fumes or

dust,\" including those from contact cement, was handicapped under

the Rehabilitation Act due to his hypersensitivity.

Kouril v. Bowen, 912 F.2d 971, 974 (8th Cir. 1990), held

that a woman with MCS was disabled under the Social Security Act,

42 U.S.C. § 416(i)(1). She suffered numbness in the legs,

dizziness, light headedness, headaches, nausea, and various skin

rashes and sores when exposed to common chemicals, such as ink,

perfume, tobacco smoke, photocopier odors, engine exhaust fumes,

new carpet, new clothes, and hydrocarbons. The court found her

\"complex allergy state\" to require substantial restrictions in

her daily activities and interfere with her ability to engage in

substantial gainful activity. 912 F.2d at 976.

Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980),

involved a truck driver, diagnosed as having severe allergies to

environmental pollutants and bronchial asthma, and, who, as a

consequence, suffered disabling respiratory attacks. The court

ruled that he was disabled from substantial gainful activity

under the Social Security Act, and, thus, his widow was entitled

to collect his Social Security disability benefits.

On the other hand, Lawson v. Sullivan, 1990 U.S. Dist. LEXIS

18758 (N.D. Ill. 1990) (magistrate\'s decision), adopted, 1991

U.S. Dist. LEXIS 1560 (N.D. Ill. 1991), affirmed a decision of

the Secretary of Health and Human Services, which denied the

claimant Social Security disability benefits based on a failure

to produce adequate, objective, clinical evidence supporting her

complaints of incapacitating migraine headaches, allegedly

brought about by exposure to various common chemicals.

B. State Case Law Recognizes MCS and EI as Handicaps

Pennsylvania, California, and Ohio state courts have

interpreted their state civil rights statutes prohibiting

discrimination against the handicapped to apply to persons with

MCS and EI. We have been unable to find any state court holding

to the contrary.

Most noteworthy, because it involves housing discrimination,

is a case interpreting the Pennsylvania Human Relations Act

(\"Pennsylvania Act\"). Lincoln Realty Management Co. v.

Pennsylvania Human Relations Commission, 598 A.2d 594 (Pa. Commw.

1991\) (\"Lincoln\"). In that case, a Pennsylvania trial court

affirmed, in part, the decision of the Pennsylvania Human

Relations Commission. The court affirmed, without analysis of

this issue, the finding that the plaintiff, a tenant unable to

tolerate the presence of various chemical compounds (including

certain pesticides and herbicides), was handicapped under the

Pennsylvania Act. Id. at 597, 601.

The California Court of Appeals held in County of Fresno v.

Fair Employment and Housing Commission of the State of

California, 226 Cal. App. 3d 1541, 1550, 277 Cal. Rptr. 557, 563

(Cal. App. 5th Dist. 1991), that the state human relations

commission did not abuse its discretion in determining that

hypersensitivity to tobacco smoke, was a handicap under the

California Fair Employment and Housing Act (\"California Act\").

While this case involved employment discrimination, the

California Act\'s definition of handicap applies equally to

housing. Thus, the holding that hypersensitivity to tobacco

smoke qualifies as a handicap would apply in housing

discrimination cases also.

In Kallas Enterprises v. Ohio Civil Rights Commission, 1990

Ohio App. LEXIS 1683 (Ohio Ct. App. May 2, 1990), the Court of

Appeals of Ohio, citing Vickers, discussed, supra, at 10-11,

ruled that \"occupational asthma\" and \"a hypersensitivity to

rustproofing chemicals,\" are handicaps within the meaning of

the Ohio Civil Rights Act (\"Ohio Act\"), Ohio Rev. Code § 4112 et

seq. The court affirmed the trial court\'s ruling that the

plaintiff was illegally discharged because of his handicap and

affirmed the trial court\'s reinstatement order.

In Kent State University v. Ohio Civil Rights Commission, 64

Ohio App. 3d 427, 581 N.E.2d 1135 (1989), a different district of

the Court Appeals of Ohio held in favor of a person with

laryngeal stridor with laryngospasm, diagnosed as a condition

making her unable to breath when subjected to pesticides,

cleaning solutions, natural gas, asphalt, auto exhaust, cigarette

smoke, hair spray, cosmetics, rubber products, petrochemicals,

and other common substances. 581 N.E.2d at 1137. The court

found that her condition was a handicap under the Ohio Act.

IV\. Legislative History Supports the Conclusion that MCS and EI

Can Be Handicaps

The Act\'s legislative history also demonstrates that

Congress intended that the Act\'s definition of handicap be broad

enough to include MCS and EI. Congress intended that the term

\"handicap,\" as used in the Act, be interpreted consistently with

judicial interpretations of the term \"handicap,\" as used in the

Rehabilitation Act. In the preamble to the regulations

implementing the Act, HUD noted \"the clear legislative history

indicating that Congress intended that the definition of

\'handicap\' be fully as broad as that provided by the

Rehabilitation Act.\" 24 C.F.R. Subtitle B, Ch. 1, Subch. A, App.

1 at 704 (1991). To support this conclusion, the preamble cited

portions of the House Report and floor debate on the Act which

reflected Congress\'s desire that the two definitions be

interpreted consistently. Before Congress passed the Fair

Housing Amendments Act, lower federal courts had interpreted the

Rehabilitation Act to cover MCS and EI as handicaps.

Statutory construction principles lead us to conclude that,

because Congress used substantially the same definition of

handicap in the Act as it did in the Rehabilitation Act, Congress

intended chemical hypersensitivity to be a handicap under the

Act, as courts at that time had determined it to be under the

Rehabilitation Act. It is a generally accepted principle of

statutory construction that where the judiciary has given

\"contemporaneous and practical interpretation\" to \"an expression\"

contained in a statute, and the legislature adopts the expression

in subsequent legislation, the judicial interpretation is \"prima

facie evidence of legislative intent.\" This principle \"is based

on the theory that the legislature is familiar with the

contemporaneous interpretation of a statute.\" Sutherland Stat.

Const. § 49.09 (4th ed. 1984) at 400. The Supreme Court has

applied this principle to interpreting civil rights statutes.

Cannon v. University of Chicago, 441 U.S. 677 (1979) (\"Cannon\")

and Lorillard, A Division of Loew\'s Theatres, Inc. v. Pons, 434

U.S. 575 (1978) (\"Lorillard\").

In addition, the Act\'s legislative history generally

demonstrates that Congress intended that the Act\'s definition of

handicap be interpreted broadly. During consideration of the

Fair Housing Amendments Act, Congress considered proposals to

limit the category of \"handicaps\" to more traditionally

recognized ones, such as those affecting only sight, hearing,

walking, or living unattended; Congress rejected those proposals.

For example, Senator Hatch proposed a more restrictive definition

of the term handicap in S. 867, 100th Cong., 1st Sess. See Fair

Housing Amendments Act of 1987: Hearings on S. 558 Before the

Subcomm. on the Constitution of the Senate Comm. on the

Judiciary, 100th Cong., 1st Sess. 520-22, 523 (1987) (statement

of Bonnie Milstein, former Deputy Assistant General Counsel for

Civil Rights in Departments of HEW and HHS). By adopting the

definition it did, Congress rejected the more restrictive

proposals. Interpreting the Act\'s definition to include persons

with MCS and EI is consistent with that Congressional intent.

V. Other Federal Agencies Recognize MCS and EI as Handicaps

At least two other Federal agencies, the Social Security

Administration (\"SSA\") and the Department of Education (\"DOE\"),

recognize that MCS and EI can be handicaps. In addition, the

Civil Rights Division of the Department of Justice has informed

us that it believes MCS and EI can be handicaps under the Fair

Housing Act.

As discussed, supra, at Part IIIA, two Circuit Courts of

Appeals have ruled that MCS and EI are \"disabilities\" under the

Social Security Disability Act. An increasing number of SSA

administrative law judges are \"becoming aware\" of these disabling

conditions. Matthew Bender, Social Security Practice Guide, vol.

2, § 14.03 8 at 14-49 (1991). If a person is disabled under the

Social Security Act, a fortiori, he or she is handicapped under

the Fair Housing Act, because the former definition is a more

limited definition than the latter.

DOE has issued two agency letters of finding under the

Rehabilitation Act concluding that MCS and EI can be handicaps.

In San Diego (Cal.) Unified School District, 1 National

Disability Law Reporter (\"NDLR\") para. 61, p. 311 (May 24, 1990),

DOE concluded that a school district violated the Rehabilitation

Act by refusing to reasonably accommodate a school bus driver who

was chemically sensitive to petrochemical fumes. In that case,

the school district refused to allow the driver to wear a

respirator while driving. DOE concluded that the bus driver was

handicapped and that the accommodation he requested was

reasonable. In Montville (Conn.) Board of Education, 1 NDLR

para. 123, p. 515 (July 6, 1990), DOE concluded that a guidance

counselor with MCS was handicapped under the Rehabilitation Act.

DOE concluded, however, that the school district had provided

reasonable accommodations to the counselor.

In addition, the Merit Systems Protection Board (\"MSPB\") has

suggested that, at least in some circumstances, severe chemical

sensitivities could be a handicap under the Rehabilitation Act.

VI\. HUD\'s Prior Interpretations Have Recognized That MCS and EI

Can Be Handicaps

On several occasions, HUD, including OGC and FHEO, has

recognized that MCS and EI can be handicaps under Section 504 of

the Rehabilitation Act and subsection 802(h) of the Fair Housing

Act. OGC, Fair Housing Division, issued a determination,

authorized by the General Counsel, in another fair housing case,

Corcelli v. Gilbane Properties, Inc., (Case Nos. 01-90-0255-1-5,

01-90-0512-1) (Dec. 11, 1990) (\"Corcelli\") (Attachment A) stating

that the complainant, a person suffering from environmental

illnesses immune dysfunction syndrome and chronic fatigue, was

handicapped under the Act. In Corcelli, medical evidence

substantiated that the complainant was hypersensitive to common

chemicals such as pesticides, petroleum products, perfumes,

exhaust fumes, fresh paint, pine, soaps, chemical spraying of

lawns, and most strong odors. When exposed to these substances,

her reaction was severe or even life threatening. Based on this

information, HUD found that the complainant\'s condition was a

handicap and that the Act\'s provision on reasonable

accommodations was fully applicable. Corcelli at 3.

Even before OGC issued the Corcelli determination, HUD had

stated that MCS was a handicap under Section 504 of the

Rehabilitation Act, entitling those with the disability to

reasonable accommodations. See Oct. 26, 1990 letter from Timothy

L. Coyle, Assistant Secretary for Legislation and Congressional

Relations to Senator Frank R. Lautenberg (Attachment B). Since

Corcelli, HUD has continued to reaffirm its position that MCS and

EI are or can be handicaps. For example, the FHEO provided all

regional FHEO Directors a draft technical guidance memorandum

dated June 6, 1991, stating that persons disabled by MCS and EI

are handicapped within the meaning of the Fair Housing Act and

Section 504. See Draft Technical Guidance Memorandum (Attachment

C). In addition, HUD\'s recent report to Congress, written by the

Assistant Secretary for FHEO and cleared by the Secretary,

listed, as a handicap discrimination case, one involving the

\"refusal to delay fumigation to permit a temporary absence for an

individual with chemical sensitivities.\" Report to the Congress

Pursuant to Section 808(e)(2) of the Fair Housing Act (1990): The

State of Fair Housing (Nov. 1991) at 5 (Attachment D).

As explained above, persons with MCS and EI generally will

meet the statutory and regulatory definitions of persons with a

\"handicap.\" In addition, HUD\'s interpretation to date is fully

consistent with case precedent, the interpretations of other

Federal agencies, and the Act\'s legislative history.

VI\. Conclusion

MCS and EI can be handicaps under the Act. This position is

consistent with the statutory language, the weight of judicial

authority, the interpretation of other Federal agencies, and the

Act\'s legislative history. HUD also has been consistent in

articulating this position on prior occasions. Thus, HUD\'s

current interpretation seems correct, and there appears to be no

compelling reason to change it now.

Attachments