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**Sharingthe Dream: Is the ADA Accommodating All?**

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**Chapter 3**

 **JudicialTrends in ADA Enforcement**

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*With today�ssigning of the landmark Americans with Disabilities Act, every man, woman andchild with a disability can now pass through once-closed doors into a bright newera of equality, independence and freedom.*[1]

Opening doors to true equality was the vision for theAmericans with Disabilities Act when it was signed into law. The ADA�s vision,like those for other federal laws, will be realized or clouded by how it isinterpreted by the Supreme Court of the United States. Many of the panelists whotestified at the Commission�s ADA hearing anticipated the issues that theSupreme Court would be addressing�few predicted the results. The Supreme Courtin a series of decisions has now given its view on some of the cutting issuesraised by the ADA. Is the ADA�s vision of having all Americans withdisabilities �pass through once-closed doors into a bright new era ofequality, independence and freedom� still intact after the Supreme Court hasspoken?[2]

When the American Bar Association�s (ABA) *Mental &Physical Disability Law Reporter* published its first survey of Title Iemployment cases under the ADA, it found that employees prevailed in only 8percent of the final court decisions for cases brought from 1992 through 1997.[3]

In 1998, the second annual survey found the �percentageof employer victories increased from about 92 percent to about 94 percent�;[4]in 1999, employees were even more unsuccessful, prevailing �in only 4.3percent of the cases in which a final decision was rendered, while employersprevailed 95.7 percent of the time.�[5]Moreover, an analysis of EEOC�s administrative complaints revealed thatemployers prevailed in 86 percent of the administrative complaints resolved bythe EEOC from 1992 through 1997, and over 85 percent in both 1998 and 1999.[6]

The results of the ABA�s three surveys show thatemployees have lost and continue to lose the vast majority of ADA discriminationclaims. Most significant is data that show that only 12 percent of the claimsfiled were resolved on the merits. In fact, in the majority of claims filed,�employers prevailed summarily without addressing the merits of theemployees� claims.�[7]

The reasons employers succeed in a significant percentageof disability cases brought under Title I of the ADA, the ABA suggests, is thatthe �procedural and technical requirements contained in the ADA, asinterpreted by the courts, create difficult obstacles for plaintiffs toovercome.�[8]According to the ABA, the obstacles include:

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satisfying the requirements that the plaintiff meet theADA�s restrictive definition of disability�a physical or mental impairmentthat substantially limits a major life activity�and still be qualified to meetessential job functions with or without reasonable accommodation. In addition,plaintiffs can be disqualified from prevailing on their discrimination claims ifthey apply for or receive disability benefits, pose a �direct threat� tohealth and safety of themselves or others, fail to report that they have adisability or request an accommodation, or request an accommodation that posesan �undue hardship� on the employer.[9]

Employers argue that the number of case dismissals is due,in large part, to the vast number of frivolous claims that are brought under theADA. These employer advocates assert that courts are dismissing cases in anattempt to preserve the definition of disability originally intended byCongress.[10]Representatives for individuals, on the other hand, assert that the ADA is notachieving its potential. These advocates argue that individuals with impairmentslose in court because the evidence of disability they offer is used against themwhen they try to prove they are able to perform the job. According to advocatesfor individuals with disabilities, this Catch-22 is depriving individuals of theopportunity to have their disability discrimination allegations decided on themerits.[11]

Several controversies developed as courts attempted todefine the class of individuals entitled to ADA�s protections. Two issues,�mitigating measures� and �judicial estoppel,� created disagreementamong the federal Courts of Appeals and were eventually addressed by the SupremeCourt. Additionally, the Supreme Court rendered several other decisionsinterpreting the ADA. This chapter examines these legal developments, the policyarguments made by interested parties, and the future implications of thesedecisions.

**Who Is Entitled to Protectionunder the ADA?**

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*Contrary to thegeneral certainty associated with one�s race, sex, or age . . . whatconstitutes a �disability� under the ADA is an issue which is far fromcertain.*[12]

To gain protection under most civil rights statutes, anindividual must first show that he or she is within the class of people the lawwas intended to protect. Under other civil rights laws prohibitingdiscrimination, proof that one is of a certain race, gender, or age isrelatively easy, as these characteristics tend to be readily apparent. Forexample, under the Age Discrimination in Employment Act (ADEA)[13]one can demonstrate age by merely showing a driver�s license or other form ofpersonal identification containing a date of birth.[14]

According to the EEOC Compliance Manual, �[u]nlike TitleVII and the ADEA, under which the charging party�s status as a member of aprotected group is seldom in doubt, coverage is frequently a significant issuein ADA cases. In such cases, it is necessary to determine whether the individualhas a disability *and* is qualified.�[15] These terms are notdefined in the ADA, but the agencies with primary authority for enforcing itsprovisions have attempted to add workable substance to these concepts.[16] Additionally, in threecases decided after the Commission�s ADA hearing, the Supreme Court answeredthe question of whether the effects of mitigating measures, such as medicationsand assistive devices, should be considered in determining whether someone has adisability. Despite agency guidance and the Supreme Court decisions, however,courts continue to struggle with the concept of �disability� under the ADA.

**The Legal Background**

To be protected by the ADA, an individual must show that heor she (1) has an impairment that substantially limits a major life activity(�an actual disability�); (2) has a record of having a substantiallylimiting impairment (�a record of a disability�); or (3) is regarded ashaving such an impairment (�regarded as having a [disability]�).[17]

Under the actual disability prong, an ADA complainant mustshow that he or she (1) has an �impairment�; (2) the impairment limits a�major life activity�; and (3) the limitation caused by the impairment issubstantial.[18]Impairments include the following conditions:

-  Any physiological disorder, or condition, cosmeticdisfigurement, or anatomical loss affecting one or more of the following bodysystems: neurological, musculoskeletal, special sense organs, respiratory(including speech organs), cardiovascular, reproductive, digestive, genito-urinary,hemic and lymphatic, skin, and endocrine; orAny mental or psychological disorder, such as mentalretardation, organic brain syndrome, emotional or mental illness, and specificlearning disabilities.[19]
Major life activities include �functions such as caringfor oneself, performing manual tasks, walking, seeing, hearing, speaking,breathing, learning, and working.�[20]One who is �substantially limited� in a major life activity is either unableto perform the function or �[s]ignificantly restricted as to the condition,manner or duration� for which the person can perform the activity.[21]

Under the �record of� prong, an individual must provethere was discrimination because he or she had a history of or was misclassifiedas having an impairment substantially limiting a major life activity.[22]This prong is intended to ensure that there is no discrimination because aperson may have a history of disability. It also is intended to cover asituation in which a person may have been misclassified as having a disabilityand suffers discrimination because someone acts on this misclassification.[23]

To prove that one is entitled to ADA protection under the�regarded as� prong, the individual must show that an employer has made�an employment decision based on a physical or mental impairment, real orimagined, that is regarded as substantially limiting a major life activity.�[24]The individual need not actually have a substantially limiting impairment. Theact protects individuals from being discriminated against because of the falsebelief that they have such impairments.[25]

In determining whether a person has �a physical or mentalimpairment that substantially limits one or more major life activities,�[26]courts had to address the issue of whether this assessment should take intoaccount any �mitigating measures� the individual may have used.[27]The term �mitigating measures� has been used in the ADA context to refer to�medicines, or assistive or prosthetic devices.�[28]

Because medicines or other measures may greatly alleviatethe symptoms of an impairment, considering their impact could lead a court tofind that a condition, which without medication would be severely limiting, isnot sufficiently serious to warrant ADA protection. An example of a mitigatingmeasure is an employee with diabetes who is able to control the condition byadministering insulin injections and taking other precautions.[29]However, without medical assistance, the employee might be wholly unable tofunction.[30] Thus, the decisionwhether to evaluate the severity of the employee�s condition while theemployee is taking medications is critical in the ultimate determination ofwhether there is an impairment substantially limiting a major life activity.

Although this is crucial to determining whether a personcan prove he or she is an individual with a disability, the ADA does notexpressly address it. The issue of whether mitigating measures should be takeninto account was discussed when Congress was considering the legislation. Afterthe ADA was enacted, the EEOC and the Department of Justice issued guidelinesdirectly addressing this issue.

**Legislative History of MitigatingMeasures**

Three congressional committee reports contain guidance onthe issue of mitigating measures. The House Education and Labor Committee reportstates:

Whether a person has a disability should be assessedwithout regard to the availability of mitigating measures such as reasonableaccommodations or auxiliary aids. For example, a person who is hard of hearingis substantially limited in the major life activity of hearing, even though theloss may be corrected through the use of a hearing aid. Likewise, persons withimpairments, such as epilepsy or diabetes, which substantially limit a majorlife activity are covered under the first prong of the definition of disability,even if the effects of the impairment are controlled by medication.[31]

Similarly, the House Judiciary report states thatimpairments �should be assessed without considering whether mitigatingmeasures, such as auxiliary aids or reasonable accommodations, would result in aless-than-substantial limitation.�[32]The Senate Labor and Human Resources Committee report contains similar language:�whether a person has a disability should be assessed without regard to theavailability of mitigating measures, such as reasonable accommodations orauxiliary aids.�[33]The Senate report also states:

[An] important goal of the third prong of the [disability]definition, [the �regarded as� prong,] is to ensure that persons withmedical conditions that are under control, and that therefore do not currentlylimit major life activities, are not discriminated against on the basis of theirmedical conditions. For example, individuals with controlled diabetes orepilepsy are often denied jobs for which they are qualified. Such denials arethe result of negative attitudes and misinformation.[34]

These two sections of the Senate report create someconfusion. The Senate report first states that mitigating measures should not betaken into account in determining whether a person has a disability, but laterthe report appears to state that if a person�s impairment is controlled bymitigating measures, he or she is protected under the �regarded as� languageof the law but does not have an �actual impairment.�[35]While some may believe this confusion is evidence that Congress never clearlyanswered the question of if, or how, mitigating measures should be treated,others believe this clearly demonstrates Congress� intent to coverindividuals with controlled conditions under either the �actual� or the�regarded as� prongs of the definition of disability.[36]

**Agencies�Guidance on Mitigating Measures**

The ADA delegated authority primarily to three agencies toenforce specific provisions of the act. The EEOC has authority to issueregulations to implement ADA�s employment provisions,[37]the Attorney General of the United States has the authority with respect to thepublic service provisions,[38]and the Secretary of Transportation has the power pertaining to the ADA�stransportation provisions.[39]Further, these agencies are mandated to offer technical assistance to helpimplement the provisions they are responsible for enforcing.[40]

Although the regulations promulgated by the EqualEmployment Opportunity Commission address the definition of �substantiallylimits,� the regulations do not address the role mitigating measures shouldplay in that determination.[41] The EEOC did addressmitigating measures in the interpretive guidance that is an appendix to theregulations.[42]Citing the congressional committee reports, the guidance states that �thedetermination of whether an individual is substantially limited in a major lifeactivity must be made on a case by case basis, without regard to mitigatingmeasures such as medicines, or assistive or prosthetic devices.�[43]

The Department of Justice in its interpretive guidancestates, �The question of whether a person has a disability should be assessedwithout regard to the availability of mitigating measures, such as reasonablemodifications, auxiliary aids and services.�[44]The Department of Transportation had adopted this same definition.[45]

Eight out of the nine United States Courts of Appeals thatconsidered the issue recognized the legislative intent and agreed with the threeenforcement agencies� interpretation that the effects of mitigating measuresshould not be considered.[46]One court of appeals did not.[47]It is against this backdrop that the Supreme Court addressed the issue.

**The Supreme Court�s View of theADA **

**Mitigating Measures**

***Sutton v. United Airlines, Inc.***

In *Sutton*, thecomplainants are twin sisters who have severe myopia�worse than 20/200 visionin one eye and worse than 20/400 vision in the other eye.[48]Thus, without eyeglasses or contact lenses, they cannot see to engage in manyactivities.[49] While wearing eyeglasses,they can � �function identically to individuals without a similarimpairment.� �[50]The sisters applied to United Airlines for positions as commercial airlinepilots.[51]They were told that they did not meet the airline�s �minimum visionrequirement, which was uncorrected visual acuity of 20/100 or better.�[52]Because of their failure to meet the requirement, their job interviews wereterminated and they were not offered positions as pilots.[53]

Justice O�Connor wrote the opinion for the 7�2majority. Addressing the contention that all the federal agencies charged withenforcing the ADA had taken the position that the effects of mitigating measuresshould not be considered, the Supreme Court acknowledged that under the ADA theEEOC, the Attorney General, and the Secretary of Transportation were givenauthority to issue regulations under the act.[54]The Court went on, however, to observe that no agency had been given theexplicit authority �to issue regulations implementing the generally applicableprovisions of the ADA [citations omitted] which fall outside of Titles I�V.Most notably, no agency has been delegated authority to interpret the term�disability.� �[55] The Court then held thatthe agency guidelines at issue here (those discussing mitigating measures) werean �impermissible interpretation of the ADA.�[56]

The Court refused to decide what deference should be givento the other agency regulations purporting to define disability. Likewise, theCourt did not decide what persuasive force the agencies� interpretive guidanceon what constitutes a disability should be accorded by the courts.[57]As for any legislative intent mandating a different conclusion, the Court merelystated, �[B]ecause the ADA cannot be read [to ignore the effects of mitigatingmeasures], we have no reason to consider the ADA�s legislative history.�[58]

The Court gave several reasons for its conclusion.Preliminarily, the Court found that the language of the statute was clear, andtherefore, it was unnecessary to consider the legislative history of the act.[59]The Court then referenced three provisions of the ADA that it found evidenced anintent to consider the effect of conditions in a mitigated state. First, the actrequires that �a person be *presently*�notpotentially or hypothetically�substantially limited.�[60]The Court arrived at that conclusion because the statutory language,�substantially limits,� is in the present indicative verb form.[61]Thus, the effect that the condition could or would have without mitigatingmeasures is not relevant.[62] The Court reasoned thatthe relevant inquiry is the *current*effect of the condition, even if the person is using mitigating measures.[63]

Second, the Court noted, that under the ADA, �whether aperson has a disability . . . is an individualized inquiry.�[64]However, judging an individual�s impairment in its unmitigated state �runsdirectly counter to� this mandated individualized inquiry.[65]The Court stated that judging impairments in an unmitigated state would oftenrequire courts �to speculate about a person�s condition . . . and . . .force them to make a disability determination based on general information abouthow an uncorrected impairment usually affects people in general, rather than onthe individual�s actual condition.�[66]The Court found that such an approach, which would require treating individualsas members of groups, was �contrary to both the letter and the spirit of theADA.�[67]

Finally, the Court observed that Congress stated in thestatute that � �some 43,000,000 Americans have one or more physical ormental disabilities, and this number is increasing as the population as a wholeis growing older.� �[68]The Court concluded that the number 43 million was �inconsistent with thedefinition of disability� advocated by the employees in the *Sutton*case�that they should be viewed in an unmitigated state.[69]The Court cited a law review article, written by Robert Burgdorf, who was aprimary contributor to the original ADA bill introduced to Congress in 1988,which noted the distinction between two definitions of disability�the �heathconditions� versus �working conditions� approaches.[70]According to the health conditions approach, the term disability includes anycondition that �impair[s] the health or normal functional abilities of anindividual.�[71] This definition includesindividuals who wear eyeglasses, because they would have a condition thataffects their health or normal functional activities. Based on the healthconditions definition of disability, in 1986 there were more than 160 millionindividuals with disabilities.[72]By contrast, the working conditions approach focuses on an individual�sability to work.[73] According to thisdefinition of disability, 22.7 million people are individuals with disabilities.[74] The Court concluded thatthe 43 million figure was �closer to the work disabilities approach than thehealth conditions approach.�[75]The Court stated that �the 43 million figure reflects an understanding thatthose whose impairments are largely corrected by medication or other devices arenot �disabled� within the meaning of the ADA.�[76]By using the 43 million figure, rather than the 160 million figure, the Courtreasoned that Congress could not have intended to cover all conditions but onlyintended to cover those that were not corrected through the use of mitigatingmeasures.

The Supreme Court held that �the determination of whetheran individual is disabled should be made with reference to measures thatmitigate the individual�s impairment, including, in this instance, eyeglassesand contact lenses.�[77] The Court explained:

Lookingat the Act as a whole, it is apparent that if a person is taking measures tocorrect for, or mitigate, a physical or mental impairment, the effects of thosemeasures�both positive and negative�must be taken into account when judgingwhether that person is �substantially limited� in a major life activity andthus �disabled� under the Act.[78]

***Murphy v. United Parcel Service, Inc.***

On the same day it handed down *Sutton*, the Supreme Court, in an opinion written by JusticeO�Connor for a 7�2 majority, also affirmed the dismissal of another casewhere the employee failed to show he was entitled to protection under the ADA.[79]Vaughn Murphy was first diagnosed with high blood pressure when he was a child.His blood pressure, when unmedicated, is 250/160 and imposes substantialrestrictions on his life.[80]When he is on medication his �hypertension does not significantly restrict hisactivities and . . . in general he can function normally and can engage inactivities that other persons normally do.�[81]He was hired by United Parcel Service to drive a commercial motor vehicle, whichrequired a Department of Transportation (DOT) certification that he wasphysically qualified to do so and that he had �no current clinical diagnosisof high blood pressure likely to interfere with his/her ability to operate acommercial vehicle safely.�[82]At the time he was hired, despite the fact that his blood pressure was so highthat he did not qualify for a DOT certification, he was erroneously granted oneby the medical examiner. After UPS discovered the error, Murphy wasre-evaluated. The examination indicated that his blood pressure was too high forDOT certification and he was fired.[83]

Murphy argued in his ADA lawsuit that his unmedicatedcondition was an actual impairment �substantially limiting� a major lifeactivity or was �regarded as� such a condition.[84]Relying on its analysis in *Sutton*, theSupreme Court affirmed the lower court�s decision that �when medicated,[Murphy�s] high blood pressure does not substantially limit him in any majorlife activity.�[85] Relying on *Sutton,*the Court rejected Murphy�s argument that he was �regarded as� beingsubstantially limited in a major life activity. The Court explained that a�person is �regarded as� disabled within the meaning of the ADA if thecovered [employer] mistakenly believes that the person�s actual, nonlimitingimpairment substantially limits one or more major life activities.�[86]The Court continued that Murphy �is, at most, regarded as unable to performonly a particular job. This is insufficient as a matter of law, to prove that[Murphy] is regarded as substantially limited in the major life activity ofworking.�[87] 

***Albertsons, Inc. v. Kirkingburg***

On the same day it decided *Sutton* and *Murphy*, theSupreme Court also decided whether Hallie Kirkingburg, whose vision wasdescribed by the Court as �amblyopia, an uncorrectable condition that leaveshim with 20/200 vision in his left eye and monocular vision in effect,� wasentitled to protection under the ADA.[88]Kirkingburg was erroneously certified by a doctor as meeting DOT�s basicvision standards.[89] After returning from aleave of absence his vision was correctly assessed and he was fired because hecould not meet DOT�s basic vision standards. The DOT had a provision thatallowed the vision requirement to be waived in certain circumstances.Kirkingburg received a DOT waiver after he was fired, but his employer,Albertsons, still refused to hire him.[90]

After finding that Kirkingburg�s amblyopia was a physical impairment,the Court turned to the question of whether it substantially limited his abilityto see.[91]Referring to the EEOC regulations,[92]the Court first reiterated that the law requires the limitation to besubstantial or in the words of the EEOC regulations, the impairment must�significantly restrict� the major life activity, not merely require thatthe activity be done in a �different� manner. The Court explained, �Whilethe Act �addresses substantial limitations on major life activities, not utterinabilities,� it concerns itself only with limitations that are in factsubstantial.�[93]

The Court next addressed Kirkingburg�s ability tocompensate for and adapt to his vision impairment. Here the Court recognized�that Kirkingburg�s �brain has developed subconscious mechanisms forcoping with [his] visual impairment and thus his body compensated for hisdisability.� �[94]Again relying on *Sutton*, JusticeSouter explained that the Court saw �no principled basis for distinguishingbetween measures undertaken with artificial aids, like medicine and devices, andmeasures undertaken, whether consciously or not, with the body�s ownsystems.�[95]In other words, Kirkingburg�s ability to adapt and compensate for hisimpairment had to be taken into consideration in determining whether his visionimpairment substantially limits his ability to see. The Court emphasized thatthis had to be done on a case-by-case basis, and that those claiming protectionunder the ADA must �prove a disability by offering evidence that the extent ofthe limitation in terms of their own experience . . . is substantial.�[96]While the DOT standard involved here could be waived, the Supreme Court went onto explain that an employer does not have to justify or defend its reliance on afederal safety standard that contains an experimental waiver provision like theone relied on by Albertsons.[97]The Supreme Court then reversed the lower appeals court decision, which affirmedthe trial court decision dismissing Hallie Kirkingburg�s discrimination claim.[98]

**EssentialFunctions of the Position: Judicial Estoppel**

One who has succeeded in proving that he or she is anindividual with a disability must next prove that he or she is �qualified�for the position and able �with or without reasonable accommodation . . . [to]perform the essential functions of [the] . . . position.�[99]This determination is not made in a vacuum but in many cases is affected bystatements an employee may have made in attempting to secure otherdisability-related benefits. The interplay between statements made by employeesseeking these benefits and the person�s rights under the ADA often createsissues of judicial estoppel.[100]

Judicial estoppel arguments usually arise when employeesseeking ADA protection have also applied for some type of disability benefit. Inapplying for Social Security, workers� compensation, or other similarbenefits, applicants usually must certify that they are �totally disabled�and unable to engage in any employment.[101]Using the doctrine of judicial estoppel, employers have argued, oftensuccessfully, that employees who have made such declarations should be barredfrom later asserting in ADA litigation that they are able to perform theessential functions of the position.[102]

Cases in which courts have addressed this issue haveinvolved a variety of factual scenarios. For example, in *McNemar v. Disney Store*, an HIV positive employee was fired becausehe allegedly removed $2 from a store�s cash supply and used the money forpersonal purposes with no intention of returning it.[103]Shortly before the employee was terminated, the employer questioned the employeeabout a rumor that the employee had tested positive for HIV.[104]

The employee brought suit under the ADA, alleging that hewas fired because of his HIV status in violation of the ADA.[105]After the employee lost his job, he applied for state disability benefits andSocial Security Disability Insurance benefits.[106]In the SSDI benefits applications, the employee asserted that he was �unableto work.�[107]

Relying upon this statement, the trial court ruled that theplaintiff, McNemar, could not prove he was a �qualified individual with adisability� under the ADA because he had claimed that he was unable to work inhis application for SSDI.[108]Faced with similar factual scenarios highlighting the apparent inconsistencybetween asserting that one is �unable to work� for Social Security purposesand that one can perform the essential functions of the position under the ADA,other courts have precluded plaintiffs from proceeding with their ADA claims.[109]

Other cases have reached an opposite conclusion and havenot automatically precluded employees from attempting to make a claim under theADA, while at the same time applying for disability benefits. In *Griffithv. Wal-Mart Stores, Inc*.,[110]an employee began working in a retail store after disclosing in the employmentapplication that he had previously suffered a back injury.[111]Although the employer accommodated his physical restrictions, the employee,Griffith, subsequently re-injured his back.[112]After a leave of absence, the plaintiff returned to work, subject to physicallimitations.[113] Shortly thereafter, theemployer fired the employee for allegedly �failing to report to work and lackof dependability.�[114]The employee filed a charge with the EEOC alleging he was fired because of hisback injury, which violated the ADA.[115]

After he was fired, the employee applied for SocialSecurity Disability Insurance benefits and stated in the application that he was�unable to work because of [his] disabling condition. . . .�[116]The Sixth Circuit Court of Appeals recognized the differences behind the ADA andthe Social Security Act, and that under the Social Security Act, there is noneed to consider the concept of reasonable accommodation.[117]As opposed to how the *McNemar*courthad ruled, the Sixth Circuit ruled that the trial court had erred when it barredGriffith from pursuing his ADA claim based upon the statements he had made inhis Social Security disability application.[118]

This issue was the subject of substantial testimony at theCommission�s ADA hearing. Employee rights advocates claim that rigidlyapplying the doctrine of judicial estoppel places �an aggrieved personunemployed with a disability in what the courts have called the untenable choiceof having to choose between the relatively immediate disability benefits thatare needed for financial subsistence . . . or to wait and gamble on an ADAlawsuit,�[119]and, as a practical matter, �the ADA is going to go unenforced.�[120]Employer representatives, on the other hand, claim that the employee should notbe permitted to make statements under oath in one forum and have them ignored inanother.[121] For employers, in theADA context, these �[s]worn statements in other forums represent one of thefew ways to evaluate the truthfulness of that claim and separate the legitimateclaims from the illegitimate claims.�[122]

To place this controversy in context, the differencesbetween being �disabled� for the purpose of Social Security coverage andbeing a �qualified individual with a disability� under the ADA must beexamined. Under Social Security laws,[123]an individual is considered �disabled� if he cannot �engage in anysubstantial gainful activity by reason of any medically determinable physical ormental impairment which can be expected to result in death or which has lastedor can be expected to last for a continuous period of not less than 12months.�[124]To satisfy the eligibility requirement, an individual must have a �physical ormental impairment or impairments . . . of such severity that he is not onlyunable to do his previous work but cannot, considering his age, education, andwork experience, engage in any other kind of substantial gainful work whichexists in the national economy. . . .�[125]

The Social Security application process proceeds in fivesteps.[126] In the first step, theSocial Security Administration (SSA) determines whether the applicant iscurrently engaged in any � �substantial gainful activity.� �[127]If not, the inquiry continues to the next step, which is a determination ofwhether the applicant�s condition (or combination of conditions) is�severe�; i.e., significantly limits the individual�s physical or mentalability to do basic work activities. If the condition(s) is not severe, theapplication is denied. If it is considered severe, the SSA proceeds to the thirdstep, at which it determines whether the condition (or combination ofconditions) is included in the SSA�s �Listing of Impairments� or isequivalent in severity to one of SSA�s listings.[128]If the condition(s) is included, the SSA concludes that the applicant isdisabled.[129]If the condition(s) does not meet or equal the severity of a listing, theinquiry proceeds to the fourth step. Here the SSA determines whether thecondition prevents the applicant from performing his or her �past relevantwork.�[130]

If the applicant is able to perform his or her pastrelevant work, the claim is denied.[131]If not, the inquiry proceeds to the fifth and final step, in which the SSAdecides whether, considering the applicant�s remaining functional capacity,age, education, and work experience, the applicant can perform other work that�exists in the national economy�; i.e., exists in significant numbers eitherin the region where the individual lives or in several regions of the country.[132]The Social Security Act specifies that this inquiry is without regard to whethersuch work exists in the immediate area in which the applicant lives, whether aspecific job vacancy exists for the applicant, or whether the applicant would behired if he or she applied for work.[133]If the individual cannot perform other work, SSA concludes that he or she isdisabled.[134] If the individual can,the application is denied.[135]

On February 12, 1997, the EEOC issued an Enforcement Guidance settingforth the agency�s position �that representations made in connection with anapplication for disability benefits should not be an automatic bar to an ADAclaim.�[136]The EEOC set forth two main distinctions between the ADA and Social Securitylaws. First, the ADA always requires an individualized evaluation of theindividual�s condition and the employment position at issue. On the otherhand, Social Security laws rely on generalized inquiries.[137]Second, the ADA�s definition of disability requires courts to consider thepossibility of a reasonable accommodation.[138]By contrast, Social Security laws do not weigh the impact a reasonableaccommodation could have on an individual�s employability. Based on thesedistinctions between the statutory schemes, the EEOC asserts thatrepresentations made on Social Security applications should not automaticallybar a plaintiff from seeking relief under the ADA.[139]Rather, the representations should be given some evidentiary value, depending onthe timing of the statements and the context in which they were made.[140]The EEOC concludes with two policy arguments in support of its position. First,it asserts that allowing complainants to pursue their claims is important inorder to achieve the ADA�s goals. Second, the EEOC argues that individualsshould not be forced to choose between Social Security benefits and ADAprotections.[141]

***Cleveland v. Policy Management Systems Corp.***

In a rare unanimous decision, the Supreme Court resolvedthe debate when it held that �pursuit, and receipt, of [Social SecurityDisability Insurance] benefits does not automatically estop the recipient frompursuing an ADA claim.�[142] Carolyn Cleveland had astroke while employed by Policy Management Systems.[143]She initially applied for SSDI benefits. But when her condition improved shereturned to work, and her application for disability benefits was denied on thatbasis.[144] She was fired andrequested the Social Security Administration to reconsider her application forbenefits, asserting that �[she] was unable to work due to [her] disability.�[145] Upon her firing, she hadalso filed a claim under the ADA arguing that her employer had failed toreasonably accommodate her disability. The lower court dismissed her ADA claimbased on the fact that in the SSDI proceeding she had alleged she was totallydisabled. Now in her ADA petition she claimed she could perform the essentialfunctions of her job. The lower court believed these two claims conflicted witheach other.[146]

The Supreme Court rejected the employer�s arguments andvacated the lower court�s dismissal of her claim�giving Ms. Cleveland herday in court.[147] The Court did cautionthat employees cannot simply ignore statements they made in pursuit of SSDIbenefits but must be able to explain why any �SSDI contention is consistentwith [their] ADA claim,� that they can perform the essential job functionswith or without reasonable accommodations.[148]

**Interaction with CollectiveBargaining Agreements**

***Wright v. Universal Maritime Service Corp.***

Within days of the conclusion of the Commission�s ADA hearing,[149]the Supreme Court also analyzed the issue of whether a general arbitrationclause in a union agreement required a union member to utilize the collectivebargaining agreement�s arbitration procedures even though the union member wasalleging a violation of the ADA.[150]Ceasar Wright, a longshoreman and a member of the AFL-CIO, returned to workfollowing settlement of a work-related injury claim for permanent disability.[151]After he returned, Mr. Wright was referred by the union hiring hall to severaljobs, none of which complained about his performance.[152]When one of the companies learned that he had previously settled a claim forpermanent disability, the company refused to accept him for further employment.[153]

Mr. Wright ultimately filed suit in the United States District Court forthe District of South Carolina alleging violations of the ADA. The trial courtdismissed his claim because he had not used the grievance procedure provided forby the collective bargaining agreement. The appeals court affirmed thisdecision, finding that the general arbitration provision in the collectivebargaining agreement was broad enough to encompass claims arising under the ADA.[154]

The Supreme Court disagreed, vacated the order dismissing Mr. Wright�sclaim, and sent the matter back to the trial court for further proceedings. Indoing so, the Court held that �the collective-bargaining agreement in thiscase does not contain a clear and unmistakable waiver of the coveredemployees� rights to a judicial forum for federal claims of employmentdiscrimination.�[155]

In reaching this decision the Court recognized that thereis tension between the line of cases holding that there can be no prospectivewaiver of an employee�s federal right to work in an environment free ofdiscrimination under Title VII of the Civil Rights Act of 1964,[156]and a second line of cases which have held that some federal claims ofdiscrimination can be subject to compulsory arbitration.[157]The Court in *Wright*avoided resolvingthis tension, finding the collective bargaining agreement did not contain awaiver of the employees� right to pursue their ADA claims.[158]

**The Supreme CourtAddresses ADA Issues beyond Employment**

***Olmstead v. L.C.***

The Supreme Court did not limit its ADA decisions to thoseinvolving employment. At the Commission�s ADA hearing there was substantialtestimony regarding the ADA�s requirement that government services be providedin the most integrated setting appropriate to the needs of the individual with adisability, and whether this requirement mandates placing individuals withdisabilities in community rather than institutional settings.[159]The Supreme Court addressed this issue directly in *Olmstead v. L.C.*[160]

In *Olmstead,*thestate of Georgia�s own health care professionals determined that two women whoare mentally retarded and were confined to a state hospital by the state wouldbe appropriately treated in a community setting, a determination neither womanopposed. Despite these recommendations, the women remained institutionalized.[161]One woman filed suit under Title II of the ADA, arguing that the �mostintegrated setting� requirement of the ADA mandated her placement in acommunity setting as opposed to an institution.[162]The Court answered with a �qualified yes.�[163]The Court explained:

States are required to provide community-based treatmentfor persons with mental disabilities when the State�s treatment professionalsdetermine that such placement is appropriate, the affected persons do not opposesuch treatment, and the placement can be reasonably accommodated, taking intoaccount the resources available to the State and the needs of others with mentaldisabilities.[164]

The Court�s decision was an attempt to balance competinginterests. The Court explicitly held that �[u]njustified isolation . . . isproperly regarded as discrimination . . .��in this instance theinstitutionalization of individuals with mental disabilities.[165]The Court went on to recognize that states need to maintain a full range ofoptions available for the treatment of individuals with mental disabilities. Inlight of this obligation, the Court pointed out that in determining whethercommunity placement was required the states must consider �not only the costof providing community-based care to the [persons requesting or desiringcommunity placement], but also the range of services the State provides otherswith mental disabilities, and the State�s obligation to mete out thoseservices equitably.�[166] 

***Garrett v. University of Alabama***

One issue that the United States Supreme Court had beforeit last term but which it did not reach was whether the provisions of the ADAthat permit an individual to sue a state entity are constitutional.[167]The Court on October 11, 2000, heard oral arguments on this issue and a decisionis expected in the spring.[168]The precise ADA issue the Court is considering is �[w]hether the EleventhAmendment to the United States Constitution bars suits by private citizensagainst non-consenting states.�[169]

The Court�s agreement to consider this issue comes on theheels of another decision, *Kimel v.Florida Board of Regents*,[170]where the Court found that similar provisions in the Age Discrimination inEmployment Act did not override the state�s 11th Amendment immunity.[171]Already the lower courts are split on this issue. Following *Kimel,*several courts have already held that Congress exceeded its authority byallowing private individuals under the ADA to sue state entities in federalcourt.[172]Others have observed that there are significant differences between thelegislative underpinnings of the ADA and the Age Discrimination in EmploymentAct, and have used that difference to uphold private citizens� right to suestates in the federal courts for violations of the ADA.[173]

**EFFECTSOF THE SUPREME COURT'S ACTIONS**

The Supreme Court answered directly several of the issuesdebated at the Commission�s ADA hearing.[174]These answers may have raised as many questions as they resolved. One majorconcern that was expressed by employer representatives was that because of thevagueness of the terms of the ADA there was going to continue to be �veryexpensive, long, drawn-out litigation.�[175]�[T]he experience of many employers . . . is as the recipient of a charge ofdiscrimination or worse yet, of an ADA lawsuit. The ADA is a statute over whicheverything is litigated.�[176]The employer representatives maintain that the answers to these questions comethrough litigation �to great expense by employers.�[177]The Supreme Court decisions may have ensured that the answers to these ADAquestions will continue to come at great expense through litigation, absentcongressional action.

**Continued Litigation over Who IsEntitled to Protection under the ADA**

The Supreme Court�s decisions in *Murphy, Sutton,*and *Albertsons*,while answering the precise question of whether mitigating measures should beconsidered in determining whether an impairment substantially limits a majorlife activity, will probably increase rather than decrease litigation on theseissues. The Court has changed the target of the litigation. The Court in *Sutton*explained that the effects of any mitigating measure �both positive and *negative*�mustbe taken into account. . . .�[178]The litigation pre-*Sutton* focused onlimitations caused by the impairment. Now the focus will be on limitationscaused by mitigating measures.[179]For example, if an impairment is treated by medication, the limitation caused bythat medication must be considered. Indeed, in *Sutton* the Court acknowledged that the negative side effectsresulting from the use of mitigating measures might be severe.[180]In cases where the impairment in its mitigated state may not be a substantiallimitation on a major life activity, the effects of the mitigating measures willstill have to be examined. Employees who seek to prove they are entitled to ADAprotection now must provide substantial evidence demonstrating the effect of themitigating measure; meanwhile, employers will counter with expert testimony,attempting to show that these effects are hypothetical and not substantial.

Following these Supreme Court cases, the EEOC issuedguidance to its field offices to assist the EEOC investigators in determiningwhether a person has a �disability� under the ADA and whether the person is�qualified.�[181] The EEOC�s guidance isextremely detailed and demonstrates just how fact intensive these thresholddeterminations have become.[182]On May 12, 2000, the EEOC also issued a new Compliance Manual section onthreshold issues, which contains additional guidance on how to make thethreshold determination of whether a person is an individual with a disabilityunder the ADA.[183]

In addition to continuing costly litigation, others arguethat the Supreme Court decisions in *Sutton*,*Murphy,* and *Albertsons* �will drastically reduce the scope of ADA�sprotection.�[184]It is argued that these decisions �ignore the intent of Congress, and havehard ramifications for individuals with treatable disabilities because they willstill be subject to discrimination but will not have the protection of theADA.�[185] These decisions fueledthe �widespread perception that the Supreme Court rendered the ADA powerlessin the workplace.�[186]This does not appear to be a hypothetical concern. The lower courts, relying on *Sutton,*have as a rule curtailed the applicability of the ADA where the employee hasused mitigating measures.[187]Many of these cases involve impairments that pre-*Sutton* were believed to be exactly the types of conditions thatCongress intended the ADA to cover,[188]including conditions like epilepsy,[189]cancer,[190] and multiple sclerosis.[191]

**EEOC and Justice DepartmentRegulations at Risk?**

In the ADA cases reviewed by the Supreme Court the partiesdid not question the validity or deference due the regulations and guidelinesdefining disability that have been promulgated by the EEOC and the Department ofJustice (DOJ).[192]Despite this fact, the Court pointed out that it was not ruling on either thevalidity of, or deference, due these regulations.[193]In *Sutton,* the Court explained:

No agency, however, has been given the authority to issueregulations implementing the generally applicable provisions of the ADA. Mostnotably, no agency has been delegated authority to interpret the term�disability.� Justice Breyer�s contrary, imaginative interpretation of theAct�s delegation provisions is belied by the terms and structure of the ADA.[194]

As to the Interpretive Guidance that has been issued by theEEOC and the DOJ, the Court also concluded there was no need to determine whatdeference, if any, this guidance should be given by the courts.[195]

Because the Supreme Court raised this issue, employers willchallenge the regulations and interpretative guidance that have been issued bythe EEOC and the DOJ. While the regulations and guidance represent a reasonedand logical effort by the DOJ and the EEOC to help guide entities through theissues surrounding ADA enforcement, their validity will be continually suspectand attacked by businesses until the Supreme Court or Congress addresses thematter.

**Between a Rock and a Hard Place**

In *Cleveland,* theCourt recognized that both the ADA and the Social Security Act seek to �helpindividuals� but do it in different ways.[196]The Court likewise recognized the different purposes of the two laws.[197]While the Court acknowledged there was a difference between these two laws, theCourt also recognized that statements made by an applicant for SSDI benefitswere relevant in determining whether the individual could also pursue an ADAclaim. The Court held that �pursuit, and receipt, of SSDI benefits does notautomatically estop the recipient from pursuing an ADA claim.�[198]

The Court went on to point out that �an ADA Plaintiffcannot simply ignore the apparent contradiction that arises out of the earlierSSDI total disability claim.�[199]Rather, the ADA plaintiff must be able to provide an explanation of the SSDIstatement sufficient for a juror to conclude that the person could have done theessential job functions at issue in the ADA action with or without reasonableaccommodation.[200]Employers will most likely require this explanation in every case. In many ofthe cases since *Cleveland*, theemployees have been unable to offer this required explanation.[201]

Even before the *Cleveland*decision, employers were attempting to lock employees into statements made ondisability benefits forms, in an attempt to ensure estoppel on ADA claims.[202]For example, some employers were considering having disability benefits formsthat use the exact language of the ADA.[203]These efforts will probably result in more ADA claims being dismissed as somecourts have rigidly applied judicial estoppel when the disability benefitsapplication language has tracked the ADA.[204]

In ADA litigation, costs associated with explaining themeaning of statements made on disability applications will continue to beincurred by both parties. The focus of the parties also will be diverted fromthe issue of whether the employee can perform the essential functions of the jobin question with or without reasonable accommodation.

Since the Commission�s ADA hearing, the SupremeCourt had an opportunity to amplify the ADA�s vision of �a bright new era ofequality� for �every man, woman and child.�[205]The Court gave no bright line rules resolving the issues before it or ensuringthe ADA�s vision. Given these Supreme Court decisions and absent congressionalaction, the result of these decisions may continue to be �[t]oo much moneygoing to [ ] attorneys rather than towards addressing pressing concerns . . . ofthose who face serious challenges because of their disabilities.�[206]

[1] President George Bush�s    Statement on Signing the Americans with Disabilities Act of 1990, *Public    Papers of the Presidents of the United States, George Bush* (1990), book    2, p. 1079, *reprinted in* 1990 U.S.C.C.A.N., pp. 601�02.

[2] This chapter does not    review all Supreme Court cases analyzing the ADA but only addresses those    decisions handed down after the Commission�s ADA hearing, which was held    Nov. 12�13, 1998.

[3] American Bar Association,    �Trend: Employment Decisions Under ADA Title I�Survey Update,� *Mental**& Physical Disability Law Reporter*,    vol. 23, no. 3 (May/June 1999), p. 294. The results of the ABA survey were    consistent with EEOC�s data, which showed that employees were successful    in only about 14 percent of the administrative complaints the EEOC handled.    Ibid.

[4] John Parry, �American    Bar Association Survey on Court Rulings Under Title I of the Americans with    Disabilities Act,� *Daily Labor    Report*(BNA), June 22,    1998, p. D-25. Mr. Parry is the director of the ABA Commission on Mental and    Physical Disability Law and editor-in-chief of the *Mental & Physical    Disability Law Reporter*.

[5] Parry, �Trend: 1999    Employment Decisions Under the ADA Title I�Survey Update,� p. 348.

[6] Ibid., p. 350.

[7] Ibid., pp. 349�50.

[8] Ibid., pp. 348�50.

[9] Ibid., p. 350.

[10] Ann E. Reesman, testimony    before the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov.    12�13, 1998, transcript, p. 178 (hereafter cited as Hearing Transcript).    Ms. Reesman is general counsel of the Equal Employment Advisory Council, a    nonprofit association whose stated purpose is to promote sound approaches to    eliminating employment discrimination. Its members include over 300 of the    nation�s largest private sector employers. Ibid., pp. 156, 161. In an    interview with Commission staff, Lisa Hogan, an attorney who represents    employers, said many complaints are frivolous and courts are defining    disability appropriately. Telephone interview, Oct. 13, 1998. Ms. Hogan is a    shareholder of the law firm Brownstein, Hyatt, Farber & Strickland,    where she most often represents employers in discrimination cases. Lisa    Hogan Testimony, Hearing Transcript, pp. 216, 224. Another employer    representative opined that courts are not undermining congressional intent.    Dana S. Connell, telephone interview, Oct. 6, 1998. Mr. Connell is a partner    in the law firm of Littler, Mendelson. Dana Connell Testimony, Hearing    Transcript, p. 215.

[11] James G. Frierson,    Hearing Transcript, pp. 227�29, 262�63. James G. Frierson is a professor    at East Tennessee State University in the College of Business. Ibid., p.    216. *See also* Robert Burgdorf Jr.,    Hearing Transcript, pp. 51�54. Robert Burgdorf Jr. is a professor of law    at the University of the District of Columbia, David A. Clarke School of    Law. Burgdorf Testimony, Hearing Transcript, p. 26.

[12] Adam C. Wit, �Should    �Mitigating Measures� Be Considered in the �Disability� Analysis    under the ADA?� *Employee Relations    Law Journal*, vol. 24, no. 1 (Summer 1998), p. 74 (hereafter cited as    Wit, �Should �Mitigating Measures� Be Considered�).

[13] 29 U.S.C. �� 621�634    (1994).

[14] Frierson Testimony,    Hearing Transcript, pp. 228�29.

[15] Equal Employment    Opportunity Commission, Compliance Manual, �Threshold Issues,� <http://www.eeoc.gov/docs/threshold.html>    (June 6, 2000), p. 12.

[16] The EEOC has promulgated    regulations further defining the requirements of the ADA (*see* 29    C.F.R. Part 1630 (1999)) and has issued Interpretive Guidance, which is    attached as an appendix to the formal regulations. The Justice Department    has promulgated regulations attempting to clarify the parts of the ADA it is    responsible for enforcing (*see* 28 C.F.R. Part 35 (1999)) and has also    provided assistance in the form of Interpretive Guidance as an appendix to    the regulations.

[17]*See*    42 U.S.C. � 12102 (1994); *Sutton*,    119 S. Ct. at 2144.

[18] Bragdon v. Abbott, 118 S.    Ct. 2196, 2202 (1998).

[19] 29 C.F.R. � 1630.2(h)    (1999).

[20] 29 C.F.R. � 1630.2(i).

[21] 29 C.F.R. � 1630.2(j).

[22] 29 C.F.R. � 1630.2(k).

[23] 29 C.F.R. Part 1630, app.    p. 351 (1999).

[24]*Sutton*,    119 S. Ct. at 2150.

[25]*Id.    See also* 29 C.F.R. � 1630.2(l) (1999).

[26] 42 U.S.C. � 12102(2)(A).

[27]*See*    Wit, �Should �Mitigating Measures� Be Considered,� p. 74.

[28] 29 C.F.R. Part 1630, app.    (1999), pp. 345, 349�50.

[29]*See*Arnold v. United Parcel Servs*.*,    Inc., 136 F.3d 854, 856 (1st Cir. 1998).

[30]*Id.*

[31] H.R. Rep. No. 101-485,    pt. II, at 52 (1990), *reprinted in*    1990 U.S.C.C.A.N. 303, 334.

[32] H.R. Rep. No. 101-485,    pt. III, at 28 (1990), *reprinted in*1990    U.S.C.C.A.N. 445, 451.

[33] S. Rep. No. 101-116, at    23 (1989).

[34] S. Rep. No. 101-116, at    24 (1989).

[35] Perry Meadows, M.D., and    Richard Bales, �Using Mitigating Measures to Determine Disability Under    the Americans With Disabilities Act,� *South Dakota Law Review*, vol. 45 (2000), pp. 33, 40.

[36]*Sutton*,    119 S. Ct. at 2154�55 (1999) (Stevens, J., dissenting).

[37] 42 U.S.C. � 12116.

[38] 42 U.S.C. � 12134.

[39] 42 U.S.C. � 12164.

[40] 42 U.S.C. � 12206(c)(1).

[41] 29 C.F.R. � 1630.2(j)    (1999).

[42] 29 C.F.R. Part 1630,    app., pp. 349�50.

[43] Ibid., p. 350. On June 8,    2000, the EEOC issued a final rule that rescinded those parts of the    Interpretive Guidance (� 1630.2(h), (j)), which had stated mitigating    measures should not be considered in determining whether an individual has a    disability. Interpretive Guidance on Title I of the Americans with    Disabilities Act, 65 Fed. Reg. 36327 (2000) (to be codified at 29 C.F.R.    Part 1630, Appendix).

[44] 28 C.F.R. Part 35, app. A    � 35.104 (1999).

[45] 49 C.F.R. Part 37.3    (1998). This provision was changed after the Supreme Court decisions on the    definition of disability. *Compare*49    C.F.R. Part 37.3 (1999).

[46] Arnold v. United Parcel    Servs., Inc., 136 F.3d 854 (1st Cir. 1998); Bartlett v. New York State Bd.    of Law Exam�rs, 156 F.3d 321 (2d Cir. 1998); Matczak v. Frankfork Candy    & Chocolate Co*.,* 136 F.3d 933    (3d Cir. 1997); Washington v. HCA Health Servs. of Texas, 152 F.3d 464 (5th    Cir. 1998); Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (8th Cir. 1998);    Doane v. Omaha, 115 F.3d 624 (8th Cir. 1997); Holihan v. Lucky Stores, Inc.,    87 F.3d 362 (9th Cir. 1996); and Harris v. H&W Contracting Co., 102 F.3d    516 (11th Cir. 1996).

[47] Sutton v. United    Airlines, Inc., 130 F.3d 893 (10th Cir. 1997).

[48]*Sutton,*    119 S. Ct. at 2143.

[49]*Id.*

[50]*Id.*    (citation omitted).

[51]*Id.*

[52]*Id.*

[53]*Id.*

[54]*Id.*at 2144�45.

[55]*Id.*

[56]*Id*.    at 2146.

[57]*Id.*at 2145�46.

[58]*Id*.

[59]*Id.*

[60]*Id*.    (emphasis added).

[61]*Id.*

[62]*Id.*

[63]*Id.*at 2147 (emphasis added).

[64]*Id.*

[65]*Id.*

[66]*Id.*

[67]*Id.*

[68]*Id.*    (quoting 42 U.S.C. � 12101(a)(1)).

[69]*Id.*

[70]*Id.*

[71]*Id.*at 2148*.*

[72]*Id.*

[73]*Id.*

[74]*Id.*

[75]*Id.*

[76]*Id.*

[77]*Id.*at 2143.

[78]*Id.*    at 2146.

[79] Murphy v. United Parcel    Servs., Inc., 119 S. Ct. 2133 (1999).

[80]*Id*.    at 2136. *See also* Justice Stevens� dissent at 2139.

[81]*Id.*    at 2136.

[82]*Id.*

[83]*Id.*

[84]*Id.*    at 2137.

[85]*Id.*

[86]*Id.*

[87]*Id.*    at 2139 (citation omitted).

[88] Albertsons, Inc. v.    Kirkingburg, 119 S. Ct. 2162, 2165�66 (1999).

[89]*Id.*at 2165�66*.*

[90]*Id.*    at 2166.

[91]*Id.*at 2167�68.

[92]*Id.*at 2168. The    Court emphasized it was referring to the EEOC regulations because no party    had questioned their validity. The Court explained that it was doing so    �without deciding that such regulations are valid� or deciding �what    level of deference, if any, they are due.� *Id.*at 2167, n. 10 (citation omitted).**The Court made similar observations in *Sutton*,    119 S. Ct. at 2145�46; and *Murphy*,    119 S. Ct. at 2138.

[93]*Albertsons,*119 S. Ct. at 2168.

[94]*Id*. (citation omitted).

[95]*Id.*at 2169.

[96]*Id.*

[97]*Id.*at 2170�72.

[98]*Kirkingburg,*    119 S. Ct. at 2165�67, 2174.

[99] 29 C.F.R. � 1630.2(m)    (1999). The EEOC regulations clarify that �[t]he term �essential    functions� does not include the marginal functions of the position.� 29    C.F.R. � 1630.2(n) (1999).

[100]    The term �judicial estoppel� has been described as follows: �a party    is bound by his judicial declarations and may not contradict them in a    subsequent proceeding involving [the] same issues and parties. . . . [A]    party who by his pleadings, statements or contentions, under oath, has    assumed a particular position in a judicial proceeding [may not] . . .    assume an inconsistent position in a subsequent action.� Black�s Law Dictionary    848 (6th ed. 1990). This concept and the concepts of *res judicata*,    collateral estoppel, and the Rooker-Feldman doctrine have a �close    affinity� to one another and for the purposes of this discussion will be    discussed collectively under judicial estoppel. Sheehan v. City of    Glouchester, 207 F.3d 35, n. 5 (1st Cir. 2000) (citation omitted).

[101]*See* 42 U.S.C. � 423(d)(2)(A)    (1994) (stating that an applicant for Social Security disability benefits    must show �that he is not only unable to do his previous work but cannot .    . . engage in any other kind of substantial gainful work which exists in the    national economy. . . .�).

[102]*See, e.g.*, McNemar v. Disney    Store, Inc., 91 F.3d 610, 619 (3d Cir. 1996),*cert. denied*, 519 U.S. 1115 (1997) (upholding trial court�s conclusion    that McNemar failed to prove the requisite elements of an ADA claim because    he was judicially estopped from arguing that he could perform the essential    functions of the position).

[103]*Id.* at 614.

[104]*Id.* at 613.

[105]*Id.* at 616.

[106]*Id.* at 615�16.

[107]*Id.* (quoting the employee�s    Social Security Disability Insurance application).

[108]*Id.* at 617�19.

[109]*Id.*at 619.

[110]**135 F.3d 376 (6th Cir. 1998).

[111]*Id.* at 378.

[112]*Id.*

[113]*Id.*

[114]*Id.*

[115]*Id.*

[116]*Id.*

[117]*Id.* at 380�83.

[118]*Id.*at 384.

[119]    Maureen C. Weston Testimony, Hearing Transcript, p. 221. Maureen C. Weston    is an associate professor of law at the University of Oklahoma, where she    teaches courses in disability law. Ibid., pp. 215, 220.

[120]    Weston Testimony, Hearing Transcript, p. 235.

[121]    Dana S. Connell Testimony, Hearing Transcript, p. 219.

[122]    Ibid.

[123]    Claims have been barred based on applications for workers� compensation    benefits under state laws, private employer disability applications, and    applications for other forms of assistance. Social Security is the focus    here because it is applied uniformly throughout the United States.

[124]    42 U.S.C. �� 423(d)(1)(A), 1382c(a)(3)(A) (1994 & Supp. II 1996).

[125]    42 U.S.C. �� 423(d)(2)(A), 1382c(a)(3)(B) (1994 & Supp. II 1996).

[126]    20 C.F.R. � 44.152, 416.920 (1999).

[127]*Griffith,* 135 F.3d at 393 (quoting 20 C.F.R. � 404.1520(b) (1999)).

[128]*Id.*

[129]*Id.*

[130]*Id.* (quoting 20 C.F.R. �    404.1520(e) (1999)).

[131]*Id.*

[132]*Id.* (quoting 20 C.F.R. �    404.1560(c) (1999)).

[133]*See*42 U.S.C. �� 423(d)(2), 1382c(3)(B) (1998 Supp.).

[134]*Griffith*, 135 F.3d at 395.

[135]*Id.*

[136]    Equal Employment Opportunity Commission, �EEOC Enforcement Guidance on    Disability Representations,� *Daily    Labor Report* (BNA), Feb. 14, 1997, p. E-1 (hereafter cited as EEOC    Enforcement Guidance on Disability Representations). This is also available    at Equal Employment Opportunity Commission, �EEOC Enforcement Guidance on    the Effect of Representations Made in Applications for Benefits on the    Determination of Whether a Person Is a �Qualified Individual with a    Disability� Under the Americans with Disabilities Act of 1990,� Feb. 12,    1997, <http://www.eeoc. gov/docs/qidreps.txt.com> (June 22, 2000). The    EEOC�s recently issued �Threshold Issues� contains an entire section    on this issue titled �Preclusion Based on a Prior State of Federal Court    Decision.� This provides EEOC investigators detailed instructions on how    to attempt to deal with preclusion issues when they are raised in an    investigation. EEOC Compliance Manual, �Threshold    Issues,� <http://eeoc.gov/ docs/threshold.html> (June 6,    2000).

[137]    EEOC Enforcement Guidance on Disability Representations � I.C.1.

[138]    42 U.S.C. � 12111(8) (1994).

[139]    EEOC Enforcement Guidance on Disability Representations � II.A.

[140]    Ibid.

[141]**Ibid*.*

[142]    Cleveland v. Policy Mgmt. Sys., Corp.*,*119 S. Ct. 1597, 1600 (1999).

[143]*Id.*

[144]*Id.*

[145]*Id.*

[146]*Id.*

[147]*Id.*at 1604.

[148]*Id.*at 1600.

[149]    While this issue was not the subject of testimony at the Commission�s ADA    hearing, to ensure a complete discussion of all Supreme Court decisions    rendered after the hearing, it is briefly discussed.

[150]    Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391 (1998).

[151]*Wright*, 119 S. Ct. at 393.

[152]*Id.*

[153]*Id.*

[154]*Id.* at 394.

[155]*Id*. at 397.

[156]    Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).

[157]    Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

[158]*Wright,* 119 S. Ct. at 395�97.

[159]    Ira Burnim, A. Kathryn Powers, Joseph Rogers, and Dr. E. Fuller Torrey    Testimony, Hearing Transcript, pp. 116�94. Mr. Burnim is the legal    director of the Judge David Bazelon Center for Mental Health. Ms. Power is    director of the Rhode Island Department of Mental Health, Retardation, and    Hospitals. Joseph Rogers is executive director of the Mental Health    Association of Southeastern Pennsylvania. Dr. Torrey is president of the    Board of Treatment and executive director of the Stanley Foundation for    Research on Schizophrenia and Bi-Polar Disorders. Ibid., pp. 116�17.

[160]**Olmstead v. L.C., 119 S. Ct. 2176 (1999). This case and its practical    effect will be discussed in greater detail in chapter 5�Psychiatric    Disabilities and the ADA.

[161]*Olmstead*, 119 S. Ct. at 2183.

[162]*Id.* at 2183�84.

[163]*Id.* at 2181.

[164]*Id.*at 2190.

[165]*Id.* at 2185.

[166]*Id.*

[167]    The Court had agreed to review this issue in Florida Dep�t of Corrections    v. Dickson, 120 S. Ct. 976 (2000) and Alsbrook v. Arkansas, 120 S. Ct. 1003    (2000), which raised 11th Amendment immunity under both Titles I and II of    the ADA. The Court dismissed those petitions after the parties settled. *Dickson,*    120 S. Ct. at 1236; *Alsbrook*, 120    S. Ct. 1265 (2000).

[168]    Garrett v. Univ. of Alabama, 193 F.3d 1214 (11th Cir. 1999), *cert.    granted*, 120 S. Ct. 1669 (2000) No. 99-1240 (Oct. 11, 2000).

[169]*Id.*

[170]    120 S. Ct. 631 (2000).

[171]    Kimel v. Florida Bd. of Regents*,*    120 S. Ct. 631 (2000).

[172]    Stevens v. Illinois Dep�t of Transportation, No. 98-3550, 2000 U.S. App.    LEXIS 6496 (7th Cir. Apr. 11, 2000); Erickson v. Northeastern Illinois    Univ., 207 F.3d 945 (7th Cir. 2000). In *Erickson,*the court emphasized that the 11th Amendment only bars private    litigation against states in federal courts and that �[t]he ADA is valid    legislation, which both private and public actors must follow.� *Id.*The court wanted to make it clear that the federal government could    still enforce the ADA against state entities and that private individuals    could still bring their ADA claims against consenting state courts. *See also* Neinast v. Texas Dep�t of Transportation, No. 99-50811,    2000 U.S. App. LEXIS 14577 (5th Cir. June 26, 2000).

[173]    Kilcullen v. New York State Dep�t of Labor, 205 F.3d 77 (2d Cir. 2000). *See    also* Becker v. Oregon Dep�t of Corrections, No. 99-35296, 2000 U.S.    App. LEXIS 12847 (9th Cir. June 8, 2000).

[174]    For example one entire panel was devoted to �Judicial Trends in Defining    Qualified Individuals With a Disability: Mitigating Measures and Judicial    Estoppel.� Dana Connell, Maureen Weston, Lisa Hogan, and James Frierson    Testimony, Hearing Transcript, pp. 214�67. *See*    discussion on S*utton, Murphy,*and *Albertsons*earlier in this chapter*.*

[175]    Roger Clegg Testimony, Hearing Transcript, p. 90. Mr. Clegg is the vice    president and general counsel of the Center for Equal Opportunity, a    nonprofit research and educational organization. Ibid., p. 26.

[176]    Christopher G. Bell Testimony, Hearing Transcript, p. 159. Mr. Bell is a    managing partner in the law firm of Jackson, Lewis, Schnitzler & Krupman.    Ibid., pp. 155�56.

[177]    Bell Testimony, Hearing Transcript, p. 160. *See    also*Ann E. Reesman Testimony, Hearing Transcript, pp. 178�79.

[178]*Sutton,* 119 S. Ct. at 2146    (emphasis added).

[179]    Perry Meadows, M.D., and Richard Bales, �Using Mitigating Measures to    Determine Disability Under the Americans with Disabilities Act,�*South Dakota Law Review,*vol. 45 (2000), p. 33; Lauren J. McGarity,    �Disabling Corrections and Correctable Disabilities: Why Side Effects    Might be the Saving Grace of Sutton*,*�*Yale Law Journal,* vol. 109 (2000), p. 1161.

[180]*Sutton,*119 S. Ct. at 2147.

[181]    Equal Employment Opportunity Commission, �Instructions for Field Offices:    Analyzing ADA Charges After Supreme Court Decisions Addressing    �Disability� and �Qualified,� � <http://www.eeoc.gov/docs/field-ada.html>    (Apr. 26, 2000).

[182]    Ibid.

[183]    Equal Employment Opportunity Commission, Compliance Manual, �Threshold    Issues,� <http://eeoc.gov/docs/threshold.html> (June 6,    2000), pp. 12�13.

[184]    Barbara M. Smith-Duer, �Too Disabled or Not Disabled Enough: Between a    Rock and a Hard Place After Murphy v. United Parcel Service, Inc*.,*� *Washburn Law Journal*,    vol. 39 (2000), p. 255.

[185]    Ibid.

[186]    McGarity, �Disabling Corrections    and Correctable Disabilities,� p. 1162 (citation omitted)*.*

[187]Ibid., p. 1173, n. 74 for a    compilation of recent cases rejecting claims of individuals using corrective    measures.

[188]    H.R. Rep. No. 101-485, pt. II, at 52 (1990), *reprinted in* 1990 U.S.C.C.A.N. 303, 334. S. Rep. No. 101-116, at 24.

[189]    Arnold v. City of Appleton, 97 F. Supp. 2d 937, 947 (S.D. Wis. 2000)    (finding �There is no dispute that the plaintiff has epilepsy. . . . The    plaintiff has not shown that he is �disabled� as contemplated by the    ADA�).*See also id*. Todd v.    Academy Corp., 57 F. Supp 2d 448, 452�54 (S.D. Tex. 1999) (finding that    the employee�s epilepsy was an impairment for ADA purposes but as    medicated did not substantially limit a major activity).

[190]    EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999). In *Gallagher,*while finding that the employees condition �if left untreated, would    affect the full panorama of life activities, and indeed would likely result    in an untimely death,� the court held that the �predicted effects of the    impairment in its untreated state� could not be considered an actual    disability under the Supreme Court�s recent decisions. *Id.*    at 653. The court did find that the jury should determine whether the    employee was regarded as disabled under the ADA. *Id.*at 657.

[191]    Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1086�89 (10th Cir. 1999)    (holding that an employee with multiple sclerosis was not an individual with    a disability under any prong of the ADA�s definition of disability).

[192]*Sutton* at 2145; *Albertsons* at 2167, n. 10.

[193]*Sutton* at 2145; *Murphy* at 2138; *Albertsons*    at 2167, n. 10; *Olmstead*at 2183.

[194]*Sutton,*119 S. Ct. at 2145    (citation omitted).

[195]*Id.*at 2146*.*

[196]*Cleveland*, 119 S. Ct. at 1601.

[197]*Id.*

[198]*Id.*at 1600.

[199]*Id.*

[200]*Id.* at 1604.

[201]*See* Mitchell v. Washingtonville    Central Sch. Dist., 190 F.3d 1 (2d Cir. 1999) (holding that an employee    alleging on a Social Security application that he is unable to stand cannot    proceed with an ADA claim because he cannot do the essential functions of    the job); Motley v. New Jersey State Police, 196 F.3d 160 (3d Cir. 1999)    (holding that an employee�s claims for disability insurance could not be    reconciled with his claims under the ADA); Feldman v. American Memorial Life    Ins. Co., 196 F.3d 783 (7th Cir. 1999) (holding that an employee�s claims    for Social Security disability precluded her from claiming she could do the    essential job functions); and Lloyd v. Hardin County, 207 F.3d 1080 (8th    Cir. 2000) (holding that an employee could not explain away the    representations made on an application for Social Security benefits).

[202]    Connell Testimony, Hearing Transcript, p. 245.

[203]    Ibid.

[204]**Pena v. Houston Lighting & Power Co., 154 F.3d 267, 269 (5th Cir.    1998).

[205]    President Bush�s Signing Statement, book 2, p. 1079.

[206]    Lisa Hogan Testimony, Hearing Transcript, p. 225.